United States District Court, D. Maryland
DEVIN JONES, et al. Plaintiffs,
FIDELITY RESOURCES, INC., Defendant.
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
Devin Jones (“Plaintiff” or “Jones”)
and other similarly situated employees bring this action
against their former employer, Defendant Fidelity Resources,
Inc. (“Defendant” or “Fidelity”),
alleging failure to pay overtime wages under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201,
et seq., the Maryland Wage and Hour Law
(“MWHL”), Md. Code Ann., Lab. & Empl. §
3-401, et seq., and the Maryland Wage Payment and
Collection Law, Md. Code Ann., Lab. & Empl., §
3-501, et seq. (“MWPCL”). (Compl., ECF
February 1, 2018, this Court issued a Memorandum Opinion and
accompanying Order (ECF No. 4, 5) which permitted Plaintiff
to proceed with an FLSA collective action, see 29
U.S.C. § 216(b), conditionally certified a class
consisting of “all hourly employees who worked for
Fidelity Resources, Inc. in the ISS and/or PSS programs from
May 2014 to February 1, 2018, ” and permitted notice of
this action to be provided to the class members. As a result,
numerous plaintiffs have submitted opt-in forms indicating
their consent to join the collective action.
pending before this Court are: Plaintiffs' Motion for
Class Certification (ECF No. 72); Defendant's Motion to
Strike Untimely Opt-in Plaintiffs (ECF No. 75);
Defendant's Motion to Dismiss Counts II and III of
Plaintiffs' Complaint Pursuant to Fed.R.Civ.P. 12(b)(6)
(ECF No. 76); and Plaintiffs' Motion for Summary Judgment
(ECF No. 77). The parties' submissions have been
reviewed, and no hearing is necessary. See Local
Rule 105.6 (D. Md. 2018). For the reasons that follow,
Plaintiffs' Motion for Class Certification (ECF No. 72)
is GRANTED; Defendant's Motion to Strike Untimely Opt-in
Plaintiffs (ECF No. 75) is DENIED; Defendant's Motion to
Dismiss Counts II and III of Plaintiff's Complaint
Pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 76) is DENIED; and
Plaintiffs' Motion for Summary Judgment (ECF No. 77) is
GRANTED IN PART AND DENIED IN PART. Specifically, Plaintiffs
are entitled to Summary Judgment on Defendant's
affirmative defense as to the companionship services
exemption, but not entitled to a finding of liquidated
damages at this time.
alleges that his former employer, Fidelity, unlawfully
withheld overtime payments from him and other employees for
their round-the-clock work caring for Fidelity clients
suffering from physical and cognitive disabilities. (Compl.
2, ECF No. 1.) Fidelity, a non- profit Maryland corporation,
contracts with the Maryland Developmental Disabilities
Administration (“MDDA”) to provide services to
individuals with disabilities. (Oparah Aff. ¶¶ 2-3,
ECF No. 13-1.) Fidelity provides services through four
a. Individual Family Care (or “IFC”) program,
which provides adult foster care services;
b. Family Support Services (or “FSS”) program,
which provides in-home services to children under twenty (20)
c. Individual Support Services (“ISS”) program,
which provides independent adult living services; and
d. Personal Support Services (“PSS”) program,
which provides independent adult living services.
(Id. at ¶ 2.) Clients in the ISS and PSS
programs require 24-hour services while clients in the IFC
and FSS programs do not. (Id.)
clients live in single-unit apartments leased and maintained
by Fidelity. (Id. at ¶ 8; Joint Stipulation of
Undisputed Facts at ¶ 2, ECF No. 72-5.) Clients reside
in these apartments for the specific purpose of receiving
care from Fidelity. (Pls.'s Ex. 2, Oparah Dep. 18:3-21,
ECF No. 77-4.) Once Fidelity's services end
(e.g., should the client wish to discontinue care),
they are not permitted to remain in the apartments.
(Id. at 27:3-13.) Fidelity exerts complete control
over its apartment units: it manages them (Id. at
14:20-15:3; 20:16-20), cleans them (Id. at 15:7-18),
furnishes them (Id. at 18:20-21), and pays the rent
and other associated bills. (Id. at 18:8-15.) In
some instances, clients contribute to or pay the utilities
and rent for the leased apartments. (Def.'s Ex. A, Oparah
Aff. ¶ 4, ECF No. 86-1.)
directly employs staff persons, known as
“caregivers” or “home health
specialists” to assist their clients. (Oparah Aff. at
¶ 8; McCullough Decl. at ¶¶ 4, 7, ECF No.
72-7; Wiggins Decl. at ¶¶ 4-5, ECF No. 72-8;
Walabai Decl. at ¶¶ 4-5, ECF No. 72-9; Gee Decl. at
¶¶ 5-6, ECF No. 72-10.) Caregivers are compensated
based on an hourly rate ranging from $9.00 to $11.00 per
hour. (Oparah Dep. 43:11-19, 64:6-65:2; McCullough Decl. at
¶ 6; Wiggins Decl. at ¶ 7; Walabai Decl. at ¶
7; Gee Decl. at ¶ 4.) They are paid directly by
Fidelity, which contracts with third-party providers for
payroll services. (Pls.'s Exhibit 1, Def.'s Answers
to Interrogs. No. 17, ECF No. 77-3.) Fidelity exerts a great
deal of control over the caregivers' employment.
Caregivers are assigned to work for specific clients. (Oparah
Dep. 25:16-26:1.) Christiana Oparah, Fidelity's CEO and
corporate designee, testified that caregivers are assigned
specific duties to perform for their assigned clients and are
trained in how to perform those duties. (Id. at
36:18-37:5, 39:3-6.) Former employees aver that Fidelity
dictated caregivers' schedules and required them to
submit bi-weekly timesheets. (McCullough Decl. at ¶ 22;
Wiggins Decl. at ¶ 20; Walabai Decl. at ¶ 20; Gee
Decl. at ¶ 21.)
allege that they were not paid at the overtime rate mandated
by state and federal law despite working well over forty
hours per week. Fidelity admits that Plaintiffs and other
caregivers in its ISS and PSS departments regularly worked
overtime, but represents that “nobody was forced”
to work overtime. (Oparah Dep. 52:1-10; 52:19-53:5.) Current
and former employees state that they often worked as many as
sixty to eighty hours per week, often over one hundred hours
over the course of two weeks. (McCullough Decl. at ¶ 20;
Wiggins Decl. at ¶ 16, Walabai Decl. at ¶ 17.) The
Declaration of one current employee, Gloria Walabai,
indicates that she consistently worked over 150 to 180 hours
every two weeks and that in one two-week period she logged
approximately two-hundred fifty hours of work because she was
the only employee assigned to care for a particular client.
(Walabai Decl. at ¶ 17.) On weekends, caregivers in
these departments were scheduled to work a 48-hour shift.
(Def.'s Answers to Interrogs. No. 3; Oparah Aff. at
her deposition, Oparah testified on behalf of Fidelity that
the company only began paying its caregivers at the legally
mandated overtime rate after a lawsuit was filed against it.
In December 2015, a former Fidelity employee initiated a
lawsuit accusing Fidelity of the same wage violations alleged
in this lawsuit. Complaint, Clinton v. Fidelity
Resources, Inc., ELH-15-3854 (D. Md.), ECF No. 1. In
September 2016, the parties settled the lawsuit and the case
was dismissed. Order, Clinton v. Fidelity Resources,
Inc., ELH-15-3854 (D. Md.), ECF No. 24. In her
deposition, Oparah testified that Fidelity has been
“paying overtime since” that lawsuit was filed,
that it was not “aware” of overtime laws
beforehand. (Oparah Dep. 48:16-20; 50:2-8).
the Oparah deposition, Fidelity has supplemented the record
to indicate that its payment of overtime wages followed on
the heels of new legal developments. In 2013, the Department
of Labor promulgated a final regulation, scheduled to become
effective on January 1, 2015. The regulation narrowed the
scope of the “companionship services” exemption
to the FLSA's overtime requirements. 29 C.F.R. §
552.109; see also Home Care Ass'n of America v.
Weil, 799 F.3d 1084 (D.C. Cir. 2015), cert.
denied, 136 S.Ct. 2506 (2016). Specifically, the
regulation declares that “[t]hird party employers of
employees engaged in companionship services . . . may not
avail themselves of the minimum wage and overtime exemption
provided by section 13(a)(15).” 29 C.F.R. §
552.109(a) (2015). The regulation also narrows the definition
of “companionship services” to cover a broader
swath of healthcare workers. On August 21, 2015, the District
of Columbia Circuit Court of Appeals affirmed the new
regulation. Home Care Ass'n of America, 799 F.3d
at 1090. In a subsequently executed affidavit, Oparah
testified that Fidelity's payment of overtime wages
resulted from the enactment of 29 C.F.R. § 552.109,
rather than from the Clinton lawsuit. (Def.'s
Ex. A, Oparah Aff. at ¶ 2, ECF No. 86-1.)
Motion to Dismiss.
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P 8(a)(2). Rule 12(b)(6) of the
Federal Rules of Civil Procedure authorizes the dismissal of
a complaint if it fails to state a claim upon which relief
can be granted. The purpose of Rule 12(b)(6) is “to
test the sufficiency of a complaint and not to resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
Supreme Court's opinions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), “require that
complaints in civil actions be alleged with greater
specificity than previously was required.” Walters
v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation
omitted). In Twombly, the Supreme Court articulated
“[t]wo working principles” that courts must
employ when ruling on Rule 12(b)(6) motions to dismiss.
Iqbal, 556 U.S. at 678. First, while a court must
accept as true the factual allegations contained in the
complaint, the court is not so constrained when the factual
allegations are conclusory or devoid of any reference to
actual events. United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979). Moreover, a court need not
accept any asserted legal conclusions drawn from the
proffered facts. Iqbal, 556 U.S. at 678. (stating
that “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice” to plead a claim); see also Wag More Dogs,
LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)
(“Although we are constrained to take the facts in the
light most favorable to the plaintiff, we need not accept
legal conclusions couched as facts or unwarranted inferences,
unreasonable conclusions, or arguments.” (internal
quotation marks omitted)).
a complaint must be dismissed if it does not allege “a
plausible claim for relief.” Iqbal, 556 U.S.
at 679. Although a “plaintiff need not plead the
evidentiary standard for proving” her claim, she may no
longer rely on the mere possibility that she could later
establish her claim. McCleary-Evans v. Maryland
Department of Transportation, State Highway
Administration, 780 F.3d 582, 584 (4th Cir. 2015)
(emphasis omitted) (discussing Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002) in light of Twombly
and Iqbal). Under the plausibility standard, a
complaint must contain “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555. While the plausibility requirement does not
impose a “probability requirement, ” id.
at 556, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678; see also Robertson v. Sea Pines Real Estate
Cos., 679 F.3d 278, 291 (4th Cir. 2012) (“A
complaint need not make a case against a defendant or
forecast evidence sufficient to prove an
element of the claim. It need only allege facts
sufficient to state elements of the claim.”
(emphasis in original) (internal quotation marks and citation
omitted)). In making this assessment, a court must
“draw on its judicial experience and common
sense” to determine whether the pleader has stated a
plausible claim for relief. Iqbal, 556 U.S. at 679.
“At bottom, a plaintiff must nudge [its] claims across
the line from conceivable to plausible to resist
dismissal.” Wag More Dogs, LLC, 680 F.3d at
365 (internal quotation marks omitted).
Motion for Class Certification.
obtain class certification, the Plaintiffs must meet all four
requirements of Federal Rule of Civil Procedure 23(a), and at
least one of the requirements of Rule 23(b). Gunnells v.
Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir.
2003). These requirements are referred to as numerosity,
commonality, typicality, and adequacy of representation.
Fed.R.Civ.P. 23(a). With respect to Rule 23(b), Plaintiffs
seek certification of the putative class under Rule 23(b)(3),
which requires a finding that common questions
“predominate over any questions affecting only
individual members, and that a class action is superior to
other available methods for fairly and efficiently
adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
The plaintiff must establish that the class certification
requirements have been met by a preponderance of the
evidence. Brown v. Nucor Corp., 785 F.3d 895, 931-32
(4th Cir. 2015).
class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 348, 131 S.Ct. 2541, 2550 (2011)
(internal quotation marks and citation omitted). “Rule
23 does not set forth a mere pleading standard. A party
seeking class certification must affirmatively demonstrate
his compliance with the Rule-that is, he must be prepared to
prove that there are in fact sufficiently numerous
parties, common issues of law or fact, etc.”
Id. at 351. In ruling on a class certification
motion, a court must take a close look at the facts relevant
to the certification question, even if those facts
“tend to overlap with the merits of the underlying
case.” Thorn v. Jefferson-Pilot Life Ins. Co.,
445 F.3d 311, 319 (4th Cir. 2006); accord
Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366
(4th Cir. 2004) (“[W]hile an evaluation of the merits .
. . is not part of a Rule 23 analysis, the factors spelled
out in Rule 23 must be addressed through findings, even if
they overlap with issues on the merits.”).
Supreme Court recently noted that “‘sometimes it
may be necessary for the court to probe behind the pleadings
before coming to rest on the certification question,' and
that certification is proper only if ‘the trial court
is satisfied, after a rigorous analysis, that the
prerequisites of Rule 23(a) have been satisfied.'”
Wal-Mart, 564 U.S. at 350-51 (quoting Gen. Tel.
Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982));
see also Coopers & Lybrand v. Livesay, 437 U.S.
463, 469 (1978) (“[T]he class determination generally
involves considerations that are ‘enmeshed in the
factual and legal issues comprising the plaintiff's cause
of action.'”) (quoting Mercantile Nat. Bank v.
Langdeau, 371 U.S. 555, 558 (1963)).
Motion for Summary Judgment.
of the Federal Rules of Civil Procedure provides that a court
“shall grant summary judgment if the movant shows that
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(c). A material fact is one that “might
affect the outcome of the suit under the governing
law.” Libertarian Party of Va. v. Judd, 718
F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
summary judgment is proper “only when no
‘reasonable jury could return a verdict for the
nonmoving party.'” Monon Corp. v. Stoughton
Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir. 2001)
(quoting Anderson, 477 U.S. at 255)). When
considering a motion for summary judgment, ...