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Smith v. BLD Services, LLC

United States District Court, D. Maryland

February 21, 2018

KENNETH SMITH Plaintiff,
v.
BLD SERVICES, LLC Defendant.

          MEMORANDUM OPINION

          J. Mark Coulson United States Magistrate Judge

         This suit arises from Plaintiff Kenneth Smith's (“Plaintiff” or “Mr. Smith”) claim that his employer, Defendant BLD Services, LLC, (“Defendant” or “BLD”) unlawfully denied him overtime compensation under the Fair Labor Standards Act (“FLSA”), the Maryland Wage and Hour Law (“MWHL”), and the Maryland Wage Payment and Collection Law (“MWPCL”). (Compl., ECF No. 1). The parties consented to proceed before a magistrate judge for all proceedings pursuant to 28 U.S.C. § 636 and Local Rules 301 and 302. (ECF Nos. 19, 24). Currently pending before this Court is Defendant's Motion for Summary Judgment. (ECF No. 25). The Court has reviewed Defendant's Motion, Plaintiff's Response in Opposition thereto, and Defendant's Reply in Support thereof. (ECF Nos. 25, 28, 29). No. hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the reasons that follow, Defendant's Motion is DENIED.

         I. BACKGROUND

         On January 6, 2013, Kenneth Smith began working as a laborer for BLD Services, LLC, a general contracting and construction management firm. (ECF No. 1 at 9). As a laborer, Mr. Smith was paid at an hourly rate and his “duties were limited to maintaining the reefer truck, building bags for installation of the liner chemicals, and installing the liner.” (ECF No. 25-1 at 3). In April of 2014, Mr. Smith was promoted to superintendent[1] and converted to salary pay. He received an initial annual salary of $60, 000.00 until November of 2015, when he received a raise and was then paid an annual salary of $65, 000.00. Although the precise nature of Mr. Smith's job duties as superintendent is disputed, Mr. Smith worked with a crew of three to four employees in repairing, cleaning, and lining sewers in the Baltimore area. (ECF No. 1 at 2). Mr. Smith claims he worked “far in excess of” 40 hours in a typical week, instead working between 55 and 60 hours per week, and thus is deserving of overtime compensation for the overtime hours worked. (ECF No. 1 at 2, 10).

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56(a) requires the Court to “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.” The moving party bears the burden “to demonstrate the absence of any genuine dispute of material fact.” Jones v. Hoffberger Moving Servs. LLC, 92 F.Supp.3d 405, 409 (D. Md. 2015) (internal citations omitted). A dispute as to a material fact “is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” J.E. Dunn Const. Co. v. S.R.P. Dev. Ltd. P'ship, 115 F.Supp.35 593, 600 (D. Md. 2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         A nonmoving party “opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). The court is “required to view the facts and draw reasonable inferences in the light most favorable to” the nonmoving party, Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (citing Scott v. Harris, 550 U.S. 372, 377 (2007)), but must also “abide by the ‘affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.'” Heckman v. Ryder Truck Rental, Inc., 962 F.Supp.2d 792, 799-800 (D. Md. 2013) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).

         III. DISCUSSION

         In this case, the crux of Plaintiff's claim is that BLD misclassified him as an employee exempt from overtime compensation and paid him on a salary basis in order to avoid paying him overtime compensation mandated by the FLSA and MWHL. Both the FLSA and MWHL require that employees working more than forty hours in a workweek must be paid time and a half for the excess hours worked. 29 U.S.C § 207; Md. Code Ann., Labor & Empl. § 3-415. However, “[t]he FLSA, and, by extension, the MWHL, exempt certain employees from the requirements of overtime wages, including employees in a bona fide executive, administrative, or professional capacity.” Drubetskoy v. Wells Fargo Bank, N.A., Civ. No. CCB-13-2196, 2013 WL 6839508, at *7 (D. Md. Dec. 20, 2013). See Falaiye v. CCA Academic Resources, Civ. No. PX-16-2887, 2017 WL 4098740, at *4 (D. Md. Sept. 14, 2017) (“The [MWHL] exemption generally mirrors that of the FLSA.”). See also 29 U.S.C. § 213(a)(1); Md. Code Ann., Labor & Empl. § 3-403; COMAR § 09.12.41.17.

         The Department of Labor promulgated relevant regulations interpreting the scope of the executive employee exemption. 20 C.F.R. § 541.100 et seq. Those regulations provide that an employee is an executive if: (1) he is compensated on a salary basis at a rate of not less than $455 per week; (2) his primary duty is “management of the enterprise in which the employee is employed”; (3) he “customarily and regularly directs the work of two or more other employees”; and (4) he has “the authority to hire or fire other employees” or his “suggestions and recommendations as to the hiring, firing, advancement, promotion” of other employees are “given particular weight.” 20 C.F.R. § 541.100(a). “Exempt status is an affirmative defense under the FLSA, and, therefore, the defendant bears the burden of proof on that issue. Because FLSA exemptions must be narrowly construed, the defendant must prove the plaintiff's exempt status by clear and convincing evidence.” Stricker v. Eastern Off Road Equipment, Inc., 935 F.Supp. 650, 653-54 (D. Md. 1996).

         Defendant's Motion for Summary Judgment argues that the executive employee exemption applied to Plaintiff. In his Opposition, Plaintiff admits that he “was, at all times since his promotion in April 2014, ostensibly a salaried employee earning more than $455 per week who regularly directed the work of two or more other employees.” (ECF No. 28-1 at 2, Pl.'s Opp.). However, Plaintiff “disputes whether his primary duty was management of the enterprise or a subdivision thereof and whether he was authorized to hire or fire employees or whose suggestions and recommendations with respect to employees['] hiring, firing, advancement, promotion or any other change of status are given particular weight.” Id. Because Plaintiff concedes that Defendant has met the burden of proving the first and third requirements for the relevant exemption, the Court will address only the second and fourth requirements. The Court will first consider the fourth element and then proceed to the second element, as it requires more detailed analysis.

         A. Fourth Element: Hiring and Firing of Other Employees

         The fourth element of the executive employee exemption requires that the employee had the authority to hire or fire other employees, or that the employee's suggestions and recommendations regarding the hiring or firing of other employees were given particular weight.

         In order to determine whether an employee's suggestions and recommendations were given particular weight, courts consider certain factors: “whether it is part of the employee's job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee's suggestions and recommendations are relied upon.” 29 C.F.R. § 541.105. These suggestions and recommendations do not “include an occasional suggestion with regard to the change in status of a co-worker.” Id. Furthermore, an employee's suggestions and recommendations may still be given ...


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