Edelmann v. Keuka College

Filing 61

DECISION AND ORDER denying 42 Plaintiff's Motion for Summary Judgment; granting 54 Defendant's Motion to Strike ; and denying 58 Plaintiff's Cross-Motion to Reopen Expert Discovery. By separate order, the Court will schedule a status conference to hear from the parties on the progress of this action. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 8/14/2019. (MFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICHARD EDELMANN,
Plaintiff,
Case # 16-CV-6293-FPG
v.
DECISION AND ORDER
KEUKA COLLEGE,

Defendant.

INTRODUCTION
Plaintiff Richard Edelmann brings this wage-and-hour action against his former employer,
Defendant Keuka College, alleging that Defendant misclassified him as an employee exempt from
overtime wage requirements. ECF No. 1. He raises claims under both the Fair Labor Standards
Act (“FLSA”) and New York Labor Law (“NYLL”). Before the Court are three motions: (1)
Plaintiff’s motion for summary judgment (ECF No. 42), (2) Defendant’s motion to strike (ECF
No. 54), and (3) Plaintiff’s motion to reopen expert discovery (ECF No. 58). The Court resolves
all these motions in this omnibus order. For the reasons that follow, Plaintiff’s motion for summary
judgment is DENIED, and Defendant’s motion to strike is GRANTED, and Plaintiff’s motion to
reopen expert discovery is DENIED.
LEGAL STANDARD
Summary judgment is appropriate when the record shows that there is “no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material
facts are genuine where the evidence is such that a reasonable jury could return a verdict for the

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non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court construes all facts in a light most favorable
to the non-moving party and draws all reasonable inferences in the non-moving party’s favor. See
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). However, the non-moving party
“may not rely on conclusory allegations or unsubstantiated speculation.” F.D.I.C. v. Great Am.
Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted).
BACKGROUND
Defendant is an institution of higher education located in Keuka Park, New York. It is
undisputed that Defendant is an employer covered by the FLSA and NYLL. In April 2010,
Plaintiff began working in Defendant’s Information Technology (“IT”) group through a temporary
employee agency. In June 2010, Plaintiff became a full-time employee with Defendant as a Senior
Technology Support Technician (“Senior Support Tech”).

Throughout his employment,

Defendant treated Plaintiff as a salaried employee exempt from overtime requirements.
The crux of the parties’ factual dispute concerns the nature and complexity of Plaintiff’s
job responsibilities. Around the time of Plaintiff’s hiring, Defendant created a job description for
the Senior Support Tech position. In the section titled “General Responsibilities,” it stated:
Responsible for providing direct support for all Desktop Systems, application,
peripherals or other technologies as required by the student, academic or business
communities of Keuka College. Responsibilities include effective and timely
support, both preventative and remedial, of MAC, Windows and LINUX/UNIX
systems and their associated peripherals, applications, networks and Sub-systems.
ECF No. 49-6 at 1. The “Specific Responsibilities” included:
To provide the highest levels of technical and customer support to all Departments
and personnel associated with Keuka College:
•
•

Serve as Technical Lead within a Dynamic and effective Helpdesk team.
Provide technical support to other team members. . . .

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•
•
•
•

Provide Operating Systems Support for MAC OS[, Microsoft Windows,
and LINUX] to include design, installation, upgrade, and remedial support.
....
Provide Hardware Support for all MAC, Intel or other Platforms, to include
design, installation, upgrade and remedial support.
Configure Desktop Network.
Install, configure, upgrade and troubleshoot Desktop Network issues, to
include, TCP/IP, VPN, RAS, DNS or DHCP.

Id. Qualifications for the position included “Associates preferred,” “Industry Training towards
Certification in Technical Discipline,” with three years of “related experience,” excellent
communication and troubleshooting skills, and experience with “Windows and MAC Operating
Systems and Hardware.” Id. at 2.
Timothy Pierson, who led Defendant’s IT group and created the Senior Support Tech job
description, explained that the employee would do more than solve discrete computer issues for
faculty, staff, and students. See ECF No. 49-5 at 17 (stating that the Senior Support Tech would
do more than “replace [a] hard drive” or set up a computer “for somebody”). The Senior Support
Tech would need to analyze and upgrade the college’s technology, which encompassed designing
technical changes to managing the new systems once installed. See id. at 17-18.
Plaintiff alleges that, in practice, his duties were not as high-level or technically
sophisticated. He states that his primary duty was “general desktop and help desk support and
audio/video[] support.” ECF No. 42-6 ¶ 18. He states “60% of [his] job duties consisted of help
desk and desktop support,” which entailed “analyzing and troubleshooting non-complex computer
software and hardware problems.” ECF No. 42-4 at 4. For example, Plaintiff “completed tasks
such as repairing malfunctioning printers, assisting with password resets, and assisting students,
faculty, and staff with downloading and troubleshooting software issues with programs such as
Microsoft Word and Excel, and the user’s email applications, such as Outlook or Gmail.” Id. 30%
of his job was “running A/V support, such as ensuring that projectors and screens were set up for
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PowerPoint presentations and that microphones were available and operational for speakers.” Id.
at 6.
Andrea Campbell, Defendant’s Chief Information Officer, testified that Plaintiff’s core job
responsibilities stayed the same throughout his tenure. His “general tasks” included “computerbased support, operating system installation,” “working on the network and user accounts,” “help
desk,” and “classroom support.” ECF No. 42-3 at 75. But Defendant goes on to allege that
Plaintiff’s key duties were consistent with those Pierson envisioned for the position: designing and
implementing various projects to improve and maintain the college’s technological infrastructure.
For example, one of Plaintiff’s major projects involved integrating Apple computers into
Defendant’s network, which occurred approximately one year into his employment. Andrew
Hogan, Plaintiff’s supervisor, described Plaintiff as the “architect behind the Apple environment
at Keuka.” ECF No. 49-8 at 16. Hogan claims that—with assistance from third-party vendors—
Plaintiff “designed” the Apple “server environment.” Id. at 17. Once the proposed design was
confirmed, Plaintiff recommended what hardware to use to implement the design, installed the
hardware, and subsequently maintained the Apple environment and computers. Id. at 12, 20, 24;
see also ECF No. 49-9 at 12. Hogan also claims that, even before the installation of the new Apple
server, Plaintiff managed the Apple products on campus. See ECF No. 49-8 at 14. Campbell
likewise states that Plaintiff was “in charge” of the Apple environment. ECF No. 49-9 at 8.
Plaintiff does not view his role on the Apple project as that of an architect or designer. He
avers that before the project, his work with Apple computers consisted of “basic help desk
support.” ECF No. 42-4 at 5. When Defendant pushed to integrate Apple hardware with its
network, he “was not responsible for installing or upgrading [that] equipment.” Id. Indeed, the
“vast majority of th[e] work was done by an outside vendor, who [he] assisted.” Id. Later, Plaintiff

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helped to maintain the Apple server, but “always with the assistance of the outside vendor when
any complex or serious problem arose.” Id. Thus, Plaintiff’s “involvement with the College’s
Mac computers was largely the same as [his] involvement with any other computer on campus”:
basic troubleshooting and technical support. Id. at 5-6.
Similarly, Defendant portrays Plaintiff’s A/V-support duties differently than Plaintiff does.
Hogan testified that Plaintiff “maintained the foremost level of expertise at the institution regarding
classroom technology.” ECF No. 49-8 at 36. Plaintiff managed the integrated controls system
that unified the classroom technologies throughout the campus, and he was part of a committee
that helped to maintain, change, and upgrade the college’s event management system. Id. at 7-9,
36-37. Furthermore, Pierson believes that Plaintiff played a role in designing and implementing
classroom-technology upgrades in 2010 and 2011. ECF No. 49-5 at 78. Defendant also claims
that Plaintiff trained, supervised, and scheduled several work-study students who assisted with
A/V projects around the campus. ECF No. 49-8 at 7. By contrast, Plaintiff asserts that the workstudy students reported to Hogan and that he only handled some minor scheduling conflicts when
they arose. See ECF No. 42-4 at 8.
In terms of his help-desk role, Campbell states that Plaintiff acted as a “senior technician”
who could resolve more complex issues than those handled by work-study students, including any
complex issues involving “a server or network.” ECF No. 49-2 at 1. Plaintiff would often need
to “test, configure, and maintain [the college’s] computer network and server” and “correct
problems where users were unable to access the network.” Id. at 2. Again, Plaintiff disputes the
complexity of his role. See ECF No. 42-4 at 4.
Regardless, in November 2015, Defendant eliminated Plaintiff’s position and terminated
his employment. Plaintiff brought this action in May 2016.

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DISCUSSION
The parties’ narrow dispute is whether, by virtue of his job duties, Plaintiff’s position was
exempt from the overtime requirements of the FLSA and NYLL. Plaintiff alleges that his position
was not exempt and that Defendant owes him wages for unpaid overtime.
“Under the FLSA, employees must be compensated for every hour worked over forty per
week ‘at a rate not less than one and one-half times the regular rate at which he is employed.’” 1
Clarke v. JPMorgan Chase Bank, N.A., No. 08 Civ. 2400, 2010 WL 1379778, at *15 (S.D.N.Y.
Mar. 26, 2010) (quoting 29 U.S.C. § 207(a)(1)). “However, the FLSA provides that certain
categories of employees are exempt from its overtime requirements.” Id. Whether an employee
meets an exemption presents a mixed question of law and fact. See id. “The question of how an
employee spends his or her time working is one of fact, while the question of whether those work
activities exempt him or her from the FLSA is one of law.” Flood v. Just Energy Mktg. Corp., 904
F.3d 219, 227 (2d Cir. 2018). As the employer, Defendant bears the burden of proving that
Plaintiff falls within the ambit of an exemption. See id.
Here, Defendant invokes two exemptions: the “computer employee” exemption and the
“administrative” exemption. See ECF No. 49 at 17, 23. The Court discusses each in turn.
I.

Computer Employee Exemption
The “computer employee” exemption exempts any employee who is “a computer systems

analyst, computer programmer, software engineer, or other similarly skilled worker, whose
primary duty is”:
(A) the application of systems analysis techniques and procedures, including
consulting with users, to determine hardware, software, or system functional
specifications;
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The parties agree that the same exemptions and standards apply to Plaintiff’s NYLL claim, so the Court
need only analyze the FLSA claim. See Clarke v. JPMorgan Chase Bank, N.A., No. 08 Civ. 2400, 2010
WL 1379778, at *7 (S.D.N.Y. Mar. 26, 2010).
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(B) the design, development, documentation, analysis, creation, testing, or
modification of computer systems or programs, including prototypes, based on
and related to user or system design specifications;
(C) the design, documentation, testing, creation, or modification of computer
programs related to machine operating systems; or
(D) a combination of duties described in subparagraphs (A), (B), and (C) the
performance of which requires the same level of skills . . . .
29 U.S.C. § 213(a)(17)(A)-(D).
“The term ‘primary duty’ means the employee’s ‘principal, main, major or most important
duty.” Clark, 2010 WL 1379778, at *16 (quoting 29 C.F.R. § 541.700). A court must look at “all
the facts in a particular case” to determine the employee’s primary duty, “with major emphasis on
the character of the employee’s job as a whole.” 29 C.F.R. § 541.700(a). “Factors to consider
when determining the primary duty of an employee include” the “relative importance of the exempt
duties as compared with other types of duties; the amount of time spent performing exempt work;
the employee’s relative freedom from direct supervision; and the relationship between the
employee’s salary and the wages paid to other employees for the kind of nonexempt work
performed by the employee.” Id. The regulations emphasize that while the “amount of time spent
performing exempt work can be a useful guide in determining” the employee’s primary duty, it is
not the “sole” test and nothing “requires that exempt employees spend more than 50 percent of
their time performing exempt work.” Id. § 541.700(b).
The activities listed in Section 213(a)(17) generally pertain to the highly skilled work of
designing or creating computer systems or programs to meet the business’s needs—e.g., applying
“systems analysis techniques . . . to determine . . . functional specifications,” designing “computer
systems or programs . . . based on . . . user . . . design specifications,” and creating “computer
programs related to machine operating systems.” 29 U.S.C. § 213(a)(17)(A)-(C); see, e.g., Clarke,
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2010 WL 1379778, at *17 (exempt employee “develop[ed] disk space remediation plans” for
organization’s data centers, analyzing “the space available on the current frame, the clusters that
the frame was connected to, future frame growth, frame decommission, [backup] needs and the
viability of moving between frames”); Olorode v. Streamingedge, Inc., No. 11 Civ. 6934, 2014
WL 1689039, at *22 (S.D.N.Y. Apr. 29, 2014) (exempt employee “tailor[ed] the operating system
to meet [other employees’] particular needs”); Campbell v. Kannapolis City Schs. Bd. of Educ., 55
F. Supp. 3d 821, 824 (M.D.N.C. 2014) (exempt employee was “responsible for designing and
implementing [computer networks] in a school environment”); Haluska v. Advent Commc’ns, Inc.,
No. 13-CV-1104, 2014 WL 5823105, at *7 (W.D. Pa. Nov. 10, 2014) (“[The employee’s] primary
job duties included consulting with customers . . . to discuss and determine hardware specifications
and system functions as well as . . . modifying the related software to meet their needs . . . .”).
By contrast, tasks like installing new software, configuring software and hardware, and
troubleshooting problems with applications, networks, and hardware—all of which involve
computers but require a lesser degree of technical know-how and sophistication—do not fall within
the exemption. See, e.g., U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter, 2006 WL
3406603, at *5 (Oct. 26, 2006) (stating that an “IT Support Specialist”—whose duties include
“installing, configuring, testing, and troubleshooting computer applications, networks, and
hardware”—is not an exempt position) [hereinafter “DOL Opinion Letter”]; Hunter v. Sprint
Corp., 453 F. Supp. 2d 44, 52 (D.D.C. 2006) (stating that a “technically proficient help-desk
employee” does not fall “within the ambit of a provision that is designed to exempt computer
programmers, network designers, and software developers”); Strauch v. Computer Scis. Corp., No.
14-CV-956, 2018 WL 4539660, at *3 (D. Conn. Sept. 21, 2018) (employee who merely maintained
existing backup and recovery systems for organization did not engage in exempt activity).

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That being said, some courts have also classified “complex” troubleshooting as an exempt
activity. See, e.g., Friedman v. Nat’l Indem. Co., No. 16-CV-258, 2018 WL 1954218, at *4 (D.
Neb. Apr. 13, 2018) (“[C]ourts have routinely found that analyzing computer systems,
troubleshooting complex server issues, and configuring computer networks satisfies the ‘computer
employee’ exemption.”).

The line between non-exempt troubleshooting and exempt

troubleshooting appears to lie in how the employee approaches the problem and what level of
knowledge must be brought to bear on the issue: troubleshooting is more likely to be considered
exempt if the employee “has to be creative” and apply sophisticated technical knowledge to “come
up with a solution,” as opposed to employing “canned answers” to solve it. Grills v. HewlettPackard Co., 88 F. Supp. 3d 822, 824 (N.D. Ohio Aug. 24, 2015); see also Young v. Cerner Corp.,
No. 06-321, 2007 WL 2463205, at *5 (W.D. Mo. Aug. 28, 2007) (software engineer’s job, which
involved correcting defects in databases, was exempt because her task “was to apply some of her
own analysis and judgment in resolving defects [with computer code].”).
Ultimately, in applying this exemption, a court must examine whether the employee’s
duties are akin to those of a “computer systems analyst, computer programmer, [or] software
engineer.” 29 U.S.C. § 213(a)(17); see also Hunter, 453 F. Supp. 2d at 52. And in interpreting
the scope of this exemption, a court may not narrowly construe it—as Plaintiff would prefer—but
instead must give the exemption a “fair reading.” Flood, 904 F.3d at 228.
Here, the Court concludes that genuine issues of material fact preclude summary judgment
in Plaintiff’s favor. Viewing the facts in the light most favorable to Defendant, Plaintiff’s job
duties primarily involved some combination of the activities listed in Section 213(a)(17). There
is evidence that Defendant intended that the Senior Support Tech would generally involve
troubleshooting and technical support, but of a more technically sophisticated level. Pierson

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envisioned that the employee would “have responsibility for the design, manage[ment] and
administration of complex systems” and would need to bring their “intellectual capital” to bear on
upgrading and managing the college’s technical infrastructure as a whole. ECF No. 49-7 at 1.
There is evidence that, in practice, Plaintiff’s role was consistent with Pierson’s vision.
Hogan testified that Plaintiff was the architect behind the system that integrated Apple hardware
with the college’s network—Plaintiff designed the system, recommended the hardware to be used,
installed the physical server, and configured the software. Even after the server was installed,
maintaining the Apple environment was an “ongoing effort” that “took up a substantial amount of
[Plaintiff’s] time.” ECF No. 49-8 at 44. Plaintiff would need to update the server and determine
what capabilities and permissions should be available to users. See id. In this respect, Plaintiff
had a unique skill set in the IT department. See id. at 30.
Beyond his work with Apple products, Plaintiff also helped to design and determine
upgrades for A/V classroom technology early in his tenure, he reviewed and upgraded classroom
technology during college breaks, and he participated in a committee that sought to develop and
improve the college’s event management system. Regarding his help-desk role, Plaintiff was
tasked with solving more complex issues, including those involving servers and the college’s
network. Unlike Plaintiff, work-study students at the help desk solved only “easily-resolved
problems” by reference to a predefined script. ECF No. 49-2 at 1.
In short, Defendant paints a picture of an IT professional whose day-to-day activities
involved solving complex computer, server, and network issues by reference to his knowledge,
training, and experience, and who helped to design and implement new technologies at the college.
Defendant’s key assertion is that Plaintiff played a significant role in designing and implementing

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the Apple environment at the college, 2 had a unique skillset that allowed him to troubleshoot
complex issues with the Apple Server and Apple products, and was a critical part of the ongoing
effort to maintain the Apple server and configure the permissions and capabilities of Apple
products to ensure they were integrated in the college’s network. This evidence portrays Plaintiff
as a technically sophisticated employee who not only solves complex problems related to the
technological infrastructure of the college through his knowledge and ingenuity, but also advances
the college’s capabilities by designing and implementing new technologies. Even if Plaintiff spent
much of his time on lesser-skilled tasks, a reasonable jury could conclude that he was “principally
of value to [Defendant] because he had sophisticated knowledge of computing that went beyond
that of a non-exempt Help Desk employee.” Bobadilla v. MDRC, No. 03 Civ. 9217, 2005 WL
2044938, at *7 (S.D.N.Y. Aug. 24, 2005); see also 29 C.F.R. § 541.700(a) (stating that the
“primary duty” is the “most important duty” that the employee performs).
Plaintiff counters that Defendant has not presented a genuine issue of material fact but has
instead mischaracterized the evidence and “cloud[ed] the facts with baseless, general statements
suggesting that [his] actual duties were very, very complex.” ECF No. 53 at 9. The Court
disagrees. To be sure, the evidence Defendant presented through Plaintiff’s supervisors is, by and
large, less detailed and clear than Plaintiff’s own statements about his job duties. But the lack of
specificity does not render Defendant’s evidence so conclusory or speculative as to justify
disregarding it—at most, that generality is something for the factfinder to consider in weighing
those witnesses’ credibility at trial.

2

Plaintiff notes that his work on the Mac Server did not begin until Fall 2012. See ECF No. 53-1 at 4. For
that reason, he states that even assuming “that a significant portion of [his] actual duties consisted of exempt
work on the Mac server and environment after the fall of 2012, [he] was still improperly classified for the
first two years of his employment.” Id. But Hogan testified that Plaintiff managed the Apple environment
even prior to that upgrade, and so there remains a genuine issue of material fact.
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Likewise, the fact that Plaintiff has presented a voluminous paper trail of his work to
corroborate his assertions would not preclude a reasonable factfinder from accepting the testimony
of Plaintiff’s supervisors. Id. at 5. In short, Plaintiff’s mere belief that Defendant’s evidence is
not credible is not a basis for summary judgment. There are clear disputes of material fact—e.g.,
whether Plaintiff designed the Apple server and its capabilities, whether Plaintiff’s support duties
generally involved complex problems that required the use of ingenuity and sophisticated technical
knowledge, and whether Plaintiff’s ongoing maintenance of Apple products on campus required
advanced knowledge and experience—that the Court may not resolve at this stage. See Soto v.
Gaudett, 862 F.3d 148, 157 (2d Cir. 2017) (“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a
judge.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Accordingly, taking the facts, and the reasonable inferences therefrom, in the light most
favorable to Defendant, there are genuine issues of material fact as to whether Plaintiff was exempt
from FLSA overtime requirements under the computer employee exemption.
II.

Administrative Exemption
“The FLSA also exempts from the overtime requirements ‘any employee employed in a

bona fide . . . administrative . . . capacity.’” Sethi v. Narod, 974 F. Supp. 2d 162, 181 (E.D.N.Y.
2013) (quoting 29 U.S.C. § 213(a)(1)). An employee is employed in such capacity if, inter alia,
his primary duty (1) “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 (2)
“includes the exercise of discretion and independent judgment with respect to matters of
significance.” 29 C.F.R. § 541.200(a)(2), (3). “Work directly related to management or general
business operations includes . . . computer network, internet and database administration.” Id. §

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541.201(b); see also Mock v. Fed. Home Loan Mortg. Corp., No. 13-CV-1292, 2014 WL 3545096,
at *7 (E.D. Va. July 15, 2014) (employee’s work was “directly related to management or general
business operations” where he “designed and implemented solutions” and “provided advice to
upper-level management” regarding the “operation of the [business’s] IT infrastructure”).
As for the second prong, “the 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,” while “matters of significance” refers to “the
level of importance or consequence of the work performed.” 29 C.F.R. § 541.202(a). To
determine whether an employee acts with discretion and independent judgment, the following
factors should be considered:
[W]hether the employee has authority to formulate, affect, interpret, or implement
management policies or operating practices; whether the employee carries out
major assignments in conducting the operations of the business; whether the
employee performs work that affects business operations to a substantial degree,
even if the employee’s assignments are related to operation of a particular segment
of the business; whether the employee has authority to commit the employer in
matters that have significant financial impact; whether the employee has authority
to waive or deviate from established policies and procedures without prior
approval; whether the employee has authority to negotiate and bind the company
on significant matters; whether the employee provides consultation or expert advice
to management; whether the employee is involved in planning long- or short-term
business objectives; whether the employee investigates and resolves matters of
significance on behalf of management; and whether the employee represents the
company in handling complaints, arbitrating disputes or resolving grievances.
Id. § 541.202(b).
Importantly, “[t]he exercise of discretion and independent judgment must be more than the
use of skill in applying well-established techniques, procedures or specific standards described in
manuals or other sources.” Id. § 541.202(e). Thus, in the realm of IT, an employee does not
exercise discretion and independent judgment when he troubleshoots and solves computer
problems by “following checklists, step-by-step instructions, troubleshooting policies, . . . the
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instructions of system integrators, and existing documentation.” Strauch, 2018 WL 4539660, at
*7; see also DOL Opinion Letter, 2006 WL 3406603, at *4 (“Maintaining a computer system and
testing by various systematic routines . . . are examples of work that lacks the requisite exercise of
discretion and independent judgment . . . .”). Conversely, tasks involving the exercise of discretion
and independent judgment include the design or development of a business’s IT infrastructure, the
development of computer or network policies, the determination of hardware needs, and, more
generally, the “evaluation, comparison, and application of [the employee’s] knowledge and
experience free from immediate direction or supervision.” Mock, 2014 WL 3545096, at *8-9; see
also DOL Opinion Letter, 2006 WL 3406603, at *4.
As with the computer employee exemption, the Court concludes that summary judgment
is not appropriate with respect to the administrative exemption. Viewing the facts in the light most
favorable to Defendant, there are questions of fact as to whether Plaintiff’s primary duty meets the
exemption’s requirements. Defendant proffers evidence showing that Plaintiff played a key role
in developing and managing the Apple environment at the college—which, by the end of Plaintiff’s
employment, covered approximately 30% of the computers on campus. See ECF No. 49-9 at 8.
As Defendant alleges, Plaintiff did not merely carry out orders or follow well-established
protocols, but instead designed how the Apple environment would work and subsequently
exercised independent judgment on how to calibrate and maintain that environment. Defendant
has also presented evidence that Plaintiff took part in recommending and developing classroom
and campus technologies. The mere fact that Plaintiff’s decisions and recommendations were
reviewed at a higher level and could not bind Defendant does not preclude application of the
exemption. See 29 C.F.R. § 541.202(c) (“[E]mployees can exercise discretion and independent
judgment even if their decisions or recommendations are reviewed at a higher level.”). Finally,

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there are sufficient facts from which a reasonable jury could conclude that these higher-level tasks
were qualitatively, if not quantitively, Plaintiff’s primary duty. Summary judgment is therefore
inappropriate.
III.

Motion to Strike

In support of his motion for summary judgment, Plaintiff submitted the declaration of Donald
Reeve. The purpose of this declaration was to “explain[] the meaning and significance of a number
of the general IT terms and phrases” and thereby counteract the allegedly misleading claims made
by Defendant regarding Plaintiff’s work. ECF No 53-1 at 5. Defendant moves to strike the
declaration, arguing that Reeve is an undisclosed expert. ECF No. 54. The Court agrees.
To be admissible as lay opinion, a witness’s testimony may not be “based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701(c).
Testimony regarding industry practice or terminology constitutes specialized knowledge falling
within the scope of Rule 702 if it is grounded in one’s general knowledge of or experience in the
industry. See, e.g., Bank of China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 182 (2d Cir. 2004)
(concluding that witness’s “explanations regarding typical international banking transactions or
definitions of banking terms” were not admissible lay opinion because they “reflected specialized
knowledge he has because of his extensive experience in international banking”); ECD Investor
Grp. v. Credit Suisse Int’l, No. 14-CV-8486, 2017 WL 3708620, at *4 (S.D.N.Y. Aug. 28, 2017)
(testimony that explained “the meaning of terms such as hedge ratios and delta-neutral hedging”
was “inappropriate for lay opinion testimony”); Victor G. Reiling Assocs. v. Fisher-Price, Inc.,
406 F. Supp. 2d 171, 174 (D. Conn. 2005) (witness’s testimony about “custom and practice in the
toy industry and what is typical or standard in the toy industry” was not lay opinion testimony).

15

Consistent with this case law, Reeve’s declaration is not admissible as lay opinion. Reeve
has no substantive relationship to this case; his knowledge of the underlying facts is derived solely
from his review of the summary judgment record. ECF No. 53-6 at 2. The purpose of his
testimony is to clarify certain terminology employed by the parties and to explain typical or custom
IT industry practices. See, e.g., id. at 3-8. In other words, his opinions are not grounded in his
“personal familiarity with the facts of [the] case,” but his “specialized or technical knowledge.”
Dynamic Concepts, Inc. v. Tri-State Surgical Supply & Equip. Ltd., 716 F. App’x 5, 11 (2d Cir.
2017) (summary order). Thus, Reeve’s testimony is that of an expert, not a layperson.
Therefore, Plaintiff was required to disclose Reeve’s identity by the deadline established
in the scheduling order. Because Plaintiff did not do so, the Reeve declaration is subject to
preclusion under Federal Rule of Civil Procedure 37(c)(1): “If a party fails to provide information
or identify a witness as required . . . the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified
or is harmless.” Fed. R. Civ. P. 37(c)(1).
“To determine whether preclusion of testimony under Rule 37 is an appropriate sanction
for failure to meet disclosure requirements,” the court considers four factors: “(1) the party’s
explanation for the failure to comply with the discovery order; (2) the importance of the testimony
of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to
prepare to meet the new testimony; and (4) the possibility of a continuance.” Dynamic Concepts,
716 F. App’x at 12.
Preclusion is the appropriate remedy under these circumstances.

First, Plaintiff’s

explanation for his untimely disclosure is unconvincing. While Plaintiff claims that the need for
Reeve’s testimony only became necessary when “Defendant attempted to obfuscate the facts” in

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its opposition to summary judgment, the record shows that Defendant’s claims are not novel or
surprising. ECF No. 58-1 at 5. In its Answer, Defendant claimed that Plaintiff was exempt from
overtime under the computer employee and administrative exemptions, and it alleged that
Plaintiff’s position involved “highly skilled tasks” and responsibilities such as “systems
administrator for the College’s Mac computer network.” ECF No. 14 at 3-4. In their June and
July 2018 depositions, Defendant’s witnesses testified to like effect.

For example, Hogan

identified Plaintiff as the architect of the college’s Mac server, and Pierson discussed his vision
for a technically sophisticated Senior Support Tech position. Consequently, the need for expert
testimony to demystify Plaintiff’s duties and counter Defendant’s characterizations would have
been apparent much earlier than summary judgment.
Second, insofar as Plaintiff himself describes the nature and simplicity of his duties, the
Reeve declaration is largely cumulative and unimportant.
Third, permitting such testimony would prejudice Defendant, because it would be forced
to contest Reeve’s assertions without the benefit of any investigation or discovery.
Accordingly, preclusion is appropriate, and the Court has not considered the Reeve
declaration in evaluating Plaintiff’s summary judgment motion. 3

3

Plaintiff also requests, in the alternative, that the Court modify the scheduling order and reopen expert
discovery. See ECF No. 58-1 at 16. Plaintiff’s request is denied. For the reasons stated above, Plaintiff
has not demonstrated the diligence necessary to justify that relief. See F.D.I.C. v. Horn, No. 12-5958, 2015
WL 1611995, at *5-6 (E.D.N.Y. Apr. 8, 2015) (stating standard for modification of a scheduling order).
Moreover, further delays would prejudice Defendant: this case is already three years old, and further expert
discovery would likely “derail the trajectory of this case away from potential resolution.” Id. at 14.
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CONCLUSION
For the reasons discussed above, Plaintiff’s motion for summary judgment (ECF No. 42)
is DENIED, Defendant’s motion to strike (ECF No. 54) is GRANTED, and Plaintiff’s motion to
reopen expert discovery (ECF No. 58) is DENIED. By separate order, the Court will schedule a
status conference to hear from the parties on the progress of this action.
IT IS SO ORDERED.
Dated: August 14, 2019
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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