Robert Schmidt v. Bartech Group, Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-00112-GBL-IDD. Copies to all parties and the district court. [999634593]. [14-2321]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2321

ROBERT SCHMIDT,
Plaintiff - Appellant,
v.
BARTECH GROUP, INC.; VERIZON CORPORATE SERVICES GROUP INC.,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cv-00112-GBL-IDD)

Submitted:

July 24, 2015

Decided:

August 5, 2015

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John C. Cook, Lee B. Warren, COOK CRAIG & FRANCUZENKO, PLLC,
Fairfax, Virginia, for Appellant. Roman Lifson, David B. Lacy,
CHRISTIAN & BARTON, LLP, Richmond, Virginia; Betty S.W.
Graumlich,
REED
SMITH
LLP,
Richmond,
Virginia;
Helenanne
Connolly, REED SMITH LLP, Falls Church, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Schmidt appeals the district court’s order granting
summary judgment to his former employers, Bartech Group, Inc.
(“Bartech”),

and

Verizon

Corporate

Services

Group,

Inc.

(“Verizon”) (collectively “Defendants”), on his claims under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219 (2012),
and

state-law

discharge.
We

claims

for

breach

of

contract

and

wrongful

We affirm.

review

de

novo

whether

a

district

court

erred

in

granting summary judgment, viewing the facts and drawing all
reasonable

inferences

nonmoving party.
Cir. 2013).

in

the

light

most

favorable

to

the

Glynn v. EDO Corp., 710 F.3d 209, 213 (4th

Summary judgment is properly granted “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).

A district court should grant summary

judgment unless a reasonable jury could return a verdict for the
nonmoving party on the evidence presented.

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).
Schmidt first argues that under the FLSA he was entitled to
payment at his hourly rate for hours worked in excess of 40
hours per workweek.

“The FLSA establishes the general rule that

employers must compensate each employee ‘at a rate not less than
one and one-half times the regular rate’ for all overtime hours
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that an employee works.”

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Darveau v. Detecon, Inc., 515 F.3d

334, 337 (4th Cir. 2008) (quoting 29 U.S.C. § 207(a)(1) (2012)).
As relevant here, the FLSA exempts from this general rule “any
employee who is a computer systems analyst, computer programmer,
software engineer, or other similarly skilled worker, . . . who,
in the case of an employee who is compensated on an hourly
basis, is compensated at a rate of not less than $27.63 an
hour.”

29 U.S.C. § 213(a)(17) (2012).

The FLSA provides a private cause of action for violations
of

the

minimum

§§ 206-207

wage

(2012),

and

and

overtime

for

pay

unlawful

provisions,

U.S.C.

29

retaliation.

29

U.S.C.

§§ 215(a)(3), 216(b) (2012); cf. Kendall v. City of Chesapeake,
Va., 174 F.3d 437, 441 (4th Cir. 1999) (“[T]he FLSA creates
enforceable federal rights to a minimum wage and to overtime
compensation.”).

Because

Schmidt

is

exempt

from

both

the

minimum wage and overtime pay provisions, we conclude that he
does not have a cause of action under the FLSA for payment of
his hourly wage for hours worked in excess of 40 hours per week.
Next,
retaliated

Schmidt
against

asserts
him

under

that
the

the

Defendants

FLSA.

The

unlawfully

antiretaliation

provision of the FLSA makes it unlawful for an employer “to
discharge
employee

or

in

because

any
such

other

manner

employee

has

discriminate
filed

any

against
complaint

any
or

instituted or caused to be instituted any proceeding under or
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related to [the FLSA].”

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29 U.S.C. § 215(a)(3).

To establish a

prima facie claim of retaliation under the FLSA, a plaintiff
must show that: (1) he engaged in an activity protected by the
FLSA; (2) he suffered adverse action by the employer subsequent
to or contemporaneous with such protected activity; and (3) a
causal connection exists between the employee’s activity and the
employer’s adverse action.

Darveau, 515 F.3d at 342.

To meet the second prong, an FLSA plaintiff must show “that
his employer retaliated against him by engaging in an action
that would have been materially adverse to a reasonable employee
because the employer’s actions could well dissuade a reasonable
worker from making or supporting a charge of discrimination.”
Id. at 343 (alteration and internal quotation marks omitted).
We

conclude

that

Schmidt

did

not

suffer

an

adverse

action

because no reasonable jury could find that he was terminated.
Schmidt informed his supervisor that she should contact Bartech
to

cancel

his

contract

or

request

a

replacement.

When

the

supervisor offered to look into a different job with Verizon for
him, Schmidt informed her that such help was unnecessary and
that his former coworker could be a good replacement for him.
Thus,

it

is

clear

Schmidt

resigned,

and

therefore,

summary

judgment was proper on this claim.
Schmidt also asserts a claim for wrongful termination under
Virginia law.

Although Virginia is an at-will employment state
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and

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Virginia

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law

generally

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does

not

support

a

wrongful

termination cause of action, a narrow exception exists when the
termination occurs as a result of an employer’s violation of
public policy.

Bowman v. State Bank of Keysville, 331 S.E.2d

797, 801 (Va. 1985).

Because no reasonable jury could conclude

that he was terminated, we conclude that summary judgment was
also appropriate on this claim.
Finally,

Schmidt

contends

that

Bartech

breached

his

employment contract by failing to pay him his hourly wage for
hours worked in excess of 40 per workweek.

To sustain a breach

of contract claim under Virginia law, the defendant must violate
a legally enforceable obligation to the plaintiff, resulting in
injury or damage to the plaintiff.
Auth., 758 S.E.2d 55, 60 (Va. 2014).

Squire v. Va. Hous. Dev.
“A breach is material if

it is a failure to do something that is so fundamental to the
contract that the failure to perform that obligation defeats an
essential purpose of the contract.”

Parr v. Alderwoods Grp.,

Inc., 604 S.E.2d 431, 435 (Va. 2004) (internal quotation marks
omitted).

A material breach by one party excuses the other from

performing its contractual obligations.

Mathews v. PHH Mortg.

Corp., 724 S.E.2d 196, 199 (Va. 2012).
We conclude that Schmidt breached the contract first by
failing to report the hours worked in excess of 40 hours per
workweek and thus Bartech was excused from performance.
5

While

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Virginia “courts will generally not infer covenants and promises
which are not contained in the written provisions, . . . what is
necessarily implied is as much a part of the instrument as if
plainly expressed and will be enforced as such.”

Pellegrin v.

Pellegrin, 525 S.E.2d 611, 614 (Va. Ct. App. 2000) (internal
quotation

marks

omitted).

Bartech

contracted

to

pay

him

an

hourly wage, but it could not be expected to pay him for hours
that he did not report to them.

Thus, we conclude that Schmidt

had an implied duty to accurately report his hours.

Schmidt’s

failure to do so is a material breach of the contract because
failing to report his hours “defeats an essential purpose of the
contract” — Bartech’s payment of Schmidt for his hours worked.
Parr, 604 S.E.2d at 435 (internal quotation marks omitted).
Accordingly,
dispense

with

we

oral

affirm

the

argument

district

because

court’s

the

facts

order.
and

We
legal

contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED

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