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SHERWOOD v. WASHINGTON POST

December 28, 1994

THOMAS R. SHERWOOD, Plaintiff,
v.
THE WASHINGTON POST, Defendant.



The opinion of the court was delivered by: NORMA HOLLOWAY JOHNSON

 Thomas R. Sherwood, a former employee of the Washington Post, contends that the Post violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207 (1988), by refusing to pay him an overtime rate for all hours worked in excess of forty hours a week for the period October 1, 1983, through November 1, 1989. At a full trial on the merits of this case, the Court received and evaluated the testimony of witnesses, assessed their credibility, reviewed the exhibits admitted into evidence, and heard the argument of counsel. The trial was bifurcated, and only the question of liability was at issue. After careful consideration of all of the evidence of record, the Court concludes that the Post is not liable to Sherwood for overtime pay because Sherwood's primary duty as a reporter consisted of the performance of work requiring invention, imagination, and talent. His work was therefore exempt from the overtime provisions of the FLSA.

 The Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

 FINDINGS OF FACT

 1. The Washington Post employed Sherwood as a reporter during the relevant period of October 1, 1983, to November 1, 1989. Sherwood originally came to the Post in 1974, after having worked as a reporter and editor at the Atlanta Constitution for almost ten years, and after having worked as press secretary for a member of Congress for nine months. Def.'s Ex. 21 at 1-3; Trial Tr. at 35-36.

 2. During his time at the Post, Sherwood worked as a reporter in Washington, D.C., and in Virginia. From October 1983 to March 1986 Sherwood was the bureau chief for the Washington Post in Richmond, Virginia. From March 1986 through July 1986 he held a position known as "Virginia Rover" on the Virginia staff. From July 1986 to October 1989 he was a reporter on the City Desk staff covering the District of Columbia government and Mayor Marion Barry. From October 8, 1988, to November 10, 1988, he was temporarily assigned to the National Desk to cover the candidates for the office of Vice President of the United States. Def.'s Ex. 21 at 1-2; Trial Tr. at 36-37.

 3. Sherwood was a salaried employee at the Post. His annual salary ranged from $ 44,954 in 1983 to $ 67,967 in 1989; thus Sherwood earned more than $ 250 per week throughout his tenure at the Post. Def.'s Ex. 21 at 2.

 5. The Court finds that working as a reporter at the Washington Post is a prestigious, competitive job among journalists. Sherwood wrote that working at the Post allowed him to have "opportunities that most journalists only dream of having." Def.'s Ex. 2-5-82.

 6. The Post aims to publish fair, accurate, and balanced news stories. Every issue of the Post is the result of a taut, disciplined, cooperative effort which nevertheless remains sensitive to developing events. Def.'s Ex. 21 at 10.

 7. Sherwood's primary duty as a reporter at the Washington Post was to gather news and present it to readers in a clear, fair, balanced, and expert fashion. Trial Tr. at 175.

 8. Sherwood testified that his primary duty was "to gather facts that would be the basis for the news stories that appeared in the Post." Trial Tr. at 48; see also id. at 800, 803. The Court finds that Sherwood's job did require him to gather facts, but that fact gathering was only one aspect of his duty as a reporter. Sherwood's job also required him to originate story ideas, piece together seemingly unrelated facts, analyze facts and circumstances, and present his news stories in an engaging style. The Court further finds that Sherwood's fact gathering involved more than passively writing down what others told him. He was required to cultivate sources, utilize his imagination and other skills in seeking information, and continually develop his finely tuned interviewing skills.

 9. Sherwood admits that the job duties of reporters at the Post include the following: "in frequent consultation with editors, reporters ordinarily originate ideas for stories based on news events, decide what facts need to be gathered, discover sources of information, decide what information to include and exclude, choose interesting and accurate language, decide on context to add, and organize facts in coherent and logical form." Def.'s Ex. 18 at 41.

 10. Sherwood also admits that "adequate performance of their primary duties by reporters at The Washington Post requires talent." Def.'s Ex. 18 at 27.

 11. During his years at the Post, Sherwood acquired knowledge and expertise with respect to politics in Virginia and in the District of Columbia. Def.'s Ex. 21 at 5-6. The evidence of record clearly demonstrates that Sherwood was diligent in his pursuit of news, id. at 286, and was highly regarded by both his peers and his superiors during his tenure at the Post. Id. at 286, 461, 512, 548-49.

 12. The evidence establishes that, in performing his duties, Sherwood was required to and did advise editors when he believed that particular topics might be newsworthy. Def.'s Ex. 21 at 7. He was expected to originate ideas for stories and did so. Def.'s Ex. 20 at 1. He decided what facts should be gathered for stories, sometimes in consultation with editors and sometimes alone. Id.

 13. Sherwood testified that the Post expected him to suggest frequent story ideas based upon his observations in the area to which he was assigned, such as the District Building, Mayor Marion Barry, or the Virginia government. Trial Tr. at 52. The evidence shows that he was also charged with keeping his eye out for possible story ideas about subjects unrelated to his current assignment. For example, in early 1988, while vacationing in Daytona Beach, Florida, he found himself in the midst of a convention of motorcycle enthusiasts and filed a story which eventually bore the headline, "In Daytona, Vroom, Vroom Means Boom, Boom." Id. at 777-79; see Def.'s Ex. 53.

 15. William McAllister, who was the assignment editor in charge of the Post's Virginia Desk when Sherwood was Richmond Bureau Chief, testified that Sherwood himself came up with most of the ideas for the stories he wrote in Richmond. Id. at 496. Sherwood often originated story ideas for other reporters as well. Trial Tr. at 512.

 16. McAllister testified that during the Virginia legislative sessions, three or four reporters usually travelled to Richmond to help cover the legislature. Trial Tr. at 465-66. These reporters decided among themselves which stories they were going to cover on any given day. Id. at 466. Sherwood testified that the Virginia editor approved these decisions and assigned some stories as well. Id. at 754.

 17. The Court finds that Sherwood's job duty of originating story ideas required invention and imagination. For example, McAllister testified that, in 1985, Sherwood wrote a story about Buzz Emick, a Virginia state senator. Sherwood had "spotted Emick playing a major role" in the legislature; he "quickly recognized" Emick's importance and rapidly wrote a story on this "very colorful and controversial character." Trial Tr. at 506-07; see Def.'s Ex. 36.

 18. McAllister testified that another example of Sherwood's inventiveness was Sherwood's decision to write a story about Virginia Governor Robb's appointment of a woman to serve on the State Corporation Commission. Sherwood treated the story as an opportunity not only to write about the Commission but to show "how Robb had brought more people into the political process and into the state government." McAllister called the story "an excellent mirror not only on this powerful institution but on the style of the Robb administration." Trial Tr. at 508; see Def.'s Ex. 37.

 19. Throughout his testimony, Sherwood stated that particular stories had been "assigned" to him by his editors. See, e.g., Trial Tr. at 762, 766, 777. The evidence discloses, however, that the editors did not necessarily originate the story ideas. Rather, the "assignment" of a story was merely an editor's way of placing a reporter in charge of a story. According to his own testimony, Sherwood was often "assigned" to stories that he himself had suggested. Id. at 791.

 20. Sherwood testified that in order to break news consistently, he needed a good network of sources. Pianin testified that Sherwood cultivated and maintained his sources by building up trust with them and not disclosing their identities if they wished to remain unnamed. Trial Tr. at 328, 332-33. McAllister testified that Sherwood himself usually decided which sources to consult. Id. at 476. Pianin testified, "[Sherwood] was considered to be one of the best source reporters in the newsroom when it came to covering D.C. politics, and he spent many years at it, and over time he developed a lot of good sources." Id. at 332-33. This cultivation of sources demonstrates a talent not found in the typical leg man of the 1940s.

 21. Pianin testified that reporters at the Post bear the responsibility of deciding how to go about reporting. Editors do not give reporters detailed instructions to speak to certain people but instead assume that reporters know how to obtain information. Trial Tr. at 374.

 22. Milton Coleman, a former reporter on the Post's District Building beat, testified that as a political reporter, Sherwood had to take disconnected bits of information -- such as one person's comment, another person's actions, and a third person's gossip -- and piece them together to form a coherent story. Such a story would be one "on which the desk place[d] a premium," because it was unlikely to be carried by other news organizations. Trial Tr. at 400-02. Sherwood's job thus involved "putting together pieces of a puzzle." Fitting the pieces together in order to create a story required intelligence and creativity. Moreover, Sherwood had to be inventive enough to know who to consult in order to get the pieces of the story in the first place, and how to consult his sources in such a way that other reporters would not get the story. Id. at 404. As Coleman testified, "Those are all the things you do. That is part of the skill and the wherewithal that you have as a political reporter." Id. at 404.

 23. According to the testimony of Robert Kaiser, the Post's Managing Editor, Sherwood was very inventive. Kaiser testified that Sherwood would see stories that other reporters would not see in some situations. As a result, he was famous for his scoops both while he was working in Richmond and while he was working at the District Building. Id. at 659. For example, McAllister testified that Sherwood covered the 1984-85 Virginia gubernatorial campaign of Wyatt Durrette so effectively that Durrette's staff was "shell-shocked" and "did an electronic sweep of their office trying to find out if he had somehow bugged them." Id. at 513-14. The Court finds that Sherwood had to be imaginative, inventive, and talented to get information and to shape developing stories. Sherwood's job required that he obtain results through skill, not simply the reporting of facts.

 24. McAllister testified that when Sherwood worked in Richmond, the city's "Old South" politics were difficult for Washington Post readers to understand. Sherwood's task was to act as a "translator" and make the political events in Richmond meaningful to persons living in and around Washington. To do this Sherwood had to "spot trends" and put them "in context." Trial Tr. at 500, 505. The Court finds that Sherwood needed talent and invention to report and write successfully about Richmond politics.

 25. In order to be successful at his job, Sherwood had to develop sophisticated interviewing skills. For example, McAllister testified that, in 1985, Sherwood interviewed Mills Godwin, a former Governor of Virginia. Sherwood used his interviewing skills to put Godwin at ease and convince him to talk about his role in Virginia politics. McAllister considered this to be a difficult interview, but Sherwood did an excellent job; "It was a very helpful interview, very insightful." Trial Tr. at 521; see Def.'s Ex. 42.

 26. According to the testimony of Pianin and of Leonard Downie Jr., the Post's Executive Editor, Sherwood faced stiff competition from other news organizations while covering the District Building and Mayor Barry. At the time of the investigations of Mayor Barry, when the Post's readers reviewed Sherwood's stories with great interest, Sherwood's job required enormous energy and patience to keep up with the controversies surrounding the mayor. Yet despite the pressure, Sherwood managed to be a "master" at convincing sources to confide in him. Trial Tr. at 227-28, ...


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