Martin et al v. George Junior Republic in Pennsylvania et al

REPLY BRIEF re Motion for Summary Judgment

W.D. Pa.July 13, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DOUGLAS and BRENDA MARTIN, ) v. ) GEORGE JUNIOR REPUBLIC IN ) Case No. 2:15-cv-00471-MPK PENNSYLVANIA and GEORGE ) JUNIOR REPUBLIC, ) DEFENDANTS’ REPLY BRIEF SUPPORTING SUMMARY JUDGMENT George Junior Republic in Pennsylvania (“GJR”) and George Junior Republic (“Parent”) (collectively, “Defendants”) respectfully submit that the Martins’ arguments in opposition to summary judgment have no merit and their claims should be dismissed. GJR DID NOT SUFFER OR PERMIT THE MARTINS’ ALLEGED WORK The following facts are not disputed: • The Martins signed agreements which provide that overtime “in excess of [their 52-hour weekly] schedule must be approved in advance by the supervisor or, if an emergency, immediately thereafter.” Exs.13; 14. • Their work as Counselor/Parents was largely unsupervised. Exs. 4 (p.69); 5(pp.71, 126). • There were various mechanisms by which they could have reported overtime in excess of their schedule, including through their Schedule forms, or reporting it in writing or verbally to their supervisors or GJR’s scheduler. Exs. 5 (p.91); 6 (pp.19, 23); 7 (p.47); 8 (pp.25-26, 29); 17; 18; 23-24; 18. • The Martins rarely reported to Defendants that they worked overtime in excess of their schedule. Exs. 1 (p.173); 2 (p.211). • When the Martins were told to do so by the Director of Human Resources in early September 2014, they still did not report any time they alleged to have worked outside their schedule. Exs. 2 (p.243-44); 15. • When the Martins did report that they worked overtime in excess of their schedule, they were paid. See, e.g., Exs. 1 (pp.140-42), 293-95); 8 (pp.32-33); 24-27. The case law is clear that, under the circumstances set forth by these undisputed facts, the Martins simply do not have a cause of action for unpaid overtime because of their failure to record and report time they allegedly worked during breaks. The Martins seem to advance two arguments in opposition to dismissal. First, they claim that Defendants prevented them from reporting their time because they told one of their supervisors (Gilliland) in 2012 or so that they Case 2:15-cv-00471-MPK Document 40 Filed 07/13/16 Page 1 of 6 2 were allegedly working during their breaks, tried to give him marked-up schedules, and he told them they could not do so. Defendants’ opening brief already laid bare the weaknesses of the Martins’ argument: • The Martins could not even agree on what Gilliland said, but at the very “worst,” Gilliland said they could not mark up the Schedules. He did not prohibit them from submitting time through other means, including seeking approval from him directly or submitting the time to Greggs for his subsequent approval. Exs. 1 (p.173); 2 (p.150).1 • The Martins wrote on the schedules after their conversation with Gilliland, Exs. 2 (p.161- 167); 36-38, and Gilliland or his secretary (under Gilliland’s direction) even instructed Martin to write on a Schedule when it was inaccurate. Ex. 2 (pp.166-67). • The Martins never followed up, even when the Director of Human Resources told them to submit their overtime. Exs. 2 (pp.152, 169); 3 (pp.74-75); 5 (p.80); 7 (p.47). • Gilliland, in fact, authorized overtime for the Martins during their five hours of free time. Exs. 2 (pp.192-95); 28. Taken together, these facts show that, however the Martins interpreted what Mr. Gilliland told them, it could not be reasonably construed as a command to never submit overtime. Any argument to the contrary is specious. Second, the Martins seem to argue that Defendants should have known that they worked through their breaks even without the benefit of recorded time, because it was impossible for them not to work through those breaks. This argument meanders along two paths. Path #1 is the Martins’ thoroughly discredited argument that state regulations mandate that the youth in their cottage be supervised at all times by two Counselor/Parents, thereby preventing them from taking breaks. Plaintiffs’ Brief at 8 (“leaving only one Counselor/Parent to supervise the boys so that the other may take his or her break violates 55 Pa. Code Section 3800.274.”). If the Martins 1 In their brief, the Martins claim that “Defendants responded by threatening Ms. Martin with termination or demotion.” Brief at 6. That did not happen, and the Martins cite to nothing in the record supporting that claim. They do cite to Douglas Martin’s “kind of” “perception” that if they “pushed the issue” of overtime, “if [GJR] deemed it excessive, we could be removed from our job.” Ex. B (p.319). Subjective perception is not a fact and does not create a material dispute of fact. Furthermore, this supposed threat allegedly occurred in the context not of reporting overtime in the first instance, but working excessive overtime, which Douglas Martin conceded that GJR had the discretion to limit. Ex. 41 (p.320) (Exs. 41, et seq. attached hereto). Case 2:15-cv-00471-MPK Document 40 Filed 07/13/16 Page 2 of 6 3 worked in a “secure care” facility, the Martins’ argument might have some merit. See 55 Pa. Code s.3800.274. But the open campus cottages the Martins and other Counselor/Parents worked in are not secure care facilities, e.g., egress is not prohibited through internal or exterior locks or through secure fencing around the perimeter of the building. Compare 55 Pa. Code s.3800.5 and Exs. 42 (pp.39, 65); 43 (pp.37, 57-60, 66-67). Indeed, the Martins filed a complaint in Fall 2014 with the Pennsylvania Department of Public Welfare (“DPW”) regarding staffing ratios, and DPW found there were no violations. Exs. 41 (pp.250-54); 44-45. Thus, Defendants had no reason to know the Martins were working, since the regulations did not prevent them from taking their breaks. Path #2 is the Martins’ claim that GJR trainers told them that two Counselor/Parents needed to be in the cottage any time youth were there (thereby making it difficult to get their breaks). But just because they say that 2+2=5 does not mean there is a dispute of fact as to what 2+2 actually equals. GJR’s SOP’s specifically state, “At no time are Counselor Parents allowed to take their five consecutive hours together when are youth in the cottage.” Ex. 35 (p.33) (emphasis supplied) (indicating they are able to take breaks separately). That is borne out by the testimony of GJR witnesses. See Ex. 43 (p.58). Moreover, there are multiple instances where only one Martin was working in the cottage while youth were present, and neither one was ever disciplined, reprimanded or counseled (Ex. 46 (pp.156-58)): • Brenda Martin, in the Summer and Fall of 2014, worked for Grove City Alliance Church, many days for six hours from 9:30 a.m. to 3:30 p.m., during which time Doug Martin would have been alone with the youth in the cottage during lunch and at the end of the school day. Exs. 41 (pp.136, 150); 46 (pp.157-58); 47. • Brenda Martin worked in GJR’s Human resources office for three or four hours each day, until roughly 4 p.m., during which time Doug Martin was alone with the youth when they returned from school at 3:05 p.m.at the end of the day. Exs.41 (p.150); 46 (pp.170-75); 28; 31. • Doug Martin worked the “ropes” course (adventure-based counseling) at GJR while his wife was responsible for the youth in the cottage. Ex. 1 (pp.102-04). Case 2:15-cv-00471-MPK Document 40 Filed 07/13/16 Page 3 of 6 4 • When one attended training, the other supervised the youth. Ex. 41 (pp.142-43). • When Doug Martin was hospitalized, Brenda Martin supervised the youth by herself all day. Ex. 2 (pp.205-06, 208-09). • And other times, one of the Martins would be alone with the youth while the other ran errands. Ex. 41 (pp.97-98). It simply defies belief that the Martins were told that they both needed to be in the cottage when youth were there when it was routine that one would be out of the cottage, working for GJR (and it goes without saying, with GJR’s knowledge), training, running errands, or sick. Accordingly, the Martins’ assertion that they could not get their breaks because they were told that both needed to be in the cottage when youth were present is entitled to zero deference. GJR DID NOT RETALIATE AGAINST DOUG MARTIN Regarding GJR’s decision not to hire Douglas Martin after his wife resigned, Martin’s sole proffer of causation or pretext are two meetings he had with GJR executives following his August 31, 2014, complaint. Shortly after the August complaint, Martin met with, among others, GJR’s COO, Jeff Morris, Ex. 43 (pp.116, 121), who according to Martin “basically yelled” at him and threatened to convert him to a “shift worker.” Days later, GJR’s CEO, Rick Losasso, met with Martin as a follow-up, and allegedly told Martin “not to push the uncompensated pay issue.” These meetings are not close to showing causation or pretext. To begin, they occurred about two months before Douglas Martin’s rude and disrespectful behavior during and after a meeting with CFO Michele Gerwick regarding raises, rendering the previous meetings irrelevant. The Gerwick meeting reset the stage, which is highlighted by the undisputed fact that after the Losasso and Morris meetings, but before the Gerwick meeting, Jones expressed interest in hiring Martin (he even ran it by Losasso to see if he had a problem, and he did not). Ex. 3 (pp.142-43). Why would he have been interested in hiring Martin if there was some sort of animus, personal or organizational, against Martin for his Case 2:15-cv-00471-MPK Document 40 Filed 07/13/16 Page 4 of 6 5 August 31 complaint? Moreover, Jones (not Morris or Losasso) made the decision not to hire Martin, Exs. 3 (p.144), 43 (pp.130, 32), so what happened in meetings with Morris and Losasso is irrelevant. Finally, the “shift worker” comment was not a threat, but simply an acknowledgement by Morris that if Counselor/Parents, across the board, could not get their breaks, GJR would have to consider, from an economics standpoint, whether to resort to a model used by their competitors, i.e., supervising youth with regular workers assigned to 8 hour shifts, rather than employ married couples as live-in Counselor/Parents. Exs. 142 (p.23); 143 (p.124). In short, there is simply no evidence that Martin was not hired because he complained in August 2014, a point which even Martin seems to concede. Ex. 1 (p.315). THE PARENT COMPANY IS NOT AN EMPLOYER The Martins offer no material facts for their contention that the Parent was an employer under the FLSA, PMWA or WPCL. There is no dispute that the Martins worked for GJR. See Ex. 35 (Martin hired by GJR).2 The Martins nevertheless argue that the Equal Opportunity Family Living Agreement names George Junior Republic, but the document plainly states that it applies to “an institution” “located in Grove City, Pennsylvania which re-orients the lives of young men.” Exs. 13-14 (p.1). Since the Parent is a holding company, see Exs. 142 (p.10); 143 (pp.8, 10-11), not an institution re-orienting the lives of young men, that clearly is a reference to GJR. They also argue that the handbook applies to the Parent’s employees and GJR, but that comes nowhere close to (a) establishing control under In re Enterprise Rent-A-Car Wage & Hour Emp’t Practices Litig., 683 F.3d 462, 471 (3d Cir. 2012), and (b) rebutting therein the strong presumption that a parent company is not the employer of a subsidiary’s employees. 2 While the Martins claim that the Parent admitted it was an employer in Defendants’ answer, Defendants have in fact denied that the Parent is an employer. Ex. 48 (Nos. 3, 5). Regardless, though, Defendants did not admit that Parent was an employer under the FLSA, PMWA or WPCL, and Plaintiffs bear that burden of proof, which their sparse proffer does not meet. Case 2:15-cv-00471-MPK Document 40 Filed 07/13/16 Page 5 of 6 6 Respectfully submitted, /s/ Michael A. Pavlick Michael A. Pavlick. PA ID No. 60914 Ali J. Parker, PA ID No. 318607 K&L GATES LLP K&L Gates Center 210 Sixth Ave. Pittsburgh, PA 15222 (412) 355-6500 (phone) (412) 355-6501 (fax) michael.pavlick@klgates.com ali.parker@klgates.com Attorneys for Defendants. Dated: July 13, 2016 Case 2:15-cv-00471-MPK Document 40 Filed 07/13/16 Page 6 of 6 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 1 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 2 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 3 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 4 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 5 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 6 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 7 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 8 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 9 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 10 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 11 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 12 of 13 Case 2:15-cv-00471-MPK Document 40-1 Filed 07/13/16 Page 13 of 13 Case 2:15-cv-00471-MPK Document 40-2 Filed 07/13/16 Page 1 of 8 Case 2:15-cv-00471-MPK Document 40-2 Filed 07/13/16 Page 2 of 8 Case 2:15-cv-00471-MPK Document 40-2 Filed 07/13/16 Page 3 of 8 Case 2:15-cv-00471-MPK Document 40-2 Filed 07/13/16 Page 4 of 8 Case 2:15-cv-00471-MPK Document 40-2 Filed 07/13/16 Page 5 of 8 Case 2:15-cv-00471-MPK Document 40-2 Filed 07/13/16 Page 6 of 8 Case 2:15-cv-00471-MPK Document 40-2 Filed 07/13/16 Page 7 of 8 Case 2:15-cv-00471-MPK Document 40-2 Filed 07/13/16 Page 8 of 8 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 1 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 2 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 3 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 4 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 5 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 6 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 7 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 8 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 9 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 10 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 11 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 12 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 13 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 14 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 15 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 16 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 17 of 18 Case 2:15-cv-00471-MPK Document 40-3 Filed 07/13/16 Page 18 of 18 Case 2:15-cv-00471-MPK Document 40-4 Filed 07/13/16 Page 1 of 1 Case 2:15-cv-00471-MPK Document 40-5 Filed 07/13/16 Page 1 of 1 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 1 of 10 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 2 of 10 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 3 of 10 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 4 of 10 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 5 of 10 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 6 of 10 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 7 of 10 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 8 of 10 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 9 of 10 Case 2:15-cv-00471-MPK Document 40-6 Filed 07/13/16 Page 10 of 10 Case 2:15-cv-00471-MPK Document 40-7 Filed 07/13/16 Page 1 of 9 Case 2:15-cv-00471-MPK Document 40-7 Filed 07/13/16 Page 2 of 9 Case 2:15-cv-00471-MPK Document 40-7 Filed 07/13/16 Page 3 of 9 Case 2:15-cv-00471-MPK Document 40-7 Filed 07/13/16 Page 4 of 9 Case 2:15-cv-00471-MPK Document 40-7 Filed 07/13/16 Page 5 of 9 Case 2:15-cv-00471-MPK Document 40-7 Filed 07/13/16 Page 6 of 9 Case 2:15-cv-00471-MPK Document 40-7 Filed 07/13/16 Page 7 of 9 Case 2:15-cv-00471-MPK Document 40-7 Filed 07/13/16 Page 8 of 9 Case 2:15-cv-00471-MPK Document 40-7 Filed 07/13/16 Page 9 of 9 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 1 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 2 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 3 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 4 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 5 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 6 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 7 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 8 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 9 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 10 of 11 Case 2:15-cv-00471-MPK Document 40-8 Filed 07/13/16 Page 11 of 11