MEMORANDUM OPINION and ORDER

T. MICHAEL PUTNAM, Magistrate Judge.

This matter is before the court on the Defendants' Motion for Summary Judgment. (Doc. 8).1 The defendant, Northwest Alabama Treatment Center, Inc. ("NWATC"), filed its motion on September 22, 2017, seeking to dismiss the plaintiff's complaint in its entirety. Under the Consolidated Omnibus Budget Reconciliation Act of 1984 ("COBRA"), 29 U.S.C. §§ 1161-1169 (2017), the defendant argues that the small employer exception bars the plaintiff's claim because NWATC does not employ more than twenty full-time employees. 19 U.S.C. § 1161(b). The motion has been fully briefed, and the parties have consented to dispositive jurisdiction by a United States Magistrate Judge in accordance with 28 U.S.C. § 636(c). (Doc. 16).

I. SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56(a), summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed. R. Civ. P. 56(c)). The movant can meet this burden by presenting evidence showing there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-23. There is no requirement, however, "that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323.

Once the moving party has met its burden, Rule 56 "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions of file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting former Fed. R. Civ. P. 56(e)). The nonmoving party need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings. Celotex, 477 U.S. at 324. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

After the plaintiff has properly responded to a proper motion for summary judgment, the court "shall" grant the motion if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The substantive law will identify which facts are material and which are irrelevant. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. His guide is the same standard necessary to direct a verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52; see also Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n. 11 (1983).

However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The evidence supporting a claim must be "substantial," Marcus v. St. Paul Fire and Marine Ins. Co., 651 F.2d 379 (5th Cir., Unit B, 1981); a mere scintilla of evidence is not enough to create a genuine issue of fact. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004); Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249-50 (11th Cir. 2004). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989). Furthermore, the court must "view the evidence presented through the prism of the substantive evidentiary burden," so there must be sufficient evidence on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 254; Cottle v. Storer Communications, Inc., 849 F.2d 570, 575 (11th Cir. 1988). Nevertheless, credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury, and therefore the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The non-movant need not be given the benefit of every inference but only of every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir. 1988).

II. FACTS

Viewing the facts favorably to the non-moving plaintiff, the following appear be undisputed. The plaintiff, Robert White, opened NWATC in 1993 and, at the time of his termination, served as the President and Program Sponsor. Part of his duties included the power to employ, manage, and terminate personnel. On February 18, 2017, NWATC terminated White's employment, but White "was not terminated for gross misconduct." (Doc. 1, ¶ 19). NWATC maintained a group health plan that insured both White and his wife. However, NWATC did not notify White or his wife of their rights to continue coverage under COBRA following his termination.

According to White, NWATC employed both full-time and part-time employees. He states by affidavit that:

(Doc. 23-1 at 3, ¶ 6).2 Under the Personal Time Off ("PTO") policy, NWATC treats full-time employees differently than part-time employees. Part-time employees who work between "at least 20 hours but less than 32 hours per week" qualify for PTO if certain requirements are met. (Doc. 23-1 at 8). Furthermore, on the PTO policy provided by the defendant to White, a handwritten notation states that an employee by the name of "David [wa]s working full-time" at some point in 2016. (Doc. 23-1 at 8).3 Additionally, White identifies at least twenty employees who were employed full-time during at least part of the 2016 calendar year.

III. DISCUSSION

Under COBRA, employers that sponsor a group health plan must allow "each qualified beneficiary who would lose coverage under the plan as a result of a qualifying event . . . to elect, within the election period, continuation coverage under the plan." 29 U.S.C. § 1161(a). After a qualifying event occurs, the plan's administrator must notify the qualified beneficiary of the beneficiary's right to elect continuation coverage. § 1166(a)(4). However, § 1161(a) does not "apply to any group health plan for any calendar year if all employers maintaining such plan normally employed fewer than 20 employees on a typical business day during the preceding calendar year." § 1161(b).

Although the Eleventh Circuit has not authoritatively adopted a test to determine when an employer employs more than 20 employees on "a typical business day," the Northern District of Georgia has adopted the Department of Treasury's regulation to make that determination. See, e.g., Giddens v. University Yacht Club, Inc., No. Civ.A. 2:05-cv-19-WC, 2006 WL 508056, at *3-7 (N.D. Ga. March 1, 2006). The Treasury Department's regulation ("Regulation 54") states as follows:

26 C.F.R. § 54.4980B-2.

In this case, a genuine issues of material fact exists concerning NWATC's employment practices (namely, how many hours an employee must work to be considered a full-time employee of NWATC) and whether NWATC employed more than 20 full-time employees during at least half of its pay periods. 26 C.F.R. § 54.4980B-2. NWATC's employment practice is not entirely clear to the court because the evidence cuts both ways. However, the evidence in the record, when viewed in a light most favorable to White, does not support NWATC's assertions that it required employees to work 40 hours per week to be considered full-time employees or that it employed fewer than 20 full-time employees more than half of its pay periods.

First, NWATC alleges that "employees must work at least 40 hours per week in order to be considered a full-time employee[,]" (Doc. 9-1 at 3, ¶ 8). Additionally, NWATC has alleged numerous times, in its papers and during oral argument, that it does not employ any full-time employees. However, the evidence does not support these broad assertions. NWATC admits that none of its employees work 40 hours per week. (Doc. 9-1 at 3, ¶¶ 8, 9; see also doc. 9-1 at 6-7). In fact, NWATC asserts that none of its salaried employees worked more than 28 hours per week. (Doc. 9-1 at 3, ¶ 10). In his affidavit, plaintiff White asserts:

(Doc. 23-1 at 3, ¶ 6). Furthermore, White has identified twenty-one employees who were considered full-time employees based upon his personal knowledge as the former President and Program Sponsor of NWATC. While White himself does not count as an employee for the purposes of the Regulation 54 formula, White additionally identified himself as a former full-time employee of NWATC. Importantly, on a document produced by NWATC to White,4 which contains NWATC's PTO policy, a handwritten notation appears: "David is working full-time. . . 10/07/16." (Doc. 23-1 at 8).

Clearly evidence exists suggesting that NWATC employed full-time employees, who worked fewer than 40 hours per week. All of the individuals identified by White in his affidavit worked fewer than 40 hours per week yet were considered full-time employees.5 Even disregarding the individuals identified by White and despite NWATC's contention that the existence of one full-time employee ("David") does not create a genuine issue of material fact (doc. 24 at 4-5), the fact that NWATC employed at least one full-time employee undercuts its assertion that "employees must work at least 40 hours per week in order to be considered a full-time employee." (Doc. 9-1 at 3, ¶ 8). Although it is not clear who "David" is, by examining the defendant's original Regulation 54 chart (doc. 9-1) for any individual with the given name of David or any individual with the initial "D.," it is clear to the court that none of these individuals worked at least 40 hours per week. NWATC did not employ an individual with the given name of David. Individuals with the initial "D." include: Carlos D. Richardson, who worked 60.67 hours per semi-monthly pay period6 as a salaried employee (doc. 9-1 at 6-7, 8); Paul D. Sanford, who worked fewer than 40 hours per week as an hourly employee (doc. 9-1 at 6-7); Quiawanna D. Dallas, who worked fewer than 40 hours per week as an hourly employee (doc. 9-1 at 6-7); and Ryan D. Scott, who worked fewer than 40 hours per week as an hourly employee (doc. 9-1 at 6-7).7 The existence of a full-time employee named "David", who was either Carlos D. Richardson, Paul D. Sanford, Quiawanna D. Dallas, or Ryan D. Scott, undercuts NWATC's assertion that "employees must work at least 40 hours per week in order to be considered a full-time employee." (Doc. 9-1 at 3, ¶ 8). Because "David," a full-time employee, necessarily had to work less than 40 hours per week, NWATC did not require employees to work 40 hours per week to be considered full-time employees.

NWATC has not produced evidence of any full-time employees working 40 hours per week, and this allows the court to infer that full-time employees (including "David") worked fewer than 40 hours per week. At this stage, on a summary judgment motion, NWATC possessed the burden of producing evidence demonstrating that the following fact was not in dispute: that "employees must work at least 40 hours per week in order to be considered a full-time employee." (Doc. 9-1 at 3, ¶ 8). Here, NWATC cannot rely on an absence of evidence to meet its burden when some evidence in the record suggests that NWATC hired full-time employees who worked less than 40 hours per week.

Second, in the PTO policy produced by the defendant, NWATC draws a distinction between part-time and full-time employees for the purpose of qualifying for and accruing PTO. (Doc. 23-1 at 8). Full-time employees are eligible to accrue PTO without qualification, and full-time employees accrue the maximum amount of PTO. (Doc. 23-1 at 8). Part-time employees are eligible to accrue PTO only if they are "regularly scheduled to work an average of at least 20 but less than 32 hours per week[,]" and part-time employees accrue "half the maximum time . . . ." (Doc. 23-1 at 8). A reasonable inference from the PTO policy indicates that employees who work more than 32 hours per week are considered full-time employees. However, it is not clear to the court whether an employee must work greater than 32 hours per week to qualify for full-time PTO benefits; it is conceivable, given White's testimony the an employee's full-time status turned on whether he was salaried or not, that an employee may be considered full-time despite working less than 32 hours per week. Nonetheless, the PTO policy appears to be the strongest evidence of NWATC's employment practice8 and persuasively undercuts NWATC's assertion that "employees must work at least 40 hours per week in order to be considered a full-time employee." (Doc. 9-1 at 3, ¶ 8).

Finally, the payroll records relied upon by NWATC fail to affirmatively demonstrate NWATC's employment practice. The payroll records themselves do not denote who is considered a full-time or a part-time employee; however, the payroll records do denote who is considered an hourly or salaried employee. NWATC contends that it does not consider salaried employees "to be full-time employees because they do not work 40 hours per week." (Doc. 9-1 at 3, ¶ 11). Conversely, White testified by affidavit that "[m]ost full-time employees were salaried while part-time employees were paid hourly[,]" but ultimately, he contends that "[t]he position or job classification of the employee often determined whether the employee was considered full-time or part-time." (Doc. 23-1 at 3, ¶ 6). On this point, the parties dispute the classification of salaried employees. Therefore, the court must view this dispute in a light most favorable to White, the non-movant: "[m]ost full-time employees were salaried while part-time employees were paid hourly." (Doc. 23-1 at 3, ¶ 6). Any employee who was denoted as salaried on the payroll records likely was considered to be a full-time employee under NWATC's practice.

Thus, NWATC has not shown that it is undisputed that its employment practice requires an employee to work 40 hours per week in order to be considered a full-time employee. 26 C.F.R. § 54.4980B-2. Because a genuine issue of material fact exists as to NWATC's employment practice, the denominator used by NWATC in calculating the fractional amount of a part-time employee pursuant to Regulation 54 is incorrect and, at this point, unknown. Without knowing the number of hours required to be considered a full-time employee (i.e., without plugging the correct denominator into the Regulation 54 formula), neither NWATC nor the court can determine the number of full-time employees employed by NWATC when using the Regulation 54 formula.9 Therefore, the court cannot determine, as a matter of law, that NWATC has met its summary judgment burden in proving its employment practice or that NWATC "employed fewer than 20 employees on a typical business day" to warrant judgment as a matter of law. 29 U.S.C. § 1161(b). Two fact questions remain: (1) what is NWATC's employment practice with respect to classifying full-time and part-time employees and (2) how many full-time employees did NWATC employ during each pay period in 2016.

IV. CONCLUSION

Accordingly, because the court cannot decide NWATC's employment practice as a matter of law at this time, the motion for summary judgment (doc. 8) is DENIED WITHOUT PREJUDICE.

The defendant is DIRECTED to file an answer to the complaint within fourteen (14) days.