Williams v. Genex Services, Inc.

Filing 28

MEMORANDUM AND ORDER granting 14 Defendant's Motion for Summary Judgment. Signed by Judge Marvin J. Garbis on 9/4/14. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NANCY A. WILLIAMS

*

Plaintiff
vs.

*

GENEX SERVICES, INC.

*

*

CIVIL ACTION NO. MJG-13-1942

*

Defendant
*

*

*

*
*

*

*

*

*

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
The Court has before it Defendant GENEX Services, Inc.'s
Motion for Summary Judgment with Regard to the Claims of
Plaintiff Nancy A. Williams [Document 14] and the materials
submitted relating thereto.

The Court finds a hearing

unnecessary.

I.

BACKGROUND
Defendant GENEX Services, Inc. ("GENEX") has been, at all

times relevant hereto, a provider of integrated managed care
services.

In 2011, Plaintiff Nancy A. Williams ("Williams"), a

registered nurse, began her employment with GENEX as a field
medical case manager.

Since then, Williams has received a

weekly salary of at least $1,442.36.

Her total compensation,

including incentive compensation, was $83,354.14 in 2012 and
$81,103.29 in 2013.

Williams claims that GENEX was required to pay her for
overtime.

She has sued GENEX under the federal Fair Labor

Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201 et seq., and
the Maryland Wage and Hour Law ("MWHL"), Md. Code Ann., Lab. &
Empl. §§ 3-401 et seq., for failing to pay her for the overtime
hours that she worked.

GENEX contends that Williams is an

"exempt employee" who is not entitled to overtime pay under the
FLSA and MWHL.
By the instant motion, GENEX seeks summary judgment
pursuant to Federal Rule of Civil Procedure 56.

II.

SUMMARY JUDGMENT
A motion for summary judgment shall be granted if the

pleadings and supporting documents "show[] that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."

Fed. R. Civ. P.

56(a).
The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement:

The

Court may look at the evidence presented in regard to a motion
for summary judgment through the non-movant's rose-colored
glasses, but must view it realistically.

After so doing, the

essential question is whether a reasonable fact finder could
2

return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.

See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).
Thus, in order "[t]o defeat a motion for summary judgment,
the party opposing the motion must present evidence of specific
facts from which the finder of fact could reasonably find for
him or her."

Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md.

1999) (emphasis added).

However, "self-serving, conclusory, and

uncorroborated statements are insufficient to create a genuine
issue of material fact."

Int'l Waste Indus. Corp. v. Cape

Envtl. Mgmt., Inc., 988 F. Supp. 2d 542, 558 n.11 (D. Md. 2013);
see also Wadley v. Park at Landmark, LP, 264 F. App'x 279, 281
(4th Cir. 2008).
When evaluating a motion for summary judgment, the Court
must bear in mind that the "[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole,
which are designed 'to secure the just, speedy and inexpensive
determination of every action.'"

Celotex, 477 U.S. at 327

(quoting Fed. R. Civ. P. 1).

3

III. STATUTORY FRAMEWORK
A.

General Overtime Wage Requirements

The Fair Labor Standards Act ("FLSA") "requires that
employees be paid time and a half for work over forty hours a
week."

Shockley v. City of Newport News, 997 F.2d 18, 21 (4th

Cir. 1993) (citing 29 U.S.C. § 207(a)(1)).

The Maryland Wage

and Hour Law ("MWHL") has a similar overtime wage requirement.
See Md. Code Ann., Lab. & Empl. §§ 3-415(a), 3-420(a).

B.

Exemptions

"The FLSA, and, by extension, the MWHL, exempt certain
employees from the requirements of overtime wages, including
employees in a bona fide . . . administrative, or professional
capacity."

Drubetskoy v. Wells Fargo Bank, N.A., CIV. CCB-13-

2196, 2013 WL 6839508 (D. Md. Dec. 20, 2013); see also 29 U.S.C.
§ 213(a)(1); Md. Code Ann., Lab. & Empl. § 3-403(1).
"Professional capacity" and "administrative capacity" have the
same meanings under the regulations governing the MWHL as they
do under the FLSA regulations.
09.12.41.17.

See Md. Code Regs. 09.12.41.01,

Thus, an employee who qualifies for the

professional or administrative exemption under the FLSA will
also qualify for that exemption under the MWHL.

4

The FLSA exemptions "are affirmative defenses to an FLSA
claim," and they must "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."

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388,

392 (1960); Smith v. ABC Training Ctr. of Maryland, Inc., No.
JFM-13-306, 2013 WL 3984630, at *9 (D. Md. Aug. 1, 2013).

The

burden of proof is on the employer to establish "by clear and
convincing evidence that an employee qualifies for exemption."
Shockley, 997 F.2d at 21; see also Clark v. J.M. Benson Co.,
Inc., 789 F.2d 282, 286 (4th Cir. 1986).
How an employee spends her time working – i.e. what she
does while at work - "is a question of fact."

See Icicle

Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986).

But,

whether an employee's "particular activities excluded [her] from
the overtime benefits of the FLSA is a question of law."

Id.

Thus, "[t]he determination of whether an employee falls within
the scope of a FLSA exemption is ultimately a legal question."
Walton v. Greenbrier Ford, Inc., 370 F.3d 446, 450 (4th Cir.
2004).

5

IV.

DISCUSSION
A.

GENEX

GENEX "is the nation's leading provider of integrated
managed care services," and it seeks "to provide the highest
quality disability management and medical cost-containment
services in the industry."

Compl. ¶ 9; [Document 15-10] at 2.

GENEX accomplishes this through case management, which is "the
process of reeducating and re-adapting persons after they have
suffered a disabling injury, disease, or disorder."
15-3] at 3.

[Document

Medical case management aims to "provid[e] the best

medical care for the best long range effect for the ill/injured
person at the most reasonable cost in the shortest amount of
time."

Id. at 4.

GENEX employs medical case managers to act as the
"coordinator[s] of medical care and service."
at 4.

[Document 15-4]

A field medical case manager ("FMCM") works "in the

field," rather than in an office.

FMCMs "assist the ill/injured

person in an effort to reduce disability, medical expenses and
extended unemployment."

Id.

An FMCM does not provide hands-on

direct patient care, but instead is "[r]esponsible for
assessment, planning, coordination, implementation and
evaluation of injured/disabled individuals involved in the
medical case management process."
6

Id.; [Document 20-5] at 2.

The GENEX Job Description states that an FMCM's duties
include, inter alia:
"Us[ing] clinical/nursing skills to help
coordinate
the
individual's
treatment
program while maximizing cost containment;"
"Serv[ing] as an intermediary to interpret
and
educate
the
individual
on
his/her
disability,
and
the
treatment
plan
established by the case manager, physicians,
and therapists;"
"Work[ing]
with
the
physicians
and
therapists to set up medical assessments to
develop an overall treatment plan;"
"Research[ing]
alternative
treatment
programs such as pain clinics, home health
care, and work hardening;" and
"May[be] provid[ing] testimony on litigated
cases."
[Document 20-5] at 3.

An FMCM also performs administrative

duties such as "[p]repar[ing] detailed evaluation reports, as per
account guidelines" and "[c]ompil[ing] a case inventory on a
monthly basis for submission to the branch manager to allow for
proper billing and to calculate hours for bonus purposes."

Id.

at 3-4.
GENEX requires that, at a minimum, FMCMs have: (1) a
"[d]iploma, Associate or bachelor[']s degree in nursing or
bachelor[']s degree (or higher) in a health or human services
related field;" (2) a "[m]inimum of two (2) years . . . of
direct clinical care to consumer;" and (3) a "[l]icensure or
7

certification in a health or human services discipline that
allows the professional to conduct an assessment independently."
Id. at 2-3.

An FMCM must be able "to set priorities" and "to

work independently."

Id. at 3.

The preferred / desired

qualifications for an FMCM include prior experience with case
management and rehabilitation services and one or more of the
various case manager certifications.

Id. at 2.

GENEX also requires that an FMCM have "state licenses /
certifications as required by law." Id. at 3.

The Maryland

Workers' Compensation Commission ("MWCC") requires a "worker's
compensation nurse case manager" to be a licensed Registered
Professional Nurse ("RN") and to have a Workers Compensation
Case Manager Certification from the Maryland Board of Nursing.
[Document 15-11] at 2.

Thus, pursuant to Maryland law, an FMCM

working for GENEX in Maryland must be a licensed RN.

B.

Williams

Williams began working for GENEX as an FMCM in 2011 when
GENEX acquired the assets of her former employer Intracorp.
Compl. ¶ 13; [Document 15] at 10 n.4.

Williams's "weekly salary

[as a FMCM at GENEX] was always at least $1,442.36."

Nussdorf

Dec. ¶ 5.

As of January 2014, Williams was receiving $1,489.85

per week.

In total, with incentive compensation factored in,
8

Williams earned $83,354.14 in 2012 and $81,103.29 in 2013.

Id.

Williams has two supervisors at GENEX – Andy Nussdorf
("Nussdorf"), Branch Manager for GENEX's Field Case Management
Branch in Elkridge, Maryland, and Sofia Harris ("Harris"), Case
Management Supervisor for GENEX's Elkridge Office.

Williams

testified at her deposition, taken on November 5, 2013, that she
last saw Nussdorf over two years earlier in September 2011 and
that she last saw Harris over a year earlier in the Summer of
2012.

Williams Dep. 134:3-12.

Williams also stated that she

has "irregular" phone contact with her supervisors and that a
month can pass without her speaking to them.

Id. 134:13-22.

Williams received a Diploma in Nursing from the Toledo
Hospital School of Nursing in Toledo, OH in 1983 and a Bachelor
of Science in Nursing from Villa Julie College (n/k/a Stevenson
University) in Stevenson, MD in 2007.

Id. 66:11-68:10.

At all

relevant times hereto, Williams has been an RN licensed in the
State of Maryland.

[Document 15-8] at 3.

As of January 2014,

she was listed as a Registered Nurse Case Manager with the MWCC.
[Document 15-13] at 4.

Williams has several professional

certifications, including Certified Case Manager, Certified
Disability Management Specialist, Certified Life Care Planner,
and Medicare Set-aside Consultant.

Williams Dep. 71:10-72:9.

Prior to her employment with Intracorp / GENEX, Williams worked
9

for roughly 17 years at Rehabilitation Management Services, LLC
in Columbus, Ohio as a "Catastrophic Case Manager / Life Care
Planner / Expert Witness."

[Document 15-8] at 2.

On a résumé1 that she provided to Nussdorf sometime between
2011 and 2012, Williams described her position at GENEX as "Case
Manager / Life Care Planner / Expert Witness."

Id.

Her résumé

states that as an FMCM at GENEX, Williams:
Serve[s]
as
case
manager
for
multidisciplinary files assessing patient
needs, designing research-driven life care
plans, and coordinating delivery of care.
Oversee[s] medical record reviews, extensive
client interview process, collaboration with
the treatment team, data analysis, and
research to protect current and long-term
1

At her deposition, Williams contested the accuracy of
certain parts of her résumé and speculated that someone had
"edited" the document. She stated that "there are some things
on here that are either missing or that have been added or that
are inaccurate." Williams Dep. 289:15-17. Specifically, she
stated that (1) there were big, blank areas with no type under
certain sections, (2) she no longer had current nursing licenses
in Ohio or California, and (3) the list of her volunteer efforts
and community work was incomplete. Id. 286:8-14, 287:5-22, 288
289:1-2. Williams also testified that she does not have a
Master of Science in Nursing degree ("MSN"), had never started
an MSN program, and had never even applied to Case Western
University. Id. 286:15-287:5. However, on the version of her
résumé that she submitted when she applied for the FMCM job in
2010, Williams noted that she would complete an MSN from Case
Western in 2011, not in 2013, the year listed on the more recent
version of the résumé. See [Document 15-6] at 4; [Document 158] at 3. Further, the Qualifications Summary of the résumé
states that Williams is "near-completion of [an] MSN."
[Document 15-8] at 2. Williams verified that the rest of her
résumé was accurate. Williams Dep. 289:3-9 ("Q. Anything else
inaccurate in this document? . . . A. I don't believe so. I
mean – No.").
10

medical needs and their economic impact.
Coordinat[es] case management initiatives in
concert with providers.
Develop[s] strong
professional relationships through proactive
communication
and
coalition-building,
facilitating
life
care
planning,
trust
management, litigation support.
Id.
On at least one occasion, Williams held herself out to an
injured employee as a nurse, writing in an email, "I am a nurse
with GENEX Services Inc. and I have been ask[ed] to visit with
you to address your current needs." [Document 15-32] at 4.
Further, the signature that Williams uses when she sends email
messages to injured employees lists her academic and
certification credentials and represents her employment title as
"Catastrophic Nurse Case Manager."

C.

Id.

Learned Professional Exemption

As discussed herein, GENEX is entitled to summary judgment
by virtue of the "learned professional exemption."2

To establish

that Williams is a "learned professional," GENEX must establish
that: (1) Williams is "[c]ompensated on a salary or fee basis at
a rate of not less than $455 per week" and (2) her "primary duty
[is] the performance of work requiring advanced knowledge in a
2

The other professional exemptions apply to creative
professionals (29 C.F.R. § 541.302), teachers (29 C.F.R. §
541.303), and certain individuals engaged in the practice or law
or medicine (29 C.F.R. § 541.304).
11

field of science or learning customarily acquired by a prolonged
course of specialized intellectual instruction."

29 C.F.R. §§

541.300(a), 541.301(a).

1.

Compensation Rate

There is no doubt that, at all times,
well over $455 per week.3

Williams has earned

See Nussdorf Dec. ¶ 5 ("In 2013,

[Williams's total compensation] was $81,103.29.").

2.

Primary Duty Test

To satisfy the "primary duty" test for the learned
professional exemption, GENEX must establish that Williams:
1.

2.

"in a field of science or learning;"

3.

3

"perform[ed]
knowledge;"

work

requiring

advanced

that is "customarily acquired by a
prolonged
course
of
specialized
intellectual instruction."

The United States Court of Appeals for the Fourth Circuit
has stated that when an employee receives a high salary, the
"high salary itself creates doubt as to whether [the employee]
falls within the scope of the intended protected class in light
of the legislative goals of the FLSA." See Altemus v. Fed.
Realty Inv. Trust, 490 F. App'x 532, 537 (4th Cir. 2012)
(employee's salary was over $90,000); see also Darveau v.
Detecon, Inc., 515 F.3d 334, 338 (4th Cir. 2008) ("Darveau's
annual compensation of $150,000 satisfies the salary
requirement. Although salary alone is not dispositive under the
FLSA, we note that the 'FLSA was meant to protect low paid rank
and file employees . . . .'" (citation omitted)).
12

29 C.F.R. § 541.301(a).

a.

Field of Science Customarily Acquired by a
Prolonged Course of Study

"Registered nurses who are registered by the appropriate
State examining board generally meet the duties requirements for
the learned professional exemption."4

29 C.F.R. § 541.301(e)(2).

There is no dispute that Williams is a licensed RN and that she
was required to be an RN to work for GENEX in Maryland as an
FMCM.5

Thus, Williams satisfies the second and third prongs of

the "primary duty" test – she has advanced knowledge in a field
of science that is customarily acquired by a prolonged course of
study. See Rieve v. Coventry Health Care, Inc., 870 F. Supp. 2d
856, 862 (C.D. Cal. 2012) ("It is undisputed that Plaintiff is a
registered nurse and that she was required to be a registered

4

"Licensed practical nurses and other similar health care
employees, however, generally do not qualify as exempt learned
professionals because possession of a specialized advanced
academic degree is not a standard prerequisite for entry into
such occupations." 29 C.F.R. § 541.301(e)(2).
5
Williams places great emphasis on the fact that GENEX does
not require an FMCM to be a licensed RN. See [Document 20] at
6; [Document 20-5]. However, the GENEX Job Description for an
FMCM states that an FMCM must have "state licenses /
certifications as required by law," and the MWCC requires a
worker's compensation nurse case manager in Maryland to be a
licensed RN. [Document 15-11] at 2; [Document 20-5] at 3.
Whether the requirement that an FMCM be a licensed RN was
imposed by GENEX or by the State of Maryland is immaterial
because the fact remains that Williams cannot work for GENEX in
Maryland as an FMCM without being a licensed RN.
13

nurse to work as a[ Field Case Manager—Medical Workers'
Compensation].

Plaintiff has thus satisfied the second and

third prongs of the duties test . . . ." (internal citation
omitted)); Powell v. Am. Red Cross, 518 F. Supp. 2d 24, 39
(D.D.C. 2007) ("[A]s a registered nurse, plaintiff . . .
satisfy[ies] the second and third elements of the primary duty
test.").
However, GENEX must establish that Williams's primary duty
involves the performance of work requiring her advanced
knowledge of nursing.

See Rieve, 870 F. Supp. 2d at 862 ("The

mere fact that Plaintiff is a registered nurse, however, does
not end the Court's inquiry.").

As the United States District

Court for the District of Columbia has stated:
Although the Court is unaware of any case in
which a registered nurse has been found not
to satisfy the primary duty test, the
[presumptive
exemption
for
registered
nurses] is not necessarily dispositive of
the first element of that test, i.e.,
whether a particular nursing position has as
its primary duty the performance of work
requiring advanced knowledge.
Powell, 518 F. Supp. 2d at 39.

b.

Work Requiring Advanced Knowledge

To determine whether Williams is exempt from the FLSA and
MWHL overtime wage requirements as a learned professional, GENEX
must establish the first prong of the "primary duty" test – i.e.
14

that Williams's "primary duty" involves "the performance of work
requiring [her] advanced knowledge" as a licensed RN.

See 29

C.F.R. § 541.301(a)(1).
An employee's "primary duty" is "the principal, main, major
or most important duty that the employee performs."
541.700(a).

Id. §

The "[d]etermination of an employee's primary duty

must be based on all the facts in a particular case, with the
major emphasis on the character of the employee's job as a
whole."

Id. § 541.700(a).

"[W]ork requiring advanced knowledge" is defined as:
work which is predominantly intellectual in
character, and which includes work requiring
the consistent exercise of discretion and
judgment, as distinguished from performance
of routine mental, manual, mechanical or
physical work.
An employee who performs
work requiring advanced knowledge generally
uses the advanced knowledge to analyze,
interpret or make deductions from varying
facts or circumstances. . . . .
Id. § 541.301(b).
GENEX contends that Williams's primary duties involve work
requiring advanced knowledge because as an FMCM, Williams is
required "to critically analyze and synthesize an injured
worker's medical condition and care options" and "to make
recommendations and take actions to advance the case."
[Document 15] at 37.

Williams argues that she is not required

to use advanced knowledge as an FMCM because she "complete[s]
15

tasks through strict compliance with procedures and protocols"
and "exercise[s] minimal discretion and independent judgment."
[Document 20] at 30.
In Rieve v. Coventry Health Care, Inc., 870 F. Supp. 2d 856
(C.D. Cal. 2012), the plaintiff was a licensed RN who worked as
a Field Case Manager—Medical Workers' Compensation ("FCM-Med").
She sued the defendant, a medical-cost containment company, for
classifying her as exempt from the FLSA overtime wage
requirement.6

Id. at 859.

The Rieve court stated that:

Despite the parties' varied interpretations
of the nature of Plaintiff's duties, a close
analysis shows that the substance of her
tasks is actually undisputed. . . . When it
comes to the substance of Plaintiff's tasks,
the parties differ only in their vocabulary.
. . .
Plaintiff's job duties were undisputedly "to
provide ongoing, day-to-day case management
services
for
Defendants'
customers
by
documenting the costs of care, preparing
reports regarding a plan of care, and
identifying
and
implementing
medical
services to meet the needs of Defendants'
customers."
Plaintiff explains that she
monitored and reported whether patients were
receiving medical services in accordance
with the medical orders issued by the
attending physician, although it was the
physicians who had the decision-making power
to order a course of treatment and the
6

The plaintiff in Rieve v. Coventry Health Care, Inc. also
brought claims under the California Labor Code, but the
California professional exemption – unlike Maryland's exemption
– is not coextensive with the scope of the federal exemption.
See 870 F. Supp. 2d 856, 866-67 (C.D. Cal. 2012).
16

claims adjusters who had the power to
eliminate such treatment. . . . Plaintiff
explains that FCMs do not make decisions
about reducing costs but "only document
'achieved
cost
savings'
in
Defendants'
CMD/Win program which is an 'inflexible'
system comprised of preformatted templates."
Id. at 859-60.

The court concluded that the plaintiff

"satisfies the 'advanced knowledge' prong of the duties test,"
reasoning that "[t]he evidence demonstrates that Plaintiff's
work was advanced beyond the level of a clerical worker" and
that "Plaintiff did not merely input routine data but engaged in
activities that demonstrate she is a skilled health care
professional."

Id. at 863-66.

Williams's duties as an FMCM for GENEX are almost identical
to those of the plaintiff in Rieve.7

Williams concedes in her

Response to GENEX's Motion that her job tasks include:
meeting
with
clients
in
their
homes,
physician's or therapist's offices and/or
work sites; interviewing clients; reviewing
a client's pre-injury and/or pre-illness
position;
making
appointments
with
a
client's physician or therapist; listening
to
and
reviewing
the
physician's
or
therapists
diagnosis;
obtaining
prescriptions; communicating both in-person
and by telephone with clients, employers,
medical
providers,
attorneys,
insurance
carriers and claims adjusters; applying all
7

One distinction is that in Rieve, the defendant required
the plaintiff to be a licensed RN to work as an FCM-Med, whereas
here, the RN requirement for an FMCM is a product of Maryland
law. However, as discussed supra, it is immaterial whether the
RN requirement is a product of GENEX's policies or of state law.
17

special instructions required by individual
insurance carriers and referral sources;
following all pre-established and required
case management plans; preparing reports and
other required paperwork to document all
casework activities; meeting weekly billing
requirements;
operating
office
machines;
accessing filing cabinets; and attending
staff meetings, workshops, and/or training
programs.
[Document 20] at 8-9 (emphasis added).

Seeking to create a

factual issue, Williams labels these duties as "a finite set of
clerical tasks."

Id. at 8.

However, this is insufficient to

avoid summary judgment when there is no genuine issue of
material fact as to the substance of Williams's duties as an
FMCM.

Cf. Rieve, 870 F. Supp. 2d at 859-60, 865-66.
In Withrow v. Sedgwick Claims Mgmt. Serv., Inc., 841 F.

Supp. 2d 972 (S.D.W. Va. 2012), the court determined that a
telephonic case manager for an insurance claims administrator
qualified as a learned professional.8

The plaintiff in Withrow

was a licensed RN who first "was employed by [the defendant] as
a utilization review nurse [but] also assumed duties as a
telephonic case manager."

Id. at 974, 986.

The court observed

that as a telephonic case manager, the plaintiff "helped
8

Withrow v. Sedgwick Claims Mgmt. Serv., Inc., 841 F. Supp.
2d 972 (S.D.W. Va. 2012), also dealt with claims of other
plaintiffs who were employed as claims examiners by the
defendant. However, the decision reached by the Withrow court
as to the applicability of the administrative exemption to
claims examiners does not affect the Court's analysis of the
learned professional exemption in the instant case.
18

patients return to work, . . . communicated directly with
employers to address workplace accommodations[, and i]n addition
to speaking with claimants about workplace issues, [she]
discussed what they should expect from their condition and
treatment[ and] sometimes act[ed] as a go-between for patients
and their providers."

Id. at 987.

The court concluded that the

plaintiff's position as a telephonic case manager also qualified
her for the learned professional exemption,9 reasoning that the
"medical knowledge enabled her to examine claimants' conditions
and provide advice on what to expect from treatments."

Id. at

987.
"This Court is not aware of any case, nor do[es Williams]
cite to any case, in which a case manager or a registered nurse
in any position has not been deemed a professional exempt from
FLSA coverage."

Rieve, 870 F. Supp. 2d at 864.

Like the plaintiff in Rieve,10 Williams "deals with
extremely individualized results—a care plan for each of her
patients," which involve "decisions [that] are fact-specific and
tailored to each of her patient's individual situations."
at 865.
9

Id.

Further, like the plaintiff in Withrow, Williams uses

The Withrow court first determined that the plaintiff's
position as a utilization review nurse qualified her for the
learned professional exemption. See id. at 987.
10
Despite GENEX's reliance on Rieve in its Motion for Summary
Judgment, Williams neither mentions Rieve in her Response, nor
attempts to distinguish it from the instant case.
19

her advanced knowledge to examine injured employees' medical
conditions and advise them on what to expect.
Williams represents to GENEX clients that she believes she
is "pretty good [a]t challenging cases" and has requested large,
complex cases.

See [Document 15-16] at 2; [Document 15-7] at 2

("what i want . . . Are some big fat messed up cases . . . . ").
The comments that Williams includes in her case progress
reports indicate that she not only analyzes assesses and
analyzes claimants' medical conditions, but also provides her
own commentary and suggestions.

For example, on an injured

employee's progress report, Williams made the following notes:
9/30/2013

I would encourage getting the
consent and obtaining all records
then looking into the presenting
lab
values
at
shock
trauma
[hospital] to see what his Blood
sugars were on admission – this
could potentially be the etiology
for the fall.

10/3/2013

Claimant
walks
cautiously
and
seems a bit unsure of him.
His
color was good and he conversed
clearly and was oriented without
deficit.
He presented with a
phlebitis on the left hand from
an IV site placed at one of his
hospitalizations . . . .

10/3/2013

A brief neurological exam was
completed which appeared normal
however the doctor asked for
claimant
to
be
seen
by
a
Neurologist for further – more
sophisticated assessment. . . . I
20

suggested considering Sinai as
they have excellent specialists
an[d] all parties agreed.
10/3/2013

Claimant was cleared to drive
only short distances – "around
the corner" but I cautioned them
heavily about even that as [b]y
the time the appointment was over
he looked glossed over - somewhat
confused and clearly overwhelmed.

[Document 15-21] at 8-10 (emphasis added).
The evidence establishes that Williams is not closely
supervised and that she regularly exercises discretion and
judgment as an FMCM.

Williams testified that she had not seen

either one of her supervisors in over a year and that she
infrequently speaks with them by telephone.

She also stated

that she provides input into the process of trying to help
injured employees return to work.

See Williams Dep. 114:12-22

("Q. Do you provide your input into those decisions? . . . A. As
it relates to the document that I have. Yes."); see also id.
338:9-13 ("Q. So you provide input into the process as we've
talked about today, right? Recommendations, education,
suggestions that may or may not be followed.

A. At times.").

Finally, Williams provides additional follow up and
recommendations when she feels that a particular case warrants
such actions.

See [Document 15-25] at 2 ("I advised Risk

Management at the Hospital needs to become involved in this case
21

ASAP—needs Hospitalist and Neuro consults as well—will address
ASAP and get back to me.

Very worried about this gentleman—will

reach out to the wife again and probably go see her over the
weekend if okay with [the insurance adjuster].").
Williams contends that she does not exercise discretion and
judgment because she "does not have the power or discretion to
alter that course of treatment."

[Document 20] at 35.

The

court in Rieve faced a similar argument when the plaintiff
pointed out that she did not have the power to order the
imposition or elimination of medical treatment or to override or
modify the decisions of claims adjusters.

The Rieve court

responded that "even though Plaintiff existed in a hierarchy,
she was clearly still required to exercise independent judgment
and discretion in the course of her duties" because "[l]ike a
registered nurse in practice, [the plaintiff] interacted with
physicians and patients and provided skilled advice, despite the
fact that she did not have the authority to order or alter any
course of treatment herself."

Rieve, 870 F. Supp. 2d at 864.

Likewise, here, even though Williams does not have ultimate
decision-making power as to an injured employee's treatment or
care plan, she still uses her discretion and judgment to
evaluate cases and make recommendations for future courses of
action, much like a licensed RN engaged in direct patient care.
22

Williams contends that a lay person – i.e. a non-nurse –
could do her job because "GENEX provides [FMCMs] with a host of
templates with which they prepare various reports and letters."
[Document 20] at 8.

She argues that when she writes reports,

she is "nothing more than a scribe relaying information back."
Id. at 12.
However, the report writing instructions11 for FMCMs refute
this argument.

Although the instructions state that standard

report templates exist and "cannot be changed," they also state
that "[e]ach report should be unique" because the "customer does
not want a regurgitation of information they already have."
[Document 15-18] at 2, 5.
Further, Nussdorf testified that no more than 10 percent of
the time Williams spends working on a case is spent writing
evaluation reports.

The other 90 percent of the time is spent

on a variety of tasks that include meeting and communicating
with the doctors, physical therapists, and/or injured employee.
See Nussdorf Dep. 93:12-94:10.

Thus, even assuming that report

writing is the action of a "mere scribe," such a task takes up
only 10 percent of Williams's time, which is not sufficient to
have the alleged clerical work qualify as Williams's primary
duty.

11

See 29 C.F.R. § 541.700(b) ("The amount of time spent

From a manual originally produced by Intracorp.
23

performing exempt work can be a useful guide in determining
whether exempt work is the primary duty of an employee. Thus,
employees who spend more than 50 percent of their time
performing exempt work will generally satisfy the primary duty
requirement.").
Williams has produced only her own self-serving opinion
testimony to refute the evidence presented by GENEX that as an
FMCM, Williams's primary duty involves the performance of work
requiring her advanced knowledge in the nursing field.

For

example, Williams testified that she does not perform the exact
duties upon which her Performance Evaluation is based.

Williams

Dep. 295:14-296:5 ("Q. Is there any other criteria in this
document that you believe are not appropriate for the evaluation
of the field case manager based on what you actually do on a
day-to-day basis? A. . . . I don't think it's an accurate
reflection of what we really do.").

However, this is not

sufficient to provide evidence from which a reasonable jury
could find against GENEX in regard to the substance of
Williams's duties as an FMCM.

Cf. Wadley v. Park at Landmark,

LP, 264 F. App'x 279, 281 (4th Cir. 2008) ("[Plaintiff's] own
self-serving, unsubstantiated statements in opposition to [his
former landlord's] evidence [that the plaintiff was not
discriminated against] is insufficient to stave off summary
24

judgment."); Wilson v. Circuit City Stores, Inc., 81 F.3d 153
(4th Cir. 1996) ("Wilson produced only his own self-serving
testimony to substantiate the claim that other managers had the
same poor performance record as Wilson, but were not
disciplined. . . . The second element of Wilson's prima facie
case of disparate discipline thus stands wholly unsupported.").
Accordingly, any reasonable fact finder would have to agree
with GENEX that Williams "exercised independent judgment and was
engaged in non-clerical work, such that her primary duties
require 'advanced' knowledge that satisfies the duties test for
the FLSA [and MWHL] professional exemption[s]."12

Rieve, 870 F.

Supp. 2d at 863.

12

Because the Court has determined that Williams is exempt
from the overtime wage requirements of the FLSA and the MWHL
under the learned professional exemption, the Court "need not
address the merits of [GENEX]'s administrative exemption" and
combination exemption arguments. Rieve, 870 F. Supp. 2d at 866.
Further, in light of the decision to grant summary judgment to
GENEX on the learned professional exemption, the Court also need
not address GENEX's spoliation contentions.
25

V.

CONCLUSION
For the foregoing reasons:
1.

Defendant's Motion for Summary Judgment with
Regard to the Claims of Plaintiff Nancy A.
Williams [Document 14] is GRANTED.

2.

Judgment shall be entered by separate Order.

SO ORDERED, on Thursday, September 4, 2014.

/s/___
__ _
Marvin J. Garbis
United States District Judge

26