Peters v. International Brotherhood of Electrical Workers Local Union No. 1200

Filing 13

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
:
VALERIE PETERS
:
v.

:

Civil Action No. DKC 17-0134

:
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION :
NO. 1200
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment case is a motion to dismiss or, in the alternative,
for

summary

Brotherhood

judgment
of

filed

Electrical

by

Defendant

Workers,

(“Defendant” or “Local IBEW”).

Local

(ECF No. 8).

International

Union

No.

1200

The issues have

been fully briefed, and the court now rules, no hearing being
deemed necessary.
the

motion

to

Local Rule 105.6.

dismiss,

construed

For the following reasons,
as

a

motion

for

summary

freelance

members

judgment, will be denied.
I.

Background
A.

Factual Background1

Defendant

represents

broadcasting

and

working for TV stations, production houses, and sporting events
across the nation.
1

(ECF No. 1 ¶ 14).

Plaintiff began working

Unless otherwise noted, the facts outlined
construed in the light most favorable to Plaintiff.

here

are

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
hourly.
accepted

(Id. ¶¶ 32, 33).
an

employment

Upon hire, Plaintiff was offered and

agreement

that

included

terms

for

a

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).
accepted

an

On May 15, 2005, Plaintiff was offered and she
updated

employment

agreement,

which

included

the

same terms as the prior agreement and additional terms for an
employee

pension

severance terms.
included

the

benefit,

amended

(Id. ¶¶ 19, 20).

term

that

vacation

and

updated

The updated agreement still

Plaintiff’s

terminated for “just cause.”

pay,

employment

could

only

be

(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).
Assistant

In January 2015, Plaintiff was promoted from Office
to

Production

increased to $25.45.

Coordinator,

(Id. ¶¶ 17, 36).

and

her

hourly

rate

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.
2

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
multiple duties.
was

not

tasked

addition

to

Instead, Mr. Albano hired an accountant who
with

working

assisting
at

Plaintiff.

least

8

hours

(Id.

a

day

¶

59).

Monday

In

through

Friday, Plaintiff was required to work 8 hours a day on Saturday
and

Sunday

different

approximately

TV

sporting

(Id. ¶ 37, 38).

30

weekends

a

staffed

by

events

year

to

Local

assist

IBEW

with

members.

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
2015.

(Id. ¶¶ 23, 27).

Albano

for

the

responded

that

In October 2015, Plaintiff asked Mr.

status

of

her

“they

lost

medical

the

plan,

and

paperwork.”

Mr.

(Id.

Albano
¶

28).

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.
Brown,

Mr.

Albano’s

Albano,

son,

Plaintiff’s

Mr.

arrived

husband

That same day, around 11 a.m., Mr.

Albano’s
at

answered

son,

and

Plaintiff’s
the
3

door

and

a

friend

home
the

of

Mr.

unannounced.
men

demanded

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,
supplies,

and

equipment.

Plaintiff’s

husband

told

the

men,

“[Plaintiff] is unavailable at the moment and will be right with
you.”

(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”
and

that

he

was

relocating

the

Local

IBEW

office.

(Id.).

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
time,

$2,646.80

in

pension

contributions,

and

approximately

$51,876.00 for overtime worked during the period of July 2013
through July 2016.

(Id. ¶¶ 54, 72).

4

Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 5 of 14

B.

Procedural Background

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
II);

and

the

Maryland

Wage

Payment

and

Collection

Law

(the

“MWPCL”), Md.Code Ann., Lab. & Empl. § 3-501, et seq. (Count
III).

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.
8).

(ECF No.

Plaintiff submitted her opposition on March 31 (ECF No.

11), and Defendant replied on April 14 (ECF No. 12).
II.

Standard of Review2
Defendant has moved to dismiss or for summary judgment.

Because both parties rely extensively on matters outside the
pleadings,

the

court

will

treat

2

the

motion

as

a

motion

for

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.’”
(ECF No.
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.
See
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.”
(citations omitted)).
Therefore, the court will consider
Defendant’s motion for summary judgment.
5

Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 6 of 14

summary judgment.
Cir. 2005);

See Walker v. True, 399 F.3d 315, 319 n.2 (4th

Offen v. Brenner, 553 F.Supp.2d 565, 568 (D.Md.

2008).
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.

Fed.R.Civ.P. 56(a);

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

Cir. 2001).

“A 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

showing there is a genuine issue for trial.’”

specific

facts

Bouchat v. Balt.

Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003)
(quoting Fed.R.Civ.P. 56(e)).
will

not

suffice

to

prevent

“A mere scintilla of proof . . .
summary

judgment.”

Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
merely

colorable,

or

is

judgment may be granted.”
(citations omitted).

not

significantly

Peters

v.

“If the evidence is
probative,

summary

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
6

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.
III. Analysis
A.

FLSA and MWHL Claims

The FLSA “requires that employees be paid time and a half
for work over forty hours a week.”
News,

997

F.2d

207(a)(1)).

18,

21

(4th

Shockley v. City of Newport

Cir.

1993)

(citing

29

U.S.C.

§

The MWHL has a similar overtime wage requirement.

See Md.Code Ann., Lab. & Empl. §§ 3–415(a), 3–420(a).

Both

statutes also rely on regulations to define and interpret the
exemption provision.
“The

FLSA,

employees

from

and,
the

by

extension,

requirements

of

the

MWHL,

overtime

exempt

wages,

certain

including

employees in a bona fide . . . administrative, or professional
capacity.”

Drubetskoy v. Wells Fargo Bank, N.A., No. CCB–13–

2196, 2013 WL 6839508, at *7 (D.Md. Dec. 20, 2013); see also 29
U.S.C.

§

213(a)(1);

“Administrative
regulations
regulations.

Md.Code

capacity”

governing

Ann.,

has

the

the

MWHL

as

Lab.

&

same
it

Empl.
meaning

does

See Md.Code Regs. 09.12.41.01.

§

3–403(1).
under

under

the

the
FLSA

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
claim,”

and

they

must

“be

narrowly
7

construed

against

the

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.”

Shockley,

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).

(ECF

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
directly

related

to

the

management

or

general

business

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).

8

Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 9 of 14

Plaintiff

argues

that

summary

judgment

should

not

be

granted in Defendant’s favor because Plaintiff was an hourly
employee not exempt from overtime.
employees

are

guaranteed

actually

salary

paid

basis,

on

(ECF No. 11, at 2).
an

regardless

hourly
of

the

rather
kind

than

of

Kentwood

Dev.

Co.,

549

F.Supp.

480,

484

a

duties

performed, they are covered by the wage and hour laws.”
v.

“If

Donovan

(D.Md.

1982)

(citation omitted).
“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)
(emphasis added).
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 . . .
imposed
pursuant
to
a
written
policy
applicable to all employees.”
Id. §
541.602(b).
Kim

v.

Confidential

Studio,

Inc.,

No.

PWG-15-410,

2016

WL

4733282, at *2 (D.Md. Sept. 12, 2016).
In
whether

its

motion

Plaintiff

for
was

summary
paid

on

judgment,
a

“salary

without

addressing

basis,”

Defendant

asserts that Plaintiff was “earning well over $455.00 per week”
during the three years before she resigned in 2016.
9

(ECF No. 8-

Case 8:17-cv-00134-DKC Document 13 Filed 10/06/17 Page 10 of 14

1,

at

21).

Defendant

Plaintiff

failed

administrative

to

first
prove

exemption

by

argues
an

in

her

essential

clear

and

element

convincing

i.e., whether she was paid on a “salary basis.”
at 17-18).
employee,

opposition
of

that
the

evidence

–

(ECF No. 11-10,

Plaintiff presents evidence that she was an hourly
including:

(1)

Plaintiff’s

sworn

declaration

that

“[s]he was always paid an hourly wage and not a salary,” that
“[her] paystubs always indicated [she] was an hourly employee
and

included

hours

worked,”

and

that

she

was

told

by

her

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
(ECF

No.

11-5,

at

1-2).

In

its

reply,

Defendant

attacks

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
10

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).
court

“may

not

make

At the summary judgment stage, the

credibility

determinations

or

weigh

the

evidence,” Edell & Assocs., P.C. v. Law Offices of Peter G.
Angelos,

264

F.3d

424,

435

(4th

Cir.

2001),

and

views

all

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
salaried employee.

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
judgment.
B.

MWPCL Claim

The MWPCL allows recovery of unpaid wages.

See, e.g.,

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,
561-62

(2014)

(holding

that

the

MWPCL

generally

provides

an

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”).
11

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
unpaid

overtime

wages

under

the

MWPCL.

As

noted

above,

a

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.
C.

Breach of Contract Claim

Plaintiff

alleges

in

her

breach

of

contract

claim

that

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
claim

is

“duplicative

of

Plaintiff’s

FLSA

claim,”

“seeks

a

different remedy for the same alleged violations,” and thus is
“preempted

and

must

be

dismissed.”

(ECF

No.

8-1,

at

28).

Plaintiff’s breach of contract claim, outlined above, does not
seek

unpaid

overtime

wages

as

sought

in

her

FLSA

claim.

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)
12

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
common

law

claims

that

“depend

on

establishing

that

[the

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.
18).
and

(ECF No. 8-2 ¶¶ 17,

Plaintiff has presented evidence, however, that in 1994
2005,

she

entered

into

an

employment

agreement,

which

included a term that Plaintiff could only be fired for just
cause.

(ECF Nos. 11-1 ¶ 22; 11-2 ¶¶ 29-31).

Therefore, a

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
13

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
be denied.
IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Defendant is denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

14