Opinion
Case No. 1:12-cv-736
04-02-2014
SHELLY STANFORD, Plaintiff, v. DILIGENT SUPPORTIVE LIVING, INC., Defendant.
Judge Timothy S. Black
DECISION AND ENTRY GRANTING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. 22)
This case is before the Court on Plaintiff's Motion for Summary Judgment (Doc. 22). Defendant failed to file any substantive response to Plaintiff's Motion and the time for doing so has expired. Plaintiff's Motion for Summary Judgment is ripe.
Attorney Carl Lewis first entered his appearance in this case on behalf of Defendant on November 17, 2012 when Defendant filed its Answer to the original Complaint. (Doc. 9). Soon thereafter, the Court set a discovery deadline of September 30, 2013 (Doc. 10) based upon the proposed agreed deadlines set forth in the Rule 26(f) Report submitted by Counsel. (Doc. 9). On August 28, 2013, Plaintiff filed an Amended Complaint (Doc. 17), which resulted in an Amended Calendar Order setting a discovery deadline of November 29, 2013, and a new dispositive motion deadline. (Doc. 21). Again, these deadlines were specifically proposed by Counsel for the parties. (Doc. 20).
Plaintiff timely moved for summary judgment. (Doc. 22). In that Motion, Plaintiff argued that "[d]espite repeated requests, Defendant never responded to any of Plaintiff's discovery requests, and never agreed to sit for a deposition." (Doc. 22). Based on Defendant's refusal to engage in the discovery process, Plaintiff argued that Defendant should not be permitted to present any facts rebutting Plaintiff's Motion for Summary Judgment. (Id.)
Defendant failed to respond to Plaintiff's Motion for Summary Judgment within the timeframe set by Local Rule. Accordingly, on January 22, 2014, the Court issued an Order to Show Cause (Doc. 25) directing Defendant to show cause as to why Plaintiff's Motion for Summary Judgment should not be granted an unopposed. On the date Defendant was ordered to show cause, Attorney Lewis moved to withdraw from representing Defendant (Doc. 26), which the Court denied without prejudice. On that same date, new counsel entered his appearance on behalf of Defendant and moved for an extension of time to respond to Plaintiff's pending motions and the Court's Order to Show Cause, (Doc. 28) which the Court granted. Notably, Plaintiff filed a scathing opposition to the request to withdraw and the request for extension noting Defendant's complete failure to engage in the discovery process by ignoring Plaintiff's discovery requests. (Doc. 29).
On March 5, 2014, approximately two months before trial, new Counsel for Defendant responded to the Order to Show Cause and requested that the Court allow discovery so that Plaintiff can adequately respond to Plaintiff's pending motions. (Doc. 30).
The Court declines to reopen discovery and allow Defendant the opportunity to conduct discovery at this late date in the litigation process. Defendant provides no adequate excuse for the failure to engage in the discovery process before Attorney Lewis sought to withdraw from representation. Further, noting that Defendant has failed to provide any substantive response to Plaintiff's Motion for Summary Judgment, the Court addresses Plaintiff's Motion as if it is unopposed.
I. FACTS
Plaintiff was formerly employed by Defendant as a Caregiver from March 5, 2010 until August 8, 2011. (Doc. 22-1, PAGEID 94-95). As a Caregiver, Plaintiff took care of disabled patients in their homes. (Doc. 22-1, PAGEID 94). Such care would often require Plaintiff to remain on duty in a patient's home from Saturday morning at 7:00 a.m. until the following Monday morning at 8:00 a.m. (Id.) During this continuous shift, Plaintiff was never able to get at least five hours' sleep. (Doc. 22-1, PAGEID 95). Further, throughout the continuous shift, Plaintiff worked during break periods and meal periods. (Id.) Plaintiff and Defendant had no agreement, expressed or implied, that sleep time would be excluded from the compensable hours for the continuous weekend shift. (Doc. 22-1, PAGEID 94-95).
For this continuous 49 hour shift, Defendant paid Plaintiff a flat $300.00. (Doc. 22-1, PAGEID 94). Although, Plaintiff was supposed to be paid bi-weekly, there were numerous occasions when Defendant failed to make bi-weekly payments. (Doc. 22-1, PAGEID 94-95). Defendant often failed to pay Plaintiff for more than 30 day after Plaintiff was supposed to receive her pay. (Doc. 22-1, PAGEID 95).
Despite numerous requests by Plaintiff to Defendant's management, including its CEO Vermonica Pope, Defendant failed and refused to pay Plaintiff appropriate regular and overtime compensation. (Id.) When Plaintiff would complain to Defendant's management about the untimeliness of her paycheck and Defendant's failure to pay appropriate regular and overtime pay, Pope threatened Plaintiff's job. (Id.) Shortly after one such exchange, Pope did terminate Plaintiff's employment. (Id.)
II. STANDARD OF REVIEW
Summary judgment is governed by Federal Rule 56. A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986).
"Summary judgment is only appropriate '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 a judgment as a matter of law.'" Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (quoting Fed. R. Civ. P. 56(c)). "Weighing of the evidence or making credibility determinations are prohibited at summary judgment - rather, all facts must be viewed in the light most favorable to the non-moving party." Id.
Once "a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading[.]" Viergutz v. Lucent Technologies, Inc., 375 F. App'x 482, 485 (6th Cir. 2010) (citation omitted). Instead, the party opposing summary judgment "must - by affidavits or as otherwise provided in this rule - set out specific facts showing a genuine issue for trial." Id. (citation omitted). In fact, Fed. R. Civ. P. 56(c) states that "[a] party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . or . . . showing that the material cited do not establish the absence . . . of a genuine dispute[.]" Where "a party fails . . . to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2).
III. WAGE CLAIMS
The FLSA requires that "[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce" a minimum wage. See 29 U.S.C. § 206(a). Similarly, Ohio Rev. Code § 4111.02 requires that "[e]very employer . . . shall pay each of the employer's employees" a minimum wage. Federal minimum wage during the time Plaintiff worked for Defendant was $7.25 per hour. See 29 U.S.C. § 206(a)(1).
In addition, the FLSA requires that "employees may not be required to work more than forty hours per seven-day week without overtime compensation at a rate not less than one and one-half times their regular pay." Wood v. Mid-America Management Corp., No. 1:04-cv-1633, 2005 WL 1668503, at *4 (N.D. Ohio Jul. 18, 2005) (citing Elwell v. University Hospitals Home Care Services, 276 F.3d 832, 837 (6th Cir. 2002); 29 U.S.C. § 207(a)(1); Bowers v. NOL, LLC, 114 Fed.Appx. 739, 740 (6th Cir. 2004)). Similarly, Ohio Rev. Code § 4111.03(A) provides that "[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's wage rate for hours worked in excess of forty hours in one workweek, in the manner and methods provided in . . . of the 'Fair Labor Standards Act[.]'"
Pursuant to Ohio Rev. Code § 4111.10(A), "[a]ny employer who pays any employee less than wages to which the employee is entitled under section 4111.03 of the Revised Code, is liable to the employee affected for the full amount of the overtime wage rate, less any amount actually paid to the employee by the employer, and for costs and reasonable attorney's fees as may be allowed by the court."
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Here, Plaintiff asserts that she worked a continuous 49 hour shift from 7:00 a.m. each Saturday, until 8:00 a.m. the following Monday, and thus, worked overtime each shift. As set forth in 29 C.F.R. § 785.22(a):
Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked.This "regulation clearly states that in the absence of an express agreement by the employee that sleep time may be deducted, sleep time must be counted as compensable time." Cunningham v. Gibson Cnty., Tenn., 108 F.3d 1376, 1997 WL 123750, *3 (6th Cir. Mar. 18, 1997) (citing 29 C.F.R. § 785.22).
In this case, the uncontroverted evidence before the Court establishes that Plaintiff worked for Defendant from March 5, 2010, until August 8, 2011 taking care of patients with disabilities in the patient's own home. Plaintiff's job often required that she work in the patient's home from Saturday morning at 7:00 a.m. to the following Monday morning at 8:00 a.m. The uncontroverted evidence presented establishes that, during this shift in the patient's home, Plaintiff was never able to get at least five hours of sleep and the parties had no agreement, either expressed or implied, that sleep time would be excluded from the compensable hours during her shift. Thus, pursuant to 29 C.F.R. § 785.22, any time Plaintiff spent sleeping during her shift constitute hours worked.
The evidence before the Court at this time establishes that Defendant paid Plaintiff a flat $300.00, or $6.12 per hour for the entire 49 hour continuous shift and that Defendant failed to pay Plaintiff overtime for any hours over forty worked during the continuous shift. Based on the foregoing, the Court concludes that there is no genuine issue of material fact remaining and that Defendant failed to pay Plaintiff the minimum wage and overtime wages required by federal and Ohio law. Accordingly, the Court GRANTS Plaintiff's Motion for Summary Judgment on with regard to Defendant's liability on Plaintiff's minimum wage and overtime wage claims.
In addition, the uncontroverted evidence establishes that Defendant was to pay Plaintiff bi-weekly and that Defendant often failed to do so. Ohio law requires that every employer:
shall, on or before the first day of each month, pay all its employees the wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and shall, on or before the fifteenth day of each month, pay such employees the wages earned by them during the last half of the preceding calendar month.Ohio Rev. Code § 4113.15(A). "Where wages remain unpaid for thirty days beyond the regularly scheduled payday . . . the employer, in addition, as liquidated damages, is liable to the employee in an amount equal to six per cent of the amount of the claim still unpaid and not in contest or disputed or two hundred dollars, whichever is greater." See Ohio Rev. Code § 4113.15(B). Here, the uncontroverted evidence demonstrates that there were numerous occasions when Plaintiff was not paid bi-weekly, but instead would be paid much later than that, often more than 30 days later. Accordingly, the Court GRANTS Plaintiff's Motion for Summary Judgment with regard to Defendant's liability on Plaintiff's prompt pay claims.
IV. LIQUIDATED DAMAGES
The FLSA provides that:
[a]ny employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.29 U.S.C. § 216(b). The Sixth Circuit holds that "[l]iquidated damages under the FLSA 'are compensation, not a penalty or punishment.'" Martin v. Indiana Michigan Power Co., 381 F.3d 574, 584 (6th Cir. 2004) (citing Elwell v. Univ. Hosp. Home Care Serv., 276 F.3d 832, 840 (6th Cir.2002)).
Liquidated damages are mandatory unless "the employer shows to the satisfaction of the court that the act or omission giving rise to such action [i.e., failure to pay overtime and/or minimum wage] was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the" FLSA. 29 U.S.C. § 260; see also Martin, 381 F.3d at 584. If the employer satisfactorily demonstrates the required showing under § 260, "the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title." Id.
Here, Defendant failed to substantively oppose Plaintiff's Motion, and thus, has failed to satisfactorily show "good faith" or "reasonable grounds for believing" that the failure to pay overtime was not a violation of the FLSA. Accordingly, Plaintiff is entitled to the full extent of liquidated damages set forth in § 216(b).
V. ATTORNEY FEES
Pursuant to the FLSA, "[t]he court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b). The Sixth Circuit holds that "[a]n award of attorney's fees under FLSA § 216(b) is mandatory, but the amount awarded is within the discretion of the District Court." Farmer v. Ottawa County, 211 F.3d 1268 (6th Cir. 2000) (citing United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Ass'n, Local 307 et al. v. G & M Roofing and Sheet Metal Co. Inc., 732 F.2d 495, 501, (6th Cir.1984)).
Plaintiff, having prevailed in showing Defendant violated the FLSA, is entitled to reasonable attorney fees and costs in this case. Plaintiff shall submit a motion for costs and attorney fees in accordance with applicable rules following the final entry of judgment in this case.
VI. CONCLUSION
Based on the foregoing, the Court GRANTS Plaintiff's Motion for Summary Judgment and intends to enter judgment against Defendant with regard to liability on Plaintiff's claims. Plaintiff is entitled to damages, attorney fees and costs on all of her claims. In addition, Plaintiff is entitled to liquidated damages on her FLSA claims. The determination of damages, attorney fees and costs remain pending before the Court, and the Plaintiff shall evidence her damages by filing a verified pleading within 30 days of today, to which Defendant shall reply in opposition within 30 days of Plaintiff's filing.
IT IS SO ORDERED.
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Timothy S. Black
United States District Judge