Marcia Fazekas; Carole Leland ; Carol Pernell; Susan Shelko ; Rebecca Winfield v. the Cleveland Clinic Foundation Health Care Ventures, Inc.

12 Fazekas, et al. v. The Cleveland
Clinic Foundation
No. 99-3059
good faith in conformity with and in reliance on any written
administrative regulation, order, ruling, approval, or interpretation” of the
regulations by the Administrator of the Wage and Hour Division. See 29
U.S.C. § 259(a), (b)(1); 29 C.F.R. §§ 790.13, 790.19. Square D is typical
in its holding that an employer may not assert the defense based on the
opinion of a lower Wage and Hour Division official, in that case a
Regional Director, where both the statute and the regulations refer to
reliance on the Administrator’s writings. See Square D, 459 F.2d at 810-
11. Although plaintiffs here do not, of course, argue the affirmative
defense, in effect they seek to rely upon the internal memorandum as
persuasive evidence of the Department’s stance regarding home health
care nurses and the professional exemption. We note that the Department
itself does not join the plaintiffs, either as intervenor or as amicus, in
making this argument.
CONCLUSION
We conclude that the district court was correct in finding
that the defendant in this case adequately demonstrated that
the plaintiffs were engaged in a “bona fide . . . professional
capacity” pursuant to the Department of Labor regulations,
both because the plaintiffs’ duties required advanced
knowledge and discretion and because they were paid on a fee
basis, as that term has been interpreted by the Administrator
of the Department’s Wage and Hour Division. In other
circumstances, however, the work of nurses performing home
health care visits may indeed become merely “a series of jobs
which are repeated an indefinite number of times,” 29 C.F.R.
§ 313(b), and in such cases those nurses would not qualify for
the professional exemption.
The judgment of the district court is AFFIRMED.
*The Honorable William O. Bertelsman, United States District Judge
for the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0070P (6th Cir.)
File Name: 00a0070p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
M ARCIA FAZEKAS; C AROLE
LELAND ; C AROL P ERNELL;
S USAN S HELKO ; R EBECCA
W INFIELD ,
Plaintiffs-Appellants,
v.
THE C LEVELAND C LINIC
FOUNDATION HEALTH C ARE
VENTURES, INC.,
Defendant-Appellee.
;>

1
No. 99-3059
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 97-01394—Patricia A. Gaughan, District Judge.
Argued: December 15, 1999
Decided and Filed: February 25, 2000
Before: NELSON and DAUGHTREY, Circuit Judges;
BERTELSMAN, District Judge.*

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2 Fazekas, et al. v. The Cleveland
Clinic Foundation
No. 99-3059
_________________
COUNSEL
ARGUED: Morris L. Hawk, GOLDSTEIN & ROLOFF,
Cleveland, Ohio, for Appellants. Richard A. Millisor,
MILLISOR & NOBIL, Cleveland, Ohio, for Appellee.
ON BRIEF: Morris L. Hawk, David Roloff, GOLDSTEIN
& ROLOFF, Cleveland, Ohio, for Appellants. Richard A.
Millisor, MILLISOR & NOBIL, Cleveland, Ohio, Mary
Adele Springman, DAVID G. HILL & ASSOCIATES,
Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
plaintiffs in this action are registered nurses formerly
employed by the defendant, Cleveland Clinic Foundation
Health Care Ventures, Inc. They sued, alleging violation of
the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1994),
for failure to pay for overtime work, and they demanded back
pay, liquidated damages, and attorneys’ fees. The defendant
moved for summary judgment on the issue of its liability
under the Act, and the plaintiffs in turn filed a cross-motion
for summary judgment. The district court granted the
defendant’s motion and denied that of the plaintiffs. For the
reasons set out below, we affirm the judgment of the district
court granting summary judgment to the defendant.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs Marcia Fazekas, Carole Leland, Carole Pernell,
Susan Shelko, and Rebecca Winfield, registered nurses
formerly employed by the defendant, performed home health
care visits for patients in the Cleveland metropolitan area
during 1995 and 1996. These visits generally involved
treating patients for diagnosed medical conditions, designing
No. 99-3059 Fazekas, et al. v. The Cleveland
Clinic Foundation
11
nurses according to a ‘per visit’ arrangement.”
3These cases interpret § 10 of the Portal-to-Portal Act, 29 U.S.C.
§ 259 (1994), and accompanying regulations which provide an affirmative
defense to employers charged with violations of the minimum wage and
overtime pay provisions of the Fair Labor Standards Act if they relied “in
appears to us that the work performed during each home
health care visit, given the number of different circumstances
unique to each patient’s treatment plan as that patient
progresses, is closer to the work performed by a singer, who
may, after all, perform the same song or set of songs over and
over again during a series of performances, or that of an
illustrator, who may similarly repeat the same drawings or set
of drawings as necessary, than it is to the payments for
“piecework” described in the regulations as payments not on
a “fee basis.”
We acknowledge that the result we reach here is not
consistent with the 1998 opinion letters issued by Division
personnel as to the uniqueness of the work of home health
care nurses. Yet, these letters are themselves inconsistent, not
just with the 1992 letter but also with other, more recent
opinion letters tending to exempt registered nurses from the
Act’s overtime-pay provisions, given the duties that these
health care professionals often perform. See Opinion Letter,
Wage and Hour Division, United States Dep’t of Labor, 1999
WL 10002385 at *2 (1999); Opinion Letter, Wage and Hour
Division, United States Dep’t of Labor, 1999 WL1002374 at
*3-*4 (1999). We note the holdings of this court and of our
sister courts that the written opinions of the Administrator or
his deputies constitute the most reliable interpretations of the
Department’s regulations. See Hodgson v. Square D Co., 459
F.2d 805, 810-11 (6th Cir. 1972); see also Roy v. County of
Lexington, 141 F.3d 533, 543 (4th Cir. 1998); Reich v. IBP,
Inc., 38 F.3d 1123, 1126 (10th Cir. 1994); Bouchard v.
Regional Governing Bd. of Region V Mental Retardation
Servs., 939 F.2d 1323, 1328 (8th Cir. 1991); Cole v. Farm
Fresh Poultry, Inc., 824 F.2d 923, 926 (11th Cir. 1987).3

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10 Fazekas, et al. v. The Cleveland
Clinic Foundation
No. 99-3059
2Appellees in their brief before this court note that “[i]n the
Cleveland area, alone, nine out of twelve contacted Medicare certified
agencies who provide home health care services pay their registered
. . .
Q: Each patient visit, each treatment is unique?
A. Yes.
While the internal memorandum’s characterization of the
work that home care nurses perform as “a series of jobs which
are repeated an indefinite number of times” may correlate
with the professional activities of the licenced practical nurses
supervised by the plaintiffs, it does not appear to describe the
unique circumstances confronting the plaintiffs themselves
during each patient visit.
The plaintiffs focus attention on the observation in the
internal memorandum that the Department of Labor
regulations’ use of singers, artists, and illustrators as
examples of professionals compensated on a fee basis
suggests “that the character or nature of the job itself must be
unique, and not simply that the performance of the job vary
from day to day.” The memorandum recognizes that the use
of the examples in 29 C.F.R. § 541.313(d) was most likely
intended to illustrate how the adequacy of a fee payment must
be determined -- by calculating whether each fee payment is
at a rate which would, in the aggregate, amount to at least
$170 per week -- and that the regulations do not indicate that
only professions with some relation to artistic endeavors may
be compensated on a fee basis so as to qualify for the
exemption.
As the author of the 1994 internal memorandum observed,
the promulgators of the Department’s regulations, written in
1973, probably did not contemplate the home health care
industry and its per-visit means of compensating health care
providers, apparently the industry standard.2 Nevertheless, it
No. 99-3059 Fazekas, et al. v. The Cleveland
Clinic Foundation
3
health care protocols for individual patients, and educating the
patients and their families regarding participation in ongoing
treatment. The plaintiffs also supervised home health care
visits made by licenced practical nurses and kept
administrative records for all visits to patients under their
care.
The plaintiffs’ individual employment relationships with
the defendant were defined by signed employment
agreements. As set forth in each standard agreement, the
scheduling of a registered nurse’s home health care visits was
governed by the “25/15 Plan,” which required each nurse to
make at least 25 visits to patients and be on call at least 15
hours per week. Patients beginning a course of home health
care treatments would be screened initially by a Health Care
Ventures nursing supervisor, who would then assign each
patient to one of the registered nurses performing home visits.
Each nurse would then be responsible for developing an
initial treatment plan for her new patient and scheduling all
necessary home visits in accordance with that plan. Health
Care Ventures provided guidelines for the patients’ home visit
schedules, but the nurses themselves devised each patient’s
individual treatment plan and were responsible for subsequent
revisions in treatment protocols.
The nurses were compensated on a “per-visit” basis.
Pursuant to an attachment to the employment agreement, the
nurses received $30 for each home visit during periods when
they were not “on call”, and $32 per visit when “on call.”
The agreements were modified from time to time, so that
eventually the nurses also received $37 for each visit
involving any infusion therapy, and $50 for each initial
assessment of a new patient. These payments included
compensation for all attendant transportation and
administrative duties connected with the actual visits
themselves.
The “25/15 Plan” was apparently designed to approximate
a 40-hour work week. Nevertheless, the plaintiffs contended

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4 Fazekas, et al. v. The Cleveland
Clinic Foundation
No. 99-3059
that they regularly made more than 25 total visits per week
and generally documented between 50-80 hours per week of
work done in conjunction with these visits. Regardless of
whether the plaintiffs worked more than 40 hours during any
one week, they still received the standard per-visit fee for
each home visit.
The plaintiffs were all separated from employment with
Health Care Ventures on or about November 4, 1996. In
1997, they filed a complaint in federal district court alleging
that Health Care Ventures violated the Fair Labor Standards
Act by not paying them time-and-a-half for hours worked in
excess of 40 hours per week. In addressing the cross-motions
for summary judgment, the district court held that the
defendant had satisfactorily shown that the plaintiffs were
exempt from the overtime requirements of the Act because
they were “employed in a bona fide . . . professional capacity”
as that term has been construed by the Department of Labor.
The court thus granted the defendant’s summary judgment
motion, in an order that the plaintiffs now appeal.
DISCUSSION
Under the Fair Labor Standards Act, employers must pay
employees time-and-a-half for all hours worked over 40 hours
per week. See 29 U.S.C. § 207(a)(1). Persons employed in
a “bona fide . . . professional capacity,” however, are
exempted from the overtime pay requirements. 29 U.S.C.
§ 213(a)(1). The Act gives the Secretary of Labor the power
to determine which jobs qualify as bona fide professional
employment. See id. In general, however, the professional
exemption is to be narrowly construed to further Congress’s
goal of providing broad federal employment protection. See
Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211
(1959).
Labor Department regulations construing and enforcing the
Act outline several requirements for employment purported
to be “professional” in nature:
No. 99-3059 Fazekas, et al. v. The Cleveland
Clinic Foundation
9
Skidmore, 323 U.S. at 140.
The district court held that the 1992 written opinion of the
Acting Administrator, and not the 1994 internal
memorandum, represented the Department’s position on the
question at issue in this case. We agree with the district court
that the Acting Administrator’s 1992 opinion letter is a
controlling interpretation, that it is not inconsistent with the
language of the regulation nor plainly erroneous, and that it
therefore meets the tests of Auer and Skidmore as persuasive
legal authority in this case.
This result is supported by the plaintiffs’ undisputed
deposition testimony as to the uniqueness of each home health
care visit made while under the defendant’s employ. Each
plaintiff testified that she was required to evaluate her
patient’s medical conditions during her initial visit, devise a
treatment plan, and then make revisions to that plan as
necessary during subsequent visits. The plaintiffs estimated
that each patient might have as many as five distinct
conditions requiring uniquely coordinated care. Even similar
conditions may require different treatments depending on the
severity of the condition and, in the case of wounds or ulcers,
its location on the patient’s person. During the course of each
visit, a patient’s medical condition and corresponding
treatment could change. The patient’s family status,
educational level, and home environment all contribute to
making each visit distinct from all other visits, as does the
input from each patient’s treating physician. Given the
plaintiffs’ testimony that all these factors contribute to
making each patient’s course of treatment unique, it is
unsurprising that plaintiff Parnell testified that each visit was
indeed unique:
Q: So in light of all the above, you would agree,
wouldn’t you, that each patient treatment, each visit
really is unique from the other visit?
A: Yes, it is.

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8 Fazekas, et al. v. The Cleveland
Clinic Foundation
No. 99-3059
and assessments based on his or her skills in providing
patient care on each visit, such work is not unique in
character because unlike work performed by a singer,
artist, or illustrator, the work performed by the nurse is
generally repetitive and not original in character.
During the pendency of this appeal, the plaintiffs have
submitted two additional opinion letters, dated April 27,
1998, and November 9, 1998, and signed by a member of the
Division’s Office of Enforcement Policy Fair Labor Standards
Team. Both of these letters draw the same conclusion as the
1994 internal memorandum. However, as of the date of oral
argument in this case, the Administrator of the Wage and
Hour Division has not issued an opinion contrary to the
position taken by the Administrator in 1992, to the effect that
supervising nurses in a situation such as the one now before
us are exempt employees.
In deciding which of these opinions, issued by the Division
during different administrations, may help decide this case,
we note that not all opinion letters of an administrative agency
are worthy of deference by the courts. However, the Supreme
Court has indicated that an opinion of the Administrator of
the Wage and Hour Division of the Department of Labor has
persuasive value if the position of the Administrator is well-
considered and well-reasoned. In Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944), the Court noted:
We consider the rulings, interpretations and opinions of
the Administrator under the Fair Labor Standards Act,
while not controlling upon the courts by reason of their
authority, do constitute a body of experience and
informed judgment to which courts and litigants may
properly resort for guidance. The weight of such a
judgment in a particular case will depend upon the
thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier
pronouncements, and all those factors which give it
power to persuade, if lacking power to control.
No. 99-3059 Fazekas, et al. v. The Cleveland
Clinic Foundation
5
The term employee employed in a bona fide . . .
professional capacity shall mean any employee:
(a) Whose primary duty consists of the performance of
. . . [w]ork requiring knowledge of an advance type in a
field of science or learning customarily acquired by a
prolonged course of specialized intellectual instruction
and study . . . and
(b) Whose work requires the consistent exercise of
discretion and judgment in its performance; and
(c) Whose work is predominantly intellectual and varied
in character (as opposed to routine mental, manual,
mechanical, or physical work) and is of such character
that the output produced or the result accomplished
cannot be standardized in relation to a given period of
time; and . . .
(e) Who is compensated for services on a salary or fee
basis at a rate of not less than $170 per week . . . .
29 C.F.R. § 541.3 (1999). In a dispute over whether overtime
should have been paid, the employer bears the burden of
showing that the professional exemption applies to the
employees. See Corning Glass Works v. Brennan, 417 U.S.
188, 196-97 (1974); Michigan Ass’n of Governmental
Employees v. Michigan Dep’t of Corrections, 992 F.2d 82, 83
(6th Cir. 1993). In this case, the plaintiffs concede that their
work as registered nurses making home health care visits
required knowledge of an advanced type and the consistent
exercise of discretion and judgment and that it was
predominantly intellectual and varied in character. They
contest whether Health Care Ventures has shown that they
were paid on a “fee basis.”
According to the Department of Labor regulations, courts
should encounter “[l]ittle or no difficulty” in determining
whether a particular employment arrangement involves
payment on a fee basis:

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6 Fazekas, et al. v. The Cleveland
Clinic Foundation
No. 99-3059
1Section 541.313 continues, stating that the adequacy of a fee
payment to a professional employee will be determined by “whether the
payment is at a rate which would amount to at least $170 per week . . . if
40 hours were worked.” 29 C.F.R. § 541.313(c). The regulations then
offer examples of how the adequacy of fee payments may be calculated,
including scenarios featuring a singer receiving $50 for performing a
song, an artist receiving $100 for painting a picture, and an illustrator
receiving $150 for completing a pamphlet. See 29 C.F.R. § 541.313(d).
Such arrangements are characterized by the payment of
an agreed sum for a single job regardless of the time
required for its completion. These payments in a sense
resemble piecework payments with the important
distinction that generally speaking a fee payment is made
for the kind of job which is unique rather than for a series
of jobs which are repeated an indefinite number of times
and for which payment on an identical basis is made over
and over again.
29 C.F.R. § 541.313(b).1 In this case, the plaintiffs were paid
an agreed-upon sum for each visit regardless of the time spent
on each visit. The parties dispute, however, whether home
health care visits are “unique” and thus whether per-visit
payment for these visits can be considered payment on a fee
basis. Heeding the Supreme Court’s command that the
Secretary’s interpretation of Department of Labor regulations
is controlling unless “plainly erroneous or inconsistent with
the regulation,” Auer v. Robbins, 117 S. Ct. 905, 911 (1997)
(citations omitted), both parties present Department of Labor
documents that purportedly articulate the Department’s
official position regarding the uniqueness of each home health
care visit.
Health Care Ventures offers as evidence the June 1992
response of the Acting Administrator of the Wage and Hour
Division of the Department to a request for advice from
counsel for an employer operating a home health care service.
In its request for advice, the employer described a scenario in
which it paid registered nurses on a per-visit basis to provide
No. 99-3059 Fazekas, et al. v. The Cleveland
Clinic Foundation
7
health care services to clients in their homes. According to
the employer, “no employee will perform what is essentially
a single repetitive task . . . over and over. Each patient’s
needs and situation [would be] different, and would be
individually assessed and treated by the employee as the
employee deems necessary during each visit. The employees
must use independent, professional and largely unsupervised
judgment on a case-by-case basis.” In a written opinion letter,
the Acting Administrator agreed that these positions would
meet the exemption requirements of 29 C.F.R. § 541.3 and,
in particular, that the per-visit pay plan would qualify as
compensation on a fee basis within the meaning of 29 C.F.R.
§ 541.313.
In response, the plaintiffs offer an internal memorandum
dated October 1, 1994, from counsel for the Wage and Hour
Division in response to a request from the National
Association for Home Care for a formal opinion as to whether
per-visit compensation of a registered nurse making home
visits constitutes a fee basis of payment under the Department
of Labor regulations. In its letter, the Association argues that
each visit made by a registered nurse to a patient’s home is
necessarily unique. In the response, counsel for the
Department’s Wage and Hour Division disagreed,
concluding:
[W]e think that payment on a “per visit” basis is probably
not the type of fee payment arrangement contemplated by
the regulations. Section 541.313(d) refers to payment
methods made to singers, artists, and illustrator/writers to
demonstrate the adequacy of a fee payment, i.e., whether
the amount of payment meets the regulation’s
requirement that the rate of pay is “not less than $170 per
week to a professional employee”. The use of these
professional occupations to demonstrate this point
suggests to us that the character or nature of the job itself
must be unique, and not simply that the performance of
the job vary from day to day. While we recognize that
the nurse will necessarily make professional judgments

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