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SANDT v. HOLDEN

March 9, 1988

Agnes Sandt, Plaintiff,
v.
Ann Holden and United Penn Bank, Defendants


Edwin M. Kosik, United States District Judge.


The opinion of the court was delivered by: KOSIK

EDWIN M. KOSIK, UNITED STATES DISTRICT JUDGE

 The plaintiff, Agnes Sandt, instituted this action on October 27, 1987 pursuant to the Fair Labor Standards Act ["FLSA"], 29 U.S.C. §§ 201, et seq. In this action, the plaintiff is seeking overtime wages and damages for wrongful termination of employment. The plaintiff was deposed on November 13, 1987 by the defendants. On January 29, 1988 the defendants filed a motion for summary judgment. The motion has been briefed by the parties and is ripe for disposition.

 The relevant facts of this case are as follows:

 On August 10, 1985, the plaintiff was hired by counsel for defendant Ann Holden to perform domestic and nursing services for Mrs. Holden. The services were required because of Mrs. Holden's age and infirmity. Mrs. Holden was 99 years old when the plaintiff's employment commenced. From August 10, 1985 until August 24, 1987, the plaintiff performed the stated services for Mrs. Holden. The plaintiff alleges that during this time period, she worked more than forty [40] hours per week for Mrs. Holden. However, she claims that she never received overtime pay. According to the plaintiff, on August 4, 1987, through her counsel, she made a demand for payment of overtime hours on counsel for defendant. Nevertheless, the plaintiff states that she was not paid for her overtime hours. On August 24, 1987, the plaintiff was notified that her services for Mrs. Holden were terminated. The plaintiff contends that she was wrongfully terminated from her employment because she made a request for overtime pay. The plaintiff further states that her August 27, 1987 demand for reinstatement of her services has not been honored. *fn1"

 In their motion for summary judgment, the defendants state that the plaintiff, according to her deposition, provided only companionship services for Mrs. Holden and that such services are exempt from the overtime provisions of the FLSA. The defendants also contend that the plaintiff has no cause of action for wrongful termination under the FLSA. Specifically, the defendants argue that the plaintiff has failed to establish that she was discharged for instituting a proceeding under the FLSA or for serving on an industry committee.

 With respect to Count I, the plaintiff maintains that although she performed some companionship functions for Mrs. Holden, based upon her practical experience she also performed actual care and quasi nursing supervision. The plaintiff also contends that her functions were of an attendant care service nature under Pennsylvania law. Insofar as Count II is concerned, the plaintiff states that she has set forth a cause of action for wrongful termination. Specifically, she states that on August 4, 1987 she demanded overtime compensation in accordance with the FLSA. Subsequently, her employment with Mrs. Holden was terminated. Thus, the plaintiff argues that her termination was in retaliation for her assertion of her rights under the FLSA.

 In their reply brief, the defendants state that the plaintiff's practical experience did not elevate her to the level of trained personnel. The defendants also state that under the Pennsylvania Attendant Care Services Act, 62 P. S. §§ 3051, et seq., which is relied upon by the plaintiff, the definition of attendant care services falls within the FLSA's definition of companionship services. Furthermore, the defendants state that even if the plaintiff was terminated for demanding overtime pay, she has still failed to state a cause of action for wrongful termination.

 Summary judgment is appropriate only when there is no genuine issue of material fact to be resolved. Fed. R. Civ. P. 56; Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982); Continental Ins. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. The entire record must be examined in light most favorable to the non-moving party. Continental Ins., supra. Additionally, the Supreme Court has recently ruled that Fed. R. Civ. P. 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552-2553, 91 L. Ed. 2d 265 (1986). The Court further stated that "Rule 56(e) . . . requires the non-moving party to go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. 106 S. Ct. at 2553.

 Section 207(l) of the FLSA, 29 U.S.C. § 207(l), provides that: "no employer shall employ an employee in domestic service in one or more households for a workweek longer than forty hours unless such employee receives compensation for such employment in accordance with subsection (a) of this section." Section 207(a)(l) of the FLSA, 29 U.S.C. § 207(a)(l), provides in relevant part that: "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

 Exemptions from coverage under § 7 of the FLSA exist and are specified in § 13 of the Act. Section 13(a)(15) of the FLSA, 29 U.S.C. § 213(a)(15), states that § 7 of the Act does not apply with respect to: "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary)." [Emphasis added].

 The term "companionship services" for the aged or infirm for purposes of § 13(a)(15) of the Act is defined in the federal regulations. Specifically, 29 C.F.R. § 552.6 defines ...


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