Jackson v. Reliasource, Inc. et al
MEMORANDUM AND ORDER granting 15 Plaintiff's Motion for Leave to File Amended Complaint; denying 18 Defendants' Motion for Summary Judgment; denying 19 Defendants' Motion for Sanctions; granting 28 Plaintiff's Motion to Strike the Affidavit of Defendant Joseph Zuramski; directing parties to submit a joint status report within 10 days. Signed by Judge William M Nickerson on 1/18/2017. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RELIASOURCE, INC. et al.
Civil Action No. WMN-16-358
MEMORANDUM AND ORDER
Plaintiff Andre Jackson initially brought this suit under
Section 16(b) of the Federal Fair Labor Standards Act of 1938,
as amended, 29 U.S.C. §§ 201, et seq. (FLSA), and the Maryland
Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401, et seq.
(MWHL), seeking overtime compensation for hours worked in excess
of 40 hours per week.
He brings this suit against his former
employer, ReliaSource, Inc. (ReliaSource) and ReliaSource’s
owners, Joseph and Julie Zuramski.
As discussed below, the
substantive issue in this action is a straightforward one, i.e.,
whether or not Plaintiff was exempt from overtime pay under the
executive employee exception of the FLSA, 29 C.F.R. §
541.100(a), and the parallel provision of the MWHL, Md. Code
Ann., Lab & Empl. § 3-403(a)(1).
While that legal question is
relatively straightforward, the parties, or at least their
counsel, have made this action somewhat more procedurally
Plaintiff filed this action on February 8, 2016.
Defendants filed their Answer, Plaintiff filed a motion for
leave to file an amended complaint on April 13, 2016.
In addition to adding additional allegations of facts in
support of his existing claims, Plaintiff seeks to bring an
additional claim into this suit under the Maryland Wage Payment
Collection Law, (MWPCL), asserting that Defendants failed to pay
him all the wages he was due for work performed before the
termination of his employment.
Plaintiff (or Plaintiff’s
counsel) states that “[s]ince the filing of Plaintiff’s initial
Complaint, Plaintiff has received notice that Plaintiff is no
longer employed with ReliaSource, Inc.”
Id. at 1.
represent, and Plaintiff does not dispute, that Plaintiff was
not terminated, but actually gave notice of his resignation on
March 1, 2016.
The motion for leave to file an amended
complaint is fully briefed and pending.
On April 26, 2016, Defendants filed a motion for summary
judgment, arguing that the undisputed facts demonstrate that
Plaintiff was an exempt employee.
ECF No. 18.
On that same
date, Defendants also filed a motion for sanctions positing that
Plaintiff’s employment was so clearly exempt from overtime pay
that his bringing of this suit is sanctionable under Rule 11 of
the Federal Rules of Civil Procedure.
ECF No. 19.1
Unfortunately, when electronically filing their motion for
summary judgment, Defendants’ counsel mistakenly attached a copy
of the memorandum of law in support of their motion for
sanctions, instead of the memorandum of law in support of their
motion for summary judgment.
A cursory review of the mistakenly attached memorandum
should have revealed the error.
The memorandum was clearly
captioned as a “Memorandum of Law in Support of Defendants’
Motion for Sanctions Against Plaintiff Andre Jackson” and was
identical to the memorandum attached to the other motion filed
that same day.
Rather than simply communicating with
Defendants’ counsel, informing counsel of the error, and
providing the opportunity to correct it, Plaintiff’s counsel
filed an opposition to the motion for summary judgment in which
counsel complains that Defendants have provided “little, if any,
factual or legal analysis in support of their motion.”
24 at 2.
Three days after this opposition was filed, Defendants
filed the intended memorandum in support of their summary
Defendants then proceeded to file a reply
Following the dictates of Rule 11, Defendants first served the
motion for sanctions on Plaintiff prior to presenting it to the
Court. The motion was served on Plaintiff on March 23, 2016,
and Defendants hypothesize that the service of this motion was
the impetus for Plaintiff’s filing of a motion for leave to
amend his original complaint with additional factual
memorandum in support of the summary judgment motion in which
they complain of Plaintiff’s failure in his opposition to deny
or dispute arguments Defendants made in their motion - arguments
that, of course, Plaintiff did not see until after Plaintiff’s
opposition was filed.
Citing counsel’s inability to respond to arguments it had
not seen, Plaintiff filed a motion for leave to file a surreply,
which the Court granted.
ECF No. 36.
Plaintiff filed a surreply on June 30,
On July 12, 2016, Plaintiff’s counsel wrote
to the Court complaining about inadequate discovery responses
ECF No. 37.
This case was referred to
Magistrate Judge David Copperthite for discovery management and,
after a conference call with counsel, Judge Copperthite ordered
Defendants to produce a significant amount of additional
ECF No. 40.
After a period of additional discovery,
Defendants filed a supplement in support of their summary
judgment motion, ECF No. 52, and Plaintiff filed a supplemental
ECF No. 53.
The motion for summary judgment is now
fully briefed and pending, as is the motion for sanctions.
The process of briefing the summary judgment motion has
spawned a fourth motion, a motion to strike filed by Plaintiff.
ECF No. 28.
Plaintiff complains in his motion to strike that,
with Defendants’ reply memorandum in support of the summary
judgment motion, Defendants attached new documents not
previously disclosed to Plaintiff as well as an unsworn and
unsigned “affidavit” of Defendant Joseph Zuramski.
to strike is now fully briefed and pending.
Turning first to the motion to strike, Plaintiff opines
that the document submitted by Defendants with their reply is
technically not an affidavit in that it was not “‘sworn to
before someone who is authorized to administer an oath.’”
No. 28-1 at 2 (quoting Elder-Keep v. Aksamit, 460 F.3d 979, 984
(8th Cir. 2006)).
While the document is more in the nature of a
declaration, it is deficient as a declaration because it is
Plaintiff also maintains that it contains
Furthermore, Plaintiff complains that the
three emails attached to the document were not previously
produced in discovery.2
Defendants’ response to this motion was simply to request
that the Court permit Defendants to substitute a now signed copy
of the affidavit for the unsigned version.
that Mr. Zuramski was “out of the country” when the reply was
filed and, therefore, was unable to sign it.
ECF No. 32 at 1.
As Plaintiff noted in his reply memorandum, however, the nowsigned affidavit submitted with the opposition to the motion to
The Court notes that this might be explained by the fact that
Defendants’ reply was filed on May 31, 2016, well before
Magistrate Judge Copperthite ordered additional discovery.
strike indicates that it was signed on May 31, 2016, the same
date on which Mr. Zuramski was supposedly out of the country.
While the Court assumes that the document was simply misdated,
it is plainly deficient as filed.
If Defendants’ counsel’s
representation concerning Mr. Zuramski’s whereabouts is
accurate, he could not have signed the document on the date so
The Court will grant the motion to strike.3
Plaintiff’s motion for leave to file an amended complaint
presents some additional conundrums.
As noted above,
Plaintiff’s counsel states that Plaintiff “received notice” that
his employment was “terminated” when, in fact, Plaintiff gave
notice that he was resigning on March 1, 2016.
in his deposition that after he gave notice that he was
quitting, on that same day he “walked out the door.
shut down that day, locks were changed.”
Pl.’s Dep. at 12-13.
Nevertheless, Plaintiff alleges somewhat cryptically in the
proposed Amended Complaint that his “final day of employment
with Defendants was between March 1, 2016 and March 15, 2016.”
Am. Compl. ¶ 58.
Defendants’ counsel called out Plaintiff’s counsel for
these obfuscations and suggests that Plaintiff should know what
The striking of the document is ultimately inconsequential in
that the Court’s consideration of the document and attached
emails would not alter the Court’s assessment of the merits of
Defendants’ summary judgment motion.
the last day of his employment was and “[u]ndoubtedly, if his
employment had been terminated shortly after the filing of the
complaint, he would have filed a claim for retaliation.”
No. 16 at 2.
In his reply in support of the motion to amend,
Plaintiff’s counsel responds that, in light of his voluntary
resignation, Plaintiff “has chosen not to file a retaliation
claim at this time.”
ECF No. 22 at 5.
Remarkably, he also
asserts that he “may seek to file a retaliation claim if
sufficient facts to establish a retaliation claim are presented
during pretrial discovery.”
Id. at 5 n.1.
resigned, any claim of retaliatory discharge would have to be
premised on a theory of constructive discharge.
resigned, presumably he understands why he resigned and it is
unclear how new information disclosed in discovery could augment
Aside from highlighting the above obfuscations, Defendants’
opposition offers no direct challenge to the merits of
Plaintiff’s MWPCL claim.
That Plaintiff’s employment ended by
resignation as opposed to termination does not affect the
viability of the claim.
See Medex v. McCabe, 811 A.2d 297 (Md.
2002) (a plaintiff who had resigned was permitted to bring a
MWPCL claim for unpaid commissions).
Whether Plaintiff actually
worked during the period between March 1 and March 15, 2016, is
also not determinative of his MWPCL.
If Plaintiff was entitled
to overtime pay while employed, a MWPCL claim can be asserted
for that unpaid overtime.
See Peters v. Early Healthcare Giver,
Inc., 97 A.3d 621, 625 (Md. 2014) (reaffirming “that both the
[M]WHL and the [M]WPCL are vehicles for recovering overtime
Whether Plaintiff is entitled to overtime wages is, of
course, the focus of Defendants’ motion for summary judgment.
Under Rule 56, the Court “shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
Fed. R. Civ. P. 56(a).
In considering the motion, the
judge's function is “not . . . to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”
477 U.S. 242, 249 (1986).
Anderson v. Liberty Lobby, Inc.,
A dispute about a material fact is
genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Id. at 248.
ruling on a motion for summary judgment, the Court must “view
the evidence in the light most favorable to . . . the nonmovant
and draw all reasonable inferences in [his] favor.”
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.
In moving for summary judgment, Defendants do not assert
that Plaintiff worked 40 hours or less per week but argue that
he is an exempt employee under the “executive employee
exemption” of the FLSA as defined in the Department of Labor
29 C.F.R. § 541.100(a).
It is well settled in the
Fourth Circuit that “‘employers must prove application of the
exemptions by clear and convincing evidence.’”
Desmond v. PNGI
Charles Town Gaming, LLC, 564 F.3d 688, 691 n.3. (4th Cir. 2009)
(quoting Shockley v. City of Newport News, 997 F.2d 18, 21 (4th
Moreover, it is also well settled in this Circuit
that “FLSA exemptions are to be ‘narrowly construed against the
employers seeking to assert them and their application limited
to those establishments plainly and unmistakably within [the
exemptions'] terms and spirit.’”
Id. at 692 (quoting Arnold v.
Ben Kanowsky, 361 U.S. 388, 392 (1960)).
The Department of Labor regulations define an “executive”
employee as any employee:
(1) Compensated on a salary basis at a rate of not
less than $455 per week ... exclusive of board,
lodging or other facilities;
(2) Whose primary duty is management of the enterprise
in which the employee is employed or of a customarily
recognized department or subdivision thereof;
(3) Who customarily and regularly directs the work of
two or more other employees; 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
29 C.F.R. § 541.100(a).
All four criteria must be met for an
employee to fall within the exemption.
There is no dispute that the conditions of Plaintiff’s
employment satisfy the first of those criteria.
paid $55,000 annually, or $1,052.69 weekly from September 2010
until January 1, 2016, when his salary was increased to $65,000.
Thus, at all times relevant, Plaintiff made more, in fact
significantly more, than the $455 weekly salary set out in the
As to the remaining three criteria, the Court finds that
the record is abounding with genuine disputes of material fact.
With respect to the second prong of the requirements for this
exemption, the regulations state that “management” includes, but
is not limited to, the following activities:
(1) interviewing, selecting, and training of
employees; (2) setting and adjusting their rates of
pay and hours of work; (3) directing the work of
employees; (4) maintaining production or sales records
for use in supervision or control; (5) appraising
employees' productivity and efficiency for the purpose
of recommending promotions or other changes in status;
(6) handling employee complaints and grievances; (7)
disciplining employees; (8) planning the work; (9)
determining the techniques to be used; (10)
apportioning the work among the employees; (11)
determining the type of materials, supplies,
machinery, equipment or tools to be used or
merchandise to be bought, stocked and sold; (12)
controlling the flow and distribution of materials or
merchandise and supplies; (13) providing for the
safety and security of the employees or the property;
(14) planning and controlling the budget; and (15)
monitoring or implementing legal compliance measures.
29 C.F.R. § 541.102 (numeric parentheticals added).
For management to be an employee’s “primary duty,” it must
be the “[p]rincipal, main, major or most important duty that the
29 C.F.R. § 541.700(a).
In making this
determination, courts consider factors including:
[t]he relative importance of the exempt duties as
compared with other types of duties; the amount of
time spent performing exempt work; the employee's
relative freedom from direct supervision; and the
relationship between the employee's salary and the
wages paid to other employees for the kind of
nonexempt work performed by the employee.
In moving for summary judgment, Defendants rely heavily on
Joseph Zuramski’s first “affidavit” submitted with the motion.
ECF No. 18-9.
Zuramski represents that when Plaintiff received
his raise in September of 2010 and ceased being an hourly
worker, he was elevated to the position of “Technical Lead.”
Id. ¶¶ 3, 4.
Zuramski describes Plaintiff’s Technical Lead
position as a position with duties of “oversight over the lead
technicians and management of large teams of field technicians
at remote job locations.”
Id. ¶ 4.4
Zuramski states that, in
that capacity, Plaintiff directed the work of teams of
technicians, kept timesheets, made travel arrangements for
himself and others, and prepared numerous reports.
Id. ¶¶ 4-6.
ReliaSource provides, among other services, computer and
technology relocation services and Plaintiff’s employment was
primarily related to those relocation services.
Zuramski also states that Plaintiff was the “HUB Zone personnel
manager for ReliaSource” and, in that capacity, interviewed job
candidates, made the decision to hire at least nine employees
and determined the pay rate for those employees, and made the
recommendation to fire one employee, a recommendation that was
Id. ¶ 7.
Plaintiff paints a very different picture of his position.
He states that for every project on which he worked, there was a
project manager to whom he reported and who actually planned,
scheduled, budgeted, and directed the project.
He posits that
his work “primarily involved manual labor” and he had no
“authority to hire and fire, promote or discipline any
Pl.’s Aff. ¶ 7., ECF No. 24-2.5
He states that he
did not plan or control the budget for any project while
employed at ReliaSource.
Id. ¶ 33.
As for his role in managing the “Hub Zone,” Plaintiff
explains that this was a program initiated by ReliaSource to
help increase the number of employees from a certain
neighborhood or zone so that ReliaSource could maintain its
status as a minority company and continue to qualify for
His interviewing and hiring of potential
employees was simply going through a checklist to confirm that
The Court notes that Plaintiff has captioned his submission as
an “affidavit,” despite the fact that it was not “sworn to
before someone who is authorized to administer an oath.”
the applicant resided in the zone - a checklist that he had no
part in constructing - and, if the applicant met a predetermined
criteria, signing an offer letter that he had no part in
Id. ¶¶ 21-28.
He directly contradicts Zuramski’s
representations that he had any definitive role in the hiring or
firing of any employee, or influencing the pay rates of other
Id. ¶¶ 28, 31, 32.
Plaintiff further elaborates in his deposition that his
work on jobsites was the same or similar as that of other
technicians on the jobsite who were paid an hourly wage.
Dep. at 212-13, ECF No. 52-1.
He states that he had no role in
the planning, logistics, scheduling, or budgeting of projects
but simply followed the instructions of the project managers.
Id. at 212, 222.
Plaintiff states that, in addition to doing
“dump runs” to dispose of old computer equipment, he was on
various occasions required to shovel mud into buckets and haul
those buckets to a dumpster, paint an office, and clean up after
a demolition project.
Id. at 203-06.
He also clarified that he
spent no more than 2% to 3% of his time dealing with Hub Zone
Id. at 219-20.
Plaintiff does acknowledge some management type
While he states that his work primarily
involved manual labor, he states that he did that work
“alongside technicians who were under [his] supervision.”
Aff. ¶ 11 (emphasis added).
As Defendants argue, just because
he had managers above him that supervised his work does not
eliminate the possibility that he, in turn, managed other
Plaintiff’s level of compensation also gives some
credence to Defendants’ contention that Plaintiff was an exempt
While Defendants might ultimately be able to establish
Plaintiff’s exempt status, viewing the evidence in the light
most favorable to Plaintiff as the nonmoving party, the Court
determines that Defendants’ motion for summary judgment must be
Given that the Court finds that there are genuine
disputes as to material facts as to Plaintiff’s employment
status, Defendants’ motion for sanctions must also be denied.
In previous correspondence with the Court, the parties
indicated that reference to a magistrate for a settlement
conference might be appropriate after the resolution of these
ECF No. 51 at 3.
The Court, therefore, requests that
the parties submit a joint status report within ten days
indicating whether such a reference would be appropriate or
whether the case should be set for trial.
Accordingly, IT IS this 18th day of January, 2017, by the
United States District Court for the District of Maryland,
(1) That Plaintiff’s Motion for Leave to File Amended
Complaint, ECF No. 15, is GRANTED and the Amended Complaint is
deemed filed as of the date of this Memorandum and Order;
(2) That Defendants’ Motion for Summary Judgment, ECF No.
18, is DENIED;
(3) That Defendants’ Motion for Sanctions, ECF No. 19, is
(4) That Plaintiff’s Motion to Strike the Affidavit of
Defendant Joseph Zuramski, ECF No. 28, is GRANTED;
(5) That the Parties shall submit a joint status report to
the Court within 10 days of the date of this Memorandum and
(6) That the Clerk of the Court shall transmit a copy of
this Memorandum and Order to all counsel of record.
William M. Nickerson
Senior United States District Judge
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