United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge
Dong Kim worked for Defendant Confidential Studio, Inc.
(“Confidential Studio”), a dental business
dedicated to the manufacture of false teeth and owned by
Defendant Raphael Choi, from August 2011 until January 2015.
Compl. ¶ 9, ECF No. 1; Defs.' Mot. 1, 8, ECF No. 30;
Pl.'s Opp'n 1-2, ECF No. 31. After working for
Defendants for approximately three and a half years, Kim
filed suit against his employer, claiming that Confidential
Studio violated state and federal law by failing to pay him
overtime wages. Compl. ¶ 8. Defendants seek summary
judgment, arguing that it is “well settled” that
Kim's salary “far exceeded” $455 per week
“and his job duties directly related to the management
and general business operations of the Practice, ” such
that the administrative exemption applied and he was not
entitled to overtime pay. Defs.' Mot. 2, 7. Yet Kim has
identified evidence in the record showing that some weeks he
received less than $455 and that he was not working in an
administrative capacity. Moreover, he has identified
documentary evidence of questionable authority and weight
that Confidential Studio relied on to prove its defense that
cannot, when challenged, support Confidential Studio's
claims that there is no genuine dispute of material fact.
Pl.'s Opp'n 31; see Jt. Ex., ECF No.
Therefore I will deny Defendants' Motion and schedule a
trial in this case.
reviewing a motion for summary judgment, the Court considers
the facts in the light most favorable to the nonmovant,
drawing all justifiable inferences in that party's favor.
Ricci v. DeStefano, 557 U.S. 557, 585-86 (2009);
George & Co., LLC v. Imagination Entm't
Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009). Summary
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See Celotex
v. Catrett, 477 U.S. 317 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Instead, the
evidentiary materials submitted must show facts from which
the finder of fact reasonably could find for the party
opposing summary judgment. Id.
to the FLSA, an employer cannot “employ any of his
employees . . . for a workweek longer than forty hours unless
such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207. However, the FLSA
exempts “any employee employed in a bona fide
executive, administrative, or professional capacity”
from overtime pay. 29 U.S.C. § 213(a)(1); see Lane
v. Sys. Application & Techs., Inc., No. DKC-13-3566,
2015 WL 1013449, at *6 (D. Md. Mar. 6, 2015).
“‘Administrative capacity' has the same
meaning under the regulations governing the MWHL as it does
under the FLSA regulations. Thus, an employee who qualifies
for the administrative exemption under the FLSA also will
qualify for that exemption under the MWHL.”
Id. (citing Md. Code Regs.
employer bears the burden of proving that a particular
employee's job falls within such an exemption.”
Darveau v. Detecon, Inc., 515 F.3d 334, 337 (4th
Cir. 2008). The employer must establish “by clear and
convincing evidence that an employee qualifies for
exemption.” Shockley v. City of Newport News,
997 F.2d 18, 21 (4th Cir. 1993). The Court narrowly construes
the exemption against the employer. See Darveau, 515
F.3d at 337.
establish that Kim is an exempt employee under the
administrative exemption, Confidential Studio must
demonstrate that (1) Kim was “[c]ompensated on a salary
or fee basis at a rate of not less than $455 per week”;
(2) his “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”; and (3) his
“primary duty include[d] the exercise of discretion and
independent judgment with respect to matters of
significance.” 29 C.F.R. § 541.200(a); see
Rossi v. Circle Treatment Ctr., P.C., No. 14-3803-GJH,
2015 WL 1815501, at *2 (D. Md. Apr. 17, 2015);
Darveau, 515 F.3d at 338; Lane, 2015 WL
1013449, at *6.
employee [is] considered to be paid on a ‘salary
basis' . . . if the employee regularly receives each pay
period . . . a predetermined amount constituting all
or part of the employee's compensation, which amount is
not subject to reduction because of variations in the quality
or quantity of the work performed.” 29 C.F.R. §
541.602(a) (emphasis added). Some deductions are permissible,
such as for certain absences for at least one full day, as
“penalties imposed in good faith for infractions of
safety rules of major significance, ” and “for
unpaid disciplinary suspensions of one or more full days
imposed in good faith for infractions of workplace conduct
rules . . . imposed pursuant to a written policy applicable
to all employees.” Id. § 541.602(b).
“If employees are actually paid on an hourly rather
than a guaranteed salary basis, regardless of the kind of
duties performed, they are covered by the wage and hour
laws.” Donovan v. Kentwood Dev. Co., 549
F.Supp. 480, 484 (D. Md. 1982).
testified that Confidential Studio did “not keep track
of any employee hours.” Choi Dep. 68:6-12, Jt. Ex. 23.
Yet, Kim's biweekly paychecks from January 1, 2013
through June 16, 2014 show that he did not receive a
consistent salary, which calls into question whether he was
receiving a predetermined amount. See Pl.'s
Paychecks, Jt. Ex. 129-291. Without addressing whether Kim
was paid on a “salary basis, ” Confidential
Studio asserts that Kim earned in excess of the statutory
amount, see Defs.' Mot. 7, and it is undisputed
that this is true of many of the weeks Kim worked for
Defendants, see Pl.'s Opp'n 5. But,
significantly, he received less than $910 (the equivalent of
$455 per week for two weeks) for seven paychecks during that
period. Pl.'s Paychecks, Jt. Ex. 129-291 (Feb. 16, 2013
paycheck for $200.00, Jt. Ex. 137; Nov. 1, 2013 paycheck for
$457.00, Jt. Ex. 170; Nov. 16, 2013 paycheck for $700.00, Jt.
Ex. 172; Dec. 24, 2013 paycheck for $100.00, Jt. Ex. 178;
Jan. 7, 2014 paycheck for $150.00, Jt. Ex. 181; Apr. 16, 2014
paycheck for $100.00, Jt. Ex. 196; July 16, 2014 paycheck for
$300.00, Jt. Ex. 212). He testified that he “received
1400 something” every two weeks “after July of
2014, after tax, but before then [he did] not know
well” how much he received. Kim Dep. 44:18 - 50:6, Jt.
Ex. 63- 64.
it is far from clear (and much less than “clear and
convincing”) that Kim received “a predetermined
amount.” See 29 C.F.R. § 541.602(a).
Moreover, Kim has shown that a genuine dispute exists
regarding whether he received a salary “of not less
than $455 per week” while working for Defendants.
Because this fact is material to whether Kim was an exempt
employee and therefore not entitled to overtime pay,
see 29 C.F.R. § 541.200(a), it alone is
sufficient to defeat Defendants' summary judgment motion.
See Celotex v. Catrett, 477 U.S. 317 (1986). But,
genuine disputes exist as to the other elements of the
exemption as well.
employee's “‘primary duty'” is
“‘the principal, main, major or most important
duty that the employee performs, '” which the Court
determines “‘based on all the facts in a
particular case, with the major emphasis on the character of
the employee's job as a whole.'” Lane,
2015 WL 1013449, at *7 (quoting 29 C.F.R. § 541.700(a)).
The Court considers how much time the employee
“‘spent performing exempt work'” and
how important his exempt duties were in comparison to his
other duties, as well as how much “direct