Foster v. Americare Healthcare Services, Inc.

150 F. Supp. 3d 868, 25 Wage & Hour Cas.2d (BNA) 1774, 25 Wage & Hour Cas. (BNA) 1774, 2015 U.S. Dist. LEXIS 166550, 2015 WL 8675518
CourtDistrict Court, S.D. Ohio
DecidedDecember 11, 2015
DocketCase No. 2:13-cv-658
StatusPublished
Cited by2 cases

This text of 150 F. Supp. 3d 868 (Foster v. Americare Healthcare Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Americare Healthcare Services, Inc., 150 F. Supp. 3d 868, 25 Wage & Hour Cas.2d (BNA) 1774, 25 Wage & Hour Cas. (BNA) 1774, 2015 U.S. Dist. LEXIS 166550, 2015 WL 8675518 (S.D. Ohio 2015).

Opinion

OPINION AND ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendants’ Motion for Summary Judgment (ECF No. 22). For the reasons that follow, Defendants’ Motion for Summary Judgment is GRANTED in PART, and Plaintiffs state claims are DISMISSED without prejudice.

I. BACKGROUND

Plaintiff Foster was employed by Defendant Americare Healthcare Services, Inc. (“Americare”), as á home health aide from 2005 until she resigned in early May, 2013. (PI. Deck at 1, ECF No. 27-7.) According to Americare’s President, Ms. Nnenna Ndukwe (“Ndukwe”), Americare “provides home health aides to clients who due to age or illness require assistance in their homes.” (Ndukwe Deck at 1, ECF No. 22-1.) Americare’s services are “funded in large part by federal Medicare and Medicaid programs.” Id. In May, 2013, Plaintiff resigned her position with Americare. (PI. Deck at 1, ECF No. 27-7.) .

On July 8, 2013, Plaintiff filed a complaint asserting claims for unpaid overtime wages and unpaid minimum'wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.-, for unpaid overtime wages and unpaid minimum wages under the Ohio Minimum Fair Wage Standards Act. (“MFWSA”), Ohio Rev. Code § 4111.03 and Article II, § 34a of the Ohio Constitution; and for unpaid wages under the Ohio Prompt Payment Act, Ohio Rev, Code § 4113.15. (Compb, ECF No. 1.)

On March 20, 2015, Defendants filed a Motion for Summary Judgment directed at all of Plaintiffs claims. (ECF No. 22.) On April 27, 2015, Plaintiff filed a Memorandum in Opposition to the motion .(ECF No. 27.) On May 14,. 2015, Defendants filed a Reply in support of the Motion for Summary Judgment. (ECF No. 28.)

II. MOTION TO STRIKE

Plaintiff submitted a declaration with her Memorandum in 'Opposition to Defendants’ Motion for Summary Judgment. (PL Deck, ECF No. 27-7.) Defendants have moved to disregard or strike portions of that declaration from the record. (ECF No. 28.)

A. Standard

There is no Federal Civil Rule that provides a- vehicle' to strike' declarations or portions of declarations from the record. As opposed to striking declarations or affidavits from the record, the better practice is for the Court to disregard any inadmissible evidence offered.in them. See Fox v. Mich. State Police Dep’t., 173 Fed.Appx. 372, 375 (6th Cir.2006) (explaining that the Federal ■Civil Rules “do not require the district court to remove documents other than pleadings from the record in a case” and that the documents may appropriately [871]*871be dealt with on grounds of admissibility)) Bovee v. Coopers & Lybrand, 216 F.R.D. 596, 599 (S.D.Ohio 2003) (“a court may disregard inadmissible evidence instead of ‘striking it’ from the record”).

B. Analysis

Defendants move this Court to disregard or strike Paragraphs 4, 8, and part of 9 of Plaintiffs declaration, arguing that Plaintiff is attempting to create a genuine issue of material fact by offering at summary judgment statements which contradict her earlier deposition testimony. See Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986) (“A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony.”). In Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir.2006), the Sixth Circuit established the following paradigm for determining whether post-deposition affidavits can be considered on motions for summary judgment:

[A] district court deciding the admissibility of a post-deposition affidavit at the summary judgment stage must first determine whether the affidavit directly contradicts the nonmoving party’s prior sworn testimony. A directly contradictory affidavit should be stricken unless the party opposing summary judgment provides a persuasive justification for the contradiction. If, on the other hand, there is no direct contradiction, then the district court should not strike or disregard that affidavit unless the court determines that the affidavit constitutes an attempt to create a sham fact issue.

Id. (citations omitted).

Paragraph 4 of Plaintiffs declaration states, “In at least nine pay periods comprising 18 weeks during the Relevant Time Period, I was not paid for all of the hours, that I worked.” (PI. Deck ¶ 4, EOF No. 27-7 at 2.) Defendants contend that Plaintiffs deposition testimony directly contradicts this averment. Specifically, Defendants point to Plaintiffs deposition testimony, in which she stated that she was paid for every hour that she worked. The sequence of testimony is as follows:

Q. Okay, Were you ever paid for more hours than you actually worked?
A. No. What I’m saying is I was paid for every hour that I turned in on the time sheet. That’s what I’m saying.
Q. So as I was saying, my calculation is that we have 168 hours reflected in the time sheets, and again, I will represent that the company’s records show that you were paid for 118 hours. So 50 hours less than what your time sheets reflect. Do you recall ever having a discrepancy like that—
A. No.
Q. —on this occasion or any other occasion where you were — you turned in time sheets for a specific amount, and . you were paid for less than that amount?
A. I’m going to say no, because every time I needed to get paid my checks were right, even if I received a separate paycheck. Sometimes I received two. .
Q. Was it for half — whatever the total amount was, was it half and half? Were they equal?
A. Yes. They equal the total hours that I work, yes.
■Q. Did you ever ask Nnenna or anyone else at-the company why you received two?
[872]*872A. Nope. I figured it was right so why worry about it.
Q. I’ll represent that my calculations showed this issue, and when I say this issue, I mean you had more hours in your time sheets than hours actually paid. I noticed that several times — excuse me, seven times. But it sounds like you didn’t notice that any other — at . any time, I think is what you told me a minute ago. You don’t recall ever receiving a check and saying, hey,, wait a minute. I worked more hours than this?
A. Correct. I always received my money.

(PI. Dep. at 204-211, ECF No. 28-1.)

Defendants assert that Plaintiffs avermént in her declaration that she was not paid for all hours worked should be disregarded based on her prior testimony. This Court agrees that this paragraph of Plaintiffs declaration directly contradicts her prior testimony, and will disregard the averments in Paragraph 4 of Plaintiffs declaration, ,

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150 F. Supp. 3d 868, 25 Wage & Hour Cas.2d (BNA) 1774, 25 Wage & Hour Cas. (BNA) 1774, 2015 U.S. Dist. LEXIS 166550, 2015 WL 8675518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-americare-healthcare-services-inc-ohsd-2015.