United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION FOR DAMAGES AND
MOTION FOR POST-JUDGMENT INTEREST
S. KRIEGER, CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court pursuant to Mr.
Deasy's Motion for Damages (# 79) and
the Defendant's (“Optimal”) response
(# 85); and Mr. Deasy's Motion for
Post-Judgment Interest (# 80), and
Optimal's response (# 86).
Court assumes the reader's familiarity with the
proceedings to date. It is sufficient to note that, on
November 29, 2018, a jury returned a verdict in favor of Mr.
Deasy, in the amount of $23, 321.38, on Mr. Deasy's claim
for unpaid overtime wages under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 207. The instant
FLSA provides generally that an employee who prevails on a
claim for unpaid overtime is also entitled to “an
additional equal amount [of the unpaid wages] as liquidated
damages.” 29 U.S.C. § 216(b). The Act provides
employers with a limited affirmative defense: an employer who
shows, by a preponderance of the evidence, that its failure
to pay required overtime was “in good faith and that
[the employer] had reasonable grounds for believing that
[its] act or omission was not a violation” may avoid
the imposition of the liquidated damages. 29 U.S.C. §
260. The defense has two components: (i) a showing of
subjective good faith by the employer - that is, that the
employer had “an honest intention to ascertain and
follow the dictates of the FLSA”; and (ii) a showing
that, objectively, the employer had a reasonable basis for
its belief that the employee was exempt from overtime
requirements. Dept. of Labor v. City of Sapulpa, 30
F.3d 1285, 1289 (10th Cir. 1994). Even if the
employer makes both showings, the Court retains the
discretion to award the liquidated damages nonetheless.
Pabst v. Oklahoma Gas & Elec. Co., 228 F.3d
1128, 1136 (10th Cir. 2000).
for purposes of this ruling, that Optimal
subjectively attempted in good faith to comply with
the FLSA, the Court nevertheless finds insufficient evidence
that its belief that Mr. Deasy was exempt from the FLSA's
requirements was objectively reasonable. Optimal
does not contend that it engaged in the types of conduct that
have typically been found sufficient to establish the defense
in other cases - e.g. that it discussed the issue
with counsel, sought a formal opinion letter from any state
or federal Department of Labor, or otherwise specifically
consulted with experts in the field. See e.g. Pabst,
228 F.3d at 1136-37; Sanders v. Elephant Butte Irr.
Dist., 112 F.3d 468, 471 (10th Cir. 1997);
Doty v. Elias, 733 F.2d 720, 726 (10th
Optimal relies entirely on the affidavit of Eric Ehrle, its
Human Resources Coordinator. Mr. Ehlre states only that in
2015, he “attended a webinar” put on by various
agencies, including the Colorado Department of Labor and
Employment, that “provided information about the
application of the [FLSA] to Colorado Home Care and Hospice
Agencies.” Optimal's reliance on Mr. Ehrle's
attendance at the webinar is problematic for several reasons.
First, the webinar occurred in July 2015, more than a year
and a half after Mr. Deasy began working for Optimal; thus,
the advice Mr. Ehrle received at the webinar cannot possibly
have constituted an objectively-reasonable basis for Optimal
to fail to pay overtime to Mr. Deasy prior to July 2015.
the webinar - or, at least, the explanatory slides that are
the only evidence in the record of its contents - was
primarily focused on informing health care employers of
“new federal regulations” whose “main
purpose” was to “bring home care workers under
protection of FLSA”; in other words, the thrust of the
webinar was to inform health care employers that the
Department of Labor was tightening, not loosening,
its rules regarding overtime exemptions. Optimal points to a
single slide that explains that “medically related
services” (c.f. “companionship”
services that were the primary subject of the webinar) were
“unchanged” by the new rulemaking, and that
“nurses are still exempt from the FLSA's wage
requirements where their time is spent in the performance
of the duties of a nurse and are paid on a salary or a
‘fee basis' as defined by regulations 29 C.F.R.Part
541.” (Emphasis added.) Optimal's alleged
reliance on just the un-emphasized portion of the slide -
“Nurses are still exempt” - is unreasonable given
that a simple review of the remainder of the quoted text and
review of the cited regulations would have revealed that the
slide was only partially-correct. 29 C.F.R. §
541.301(e)(2) unambiguously explains that “registered
nurses . . . generally meet the duties requirements for the
learned professional exemption, ” but that
“licensed practical nurses, ” such as Mr. Deasy,
“generally do not qualify as exempt.”
(Emphasis added.) Thus, the Court cannot say that Mr.
Ehrle's reliance on an ambiguous statement about
“nurses” on the slide was objectively reasonable,
particularly where there is no evidence that Mr. Ehrle even
consulted the source material cited in the slide.
there is evidence in the record that further undercuts the
reasonableness of any belief that Optimal may have had about
Mr. Deasy's exempt status. Exhibit 34, admitted during
trial, is the affidavit of Edwin Vergerire, Optimal's
President. Mr. Vergerie acknowledges that as of November
2014, he was aware that Mr. Deasy's prior employer, RGA,
had been “cited by the Department of Labor for not
paying overtime wages for non-exempted [Licensed Practical
Nurses].” Thus, even if Mr. Ehrle believed, because of
the webinar, that all nurses were FLSA-exempt, Mr.
Vergerie knew otherwise. At that point, it was incumbent upon
Optimal to investigate the issue further, rather than to
simply assume that Mr. Ehrle's information was correct
and Mr. Vergerie's was not.
to the extent that Optimal continues to rest on the theory it
urged at trial - that Mr. Deasy was something more than a
mere Licensed Practical Nurse, such that his skills were more
akin to those of a Registered Nurse - Optimal has offered no
evidence whatsoever to demonstrate that such an unorthodox
theory was, itself, objectively reasonable. In light of the
crystal-clear provisions of 29 C.F.R. § 541.301(e)(2),
any reasonable employer that nevertheless believed that its
Licensed Practical Nurse could somehow be deemed FLSA-exempt
would have sought to confirm that belief by seeking the
advice of counsel or an opinion from the Department of Labor,
not simply assuming that it was so. Optimal's failure to
do so precludes any finding that it acted in an
objectively-reasonable way by failing to pay overtime to Mr.
remaining arguments on this point - that it paid Mr. Deasy
generously or that Mr. Deasy did not object to the
arrangement during his employment, among others - are either
entirely irrelevant to the elements of the defense or are
insignificant in light of the evidence set forth above.
Accordingly, the Court finds that Optimal has not carried its
burden of showing good faith under 29 U.S.C. § 260, and
thus, Mr. Deasy is entitled to an additional liquidated
damage award of $23, 321.38.
Deasy requests that any judgment issued by the Court bear
post-judgment interest pursuant to 28 U.S.C. § 1961.
Optimal offers largely technical objections to the request,
but ultimately concedes that post-judgment interest as
directed by the statute is appropriate upon entry of
judgment. Accordingly, the Court grants Mr. Deasy's
foregoing reasons, Mr. Deasy's Motion for Damages
(# 79) and Motion for Prejudgment Interest
(# 80) are GRANTED.
Judgment in favor of Mr. Deasy in the amount of ...