Cook v. Diana Hays & Options, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 29, 2006
Charles R. Fulbruge III
Clerk
No. 06-30856
Summary Calendar
WILHELMENA COOK,
Plaintiff-Appellant,
versus
DIANA HAYS AND OPTIONS, INC.
Defendants-Appellees,
ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,
Amicus Curiae.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-cv-03032
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant, Cook, appeals the district court’s grant
of a partial summary judgment in favor of defendant-appellees on
her Fair Labor Standards Act (“FLSA”) claim for overtime. Cook was
employed by Options, Inc., a non-profit corporation that provides
home health care, from 1998 to 2003 and received overtime pay until
July 21, 2000. Cook, though trained as a radiologist technician,
served as a full-time direct-care worker during her employ, wherein
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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she completed tasks set out in the comprehensive Plan of Care.
Accordingly, she performed the following tasks for clients:
provided simple physical therapy, prepared their meals, assisted
with their eating, baths, bed-making, and teeth brushing, completed
housework (accounting for less than 5 percent of her time), and
accompanied them on walks, to doctor visits, to Mass, and to the
grocery store.
Generally, the FLSA requires that an employee be compensated
at a rate of one and one-half times his regular pay for hours in
excess of forty in a single work week. However, certain employees
are exempted from coverage, including “. . . any employee employed
in domestic service employment to provide companionship services
for individuals who (because of age or infirmity) are unable to
care for themselves. . . .” 29 U.S.C. § 231(a)(15). 29 C.F.R. §
552.6 defines “companionship services,” excluding those that
require and are performed by trained personnel. At issue in this
appeal is whether Cook provided “companionship services” so as to
be exempted.
We find that Cook’s duties qualify as companionship services.
See e.g., Salyer v. Ohio Bureau of Workers’ Compensation, 83 F.3d
784 (6th Cir. 1996); Cox v. Acme Heath Services, Inc., 55 F.3d 1304(7th Cir. 1995); McCune v. Oregon Senior Services Div., 894 F.2d
1107 (9th Cir. 1990). Further, Cook is not a “trained
professional.” See id; see also Terwilliger v. Home of Hope, Inc.,
21 F.Supp.2d 1294 (N.D.Okla.1998). Accordingly, she is not covered
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by the FLSA and does not fit into the “trained personnel”
exception. Therefore, she is not entitled to overtime pay.
For the foregoing reasons, we AFFIRM.