Peters v. International Brotherhood of Electrical Workers Local Union No. 1200
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/6/2017. (sat, Chambers)
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 1 of 14
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 17-0134
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION :
employment case is a motion to dismiss or, in the alternative,
(“Defendant” or “Local IBEW”).
(ECF No. 8).
The issues have
been fully briefed, and the court now rules, no hearing being
Local Rule 105.6.
For the following reasons,
judgment, will be denied.
working for TV stations, production houses, and sporting events
across the nation.
(ECF No. 1 ¶ 14).
Plaintiff began working
Unless otherwise noted, the facts outlined
construed in the light most favorable to Plaintiff.
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 2 of 14
as an office assistant for Defendant in 1994.
(Id. ¶ 16).
Plaintiff was hired as an hourly employee and was paid $10.50
(Id. ¶¶ 32, 33).
Upon hire, Plaintiff was offered and
medical plan for all employees with premiums paid by Defendant,
vacation and holiday pay, sick leave, termination only for just
cause, and payment for unused vacation time upon termination.
(Id. ¶ 18).
On May 15, 2005, Plaintiff was offered and she
same terms as the prior agreement and additional terms for an
(Id. ¶¶ 19, 20).
The updated agreement still
terminated for “just cause.”
(Id. ¶ 21).
Defendant began renting out its offices in December 2010
and told employees to work from home.
Local IBEW documents,
supplies, and equipment were moved to Plaintiff’s home office.
(Id. ¶ 55).
In January 2015, Plaintiff was promoted from Office
increased to $25.45.
(Id. ¶¶ 17, 36).
In July 2015, the office
manager in charge of member billing and dues processing was
terminated, and Plaintiff’s supervisor and Local IBEW Business
Manager Tom Albano passed all of the office manager’s duties and
responsibilities to Plaintiff with no additional compensation.
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 3 of 14
(Id. ¶¶ 56, 57).
In August 2015, Plaintiff asked Mr. Albano
about hiring a part-time employee to assist Plaintiff with her
Instead, Mr. Albano hired an accountant who
Friday, Plaintiff was required to work 8 hours a day on Saturday
(Id. ¶ 37, 38).
Defendant did not pay Plaintiff for all of her
overtime hours and only paid Plaintiff overtime on two occasions
– once in 2014 and once in 2016.
(Id. ¶ 52, 53).
Plaintiff alleges that Defendant failed to provide her a
medical plan and that the Local IBEW Board “met and finally
approved” a medical plan for her and her husband in September
(Id. ¶¶ 23, 27).
In October 2015, Plaintiff asked Mr.
Plaintiff’s medical plan was not finalized until late January
2016 and became effective in February.
(Id. ¶ 29).
On July 6, 2016, Kenneth Brown was sworn in as the new
Local IBEW Business Manager.
That same day, around 11 a.m., Mr.
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 4 of 14
entrance into Plaintiff’s home to retrieve Local IBEW documents,
“[Plaintiff] is unavailable at the moment and will be right with
(Id. ¶ 62).
When Plaintiff came to the door, she saw a
U-Haul truck driving down her driveway, which her husband had
asked Mr. Brown to drive off their property.
Mr. Brown came
back to inform Plaintiff that he was there to get “his stuff”
Plaintiff was “shocked,” “began hyperventilating,” and told Mr.
Brown that they should have given her notice.
(Id. ¶¶ 63, 64).
The men then removed all Local IBEW materials from Plaintiff’s
home to the new Local IBEW office, approximately 80 miles away
from Plaintiff’s home.
(Id. ¶ 66).
Plaintiff alleges that, by the actions of Mr. Brown and Mr.
Albano, Defendant forced her to resign on July 6 and breached
her employment agreement by terminating her employment without
just cause and failing to pay her earned vacation balance and
pension contributions upon termination.
(Id. ¶¶ 67, 70, 71).
Plaintiff contends that she is owed $9,569.20 in unused vacation
$51,876.00 for overtime worked during the period of July 2013
through July 2016.
(Id. ¶¶ 54, 72).
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 5 of 14
On January 16, 2017, Plaintiff filed a complaint alleging
violations of the Fair Labor Standards Act (the “FLSA”), 29
U.S.C. § 201, et seq. (Count I); the Maryland Wage and Hour Law
(the “MWHL”), Md.Code Ann., Lab. & Empl. § 3-401, et seq. (Count
“MWPCL”), Md.Code Ann., Lab. & Empl. § 3-501, et seq. (Count
Plaintiff also alleges breach of contract (Count IV).
(ECF No. 1).
On March 17, Defendant filed the pending motion to
dismiss or, in the alternative, for summary judgment.
Plaintiff submitted her opposition on March 31 (ECF No.
11), and Defendant replied on April 14 (ECF No. 12).
Standard of Review2
Defendant has moved to dismiss or for summary judgment.
Because both parties rely extensively on matters outside the
Plaintiff states in her opposition that “Defendant’s
Motion is premature as Plaintiff is entitled to take discovery,”
and that “Plaintiff ‘should be given the opportunity to discover
information that is essential to [her] opposition.’”
11-10, at 15-16). However, Plaintiff has not filed a Rule 56(d)
affidavit and has failed to explain in her opposition why “for
specified reasons, [she] cannot present facts essential to
justify [her] opposition,” without needed discovery.
Fed.R.Civ.P. 56(d); Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996) (“[A] party may not simply assert .
. . that discovery was necessary and thereby overturn summary
judgment when it failed to comply with the requirement of [Rule
56(d)] to set out the reasons for the need for discovery.”
Therefore, the court will consider
Defendant’s motion for summary judgment.
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 6 of 14
See Walker v. True, 399 F.3d 315, 319 n.2 (4th
Offen v. Brenner, 553 F.Supp.2d 565, 568 (D.Md.
A court may enter summary judgment only if there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v.
Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is
inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
showing there is a genuine issue for trial.’”
Bouchat v. Balt.
Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003)
(quoting Fed.R.Civ.P. 56(e)).
“A mere scintilla of proof . . .
Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
judgment may be granted.”
“If the evidence is
Liberty Lobby, 477 U.S. at 249–50.
At the same time, the court must construe
the facts that are presented in the light most favorable to the
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 7 of 14
party opposing the motion. See Scott v. Harris, 550 U.S. 372,
378 (2007); Emmett, 532 F.3d at 297.
FLSA and MWHL Claims
The FLSA “requires that employees be paid time and a half
for work over forty hours a week.”
Shockley v. City of Newport
The MWHL has a similar overtime wage requirement.
See Md.Code Ann., Lab. & Empl. §§ 3–415(a), 3–420(a).
statutes also rely on regulations to define and interpret the
employees in a bona fide . . . administrative, or professional
Drubetskoy v. Wells Fargo Bank, N.A., No. CCB–13–
2196, 2013 WL 6839508, at *7 (D.Md. Dec. 20, 2013); see also 29
See Md.Code Regs. 09.12.41.01.
Thus, an employee
who qualifies for the administrative exemption under the FLSA
will also qualify for that exemption under the MWHL.
The FLSA exemptions “are affirmative defenses to an FLSA
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 8 of 14
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 Md., 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.”
997 F.2d at 21; see also Clark v. J.M. Benson Co., Inc., 789
F.2d 282, 286 (4th Cir. 1986).
Defendant contends that Plaintiff is an exempt employee who
is not entitled to overtime pay under the FLSA and MWHL.
No. 8-1, at 18).
The Secretary of Labor has adopted regulations
that set forth a three-part test for determining whether an
employee is subject to the administrative exception: (1) the
employee must be “compensated on a salary or fee basis at a rate
of not less than $455 per week;” (2) the employee’s primary duty
must consist of “the performance of office or non-manual work
operations of the employer or the employer’s customers;” (3) the
employee’s “primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.”
29 C.F.R. § 541.200(a); Md.Code Ann., Lab. & Empl. § 3–403(a)(1)
(including the administrative exemption in the MWHL).
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 9 of 14
granted in Defendant’s favor because Plaintiff was an hourly
employee not exempt from overtime.
(ECF No. 11, at 2).
performed, they are covered by the wage and hour laws.”
“An employee [is] considered to be paid
on a ‘salary basis’ . . . if the employee
regularly receives each pay period . . . 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(a)
Some deductions are
permissible, such as for certain absences
for at least one full day, as “penalties
imposed in good faith for infractions of
safety rules of major significance,” and
“for unpaid disciplinary suspensions of one
or more full days imposed in good faith for
infractions of workplace conduct rules . . .
applicable to all employees.”
4733282, at *2 (D.Md. Sept. 12, 2016).
asserts that Plaintiff was “earning well over $455.00 per week”
during the three years before she resigned in 2016.
(ECF No. 8-
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 10 of 14
i.e., whether she was paid on a “salary basis.”
(ECF No. 11-10,
Plaintiff presents evidence that she was an hourly
“[s]he was always paid an hourly wage and not a salary,” that
“[her] paystubs always indicated [she] was an hourly employee
supervisor that if she worked less than 8 hours in a day, she
needed to use vacation time or her pay would be docked (ECF No.
11-1 ¶¶ 5, 8); (2) former Local IBEW Business Manager Lillian
Firmani’s declaration that she hired Plaintiff at an hourly rate
of $10.50 and “at all times, [Plaintiff] was an hourly employee
. . . and was paid an hourly rate” (ECF No. 11-2 ¶¶ 8, 10); (3)
former Local IBEW Treasurer Lynn Allison’s declaration that at
all times during his employment between 2006 and 2013 Plaintiff
was considered and paid as an hourly employee (ECF No. 11-3 ¶¶
5, 11); and (4) a payroll list of all Local IBEW employees,
listing Plaintiff as an hourly, rather than a salaried, employee
Plaintiff and Ms. Firmani’s credibility and argues that their
declarations “stating that [Plaintiff] would be ‘docked’ wages
if she took time off, are simply untrue,” attaching a payroll
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 11 of 14
summary report to show that Plaintiff “was never docked wages.”
(ECF Nos. 12, at 7; 12-2).
At the summary judgment stage, the
evidence,” Edell & Assocs., P.C. v. Law Offices of Peter G.
evidence in the light most favorable to the nonmoving party,
Emmett, 532 F.3d at 297.
Additionally, Ms. Firmani stated in
her declaration that Plaintiff rarely worked less than 40 hours
a week and, if she did, she would use vacation and sick leave.
Therefore, the report’s failure to reflect a dock in wages does
not prove by clear and convincing evidence that Plaintiff was a
Because this fact is material to whether
Plaintiff was an exempt employee not entitled to overtime pay,
it alone is sufficient to defeat Defendant’s motion for summary
The MWPCL allows recovery of unpaid wages.
Peters v. Early Healthcare Giver, Inc., 439 Md. 646, 654 (2014)
(holding that “both the [M]WHL and the [M]WPCL are vehicles for
recovering overtime wages”); Marshall v. Safeway, 437 Md. 542,
employee a cause of action against an employer, not just for the
failure to pay wages on time, but also for the “refusal of
employers to pay wages lawfully due”).
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 12 of 14
Defendant asserts that it is entitled to summary judgment
on Plaintiff’s MWPCL claim because she was an exempt employee
under the FLSA and MWHL and thus is not entitled to recover
genuine dispute of material fact exists as to whether Plaintiff
was an exempt employee.
Therefore, Defendant is not entitled to
summary judgment on Plaintiff’s MWPCL claim.
Breach of Contract Claim
Defendant breached its employment agreement by (1) failing to
provide medical insurance to Plaintiff and pay for Plaintiff’s
medical premiums; (2) failing to pay Plaintiff for all unused
vacation time upon termination; (3) failing to credit Plaintiff
all pension contributions; and (4) terminating her employment
without just cause.
(ECF No. 1, at 14-15).
Defendant first argues that Plaintiff’s breach of contract
different remedy for the same alleged violations,” and thus is
Plaintiff’s breach of contract claim, outlined above, does not
Therefore, Plaintiff’s claim is not preempted by the FLSA and
will not be dismissed on that basis.
See Alvarez-Soto v. B.
Frank Joy, LLC, 2017 WL 2731300, at *7 (D.Md. June 23, 2017)
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 13 of 14
(dismissing as preempted breach of contract claim for unpaid
regular and overtime wages); Anderson v. Sara Lee Corp., 508
F.3d 181, 193 (4th Cir. 2007) (dismissing as preempted state
defendant] violated the FLSA” and “essentially require the same
proof as claims asserted under the FLSA itself”).
Defendant next argues that Plaintiff’s breach of contract
claim “must be dismissed as a matter of law” because “Plaintiff
was an at-will, exempt, non-contractual employee. So, there can
be no breach of an employment contract.”
(ECF No. 8-1, at 27).
Defendant’s evidence that Plaintiff was “at all times during
[her] employment with IBEW Local” a non-contractual employee is
the affidavit of Mr. Brown stating such.
(ECF No. 8-2 ¶¶ 17,
Plaintiff has presented evidence, however, that in 1994
included a term that Plaintiff could only be fired for just
(ECF Nos. 11-1 ¶ 22; 11-2 ¶¶ 29-31).
genuine dispute of material fact exists and Defendant is not
entitled to judgment as a matter of law.
Lastly, Defendant argues that Plaintiff waived Defendant’s
offer of a medical plan, was credited all pension contributions
owed to her, and is not entitled to payment for any vacation
time because she used all the time allotted to her.
1, at 27-28).
(ECF No. 8-
Because a genuine dispute of material fact exists
Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 14 of 14
as to the existence of an employment agreement and thus its
potential terms, Defendant’s additional arguments will not be
addressed at this time and its motion for summary judgment will
For the foregoing reasons, the motion for summary judgment
filed by Defendant is denied.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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