Bertrand v. Children's Home, Civil No. AMD 05-2873.

• Decision Date: 17 May 2007
• Docket Number: Civil No. AMD 05-2873.
• Citation: 489 F.Supp.2d 516
• Parties: Frances Jean BERTRAND, Plaintiff v. The CHILDREN'S HOME, Defendant.
• Court: U.S. District Court — District of Maryland

Page 516

489 F.Supp.2d 516

Frances Jean BERTRAND, Plaintiff v. The CHILDREN'S HOME, Defendant.

Civil No. AMD 05-2873.

United States District Court, D. Maryland.

May 17, 2007.

Neil R. Lebowitz, Law Office of Neil R. Lebowitz LLC, Columbia, MD, for Plaintiff.

John M. Singleton, Jennifer L. Stair, Singleton Gendler and Terrasa, Owings Mills, MD, for Defendant.

MEMORANDUM OPINION and ORDER

DAVIS, District Judge.

Plaintiff, Frances Jean Bertrand, has brought two lawsuits against her former employer, The Children's Home, Inc. (TCH), a social services organization, arising out of her employment as a secretary. In this case, filed in 2005, she asserts a claim for violation of the overtime pay provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(2), and related Maryland wage laws, to recover unpaid overtime wages, liquidated damages, attorney's fees, and costs. In the recently-filed case, number AMD 07-504, she has asserted numerous discrimination claims. Now before the court is defendant's motion for summary judgment in the overtime pay case. The motion has been fully briefed and no hearing is needed. For the reasons set forth herein, I shall deny the motion for summary judgment and stay this case, pending the completion of discovery in respect to the newly-filed discrimination case, with an eye to trying both cases on a consolidated basis.

I.

Of course, the facts shall be viewed in the light most favorable to plaintiff as the nonmovant.

Plaintiff worked for TCH from 1982 until 2005, holding a variety of positions, all of which involved secretarial duties of one sort or another. When she began, plaintiff was a nonexempt "social services secretary." In 1985, plaintiffs title became "administrative secretary." Later, her title became "executive secretary;" during her tenure as "executive secretary" she worked as an assistant to the executive director and exercised some supervisory responsibility over one or more others.

Until 1992, defendant designated plaintiff as a non-exempt employee under the FLSA, and thus, indisputably, she was entitled to be paid overtime compensation. In 1992, TCH designated plaintiff as exempt under the FLSA and Maryland's wage laws, and thereafter, overtime compensation was not payable to plaintiff. At that time, Bertrand signed an employment agreement in which she acknowledged her exempt status. Plaintiff returned to a non-exempt status effective January 31, 2005.

In connection with her 1992 change in status, plaintiffs rate of pay, $11.1786 per hour, did not change. Nor did the change in status from non-exempt to exempt have a great impact on plaintiff because before 2001, plaintiff was a part-time employee. Plaintiff became a full-time employee after Andre Cooper became CEO in 2002.

Plaintiff claims that, in 2002, she began working overtime hours. Upon inquiring about her exempt status, plaintiff was told she was exempt because she "supervised the receptionist." Plaintiff asserts that she did not have this supervisory role, which she says was a minor part of her duties in any event, until more than eight years after the company first designated her as exempt: there was no receptionist position until then.

Defendant's policy does not require exempt employees to record daily hours worked but only whether they were present on a particular day, recording eight hours regardless of the actual hours worked. Plaintiff adhered to this policy; thus, she has no detailed accounting of her actual hours after 1992. Non-exempt employees were required to use an automated time and attendance system to register in at the beginning of their shift and out at the close of their shift.

Plaintiffs employment formally terminated on June 1, 2005. On October 21, 2005, plaintiff brought this action, seeking unpaid overtime for the period October 21, 2002, to January 29, 2005.

II.

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material for purposes of summary judgment, if, when applied to the substantive law, it affects the outcome of the litigation. Id. at 248, 106 S.Ct. 2505. Summary judgment is also appropriate when a party "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Laura Campbell Trust v. John Hancock Life Ins. Co., 411 F.Supp.2d 606, 609 (D.Md.2006).

A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). The facts, as well as the justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court, however, cannot rely upon unsupported speculation and it has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987).

III.

Defendants in FLSA cases have the burden to "prove by clear and convincing evidence that an employee qualifies for exemption." Shockley v. City of Newport News, 997 F.2d 18, 21 (4th Cir.1993). In making this showing, "[t]he employer has the burden of establishing by affirmative evidence all the necessary requirements of the exemption." Dalheim v. KDFW-TV, 706 F.Supp. 493, 501 (N.D.Tex.1988), aff'd, 918 F.2d 1220 (5th Cir.1990); Clark v. J.M. Benson Co., 789 F.2d 282, 285-86 (4th Cir.1986). Exemptions from the FLSA's overtime pay requirements are "narrowly construed." Walton v. Greenbrier Ford, Inc., 370 F.3d 446, 450 (4th Cir.2004)(citing Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)); Shockley, 997 F.2d at 24 ("Courts construe exemptions to the FLSA narrowly `in order to further Congress' goal of providing broad federal employee protection.'" (citation omitted)).

Defendant contends that plaintiff's status as an exempt employee is consonant with the requirements established in controlling federal regulations, see 29 C.F.R. 541.200(a), et seq., and that I should so conclude as a matter of law. Plaintiff argues, to the contrary, that drawing all reasonable inferences in her favor as the non-movant, and bearing in mind defendant's burden of proof ("clear and convincing evidence"), defendant has failed to establish her exempt status as a matter of law. In particular, plaintiff argues that she did not work in an administrative capacity as contemplated under the FLSA, but that her work was essentially the same as the other, admittedly non-exempt, secretaries working for TCH. I agree with plaintiff that this issue is properly a jury question.

"Department of Labor regulations define what constitutes employment in an executive or administrative capacity." Shockley, 997 F.2d at 21. Under the regulations, to show that an employee is exempt as an administrative employee, an employer must show that its employee is one who is "(1) Compensated on a salary or fee basis at a rate of not less than $ 455 per week..., exclusive of board, lodging or other facilities; (2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200(a).

Plaintiff concedes that defendant has satisfied the first element of its affirmative defense. The dispute here is over the final two elements of the affirmative defense. As to the second element, although it is clear that Bertrand's work was non-manual, office work, the issue presented is whether it was "directly related to the management or general business operations" of TCH. To meet this standard, defendant must show that plaintiff engaged in activities such as "running the business itself or determining its overall course," not just in the "day to day carrying out" of business affairs. Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1125 (9th Cir.2002) (citation omitted). The Fourth Circuit has observed "that bookkeepers secretaries, and clerks of various kinds hold the run-of-the-mine positions in any ordinary business and are not performing work directly related to management policies or general business operations." Clark, 789 F.2d at 286-87 (quoting 29 C.F.R. § 541.205(c)(1)). The regulations emphasize the type of work, rather than any label or job title.

Here, although particular items of evidence in the record concerning Bertrand's duties support one or the other of the parties' arguments, a reasonable jury could easily conclude that Bertrand's work was essentially and predominantly clerical in nature, and not administrative or managerial. Indeed, Bertrand's former boss described her duties, in part, as ...