Sutherland v. SOS International, Ltd.Sutherland v. SOS International, Ltd.
MEMORANDUM OPINION
This matter comes before the Court on Defendant’s Motion for Summary Judg *789 ment. 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”) tо 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 а 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.,
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.,
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 еxempt 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,
1) Administrative Exemption
To meet the requirements for an administrative employee exemption, the employee must be 1) “Compensated 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.,
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 markеting 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, althоugh Plaintiff may have performed oth *791 er, 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 thе 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 apprоpriate 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 prerequisités for a professional exemption. This exemption has two requirements. The first is a compensation requirement in the sаme amount as the administrative exemption, which, as described above, was satisfied in Plaintiffs case. The position must also be one “[wjhose primary duty is the performance of work .[Requiring 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 that these “employees do not qualify as exempt professionals because their primary duty is not the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized instruction.” Id. The Code goes on to distinguish qualified professional employees from those who may have obtained higher degrees that contribute to their emрloyment, but who work in occupations for which “specialized academic degree is not a standard prerequisite for employment.” Id.
Plaintiff argues that the occupation of communications manager, held by Plaintiff, “is not such a learned profession and requires no certification,” although he does not deny that he received education beyond the high school level. PL’s Opp’n at 6. Defendants argue that Plaintiffs duties did require “advanced knowledge acquired by Sutherland’s course of intellectual instruction in the fields of -marketing and communications.” Def.’s Mem. in Sppt. of their Mot. for Summ. J. at 26. However, Defendants do not identify any particular certification or education required by someone holding Plaintiffs position. Instead, they point to a more general requirement for education beyond high school and to Plaintiffs own previous job experience. Defendants have not demon *792 stratеd that there are no disputed material facts regarding Plaintiffs status as an exempt employee.
Defendants have not definitively demonstrated that Plaintiff has met the prerequisites for either an administrative or professional exemption. Therefore, summary judgment is not appropriate on the FLSA claims.
B) Discriminatory Discharge Under USERRA
Under USERRA, “employers have the burden of proving that the discharge was reasonable,” making it “difficult for employers to achieve summary judgment on claims” under the statute.
Francis v. Booz, Allen & Hamilton, Inc.,
Defendants argue that this Court should apply the Fourth Circuit’s inference from
Proud v. Stone,
In this case, Mr. Setian hired Plaintiff, knowing that he wаs an army reservist. Less than eight months later, Mr. Setian was responsible for terminating Plaintiffs employment. Defendants assert that Plaintiff was discharged for poor work performance, a legitimate and nondiscriminatory reason. Plaintiff agrees that Mr. Setian was aware that he was a reservist, and does not deny that his work was sometimes criticized, but claims that “ ‘no one had formally told [him he] wasn’t doing his job correctly,’ ” that “he only recalls being criticized for some grammatical mistakes, and .. that he was not formally counseled” regarding his allegedly insufficient job performance. Pl.’s Opp’n at 8. Defendants allege that because Plaintiff “received written criticism regarding the quality of his work prior to allegedly notifying Defendants of his need to take two weeks *793 leave for reserve duty,” they have met their burden of demonstrating that he was fired for a nondiscriminatory reason. Def.’s Reply at 3. Therefore, Defendants argue, the discharge of Plaintiff meets the four requirements from Proud such that the Court should find that Plaintiffs status as a reservist played no role in Defendants’ decision to terminate Plaintiff and grant summary judgment.
Plaintiff argues that the Proud rationale is inapplicable to this case. Plaintiff distinguishes between reservist status and the type of disabilities to which the Fourth Circuit hаs applied the rationale, all of which are immediately apparent to an employer at the time of hiring. The amount of time away from work required by a reservist is not as immediately obvious. In this case, according to Plaintiff, when Defendants hired him they believed that his U.S. Army Reserve obligations would be limited to weekends and not require service during the workweek. When Defendants were told of Plaintiffs upcoming obligation, requiring two weeks of leave from work and the likelihood of more extensive leave in the future, they realized that his reserve requirements were greater than originally understood. Plaintiff arguеs that Defendants were not actually aware of the extent of job flexibility required by his protected condition when they hired him and that it was the perceived increase in reservist obligations that triggered his discriminatory termination. Therefore, he argues, the Proud inference does not apply.
Defendants assert that Plaintiffs reservist status had nothing tо do with the decision to terminate his employment. They deny that the meeting during which Plaintiff informed them of his need for leave ever occurred “or that Sutherland ever notified them of a specific need for a leave or two or more weeks.” Def.’s Mem. at 16 nl. The existence of this meeting or conversation is a disputed issue of material fact. Although it is not the only factor to be considered, “[discriminatory motivation under the USERRA may be reasonably inferred from a variety of factors, including proximity in time between the employee’s military activity and the adverse employment action.”
Sheehan v. Dep’t of the Navy,
IV. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment will be denied.
An appropriate Order will issue.