Ellison v. Canton Long Term Care, Llc.

MOTION for Summary Judgment

E.D. Tex.September 8, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION MISTY ELLISON, LAWANNA LACEY AND GARRETT BROWN INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED, PLAINTIFFS vs. CIVIL ACTION 2:15-cv-1650 JURY REQUESTED CANTON LONG TERM CARE, LLC. DEFENDANT PLAINTIFFS MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiffs in the above numbered cause and files this their Motion for Summary Judgment, and would respectfully show the Court as follows: I. SUMMARY OF THE ARGUMENT This case arises under violations of the Fair Labor Standards Act. The Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., provides that an employer must compensate an employee for any hours worked over 40 in a week at a rate of one and one-half times the employee's regularly hourly wage. The FLSA requires employers to “make, keep and preserve such records of the persons employed by him and of wages, hours, and other conditions and practices of employment PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 1 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 1 of 13 PageID #: 747 maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator [of the Department of Labor’s Wage and Hour Division] as he shall prescribe by regulation or order . . . .” 29 U.S.C. § 211(c). The Department of Labor’s record-keeping regulations may be found at 29 C.F.R. § 516.. Where an employer has not kept adequate records of wages and hours, however, employees generally may not be denied recovery of back wages on the ground that the precise extent of their uncompensated work cannot be proved. Dole v. Alamo Foundation, 915 F.2d 349, 351 (8th Cir. 1990). Instead, the employees “are to be awarded compensation on the most accurate basis possible.” Id. (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)). The plaintiff bears the burden of proving the extent of any uncompensated work, but may satisfy that burden by “just and reasonable inference.” Anderson, 328 U.S. at 687-88. Once the plaintiff has produced such evidence of uncompensated work, “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.” II. The defendant attempts to shift the burden of timekeeping to the Plaintiffs and other employees of the defendant. The timekeeping policy of the defendant states “Employees are responsible for timely submitting an accurate record of all hours worked.” (See Exhibit “A” attached hereto). An employer's duty under the FLSA to maintain accurate records of its employees' hours is non-delegable. See 29 U.S.C. §§ 211©; Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 944, 946 (2d Cir. 1959) (Friendly, J.) (rejecting as inconsistent with the FLSA an PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 2 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 2 of 13 PageID #: 748 employer's contention that its employee was precluded from claiming overtime not shown on his own timesheets, because an employer "cannot... transfer his statutory burdens of accurate record keeping, and of appropriate payment, to the employee" (citation omitted)); see also Holzapfel v. Town of Newburgh, 145 F.3d 516, 524 (2d Cir.1998). In other words, once an employer knows or has reason to know that an employee is working overtime, it cannot deny compensation simply because the employee failed to properly record or claim his overtime hours. Accordingly, the fact that an employee is required to submit his own timesheets does not necessarily preclude him from invoking Anderson's standard where those records appear to be incomplete or inaccurate. See Skelton v. Am. Intercontinental Univ. Online, 382 F.Supp.2d 1068, 1071 (N.D.Ill.2005) . The defendant also has a policy that “employees are responsible for verifying and signing off on time summary.” (See Exhibit “A”, no. 9) Those documents were located in a “white binder” near or in the nurses station at the facility where Plaintiffs and others were employed by the defendant. Said documents have since been destroyed, despite a policy that “payroll sheets, registers, or their equivalent, of salaries and wages paid to individual employees for each payroll period ; change slips”, be retained for 15 years. (See Exhibit “B” attached hereto). At times certain forms, called mispunch forms had to be completed to correct and/or change the pay records of Plaintiffs and other employees. Defendant has destroyed and/or misplaced the mispunch records of Plaintiffs Misty Ellison and Lawanna Lacey for the year of 2013 and for most of the year of 2015. Again despite a record retention policy of 15 years, in that said documents are indeed change slips. Defendant has failed to produce the “white binder” mispunch forms, and emails dealing with its employees. Defendant also had knowledge that PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 3 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 3 of 13 PageID #: 749 Plaintiff Lacey was working from home. From the deposition of Julie Rumbo, pg. 24, l. 3-8 (Exhibit “C” attached hereto). 3 Q. Okay. Is there any reason -- the missed punch 4 forms, they still exist, as far as you know; is that 5 right? 6 A. I don't know. 7 Q. Okay. 8 A. They were when I left in June of last year. From the deposition of Julie Rumbo, pg. 24, 25, l. 23-25, l. 1-2. (See Exhibit “A”) 23 Q. I understand. Did you have problems with 24 Ms. Lacey or Ms. Ellison doing anything like that? 25 A. No, sir. 1 Q. Pretty trustworthy individuals? 2 A. Yes, sir. From the deposition of Julie Rumbo, pg. 39, 40, l. 14-25, l. 1-24. (See Exhibit “C” attached) 14 Q. And you said that at least one time she 15 indicated to you that she had done some work from 16 home; is that correct? 17 A. Yes, sir. 18 Q. Was that just one time? 19 A. That was the one time, yes, sir. 20 Q. Was that news to you? 21 A. It was. It was kind of a shock. 22 Q. And what was your response, if anything? 23 A. Well, what had happened was -- we had kind of a 24 mailroom where we disbursed mail to the different 25 departments and our copy machine. I was there one morning, and she came in. 2 Lawanna was very excited and kind of gigglish. I 3 asked her what was going on, and she said, oh, I just 4 got a lot of work done this weekend. And I said, oh, 5 did you have to come in and work? And she said, no, 6 I did a bunch of attachments to medical records at 7 home. 8 I was shocked. I said, how did you do PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 4 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 4 of 13 PageID #: 750 9 that? I was under the impression that only the 10 administrator and I had remote access to the Matrix 11 System. She said that she had found out how to go 12 into the website, and she was able to access it from 13 home. 14 Q. Was there anything else as part of that 15 conversation? 16 A. No, sir. I did go talk to the administrator 17 about it, though. 18 Q. And what was the result of that conversation? 19 A. Well, I went to the administrator and told 20 Mr. McKeehan that Lawanna had told me that she had 21 done some attachments from home. I questioned him, 22 and said, I thought you and I were the only ones with 23 remote access. He said he didn't know, but he'd 24 check into it. That was as far as it went. From the deposition of Deana Berry, pg. 8, l. 14-17 (See Exhibit “D” attached hereto) Q. And how long do you retain those e-mails? 15 A. It's company -- I mean, whatever the company 16 policy is, I don't know. They're automatically 17 deleted after a certain amount of time. From the deposition of Deana Berry, pg. 24, l. 3-22 (See Exhibit “D” attached hereto) 3 Q. No. My understanding is there's a book where 4 you've got to -- your hours are correct -- 5 A. Oh, yes. 6 Q. What am I talking about? 7 A. It's called their hours -- I'm not sure what's 8 on the front of the book, but it's in the copy room. 9 It's in a white binder. HR prints off their hours 10 that they worked, and it's for them to look at to 11 see. 12 Q. Okay. It's a white binder. It's where? 13 A. Sometimes it's on the nurses' counter, and then 14 sometimes its in the copy room, which is right off of 15 the nurses' station. 16 Q. I know. I've not seen that, and that's what PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 5 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 5 of 13 PageID #: 751 17 I'm trying to -- 18 A. Yeah. 19 Q. It's in a white binder, and sometimes it's at 20 the nurses' -- 21 A. Well, the nurses' station and the room I'm 22 talking about are about as far as from me to him. From the deposition of Deana Berry, pg. 26, l. 20-23 (See Exhibit “D” attached hereto) 20 Q. Okay. And you know there's a book. It's a 21 white binder? 22 A. Has it always been white? I have no idea. 23 It's a white book right now. From the deposition of Deana Berry, pg. 27, l. 1-2 (See Exhibit “D” attached hereto) 1 Q. Okay. If I'm a CNA, is my name going to be in 2 that book? 3 A. Yes. From the deposition of Deana Berry, pg. 43, l. 3-19 (See Exhibit “D” attached hereto) A. It's on the -- it's in the binder. It shows 4 how many hours they worked. 5 Q. The white binder? 6 A. And then on their pay stub it shows how many 7 hours they worked. 8 Q. Yeah. But if I go back and say, hey, I worked 9 five hours that I wasn't paid for in July, how to do 10 they check that? 11 A. They check it through HR to see what's been, 12 you know, input. 13 Q. I know. But I'm asking, as far as the 14 employee, how do they check that? 15 A. They would have to go to HR. 16 Q. Okay. And nobody has done that as far as you 17 know? 18 A. That's not my job description. I have enough 19 to do. PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 6 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 6 of 13 PageID #: 752 From the deposition of Deana Berry, pg. 45, l. 2-20 (See Exhibit “D” attached hereto) 2 A. They know the policy. All they have to do is 3 turn in the -- 4 Q. Missed punch form? 5 A. Yeah. 6 Q. Well, ma'am, all I'm doing is looking at 7 records. 8 A. I understand that. 9 Q. You've never seen me at that facility, have 10 you? 11 A. No, I sure haven't. 12 Q. All right. I'm looking, and I don't see 13 records. I don't see this white binder. I don't see 14 the missed punch forms for 2013 and 2015. 15 A. Uh-huh. 16 Q. So how in the world can I say, hey, these are 17 good records? 18 MR. HAWPE: Objection, form. 19 A. I'm not in charge of that. That's why we have 20 many good department heads. III. The deposition of Ms. Lacey was taken on June 15, 2016. From the deposition of Ms. Lacey, pg. 98, l. 2-7 (See Exhibit “”E” attached hereto) So most of this work that you -- you contend that you did at home was on the weekends? Yes. And give me a range as to how long you would work from home on the weekends. Six to eight hours. All the records regarding Plaintiffs still have not been produced by the Defendant at the filing of this motion. What records that were produced reflect that defendant failed to keep accurate time records, for instance August 9, 2015 was a Sunday, reflects that it was a PTO for Ms. Lacey. (See Exhibit “F” attached hereto). Then in the matrix system, it reflects that Ms. PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 7 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 7 of 13 PageID #: 753 Lacey logged in at 11:22 a.m. and logged out at 4:05 p.m., bate stamped 0000497 (See Exhibit “G” attached hereto). June 22, 2014, was a Sunday, shows that Ms. Lacey did not work and was not paid anything for said date. (See Exhibit “H” attached hereto). The matrix report for Ms. Lacey shows different time in and outs for said period, bate stamped 0000501. (See Exhibit “I” attached hereto). June 21, 2014 was a Saturday. Exhibit “J”, shows no hours worked for Ms. Lacey. Matrix record bate stamped, , Exhibit “K” shows no work for Ms. Lacey; however, documents bate stamped 00001057 to 00001060 shows Ms. Lacey working on different tasks, said documents previously filed under seal. January 31, 2015 was a Saturday. Document bate stamped 0000125, shows no hours worked for Ms. Lacey on January 31, 2015. (See Exhibit “L” attached hereto). The matrix log in and out sheet, shows Ms. Lacey logging and out at various time on January 31, 2015. (See Exhibit “M” attached hereto). April 26, 2014 was a Saturday, shows no pay on said date. (See Exhibit “N” attached hereto). The matrix log in and out sheet, shows Ms. Lacey logging in and out on said date. (See Exhibit “P” attached hereto). On or about March 31, 2014, the Administrator at the facility, John McKeehan, sent an email to Plaintiffs stating in part that “....I give a lot of latitude on all the OT you guys incur because I know you guys are dedicated and do incur inconvenient requests.” Then the email says “I would say that you need to get with Julie to ensure nursing is better communicating with you regarding these things as well as ensuring SBAR and other steps are being taken before patients are sent out.....” (See Exhibit “Q” attached hereto). This is exactly what Plaintiff Ellison did on February 15, 2015 when Ms. Ellison called the hospital. (See Exhibit “R” attached hereto). Defendant had knowledge of this fact, yet the PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 8 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 8 of 13 PageID #: 754 pay records reflect that Ms. Ellison was paid nothing for said day. (Also found in Exhibit “R” attached hereto). The defendant has failed to keep accurate records in accordance with the Fair Labor Standards Act. IV. The FLSA mandates that employers pay overtime compensation for nonexempt employees. Rainey v. McWane, Inc., 314 Fed. Appx. 693, 694 (5th Cir. Mar. 12, 2009), citing 29 U.S.C. § 207(a). The FLSA, 29 U.S.C. § 207(a)(1), usually requires an employer to pay employees who work more than forty hours per seven-day work week at a rate not less than one and one-half times the employee's regular rate. Allen v. Coil Tubing Servs., LLC, Civ. A. No. H-08-3370, 2011 WL 4916003, (S.D. Tex. Oct. 17, 2011); Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001); Thibodeaux v. Executive Jet Intern., Inc., 328 F.3d 742, 749 (5th Cir. 2003). Under 29 U.S.C. § 216(b), an employer who violates the FLSA shall be liable for "unpaid overtime compensation . . . and in an additional equal amount as liquidated damages." Moreover any person who repeatedly or willfully violates Section 206 or 207, relating to wages, shall be subject to a civil penalty not to exceed $1,100 for each such violation." 29 U.S.C. § 216(e)(2).[4] Thus an employer who violates the FLSA is liable for liquidated damages equal to the unpaid overtime unless the court finds that the employer acted in good faith and had reasonable grounds to believe that his actions complied with the statute and therefore declines to award or reduces the amount of the liquidated damages. Stokes v. BWXT Pantex, LLC, 424 Fed. Appx. PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 9 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 9 of 13 PageID #: 755 324, 326 (5th Cir. May 4, 2011), citing 29 U.S.C. § 260. The employer bears the burden of demonstrating that it acted in good faith to escape mandatory liquidated damages under the statute. Perez, 2011 WL 2672431, citing Singer v. City of Waco, Tex., 324 F.3d 813, 821 (5th Cir. 2003), and Stokes v. BWXT Pantex, LLC, 424 Fed. Appx. at 326. Title 29 U.S.C. § 211(c) requires that the employer "make, keep and preserve such records of the persons employed by him and of the wages, hours, and other conditions of employment maintained by him." See Lynch v. Jet Center of Dallas, LLC, Civ. A. No. 3:05-CV-2229-L, 2007 WL 211101, (N.D. Tex. Jan. 26, 2007), Under the FLSA, "an employee who brings suit for unpaid overtime compensation bears the burden of proving, with definite and certain evidence, that he performed work for which he was not properly compensated." Reeves v. International Telephone & Telegraph Co., 616 F.2d 1342, 1351 (5 thCir. 1980), cert. denied, 449 U.S. 1077 . . . (1981), implicit overruling on other grounds recognized in Heidtman v. County of El Paso, 171 F.3d 1038, 1042 n.4 (5th Cir. 1999). Where an employer keeps incomplete or [in]accurate records, however, "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." In re Williams, 298 F.3d 458, 465 (5th Cir. 2002)(citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 ... (1946). The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee's evidence. Anderson, 328 U.S. at 687-88. "If the employer fails to produce such PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 10 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 10 of 13 PageID #: 756 evidence, the court may then award damages to the employee, even though the result be only approximate." Id. at 688. V. ARGUMENT AND AUTHORITIES Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Brown v. City of Houston, Tex., 337 F.3d 539, 540-41 (5th Cir. 2003). A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). As set forth above where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes, . . . [t]he solution . . . is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work." Mt. Clemens Pottery, 328 U.S. at 687). "Evidence used to calculate wages owed need not be perfectly accurate, since the employee should not be penalized when the inaccuracy is due to a defendant's failure to keep adequate records." Donovan v. Hamm's Drive Inn, 661 F.2d 316, 318 (5th Cir. 1981). Based on the inaccurate/inadequate records of the defendant, Plaintiffs are entitled to summary judgment. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate." Mt. Clemens Pottery, 326 U.S. at 688. Defendant has failed to PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 11 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 11 of 13 PageID #: 757 produce such evidence. Any claim for unpaid minimum wages or unpaid overtime wages must be "commenced within two years after the cause of action accrue[s] . . . except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrue[s]." 29 U.S.C. §§ 255(a). "[V]iolations under the FLSA are willful if the employer `knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.'" Reich v. Bay, Inc., 23 F.3d 110, 117 (5th Cir. 1994) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)). "The burden of showing that an FLSA violation was `willful' falls on the plaintiffs." Stokes v. BWXT Pantex, L.L.C., 424 F. App'x 324, 326 (5th Cir. 2001) (unpublished). Defendant knew that it was in violation of the FLSA as set forth in Exhibit “A”, along with the fact that Defendant admitted in response to admissions (No. 1) (Exhibit “B”) that it had knowledge of the fact that it was not in compliance with the Fair Labor Standard Act. Plaintiff can establish that all times relevant to this lawsuit, the Defendant has employed and continues to employ a substantial number of employees in non-exempt work. Defendant’s business operation in Van Zandt County, Texas, is, at present, and was at all times relevant to this lawsuit, engaged in the performance of related activities through unified operation or common control for a common business purpose and is an enterprise within the meaning of 29 U.S.C. §213(s)(6). Plaintiff can establish that Jurisdiction is conferred upon this Court by 28 U.S.C. §1331, 29 U.S.C. §216(b) and 28 U.S.C. § 1337. This action arises under the Fair Labor Standards Act of 1938, 29 U.S.C. §201, et seq. PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 12 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 12 of 13 PageID #: 758 Plaintiff can establish that Defendant is an employer and enterprise as those terms are defined by the FLSA. Plaintiff can establish that Defendant has been an enterprise engaged in commerce and/or in the production of goods for commerce, as those terms are defined by the FLSA. Plaintiff can establish that Defendant has been an employer subject to the wage and hour provisions of the FLSA. IX. CONCLUSION Plaintiffs Motion for Summary Judgment should be granted, and Plaintiffs awarded overtime wages, liquidated damages, and any further relief that Plaintiff may be justly entitled. Respectfully submitted, _/S/________________ Bob Whitehurst ` State Bar No. 21358100 Bob Whitehurst 5380 Old Bullard Road, Suite 600, #363 Tyler, Texas 75703 (903)593-5588 (214)853-9382 CERTIFICATE OF SERVICE A true and correct copy of the above and foregoing instrument was forwarded to all attorneys of record by filing this document with the CM/ECF systems for the United States District Court for the Eastern District of Texas. /s/ Bob Whitehurst Bob Whitehurst PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Page 13 Case 2:15-cv-01650-JRG-RSP Document 52 Filed 09/08/16 Page 13 of 13 PageID #: 759 Case 2:15-cv-01650-JRG-RSP Document 52-1 Filed 09/08/16 Page 1 of 2 PageID #: 760 Case 2:15-cv-01650-JRG-RSP Document 52-1 Filed 09/08/16 Page 2 of 2 PageID #: 761 Case 2:15-cv-01650-JRG-RSP Document 52-2 Filed 09/08/16 Page 1 of 2 PageID #: 762 Case 2:15-cv-01650-JRG-RSP Document 52-2 Filed 09/08/16 Page 2 of 2 PageID #: 763 EXHIBIT "C" Case 2:15-cv-01650-JRG-RSP Document 52-3 Filed 09/08/16 Page 1 of 7 PageID #: 764 JULIE RUMBO IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION MISTY ELLISON, LAWANNA LACEY, AND GARRETT BROWN, Plaintiffs, vs. CIVIL ACTION NO .. 2:15-CV-01650 CANTON LONG TERM CARE, Defendant. ************************************ ORAL DEPOSITION OF JULIE RUMBO JULY 29, 2016 VOLUME 1 ************************************ 7/29/2016 Page 1 ANSW£RS AND DEPOSITION OF JULIE RUMBO, a witness produced on behalf of the Plaintiff taken in the above-styled and numbered cause, on the 29th day of July, 2016, from 10:56 a.m. to 12:09 p.m., before Amanda Lewis-Sherlock, a Certified Shorthand Reporter, in and for the State of Texas, located at 121 East Dallas Street, Suite 302, in the City of Canton, County of Van Zandt, and State of Texas, in accordance with the Federal Rules of Civil Procedure. ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-3 Filed 09/08/16 Page 2 of 7 PageID #: 765 JULIE RUMBO 1 2 A P P E A RA N C E S: 3 APPEARING FOR THE PLAINTIFF: Mr. Bob Whitehurst 4 WHITEHURST LAW 5380 Old Bullard Road 5 Suite 600 #363 Tyler, Texas 75703 6 903.593.5588 7/29/2016 Page 2 E-mail: Whitehurstlawfirm@yahoo.com 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARING FOR THE DEFENDANT: Mr. Jeremy W. Hawpe Ms. Bridget Miller (Via Telephone) LITTLER MENDELSON, P.C. 2001 Ross Avenue Suite 1500, Lock Box 116 Dall?s, Texas 75201 214.880.8100 214.880.0181 (fax) E-mail: Jhawpe@littler.com ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-3 Filed 09/08/16 Page 3 of 7 PageID #: 766 JULIE RUMBO 7/29/2016 ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Page 24 1 missed punch form out there? 2 A. Yes, sir. 3 Q. Okay. Is there any reason -- the missed punch 4 forms, they still exist, as far as you know; is that 5 right? 6 A. I don't know. 7 Q. Okay. 8 A. They were when I left in June of last year. 9 Q. Okay. Did you ever refuse or not sign-off on a 10 missed punch form for an employee? 11 A. I don't directly recall, but I'm sure there 12 were instances that I would. 13 Q. Okay. Why is that? 14 A. If I could not validate that the person 15 actually worked. 16 Q. Right. 17 A. There's people that may want to sneak in after 18 their time, or they're running late, forget to punch 19 in, they are due at work at 2:00, and they may not 20 have shown up until 2:30. 21 So if they're falsifying their time, I 22 would actually -- 23 Q. I understand. Did you have problems with 24 Ms. Lacey or Ms. Ellison doing anything like that? 25 A. No, sir. Case 2:15-cv-01650-JRG-RSP Document 52-3 Filed 09/08/16 Page 4 of 7 PageID #: 767 JULIE RUMBO 7/29/2016 ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Page 25 1 Q. Pretty trustworthy individuals? 2 A. Yes, sir. 3 Q. In this diagram, Mr. McKeehan also suggests 4 that they -- well, "ensuring SBAR and other steps 5 were being taken" out -- "being taken before patients 6 were sent out." 7 Do you see where I'm reading? 8 A. Yes, sir. I do see that. 9 Q. What's he talking about there? 10 A. He is saying that nursing needed to ensure that 11 the residents needed to be sent to the hospital, that 12 we were following all appropriate steps for 13 interventions, taking care of the patients to ensure 14 that they truly needed -- 15 Q. To go? 16 A. -- to go to the emergency room. 17 Q. So would it make sense for Ms. Lacey or 18 Ms. Ellison to phone the hospital to make sure 19 everything was ready to go? 20 A. To phone the hospital? No. 21 Most instances, for a person going out to 22 the emergency room, it was an emergent situation. 23 They would, most typically, be sent out by 24 ambulance. 25 Q. Okay. So if someone went to a doctor's office, Case 2:15-cv-01650-JRG-RSP Document 52-3 Filed 09/08/16 Page 5 of 7 PageID #: 768 JULIE RUMBO 7/29/2016 1 Q. Page 39 So is today, when you saw her, the first time 2 you've seen her in the last year or so? 3 A. Yes, sir. 4 Q. And what do you understand, if anything, about 5 the types of claims that Ms. Lacey and Ms. Ellison 6 have brought against the company? 7 A. Well, I didn't know what I was expecting today. 8 I didn't know this was a deposition. I didn't know 9 if we were going to court. I've had no 10 communications with no one. 11 My thoughts were that Lawanna was wanting 12 to be reimbursed for work that maybe she had done off 13 the clock. 14 Q. And you said that at least one time she 15 indicated to you that she had done some work from 16 home; is that correct? 17 A. Yes, sir. 18 Q. Was that just one time? 19 A. That was the one time, yes, sir. 20 Q. Was that news to you? 21 A. It was. It was kind of a shock. 22 Q. And what was your response, if anything? 23 A. Well, what had happened was we had kind of a 24 mailroom where we disbursed mail to the different 25 departments and our copy machine. ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-3 Filed 09/08/16 Page 6 of 7 PageID #: 769 JULIE RUMBO 7/29/2016 Page 40 1 I was there one morning, and she came in. 2 Lawanna was very excited and kind of gigglish. I 3 asked her what was going on, and she said, oh, I just 4 got a lot of work done this weekend. And I said, oh, 5 did you have to come in and work? And she said, no, 6 I did a bunch of attachments to medical records at 7 8 home. I was shocked. I said, how did you do 9 that? I was under the impression that only the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 administrator and I had remote access to the Matrix System. She said that she had found out how to go into the website, and she was able to access it from home. Q. Was there anything else as part of that conversation? A. No, sir. I did go talk to the administrator about it, though. Q. And what was the result of that conversation? A. Well, I went to the administrator and told Mr. McKeehan that Lawanna had told me that she had done some attachments from home. I questioned him, and said, I thought you and I were the only ones with remote access. He said he didn't know, but he'd check into it. That was as far as it went. Q. I understand that what Lawanna was telling you ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-3 Filed 09/08/16 Page 7 of 7 PageID #: 770 EXHIBIT "D" Case 2:15-cv-01650-JRG-RSP Document 52-4 Filed 09/08/16 Page 1 of 9 PageID #: 771 DEANA RENEE BERRY IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION MISTY ELLISGN; LAWANNA LACEY, AND GARRETT BROWN, Plaintiffs, vs. CIVIL ACTION NO. 2:15-CV-01650 CANTON LONG TERM CARE, LLC, Defendant. ************************************ ORAL DEPOSITION OF DEANA RENEE BERRY JULY 27, 2016 VOLUME 1 ************************************ 7/27/2016 Page 1 ANSWERS AND DEPOSITION OF DEANA RENEE BERRY, a witness produced on behalf of the Plaintiff taken in the above-styled and numbered cause, on the 27th day of July, 2016, from 2:09 p.m. to 3:20 p.m., before Amanda Lewis-Sherlock, a Certified Shorthand Reporter, in and for the State of Texas, located at 121 East Dallas Street, Suite 302, in the City of Canton, County of Van Zandt, and State of Texas, in accordance with the Federal Rules of Civil Procedure. ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-4 Filed 09/08/16 Page 2 of 9 PageID #: 772 DEANA RENEE BERRY . 1 2 A P P E A R A N C E S: 3 APPEARING FOR THE PLAINTIFFS: 4 5 6 Mr. Bob Whitehurst WHITEHURST LAW 5380 Old Bullard Road Suite 600 #363 Tyler, Texas 75703 903.593.5588 7/27/2016 Page 2 E-mail: Whitehurstlawfirm@yahoo.com 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARING FOR THE DEFENDANT: Mr. Jeremy W. Hawpe Ms. Bridget Miller (Via Telephone) LITTLER MENDELSON, P.C. 2001 Ross Avenue Suite 1500, Lock Box 116 Dallas, Texas 75201 214.880.8100 214.880.0181 (fax) E-mail: Jhawpe@littler.com ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-4 Filed 09/08/16 Page 3 of 9 PageID #: 773 DEANA RENEE BERP.Y 7/27/2016 Page 8 1 A. No, sir. I have not. 2 Q. And it's my understanding that -- would you 3 have e-mail as part of your job duties? 4 A. Uh-huh. 5 Q. Do you have a personal e-mail, or an e-mail 6 within Canton Oaks? 7 A. It's a Fundamental e-mail. 8 Q. Okay. And have you received any e-mails 9 regarding people working off the clock? 10 A. No, sir. 11 Q. Have you ever received any e-mails regarding 12 overtime? 13 A. No. 14 Q. And how long do you retain those e-mails? 15 A. It's company I mean, whatever the company 16 policy is,·I'don't know. They're automatically 17 deleted after a certain amount of time. 18 Q. And do you receive e-mails from the company? 19 20 21 22 23 record. MR. HAWPE: Objection, form. If you understood the question THE WITNESS: I don't. MR. HAWPE: I'm just objecting for the 24 A. What kind of e-mails? 25 Q. (BY MR. WHITEHURST) Have you received any ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-4 Filed 09/08/16 Page 4 of 9 PageID #: 774 DEANA RENEE BERRY 7/27/2016 Page 24 1 A. Are you talking about, like, the missed 2 punches? 3 Q. No. My understanding is there's a book where 4 5 6 7 8 you've A. Q. A. on the got to -- your hours are correct Oh, yes. What am I talking about? It's called their hours -- I'm not sure what's front of the book, but it's in the copy room. 9 It's in a white binder. HR prints off their hours 10 that they worked, and it's for them to look at to 11 see. Q. Okay. It's a white binder. It's where? 12 13 A. Sometimes it's on the nurses' counter, and then 14 sometimes its in the copy room, which is right off of 15 the nurses' station. 16 Q. I know. I've not seen that, and that's what 17 I'm trying to 18 A. Yeah. 19 Q. It's in a white binder, and sometimes it's at 20 the nurses' 21 A. Well, the nurses' station and the room I'm 22 talking abou~ are about as far as from me to him. 23 Q. Okay. Does everybody have to sign-off on 24 that? 25 A. You're asking me HR questions. I don't know. ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-4 Filed 09/08/16 Page 5 of 9 PageID #: 775 DEANA RENEE BERRY 7/27/2016 Page 26 1 A. Do I hire people? I inter people, uh-huh. 2 Q. No, ma'am. Do you hire people? 3 A. Could. 4 Q. Do you fire people? 5 A. I do. 6 Q. Okay. Do you make management-level decisions? 7 A. I dQ. · 8 Q. Okay. I guess I'm confused. If you don't -- 9 they pay you one week they pay you for less than 10 40, and the next week they pay you for more than 40? 11 A. No. I'm salaried. I make, like, a straight 12 salary. That was my agreement with the company. 13 Q. Okay. And they agreed to pay you what? 14 A. What I told you. 15 Q. Which is how much? 16 A. $40 an hour. That's what it averages out to. 17 Q. Okay. You're paid $40 an hour, but you're a 18 salaried employee, correct? 19 A. Correct. 20 Q. Okay. And you know there's a book. It's a 21 white binder? 22 A. Has it always been white? I have no idea. 23 It's a white book right now. 24 Q. Okay. Well, you've been there since 2000 -- 25 A. Since I've been there, it's been a white book. ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-4 Filed 09/08/16 Page 6 of 9 PageID #: 776 DEANA RENEE BERRY 7/27/2016 Page 27 1 Q. Okay. If I'm a CNA, is my name going to be in 2 that book? 3 A. Yes." 4 Q. If I'm nurse, not a salaried employee, is my 5 name going to be in that book? 6 A. I don't know. 7 Q. Have you ever actually looked at the book? 8 A. Yeah. 9 Q. I mean, have you opened it up to check on 10 anybody? 11 A. Not to check on anybody, no. 12 Q. What have you opened the book for? 13 A. Just to see what was in it. 14 Q. Okay. Why I'm asking that is, I haven't seen 15 the white book either. I'm trying to determine 16 exactly what's in there. And what you're telling me 17 is there's a verification of the hours that each 18 employee wJrked for that week or month; is that 19 right? 20 A. Correct. 21 Q. There's also a bonus plan at this time; is that 22 right? 23 A. There's a call-in bonus. 24 Q. What qoes that mean? 25 A. It means if we're short CNAs on the floor and ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-4 Filed 09/08/16 Page 7 of 9 PageID #: 777 DEANA RENEE BERRY 7/27/2016 Page 43 1 go how many hours they've been paid unless they ask 2 for it -- or can they ask for it? 3 A. It's on the -- it's in the binder. It shows 4 how many hours they worked. 5 Q. The white binder? 6 A. And then on their pay stub it shows how many 7 hours they worked. 8 Q. Yeah. But if I go back and say, hey, I worked 9 five hours·that I wasn't paid for in July, how to do 10 they check that? 11 A. They check it through HR to see what's been, 12 you know, input. 13 Q. I know. But I'm asking, as far as the 14 employee, how do they check that? 15 A. They would have to go to HR. 16 Q. Okay. And nobody has done that as far as you 17 know? 18 A. That's not my job description. I have enough 19 to do. 20 Q. And"your job is to take care of your people, 21 right? 22 A. Yes, it is. 23 Q. And if that happened, you would want to make 24 sure it's right, right? 25 A. Are you talking about my people as in my -- ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-4 Filed 09/08/16 Page 8 of 9 PageID #: 778 DEANA RENEE BERRY 7/27/2016 Page 45 1 be paid for it, right? 2 A. They know the policy. All they have to do is 3 turn in the 4 Q. Missed punch form? 5 A. Yeah. 6 Q. Well, ma'am, all I'm doing is looking at 7 records. 8 A. I understand that. 9 Q. You've never seen me at that facility, have 10 you? 11 A. No, I sure haven't. 12 Q. All right. I'm looking, and I don't see 13 records. I don't see this white binder. I don't see 14 the missed punch forms for 2013 and 2015. 15 A. Uh-huh. 16 Q. So how in the world can I say, hey, these are 17 good records? 18 MR. HAWPE: Objection, form. 19 A. I'm not in charge of that. That's why we have 20 many good department heads. 21 Q. (BY MR. WHITEHURST) You're not in charge. 22 Okay. 23 A. No. 24 Q. Have you looked at the time records of 25 Ms. Lacey? ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-4 Filed 09/08/16 Page 9 of 9 PageID #: 779 EXHIBIT “E” Case 2:15-cv-01650-JRG-RSP Document 52-5 Filed 09/08/16 Page 1 of 4 PageID #: 780 LAWANNA LACEY RIGINAL IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION MISTY ELLISON, LAWANNA ) LACEY, AND GARRETT BROWN, Plaintiffs 6/15/2016 Page 1 vs NO. 2:15-CV-01650 CANTON LONG TERM CARE, LLC, ) ) Defendant ORAL VIDEOTAPED DEPOSITION OF LAWANNA LACEY JUNE 15, 2016 ORAL VIDEOTAPED DEPOSITION OF LAWANNA LACEY, produced 2s a witness at the instance of the Defendant, and duly sworn, was taken in the above-styled and -numbered cause on June 15, 2016, from 10:03 a.m. to 1:29 p.rn., before Samantha Falcone, CSR in and for the State of Texas, reported by machine shorthand, at 310 E. Market Street, Mabank, Texas, pursuant to Rule 30 of the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto. ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-5 Filed 09/08/16 Page 2 of 4 PageID #: 781 LAWANNA LACEY 1 A P P E A R A N C E S 2 3 FOR THE PLAINTIFFS: 4 Mr. Bob Whitehurst WHIT£HURST LAW FIRM 5 5380 Old Bullard Road, Suite 600 Tyler, Texas 75703 6 (903)593-5588 - Telephone (214)853-9382 - Facsimile 7 whitehurstlawfirm@yahoo.com 8 9 FOR THE DEFENDANT: 10 Mr. Jeremy W. Hawpe 11 12 13 14 Ms. Eniola 0. Akinrinade LITTLER MENDELSON, PC 2001 Ross Avenue, Suite 1500 Dallas, Texas 75201 (214)880-8100 - Telephone (214)880-0181 - Facsimile jhawpe@littler.com Ms. Brigitte Miller (VIA TELEPHONE) 6/15/2016 Page 2 15 Fundamental Administrative Services, LLC, Senior Counsel 16 17 ALSO PRESENT: 18 Ms. Miranda Glover - Videographer Ms. Misty Ellison - Plaintiff 19 Ms. Sabrina Jenkins - Fundamental Regional HR Director 20 21 22 23 24 25 ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-5 Filed 09/08/16 Page 3 of 4 PageID #: 782 LAWANNA LACEY 6/15/2016 Page 98 1 weekends. 2 Q So most of this work that you -- you contend 3 that you did at home was on the weekends? Yes. 4 5 A Q And give me a range as to how long you would 6 work from home on the weekends. Six to eight hours. Both days? 7 8 9 A Q A Yeah. My husband works six days a week and 10 then on Sunday he's doing things outside. And since I 11 usually am by myself, I get on that computer because 12 I'm trying to get it done so I won't have to work at 13 home. 14 Q And when you're working from home you have 15 to log in to that Matrix -- 16 A Yes. Q A Q -- program, correct? Yes. And would you use your password? A Yes. 17 18 19 20 21 22 23 24 25 Q And would that be the same password that you used there at Canton Oaks? Yes. A Q A Same password that you'd use at home? Yes, but I can't -- I can't upload anything. ELITE DEPOSITION TECHNOLOGIES 214-698-5199 Case 2:15-cv-01650-JRG-RSP Document 52-5 Filed 09/08/16 Page 4 of 4 PageID #: 783 EXHIBIT “F” Case 2:15-cv-01650-JRG-RSP Document 52-6 Filed 09/08/16 Page 1 of 2 PageID #: 784 Case 2:15-cv-01650-JRG-RSP Document 52-6 Filed 09/08/16 Page 2 of 2 PageID #: 785 EXHIBIT “G” Case 2:15-cv-01650-JRG-RSP Document 52-7 Filed 09/08/16 Page 1 of 2 PageID #: 786 Case 2:15-cv-01650-JRG-RSP Document 52-7 Filed 09/08/16 Page 2 of 2 PageID #: 787 EXHIBIT “H” Case 2:15-cv-01650-JRG-RSP Document 52-8 Filed 09/08/16 Page 1 of 2 PageID #: 788 Case 2:15-cv-01650-JRG-RSP Document 52-8 Filed 09/08/16 Page 2 of 2 PageID #: 789 EXHIBIT “I” Case 2:15-cv-01650-JRG-RSP Document 52-9 Filed 09/08/16 Page 1 of 2 PageID #: 790 Case 2:15-cv-01650-JRG-RSP Document 52-9 Filed 09/08/16 Page 2 of 2 PageID #: 791 EXHIBIT “J” Case 2:15-cv-01650-JRG-RSP Document 52-10 Filed 09/08/16 Page 1 of 2 PageID #: 792 Case 2:15-cv-01650-JRG-RSP Document 52-10 Filed 09/08/16 Page 2 of 2 PageID #: 793 EXHIBIT “K” Case 2:15-cv-01650-JRG-RSP Document 52-11 Filed 09/08/16 Page 1 of 2 PageID #: 794 Case 2:15-cv-01650-JRG-RSP Document 52-11 Filed 09/08/16 Page 2 of 2 PageID #: 795 EXHIBIT “L” Case 2:15-cv-01650-JRG-RSP Document 52-12 Filed 09/08/16 Page 1 of 2 PageID #: 796 Case 2:15-cv-01650-JRG-RSP Document 52-12 Filed 09/08/16 Page 2 of 2 PageID #: 797 EXHIBIT “M” Case 2:15-cv-01650-JRG-RSP Document 52-13 Filed 09/08/16 Page 1 of 2 PageID #: 798 Case 2:15-cv-01650-JRG-RSP Document 52-13 Filed 09/08/16 Page 2 of 2 PageID #: 799 EXHIBIT “N” Case 2:15-cv-01650-JRG-RSP Document 52-14 Filed 09/08/16 Page 1 of 2 PageID #: 800 Case 2:15-cv-01650-JRG-RSP Document 52-14 Filed 09/08/16 Page 2 of 2 PageID #: 801 EXHIBIT “P” Case 2:15-cv-01650-JRG-RSP Document 52-15 Filed 09/08/16 Page 1 of 2 PageID #: 802 Case 2:15-cv-01650-JRG-RSP Document 52-15 Filed 09/08/16 Page 2 of 2 PageID #: 803 EXHIBIT “Q” Case 2:15-cv-01650-JRG-RSP Document 52-16 Filed 09/08/16 Page 1 of 2 PageID #: 804 RE: On Call Compensation - Misty Ellison (0264-Medrec-Canton Oaks) https://pod5 l 042.outlook.com'owa/#viewmodel=ReadMessageitem&I... RE: On Call Compensation Julie Rumbo (0264-DON-Canton Oaks) Wed 4/2/2014 5:58 PM To:John McKeehan (0264-Admin-Canton Oaks) ; Misty Ellison (0264-Medrec-Canton Oaks) < misty.ellison@fundltc.com >; cc:Lawana Lacey < lawana.lacey@fundltc.com >; First let me say I do appreciate all that you both do here at Canton Oaks. Thank you! I think John has an excellent idea regarding training one CNA on evening shift and one CNA on night shift to drive the van. Please note that this will not completely eliminate a late call in the future. Staffing issues due to call ins can never be predicted. Loi. Julie Rumbo RN, DON DiscoJulz@aol.com 903-681-1740 From: John McKeehan (0264-Admin-Canton Oaks) Sent: Monday, March 31, 2014 10:29 AM To: Misty Ellison (0264-Medrec-Canton Oaks) ® Cc: Lawana Lacey; Julie Rumbo (0264-DON-Canton Oaks) Subject: RE: On Call Compensation I do understand your point of view .... and as was stated when you guys took the position, that one of the reasons for the pay rate and the job description itself was that you would be expected to make off standard hour calls. In addition, I give a lot of l of2 latitude on all the OT you guys incur because I know you guys are dedicated and do incur inconvenient requests. I am already being scrutinized on current excessive bonus payouts now, so I can tell you that I will not be able to extend anymore and in fact, they may all be going away because of current call in practices. Call it the few screwing it up for the many. I would say that you need to get with Julie to ensure nursing is better communicating with you regarding these things as well as ensuring SBAR and other steps are being taken before patients are sent out which end up being send right back as this can be an inconvenience. In addition, we may need to consider training 1 other CNA per shift on the Van so that these inconvenient times can be accommodated more readily. Julie? fJerhaps you can get some trained on 10-6 for just such an occasion. That might solve the problem right there. Thoughts? Sorry .... i know this is not the answer you wanted to hear, JM From: Misty Ellison (0264-Medrec-Canton Oaks) Sent: Friday, March 28, 2014 6:24 PM To: John McKeehan (0264-Admin-Canton Oaks) 5/23/2014 5:52 PM Case 2:15-cv-01650-JRG-RSP Document 52-16 Filed 09/08/16 Page 2 of 2 PageID #: 805 EXHIBIT “R” Case 2:15-cv-01650-JRG-RSP Document 52-17 Filed 09/08/16 Page 1 of 3 PageID #: 806 Corrective Action Form ·--~~-fil .. L1 .. ~ s_ Date erbal Warning "' 'tten Warning · Final \\Tritten Waming (Suspension Dates (if applicable): -···-· ·--·····--~~-~ w Discharge Reason for Action (include policy if applicable): .. \ino.9C:.~J::et~ ~~ \ MS'Z)a c0-~\ ..... -k\ t£vA ·~ '¥ ¥'4~ .. ~~9, :::!o t '4A..S,,,,tc ~XvA./fL ... :~OS.:k\:<\: y \ v J~ Action Required.;~,:>:< :.k-,4 .__._ ::::\xfVt\ ~,.~nr -+~" s;-k.M,;-\·~ ~ ~ ~ :C\