United States District Court, D. Colorado
A. Brimmer, Chief United States District Judge
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.
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, ¶¶
Defendant Continuum of Colorado, Inc.
(“Continuum”) is a service agency that provides
services for persons with intellectual and developmental
disabilities. Id. ¶¶ 4-5. 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.
Flavie Bondeh Bagoue worked for defendants for approximately
twelve total years. Id. 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. While employed at
the Nevada House, plaintiff worked under a “continuous
shift policy.” Docket No. 33 at 3, ¶
14.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.
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.
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.
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).
“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.
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
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”). 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.
Plaintiff’s First Claim - State Law
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.
Application of the Colorado Minimum Wage Order
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).
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
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,
“Health and Medical” Industry
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.
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.
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.
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.
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). 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. 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.
Court concludes that defendants are not in the “Health
and Medical” industry for purposes of the Wage Order.
“Retail and ...