United States District Court, D. Maryland
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this Fair Labor Standards Act ("FLSA") case is a motion for summary judgment (ECF No. 41), filed by Defendants Timothy Adams ("Mr. Adams") and Systems Application & Technologies, Inc. ("SA-TECH") (collectively, "Defendants"). Also pending are two motions to suppress, filed by pro se Plaintiff Renetta Lane ("Plaintiff" or "Ms. Lane"),  (ECF Nos. 47 & 50), a motion for leave to amend her opposition to Defendants' motion for summary judgment, also filed by Plaintiff, (ECF No. 51), and multiple discovery-related motions (ECF Nos. 21, 23, 35, 37). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion for summary judgment filed by Defendants will be granted. Plaintiff's motions to suppress deposition and five affidavits will be denied. The motion for leave to file an amended opposition filed by Plaintiff also will be denied. All discovery-related motions will be denied as moot.
A. Factual Background
SA-TECH is a "professional services company specializing in providing Operations & Maintenance (O&M), Program Management and Logistics support in highly regulated environments, to support the Test & Evaluation (T&E) and Training missions of a variety of Department of Defense customers. SA-Tech has over $40 million in revenue annually and employs over 300 people." (ECF No. 41-9, at 1 ¶ 4, Adams Affidavit). Timothy Adams is the President and CEO of SA-Tech. (Id. ¶ 3). SA-TECH hired Renetta Lane in 2006 to serve as a Quality Assurance Manager. (Id. ¶ 5). In that role, Plaintiff earned approximately $68, 000 and was qualified as an "exempt" employee under the FLSA. (Id.; see also ECF No. 44, at 36 ¶ 7, Lane affidavit).
In approximately September 2007, the contract over which Ms. Lane was the Quality Assurance Manager was terminated. (ECF No. 41-9, at 1 ¶ 6). At that point, Ms. Lane accepted the position as an Executive Administrative Assistant to the President and CEO of SA-Tech, Mr. Adams. According to Defendants, Ms. Lane earned approximately $82, 000 per year in her new role and was classified as "exempt" under the FLSA. (Id. ). Plaintiff provides a different salary breakdown: "[m]y annual salary from 2010-2012 was $74, 003, $74, 730, and $73, 468, an average of $35 an hour, and an increase of $3 an hour during my 7 years at SA-TECH. My salary earned prior to my resignation on July 12, 2013 was $41, 109.11 having worked 14 of the 26 pay periods prior to my departure." (ECF No. 44-1, at 2 ¶ 8).
The parties disagree regarding Ms. Lane's primary duty as an Executive Administrative Assistant for Mr. Adams. Plaintiff believes that she served primarily as a personal caregiver for Mr. Adams and largely performed tasks related to Mr. Adams's personal needs, rather than the operation of SA-TECH. Defendants assert that in addition to her role as the sole executive administrative assistant to Mr. Adams, in which capacity she performed administrative duties, Plaintiff also independently handled business-related tasks such as human resources and supervisory responsibilities. Additional facts will be presented in the analysis section below. Plaintiff resigned from SA-Tech on July 12, 2013. (ECF No. 44-1, at 2 ¶ 10).
B. Procedural Background
On November 25, 2013, Plaintiff brought this action against Defendants SA-TECH and Timothy J. Adams, alleging violations of the Fair Labor Standards Act ("FLSA"), the Maryland Wage and Hour Law ("MWHL"), and the Maryland Wage Payment and Collection Law ("MWPCL"). (ECF No. 1).
After both parties filed multiple discovery-related motions, Defendants moved for summary judgment on June 20, 2014. (ECF Nos. 40 & 41). Plaintiff was provided with a Roseboro notice (ECF No. 43), which advised her of the pendency of the motion to dismiss and her entitlement to respond within seventeen (17) days from the date of the letter. Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975) (holding pro se plaintiffs should be advised of their right to file responsive material to a motion for summary judgment). Plaintiff opposed the motion, (ECF No. 44), and Defendants replied (ECF No. 45). On August 18, 2014, Plaintiff filed a supplement to her opposition, (ECF No. 46), to which Defendants objected (ECF No. 49). Plaintiff also filed a motion to suppress the use of her deposition (ECF No. 47), and a motion to suppress six affidavits (ECF Nos. 47 & 50). Defendants opposed both motions to suppress. (ECF Nos. 48 & 53). Plaintiff then moved for leave to amend her opposition to Defendants' motion for summary judgment, (ECF No. 51), to which Defendants also objected (ECF No. 52).
A. Plaintiff's Motions to Suppress
After the motion for summary judgment was fully briefed, Plaintiff moved to suppress use of her own deposition as evidence on summary judgment. ( See ECF No. 47). Plaintiff argues that her deposition should be excluded because it is incomplete, unsigned, and uncertified. (Id. at 1). Plaintiff asserts that she was not given the opportunity to make changes to her deposition, and includes a proposed four-page errata sheet. (ECF No. 47-1). Defendants object to the errata sheet and the suppression of the deposition, arguing that Plaintiff failed to submit her proposed changes within the allowable thirty-day time frame, and now attempts to make substantive changes to her deposition testimony. ( See ECF No. 48).
Plaintiff's deposition was taken on May 7, 2014. The parties agree that Plaintiff requested to review her deposition, and that she received via email a copy of her deposition on May 21, 2014. (ECF No. 47, at 1; ECF No. 48-1, at 1-3). The deposition reporting company, Planet Depos, sent a letter to Plaintiff to inform her that she had 30 days - from May 21, 2014 - to read and sign her deposition and to submit an errata sheet. (ECF No. 48-1, at 1). Notably, the letter informed Plaintiff that if she did not return the errata and acknowledgement sheets within thirty (30) days, it would be assumed that her request for reading and signing her deposition was no longer desired. (Id. ). Discovery in this case closed on May 30, 2014 per the scheduling order. ( See ECF No. 12). On June 3, 2014, defense counsel sent a letter to Planet Depos, stating: "[t]he discovery cutoff in this matter was May 30, 2014. Please close Ms. Lane's deposition." (ECF No. 48-1, at 4). Defense counsel sent a copy of this letter to Plaintiff. (Id. ). Plaintiff states that because she "was notified that the deposition was shut down[, she] ceased errata corrections[, ] waiting for determination from the court on several motions that plaintiff ha[d] pending[, ] including a motion to extend discovery." (ECF No. 47, at 2). In the motion to extend the discovery deadline, filed on May 23, 2014, Plaintiff did not indicate that she needed more time to review her own deposition transcript. ( See ECF No. 37).
Fed.R.Civ.P. 30(e)(1) permits "changes to deposition testimony in form or substance' if the changes are made within 30 days of notification that the transcript is available and accompanied by the reasons for making them." Wyeth v. Lupin Ltd., 252 F.R.D. 295, 296 (D.Md. 2008). As recently explained by Judge Hollander in Maryland Elec. Industry Health Fund v. MESCO, Inc., Civ. Action No. ELH-12-505, 2014 WL 853237, at *16 (D.Md. Feb. 28, 2014):
[C]ourts have differed in the latitude granted to deponents seeking to alter their testimony. To my knowledge, the Fourth Circuit has not squarely addressed the issue. Some courts have allowed deponents who adhere to the procedural requirements of Rule 30(e) to change the substance of their deposition testimony. Wyeth, 252 F.R.D. at 296 (citing Foutz v. Town of Vinton, Virginia, 211 F.R.D. 293, 295 (W.D.Va. 2002)). Other courts "interpret the rule as foreclosing changes that materially alter the testimony or contradict the testimony." Wyeth, 252 F.R.D. at 296; see Donald M. Durkin Contracting, Inc. v. City of Newark, 2006 WL 2724882, at *5 (D.Del. Sept. 22, 2006) ("The errata sheet clarifications' in this case are akin to a student who takes her in-class examination home, but submits new answers only after realizing a month later that the import of her original answers could possibly result in a failing grade.").... Recent decisions in this Court have adhered to the latter approach. See Harden v. Wicomico Cnty., 263 F.R.D. 204, 308-09 (D.Md. 2009) ; Wyeth, 262 F.R.D. at 296.
(emphasis added); see also In re Grant, 237 B.R. 97, 108 (Bankr.E.D.Va. 1999) ("Rule 30(e) clearly states a 30 day time limitation for modification of transcripts and fails to formulate any exception to the rule." As explained in Harden, 263 F.R.D. at 306, the "[f]ailure of the party or deponent to return the deposition with properly executed changes within 30 days constitutes a waiver of the right to examine and read the transcript."
Plaintiff did not submit an errata sheet until August 18, 2014 - more than eighty days after the date she received the deposition transcript. Moreover, Plaintiff cannot belatedly make substantive changes to her deposition testimony because she believes Defendants misconstrue her testimony to their advantage in their summary judgment papers. Plaintiff does not provide clear or convincing reasons for making the substantive changes in her proposed errata sheet. Many of the changes suggest that Plaintiff now seeks to elaborate on the responses she provided during her deposition, but that is not a sufficient ground for excluding from consideration her deposition in its entirety or for accepting her proposed changes at this late stage.
Furthermore, Plaintiff's argument that her deposition should not be considered overlooks the fact that indeed she relies heavily on her own deposition in arguing against summary judgment. See, e.g., Brown v. White's Ferry, Inc., 280 F.R.D. 238, 243 (D.Md. 2012) ("Plaintiffs cannot in good conscience ask the court to rely on the discovery responses in support of their motion and then argue that the evidence is incompetent to the extent that [defendant] relies on the same evidence. Indeed, a party waives any objection to the admissibility of evidence on summary judgment by offering that evidence in support of its own motion."). For instance, Plaintiff quotes various excerpts from her deposition in her opposition memorandum to the motion for summary judgment. ( See ECF No. 44, at 10-12, 17-18, 27-29). Plaintiff also contends that "[i]n [her] deposition[, ] she provides testimonial evidence that her primary duty is taking care of Mr. Adams." (Id. at 31). Accordingly, her motion to suppress her deposition will be denied.
After the summary judgment motion was fully briefed, Plaintiff moved to suppress in their entirety the statements from the following witnesses, whose affidavits Defendants attach as exhibits in support of their motion for summary judgment: Gianni Adams (ECF No. 41-12, at 1-4); Charles Smith (ECF No. 41-11, at 1-3); Candice Williams (ECF No. 41-15, at 1-2); Karen Chergoski (ECF No. 41-14, at 1-3); and Geoff DeZavala (ECF No. 41-13, at 1-6). Plaintiff argues that these witnesses are biased because they are related to Mr. Adams and employed by SA-TECH, that they misunderstand what constitutes "independent judgment" under the FLSA's administrative exemption, and that they are not being truthful about Plaintiff's core responsibilities at SA-TECH. ( See ECF No. 50-1). Defendants construe Plaintiff's motion to suppress these affidavits either as a motion to strike or a surreply, either of which they contend is improper.
Plaintiff did not move to strike the affidavits, but to suppress them from consideration in adjudicating Defendants' motion for summary judgment. The proper way for a party to object to an opposing party's motions, memoranda, or affidavits is through the briefs or memoranda that the party submits to the court. Muir v. Applied Integrated Technologies, Inc., Civ. Action No. DKC 13-0808, 2013 WL 6200178, at *4 (D.Md. Nov. 26, 2013). "The court will then implicitly, if not explicitly, rule upon [the] objections in its consideration of the motion." Id. ( quoting McNair v. Monsanto Co., 279 F.Supp.2d 1290, 1298 (M.D.Ga. 2003)). Plaintiff did not argue that these affidavits should be suppressed in her opposition to the motion for summary judgment.
Regardless of any procedural improprieties, however, Plaintiff's stated reasons for disregarding these affidavits do not warrant their suppression. Under Fed.R.Civ.P. 56(c)(4), affidavits used to support or oppose a motion for summary judgment must: be made on personal knowledge; set out facts that would be admissible in evidence; and show that the affiant is competent to testify on the matters stated. Here, Plaintiff does not dispute that the affidavits are made on personal knowledge or that each affiant is competent to testify, nor does she argue inadmissibility. Rather, Plaintiff believes that each witness is either misconstruing or misrepresenting facts, which goes to the witnesses' credibility. Plaintiff's disagreement with the statements made in the respective affidavits is not a reason to suppress them from consideration. Indeed, Plaintiff may - and does - attempt to rebut the statements made by Defendants' witnesses by providing affidavits from witnesses in support of her position.
Accordingly, Plaintiff's motion to suppress the five affidavits will be denied.
B. Plaintiff's Supplemental Exhibits and Motion for Leave to Amend her Opposition
After Defendants' motion for summary judgment was fully briefed, Plaintiff filed 142 pages worth of exhibits, requesting that these exhibits be added to the affidavit she submitted in support of her opposition memorandum on July 18, 2014. (ECF No. 46). These exhibits largely consist of emails, copies of tickets to various events, resumes, office documents, and spreadsheets of appointments to which Ms. Lane asserts she accompanied Mr. Adams. ( See ECF No. 46-1). Defendants characterize this submission as a surreply and request that it be stricken. ( See ECF No. 49). As Defendants argue, Plaintiff does not offer any explanation for her delay in seeking to submit additional exhibits and why she could not submit these exhibits at the time she filed her opposition on July 18, 2014. Although Plaintiff does not provide any explanation in her supplemental submission as to the import of the emails and additional documents she includes as additional exhibits, the affidavit she provided as an exhibit to her opposition memorandum references multiple exhibits, presumably ones that she now seeks to add. Considering Plaintiff's pro se status, insofar as she references specific emails or documents in her opposition memorandum or affidavit which were not included as exhibits to her opposition, the court will consider the supplemental exhibits.
The same cannot be said of Plaintiffs' motion for leave to amend her opposition memorandum, which she submitted over one month after the motion for summary judgment was fully briefed. ( See ECF No. 51). Plaintiff does not explain why she seeks to amend her opposition and a review of her proposed amended opposition reveals that she largely raises the same arguments she lodged in her original opposition brief. She also attempts to introduce prior litigation involving SA-TECH. ( See id. at 3-4). Although Plaintiff cites Fed.R.Civ.P 15 regarding amendment of pleadings, it does not apply here. A response to a motion for summary judgment does not constitute a pleading under Rule 15. Per Fed.R.Civ.P. 7(a), pleadings include the complaint, the answer to a complaint, counterclaim, or crossclaim, and - if permitted by the court - a reply to an answer. It is wholly unclear why Plaintiff needs yet another opportunity to address the arguments made in Defendants' motion for summary judgment, which she had a chance and did address in her original opposition memorandum. Accordingly, her motion for leave to amend the opposition will be denied.
C. Defendants' Motion for Summary Judgment
1. Standard of Review
A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Once a properly supported motion for summary judgment is filed, the nonmoving party is required to make a sufficient showing on an essential element of that ...