United States District Court, D. Maryland
Mark Coulson United States Magistrate Judge
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.
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 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).
STANDARD OF REVIEW
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)).
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)).
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.
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).
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.
Fourth Element: Hiring and Firing of Other Employees
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.
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