Nesbitt v. FCNH, Inc.

217 F. Supp. 3d 1288, 2016 U.S. Dist. LEXIS 157180, 2016 WL 6777827
CourtDistrict Court, D. Colorado
DecidedNovember 14, 2016
DocketCivil Action No 14-cv-00990-RBJ
StatusPublished
Cited by1 cases

This text of 217 F. Supp. 3d 1288 (Nesbitt v. FCNH, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nesbitt v. FCNH, Inc., 217 F. Supp. 3d 1288, 2016 U.S. Dist. LEXIS 157180, 2016 WL 6777827 (D. Colo. 2016).

Opinion

ORDER

R. Brooke Jackson, United States District Judge

This matter is before the Court on two motions filed by defendants: (1) defendants’ Motion for Summary Judgment, ECF No. 62; and (2) defendants’ Motion to Dismiss the Claims of Opt-In Plaintiffs Soliz, Alfisi, Sprague and Williams and to Exclude Evidence from Certain Other Opt-In Plaintiffs, ECF No. 64, which remains pending after being granted in part on November 1, 2016. This Order solely addresses defendants’ motion for summary judgment. For the reasons below, the Court GRANTS IN PART and DENIES IN PART that motion. In addition, because the Court dismisses plaintiffs’ FLSA claim, the Court orders the parties to show cause within 14 day as to why the Court should not dismiss without prejudice the remainder of the action for lack of subject matter jurisdiction.1

[1290]*1290I. FACTS

Plaintiffs are massage therapy students who attended defendants’ massage therapy vocational schools.2 ECF No. 46-1 at ¶¶5-21 (Amended Complaint); ECF No. 62 at 1 n.l. These schools are collectively run by defendant Steiner Education Group (“SEG”) in the following states: Arizona, Colorado, Connecticut, Florida, Maryland, Massachusetts, Illinois, Nevada, New Jersey, Pennsylvania, Texas, Utah, Virginia, and Washington. Id. at ¶¶13-15. Although they enrolled as students at SEG’s institutions, plaintiffs argue here that during SEG’s clinical massage curriculum they functioned as defendants’ “employees” under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., as well as their respective state’s laws. See id. at ¶¶57-81. Accordingly, they assert claims for unpaid wages under those laws for the time they performed clinical massages for paying customers at defendants’ institutions. Id.

Enrollment at the SEG’s Institutions.

Upon enrolling at an SEG massage therapy vocational school, students are required to sign an “Enrollment Agreement” wherein they acknowledge that they will pay tuition in exchange for classroom and clinical training in massage therapy. ECF No. 62-2 at ¶¶12-15 (Deck of Melissa Wage). This Agreement likewise discloses to students that it is illegal under the respective state’s laws to perform massage therapy for compensation without a license, and that students are not guaranteed employment with their school or otherwise upon graduation from the program. Id. Students also receive a Student Catalog and Handbook upon enrolling at one of defendants’ schools. Id. at H1Í12-17. Though these documents differ to some degree at defendants’ different institutions, they all generally describe SEG’s clinical requirement to graduate. See id. They also inform students that as unlicensed student massage therapists, they could not and would not receive compensation during this clinical component of their education. Id.

For the first few weeks after they enroll at one of SEG’s schools, which are all accredited and licensed by the states in which they operate, see id. at ¶¶3-10, students engage exclusively in classroom education and practice, see ECF No. 62-8 at ¶4 (Decl. of Matthew Rodgers).3 During that time, students learn about the practice of massage therapy. See id. They also have the opportunity to occasionally practice the massage therapy skills they learn in the classroom on other students and instructors. Id. Once they complete their school’s requisite initial amount of classroom education, students can then begin SEG’s clinical curriculum. Id. at ¶5. While they complete this clinical curriculum, students continue to receive classroom education. See id.

[1291]*1291SEG’s Clinical Training Program.

Prior to giving their first clinical massages, students must undergo orientation for SEG’s clinical program. Id. at ¶7. Though plaintiffs dispute the extent of this orientation, see ECF No. 71-2 at 56:9-14 (Dep. of Sara Alexandra Tan, August 3, 2016), defendants describe it as consisting of a discussion with students about the clinical course’s objectives and the expectations of student massage therapists, ECF No. 62-8 at ¶7. As defendants explain, these “expectations include that students will greet a client” receiving a massage, “perform a 50-minute massage, and return the client to the waiting room, all within approximately one hour” in order “to mimic the general timing of a massage at a spa or other professional massage therapy business.” Id. at ¶8. During orientation instructors also explain to students that they are expected to maintain their booths and tables as if they were professional massage therapists. Id. at ¶17. Students therefore must apparently “move desks, tables, etc., and set up privacy curtains” during their scheduled massage clinic. ECF No. 71 at 5.

In general, students perform roughly 100 massages (lasting approximately 50 minutes each) during SEG’s clinical program.,ECF No. 62-8 at ¶12. They perform these massages at their respective schools in cordoned off, empty classrooms. See ECF No. 71-16 at 34:3-11 (Dep. of Matthew Rodgers, July 26, 2016). Their clients are paying customers from the public to whom defendants’ institutions publicly advertise discounted massages at their respective schools.4 ECF No. 62-8 at ¶2; ECF No. 71-18 (Advertisements). Because customers pay some amount of money to receive their clinical massages, defendants generate revenue from SEG’s clinical curriculum. See ECF No. 62-14 at ¶¶3-6 (Decl. of James Wharton). It is disputed, however, whether these schools actually profit from running these clinics. Compare id. at ¶8 with ECF No. 71 at 6-7. Regardless of whether students’ massages generate profit, the Enrollment Agreement, Student Catalog and Handbook inform students that they will not receive compensation for providing massage services during their clinical training. ECF No. 62-2 at ¶¶12-17. Defendants contend that it would be illegal under the laws in every state in which they operate to pay students as unlicensed massage therapists for performing these massages. ECF No. 62 at 3 (citing C.R.S. § 12-35.5-107; 3 C.C.R. § 722-1:2).

In any event, because this training is a “clinical” massage program, after each massage the student’s client has the opportunity to provide the student with feedback. See ECF No. 62-8 at 1Í15. How often feedback is given is disputed. Nee ECF No. 71-4 at 21:23-35, 22:1-5 (Dep. of Amanda Camacho, July 14, 2016). Nevertheless, if a customer provides a student massage therapist with feedback, the student and his or her instructors discuss those comments and criticisms during classroom instruction later in the week. ECF No. 62-8 at ¶18. Furthermore, although it' is once again disputed how much this occurs, students also are apparently required to perform a certain number of massages on their instructors or licensed massage therapists during these clinics in order to receive additional feedback from a source “more knowledgeable than the general public” about massage therapy. ECF No. 62-8 at ¶16.

[1292]*1292Finally, one last disputed issue about defendants’ clinics that is relevant in this case is how much SEG supervises its programs.

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Related

Nesbitt v. FCNH, Inc.
908 F.3d 643 (Tenth Circuit, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
217 F. Supp. 3d 1288, 2016 U.S. Dist. LEXIS 157180, 2016 WL 6777827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nesbitt-v-fcnh-inc-cod-2016.