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RAINEY v. AMERICAN FOREST & PAPER ASS'N

October 19, 1998

DOREEN RAINEY, Plaintiff,
v.
AMERICAN FOREST AND PAPER ASSOCIATION, INC., Defendant.



The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

 On June 12, 1998, plaintiff Doreen Rainey moved for partial summary judgment as to liability, seeking a declaratory judgment that defendant American Forest and Paper Association, Inc. violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (1988), by failing to pay her proper overtime for "excess" hours she worked during part of her employment by defendant. On June 19, defendant moved for partial summary judgment as to damages, seeking a judgment that to the extent that plaintiff is entitled to any damages, they should be calculated according to the so-called fluctuating workweek method set forth at 29 C.F.R. § 778.114 (1998). Both motions were opposed, and a hearing was held July 14, 1998, at which time plaintiff's motion was granted and defendant's motion was denied. The reasons underlying these judgments are set forth herein.

 I.

 A.

 The Fair Labor Standards Act ("the Act") requires that employees be paid at a rate of one and one-half times their "regular rate" for hours worked in excess of forty (40) in one week unless they are subject to certain enumerated exemptions. 29 U.S.C. § 207(a) (1988). The burden of proving that an employee is exempt from § 207(a) falls squarely on the employer. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Roney v. United States, 790 F. Supp. 23, 26 (D.D.C. 1992). In the instant case, plaintiff was hired by defendant in June 1995 as a personnel assistant in its human resources department. In the personnel position, which defendant classified as non-exempt from § 207(a), plaintiff was responsible for such clerical work as adding and deleting employee' insurance claims, updating the human resources database, answering phones, and typing letters. She was paid a fixed amount for the first 37.5 hours she worked per week, and was paid overtime in accordance with the one and one-half time formula in § 207(a). There is no dispute between the parties about this non-exempt classification or plaintiff's receipt of overtime compensation.

 However, in October 1995 defendant underwent a major corporate reorganization. It terminated forty positions and combined its accounting department with its human resources department. In the wake of the shuffling, plaintiff retained her human resources duties as personnel assistant, but took on the payroll work of a terminated accounting department employee who had been classified as non-exempt from the Act. Plaintiff's characterization of her payroll work as "clerical" is not traversed by defendant. Pl.'s Stmt. of Mat. Facts P 9. Nonetheless, defendant reclassified plaintiff as exempt from § 207(a), and began paying her a flat amount per week. Except for a two-week period during November 1995, the circumstances of which have not been explained by either party, plaintiff received no overtime compensation after the reorganization.

 Following the initial augmentation of her duties, plaintiff continued to assume more responsibilities. First, in June 1996 she began performing some of the duties that had belonged to Michelle Merkt, a human resources manager who left the organization. Sometime thereafter plaintiff was assigned some of the responsibilities previously given to Kitty Reilly, the director of human resources who apparently had stopped coming to work in June 1996 but who did not resign until November. Plaintiff received two raises during this period, one of twenty percent and one of ten percent, but still was not paid overtime. Plaintiff resigned from the employ of defendant on January 17, 1997.

 The gravamen of plaintiff's complaint is that she was improperly classified as exempt from § 207(a) of the Act during the period between November 1995 and January 1997. Defendant counters plaintiff's allegations by contending that her compensation was limited by the administrative exemption set forth in § 213(a)(1) of the Act. The question presented by plaintiff's motion for partial summary judgment is whether there are no disputed issues of material fact such that it must be determined, as a matter of law, that plaintiff was improperly classified as exempt and unlawfully denied overtime compensation. The Court, as indicated at the July 14, 1998 hearing and in an Order of July 15, finds in plaintiff's favor.

 B.

 Rule 56(e) of the Federal Rules of Civil Procedure provides that when a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). It is well-settled that a moving party is entitled to judgment as a matter of law if the adverse party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Further, "a party is only entitled to summary judgment if the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact." Aka v. Washington Hospital Center, 1998 U.S. App. LEXIS 24929, 1998 WL 698396, *3 (D.C. Cir. Oct. 9, 1998) (en banc). In its opposition to plaintiff's motion for partial summary judgment, defendant relies on the factual allegations obtained from several sources: documents prepared by plaintiff during her employment by defendant; the deposition testimony of plaintiff; the deposition testimony of defendant's designated corporate representatives; and an affidavit of one of defendant's former employees, Melissa Kurtz ("Kurtz affidavit"). Because plaintiff challenges the validity of introducing the Kurtz affidavit into the record at the summary judgment stage, the Court defers consideration of its factual allegations. See infra I.C.

 As noted above, the Fair Labor Standards Act establishes the default rule that employees are to be paid at a rate of one and one-half times their "regular rate" for hours worked in excess of forty (40) in one week, unless they are subject to certain exemptions enumerated in § 213. 29 U.S.C. § 207(a). In this case, defendant submits that plaintiff was subject to the so-called administrative exemption, which applies to individuals "employed in a bona fide . . . administrative . . . capacity." 29 U.S.C. § 213(a)(1). Consistent with the statutory mandate, see 28 U.S.C. § 213(a)(1), the Department of Labor ("DOL") has promulgated regulations establishing the necessary criteria for the administrative exemption to apply. Such regulations are set forth at 29 C.F.R. § 541.2 (1998), and provide in pertinent part:

 
The term employee employed in a bona fide administrative capacity. . . shall mean any employee:
 
(a) Whose primary duty consists of . . .
 
(1) The performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer's customers, . . . and
 
(b) Who customarily and regularly exercises discretion and independent judgment . . . .

 29 C.F.R. § 541.2 (1999) (emphasis in original). Thus, to survive summary judgment as to liability, defendant must allege material issues of disputed fact suggesting that plaintiff's "primary duty" consisted of the "performance of office or non-manual work directly related to management policies or general business operations of [her] employer or [her] employer's customers," and that plaintiff "customarily and regularly exercised discretion and independent judgment." Id.

 The DOL regulations state that "it may be taken as a good rule of thumb that primary duty means the major part, or over 50 percent, of the employee's time." 29 C.F.R. § 541.103. See also 29 C.F.R. § 541.206 (employing definition articulated in § 541.103). However, the regulations also say that "time alone . . . is not the sole test," and that an employee can be considered administrative if certain considerations -- such as "the relative importance of the managerial duties as compared with other types of duties, the frequency with which the employee exercises discretionary powers, [and] his relative freedom from supervision" -- support such a conclusion. 29 C.F.R. § 541.103. The regulations define work "directly related to management policies or general business operations" as that which is "of substantial importance to the management or operation of the business," and indicate that the phrase applies to employees whose work "affects policy or whose responsibility it is to execute or carry it out." 29 C.F.R. § 541.205(a), (c).

 As to the second prong of the standard, the regulations set out that "the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered." 29 C.F.R. § 541.207(a) (1998). The regulations make clear, though, that an employee who "merely applies his knowledge in following prescribed procedures or determining which procedure to follow, or who determines whether specified standards are met . . ., is not exercising discretion and independent judgment within the meaning of § 541.2. This is true even if there is some leeway in reaching a conclusion . . . ." 29 C.F.R. § 541.207(c)(1) (1998). Viewed in the light of this regulatory framework, the documents and deposition testimony defendant has adduced do not raise material issues of disputed fact sufficient to defeat plaintiff's motion.

 1.

 To begin with, defendant argues that various documents created during plaintiff's tenure raise genuine issues of material fact "as to the nature of [her] duties." Def.'s Opp. at 9. Defendant first alludes to an internal application plaintiff submitted for the position of human resources manager, wherein plaintiff touted her "knowledge of [defendant's] policies, procedures, practices and employees . . . ." Def.'s Mot. for Summ. J. Exh. M. While this assertion perhaps is suggestive of plaintiff's familiarity with "management policies" and "general business operations," it provides no information concerning the nature of plaintiff's duties and whether they affect -- as the regulations require -- such policies or operations. As a matter of law, then, this statement falls short of even alleging that plaintiff met the regulatory criteria for an administrative employee.

 Defendant next invokes a November 1, 1996 memorandum from plaintiff to defendant's General Counsel Robert Kirshner, in which plaintiff requested a salary increase on the basis of her performance and assumption of additional responsibilities. Def.'s Mot. for Summ. J. Exh. N. Though it indeed lists additional tasks plaintiff took on after the departure of the human resources manager, the 1996 memorandum fails to bolster defendant's argument. First, plaintiff's statements in the memorandum do not -- as they must to meet the statutory criteria -- make any reference to whether the additional tasks she took on constituted her "primary duties." Second, even assuming primacy, plaintiff's statements do not allude to tasks that meet the twin statutory criteria of being directly related to management policies -- in that they affect, execute, or carry them out -- and requiring the exercise of discretion and independent judgment.

 To begin with, several of the nine tasks listed in the memorandum fail to satisfy either of the two requirements. For example, the second task listed -- conducting exit interviews -- involved asking departing employees about their experiences and taking notes of their comments. While it may, as counsel suggested at the July 14 hearing, have entailed "discussing . . . AF&PA's policy and procedures" and "questioning the employee about various matters related to their [sic] work," Trans. at 44, as a matter of law this duty did not affect, execute, or carry out management policy, nor require the exercise of discretion and independent judgment.

 The same conclusion is applicable to the third task, writing/editing job postings and employment ads. Defendant does not dispute that plaintiff performed that duty only when instructed that job openings existed, or that plaintiff herself lacked the authority to decide that an employee needed to be hired. That plaintiff composed job postings from templates of "previous job descriptions," Depos. of Doreen Rainey at 143 ("Rainey trans."), does not demonstrate that she performed administrative functions within the meaning of the DOL regulations. Other tasks listed in the November memorandum, such as COBRA administration (fourth), assisting employees and former employees with 401(k) loan requests/withdrawals/rollovers (fifth), and orienting eligible employees about the 401(k) and retirement plan (sixth), also fail to meet either criterion, as they involved helping employees avail themselves of company benefit options, not shaping or implementing management policy or exercising discretion or independent judgment.

 The remaining four tasks listed in the memorandum arguably were related to management policies, but they did not, as a matter of law, require the exercise of discretion or independent judgment. The first task on the list was conducting new employee orientations; this may have involved executing policy, but it could not have entailed "the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered." 29 C.F.R. § 541.207(a). Instead, plaintiff's undisputed account is that this function consisted of handing out copies of company policies and procedures, reading them over along with the new employee, obtaining the employee's signature to indicate she received the copies, and answering questions. Rainey trans. at 195. As a matter of law, this did not require the exercise of discretion or independent judgment. The same can be said of the seventh task, providing information and enforcing company policies and procedures. There is no indication in plaintiff's November 1 memorandum -- and defendant does not contend -- that performance of this task required weighing courses of conduct and selecting among them.

 Similarly, defendant has made no allegation that plaintiff's discussion of confidential personnel issues with employees (eighth) involved anything more than listening to concerns and perhaps making suggestions about how to address them. Defendant has not alleged, for example, that plaintiff took any official action as a result of her confidential discussions, or that she altered or implemented company policy because of them. In fact, plaintiff admitted in responses to defendant's interrogatories that when she heard "complaints, concerns, conflicts and/or grievances," she "relayed these issues to Michelle Merkt or Margaret Reilly, or to other managers for resolution," Def.'s Opp. Exh. 12 at 8; defendant does not traverse this statement. The final item on the list -- assisting the senior director in creating reports, spreadsheets, and special projects, including with regard to work with outside consultants and for preparation for audits and investigations -- falls in the same category. While perhaps related to management policies in that it may have been carried out in conjunction with management personnel, this duty did not require plaintiff to do anything but carry out the instructions of her supervisor. As a matter of law, this did not require plaintiff to exercise discretion and independent judgment within the meaning of 29 C.F.R. § 541.207.

 Defendant next argues that plaintiff worked in an exempt administrative capacity because, as she wrote in her November 1 memorandum, she "managed one long term temporary employee." Def.'s Mot. for Summ. J. Exh. N. In support of this claim, defendant invokes Donovan v. Burger King Corp., 672 F.2d 221 (1st Cir. 1982), where the court stated that "the supervision of other employees is clearly a management duty." Id. at 226 (citing 29 C.F.R. § 541.102(b)). Defendant's argument is unavailing. First, defendant raises no allegation that plaintiff's management of one employee constituted her primary duty. Second, it makes no claim that plaintiff's management of one temporary employee involved formulation or execution of company policy, or that it required the exercise of discretion or independent judgment. Finally, the opinion in Donovan is dubious authority for defendant's proposition, as the court hinged its above-quoted statement on 29 C.F.R. § 541.102(b), which concerns the characteristics of an "executive capacity," not an administrative one.

 At the July 14 hearing, defendant relied heavily on the factual information contained in a December 3, 1996 memorandum from Mr. Kirshner to plaintiff. Def.'s Mot. for Summ. J. Exh. Q. The Kirshner memorandum -- dated roughly six weeks before plaintiff resigned -- was styled as a response to a list of "current job tasks" that plaintiff had provided to Mr. Kirshner several days earlier. Id. at 1-2. Working from the list plaintiff provided, Mr. Kirshner placed asterisks by the tasks that he said he "needed plaintiff to focus most of [her] time on." Id. at 1. In large measure, the list that plaintiff compiled was the same as the list of nine tasks she detailed in her November 1 memorandum to Mr. Kirshner; as such, these repeat tasks do not raise genuine issues of material fact about the nature of plaintiff's employment capacity. See supra pp. 6-10.

 The Kirshner memorandum contained descriptions of other tasks plaintiff performed, but these too fail to raise material issues of disputed fact. For example, at the hearing counsel asserted that the task of enrolling employees in and terminating them from company insurance plans involved "a certain amount of counseling and enforcement of AF&PA's policies." Trans. at 42, 45; Def.'s Mot. for Summ. J. Exh. Q at 2. Counsel did not identify the counseling and enforcement that plaintiff allegedly performed -- aside from noting that Mr. Kirshner claimed she performed it, see Depos. of Robert Kirshner at 98 ("Kirshner trans.") -- and offered no ...


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