MCGOWEN v. FOUR DIRECTIONS DEVELOPMENT CORPORATION et al

Filing 80

ORDER granting in part and dismissing in part 51 Motion for Summary Judgment; overruling 70 Objection to Additional Attachments. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BARBARA McGOWEN,
Plaintiff,
v.
FOUR DIRECTIONS
DEVELOPMENT CORPORATION,
et al.,
Defendant.

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1:12-cv-00109-JAW

ORDER GRANTING IN PART AND DISMISSING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Barbara McGowen alleges that her former employer, Four Directions
Development Corporation (FDDC), and her former supervisor, Susan Hammond,
committed one federal and a variety of state civil wrongs related to Ms. McGowen’s
employment and termination from FDDC. She alleges violations of the Federal Fair
Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA); the state of Maine’s wage and
hour law, ME. REV. STAT. tit. 26, §§ 664 et seq.; the Maine Whistleblower Protection
Act, ME. REV. STAT. tit. 26, §§ 831 et seq. (MWPA); and the Maine common law of
defamation and tortious interference with a business relationship. Before the Court
is the Defendants’ motion for summary judgment as to Counts I, III, and V of the
Amended Complaint and for partial summary judgment as to Counts II and IV.
The summary judgment record shows no genuine dispute of material fact as to
Count I, the FLSA claim; Ms. McGowen met both the “salary basis test” and the

“duties test” for classification as an employee exempt from the FLSA’s overtime pay
requirements. The Court grants summary judgment as to Count I and dismisses
the remaining state law claims without prejudice to allow Ms. McGowen to proceed,
if she wishes, with the state claims in state court.
I.

LEGAL STANDARD
Summary judgment is appropriate when “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 dispute is genuine if the evidence about the fact is such that a
reasonable jury could resolve the point in the favor of the non-moving party.’”
Rodriguez-Rivera v. Federico Trilla Reg’l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)
(quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is
material if it has the potential of determining the outcome of the litigation.” Maymí
v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2005).
The party moving for summary judgment must demonstrate an absence of
evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). In determining whether this burden is met, the Court must view
the record in the light most favorable to the non-moving party and give that party
the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594,
598 (1st Cir. 2004). Once the moving party has made a preliminary showing that no
genuine issue of material fact exists, the nonmovant must “‘produce specific facts, in
suitable evidentiary form, to . . . establish the presence of a trialworthy issue.’”
Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting

2

Morris v. Gov’t Dev. Bank of P.R., 27 F.3d 746, 748 (1st Cir. 1994)). “‘[A]s to any
essential factual element of its claim on which the nonmovant would bear the
burden of proof at trial, its failure to come forward with sufficient evidence to
generate a trialworthy issue warrants summary judgment to the moving party.’” In
re Spiegel, 260 F.3d 27, 31 (1st Cir. 2001) (quoting Century 21 Balfour Real Estate v.
Menna, 16 F.3d 7, 9 (1st Cir. 1994)).
II.

FACTS
A.

Procedural Posture

Ms. McGowen filed her first Complaint on May 2, 2012, Compl. (ECF No. 1),
and an Amended Complaint on June 6, 2013. Am. Compl. (ECF No. 42). Count I
alleges a violation of the FLSA, id. at 11; Count II alleges a violation of Maine’s
minimum wage and hour law, id. at 12; Count III a violation of the MWPA, id. at
12; Count IV common law defamation, id. at 13; and Count V “tortious interference”
with a contract or business relationship. Id. at 14. The Defendants answered on
July 19, 2013. Answer. (ECF No. 47).
On August 9, 2013, the Defendants moved for summary judgment on Counts
I, III, and V, and partial summary judgment on Counts II and IV. Mot. for Summ.
J. (ECF No. 51) (Def.’s Mot.). As to Count II, the Defendants ask for summary
judgment for the period from June, 2008 to April, 2011. Def.’s Mot. 16. As to Count
IV, they ask for summary judgment regarding seven specific, allegedly defamatory
statements. Id. at 20. The Defendants accompanied their motion with a statement
of material facts, Def.’s Rule 56(g) Statement of Material Facts (ECF No. 52)
(DSMF), and a number of exhibits.
3

Ms. McGowen responded in opposition to the motion on September 13, 2013.
Pl.’s Opp’n to the Def.’s Mot. for Summ. J. (ECF No. 57) (Pl.’s Opp’n). With the
opposition came a reply to the Defendants’ statement of material facts and a
statement of additional material facts. Pl.’s Opposing and Additional Statement of
Material Facts in Opp’n to Summ. J. (ECF No. 58) (PRDSMF) (PSAMF).

The

Defendants replied to Ms. McGowen’s opposition on September 27, 2013, Def.’s
Reply Mem. of Law (ECF No. 61) (Def.’s Reply). They also filed an opposition to Ms.
McGowen’s requests to strike, under District of Maine Local rule 56(e), and a reply
to Ms. McGowen’s Statement of Additional Material Facts.

Def.’s Resp. to Pl.’s

Objections and Reply Statement of Material Facts (ECF No. 62) (Rule 56(e) Resp.)
(DRPSAMF).
On September 26, 2013, Ms. McGowen moved to supplement the record. Pl.’s
Mot. for Leave to File Supplemental R. in Opp’n to Summ. J. (ECF No. 60). On
October 17, 2013, FDDC filed a response to the motion for leave to file supplemental
record. Resp. of Defs. To Mot. of Pl. for Leave to File Supplemental R. (ECF No. 65).
On November 8, 2013, the Court also granted Ms. McGowen leave to supplement
the summary judgment record, Order Granting Mot. for Leave to File Supplemental
Record (ECF No. 66), and Ms. McGowen submitted supplemental materials on
November 12, 2013. Pl.’s Supplemental R. in Opp’n to Def.’s Mot. for Summ. J.
(ECF No. 67) (Supplemental R.). However, on December 14, 2013, FDDC filed a
supplemental citation, consisting of a citation to Winslow v. Aroostook County, 736
F.3d 23 (1st Cir. 2013), a case the First Circuit decided on November 15, 2013.

4

Supplemental Citation by Defs. on Mot. for Summ. J. (ECF No. 69). On January 6,
2014, Ms. McGowen filed a response to FDDC’s supplemental citation filing.1 Pl.’s
Resp. in Opp’n to Defs.’ Supplemental Citation on Summ. J. (ECF No. 70).
B.

Summary Judgment Facts2
1.

The Defendants’ Facts
a.

Background Facts

Four Directions Development Corporation (“FDDC”) is a Maine nonprofit
corporation with an office in Orono, Maine. DSMF ¶ 1; PRDSMF ¶ 1.3 FDDC was
formed under sponsorship by the Penobscot Indian Nation, with support from other
Maine tribes, the Passamaquoddy Tribe, the Houlton Band of Maliseet Indians, and
the Aroostook Band of Micmacs, to provide affordable housing and economic
development services to the tribes and to tribal members. DSMF ¶ 2; PRDSMF ¶ 2.
FDDC is a community development corporation and a Community Development
Financial Institution. DSMF ¶ 3; PRDSMF ¶ 3. In the period of 2006 to 2011, it
had a housing program, a business program, and other activities.

DSMF ¶ 3;

This response was docketed as an objection to FDDC’s additional attachments, namely a copy
of the Winslow case. See Objection to Additional Attachs. (ECF No. 70). The Court does not view Ms.
McGowen’s response as an objection to the fact of the supplemental filing, only as a response to the
argument contained in the supplemental filing, the merits of which are subsumed by the pending
motion. In any event, to keep the docket straight, the Court OVERRULES the Plaintiff’s Objection
to Additional Attachments, Supplemental Citation (ECF No. 70).
2
Keeping with “the conventional summary judgment praxis,” the Court recounts the facts in
the light most hospitable to Ms. McGowen’s case theories, consistent with record support. Gillen v.
Fallon Ambulance Serv., Inc., 283 F.3d 11, 17 (1st Cir. 2002). In compliance with this obligation,
the Court recites supported facts as true even if the Defendants dispute them.
3
The Defendants’ paragraph 1 characterizes FDDC as a “small Maine nonprofit corporation.”
DSMF ¶ 1. Ms. McGowen interposes a qualified response, conceding that “FDDC has a relatively
small number of employees, but it handled over a million dollars in Federal grants in each of the
fiscal years 2010, 2011, and 2012.” PRDSMF ¶ 1.
Referring to FDDC as “small” is a
characterization, not a fact. The Court omits the word “small,” and deems paragraph 1, as modified,
admitted under Local Rule 56(f), (g).
1

5

PRDSMF ¶ 3.

It engaged in lending for housing and business development

purposes to tribal members and member-owned businesses. DSMF ¶ 3; PRDSMF ¶
3.
Susan Hammond, a member of the Penobscot Indian Nation, has served as
Executive Director of FDDC from 2001 to present. DSMF ¶ 4; PRDSMF ¶ 4. FDDC
receives funding from a variety of grant sources, public and private. DSMF ¶ 5;
PRDSMF ¶ 5. FDDC had twelve employees in fiscal year 2010 and thirteen in fiscal
year 2011. DSMF ¶ 6; PRDSMF ¶ 6.4
Rachel Grivois, C.P.A., is an outside accountant who serves as Chief
Financial Officer for FDDC. DSMF ¶ 7; PRDSMF ¶ 7. FDDC uses several outside
grant consultants, including Helen Scalia, James Hanna, and Chris Shrum. DSMF
¶ 8; PRDSMF ¶ 8. FDDC uses an outside personnel consultant, Peter Chavonelle,
for personnel and human resource matters. DSMF ¶ 9; PRDSMF ¶ 9.5

The Defendants claim that “FDDC had between 5 and 7 employees in 2010 and 2011. DSMF
¶ 6 (citing DSMF Attach. 1 Second Decl. of Susan Hammond (ECF No. 52) (Aug. 9, 2013) (Hammond
Second Decl.) Ms. McGowen denies this assertion. PRDSMF ¶ 6 (citing PRDSMF Attach. 1 Return
of Organization Exempt From Income Tax, at 1 (ECF No. 58) (May 12, 2011) and PRDSMF Attach. 2
Return of Organization Exempt From Income Tax, at 1 (ECF No. 58) (Mar. 5, 2012)). Ms. McGowen
attached copies of Four Directions’ annual IRS Form 990 for its fiscal years from October 1, 2009
through September 30, 2010 and from October 1, 2010 through September 30, 2011, which confirms
it had twelve and thirteen employees for each respective year. Id. As record material directly
controverts the Defendants’ assertion of paragraph 6, and as the Court is bound to resolve factual
disputes in Ms. McGowen’s favor, the Court modified the assertion to reflect Ms. McGowen’s record
material, and deems paragraph 6, as amended, admitted under Local Rule 56(f), (g).
5
Ms. McGowen interposes a qualified response, denying that Peter Chavonelle “was available
to employees of FDDC as a resource on ‘personnel matters.’” PRDSMF ¶ 9. The Defendants’
paragraph 9 does not make the assertion that Ms. McGowen purports to deny; the Defendants only
claim that Mr. Chavonelle was used by FDDC “for personnel and human resources matters.” DSMF
¶ 9. Because Ms. McGowen has not shown that the assertion of paragraph 9 is inaccurate or
misleading, or that she is unable to reply to the assertion, the Court deems Defendants’ paragraph 9
admitted under Local Rule 56(f), (g).
4

6

b.

Ms. McGowen’s Status as an Employee

FDDC employed Ms. McGowen from November 2006 to April 11, 2011.
DSMF ¶ 10; DRPSMF ¶ 10. From November 2006 until at least June 2008, Ms.
McGowen held a position as an Administrative Assistant. DSMF ¶ 11; PRDSMF ¶
11.6 From April 2007—when the former Business Program Coordinator, Patricia
Kontur, left FDDC—to June 2008, Ms. McGowen became increasingly involved in
the Business Program.

DSMF ¶ 12; PRDSMF ¶ 12.

Among the duties Ms.

McGowen assumed were working with outside consultants to complete a
commercial loan. DSMF ¶ 13; PRDSMF ¶ 13. This included meeting with the
client, collecting the information needed to compile a loan file, and reviewing the
documents prepared for the loan committee.

DSMF ¶ 13; PRDSMF ¶13.7 Ms.

In paragraph 11, the Defendants claim that “[f]rom November, 2006 to June, 2008, Ms.
McGowen held a position as an Administrative Assistant.” DSMF ¶ 11 (citing DSMF Attach. 3 Decl.
of Susan Hammond, ¶¶ 4-5 (ECF No. 52) (Nov. 28, 2011) (Hammond Decl.)). Ms. McGowen denies
this assertion. PRDSMF ¶ 11 (citing PRDSMF Attach. 4 Aff. of Barbara McGowen, ¶ 5 (ECF No. 58)
(Sept. 11, 2013) (McGowen Aff.); PRDSMF Attach. 6 Performance Review Summary, at 1 (ECF No.
58) (undated); and Supplemental R. Attach. 2 Dep. of Susan Hammond, at 52:9-16 (Jan. 7, 2013)
(Hammond Dep.)). Ms. McGowen’s affidavit claims that “[f]rom April of 2007 forward, I performed
some duties of the Business Program Coordinator position while also continuing to give
administrative assistance to Susan Hammond.” McGowen Aff ¶ 5. The word “forward” in this
sentence is vague, and Ms. Hammond’s deposition and the performance review do not conclusively
show when, if at all, Ms. McGowen ceased to perform these duties. The performance review does
establish that she may have been acting in part as an administrative assistant through December of
2008. The Court concludes that the record does not fully controvert the Defendants’ paragraph 11,
but the Court modifies paragraph 11 to reflect that Ms. McGowen performed the duties of the
administrative assistant until “at least” June 2008. The Court deems Ms. McGowen’s denied
response to Defendants’ paragraph 11, as amended, admitted under Local Rule 56(f), (g).
7
Ms. McGowen interposes a qualified response to paragraph 13, denying all of the statement
except that “as a general matter, [Ms.] McGowen worked on commercial loans, met with clients, and
compiled information.” PRDSMF ¶ 13 (citing McGowen Aff. ¶¶ 32-33). The record material cited by
the Defendants does not support their assertion that Ms. McGowen worked with “a co-worker” on the
loan. DSMF ¶ 13. She did not refer to her colleague as a co-worker, DSMF Attach. 8 Dep. of
Barbara McGowen, at 9:12-22 (ECF No. 52) (Jan. 2, 2013) (McGowen Dep.), and her affidavit
identifies the colleague as an “outside consultant.” McGowen Aff. ¶ 33. However, Ms. McGowen
testified at her deposition that she “worked with Jay Fortier with an active commercial loan that was
in process” and that “[w]e met with the client, we collected the information needed to compile a loan
6

7

McGowen also worked with tribal communities to organize necessary training in
order to qualify for grants. DSMF ¶ 14; PRDSMF ¶ 14.8
In June 2008 Ms. Hammond promoted Ms. McGowen to Business Program
Coordinator. DSMF ¶ 15; PRDSMF ¶ 15.9 Although Ms. McGowen performed some
unlisted tasks as assigned, the FDDC job description for the Business Program
Coordinator is an accurate summary of the job duties Ms. McGowen regularly
performed while she held that position. DSMF ¶ 16; PRDSMF ¶ 16.10 Those duties

file, [and] prepared the . . . documents for the loan committee. Jay prepared the documents and I
reviewed them.” McGowen Dep. at 9:12-22. This supports the assertion of paragraph 11, other than
the statement about a “co-worker,” and paragraphs 32 and 33 of Ms. McGowen’s affidavit do not
controvert it. Furthermore, an interested witness may not offer an affidavit that directly contradicts
his or her own deposition testimony without a satisfactory explanation for the conflict. Colantuoni v.
Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994). The Court deems the Defendants’
paragraph 13, as modified, admitted under Local Rule 56(f), (g).
8
The Defendants assert that “Ms. McGowen also worked with tribal communities to perform
necessary training in order to qualify for grants.” DSMF ¶ 14 (citing McGowen Dep. at 9:23-25, 10:117). Ms. McGowen denies this assertion. PRDSMF ¶ 14 (citing McGowen Aff. ¶ 34). In her
deposition, Ms. McGowen stated that “Sue [Hammond] and I worked together on some training
activities . . . that had to happen . . . within the communities in order to fulfill grant obligations.”
McGowen Dep. at 10:1-2, 10:12-14. Her Affidavit denies that she “performed” any training, and
claims instead that she assisted Ms. Hammond in various organizational tasks related to training.
Viewing these statements in a light most favorable to Ms. McGowen, the Court modifies paragraph
14 to reflect that Ms. McGowen organized training, but did not perform it. The Court deems
Defendants’ paragraph 14, as modified, admitted under Local Rule 56(f), (g).
9
Ms. McGowen interposes a qualified response, but the qualification does not change the
substance of paragraph 15. The Court deems Defendants’ paragraph 15 admitted under Local Rule
56(f), (g).
10
Ms. McGowen denies this assertion, stating that it is incomplete and therefore inaccurate.
PRDSMF ¶ 16 (citing McGowen Aff. ¶ 35 and McGowen Dep. at 22:22-23:11). However, in her
deposition, Ms. McGowen reveals the following exchange:
Q
A
Q
A
Q
A

. . . In a nutshell this [job description] is an accurate summary of the duties of
the job?
Yes.
And in addition there were other duties that aren’t listed here?
Other duties as assigned, yes.
. . . And what did it turn out those other duties were, if you remember?
It’s almost impossible to . . . recall.

McGowen Dep. at 23:3-11. The Court amended Defendants’ paragraph 16 to reflect that it is an
accurate statement of her regular job duties but does not list occasionally assigned tasks. As

8

consisted primarily of office and non-manual work. DSMF ¶ 17; PRDSMF ¶ 17.
Ms. McGowen exercised a fair amount of judgment and discretion in her position of
Business Program Coordinator. DSMF ¶ 18; PRDSMF ¶ 18.11 Ms. McGowen was
responsible for significant matters in this position, such as preparing loans and
preparing information on loans for FDDC’s Loan Committee. DSMF ¶ 19; PRDSMF
¶ 19.12 Ms. McGowen’s duties also included working one-on-one with FDDC clients
and assisting them in utilizing the various services provided by FDDC. DSMF ¶ 20;
PRDSMF ¶ 20.13

modified, the Court refuses to accept Ms. McGowen’s denial and deems Defendants’ modified
paragraph 16 admitted under Local Rule 56(f), (g).
11
Ms. McGowen denies this assertion, citing her Affidavit as evidence of micromanagement by
her supervisor, Ms. Hammond. PRDSMF ¶ 18 (citing McGowen Aff. ¶¶ 36-38). She also claims that
she was required to account for forty hours of work each week. Id. (citing Hammond Dep. at 101:924). She compares her level of “judgment and discretion” to that afforded two other FDDC
employees. Id. (citing Hammond Dep. at 45:3-21 and PSAMF ¶¶ 24-30). However, none of these
record citations controverts the basic fact that when asked whether she “had a fair amount of
judgment and discretion in your job as business program coordinator,” Ms. McGowen answered with
an unequivocal “Yes.” McGowen Dep. at 23:12-15. Ms. McGowen’s Affidavit cannot contradict her
deposition testimony without satisfactory explanation. Colantuoni, 44 F.3d at 4-5. Neither the
discretion afforded other employees, nor the amount of time for which Ms. McGowen was required to
account each week, calls into serious question her own deposition testimony that she was afforded “a
fair amount of judgment and discretion” in her job as Business Program Coordinator. The Court
modified Defendants’ paragraph 18 to more accurately reflect her testimony that she had “a fair
amount” of judgment and discretion. Because Ms. McGowen does not properly controvert the
assertion of paragraph 18, the Court deems Defendants’ modified paragraph 18 admitted under
Local Rule 56(f), (g).
12
Ms. McGowen denies this assertion, PRDSMF ¶ 19 (citing McGowen Aff. ¶ 33), but her
deposition testimony supports the assertion virtually word for word. McGowen Dep. at 23:16-19.
Ms. McGowen’s Affidavit cannot directly contradict her deposition testimony without adequate
explanation. Colantuoni, 44 F.3d at 4-5. The Court deems Defendants’ paragraph 19 admitted
under Local Rule 56(f), (g).
13
Ms. McGowen moves to strike paragraph 20 as vague. PRDSMF ¶ 20 (citing D. ME. LOC. R.
56(e)). She views the terms “‘working one-on-one’ with clients” and “‘utilizing various services’” as
“incapable of any precise understanding that would enable Plaintiff to respond.” Id. (quoting DSMF
¶ 20). The Court disagrees. One-on-one means direct communications between two people and
although “various services” is vague, it is modified by “provided by FDDC.” In the context of this
case, the assertion is sufficiently clear to require a response. The Court denies her motion to strike.
Ms. McGowen also denies the statement, id. (citing PRDSMF ¶ 18), but nothing in the record
material cited in her response to paragraph 18 controverts the assertion of paragraph 20. The Court
deems Defendants’ paragraph 20 admitted under Local Rule 56(f), (g).

9

Ms. McGowen was paid weekly for forty hours pay times a stated hourly rate
from June 2008 through the end of her employment. DSMF ¶ 22; PRDSMF ¶ 22.14
Ms. McGowen is not aware of any week in which she received less than 40 hours of
pay from June 2008 through the end of her employment. DSMF ¶ 23; PRDSMF ¶
23. Ms. McGowen received no less than $600.00 per week in gross pay from March
25, 2008 to May 28, 2008. DSMF ¶ 24; PRDSMF ¶ 24. She received $700.00 a week
in gross pay from June 4, 2008 to June 25, 2008, regardless of hours she worked.
DSMF ¶ 25; PRDSMF ¶ 25.15 She received $900.00 in gross pay on July 2, 2008.
DSMF ¶ 26; PRDSMF ¶ 26. She received $800.00 a week in gross pay from July 9,
In paragraph 21, the Defendants assert that “Ms. McGowen assisted Four Directions clients
in selecting services from Four Directions that best suited their particular needs.” DSMF ¶ 21
(citing McGowen Dep. at 25:20-26:24, 28:14-29:7, 29:13-30:21, 31:3-32:21). Ms. McGowen interposes
a qualified response; she admits that “she assisted clients as part of her job duties,” but denies the
remainder. PRDSMF ¶ 21 (citing McGowen Aff. ¶ 39). The Court carefully reviewed the Defendants’
record citations and concludes that no portion of the cited record supports the assertion; each
passage from Ms. McGowen’s deposition describes how she participated in writing a grant for a
client, but does not suggest that she “assisted Four Direction clients in selecting services from Four
Directions that best suited their particular needs.” The portion of paragraph 21 that Ms. McGowen
admits is redundant with paragraph 20, so the Court disregards paragraph 21 in its entirety.
14
Ms. McGowen interposes a qualified response to paragraph 22, claiming that she “was
instructed to ensure that every single time sheet reflected exactly 40 hours of work each week, using
a combination of hours worked, earned time, and comp time, which is not reflected on the wage
history.” PRDSMF ¶ 22 (citing Hammond Dep. at 71:1-19; 99:2-10; 101:2-24). Even if true, Ms.
McGowen’s response does not change the assertion of paragraph 22. The Court deems Defendants’
paragraph 22 admitted under Local Rule 56(f), (g).
15
Ms. McGowen denies paragraph 25, citing without explanation twenty-five consecutive
paragraphs from her own statement of material facts, paragraphs 22 through 47. This violates Local
Rules 56(c) and (f). “The opposing statement . . . shall support each denial or qualification by a
record citation as required by this rule.” D. ME. LOC. R. 56(c). Furthermore,
[a]n assertion of fact set forth in a statement of material facts shall be followed by a
citation to the specific page or paragraph of identified record material supporting the
assertion. The court may disregard any statement of fact not supported by a specific
citation to record material properly considered on summary judgment. The court
shall have no independent duty to search or consider any part of the record not
specifically referenced in the parties’ separate statement of facts.
D. ME. LOC. R. 56(f). The Court is under no obligation to sift through each of those paragraphs to
discover whether the record citations support her denial of paragraph 25. The Court deems the
Defendants’ paragraph 25 admitted under Local Rule 56(c), (f), (g).

10

2008 to May 20, 2009, regardless of the hours she worked. DSMF ¶ 27; PRDSMF ¶
27.16 She received $884.80 a week in gross pay from May 27, 2009 to September 30,
2009, regardless of the hours she worked.

DSMF ¶ 28; PRDSMF ¶ 28.17

She

received $911.20 a week in gross pay from October 7, 2009 to April 13, 2011,
regardless of the hours she worked. DSMF ¶ 29; PRDSMF ¶ 29.18
Susan Hammond does not recall that anybody at FDDC ever took unpaid
personal leave. DSMF ¶ 30; PRDSMF ¶ 30. If FDDC employees scheduled personal
appointments during working hours, they would take the time as paid personal
leave, using personal time or earned time. DSMF ¶ 31; PRDSMF ¶ 31.19 FDDC
had no policy of changing the amount of compensation based on the number of
hours worked, and it has never been the intent or practice of FDDC to deduct pay
from any employee’s salary based on the quantity or quality of the work they
performed. DSMF ¶ 32; DRPSMF ¶ 32.20

The Court deems Defendants’ paragraph 27 admitted under Local Rule 56(c), (f), (g). See
supra note 15.
17
The Court deems Defendants’ paragraph 28 admitted under Local Rule 56(c), (f), (g). See
supra note 15.
18
The Court deems Defendants’ paragraph 29 admitted under Local Rule 56(c), (f), (g). See
supra note 15.
19
The Defendants’ version of paragraph 31 states that “[i]f people scheduled personal
appointments during working hours, they would take the time as paid personal leave, using personal
time or earned time.” DSMF ¶ 31 (citing Hammond Dep. at 93:5-22). Ms. McGowen moves to strike
this paragraph as “vague, ambiguous, and speculative.” PRDSMF ¶ 31. However, the context of the
cited passage from Ms. Hammond’s deposition makes it clear that the statement refers to FDDC
employees and is based on her personal knowledge. Hammond Dep. at 93:3-9 (“Q. And did you
encourage your employees to schedule personal appointments outside of their working hours? A. I
didn’t make any request. If they scheduled it during working hours, they would take the time. And - and if they were - - and they would take personal leave”). Ms. McGowen also denies the assertion.
PRDSMF ¶ 31 (citing PSAMF ¶¶ 22-47). The Court deems Defendants’ paragraph 31 admitted
under Local Rule 56(c), (f), (g). See supra note 15.
20
The Court deems Defendants’ paragraph 32 admitted under Local Rule 56(c), (f), (g). See
supra note 15.
16

11

In one instance, a former FDDC employee, Tami Connolly, appeared to have
been paid for only 32 hours of work for the November 5, 2005 to November 11, 2005
pay period even though she was regularly paid for 40 hours of work times a fixed
hourly rate.

DSMF ¶ 33; PRDSMF ¶ 33.

There was no deduction from Ms.

Connolly’s salary, however, because at that time FDDC was changing its pay
periods, and she had been overcompensated the previous pay period, October 31,
2005 to November 4, 2005.

DSMF ¶ 33; PRDSMF ¶ 33.

The amount of the

overcompensation equaled eight hours of pay at a fixed hourly rate; the 32 hours of
pay was an adjustment in her pay that took into account the overpayment in the
prior pay period. DSMF ¶ 33; PRDSMF ¶ 33.
If an employee needed to leave a few hours early one day, he or she would
take earned time or paid leave. DSMF ¶ 34; PRDSMF ¶ 34.21 FDDC never made a
deduction to Ms. McGowen’s weekly pay for hours she did not work. DSMF ¶ 35;
PRDSMF ¶ 35.22
2.

Ms. McGowen’s Facts
a.

Whether Ms. McGowen’s Affidavits Are Competent
Summary Judgment Evidence

The Court must address a preliminary matter before turning to Ms.
McGowen’s facts. The Defendants object to a number of her statements of fact on
the grounds that the affidavits of Ms. McGowen and expert witness Jack Louis

Ms. McGowen moves to strike this statement as “vague, ambiguous, and speculative.”
PRDSMF ¶ 34. The Court denies this motion. The Court also deems Defendants’ paragraph 34
admitted under Local Rule 56(c), (f), (g). See supra note 15.
22
The Court deems Defendants’ paragraph 35 admitted under Local Rule 56(c), (f), (g). See
supra note 15.
21

12

Smith, Jr. are not competent summary judgment evidence. This is so, in their view,
because they are not notarized and do not bear the language required by 28 U.S.C. §
1746. E.g., DRPSAMF ¶ 41 (citing Massay v. Fed. Corr. Inst.-Texarkana, 243 Fed.
App’x 871, 874 (5th Cir. 2007) (unpublished) and 28 U.S.C. § 1746); DRPSAMF ¶
46. The Defendants argue that “the affidavit is not notarized, does not indicate that
it was made under penalty of perjury or that the statements contained therein are
‘true and correct.’” DRPSAMF ¶ 41 (quoting 28 U.S.C. § 1746).
Section 1746 permits an unsworn declaration to substitute for a sworn
declaration if it is “subscribed by [the declarant], as true under penalty of perjury,
and dated, in substantially the following form: . . . ‘I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and correct. Executed on
(date). (Signature).’” 28 U.S.C. § 1746. The jurat of Ms. McGowen’s affidavit states
only:
I, Barbara McGowen, being of legal age and competent in all respects
to testify, having personal knowledge of the matters set forth herein
and having been duly sworn, do hereby state under oath as follows:
McGowen Aff. at 1.

The jurat of Mr. Smith’s Affidavit is identical, with the

substitution of his name. PSAMF Attach. 21 Aff. of Jack Louis Smith, Jr. (ECF No.
58) (Sept. 3, 2013) (Smith Aff.).
Section 1746 requires that the declaration be in “substantially” the form
prescribed. Courts considering this statute are in near-universal agreement that an
unsworn affidavit must aver that the contents are “true and correct” and do so
“under penalty of perjury.” See In re World Trade Center Disaster Site Litig., 722
F.3d 483, 488 (2d Cir. 2013) (holding that § 1746 “requires that a certification of the
13

truth of a matter be expressly made under penalty of perjury” and upholding
rejection of an affidavit that failed to recite “under penalty of perjury”); Nissho-Iwai
Am. Corp. v. Kline, 845 F.2d 1300, 1305-06 (5th Cir. 1988) (holding that an affidavit
could not be considered on summary judgment when it was notarized but did not
declare its contents to be “true and correct”); Powell v. Profile Design LLC, 838 F.
Supp. 2d 535, 540 (S.D. Tex. 2012) (permitting declaration “under penalty of perjury
that the foregoing is true and correct”); United States v. 8 Gilcrease Lane, Quincy,
Fla. 32351, 587 F. Supp. 2d 133, 139 (D.D.C. 2008) (holding that the two necessary
elements are “(i) an assertion that the facts are true and correct; and (ii) an
averment that the first assertion is made under penalty of perjury”); Global Health
Alternatives, Inc. v. Ellon U.S.A., Inc., 1999 WL 33117099, at *1 n.1 (D. Me. Mar.
24, 1999) (unpublished rec. dec.) (holding that affidavits conformed to § 1746 when
the declarant “affirm[ed] the truth of the following under the penalty of perjury”);
In re Muscatell, 106 B.R. 307, 309 (Bankr. M.D. Fla. 1989) (holding that an affidavit
could not be considered on summary judgment where the declarant signed under
penalty of perjury but did not declare his statements to be true and correct).
The Court does not reach whether a declarant’s representation that she is
making the statement “under oath” is “substantially” in the same form as the
statutorily prescribed jurat. Making a statement “under oath” may be the same as
stating that something is true under penalty of perjury. Compare Pineland Lumber
Co. v. Robinson, 382 A.2d 33, 37 (Me. 1978) (concluding that acknowledging a
statement to be the subscriber’s “free act and deed” did not “constitute compliance

14

with the verification requirement of [Maine’s] materialmen’s lien statute”); with
HCI Corp. v. Voikos Constr. Co., 581 A.2d 795, 796-99 (Me. 1990) (concluding that a
subscribing oath by an attorney stating that the facts were true to the best of his
knowledge and belief constituted an oath because it subjected him to possible
perjury). At the same time, as the Fifth Circuit noted in Nissho-Iwai, omitting the
proper jurat “allows the affiant to circumvent the penalties for perjury in signing
onto intentional falsehoods.” 845 F.2d at 1306.
The Court side-steps whether these jurats substantially conform with 28
U.S.C. § 1746 requirements because it does not matter. First, the Court prefers to
rule on the merits. Next, the Court is ruling against the Plaintiff and neither the
Plaintiff, whose potentially non-conforming declarations have been considered, nor
the Defendants, who prevail, is in a position to object to the Court’s decision to
accept the declarations, if they are non-conforming.23
b.

Ms. McGowen’s Work History, Compensation, and
Job Duties at FDDC

Prior to becoming employed by FDDC, Ms. McGowen worked at Unicorn
Transportation as a secretary, at Maine Head Trauma Center as a secretary, and at
the law firm of Pelletier & Faircloth as a paralegal. PSAMF ¶ 1; DRPSAMF ¶ 1.
Ms. McGowen worked as a commercial loan officer between 2005 and 2006, during
which she was paid on an hourly basis. PSAMF ¶ 2; DRPSAMF ¶ 2.

It remains a mystery why Ms. McGowen, once placed on notice that her declarations might
be non-conforming, did not file ones that more clearly comply with the prescribed statutory language.
23

15

FDDC hired Ms. McGowen into the non-exempt position of administrative
assistant at FDDC in November of 2006, at a starting wage of $13.00 per hour.
PSAMF ¶ 3; DRPSAMF ¶ 3. Ms. McGowen’s hourly wage was increased to $14.00
per hour on July 9, 2007. PSAMF ¶ 4; DRPSAMF ¶ 4. Between July of 2007 and
July of 2008, when her position was considered “non-exempt,” Ms. McGowen
frequently worked in excess of 40 hours per week, but she was not paid overtime.
PSAMF ¶ 5; DRPSAMF ¶ 5.24
Ms. McGowen continued to work in excess of 40 hours per week after her title
officially changed to Business Program Coordinator. PSAMF ¶ 6; DRPSAMF ¶ 6.
She kept track of her hours and the “comp time” she used and accrued on her
Outlook calendar, which she later converted to an Excel spreadsheet.25 PSAMF ¶ 6;
DRPSAMF ¶ 6. According to data compiled from that spreadsheet, between July
and October of 2007 Ms. McGowen accrued and used 12.75 hours of comp time for

The Defendants interpose a qualified response, noting that “Ms. McGowen began performing
the duties of the Business Program Coordinator position in April, 2007 and was promoted to that
position in June, 2008.” DRPSAMF ¶ 5 (citing McGowen Dep. at 8:24-10:20). This qualification does
not render the assertion of paragraph inaccurate or misleading. The Court deems the Plaintiff’s
paragraph 5 admitted under Local Rule 56(f), (g).
25
Ms. McGowen uses the term, “comp time”, without defining it. Title 5 U.S.C. § 5543(a) states
that “on request of an employee,” a government agency may “grant the employee compensatory time
off from his scheduled tour of duty instead of payment under section 5542 or section 7 of the Fair
Labor Standards Act of 1938 for an equal amount of time spent in irregular or occasional overtime
work.” See also Doe v. United States, 513 F.3d 1348, 1351 (Fed. Cir. 2008) (stating that the Social
Security Administration “grants one hour of compensatory time for each hour an employee works in
excess of 40 hours in a workweek. If an employee has not used his or her compensatory time after
eight pay periods, the employee is paid for the compensatory time at a rate equal to one and one-half
times the employee’s regular rate of pay”).
Ms. McGowen uses the term differently. Later, she states that Ms. Hammond implemented
a comp time policy at FDDC in which she encouraged all employees to keep track of how many hours
they worked over forty in a week and take paid time off to compensate for the extra work. PSAMF ¶
28. At oral argument, counsel explained that “comp time” has a specific meaning for public but not
private employers. The Court has adopted Ms. McGowen’s version of comp time for purposes of this
opinion.
24

16

weeks where her hours exceeded 40, but she was not compensated at time and a
half. PSAMF ¶ 7; DRPSAMF ¶ 7. During this same time, Ms. McGowen accrued
but was not able to use 27.75 hours of comp time, for which she was never paid.
PSAMF ¶ 7; DRPSAMF ¶ 7.
Between October of 2007 and March of 2008, Ms. McGowen accrued and used
25.65 hours of comp time for weeks where her hours exceeded 40, but she was not
compensated at time and a half. PSAMF ¶ 8; DRPSAMF ¶ 8. During this same
time, Ms. McGowen accrued but was not able to use 13.85 hours of comp time, for
which she was never paid. PSAMF ¶ 8; DRPSAMF ¶ 8.
Between March and June of 2008, Ms. McGowen accrued and used 12.9 hours
of comp time for weeks where her hours exceeded 40, but she was not compensated
at time and a half. PSAMF ¶ 9; DRPSAMF ¶ 9. During this same time, Ms.
McGowen accrued but was not able to use 17.95 hours of comp time, for which she
was never paid. PSAMF ¶ 9; DRPSAMF ¶ 9.
Between June and July of 2008, Ms. McGowen accrued and used 4.3 hours of
comp time for weeks where her hours exceeded 40, but she was not compensated at
time and a half.

PSAMF ¶ 10; DRPSAMF ¶ 10.

During this same time, Ms.

McGowen accrued but was not able to use 15.25 hours of comp time, for which she
was never paid. PSAMF ¶ 10; DRPSAMF ¶ 10.
Between July of 2008 and May of 2009, Ms. McGowen accrued and used
104.4 hours of comp time for weeks where her hours exceeded 40, but she was not
compensated at time and a half. PSAMF ¶ 11; DRPSAMF ¶ 11. During this same

17

time, Ms. McGowen accrued but was not able to use 162.7 hours of comp time, for
which she was never paid. PSAMF ¶ 11; DRPSAMF ¶ 11.
Between May and October of 2009, Ms. McGowen accrued and used 22.25
hours of comp time for weeks where her hours exceeded 40, but she was not
compensated at time and a half. PSAMF ¶ 12; DRPSAMF ¶ 12. During this same
time, Ms. McGowen accrued but was not able to use 50.5 hours of comp time, for
which she was never paid. PSAMF ¶ 12; DRPSAMF ¶ 12.
Between October of 2009 and June of 2010, Ms. McGowen accrued and used
70.25 hours of comp time for weeks where her hours exceeded 40, but she was not
compensated at time and a half. PSAMF ¶ 13; DRPSAMF ¶ 13. During this same
time, Ms. McGowen accrued but was not able to use 138.5 hours of comp time, for
which she was never paid. PSAMF ¶ 13; DRPSAMF ¶ 13.
After June of 2010, Ms. Hammond said that employees could no longer accrue
comp time for hours worked over 40 in a week. PSAMF ¶ 14; DRPSAMF ¶ 14.
However, based on the projects Ms. McGowen was working on, she estimates that
she worked an average of 12 hours of overtime per week between June of 2010 and
her termination on April 11, 2012, for which she was never compensated. PSAMF ¶
14; DRPSAMF ¶ 14.26
Ms. McGowen’s hourly wage was increased to $14.42 on October 1, 2007.
PSAMF ¶ 15; DRPSAMF ¶ 15. Her hourly wage was increased again to $15.00 on

The Defendants interpose a qualified response, but their additional facts do not render the
assertions of paragraph 14 inaccurate or misleading. See DRPSAMF ¶ 14. The Court deems
Plaintiff’s paragraph 14 admitted under Local Rule 56(f), (g).
26

18

March 1, 2008. PSAMF ¶ 16; DRPSAMF ¶ 16. It was increased again to $17.50 on
June 1, 2008. PSAMF ¶ 17; DRPSAMF ¶ 17.
As of June 16, 2008, Ms. McGowen’s weekly pay was calculated at a rate of
$20.00 per hour for a forty hour work week, which amounted to $800.00, and she
was paid no less than that amount regardless of the number of hours she worked in
a given week. PSAMF ¶ 18; DRPSAMF ¶ 18.27 This arrangement continued until
May 20, 2009. PSAMF ¶ 19; DRPSAMF ¶ 19. From May 20, 2009 to September 30,
2009, Ms. McGowen’s weekly pay was calculated at a rate of $22.12 per hour for a
forty hour work week, which amounted to $884.80. PSAMF ¶ 20; DRPSAMF ¶ 20.
From September 30, 2009 to the end of her employment, Ms. McGowen’s weekly pay
was calculated at a rate of $22.78 per hour for a forty hour week, or $911.20 per
week. PSAMF ¶ 20; DRPSAMF ¶ 20. She was paid no less than those amounts,
respectively, regardless of the number of hours she worked in a given week.
PSAMF ¶ 20; DRPSAMF ¶ 20.28

Ms. McGowen asserts only that her “hourly wage was increased to $20.00 per hour on June
16, 2008.” The Defendants interpose a qualified response, which the Court reproduces above. Ms.
McGowen admitted in her deposition that she was “always paid for 40 hours one way or the other,
whether [she] used earned time or vacation or comp time or whatever.” McGowen Dep. at 12:24-13:1.
If she was “out for a partial day or a day,” then she “might use some sort of bank of earned time to
make up the difference to equal 40 hours’ pay.” Id. at 13:6-8. Her wage history confirms this; there
are numerous weeks in which she apparently worked fewer than 40 hours, but the net pay for the
week was calculated at 40 hours. DSMF Attach. 2, at 2-6 (ECF No. 52) (June 28, 2011) (Wage
History). Omitting the fact that she was always paid for a 40 hour week would render the assertion
of paragraph 18 misleading because it would appear that Ms. McGowen was still paid on a strictly
hourly basis after June 16, 2008. The Court includes the Defendants’ qualification.
28
Ms. McGowen’s paragraph 20 claims only that “[o]n or about May 20, 2009, [Ms.] McGowen’s
Hourly Wage was increased to $22.78 per hour, and she continued to be paid that hourly wage until
the time of her termination.” PSAMF ¶ 20 (citing McGowen Aff. ¶ 22). The Defendants interpose a
qualified response, the substance of which the Court reproduces above. DRPSAMF ¶ 20 (citing
McGowen Dep. at 12:8-13:7 and Wage History at 6-14). Paragraph 22 of Ms. McGowen’s affidavit
cites the Wage History exhibit in support of its assertion, but the Wage History shows that beginning
27

19

Aside from the hourly rate, there was no change in the manner in which Ms.
McGowen was compensated by FDDC at any point during her employment, except
after she was formally promoted to Business Program Coordinator, she always
received pay for forty hours of work regardless of how many hours she worked.
PSAMF ¶ 21; DRPSAMF ¶ 21. There was also no change in the way she was
instructed to keep track of her time and hours worked. PSAMF ¶ 21; DRPSAMF ¶
21.29
Ms. Hammond instructed all of her employees, both exempt and non-exempt,
that they should try not to work more than forty hours in one week. PSAMF ¶ 22;

with the check dated May 27, 2009 to September 30, 2009, Ms. McGowen’s weekly pay was $884.80.
Wage History at 6-7. Divided by a 40 hour work week, id., this results in an hourly rate of $22.12,
not $22.78, as Ms. McGowen claims. Beginning with the check dated Oct. 7, 2009, her weekly pay
rises to $911.20, for an hourly rate of $22.78. Because the evidence cited by Ms. McGowen’s affidavit
supports the Defendants’ qualification, and the Defendants’ additional facts are necessary to avoid
rendering the statement inaccurate, the Court adopts the Defendants’ version.
29
Ms. McGowen’s paragraph 21 claims that
[a]side from the hourly rate, there was no change in the manner in which [Ms.]
McGowen was compensated by FDDC at any point during her employment, and the
way she was instructed to keep track of her time and hours worked never changed
from 2007 to 2008 or at any point thereafter.
PSAMF ¶ 21 (citing McGowen Aff. ¶ 23 and Hammond Dep. at 101:2-8). Paragraph 23 of Ms.
McGowen’s Affidavit supplies most of this language, but it states that “[a]side from my hourly rate of
pay and the issue of comp time, there was no change . . . .” McGowen Aff. ¶ 23 (emphasis added). In
light of the Defendants’ qualifications to Ms. McGowen’s paragraphs 18-20, it would be inaccurate
and misleading to omit the “change” in the “issue of comp time” from paragraph 21. The fact that
Ms. McGowen was always paid for 40 hours of work every week, regardless of the number of hours
she actually worked, is a very significant change. The Court adopts part of the Defendants’
qualification, DRPSAMF ¶ 21, in light of Ms. McGowen’s statement in her affidavit and the
supporting record material. McGowen Aff. ¶ 23; Wage History at 6-14.
Also, the Court finds it difficult to reconcile the second part of Ms. McGowen’s paragraph
21—there was no change in the way she was instructed to keep track of her time—with the contents
of her paragraph 14 in which she states that Ms. Hammond told the employees that they could no
longer accrue comp time for hours worked after 40 hours in a given week. PSAMF ¶ 14.

20

DRPSAMF ¶ 22. At the same time, Ms. Hammond’s minimum expectation “was
that everybody would work” a forty-hour week, and “we worked 9:00 to 5:00 with a
half hour lunch.” PSAMF ¶ 23; DRPSAMF ¶ 23.
Ms. McGowen’s experience at FDDC was similar to that of a former FDDC
employee named Kathy Welch. PSAMF ¶ 24; DRPSAMF ¶ 24. Ms. Welch testified
in a case she brought against FDDC that she held a position similar to Barbara
McGowen, except that she was the Housing Program Coordinator, not the Business
Program Coordinator. PSAMF ¶ 24; DRPSAMF ¶ 24. According to Ms. Welch’s
testimony, Barbara McGowen had fewer educational credentials than Ms. Welch,
less work-related experience (because Ms. McGowen had been a paralegal and
secretary before coming to work for FDDC), and less responsibility in her position
than Ms. Welch had in hers. PSAMF ¶ 25; DRPSAMF ¶ 25.30 Ms. Hammond
outlined strict expectations for Kathy Welch, the Housing Program Coordinator
whose job at FDDC was similar to Ms. McGowen’s, that she was to be in the office
from 9:00 AM to 5:00 PM every day, to the point where “even at my lunch break, I
was not to leave the building” and “I had to eat lunch at my desk.” PSAMF ¶ 26;
DRPSAMF ¶ 26.

The Defendants “object” to Plaintiff’s paragraphs 24 and 25 on the ground that Ms. Welch’s
testimony in her own case would be inadmissible against them under Federal Rule of Evidence
404(b). DRPSAMF ¶¶ 24-25 (citing Hall v. Mid-State Mach. Prods., 895 F. Supp. 2d 243, 270-73 (D.
Me. Sept. 11, 2012)). Federal Rule of Civil Procedure 56(c)(2) allows a party to “object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible in
evidence.” See Hall, 895 F. Supp. 2d at 273 (holding that inadmissible evidence “should not be
considered at the summary judgment stage”). At this point, it would be premature for the Court to
rule that Ms. Welch’s testimony would be inadmissible at trial and therefore the Court has included
these paragraphs in its recitation of facts.
30

21

FDDC had an unpaid personal leave policy that applied equally to all
employees, whether exempt or non-exempt. PSAMF ¶ 27; DRPSAMF ¶ 27.31 Ms.
Hammond also implemented and clearly communicated to all employees a “comp
time” policy at FDDC whereby all employees “were encouraged to keep track” of
how many hours they worked over forty in one week and then “take time off when
they could to compensate for the extra work.” PSAMF ¶ 28; DRPSAMF ¶ 28. Ms.
Hammond encouraged Ms. Welch to keep track of time she worked “on weekends
and outside of business hours and to accumulate comp time for that” because Ms.
Hammond “felt I needed to be paid for and compensated for the work that I was
doing.” PSAMF ¶ 29; DRPSAMF ¶ 29. If Ms. Welch had a doctor’s appointment
that would take her out of the office for two hours, she could request to use two
hours of comp time in order to offset those hours so that she “wouldn’t lose any time
for attending that appointment.” PSAMF ¶ 30; DRPSAMF ¶ 30.
On Friday, October 16, 2008, Administrative Assistant Velena Lamson
emailed the entire staff, including Ms. McGowen and a part-time bookkeeper named
Griffin Hardy, a timesheet with instructions for employees to fill out their time for
the week “so hours can be called in Monday morning.” PSAMF ¶ 31; DRPSAMF ¶
31. The Lamson email included instructions for all employees to keep track of comp
time, and the attachment had a place for employees to write down “accumulated
comp time.” PSAMF ¶ 32; DRPSAMF ¶ 32.
The Defendants interpose a qualified response that “Ms. Hammond does not recall anyone
ever taking unpaid personal leave.” DRPSAMF ¶ 27 (citing Hammond Dep. at 92:9-93:22). This
statement does not render paragraph 27 inaccurate or misleading. The Court deems the Plaintiff’s
paragraph 27 admitted under Local Rule 56(f), (g).
31

22

In mid-2010, Ms. McGowen was keeping track of “comp time” on her Outlook
calendar in order to demonstrate to Ms. Hammond how much overtime she had
accrued. PSAMF ¶ 33; DRPSAMF ¶ 33.32 For the week of May 17, 2010, Ms.
McGowen had accrued 188.5 hours of comp time.33 PSAMF ¶ 34; DRPSAMF ¶ 34.
Around this time, Ms. Hammond asked Ms. McGowen to let her know how much
comp time Ms. McGowen had accrued. PSAMF ¶ 35; DRPSAMF ¶ 35. In response,
on Wednesday, June 23, 2010, Ms. McGowen sent Ms. Hammond an email stating
that “[a]s of June 3rd I had 174 hours of comp time,” and she apologized for taking
so long to get the information to Ms. Hammond. PSAMF ¶ 35; DRPSAMF ¶ 35.
Despite having this information, FDDC never compensated Ms. McGowen for
accrued comp time. PSAMF ¶ 36; DRPSAMF ¶ 36. Instead, FDDC announced that
employees would no longer be able to accrue comp time. PSAMF ¶ 36; DRPSAMF ¶
36. Ms. McGowen therefore made a notation in her Outlook calendar that read “NO
MORE COMP TIME.” PSAMF ¶ 36; DRPSAMF ¶ 36. 34

The Defendants interpose a qualified response, suggesting that Ms. McGowen recorded these
hours “for her own purposes; she did not submit the Outlook calendar to Ms. Hammond.” DRPSAMF
¶ 33 (citing McGowen Dep. at 21:25-22:7). Even if that is true, it does not render the assertion of
paragraph 33 inaccurate or misleading. The Court deems the Defendants’ qualified response
admitted under Local Rule 56(f), (g).
33
The Defendants did not object or qualify their response to this paragraph, but the Court
assumes that Ms. McGowen must be referring to accrued comp time “by the week of” May 17, 2010,
not “for the week of” May 17, 2010.
34
In paragraph 37, Ms. McGowen claims that
32

[a]fter the comp time policy changed, [Ms. Welch] complained to [Ms.] Hammond that
it was not fair because, if she had to work on the weekend, she “‘needed to be
compensated for that as was general practice.’” In response, Ms. Hammond agreed
that “‘she would pay me for part of that.’”
PSAMF ¶ 37 (citing Welch Dep. at 64:3-16). The Defendants interpose a qualified response, noting
that Ms. Welch described events occurring in February of 2010, four months before Ms. McGowen
noted “no more comp time” in her Outlook calendar. DRPSAMF ¶ 37 (citing Welch Dep. at 63:19-

23

Ms. Bemis-Goodall understood from her conversations with Ms. Hammond
that the policy at FDDC was “you pay people for what they put down on their time
sheets,” regardless of whether they were salaried or hourly.

PSAMF ¶ 38;

DRPSAMF ¶ 38.35 Ms. Hammond went back and forth on her position with regard
to the comp time policy at FDDC. PSAMF ¶ 39; DRPSAMF ¶ 39. Ms. BemisGoodall spoke with Ms. Hammond on several occasions about the way that comp
time was being handled, and how salaried employees were being compensated.
PSAMF ¶ 39; DRPSAMF ¶ 39. Ms. Bemis-Goodall told Ms. Hammond that “the
way the comp time was being handled with the professional salaried people” was
incorrect. PSAMF ¶ 39; DRPSAMF ¶ 39.
Ms. Hammond implemented a clearly communicated policy at FDDC whereby
if you were a salaried employee,
“and you forgot your lunch and you were going to go down and grab
something to eat and come back and you were gone for an hour, that
64:16 and PSAMF Attach. 11 (ECF No. 58) (undated) (McGowen Calendar)). Ms. Welch testified
that she, personally, was not permitted to accumulate comp time without Ms. Hammond’s preapproval, Welch Dep. at 63:21-23, and that this occurred following a complaint by Ms. Welch about
pay disparity with Ms. McGowen. Id. at 63:19-23. The pay disparity complaint occurred sometime
in October of 2009, id. at 44:5-23, and Ms. Welch’s complaint about her comp time policy occurred in
February of 2010. Id. at 63:23-64:16. The record shows that the shift in FDDC’s general comp time
policy occurred in “about mid-2010.” Interrog. Answers ¶ 15; McGowen Calendar at 1. Even viewing
this evidence in a light most favorable to Ms. McGowen, the Court does not conclude that Ms.
Welch’s February 2010 complaint to Ms. Hammond about her own comp time policy occurred “after
the comp time policy changed,” or even that the complaint was in any way related to FDDC’s general
policy on comp time. Therefore, the Court does not credit Ms. McGowen’s paragraph 37.
35
The Defendants interpose a qualified response, claiming that Ms. Bemis-Goodall “is not
aware of any salaried employee at FDDC being paid for less than 40 hours of work.” DRPSAMF ¶ 38
(citing Bemis-Goodall Dep. at 51:15-18). Ms. Bemis-Goodall testified that her understanding from
Ms. Hammond was that if a salaried employee worked less than 40 hours in a week, she would have
to use accumulated vacation time to reach 40 hours. Bemis-Goodall Dep. at 50:25-51:7. If the
employee lacked available vacation time, then “if . . . a . . . salaried person put down 39 hours, they
were only getting 39 hours of pay.” Id. at 50:18-20. In this context, Ms. McGowen’s paragraph 38 is
not an inaccurate or misleading representation of Ms. Bemis-Goodall’s understanding of the policy.
The Court deems Ms. McGowen’s paragraph 38 admitted under Local Rule 56(f), (g).

24

hour got deducted from your time. And if you didn’t want to use your
vacation time, then you got paid for 39 hours.”
PSAMF ¶ 40; DRPSAMF ¶ 40.36
During Ms. McGowen’s employment and “even just recently,” Ms. Hammond
did not realize there was a “real distinction” between salaried and hourly
employment, and she did not have a “full understanding of it.”

PSAMF ¶ 42;

DRPSAMF ¶ 42. Until the issue of comp time was brought up, Ms. Hammond did
not understand that “regardless of comp time a salaried employee can work 33 and
a half hours in a given week and get paid the same amount.”

PSAMF ¶ 43;

DRPSAMF ¶ 43. Since the commencement of this litigation, Ms. Hammond and
FDDC’s director of operations have been “trying to get a better understanding” of
the difference between hourly and salaried employment. PSAMF ¶ 44; DRPSAMF
¶ 44. They have been told: “[Y]ou can even work two hours and be paid for the full
day because you’re salary.” PSAMF ¶ 44; DRPSAMF ¶ 44. Ms. Hammond admits

The Defendants interpose a qualified response, but their qualification does not render
paragraph 40 inaccurate or misleading. See DRPASMF ¶ 40; supra note 35. The Court deems
Plaintiff’s paragraph 40 admitted under Local Rule 56(f), (g).
In paragraph 41, Ms. McGowen asserts that “[b]ecause of this policy, Ms. McGowen seldom
worked less than 40 hours for fear of either using up her vacation time or not getting paid.” PSAMF
¶ 41 (citing McGowen Dep. ¶ 25). The Defendants object to paragraph 41 on the ground that Ms.
McGowen’s affidavit is not competent summary judgment evidence, because it is not notarized and
does not bear the language required by 28 U.S.C. § 1746. For the reasons previously discussed, the
Court does not strike paragraph 41 on that basis.
The Defendants also deny paragraph 41. DRPSAMF ¶ 41 (citing McGowen Dep. at 19:10-22).
At her deposition, Ms. McGowen testified that after the May 2010 change of policy, requiring
employees not to work more than 40 hours in a week without permission, she was unable to comply
with the new policy because of the volume of her work. McGowen Dep. at 16:5-17:1, 18:5-15, 19:1022. This testimony, like the assertion of paragraph 41, refers to the period after the change in the
comp time policy. See PSAMF ¶¶ 35-41. However, the deposition testimony contradicts the affidavit
as to Ms. McGowen’s motive for working 40 hours per week. Ms. McGowen cannot, without
adequate explanation, generate a factual dispute by using her affidavit to contradict clear
statements to unambiguous questions during her deposition. Colantuoni, 44 F.3d at 4-5. In light of
this irreconcilable contradiction, the Court does not credit Plaintiff’s paragraph 41.
36

25

that this was a difficult concept for her to understand, but “that’s how it was
explained to us, if you’re salary you get paid for 40.” PSAMF ¶ 44; DRPSAMF ¶ 44.
When the issue of “comp time” was discussed in May of 2010, Mr. Chavonelle
told FDDC that they “could not use the word comp time anymore,” and they should
not use that word because “for salaried positions there is that distinction, you don’t
use comp time for salaried.” PSAMF ¶ 45; DRPSAMF ¶ 45.
On Thursday, July 7, 2011, FDDR Reorganization Manager Eric Buch sent
an email to Ms. Hammond with “High” importance, noting that he had discussed
some personnel matters needing “urgent” attention. PSAMF ¶ 46; DRPSAMF ¶ 46.
At “the top of [the] list” was “the matter of policies and practices related to exempt
and non-exempt employees.” PSAMF ¶ 46; DRPSAMF ¶ 46. As a result of this
email, Ms. Hammond met with Mr. Chavonelle and Mr. Buch on or about Monday,
July 18, 2011, and they discussed the FLSA exempt status criteria as well as the
Wage and Hour Division’s Fact Sheet with regard to the salary basis test. PSAMF
¶ 47; DRPSAMF ¶ 47.
III.

OVERVIEW
A.

Count I: The Fair Labor Standards Act
1.

Analytical Framework

The FLSA generally requires that when an employee works more than forty
hours in one week, she be paid at a rate of one and one-half of her regular rate. 29
U.S.C. § 207(a)(1); Hines v. State Room, Inc., 665 F.3d 235, 241 (1st Cir. 2011). The
salient exception to the rule in Ms. McGowen’s case is that any “employee employed
in a bona fide executive, administrative, or professional capacity” is exempt from
26

the overtime pay requirements. 29 U.S.C. § 213(a)(1). An employee must bring suit
to recover unpaid overtime under FLSA within two years of the accrual of the cause
of action, or within three years if the underpayment is wilful. 29 U.S.C. § 255(a).
The Department of Labor (DOL) has issued regulations that guide courts in
determining when an employee is considered exempt:
(a) The term “employee employed in a bona fide administrative
capacity” in section 13(a)(1) of the Act shall mean any employee:
(1) Compensated on a salary or fee basis at a rate of not less than $455
per week (or $380 per week, if employed in American Samoa by
employers other than the Federal Government), exclusive of board,
lodging or other facilities;
(2) Whose 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) Whose primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.
29 C.F.R. § 541.200. Courts have generally referred to the FLSA’s exempt status
criteria as including a “salary basis” test and a “duties” test.37

E.g., Auer v.

Robbins, 519 U.S. 452, 455-56 (1997).
An employee is paid on a “salary basis” if “the employee regularly receives
each pay period on a weekly, or less frequent basis, a predetermined amount
constituting all or part of the employee's compensation, which amount is not subject
to reduction because of variations in the quality or quantity of the work performed.”
29 C.F.R. § 541.602.
There is a third test, the “salary level test.” Baden-Winterwood, 566 F.3d at 626-27; Cash v.
Cycle Craft Co., 508 F.3d 680, 683 (1st Cir. 2007). Ms. McGowen meets the required salary level of
“not less than “$455 per week” for an employee employed in a bona fide administrative capacity. 29
C.F.R. § 541.200(1).
37

27

There are two prongs to the “duties test.” See id. § 541.200. First, “[t]he
phrase ‘directly related to the management or general business operations’ refers to
the type of work performed by the employee.”

Id. § 541.201(a).

These duties

encompass “work in functional areas such as tax; finance; accounting; budgeting; . .
. and similar activities.” Id. § 541.201(b). Second, “[t]he phrase ‘discretion and
independent judgment’ must be applied in the light of all the facts involved in the
particular employment situation in which the question arises.” Id. § 541.202(b). An
exempt employee’s exercise of discretion and independent judgment “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).
Thus, it “implies that the employee has authority to make an independent choice,
free from immediate direction or supervision.” Id. § 541.202(c).
“An employer defending a suit under the [FLSA] bears the burden of
establishing that a particular employee’s job falls within such an exemption.” Cash
v. Cycle Craft Co., 508 F.3d 680, 683 (1st Cir. 2007). “Exemptions from the duties
imposed by the FLSA on employers are to be ‘narrowly construed against the
employers seeking to assert them and their application limited to those
establishments plainly and unmistakably within their terms and spirit.’”
McLaughlin v. Boston Harbor Cruise Lines, Inc., 419 F.3d 47, 58 (1st Cir. 2005)
(Lipez, J., concurring) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392
(1960)).

28

2.

Position of the Parties
a.

The Defendants
i.

Salary Basis Test

The Defendants contend that while she was employed at FDDC, Ms.
McGowen met the salary basis test for an exempt employee. Def.’s Mot. at 11-12.
They note that in Auer, 519 U.S. at 458-61, the Supreme Court denied exempt
status to an employee if the employer had an actual practice of making deductions
from the employee’s salary or if the employee was covered by a policy that created a
“significant likelihood” that such deductions would be made. Def.’s Mot. at 11. They
further note that after Auer was decided, the DOL promulgated new regulations
that eliminated the “significant likelihood” portion of the salary basis test.

Id.

(citing Baden-Winterwood v. Life Time Fitness, Inc., 566 F.3d 618, 627-28 (6th Cir.
2009) and 29 C.F.R. § 541.603(b)). They contend that now an employee’s salaried
status is only lost if the employer has an “actual practice” of making improper
deductions from the employee’s salary. Id. (citing Baden-Winterwood, 566 F.3d at
628).
The Defendants conclude that Ms. McGowen meets the salary basis test
because “she received a fixed amount of pay on a weekly basis regardless of the
hours she worked from at least June 2008 to the end of her employment on April 11,
2011.” Id. at 12. They argue that FDDC never deducted any money from Ms.
McGowen’s weekly pay, and even if they “deducted time from an accrued leave bank
for days she did not work,” such a practice would not, on its own, violate the salary
basis test. Id.

29

ii.

Duties Test

The Defendants also contend that Ms. McGowen meets both prongs of the
“duties test” to be an exempt employee. Def.’s Mot. at 12-15. They begin with the
first prong, arguing that her primary duties as business program manager were
similar to those of the examples given in the DOL regulations, 29 C.F.R. §
541.203(b). Def.’s Mot at 14. They view her duties as directly related to FDDC’s
business operations, and those of its clients, because she was intimately involved in
the procurement and administration of business loans, and, they argue, she directly
worked to maintain and foster relations with FDDC’s clients. Id.
As to the second prong, they contend that Ms. McGowen had discretion and
independent judgment.

Id. at 14-15.

They claim she assisted clients to select

FDDC services that met their needs, focusing primarily on her work assisting
clients with developing business plans, applying for loans and grants, and
“performing trainings.” Id.
The Defendants conclude that Ms. McGowen was an exempt administrative
employee from at least June, 2008 until her termination. Because Ms. McGowen’s
Complaint was filed on April 2, 2012, they argue that Count I covers the period
from April 2009 to her termination in April 2011.

They maintain that as Ms.

McGowen was an exempt employee during this period, they are entitled to
judgment as a matter of law on Count I.

30

b.

Barbara McGowen’s Response
i.

Salary Basis Test

Ms. McGowen begins her analysis of this test with the proposition that “the
paramount issue is whether ‘the facts demonstrate that the employer did not intend
to pay employees on a salary basis.’”

Pl.’s Opp’n at 20 (quoting 29 C.F.R. §

541.603(a)). She contends that “there is an obvious intent here to compensate [Ms.]
McGowen on an hourly rather than salary basis.” Id.
Next, Ms. McGowen disputes that the employee must suffer an actual
deduction to fall out of the salary basis test. Id. She cites the DOL’s Final Rule
implementing what is now 28 C.F.R. § 541.603(a) as evidence that the DOL
intended the regulation to remove employees from exempt status if there is a policy
to take deductions but the employee does not suffer “an actual deduction.” Id. She
contends, instead, that the “pervasive, ‘clearly communicated’ compensation policy
implemented by FDDC was an ‘actual practice’ of making improper deductions.” Id.
at 21. She also argues that deductions from Ms. McGowen’s “bank of comp time”
are an “actual practice” of deducting compensation under the regulations. Id. As a
fallback, Ms. McGowen argues that an actual practice of deductions should not be
necessary to show a FLSA violation, and that the threat of deductions should an
employee work less than 40 hours is sufficient. Id. at 21-22.
Ms. McGowen also argues that because FDDC’s leave policies applied equally
to exempt and non-exempt employees, Ms. McGowen must not have been
compensated on a salary basis. Id. at 22. Finally, Ms. McGowen attacks what she
characterizes as the Defendants’ argument that FDDC’s comp time policy was a
31

valid exercise of an employer’s ability to provide “‘additional compensation without
losing the exemption’” under the regulations. Id. (quoting 29 C.F.R. § 541.604(a)).
ii.

Duties Test

Ms. McGowen concedes that her only disagreement with the Defendants on
the duties test is over the application of the second prong—whether her job involved
“‘the exercise of discretion and independent judgment with respect to matters of
significance.’” Pl.’s Opp’n at 16 (quoting 29 C.F.R. § 541.200(a)(1)). She argues
primarily that the discretionary, independent duties of her job were not her primary
duties. Id. at 16 (citing 29 C.F.R. § 541.700). She also places the burden on the
Defendants to prove that the discretionary, independent duties were her primary
duties, and contends that their failure to address this issue is “fatal to Defendants’
Motion.” Id.
Ms. McGowen next insists that an employee’s exempt or non-exempt status is
a highly fact-bound determination, not suitable for determination on this summary
judgment record. Id. at 17. She suggests that a conclusory, general statement at
an employee’s deposition about job duties is not sufficient to support summary
judgment. Id. at 17-18).
Turning to the facts of her case, Ms. McGowen denies that she had the
necessary independent decision-making authority to support the second prong of the
duties test. Id. at 18-19. She suggests that she merely “‘screen[ed] applicants to
obtain data regarding their minimum qualifications.’” Id. at 19 (quoting 29 C.F.R. §
541.203(e)).

She denies that she was “allowed to unilaterally ‘determine which

financial products best met the customers’ needs and financial circumstances’—
32

Susan Hammond made those decision for her.” Id. (quoting 29 C.F.R. § 541.203(b)).
She also denies that her primary job duties involved “assessing client needs,
completing ‘major assignments,’ or ‘acting as a conduit’ between FDDC and its
clients.” Id. (quoting Hines v. State Room, Inc., 665 F.3d 235, 240 (1st Cir. 2011)).
In fact, she denies that she was able to “exercise any discretion, in any area of her
job.” Id. (emphasis in original).
3.

The Defendants’ Reply

In their reply, the Defendants first address the salary basis test, observing
that Ms. McGowen “admits she received her full weekly pay every week she worked
from June, 2008, forward.” Def.’s Reply at 1. They argue that “it does not matter
whether this was stated as if paid at an hourly rate.”

Id. (citing 29 C.F.R. §

541.604(b)). They characterize her comp time as “additional compensation.” Id.
(citing 29 C.F.R. § 541.604(a)).

They also reinforce their argument that the

“theoretical possibility of deductions from an employee’s salary, whether clearly
communicated through an informal policy or otherwise,” does not render an
employee non-exempt; it is actual deductions that matter. Id. at 1-2.
As for the duties test, the Defendants point out that Ms. McGowen admitted
in her deposition that she had “discretion and independent judgment” in her
position, and that her affidavit cannot directly contradict that statement. Id. at 2.
They also noted that the undisputed facts cut in favor of her having that very
discretion and judgment. Id. Finally, they argue that even if Ms. Hammond had
some level of oversight and final say over Ms. McGowen’s discretionary decisions,
this does not cause Ms. McGowen to fail the duties test. Id. at 2-3 (citing 29 C.F.R.
33

§ 541.202(c) (“Employees can exercise discretion and independent judgment even if
their decisions or recommendations are reviewed at a higher level”)).
IV.

DISCUSSION
A.

Salary Basis Test

An employee only loses salaried status if the employer has an actual practice
of making improper deductions. 29 C.F.R. § 541.603(a); Cash, 508 F.3d at 683-84.
Even a few isolated deductions may be insufficient to establish intent as a matter of
law. Id. at 684 (“[T]wo aberrant paychecks out of the approximately 50 that Cash
received do not amount to an ‘actual practice’”). The undisputed facts show that
after June 2008, Ms. McGowen was paid for forty hours per week regardless of how
many hours she worked, Section II.B.1.b, supra; Section II.B.2.a, supra; FDDC
never actually made an improper deduction from Ms. McGowen’s paycheck.
At the same time, the undisputed evidence shows that Ms. McGowen accrued
and occasionally consumed hours from a “bank” of “comp time” hours.

Section

II.B.1.b, supra; Section II.B.2.a, supra. Ms. McGowen claims that this establishes
an “actual practice” of docking pay. Pl.’s Opp’n 21. The Court disagrees.
In McBride v. Peak Wellness Center, 688 F.3d 698 (10th Cir. 2012), the Tenth
Circuit held that an employer did not violate FLSA absent an actual deduction of
cash from an employee’s salary because of an absence. Id. at 704-06. In McBride,
the employer had a policy of deducting time from the employee’s accrued leave when
she did not work a full eight-hour day. Id. at 704. The Tenth Circuit noted that the
rule against deductions does not extend “to non-monetary compensation such as

34

vacation time or sick leave.” Id. The McBride Court quoted an opinion letter from
the DOL:
In no event can deductions from an exempt employee’s salary be made
for full or partial day absences occasioned by lack of work . . . .
Employers can, however, make deductions for absences from an
exempt employee’s leave bank in hourly increments, so long as the
employee’s salary is not reduced. If exempt employees receive their
full predetermined salary, deductions from a leave bank, whether in
full day increments or not, do not affect their exempt status.
Id. (quoting Opinion Letter, FLSA2009-18, at 9 (Dep’t of Labor Jan. 16, 2009),
available at http://www.dol.gov/WHD/opinion/flsa.htm.
As Ms. McGowen has explained it, FDDC’s policy regarding overtime is
strikingly similar to the “leave bank” that the DOL opinion letter and the McBride
Court describe.

Like vacation or sick leave, FDDC did not pay Ms. McGowen

overtime but allowed her to bank the time and to take it off without affecting her
salary. Thus, accrued unpaid overtime became another way of fixing the amount of
personal time. Moreover, as in McBride, if Ms. McGowen had used up all her comp
time, her salary would remain unchanged and “no further penalty would be
imposed.” Id. at 705.
Furthermore, although the employee in McBride alleged that the employer
had subtracted time from her accrued leave because she had left early or arrived
late, she did not claim that the employer ever made any deductions to her salary.
Id. The McBride Court noted that under DOL regulations, a plaintiff must show
“[a]n actual practice of making improper deductions”, id. (quoting 29 C.F.R. §
541.603(a)), “rather than the theoretical possibility of such deductions.” Id. As the

35

employer had not actually made any deductions from the employee’s salary and as
the employer’s policy did not allow for such deductions under any circumstances,
the McBride Court concluded that the employer’s policy did not violate the FLSA.
Id. at 706.
Both Ms. McGowen and the Defendants rely on Baden-Winterwood v. Life
Time Fitness, Inc., 566 F.3d 618, 627-28 (6th Cir. 2009), and other courts have
treated that decision with deference. E.g., McBride, 688 F.3d at 705. In BadenWinterwood, the Sixth Circuit distinguished the legal standard applied before and
after August 23, 2004, when new DOL regulations become effective. Id. at 628
(citing 29 C.F.R. § 541.603(a)).

The Sixth Circuit noted that the older Auer

standard—evaluating whether the employer’s plan created a significant likelihood
of improper deductions—was no longer applicable under the new regulations. Id. at
632. The new DOL regulation states:
An employee will be considered to be paid on a “salary basis” within
the meaning of these regulations if the employee regularly receives
each pay period on a weekly, or less frequent basis, a predetermined
amount constituting all or part of the employee’s compensation, which
amount is not subject to reduction because of variations in the quality
or quantity of the work performed.
29 C.R.F. § 541.602(a). As the Sixth Circuit explained, “[u]nder both versions, [the
employer] bears the burden of proving that [the employee was] paid: (1) a
predetermined amount, which (2) was not subject to reduction (3) based on quality
or quantity of work performed. Notably, however, rather than include the term

36

‘employment agreement,’ the updated regulations focus on pay received.” Id. at
627.38
In Cash, the First Circuit considered an employee who earned approximately
fifty steady paychecks at his salary amount, but two paychecks were for a lesser
amount. 508 F.3d 680, 682.39 The Cash Court held that “two aberrant paychecks
out of the approximately 50 that Cash received do not amount to an ‘actual
practice.’” Id. at 684.
If two improper deductions are not an “actual practice” in this Circuit, zero
deductions do not meet the standard either. Both McBride and Baden-Winterwood
support the same conclusion; those Courts only found liability where there had been
an actual deduction of pay from paychecks, and the McBride Court explicitly
refused to find an “actual practice” when the employer deducted from accrued leave
time. 688 F.3d at 704-06.
At oral argument, Ms. McGowen vigorously pressed her contention that the
DOL’s Final Rule implementing 29 C.F.R. § 541.603(a) showed that the DOL had
made a policy choice to take employees out of the salary basis test if the employer
has an intent to make deductions, but never actually does so, because the employees
never work below 40 hours in a week. In her briefing, Ms. McGowen quoted the
Final Rule with several omitted sentences:
The Baden-Winterwood Court held that the employer violated the FLSA for pay periods after
the new regulations took effect but only as to actual deductions that it took from its employees’
salary under its plan. 566 F.3d at 632-34. In fact, the Court limited the plaintiffs’ recovery only to
those pay periods in which the employer actually took improper deductions. Id. at 633-34 (citing 29
U.S.C. § 541.603(b)).
39
The facts in Cash do not establish whether these lower earnings were mistakes or the result
of a company policy. Cash, 508 F.3d at 682.
38

37

We are concerned with those employees who actually suffer harm as a
result of salary basis violations and want to ensure that those
employees receive sufficient back pay awards and other appropriate
relief. We disagree, however, with those comments arguing that only
employees who suffered an actual deduction should lose their exempt
status. . . . An exempt employee in the same job classification working
for the same manager responsible for making improper deductions, for
example, may choose not to leave work early for a parent-teacher
conference for fear that her pay will be reduced, and thus is also
suffering harm as a result of the manager’s improper practices. . . . The
Department's construction best furthers the purposes of the section
13(a)(1) exemptions because it realistically assesses whether an
employer intends to pay employees on a salary basis. For the same
reasons, final subsection (a) provides that “whether the employer has a
clearly communicated policy permitting or prohibiting improper
deductions” is one fact to consider when determining whether the
employer has an actual practice of not paying employees on a salary
basis.
Pl.’s Opp’n at 20-21 (quoting 69 Fed. Reg. 22122-01, at *22180 (Apr. 23, 2004)). Ms.
McGowen concludes that this statement “expressly contemplates the situation faced
by Plaintiff.” Id. at 20.
When read with the omitted sentences restored, however, the Final Rule
demonstrates why Ms. McGowen’s interpretation of DOL’s policy is incorrect:
We are concerned with those employees who actually suffer harm as a
result of salary basis violations and want to ensure that those
employees receive sufficient back pay awards and other appropriate
relief. We disagree, however, with those comments arguing that only
employees who suffered an actual deduction should lose their exempt
status. An exempt employee who has not suffered an actual deduction
nonetheless may be harmed by an employer docking the pay of a
similarly situated co-worker. An exempt employee in the same job
classification working for the same manager responsible for making
improper deductions, for example, may choose not to leave work early
for a parent-teacher conference for fear that her pay will be reduced,
and thus is also suffering harm as a result of the manager's improper
practices. Because exempt employees in the same job classification
working for the same managers responsible for the actual improper
deductions may reasonably believe that their salary will also be docked,
such employees have also suffered harm and therefore should also lose
38

their exempt status. The Department's construction best furthers the
purposes of the section 13(a)(1) exemptions because it realistically
assesses whether an employer intends to pay employees on a salary
basis. For the same reasons, final subsection (a) provides that
“whether the employer has a clearly communicated policy permitting
or prohibiting improper deductions” is one factor to consider when
determining whether the employer has an actual practice of not paying
employees on a salary basis.
69 Fed. Reg. 22122-01, at *22180.
The Final Rule shows that the DOL is concerned with situations where an
employer actually deducts the salaries of some employees pursuant to a policy, and
other co-workers then do not work fewer hours for fear of losing money. But the
concern is expressly cabined to those situations where the employer has actually
taken an improper deduction—not here, where there is no evidence that FDDC ever
deducted any employee’s salary. The DOL’s concern is consistent with the shift
away from the “substantial likelihood” test from Auer; the point of the discussion in
the Final Rule is to illustrate that once an employer makes a deduction for one
employee, all similarly situated employees will fall out of the salary basis test.
Nothing in the Final Rule calls into question the holdings from McBride, BadenWinterwood, and Cash—that absent the employer’s deduction of money from a
paycheck, the employees remain within the salary basis test.
At oral argument, Ms. McGowen also strenuously pressed her view that the
Court must focus on the intent of the parties in determining whether an employer
has violated the FLSA. The Court disagrees. As the Sixth Circuit explained in
Baden-Winterwood, under the prior DOL regulation as interpreted by the Supreme
Court in Auer, “an employee is not paid on a salary basis if (1) there is an actual

39

practice of salary deductions or if (2) an employee is compensated under a policy
that clearly communicates a significant likelihood of deductions.” 566 F.3d at 627.
To accept Ms. McGowen’s argument would contravene the DOL’s 2004 move away
from employer policy to actual practice, and would require the Court to re-enter the
discarded and murky world of employer intent and policy.
Ms. McGowen’s alternate arguments are equally unavailing. The fact that
FDDC’s leave policies applied equally to exempt and non-exempt employees does
not collapse the distinction between them, as she suggests.

Pl.’s Opp’n at 22.

Furthermore, it is unnecessary to address whether the comp time was “additional
compensation” given by the employer under 29 C.F.R. § 541.604(a), given the
Court’s conclusion that the comp time policy itself did not cause Ms. McGowen to
fall out of the salary basis test.
The Court concludes that Ms. McGowen meets the salary basis test for an
exempt employee under 29 C.F.R. § 541.200(a)(1).
B.

Duties Test

Ms. McGowen concedes that her primary duty was “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.”

29 U.S.C. §

541.200(a)(2).40 The question is whether the summary judgment record shows that
her primary job duty included “the exercise of discretion and independent judgment
“[T]he parties dispute the applicability of only the third element [of § 541.200(a)], which is
whether [Ms.] McGowen’s primary job duties involved ‘the exercise of discretion and independent
judgment with respect to matters of significance.’” Pl.’s Opp’n at 16 (quoting 29 U.S.C. §
541.200(a)(3)).
40

40

with respect to matters of significance.” Id. at § 541.200(a)(3). As a preliminary
matter, the Court rejects Ms. McGowen’s contention that the Defendants’ “fail[ure]
[to] articulate the frequency with which [Ms.] McGowen performed each of the job
duties it cites” is “fatal to the Defendants’ Motion.” Pl.’s Opp’n at 17. The Court is
able to make this determination based on the summary judgment record.
“Whether or not a position is exempt from the overtime requirement is a
mixed question of law and fact.” Bolduc v. Nat’l Semiconductor Corp., 35 F. Supp.
2d 106, 114 (D. Me. 1998). If there is a genuine dispute of fact that goes to the
nature of the job duties, then it is “for a fact-finder and not the Court to determine
how the Plaintiff actually spent her work day.” Nicholson v. Bangor Historic Track,
Inc., No. 2:11-cv-00347-NT, 2013 WL 685337 (D. Me. Feb. 25, 2013) (unreported).
However, if the summary judgment record is devoid of such disputes, the Court may
decide the issue as a matter of law. See Bolduc, 35 F. Supp. 2d at 114.
In Bolduc, the defendant argued that the plaintiff employee, an engineer, fell
into the “learned professional” exemption under FLSA.

Id. at 115; 29 C.F.R. §

541.300. Like the administrative exemption, the professional exemption requires
that the employee exercise discretion and judgment. 29 C.F.R. § 541.301(b). The
Court concluded, however, that the summary judgment record supporting the
plaintiff’s classification as a professional was insufficient to support judgment as a
matter law.

35 F. Supp. 2d at 114-15.

The evidence supported a “general

proposition” that the plaintiff “supervised the projects assigned to him . . . and had
authority to purchase materials and set a budget for the projects he managed.” Id.

41

at 115. He also “recommended subcontractors” and “chose project vendors.” Id.
However, the Court found that the evidence “lacks the specificity that would compel
a finding that [the plaintiff] used discretion in his day-to-day activities” as a
manager. Id. It found the statements by the plaintiff in his deposition “conclusory
and general” and did not “describe [his] specific job duties so that a judgment may
be made whether he was exempt [from the FLSA].”

Id.

Because the record

“lack[ed] specific facts about [the plaintiff’s] day-to-day duties,” his exempt or nonexempt status remained a genuine issue of material fact.
In Nicholson, the defendants argued that the plaintiff fell into the “executive
employee” exemption. Nicholson, 2013 WL 685337, at *6-7; 29 C.F.R. § 541.100.
This exemption requires, among other things that it only apply to an employee
(2) Whose primary duty is management of the enterprise in which the
employee is employed or of a customarily recognized department or
subdivision thereof; [and]
...
(4) Who has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other
employees are given particular weight.
29 C.F.R. § 541.100(a). The Nicholson Court found genuine disputes of fact on both
of these elements because “neither of the parties has provided a definitive enough
account of the Plaintiff’s job for the Court to conclude as a matter of law that the
Plaintiff either meets or does not meet” the definition. Nicholson, 2013 WL 685337,
at *7. The Court recited a number of outstanding factual disputes going directly to
these elements; for instance, her salary was only slightly higher than non-

42

managers, she lacked authority in many areas of the business she was allegedly
“managing,” she was required to report to her supervisor on a daily basis, there was
a genuine dispute as to whether she was the most senior staff member in her
facility, and another dispute as to whether she had the authority to hire, fire, and
discipline employees.

Id.

at *7-8.

In the face of these factual disputes, going

directly to two of the elements of the executive employee exemption, the Court
refused to grant judgment as a matter of law. Id. at *8. It was in this context that
the Court wrote that “[i]t is for a fact-finder and not the Court to determine how the
Plaintiff actually spent her work day.” Id.
This summary judgment record is both sufficiently specific and sufficiently
undisputed to support judgment as a matter of law on the duties test for the
administrative exemption. Unlike in Bolduc, there is ample specific evidence of Ms.
McGowen’s day to day tasks. Section II.B.1.b, supra. It is undisputed—as Ms.
McGowen acknowledged in her deposition—that the highly detailed FDDC job
description of the Business Program Coordinator position was an accurate summary
of Ms. McGowen’s job duties.

Id.

The parties also agree that Ms. McGowen

exercised discretion and independent judgment in her job. Id. Indeed, both the job
description and other undisputed facts reveal discretion. Id. That her discretion
was subject to Ms. Hammond’s supervisory review does not make it less
discretionary for the purposes of the duties test.

29 C.F.R. § 541.202(c); see also

Hines, 665 F.3d at 246 (“The fact that, after engaging a potential client and arriving
at a proposed agreement for [an event], the [employees] submitted the proposal to

43

management for approval does not, therefore, detract from the judgment that was
exercised in arriving at the proposal in the first instance”).
Furthermore, unlike the record in Bolduc, here the record contains specific
examples of Ms. McGowen’s day to day tasks. For instance, Ms. McGowen:


prepared loans and information on loans for FDDC’s housing committee;



worked one-on-one with FDDC clients and assisting them in utilizing the
various services provided by FDDC;



worked with tribal communities to organize necessary training in order to
qualify for grants; and



assisted outside consultants in preparing grant applications for FDDC
clients, including, at times, acting as a writer.

Section II.B.1.b, supra. The Business Program Manager job description—which Ms.
McGowen acknowledged is an accurate summary of her day to day tasks—also
includes examples of work that includes a high level of discretion and judgment. 41
To recite just a few examples, Ms. McGowen:


“[p]rovided outreach into the five Maine Native communities, identifying
and developing new markets and expanding lending opportunities in
accordance with the organization’s strategic plan”;



“[e]nsured that the Business Program continue[d] to meet the needs of
Tribal business owners by maintaining close contact and providing
ongoing support”;

See also supra note 10 (discussing Ms. McGowen’s admission regarding the job description
and her later effort to generate a factual dispute with her affidavit).
41

44



[m]arketed business products, schedule[d] appointments and m[e]t with
prospective borrowers to assist with completion of business loan
application[s]”; and



“[m]aintain[ed] rigorous risk management of business loan portfolio to
assure repayment of all business loans.”

DSMF Attach. 9 Four Directions Development Corporation Job Description (ECF
No. 52) (Mar. 2007). The list goes on.
This is not a case, as in Nicholson, where there are outstanding disputed
facts that would preclude summary judgment. This Court has recited in detail the
established summary judgment facts in this case, supra, and none of them calls into
question whether Ms. McGowen exercised discretion and independent judgment in
her primary job duty as Business Program Manager. Ms. McGowen was not merely
in the business of selling financial products, 29 C.F.R. § 541.203(b), nor did she
“merely screen applicants to obtain data regarding their minimum qualifications.”
Id. at § 541.203(e). Indeed, Ms. McGowen’s admitted job duties track closely the job
duties that § 541.203(b) gives as exemplars of a financial services employee within
the administrative exception.

42

See id. at § 541.203(b).42

That Ms. McGowen

Title 29 C.F.R. § 541.203(b) states in full:
Employees in the financial services industry generally meet the duties requirements
for the administrative exemption if their duties include work such as collecting and
analyzing information regarding the customer's income, assets, investments or debts;
determining which financial products best meet the customer's needs and financial
circumstances; advising the customer regarding the advantages and disadvantages of
different financial products; and marketing, servicing or promoting the employer's
financial products. However, an employee whose primary duty is selling financial
products does not qualify for the administrative exemption.

45

“operated within a strict set of rules,” Pl.’s Opp’n at 19, does not set her apart from
any other employee in any other job, many of whom exercise discretion and
judgment under a strict set of rules.
C.

Conclusion

The Court concludes that there are no genuine disputes of material fact as to
Count I, and the Defendants are entitled to judgment as a matter of law. During
the time period in question—June 2008 to April 11, 2011—this summary judgment
record shows that Ms. McGowen was an exempt administrative employee under
FLSA. She meets both the salary basis test and the duties test under the DOL
regulations and related case law. The Court grants the Motion as to Count I.
V.

REMAINING STATE LAW CLAIMS
Count I was the only count in the Amended Complaint that stated a claim

under federal law; the Court had supplemental jurisdiction over the state law
claims under 28 U.S.C. § 1367(a). With Count I eliminated on summary judgment,
all remaining claims are purely matters of state law. The Court dismisses Counts
II through V without prejudice to be litigated in the state courts.

28 U.S.C. §

1367(c)(3).43

Dismissal of these claims from federal court should not prejudice Ms. McGowen in state
court. For most civil matters, Maine has a six year statute of limitations. ME. REV. STAT. tit. 14, §
752. For the claims of defamation stated in Count IV, however, Maine imposes a two-year
limitations period. Id. § 753. Elements of Ms. McGowen’s cause of action for slander and libel
accrued in March and April of 2011, and so would be time barred if brought now. However, the
federal supplemental jurisdiction statute also tolls the state statute of limitations while
supplemental state law claims are pending in federal court and for thirty days after their
discretionary dismissal. 28 U.S.C. § 1367(d); see also Napier v. State, No. CV-00-042, 2002 WL
32068249, at *3-5 (Me. Super. Nov. 18, 2002) (unreported).
43

46

VI.

CONCLUSION
The Court GRANTS the Motion for Summary Judgment (ECF No. 51) as to

Count I and DISMISSES WITHOUT PREJUDICE Counts II through V. The Court
OVERRULES the Plaintiff’s Objection to Additional Attachments, Supplemental
Citation (ECF No. 70)
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 10th day of March, 2014

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