Mace v. Windsor Hosp. Corp., No. 312-6-11 Wrcv (Hayes, J., Jan. 23, 2013)

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                                                   VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Windsor Unit                                                                                           Docket No. 312-6-11


Kara L. Mace
Plaintiff

v.

Windsor Hospital Corporation, d/b/a
Mt. Ascutney Hospital and Health Center
Defendant


                                        Decision on Motion for Summary Judgment

                                                           Factual Background

           Plaintiff Kara Mace worked for Defendant Windsor Hospital Corp. between 2005 and

2010. Her primary responsibility was to work as a registered orthopedic technician for one Dr.

Riley, and to complete certain administrative tasks. However, she also took on additional

responsibilities: in 2007, she began cleaning the office with her husband after hours for an

additional weekly payment, and in 2008, she began doing additional medical transcription work

for Dr. Riley outside of the office. Plaintiff left the employment of the hospital in 2010. Plaintiff

now sues the hospital for failing to pay wages earned (count one) and overtime wages (count

two) in violation the Vermont Employment Practices Act.

           Plaintiff’s cleaning job started when plaintiff’s supervisor asked if anyone could

recommend someone to clean the office. Plaintiff suggested that she and her husband could

clean the office as a separate job for a flat weekly fee. Defendant paid plaintiff for cleaning

work first through a separate business that plaintiff created for the purpose, and then through
plaintiff’s husband. Plaintiff cleaned the office with her husband outside of office hours and

without immediate supervision. Defendant provided plaintiff with cleaning supplies.

        Plaintiff began doing after-hours transcription work for Dr. Riley for an hourly fee of

eighteen dollars. Between 2008 and 2010, plaintiff completed the transcription work at her

house on her own hours. Dr. Riley provided plaintiff with a computer, which had additional

security protection for Mt. Ascutney Hospital, to complete the transcription work. Dr. Riley read

plaintiff’s transcription work product. The parties dispute the degree of control defendant

otherwise exercised over plaintiff’s transcription work. Plaintiff alleges that the defendant,

through the doctor as its agent, controlled all aspects of the work except plaintiff’s hours.

                                              Procedural History

        Defendant moved for summary judgment under V.R.C.P. 56 on October 1, 2012. Plaintiff

opposed the motion for summary judgment on November 5, 2012.1 Defendant responded to

plaintiff’s opposition on November 16, 2012. Defendant’s motion for summary judgment only

addresses plaintiff’s claim for overtime payments (count two). Accordingly, the court reserves

ruling on whether defendant would be entitled to summary judgment on the claim for wages

earned.

                                              Standard of Review

        The court will grant summary judgment if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3)

(2000). The court makes all reasonable inferences and resolves all doubts in favor of the non-

        1
           The court received Plaintiff’s response after the thirty-day window given by V.R.C.P. 56(c)(1) for
memoranda opposing motions for summary judgment. Even failure to respond to a summary judgment motion
does not entitle the moving party to automatic relief. Miller v. Merchants Bank, 138 Vt. 235, 237 (1980). The court
must still determine if the moving party is entitled to judgment as a matter of law. See id.

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moving party. Lamay v. State, 2012 VT 49, ¶ 6. Nevertheless, the non-moving party cannot rely

solely on the pleadings to rebut credible evidence. Boulton v. CLD Consulting Eng’rs, Inc., 2003

VT 72, ¶ 5, 175 Vt. 413. Parties opposing summary judgment cannot create a genuine issue of

material fact by contracting—by affidavit or other evidence—their own unambiguous

deposition testimony. Johnson v. Harwood, 2008 VT 4, ¶ 5, 183 Vt. 157.

                                           Discussion

       The issue here is whether plaintiff was acting as the defendant’s employee or as an

independent contractor while cleaning the office and working on transcription. In most cases,

employers must pay overtime rates to employees working more than forty hours in a work

week. 21 V.S.A. § 384(b). The statute provides a general definition of employee: “any

individual employed or permitted to work by an employer.” Id. § 383(2). The statute does not

define independent contractor.

       Traditionally, courts distinguished employees from independent contractors based on

“the right to control the work.” Crawford v. Lumbermen’s Mut. Cas. Co., 126 VT. 12, 17 (1966);

see also Hathaway v. Tucker, 2010 VT 114, ¶ 23, 189 Vt. 126 (applying the right to control test).

The “right to control” test involves consideration of whether “the party for whom the work is

being done may prescribe the result, means and the methods by which the other shall do the

work.” RLI Ins. Co. v. Agency of Transp, 171 Vt. 553, 554 (2000) (mem). If the answer to this

question does not provide a clear answer, the court may then look to other factors suggested

by the Restatement (Second) of Agency, § 220, including whether the worker supplies her own

tools and place of work, whether the method of payment is by time or by job, whether the

work is a regular part of an employer’s business, and the length of the employment. Id.


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Additional factors that may be relevant include whether the worker has contracts with third

parties, whether the worker and the party for whom work is being done have the ability to

terminate the relationship without liability, and how each characterizes the funds paid for the

services provided for tax purposes. Id. at 554-555.

       Here, even when the facts are viewed in the light most favorable to plaintiff, her work

cleaning the office did not fall within her employment at Mt. Ascutney. There is no indication

that defendant exercised any significant degree of control over plaintiff’s cleaning work.

Moreover, cleaning an office is ancillary to medical work; defendant did not directly pay

plaintiff; and plaintiff characterized her work as an independent business for tax purposes.

Although plaintiff did not clean other offices, the other factors mentioned above indicate that

she was an independent contractor while cleaning.

       Whether plaintiff’s transcription work fell within her employment at Mt. Ascutney is a

closer question. The parties dispute plaintiff’s degree of independence in performing this work.

Plaintiff completed the transcriptions outside of work hours without immediate oversight from

her supervisors, but her supervisor read the work product, and, in fact, transcription work is

central to the operation of a doctor’s office. Plaintiff did not contract with third-parties.

Plaintiff billed for the transcription work under her husband’s name. The undisputed facts fall

on both sides of the test as to this work, and the parties dispute the degree of control exercised

by defendant over plaintiff’s transcription work. Under these circumstances, the court must

draw reasonable inferences in favor of plaintiff, and conclude that there is a genuine issue for

trial as to whether plaintiff was an employee or an independent contractor while completing

transcription work. See Lamay, 2012 VT 49, ¶ 6.


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                                           Order

       Defendant’s motion for summary judgment is granted in part and denied in part.

Defendant’s motion for summary judgment on whether Plaintiff was an employee while

cleaning the office is granted. Defendant’s motion for summary judgment on whether plaintiff

was an employee while conducting transcription work is denied.



       Dated at Hartford, Vermont on January       , 2013.




                                                         Katherine A. Hayes
                                                         Superior Court Judge




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