Sutherland v. Sos Intern., Ltd.

• Decision Date: 17 March 2008
• Docket Number: No. 1:07cv557 (JCC/TCB).,1:07cv557 (JCC/TCB).
• Parties: William D. SUTHERLAND, Plaintiff, v. SOS INTERNATIONAL, LTD., et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

541 F.Supp.2d 787

William D. SUTHERLAND, Plaintiff, v. SOS INTERNATIONAL, LTD., et al., Defendants.

No. 1:07cv557 (JCC/TCB).

United States District Court, E.D. Virginia, Alexandria Division.

March 17, 2008.

Zachary Alan Kitts, Cook & Kitts PLLC, Fairfax, VA, for Plaintiff.

Michael Earl Barnsback, Hillary Jane Collyer, Dimuro Ginsberg & Mook PC, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

JAMES C. CACHERIS, District Judge.

This matter comes before the Court on Defendant's Motion for Summary Judgment. For the following reasons, the Court will deny the motion.

I. Background

This action arises from alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the Uniformed Services Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301, et seq. Plaintiff William D. Sutherland ("Mr. Sutherland") was hired by Defendant Julian Setian ("Mr. Setian") to work for Defendant SOS International, Ltd. ("SOSi"), in September 2006 as Manager of Marketing and Communications in Reston, Virginia. Mr. Setian was aware when he hired Mr. Sutherland of Mr. Sutherland's membership in the U.S. Army Reserve and of his ongoing reservist obligations. At the recommendation of Mr. Setian, Mr. Sutherland's employment was terminated on March 31, 2007. The Separation Notice indicated that Mr. Sutherland was discharged due to poor work quality.

Plaintiffs first cause of action arises under FLSA. Plaintiff alleges that he was a non-exempt employee, required by Defendants to work overtime hours without being compensated at a rate of time and a half for his normal rate of pay for hours worked over forty. Plaintiff claims a second cause of action under USERRA, alleging that his employment was terminated in March 2007 as a result of his status as a member of the United States Army Reserves. On July 10, 2007, Defendants filed a Motion to Dismiss the FLSA claim and to strike Plaintiffs claim for emotional damages related to the USERRA claim. The Court granted Defendants' Motion as to the claim for damages, but denied it as to all other claims.

On February 22, 2008, Defendants filed a Motion for Summary Judgment. Plaintiff responded on March 7, 2008, and Defendants filed a Reply on March 12, 2008. This Motion is currently before the Court.

II. Standard of Review

Summary judgment is appropriate only if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Evans v. Techs. Applications & Serv., Co., 80 F.3d 954, 958-59 (4th Cir.1996) (citations omitted). The party seeking summary judgment has the initial burden to show the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party opposing summary judgment may not rest upon mere allegations or denials. A "mere scintilla" of evidence is insufficient to overcome summary judgment. Anderson, 477 U.S. at 248-52, 106 S.Ct. 2505. Unsupported speculation is not enough to withstand a motion for summary judgment. See Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir.1986). Summary judgment is appropriate when, after discovery, a party has failed 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, 477 U.S. at 322, 106 S.Ct. 2548. In reviewing the record on summary judgment, "the court must draw any inferences in the light most favorable to the non-movant" and "determine whether the record taken as a whole could lead a reasonable trier of fact to find for the non-movant." Brock v. Entre Computer Ctrs., 933 F.2d 1253, 1259 (4th Cir.1991) (citations omitted).

III. Analysis

A) Exempt Employee Under FLSA

The first question before the Court is whether Plaintiff was an exempt employee. If Plaintiff qualified as an exempt employee under the FLSA, he was not entitled to payment of overtime compensation and Defendants are entitled to summary judgment on Count One of the complaint. FLSA requires payment of a minimum wage and extra overtime compensation for employees who are not in certain categories, known as exempt employees. 29 U.S.C. § 213 et seq. Defendants argue that Plaintiff met the requirements to be considered an exempt employee under both the administrative and professional exemptions. The Court first notes that "[i]n determining whether the activities, or any substantial part of the activities, of an individual come within [an exemption], the District Court shall not be concluded by the name which may have been given to his position or to the work that he does." Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 707, 67 S.Ct. 954, 91 L.Ed. 1184 (U.S.1947); see also Smith v. United Parcel Serv., 890 F.Supp. 523, 526 (S.D.W.Va.1995). Therefore, the Court must consider the actual work done by Plaintiff to determine whether it meets the requirements for an exemption rather than relying on his job title of "manager."

1) Administrative Exemption

To meet the requirements for an administrative employee exemption, the employee must be 1) "[c]ompensated on a salary or fee basis at a rate of not less than $ 455 per week" and 2) have as a "primary duty" "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," which 3) "includes the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200.

Defendants, as employers, "bear[] the burden of proving that a particular employee's job falls within such an exemption." Darveau v. Detecon, Inc., 515 F.3d 334, 337 (4th Cir.2008) (citing Reich v. John Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir.1997)); see also Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 205, 86 S.Ct. 737, 15 L.Ed.2d 694 (U.S.1966). FLSA "exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (U.S. 1960)

Plaintiff was paid on a salary basis that more than met the rate requirement, and he was engaged in non-manual work. Defendants argue that Plaintiffs position in marketing and communication is administrative by its very nature, as it requires work in advertising and marketing, two functional areas explicitly identified as "[w]ork directly related to management or general business operations" under the FLSA. 29 C.F.R. § 541.201. Defendants' point to Plaintiffs own description of his duties, including the responsibility "to plan marketing, media, and public relations strategies, and to improve the company's image," and "specific management duties .. to plan, develop, and implement strategies for communicating SOS International's message to customer their base [sic]." PL's Opp'n to Def.'s Mot. for Summ. J. At 3, ¶¶ 14, 15. Defendants argue that, although Plaintiff may have performed other more menial tasks as well, Defendants hired him "to perform exempt work and terminated him when he failed to satisfactorily perform that work." Def.'s Reply in Supp. of their Mot. for Summ. J. at 8. Thus, although Plaintiff may not have spent most of his time performing managerial duties, that was a failure to live up to the requirements of the job.

Plaintiff focuses on the third requirement for an administrative exemption: that he exercise discretion and independent judgment. He points to the supervision he was subject to regarding his job-related tasks. The existence of significant supervision is contrary to the requirement that an administrative employee exercise independent judgment, a requirement that "implies that the employee has authority to make an independent choice, free from immediate direction or supervision." 29 C.F.R. § 541.202(c). Although the discretion requisite "does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review," supervision over all or many of the details of an employee's work will keep them from being considered an administrative employee for the purposes of the exemption. Id.

Plaintiff and Defendants do not agree on the extent of supervision Plaintiff received. If Plaintiff was subject to the level of scrutiny he maintains, a reasonable finder of fact might conclude that he was not an administrative employee under the FLSA. Due to this genuine dispute, summary judgment is not appropriate on the question of whether Plaintiff could be considered qualified for an administrative employee exemption.

2) Professional Exemption

Defendants also argue that Plaintiff met the prerequisites for a professional exemption. This exemption has two requirements. The first is a compensation requirement in the same amount as the administrative exemption, which, as described above, was satisfied in Plaintiffs case. The position must also be one "[w]hose primary duty is the performance of work ... [r]equiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction." 29 C.F.R. § 541.300, A list of examples of non-exempt employees is given in 29 C.F.R. § 541.3, along with the explanation...