United States District Court, E.D. Michigan, Southern Division
LAURA HICKS, on behalf of herself and similarly situated employees, Plaintiff,
GREAT LAKES HOME HEALTH SERVICES, INC. and GREAT LAKES ACQUISITION CORP., d/b/a GREAT LAKES CARING, Defendants.
OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (DOC. 25) AND GRANTING PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. 27)
CARAM STEEH UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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.
Standard of Law
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).
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).
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).