CHERI GAINOR, Plaintiff, v. OPTICAL SOCIETY OF AMERICA, INC., Defendant.
Civil Action No. 13-612 (RDM)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
September 7, 2016
The plaintiff, Cheri Gainor, brings this action under the Fair Labor Standards Act,
I. BACKGROUND
The Optical Society is a membership organization comprised of “more than 70,000 professionals from 134 countries” with a mission of “promot[ing] the science of light аnd the advanced technologies made possible by optics and photonics.” Dkt. 11-3 at 3 (employee
The Optical Society employed Gainor as one of two or three meetings managers in its meetings department from January 18, 2012, to March 15, 2013. Dkt. 14-2 at 1 (Pl.‘s SUMF ¶ 5); Dkt. 14-4 at 39 (Gainor Dep. at 151–52); Dkt. 14-5 at 4 (Jackman Dep. at 9). Gainor‘s direct supervisor was Deputy Senior Director of Conventions and Meetings Britt Jackman, Dkt. 11-11 at 2 (Jackman Decl. ¶ 3), who in turn reported to Chad Stark, the Deputy Executive Director, Chief Meetings Officer, Dkt. 14-5 at 4 (Jackman Dep. 9); Dkt. 14-6 at 3 (Stark Dep. 7). Gainor often worked on teams with meeting coordinators and meeting planners—staff members who she outranked and to whom she could delegate tasks—but she did not serve as their direct supervisors, did not have authority to hire or fire anyone, and lacked authority to choose which staff members worked on her projects. Dkt. 14-4 at 35, 37 (Gainor Dep. 135–37, 145); Dkt. 14-5 at 4–5, 10, 12 (Jackman Dep. 12–13, 34–36, 42–43).2
As a meetings manager, Gainor was responsible for the logistical aspects of certain Optical Society events, see Dkt. 11 at 31 (Def.‘s SUMF ¶ 9); Dkt. 14-4 at 20 (Gainor Dep. 75–76), but she was not involved in developing the substantive content of the events or in determining what events would be held, see Dkt. 14-5 at 4–5, 14, 25 (Jackman Dep. 12–13, 50, 94); Dkt. 14-4 at 27 (Gainor Dep. 103–105); Dkt. 14-6 at 7–8, 12 (Stark Dep. 23–26, 42); Dkt.
The Optical Society hosted several different kinds of events, and Gainor‘s responsibilities varied based on the type of event. Gainor worked on at least two “congresses,” which were
Gainor also worked on several “governance” meetings and leadership conferences. See Dkt. 11 at 31 (Def.‘s SUMF ¶ 12) (stating Gainor worked on two “[g]overnance meetings,” “Summer Strategy Week,” and two seasonal leadership conferences); Dkt. 11-14 at 11 (stating Gainor worked on two leadership conferences); Dkt. 14-2 at 2 (Pl.‘s SUMF ¶ 8) (stating Gainor worked on “three leadership events“).3 Governance meetings and leadership conferences were meetings of top members of the Optical Society (including members of the board and other committees) at which the organization‘s policies, programming, and procedures were discussed and established. See Dkt. 11 at 32 (Def.‘s SUMF ¶¶ 15, 16); Dkt. 14-4 at 26 (Gainor Dep. 101).
Finally, Gainor also worked on several “incubator” meetings, which were “meeting[s] with limited participation of . . . 70 to 75” leaders from a designated field of optics held at the Optical Society‘s offices in Washington, D.C. See Dkt. 11 at 31 (Def.‘s SUMF ¶ 12) (stating that Gainor worked on four incubator meetings); Dkt. 14-2 at 2 (Pl.‘s SUMF ¶ 8) (stating that Gainor worked on two incubator meetings); Dkt. 14-5 at 6 (Jackman Dep. 20). Incubator meetings were led by a volunteer “host” from the professional community who invited the participants. Dkt. 14-5 at 7 (Jackman Dep. 22). At the conclusion of the meeting, the host would submit a whitepaper summarizing the participants’ discussion of scientific ideas. Dkt. 14-5 at 6 (Jackman Dep. 20); Dkt. 11-47 at 2. For such meetings, the meeting manager was the “logistics overseer,” while the director of business development worked on the program for the meeting. Dkt. 14-5 at 7 (Jackman Dep. 21). Gainor was responsible for tasks such as facilitating the production of a welcome letter from the host to participants, Dkt. 14-5 at 7 (Jackman Dep. 22–23), coordinating the receipt of the whitepaper from the host, Dkt. 11-45 at 2; Dkt. 11-47 at 2, providing restaurant recommendations for evening events, and general logistical project management, Dkt. 14-5 at 29, 32 (Jackman Dep. 112, 122).4 For incubator meetings, meeting
The Optical Society terminated Gainor‘s employment in March 2013, citing performance issues. See Dkt. 11 at 39 (Def‘s SUMF ¶ 41). On April 30, 2013, Gainor filed this suit under FLSA and DCMWA, seeking to recover unpaid overtime wages, liquidated damages, attorney‘s fees, and costs. See Dkt. 1 (Compl. ¶ 35).
II. LEGAL STANDARD
The Optical Society moves for summary judgment on Gainor‘s claims for overtime pay under FLSA and DCMWA, contending that the administrative-employee exemption applies and that, even if the exemption does not apply, Gainor is not entitled to liquidated damages because the Optical Society had a good-faith belief that the exemption applied. See Dkt. 11. Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III. DISCUSSION
FLSA “ordinarily requires employers to pay employees time-and-one-half for hours worked beyond the forty per week unless the employees are exempt.” Robinson-Smith v. Gov‘t Emps. Ins. Co., 590 F.3d 886, 888 (D.C. Cir. 2010); see also
The District of Columbia‘s overtime laws parallel FLSA. Like FLSA, DCMWA requires time-and-one-half overtime but exempts administrative employees. See
As explained below, the Court concludes that genuine issues of material fact preclude granting summary judgment on both the Optical Society‘s “administrative-employee” exemption
A. Administrative-employee Exemption
“It is well-settled that ‘exemptions from [FLSA] are narrowly construed against the employer in order to further Congress‘s goal of affording broad federal government рrotection[,]‘” McKinney v. United Stor-All Ctrs. LLC, 656 F. Supp. 2d 114, 121 (D.D.C. 2009),
Under the governing regulations, “[a]n employee falls under the administrative exemption if [(1)] her compensation is high enough . . . , [(2)] her ‘primary duty is the performance of office or non-manual work dirеctly related to the management or general business operations of the employer or the employer‘s customers,’ and [(3)] her ‘primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.‘” Radtke v. Lifecare Mgmt. Partners, 795 F.3d 159, 163 (D.C. Cir. 2015) (quoting
There is no dispute that the first criterion set forth in the Department of Labor regulations is satisfied. In particular, this criterion is met if the employee is paid “not less than $455 week.”
2. Criterion Two: Primary Duty
The second criterion for application of the exemption for administrative employees requires that the employer show that the employee‘s “primary duty [was] 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.”
- the relative importance of the exempt duties as compared with other types of duties;
- the amount of time spent performing exempt work;
- the employee‘s relative freedom from direct supervision; and
- the relationship bеtween the employee‘s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.
The parties dispute whether Gainor‘s “primary duty” was “directly related to the management or general business operations of the employer.”
The Optical Society first argues that the meetings and events that Gainor worked on “directly related to [its] business operations because they played a crucial role in generating revenue” for it. Dkt. 11 at 20. In support of this argument, it points out that in 2012 revenue
In addition, the Optical Society has not established the absence оf a genuine dispute of material fact as to whether Gainor‘s work on meetings and events involved the “management or general business operations” of the Optical Society, as distinct from the mere production of its meetings and events.
It appears from the present record, moreover, that Gainor played no role in determining what events the Optical Society should hold, who would be invited to such events, or what substantive matters would be on the agenda at these events. See, e.g., Dkt. 14-4 at 32 (Gainor Dep. 125); Dkt. 14-5 at 14, 25, 27–28 (Jackman Dep. 50, 94, 101–108); Dkt. 14-6 at 21 (Stark Dep. 79). Nor did she decide which events she would work on or what events other employees would staff. Dkt. 14-4 at 37 (Gainor Dep. 145); Dkt. 14-5 at 4–5, 10, 12 (Jackman Dep. 12–13, 34–36, 42). Although there is evidence that Gainor provided some input regarding the generation of revenue from the meeting and events on which she worked, see Dkt. 11-24 at 2 (email from Gainor to Jackman providing “a cost comparison of the original budget vs. a $40 registration increase“); Dkt. 11-25 at 2 (email from Gainor to Stark “showing the difference” with a registration fee increase of $20 and asking Stark when he will tell her “the decision on the
The record also reveals a genuine dispute of material fact regarding whether—and to what extent—Gainor‘s work involved the “functional areas” of procurement, purchasing, research, marketing, public relations, and personnel management.
Similarly, the record is not “one-sided” with respect to the “functional areas” of “marketing” or “personnel management.” Liberty Lobby, 477 U.S. at 251–52;
Finally, the Optical Society contends that Gainor‘s primary duty was analogous to those of a municipal parks department‘s events coordinator and camps coordinator—positions that a 2006 Department of Labor opinion letter found would satisfy the second criterion for application of the administrative-employee exemption. See Dkt. 11 at 18 (citing Opinion Letter Fair Labor Standards Act (FLSA), 2006 WL 3227789 (Sept. 21, 2006) (“DOL Op.“)). But “a job title alone is insufficient to establish the exempt status of an employee,” Daniel B. Abrahams, et al., FLSA Emp. Exemption Hdbk. ¶ 457, 2004 WL 5032713, and, at least on the present record, the positions considered in the Department of Labor opinion letter are readily distinguishable.
For the foregoing reasons, the Court concludes that genuine issues of material fact remain as to whether Gainor‘s primary duty was directly related to the Optical Society‘s—or the meeting department‘s—management or general business operations. See Radtke, 795 F.3d at 165. For this reason alone, the Optical Society is not entitled to summary judgment on the merits of Gainor‘s claim.
The Optical Society‘s motion for summary judgment fails for a second reason as well. To prevail on its defense that Gainor was an exempt administrative employee, the Optical Society must also establish, based on undisputed facts, that her “primary duty include[d] the exercise of discretion and independent judgment with respect to matters of significance.”
[1] whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; [2] whether the employee carries out major assignments in conducting the operations of the business; [3] whether the employee performs work that affects business operations to a substantial degree, еven if the employee‘s assignments are related to operation of a particular segment of the business; [4] whether the employee has authority to commit the employer in matters that have significant financial impact; [5] whether the employee has authority to waive or deviate from established policies and procedures without prior approval; [6] whether the employee has authority to negotiate and bind the company on significant matters; [7] whether the employee provides consultation or expert advice to management; [8] whether the employee is involved in planning long- or short-term business objectives; [9] whether the employee investigates and resolves matters of significance on behalf of management; [10] and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.
The Optical Society does not contend that Gainor had authority to commit it in matters with “signifiсant financial impact” (factor four); that she had authority to “deviate from established policies or procedures without prior approval” (factor five); that she could “negotiate and bind the company on significant matters” (factor six); or that she “represent[ed] the company in handling” or “resolving” complaints or disputes (factor ten). It does contend, however, that the remaining factors support entry of summary judgment in its favor. See Dkt. 11 at 23–24. But even assuming for present purposes that summary judgment might in some circumstances be warranted based on only a subset of the governing factors, genuine issues of material fact abound as to whether even those factors cited by the Optical Society favor its position.
There is little evidence that Gainor was given “authority to formulate, affect, interpret, or implement management policies or operating practices.”
Similarly, the parties dispute whether Gainor‘s worked on “major assignments” or matters affecting the organization‘s operations “to a substantial degree.”
It is true that Gainor “provided consultation to [Optical Society management]” to at least some degree. See Dkt. 11 at 23 (citing factor seven). It is undisputed, for example, that she provided more senior employees with recommendations regarding the logistics of certain Optical Society events. See, e.g., Dkt. 14-2 at 5 (Pl.‘s SUMF ¶ 36). These recommendations, moreover, at least arguably involved the “planning [of] long and short-term business objectives” of the Optical Society. See Dkt. 11 at 23 (citing factor eight). And the Optical Society is also correct that an employer can meet its burden under the third Department of Labor criterion without showing that the employee had “unlimited authority [with] a complete absence of review” and that the making of “recommendations for action rather than the actual taking of action” may suffice.
held that the exemption did not require that the employee “frequently” exercise discretion. Id. at 894. But, the Court still recognized that discretion requires some level of “freedom from immediate direction,” id., and that the exemption requires that the employee be free to exercise that discretion “‘with respect to matters of significance,‘” id. at 895 (quoting
Applying that test here, the Optical Society cannot prevail at summary judgment merely by showing that Gainor made some recommendations to senior management and exercised some day-to-day discretion regarding matters of minor significance. Making virtually any recommendation does, of course, involve some discretion and judgment; indeed, it is unclear what it would mean to make a recommendation without exercising any independent judgment. Similarly, virtually every employee exercises some discretion regarding some tasks in the course of their workdays. The critical question, however, is whether the employee exercised discretion or independent judgment regarding “matters of significance.”
The Court, accordingly, concludes that genuine issues of fact remain as to whether Gainor‘s “primary duty include[d] the exercise of discretion and independent judgment with respect to matters of significance,”
B. Liquidated Damages
Under FLSA, the Court has discretion to disallow or reduce liquidated damages “if the employer shows to the satisfaction of the [C]ourt that the act or omission giving rise to such action was in good faith and that [the employer] had reasonable grounds for believing that [its] act or omission was not a violation of [FLSA].”
The Court disagrees for two reasons. First, the Optical Society‘s request for relief is premature because “[a] court cannot evaluate the ‘reasonableness’ of an employer‘s belief that its ‘act or omission was not a violation’ without first identifying the ‘act or omission.‘” Thomas v. Howard Univ. Hosp., 39 F.3d 370, 373 (D.C. Cir. 1994). “Then, and only then, is the court in a position to ascertain what the employer believed about its acts or omissions, and to evaluate the employer‘s reasons for so believing.” Id. Unlike in the case cited by the Optical Society, there remain questions of material fact surrounding the “act or omission” giving rise to this action. Cf. Thompson v. Linda And. A., Inc., 779 F. Supp. 2d 139, 153–54 (D.D.C. 2011) (declining to grant summary judgment where the employer “failed to show that [it] had reasonable grounds for believing that [its] wage policy was not a violation” of FLSA). The Court cannot assess the
Second, the Optical Society has not adduced the kind of evidence necessary for it to prevail as a matter of lаw on the question of liquidated damages. As the Optical Society acknowledges, “[t]he good faith defense to liquidated damages requires ‘an affirmative showing of a genuine attempt to ascertain what the law requires,’ not simply the absence of bad faith.” Id. at 153 (quoting Danesh v. Rite Aid Corp., 39 F. Supp. 2d 7, 13 (D.D.C. 1999)); see also Dkt. 11 at 26. The good-faith defense, moreover, requires both “a subjective inquiry” into the employer‘s beliefs and application of “an objective standard.” Laffey v. Nw. Airlines, Inc., 567 F.2d 429, 464 (D.C. Cir. 1976), overruled in part on other grounds, McLaughlin v. Richland Shoe Co., 486 U.S. 128, 134 (1988); see also
Although “ambiguous or complex legal requirements may provide reasonable grounds for an employer‘s good faith but erroneous belief that he is in conformity with the Act[,] . . . legal uncertainty, to assist the employer‘s defense, must pervade and markedly influence the employer‘s belief; merely that the law is uncertain does not suffice.” Laffey, 567 F.2d at 466.
CONCLUSION
For the foregoing reasons, the Optical Society‘s motion for summary judgment, Dkt. 11, is DENIED. The parties shall appear for a status conference on October 5, 2016, at 10:00 a.m. in Courtroom 21.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 7, 2016
Notes
award an amount of liquidated damages less than treble the amount of unpaid wages, but not less than the amount of unpaid wages . . . [if] the employer shall demonstrate to the satisfaction of the [C]ourt that: (A) [t]he act or omission that gave rise to the action was in good faith; (B) . . . the employer had reasonable grounds for the belief that the act or omission was not in violation of this subchapter; and (C) . . . the employer promptly paid the full amount of wages claimed to be owed to the employee.