Bagoue v. Developmental Pathways

FLAVIE BONDEH BAGOUE, and those similarly situated, Plaintiff, v. DEVELOPMENTAL PATHWAYS, INC.and CONTINUUM OF COLORADO, INC., Defendants.

Civil Action No. 16-cv-01804-PAB-NRN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

September 23, 2019

Chief Judge Philip A. Brimmer

ORDER

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 12-Hour 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 ofColorado, 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-hourwork 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 classaction 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). Anissue 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 thescheduling 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 D...