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Wesley v. Accessible Home Care

United States District Court, E.D. Kentucky, Central Division, Lexington

December 6, 2018




         Pro se plaintiff Misty Wesley alleges that Defendant Accessible Home Care (“AHC”) failed to pay her federal minimum wage and overtime compensation when she was employed as a live-in caregiver in 2017.[1] AHC has filed a second motion to dismiss Wesley's Complaint on mootness grounds based on AHC's most recent Rule 68 offer of judgment. [Record No. 74] The motion will be granted because there is no question that AHC's offer of judgment gives Wesley full relief regarding her Fair Labor Standards Act (“FLSA”) claims.


         A plaintiff must maintain a live controversy throughout an action. A case becomes moot when interim events deprive the court of the ability to redress the plaintiff's injuries. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997); Int'l Union, United Auto, Aero, Agr. & Implement Workers of Am. v. Dana Corp., 697 F.2d 718, 721 (6th Cir. 1983). As this Court has explained previously, a Rule 68 offer of judgment may moot a plaintiff's claim under certain circumstances. [Record No. 61, p. 4-4 (discussing Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016) & Mey v. North Am. Bancard, LLC, 655 Fed.Appx. 332 (6th Cir. 2016)).] Here, those circumstances have been satisfied because: 1) AHC's offer of judgment satisfies Wesley's demand for relief regarding the claims she is permitted to bring and 2) AHC has deposited the funds in the Court's registry for payment to Wesley upon entry of Judgment.


         Wesley's surviving claims are based on her allegations that the defendant failed to pay her minimum wage and overtime during her employment as a live-in caregiver, as required by the FLSA, 29 U.S.C. §§ 206, 207. Wesley alleges that she held this position for about six months. [Record No. 43, p. 2] AHC's payroll records corroborate this allegation, indicating that Wesley provided live-in services first on June 9, 2017, and the last on December 9, 2017. [Record No. 74-4, pp. 4-10] Wesley complains that, during this period, she worked twenty-four hour shifts three to four times per week and was paid a flat fee of $170.00 per shift. AHC has conceded Wesley's allegations for purposes of its motion and has submitted records showing the days Wesley worked. [Record No. 74-4, pp. 4-10] Wesley has not disputed the accuracy of these records, which correspond with the allegations regarding her work schedule. [See Record No. 53.]

         AHC used its payroll records, along with Wesley's suggested calculations, to determine the compensation owed to her. Wesley began working twenty-four-hour shifts during the first full week of June 2017, when she also worked with patients on an hourly basis at a rate of $9.50 per hour. [See Record Nos. 10, 74-4.] When employees perform two different types of work for different rates of pay during a single workweek, the regular rate for that week is the weighted average of those rates. 29 C.F.R. § 778.115. The weighted average is determined by computing the employee's total earnings for the week and dividing the earnings by the total number of hours worked at all jobs. Id. Here, Wesley worked 18.25 hours as a CNA and 72 hours as a live-in caregiver, earning a total of $683.38. Based on these values, Wesley's regular rate for the week of June 5, 2017 is $7.57. Forty hours at this rate equals $302.80. Her overtime compensation-50.25 hours times one and one-half the regular rate ($11.36)- equals $570.84. Therefore, Wesley's compensation for this week should have been $873.64, not $683.38. As a result, she is entitled to $190.26 with respect to the work week of June 5, 2017.

         The remaining calculations are more straightforward because Wesley worked at a single rate of pay for the remainder of her employment. Employees may be paid a flat sum for a day's work or for doing a particular job. See 29 C.F.R. 778.112. The employee's regular rate normally is determined by totaling all sums received at such rates and dividing by the total number of hours actually worked. Id. But such an employee's regular rate cannot fall below the federally-mandated minimum wage.

         Wesley noted in her Complaint that $170.00, divided by twenty-four hours is only $7.08 per hour-lower than the $7.25 minimum wage. See 29 U.S.C. § 206(a)(1)(C). [Record No. 10, p. 5] She contends that the pay rate for her live-in position should be increased to $7.25 per hour. [Record No. 53] Since overtime compensation must be a rate “not less than one and one-half times [an employee's] regular pay, ” Wesley argues she is entitled to overtime compensation at a rate of $10.88 per hour. Id.

         The specific dates, hours worked, and amounts of pay she actually received are as follows:[2]

Week of June 15, 2017-72 hours--$510.00
Week of June 21, 2017-72 hours--$510.00
Week of June 27, 2017-72 hours--$510.00
Week of July 3, 2017-96 hours--$765.00[3]
Week of July 10, 2017-96 ...

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