Debejian v. Atlantic Testing Laboratories, Ltd.

• Decision Date: 27 August 1999
• Docket Number: No. 98-CV-1752.,98-CV-1752.
• Citation: 64 F.Supp.2d 85
• Parties: Duane A. DEBEJIAN, Plaintiff, v. ATLANTIC TESTING LABORATORIES, LIMITED, Defendant.
• Court: U.S. District Court — Northern District of New York

Page 85

64 F.Supp.2d 85

Duane A. DEBEJIAN, Plaintiff, v. ATLANTIC TESTING LABORATORIES, LIMITED, Defendant.

No. 98-CV-1752.

United States District Court, N.D. New York.

August 27, 1999.

Satter, Andrews Law Firm, Syracuse, NY, for plaintiff, Ross P. Andrews, of counsel.

Menter, Rudin Law Firm, Syracuse, NY, for defendant, Robert Silkey, of counsel.

MEMORANDUM — DECISION & ORDER

McAVOY, Chief Judge.

Plaintiff Duane A. DeBejian commenced the instant litigation against Defendant Atlantic Testing Laboratories, Ltd. ("ATL") pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), as amended, 29 U.S.C. § 201, et. seq. claiming that he did not receive overtime compensation (that is, for those hours worked in excess of forty per week). Presently before the Court is plaintiff's motion for partial summary judgment pursuant to FED.R.CIV.P. 56, seeking a determination that: (1) ATL is liable under the FSLA; (2) plaintiff is entitled to liquidated damages; and (3) the FLSA's statute of limitations should be extended from two to three years.

I. BACKGROUND

Because plaintiff has moved for summary judgment, the following facts are presented in the light most favorable to defendant. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999).

Plaintiff was hired by ATL on or about December 5, 1995 as a Non-Destructive Testing Technician ("NDT Tech") at a salary of $442.31 per week. Non-destructive testing involves the on-site inspection and testing of steel to determine whether it conforms to industry and/or project standards. An NDT Tech travels to the testing site and employs various tools to test the steel. The NDT Tech then compares the results of his tests to industry or project standards. Finally, the NDT Tech prepares a report outlining the results of the testing.

To qualify as an NDT Tech, one needs a high school diploma, or its equivalent, with specific NDT training. Although ATL preferred individuals with a two-year degree, it would accept persons with a high school education who also had experience.

On October 8, 1997, plaintiff was promoted to the position of Non-Destructive Testing Assistant Project Manager ("Assistant Project Manager"), and his salary was increased to $490.39 per week. The qualification for this position was experience as an NDT Tech. In fact, the majority of plaintiff's time as an Assistant Project Manager was spent performing the same tasks he did as an NDT Tech. However, as an Assistant Project Manager, plaintiff had additional responsibilities including "project management and technical supervision ... scheduling responsibilities for [his] projects and ... time ... [and] project financial management." Pl. Ex. G. According to ATL, plaintiff also was responsible for marketing and project profitability and would review contract specifications, job specifications and assist in hiring.

Plaintiff alleges in his Complaint that he was a nonexempt employee and was denied overtime compensation due to him.

Presently before the Court is plaintiff's motion pursuant to FED.R.CIV.P. 56 seeking judgment as a matter of law that: (1) ATL violated the FLSA; (2) plaintiff is entitled to liquidated damages; and (3) a three-year statute of limitations applies.

II. DISCUSSION

A. Summary Judgment Standard

The standard for summary judgment is well-settled and need not be restated here. This Court has set forth the appropriate standard to be applied in numerous published decisions, see Roman v. Cornell Univ., 53 F.Supp.2d 223, 232 (N.D.N.Y. 1999); Phipps v. New York State Dep't of Labor, 53 F.Supp.2d 551, 556 (N.D.N.Y. 1999); Riley v. Town of Bethlehem, 44 F.Supp.2d 451, 458 (N.D.N.Y.1999), and will apply the same standards discussed in those cases to plaintiff's motion for partial summary judgment.

B. Whether Plaintiff is an Exempt Employee¹

The crux of this case focuses on the applicability of 29 U.S.C. § 207 and the exceptions found at 29 U.S.C. § 213(a)(1) for "employees employed in a bona fide executive, administrative, or professional capacity."

Pursuant to § 207:

no employer shall employ any of his employees ... 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.

As noted, however, § 207 is inapplicable to "any employee employed in a bona fide executive, administrative, or professional capacity ... as such terms are defined and delimited ... by regulations of the Secretary [of Labor]." 29 U.S.C. § 213(a)(1). Whether an exception applies to the FLSA is an affirmative defense on which the employer has the burden of proof. See Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Freeman v. National Broad. Co., Inc., 80 F.3d 78, 82 (2d Cir.1996). The exemptions are narrowly construed and the employer must show that the employee fits "plainly and unmistakenly within [the exception's] terms." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960). An employee qualifies for such an exemption if the he satisfies a "duties" test and is paid on a "salary basis." See 29 C.F.R. §§ 541.1 (Executive); 541.2 (Administrative); 541.3 (Professional); see also Kelly v. City of Mount Vernon, 162 F.3d 765, 766 (2d Cir. 1998).

Here, ATL contends that plaintiff qualifies as a bona fide professional.² Because plaintiff earned in excess of $250.00 per week, to prove that plaintiff falls within this exception, ATL must prove: (1) that plaintiff was compensated on a salary basis; (2) that his primary duty consists of the "performance of work requiring knowledge of an advanced type in a field of science or learning"; and (3) that plaintiff's responsibilities also include "work requiring the consistent exercise of discretion and judgment." See Piscione v. Ernst & Young, L.L.P, 171 F.3d 527, 534 (7th Cir.1999) (quoting 29 C.F.R. § 541.315); 29 C.F.R. § 541.3(e); see also Freeman, 80 F.3d at 83; Dingwall v. Friedman Fisher Associates, P.C., 3 F.Supp.2d 215, 218 (N.D.N.Y.1998) (Kahn, J.). The Court will first address the second element outlined above — the "duties" test.

1. Duties of an NDT Tech

Defendant insists that plaintiff is a learned professional because he possesses knowledge of an advanced type not generally attained at the high school level. In support, defendant points to the facts that plaintiff received certification from the State University of New York at Delhi, he spent three and one-half years at Mohawk Valley Community College, he earned a degree from the College of Oceaneering, and he received numerous advanced certifications while at ATL. ATL further contends that plaintiff's job required the consistent exercise of discretion and judgment because he was responsible for project management, performing field work, and engaging in client management, report preparation, report review, and decision making. According to ATL, when plaintiff was promoted, he took on the additional financial, management, and marketing responsibilities.

Although DeBejian may have an advanced education, that inquiry is not determinative. The proper focus is on whether the particular position at issue necessitated such advanced knowledge. See Bohn v. Park City Group, Inc., 94 F.3d 1457, 1462 (10th Cir.1996); Dybach v. State of Florida Dep't of Corrections, 942 F.2d 1562, 1565 (11th Cir.1991) ([T]he determinative factor is the job requirement and not the education in fact acquired by the employee.); Dingwall, 3 F.Supp.2d at 218 ("The duties test for the professional exemption concerns whether the nature of the employee's duties are appropriately considered professional.") (emphasis supplied).

a. Qualifications for the NDT Tech Position

The undisputed evidence indicates that the NDT Tech position does not require "knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study." 29 C.F.R. § 541.3(a)(1). NDT Techs need not have a specialized degree and need not enroll in an extended course of specialized intellectual instruction and study. See Thew Dep., at 72 (stating that the qualifications for a NDT Tech could be pretty minimal). Rather, that position merely requires a high school education, or its equivalent, in addition to some specialized, but not lengthy, training and hands-on experience. Evidence submitted by the plaintiff reveals that an ATL employee can become a Level I NDT Tech by possessing a high school diploma, or its equivalent, attending 97 hours of training, and having three months of on-the-job experience. To become a Level II NDT Tech at ATL, an employee must complete an additional 100 hours of training, and have at least 9 months of practical experience. This is advanced knowledge from a "general academic education and from an apprenticeship and training in the performance of routine mental, manual, or physical processes," and not from a "prolonged course of specialized intellectual instruction and study."³ 29 C.F.R. § 541.3(a)(1); see also Fife v. Harmon, 171 F.3d 1173, 1177 (8th Cir.1999); Dybach, 942 F.2d at 1565 ("The duties of that position must call for a person who is in a learned profession with at least a college degree in a specialized type of learning. A college degree of a generalized type does not meet that requirement.") (citing 29 C.F.R. § 541.302(a)); Quirk v. Baltimore County, Maryland, 895 F.Supp. 773, 785 (D.Md.1995). The learned professions typically require years, not weeks, of study.

b. Primary Duties of the NDT Tech Position

An analysis of the primary duties of the job itself demonstrates that it is not of a professional nature. The primary duty of an NDT Tech involves utilizing various tools to ascertain whether the subject steel conforms to industry and/or project standards. The NDT Tech does not interpret data, but merely records the test results....