United States Court of Appeals For the First Circuit
Nos. 22-1134 22-1135
PETER MARCUS, on behalf of himself and others similarly situated; MATT KOLTNOW, on behalf of himself and others similarly situated; DIANNE BARTON-PAINE, on behalf of herself and others similarly situated; ERIC BELL; JENNIFER CARMICHAEL; SUSAN S.M. DOE; HARRY FALK; JOHN GRAM; ARLEEN HARVEY; JEFFREY A. JACOB; CANDACE S. KOSCHNER; TERRY LAVENDER; KARL P. MILLER, JR.; MCKENZIE MYERS; JOAN M. PARADEIS; KENNETH VAN CLEVE; NANCY R. WATKINS; MARILYN WELLS; LYNN YOKEL,
Plaintiffs, Appellants/Cross-Appellees,
v.
AMERICAN CONTRACT BRIDGE LEAGUE,
Defendant, Appellee/Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Kayatta, Howard, and Montecalvo, Circuit Judges.
Raymond Dinsmore, with whom Peter Goselin, The Law Office of Peter Goselin, and Hayber, McKenna & Dinsmore, LLC were on brief, for appellants/cross-appellees. Paul E. Prather, with whom Melissa L. McDonagh, Francis J. Bingham, and Littler Mendelson, P.C. were on brief, for appellee/cross-appellant. August 14, 2023 MONTECALVO, Circuit Judge. Peter Marcus originally
brought this action against the American Contract Bridge League
("ACBL"), where he was formerly employed. In the amended
complaint, Marcus and his co-plaintiffs sought unpaid overtime
wages that they claimed were due under the Fair Labor Standards
Act ("FLSA"). See 29 U.S.C. § 207(a). Marcus also claimed that
he was wrongfully discriminated and retaliated against for
requesting such pay. ACBL and plaintiffs both sought summary
judgment on the wage claims, and ACBL sought summary judgment on
Marcus's retaliation claim. ACBL asserted that plaintiffs were
exempt from the overtime requirement because they were properly
classified as administrative employees under the FLSA. The
plaintiffs countered that their primary duties did not involve
managerial work sufficient to satisfy the exemption.
Based on facts it deemed undisputed, the district court
concluded that the administrative exemption applied to five
classifications of employees because their primary duties related
to ACBL's management or general business operations, and that those
employees were not entitled to overtime pay; accordingly, partial
summary judgment was entered for ACBL. The court also concluded
that one classification of employees was not subject to the
administrative exemption and that those employees were entitled to
overtime pay; accordingly, summary judgment was entered for
certain plaintiffs. As to Marcus's retaliation claim, the district
- 3 - court entered summary judgment for ACBL because it found that
Marcus failed to show that any adverse employment action taken
against him was causally connected to him seeking overtime wages.
These cross appeals follow.
I. Statutory Background
The FLSA requires certain employers to pay their
employees at least "one and one-half times the regular rate" for
any hours worked in excess of a forty-hour workweek. 29 U.S.C.
§ 207(a)(1). Exempt from this overtime requirement is "any
employee employed in a bona fide . . . administrative . . .
capacity." Id. § 213(a)(1). An employer seeking to establish
that an employee is exempt under the "administrative" exemption
must show that: (1) the employee's salary is at least $684 per
week; (2) the employee's "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) the employee's "primary duty includes the exercise of
discretion and independent judgment with respect to matters of
significance." 29 C.F.R. § 541.200(a).
When considering whether the administrative exemption
applies, the first determination is what an employee's "primary
duty" is. "Factors to consider when determining the primary duty
of an employee include, but are not limited to, the relative
importance of the exempt duties as compared with other types of
- 4 - duties; the amount of time spent performing exempt work; [and] the
employee's relative freedom from direct supervision." Id.
§ 541.700(a). However, "an employee's 'primary' duty is not
determined solely by the amount of time [they] devote[] to the
different categories of tasks -- i.e., exempt vs. nonexempt -- but
on the overall character of [their] position." Marzuq v. Cadete
Enters., Inc., 807 F.3d 431, 436 (1st Cir. 2015); see 29 C.F.R.
§ 541.700(a) ("Determination of an employee's primary duty must be
based on all the facts in a particular case, with the major
emphasis on the character of the employee's job as a whole.").
Assuming the salary criterion of 29 C.F.R. § 541.200(a)
is met, once an employee's primary duty is established, the
operative question then becomes whether that primary duty is "work
directly related to the management or general business operations
of the employer or the employer's customers." 29 C.F.R.
§ 541.201(a). "To meet this requirement, an employee must perform
work directly related to assisting with the running or servicing
of the business." Id. The employee's primary duty also "must
include the exercise of discretion and independent judgment with
respect to matters of significance." Id. at § 541.202(a). If all
of these criteria are met, then the employee is exempt and not
entitled to overtime pay.
- 5 - II. Factual Background
ACBL is the largest bridge organization in the world,
with over 162,000 members. ACBL's mission is to "promote, grow
and sustain the game of bridge and serve the bridge-related
interests of its members" throughout the United States, Canada,
Mexico, and Bermuda. ACBL divides its geographical reach into
twenty-five districts, and each district is divided into a varying
number of units. In furtherance of its mission, ACBL sanctions
bridge tournaments at three different levels: sectionals, which
usually involve only one unit; regionals, which usually involve
one district; and the North American Bridge Championships
("Nationals"), which are held three times a year and involve all
districts. While Nationals are sponsored and run by ACBL, regional
and sectional tournaments are not; ACBL does provide staff "to
direct and support the [regional and sectional] tournaments and
will bill the tournament sponsor."
A. Relevant Job Positions at ACBL
The job titles assigned by ACBL to their employees
relevant to the instant appeal are Tournament Director, National
Tournament Director, Associate National Tournament Director, Field
Supervisor, Area Manager, and Mentor. Tournament Directors "act
as a referee for the games played at the tournament to ensure they
are played fairly and with integrity for all the players in
accordance with the Laws of Duplicate Bridge." Tournament
- 6 - Directors may, inter alia, rule on disputes, enforce and maintain
discipline among players, keep and verify the accuracy of scores,
ensure timely play, and penalize players via the deduction of
points or ejection. Tournament Directors are also responsible for
setting up the tournaments and selling entries.
The number of Tournament Directors present at a given
tournament varies depending on the level of tournament, but every
tournament has one Tournament Director who serves as the
Director-in-Charge ("DIC"). The DIC role is typically filled by
a full-time ACBL employee who is responsible for determining how
many Tournament Directors are required for a tournament and
supervising those Tournament Directors and other tournament staff.
Tournament Directors are also assigned ranks based on
their experience and skill. The rank determines what level of
tournament the employee can oversee as a DIC. All full-time
Tournament Directors hold the rank of (from junior to senior)
tournament director, associate national tournament director, or
national tournament director. Generally, the DIC must have the
rank of (1) at least tournament director for a sectional
tournament; (2) at least associate national tournament director
- 7 - for a regional tournament; and (3) at least national tournament
director for Nationals.1
Field Supervisor was a position in existence prior to
January 2018, primarily responsible for tournament organization,
operations, and directing. Tournament Directors reported to Field
Supervisors, and Field Supervisors were responsible for hiring and
firing decisions, as well as promotion, demotion, recruiting,
training, and development of Tournament Directors. Field
Supervisors assigned the DIC for sectional and regional
tournaments and completed performance reviews for the Tournament
Directors they oversaw. At tournaments, Field Supervisors
refereed game play while also supervising and providing feedback
to their direct reports.
In early 2018, ACBL reorganized its Field Operations
department: it eliminated the Field Supervisor position and
created four new positions. The duties of the Field Supervisor
position were rolled over to the newly created Area Manager
position, except that Area Managers have responsibility over more
districts and perform special projects. Area Managers are the
1 We agree with the district court's observation that "ACBL uses a somewhat bewildering variety of job titles and rankings." For example, "Tournament Director" is seemingly used as a general term for those who oversee tournaments, a job title, and a specific rank. Likewise, National Tournament Director and Associate National Tournament Director are seemingly job titles within ACBL as well as ranks of tournament directors.
- 8 - "first point of contact" for issues relating to the operation of
tournaments and the setup of games, and they interpret and
implement game rules, manage the flow and pace of gameplay, and
resolve disputes, including appeals made by players concerning the
rulings of other Tournament Directors. Area Managers also make
employment decisions, including hiring and firing, assigning DICs,
and writing annual performance reviews.
Mentor was another position created in the 2018
reorganization. This position only existed from January 2018 to
June 2019 and was responsible for the recruitment, training, and
promotion of Tournament Directors. Mentors directly answered
Tournament Directors' questions, checked their hours, and gave
performance reviews. Mentors could also serve as a DIC at large
tournaments and work directly with Area Managers to make tournament
staffing decisions. Although Mentors did not have the authority
to fire employees, their recommendations as to employment
decisions were generally deferred to.
The final two positions that came into existence because
of the 2018 reorganization are National Tournament Director and
Associate National Tournament Director. These employees are
responsible for managing large tournaments and associated staff;
training and mentoring other directors in making rulings, game
setup, and scheduling; guiding disputes concerning game play and
- 9 - poor behavior, including through the appeals process; and drafting
regulations.
B. Compensation
1. Tournament Directors
In 2014, the only relevant position in existence was
that of Tournament Director. At that time, ACBL asked its legal
counsel to evaluate whether full-time Tournament Directors were
properly classified as exempt under the FLSA. ACBL was advised
that it had a "solid argument" that full-time Tournament Directors
were exempt pursuant to the FLSA's administrative exemption; ACBL
thus continued to treat those employees as exempt from overtime
pay requirements. ACBL was also advised that employees who
typically acted as DICs "almost certainly would qualify as exempt."
2. Department of Labor Investigation
In 2014, Marcus -- a full-time salaried Tournament
Director -- filed a complaint with the United States Department of
Labor ("DOL"). Marcus alleged that he had been misclassified as
an exempt employee and was entitled to overtime pay. A DOL
investigator concluded that "tournament directors in the field"
were not exempt because "they did not supervise employees, did not
have any authority to hire, fire, or discipline or make those
recommendations, and did not have management as their primary
duty." The investigator concluded that Marcus was entitled to
$3,883.14 in overtime back wages.
- 10 - The DOL investigator communicated their findings to
ACBL's counsel in October 2015. Counsel told the investigator
that ACBL would not agree to pay any back wages because it
disagreed that overtime was due to full-time salaried Tournament
Directors. Counsel also said that ACBL was planning to discontinue
the Tournament Director position and assured future compliance.
The investigator "recommended that the file should be
administratively closed." The investigation did not result in any
monetary penalties or enforcement actions against ACBL.
3. Post-Investigation Exemption Status
In January 2017, ACBL began to classify full-time
Tournament Directors as non-exempt. Field Supervisors remained
exempt and ineligible for overtime pay. When ACBL reorganized its
Field Operations team in 2018, the newly created positions of
National Tournament Director, Associate National Tournament
Director, Area Manager, and Mentor were all full-time exempt
salaried positions.
C. Marcus's Retaliation Claim
Marcus was first hired by ACBL in 1993 as a Tournament
Director and, in 2001, he held the rank of associate national
tournament director. In 2011, he began directing Sectional
Tournaments at Clubs ("STaCs"), which allow players from various
clubs to compete in a tournament even though the players are in
different physical locations. When directing STaCs, Marcus
- 11 - assisted -- by phone or email -- in directing games at the clubs,
as well as compiling the results.
In June 2015, Marcus was promoted to the position of
STaC Coordinator and his salary was increased. The STaC
Coordinator position was salaried and ineligible for overtime. In
Marcus's annual performance review for the period from January 1,
2015, to December 31, 2015, he received an overall rating of "Meets
Expectations - 3," meaning the reviewer -- ACBL's Chief Executive
Officer Robert Hartman -- found that his "[p]erformance
consistently meets the standards of performance for [his] position
and sometimes exceeds expectations." After the performance
review, Marcus's salary was increased to approximately $893 per
week.
Thereafter, in April 2016, Marcus applied for the open
position of Director of Field Operations. Marcus interviewed for
the position in June 2016; he was the only candidate interviewed
at that time. ACBL's Human Resources Manager, Nancy Rosenbury,
told Marcus that his interview had gone well, and sometime in
mid-June Marcus met with Hartman to ask when a hiring decision
would be made. Hartman apparently indicated that he expected "to
make some decision in the near future." Marcus alleges that
sometime thereafter Rosenbury called to inform him that he would
not be hired as the Director of Field Operations due to
"attitudinal concerns."
- 12 - The following month, Marcus proposed to Hartman that he
work as the Director of Field Operations on a trial basis. On
August 9, 2016, Hartman informed Marcus that "[t]he executive team
met [] and [] discussed your proposal. We are still considering
the position. Whatever route we take, we decided not to bring
anyone in on an interim or trial basis." Two days later, Hartman
reached out to Marcus about a complaint he received about STaC
scores not being timely posted. Marcus resigned, effective
immediately, on August 12, 2016. Marcus testified that he felt
frustrated and that there was no future for him at ACBL.
In April 2017, ACBL hired another individual as Director
of Field Operations. That individual had no previous knowledge of
bridge directing or bridge tournaments.
III. Procedural History
A. Institution
Marcus filed the instant action on June 23, 2017, and
filed an amended complaint on November 17, 2017. Marcus's suit
alleged that ACBL failed to pay him and other similarly situated
employees their FLSA-required overtime wages. Marcus also alleged
that ACBL retaliated against him for lodging a complaint with the
DOL, in violation of the FLSA. The district court conditionally
certified the FLSA collective action, and notice was issued to
potential class members. The district court ultimately recognized
- 13 - Marcus, Matt Koltnow, and Dianne Barton-Paine as named plaintiffs,
along with sixteen opt-in plaintiffs.
B. Motion to Substitute
Kenneth Van Cleve, an opt-in plaintiff, died on July 9,
2019. ACBL filed a notice of death on May 11, 2020. On October
13, 2020, plaintiffs filed a motion to substitute his widow, Sarah
Van Cleve, as a party to the lawsuit. ACBL objected, arguing that
the motion to substitute was untimely because plaintiffs failed to
file it within 90 days after ACBL filed the notice of death as
required by the Federal Rules of Civil Procedure. The plaintiffs
maintained that because ACBL did not serve the notice of death on
Sarah Van Cleve, Kenneth's personal representative, the 90-day
clock never started to run and, "[i]n the absence of a duly-served
[n]otice of [d]eath, the [c]ourt is not constrained from
considering the plaintiffs' timely motion to substitute."
The district court agreed with ACBL and denied the motion
to substitute. The court found that pursuant to Rule 25(a)(1) of
the Federal Rules of Civil Procedure, if a motion to substitute is
not made within 90 days after service of a notice of death, the
action must be dismissed. As to plaintiffs' argument that ACBL
was required to serve the notice of death upon Kenneth's personal
representative, the court found that argument "without merit; the
rule contains no such requirement."
- 14 - C. Summary Judgment Proceedings
In May 2020, the parties filed cross-motions for summary
judgment. ACBL and plaintiffs both moved for summary judgment on
the unpaid overtime wages claims, and ACBL moved for summary
judgment on Marcus's retaliation claim.
It is undisputed that plaintiffs satisfy the salary
criterion of 29 C.F.R. § 541.200(a). That left only two prongs of
the administrative exemption test for the district court to
consider: (1) whether the employee's "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 (2) whether the employee's "primary duty
includes the exercise of discretion and independent judgment with
respect to matters of significance." 29 C.F.R. § 541.200(a).
The district court ultimately concluded that Tournament
Directors are not subject to the administrative exemption because
"the primary duty of Tournament Directors, which is officiating
bridge contests, does not relate to the management or general
business operations of ACBL, and [Tournament Directors] do not
exercise discretion or independent judgment with respect to
matters of significance." Thus, the district court found that
those plaintiffs who worked as "salaried Tournament Directors
since April 24, 2017," were entitled to overtime pay.
- 15 - As to the remaining positions (National Tournament
Directors, Associate National Tournament Directors, Field
Supervisors, Area Managers, and Mentors), the district court found
that all these positions are subject to the administrative
exemption. The district court concluded that the primary duty of
these positions -- managing large tournaments and associated
staff; training and mentoring other directors in making rulings
and tournament scheduling; guiding disputes; and drafting and
updating tournament regulations -- "go[es] beyond officiating
individual contests and directly relate[s] to ACBL's management
and general business operations" and "includes the exercise of
discretion and independent judgment with respect to matters of
significance." Thus, the district court found that those
plaintiffs who worked as National Tournament Directors, Associate
National Tournament Directors, Field Supervisors, Area Managers,
or Mentors were not entitled to overtime pay.
Finally, the district court granted ACBL's motion for
summary judgment as to Marcus's retaliation claim. The court found
that "Marcus ha[d] failed to put forth evidence from which a
reasonable factfinder could infer that [ACBL] did not promote him
because of his November 2014 complaint" to the DOL. This appeal
followed.
- 16 - IV. Standard of Review
We review the entry of summary judgment de novo. See
Walsh v. Unitil Serv. Corp., 64 F.4th 1, 5 (1st Cir. 2023).
"Cross-motions for summary judgment do not alter the basic . . .
standard, but rather simply require us to determine whether either
of the parties deserves judgment as a matter of law on facts that
are not disputed." Alasaad v. Mayorkas, 988 F.3d 8, 16 (1st Cir.
2021), cert. denied sub nom., Merchant v. Mayorkas, 141 S. Ct.
2858 (2021) (quoting Adria Int'l Grp., Inc. v. Ferre Dev., Inc.,
241 F.3d 103, 107 (1st Cir. 2001)).
Because the district court's ruling on the motion to
substitute a party turned on a question about the interpretation
of Rule 25 itself, that ruling requires de novo review. See
Comfort v. Lynn Sch. Comm., 560 F.3d 22, 25 (1st Cir. 2009)
(employing de novo review "about the meaning or interpretation" of
a Federal Rule of Civil Procedure); see also Barlow v. Ground, 39
F.3d 231, 233 (9th Cir. 1994) ("The proper interpretation of Rule
25(a) is a question of law that we review de novo.").
We begin with the motion to substitute a party, then
move to Marcus's retaliation claim, and end on the overtime wages
claims.
- 17 - V. Analysis
A. Motion to Substitute a Party
The parties dispute whether ACBL was required to serve
the statement noting death upon Kenneth Van Cleve's successor or
representative. If a claim survives the death of a party, Rule 25
"facilitates the substitution of a 'proper party' to take the place
of the decedent." Silas v. Sheriff of Broward Cnty., 55 F.4th
872, 876 (11th Cir. 2022) (quoting Fed. R. Civ. P. 25(a)(1)). The
rule requires "service of a statement noting the death," but fails
to specify upon who that notice must be served. Fed. R. Civ. P.
25(a)(1). However, who, exactly, must be served is an important
facet of the rule because "[i]f the motion [to substitute a party]
is not made within 90 days after service of a statement noting the
death, the action by or against the decedent must be dismissed."
Id.
We have not yet had occasion to address whether the
statement of the fact of death must be served upon the decedent's
successor or personal representative before the 90-day clock
starts to run. Several of our sister circuits have considered
this issue and concluded that service of the notice of death upon
nonparty successors or representatives of the deceased party is
required to commence the 90-day substitution period. See Silas,
55 F.4th at 876; Sampson v. ASC Indus., 780 F.3d 679, 681-82 (5th
Cir. 2015); Atkins v. City of Chicago, 547 F.3d 869, 873 (7th Cir.
- 18 - 2008); Barlow, 39 F.3d at 234; Gilmore v. Lockard, 936 F.3d 857,
866 (9th Cir. 2019); Grandbouche v. Lovell, 913 F.2d 835, 837 (10th
Cir. 1990); Bass v. Attardi, 868 F.2d 45, 50 n.12 (3d Cir. 1989);
Farris v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985).
This conclusion is supported by both the language and purpose of
the rule.
Rule 25(a)(3) plainly requires that the statement noting
death "must be served on the parties as provided in Rule 5 and on
nonparties as provided in Rule 4." The only nonparties mentioned
in Rule 25 are "the decedent's successor or representative." Fed.
R. Civ. P. 25(a)(1). As such, it would be superfluous for the
rule to provide that nonparties must be served under Rule 4 if
service upon a decedent's successor or personal representative was
not required. See United States v. Walker, 665 F.3d 212, 228 (1st
Cir. 2011) (noting that "[g]reat weight must be given to the plain
language of [a] rule" of federal procedure).
Moreover, when Rule 25(a)(1) was last substantively
amended in 1963, the Advisory Committee noted that the intent of
the amended rule was to establish "a time limit for the motion to
substitute based not upon the time of the death, but rather upon
the time information of the death is provided by means of a
suggestion of death upon the record, i.e.[,] service of a statement
of the fact of death." Fed. R. Civ. P. 25 advisory committee's
note to 1963 amendment. It is clear to us that "information of
- 19 - the death" must be provided to nonparty successors or
representatives in order to empower them to take appropriate
"action to preserve the claim if so desired." Fariss, 769 F.2d at
962.
The import of this requirement is most apparent where,
as here, the "opposing party, to start the 90-day clock, filed the
suggestion of death." Atkins, 547 F.3d at 873. Service of the
suggestion of death upon the decedent's successor or personal
representative "alerts [them] to the consequences of death for a
pending suit." Fariss, 967 F.2d at 962. The function of "[t]he
90[-]day period [is] not intended to act as a bar to otherwise
meritorious actions." Rende v. Kay, 415 F.2d 983, 986 (D.C. Cir.
1969) (quoting Staggers v. Otto Gerdau Co., 359 F.2d 292, 296 (2d
Cir. 1966)). As such, "where a party files a suggestion of death,
it must do so in a manner that puts all interested parties and
nonparties on notice of their claims in order to trigger the 90-day
window." Gilmore, 936 F.3d at 866-67.
It appears that, of the circuits to have considered this
precise issue, only the Second Circuit has concluded that under
Rule 25(a)(1) the 90-day deadline for a party to move to substitute
is triggered by the proper service of a notice of death upon the
parties, "regardless of whether that notice was also served upon
the decedent's successor or representative." Kotler v. Jubert,
986 F.3d 147, 150 (2d Cir. 2021), cert. denied, 142 S. Ct. 598
- 20 - (2021). However, the Kotler court recognized that the facts of
the case before it did not arise from the posture of a "deceased
plaintiff's representative who, having never received service of
a notice of death, attempts to revive the deceased plaintiff's
dismissed lawsuit." Id. at 154 (emphasis in original). And that
is exactly the case we have here: Sarah Van Cleve was not served
with the notice of death, and she attempted to revive Kenneth's
claims by moving to substitute. There is no indication that Sarah
Van Cleve "actually received notice . . . and sat on h[er] hands
while the 90-day window lapsed." Id.
In sum, we hold that in order for the 90-day clock to
begin running under Rule 25, the suggesting party must properly
serve both the other parties and a nonparty successor or personal
representative of the deceased with a notice of death. Because
ACBL failed to serve Kenneth Van Cleve's successor with the notice
of death, the 90-day period to move to substitute was never
triggered. Thus, the district court erred in denying the motion
to substitute Sarah Van Cleve.
B. Retaliation
We next turn to whether the district court properly
granted summary judgment in favor of ACBL on Marcus's retaliation
claim. The FLSA prohibits employers from retaliating against "any
employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or
- 21 - related to" the FLSA. 29 U.S.C. § 215(a)(3). Employees mounting
an unlawful retaliation claim "must prove (1) that they 'engaged
in statutorily protected activity' and (2) that their employers
afterward took 'adverse employment action' against them (3) 'as
reprisal for having engaged in the protected activity.'" Uphoff
Figueroa v. Alejandro, 597 F.3d 423, 431 (1st Cir. 2010) (quoting
Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102
(1st Cir. 2004)).2
The parties do not dispute that the first part of this
test is met -- i.e., that Marcus engaged in statutorily protected
activity when he filed a complaint with the DOL -- and the district
court assumed that ACBL's "decision not to promote Marcus to
Director of Field Operations constitutes an adverse employment
action." Thus, the case turns on whether the record -- read in
the light most favorable to Marcus -- "suffices to support an
inference as to whether retaliatory animus was the 'true reason or
motive' for" Marcus not being promoted. Kearney v. Town of
Wareham, 316 F.3d 18, 23 (1st Cir. 2002) (quoting Hoeppner v.
Crotched Mtn. Rehab. Ctr., 31 F.3d 9, 14 (1st Cir. 1994)).
2 We have held before that "Title VII, ADEA, ERISA, and FLSA [] stand[] in pari passau," and that "judicial precedents interpreting one such statute [are] instructive in decisions involving another." Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir. 1997). Thus, we sometimes draw on precedents developed in other types of discrimination cases.
- 22 - We begin with the temporal proximity between the DOL
complaint and ACBL's decision not to promote Marcus. Marcus
maintains that "the timing" of the DOL complaint and ACBL's
decision not to promote him to Director of Field Operations
contributes to the requisite causal connection showing.
"[T]emporal proximity alone can suffice to 'meet the relatively
light burden of establishing a prima facie case of retaliation.'"
DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008) (quoting
Mariani-Colon v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d
216, 224 (1st Cir. 2007)).
The parties set forth different milestones from which to
measure temporal proximity. Marcus maintains that the relevant
time span is October 2015 -- when he alleges ACBL learned of the
DOL complaint -- to July 2016 -- when he was denied the position
of Director of Field Operations. Accepting Marcus's shortest
proposed timeline, the time between ACBL's knowledge of the
protected activity and the adverse employment action is nine
months, but "a gap of several months cannot alone ground an
inference of a causal connection between a complaint and an
allegedly retaliatory action." Ahern v. Shinseki, 629 F.3d 49, 58
(1st Cir. 2010).
However, Marcus does not only rely on the timing of the
employment actions as his evidence of causal connection. Indeed,
"'temporal proximity' is merely one factor relevant to causation,"
- 23 - Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15, 25 (1st Cir.
2014), and, where it is lacking, an inference of causation can be
"reinforced by other evidence in the record." Trainor v. HEI
Hosp., LLC, 699 F.3d 19, 28 (1st Cir. 2012). The "other evidence"
Marcus fastens on to show that ACBL's decision to not promote him
to Director of Field Operations was motivated by retaliatory animus
is that he was the only applicant interviewed for the position
and, thus he presumes, the only qualified applicant, and that ACBL
ultimately filled the position with someone Marcus believes was
"far less qualified than" himself. Marcus also relies on purported
statements made by ACBL's Human Resources Manager that he was not
promoted due to "attitudinal" concerns.
We begin with Marcus's latter argument. He maintains
that Rosenbury informed him that even though his interview had
gone well, he would not be hired as the Director of Field
Operations due to "attitudinal concerns." However, Marcus
testified under oath that Rosenbury "did not use that word for
sure because that's [his] word, not hers." "It is well-settled
that a judge must not engage in making credibility determinations
or weighing evidence at the summary judgment stage, but it is
equally clear that judges cannot allow conjecture to substitute
for the evidence necessary to survive summary judgment." Pina v.
Children's Place, 740 F.3d 785, 802 (1st Cir. 2014) (internal
citations omitted). As such, Marcus cannot rely on his speculative
- 24 - and unsupported assertion of why ACBL did not hire him for the
position when he readily admits that he "d[id] not remember
[Rosenbury's] words." See Cabán Hernández v. Philip Morris USA,
Inc., 486 F.3d 1, 8 (1st Cir. 2007) (noting that when reviewing
the entry of summary judgment, we will not "credit bald assertions,
empty conclusions, [or] rank conjecture").
We next turn to the fact that ACBL only interviewed
Marcus for the position but ultimately hired someone who had very
limited experience with the game of bridge. The record reflects
that after Marcus filed the DOL complaint, ACBL promoted him,
raised his pay, and gave him a positive performance evaluation.
Moreover, ACBL hired another individual as the Director of Field
Operations eight months after Marcus voluntarily resigned, and
Hartman testified that this individual "had a lot of experience in
[] many kinds of casino-type of environment[s]" and "gave a fresh
perspective to the organization." Marcus has not produced any
evidence that ACBL's stated reasons for denying him the position
of Director of Field Operations were pretextual.
We end with one additional argument advanced by Marcus:
that "Hartman harbored animus against Marcus for having initiated
a complaint . . ., and that the fruit of that animus was the
decision to deny Marcus a promotion." In furtherance of this
argument, Marcus contends that Hartman lied in claiming that he
did not remember Marcus applying for the position of Director of
- 25 - Field Operations, and that a reasonable jury could find this
omission was pretext for Hartman's retaliatory motive. However,
to draw an inference of causation "there must be proof that the
decisionmaker knew of the plaintiff's protected conduct when
[they] decided to take the adverse employment action." Pomales v.
Celulares Telefonica, Inc., 447 F.3d 79, 85 (1st Cir. 2006). A
reasonable juror could not, on this record, find that Hartman knew
about Marcus's protected activity.
The only evidence Marcus points to is that in November
2015 a DOL investigator told ACBL's legal counsel that Marcus was
owed overtime wages as a result of an audit. Marcus does not point
to any evidence that ACBL's counsel told Hartman -- or anyone at
ACBL for that matter -- about the overtime wages due, or that
counsel even adduced that Marcus was the one who filed the DOL
Complaint. Marcus does not contest this lack of evidence and does
not dispute that he "has no evidence [that Hartman knew he was the
one who filed the DOL complaint] other than his knowledge that he
informed the [DOL] that they had his permission to use his name."
Accordingly, any purported incredible testimony given by Hartman
is not probative of retaliation because there is no evidence in
the record from which a reasonable juror could infer that Hartman
knew about Marcus's protected activity.
In short, based on the record before us, we can find no
evidence of a causal connection between Marcus's filing of the DOL
- 26 - complaint and ACBL's decision not to promote him to Director of
Field Operations. We therefore affirm the district court's entry
of summary judgment in favor of ACBL on Marcus's retaliation claim.
C. Administrative Exemption
Finally, we consider whether the district court properly
classified the various positions at issue pursuant to the FLSA and
the administrative exemption. As we previously stated, the parties
do not dispute that the first prong of the administrative exemption
is met (sufficient compensation requirement) for all of the
positions. Rather, the disputes turn on the second prong (primary
duty is the performance of office or non-manual work directly
related to management or general business operations) and third
prong (primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance).
We begin with whether the Tournament Directors' primary
duty is "directly related" to the management or general business
operations of ACBL. As we recently noted, "it is often useful to
[first] identify and articulate the business purpose of the
employer." Walsh, 64 F.4th at 6. ACBL is in the business of
serving its members by annually "sanction[ing] over 3.5 million
tables of bridge, played in more than 3,000 bridge clubs and 1,100
sectional and regional tournaments, plus 1 million tables played
online." Providing Tournament Directors for contract bridge
- 27 - tournaments sanctioned by ACBL represents ACBL's largest source of
revenue besides membership dues.
The primary duty of Tournament Directors is to
"supervise a duplicate bridge contest." This work, when considered
in relation to ACBL's business purpose, is the very service that
ACBL is in the business of providing. Therefore, because
Tournament Directors "provide the service that [ACBL] is in
business to provide, the second prong is not satisfied." Walsh, 64
F.4th at 7; see Davis v. J.P. Morgan Chase & Co., 587 F.3d 529,
535 (2d Cir. 2009) (noting that "employees directly producing the
good or service that is the primary output of a business" do not
perform administrative work). The district court thus correctly
concluded that Tournament Directors are not subject to the
administrative exemption under the FLSA.
2. National Tournament Directors and Associate National Tournament Directors
Like Tournament Directors, the primary duty of National
and Associate National Tournament Directors is to supervise bridge
tournaments. They are required to work around 300 tournament
sessions each year. And, although they may have additional duties
such as training and mentoring other directors in
tournament-related areas, guiding disputes concerning game play,
and/or drafting tournament regulations, these duties all go
towards producing an ACBL-sanctioned bridge tournament. National
- 28 - and Associate National Tournament Directors' responsibilities
begin and end with the tournament they are working on. There is
no evidence in the record that National and Associate National
Tournament Directors are part of the management structure of ACBL
or that they assist "with the running or servicing of the
business." 29 C.F.R. § 541.201(a).
National Tournament Directors and Associate National
Tournament Directors produce the key product of ACBL-sanctioned
bridge tournaments. Given the nature of ACBL's business, their
primary duties amount to production work. See Desmond v. PNGI
Charles Town Gaming, L.L.C., 564 F.3d 688, 694-95 (4th Cir. 2009)
(holding that horse racetrack officials who observed and examined
horses and jockeys, filled out relevant paperwork for the horses
and order of finish for the race, and dealt with subsequent claims
were not administrative employees because they performed tasks to
produce the very product their employer offered to the public).
They did not perform "work directly related to [ACBL's] management
or general business operations." 29 C.F.R. § 541.200(a)(2).
We need not address whether their work met the additional
administrative exemption requirement of "includ[ing] the exercise
of discretion and independent judgment with respect to matters of
significance." Id. at § 541.200(a)(3). Both requirements must be
met for the exemption to apply. Because ACBL has failed to show
that the FLSA's administrative exemption applies to National
- 29 - Tournament Directors and Associate National Tournament Directors,
the district court erred in granting summary judgment in favor of
ACBL and in denying summary judgment to the corresponding
plaintiffs.
3. Field Supervisors and Area Managers
Unlike the preceding positions, Field Supervisors and
Area Managers meet both outstanding requirements of the
administrative exemption. Despite plaintiffs' argument to the
contrary, we do not agree that the primary duty of Field
Supervisors and Area Managers is directing tournaments. These
employees may spend approximately 75 percent of their time
tournament directing, but "the character of the employee's job as
a whole" reveals that their primary duty does, in fact, relate to
ACBL's management or general business operations. 29 C.F.R.
§ 541.200(a)(2).
The duty of these employees goes beyond producing
ACBL-sanctioned bridge tournaments and instead requires them to do
"work directly related to the management or general business
operations of" ACBL. 29 C.F.R. § 541.200(a)(2). Field Supervisors
and Area Managers focus on "(1) tournament organization . . .
(2) workforce supervision (3) tournament operations, and (4)
executing the strategic direction of field operations." They are
expected to develop, implement, and manage strategic and long-term
processes and programs, including tournament planning/review and
- 30 - plans to maintain standards of player satisfaction. The processes
and programs directly relate to the running of ACBL and are
significant to ACBL because they are designed to ensure the
long-term integrity of bridge tournaments and satisfaction of
ACBL's consumers. See Hines v. State Room, Inc., 665 F.3d 235,
243 (1st Cir. 2011) (working to "establish long-term
relationships, to keep clients happy and to maintain the overall
reputation of their employer[]" directly relates to management or
general business operations). And, as the very developers of the
plans, Field Supervisors and Area Managers "exercise discretion
and independent judgment." 29 C.F.R. § 541.200(a)(3); see also
id. § 541.202(b).
While directing tournaments, Field Supervisors and Area
Managers were also expected to be the "[f]irst point of contact
for issues related to tournament operations and staff" and to
"[e]stablish and maintain effective relationships with tournament
sponsors." These high-level customer service-oriented
responsibilities also directly relate to ACBL's business
operations. See Cash v. Cycle Craft Co., Inc., 508 F.3d 680, 686
(1st Cir. 2007) (finding that an employee who "focused on improving
customer service" and satisfaction fell within administrative
exemption).
Beyond these long-term goals, Field Supervisors and Area
Managers also had significant supervisory authority over other
- 31 - employees, including writing annual performance reviews and making
hiring/firing decisions. "The supervision of other employees is
clearly a management duty," Donovan v. Burger King Corp., 672 F.2d
221, 226 (1st Cir. 1982), and it involves the exercise of
discretion and independent judgment because the employment
decisions made by Field Supervisors and Area Managers "affect[]
business operations to a substantial degree," "commit [ACBL] in
matters that have significant financial impact," and "bind [ACBL]
on significant matters." 29 C.F.R. § 541.202(b).
Accordingly, all prongs of the administrative exemption
are satisfied with respect to Field Supervisors and Area Managers.
We therefore affirm the district court's grant of summary judgment
in favor of ACBL with respect to the FLSA exemption status of Field
Supervisors and Area Managers.
4. Mentors
This brings us to the final disputed position of Mentors.
Each Mentor reported directly to an Area Manager and was
"responsible for (1) workforce recruitment; (2) workforce
supervision and development; and (3) tournament operations."
Mentors answered Tournament Directors' questions, checked their
hours, and gave performance reviews. In so doing, Mentors "engaged
in something more than routine" tournament directing. Cash, 508
F.3d at 686 (quoting Reich, 126 F.3d at 10). Instead, Mentors
helped run ACBL's business by recruiting, supervising, and setting
- 32 - standards for Tournament Directors. See Reich, 126 F.3d at 10
(holding that "representing the company" qualified as
administrative work).
Mentors exercised discretion and independent judgment
with respect to matters of significance because "higher-level
managers generally deferred to" their recommendations "as to
important employment decisions." 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."). Accordingly, all prongs of the administrative exemption
are satisfied with respect to Mentors.
VI. Conclusion
For the foregoing reasons, we reverse the district
court's order denying plaintiffs' motion to substitute a party;
affirm the district court's judgment in favor of ACBL on Marcus's
retaliation claim; reverse the district court's judgment with
respect to the FLSA overtime claims of National Tournament
Directors and Associate National Tournament Directors; affirm the
district court's judgment in all other regards; and remand this
case to the district court for any further proceedings consistent
with this opinion. Each party shall bear its own costs on appeal.
- 33 -