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Grant County Unified Community Resource Council, Inc. v. Pennington

Court of Appeals of Arkansas, Division I

March 1, 2017



          Rainwater, Holt & Sexton, P.A., by: Denise Reid Hoggard, for appellant.

          Sanford Law Firm, PLLC, by: Josh Sanford and Joshua West, for appellee.

          BART F. VIRDEN, Judge.

         Grant County Unified Community Resource Council (hereinafter "the shelter") appeals the order of the Grant County Circuit Court awarding summary judgment to Mary Pennington. The crux of this case is whether there was an express or implied agreement between the shelter and Pennington concerning the exclusion of bona fide meal and sleep hours from the computation of the hours she worked. We hold that the circuit court incorrectly awarded summary judgment because there are material facts in dispute concerning the existence of an agreement between the parties. Accordingly, we reverse and remand for a trial.

         I. Factual History

         On February 25, 2013, Pennington filed a complaint alleging that the shelter violated the overtime provisions of the Arkansas Minimum Wage Act (AMWA) by requiring her to work in excess of 40 hours per week but failing to pay her for the overtime hours. In her complaint, Pennington stated that she began working as an "advocate" at the shelter in February 2010 and that she was paid an hourly rate to complete intake forms, help new residents, do light cleaning, and answer the phone. Pennington asserted that her supervisor at the shelter controlled her work schedule and that her paycheck reflected that she worked 80 hours over a 2-week period. Pennington argued that during the 3 years she had worked at the shelter, she actually worked 96 and 128 hours in alternating 2-week periods. In her complaint, Pennington sought declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties, and costs including attorney's fees.

         On April 10, 2013, the shelter filed an answer to Pennington's complaint. The shelter responded that, under the AMWA, the hours for which Pennington sought compensation were not compensable. The shelter argued that the statute of limitations on her claim had run, that Pennington had failed to mitigate her damages, and that she had consented to the conduct. The shelter also asserted estoppel, unclean hands, release, waiver, laches, indemnification and "any other defenses or affirmative defenses contained in Ark. R. Civ. P. 8(c) and 12(h)." The shelter explained that "[p]laintiff agreed, either expressly or impliedly, to exclude bona fide meal and regularly scheduled sleeping periods, was provided adequate sleeping facilities, and thus, the hours alleged to have been work time, are excluded from compensation under the AMWA."

         On April 13, 2015, Pennington filed a motion for summary judgment. She argued that she was owed $60, 452.88 by the shelter because she was "engaged to wait" and thus, should have been compensated for all the hours she was scheduled to be at work, including time spent sleeping or eating. Pennington argued that, in her capacity as an advocate, she was required to be on call "24/7" to answer the crisis hotline. Pennington asserted that she was scheduled to work continuous day-and-night shifts that alternated weekly between 48-hour-shifts and 64-hour shifts, but she was never paid for working more than 40 hours.

         In her deposition, Pennington stated that she had been hired to work for the shelter in February 2010. She testified that she had spoken with her supervisor, Diana Riley, who explained to her that she would be answering the phone, taking care of the women residing in the shelter, and keeping her area tidy. Pennington stated that Riley told her that her shift would begin on Wednesdays at 8:00 a.m. and end on Friday afternoons at 4:00. Pennington testified that Riley also told her that she would be paid for working 40 hours. Pennington stated that when she worked the overnight shifts, she was provided with a place to sleep but that she "slept with one eye open" and that she was expected to wake up and answer all phone calls at any time of the day or night. Pennington testified that she had insomnia, and took half an Ambien to try to get some sleep during her overnight shifts. Pennington explained that in addition to calls to the hotline, she occasionally received telemarketer calls and personal calls for residents of the shelter, though generally not after 11:00 p.m. Pennington testified that she was not allowed to leave the premises or "do everything [she] wanted" during her shift.

In her deposition, Riley was questioned about the eight-hour sleep-time deduction:
Counsel: It was the policy of the GCUC prior to the filing of this lawsuit that no advocates were paid-that all advocates received an eight-hour sleep time deduction for overnight shifts, correct?
Riley: ...

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