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Hicks v. Great Lakes Home Health Services, Inc.

United States District Court, E.D. Michigan, Southern Division

May 24, 2018

LAURA HICKS, on behalf of herself and similarly situated employees, Plaintiff,



         This collective action brought under the Fair Labor Standards Act, (“FLSA”), 29 U.S.C. § 291 et seq., seeks overtime compensation for work Plaintiff Laura Hicks, a registered nurse, performed as a home health worker. Now before the court is Defendants' Great Lakes Home Health Services, Inc. and Great Lakes Acquisition Corp., d/b/a Great Lakes Caring (collectively “Defendants”) motion for summary judgment on the basis that Hicks was a part-time employee. Because a genuine issue of material fact exists as to whether Hicks worked more than 40-hours per week, Defendants' motion for summary judgment shall be denied. Plaintiff also seeks partial summary judgment that she was not exempt from the overtime provisions of the FLSA as a bona fide professional because she worked on a hybrid fee and hourly basis. Oral argument was heard on April 26, 2018, and informs this court's decision. Because Hicks was not paid on a strict fee-basis, Hicks' motion for partial summary judgment shall be granted.

         I. Factual Background

         Hicks began working for First Care Healthcare, Inc. (“First Care”) in Springfield, Illinois in January, 2015. Her duties included patient home visits, as well as documenting visits, performing aide plans, and supervising other home health workers. She was paid a per-visit fee depending on the type of care provided, and an hourly fee for on-call, in-service office hours, and attendance at meetings. Defendants claim that Hicks was a part-time employee.

         On October 27, 2015, Defendant Great Lakes Acquisition Corp., a Michigan based corporation, acquired First Care. For the next two months, Hicks continued to work on a hybrid fee and hourly basis, but beginning on December 27, 2015, Hicks became a full-time salaried employee. The two-month time period from October 27, 2015 to December 27, 2015 is referred to as the “transition period” and it is for this time period only that Hicks alleges she was a covered employee under the FLSA and was denied overtime compensation. During this two-month period, Defendants recorded the time Hicks spent on in-home patient visits on a computer system known as Kinnser, but did not record the time that Hicks spent documenting the visits, time spent phoning patients, physicians, and other staff members, answering or making telephone calls while on-call, or the amount of time spent traveling to see patients or otherwise compensable work done between patient visits.

         Beginning in January, 2016, Defendants began using a different computer system to track nurses' work time known as Homecare Homebase (HCHB). HCHB was a more comprehensive system and recorded all work time, including time spent documenting patient visits and all other work outside home visits. In their motion for summary judgment, Defendants seek to rely on HCHB time records to extrapolate the time it would have taken to complete the same tasks in the transition period for which no contemporaneous time records exist. Based on these extrapolations, Defendants maintain that Hicks was a part-time employee who never worked more than 39.4 hours per week. Defendants maintain that using the HCHB records to estimate times worked during the relevant time period is a very conservative method as the HCHB system took longer to use, based in part, on the fact that staff members were still learning to use the new system.

         In support of their motion for summary judgment, Defendants rely on the affidavit of Nicolle Fleck, who was Hick's supervisor, who estimates the amount of time that Hicks could reasonably have expended on documentation of various services and travel time, and concludes that Hicks' estimate that she worked 50 to 60 hours per week is not plausible. (Doc. 26, Ex. B). Defendants also rely on the affidavit of their Chief Operating Officer, Carry VandenMaagdenberg, who calculated the time that Hicks could reasonably have expended on non-visit work, based on extrapolations from the HCHB system, and concludes that Hicks worked less than 40-hours per week during the entire transition period. (Doc. 26, Ex. D).

         Hicks, on the other hand, testified at her deposition that she generally worked from 8:00 or 9:00 a.m. until 6:00 or 7:30 p.m., worked continuously during her work day including drive time between patient visits, and then spent upwards of two hours per evening at home completing patient charting. She also testified that she was on-call every other weekend and spent about 15 minutes on each telephone call she answered while on-call.

         This lawsuit is related to a prior suit filed by the same Plaintiff's counsel against these same Defendants for alleged overtime violations under the FLSA. Hutchins v. Great Lakes Home Health Serv., Inc., No. 17-CV-10210, 2017 WL 3278209 (E.D. Mich. Aug. 2, 2017). This court dismissed that suit as time-barred because the named plaintiff's claims there arose more than two-years prior to the filing of the suit, and plaintiff failed to allege facts sufficient to support a finding of “willfulness” which would have elongated the statute of limitations to three-years. In that suit, plaintiff sought to add an opt-in form by putative class member Hicks, but the court did not consider the opt-in form as it had dismissed the named plaintiff, and thus, there was no basis for continuing the lawsuit. Plaintiff's counsel filed this suit less than two weeks after the dismissal of the Hutchins case, and it largely mirrors that case.

         II. Standard of Law

         Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir. 1995).

         The standard for determining whether summary judgment is appropriate is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Amway Distributors Benefits Ass'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).

         If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the non-movant's pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence on which a jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).

         III. ...

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