UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHERI GAINOR,
Plaintiff,
v. Civil Action No. 13-612 (RDM)
OPTICAL SOCIETY OF AMERICA, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
The plaintiff, Cheri Gainor, brings this action under the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (“FLSA”), and the D.C. Minimum Wage Act, D.C. Code §§ 32-1001 et seq.
(“DCMWA”), alleging that her former employer, the Optical Society of America, Inc. (“Optical
Society”), violated federal and DC law by failing to pay her overtime compensation. The
Optical Society, in turn, moves for summary judgment on the ground that Gainor was an exempt
administrative employee and, accordingly, was not entitled to overtime compensation. The
Optical Society further contends that, even if Gainor was not an exempt employee, it is entitled
to partial summary judgment with respect to her claim for liquidated damages because it had a
good-faith belief that she was an exempt employee. As the Court explains below, genuine issues
of material fact preclude an award of summary judgment on either ground.
I. BACKGROUND
The Optical Society is a membership organization comprised of “more than 70,000
professionals from 134 countries” with a mission of “promot[ing] the science of light and the
advanced technologies made possible by optics and photonics.” Dkt. 11-3 at 3 (employee handbook).1 Through its “publications, events, technical groups and programs,” the Optical
Society “foster[s] optics knowledge and scientific collaboration among all those with an interest
in optics and photonics.” Id.
The Optical Society employed Gainor as one of two or three meetings managers in its
meetings department from January 18, 2012, to March 15, 2013. Dkt. 14-2 at 1 (Pl.’s SUMF
¶ 5); Dkt. 14-4 at 39 (Gainor Dep. at 151–52); Dkt. 14-5 at 4 (Jackman Dep. at 9). Gainor’s
direct supervisor was Deputy Senior Director of Conventions and Meetings Britt Jackman, Dkt.
11-11 at 2 (Jackman Decl. ¶ 3), who in turn reported to Chad Stark, the Deputy Executive
Director, Chief Meetings Officer, Dkt. 14-5 at 4 (Jackman Dep. 9); Dkt. 14-6 at 3 (Stark Dep. 7).
Gainor often worked on teams with meeting coordinators and meeting planners—staff members
who she outranked and to whom she could delegate tasks—but she did not serve as their direct
supervisors, did not have authority to hire or fire anyone, and lacked authority to choose which
staff members worked on her projects. Dkt. 14-4 at 35, 37 (Gainor Dep. 135–37, 145); Dkt. 14-5
at 4–5, 10, 12 (Jackman Dep. 12–13, 34–36, 42–43).2
As a meetings manager, Gainor was responsible for the logistical aspects of certain
Optical Society events, see Dkt. 11 at 31 (Def.’s SUMF ¶ 9); Dkt. 14-4 at 20 (Gainor Dep. 75–
76), but she was not involved in developing the substantive content of the events or in
determining what events would be held, see Dkt. 14-5 at 4–5, 14, 25 (Jackman Dep. 12–13, 50,
94); Dkt. 14-4 at 27 (Gainor Dep. 103–105); Dkt. 14-6 at 7–8, 12 (Stark Dep. 23–26, 42); Dkt.
1 Elsewhere in the record the Optical Society states that it is comprised of “18,500 individuals (including 5,000 students) and 250 businesses.” Dkt. 11-4 at 2. 2 The meetings department also employed a registration manager, who reported directly to Jackman. It is unclear whether Gainor outranked the registration manager, with whom she worked “collaboratively.” See Dkt. 14-5 at 4, 13 (Jackman Dep. 9, 48).
2 14-2 at 3 (Pl.’s SUMF ¶ 15). After an event was assigned to her by Jackman, Gainor researched
and made recommendations with respect to event vendors such as hotels, restaurants, caterers,
entertainers, and audiovisual-equipment suppliers. See Dkt. 11 at 35 (Def.’s SUMF ¶ 29); see
also Dkt. 11-26; Dkts. 11-29–11-34; Dkt. 11-39; Dkt. 11-42; Dkt. 11-43; Dkt. 11-51. In the
course of this process, Gainor sometimes negotiated with vendors to obtain a better price. See
Dkt. 11-26 at 2; Dkt. 11-29 at 2–4; Dkt. 11-30 at 3; Dkt. 11-32 at 2; Dkt. 11-34 at 3; Dkt. 11-43
at 2; Dkt. 14-4 at 55, 57–58, 60 (Gainor Dep. 215, 225–28, 234–35). For some events, Gainor
developed event budgets based on previous years’ budgets that were then sent “up the chain” for
approval by Jackman or Stark, then by the executive team, and, finally, by the Optical Society’s
board. Dkt. 14-6 at 6–7 (Stark Dep. 13–18). Once the budgets were approved, Gainor was
responsible for ensuring a given event stayed within budget and then, post-event, for reviewing
bills for accuracy and ensuring they were coded properly in accordance with the finance
department’s system. Dkt. 14-6 at 10 (Stark Dep. 34–35). Gainor was also responsible for
myriad other logistical aspects of the events assigned to her, such as coordinating room set up,
Dkt. 11-54 at 2; Dkt. 14-5 at 24 (Jackman Dep. 91–92), shipping materials to the event location,
Dkt. 11-37 at 2, posting event information on the Optical Society’s website, Dkt. 14-4 at 38
(Gainor Dep. 149), producing event signage and name tags, Dkt. 14-5 at 15 (Jackman Dep. 53–
54), executing on-site registration, and providing on-site customer service to event participants,
see Dkt. 14-5 at 13–14 (Jackman Dep. 48–49). Broadly speaking, she generally served as a
project manager for the logistical aspects of events assigned to her. See Dkt. 14-5 at 12, 15
(Jackman Dep. 44, 56).
The Optical Society hosted several different kinds of events, and Gainor’s responsibilities
varied based on the type of event. Gainor worked on at least two “congresses,” which were
3 meetings focused on a particular topic in the optics industry that provided members with
networking and informational opportunities, including plenary sessions, symposia, short courses,
and exhibits. See Dkt. 11 at 31 (Def.’s SUMF ¶ 12) (stating Gainor worked on two congresses);
Dkt. 14-2 at 2 (Pl.’s SUMF ¶ 8) (stating Gainor worked on three congresses); see also Dkt. 11-15
at 2; Dkt. 14-4 at 27 (Gainor Dep. 104–105). Gainor was not responsible for choosing the
location for a congress, which was determined through a board-driven process that occurred two
years in advance. Dkt. 14-5 at 19–20, 29 (Jackman Dep. 71–73, 109); Dkt. 14-6 at 8 (Stark Dep.
26). After the location for a congress was selected, Gainor was responsible for working with the
designated hotel to review menus for food supplied by the hotel, and she coordinated other
logistical matters. Dkt. 14-5 at 20 (Jackman Dep. 74); Dkt. 14-6 at 7 (Stark Dep. 23–24). The
total cost of a congress ranged from $50,000 to $400,000, Dkt. 14-6 at 12 (Stark Dep. 41), and
the budgets for congresses were subject to the usual chain-of-command procedure described
above, Dkt. 14-6 at 7 (Stark Dep. 24).
Gainor also worked on several “governance” meetings and leadership conferences. See
Dkt. 11 at 31 (Def.’s SUMF ¶ 12) (stating Gainor worked on two “[g]overnance meetings,”
“Summer Strategy Week,” and two seasonal leadership conferences); Dkt. 11-14 at 11 (stating
Gainor worked on two leadership conferences); Dkt. 14-2 at 2 (Pl.’s SUMF ¶ 8) (stating Gainor
worked on “three leadership events”).3 Governance meetings and leadership conferences were
meetings of top members of the Optical Society (including members of the board and other
committees) at which the organization’s policies, programming, and procedures were discussed
and established. See Dkt. 11 at 32 (Def.’s SUMF ¶¶ 15, 16); Dkt. 14-4 at 26 (Gainor Dep. 101).
3 It is undisputed that the 2012 Winter Leadership Conference had largely been planned before Gainor began work, and that she was, accordingly, not the lead meetings manager for that event. Dkt. 14-4 at 22, 25 (Gainor Dep. 82–85, 96); Dkt. 17 at 9. 4 For these events, Gainor was required to work closely with the Optical Society’s executive
office, to which she submitted recommendations as to appropriate venues and other vendors.
Dkt. 11-18 at 3; Dkt. 14-5 at 17, 20–21 (Jackman Dep. 63–64, 76–78); Dkt. 14-6 at 12 (Stark
Dep. 43–44). The executive office provided itemized budgets to Gainor for these meetings,
directing, for example, how much could be spent on catering. See Dkt. 11-28 at 2; Dkt. 14-4 at
33–34 (Gainor Dep. 128–30); Dkt. 14-6 at 13–14 (Stark Dep 47–49).
Finally, Gainor also worked on several “incubator” meetings, which were “meeting[s]
with limited participation of . . . 70 to 75” leaders from a designated field of optics held at the
Optical Society’s offices in Washington, D.C. See Dkt. 11 at 31 (Def.’s SUMF ¶ 12) (stating
that Gainor worked on four incubator meetings); Dkt. 14-2 at 2 (Pl.’s SUMF ¶ 8) (stating that
Gainor worked on two incubator meetings); Dkt. 14-5 at 6 (Jackman Dep. 20). Incubator
meetings were led by a volunteer “host” from the professional community who invited the
participants. Dkt. 14-5 at 7 (Jackman Dep. 22). At the conclusion of the meeting, the host
would submit a whitepaper summarizing the participants’ discussion of scientific ideas. Dkt. 14-
5 at 6 (Jackman Dep. 20); Dkt. 11-47 at 2. For such meetings, the meeting manager was the
“logistics overseer,” while the director of business development worked on the program for the
meeting. Dkt. 14-5 at 7 (Jackman Dep. 21). Gainor was responsible for tasks such as facilitating
the production of a welcome letter from the host to participants, Dkt. 14-5 at 7 (Jackman Dep.
22–23), coordinating the receipt of the whitepaper from the host, Dkt. 11-45 at 2; Dkt. 11-47 at
2, providing restaurant recommendations for evening events, and general logistical project
management, Dkt. 14-5 at 29, 32 (Jackman Dep. 112, 122).4 For incubator meetings, meeting
4 Gainor did not need to select a hotel for incubator meetings because the Optical Society would typically use the same hotel near its offices. Dkt. 14-6 at 14 (Stark Dep. 51). 5 managers were provided “placeholder budgets,” which were then modified as the event
approached. Dkt. 14-5 at 33–34 (Jackman Dep. 128–29). For some of the incubator meetings,
Jackman and Stark made the budget modifications, but for others Gainor made modifications to
the budget that were then finalized by the director of development. Dkt. 14-5 at 7, 33–34
(Jackman Dep. 21–22, 126–29).
The Optical Society terminated Gainor’s employment in March 2013, citing performance
issues. See Dkt. 11 at 39 (Def’s SUMF ¶ 41). On April 30, 2013, Gainor filed this suit under
FLSA and DCMWA, seeking to recover unpaid overtime wages, liquidated damages, attorney’s
fees, and costs. See Dkt. 1 (Compl. ¶ 35).
II. LEGAL STANDARD
The Optical Society moves for summary judgment on Gainor’s claims for overtime pay
under FLSA and DCMWA, contending that the administrative-employee exemption applies and
that, even if the exemption does not apply, Gainor is not entitled to liquidated damages because
the Optical Society had a good-faith belief that the exemption applied. See Dkt. 11. Summary
judgment is appropriate when “the movant 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A fact is material if it
‘might affect the outcome of the suit under the governing law,’ and a dispute about a material
fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Liberty
Lobby, 477 U.S. at 248). “Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge[.] . . . The
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
6 favor.” Liberty Lobby, 477 U.S. at 255. To defeat a summary judgment motion, however, the
nonmoving party must offer more than “a scintilla of evidence” in support of its position. Id. at
252. Rather, “there must be evidence on which the jury could reasonably find for the plaintiff.”
Id. “In essence, . . . the inquiry [is] . . . whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251–52.
III. DISCUSSION
FLSA “ordinarily requires employers to pay employees time-and-one-half for hours
worked beyond the forty per week unless the employees are exempt.” Robinson-Smith v. Gov’t
Emps. Ins. Co., 590 F.3d 886, 888 (D.C. Cir. 2010); see also 29 U.S.C. §§ 207, 213. As relevant
here, an employer is not required to pay overtime to exempt “bona fide . . . administrative”
employees. 29 U.S.C. § 213(a). If an employer fails to pay a covered employee overtime, the
employee may bring a civil suit for her unpaid overtime wages, as well as an additional equal
amount as liquidated damages. 29 U.S.C. § 216(b). If, however, “the employer shows to the
satisfaction of the [C]ourt that the act or omission giving rise to such action was in good faith
and that he had reasonable grounds for believing that his act or omission” did not violate FLSA,
the Court may, “in its sound discretion, award no liquidated damages” or reduce the liquidated
damages. Id. § 260.
The District of Columbia’s overtime laws parallel FLSA. Like FLSA, DCMWA requires
time-and-one-half overtime but exempts administrative employees. See D.C. Code. § 32-
1003(c); see also id. § 32-1004(a)(1) (expressly incorporating Secretary of Labor’s definition of
the administrative-employee exemption). At the time that Gainor filed suit, an employer who
violated DCMWA’s overtime provisions was liable for the “unpaid wages, and an additional
7 amount as liquidated damages.” D.C. Code § 32-1012(a) (2013). Like FLSA, DCMWA
provided that the Court could reduce or decline to award liquidated damages if “the employer
shows to the satisfaction of the [C]ourt that the act or omission that gave rise to the action was in
good faith and that the employer had reasonable grounds for the belief that the act or omission
was not a violation.” Id. DCMWA’s provisions on civil actions have since been amended, but
the changes are immaterial to the present motion, and the parties agree that the FLSA standards
also apply to Gainor’s DCMWA claim. See Dkt. 11 at 15–16 n.6; Dkt. 14 at 3 n.2; see also
Galloway v. Chugach Gov’t Servs., Inc. 2016 WL 4179847, at *2 (D.D.C. Aug. 5, 2016); Powell
v. Am. Red Cross, 518 F. Supp. 2d 24, 37 n. 13 (D.D.C. 2007).5 The Court, accordingly, treats
Gainor’s FLSA and DCMWA claims together, and, for simplicity’s sake, the Court refers only to
FLSA in the remainder of this opinion.
As explained below, the Court concludes that genuine issues of material fact preclude
granting summary judgment on both the Optical Society’s “administrative-employee” exemption
5 DCWMA now provides for liability “in the amount of the unpaid wages, statutory penalties, and an additional amount as liquidated damages equal to treble the amount of unpaid wages,” and provides that the Court may
award an amount of liquidated damages less than treble the amount of unpaid wages, but not less than the amount of unpaid wages . . . [if] the employer shall demonstrate to the satisfaction of the [C]ourt that: (A) [t]he act or omission that gave rise to the action was in good faith; (B) . . . the employer had reasonable grounds for the belief that the act or omission was not in violation of this subchapter; and (C) . . . the employer promptly paid the full amount of wages claimed to be owed to the employee.
D.C. Code § 32-1012(b) (2016).
8 defense to the merits of Gainor’s claim and its good-faith defense to Gainor’s claim for
liquidated damages.6
A. Administrative-employee Exemption
“It is well-settled that ‘exemptions from [FLSA] are narrowly construed against the
employer in order to further Congress’s goal of affording broad federal government
protection[,]” McKinney v. United Stor-All Ctrs. LLC, 656 F. Supp. 2d 114, 121 (D.D.C. 2009),
6 As a threshold matter, the Court rejects the Optical Society’s contention that the Court should treat its statement of undisputed facts as conceded because Gainor failed to comply with the requirements of Local Rule 7(h). See Dkt. 17 at 5–10. As the Optical Society correctly observes, Local Rule 7(h) provides that “[a]n opposition to [a motion for summary judgment] shall be accompanied by a separate concise statement of genuine issues setting forth all material facts to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.” The rule further provides, moreover, that “the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.” DDC LR 7(h) (emphasis added); see also Moncriff v. Daro Realty, Inc., 2005 WL 1119794, at *1 (D.D.C. April 28, 2005). Federal Rule of Civil Procedure 56(e), similarly, provides that, “[i]f a party . . . fails to properly address another party’s assertion of fact . . . , the court may . . . consider the fact undisputed for purposes of the motion.” (Emphasis added). Here, rather than comply with the relevant rules and file a statement disputing the Optical Society’s statement of undisputed material facts supported by specific record citations, Gainor simply filed her own statement of undisputed material facts. That procedural deficiency has added to the work of both the defendant and the Court. Although a close question, the Court will not, however, accept the Optical Society’s invitation to treat its statement of undisputed material facts as conceded for two reasons: First, the potentially dispositive assertions contained in the Optical Society’s statement of material fact are better viewed as conclusions of law—or mixed statements of law and fact—than as concrete assertions of fact. The Optical Society asserts, for example, that “Gainor exercised discretion and independent judgment in planning, implementing, and managing [certain] projects.” Dkt. 11 at 33 (Defendant’s SUMF ¶ 19). To understand the legal implications of this assertion, as the Court is required to do, see Grimes v. District of Columbia, 794 F.3d 83, 95–99 (D.C. Cir. 2015) (Griffith, J., concurring), the Court must in any event examine the underlying factual record. Second, Gainor has supplied the Court with her own statement of undisputed material facts, which, although less helpful than the document required by the rules, has identified the factual material that Gainor apparently contends demonstrates that the Optical Society is not entitled to summary judgment. Under these unique circumstances, the Court concludes that treating the Optical Society’s statement of undisputed material facts as conceded is unwarranted.
9 and that “the burden is on the employer to demonstrate [that] the employee is in fact exempt,” id.
at 120 (quoting Am. Fed’n of Gov’t Emps., AFL–CIO v. Office of Pers. Mgmt., 821 F.2d 761, 771
(D.C. Cir. 1987)). As relevant here, FSLA provides that its overtime wage requirements do not
apply to “any employee employed in a bona fide executive, administrative, or professional
capacity, . . . as such terms are defined and delimited from time to time by regulations of the
Secretary.” 29 U.S.C. § 213(a)(1). The Secretary of Labor, in turn, has promulgated detailed
regulations outlining criteria for the application of the administrative-employee exemption. See
29 C.F.R. §§ 541.200 et seq. These regulations “are entitled to judicial deference and are the
primary source of guidance for determining the scope of exemptions to the FLSA.” McKinney,
656 F. Supp. 2d at 121 (internal quotation marks omitted) (first alteration in original).
Under the governing regulations, “[a]n employee falls under the administrative
exemption if [(1)] her compensation is high enough . . . , [(2)] her ‘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)] her ‘primary duty
includes the exercise of discretion and independent judgment with respect to matters of
significance.’” Radtke v. Lifecare Mgmt. Partners, 795 F.3d 159, 163 (D.C. Cir. 2015) (quoting
29 C.F.R. § 541.200(a)). “Whether a particular duty is administrative presents a legal question,
whereas the amount of time devoted to administrative duties, and the significance of those duties,
are questions of fact.” McKinney, 656 F. Supp. 2d at 122. “When the underlying facts are in
dispute, [t]he . . . question” whether the administrative exemption is available “under the FLSA
is a mixed question of law and fact,” and the weighing of disputed evidence “is the function of
the jury.” Radtke, 795 F.3d at 165 (internal quotation marks omitted).
10 1. Criterion One: Rate of Compensation
There is no dispute that the first criterion set forth in the Department of Labor regulations
is satisfied. In particular, this criterion is met if the employee is paid “not less than $455 week.”
29 C.F.R. § 541.200(a)(1). Here, Gainor was paid more than twice that amount; she was initially
paid $1,250 a week and was later paid about $1,270 a week. Dkt. 11 at 31 (Def’s SUMF ¶ 11);
Dkt. 14-2 at 1 (Pl’s SUMF ¶ 2). Accordingly, the first criterion supports the Optical Society’s
defense.
2. Criterion Two: Primary Duty
The second criterion for application of the exemption for administrative employees
requires that the employer show that the employee’s “primary duty [was] 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.” 29 C.F.R. § 541.200(a)(2). Under the governing
regulations, “[t]he term ‘primary duty’ means the principal, main, major or most important duty
that the employee performs,” as determined “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. § 541.700(a). Factors
relevant to the determination of an employee’s primary duty “include, but are not limited to”
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. Although “[t]he amount of time spent performing exempt work can be a useful guide in
determining whether exempt work is the primary duty of an employee[,] . . . [t]ime alone . . . is
not the sole test.” Id. § 541.700(b).
11 The Department of Labor regulations further provide that for the employee’s primary
duty to be “directly related to the management or general business operations of the employer or
the employer’s customers, . . . an employee must perform work 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). Examples of such exempt work include “work in functional areas such as tax;
finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement;
advertising; marketing; research; safety and health; personnel management; human resources;
employee benefits; labor relations; public relations, government relations; computer network,
internet and database administration; [and] legal and regulatory compliance.” Id. § 541.201(b).
The parties dispute whether Gainor’s “primary duty” was “directly related to the
management or general business operations of the employer.” 29 C.F.R. § 541.201(a).
According to the Optical Society, Gainor’s primary duty involved the “functional areas”
identified in the Department of Labor regulations as examples of work directly related to
management and general business operations. It contends, for example, that Gainor worked on
“budgeting, procurement, purchasing, research, marketing, public relations, and personnel
management.” Dkt. 11 at 21. According to Gainor, however, she merely provided logistical
support and “executed the meeting plans designed by [her superiors at the Optical Society], and
did not have autonomy with regard to significant decisions, such as meeting locations, topics, or
speakers.” Dkt. 14 at 2.
The Optical Society first argues that the meetings and events that Gainor worked on
“directly related to [its] business operations because they played a crucial role in generating
revenue” for it. Dkt. 11 at 20. In support of this argument, it points out that in 2012 revenue
12 from meetings accounted for nearly 30% of the organization’s revenue. Id. But Gainor was
responsible for, at most, only a small subset of the Optical Society’s meetings, see Dkt 14-4 at 28
(Gainor Dep. 106–07); see also Dkt. 11-4 at 2 (stating that Optical Society holds over “30
meetings . . . each year”); Dkt. 11 at 31 (Def.’s SUMF ¶ 12) (stating Gainor worked in some
capacity on eleven events during her tenure); Dkt. 14-2 at 2 (Pl.’s SUMF ¶ 8) (stating Gainor
worked in some capacity on eight events during her tenure), and the record is unclear as to the
importance of Gainor’s particular projects and duties. Indeed, the Optical Society’s analysis of
her position states that the impact of a mistake by a meetings manager would have only
“[m]oderate consequences for the association; perhaps significant consequences to the
[meetings] department.” Dkt. 11-12 at 4. Thus, although the Department of Labor regulations
provide that an employee who “leads a team of other employees assigned to complete major
projects for the employer” is one example of an exempt administrative employee—“even if the
employee does not have direct supervisory responsibility over the other” team members, 29
C.F.R. § 541.203(c)—the Court cannot, on the present record, conclude that Gainor led the kind
of major projects contemplated by the regulations, see id. (listing “negotiating a real estate
transaction or a collective bargaining agreement, or designing and implementing productivity
improvements” as examples of “major projects”).
In addition, the Optical Society has not established the absence of a genuine dispute of
material fact as to whether Gainor’s work on meetings and events involved the “management or
general business operations” of the Optical Society, as distinct from the mere production of its
meetings and events. 29 C.F.R. § 541.201(a). The fact that Gainor “recommend[ed] that [the
Optical Society] could save money by making coffee in-house in large urns rather than paying a
caterer to supply coffee for meetings and events,” Dkt. 11 at 35 (Def.’s SUMF ¶ 28), does show
13 that her work, on at least one occasion, touched on the management or operations of the Optical
Society. But that one incident does not establish, as a matter of law, that her primary duty was
“directly related to the management or general business operations” of the organization. To the
contrary, Gainor was told that she could further develop her suggestion for saving money on the
coffee service only if doing so “didn’t interfere with her productivity on other things,” Dkt. 14-5
at 33 (Jackman Dep. 125)—that is, her “productivity” on other matters had to come first. Nor
does the Optical Society’s reliance on a performance evaluation, stating that Gainor “was
assigned to oversee” an audiovisual request for proposal “that was a high impact/important
project to the entire department,” suffice to show that it is entitled to prevail as a matter of law.
See Dkt. 11 at 32 (Def.’s SUMF ¶ 18); Dkt. 11-14 at 5. Beyond this conclusory statement, the
record includes no explanation of the substance of this assignment or why it was “important” to
“the entire department.”
It appears from the present record, moreover, that Gainor played no role in determining
what events the Optical Society should hold, who would be invited to such events, or what
substantive matters would be on the agenda at these events. See, e.g., Dkt. 14-4 at 32 (Gainor
Dep. 125); Dkt. 14-5 at 14, 25, 27–28 (Jackman Dep. 50, 94, 101–108); Dkt. 14-6 at 21 (Stark
Dep. 79). Nor did she decide which events she would work on or what events other employees
would staff. Dkt. 14-4 at 37 (Gainor Dep. 145); Dkt. 14-5 at 4–5, 10, 12 (Jackman Dep. 12–13,
34–36, 42). Although there is evidence that Gainor provided some input regarding the
generation of revenue from the meeting and events on which she worked, see Dkt. 11-24 at 2
(email from Gainor to Jackman providing “a cost comparison of the original budget vs. a $40
registration increase”); Dkt. 11-25 at 2 (email from Gainor to Stark “showing the difference”
with a registration fee increase of $20 and asking Stark when he will tell her “the decision on the
14 registration rate”); Dkt. 14-5 at 28–29 (Jackman Dep. 107–108) (“[R]egistration fees for our
conferences are established and approved by our board of directors.”), that input was apparently
minimal. The same is true, moreover, with respect to Gainor’s input into the creation of budgets,
see Dkt. 14-5 at 7, 33–34 (Jackman Dep. 21, 126–29); Dkt. 14-6 at 5–7 (Stark Dep. 13–18, 24),
which, at least as far as the present record shows, was also limited.7 Although she had some
input into the creation of budgets for congresses and incubator meetings to which she was
assigned—she did not have input into the budgets for leadership and governance events. See
Dkt. 11-28 at 2; Dkt. 14-4 at 33–34 (Gainor Dep. 128–30); Dkt. 14-6 at 13–14 (Stark Dep 47–
49). Her budget recommendations as to the former, moreover, were always subject to approval
by more senior employees.
The record also reveals a genuine dispute of material fact regarding whether—and to
what extent—Gainor’s work involved the “functional areas” of procurement, purchasing,
research, marketing, public relations, and personnel management. 29 C.F.R. § 541.201(b).
Although meeting managers were expected to have “a solid understanding of contract
negotiation [and] vendor and service agreement negotiation[s],” Dkt. 14-5 at 11 (Jackman Dep.
37–38), the record, once again, includes only limited evidence of Gainor’s authority in the areas
of procurement and purchasing. Although she had authority to sign for all expenses incurred on-
site—that is, to sign receipts acknowledging that services had been rendered satisfactorily—the
Optical Society does not dispute that she could not sign contracts or service agreements with
7 Although a summary of the meeting manager position included in the record discusses the solicitation of corporate contributions and research into federal grant funding for Optical Society events, see Dkt. 11-44 at 2–3, the Optical Society offers no argument or evidence that Gainor was ever actually charged with such fundraising responsibilities. See generally Dkt. 11; Dkt. 11- 1.
15 vendors for any of the meetings she managed. See Dkt. 14-5 at 17–19 (Jackman Dep. 62–70);
Dkt. 17-1 at 25 (Def.’s Reply SUMF).8 It further concedes that to the extent that Gainor worked
on service agreements, she used templates provided to her by vendors or the Optical Society’s
legal department. See Dkt. 17-1 at 25 (Def.’s Reply SUMF); see also Dkt. 14-5 at 30 (Jackman
Dep. 115–116); Dkt. 14-5 at 33–34 (Jackman Dep. 126–29); Dkt. 14-6 at 5–6, 9 (Stark Dep. 13–
18, 31–32). Nor is the Court persuaded by the existing evidence regarding Gainor’s work
researching event locations and vendors that her primary duty necessarily involved the functional
area of “research” within the meaning of the Department of Labor regulations. See 29 C.F.R.
§ 541.201(b).
Similarly, the record is not “one-sided” with respect to the “functional areas” of
“marketing” or “personnel management.” Liberty Lobby, 477 U.S. at 251–52; 29 C.F.R.
§ 541.201(b). The Optical Society is correct that Gainor’s duties included working with event
leaders and the Optical Society’s marketing department to determine what graphics to use in
event materials, overseeing the posting of information about events to the Optical Society’s
website, and sending some communications to event participants. Dkt. 11-46 at 2; Dkt. 11-48 at
2; Dkt. 14-4 at 38 (Gainor Dep. 149); Dkt. 14-5 at 7 (Jackman Dep. 22–23). But Jackman
testified that Gainor could not make decisions that “deviat[ed]” from or “impact[ed] the
graphical representation and branding” of events “set by [the separate] marketing” department.
Dkt. 14-5 at 26 (Jackman Dep. 99).
8 Stark testified that Gainor had authority to sign orders “agreeing to the services that were requested by the meeting manager” but also that Gainor lacked authority “to sign contracts with vendors.” Dkt. 14-6 at 9 (Stark Dep. 30–32). It is unclear how those statements are reconcilable, but, in any event, at least for purposes of summary judgment, the Optical Society concedes that it Gainor could not sign-off on service agreements. See Dkt. 17-1 at 25. 16 As for the “function[]” of “personnel management,” 29 C.F.R. § 541.201(b), Jackman
testified that no other employees directly reported to Gainor and that Gainor had no authority to
hire or fire anyone, Dkt. 14-5 at 12 (Jackman Dep. 42). And although Gainor on at least some
occasions provided feedback on meeting planners’ and meeting coordinators’ performance to
their supervisors, see Dkt. 11-49 at 2; Dkt. 14-4 at 35 (Gainor Dep. 135–37), that uncontested
fact is insufficient to establish, as a matter of law, that her primary duty pertained to “personnel
management,” cf. 29 C.F.R. § 541.203(e) (providing that a human resources manager is exempt
where she “formulate[s], interpret[s], or implement[s] employment policies”). Indeed, the
existing record suggests that it was Gainor’s supervisor, Jackman, who was responsible for most
of the functional areas that the Optical Society attributes to Gainor, at least with respect to the
operations of the meetings department. See Dkt. 14-5 at 3–4 (Jackman Dep. 8–9) (Jackman’s
testimony that she was “responsible for personnel management for the logistics team within [the
Meetings Department,] . . . oversight of budgets, . . . managing expenses, [as well as] . . .
review[ing] contracts, . . . legal agreements, and . . . all financial documents and processes within
the department”).
Finally, the Optical Society contends that Gainor’s primary duty was analogous to those
of a municipal parks department’s events coordinator and camps coordinator—positions that a
2006 Department of Labor opinion letter found would satisfy the second criterion for application
of the administrative-employee exemption. See Dkt. 11 at 18 (citing Opinion Letter Fair Labor
Standards Act (FLSA), 2006 WL 3227789 (Sept. 21, 2006) (“DOL Op.”)). But “a job title alone
is insufficient to establish the exempt status of an employee,” Daniel B. Abrahams, et al., FLSA
Emp. Exemption Hdbk. ¶ 457, 2004 WL 5032713, and, at least on the present record, the
positions considered in the Department of Labor opinion letter are readily distinguishable.
17 In the 2006 opinion letter, the Department of Labor considered the exempt status of a
parks department’s events coordinator who was responsible for six festivals hosted by the city,
including recommending and implementing the themes, soliciting donations for the festivals,
negotiating and entering into contracts on behalf of the department, designing advertising and
marketing programs, and hiring and supervising employees for the festivals. See DOL Op., 2006
WL 3227789, at *1. The same opinion letter also considered the status of a camps coordinator
who was responsible for planning and coordinating the city’s summer day camps, including
picking the courses to offer, hiring and firing employees, deciding on locations and dates for the
camps, planning budgets and compensation, and hiring and training camp staff. Id. In
concluding that the two positions fell within the administrative-employee exemption, the
Department of Labor emphasized that the coordinators were involved in all phases of the events,
from conceptualization to implementation. Id. at *3. It further stressed that the coordinators had
authority to bind the city on significant matters “with little or no supervision.” Id. In this case,
in contrast, the undisputed facts do not establish that Gainor was entrusted with this type of
responsibility for Optical Society events. Rather, it appears that she merely served as a logistical
coordinator for events conceived of by others, with no authority to bind the Optical Society
either financially or in the other functional areas identified in the Department of Labor
regulations.
For the foregoing reasons, the Court concludes that genuine issues of material fact remain
as to whether Gainor’s primary duty was directly related to the Optical Society’s—or the
meeting department’s—management or general business operations. See Radtke, 795 F.3d at
165. For this reason alone, the Optical Society is not entitled to summary judgment on the merits
of Gainor’s claim.
18 3. Criterion Three: Discretion and Independent Judgment on Significant Matters
The Optical Society’s motion for summary judgment fails for a second reason as well.
To prevail on its defense that Gainor was an exempt administrative employee, the Optical
Society must also establish, based on undisputed facts, that her “primary duty include[d] the
exercise of discretion and independent judgment with respect to matters of significance.” 29
C.F.R. § 541.200(a)(3). The governing regulations provide that, “[i]n general, 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.” Id. § 541.202(a). “The 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), but, at the same time, it “does
not require that the decisions made by an employee have a finality that goes with unlimited
authority and a complete absence of review,” id. § 541.202(c). The regulations provide the
following non-exhaustive list of factors relevant to whether the employee exercises discretion
and independent judgment with respect to matters of significance:
[1] whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; [2] whether the employee carries out major assignments in conducting the operations of the business; [3] 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; [4] whether the employee has authority to commit the employer in matters that have significant financial impact; [5] whether the employee has authority to waive or deviate from established policies and procedures without prior approval; [6] whether the employee has authority to negotiate and bind the company on significant matters; [7] whether the employee provides consultation or expert advice to management; [8] whether the employee is involved in planning long- or short-term business objectives; [9] whether the employee investigates and resolves matters of significance on behalf of management; [10] and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.
19 Id. § 541.202(b).
The Optical Society does not contend that Gainor had authority to commit it in matters
with “significant financial impact” (factor four); that she had authority to “deviate from
established policies or procedures without prior approval” (factor five); that she could “negotiate
and bind the company on significant matters” (factor six); or that she “represent[ed] the company
in handling” or “resolving” complaints or disputes (factor ten). It does contend, however, that
the remaining factors support entry of summary judgment in its favor. See Dkt. 11 at 23–24.
But even assuming for present purposes that summary judgment might in some circumstances be
warranted based on only a subset of the governing factors, genuine issues of material fact abound
as to whether even those factors cited by the Optical Society favor its position.
There is little evidence that Gainor was given “authority to formulate, affect, interpret, or
implement management policies or operating practices.” 29 C.F.R. § 541.202(b) (factor one);
supra pp. 12–15. To be sure, as discussed above, she did suggest that the meetings department
make coffee in-house, Dkt. 14-5 at 32–33 (Jackson Dep. 124–25), but that was a single example
of policy input and, even then, she was only allowed to work on implementing her proposal to
the extent doing so did not detract from her other (presumably, principal) duties. In other
respects, moreover, the record is far from conclusive—or undisputed—with respect to whether
Gainor had the authority to formulate or affect policy, as opposed merely to implementing policy
decisions made by others.
Similarly, the parties dispute whether Gainor’s worked on “major assignments” or
matters affecting the organization’s operations “to a substantial degree.” 29 C.F.R. § 541.202(b)
(factors two and three). Although there is little doubt that sponsoring events is central to the
work of the Optical Society, the existing record does not definitively resolve whether each of the
20 events as to which Gainor played a substantial role were particularly important ones and, more
significantly, whether Gainor’s role, which involved logistics as opposed to substance, was
critical to the success of those events. And although the record demonstrates that Gainor
investigated various venues and vendors for the Optical Society, it is disputed whether those
tasks constituted “matters of significance” to the Optical Society or, more significantly, that
Gainor had authority to “resolv[e]” significant matters. 29 C.F.R. § 541.202(b) (factor nine);
supra pp. 15–16.
It is true that Gainor “provided consultation to [Optical Society management]” to at least
some degree. See Dkt. 11 at 23 (citing factor seven). It is undisputed, for example, that she
provided more senior employees with recommendations regarding the logistics of certain Optical
Society events. See, e.g., Dkt. 14-2 at 5 (Pl.’s SUMF ¶ 36). These recommendations, moreover,
at least arguably involved the “planning [of] long and short-term business objectives” of the
Optical Society. See Dkt. 11 at 23 (citing factor eight). And the Optical Society is also correct
that an employer can meet its burden under the third Department of Labor criterion without
showing that the employee had “unlimited authority [with] a complete absence of review” and
that the making of “recommendations for action rather than the actual taking of action” may
suffice. 29 C.F.R. § 541.202(c). But the Optical Society is mistaken in arguing that the relevant
question is “whether the employee’s duties include any amount of discretion.” Dkt. 11 at 22
(emphasis in original). In support of this contention, the Optical Society relies on the D.C.
Circuit’s decision in Robinson-Smith v. Gov’t Emps. Ins. Co., 590 F.3d 886 (D.C. Cir. 2010).
There, applying a prior version of the Department of Labor regulations,9 the Court of Appeals
9 Unlike the current regulations, the pre-2004 version of the regulations contained two, alternative tests. Under the “long test,” the employer was required to show that the employee “customarily and regularly exercise[d] discretion,” while, under the “short test,” the employer 21 held that the exemption did not require that the employee “frequently” exercise discretion. Id. at
894. But, the Court still recognized that discretion requires some level of “freedom from
immediate direction,” id., and that the exemption requires that the employee be free to exercise
that discretion “‘with respect to matters of significance,’” id. at 895 (quoting 29 C.F.R.
§ 541.207(a)).
Applying that test here, the Optical Society cannot prevail at summary judgment merely
by showing that Gainor made some recommendations to senior management and exercised some
day-to-day discretion regarding matters of minor significance. Making virtually any
recommendation does, of course, involve some discretion and judgment; indeed, it is unclear
what it would mean to make a recommendation without exercising any independent judgment.
Similarly, virtually every employee exercises some discretion regarding some tasks in the course
of their workdays. The critical question, however, is whether the employee exercised discretion
or independent judgment regarding “matters of significance.” 29 C.F.R. § 541.202(a). And,
here, the answer to that question is subject to genuine dispute. Gainor points to evidence, for
example, which when viewed in the light most favorable to Gainor, as the Court is required to do
at this stage of the proceeding, suggests that she was typically required to base her work on
templates, to use vendors that the Optical Society had previously used, and to obtain approval for
even minor matters. See, e.g., Dkt. 14-2 at 3–7 (Pl.’s SUMF ¶¶ 19, 20, 27, 37–38, 40, 43, 45, 48,
52).
was only required to show that the employee’s work “include[d] work requiring the exercise of discretion and independent judgment.” 29 C.F.R. § 541.2 (2003 version); see also Robinson- Smith, 590 F.3d at 892 (discussing the 2003 version of the regulation and the two tests). When the Department of Labor amended the regulations, it indicated that the new regulations were “consistent with the . . . short test,” 69 Fed. Reg., 22,122, 22,139 (Apr. 23, 2004), and the relevant language still asks whether the employee’s primary duty “includes” the exercise of discretion and independent judgment. 22 Finally, the Optical Society correctly notes that what matters is whether Gainor’s job
responsibilities involved significant matters admitting of the exercise of discretion and
independent judgment—and not whether Gainor “chose . . . to exercise this discretion.” Dkt. 11
at 26. It argues, moreover, that it found fault in Gainor’s performance precisely because she
“often refused or failed to exercise discretion and independent judgment.” Dkt. 11 at 33 (Def.’s
SUMF ¶ 21). The Court agrees that an employee hired to perform duties falling within the
exemption is not entitled to overtime compensation merely because he fails to exercise the
discretion and judgment required by the job; if the chief executive officer of a company became
overwhelmed by the responsibility of his position and was unable to make any decisions, he
would not thereby qualify for overtime compensation. But the evidence regarding whether this
is such a case is subject to reasonable dispute. Gainor testified that she did not receive a position
description when she started work, Dkt. 14-4 at 20 (Gainor Dep. 74–76), and, although there is
evidence that she was shown one when she interviewed, that document does not irrefutably
establish the actual responsibilities that Gainor was assigned. Rather, what matters most is what
was asked of Gainor by her supervisors over the course of her employment, and, as discussed
above, the evidence on that question is not “so one-sided that reasonable men and women could
not . . . reach[ ] a verdict in [Gainor’s] favor.” Radtke, 795 F.3d at 165 (quoting Muldrow v. Re-
Direct, Inc., 493 F.3d 160, 165 (D.C. Cir. 2007)).
The Court, accordingly, concludes that genuine issues of fact remain as to whether
Gainor’s “primary duty include[d] the exercise of discretion and independent judgment with
respect to matters of significance,” 29 C.F.R. § 541.200(a)(3), and thus, for this reason—as well
as the Optimal Society’s inability to establish the applicability of the second criterion as a matter
23 of law, see supra at p. 18—the Optical Society is not entitled to summary judgment on the merits
of its exempt-employee defense.
B. Liquidated Damages
Under FLSA, the Court has discretion to disallow or reduce liquidated damages “if the
employer shows to the satisfaction of the [C]ourt that the act or omission giving rise to such
action was in good faith and that [the employer] had reasonable grounds for believing that [its]
act or omission was not a violation of [FLSA].” 29 U.S.C. § 260; see also D.C. Code § 32-1012
(2013 & 2016) (parallel DCMWA provision). The Optical Society contends that, “[e]ven if the
Court finds a triable issue of material fact regarding whether Gainor was properly classified as
exempt,” the Court should enter “partial summary judgment [in favor of the Optical Society] on
Gainor’s claim for liquidated damages because no triable issue of fact exists regarding whether
[it] had a good faith and reasonable belief that it properly classified Gainor.” Dkt. 11 at 26.
The Court disagrees for two reasons. First, the Optical Society’s request for relief is
premature because “[a] court cannot evaluate the ‘reasonableness’ of an employer’s belief that its
‘act or omission was not a violation’ without first identifying the ‘act or omission.’” Thomas v.
Howard Univ. Hosp., 39 F.3d 370, 373 (D.C. Cir. 1994). “Then, and only then, is the court in a
position to ascertain what the employer believed about its acts or omissions, and to evaluate the
employer’s reasons for so believing.” Id. Unlike in the case cited by the Optical Society, there
remain questions of material fact surrounding the “act or omission” giving rise to this action. Cf.
Thompson v. Linda And. A., Inc., 779 F. Supp. 2d 139, 153–54 (D.D.C. 2011) (declining to grant
summary judgment where the employer “failed to show that [it] had reasonable grounds for
believing that [its] wage policy was not a violation” of FLSA). The Court cannot assess the
24 reasonableness of the Optical Society’s asserted belief that it properly classified Gainor as
exempt without a more complete record as to the nature of her job duties in the relevant context.
Second, the Optical Society has not adduced the kind of evidence necessary for it to
prevail as a matter of law on the question of liquidated damages. As the Optical Society
acknowledges, “[t]he good faith defense to liquidated damages requires ‘an affirmative showing
of a genuine attempt to ascertain what the law requires,’ not simply the absence of bad faith.” Id.
at 153 (quoting Danesh v. Rite Aid Corp., 39 F. Supp. 2d 7, 13 (D.D.C. 1999); see also Dkt. 11 at
26. The good-faith defense, moreover, requires both “a subjective inquiry” into the employer’s
beliefs and application of “an objective standard.” Laffey v. Nw. Airlines, Inc., 567 F.2d 429,
464 (D.C. Cir. 1976), overruled in part on other grounds, McLaughlin v. Richland Shoe Co., 486
U.S. 128, 134 (1988); see also 29 U.S.C. § 260. Here, however, the Optical Society has failed to
identify any evidence regarding “what [it] believe[d] about [the relevant] acts or omissions” or
its “reasons for . . . believing” that those acts or omissions were lawful. Thomas, 39 F.3d at 373.
Rather, it merely reargues the merits of whether Gainor was an exempt administrative employee
and states that the conclusion that she was exempt “is reinforced by” the 2006 Department of
Labor opinion letter discussed above. See Dkt. 11 at 26–27; see also supra pp. 17–18. That
evidence says nothing about the Optical Society’s subjective state of mind and, for the reasons
explained above, fails to show that it was “objectively” reasonable for it to have failed to pay
Gainor overtime wages.
Although “ambiguous or complex legal requirements may provide reasonable grounds for
an employer’s good faith but erroneous belief that he is in conformity with the Act[,] . . . legal
uncertainty, to assist the employer’s defense, must pervade and markedly influence the
employer’s belief; merely that the law is uncertain does not suffice.” Laffey, 567 F.2d at 466.
25 Here, the Optical Society has offered no evidence that it in fact relied on the 2006 Department of
Labor opinion letter to make its determination that Gainor was exempt and, even if it had
adduced such evidence, the Court could not determine on the present disputed record whether
such reliance would have been reasonable. Cf. Thomas, 39 F.3d at 373 (“In most instances an
employer will be able to satisfy § 260’s ‘reasonable grounds’ requirement only if it has relied on
a reasonable, albeit erroneous, interpretation of [FLSA] or of the regulations issued
thereunder.”). The Court, accordingly, denies the Optical Society’s motion for summary
judgment with respect to liquidated damages.
CONCLUSION
For the foregoing reasons, the Optical Society’s motion for summary judgment, Dkt. 11,
is DENIED. The parties shall appear for a status conference on October 5, 2016, at 10:00 a.m.
in Courtroom 21.
SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: September 7, 2016