UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ALNITA MILLER, : : Plaintiff, : : v. : Civil Action No. 08-1945 (JR) : HEALTH SERVICES FOR CHILDREN : FOUNDATION, et al., : : Defendants. :
MEMORANDUM
Alnita Miller sues her former employer Health Services
for Children with Special Needs alleging violations of the Fair
Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201 et
seq., retaliation under the FLSA, violations of the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C.
§§ 1140 et seq., and common law defamation. Pending before the
court is the defendant’s motion for summary judgment. Because
the plaintiff’s job was exempt from FLSA coverage, because there
is insufficient evidence to support retaliatory animus or a
violation of ERISA, and because the allegedly defamatory
statements were privileged and were not published with malice,
the defendant’s motion will be granted.
Background1
HSCSN is a non-profit care management network that
coordinates health and education services for District of
1 This Background section includes only undisputed facts. Columbia children who have severe health issues. MSJ at 1.
Starting in about July 2004, plaintiff worked for HSCS as a
Behavioral Team Leader, a position which, among other duties,
required her to supervise care managers. Pl. Opp. at 1; MSJ ex.
1 ¶ 9.
During her employment with HSCS, plaintiff was also
required to perform certain “utilization review and utilization
management” functions involving the assessment of network members
for their admission to health facilities, the appropriateness of
their treatment, and their continued hospitalization. MSJ ex. 1
¶ 10; Opp. at 1. Plaintiff alleges that these duties did not
fall within her job description and that defendant hired other
employees to fulfill them from time to time, so that, as to her,
these duties were “extra” work, the performance of which took
between ten and twenty hours per week. Opp. at 2. Overall,
plaintiff worked more than forty hours each week, arriving at
around 8:30 or 9:00 A.M. and leaving anywhere from 6:00 to
8:00 P.M. MSJ ex. 3 22:1-23:22.; Opp. at 2. Although she
performed these allegedly “extra” duties for about two and one-
half years, she received no compensatory leave, bonus, or pay
raise. Opp. at 2.
In October 2007, defendant’s human resources manager,
Ms. Hostetter, and plaintiff’s supervisor, Ms. Saucier, met with
plaintiff about a grievance that had been brought against her by
- 2 - another employee, AJ. Opp. at 4. AJ complained that plaintiff
treated her poorly and specifically referenced a comment that
plaintiff once made to her -- “Where are you waddling off to?” --
to which AJ, who is obese, took particular offense. Opp. at 4.
A second meeting was held on the matter on November 1, 2007,
which AJ attended. Opp. at 4; MSJ ex. 1 ¶ 33. On November 13,
2007, at a third meeting, plaintiff’s employment was terminated.
Opp. at 5. She was given a letter of explanation. Id.
Plaintiff filed for unemployment benefits with the D.C.
Department of Employment Services on November 17, 2007. Opp. at
5. After “[p]laintiff presented a copy of her termination letter
per DOES request,” DOES denied her application on the ground that
she had engaged in “misconduct.” Opp. at 6. Plaintiff appealed.
An administrative judge held a merits hearing on January 17,
2008, at which plaintiff did not appear. Opp. ex. 7. On
January 18, 2009, the appeal was denied as untimely. Id.
Analysis
On a motion for summary judgment, the movant carries
the burden of demonstrating that the “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986). “[A] material fact is ‘genuine’ . . . if the evidence
- 3 - is such that a reasonable jury could return a verdict for the
nonmoving party” on an element of the claim. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “The evidence of the
non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson, 477 U.S. at 255. “If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Id. at 249-50.
1. FLSA Exemption
Plaintiff claims that under the FLSA she is due
compensation for the “extra” time she put into performing the
UR/UM duties. Under 29 U.S.C. § 207(a)(1):
[e]xcept as otherwise provided . . . no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
Certain kinds of employment are excepted from § 207's coverage,
however, including “any employee employed in a bona fide
executive, administrative, or professional capacity . . . .” 29
U.S.C. § 213(a)(1). Under 29 C.F.R. § 541.300.
[t]he term “employee employed in a bona fide professional capacity” in [29 U.S.C. § 213(a)(1)] of the Act shall mean any employee: (1) Compensated on a salary or fee basis at a rate of not less than $455 per week . . . (2) Whose primary duty is the performance of work: (I) Requiring knowledge of an
- 4 - advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or (ii) Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor2
Defendant asserts that plaintiff’s job was exempt from
FLSA coverage and that she is due nothing. Plaintiff concedes
the first point, Opp. at 13, 14; Tr. 8:10-13, which is well
supported by undisputed evidence: her salary was always in excess
of $60,000 per year, Compl. ¶ 6. , MSJ ex. 1, ¶ 18; Compl. ¶ 6,
and her job was a “managerial supervisor position,” MSJ ex. 3 at
11:15 -18, that demanded use of her license as a social worker in
D.C. and the skills she learned getting her masters degree in
social work from Howard University. MSJ ex. 1 ¶ 7.
Plaintiff also concedes that, even assuming that the
UR/UM duties were “extra” duties -- i.e. the duties of a separate
compensable position -- and that these duties were non-exempt,3
2 Subject to some exceptions not applicable here, in general “[a]n employee will be considered to be paid on a ‘salary basis’ within the meaning of these regulations if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.602(a). Satisfaction of this element is conceded. 3 It appears from the record that the UR/UM duties were in fact exempt work -- the “work involves an assessment of the appropriateness and economy of admitting a member to a health care facility of continued hospitalization, or other plan or program of treatment,” MSJ at 8 (citing ex. 1 ¶ 10), its duties were defined by their successful completion, and not the number of hours worked, Opp. at 2, and on the two occasions when the
- 5 - “the primary duty of Plaintiff’s combined duties remained exempt
work.” Op. at 15; see, 29 C.F.R. § 541.700. Plaintiff therefore
admits that she “was not entitled to obtain overtime for
performing the second job.” Opp. at 14; see Tr. 5:4-12.
Instead, somewhat bafflingly, she argues that somehow the “FLSA
and Defendant’s . . . polic[ies] required Defendant to pay
Plaintiff some form of compensation for performing a second job.”
Opp. at 14. In support she cites to four sources: (1) an FLSA
regulation, the most relevant section of which gives employers a
means of providing exempt employees some form of non-salary based
compensation in addition to their salary, such as a sales
commission, without compromising the employee’s exempt status, 29
C.F.R. § 541.604; (2) an FLSA regulation which provides a means
of calculating the overtime rate when a non-exempt employee, in a
single workweek, performs two or more distinct types of work,
each of which has a different straight-time rate of pay, 29
C.F.R. § 778.115; (3) the defendant’s internal policy of “dual
employment,” by which, plaintiff asserts, defendant consistently
compensates exempt employees for performing “extra” work; and
(4) a Department of Labor opinion which in fact significantly
undermines her position that she is due additional compensation,
position of UR/UM Care Manager was filled, HSCS hired skilled professionals, a registered nurse and a social worker, both of whom earned salaries between $50,000 and $60,000 per year, Opp. at 13 (citing Pl. Aff. ¶ 5).
- 6 - Department of Labor Opinion, FLSA 2005-14 (March 17, 2005) (“[I]f
the primary duty of [an] employee is the performance of work as
[an] exempt coordinator, it is our opinion that the exemption(s)
under Part 541 would apply. In that case, no additional
compensation beyond the guaranteed salary required for exemption
would be mandatory . . . .”). Plaintiff fails completely to
explain how any of these sources obligated defendant to provide
her compensation for the UR/UM duties under the FLSA.
2. Retaliation
“[I]t shall be unlawful for any person . . . to
discharge or in any other manner discriminate against any
employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or
related to [the FLSA] . . . .” 29 U.S.C. § 215(a)(3). “[I]n
order to establish a prima facie case of retaliation under the
FLSA, a plaintiff must demonstrate (1) that the employer was
aware that plaintiff was engaged in statutorily protected
activity, (2) that the employer took adverse action against the
plaintiff, and (3) that there was a causal relationship between
the two.” Cooke v. Rosenker, 601 F.Supp.2d 64 (D.D.C. 2009)
(citations omitted).
Plaintiff argues first that defendant’s true motive for
firing her was retaliation for an informal complaint she made to
Saucier in October 2007. Plaintiff described the situation thus:
- 7 - On or around the first week of October 2007, I made an inquiry with Stacey Saucier regarding when the second position would be filled. I indicated that I wished to discontinue my performance on the job unless I received some form of compensation because of the demands of both positions and I had little time to spend with my family and friends.
Opp. ex. 7 (Pl. Aff ¶ 7).4
The D.C. Circuit has yet to decide whether an informal
complaint suffices to trigger FLSA retaliation protection, and
there is a split in the Circuits over the issue. Cooke, 601
F.Supp.2d at 74-75 (collecting cases). But even assuming that
retaliation for making an informal complaint is cognizable under
§ 215(a)(3), an “employee must [still] step outside his or her
role of representing the company and . . . threaten to file[] an
action adverse to the employer, actively assist other employees
in asserting FLSA rights, or otherwise engage in activities that
reasonably could be perceived as directed towards the assertion
of rights protected by the FLSA.” Hicks v. Association of
American Medical Colleges, 503 F. Supp. 2d 48, 52-53 (D.D.C.
2007) (quoting, McKenzie v. Renberg's, Inc., 94 F.3d 1478 , 1486-
87(10th Cir. 1996)); accord, Cooke, 601 F.Supp.2d at 75-76. In
4 Despite this affidavit testimony, during her deposition plaintiff did not remember requesting compensation for the UR/UM work during this conversation with Saucier. Opp. at 3, fn. 3. She now only recalls “making an inquiry with . . . Saucier regarding the hiring of a full time employee to perform the UR/UM care manager position.” Id. She further states that “she never told Dr. Reynolds or anyone else that she felt it was wrong that she was not being paid for the work that she thought she was doing.” Opp. at 20.
- 8 - plaintiff’s version of events, she made no reference to the FLSA
or her legal rights under any other statute, nor did she mention
possible legal action. It is also uncontested that defendant has
always categorized and considered plaintiff’s position to be
exempt. MSJ ex. 3. With nothing to connect her supposed
complaint to the assertion of protected rights, the retaliation
claims fails. Accord, Cooke, 601 F.Supp.2d at 75-76; Hicks, 503
F.Supp.2d at 54.
Plaintiff’s second theory of retaliation, advanced for
the first time on this motion, is based on her allegation that
the defendant reneged on a promise not to contest her claim for
unemployment benefits. Opp. ex.7 (Pl Aff. ¶ 20). More
specifically, plaintiff asserts that, after she sent defendant a
letter on January 10, 2009, stating that she planned to contest
her termination and explicitly invoking the FLSA and ERISA,
defendant decided to contest her appeal of DOES’s rejection of
her unemployment benefits.
These allegations and this theory of retaliation are
found nowhere in the amended compliant. Nor is there evidentiary
support for them in the record. But even accepting plaintiff’s
unsupported factual allegations as true, and applying the
generous standard for retaliatory adverse actions established by
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006), an expressed desire by defendant to challenge the DOES
- 9 - appeal and defendant’s appearance at the appellate hearing do not
constitute adverse retaliatory action cognizable under the FLSA
when (a) plaintiff reneged on her own undertaking to accept her
termination, (b) plaintiff herself did not show up at the
hearing, and (c) the appeal was rejected, not because of
defendant’s opposition, but because it was untimely.
3. ERISA
Although the factual and legal underpinnings of
plaintiff’s claim are vague, plaintiff can bring a claim alleging
that defendant fired her for exercising her rights under ERISA
and/or that defendant intended to deny her of ERISA protected
benefits under 29 U.S.C. § 1140. But such a claim would be based
on essentially the same evidence as the FLSA retaliation claims,
and it fails for substantially the same reasons: there is no
evidence of any kind that defendant’s actions were inspired by
retaliatory animus or were taken to interfere with plaintiff’s
pension benefits,5 and defendant’s actions concerning the DOES
appeal were not adverse.
4. Defamation
“A plaintiff bringing a defamation action . . . must
show: (1) that the defendant made a false and defamatory
statement concerning the plaintiff; (2) that the defendant
5 The plaintiff’s pension benefits would not have vested until July 9, 2009, nearly a year and a half after she was terminated. Opp. at 27.
- 10 - published the statement without privilege to a third party;
(3) that the defendant's fault in publishing the statement
amounted to at least negligence; and (4) either that the
statement was actionable as a matter of law irrespective of
special harm or that its publication caused the plaintiff special
harm.”6 Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C.
2001) (internal citation and quotations omitted).
Plaintiff argues that the termination letter she
received was defamatory, and that she was harmed by its
publication to DOES and her employment file. Opp. at 21. But in
nearly the same breath plaintiff correctly concedes that
“information provided to DOES is subject to an absolute
privilege.” Opp. at 22; Turner v. Federal Express Corp., 539
F.Supp.2d 404, 408-409 (D.D.C. 2008) (“Under settled District of
Columbia law, [r]eports to the unemployment compensation board
(a.k.a. Department of Employment Services) concerning the
termination of an employee are absolutely privileged and cannot
support a claim for libel.”) (internal quotations and citations
omitted). Her arguments that this absolute privilege is somehow
not absolute here are confused and unconvincing.
Defendant’s publication of the termination letter to
plaintiff’s file was protected by a qualified privilege because
6 Neither party contests that D.C. law applies to this claim.
- 11 - “[t]he law has long recognized a privilege for anything ‘said or
written by a master in giving the character of a servant who has
been in his [or her] employment.’”7 Turner, 539 F.Supp.2d at 409
(quoting, Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715
A.2d 873, 879 (D.C. 1998) (quoting, White v. Nicholls, 44 U.S.
266, 287, 3 How. 266, 11 L.Ed. 591 (1845)) (further citations
omitted). This master/servant privilege allows an employer to
make covered “statements against [an employee] even if false,”
Washington Times Co. v. Bonner, 86 F.2d 836, 840 (1936), unless a
plaintiff can show “malice,” defined as “the doing of an act
without just cause or excuse, with such a conscious indifference
or reckless disregard as to its results or effects upon the
rights or feelings of others as to constitute ill will,” Columbia
First Bank v. Ferguson, 665 A.2d 650, 656 (D.C. 1995) (internal
quotation omitted).
The presence of malice is therefore measured by the
“primary motive by which the defendant is apparently inspired” in
disseminating a statement, not the truth of the assertions.
Columbia first Bank, 664 A.2d at 656. In this determination,
“the declarant will be presumed to have been actuated by pure
motives in its publication . . . and the plaintiff therefore has
7 “[T]he existence of the privilege is a question of law for the court[;] whether it was abused by the defendant, is a question of fact for the jury.” Novecon Ltd. v. Bulgarian-American Enterprise Fund, 190 F.3d 556, 566 (D.C. Cir. 1999).
- 12 - the burden of proving that the declarant acted with malice.” Id.
(internal quotations and citations omitted). “Moreover, unless
the statement is so extreme, unreasonable, or abusive that a
reasonable trier of fact would have to find malice inherent in
the statement itself, malice must be proven by extrinsic
evidence.” Id. (internal citation omitted). “[I]f the language
of the communication and the circumstances attending its
publication by the defendant are as consistent with the
nonexistence of malice as with its existence, there is no issue
for the jury, and it is the duty of the trial court to direct a
verdict for the defendant.” Novecon Ltd. v. Bulgarian-American
Enterprise Fund, 190 F.3d 556, 566 (D.C. Cir. 1999) (internal
The termination letter at issue is not facially
malicious, and plaintiff offers no extrinsic evidence of malice.
She only argues that defendant knew or should have known that the
statements in the letter were false -- an argument that oddly
focuses on defendant’s asserted failure to uncover sufficient
evidence to prove that plaintiff harassed AJ or discriminated
against her under federal and District anti-discrimination laws.
Opp. at 23-25. By its terms, however, the letter is not based on
such a determination, and does not even mention the word
“discriminate.” Instead, the letter speaks to the plaintiff’s
general lack of sensitivity to AJ and to defendant’s interests,
- 13 - to plaintiff’s inability to foster a team environment, and to the
manner in which plaintiff handled the situation generally; all of
which created “serious concerns regarding [the plaintiff’s]
management skills.” Opp. ex. 6. As a whole, the record amply
supports the defendant’s good faith, even to the extent that no
reasonable juror could believe that the letter was published with
malicious motive.
Plaintiff last argues that HSCS made some unspecified
defamatory statements to prospective employers to which plaintiff
had applied. This claim is unsupported by any evidence that such
statements were made, let alone what they were,8 and such
statements would be covered by the “master/employee” privilege in
any event. See, Turner, 539 F.Supp.2d at 409.
* * *
For the reasons given above, defendant’s motion for
summary judgment, Dkt. #12, will be granted by an appropriate
order that accompanies this memorandum.
JAMES ROBERTSON United States District Judge
8 Plaintiff makes a similar claim that at some unspecified point in time, unnamed individuals at HSCS made unspecified statements about plaintiff that were defamatory. Opp. at 23. This assertion, too, fails for its complete lack of evidentiary support.
- 14 -