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Jackson v. Reliasource, Inc.

United States District Court, D. Maryland

January 18, 2017



          William M. Nickerson Senior United States District Judge.

         Plaintiff Andre Jackson initially brought this suit under Section 16(b) of the Federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201, et seq. (FLSA), and the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401, et seq. (MWHL), seeking overtime compensation for hours worked in excess of 40 hours per week. He brings this suit against his former employer, ReliaSource, Inc. (ReliaSource) and ReliaSource's owners, Joseph and Julie Zuramski. As discussed below, the substantive issue in this action is a straightforward one, i.e., whether or not Plaintiff was exempt from overtime pay under the executive employee exception of the FLSA, 29 C.F.R. § 541.100(a), and the parallel provision of the MWHL, Md. Code Ann., Lab & Empl. § 3-403(a)(1). While that legal question is relatively straightforward, the parties, or at least their counsel, have made this action somewhat more procedurally complex.

         Plaintiff filed this action on February 8, 2016. After Defendants filed their Answer, Plaintiff filed a motion for leave to file an amended complaint on April 13, 2016. ECF No. 15. In addition to adding additional allegations of facts in support of his existing claims, Plaintiff seeks to bring an additional claim into this suit under the Maryland Wage Payment Collection Law, (MWPCL), asserting that Defendants failed to pay him all the wages he was due for work performed before the termination of his employment. Plaintiff (or Plaintiff's counsel) states that “[s]ince the filing of Plaintiff's initial Complaint, Plaintiff has received notice that Plaintiff is no longer employed with ReliaSource, Inc.” Id. at 1. Defendants represent, and Plaintiff does not dispute, that Plaintiff was not terminated, but actually gave notice of his resignation on March 1, 2016. The motion for leave to file an amended complaint is fully briefed and pending.

         On April 26, 2016, Defendants filed a motion for summary judgment, arguing that the undisputed facts demonstrate that Plaintiff was an exempt employee. ECF No. 18. On that same date, Defendants also filed a motion for sanctions positing that Plaintiff's employment was so clearly exempt from overtime pay that his bringing of this suit is sanctionable under Rule 11 of the Federal Rules of Civil Procedure. ECF No. 19.[1]Unfortunately, when electronically filing their motion for summary judgment, Defendants' counsel mistakenly attached a copy of the memorandum of law in support of their motion for sanctions, instead of the memorandum of law in support of their motion for summary judgment.

         A cursory review of the mistakenly attached memorandum should have revealed the error. The memorandum was clearly captioned as a “Memorandum of Law in Support of Defendants' Motion for Sanctions Against Plaintiff Andre Jackson” and was identical to the memorandum attached to the other motion filed that same day. Rather than simply communicating with Defendants' counsel, informing counsel of the error, and providing the opportunity to correct it, Plaintiff's counsel filed an opposition to the motion for summary judgment in which counsel complains that Defendants have provided “little, if any, factual or legal analysis in support of their motion.” ECF No. 24 at 2. Three days after this opposition was filed, Defendants filed the intended memorandum in support of their summary judgment motion. Defendants then proceeded to file a reply memorandum in support of the summary judgment motion in which they complain of Plaintiff's failure in his opposition to deny or dispute arguments Defendants made in their motion - arguments that, of course, Plaintiff did not see until after Plaintiff's opposition was filed.

         Citing counsel's inability to respond to arguments it had not seen, Plaintiff filed a motion for leave to file a surreply, which the Court granted. Plaintiff filed a surreply on June 30, 2016. ECF No. 36. On July 12, 2016, Plaintiff's counsel wrote to the Court complaining about inadequate discovery responses from Defendants. ECF No. 37. This case was referred to Magistrate Judge David Copperthite for discovery management and, after a conference call with counsel, Judge Copperthite ordered Defendants to produce a significant amount of additional discovery. ECF No. 40. After a period of additional discovery, Defendants filed a supplement in support of their summary judgment motion, ECF No. 52, and Plaintiff filed a supplemental opposition. ECF No. 53. The motion for summary judgment is now fully briefed and pending, as is the motion for sanctions.

         The process of briefing the summary judgment motion has spawned a fourth motion, a motion to strike filed by Plaintiff. ECF No. 28. Plaintiff complains in his motion to strike that, with Defendants' reply memorandum in support of the summary judgment motion, Defendants attached new documents not previously disclosed to Plaintiff as well as an unsworn and unsigned “affidavit” of Defendant Joseph Zuramski. The motion to strike is now fully briefed and pending.

         Turning first to the motion to strike, Plaintiff opines that the document submitted by Defendants with their reply is technically not an affidavit in that it was not “‘sworn to before someone who is authorized to administer an oath.'” ECF No. 28-1 at 2 (quoting Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006)). While the document is more in the nature of a declaration, it is deficient as a declaration because it is unsigned. Plaintiff also maintains that it contains inadmissible hearsay. Furthermore, Plaintiff complains that the three emails attached to the document were not previously produced in discovery.[2]

         Defendants' response to this motion was simply to request that the Court permit Defendants to substitute a now signed copy of the affidavit for the unsigned version. Defendants represent that Mr. Zuramski was “out of the country” when the reply was filed and, therefore, was unable to sign it. ECF No. 32 at 1. As Plaintiff noted in his reply memorandum, however, the now-signed affidavit submitted with the opposition to the motion to strike indicates that it was Dated: May 31, 2016, the same date on which Mr. Zuramski was supposedly out of the country. While the Court assumes that the document was simply misdated, it is plainly deficient as filed. If Defendants' counsel's representation concerning Mr. Zuramski's whereabouts is accurate, he could not have signed the document on the date so indicated. The Court will grant the motion to strike.[3]

         Plaintiff's motion for leave to file an amended complaint presents some additional conundrums. As noted above, Plaintiff's counsel states that Plaintiff “received notice” that his employment was “terminated” when, in fact, Plaintiff gave notice that he was resigning on March 1, 2016. Plaintiff stated in his deposition that after he gave notice that he was quitting, on that same day he “walked out the door. Email was shut down that day, locks were changed.” Pl.'s Dep. at 12-13. Nevertheless, Plaintiff alleges somewhat cryptically in the proposed Amended Complaint that his “final day of employment with Defendants was between March 1, 2016 and March 15, 2016.” Am. Compl. ¶ 58.

         Defendants' counsel called out Plaintiff's counsel for these obfuscations and suggests that Plaintiff should know what the last day of his employment was and “[u]ndoubtedly, if his employment had been terminated shortly after the filing of the complaint, he would have filed a claim for retaliation.” ECF No. 16 at 2. In his reply in support of the motion to amend, Plaintiff's counsel responds that, in light of his voluntary resignation, Plaintiff “has chosen not to file a retaliation claim at this time.” ECF No. 22 at 5. Remarkably, he also asserts that he “may seek to file a retaliation claim if sufficient facts to establish a retaliation claim are presented during pretrial discovery.” Id. at 5 n.1. Because Plaintiff resigned, any claim of retaliatory discharge would have to be premised on a theory of constructive discharge. If Plaintiff resigned, presumably he understands why he resigned and it is unclear how new information disclosed in discovery could augment that understanding.

         Aside from highlighting the above obfuscations, Defendants' opposition offers no direct challenge to the merits of Plaintiff's MWPCL claim. That Plaintiff's employment ended by resignation as opposed to termination does not affect the viability of the claim. See Medex v. McCabe, 811 A.2d 297 (Md. 2002) (a plaintiff who had resigned was permitted to bring a MWPCL claim for unpaid commissions). Whether Plaintiff actually worked during the period between March 1 and March 15, 2016, is also not determinative of his MWPCL. If Plaintiff was entitled to overtime pay while employed, a MWPCL claim can be asserted for that unpaid overtime. See Peters v. Early Healthcare Giver, Inc., 97 A.3d 621, 625 (Md. 2014) (reaffirming “that both the [M]WHL and the [M]WPCL are vehicles for recovering overtime wages”). Whether Plaintiff is entitled to overtime wages is, of course, the focus of Defendants' motion for summary judgment.

         Under Rule 56, the Court “shall grant summary judgment if 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.” Fed.R.Civ.P. 56(a). In considering the motion, the judge's function is “not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. In ruling on a motion for summary judgment, the Court must “view the evidence in the light most favorable to . . . the nonmovant and draw all reasonable inferences in [his] favor.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).

         In moving for summary judgment, Defendants do not assert that Plaintiff worked 40 hours or less per week but argue that he is an exempt employee under the “executive employee exemption” of the FLSA as defined in the Department of Labor regulations. 29 C.F.R. § 541.100(a). It is well settled in the Fourth Circuit that “‘employers must prove application of the exemptions by clear and convincing evidence.'” Desmond v. PNGI Charles Town Gaming, LLC, 564 F.3d 688, 691 n.3. (4th Cir. 2009) (quoting Shockley v. City of Newport News, 997 F.2d 18, 21 (4th Cir. 2008)). Moreover, it is also well settled in this Circuit that “FLSA exemptions are to be ‘narrowly construed against the employers seeking to assert them and ...

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