173 F.3d 35 (1st Cir. 1999), 98-1399, Valerio v. Putnam Associates Inc.

Docket Nº:98-1399.
Citation:173 F.3d 35
Party Name:(BNA) 389 Elaine VALERIO, Plaintiff, Appellant, v. PUTNAM ASSOCIATES INCORPORATED, Defendant, Appellee.
Case Date:April 09, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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173 F.3d 35 (1st Cir. 1999)

(BNA) 389

Elaine VALERIO, Plaintiff, Appellant,



No. 98-1399.

United States Court of Appeals, First Circuit

April 9, 1999

Heard Nov. 6, 1998.

Rehearing Denied May 6, 1999.

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[Copyrighted Material Omitted]

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Robert J. Gilbert with whom Jeffrey B. Renton and Gilbert & Renton, P.C. were on brief, for appellant.

William B. Koffel with whom Foley, Hoag & Eliot was on brief, for appellee.

Before SELYA, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Elaine Valerio appeals from the district court's grant of summary judgment in favor of Appellee Putnam Associates, Inc. ("Putnam"). Valerio sued Putnam under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("the FLSA"), and Massachusetts law, claiming that she was entitled to excess pay for overtime hours worked during her employment with Putnam, and that she was terminated in retaliation for requesting such pay. She now contends that the district court applied an incorrect measure in calculating her overtime pay and erred in ruling that her complaint to her supervisors was not protected activity. We affirm the district court's rulings regarding her claim for overtime pay and her claim for retaliation under Massachusetts law, but reverse the lower court's ruling as to her claim for retaliation under the FLSA.


In October, 1994, Valerio was hired by Putnam, a health-care consulting firm, for a "Receptionist/Administrative Assistant" position. Her duties included answering telephones, receiving packages, performing research from libraries and on-line databases, maintaining client files, and other miscellaneous tasks. Putnam told her at the time she was hired that the position was considered "exempt" under the FLSA and she therefore would not be entitled to overtime pay (the district court later determined that this classification was incorrect).

In June, 1995, as part of Putnam's normal employee review process, Valerio submitted a form entitled "Performance Review/Self Evaluation." She wrote that she hoped she would be "relieved of all receptionist duties and [would instead] concentrate on research and admin[istration]." Valerio's immediate supervisor, Office Manager Lisa Patterson, responded to Valerio's comments by telling her that the company did not anticipate relieving her from receptionist duties anytime soon. She also gave Valerio an oral evaluation of her performance, reminding her that she needed to be at the office at 8:30 a.m. to answer incoming phone calls.

Two months later, in August, 1995, Valerio began attending law school classes during the evenings. During the first week of that month, Patterson again met with Valerio to discuss her job performance and expressed concern with Valerio's punctuality. In order to determine whether her admonitions were effective, Patterson began keeping a written record of Valerio's daily arrival and departure

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times. She did not tell Valerio she was doing this.

On September 7, 1995, Patterson wrote a lengthy letter to Valerio which stated in part:

Punctuality. No matter what you believe as far as this job was described to you (i.e. you claim it was never expressly mentioned that this was a receptionist position) you were and are aware that answering the phone is part of the job. This means being here when the office officially opens at 8:30 a.m. and staying till it closes.

Patterson also stated that Valerio's recent enrollment in law school night classes suggested that she was not "serious about a career with Putnam."

On September 12, 1995, Valerio responded by letter. She wrote in part: I will repeat to you once again that I am not a receptionist. I am classified as an exempt, salaried employee and according to the Fair Labor Standards Act published by the Department of Labor, a receptionist, by the nature of the job, not the title, cannot be an exempt employee. If you insist on classifying me as a receptionist, then I demand under FLSA that I be reclassified as non-exempt and be paid for all overtime hours worked. My salary, offer letter and business cards all indicate that my position is Research Associate. Answering the phones is only one part of my job ... Additionally, I feel I must disclose to you that I am considering complaint options and have contacted the Department of Labor. I would also remind you that, "It is a violation of the Fair Labor and Standards Act (FLSA) to fire and in any manner discriminate against an employee for filing a complaint or participating in a legal proceeding under FLSA" and that "willfull violations of FLSA may be prosecuted criminally and the violator fined up to ten thousand dollars." ... If you retract your letter and abide by the terms of my employment agreement, I will walk away from these issues with our professional relationship intact. I will be diligent in my job performance (as my last raise attests) and hold no hard feelings. I would appreciate it if any further communications on this matter be in writing. 1

On September 19, 1995, Kevin Gorman, Putnam's CEO, terminated Valerio, stating that the introduction of a new network modem system had eliminated the need for a Research Associate. Gorman gave her a letter confirming her termination and a final paycheck that included $1,660.59, which the letter stated was "the equivalent of overtime pay which might be applicable under the Department of Labor FLSA Regulation 29 C.F.R. § 778.114." Gorman later testified under deposition that Valerio's deteriorating relationship with Patterson was the "straw that broke the camel's back."

Valerio then instituted the present action. The district court granted summary judgment in favor of Putnam, holding that, while Valerio was a non-exempt employee and thus entitled to overtime pay under the FLSA, Putnam's $1,660.59 severance payment was more than what was required by the applicable "half-time" overtime provisions. The lower court also dismissed her claims for retaliatory termination, ruling that her sending the September 12, 1995, letter to her supervisors did not constitute protected activity under the FLSA or Massachusetts law. Valerio appeals, challenging each of these rulings.


  1. The Overtime Pay Claim

    The parties do not contest the district court's conclusion that Valerio was entitled to overtime pay under the FLSA. They dispute only the amount.

    The FLSA's basic overtime provision states,

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    [e]xcept as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods in commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

    29 U.S.C. § 207(a)(1). The phrase "the regular rate at which [an employee] is employed" is not self-defining. See Martin v. Tango's Restaurant, Inc., 969 F.2d 1319, 1324 (1st Cir.1992). Rather, the Supreme Court "has glossed the governing language ... in the case of 'an employee working irregular hours for a fixed weekly wage' where the hours regularly exceeded 40 hours a week." Id. (quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 573-74, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942)). This gloss is reflected in the overtime compensation regulations, which provide two methods by which to calculate an employee's "regular rate" of pay. The first applies if the employee is paid a fixed weekly salary for a specific number of hours to be worked each week. 29 C.F.R. § 778.113(a) ("Section 113"). The second applies if the employee is paid a fixed weekly salary regardless of how many hours the employee may work in a given week. Id. at § 114(a) ("Section 114").

    By its own terms, Section 114 applies only if there is "a clear mutual understanding of the parties" that the fixed salary is compensation for however many hours the employee may work in a particular week, rather than for a fixed number of hours per week. In granting summary judgment for Putnam, the district court found that there was no genuine dispute that, at the time Valerio was hired, she knew that her weekly hours would fluctuate. Valerio argues that her deposition testimony suggests otherwise. We have read the testimony with care and disagree.

    We agree with the district court that, even viewed in a light most favorable to Valerio, the deposition testimony demonstrates that Valerio understood that her fixed weekly salary was to be compensation for potentially fluctuating weekly hours. She admits she was told that the hours were indefinite--"8:30 to whenever"--and that she understood that there "possibly" could be work days that would last longer than eight hours. She also understood, and accepted at the time, that Putnam did not intend to provide overtime pay if she worked more than 40 hours in a particular week. 2

    Additionally, the evidence of the parties' post-hiring conduct reinforces Putnam's contention that Valerio understood that her salary was to compensate her for fluctuating hours. During the first eleven months of her employment, Valerio routinely worked without complaint more than 40 hours per week without extra pay. See Mayhew v. Wells, 125 F.3d 216, 218 (4th Cir.1997) ("[T]he existence of [a 'clear mutual understanding'] may be based on the implied terms of one's employment agreement if it is clear from the employee's action that he or she understood the payment plan in spite of after-the-fact verbal contentions otherwise."); Zoltek v. Safelite Glass Corp., 884 F.Supp. 283, 286-87 (N.D.Ill.1995) (court inferred an "implied-in-fact agreement" that employee...

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