Smith v. BLD Services, LLC

Filing 30

MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 2/21/2018. (krs, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KENNETH SMITH

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Plaintiff,

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v.

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BLD SERVICES, LLC

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Defendant.
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Civil Case No. 1:17–00167–JMC

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MEMORANDUM OPINION
This suit arises from Plaintiff Kenneth Smith’s (“Plaintiff” or “Mr. Smith”) claim that his
employer, Defendant BLD Services, LLC, (“Defendant” or “BLD”) unlawfully denied him
overtime compensation under the Fair Labor Standards Act (“FLSA”), the Maryland Wage and
Hour Law (“MWHL”), and the Maryland Wage Payment and Collection Law (“MWPCL”).
(Compl., ECF No. 1). The parties consented to proceed before a magistrate judge for all
proceedings pursuant to 28 U.S.C. § 636 and Local Rules 301 and 302. (ECF Nos. 19, 24).
Currently pending before this Court is Defendant’s Motion for Summary Judgment. (ECF No.
25). The Court has reviewed Defendant’s Motion, Plaintiff’s Response in Opposition thereto,
and Defendant’s Reply in Support thereof. (ECF Nos. 25, 28, 29). No hearing is necessary.
Loc. R. 105.6 (D. Md. 2016). For the reasons that follow, Defendant’s Motion is DENIED.
I.

BACKGROUND
On January 6, 2013, Kenneth Smith began working as a laborer for BLD Services, LLC, a

general contracting and construction management firm. (ECF No. 1 at 9). As a laborer, Mr.
Smith was paid at an hourly rate and his “duties were limited to maintaining the reefer truck,
building bags for installation of the liner chemicals, and installing the liner.” (ECF No. 25–1 at

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3). In April of 2014, Mr. Smith was promoted to superintendent1 and converted to salary pay.
He received an initial annual salary of $60,000.00 until November of 2015, when he received a
raise and was then paid an annual salary of $65,000.00. Although the precise nature of Mr.
Smith’s job duties as superintendent is disputed, Mr. Smith worked with a crew of three to four
employees in repairing, cleaning, and lining sewers in the Baltimore area. (ECF No. 1 at 2). Mr.
Smith claims he worked “far in excess of” 40 hours in a typical week, instead working between
55 and 60 hours per week, and thus is deserving of overtime compensation for the overtime
hours worked. (ECF No. 1 at 2, 10).
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) requires the Court to “grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The moving party bears the burden “to demonstrate the
absence of any genuine dispute of material fact.” Jones v. Hoffberger Moving Servs. LLC, 92
F.Supp.3d 405, 409 (D. Md. 2015) (internal citations omitted). A dispute as to a material fact “is
genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” J.E. Dunn Const. Co. v. S.R.P. Dev. Ltd. P’ship, 115 F.Supp.35 593, 600 (D. Md. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
A nonmoving party “opposing a properly supported motion for summary judgment ‘may
not rest upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth
specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). The court is “required to view the facts
and draw reasonable inferences in the light most favorable to” the nonmoving party, Iko v.
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Throughout the Complaint and relevant pleadings, Mr. Smith’s superintendent position is also referred to
as “supervisor” and “crew leader.” These terms are considered synonymous for the position Mr. Smith held at the
time. (Compl. at 2, ECF No. 1).

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Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (citing Scott v. Harris, 550 U.S. 372, 377 (2007)), but
must also “abide by the ‘affirmative obligation of the trial judge to prevent factually unsupported
claims and defenses from proceeding to trial.’” Heckman v. Ryder Truck Rental, Inc., 962
F.Supp.2d 792, 799–800 (D. Md. 2013) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th
Cir. 1993)).
III. DISCUSSION
In this case, the crux of Plaintiff’s claim is that BLD misclassified him as an employee
exempt from overtime compensation and paid him on a salary basis in order to avoid paying him
overtime compensation mandated by the FLSA and MWHL. Both the FLSA and MWHL
require that employees working more than forty hours in a workweek must be paid time and a
half for the excess hours worked. 29 U.S.C § 207; Md. Code Ann., Labor & Empl. § 3–415.
However, “[t]he FLSA, and, by extension, the MWHL, exempt certain employees from the
requirements of overtime wages, including employees in a bona fide executive, administrative,
or professional capacity.” Drubetskoy v. Wells Fargo Bank, N.A., Civ. No. CCB–13–2196, 2013
WL 6839508, at *7 (D. Md. Dec. 20, 2013). See Falaiye v. CCA Academic Resources, Civ. No.
PX–16–2887, 2017 WL 4098740, at *4 (D. Md. Sept. 14, 2017) (“The [MWHL] exemption
generally mirrors that of the FLSA.”). See also 29 U.S.C. § 213(a)(1); Md. Code Ann., Labor &
Empl. § 3–403; COMAR § 09.12.41.17.
The Department of Labor promulgated relevant regulations interpreting the scope of the
executive employee exemption. 20 C.F.R. § 541.100 et seq. Those regulations provide that an
employee is an executive if: (1) he is compensated on a salary basis at a rate of not less than
$455 per week; (2) his primary duty is “management of the enterprise in which the employee is
employed”; (3) he “customarily and regularly directs the work of two or more other employees”;

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and (4) he has “the authority to hire or fire other employees” or his “suggestions and
recommendations as to the hiring, firing, advancement, promotion” of other employees are
“given particular weight.” 20 C.F.R. § 541.100(a). “Exempt status is an affirmative defense
under the FLSA, and, therefore, the defendant bears the burden of proof on that issue. Because
FLSA exemptions must be narrowly construed, the defendant must prove the plaintiff’s exempt
status by clear and convincing evidence.” Stricker v. Eastern Off Road Equipment, Inc., 935
F.Supp. 650, 653–54 (D. Md. 1996).
Defendant’s Motion for Summary Judgment argues that the executive employee
exemption applied to Plaintiff. In his Opposition, Plaintiff admits that he “was, at all times since
his promotion in April 2014, ostensibly a salaried employee earning more than $455 per week
who regularly directed the work of two or more other employees.” (ECF No. 28-1 at 2, Pl.’s
Opp.). However, Plaintiff “disputes whether his primary duty was management of the enterprise
or a subdivision thereof and whether he was authorized to hire or fire employees or whose
suggestions and recommendations with respect to employees[’] hiring, firing, advancement,
promotion or any other change of status are given particular weight.” Id. Because Plaintiff
concedes that Defendant has met the burden of proving the first and third requirements for the
relevant exemption, the Court will address only the second and fourth requirements. The Court
will first consider the fourth element and then proceed to the second element, as it requires more
detailed analysis.
A.

Fourth Element: Hiring and Firing of Other Employees

The fourth element of the executive employee exemption requires that the employee had
the authority to hire or fire other employees, or that the employee’s suggestions and
recommendations regarding the hiring or firing of other employees were given particular weight.

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In order to determine whether an employee’s suggestions and recommendations were given
particular weight, courts consider certain factors: “whether it is part of the employee’s job duties
to make such suggestions and recommendations; the frequency with which such suggestions and
recommendations are made or requested; and the frequency with which the employee’s
suggestions and recommendations are relied upon.” 29 C.F.R. § 541.105. These suggestions
and recommendations do not “include an occasional suggestion with regard to the change in
status of a co-worker.” Id. Furthermore, an employee’s suggestions and recommendations may
still be given particular weight even if “a higher level manager’s recommendation has more
importance” or “the employee does not have authority to make the ultimate decision.” Id.
Plaintiff claims that he “made two or three recommendations for hiring employees over
the course of two and a half years as crew leader,” and further explained that the so-called
recommendations were in fact “referrals” for people whom “he did not really know.” (ECF No.
28–1 at 9). Defendant contends that Plaintiff actually recommended potential employees on four
separate occasions, and that Defendant hired three of those potential employees. (ECF No. 25–1
at 21).
Regardless of whether Plaintiff was recommending potential employees about whom he
claims he knew little, and that Defendant argues the recommendations happened on multiple
occasions, Plaintiff does not deny that he made such hiring suggestions to Defendant nor that
Defendant took into account his suggestions when making ultimate hiring decisions. (ECF No.
25–1 at 21). Plaintiff also admits that he once took disciplinary action against one of his crew
members when the employee “had wanted to fight at work” and that the employee was
ultimately terminated based on Plaintiff’s direct recommendation of termination to Defendant.
(ECF No. 28–1 at 9). Plaintiff further argues that his suggestions were not given particular

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weight because his project manager, who outranked him in his superintendent position,
ultimately made final hiring and firing decisions, but the regulations specifically state that an
employee’s suggestions and recommendations may still be given particular weight even if the
employee does not make the ultimate decision. See Buechler v. DavCo Restaurants, Inc., Civ.
No. WDQ–09–0227, 2009 WL 3833999, at *6 (D. Md. Nov. 16, 2009) (finding that exempt
employee’s hiring and firing recommendations were given particular weight although only two
employees were hired upon his suggestions in two years). Accordingly, the Court finds that
Defendant gave Plaintiff’s suggestions and recommendations particular weight and, thus,
Defendant has satisfied the fourth element of the executive employee exemption.
B.

Second Element: Management as Primary Duty

The second element of the executive employee exemption requires that management be
the primary duty of the exempt employee. According to the relevant regulations, “management”
can include activities such as:
interviewing, selecting, and training of employees; setting and adjusting their
rates of pay and hours of work; directing the work of employees; maintaining
production or sales records for use in supervision or control; appraising
employees’ productivity and efficiency for the purpose of recommending
promotions or other changes in status; handling employee complaints and
grievances; disciplining employees; planning the work; determining the
techniques to be used; apportioning the work among the employees; determining
the type of materials, supplies, machinery, equipment or tools to be used or
merchandise to be bought, stocked and sold; controlling the flow and distribution
of materials or merchandise and supplies; providing for the safety and security of

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the employees or the property, planning and controlling the budget; and
monitoring or implementing legal compliance measures.
29 C.F.R. § 541.102. For management to be the employee’s “primary duty,” it must be the
“[p]rincipal, main, major or most important duty that the employee performs.” 29 C.F.R. §
541.700(a). In analyzing what constitutes an employee’s primary duty, courts consider “the
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.” Jackson v. ReliaSource, Inc., Civ.
No. WMN–16–358, 2017 WL 193294, at *4 (D. Md. Jan. 18, 2017) (internal citations omitted).
In its Motion for Summary Judgment, Defendant argues that Plaintiff acted in a
managerial role because he was responsible for production, expense, and time reports, had the
authority to discipline crew members, planned jobs based on a list of projects provided to him in
order to maximize efficiency, scouted upcoming projects, maintained safety guidelines, and was
given a company credit card to purchase necessary items for jobs. (ECF No. 25–1 at 14–15).
Defendant further alleges that Plaintiff “was the only person performing these managerial duties
for his crew,” and for that reason Plaintiff’s “managerial duties were his most important duties.”
Id. However, Plaintiff testified that “his primary duties were physically setting up and doing the
manual work on the lateral production” and that his supervisory duties were only “a minor part
of his day to day job, both in the amount of time he spent doing them and the importance of
those activities to the crew’s function.” (ECF No. 28–1 at 6). From the Court’s perspective, the
amount of time spent on non-managerial functions as a factor to be considered when analyzing
the employee’s primary duty can be somewhat misleading, as “[m]anagement and non-

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management tasks are often intertwined and overlapping.” Kreiner v. Dolgencorp, Inc., 841
F.Supp.2d 897, 904 (D. Md. 2012) (citing Thomas v. Speedway SuperAmerica, LLC, 506 F.3d
496, 504 (6th Cir. 2007)). Plaintiff also contends that he worked under the direct supervision of
a project manager and without much autonomy, (ECF No. 28–1 at 7), while Defendant argues
that he “operated his crew without direct supervision the vast majority of time,” (ECF No. 25–1
at 17).

Neither Plaintiff nor Defendant provided a comparison of Plaintiff’s monetary

compensation to that of his other crew members. Still, it is clear that a genuine dispute of
material fact exists as to whether management was Plaintiff’s primary duty in his position as
superintendent for Defendant. Summary judgment is, therefore, inappropriate.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 25) is

DENIED. A separate Order shall follow.

Dated: February 21, 2018

/s/
J. Mark Coulson
United States Magistrate Judge

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