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Lovo v. American Sugar Refining, Inc.

United States District Court, D. Maryland

August 17, 2018




         Plaintiff Helder Vladimir Lovo (“Lovo”) brings this lawsuit against defendants American Sugar Refinery (“ASR”) and Ryan Wooters (“Wooters”) for alleged violations of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et. seq.; the Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Lab. & Empl. § 3-401 et. seq.; and the Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann., Lab. & Empl. § 3-501 et. seq. Now pending are plaintiff's motion for sanctions (ECF No. 38), defendants' motion to strike (ECF No. 48), defendants' motions for summary judgment (ECF No. 36, 37), and plaintiff's motion for partial summary judgment (ECF No. 40). The motions are fully briefed, and no oral argument is necessary. See Local Rule 105.6. For the reasons below, defendants' motions for summary judgment are granted, and plaintiff's motion for partial summary judgment, plaintiff's motion for sanctions, and defendants' motion to strike are denied. Judgment shall be entered in favor of both defendants ASR and Wooters and against plaintiff Lovo.


         This dispute concerns defendants ASR's and Wooters' alleged wrongful failure to pay overtime compensation to plaintiff Lovo during Lovo's employment with defendants. Lovo was employed by ASR, a refiner and seller of sugars and other sweeteners, from September 28, 2015 to November 24, 2017 as a Process Supervisor at ASR's Baltimore Refinery. ECF No. 36-3, DeAngelo Decl. ¶ 3; ECF No. 36-4, Lovo Tr. 18:5-9, 55:10-14; ECF No. 36-5, Moore Decl. ¶ 3. As a Process Supervisor, Lovo reported to a Process Manager, who in turn reported to the Refinery Manager. ECF No. 36-4, Lovo Tr. 87:5-9; ECF No. 36-3, DeAngelo Decl. ¶ 13-14. From June 2016 through the termination of Lovo's employment, Wooters was the Process Manager to whom Lovo reported. ECF No. 36-4, Lovo Tr. 93:3-11. Wooters in turn reported to the Refinery Manager, Kelly DeAngelo (“DeAngelo”). ECF No. 36-3, DeAngelo Decl. ¶ 14.

         The Process Department at ASR's Baltimore Refinery is divided into five areas of operation: (1) the dock operations, where raw sugar is unloaded from ships and stored in sheds, (2) the Wash House, where raw sugar is rid of impurities and color, (3) the Filter House, where sugar is filtered further through an ion exchange process and carbon filters, (4) the Pan House, where sugar is filtered again, recrystallized, and sent to driers, and (5) a specialty products operation, where sugar is refined for pharmaceutical use. ECF No. 36-3, DeAngelo Decl. ¶¶ 7-12. From September 2015 to December 2016, Lovo served as the Process Supervisor for the dock operations. From December 2016 through the end of his employment with ASR in November 2017, Lovo served as the Process Supervisor for the both the Wash House and the Filter House. ECF No. 36-4, Lovo Tr. 16:17-20, 88:7-10, 148:3-8.

         The description for the Process Supervisor position lists the following duties: direct sugar refining operations; direct teams of specialized employees ensuring good manufacturing practices and safe operating procedures; and achieve standard production volume, quality standards, and regulatory compliance through the supervision of hourly personnel (up to 30) on rotating shifts. ECF No. 36-5, Ex. 1. As Process Supervisor of the dock operations, Lovo supervised approximately seventeen to twenty employees, including five full-time operators and twelve to fifteen longshoremen.[1] ECF No. 36-4, Lovo Tr. 87:14-88:6, 90:19-91:13. His role was to manage the process of discharging raw sugar from cargo ships, which required cranes and heavy equipment to transport the sugar from the holds of the ships into storage sheds. Id. at 88:11-90:4. As Process Supervisor of the Wash House and the Filter House, Lovo supervised approximately five full-time operators. Id. at 325:6-326:4. In this role, he managed the refining process to ensure the sugar production goals were met. Id. at 175:7-9.

         Based on these job duties, ASR characterized Lovo as an exempt executive and administrative employee under the FLSA and MWHL.[2] Therefore, Lovo was not paid overtime compensation. Lovo disputes this characterization, claiming he was nothing more than “the point of communication” between upper management and individuals working as operators. ECF No. 39, p. 2.

         Accordingly, Lovo filed suit against ASR in this Court on February 14, 2017. ECF No. 1. Lovo amended his complaint on August 30, 2017, adding Wooters as an additional defendant. ECF No. 13. Lovo alleges three counts against ASR and Wooters as his employers based on their failure to pay overtime: (1) violation of the FLSA, (2) violation of the MWHL, and (3) violation of the MWPCL. On February 26, 2018, ASR and Wooters each filed a motion for summary judgment arguing that Lovo was at all relevant times an exempt employee under the applicable law.[3] ECF No. 36, 37. In response to Wooters' motion for summary judgment, Lovo filed a motion for partial summary judgment. ECF No. 40. Additionally, the parties have filed two discovery-related motions. First, Lovo filed a motion for sanctions against ASR on March 28, 2018. ECF No. 38. Second, ASR and Wooters filed a motion to strike on April 27, 2018.[4]ECF No. 48.


         Under Federal Rule of Civil Procedure 56(c), a court must grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986). A genuine issue of material fact exists where, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When reviewing a motion for summary judgment, the court must take all facts and inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         The party opposing summary judgment must, however, “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir. 1999). The non-movant “‘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. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 160-61 (1970). A court should enter summary judgment when a party fails to make a showing sufficient to establish elements essential to a party's case, and on which the party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322-23.


         I. Discovery-Related Disputes

         As an initial matter, the parties raise numerous issues related to discovery. Lovo moves for sanctions against ASR, requesting that this court (1) strike confidentiality designations from ASR's discovery production and strike the documents themselves, (2) strike two exhibits attached to ASR's motion that were not produced in discovery, and (3) strike the “Declaration of Kelly DeAngelo” submitted and relied upon by ASR (ECF No. 36-3). ECF No. 38. ASR and Wooters move to strike the “Statement of Michael Ford” submitted and relied upon by Lovo (ECF No. 39-13). ECF No. 48. For the following reasons, both motions are denied.

         A. Confidentiality Designations

         First, Lovo contends ASR improperly designated 943 pages of produced documents as confidential in violation of this court's discovery order. Pursuant to Federal Rule of Civil Procedure 37, Lovo requests that this court (1) strike the confidentiality designations from all of ASR's discovery production, (2) strike specific documents designated as confidential and attached to ASR's motion and prevent ASR from relying upon them as evidence in support of its motion, and (3) order ASR and/or its counsel to pay Lovo's attorneys' fees incurred in asserting this motion. ECF No. 38-1, p. 21.

         On July 31, 2017, ASR produced 156 documents in response to Lovo's first discovery request. ECF No. 38-1, ¶ 1. On August 15, 2017, Lovo submitted to ASR supplemental discovery requests, in response to which ASR produced an additional 367 documents. Id. at ¶ 2. On September 8, 2017, Lovo submitted a third request for documents. Id. at ¶ 4. In response to this request, ASR informed Lovo that it needed a protective order before making the production because of the confidential nature of the documents requested. Id. Accordingly, the parties signed and submitted to this Court a proposed discovery order regarding confidentiality. Id. at ¶ 5; ECF No. 23. This Court signed the order (the “Confidentiality Order”) on November 9, 2017. ECF No. 26.

         In relevant part, the Confidentiality Order instructs,

The designation of confidential information shall be made by placing or affixing on the document…the word ‘CONFIDENTIAL.' One who provides material may designate it as ‘CONFIDENTIAL' only when such person in good faith believes it contains sensitive personal information, trade secrets or other confidential research, development, or commercial information which is in fact confidential. A party shall not routinely designate material as ‘CONFIDENTIAL,' or make such a designation without reasonable inquiry to determine whether it qualifies for such designation.

ECF No. 26, ¶ 1(a). Additionally, the Confidentiality Order requires that documents designated as confidential that need to be filed with the court be filed under seal. Id. at ¶ 2. The Confidentiality Order allows either party to challenge a designation of confidentiality upon motion, placing the burden of proving the confidentiality on the party asserting confidentiality. Id. at ¶ 4. If such a motion is granted, the moving party is entitled to attorneys' fees pursuant to Federal Rule of Civil Procedure 37(a)(5) unless “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id.

         After the Confidentiality Order was signed, ASR produced 943 pages of documents, each of which it designated as “CONFIDENTIAL.” ECF No. 38-1, ¶ 6. Lovo claims ASR over-designated documents as confidential and asserts that each of the 943 pages was improperly designated as confidential. Id. at ¶¶ 6-7. This over-designation allegedly prejudiced Lovo because it required Lovo to file any designated documents on which it relied in its motions briefings under seal. Id. at ¶ 10. Meanwhile, ASR failed to file under seal designated documents on which it relied in its briefings. Id.

         ASR bears the burden of proving the confidentiality of the documents disputed by Lovo. This Court need not, however, engage in the task of combing through 943 pages of documents to determine whether ASR has met its burden. The production at issue consisted of company emails[5] and personal cell phone records, characterized by ASR as confidential “commercial information” and “sensitive personal information.” ECF No. 42, p. 4; ECF No. 42-1 (describing the need for a protective order because the requested emails “include[d] confidential information about the operation of ASR's business”). Because the documents produced consisted of business emails and personal phone records, ASR did not violate the Confidentiality Order by designating these documents as confidential. Thus, Lovo's motion is denied with respect to the designations.

         Moreover, even if ASR's designations violated the Confidentiality Order, the designations were substantially justified. Additionally, ASR offered to re-evaluate and negotiate any documents that Lovo wished to attach to its briefings.[6] Accordingly, sanctions are unnecessary.

         B. Exhibits Not Produced in Discovery

         Second, Lovo requests two exhibits attached to ASR's motion for summary judgment be stricken because they were not produced in discovery. The first exhibit is an email chain between Lovo and DeAngelo dated November 19, 2017 (the “November 19 Email”). ECF No. 36-3, Ex. 1. The second exhibit is an email from Lovo announcing his resignation dated November 24, 2017 (the “November 24 Email”). ECF No. 36-5, Ex. 3. Lovo contends these emails should have been produced during discovery in response to three of Lovo's document requests. ASR made its production in response to the three relevant requests on November 10, 2017, at which time the emails in question did not yet exist. ASR did not supplement its production with these emails at a later date.

         Under Federal Rule of Civil Procedure 37(c), “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” The court may also, “on motion and after giving an opportunity to be heard, ” impose other sanctions. Fed.R.Civ.P. 37(c). District courts have broad discretion to determine whether a party's non-disclosure of evidence is substantially justified or harmless. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014). The Fourth Circuit has announced five factors to guide this analysis:

(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party's explanation for its failure to disclose the evidence.

Id. (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596-97 (4th Cir. 2003)). The non-disclosing party bears the burden of establishing these factors, but courts are “not required to tick through each of the factors” in explaining their analyses. Id. (emphasis deleted).

         ASR's failure to disclose the November 19 and November 24 emails was harmless. First, these emails were of no surprise to Lovo given that the emails were either sent by or received by Lovo while this litigation was pending. ECF No. 36-3; ECF No. 36-5. Second, because there was no surprise, there was no need for Lovo to cure the surprise. The third factor concerning disrupting trial is irrelevant because today's decision on the summary judgment motions closes this case. Fourth, both exhibits are of minimal importance. It is undisputed that the November 24 Email in which Lovo announced his resignation is “of minimal consequence.” ECF No. 38-1, p. 21; ECF No. 42, p. 8. The November 19 Email is more important as it serves as evidence of the type of decisions Lovo routinely made as Process Supervisor, but it was not the only evidence suggestive of Lovo's level of decision-making and is therefore not of significant importance. Finally, ASR explains that its counsel did not determine that the emails were responsive to Lovo's discovery requests until it prepared its motion for summary judgment. ECF No. 42, p. 10. In light of these factors, this Court concludes the non-disclosure was harmless and accordingly declines to strike the two exhibits.

         C. Affidavits

         Finally, two affidavits submitted by the parties in support of their motions are the subject of motions to strike. First, Lovo moves to strike the “Declaration of Kelly DeAngelo” (the “DeAngelo affidavit”) submitted by ASR (ECF No. 36-3) in support of its motion for summary judgment. Second, defendants move to strike the “Statement of Michael Ford” (the “Ford affidavit”) submitted by Lovo (ECF No. 39-13) in support of his response in opposition to ASR's motion for summary judgment.

         Under Fed.R.Civ.P. 56(c)(4), an affidavit used to support a motion must “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” “[A] court may strike portions of affidavits that lack personal knowledge, contain hearsay, or rest upon conclusory statements.” Contracts Materials Processing, Inc. v. Kataleuna GmbH Catalysts, 164 F.Supp.2d 520, 527 (D. Md. 2001) (citation omitted).

         Additionally, a district court may decline to consider an affidavit under the sham affidavit doctrine. Under this doctrine, “‘a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.'” Zimmerman v. Novartis Pharm. Corp., 287 F.R.D. 357, 362 (D. Md. 2012) (quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)). At the summary judgment stage, a court's use of the sham affidavit rule “must be carefully limited to situations involving flat contradictions of material fact.” Id. (citation and internal quotation marks omitted).

         i. DeAngelo Affidavit

         Lovo requests that this Court strike the DeAngelo affidavit submitted by ASR in support of its motion for summary judgment, claiming DeAngelo lacks personal knowledge to support his affidavit. ECF No. 38-1, p. 26.

         DeAngelo's affidavit affirms that he has personal knowledge of the matters to which he testified within the statement. ECF No. 36-3, Appendix A, ¶ 1. DeAngelo served as the Refinery Manger during the relevant period. Id. at ¶ 2. As the Refinery Manager, he was at the top of the reporting chain: Process Supervisors, like Lovo, reported to Process Managers, like Wooters, who reported to DeAngelo. Id. at ¶¶ 13-16. DeAngelo's role and duties as the Refinery Manager are sufficient to show that he has personal knowledge to support his affidavit. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 135 n. 9 (4th Cir. 2002) (“Bell Atlantic's affidavits contain sufficient information, including a description of the affiant's job titles and duties, to establish that the affiants' statements were made based on personal knowledge.”). In fact, Lovo personally exchanged emails with DeAngelo regarding the performance of Lovo's job duties. See e.g. ECF No. 36-3, Ex. 1. Based on DeAngelo's role at ASR, job duties, and personal communications with Lovo about Lovo's job duties, this Court concludes DeAngelo's affidavit was supported by personal knowledge, and Lovo's motion for sanctions is therefore denied.

         ii. Ford Affidavit

         Defendants move to strike Ford's affidavit on three grounds: (1) Ford did not read the affidavit before signing it, (2) the affidavit is a “sham affidavit” because it is contradicted by Ford's deposition testimony, and (3) Ford failed to comply with certain discovery requests. ECF No. 48.

         Defendants' arguments for striking the Ford affidavit are unpersuasive. First, Ford, who was employed as a Process Supervisor at ASR during the relevant time period, testified that he “did read [the affidavit].” He stated, “I actually went through it, scanned through it…I'm aware of what's in it.” ECF No. 48-2, Ford Dep. 93:18-94:1. Second, the affidavit is not a sham affidavit. The sham affidavit doctrine applies to affidavits that contradict a party's “own previous sworn statement.” Zimmerman, 287 F.R.D. at 362 (quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)) (emphasis added). Ford's affidavit was provided to defendants twenty days prior to Ford's deposition. Accordingly, this doctrine has no application here. Finally, although defendants now allege that Ford failed to comply with discovery requests, defendants never moved to compel disclosure or discovery pursuant to Federal Rule of Civil Procedure 37. This motion to strike, filed months after discovery closed, is the first time defendants have raised the ...

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