Unfred v. Shehorn Funeral Homes, LLC

Filing 44

AMENDED MEMORANDUM OPINION AND ORDER. Signed by Judge Royce C. Lamberth. (aej)

FILED
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

NOv 082016
CLERK.

U.S.

DISTRgCT

COURT

MELISSA N. UNFRED,
Plaintiff
Civil Case No. I 5-cv-689 (RCL)

I!?

SHEHORN FUNERAL HOMES, LLC,
d/b/a LAKE SHORE FUNERAL HOME
Defendant

MEMORANDUM OPINION
I.

INTRODUCTION

On August 21, 2015, this case was referred to Magistrate Judge Pamela Mathy to rule on all

pretrial motions, pursuant to 28 U.S.C.

§

636(b). ECF No, 36. On November 3, 2015 Judge Mathy

submitted a Report and Recommendation, ECF No. 37, regarding defendant's Motion for
Summary Judgment, ECF No. 26, and plaintiff's Motion for Reconsideration, ECF No, 29. Before
this Court is the Report and Recommendation, plaintiff's written objections, ECF No. 38, and

defendant's response to those objections, ECF No. 39. After consideration of these submissions,
and in light of the entire record and the applicable law, this Court concludes that defendant's

motion for summary judgment should be granted, and plaintiff's motion for reconsideration should
be denied. For the reasons set

forth

below, the Court accepts the analysis in the Report and

Recommendation.

II.

BACKGROUND

Plaintiff Melissa Unfred was employed as a funeral director and embalmer by Shehorn Funeral
Homes from December 30, 2012 to August 15, 2014. Unfred was a licensed funeral director and

embalmer in the State of Texas. She attended Amarillo College for two years, obtaining an

associate's degree in mortuary science. Depo. of Melissa Unfred 9, ECF No. 18-1. To be a licensed
funeral director and embalmer in Texas, Unfred was required to

degreean apprenticeship that included at least

120 cases

completein addition

to her

of embalming and/or funeral directing

under the instruction of a licensed funeral director. Tex. 0cc. Code

§ 65 1.253(a)

(amended

September 1, 2015).
Unfred claims that she was never compensated for hours worked in excess of a 40 hour

workweek. Instead, defendant "paid plaintiffs overtime by using the fluctuating work week

method of calculating overtime." Pl.'s Am. Compi. 3, ECF No. 11. She claims that her work weeks

never fluctuated above and below 40 days. Rather, they "were always at or above 40 hours per
week." Id. Further, Unfred claimed that her pay was not fixed, and that she did not meet the
requirements to be paid on a fluctuating work week in the first place. Id.
On August 1, 2014, Unfred "objected to the use of the fluctuating work week method to

calculate her overtime pay, both in writing and verbally, to defendant's manager, Brent Shehorn,
and his wife Carri Shehorn." Id. at 4. Unfred and the Shehorns met on August 7, 2014 to discuss
objections outlined in the August 1 letter. On August 10,2014, Mr. Shehorn suspended Unfred for
one week and ordered her to prepare a 1,000 to 1,500 word essay describing the behavior that led
to the suspension and proper work etiquette. This action was filed on August 14, 2014, during

Unfred's suspension. She was terminated on August 15, 2014.
In the original complaint, Unfred alleges violations of the Fair Labor Standards Act of 1938

("FLSA"). Specifically, Unfred alleged two causes of action under the FLSA: 1) that defendant
failed to pay overtime for hours worked in excess of 40 hours in a workweek, and 2) that

defendants discriminated/retaliated against her for objecting to potential violations of FLSA by
2

suspending her without pay. Pl.'s Orig. Compi. 4-5, ECF No.

1.

In her amended complaint, Unfred

further alleged that "{d]efendant's termination of plaintiff was discrimination against plaintiff
because plaintiff objected to the policy or practice of calculating and paying plaintiff's overtime
based on the fluctuating work week method." Pl,'s Am. Compi. 5. Unfred seeks unpaid overtime
pay, liquidated damages, pay lost from the suspension, compensatory damages for retaliation under
the FLSA, and attorney's fees. Id. at 4-5.

On April 10, 2015, Unfred filed a motion for partial summary judgment seeking summary

judgment on several issues. Pl.'s MSJ 1-2, ECF No. 17. Specifically, Unfred sought summary
judgment that:
(1) During the period of December 30, 2012, to August 15, 2014, an employeeemployer relationship existed between plaintiff and defendant;
(2) During the period of December 30, 2012, to August 15, 2014, plaintiff
engaged in activities as an employee of defendant which were within the
coverage of the FLSA;
(3) Plaintiff was not subject to the learned professional exemption during her

employment with defendant;

(4) Plaintiff was paid her regular hourly rate for all hours worked up to 40 hours
per workweek during the period of December 30, 2012, to August 15, 2014;
(5) Defendant did not pay plaintiff time and one-half for plaintiff's overtime
hours worked during the period of December 30, 2012, to August 15, 2014,
but paid her only 50% of her regular hourly rate for all overtime hours

worked;
(6) Defendant violated the Fair Labor Standards Act by failing to pay plaintiff
time and one-half for plaintiffs overtime hours worked during the period
of December 30, 2012, to August 15, 2014;
(7) The unpaid straight-time pay owed by defendant to plaintiff is $15,383.43.
Id.

Defendant did not contest the first, second, fourth, and fifth issues, but disputed the third, sixth,
and seventh issues. Def.'s Resp. to MSJ 2, ECF No. 18. Specifically, defendant argued that genuine

issues of material fact existed as to whether Unfred was an exempt learned professional, and
3

whether defendant was entitled to use the fluctuating workweek method, Id. at 4. The central issue
was whether Unfred could be considered a learned professional when she had not completed four

academic years of pre-professional and professional study to receive her funeral directors license
or embalming license. Plaintiff relied on a federal regulation promulgated by the Department of

Labor which states that:
Licensed funeral directors and embalmers who are licensed by and working in a
state that requires successful completion of four academic years of pre-professional
and professional study, including graduation from a college of mortuary science
accredited by the American Board of Funeral Service Education, generally meet
the duties requirements for the learned professional exemption
29 C.F.R.

§

541 .309(e)(9). In addition, Unfred cited an interpretation

of this regulation found in

the Department of Labor Wage and Hour Division Field Operation Handbook:
Funeral Directors and embalmers.
Some licensed funeral directors and embalmers may meet the duties requirements
for the learned professional exemption. In order to meet the duties requirements of
this exception, licensed funeral directors and embalmers must he licensed by and
working in a state that requires successful completion of four academic years of
pre-professional and professional study, including graduation from a college of
mortuary science accredited by the American Board of Funeral Service Education.
Some employees with the job title "funeral director" or "embalmer" have not
completed the four years of post-secondary education required by 29 C.F.R. §
541.301(e)(9) and are not, therefore, exempt as learned professionals.
U.S. Dep't of Labor, Wage-Hour Field Operations Handbook, Ch. 22, at 22i18, p. 71 (2010).

Unfred argued that these provisions precluded a finding that she was a learned professional.
Judge Smith disagreed and partially granted summary judgment, determining that Unfred was
a learned professional and exempt from the FLSA's overtime requirements. ECF No. 23. The

Court held that the Handbook "is not used as a device for establishing interpretative policy," and
is not binding. Id. at 10 (quoting the Department of Labor's own guidance on the Handbook,
available at

http://www.dol.gov/whd/FOFI). Thus, while 29 C.F.R.

4

§

541.301 (e)(9) states that

funeral directors or embalmers with a four-year degree generally qualify as a learned professional,
a four-year

bachelor's degree is not required by federal mandate. id. Instead, the Court followed

the analysis from two cases, a Sixth Circuit

caseRuzlin v. Prime Succession, Inc., 220 F.3d 737

(6th Cir. 2000)and a Western District of New York caseRowe

v.

Olthof Funeral Home, Inc.,

No. 10-CV-6220T, 2011 WL 4899970 (W.D.N.Y. Oct. 13, 2011). Id. at 11-12.

Judge Smith found that the licensing schemes in Rut/in and RoweMichigan and New York,

respectivelywere similar to those in Texas. The court concluded that licensed funeral directors
and embalmers in Texas must have advanced, specialized knowledge in order to perform their

duties. Applying the primary duties test1 set out in 29 C.F.R.

§

541.301 (a), Judge Smith found that

Unfred, as a licensed funeral director and embalmer in Texas, was a learned professional under the

FLSA. Specifically, Judge Smith found that Unfred "performs work requiring advanced

knowledge in a field of science or learning that is customarily acquired by a prolonged course of
specialized intellectual instruction." Id. at 14. Because plaintiff "need not attain a four-year

bachelor's degree to meet the C.F.R.'s requirements," Judge Smith denied plaintiff's summary
judgment and held that Unfred was a learned professional. Id. at 16. Accordingly, Judge Smith
held that she was exempt from FLSA' s overtime protections, and refused to hold that the defendant
violated the FLSA by failing to pay time and one-half for overtime hours worked from December
30, 2012 to August 15, 2014. Id.

On July 24, 2015, defendant filed its motion for summary judgment. ECF No. 26. Defendant
now seeks summary judgment on two issues: 1) that defendant did not violate the FLSA's overtime
compensation requirement because Unfred was an exempt learned professional, and 2) that Unfred

Under the primary duties test, a court must determine 1) whether the work required advanced knowledge, 2) whether
the advanced knowledge was in a field of science or learned, and 3) whether the advanced knowledge was acquired
by prolonged course of specialized intellectual instruction, 29 C.F.R. § 541,301(a).

5

cannot establish causation in her retaliation claim. Id. at 2-3. On the first issue, defendant cites
Judge Smith's June 15 order holding that Unfred was a learned professional as a matter of law. On
the second issue, defendant argues that, while Unfred may be able to establish a prima fade case

for retaliation, defendant has established a legitimate, nondiscriminatory reason for her suspension
and/or termination, Thus, defendant argues, under the burden-shifting framework set forth in
McDonnel Douglas Corp.

v.

Green, 411 U.S. 792, 800-05 (1973), Unfred must further establish

that the alleged retaliation "would not have occurred 'but-for' plaintiff's protected activity." Id. at
13

(quoting Little

v.

Tech. Specially Prods. LLC, No. 4:1

Oct. 23, 2013)); see also Kanida

v.

1cv-7 172013, WL 5755333, (E.D. Tex.

Gulf Coast Med. Pers. LP, 363 F.3d 568, 580 (5th Cir. 2004).

Defendant supplied six exhibits consisting of the sworn affidavits or deposition statements from
co-workers and others associated with the funeral home business. Id. at 13-15.
On August 7, 2015, Unfred filed a response, along with her own motion to reconsider Judge

Smith's order denying plaintiff's motion for summary judgment. ECF No. 26. She again argues
that this Court should give deference to regulations enacted by the Secretary of Labor that a two-

year course of study is insufficient to meet the "prolonged course of specialized instruction"
requirement under the learned professional exemption. Id. at

12. In

addition to the arguments made

previously, plaintiff quoted a lengthy excerpt from the Federal Register that was not considered
by Judge Smith.2 Id. Essentially, Unfred argues that the Secretary of Labor has interpreted the

regulation to preclude funeral directors or embalmers in Texas from being exempt learned
professionals. Id.

Plaintiffs response directly quoted 69 Fed. Reg. 22155-22156. However, plaintiff previously relied on the FOH
Handbook, which cites this excerpt along with 29 C.F.R, § 541 .309(e)(9), for the proposition that some funeral
directors or embalmers who have not completed four years post-secondary education are not exempt as learned
professionals. Therefore, while the quote is new, plaintiffs argument here is the same as before Judge Smith.

2

IJnfred further argues that genuine issues of material fact exist as to her discrimination claim
because, while she had never been counseled or disciplined for her behavior before she complained

about the fluctuating workweek method, she was suspended days after the meeting. Id. at I 5-1 8.
Unfred claims that once she engaged in a protected activitycomplaining about potential

violations ofthe FLSA in the August 1 letter"defendant ramped up it [sic} disciplinary machine"

by repriinanding Unfred for "vague and undated allegations that plaintiff had shown poor attitude
and lack of respect to fellow employees." Id. at 18. The heart of Unfred' s claim is that "a reasonable

juror could certainly believe that the defendant knew that plaintiff could not comply with the order
and that, no matter what plaintiff did, she was going to be terminated for requesting that she
be paid in accordance with the FLSA." Id. at 19,

On August 12, 2015, this case was transferred to Chief Judge Fred Biery. On August 21, 2015,
the case was referred to Magistrate Judge Pamela Mathy. Her Report and Recommendation was

filed November 3, 2015. ECF No. 37. Regarding defendant's motion for summaryj udgment, Judge
Mathy found that defendant had met its burden to show that no genuine issue of material fact exists
as to whether plaintiff is exempt from FLSA overtime requirements because, as a matter of law,

plaintiff is a learned professional. Id. at 24-25. Judge Mathy also found that there was no genuine
issue of material fact as to whether plaintiff had established a prima acie case of discrimination
because plaintiff was exempt from the FLSA overtime requirements. Id. at 26. Finally, Judge

Mathy also found that, even assuming plaintiff established a prima fade case, "plaintiff cannot
meet her burden to demonstrate that the adverse employment action would not have occurred

'but-for' plaintiff's protected activity." Id. Regarding plaintiff's motion for reconsideration, Judge
Mathy found that Judge Smith appropriately considered the applicable regulations and guidance

7

from the Department of Labor in deciding that 29 C.F.R.

§

541.301 did not preclude Unfred from

falling under the learned professional exemption. Id. at 27.
Judge Mathy made the following recommendations:

it is recommended that defendant's motion for summary judgment and
plaintiff's motion for reconsideration each he DENIED.
it is ordered that all matters referred having been addressed, this case
is returned to the District Judge.

If the recommendations in this report are accepted, none of plaintiff's claims will
remain pending and the Court can direct the District Clerk to enter a final judgment.

On November 16, 2015, Unfred objected to Judge Mathy's recommendations, arguing that her
intent was to recommend that defendant's motion for summary judgment be granted, and

plaintiff's motion for reconsideration be denied. Pl.'s Obj. 2, ECF No. 38. Plaintiff objected to
these recommendations because "defendant has not shownand the magistrate's report does not
support a

findingthat the Secretary of Labor's interpretation of a regulation crafted by the

Secretary is plainly erroneous or inconsistent with the regulation." Id. Pointing to 29 C.F.R.
§

541.301(e)(9) and the Handbook, plaintiff argues that the Department of Labor requires four

academic years of pre-professional and professional study for funeral directors or embalmers to
fall under the learned professional exemption. Again, according to Unfred, "the Secretary's

Judge Mathy was unsure whether the motion was governed by Rule 59 (Motion to Alter or Amend Judgment) or
Rule 60 (Motion for Relief from Judgment or Order). However, Judge Mathy considered plaintiff's arguments
essentially re-hashing the arguments made to Judge Smithin her analysis of defendant's motion for summary
judgment. There, Judge Mathy concluded that there was no reason to depart from Judge Smith's application of the
learned professional exemption because 1) Unfred did not present any authority to warrant deferring to the agency's
interpretation of a seemingly unambiguous regulation, and 2) plaintiff did not present any authority as to why language
not codified in the Code of Federal Regulations, such as the Handbook, is entitled to deference.
8

interpretation must be given 'controlling weight unless it is plainly erroneous or inconsistent with
the regulation." Id. at 6 (quoting Thomas .Jefferson

Univ.

v.

Shalala, 512 U.S. 504, 512 (1994)).

In short, plaintiff again argues that this Court must give controlling weight to the Secretary's

interpretation of the learned professional exemption as expressed in the Handbook, Thus, Unfred's
sole substantive objection appears to be that the magistrate incorrectly adopted the previous

holding that Unfred was exempt.

See Id.

at 3, ¶ 9 ("If plaintiff is a learned professional under the

definitions and interpretations of the Secretary of Labor, the magistrate's recommendations should
be upheld. However, if plaintiff is not a learned professional, then plaintiff's motion for

reconsideration should be granted.") (emphasis added).
Defendant filed its response on November 30, 2015, arguing that plaintiff's objections merely
rehash the arguments made to Judge Smith and the Magistrate. Defendant argues that such general

objections are not entitled to de

novo review,

and that this Court should adopt the recommendations

to grant defendant's motion for summary judgment and deny plaintiff's motion for reconsideration.

DeL's Resp. to Pl.'s Obj., ECF No. 39.

III.

LEGAL STANDARDS

Pursuant to 28 U.S.C.
4

§

636(b), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule

of Appendix C to the Local Rules of the United States District Court for the Western District of

Texas, a party may serve and file specific, written objections to the proposed findings and
recommendations of the Magistrate Judge within fourteen days after being served with a copy of
the Report and Recommendation, and thereby secure de novo review by the district court. Where
no party has objected to a Magistrate Judg&s Report and Recommendation, the Court need not

conduct a de novo review as to the unobjectionable portions.

See

28 U.S.C.

§

636(b)(1) ("A judge

of the court shall make a de novo determination of those portions of the report or specified
9

proposed findings and recommendations to which objection is made."). Similarly, there is no
requirement for de novo review when the objections are frivolous, conclusive, or general in nature.
Battle

United States Parole Comm'n,

v,

834 F.2d 419, 421 (5th Cir. 1987).

Generally, the FLSA requires employees to compensate their employees for overtime worked
in excess of 40 hours per workweek. 29 U.S.C.

§

207(a). However, this requirement does not apply

to employees employed in a bona fide executive, administrative, or professional capacity. 29
U.S.C.

§

213(a)(l). An exempt professional employee is one whose primary duty requires

knowledge of an advanced type in a field of science or learning customarily acquired by a
prolonged course of specialized intellectual instruction. 29 C.F.R.

§

541.300. The decision of

whether an employee is exempt is primarily a question of fact; but the ultimate decision whether
the employee is exempt is a question of law.

Lott

v.

Howard

Wilson Chrysler-Plymouth, Inc.,

203

F.3d 326, 331 (5th Cir. 2001). Exemptions are to be narrowly construed, and the employer bears
the burden of proving that the employee is exempt from the FLSA.

Vela

v,

City

of Houston, 276

F.3d 659, 666 (5th Cir. 2001).
To apply the learned professional exemption, the employer must satisfy the primary duties test.

The primary duties test includes three elements: 1) whether the work required advanced
knowledge, 2) whether the advanced knowledge was in a field of science or learned, and 3) whether

the advanced knowledge was acquired by prolonged course of specialized intellectual instruction.
29 C .F.R.

§

541.301(a). The Department of Labor's regulations state that funeral directors and

embalmers who are licensed by, and work in, a state that required four academic years of pre-

professional and professional study "generally meet the duties requirements for the learned
professional exemption." 29 C.F.R.

IV.

§

541.301 (e)(9).

ANALYSIS
10

As a preliminary matter, this Court sees two objections to the Report and Recommendation.

First,

plaintiff

and

defendant

both

agree

that

Judge

Mathy's

recommendation

"that defendant's motion for summary judgment and plaintiffs motion for reconsideration each
be denied" was an error, and that Judge Mathy intended to recommend that plaintiff's motion for

reconsideration be denied and defendant's motion for summary judgment be granted. R. & R. 27.
Second, plaintiff objects to Judge Mathy's finding that Unfred was exempt as a matter of law.

Plaintiff did not object to the finding that plaintiff had not established a prima fade case of
discrimination or causation, or Judge Mathy' s rejection of the motion for reconsideration.
As to the first objection, this Court agrees with the parties. Therefore, this Court proceeds with
the understanding that Judge Mathy's report recommended that defendant's motion for summary

judgment he granted, and that plaintiff's motion for reconsideration be denied. The Court first
addresses the defendant's motion for summary judgment.

Because plaintiff has timely filed

objections to the magistrate's recommendations that the motion be granted on the basis that the
defendant failed to show Secretary of Labor's interpretation is not erroneous or inconsistent with
the regulation, the Court reviews

de novo.

a. Defendant's Motion for Summary Judgment

Defendant seeks summary judgment on two issues: 1) that defendant did not violate the

FLSA's overtime compensation requirement because Unfred was an exempt learned professional,
and 2) that Unfred cannot establish causation in her retaliation claim. Judge Mathy found that

Unfred was exempt as a matter of law and that plaintiff had not established a prima fade case of

discrimination or butfor causation.
i.

Defendant did not violate the FLSA's overtime compensation
requirement because Unfred was an exempt learned professional.

Ii

Based on the record, this Court finds that the defendant did not violate the FLSA's overtime
compensation requirement, and that defendant is entitled to judgment as a matter of law. Judge
Smith previously ruled here that Unfred was a learned professional exempt under the FLSA. ECF
No. 23. Based on the evidence presented by defendant, Judge Smith held that Unfred "performs

work requiring advanced knowledge in a field of science or learning that is customarily acquired
by a prolonged course of specialized intellectual instruction." Id. at 14. He rejected plaintiff's

argument that a funeral director and embalmer must have a four-year degree to be exempt from
the FLSA's overtime requirement. Magistrate Judge Mathy similarly found that defendant had

presented summary judgment evidence that plaintiff's work required advanced knowledge in a
field of science or learning, satisfying the requirements of 29 C.F.R.

The plain language of 29 C.F.R.

§

§

541.301. This Court agrees.

541.301 does not mandate four years of pre-professional

and professional study. Rather, the regulation states that licensed funeral directors and embalmers
who complete four academic years of pre-professional and professional study "generally meet the

duties requirements for the learned professional exemption." 29 C.F.R.

§

541.301 (e)(9) (emphasis

added). Indeed, under the primary duties test, the advanced knowledge need only be customarily

acquired by a prolonged course of specialized intellectual instruction. While "{t]he best prima fade

evidence that an employee meets this requirement is possession ofthe appropriate academic degree
the word 'customarily' means that the exemption is also available to employees in such
professions who have substantially the same knowledge level and perform substantially the same
work as the degreed employees, but who attained the advanced knowledge through a combination

of work experience and intellectual instruction." 29 C.F.R.

§

541.301(d). Plaintiff here is not

precluded from qualifying as a learned professional simply because she was not required toand
did

notobtain

a four-year degree. This analysis is supported by the Department of Labor's

12

regulations, as well as the case law cited by Judge SrnithRutlin
F.3d 737 (6th Cir.

2000)

and Rowe

v.

Oithof Funeral Home,

Inc.,

Prime Succession,

inc.,

220

No. 10-CV-6220T, 2011

WL

i

4899970 (W.D.N.Y. Oct. 13, 2011). As the magistrate noted, plaintiff "presents no explanation
why the Court should arrive at a conclusion different from that of Judge Smith," other than

language quoted from the Federal Register. R. & R. 24,

Plaintiff insists that 69 Fed. Reg.
interpreted 29 C.F.R.

§

22155-22156

makes it clear that the Department of Labor has

541.301(e)(9) to require four years of post-secondary education. But the

language, read in its entirety, does no such thing. The Department notes that, in the past, it has
taken the position that licensed funeral directors and embalmers are not exempt learned

professionals. As an example, the Department recounts that it took this position as amicus curiae
in Rail/n. However, the Department clearly recognizes that courts have disagreed: "After carefully

weighing the comments and case law, the Department concludes that some licensed funeral

directors and embalmers may meet the duties requirements for the learned professional

exemption." 69 Fed. Reg. 22155. In promulgating the final rule at 29 C.F.R.

§ 541 .301(e)(9),

the

Department recognized that some circuits have held that licensed funeral directors who have not

completed four years of post-secondary education are might still be learned professionals. Yet the
final rule codified at 29 C.F'.R. § 541 .301(e)(9) only clarifies that license schemes that require four

years of study

generally

meet the standard. While the comment language insists that there is a

minimum requirementlicensing schemes that only require a high school education "cannot
qualify as exempt learned professionals"the final rule is "consistent with the case law" that four
years of study are not required. Id. This Court, therefore, is unpersuaded by plaintiff's argument

that the quoted excerpt requires a departure from

Rail/n

or Rowe. It does not. Further, to the extent

that the Department of Labor has interpreted 29 C.F.R.

13

§

541.301(e)(9) to

require

a four-year

degree, that interpretation is inconsistent with the plain language of the regulation and thc

accompanying case law.
As stated in the Report and Recommendation, plaintiff failed to raise an ambiguity in the FLSA

(or the C.F.R.) that would require a court to defer to the Department's interpretation. Plaintiff also
failed to raise any authority that the Federal Register excerpt, which is not codified in the Code of
Federal Regulations, was entitled to deference in the first place. See Langbecker v. Electronic Data
Systems corp., 476 F.3d 299, 311 n.22 (5th Cir. 2007) (suggesting no deference is owed to

comments on regulations that are not parts of the regulation themselves). This Court, as did Judge
Smith and the magistrate, defers to the final rule published in the C.F.R. and the applicable case
law. Further, this Court finds that two rounds of argument on the issue of the learned professional

exemption were sufficient; without more specific or substantive objections, this Court refuses to
undermine previous decisions made in this case. Accordingly, this Court finds that plaintiff's

objections regarding the learned professional exemption are without merit. The court ADOPTS
Judge Mathy's findings that plaintiff is a learned professional.
Because plaintiff was a learned professional, she was not entitled to overtime compensation

under the FLSA. Thus, there is no genuine issue of material fact as to plaintiffs first cause of
action, and defendant is entitled to summary judgment as a matter of law.
ii.

Plaintiff waived her objections to the magistrate's findings concerning
her discrimination/retaliation claims.

In her objections, Unfred stated that "[i]f plaintiff is a learned professional under the definitions
and interpretations of the Secretary of Labor, the magistrate's recommendations should be

upheld." Pl.'s Obj. 3, ¶ 9. Further, plaintiff has made no objections concerning the
discrimination/retaliation claims. Because plaintiff has raised no objections outside the context of

14

the learned professional exemption, this Court ADOPTS Judge Mathy's findings that defendant
has met its burden to show that no genuine issue of material fact exists as to plaintiff's second

cause of action for discrimination under the FLSA. Because plaintiff cannot meet her burden to

demonstrate that her suspension or termination would not have occurred but-for some protected
activity, defendant is entitled to summary judgment as a matter of law.
b. Plaintiff's Motion for Reconsideration
Judge M.athy evaluated and rejected Unfred's arguments to reconsider Judge Smith's June

15

order under the same analysis used to grant defendant's motion for summary judgment. in sum,
the magistrate was unpersuaded that this Court was required to depart from Judge Smith's analysis
concerning the learned professional exemption. As noted, plaintiff has not filed a specific objection

outside the context of the learned professional exemption. "If plaintiff is a learned professional

under the definitions and interpretations of the Secretary of Labor, the magistrate's

recommendations should be upheld." PL's Obj. 3, ¶ 9. Based on the record, and for the same
reasons discussed above, this Court finds that plaintiff is a learned professional under the
definitions and interpretations of the Secretary of Labor. Accordingly, this Court ADOPTS Judge

Mathy's findings that the motion for reconsideration should be denied.
V.

CONCLUSION

In sum, this Court finds that plaintiff's objections to the Report and Recommendation are

without merit. Therefore, this Court accepts Judge Mathy's recommendations that defendant's
motion for summary judgment be granted, and plaintiff's motion for reconsideration be denied.
A separate order shall issue.

C
DATE:

i'f

oyce C. Lamberth
United States District Judge

1/16
15