ATLANTA (LN) — An Eleventh Circuit panel on Thursday affirmed a mixed summary judgment ruling in a case arising from pandemic-era pay practices at an Alabama assisted living facility, upholding workers' recovery for hazard pay excluded from overtime calculations while rejecting a nursing assistant's family leave claims because she never told her employer how long she needed off.
Nyesha Swope, a certified nursing assistant at St. Martin's in the Pines, a retirement and assisted living facility operated by Episcopal Foundation of Jefferson County, sued the facility under the Fair Labor Standards Act and the Family and Medical Leave Act after it refused to let her shift to as-needed status to care for her mother following a kidney transplant.
The FLSA claims arose from St. Martin's pandemic pay structure, which layered several incentives on top of base wages: an extra $3 an hour for registered nurses, licensed practical nurses, and certified nursing assistants — and $2 an hour for caregivers — as general add-on pay during the pandemic; an additional $2 an hour for employees working in the facility's Covid-19 ward; a $100 weekend bonus for picking up unscheduled shifts; and two one-time retention bonuses paid in July and December 2020. St. Martin's payroll system calculated overtime using only base wages, leaving the premium pay out of the regular-rate calculation entirely.
After Swope filed suit, St. Martin's hired an accounting firm that confirmed the error. On September 2, 2022, the facility sent employees a letter acknowledging that its payroll system had failed to include certain incentives and premium pay in overtime rates. On September 12, 2022, counsel for St. Martin's sent a letter to Swope's counsel enclosing two checks — $1,124.30 payable to Swope and $1,249.65 payable to opt-in plaintiff Andrea Turner — representing what the facility said was the full amount owed. Swope and Turner never cashed them.
The panel, in an opinion by U.S. District Judge Federico A. Moreno of the Southern District of Florida, sitting by designation, affirmed summary judgment for Swope, Turner, and a third plaintiff, Kanesha McDole, on the hazard pay overtime claim, rejecting St. Martin's argument that the amounts were too trivial to litigate. The court held that the common-law de minimis doctrine cannot be imported into FLSA cases to extinguish claims for calculable wage shortfalls. Invoking the Supreme Court's reasoning in Sandifer v. U.S. Steel Corp., the panel held that the equitable trifles doctrine does not fit comfortably within the FLSA, which, as the Supreme Court observed, is a statute that can fairly be said to be all about trifles.
The retention bonuses were a different story. The panel affirmed summary judgment for St. Martin's on those claims because Swope's amended complaint never mentioned the one-time payments — only the hourly add-on and hazard pay. The court rejected Swope's argument that she had not realized the bonuses were categorized separately until discovery, noting that the complaint said nothing about the two retention bonuses and that raising them in motion practice does not amend a pleading.
Swope's lunch-break claim fared no better. She testified that she worked through unpaid meal breaks two or three times a week but acknowledged she was, in her words, really not sure of the frequency. The panel held that testimony was speculative and insufficient to establish the amount and extent of uncompensated work as a matter of just and reasonable inference, as required under the applicable standard.
The FMLA claims turned on a single letter. On August 23, 2021 — more than a month after her mother's planned kidney transplant — Swope submitted a note to St. Martin's stating: "I Nyesha Swope as of today 8/23/2021 I'm putting in my two weeks notice to go PRN. Thanks for the opportunity to work with you guys and I hope you all understand. Thanks in advance." At a meeting that same day she told human resources she wanted to take some time off to care for her mother. The panel held that because the surgery was planned, the need for leave was foreseeable, triggering a notice standard that required Swope to communicate the anticipated timing and duration of her absence. Saying she needed some time off did not satisfy that requirement, the court held, and both her interference and retaliation claims failed on that basis.
St. Martin's Corporate Compliance Officer had told Swope that the facility would have offered her FMLA leave if not for her resignation. That statement did not alter the outcome on appeal.
The nine opt-in plaintiffs who cashed St. Martin's September 2022 checks received no further recovery. McDole, who never received a check, remained in the case alongside Swope and Turner for the hazard pay judgment. The panel was completed by U.S. Circuit Judges Elizabeth Branch and Robin Luck.