Brooks v. Healthcare IQ, Inc.

Filing 53

ORDER granting 43 Motion for summary judgment and ruling on counterclaims in accord with attached order. The Clerk is directed to enter judgment, terminate any deadlines or pending motions, and close the case. Signed by Judge William F. Jung on 2/8/2019. (JHA)

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 1 of 22 PageID 1218

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DERRICK BROOKS,
Plaintiff,
v.

Case No: 8:17-cv-1897-02JSS

HEALTHCARE-IQ, INC.
Defendant.
ORDER
This cause comes before the Court for consideration after oral argument on
defendant’s motion for summary judgment. Dkt. 43. The Court finds that the
“administrative exemption” of the Fair Labor Standards Act has been met by
defendant, and there is no genuine issue of material fact that plaintiff is an exempt
administrative employee, not entitled to overtime as an hourly worker.
Accordingly, the Court grants the motion.
I.

BACKGROUND
The recitation of facts herein is not contested. Almost all of this recitation

comes from plaintiff himself. From July 2015 to May 2017 plaintiff worked for
defendant as a training manager. Dkt. 43-2 at 1. Plaintiff’s formal titles were:
Applications Trainer (held briefly), Training Manager, and Training and
Development Manager. Dkt. 45-1 ¶ 2; Dkt. 46 ¶ 2. Defendant sells and maintains

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 2 of 22 PageID 1219

software packages for health care facilities that help the facilities manage their
costs and operations. Dkt. 43-5 ¶ 2. Plaintiff was a trainer of customers,
primarily, on these software packages. Dkt. 42 at 296-97. Defendant sold three
main software packages, which plaintiff testified were “all very complex.” Id. at
275.
Plaintiff stated that in this job he “[m]anaged the curriculum design and
delivery of three complex medical software programs targeting hospital
corporation supply chain operations, medical surgical optimization in performance
and strategic utilization and a dynamic fractal map presentation tools for key
management professionals.” This description of plaintiff’s role comes from his
present resume, which he attested to in his deposition. Dkt. 42 at 46-48; Dkt. 43-2
at 1. Plaintiff stated that as part of these duties for defendant he “[t]ravelled
nationwide to culminate the onboarding of new customers and re-engaging current
customers, including advancing customer use of the full portfolio of software
options, resulting in increased revenue.” Dkt. 43-2 at 1.
As part of this job for defendant, plaintiff states that his “key successes” for
defendant included “[c]omplete redesign of training curriculum resulting in 35%
increase in training satisfaction surveys.” Id. As part of this success plaintiff
“[t]rained over 380 customers in one year with an average of 4.3 overall rating on a
1.00 (poor) to 5.00 (outstanding) scale . . . [, i]ncreased company sales and revenue
2

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 3 of 22 PageID 1220

through successful training initiatives that motivated key hospital administrators to
purchase and utilize additional software packages based on the success and
delivery of the initial training [with o]ver 90% satisfaction scores of direct report
employees.” Id.
In his deposition plaintiff noted that he managed the curriculum design, and
managed the curriculum delivery. Dkt. 42 at 48, 58. Concerning management of
the training delivery, plaintiff stated, “I took the helm as far as the introductions
and some of those things” but others helped, “[s]o I cannot say for that entire time I
managed all of it. During the end and during the time from once I became the
training manager I was either doing it or consulting with someone else to do it.”
Id. at 59.
As to the training itself, plaintiff stated he was in charge. Id. at 62. On some
occasions such as with an important customer, key executives of the company
might have been in attendance, but plaintiff was in charge in most cases. Id. at 6264. Sometimes distributors who had a relationship with the customer would be
involved in the training, but in those instances plaintiff was still providing the
content. Id. at 61-64.
Besides this description of his job provided by plaintiff, the record shows
that plaintiff was a skilled software trainer. The record shows that he formulated
instructional modules for new customers, on his own and with extensive discretion
3

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 4 of 22 PageID 1221

exercised by himself. He quite rightly boasted that he was able to custom-tailor
instruction for the various customers, something his predecessor did not do. Id. at
50-53, 286. Plaintiff would submit a proposed curriculum that he had designed for
the specific customer, and the marketing department would then have a significant
role in giving feedback, often making changes. Id. at 50-51. This customdesigned instruction created by plaintiff resulted in increased favorable ratings that
plaintiff received over the previous instructor. Id. at 55-56, 279. As plaintiff
testified, “I completely redesigned the approach that was taken in the curriculum.”
Id. at 55. This redesign resulted in a 35% increase in customer satisfaction
surveys. Id. at 55-56. Plaintiff noted that some of this increase in customer
satisfaction may also have been caused by simply more effective training, for
which his presentation skills played a role. Id. at 57.
The teaching modules often had graphs and illustrations in them. Plaintiff
would either design those items himself or give instructions to his
colleague/assistant Michele Massimino of “a conceptual presentation of what I
wanted it to look like or what I was thinking, or I would even go to marketing and
give them the ideas of what I wanted it to look like or what I was hoping we could
have to better illustrate the training.” Id. at 53.

4

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 5 of 22 PageID 1222

Much of plaintiff’s work was done at various customers’ offices where the
training took place. Id. at 305. Some training was done remotely via webinar; at
times plaintiff participated in the webinars from his home. Id. at 133, 151, 305.
Plaintiff started work in July 2015. Dkt. 43-2 at 1. At that time there was
an incumbent training manager. Notwithstanding this, plaintiff did the training
curriculum update packages as the incumbent manager “hated doing it.” Dkt. 42 at
277. Plaintiff was promoted in December 2015 when the previous training
manager left. Id. at 45. At that point plaintiff was the only person doing training.
Id. Plaintiff testified, “when [the previous training manager] left I handled
everything. . . . So I would have had to schedule the trainings, coordinate
everything, and then when [Michele] came on I approved her expense reports and
had someone to assist with paperwork.” Id. at 45-46.
When the previous training manager departed plaintiff took his position,
and plaintiff “did more of the coordination for plannings of the trainings . . . to pick
up the gap to try to organize and plan and be a point of contact for trainings.” Id.
at 276. Upon taking over the manager slot, plaintiff did it “completely differently”
than the predecessor, and the scores improved with plaintiff’s trainings because, as
plaintiff explained, he had superior “communication skills, organization[,]
delivery.” Id. at 279. Plaintiff testified he was a “more effective trainer” than the
previous training manager. Id. With a new training manager came new training
5

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 6 of 22 PageID 1223

materials: plaintiff noted “the materials change based on who’s doing the
training.” Id. at 285.
Plaintiff also customized his training materials for each customer, unlike his
predecessor. Id. at 286. This customization was done by plaintiff researching
items to fit a particular customer. No one back at headquarters approved these
changes. Plaintiff testified he had the discretion to make these salutary changes.
Id. at 286. Developing these educational tools varied by each customer’s needs
and also varied depending upon which software package was being taught. The
newest package, known as Colours, was the most complex and required the most
effort to formulate the customized training. Id. at 289. Conducting this work and
searching for pedagogic examples was left up to plaintiff – no one at headquarters
told him what to do. Id. at 290. As to the software product called Informatics,
plaintiff testified “I had a great deal of discretion.” Id. at 304. He testified he did
not have that same level of discretion with the newer and more complex Colours
product; and a coworker had more say for the third software product. Id. During
the training sessions, the customers would ask plaintiff “[a] lot” of questions and
plaintiff would answer them or, if unable to, make a list to find out answers to
respond later. Id. at 294-95.
Michele Massimino at times assisted plaintiff in a support role including
helping with paperwork and training design. Id. at 46, 49, 53. Plaintiff reviewed
6

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 7 of 22 PageID 1224

and approved her expense reports. Id. at 46. Plaintiff testified that she was a
truthful person. Id. at 38. As to plaintiff’s duties and authority, Massimino
testified that mostly plaintiff did the training research and design. Dkt. 43-3 at 2.
Plaintiff would check her work. Plaintiff did all or most of the work on the
tutorials for the software package known as Informatics without any limitation on
what he could do, nor much or any need for approval. He consulted with
colleagues on the other packages. Id. at 2-6, 8. To Massimino’s knowledge there
was no limit on plaintiff’s discretion in designing the training approach for
Informatics. Id. at 11. As she understood it, the training approach that resulted in
the increased number of users and high survey scores was plaintiff’s approach. Id.
at 12.
In addition to his resume, plaintiff has also provided to recent prospective
employers a letter of recommendation by Rebecca Varner. Dkt. 42 at 66-67.
Plaintiff intended that prospective employers would rely on Varner’s letter. Id. at
68. Varner was plaintiff’s colleague when he worked for defendant. Dkt. 48-1 at
15. In this letter Varner stated that plaintiff redesigned the training approach for all
three of defendant’s distinct software products. Id. This effort by plaintiff resulted
in more engaged customers and increased use of defendant’s products by them,
said Varner. Id. Plaintiff verified that Varner’s perception was correct: he did
indeed redesign the training approach for all defendant’s three distinct products.
7

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 8 of 22 PageID 1225

Id.; Dkt. 42 at 68. Varner also stated that plaintiff was a “key asset” to any
organization, and plaintiff contributed to greater customer satisfaction yielding
continued and increased revenues. Dkt. 48-1 at 15. At oral argument on February
1, 2019, plaintiff’s counsel stated that plaintiff “ghost-wrote” Varner’s letter of
recommendation.
Defendant treated plaintiff as a professional or administrative employee, not
an hourly employee. Plaintiff did not use or punch a time card. Dkt. 42 at 96.
The record contains multiple instances of sick time off and personal time off,
which plaintiff took and was never “docked” or penalized for. Id. at 215-16, 23637, 249, 263; Dkt. 43-4. At one point plaintiff testified he kept working from
home due to illness caused by a chemical exposure. Dkt. 42 at 163-64. Plaintiff’s
pay was also not reduced for time spent at lunch, which could be from half an hour
to one hour daily and at times included alcohol. Id. at 39, 119; see also id. at 39-40
(alcohol “common” or “commonplace” on training trips in evening.)
Likewise, some days included lengthy travel that plaintiff did not receive
extra pay for. Id. at 175. And at times he was required to entertain customers in
the evening; no additional salary was paid for this. Id. at 10, 177. On occasion
paperwork was required to be completed “late at night” as well, “to get things
done.” Id. at 185, 197, 220.

8

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 9 of 22 PageID 1226

Plaintiff wrote up his job description for defendant into a formal document
as a project for work. Id. at 264. The job title he recommended was listed as
“Training and Development Manager,” a job title plaintiff possessed. Dkt. 45-1 ¶
2; Dkt. 42 at 264-65. Plaintiff described his job, and admitted he was working at
it in the following manner:
Leads training initiatives for all tools in a manner to
foster both customer satisfaction and effective usage of
the tools. . . . [F]ostering relationships and coordinating
efforts with implementation, customers care, marketing,
sales, IT and software development. . . . [T]akes a
strategic approach to business success. [P]lans and
manages both new and ongoing customer trainings. . . .
[M]anages training staff. . . .
Dkt. 42 at 265-67. Plaintiff testified he was “planning and managing” but others
were doing this also. Id. at 267. As to “managing training staff,” plaintiff testified
he was doing that “[i]n some ways, but not always and not for much of the time.”
Id. at 267-68. Plaintiff stated that as part of the job he attempted to ensure
effective planning and a more effective curriculum, and this was something he had
designed but he was unable to see its implementation because it was not approved
by superiors. Id. at 270.
Plaintiff viewed this job as calling for a four-year college degree preferred,
plus five years training and training management required. Id. at 272. Plaintiff
himself met this education/experience criteria. Dkt. 43-2.

9

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 10 of 22 PageID 1227

During plaintiff’s tenure with defendant, in November 2016, the Department
of Labor conducted an audit of defendant to determine, among other things,
whether defendant had misclassified any employee as exempt. Defendant
delivered to the Department a list of employees classified as exempt and their job
descriptions. The job description defendant provided to the Department for
plaintiff’s job was the same or nearly identical to the description plaintiff wrote up
earlier as a project. See, e.g., Dkt. 43-1 at 1-6.
Though he did raise the issue with defendant, plaintiff did not demand that
he be paid overtime or be put on a time clock during his tenure with defendant. He
brought this suit seeking actual and liquidated damages for uncompensated
overtime under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”),
shortly after his employment with defendant ended. Dkt. 1. In its Answer,
defendant raises a counterclaim for Unjust Enrichment and, in the alternative,
Breach of Contract. Dkt. 22 at 10. For both claims, defendant seeks to set off any
award to plaintiff by the amount of “salary he was not entitled to for hours he did
not work that were not subject to paid time off.” Id. at 10-11.
After discovery was completed, defendant moved for summary judgment on
the basis that plaintiff fell within the administrative exemption of the FLSA and
was a non-hourly worker. 29 C.F.R. §§ 200-202. Dkt. 43. Plaintiff filed a

10

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 11 of 22 PageID 1228

response opposing Defendant’s request for summary judgment. Dkt. 45. The
lawyers ably presented their cases at oral argument on February 1, 2019.
At points plaintiff’s declaration attached to his response (Dkt. 45-1)
materially contradicts his deposition testimony taken earlier in the case. Dkt. 42.
When considering a motion for summary judgment, “[a] district court may
disregard an affidavit . . . when a party to the suit files an affidavit that contradicts,
without explanation, prior deposition testimony on a material fact.” Kernel
Records Oy v. Mosley, 694 F.3d 1294, 1300 n.6 (11th Cir. 2012). The Court has
carefully reviewed plaintiff’s deposition and declaration and has discounted those
portions of the declaration that conflict with the deposition.
II.

STANDARD OF REVIEW
“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). An issue of fact is “genuine” only if “a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if the fact
could affect the outcome of the lawsuit under the governing law. Id.
The moving party bears the initial burden of identifying those portions of the
record demonstrating the lack of a genuinely disputed issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does so, the
11

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 12 of 22 PageID 1229

burden then shifts to the non-moving party to demonstrate that there are, in fact,
genuine factual disputes which preclude judgment as a matter of law. Porter v.
Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). To satisfy its burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The non-moving party must go beyond the pleadings and
“identify affirmative evidence” that creates a genuine dispute of material fact.
Crawford-El v. Britton, 523 U.S. 574, 600 (1998).
In determining whether a genuine dispute of material fact exists, the Court
must view the evidence and draw all factual inferences therefrom in a light most
favorable to the non-moving party and must resolve any reasonable doubts in the
non-moving party’s favor. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.
2007). Summary judgment should only be granted “[w]here the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party[.]”
Matsushita, 475 U.S. at 587.
III.

ANALYSIS
The FLSA provides that employees are entitled to receive overtime pay at

one and one-half times their regular rate for all hours worked in excess of forty
hours per week. 29 U.S.C. § 207(a)(1). The FLSA also provides that an employee

12

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 13 of 22 PageID 1230

who is employed in a bona fide administrative capacity is exempt from the FLSA’s
overtime-pay requirement. Id. § 213(a)(1).1
An exemption is “applied only to those clearly and unmistakably within the
terms and spirit of the exemption.” Morgan v. Family Dollar Stores, Inc., 551
F.3d 1233, 1269 (11th Cir. 2008) (quotation omitted). Exemptions are narrowly
construed against the employer, who bears the burden of proving that an employee
is exempt from the FLSA’s overtime provision. Abel v. S. Shuttle Servs., Inc., 631
F.3d 1210, 1212 (11th Cir. 2011). Thus, for an employer to prevail on the basis of
an exemption, it must prove the applicability of the exemption by “clear and
affirmative evidence.” Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th
Cir. 2001) (quotation omitted).
A.

The Administrative Exemption

The administrative exemption applies if: 1) the employee is compensated on
a salary or fee basis not less than $455 per week; 2) the employee’s “primary duty
is the performance of office or non-manual work directly related to the
management or general business operations of the employer or the employer’s
customers”; and 3) the employee’s “primary duty includes the exercise of

1

The FLSA authorizes the Department of Labor to issue regulations defining the executive and
administrative exemptions. See 29 U.S.C. § 213(a)(1). The Court must give the regulations
promulgated by the Department of Labor “controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Nat. Resources
Defense Council, Inc., 467 U.S. 837, 844 (1984).
13

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 14 of 22 PageID 1231

discretion and independent judgment with respect to matters of significance.” 29
C.F.R. § 541.200(a).
There is no dispute that plaintiff met the two prongs throughout his
employment with defendant. Dkt. 45 at 3. The Court will first address the third
prong, which is the dispositive issue here. Defendant must clearly establish as
uncontested fact that plaintiff’s primary duty involved “the exercise of discretion
and independent judgment with respect to matters of significance.” 29 C.F.R.
§ 541.200(a)(3).
A “primary duty” is defined as “the principal, main, major or most important
duty that the employee performs.” Id. § 541.700(a). A “[d]etermination of an
employee’s primary duty must be based on all the facts in a particular case, with
the major emphasis on the character of the employee’s job as a whole.” Id. The
regulations provide the following non-exclusive list of factors to consider in
determining an employee’s primary duty: 1) the importance of the employee’s
primary duty compared with other duties; 2) the amount of time the employee
spends on the primary duty; 3) the employee’s freedom from direct supervision;
and 4) the relationship between the employee’s salary and the wages paid to other
employees for the other duties performed by the employee. Id. The amount of
time an employee spends performing exempt work serves as a guide but is not the
sole consideration when evaluating an employee’s exempt status. Id. § 541.700(b).
14

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 15 of 22 PageID 1232

It is uncontested that plaintiff’s primary duty was designing training for the three
software products and conducting the training.
The second component, “the exercise of discretion and independent
judgment,” generally “involves the comparison and the evaluation of possible
courses of conduct, and acting or making a decision after the various possibilities
have been considered.” Id. § 541.202(a). The regulations provide the following
non-exclusive list of factors to consider in determining whether an employee
exercises discretion and independent judgment with respect to matters of
significance:
[W]hether the employee has authority to formulate,
affect, interpret, or implement management policies or
operating practices; whether the employee carries out
major assignments in conducting the operations of the
business; whether the employee performs work that
affects business operations to a substantial degree, even if
the employee’s assignments are related to operation of a
particular segment of the business; whether the employee
has authority to commit the employer in matters that have
significant financial impact; whether the employee has
authority to waive or deviate from established policies
and procedures without prior approval; whether the
employee has authority to negotiate and bind the
company on significant matters; whether the employee
provides consultation or expert advice to management;
whether the employee is involved in planning long- or
short-term business objectives; whether the employee
investigates and resolves matters of significance on
behalf of management; and whether the employee
represents the company in handling complaints,
arbitrating disputes or resolving grievances.
15

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 16 of 22 PageID 1233

Id. at § 541.202(b). “The exercise of discretion and independent judgment implies
that the employee has authority to make an independent choice, free from
immediate direction or supervision.” Id. at § 541.202(c). The term discretion and
independent judgment, however, does not require that the decisions at issue have a
finality that goes with unlimited authority and a complete absence of review. Id.
A decision made as a result of the exercise of discretion and independent judgment
may consist of recommendations for action rather than the actual taking of action.
Id. The fact that an employee’s decision may be subject to review and that upon
occasion the decision is revised or reversed does not necessarily mean that the
employee is not exercising discretion and independent judgment. Id. The
regulations also provide that the exercise of discretion and independent judgment
“must be more than the use of skill in applying well-established techniques,
procedures or specific standards described in manuals or other sources,” and “does
not include clerical or secretarial work, recording or tabulating data, or performing
other mechanical, repetitive, recurrent or routine work.” Id. at § 541.202(e).
The third component, “matters of significance,” generally includes
“responsibilities dealing with matters of broad scope and significant detail that
have a profound effect on an employer’s business,” such as committing an
employer in matters that have significant financial impact, negotiating and binding
the company on significant matters, or planning long-term or short-term business
16

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 17 of 22 PageID 1234

objectives. Alvarez v. Key Transp. Serv. Corp., 541 F. Supp. 2d 1308, 1313-14
(S.D. Fla. 2008) (citing 29 C.F.R. § 541.202).
B.

Application

Plaintiff meets many of the factors for determining “discretion and
independent judgment” set forth in the Department of Labor’s regulation, 29
C.F.R. § 541.202(b). It is uncontested that this plaintiff had the authority to both
formulate and to implement management operating practices, related to the design
of the curriculum and its presentation. As to presentation, he had very wide
authority. And as to design, both plaintiff and his colleague Massimino assert
without contradiction that plaintiff did it all. Other regulation factors are whether
the employee carried out major assignments in conducting the business, and
whether that work affects the business operations to a substantial degree. Those
are plainly met. The training function was vital to the software sales, and
plaintiff’s effective training skills actually increased revenue by fostering more
sales. Other factors in the regulation that touch upon plaintiff’s administrative
discretion are his ability to deviate from established policies, and whether he
provided consultation or expert advice to management (plainly so, as he not only
created individual training modules customized for clients, but he “completely
redesigned” the entire training curriculum).

17

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 18 of 22 PageID 1235

Beyond the regulatory guidance, the Court considers the parties’ behavior
before this lawsuit and any related motivations arose. Although one should
discount labels placed upon jobs by an employer, plaintiff called himself “a
manager.” Plaintiff testified he managed the curriculum design and managed
curriculum delivery both directly and in consultation with others. To “manage”
means “to control and direct, to administer, to take charge of. To conduct; to carry
on the concerns of a business or establishment. Generally applied to affairs that
are somewhat complicated and that involve skill and judgment.” Black’s Law
Dictionary 865 (5th ed. 1981). Besides “managing,” plaintiff used other terms to
describe what he did: “plans,” and “coordination for plannings,” “leads training
initiatives,” “takes a strategic approach to business success,” and “development” of
materials. Dkt. 42 at 265-69, 276. Plaintiff’s own words depict the discretion,
skill, and independent judgment that he used on the job.
Besides his description of his job, Plaintiff’s work behavior does not support
his present position that he should have been considered an hourly worker, rather
than an exempt, administrative one. He behaved as a professional with lax
supervision, often setting his own hours and informing supervisors later.
The record shows that in plaintiff’s 22 months in defendant’s employ, he
called in sick during the work week and took or sought time off for medical
reasons such as illness or doctor visits approximately 20 or more times. See Dkt.
18

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 19 of 22 PageID 1236

43-8; Dkts. 48-2 through 48-4. He was apparently never “docked” or penalized for
this large number of times he took off.
On top of this, the record shows plaintiff also took weekdays off, arrived
late, or asserted he would be “working from home” even more frequently. He
expressly stated to his boss in emails he was “working from home” numerous
times. See Dkt. 43-8; Dkts. 48-2 through 48-4. An employee who informs his
supervisor he is “working from home” at times of his own choosing suggests one
vested with discretion, without daily or close supervision. Certainly keeping
hourly track of such an employee on a time-clock basis would be problematic for
the employer. Plaintiff took his own varying lunch periods and one or two drinks
at lunch is no sin, although it tends to show independence and lack of close
supervision (as does the vodka screwdriver at 10:17 am on plaintiff’s expense
report from the Atlanta airport. Dkt. 48-4 at 8).
Judge Posner has noted that this situation where the employee works
extensively “on the road” or away from the office supports a finding of
administrative exemption. In seeking to limn the somewhat obtuse regulations,
Judge Posner noted that:
[O]ne sees what this regulation is getting at: a legal
requirement to pay a worker a fixed percentage increase
in his wage if he works more than 40 hours a week
doesn’t fit a worker who spends much of his work time
off the employer’s premises, where he can’t be
19

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 20 of 22 PageID 1237

supervised and so if entitled to overtime would be
tempted to inflate his hours. See 29 C.F.R. § 541.202(c).
Verkuilen v. Mediabank, LLC., 646 F.3d 979, 981 (7th Cir. 2011) (additional
citations omitted) (finding administrative exemption for manager of customer’s
account who “has to learn about the customers’ business” so software “can be
adapted to the customer’s needs . . . [and] has to spend much of her time on
customers’ premises training staff in the use of the software, answering questions
when she can and when she can’t taking them back to [defendant’s] software
developers”).
The most significant part of plaintiff’s discretion in formulating his work
product was the freedom he had to tailor various instruction modules to the
respective clients, depending upon the client needs and situation, not unlike the
plaintiff in Verkuilen, supra. How plaintiff taught and fielded customers’
questions was almost entirely up to him. Combining this fact with the liberty
plaintiff asserted regarding his work schedule leads one to case law guidance: “key
factors illustrating that an employee does possess the requisite independence to
satisfy the administrative exemption include ‘an employee’s discretion to set h[is]
own schedule and to tailor communications to a client’s individual needs.’” Klein
v. Torrey Point Grp., LLC, 979 F. Supp. 2d 417, 429 (S.D.N.Y. 2013) (citing Reich
v. John Alden Life Ins. Co., 126 F.3d 1, 14 (1st Cir. 1997)). Much like the plaintiff
in Klein v. Torrey Point, this plaintiff worked from home and often determined his
20

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 21 of 22 PageID 1238

own schedule, including when and how to eat his daily lunch. More importantly,
he “acknowledged that he was responsible for analyzing the particular needs of
individual customers” in a “very complex” task to fulfill the customers’ needs. Id.
The fact that plaintiff’s independence was subject to checks and balances does not,
as the regulations plainly indicate, automatically render his employment
insufficiently independent for § 541.202 purposes. Id.; see also 29 C.F.R. §
541.202(c).
Other courts have found a plaintiff’s creation of training materials used to
train others to be significant in illustrating the creator’s workplace independence.
E.g., Bernard v. Grp. Publ’g, Inc., 970 F. Supp. 2d 1206, 1225 (D. Colo. 2013).
Just like plaintiff here, the seminar trainers in Muller v. American Management
Ass’n Int’l, 368 F. Supp. 2d 1166, 1176-77 (D. Kan. 2004), who were found to
exercise discretion in their work, “ma[d]e the seminars theirs…[,] inject[ed] their
own personality into the material, [used] examples or stories from their own
experience, [incorporated] current events or local developments into the
presentation, and [developed] a unique style of presentation.” Id. at 1176. As
these cases show, plaintiffs who exercise their own judgment to tailor or mold
solutions or approaches for clients and customers tend to exercise sufficient
discretion to qualify for an overtime exemption. Accord Hines v. State Room, Inc.,
665 F.3d 235, 245-47 (1st Cir. 2011) (holding that individuals selling banquet
21

Case 8:17-cv-01897-WFJ-JSS Document 53 Filed 02/08/19 Page 22 of 22 PageID 1239

events, who worked with discretion in helping customers select various options,
exercised independent judgment and discretion regarding matters of significance to
the employee and were properly classified as exempt); Swartz v. Windstream
Commc’ns Inc., 429 F. App’x 102, 105 (3d Cir. 2011) (employee who designed
telecommunications systems for individual customers exercised discretion and
independent judgment supporting administrative exemption).
Plaintiff’s own words establish that he exercised quite a bit of discretion and
independence in the carrying out his primary duty. And his primary duty was
indeed a matter of significance to defendant. The administrative exemption to the
FLSA is met.
Accordingly, it is ordered that defendant’s Motion for Summary Judgment
(Dkt. 43) is granted. Because defendant’s counterclaims seek merely to set off any
award granted to plaintiff, and the Court has determined that no such award is
warranted, the counterclaims are due to be dismissed. The Clerk is ordered to
enter judgment for defendant on plaintiff’s one count in his Complaint and close
the case.
DONE and ORDERED in Tampa, Florida on February 8, 2019.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
22