Opinion
NO. 2016-CA-001349-MR
05-25-2018
HEATHER LAZZARI APPELLANT v. NORTON HEALTHCARE, INC.; AND KEVIN MUENCH APPELLEES
BRIEFS FOR APPELLANT: Thomas E. Clay David N. Ward Louisville, Kentucky BRIEF FOR APPELLEES: Donna King Perry Jeremy S. Rogers Alina Klimkina Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 13-CI-005554 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: MAZE, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Heather Lazzari brings this appeal from an August 17, 2016, final order of the Jefferson Circuit Court. We affirm in part, reverse in part, and remand.
Relevant to this appeal, Lazzari was employed as a staffing coordinator for Norton Healthcare, Inc., from January 2002 until she was terminated on January 11, 2013. Connie Mann was also employed as a staffing coordinator for Norton from May 2002 until she was terminated on February 6, 2013.
On October 28, 2013, Lazzari and Mann filed complaints in the Jefferson Circuit Court against, inter alios, Norton and Kevin Muench (collectively referred to as appellees). Lazzari claimed that she was not properly compensated for time worked as a staffing coordinator during the regular workweek and also during on-call weekends at various times during the period of 2008 - 2013, in violation of Kentucky Revised Statutes (KRS) 337.285 and KRS 337.385 (Kentucky Wage and Hour Law). Lazzari also asserted that she was improperly terminated in violation of the public policy exception to the at will employment doctrine in Kentucky. And, Lazzari maintained that she was terminated in retaliation for her opposition to discriminatory practices of Norton against Connie due to her disability, in violation of KRS 344.280 (Kentucky Civil Rights Act). As for Connie, she claimed, inter alia, to have suffered discrimination due to a disability in violation of KRS 344.040.
Kevin Muench was employed by Norton Healthcare, Inc., and was the supervisor of Heather Lazzari and Connie Mann.
In 2011, Mann was attacked one night as she was leaving work at Norton and as a result suffered from post-traumatic stress syndrome, a legitimate disability for employment purposes.
Appellees filed motions for summary judgment. Relevant therein, they argued that Lazzari was terminated for secretly recording a conversation between two of Norton's employees and that Lazzari admitted to doing so. Moreover, they maintained that Lazzari failed to offer any proof that she was terminated for any other reason. Norton also argued that Lazzari failed to set forth any facts demonstrating entitlement to overtime pay during on-call weekends or for uncompensated time during the regular workweek. In fact, Norton claimed that Lazzari conceded in her deposition that she reported all the time worked to Norton and that she was paid for that time.
Lazzari filed a response and also a supporting affidavit. Therein, Lazzari asserted that from October 28, 2008, through July 3, 2011, she was not compensated by Norton for 1.5 hours of work per week. Additionally, Lazzari claimed that she worked 2.0 hours every Friday from July 4, 2011, through January 11, 2013, and 3.5 hours every other Friday from July 4, 2011, through January 11, 2013, without compensation. Lazzari further maintained that the flat rate of $150 for the weekend on-call shift was unreasonable and that she was entitled to compensation for each hour of the on-call shift. Also, Lazzari conceded to recording the conversation of two Norton employees but maintained that Norton used that as a pretext for her termination. Lazzari argued that disputed issues of fact precluded summary judgment on her claims.
By opinion and order entered February 19, 2016, the circuit court granted summary judgment as to Lazzari's claims against appellees. The circuit court determined that no material issues of fact existed as to any of Lazzari's claims and that appellees were entitled to judgment. The circuit court, however, denied summary judgment as to claims asserted by Mann. Subsequently, by agreed order entered August 17, 2016, Mann agreed to dismiss her claims, and the circuit court ordered that the February 19, 2016, opinion and order "is now a Final and Appealable order." This appeal filed by Lazzari follows.
In the February 19, 2016, opinion and order, the circuit court denied summary judgment as to the claims asserted by Mann. The circuit court did not include Kentucky Rules of Civil Procedure 54.02 language in the February 19, 2016, opinion and order.
Lazzari believes the circuit court erroneously rendered summary judgment dismissing her claims against appellees. Summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). All facts and inferences therefrom are viewed in a light most favorable to the nonmoving party. Id. Our review proceeds accordingly.
(1) KENTUCKY WAGE AND HOUR LAW
A. WEEKDAY SHIFTS
Lazzari contends summary judgment was improper and that disputed issues of fact exist as to her claim of unpaid wages during the weekdays. Specifically, she believes the circuit court erred by solely relying upon her deposition testimony and by not considering a subsequently filed affidavit. Lazzari maintains the affidavit should be considered as it clarifies her earlier testimony taken by deposition. Lazzari particularly claims she worked all of Connie's scheduled shifts while Connie was on FMLA leave and was not properly compensated by Norton. Lazzari also claims that she worked 1.5 hours per week from October 28, 2008, through July 3, 2011, 2.0 hours every Friday from July 4, 2011, through January 11, 2013, and 3.5 hours every other Friday from July 4, 2011, through January 11, 2013, but was not paid. By failing to compensate her for these hours, Lazzari maintains that Norton violated Kentucky Wage and Hour Law codified in KRS Chapter 337.
Family and Medical Leave Act codified in 29 U.S.C. 2601-2654.
KRS 337.020 provides that "[e]very employer doing business in this state shall . . . pay to each of its employees all wages or salary earned . . . ." And, KRS 337.285(1) reads:
No employer shall employ any of his employees for a work week longer than forty (40) hours, unless such employee receives compensation for his employment in excess of forty (40) hours in a work week at a rate of not less than one and one-half (1- ½) times the hourly wage rate at which he is employed.Generally, the employee bears the burden of proving the "number of hours worked and the amount of wages and overtime owed by the employer." 4A Robert W. Keats, Kentucky Practice - Employer Records § 23:9 (2017). An employee must usually report time worked to his employer; however, if the employer knows or has reason to believe that an employee worked time not reported, such time is compensable. 803 Kentucky Administrative Regulations (KAR) 1:065(2).
See also Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382 (6th Cir. 2016).
In the February 19, 2016, opinion and order, the circuit court concluded Lazzari failed to demonstrate she worked hours during the regular workweek that were not compensated and refused to consider Lazzari's post-deposition affidavit:
Lazzari claims that from October 28, 2008 - July 3, 2011, she worked Monday, Wednesday and Thursday from 4:00 a.m. - 7:30 a.m. However, she never got to leave on time, working thirty minutes extra every shift for that entire period of time. On July 4, 2011, a new schedule commenced and she worked Monday, Tuesday, Wednesday and Thursday from 4:00 a.m. - 2:30 p.m. and on Friday from 1:30 - 3:30 and every other Friday from 4:00 - 7:30. She also claims that she worked Mann's shifts. However, she testified that she was paid for all the time that she claimed.February 19, 2016, opinion and order at 4-5.
Nevertheless, she argues that she does have evidence that she worked over forty hours. Further, she asserts that the fact that Norton failed to keep accurate time records shifts the burden back to the Healthcare System to disprove her claim, see Herman v. Palo Group Foster Home, 183 F. 3d 468 (6th Cir. 1999). In that case, the Court held that, "A plaintiff generally has the burden of proving that his employer violated the FLSA [Fair Labor Standards Act]. However where the employer's records are inaccurate or inadequate . . . an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate."
It is Norton's position that Lazzari's claim for overtime in connection with her regular shift work should be rejected since it was first raised by affidavit tendered with her response to Norton's Motion for Summary Judgment. As such, pursuant to Lipsteuer v. CSX, 37 S.W.3d 732 (Ky. 2000), it is too late. While a post-deposition affidavit may be tendered to explain previous testimony, it may not be used to contradict it.
It is true that a post-deposition affidavit may not be considered upon a motion for summary judgment if it contradicts previous testimony taken by deposition. Lipsteuer v. CSX Transportation, Inc., 37 S.W.3d 732 (Ky. 2001). However, it is equally true that a post-deposition affidavit may be considered if it merely elucidates previous deposition testimony. Id.
In this case, we view Lazzari's post-deposition affidavit as merely an attempt to clarify her often contradictory deposition testimony. Thus, we believe the circuit court erred by failing to consider same before rendering summary judgment upon Lazzari's claim for unpaid wages. Having reviewed the affidavit, depositions, and other proof in the record, we believe Lazzari has established material issues of fact precluding summary judgment upon her claim of unpaid wages during the following time periods:
1. From July 4, 2011, through January 11, 2013, for time allegedly worked each Friday from 1:30 p.m. to 3:30 p.m. for a total of two hours per week.Lazzari averred that she worked the above time periods without compensation, and the amount of uncompensated work can be determined with reasonable specificity. As such, it is for the trier of fact to determine the veracity of Lazzari's statements. Thus, we hold that summary judgment was improper upon the above three specific time periods for alleged unpaid wages during the workweek but was proper upon all remaining alleged uncompensated time periods during the workweek.
2. From July 4, 2011, through January 11, 2013, for time allegedly worked alternating Fridays from 4:00 a.m. to 7:30 a.m. for a total of 3.5 hours every other week.
3. From October 28, 2008, through July 3, 2011, for 30 minutes of time allegedly worked after her shift ended at 7:30 a.m. for a total of 1.5 hours per week.
B. WEEKEND ON-CALL SHIFT
Lazzari next argues that she was not properly compensated for time worked during the weekend on-call shift from October 28, 2008, to September 11, 2011. Lazzari pointed out that the weekend on-call shift consisted of Saturday and Sunday from 4:00 a.m. to 12:00 a.m. Lazzari maintains that she was not paid per hour for all hours worked but rather a flat rate of $150 per day regardless of the actual time worked. Lazzari argues that she should have been compensated for every hour worked on the weekend on-call shift and at an overtime rate for any hours over forty per week. Lazzari cites to the following provisions of 803 KAR 1:065 in support of her argument:
Section 3. Waiting Time. (1) General. Whether waiting time is worked under the act depends upon particular circumstances. The determination involves scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait, or they show that he waited to be engaged. Such questions must be determined in accordance with common sense and the general concept of work or employment.
(2) On duty. A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a
factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their period of inactivity. The rule also applies to employees who work away from the plan. For example, a repair man is working while he waits for his employer's customer to get the premises in readiness. The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for his own purpose. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait.
(3) Off duty.
(a) Period during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.
. . . .
(4) On-call time. An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while on call. An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.
Viewing the facts most favorable to Lazzari, it is clear that Lazzari was not required to be compensated for all the time she was on-call during the weekend. She was simply not so restricted on the weekend so as to be unable to utilize such time for her own purposes. See Spellman v. Fiscal Court of Jefferson County, 574 S.W.2d 342 (Ky. App. 1978).
Additionally, Lazzari maintained that her compensation for the on-call weekend shift was unreasonable under 803 KAR 1:065. The circuit court rejected Lazzari's claim and determined that the rate of pay for the weekend on-call shift was reasonable:
The On-Call policy states that there would be "no shift differential or premium pay" and that no "flex time" would be awarded in connection with the weekend work. On-call work generally does not constitute overtime because the employee does not work the entire time, see 803 KAR 1:065 § 3 (4). It has long been held that merely being reachable by phone is not compensable under the statute, see Spellman v. Fiscal Court of Jefferson County, 574 S.W.2d 342 (Ky. App. 1978).
Norton asserts that the "Home Worker's Exception" to the wage and hour statutes 803 KAR 1065 § 5(3) applies because the staffing coordinators had agreed to accept a flat fee for a twenty hour shift during which they would be required to be available to take calls. It is Norton's position that this agreement was "reasonable." Further, it has been held that its purpose is to generally, encourage agreements between employers and their employees, see Brock v. City of Cincinnati, 236 F. 3d 793 (6th Cir. 2001).
Lazzari has cited many cases which hold that the "reasonable" rate proposed by the exception must bear some relationship to the hours actually worked. She argues that the schedule limited her ability to use her own weekend time, see Rutlin v. Prime Succession Inc., 220
F.3d 737 (6th Cir. 2000). She also notes that Courts have held that waiting time is also working time, see Aiken v. City of Memphis, 190 F. 3d 753 (6th Cir. 1999). The Court notes that in both these cases, the Court found that, in order to be compensable outside of the parties' agreement, the employee's own time must be "severely restricted." Although Lazzari testified that she could not go out on-call weekend, [Denise] Ashby testified that she actually went on vacation while on-call. She was not tied to the computer since she had a cell phone and could obtain the information she needed by reference to printed lists. Based on the foregoing, the Court finds that there is no genuine issue of material fact as to Lazzari's wage and hour claim.February 19, 2016, Opinion and Order at 6-7. 803 KAR 1:065 Section 5 reads, in relevant part:
(3) Residing on employer's premises or working at home. An employee who resides on his employer's premises on a permanent basis or for extended period of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. This rule would apply, for example, to the pumper of a stripper well who resides on the premises of his employer and also to a telephone operator who has the switchboard in her own home.
In determining that a reasonable agreement existed under 803 KAR 1:065, the circuit court noted that Lazzari was not required to stay home during a weekend on-call shift. Also, the circuit court observed that Lazzari "was not tied to a computer since she had a cell phone and could obtain the information she needed . . . ." Moreover, it is undisputed that Lazzari was only required to work when called and that she was given a cell phone to utilize. So, viewing the facts most favorable to Lazzari, we agree with the circuit court that a reasonable agreement as to compensation existed for the on-call weekend. Thus, we conclude that summary judgment was proper as to the weekend on-call shift.
(2) WRONGFUL TERMINATION
A. Kentucky Civil Rights Act
(KRS 344.280)
Lazzari next argues that the circuit court erred by rendering summary judgment upon her claim that she was wrongfully discharged in violation of KRS 344.280(1) of the Kentucky Civil Rights Act. Lazzari alleges she made requests to appellees for reasonable accommodations for Mann's disability and opposed appellees' discriminatory treatment of Mann. As a result, Lazzari claims that she was wrongfully terminated. In particular, Lazzari asserts she made the following complaints:
The Kentucky Civil Rights Act is codified in Kentucky Revised Statutes (KRS) Chapter 344.
(1) Between November of 2012 and January of 2013, [Lazzari] reported to [Muench] concerns about [Mann] being able to work the new schedule due to her fear coming to and leaving work in the dark.
(2) On January 7, 2013, [Lazzari] submitted a proposed schedule to [Muench] attempting to accommodate [Mann] so that she did not have to arrive or leave work in the dark. [Lazzari] further submitted several proposed schedules to [Muench] that would keep [Mann] at home.
(3) [Lazzari] expressed her concerns about [Mann's] disability and her ability to work a schedule that reported her to be outside in the dark.Lazzari's Brief at 22.
The statute at issue, KRS 344.280(1), reads:
It shall be an unlawful practice for a person, or for two (2) or more persons to conspire:In Kentucky Department of Corrections v. McCullough, 123 S.W.3d 130, 133-34 (Ky. 2004), our Supreme Court set forth the relevant burden of proof for each party under KRS 344.280(1):
(1) To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter[.]
A claim for unlawful retaliation requires the plaintiff to first establish a prima facie case of retaliation, which consists of showing that "(1) she engaged in a protected activity, (2) she was disadvantaged by an act of her employer, and (3) there was a causal connection between the activity engaged in and the [defendant] employer's act." Kentucky Center for the Arts v. Handley, Ky. App., 827 S.W.2d 697, 701 (1991), citing De Anda v. St. Joseph Hospital, 671 F.2d 850, 856 (1982). In a case where there is no direct evidence of retaliation, as is the case here, the burden of production and persuasion follows the familiar McDonnell Douglas framework. Under this framework, after the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to show a non-retaliatory reason for the adverse employment decision that disadvantaged the plaintiff. Id. After the defendant has met this burden, "the McDonnell Douglas framework is no longer relevant." St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 510, 113 S. Ct. 2742, 2748, 125 L. Ed. 2d 407, 418 (1993). This is because "the McDonnell Douglas presumption is a procedural device, designed only to establish an order of proof and production." Id. at 521, 113 S. Ct. at 2755, 125 L. Ed. 2d. at 425 (emphasis in original). At this point, the case then proceeds with the plaintiff having to meet her initial burden of persuading the trier of fact by a preponderance of the evidence that the defendant unlawfully retaliated against her. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000).
To meet her burden of persuasion, the plaintiff "must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for [retaliation]." Reeves, 530 U.S. at 143, 120 S. Ct. at 2106, 147 L. Ed. 2d. at 117. Proof that the defendant's non-retaliatory reasons are "unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. at 147, 120 S. Ct. at 2108, 147 L. Ed. 2d at 119-20. Consequently, "a plaintiff's prima facie case, combined with sufficient evidence to find that the defendant's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully [retaliated against the plaintiff]." Id. at 148, 120 S. Ct. at 2109, 147 L. Ed. 2d at 120. In other words, a plaintiff's prima facie case plus proof of a pretext may constitute sufficient evidence to survive a motion for a directed verdict.
Viewing the facts most favorable to Lazzari, we believe she satisfied the first two elements of a prima facie claim for retaliation under KRS 344.280(1): (1) she allegedly opposed appellees' purported discrimination of Mann, and (2) she was terminated from her employment. The more troublesome issue is whether she satisfied the third element - a causal connection between her opposition to the alleged discrimination of Mann and her ultimate termination.
In many cases under KRS Chapter 344, direct proof of a causal connection is often absent; rather, most cases are proved by circumstantial evidence. See McCullough, 123 S.W.3d 130. Circumstantial evidence may demonstrate a causal connection if such evidence is "sufficient to raise the inference that [the] protected activity was the likely reason for the adverse action." Id. at 135 (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 565 (6th Cir. 2000). Circumstantial facts of import are whether the decision-maker was aware of the protected activity at the time the adverse employment decision was made; whether there was a close temporal relationship between the protected activity and the adverse employment decision; and whether plaintiff was treated differently from other employees. See McCullough, 123 S.W.3d 130.
Viewing the facts and inferences therein in a light most favorable to Lazzari, we do not believe that Lazzari presented circumstantial evidence sufficient to raise an inference of a causal connection. Here, the evidence of temporal proximity is weak and that of disparate treatment completely lacking. As a consequence, we conclude that the circuit court properly rendered summary judgment upon Lazzari's claim that her termination violated KRS 344.280(1).
B. Public Policy Exception for Wrongful Discharge
Lazzari next maintains that the circuit court erroneously rendered summary judgment upon the claim that her termination violated the well-defined public policy of Kentucky under applicable law. In particular, Lazzari believes that her termination was in contravention of public policy as set forth in KRS 337.990(9). Lazzari argues she was terminated for making complaints concerning her uncompensated wages.
KRS 337.990(9) provides:
(9) Any employer who discharges or in any other manner discriminates against any employee because the employee has made any complaint to his or her employer, to the commissioner, or to the commissioner's authorized representative that he or she has not been paid wages in accordance with KRS 337.275 and 337.285 or regulations issued thereunder, or because the employee has caused to be instituted or is about to cause to be instituted any proceeding under or related to KRS 337.385, or because the employee has testified or is about to testify in any such proceeding, shall be deemed in violation of KRS 337.275 to 337.325, KRS 337.345, and KRS 337.385 to 337.405 and shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
We begin our analysis by noting that this statute is strictly a civil penalty statute, designed to impose penalties upon employers who violate the wage and hour provisions of KRS Chapter 337. It does not establish a private cause of action for employees. However, Lazzari argues that KRS 446.070 provides such a cause of action for violation of KRS 337.990(9). Our review proceeds accordingly.
The application of the public policy exception argued by Lazzari looks to an employee's status as an "at will" employee. In Kentucky, an at will employee may be terminated by his employer for good cause, no cause, or reasons that some may find morally indefensible. Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730 (Ky. 1983). In Firestone, a public policy exception to the at will employment doctrine was recognized where an employee was fired for filing for workers' compensation benefits, which were provided for by state law to protect employees. Id.
Our review presumes that Lazzari was an at will employee of Norton. Lazzari has presented no arguments to the contrary in this appeal. --------
The Kentucky Supreme Court has subsequently refined the parameters of Firestone in several cases, including Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985) and Hill v. Ky. Lottery Corp., 327 S.W.3d 412 (Ky. 2010). However, none of these cases relieve a plaintiff from the duty of establishing a causal connection between the termination of employment and the violation of the well-defined public policy.
Upon a thorough review of the record, viewing the facts and inferences most favorable to Lazzari, we believe Lazzari failed to present any proof of a causal relationship between her complaints concerning unpaid wages and her termination. It was incumbent upon Lazzari to offer at least circumstantial proof sufficient to raise an inference of causal relationship. Lazzari simply failed to do so. Norton argues that it had a legitimate reason to terminate Lazzari for eavesdropping upon and recording other employees' conversations. As an at will employee, Lazzari failed to identify any evidence in the record to link her termination to her wage complaints. Therefore, we hold that the circuit court properly rendered summary judgment upon Lazzari's claim that her termination was violative of public policy as expressed in KRS 337.990(9).
For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed in part, reversed in part, and remanded for proceedings consistent with this Opinion.
MAZE, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: Respectfully, I concur in part and dissent in part. I agree with the majority that the circuit court properly granted summary judgment to Norton Healthcare, Inc. on Heather Lazzari's claims for compensation for her weekend on-call shift and for wrongful termination. However, I cannot agree that remand is proper on Lazzari's claim that she worked hours during the regular work week that were not compensated when she has not created a material issue of fact that Norton knew or should have known she worked unreported hours over a three-year period.
Lazzari's claim for unpaid wages is premised on Kentucky Revised Statutes (KRS) 337.285(1), which requires that time and one-half be paid for all hours over forty in a work week. The provision is substantively the same as 29 United States Code (U.S.C.) § 207(a)(1), part of the Federal Labor Standards Act (FLSA) and, therefore, is interpreted consistent with federal law. Ammerman v. Bd. of Educ., of Nicholas Cty., 30 S.W.3d 793, 797-98 (Ky. 2000).
Federal courts have held that "where an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer's failure to pay for the overtime hours is not a violation of s 207." Forrester v. Roth's I. G. A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981). The Court in Wood v. Mid-America Management Corp., 192 Fed. Appx. 378, 381 (6th Cir. 2006), summarized the common-sense approach taken by the federal courts when interpreting the FLSA:
At the end of the day, an employee must show that the employer knew or should have known that he was working overtime or, better yet, he should report the overtime hours himself. Either way, the employee bears some responsibility for the proper implementation of the FLSA's overtime provisions. An employer cannot satisfy an obligation that it has no reason to think exists. And an employee cannot undermine his employer's efforts to comply with the FLSA by consciously omitting overtime hours for which he knew he could be paid.When "an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process." White v. Baptist Mem'l Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012). In that circumstance, the employee's failure "to follow reasonable time reporting procedures . . . prevents the employer from knowing its obligation to compensate the employee and thwarts the employer's ability to comply with the FLSA." Id. Norton had a time-reporting policy.
Lazzari states in her deposition testimony "that she was compensated for all of the time she claimed, is irrelevant regarding whether she performed work for which she was not compensated." Lazzari is simply wrong. The fact that Norton paid Lazzari for all time she claimed means that the substance of her claim for unpaid wages earned during weekday shifts is for time she did not claim as required by Norton's time-reporting policy. Lazzari's failure to follow that policy is highly relevant and, in fact, fatal to her claim because she is required to show that Norton knew or should have known Lazzari was working unreported hours. Lazzari's affidavit filed after her deposition does not create a material issue of fact.
Even if the majority is correct that the affidavit is a clarification of Lazzari's deposition testimony, it does not change the substance of that testimony. By her own admission, she was paid for all time claimed. The affidavit merely states she worked unreported hours but provides no statement that explains why, over the course of three years, she did not report the hours as required by Norton's time-reporting policy.
It is not beyond reason to be skeptical of the credibility of Lazzari's affidavit. As indicated by her claim for wrongful termination, she is obviously unhappy with Norton's decision to terminate her employment. Faced with Norton's summary judgment motion, she filed a last-minute affidavit averring she worked overtime at various times over a period of three years without compensation. Lazzari's affidavit was not corroborated in any way. However, more important than the credibility of the affidavit is that there is no factual issue presented as to whether Norton knew or should have known that Lazzari worked unreported overtime.
For the reason stated, I would affirm. BRIEFS FOR APPELLANT: Thomas E. Clay
David N. Ward
Louisville, Kentucky BRIEF FOR APPELLEES: Donna King Perry
Jeremy S. Rogers
Alina Klimkina
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLANT: David N. Ward
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLEES: Jeremy S. Rogers
Louisville, Kentucky