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West v. Emeritus Corp.

United States District Court, M.D. Tennessee, Nashville Division

December 14, 2016

CARA L. WEST, Plaintiff,
v.
EMERITUS CORPORATION, Defendant.

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge.

         The defendant, Emeritus Corporation (“Emeritus”), has filed a Motion for Summary Judgment (Docket No. 22), to which the plaintiff has filed a Response (Docket No. 25), and Emeritus has filed a Reply (Docket No. 27). For the following reasons, the motion will be denied.

         BACKGROUND

         This case arises from the plaintiff's employment as the Resident Care Director of the Terrace at Bluegrass (“Bluegrass”), a residential living community operated by the defendant, Emeritus. The plaintiff, Cara L. West, filed this action pursuant to the Fair Labor Standards Act (“FLSA”), alleging that Emeritus failed to pay her overtime wages for time that she routinely worked over 40 hours in a week. (Docket No. 1 ¶¶ 16-19.) Emeritus argues that Ms. West is not entitled to overtime wages under the FLSA because she was employed in a bona fide executive capacity and, therefore, the FLSA's overtime provisions do not apply to her. (Docket No. 22-1, p. 1.) Emeritus now seeks summary judgment on this ground.

         As a preliminary matter, the court notes that Emeritus has raised objections to the evidence submitted by the plaintiff in opposition to the pending motion. First, Emeritus argues that Ms. West failed to comply with Local Rule 56.01 when she failed to include record citations supporting the denials she makes in her Response to Emeritus's Statement of Material Facts. (Docket No. 27, pp. 4-5.) As a sanction for her failure to comply with the local rules, Emeritus argues that Ms. West's denials should be treated as admissions for the purposes of summary judgment. (Id.) Emeritus does not, however, identify any specific denials that it claims to be insufficiently supported, and a review of Ms. West's Response to Emeritus's Statement of Material Facts reveals that she provides at least some record citation in all but two of her denials. (Docket No. 26 ¶¶ 4, 11.) To the extent that any of Ms. West's denials are not adequately supported by citations to the record, however, the court will disregard those denials in its recounting of the facts below.

         Emeritus's second objection to Ms. West's opposition is that it relies primarily on “a self-serving sham declaration that must be disregarded because it directly contradicts her prior sworn deposition testimony.” (Docket No. 27, p. 2.) Alleging that the declaration is “nothing more than a poorly-veiled attempt to create a factual dispute and survive summary judgment dismissal, ” Emeritus argues that the document should be disregarded “in its entirety” pursuant to the Sixth Circuit's well-established sham affidavit rule. (Id. at 4.) The sham affidavit rule states that “[a] party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony.” Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). If an affidavit submitted at summary judgment contradicts the affiant's prior sworn testimony, “it should be stricken unless the party opposing summary judgment provides a persuasive justification for the contradiction.” France v. Lucas, 836 F.3d 612, 622 (6th Cir. 2016) (quoting Aerel, S.R.L v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006)). As Emeritus correctly observes, portions of Ms. West's declaration directly contradict her prior deposition testimony, and Ms. West has offered no justification for those contradictions. The court, therefore, will note those portions in its discussion of the facts below and, pursuant to the sham affidavit rule, exclude them from its consideration of the pending motion.

         The court does not find it appropriate to disregard Ms. West's declaration in its entirety, however, as much of it does not directly contradict Ms. West's deposition testimony. While the court understands - and, to some extent, shares - Emeritus's concern that the declaration was created and submitted solely to create disputes of fact sufficient to survive summary judgment, it has no grounds for excluding the portions of Ms. West's declaration that do not directly contradict her prior deposition testimony. See Aerel, 448 F.3d at 909 (declining to extend the sham affidavit rule in a way that would “transform the straightforward, objective inquiry needed to decide whether an affidavit contradicts deposition testimony into a more subjective evaluation of a party's prior opportunities during discovery to present evidence and whether that party could have or should have been more forthcoming in her deposition”).

         FACTS[1]

         Bluegrass is a residential living community located in Hendersonville, Tennessee that is comprised of an assisted living department for senior residents and a memory care department for residents with impaired cognitive function. Bluegrass employs at least four Licensed Practical Nurses (“LPNs”), who assist in providing care to the community's residents by managing their care according to their individual needs, ordering and administering prescription medications, collecting samples of bodily fluids for testing, and assisting with daily needs, such as bathing, dressing, and feeding. Bluegrass also employs ten to fifteen Technicians, who assist in providing care to residents by answering calls, checking vital signs, escorting them around the premises, serving meals, and assisting with bathing, showering, and restroom use. These LPNs and Technicians report directly to a Resident Care Director, who oversees their work in the assisted living department, and a Memory Care Director, who oversees their work in the memory care department. Both the Resident Care Director and Memory Care Director report to Bluegrass's Executive Director, who works in an office on site at Bluegrass and oversees the entire community, including the assisted living, memory care, maintenance, marketing, and dietary departments. (Docket No. 22-3 (Depo. C. West), 43:23-45:15, 65:1-3.)

         In April of 2012 - shortly after she first received her LPN license - Ms. West applied, and was hired, for a position at Bluegrass. Based on the portion of her application for employment that Ms. West placed in the record, it appears that she initially applied for a position as an LPN. (Docket No. 25-4 (Application), p. 1.) The parties agree, however, that Ms. West was hired with the understanding that she would become the community's Resident Care Director after the then-current Resident Care Director, Kathy Stolzer, finished working out her notice period. (Docket No. 22-3, 27:1-29:14.) Pursuant to this understanding, Ms. West worked for a few weeks as an LPN while Ms. Stolzer trained her to assume the Resident Care Director position. During that time, Ms. West was apparently paid at an hourly rate of $20 per hour, even though she has submitted a “Job Confirmation Document” into the record suggesting that, as an LPN, she was entitled to only $17 per hour in pay. (Docket No. 25-4, p. 2.) At some point in late April or early May of 2012, Ms. West fully transitioned to Resident Care Director at Bluegrass, and she began to be paid on a salary basis of $800 per week. (Docket No. 22-3, 27:1- 28:7, 81:3-11.)[2]

         As Resident Care Director, Ms. West had responsibilities relating to (1) shift scheduling for the LPNs and Technicians working in the assisted living department; (2) the hiring, management, and discipline of the LPNs and Technicians employed at Bluegrass; and (3) the care provided to community residents. With respect to scheduling, Ms. West was responsible for drafting a work schedule for all of the LPNs and Technicians working in the assisted living department. If an LPN or Technician missed a shift, Ms. West was responsible for ensuring that the shift was covered by another employee, either by finding a replacement or working the shift herself. According to Ms. West, these efforts were often constrained by the fact that the Executive Director would not approve overtime pay for hourly employees such as the LPNs and Technicians (id. at 90:20-23), and “Tennessee state law required [Bluegrass] to have a LPN on site at all times, because of the residents with Alzheimer's disease” (Docket No. 27-1 ¶ 19). Because there were often vacancies in the LPN ranks, and because Ms. West is licensed as an LPN, she often worked shifts for employees who could not make their shift or who had resigned from their position.

         With respect to the hiring, management, and discipline of the LPNs and Technicians employed at Bluegrass, it is clear that Ms. West had the authority to make recommendations regarding their employment, but also that any decision regarding that employment was reserved for the Executive Director. Ms. West reviewed resumes and conducted interviews of potential new hires with the Memory Care Director, with the Executive Director “stop[ping] in occasionally.” (Docket No. 22-3, 55:25-56:6.) In conjunction with the Memory Care Director, Ms. West made hiring recommendations to the Executive Director, and she cannot recall any of their joint recommendations being ignored. (Id. at 57:7-22.) With respect to the LPNs and Technicians under her supervision, Ms. West maintained manager files tracking their performance metrics. She was also expected to complete performance evaluations for those employees, and she made recommendations regarding increases in their pay based on the evaluations.[3] Ms. West also admits that she had the authority to discipline LPNs and Technicians, which included the authority to conduct verbal coaching sessions, educate her subordinates on proper techniques, and recommend disciplinary action such as separation or suspension to the Executive Director. (Id. at 77:1-78:22.)

         With respect to resident care, Ms. West was responsible for ensuring that community residents received appropriate care from the LPNs and Technicians under her supervision. Ms. West drafted care plans for Bluegrass residents that were used by LPNs and Technicians in administering care, and she alone had access to a computer program - “We Care” - that she used to track resident progress. In addition to tracking resident progress, Ms. West received and implemented feedback that she received from residents regarding their care, and she held monthly meetings with residents and their families to solicit complaints and facilitate the feedback process. Finally, Ms. West was responsible for ensuring that certain aspects of the care provided to residents - primarily the administration of medication and the screening of potential residents - were conducted in compliance with local and state regulations.

         In addition to monitoring the care provided to residents, Ms. West was responsible for providing direct care to residents as an LPN and, at times, as a Technician. Ms. West avers in her declaration that she spent 80% to 85% of her time as Resident Care Director providing direct nursing care to residents, and she argues that, despite her management duties, she was “more of an LPN than a manager” in her day-to-day work. (Docket No. 25-3 ¶¶ 7-11.) Emeritus, on the other hand, disputes this portion of her declaration, arguing that it directly conflicts with her deposition testimony that she “only performed such manual duties when the LPNs and Technicians she supervised would call off work and when needed to maintain employee morale.” (Docket No. 27-1 ¶¶ 8-11 (citing Docket No. 22-3, 49:20-50:9, 92:4-13).) Though Ms. West testified in her deposition that she filled in for employees who missed their shifts, however, nothing in her testimony limits the circumstances under which she provided nursing care to residents solely to instances in which an employee missed a shift or it was necessary to maintain employee morale. Moreover, the job description for the Resident Care Director position - placed in the record by Ms. West - includes in the position's “essential functions” the “[p]erform[ance] [of] licensed nurse tasks within scope of practice as allowed by state law.” (Docket No. 25-5 (Job Description), p. 2.) ...


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