Rapp v. Network of Cmty. Options, Inc.

• Decision Date: 08 July 2021
• Docket Number: No. 20-2054,20-2054
• Citation: 3 F.4th 1084
• Parties: Linda RAPP; Craig Shumway; Karen Shumway, Plaintiffs - Appellants v. NETWORK OF COMMUNITY OPTIONS, INC., Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

3 F.4th 1084

Linda RAPP; Craig Shumway; Karen Shumway, Plaintiffs - Appellants

v.NETWORK OF COMMUNITY OPTIONS, INC., Defendant - Appellee

No. 20-2054

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2021

Filed: July 8, 2021

John T. Holleman, Timothy A. Steadman, Holleman & Associates, P.A., Little Rock, AR 72201, fro Plaintiffs-Appellants.

Adam David Frank, Samuel Brent Wakefield, Barber Law Firm, Little Rock, AR 72201-3414, for Defendant-Appellee.

Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.

WOLLMAN, Circuit Judge.

Linda Rapp and Craig and Karen Shumway brought this Fair Labor Standards Act (FLSA) case against their employer, Network of Community Options, Inc. (NCO). The district court¹ granted summary judgment in favor of NCO after concluding that Rapp and the Shumways had failed to put forth evidence establishing that they worked overtime hours and that NCO had constructive knowledge of their claimed overtime hours. We affirm.

I. Background

Rapp and the Shumways are employed by NCO as direct support professionals. Direct support professionals provide support and assistance to clients who are developmentally disabled. Rapp's client is her adult son, C.R., who resides in her home. The Shumways’ client, J.C., resides in their home and is the ward of Karen's mother.

The relationships between NCO and C.R. and J.C. respectively are described in each client's plan of care. C.R.’s plan of care states that he is to receive forty hours of assistance per week from his direct support professional, Rapp. Rapp also provides "personal care" to C.R. for two hours each day in her separate role as an employee of White River Area on Aging. J.C.’s plan of care sets forth that he is to receive a total of 112 hours of assistance per week from a variety of direct support professionals. According to J.C.’s plan of care, Craig and Karen each provide J.C. forty hours of assistance per week as direct support professionals.

Rapp and the Shumways filed suit, alleging that they had worked overtime hours for NCO but not been paid.² Rapp and the Shumways asserted that they were on duty around-the-clock to care for their NCO clients because the clients lived in their homes. As relevant to this appeal, Rapp sought ninety-eight hours of weekly overtime pay.³ Craig and Karen each sought twenty-eight hours of weekly overtime pay.⁴ In granting summary judgment in favor of NCO, the district court also concluded that Rapp and the Shumways were not entitled to the benefit of a three-year statute of limitations for willful violations under 29 U.S.C. § 255(a) or to liquidated damages under 29 U.S.C. § 216(b), see id. § 260.

II. Analysis

We review de novo the district court's grant of summary judgment. Holaway v. Stratasys, Inc., 771 F.3d 1057, 1058 (8th Cir. 2014). Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Although at summary judgment we take the record in the light most favorable to the nonmoving party, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Holaway, 771 F.3d at 1059 (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)).

The FLSA requires that covered employees receive at least one and one-half times their regular hourly rate for hours worked over forty per week. 29 U.S.C. § 207(a)(1). To establish a FLSA claim for unpaid overtime, a plaintiff must prove "(1) that the plaintiff has performed compensable work and (2) the number of hours for which the plaintiff has not been properly paid." Hertz v. Woodbury Cnty., 566 F.3d 775, 783 (8th Cir. 2009). Even if an employer did not request the overtime hours worked, the employee "must be compensated if the employer knows or has reason to believe the employee is continuing to work and the duties are an integral and indispensable part of the employee's principal work activity." Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th Cir. 1975) (internal citations and quotation marks omitted). Thus, the employee must show that the employer had actual or constructive knowledge—not merely that the employer "could have known." Hertz, 566 F.3d at 782.

We conclude that Rapp's unpaid overtime claim fails to survive summary judgment. Rapp has not provided evidence that she in fact remained at home performing compensable work for ninety-eight hours per week, nor has she identified specific hours of the week during which that overtime occurred. See Holaway, 771 F.3d at 1060 (concluding, on an even more lenient standard, that the plaintiff had "failed to put forth any evidence regarding specific weeks where he worked beyond forty hours"). Rapp has also failed to provide a meaningful explanation of how she arrived at her estimate of sixteen hours of non-working personal time per week. See id.

Rapp contends that she was constantly on duty to care for C.R. and thus prevented from engaging in private pursuits—except for the sixteen hours of personal time per week. To determine whether on-duty waiting or sleeping time is working time, we consider a number of factors, including

the number of consecutive hours the employee is subject to call without being required to perform active work, the extent to which he is free to engage in personal activities during periods of idleness, whether he is required to remain on or about the premises during such time, or whether he can leave word where he may be reached in the event of a call and is not required to remain in any particular place.

Cent. Mo. Tel. Co. v. Conwell, 170 F.2d 641, 646 (8th Cir. 1948).

The record evidence belies Rapp's portrayal of her direct support professional role. Rapp testified that her role involved working with C.R. on the goals and objectives set forth in his plan of care. During the time period at issue, C.R.’s set-forth goals and objectives included initiating daily communication with peers and family members, learning to use buttons and zippers to dress himself, and exercising with assistance at least twice daily. Rapp provides no evidence that her direct support professional role included "wait[ing] for something to happen."⁵ See Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). When Rapp's shift ended, her work for NCO was complete and she was free to "engage in normal private pursuits." See 29 C.F.R. § 785.23 (2019). Rapp points to no evidence that NCO was engaged to provide around-the-clock services or that her job with NCO included being generally "on call" or "on duty" at all times simply because C.R. lived in her home. We therefore conclude that Rapp has not provided evidence that would allow a reasonable jury to find that she was working nearly twenty-four hours per day, seven days a week, in her role as a direct support professional for NCO.

Moreover, even if Rapp had established that she performed overtime work for which she was not paid, she has not established that NCO had actual or constructive knowledge thereof. Rapp testified that she asked if she could work additional waiver hours and that NCO responded that overtime was neither in the budget nor in C.R.’s allotted plan of care. This...