United States District Court, D. Maryland
WAYNE ALLEN et al. Plaintiffs
ENABLING TECHNOLOGIES CORP. Defendant
William M. Nickerson Senior United States District Judge
December 30, 2014, Plaintiffs Wayne Allen and Howard Cable
filed a Complaint against their former employer, Defendant
Enabling Technologies Corp. ECF No. 1. Plaintiffs’
three-Count Complaint alleges violations of 1) the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201, et seq.;
2) the Maryland Wage and Hour Law (MWHL), Md. Code Ann., Lab
& Empl. § 3-401 et seq., and 3) the
Maryland Wage Payment and Collection Law (MWPCL), Md. Code
Ann., Lab & Empl. § 3-501 et seq. Id. Now
pending before the Court is Plaintiffs’ Motion for
Summary Judgment,  ECF No. 27; Defendant’s Cross-Motion
for Summary Judgment, ECF No. 33; Defendant’s Motion
for Leave to File Amended Answer, ECF No. 31;
Plaintiffs’ Motion to Strike, ECF No. 41; and
Defendant’s Motion for Leave to File Reply Memorandum
in Excess of Twenty-Five Pages, ECF No. 42. Upon a review of
the pleadings and the applicable case law, the Court
determines that no hearing is necessary. Local Rule 105.6.
For the reasons set forth below, the Court will deny
Plaintiffs’ Motion for Summary Judgment, deny
Defendant’s Cross-Motion for Summary Judgment, grant
Defendant’s Motion for Leave to File Amended Answer,
deny Plaintiffs’ Motion to Strike, and grant
Defendant’s Motion for Leave to File Reply Memorandum
in Excess of Twenty-Five Pages.
Enabling Technology Corp. (ETC) is a Maryland corporation
with its principle place of business in Glen Arm, Maryland.
Defendant specializes in information technology (IT)
services. According to ETC’s founder and President,
Bill Vollerthum, the corporation provides unified
communications and unified messaging solutions,
including information technology infrastructure, objective
strategic assessment, design, planning, and implementation to
a variety of clients throughout the United States. Vollerthum
Affidavit ¶ 3, ECF No. 33-4. Defendant employs Support
Engineers, also referred to as Messaging Engineers, Unified
Messaging Engineers, and Unified Communications Engineers, to
provide customer support and update client IT systems. ECF
No. 33-2 at 5. Support Engineers generally have a technical
background in the IT, software, and/or computer science
fields. Vollerthum Affidavit ¶ 6, ECF No. 33-4.
worked for Defendant as Messaging Engineers. ECF No. 27-3 at
Plaintiff Wayne Allen worked for Defendant from September 4,
2012, until approximately December 1, 2014. ECF No. 1 ¶
8. Allen worked remotely from his home in Florida.
Allen’s base salary was $52, 500 and that salary
increased to approximately $55, 125 in October of 2013. ECF
No. 33-8 ¶ 11. On or about November 28, 2014, Allen was
terminated. ECF No. 33-4 ¶ 20. Plaintiff Howard Cable
worked for Defendant from December 14, 2009, until August of
2014. ECF No. 1 ¶ 8; ECF No. 33-2 at 10. Cable worked in
Defendant’s Maryland office two days a week, and worked
the rest of the week remotely from his home office. ECF No.
33-8 ¶ 9. Cable’s base salary was $63, 000 and
increased to $66, 780 in April of 2011, $70, 787 in April of
2012, and $74, 326.35 in October of 2013. ECF No. 33-8 ¶
5. On August 13, 2014, Cable was terminated. ECF No. 33-4
regular work schedule for ETC employees such as Plaintiffs
was Monday through Friday from 8:30 a.m. until 5:00 p.m. ECF
No. 33-2 at 7. Once every four to six weeks, ETC employees
took turns working on call in addition to their regular
schedule. During an on call week, employees were obligated to
respond to work requests from 5:00 p.m. to 8:30 a.m. Monday
through Thursday and from 5:00 p.m. Friday through 8:30 a.m.
Monday. In order to perform on call duties, ETC employees
needed ready access to their cell phone and email. ECF No.
33-4 ¶ 8. As extra compensation for on call weeks,
employees received a lump sum payment of $350-$400. ECF No. 1
crux of Plaintiffs’ Complaint is that, pursuant to the
FLSA and MWHL, Defendant was obligated to compensate
Plaintiffs at the overtime rate of one-and-one-half times
their regular rate for all hours worked in excess of forty
hours per week, and that Defendant’s failure to do so
was willful and intentional, and was not in good faith.
Plaintiffs request unpaid overtime wages under the FLSA and
MWHL, liquidated damages in an amount equal to their unpaid
overtime wages under the FLSA and MWHL, treble damages under
the MWPCL, interest, costs, and attorney’s fees.
following two issues are pertinent to the parties’
motions for summary judgment: 1) whether Plaintiffs were
properly classified as exempt from the FLSA’s overtime
pay requirements pursuant to exemptions found at 29 U.S.C.
§ 213(a)(1) and/or 29 U.S.C. § 213(a)(17); and 2)
if Plaintiffs were misclassified, how many hours of overtime
Plaintiffs worked during their tenures at ETC. As to
classification, Plaintiffs argue that they did not perform
the type of high level work that is exempt from the overtime
pay requirements of the FLSA and MWHL. In response, Defendant
argues that due to Plaintiffs’ salaries, skill levels,
and primary duties, they were properly classified as exempt
employees, ineligible for overtime pay. As to the number of
overtime hours worked, Plaintiffs claim that they worked an
average of 60 hours per week, 50.5 hours during regular work
weeks and 92 hours during on call weeks. ECF No. 27-3 ¶
9. In response, Defendant argues that Plaintiffs worked 40
hours during regular work weeks and 50 to 60 hours during on
call weeks. ECF No. 33-2 at 9.
Defendant’s Motion for Leave to File Amended
February 29, 2016, Plaintiffs filed a Motion for Summary
Judgment, in which they asserted that by “failing to
plead the ‘computer professional’ defense as part
of its Answer or Amended Answer, Defendant has waived its
right to raise the affirmative defense that Plaintiffs were
exempt computer professionals.” ECF No. 27-3 at 6. In
response to that motion, on March 11, 2016, Defendant filed a
Motion for Leave to File Amended Answer pursuant to Federal
Rule of Civil Procedure 15(a)(2). ECF No. 31. Defendant asserts
that Plaintiffs were properly notified that it planned to
raise an FLSA exemption defense and that, assuming arguendo
that the exemption defense was not properly raised,
Plaintiffs cannot show prejudice or unfair surprise which
would support a finding of waiver. ECF No. 31-1 at 7.
to Rule 8(b)(1)(A), “[i]n responding to a pleading, a
party must: state in short and plain terms its defenses to
each claim asserted against it.” Additionally, under
Rule 8(c)(1), “[i]n responding to a pleading, a party
must affirmatively state any avoidance or affirmative
defense.” A defendant’s failure to sufficiently
plead an affirmative defense may result in the waiver of such
defense. RCSH Operations, LLC v. Third Crystal Park
Associates LP, 115 Fed. App’x 621, 629 (4th Cir.
2004). “[T]he application of an exemption under the
Fair Labor Standards Act is an affirmative defense.”
Corning Glass Works v. Brennan, 417 U.S. 188,
196-197 (1974). Under Affirmative Defenses, Defendant’s
Amended Answer asserts:
20. The Complaint in its entirety fails to state a claim upon
which relief may be granted.
21. Plaintiffs’ claims are barred by the statute of
22. All actions taken by the Defendant with respect to the
Plaintiffs were taken completely in good faith with high
regard for the rights of the Plaintiffs.
23. Plaintiffs were paid in accordance with the law.
ECF No. 12 at 3.
regards to paragraph 23, Plaintiffs assert that this
“vague, general denial gave [them] no insight as to
whether Defendant would assert a claim for exemption in its
defense.” ECF No. 32 at 2. With regards to the same
paragraph, Defendant asserts that Plaintiffs were properly
notified of its contention that they were exempt from the
overtime pay provisions of the FLSA. ECF No. 31-1 at 6-7. In
support of this contention, Defendant cites Hanzlik v.
Birach, a case where the court, in considering the
affirmative defense that the plaintiff “was exempt from
the FLSA’s overtime requirements, ” found that
the plaintiff was adequately put on notice that the defendant
intended to prove that the plaintiff was not covered by the
FLSA. Civil No. JCC-09-221, 2009 WL 2147845, at *2-4 (E.D.
Va. July 14, 2009). The court opined that “[f]orcing a
defendant to cite each and every applicable statute and
regulation that may support an FLSA exemption at the answer
stage would be contrary to the spirit of Rule 8” and
that “[t]he matter can be fleshed out through
discovery.” Id. at 4. Defendant’s
assertion that “Plaintiffs were paid in accordance with
the law” is another way of saying “Plaintiffs
were exempt from the FLSA.” This Court agrees with the
court’s above-cited sentiment in Hanzlik.
Court need not decide whether Defendant sufficiently pled an
FLSA exemption, however, because Plaintiffs have not
demonstrated prejudice due to Defendant’s alleged
pleading failure. “Failure to raise an affirmative
defense until the summary judgment phase of a case does not
waive the defendant’s ability to assert the defense
absent a showing of prejudice to the plaintiff.”
Cornell v. Council of Unit Owners Hawaiian Vill.
Condominiums, Inc., 983 F.Supp. 640, 642-643 (D. Md.
1997). Plaintiffs cannot show prejudice because the primary
issue focused on throughout discovery was whether they were
properly classified as exempt employees under 29 U.S.C.
§ 213(a)(1) and 29 U.S.C. § 213(a)(17).
See ECF No. 31-1 at 7-16. Further, Plaintiffs’
Motion for Summary Judgment sufficiently contemplates and
responds to those exemptions.
applicability of an exemption is the principle issue in this
matter; whether or not an exemption applies governs all other
issues raised in the parties’ motions for summary
judgment. Plaintiffs’ attempt to avoid the threshold
issue and suggestion that form should prevail over substance
is contrary to the federal policy of resolving cases on the
merits. Conley v. Gibson, 355 U.S. 41, 48
(1957). The Court will grant Defendant’s motion, and
allow Defendant to amend its Amended Answer in order to
expressly state its affirmative defense that Plaintiffs were
properly classified as exempt employees pursuant to 29 U.S.C.
§ 213(a)(1) and/or 29 U.S.C. § 213(a)(17).
Plaintiffs’ Motion to Strike and Defendant’s
Motion for Leave to File Reply ...