Mohammadi v. Augustine Nwabuisi, Rose Nwabuisi, Res. Health Servs., Inc.

• Citation: 990 F.Supp.2d 723
• Decision Date: 02 January 2014
• Docket Number: Cv. No. SA:12–CV–42–DAE.
• Parties: Dana D. MOHAMMADI, Plaintiff, v. Augustine NWABUISI, Rose Nwabuisi, Resource Health Services, Inc. d/b/a Resource Home Health Services, Inc., and Resource Care Corporation, Defendants.
• Court: U.S. District Court — Western District of Texas

990 F.Supp.2d 723

Dana D. MOHAMMADI, Plaintiff,

v.Augustine NWABUISI, Rose Nwabuisi, Resource Health Services, Inc. d/b/a Resource Home Health Services, Inc., and Resource Care Corporation, Defendants.

Cv. No. SA:12–CV–42–DAE.

United States District Court,

W.D. Texas,

San Antonio Division.

Jan. 2, 2014.

Claire Elise Rodriguez, Philip Jonathan Moss, San Antonio, TX, for Plaintiff.

Glenn J. Deadman, Attorney at Law, San Antonio, TX, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DAVID ALAN EZRA, Senior District Judge.

The Court tried this case without a jury from September 24 to 26, 2013. Claire Rodriguez and Philip Moss, Esqs., appeared on behalf of Plaintiff Dana D. Mohammadi (“Plaintiff”); Glenn Deadman, Esq., appeared on behalf of Defendants Augustine Nwabuisi, Rose Nwabuisi, Resource Health Services, Inc., and Resource Care Corporation (collectively, “Defendants”). Plaintiff brought overtime and minimum-wage claims under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 62.001 et seq. The principal issue in dispute during the trial was the number of improperly compensated and/or uncompensated hours Plaintiff worked.

The Court has considered the evidence submitted, made determinations as to relevance and materiality, assessed the credibility of the witnesses, and ascertained the probative significance of the evidence presented. Upon consideration of the above, and pursuant to Federal Rule of Civil Procedure 52(a), the Court finds the following facts by a preponderance of the evidence, and in applying the applicable law to such factual findings, makes the following conclusions of law. To the extent any findings of fact as stated may also be deemed to be conclusions of law, they shall also be considered conclusions of law; similarly, to the extent any conclusions of law as stated may be deemed findings of fact, they shall also be considered findings of fact. See Compaq Computer Corp. & Subsidiaries v. C.I.R., 277 F.3d 778, 781 (5th Cir.2001).

I. Findings of Fact

These Findings of Fact are drawn from witness testimony at trial and the parties' trial exhibits, including the undisputed facts submitted by the parties in their proposed pretrial order. Plaintiff presented her testimony and the testimony of witness Sara Connell during her case-in-chief. Defendants called Defendant Rose Nwabuisi and witnesses Sabrina Flores, Martha Lewis, and Raed Kadhume.

The Nature of Defendants' Business

1. Resource Health Services, Inc. d/b/a Resource Home Health Services, Inc. and Resource Care Corporation are Texas-based corporations that provide a range of in-home healthcare services, including the provision of nurses. Resource Health Services, Inc. has offices in Houston and San Antonio, Texas; Resource Care Corporation has an office in Austin, Texas.

2. Both corporations are wholly owned by Defendant Rose Nwabuisi, who is also the Nurse Administrator in charge of the nurses. Defendant Augustine (a/k/a Austine) Nwabuisi is the CEO of both corporations. For the purposes of these findings of fact and conclusions of law, the Court will refer to these two companies collectively as “Resource.”

3. Resource employs over 500 employees, and annual revenues exceed $5 million.

4. Resource has contracts with insurance companies and with state and federal agencies, including the Texas Department of Aging and Disability Services (“DADS”). These organizations refer Medicare and Medicaid patients to Resource for home healthcare services.

5. When a patient chooses to use Resource for his or her home healthcare services, a caseworker from the contracting agency dictates which services Resource is authorized to provide to that patient.

6. Resource employs both licensed vocational nurses (“LVNs”) and non-licensed caretakers called “providers.” The former perform skilled nursing tasks such as giving injections and dressingwounds; the latter perform non-licensed services such as assistance with bathing, dressing, or preparing a meal.

7. Resource also employs additional providers, called “floaters,” who work on an unfixed schedule. If for some reason a provider cannot perform a scheduled visit, Resource sends a floater to cover that appointment and attend to the patient's needs.

The Scope of Plaintiff's Work

8. Plaintiff, who is an LVN, was one of three employees hired to staff Resource's San Antonio branch office when it first opened in June of 2009. Plaintiff worked in that office from June 16, 2009, to November 15, 2010. Plaintiff was later re-hired to work in Resource's Austin office in October of 2011.

9. Plaintiff was hired to work as a Primary Home Care (“PHC”) Field Supervisor for Providers and as an LVN Case Manager. Plaintiff was responsible for ensuring quality and safe delivery of primary home care services, coordinating the provision of primary care services, and ensuring efficient and effective case management. Plaintiff also had a number of other responsibilities, including managing the office, verifying patients' insurance, performing provider visits and skilled nursing visits, and doing marketing work.

10. Plaintiff's regularly scheduled hours were from 8:30 a.m. to 5:00 p.m., with thirty minutes for lunch, Monday through Friday. However, Plaintiff testified that, due to her many responsibilities, she generally began working between 7:00 a.m. and 9:00 a.m. and finished working around 8:00 p.m. or 9:00 p.m. from Monday through Friday. (Tr. at 38:19–24; 158:20–25; 159:1–3.) Plaintiff further asserted that she worked an average of five or six hours each weekend attending marketing events, preparing gift baskets for marketing, and scheduling or performing provider service visits. (Tr. at 39:2–5; 52:5–6.)

11. As explained in more detail below, the Court finds that Plaintiff did often work before and after her scheduled shift, during her lunch break, and on weekends. However, Plaintiff's estimate of the average number of hours she worked per week is only supported in part by the evidence.

A. Marketing

12. Plaintiff was particularly busy with marketing work during the first few months after Resource's San Antonio office opened, because at that time attracting new clientele was the top priority. Plaintiff faxed calendars listing the marketing activities she performed, copies of receipts, and requests for mileage reimbursements to Houston. ( See Pl.'s Ex. 1 at 2, 7; Pl.'s Ex. 3 at 2, 3, 16, 17.) Defendants, who stipulated to the authenticity of all exhibits, did not deny that Plaintiff had been reimbursed for her mileage and for the items she had purchased.

13. Plaintiff often attended work-related marketing breakfasts, lunches, and dinners with caseworkers in order to establish relationships with them and encourage them to refer patients to Resource. Sometimes Plaintiff went out to eat with the caseworkers at places like Golden Wok; at other times, Plaintiff brought breakfast or lunch to the caseworkers' offices.

14. Defendant Rose Nwabuisi was aware and approved of Plaintiff attending marketing meals with caseworkers. Indeed, Ms. Nwabuisi testified that she sometimes accompanied Plaintiff on lunch or dinner meetings. (Tr. at 263:12–264:17, 266:1–17.) Ms. Nwabuisi insisted that this was not compensable time because Plaintiff had “volunteered” to go. (Tr. at 265:15–266:17.) However, as Ms. Nwabuisi's own testimony makes clear, the purpose of such meals was to promote Resource's services and maintain good relationships with case workers. Ms. Nwabuisi clearly believed that Plaintiff was not “working” unless she was in the office or on a skilled nursing visit: “We'll call it a dinner meeting,” Ms. Nwabuisi explained, “but it has nothing to do with work— it has to do with marketing.” (Tr. at 266:5–8 (emphasis added).) Plaintiff's Exhibit 16—an email from Plaintiff to Ms. Nwabuisi—confirms that Ms. Nwabuisi knew or should have known that Plaintiff was attending marketing lunches for the purpose of promoting Resource. That email states in part: “Dear Rose, I would like to arrange lunch for an in-service with Ever Care[,] Mrs. Janie Daniels supervisor and Mrs. Shonna case manager ... Stated they would love to have us out to present our company. Also Candice at Saint Davis also would like us to come out for lunch request [sic] for us to contact Debbie Rodriguez ... to arrange.”

15. Plaintiff occasionally set up tables at fairs and flea markets or hosted bingo games at places like nursing homes to advertise Resource's services directly to potential clients. At these events, Plaintiff talked with potential clients about health issues, performed non-invasive procedures such as checking blood pressure, and gathered potential clients' contact information. These events lasted anywhere from four to six hours, and they sometimes took place on the weekends.

16. Plaintiff purchased food and small door prizes for the marketing lunches, bingo games, and other marketing events. Plaintiff also made gift baskets for clients, particularly around the holidays. As evidenced by the receipts she submitted for reimbursement, Plaintiff purchased these items during normal work hours, before or after work, and on weekends. ( See, e.g., Pl.'s Ex. 1 at 5 (receipt from Dollar Tree dated Saturday, June 27, 2009); Pl.'s Ex. 3 at 12 (receipt from Michaels with time stamp 5:54 p.m.; receipt from CVS with time stamp 9:42 p.m.); Pl.'s Ex. 3 at 13 (receipt from Michaels with time stamp 6:01 p.m.).)

17. Defendants, who repeatedly insisted that Plaintiff had not been hired to perform marketing work, argued in their closing statement that Plaintiff's testimony was not credible because “Resource ... does not get its patients from bingo parlors.” (Dkt. # 77 at 29.) However, not only do Defendants misconstrue Plaintiff's testimony (she testified that she hosted bingo games at places like nursing homes in order to perform outreach directly to potential patients, not that she went to bingo parlors), but their assertion is contradicted by the testimony of defense...