US Department of Labor, Secretary of Labor v. Unitil Service Corporation

Filing 29

///ORDER granting 21 Motion for Summary Judgment; denying 19 Motion for Summary Judgment; denying 20 Motion for Summary Judgment. No claims remain in this suit. The clerk of court is directed to enter judgment in favor of Unitil Service and close the case. So Ordered by Chief Judge Landya B. McCafferty. (gla)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

U.S. Dep’t of Labor, Secretary of Labor
v.

Civil No. 19-cv-693-LM
Opinion No. 2021 DNH 177 P

Unitil Service Corp.

ORDER
The United States Secretary of Labor (“DOL”) brings this Fair Labor
Standards Act (“FLSA”) suit against Unitil Service Corporation. DOL alleges that
Unitil Service violated FLSA’s overtime compensation and recordkeeping
requirements with respect to persons Unitil Service employed as Electric
Distribution Dispatchers (“Dispatchers”) and Senior Gas Controllers (“Controllers”).
Before the court are DOL’s and Unitil Service’s cross-motions for summary
judgment (doc. nos. 19, 20, and 21). The parties do not dispute that Dispatchers
and Controllers have worked overtime hours but were not paid overtime wages for
that work, nor that Unitil Service failed to create and maintain records of the hours
those employees worked. Rather, Unitil Service contends that Dispatchers and
Controllers are exempt from FLSA’s requirements because they are administrative
employees. In contrast, DOL argues that the employees are not administrative
employees because their primary duties are not directly related to Unitil Service’s
general business operations. DOL also argues that genuine disputes of material
fact exist as to whether the employees exercise discretion and independent

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judgment as part of their primary duties. The parties also dispute the admissibility
of the declaration of DOL Investigator Divya Sood.
For the reasons set forth below, the court grants Unitil Service’s motion for
summary judgment (doc. no. 21) and denies DOL’s motion for summary judgment
(doc. nos. 19, 20).

LEGAL STANDARD
A moving party is entitled to summary judgment if it “shows that there is no
genuine dispute as to any material fact and [that it] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Joseph v. Lincare, Inc., 989 F.3d 147, 157 (1st
Cir. 2021). The court construes all facts and reasonable inferences in the light most
favorable to the nonmoving party. Thompson v. Gold Medal Bakery, Inc., 989 F.3d
135, 141 (1st Cir. 2021). The court treats cross-motions for summary judgment
separately, drawing inferences in the nonmoving party’s favor. AJC Intern., Inc. v.
Triple-S Propiedad, 790 F.3d 1, 3 (1st Cir. 2015). To generate a genuine dispute,
evidence must be “more than merely colorable” and it must be “significantly
probative” of the pertinent fact, meaning that a reasonable jury might be able to
find in the nonmovant’s favor. See Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853
(1st Cir. 2016); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

BACKGROUND
Unitil Service is a wholly-owned subsidiary of Unitil Corporation. Unitil
Corporation, through several subsidiary corporations, purchases electricity and
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natural gas and distributes it to residential, commercial, and industrial users in
New Hampshire, Massachusetts, and Maine. Unitil Corporation and its
subsidiaries own and maintain physical infrastructure, such as electrical wires,
switches, and substations and natural gas pipelines. Unitil Corporation and its
subsidiaries neither own power plants nor generate any electricity or produce any
natural gas themselves.
The Unitil Corporation umbrella includes a collection of wholly-owned
subsidiaries that play distinct roles in the distribution of electricity and natural gas.
Unitil Service’s role under the Unitil Corporation umbrella is to provide “a variety
of administrative and professional services on a centralized basis to affiliated Unitil
companies, including regulatory, financial, accounting, human resources,
engineering, operations, technology, energy management and management
services.” Doc. no. 20-6 at 7. Pertinent to this FLSA suit, Unitil Service employs
workers who operate centralized control rooms for its customers. Unitil Service’s
customers are other subsidiaries of Unitil Corporation that own the physical
infrastructure.
DOL asserts that Unitil Service has violated FLSA as to two categories of
employees who work in its centralized control rooms: Dispatchers and Controllers.
Unitil Service does not pay Dispatchers or Controllers a standard overtime rate
(one- and one-half times their hourly wage) when they work more than 40 hours in
a workweek. Rather, Unitil Service classifies Dispatchers and Controllers as
“exempt” under FLSA on the ground that they are administrative employees. DOL,

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however, asserts that this classification is erroneous and seeks backpay for certain
employees who worked overtime hours as Dispatchers or Controllers in 2017 and
2018,1 in addition to an injunction prohibiting Unitil Service from future FLSA
violations.
Whether Dispatchers or Controllers are administrative employees—and
therefore exempt from FLSA’s overtime compensation provisions—turns on Unitil
Service’s ability to establish three elements defined by DOL regulations: (1)
sufficient compensation; (2) the employees’ primary job duties are performance of
non-manual or office work “directly related” to Unitil Service’s management or
general business operations; and (3) the employees’ primary job duties include the
exercise of discretion and independent judgment with respect to matters of
significance. See 29 C.F.R. § 541.200(a); infra p.19. Since the parties agree that the
sufficient compensation element has been met, the matter depends on the nature of
Dispatchers’ and Controllers’ job duties.

I.

Duties of Dispatchers
Unitil Service developed a general “position description” for Dispatchers in

August 2013, which describes their job duties as follows:
Provide[ ] 24/7 monitoring and control of the electric transmission and
distribution systems for all Unitil Electric Distribution Operating
Companies (DOC’s); provide outage management response and
The Dispatchers are identified as Michael Bechard, Edward Diaz, Peter
Leger, Scott Nichol, and Michael Pouliot, and the Senior Gas Controllers are
identified as Rene Bordeleau, Jason Brooks, Samantha Keach, Scott Lacouture, and
Ryan Tardif.
1

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reporting for all electric DOC’s; and perform tasks associated with
compliance with regulatory requirements including but not limited to
NERC (National Energy Regulatory Commission), MDPU
(Massachusetts Department of Public Utilities), NHPUC (New
Hampshire Public Utilities Commission) that would include reporting,
emergency response, notifications and questions regarding the electric
systems. Monitor electric [software alarm] systems and take necessary
actions to respond to current system conditions.
Doc. no. 20-9 at 2. The position description states that about 60 percent of a
dispatcher’s time is dedicated to “monitoring and control of electric systems and
emergency response”; 15 percent is dedicated to “communications and notifications,”
which includes “communicat[ing] with company personnel, municipal and
regulatory representatives, customers, and contractors on a regular basis.”; and the
remaining 25 percent of the position is dedicated to “regulatory reporting
compliance” and “documentation.” Id.2
James Goudreault, manager of electric dispatch and substations at Unitil
Service and a former Dispatcher, testified that the purpose of the Dispatcher
position is to “provide centralized support services” to Unitil Service’s customers,
which are the “electric operating companies” that own and maintain physical
infrastructure used to transmit electricity. Goudreault Depo. at 22.3 Dispatchers

Unitil Service updated the position description in June 2018. The updated
position description makes minor changes to the description. Those changes are not
material for purposes of DOL or Unitil Service’s summary judgment motions.
2

The parties filed several exhibits containing excerpts of Goudreault’s
deposition. E.g., doc. nos. 20-7, 21-10, and 24-3. For ease of reference, citations to
Goudreault’s deposition use the page number of the deposition transcript, which are
consistent throughout the record, rather than the page numbers generated by the
court’s electronic filing system.
3

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do not “actively control power flow.” Id. at 25. Rather, one of the “primary
responsibilities” of a Dispatcher is to “monitor and manage” Unitil Service’s
software systems that track issues that arise on the physical grid. Id. at 34.
To aid with this task, Unitil Service provides “procedures” to Dispatchers
that are compiled in a written manual.4 Goudreault testified, however, that
Dispatchers are permitted to deviate from those procedures in “certain
circumstances” if they can “determine an alternate way to meet the intent of the
procedure and still accomplish the task without following the procedure to the
letter.” Id. at 60. Goudreault stated that Dispatchers deviate from the procedures
“on a daily basis” in response to alarms delivered on their computers through
software such as the outage management system and the supervisory control and
data acquisition (“SCADA”) system. Id. at 61, 63; doc. no. 21-13 ¶ 15.
If there is an outage or other problem, Unitil Service’s software (either
SCADA or the outage management system) sends the Dispatcher “a visible and
audible” alarm. Goudreault Depo. at 41. When a problem arises, Dispatchers
determine its severity, ascertain which, if any, protective devices (such as breakers)
have tripped, and isolate the area near the fault from the rest of the electrical grid
to allow for safe maintenance. Id. at 34. The Dispatcher may send a field crew to
the area or call local first responders, depending on the specific issue and whether a

Unitil Service filed the pertinent procedures under seal, which the court has
reviewed.
4

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life safety hazard has been reported. The Dispatcher also documents those calls
and incidents.
The SCADA software system, which the Dispatchers use alongside the outage
management system to monitor the condition of the physical electrical
infrastructure, “may generate hundreds of alarms in a single day,” some of which
may be “nuisance alarm[s]” while others may require an immediate or emergency
response. Id. at 63. If the Dispatcher determines that the alarm requires an
immediate response, they may, for example, dispatch personnel for field
investigation and contact local emergency response personnel. If the Dispatcher
determines that the alarm does not require an immediate response, potential
responses include closely monitoring the situation and notifying other personnel to
flag the issue for a follow-up investigation. Some alarms may not require any
response, immediate or otherwise. It is “up to the dispatcher to evaluate real-time
system conditions from the SCADA system to determine whether or not the
alarm . . . warrants an immediate response, or is a nuisance alarm, or could just be
a momentary change of state that has resolved itself.” Id.
Dispatchers can also use SCADA to control the physical infrastructure, as
SCADA generally allows them to flip switches and breakers on the electrical grid.
Some physical devices, however, are not accessible to Dispatchers through SCADA.
In those cases, Unitil Service sends field crews to operate the devices. In addition,
while Dispatchers can use SCADA to “approximate” where a problem is, a crew
must go into the field to confirm the location. Therefore, the Dispatcher passes the

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information from SCADA to a field crew to “minimize” the locations that the field
crew must search. Id. at 110. The field crew determines how to fix the problem.
In addition to their responsibilities during emergencies, Dispatchers deenergize pieces of physical equipment so field crews can safely conduct planned
maintenance. Specifically, Dispatchers operate switches to isolate physical
equipment from the rest of the electrical grid so that the equipment can be serviced
by field crews while ensuring that customers still receive electrical service.
Dispatchers interact with field crews daily to respond to outages and maintain lines
of communication during typical construction and maintenance. Dispatchers also
interact with field crews and assist in “troubleshooting” non-outage problems. Id. at
42. Dispatchers, however, do not go in the field to perform their normal activities.
Finally, Dispatchers are expected to monitor the electrical grid during normal
operation to ensure voltage and power levels are maintained within certain limits.
Dispatchers monitor and control devices that affect these levels.
A supervisor is always available to the Dispatchers working in the central
control room, either physically in the room or by telephone. Goudreault testified
that Dispatchers communicate with their supervisor “regularly” during “normal
business hours,” which are weekdays from seven a.m. to three p.m., but “very
rare[ly]” after those hours or on weekends. Id. at 64. The supervisor in the room
can see all the same alarms that Dispatchers can see. Goudreault noted that there
is, however, only one person employed to supervise the Dispatchers and that the

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room operates 24 hours, 7 days per week, such that “most of the working hours of
the Dispatchers are unsupervised.” Id. at 65.

II.

Duties of Controllers
Turning to the Controllers, Unitil Service created a “position description” for

the Controller position dated April 2015. It states as follows:
This position has primary oversight responsible for the operation and
control of the Company’s gas transmission distribution system; and the
managing of pipeline and peak shaving supplies. The incumbent must
ensure that the system is operated within the constraints of Federal,
State and Company codes and standards as well [as] tariff constraints
for the receipt and control of the system supply. This position also
provides training and daily guidance to subordinate Gas Controllers
and Field Services Coordinator.
Doc. no. 20-11 at 2. Unitil Service’s position description states that 60 percent of
the position is monitoring and controlling gas pipeline systems, supporting
“processes related to market requirements for Unitil’s transmission and local
distribution companies,” and “[p]rovid[ing] general control, confirmation,
scheduling, balancing and live gas operations.” Id. Thirty percent of the position is
interpreting, organizing, and executing “complex assignments,” assisting
supervisors with training, coordination, and review of work for subordinate Gas
Controllers,5 and estimating personnel needs, scheduling and assigning work, and

Despite the position description’s references to subordinate Gas Controllers,
DOL and Unitil Service agree that Controllers did not supervise anyone.
5

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managing projects of a complex nature. Id. The remaining ten percent of work is
“[b]ack up to Field Services Coordinator as needed and off hours.” Id.6
Mark Dupuis, manager of gas systems operations for Unitil Service, testified
that Unitil Corporation receives natural gas from “upstream suppliers” that feed
into the gas transmission system that Unitil Corporation and its subsidiaries own
and maintain. Doc. no. 20-8 at 8. Individual lines owned by Unitil Corporation and
its subsidiaries feed service lines to residential, industrial, and commercial end
users.
Unitil Corporation must lower the pressure of gas that flows into its
transmission system to an amount that can be safely received by end users. Dupuis
testified that Controllers monitor the inflow of natural gas into the transmission
system to ensure that the pressure of the inflowing gas complies with state and
federal operating regulations. Dupuis testified that, as part of their responsibility
to monitor the inflow of natural gas, Controllers must “forecast supply and demand
based on operational conditions as well as weather conditions.” Id. at 11. If a
Controller identifies an issue while monitoring the system, they must “either direct
supplemental supply operations” or contact Unitil Corporation’s suppliers to try to
increase the inflow of gas. Id. Dupuis added that the Controllers must also monitor
the pressure of gas flow through the entire pipeline, which is designed to operate

An updated position description from April 2019 changes the name of the
position to “Gas Controller I” and makes additional minor changes not material to
the present issues.
6

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only within a defined range of pressures. Controllers are further responsible for
monitoring and assessing alarms that appear on their software system and making
decisions about whether first responders or technicians must be dispatched to
remedy issues.
In terms of operating physical components of the system, Controllers can use
software to increase or decrease gas flow into the transmission system. However,
they have neither the ability nor permission to shut down the system. Similar to
Dispatchers, Controllers do not tell field crews how to fix issues in the field.
Instead, Controllers provide field crews with supporting information about the issue
to help them fix the problem.

III.

Investigator Divya Sood’s Declaration
In support of its objection to Unitil Service’s motion for summary judgment,

DOL submitted the declaration of Divya Sood, who conducted the investigation in
this case on DOL’s behalf. In her declaration, Sood avers that, between March and
October 2018, she interviewed four Dispatchers and two Controllers. After the
interviews, Sood prepared an “employee personal interview statement” based on
each interview. Sood sent each employee their respective “employee personal
interview statement” and requested their signature on it. Neither of the two
Controllers whom Sood interviewed signed Sood’s prepared statement and only one
of the four dispatchers signed.

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DOL did not attach the “employee personal interview statements” as
evidence to support its summary judgment motion. Instead, the “employee personal
interview statements” are incorporated into Sood’s declaration as “sample excerpts.”
The sample excerpts are written from the employees’ point of view, even though
they are (with one exception)7 drawn from documents unattested to by the
employees. Unitil Service challenges the admissibility of the “sample excerpts” and
of the statements made by its employees as relayed by Sood.
According to Sood, an anonymous Dispatcher identified as “EDD 1” told her
that the Dispatchers’ supervisor would decide “what to do” and that switching
orders needed approval from other divisions before they could be executed. Doc. no.
24-1 at 2. Similarly, a Dispatcher identified as “EDD 2” told Sood that Dispatchers
“don’t make any decisions in this work—we’re just told what to do” and that “we
don’t make decisions here.” Id. at 3. Sood’s declaration does not contain any
additional context about what EDD 2 meant about not making “any decisions.”
EDD 2 and another Dispatcher identified as “EDD 3” acknowledged that if
changes needed to be made to a switching order or if something unusual happens
while a switching order is being executed, Dispatchers have the authority to halt
the switching and to notify the relevant manager or supervisor about the issue to
receive further instructions. The Dispatchers who were interviewed said they did
not have authority to make changes to switching orders.

Sood’s declaration does not state which “sample excerpt” was taken from the
“employee personal interview statement” that was signed.
7

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EDD 3 also told Sood that they have “a bunch of alarms come in all the time,”
most of which are due to “communication failures.” Id. at 3. The Dispatcher said
that depending on the type of alarm, the Dispatcher might send an e-mail to
“appropriate folks” (for unspecified “unusual alarms”) or dispatch crews (for breaker
trips and power outages). Id. EDD 3 stated that Dispatchers have “guidelines” on
how to respond to each type of alarm. Id.
The Dispatcher identified as “EDD 4” told Sood that Unitil had “written
policies and procedures that cover whenever we might have to dispatch someone or
any other situation we may encounter. . . . [T]here’s a procedure for just about any
situation that occurs . . . .” Id. at 3-4. That Dispatcher also told Sood that
everything was contained in a manual “that’s so cumbersome that it’s almost
useless” and that the Dispatchers have “parsed out the more common things” and
that Unitil Service sends out e-mail memos as reminders about what to do in
certain circumstances or in situations that may arise. Id. at 4.
The Senior Gas Controller identified as “SGC 1” told Sood that “[t]here’s a
procedure of a procedure for everything.” Id. at 4. A Controller identified as “SGC
2” told Sood that “[t]he situations where we can act immediately are fairly black
and white.” Id. In all other situations, SGC 2 stated, “we do consult a supervisor or
manual, and also rely on our internal knowledge of weather and other factors.” Id.
SGC 2 provided the following example of how a Controller might handle a certain
situation:
[I]n the summer, if a heater goes out for one of the pipes, we might not
notify a supervisor until the morning, but in the winter, we would. Or
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depending on the station and its importance, it could necessitate an
immediate call out instead of a supervisor call. Within certain sets of
circumstances, we take one set of actions, with other circumstances, we
take other actions.
Id.
DISCUSSION
The court addresses Unitil Service’s challenges to the admissibility of Sood’s
declaration first, and whether Dispatchers and Controllers fall within FLSA’s
administrative employee exemption second.

I.

Admissibility of Investigator Sood’s Declaration
Unitil Service contends that the statements by its employees contained in

Sood’s declaration are inadmissible hearsay; that only one of the several anonymous
employees quoted by Sood signed their “employee personal interview statement”;
that DOL cannot use statements made by anonymous sources as evidence without
disclosing their identities; and that DOL should have provided the entire “employee
personal interview statements” to the court instead of “sample excerpts.” DOL
objects to the exclusion of Sood’s declaration on the grounds that the “sample
excerpts” are not hearsay under Federal Rule of Evidence 801(d)(2)(D) and that
Unitil Service never moved to compel DOL to disclose the identities of the
anonymous employees.

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A.

Hearsay

Impermissible hearsay cannot be considered in support of or in opposition to
a summary judgment motion. Davila v. Corporacion De Puerto Rico Para La
Difusion Publica, 498 F.3d 9, 17 (1st Cir. 2007). An out-of-court statement offered
for the truth of the matter asserted is not hearsay if it is “offered against an
opposing party” and “was made by the party’s agent or employee on a matter within
the scope of that relationship and while it existed . . . .” Fed. R. Evid. 801(d)(2)(D).
The statement must concern “a matter within the scope” of the declarant’s agency
or employment, but the making of the statement itself does not need to be within
the declarant’s agency. See Larch v. Mansfield Mun. Elec. Dep’t, 272 F.3d 63, 72-73
(1st Cir. 2001); see also Fed. R. Evid. 801(d)(2)(D) Advisory Committee Notes (“A
substantial trend favors admitting statements related to a matter within the scope
of the agency or employment.”). In other words, whether making statements to a
DOL investigator is “within the scope” of the person’s employment with Unitil
Service does not matter because the question under Rule 801(d)(2)(D) is only
whether the statements themselves concerned matters within the scope of
employment. See Larch, 272 F.3d at 72-73.
According to Sood, the employees made the statements to her in interviews in
2018, while Unitil Service employed them as Dispatchers and Controllers. The
content of the statements is within the scope of that employment, as the statements
are about their job duties. Accordingly, the employees’ statements referenced in
Sood’s declaration are nonhearsay and may not be excluded at this stage on that

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ground. See id.; DCS Sanitation Mgmt., Inc. v. Occupational Safety and Health
Review Comm’n, 82 F.3d 812, 815 (8th Cir. 1996) (holding that OSHA investigator’s
written documentation based on what defendant’s employees told him during oral
interviews was admissible as nonhearsay under Rule 801(d)(2)(D)); Scalia v. Ghosn,
451 F. Supp. 3d 1215, 1221 (W.D. Okla. 2020) (allowing affidavit of DOL
investigator, which included statements made by anonymous employees of
defendant, to be considered at summary judgment over objection under Rule
801(d)(2)(D)); Ferring Pharm., Inc. v. Braintree Labs., Inc., 215 F. Supp. 3d 114, 121
(D. Mass. 2016) (finding that statements made by opposing party employees
incorporated into attorney’s declaration were nonhearsay under Rule 801(d)(2)(D)).

B.

Informer’s Privilege & Identity of Employees

Next, Unitil Service contends that because DOL redacted the names of the
employees whom Sood interviewed, Unitil Service was unable to depose or crossexamine the employees about their interviews with Sood and therefore cannot test
the reliability of Sood’s report of their statements. Considering the circumstances,
this argument lacks merit. During discovery, DOL provided Unitil Service with the
redacted “employee personal interview statements,” and Unitil Service knew that
they referred to statements made by anonymous employees. Unitil Service,
however, never brought a challenge to DOL’s assertion of informer’s privilege nor
did it move to compel deposition testimony from the anonymous employees. For
that reason, Unitil Service has waived any challenge it may have made to DOL’s

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assertion of informer’s privilege as to the employees’ interviews with DOL for the
purpose of that evidence’s use at summary judgment. See Ghosn, 451 F. Supp. 3d
at 1221 (rejecting argument in FLSA suit that the court should, at summary
judgment, strike declaration by DOL investigator that contained statements by
anonymous employees because government’s invocation of the informer’s privilege
had been unchallenged during discovery).

C.

Signatures on “Employee Personal Interview Statements”

Unitil Service argues that the court should not consider the employees’
statements because Sood’s recollection in her declaration is based on documents
that she prepared but the employees did not sign (with, as noted above, one
exception). The “employee personal interview statements,” however, were not
submitted into the summary judgment record, so their admissibility is not in
question. Rather, the evidence in question is Sood’s declaration, which is
admissible under Federal Rule of Civil Procedure 56(c)(4).8
Under Rule 56(c)(4), “[a]n affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible

In her affidavit, Sood states that the “sample excerpts” she provides from
the “employee personal interview statements” are derived “from the statements that
[she] received from” the employees she interviewed. Doc. no. 24-1 ¶ 6. The
declaration is confusing in this regard, as it refers to two forms of similar evidence:
the “employee personal interview statements,” which Sood prepared and sent to the
employees but were not signed (with one exception) and were not submitted into the
record for purposes of summary judgment, and the “statements” that Sood claims
the employees made to her during the interviews, to which Sood can aver by virtue
of her presence at the interviews.
8

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in evidence, and show that the affiant or declarant is competent to testify on the
matter stated.” Sood’s declaration provides sufficient information to show that her
assertions about what the employees said are based on personal knowledge. See
doc. no. 24-1 ¶ 4 (“I interviewed four Electrical Distribution Dispatchers and two
Senior Gas Controllers employed by Unitil Service.”). Sood avers that the
information presented is true to the best of her knowledge and belief, and she
signed the declaration under penalty of perjury. And, as discussed above, the
employees’ statements are nonhearsay under Federal Rule of Evidence 801(d)(2)(D).
Accordingly, Sood’s declaration is admissible for purposes of summary judgment.

D.

Failure to Submit Complete “Statements”

Lastly, Unitil Service faults DOL for failing to submit the entire “employee
personal interview statements” to the court. Unitil Service, however, does not
dispute that DOL provided it the complete statements during discovery. Indeed,
Unitil Service quotes additional portions of the statements in its reply brief. Unitil
Service could have submitted the complete “statements” into the record if it deemed
them necessary to a fair evaluation of the motion for summary judgment.
For those foregoing reasons, Sood’s declaration can be considered as to the
substantive portion of the cross-motions for summary judgment, that is, whether
Dispatchers and Controllers are exempt from FLSA’s overtime compensation and
recordkeeping rules because they are administrative employees.

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II.

Administrative Employee Exception
Under the overtime compensation rule, FLSA requires employers to pay their

employees time-and-a-half when they work more than 40 hours per week. 29 U.S.C.
§ 207(a)(1).9 An employer subject to FLSA must also comply with recordkeeping
rules. See id. § 211(c). FLSA, however, exempts from these rules “any employee
employed in a bona fide executive, administrative, or professional capacity . . . .” Id.
§ 213(a)(1).10 DOL regulations further define what constitutes an administrative
employee, stating that the exemption includes any employee:
(1) Compensated on a salary or fee basis . . . at a rate of not less than
$684 per week . . . exclusive of board, lodging or other facilities;
(2) Whose primary duty is 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; and
(3) Whose primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.
29 C.F.R. § 541.200(a).

Specifically, an employer violates FLSA if it employs anyone “who in any
workweek is engaged in commerce or in the production of goods for commerce, or is
employed in an enterprise engaged in commerce or in the production of goods for
commerce, for a workweek longer than forty hours unless such employee receives
compensation for [their] employment in excess of the hours above specified at a rate
not less than one and one-half times the regular rate at which he is employed.” Id.
9

The longstanding dictate from the Supreme Court that FLSA exemptions
are to be “narrowly construed” no longer applies. Encino Motorcars, LLC v.
Navarro, 138 S. Ct. 1134, 1142 (2018) (“The Ninth Circuit also invoked the principle
that exemptions to the FLSA should be construed narrowly. . . . We reject this
principle as a useful guidepost for interpreting the FLSA.”); Marcus v. Am. Cont.
Bridge League, Inc., 2021 WL 1132161, at *14 (D. Mass. Mar. 24, 2021).
10

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The employer must demonstrate that the position or employee at issue meets
all three prongs of § 541.200(a) to fall within the administrative employee
exception. See id. Here, the parties agree that Dispatchers and Controllers are
salaried and compensated at a rate not less than $684 per week, satisfying the first
prong of § 541.200(a). The dispute centers on whether the primary duties of
Dispatchers and Controllers are work that is “directly related to the management or
general business operations” of Unitil Service or its customers and whether the
positions include the “exercise of discretion and independent judgment.”

A.

Whether Primary Duties are Directly Related to General Business
Operations

As to prong two, § 541.200(a)(2), Unitil Service contends that the primary
duties of Dispatchers and Controllers are ancillary to the principal function of
Unitil Service’s customers and therefore are directly related to the “general
business operations” of those customers. In contrast, DOL argues that the primary
duties of Dispatchers and Controllers are directly related to Unitil Service’s
customers’ principal functions, which it asserts is the transmission of electricity and
natural gas.11

The parties do not dispute that Dispatchers and Controllers perform only
office or non-manual work, so the court need only determine whether the primary
duties of Dispatchers and Controllers are “directly related to the management or
general business operations” of Unitil Service or its customers. See 29 C.F.R
§ 541.200(a)(2).
11

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“Primary duty” means “the principal, main, major or most important duty
that the employee performs.” Id. § 541.700(a). The analysis of what duty is
primary “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. Courts should
consider factors such as the relative importance of different types of duties, the
amount of time spent performing the duties, and the amount of direct supervision of
the employee. Id.12
Primary duties that are “directly related to the management or general
business operations” of the employer or its customers must be “directly related to
assisting with the running or servicing of the business, as distinguished, for
example, from working on a manufacturing production line or selling a product in a
retail or service establishment.” Id. § 541.201(a). Generally, work that is
“ancillary” to the principal function of the employer or its customers will be
considered “directly related” to the employer’s “general business operations.” See
Hines v. State Room, Inc., 665 F.3d 235, 242 (1st Cir. 2011); Lutz v. Huntington
Bancshares, Inc., 815 F.3d 988, 993 (6th Cir. 2016); Grage v. N. States Power Co.Minnesota, 813 F.3d 1051, 1056 (8th Cir. 2015). Work that is typically ancillary to
principal businesses or functions includes, among other examples, quality control,

The regulation also states that courts should consider “the relationship
between the employee’s salary and the wages paid to other employees for the kind of
nonexempt work performed by the employee.” Id. In this case, however, neither
party submitted evidence that goes toward this factor.
12

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safety and health, government relations, legal and regulatory compliance, and
“similar activities.” See 29 C.F.R. § 541.201(b).

1.

Electric Distribution Dispatchers

The primary duty of Dispatchers is to monitor and, when circumstances
dictate, control the physical electrical infrastructure that Unitil Service’s customers,
i.e., its sister subsidiaries, operate and maintain. The parties do not dispute that
Dispatchers spend most of their time performing this task or that it is their main
job function. The Dispatchers’ other functions, such as executing switching orders,
contacting field crews, and communicating with municipal first responders, are
generally consequential to the Dispatchers’ primary duty of monitoring the
infrastructure for unusual or emergent situations.
This primary duty is “directly related” to the “general business operations” of
Unitil Service’s customers,13 as it is comparable to the functional work areas listed
under § 541.201(b), which lists categories of duties that should be considered
administrative. For example, the Dispatchers’ responsibilities to monitor the
electrical grid and ensure that it is performing in compliance with Unitil’s and the

“An employee may qualify for the administrative exemption if the
employee’s primary duty is the performance of work directly related to the
management or general business operations of the employer’s customers.” 29
C.F.R. § 541.201(c). Because the duties that Dispatchers and Controllers perform
are coextensive with the services that Unitil Service provides, the parties focus on
whether the duties are directly related to the management or general operations of
Unitil Service’s customers, which are its sister corporations within Unitil
Corporation.
13

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government’s standards are analogous to “quality control” and “regulatory
compliance” functions. See 29 C.F.R. § 541.201(b). Dispatchers also perform
“health and safety” tasks when they interpret alarms via SCADA to determine
whether they require corrective action and when, consequent to that function, they
operate switches to isolate devices or service areas to ensure that field crews can
safely work on the physical infrastructure.
Other courts that have addressed whether employees with similar primary
duties are exempt have likewise found these duties to be directly related to their
employers’ general business operations. In Galdo v. PPL Electric Utilities
Corporation, for example, a utility company with operations similar to Unitil
Corporation employed “system operators” whose primary duty included “evaluating
and controlling [the corporation’s] electrical grid, documenting maintenance and
work activities, and executing emergency procedures when needed.” 2016 WL
454416, at *5 (E.D. Pa. Feb. 5, 2016). The court found that “[t]hese duties
contribute to the running of [the utility company’s] business, as they are ancillary to
[the utility’s] principal production activity of generating electricity.” Id. It added
that those duties “moreover, fall within the functional areas identified by the
Secretary of Labor’s regulations as work directly related to management or general
business operations.” Id. DOL contends that Galdo is distinguishable because PPL,
the utility company involved, generated electricity, unlike Unitil Service. That
distinction, however, does not undercut Galdo’s persuasive value because PPL’s
productive business operations included the transmission of electricity in addition

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to the generation of electricity. See 2016 WL 454416, at *2 (noting that the system
operators worked in the defendant’s “Transmission Department”); Galdo v. PPL
Elec. Utils. Corp., 2016 WL 4493197, at *1 (E.D. Pa. Aug. 26, 2016) (finding, after
bench trial, that system operators were exempt from FLSA as administrative
employees and stating that “PPL is an electrical distribution and transmission
company”).
Similarly, in Zelenika v. Commonwealth Edison Co., a utility company
employed “Senior Distribution System Dispatchers” who worked in a centralized
control room and had primary duties that included “monitor[ing] [the utility’s]
electrical distribution system and adjust[ing] voltages on the system using
computer displays, alarm systems, maps, and controls,” “receiv[ing] notifications of
power outages or other emergency situations directly from customers,”
“documenting changes in the distribution system such as system outages,” and
“communicating with field crews to help resolve problems and complete repairs to
the system.” 2012 WL 3005375, at *2 (N.D. Ill. July 23, 2012). The Northern
District of Illinois found that those primary duties were directly related to the
utility company’s general business operations even where its productive operations
included transmission of electricity. Id. Considering that the duties of the “system
operators” in Galdo and the “Senior Distribution System Dispatchers” in Zelenika
are almost identical to the duties of Dispatchers, the reasoning and result in those
cases are persuasive and applicable here.

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DOL argues that, because Dispatchers can exercise control over the electrical
grid using the SCADA system, they are responsible for the transmission of
electricity and therefore perform a primary duty that is directly related to, rather
than ancillary to, the principal business purposes of Unitil Service’s customers. But
DOL overlooks that, as to their primary duties, Dispatchers only exercise control
over the system in limited circumstances when health, safety, or regulatory
prescriptions require it. In all other circumstances, the infrastructure operates
without action from the Dispatchers. For example, if a power outage occurs,
Dispatchers can flip switches to prevent injury to field crews while the field crews
try to repair electrical lines to restore power to end users. Dispatchers also use the
SCADA system to attempt to narrow the location of the problem to help field crews
identify the physical location where a repair may be necessary. And if a Dispatcher
detects a situation where voltage or power is outside operating restrictions or
expectations, which may result in injuries to end users, the Dispatcher can
manipulate the system to try to bring it back in compliance. In each example where
Dispatchers exercise control over the electrical grid, Dispatchers act in support of
Unitil Service’s customers and its field crews. That a Dispatcher’s primary duty
may be necessary to the safe and successful operation of Unitil Corporation and its
subsidiaries is immaterial because it is nonetheless “ancillary” to the firm’s
principal productive functions. See Hines, 665 F.3d at 242 (“The sales aspect of the
defendants’ businesses, although necessary to their success, is clearly ancillary to
the principal function of actually providing the banquet services themselves.”).

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In sum, the primary duty of Dispatchers for Unitil Service is remote
monitoring of the physical infrastructure owned and operated by Unitil Service’s
customers and intervening in limited circumstances to control the infrastructure to
ensure the safety of other employees who maintain the infrastructure. Dispatchers
do not build or maintain that infrastructure. Rather, they support the elements of
Unitil Service and Unitil Service’s customers that do. For the foregoing reasons, the
primary duty of Dispatchers is “directly related” to the general business operations
of Unitil Service’s customers. Accordingly, as to the Dispatcher position, Unitil
Service has shown that is entitled to summary judgment in its favor as to prong two
of the administrative employee exemption, § 541.200(a)(2).

2.

Senior Gas Controllers

Controllers also perform work that is “directly related” to the “general
business operations” of Unitil Service’s customers. The primary duty of Controllers
is to monitor the flow of natural gas through Unitil’s transmission systems to
ensure that the pipeline is operating correctly and that the gas flow complies with
corporate, state, and federal standards.
As with Dispatchers, the primary duty performed by Controllers is
comparable to the functional work areas listed under § 541.201(b). For example,
monitoring the pressure of flowing gas to ensure that it complies with regulatory
requirements is a “regulatory compliance” task. See 29 C.F.R. § 541.201(b).
Monitoring the transmission system and tracking alarms to determine whether

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problems have arisen on the system are health, safety, and quality control tasks.
See id.
In addition, the Controller position is analogous to the position at issue in
Zannikos v. Oil Inspections (U.S.A.), where employees’ primary duties were directly
related to assisting with the running or servicing of a business’s customers when
they included “observing oil transfers to verify that performance was accurate,
legal, and safe,” “monitor[ing] the loading and unloading of cargo and report[ing]
any errors or losses,” and “monitor[ing] and report[ing] on transfers’ compliance
with Oil Inspections’ safety policies and nationally recognized safety standards.”
605 Fed. Appx. 349, 353-54 (5th Cir. Mar. 27, 2015).
Therefore, as to the Controller position, Unitil Service is entitled to summary
judgment in its favor as to prong two of the administrative employee exemption,
§ 541.200(a)(2).

B.

Whether Primary Duties Include Exercise of Discretion and
Independent Judgment

As to prong three, § 541.200(a)(3), Unitil Service contends that Dispatchers
must use their discretion and independent judgment when monitoring the electrical
infrastructure to determine whether any problematic conditions exist, including
power outages and health and safety situations. Unitil Service asserts that, while
there are procedures that Dispatchers must follow once they determine what the
issue is, a Dispatcher’s responsibility is to determine which procedure of many is
appropriate to follow. In addition, Unitil Service argues that Dispatchers are
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permitted to deviate from procedures to accomplish the procedure’s intent if
necessary. As to Controllers, Unitil Service contends that they have authority to
formulate, affect, interpret, and implement policies and operating practices on a
daily basis.
DOL, on the other hand, argues that a genuine dispute of material fact exists
as to whether Dispatchers and Controllers exercise discretion and independent
judgment in their jobs. In support, DOL references Sood’s declaration, in which she
recounts statements made to her in interviews with Dispatchers and Controllers.
DOL argues that these statements are sufficient to show that a genuine dispute of
material fact exists as to whether Dispatchers and Controllers exercise discretion
and independent judgment. DOL also contends that Dispatchers and Controllers
are constrained in their discretion and independent judgment by Unitil
Corporation’s written procedures.14
“[T]he exercise of discretion and independent judgment involves the
comparison and the evaluation of possible courses of conduct, and acting or making
a decision after the various possibilities have been considered.” 29 C.F.R.
§ 541.202(a). Exercise of discretion and independent judgment means that an
employee has the authority to make independent choices free from “immediate

Prong three requires the employer to demonstrate that discretion and
independent judgment are used “with respect to matters of significance.” 29 C.F.R.
§ 541.200(a). In this case, however, DOL does not contend that remote monitoring
of physical infrastructure and responding to alarms, which are the primary duties of
Dispatchers and Senior Gas Controllers, are not matters of significance to Unitil
Service.
14

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direction or supervision.” Id. § 541.202(c). At the same time, however, “employees
can exercise discretion and independent judgment even if their decisions or
recommendations are reviewed at a higher level” and “decisions made as a result of
the exercise of discretion and independent judgment may consist of
recommendations for action rather than the actual taking of action.” Id. Unlimited
authority or complete absence of review is not a prerequisite to “exercise of
discretion and independent judgment.” Id.

1.

Electric Distribution Dispatchers

The undisputed facts demonstrate that Dispatchers’ primary duty includes
the exercise of discretion and independent judgment with respect to matters of
significance. Specifically, Dispatchers must exercise discretion and independent
judgment in interpreting the data provided to them through SCADA and the outage
management system, which they use to monitor Unitil Corporation’s electrical
infrastructure. Both Goudreault and the anonymous Dispatchers interviewed by
Sood stated that they respond to a high number of alarms. Goudreault explained
further, testifying that Dispatchers are expected to interpret these alarms and to
determine whether they can be safely ignored or require a reaction. See 29 C.F.R.
§ 541.202(b) (stating that whether the employee investigates and resolves matters
of significance on behalf of management is a factor in considering whether work
requires the exercise of discretion and independent judgment).

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The reasoning and result in the Galdo case, already discussed above, is also
applicable to whether Dispatchers’ primary duty includes exercise of discretion and
independent judgment. In Galdo, the “system operators” spent—much the same as
the Dispatchers at issue in this case—“the majority of their work day interpreting
and implementing management policies or operating practices by monitoring
Defendant’s electrical grid, coordinating planned work outages and repairs, and
addressing emergent situations.” Galdo, 2016 WL 4493197, at *8. Although system
operators were “constrained in their actions by PPL’s extensive sets” of instructions
and procedures, the evidence showed that “these materials are hardly akin paintby-number kits foreclosing discretion and independent judgment.” Id. The court
also observed that the system operators “must exercise judgment” in determining
which instructions or procedures were applicable after considering the
circumstances and that, while the instructions “might give a step-by-step procedure
on how to perform a specific action, [they] do[] not specify when that action is
necessary or why.” Id. Considering these facts together, the court found that
system operators exercised discretion and independent judgment with respect to
matters of significance. Id.
DOL contends that Unitil Service’s manual forecloses Dispatchers’ discretion
and independent judgment, but the procedures in the manual are like those
described in Galdo. To be sure, Unitil Service’s manual includes procedures that
prescribe what actions Dispatchers must take in certain situations, but the manual
does not explain in detail the contexts or circumstances in which certain procedures

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are applicable, nor does it explain how Dispatchers should determine what
procedure to apply based on what they see in the SCADA or outage management
system. Instead, those matters are left to Dispatchers’ discretion and independent
judgment.
Sood’s affidavit is also insufficient to create a genuine dispute of material fact
as to exercise of discretion and independent judgment. EDD 2 told Sood that “[w]e
don’t make any decisions in this work—we’re just told what to do,” but that
statement is not sufficient to create a genuine dispute about whether Dispatchers
exercise discretion and independent judgment in their primary duty because it is
conclusory and lacks sufficient supporting factual matter. See Serra v. Quantum
Servicing Corp., 747 F.3d 37, 40 (1st Cir. 2014) (stating that “allegations of a merely
speculative or conclusory nature are rightly disregarded”). Neither EDD 2’s other
statements to Sood nor DOL’s other evidence lend factual support to the conclusion
that Dispatchers do not “make any decisions,” which can only be reasonably
construed as hyperbole when considered with context. See Conward v. Cambridge
Sch. Comm., 171 F.3d 12, 18 (1st Cir. 1999) (stating that the court should “refuse[]
to indulge rank speculation or unsupportable hyperbole” at summary judgment).
For example, EDD 2 gives an example of a decision that Dispatchers can make
when observing that Dispatchers can tell field crews to stop during switching
orders.15 And DOL itself asserts in its statement of undisputed facts that

EDD 3 likewise observes that Dispatchers have “authority” to halt
switching if the Dispatcher determines that “something unusual” happens. Doc. no.
24-1 at 3.
15

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Dispatchers can decide to deviate from Unitil Service’s procedures “on occasion.”
Doc. no. 24 at 4, ¶ 12.
DOL also points out that Dispatchers must usually clear their decisions with
supervisors. Goudreault, however, testified that only one person is employed to
supervise the Dispatchers, and it is undisputed that Dispatchers spend most of
their time working without supervision. In any event, the regulations do not
mandate that an employee’s use of independent judgment and exercise of discretion
come without any supervisory review. See 29 C.F.R. § 541.202(c) (explaining that
use of independent judgment and exercise of discretion does not require employee to
have final decision-making authority or be entirely unsupervised); Hines, 665 F.3d
at 245-46 (“The regulations likewise provide that an employee’s discretionary
actions need not ‘have a finality that goes with unlimited authority and a complete
absence of review’ . . . . The fact that, after engaging a potential client and arriving
at a proposed agreement for a banquet, the sales managers submitted the proposal
to management for approval does not, therefore, detract from the judgment that
was exercised in arriving at the proposal in the first instance.”). Here, even if their
decisions are recommendations or proposals when a supervisor is present,
Dispatchers must still exercise discretion and independent judgment when making
those recommendations. See Hines, 665 F.3d at 245-46.
Lastly, DOL’s argument that Dispatchers do not use independent judgment
or exercise discretion in their primary duty because they are told how to execute
switching orders and because certain communications with field crews are scripted

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is unpersuasive. Although Dispatchers must follow specific scripts outlined in the
procedures when communicating with field crews in some circumstances, just
because one aspect of the Dispatchers’ primary duty offers limited opportunities to
exercise independent judgment or discretion does not mean it does not “include”
aspects that do. Likewise, executing switching orders is only one aspect of
Dispatchers’ primary duty. Because the regulations only require independent
judgment and exercise of discretion to be “included” in the employee’s primary duty,
whether Dispatchers spend some of their time on tasks that do not require
independent judgment or exercise of discretion is immaterial. See 29 C.F.R.
§ 541.200(a)(3).
2.

Senior Gas Controllers

As with Dispatchers, DOL contends that Controllers do not use independent
judgment and discretion because many of their decisions are subject to the review of
supervisors or dictated by procedures. As with Dispatchers, however, that reality
does not mean that Controllers lack the ability to use discretion and independent
judgment as part of their primary duty. At the monitoring, diagnosis, and triaging
stage, which the parties do not dispute constitutes the bulk of the Controllers’ job
responsibilities, Controllers must exercise discretion and independent judgment.
For example, Controllers must interpret the meaning of alarms on their software
systems and use their judgment to determine whether the alarm presents a
problem that requires immediate attention. If the situation requires immediate

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attention, the Controller must use their judgment to decide what type of issue
occurred, such as whether the issue is mechanical or a failure of a field device.
The only other relevant evidence that might support DOL’s position that
Controllers do not exercise discretion and independent judgment is from Sood’s
declaration. The statements in Sood’s declaration, however, are not sufficient to
generate a genuine issue of material fact. For example, SGC 1 states that there is a
“procedure of a procedure for everything,” but, considered in context, SGC 1 was
discussing how Controllers handle situations after using their independent
judgment to determine that an issue requires handling.
Indeed, SGC 2’s statements confirm that Controllers use independent
judgment and exercise discretion. Specifically, SGC 2 observed that there are
“situations where we can act immediately” and, in formulating a decision about
whether immediate action or what kind of response is necessary, Controllers
“consult” with a supervisor or their manual while at the same time relying on their
own experience. As SGC 2 states, “[w]ithin certain sets of circumstances, we take
one set of actions, with other circumstances, we take other actions.” Doc. no. 24-1 at
4. Making an informed decision or recommendation about which set of actions to
take depending on the present circumstances after consultation with training
materials, supervisors, and personal experience is paradigmatic exercise of
discretion and independent judgment. See 29 C.F.R. § 541.202(a) (“[T]he exercise of
discretion and independent judgment involves the comparison and the evaluation of

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possible courses of conduct, and acting or making a decision after the various
possibilities have been considered.”).

CONCLUSION
For the reasons discussed above, Unitil Service has shown that there are no
genuine disputes of material fact and that Dispatchers and Controllers fall within
FLSA’s administrative employee exemption, 29 U.S.C. § 213(a)(1) and 29 C.F.R.
§ 541.200(a), as a matter of law. It follows that Unitil Service is entitled to
summary judgment on DOL’s claims that it violated FLSA’s overtime compensation
and recordkeeping provisions as to those employees. Accordingly, Unitil Service’s
motion for summary judgment (doc. no. 21) is granted. DOL’s motion for summary
judgment (doc. no. 20) is denied.
No claims remain in this suit. The clerk of court is directed to enter
judgment in favor of Unitil Service and close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
November 17, 2021
cc:

Counsel of Record

35