Jennifer Quintiliani v. Concentric Healthcare Solution , 672 F. App'x 643 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 01 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIFER QUINTILIANI, individually No. 14-17312
and on behalf of all others similarly
situated, D.C. No. 2:10-cv-01363-SMM
Plaintiff-Appellant,
MEMORANDUM*
v.
CONCENTRIC HEALTHCARE
SOLUTIONS, LLC and ALARYS HOME
HEALTH, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted October 20, 2016
San Francisco, California
Before: BEA and IKUTA, Circuit Judges, and RESTANI,** Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
Jennifer Quintiliani appeals the district court’s order denying her motion for
summary judgment and its determination that her claims failed as a matter of law
because her position as a Staffing Coordinator with Concentric Healthcare
Solutions, LLC1 was exempt from overtime pay under the Fair Labor Standards
Act (“FLSA”)’s administrative exemption. We reverse and remand.
To meet the administrative exemption, an employee must meet the following
criteria: (1) be “[c]ompensated on a salary or fee basis at a rate of not less than
$455 per week”; (2) “[w]hose primary duty is the performance of office or
non-manual work directly related to the management or general business
operations of the employer or the employer’s customers”; and (3) “[w]hose
primary duty includes the exercise of discretion and independent judgment with
respect to matters of significance.” 29 C.F.R. § 541.200.
The district court held, as a matter of law, that Quintiliani exercised
discretion and independent judgment on matters of significance in her primary
duties. The district court based this holding on its findings that the Staffing
1
During her employment with Concentric Healthcare Solutions, Quintiliani
occasionally provided staffing coordinator services to Concentric Home Health
(which later became Alarys Home Health, Inc.). Concentric Healthcare Solutions
and Alarys (collectively referred to as “Concentric”) shared ownership,
management, human resource and payroll administration, and office space during
the relevant time period.
2
Coordinator had the authority to discipline staff who did not comply with a client’s
policies or procedures, designate staff as Do Not Return (“DNR”), and “approve
higher rates of pay where appropriate to ensure the placement of the most capable
nurses with Concentric’s clients.” The district court relied on Andrew Jacobs’s
deposition and declaration in making these findings. In addition, the district court
asserted that Quintiliani “[did] not dispute that the Staffing Coordinator has the
authority to approve higher rates of pay for certain nurses.”
The district court erred in holding that there was no genuine issue of material
fact regarding Quintiliani’s ability to discipline nurses. First, the district court
ignored Quintiliani’s testimony (cited in her statement of facts in support of her
motion for partial summary judgment) that directly contradicts Jacobs’s declaration
and deposition. In her declaration, Quintiliani declared: “I did not discipline,
review or recommend promotions for the nurses and healthcare workers I staffed. .
. . If I was contacted with a complaint or problem I was instructed to contact
Director of Medical Staffing Jacobs and inform [him] of the issue and seek his
direction on how to proceed.” Moreover, Quintiliani testified: “If a client was
unhappy with a specific nurse or healthcare professional staffed with them,
someone from the client facility, typically the Director of Nursing, would contact
Director of Medical Staffing Jacobs and discuss the situation with him. . . . All
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decisions related to DNRs were handled directly by Mr. Jacobs. My opinion
regarding a DNR designation was never solicited by Mr. Jacobs.” Quintiliani also
testified: “It was the policy of Concentric to not officially fire any nurse or
healthcare professional because of regulatory and paperwork issues. If a nurse
needed to be ‘fired’ because of multiple DNRs, failing to show up at assignments,
reports of performance issues by the client facility, etc., that nurse was effectively
fired by Director of Medical Staffing Jacobs directing that they no longer be
staffed. . . . All such decisions related to not staffing an individual were made
directly by Mr. Jacobs. My opinion regarding a do not staff decision was never
solicited by Mr. Jacobs.” Second, Quintiliani also submitted testimony from
Jessica Carpenter (who also worked as a Staffing Coordinator during part of her
employment with Concentric) confirming that Quintiliani’s description of the
Staffing Coordinator’s job responsibilities was accurate.
In addition, Quintiliani pointed to Jacobs’s deposition, in which he testified
that the Staffing Coordinator did not have the authority to discipline staff. Rather,
the Staffing Coordinator’s authority was limited to counseling staff by relaying
complaints from the clients to staff.2
2
There was no dispute that the Staffing Coordinator provides counseling to
staff.
4
The district court also erred in holding there was no genuine issue of
material fact regarding Quintiliani’s authority to set pay rates.3 The district court’s
assertion that Quintiliani “[did] not dispute that the Staffing Coordinator has the
authority to approve higher rates of pay for certain nurses,” glosses over a genuine
dispute between the parties as to the level of discretion that Quintiliani had to
approve higher rates of pay within Defendants’ already established billing rates. In
her reply in support of her motion for partial summary judgment, Quintiliani
argues: “Defendants also allege Plaintiffs approved higher rates of pay for certain
nurses. Not only have Defendants admitted elsewhere Plaintiffs could not
negotiate on behalf of the company, Defendants also admitted in Jacobs’
deposition that the Recruiters actually set rates of pay and that Staffing
Coordinators only have latitude to offer higher pay rates within Defendants’
already established bill rates.” (citations omitted). Because the record does not
indicate the extent of this “latitude to offer higher pay rates,” there is a genuine
3
Quintiliani also argues that the district court erred in holding there was no
genuine issue of material fact as to whether Quintiliani had authority to recruit staff
because she testified that she did not have such authority. However, her statements
regarding her level of participation in recruitment are inconsistent in the record.
These inconsistencies do not themselves create a genuine issue of material fact.
Radobenko v. Automated Equip. Corp., 520 F.2d 540, 543–44 (9th Cir. 1975).
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issue of material fact that must be resolved to determine whether the discretion
requirement is met.
Accordingly, triable issues of fact exist as to whether Quintiliani exercised
discretion by disciplining and setting pay rates for staff. Judgment in favor of
Concentric is reversed and this case is remanded for a trial on the third prong of the
administrative exemption (29 C.F.R. § 541.200(a)(3)).
REVERSED AND REMANDED.
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