Bagoue v. Developmental Pathways, Inc.

          ORDER

          Philip A. Brimmer, Chief United States District Judge

         This matter is before the Court on plaintiff’s Motion for Class Certification Under Rule 23(b)(3) and Appointment of Class Counsel Under Rule 23(g) [Docket No. 91], Defendants’ Motion for Summary Judgment [Docket No. 98], and plaintiff’s Motion for Partial Summary Judgment Against Continuum of Colorado, Inc. as to Plaintiff’s 12Hour Overtime Claim [Docket No. 99]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND

         Defendant Developmental Pathways, Inc. (“Developmental Pathways”) is a not-for-profit community-centered board that serves individuals with developmental disabilities and their families. Docket No. 98 at 3, ¶¶ 1-2.^[1] Defendant Continuum of Colorado, Inc. (“Continuum”) is a service agency that provides services for persons with intellectual and developmental disabilities. Id. ¶¶ 4-5.^[2] Developmental Pathways and Continuum were a single legal entity until 2012. Id. at 4, ¶ 9. Continuum operates group homes for the developmentally disabled, which are designed to help individuals with developmental disabilities to live as independently as possible, throughout Colorado. Id. at 3-5, ¶¶ 6, 12. One of those group homes is the Nevada House. Id. at 4, ¶ 11.

         Plaintiff Flavie Bondeh Bagoue worked for defendants for approximately twelve total years. Id.^[3] Beginning in 2012, plaintiff worked at the Nevada House as a Life Skills Specialist (“LSS”). Id. Plaintiff’s principal job duty was to provide day-to-day care for the residents of the Nevada House. Id. at 5, ¶ 13.^[4] While employed at the Nevada House, plaintiff worked under a “continuous shift policy.” Docket No. 33 at 3, ¶ 14.^[5]Under the continuous shift policy, plaintiff was scheduled to be at the Nevada House for fifty-six consecutive hours, consisting of two sixteen-hour work shifts, one eight-hour work shift, and two sleeping periods. Docket No. 98 at 5, ¶¶ 14, 16. Continuum used an electronic time clock to track plaintiff’s hours worked. Id. at 6, ¶ 18.

         On July 14, 2016, plaintiff filed this lawsuit. Docket No. 1. Plaintiff alleges that defendants failed to adequately compensate plaintiff for certain categories of time including time spent communicating with other workers at the beginning and end of her shifts (“pre- and post-shift time”), Docket No. 33 at 5, ¶¶ 34-35; sleep time, which was regularly interrupted such that plaintiff did not usually get five hours of continuous and uninterrupted sleep, id. at 9, ¶ 59; and extra time worked as a result of the change to daylight savings time. Id., ¶¶ 60-61. Plaintiff also alleges that the sleeping facilities provided by defendants were inadequate because they were not private quarters, separated from the residents of the group home. Id. at 10, ¶ 66-67. Plaintiff claims that the staff room set aside for sleeping did not have amenities for recreation, offered little privacy, was illuminated by hallway lights, and that the residents of Nevada House would enter her sleeping quarters without permission. Id. at 10-12, ¶¶ 66-74. Plaintiff alleges that she never entered into a formal agreement with defendants to deduct sixteen hours of sleep time from her paychecks. Id. at 12, ¶ 76. Plaintiff brings claims for relief (1) under the Colorado Wage Claim Act (“CWCA”), Colo. Rev. Stat. §§ 8-4-101, et seq., Colorado Minimum Wage Act, Colo. Rev. Stat. §§ 8-6-101, et seq., and Colorado Minimum Wage Order (“Wage Order”), 7 Colo. Code Regs. § 1103-1 (First Claim); (2) under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. (Second Claim); and (3) for equitable relief under Colorado law (Third Claim). Docket No. 33 at 18-21, ¶¶ 114-135. Plaintiff’s First and Third Claims are brought as a class action pursuant to Fed.R.Civ.P. 23. Id. at 15-17, ¶¶ 95-109. Plaintiff’s Second Claim is brought as a collective action pursuant to 29 U.S.C. § 216(b).

         On August 22, 2018, plaintiff filed a motion for conditional certification of her Second Claim as a collective action. Docket No. 85. On September 21, 2018, plaintiff filed a motion for class certification under Rule 23(b)(3). Docket No. 91. On November 19, 2018, defendants filed a joint motion for summary judgment on all claims. Docket No. 98. That same day, plaintiff filed a motion for partial summary judgment, asking that the Court find that Continuum is covered by the Wage Order and enter summary judgment against Continuum as to the First Claim. Docket No. 99. On March 25, 2019, the Court conditionally certified the Second Claim as a collective action and approved modified notice to the potential opt-in plaintiffs. Docket No. 111. Twenty-six additional plaintiffs have opted in to the collective action. Docket Nos. 83, 87, 112, 113, 114, 115, 116, 117, 119, 120.

         II. LEGAL STANDARD

         Summary judgment is warranted under Federal Rule of Civil Procedure 56 when 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(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation marks omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.

         III. ANALYSIS

         The Court turns first to the parties’ cross-motions for summary judgment. As an initial matter, plaintiff argues that defendants’ motion should be denied on the basis that it is “premature” pursuant to Fed.R.Civ.P. 56(d). Docket No. 103 at 13- 14. Plaintiff argues that, under the discovery schedule approved by the Court, “merits discovery would take place only after [the] Court ruled on class and collective certification.” Id. at 14.

         Rule 56(d) of the Federal Rules of Civil Procedure provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” The Court disagrees with plaintiff that the motion is premature. First, the affidavit submitted by plaintiff’s counsel is insufficient. See Docket No. 103-5. To invoke Rule 56(d), the affidavit must “identify[] the probable facts not available, ” “what steps have been taken to obtain these facts, ” and “explain how additional time will enable [her] to rebut movant’s allegations [that there is] no genuine issue of fact.” See Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 732 (10th Cir. 2006) (quoting Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992)). The affidavit submitted by plaintiff’s counsel fails to identify what, if any, facts plaintiff would expect to find during additional discovery, as well as what steps have been taken to obtain these facts before the close of discovery. See Garcia v. U.S. Air Force, 533 F.3d 1170, 1179-80 (10th Cir. 2008) (holding that district court did not abuse discretion in denying request where affidavit submitted by plaintiffs’ counsel failed to identify specific facts which would create a genuine issue of material fact and identify what steps had been taken to obtain such facts, and where plaintiffs had six months to conduct discovery prior to their request). Although plaintiff suggests that the scheduling order, see Docket No. 70, provided only for limited discovery, the scheduling order appears to contemplate allowing additional discovery by defendants only, not by plaintiff, if the class is conditionally or collectively certified. The Court is not convinced that plaintiff’s interpretation of the scheduling order as providing for class discovery only explains why plaintiff would be unable to obtain the facts needed to defeat summary judgment. See Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1151 (10th Cir. 2006) (noting that Rule 56(d) “does not compel the court to grant a continuance to a party that has been dilatory in conducting discovery”).^[6] Moreover, on September 7, 2018, the parties asked the Court to set a dispositive motions deadline for November 19, 2018. See Docket No. 86. Nowhere in the parties’ joint motion does plaintiff represent that the summary judgment motions would be limited only to class- or collective-wide issues. Thus, the Court finds that defendants’ motion for summary judgment is not premature and turns to the merits of the cross-motions.

         A. Plaintiff’s First Claim - State Law

         Plaintiff moves for partial summary judgment against Continuum on her claim for overtime for working more than twelve hours in a given day on the basis that Continuum is covered by the Colorado Minimum Wage Order (“Wage Order”). Docket No. 99. Defendants move for summary judgment on the entirety of plaintiff’s First Claim, arguing that they are not covered by the Wage Order. Docket No. 98.

         1. Application of the Colorado Minimum Wage Order

         The Wage Order “regulates wages, hours, working conditions and procedures for certain employers and employees” in four “industries”: “(A) Retail and Service; (B) Commercial Support Service; (C) Food and Beverage; [and] (D) Health and Medical.” 7 Colo. Code Regs. § 1103-1:1. Plaintiff cannot recover on her First Claim under the Wage Order if defendants do not fall into one of the covered industries. Simmons v. Boys & Girls Club of the Pikes Peak Region, No. 16-cv-01461-RBJ, 2017 WL 4337931, at *1 (D. Colo. Sept. 29, 2017).

         Colorado courts construe regulations like the Wage Order by applying the same principles used to construe statutes. Rags Over the Arkansas River, Inc. v. Colorado Parks & Wildlife Bd., 360 P.3d 186, 192, as modified on denial of reh’g (Colo.App. 2015). Under Colorado law, the primary objective of statutory construction “is to effectuate the intent of the General Assembly by looking to the plain meaning of the language used, considered within the context of the statute as a whole.” Bly v. Story, 241 P.3d 529, 533 (Colo. 2010). If the language is ambiguous, Colorado courts look beyond that language “for other evidence of legislative intent and purpose, such as legislative history or other rules of statutory construction.” Crandall v. City and Cty. of Denver, 238 P.3d 659, 662 (Colo. 2010). In construing particular terms, Colorado courts “consider the context of the term at issue and construe it consistently with other terms in the statutory framework.” Boulder Cty. Bd. of Comm’rs v. HealthSouth Corp., 246 P.3d 948, 951 (Colo. 2011).

         For the purposes of the instant motion, the Court considers whether defendants are covered by the Wage Order because they are in either (a) the “Health and Medical” industry or (b) the “Retail and Service” industry. See Docket No. 99 at 3-6; Docket No. 103 at 13, 19-20.

         a. “Health and Medical” Industry

         The Wage Order defines the “Health and Medical” industry to include

any business or enterprise engaged in providing medical, dental, surgical or other health services including but not limited to medical and dental offices, hospitals, home health care, hospice care, nursing homes, and mental health centers, and includes any employee who is engaged in the performance of work connected with or incidental to such business or enterprise, including office personnel.

7 Colo. Code Regs. § 1103-1:2(D). Defendants argue that they are not in the “Health and Medical” industry. In defendants’ view, what makes “Health and Medical” a distinct industry is whether a business provides “health services.” Docket No. 98 at 14, 16. Defendants argue that they are not hospitals, home health care providers, hospice care providers, nursing homes, or mental health centers, and that they do not provide health services to their clients. Id. Defendants also argue that the Wage Order does not apply because the Colorado Department of Labor and Employment’s (“CDLE”) 2012 Advisory Bulletin (the “Advisory Bulletin”) directs that “[c]ommunity [c]entered [b]oards and service agencies that are planned, designed, organized, operated, and maintained to provide services to and for individuals with developmental disabilities” are excluded from the Wage Order. Id. at 16-17 (citing Docket 98-9 at 71). Finally, defendants argue that a recent state court decision applying the Wage Order confirms that defendants’ interpretation of the law is correct. Id. at 18-19 (citing Docket No. 98-8). In her cross- motion, plaintiff argues that Continuum provides “health and medical services” to its residents and is thus covered by the Wage Order. Docket No. 99 at 3-4.

         Some principles can be drawn from cases interpreting the Wage Order. The definitions in the Wage Order must be read “as a whole.” Blanco v. Xtreme Drilling and Coil Servs., Inc., No. 16-cv-00249-PAB-CBS, 2017 WL 951150, at *3 (D. Colo. Mar. 8, 2017). In determining whether the Wage Order applies to a particular employer, “courts look to whether the employer’s operations fit the industry definition, not whether any of the company’s employees perform services that may be supplied in a particular industry.” Id. Although the Court should not take the list of specific examples of businesses that fall within a certain category as “exclusive, ” the Court should not “ignore the common theme” of the industry definition. Cartier v. W. Elec. Coordinating Council, No. 14-cv-00079-WJM-MJW, 2015 WL 3581346, at *5 (D. Colo. June 9, 2015). Moreover, a business covered by the “Health and Medical” section of the Wage Order must “offer services in some capacity to the general public.” Menocal v. GEO Group, Inc., 113 F.Supp. 3d 1125');">113 F.Supp. 3d 1125, 1130 (D. Colo. 2015). In Menocal, the court concluded that, although defendant had a “medical facility” at its private, for-profit detention facility, it was not covered by the Wage Order because it did not provide health or medical services to the general public. Id. at 1130.

         A Colorado state court has held that community-centered boards like Developmental Pathways are not covered by the Wage Order. See Docket No. 98-8 (order in Smith v. Mountain Valley Developmental Servs., Inc., 18-cv-30026 (Garfield Cty. Dist. Ct. April 12, 2018) (“Smith”)). The court in Smith concluded that, because a community-centered board (1) is not one of the explicitly listed industries, (2) does not provide “medical, surgical or any other health services, ” and (3) merely coordinates with third-party providers to access medical and health care services, it is not a “Health and Medical” industry for purposes of the Wage Order. Id. at 4-5.

         Read as a whole, the “common theme” of the “Health and Medical” industry definition is whether an entity is primarily providing health care services. See 7 Colo. Code Regs. § 1103-1:2(D); Cartier, 2015 WL 3581346, at *5. “[H]ospitals, home health care [providers], hospice care [providers], nursing homes, or mental health centers” all primarily provide health care services. In contrast, defendants primarily provide services that help individuals with developmental disabilities to “live as independently as possible.” See Docket No. 98 at 5, ¶ 12. Although some of defendants’ employees may provide medical services, defendants’ operations as a whole do not fit within the “Health and Medical” industry. See Blanco, 2017 WL 951150, at *3 (noting that Wage Order coverage does not attach merely because “any of the company’s employees perform services that may be supplied in a particular industry”); Smith at 4-5 (holding that a community-centered board is not covered by the Wage Order). Moreover, to the extent that defendants offer health care services, they do not offer those services to the general public. Rather, they offer services only to individuals who are determined to have intellectual and developmental disabilities. See Colo. Rev. Stat. § 25.5-10-202(26)(b) (“‘[P]erson with an intellectual and developmental disability’ means a person determined by a community-centered board to have an intellectual and developmental disability”); § 25.5-10-211. Because a person must first be “eligible” to access any services provided by defendants, they do not provide any health services to members of the “general public” and are thus not covered by the Wage Order. See Menocal, 113 F.Supp. 3d at 1130.^[7]

         The Court’s conclusion is supported by the Advisory Bulletin. See Docket No. 98-9 at 1. As relevant here, the Advisory Bulletin states:

DEVELOPMENTAL DISABILITY COMMUNITY CENTERED BOARDS AND SERVICE AGENCIES. Community Centered Boards and service agencies that are planned, designed, organized, operated, and maintained to provide services to and for individuals with developmental disabilities as defined in C.R.S. 27-10.5-202 are exempt from all provisions of the Wage Order.

See Docket No. 98-9 at 71. Plaintiff does not dispute that Developmental Pathways is a “community-centered board” and that Continuum is a “service agency” within the meaning of the Bulletin. See Docket No. 103 at 2, ¶¶ 3-4. Although the Colorado Division of Labor has recently withdrawn the Advisory Bulletins on the grounds that they did not fully incorporate “many changes to wage law and policy” since they were issued and therefore are not entitled to deference, see Docket No. 118-1, the Court finds the Advisory Bulletin here to have some relevance. See Brunson v. Colo. Cab Co., LLC, 433 P.3d 93, 99-100 (Colo.App. 2018) (concluding that the Advisory Bulletin is entitled to respect to the extent it has the power to persuade).^[8] Plaintiff does not identify any change in wage law or policy since 2012 that would indicate that the Advisory Bulletin’s interpretation of the Wage Order was incorrect as a matter of law and has been superceded by a change in the law. In fact, plaintiff cites to no authority that has adopted her interpretation of the Wage Order.^[9] Instead, plaintiff argues that there is a dispute of fact as to whether some of defendants’ employees provide “Health and Medical” services. See Docket No. 103 at 16-17. Defendants assert that the principal job duties of LSSs like plaintiff were to “provide day-to-day care” for residents by “cooking meals, cleaning the house, taking residents to doctors’ appointments and to church, grocery shopping, and other like needs, ” see Docket No. 98 at 5, ¶ 13, while plaintiff contends that LSSs were “also responsible for providing medical care.” See Docket No. 103 at 4-5, ¶ 13. Even accepting plaintiff’s contention, the fact that some of defendants’ employees perform services that may be supplied in the “Health and Medical” industry does not indicate that Wage Order coverage attaches. See Blanco, 2017 WL 951150, at *3. Plaintiff also has failed to establish a dispute of fact as to whether defendants provide any health and medical services to the general public, as opposed to providing health and medical services solely to persons who have been determined to have an intellectual and developmental disability. See Menocal, 113 F.Supp. 3d at 1130.

         The Court concludes that defendants are not in the “Health and Medical” industry for purposes of the Wage Order.

         b. “Retail and ...