Nancy Williams v. GENEX Services, LLC , 809 F.3d 103 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1966
NANCY A. WILLIAMS, on her own behalf and on behalf of all
others similarly situated,
Plaintiff - Appellant,
and
SANDRA SHERMAN,
Plaintiff,
v.
GENEX SERVICES, LLC, f/k/a GENEX SERVICES, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:13-cv-01942-MJG)
Argued: October 28, 2015 Decided: December 18, 2015
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion in which Judge Agee and Judge Wynn joined.
ARGUED: Nicholas Woodfield, THE EMPLOYMENT LAW GROUP, P.C.,
Washington, D.C., for Appellant. Russell Robert Bruch, MORGAN,
LEWIS & BOCKIUS LLP, Washington, D.C., for Appellee. ON BRIEF:
R. Scott Oswald, THE EMPLOYMENT LAW GROUP, P.C., Washington,
D.C., for Appellant. Michael J. Puma, Philadelphia,
Pennsylvania, Allyson N. Ho, MORGAN, LEWIS & BOCKIUS LLP,
Dallas, Texas, for Appellee.
2
HAMILTON, Senior Circuit Judge:
Plaintiff-Appellant, Nancy Williams (Williams), is employed
by Defendant-Appellee, Genex Services, LLC (Genex), as a Field
Medical Case Manager (FMCM). She brought this action against
Genex claiming that Genex was required to pay her overtime under
the Fair Labor Standards Act (the FLSA or the Act), 29 U.S.C.
§§ 201 to 219, and the Maryland Wage and Hour Law (MWHL), Md.
Code Lab. & Empl. §§ 3–401 to 3-431, for the overtime hours she
worked. The district court granted summary judgment in favor of
Genex. Williams appeals, and we now affirm.
I
A
The FLSA protects “all covered workers from substandard
wages and oppressive working hours.” Barrentine v. Arkansas-
Best Freight Sys., Inc., 450 U.S. 728, 739 (1981); see also 29
U.S.C. § 202(a) (noting that the FLSA protects “the minimum
standard of living necessary for health, efficiency, and general
well-being of workers”). Toward these ends, the FLSA
establishes the general rule that employers must pay overtime
compensation to employees who work more than forty hours during
a seven-day work week. 29 U.S.C. § 207(a)(1). 1 Employees are
1 Overtime compensation is paid “at a rate not less than one
and one-half times the regular rate at which [the employee] is
employed.” 29 U.S.C. § 207(a)(1).
3
entitled to overtime compensation according to the general rule
unless their employer proves that one of the Act’s many
exemptions applies. See Arnold v. Ben Kanowsky, Inc., 361 U.S.
388, 392 (1960) (noting that the FLSA’s “exemptions are to be
narrowly construed against the employers seeking to assert them
and their application limited to those establishments plainly
and unmistakably within their terms and spirit”). Genex asserts
that Williams is not entitled to overtime compensation under the
general rule because she is “employed in a bona fide . . .
professional capacity.” 29 U.S.C. § 213(a)(1).
The FLSA provides that any “employee employed in a bona
fide . . . professional capacity” is exempt from the general
rule requiring overtime compensation. Id. § 213(a)(1). The
responsibility for outlining the contours of this exemption lies
with the Secretary of Labor (the Secretary). See id.
(permitting the Secretary to “define[] and delimit[]” various
terms in the FLSA). The relevant Department of Labor (DOL)
regulations define “employee employed in a bona fide . . .
professional capacity,” id., as any employee who is
“[c]ompensated on a salary or fee basis at a rate of not less
than $455 per week,” 29 C.F.R. § 541.300(a)(1), and whose
“primary duty is the performance of work,” id. § 541.300(a)(2),
“[r]equiring knowledge of an advanced type in a field of science
or learning customarily acquired by a prolonged course of
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specialized intellectual instruction,” id. § 541.300(a)(2)(i),
or “[r]equiring invention, imagination, originality or talent in
a recognized field of artistic or creative endeavor,” id.
§ 541.300(a)(2)(ii). 2
The DOL regulations define “primary duty” as “the
principal, main, major or most important duty that the employee
performs.” Id. § 541.700(a). Under § 541.700(a),
[d]etermination 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. 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 duties; the
amount of time spent performing exempt work; the
employee’s relative freedom from direct supervision;
and the relationship between the employee’s salary and
the wages paid to other employees for the kind of
nonexempt work performed by the employee.
Id.
The DOL regulations recognize that the amount of time spent
performing exempt work can be a useful guide in determining
whether exempt work is the primary duty of an employee:
2The parties agree that “professional capacity” has the
same meaning under the FLSA and the MWHL. Consequently, an
employee who is employed in a professional capacity under the
FLSA necessarily is employed in a professional capacity under
the MWHL. See MD. Code Regs. 09.12.41.17 (“‘Professional
capacity’ has the meaning stated in 29 CFR §541.300 et seq.”).
Because the viability of Williams’ MWHL claim turns on the
viability of her FLSA claim, we focus our analysis on her FLSA
claim.
5
[E]mployees who spend more than 50 percent of their
time performing exempt work will generally satisfy the
primary duty requirement. Time alone, however, is not
the sole test, and nothing in this section requires
that exempt employees spend more than 50 percent of
their time performing exempt work. Employees who do
not spend more than 50 percent of their time
performing exempt duties may nonetheless meet the
primary duty requirement if the other factors support
such a conclusion.
Id. § 541.700(b).
There is no dispute that Williams earns more than $455 per
week. However, Genex claims that Williams’ primary duty is the
performance of work (1) requiring advanced knowledge, (2) in a
field of science or learning, (3) that is customarily acquired
by a prolonged course of specialized intellectual instruction,
and, thus, the exemption, referred to in the DOL regulations as
the “[l]earned professional[]” exemption, id. § 541.301,
applies. 3 Williams counters by arguing that she is not engaged
in the performance of such work.
B
Genex provides integrated managed care services to its
3 Under the DOL regulations, a registered nurse generally
meets the learned professional definition. See 29 C.F.R.
§ 541.301(e)(2) (“Registered nurses who are registered by the
appropriate State examining board generally meet the duties
requirements for the learned professional exemption.”). In
contrast, a licensed practical nurse generally does not meet the
learned professional definition because “possession of a
specialized advanced degree is not a prerequisite for entry
into” such an occupation. Id. It is a stipulated fact that
Williams is a registered nurse.
6
clients, which include various employers and workers’
compensation insurers. Such services focus on controlling
health care and disability costs, ensuring that quality health
care is provided to injured workers, and improving return-to-
work rates. At Genex, FMCMs help injured workers return to work
as quickly, safely, and cost-effectively as possible.
Williams began working for Genex as an FMCM in 2011 after
Genex acquired the assets of her former employer, Intracorp. 4
Williams is paid a salary by Genex. She received $83,354.14 in
total compensation in 2012 and $81,103.29 in total compensation
in 2013.
Williams has two supervisors at Genex, Andy Nussdorf
(Nussdorf), Branch Manager for Genex’s Field Case Management
Branch in Elkridge, Maryland, and Sofia Harris (Harris), the
Case Management Supervisor for Genex’s Elkridge Office. Because
FMCMs at Genex work in the field, rather than in an office,
Williams rarely sees her supervisors. She testified at her
November 5, 2013 deposition that she last saw Nussdorf in
September 2011 and that she last saw Harris in the summer of
2012. Williams testified that she had “[i]rregular” phone
4 Williams received a Bachelor of Science in nursing from
Villa Julie College in 2007. In addition to being a registered
nurse, Williams holds several professional certifications,
including Certified Case Manager, Certified Disability
Management Specialist, Certified Life Care Planner, Certified
Critical Care Nurse, and Medicare Set Aside Consultant.
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contact with Nussdorf and Harris, indicating that “a week or a
month might go by without a phone call with them.” (J.A. 247).
With regard to emails, Williams acknowledged that “sometimes a
long time goes by and there’s no communication” between her and
either Nussdorf or Harris. (J.A. 252).
The parties agree that Maryland law requires an FMCM to be
a registered nurse (RN) and to have a Workers Compensation Case
Manager Certification from the Maryland Board of Nursing.
Although Williams holds these credentials, she does not provide
hands-on care. Rather, according to Genex’s FMCM job
description, Williams is “[r]esponsible for assessment,
planning, coordination, implementation and evaluation of
injured/disabled individuals involved in the medical case
management process.” (J.A. 682). FMCMs “work[] as an
intermediary between carriers, attorneys, medical care
providers, employers and employees to ensure appropriate and
cost-effective healthcare services and a medically rehabilitated
individual who is ready to return to an optimal level of work
and functioning.” (J.A. 682). As a result, each FMCM at Genex
is required to: (1) “[u]se[] clinical/nursing skills to help
coordinate the individual’s treatment program while maximizing
cost containment”; (2) “[s]erve[] as an intermediary to
interpret and educate the individual on his/her disability, and
the treatment plan established by the case manager, physicians,
8
and therapists”; (3) “[w]ork[] with the physicians and
therapists to set up medical assessments to develop an overall
treatment plan that ensures cost containment while meeting state
and other regulator’s guidelines”; (4) “[r]esearch[] alternative
treatment programs such as pain clinics, home health care, and
work hardening”; and (5) “[w]ork[] with [the] employer[] on
modifications to job duties based on medical limitations and the
employee[’]s functional assessment.” (J.A. 683).
When working with an injured worker’s case, Williams
assesses the injured worker’s medical condition and treatments
in an effort to better understand the case and to look for
opportunities to minimize the injured worker’s time away from
work. She interviews the injured worker and analyzes the
injured worker’s pertinent medical information, including
medical history, current status, diagnosis, prognosis, and
current treatment plan. From there, she continues to monitor
the injured worker’s medical condition. She often attends
medical appointments with the injured worker and is free to ask
physicians about the course of treatment. She educates both the
injured worker and the insurance claims adjuster on the injured
worker’s injuries and treatments, and sometimes makes
recommendations for alternative forms of treatment.
Williams is also responsible for developing an
individualized care plan that will assist the injured worker in
9
returning to work in a timely and safe manner. Essential parts
of developing that plan include
setting mutually agreed-upon goals with measurable
objectives, determining action steps toward achieving
goals, and selecting essential resources and services
through consultation and collaboration with health
care professionals, the ill/injured person, and the
family or other support persons.
(J.A. 183-84). Each individualized care plan that Williams
develops must establish and document measurable short- and long-
term goals for the injured worker. Williams performs medical
research when needed to develop individualized care plans and
analyzes whether the goals established in the care plans have
been met. Individualized care plans also contain information on
whether the existing and planned medical treatments are
consistent with clinical criteria and treatment guidelines for
the medical condition.
FMCMs at Genex also prepare periodic status reports on the
condition and/or progress of the injured worker. Most of
Genex’s clients have a template or report format that FMCM’s use
in preparing these reports. Williams admits she uses her
medical knowledge and training in developing care plans and
status reports and recognizes that the standard of care for
nurses in Maryland requires that care plans be tailored to
reflect current nursing practices. She also uses her medical
knowledge and training to provide relevant information to
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physicians so that the physicians can make the appropriate
decisions regarding the injured worker’s treatment. She is also
free to make recommendations to physicians concerning a specific
course of treatment, and the record reflects that on occasion
her recommendations are followed.
In addition to creating her own individualized care plans,
Williams evaluates life care plans to assist Genex clients in
litigation. For example, in one evaluation, Williams examined
the patient’s extensive medical records, interviewed the patient
and her mother, conducted research, and explained why the life
care plan proposed was “wholly void” because, among other
things, the patient’s disability was, in her professional
opinion, attributable to a preexisting condition rather than an
auto accident. (J.A. 544).
C
On July 3, 2013, Williams brought a two-count complaint
against Genex in the United States District Court for the
District of Maryland. Count I pled a claim under the MWHL, and
Count II pled a FLSA claim. 5 Following discovery, GENEX moved
5
Williams filed the complaint as a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure on behalf of
herself and others similarly situated to her. At least one
individual, Sandra Sherman, sought to join the purported class.
No class certification order was entered by the district court
pursuant to Rule 23(c)(1), and the parties agreed, “for the sake
of efficiency,” (Appellant’s Br. at 3), to limit discovery to
(Continued)
11
for summary judgment, asserting that Williams was a learned
professional. On September 4, 2014, in a written memorandum
opinion, the district court agreed that Williams was a learned
professional. Because Williams is a licensed RN and is required
to be an RN to work for Genex in Maryland, the district court
determined that Williams performed work in a field of science
that is customarily acquired by a prolonged course of
specialized intellectual instruction. The district court then
turned to the work requiring advanced knowledge prong, which is
defined in relevant part as follows:
The phrase “work requiring advanced knowledge” means
work which is predominantly intellectual in character,
and which includes work requiring the consistent
exercise of discretion and judgment, as distinguished
from performance of routine mental, manual, mechanical
or physical work. An employee who performs work
requiring advanced knowledge generally uses the
advanced knowledge to analyze, interpret or make
deductions from varying facts or circumstances.
29 C.F.R. § 541.301(b). Applying this definition to the facts
in a light most favorable to Williams, the district court
concluded that Williams performed work requiring advanced
knowledge. The district court observed that Williams “uses her
advanced knowledge to examine injured employees’ medical
whether Williams’ job as an FMCM was properly classified as
exempt under the FLSA and the MWHL. In effect, the parties
agreed that if Williams’ claims failed, so too did the claims of
any purported class members.
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conditions and advise[s] them on what to expect.” (J.A. 75-76).
The district court further observed that Williams’ status
reports “indicate that she not only . . . assesses and analyzes
claimants’ medical conditions, but also provides her own
commentary and suggestions.” (J.A. 76). The district court
also cited the fact that Williams was not closely supervised and
the fact that she regularly exercises judgment and discretion in
support of its conclusion that Williams’ work required the use
of her advanced knowledge.
Based on her job duties, the lack of close supervision, and
the wide discretion exercised by Williams, the district court
rejected Williams’ argument that she performed mainly clerical
tasks, noting that “even though Williams does not have ultimate
decision-making power as to an injured employee’s treatment or
care plan, she still uses her discretion and judgment to
evaluate cases and make recommendations for future courses of
action, much like a licensed RN engaged in direct patient care.”
(J.A. 78). The district court also rejected Williams’ argument
that because her status reports are prepared using templates,
she is nothing more than a “mere scribe.” (J.A. 79). The
district court noted that report preparation only accounted for
a small part of Williams’ job duties, and, in any event, the
preparation of these reports required the use of her advanced
nursing knowledge.
13
The district court entered judgment in favor of Genex on
the same day it issued its memorandum opinion. Following the
entry of judgment, Williams noted a timely appeal.
II
A
Under Rule 56(a) of the Federal Rules of Civil Procedure,
the district court “shall grant summary judgment if 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). In making that determination, the
district court must view the evidence in the light most
favorable to the nonmoving party. Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014).
Although we view all the underlying facts and inferences in
the record in the light most favorable to the nonmoving party,
the nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict in
his [or her] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). Consequently, summary judgment is appropriate
when the nonmoving party has the burden of proof on an essential
element of her case and does not make, after adequate time for
discovery, a showing sufficient to establish that element.
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The
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nonmoving party must satisfy this burden of proof by offering
more than a mere “scintilla of evidence” in support of her
position. Anderson, 477 U.S. at 252. We review the grant of
summary judgment de novo. Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en banc).
Whether an employee is exempt from the FLSA’s overtime
requirements is a mixed question of law and fact; “[t]he
question of how the [employees] spent their working time . . .
is a question of fact. The question whether their particular
activities excluded them from the overtime benefits of the FLSA
is a question of law.” Icicle Seafoods, Inc. v. Worthington,
475 U.S. 709, 714 (1986); see also Walton v. Greenbrier Ford,
Inc., 370 F.3d 446, 450 (4th Cir. 2004) (“The determination of
whether an employee falls within the scope of a FLSA exemption
is ultimately a legal question.”). An employer must prove by
clear and convincing evidence that an employee qualifies for
exemption. Shockley v. City of Newport News, 997 F.2d 18, 21
(4th Cir. 1993).
B
Genex argues that Williams is not entitled to overtime
compensation because, based on the undisputed facts concerning
her job responsibilities, her position was properly classified
as exempt under the learned professional exemption. More
specifically, Genex claims that Williams exercises discretion
15
and judgment every day, is not closely monitored or supervised,
and most importantly, predominately uses her RN skills on a
daily basis in the performance of her duties.
In response, Williams claims that the learned professional
exemption does not apply and that, at a minimum, factual
disputes preclude entry of summary judgment in Genex’s favor.
From Williams’ point of view, her duties consist of nothing more
than clerical, nondiscretionary, and routine work. More
specifically, she claims that her primary duty is not the
performance of exempt work; rather she claims that: (1) she is a
mere “liaison between employer and doctor to keep the doctor
appraised on what the physical requirements the claimant’s job
entails,” (Appellant’s Br. at 36); (2) that she is
“nothing more than a scribe relaying information back to the
adjustors,” id. at 38; and (3) that any “lay person” can perform
the job of FMCM. At bottom, Williams posits that, even if she
uses her advanced knowledge in the performance of her duties on
occasion, she does so substantially less than the 50 percent
threshold set forth in § 541.700(b).
In our view, the district court did not err when it
concluded that Williams’ primary duty involved the performance
of exempt work. First off, Williams’ own description of her
core job responsibilities fatally undermines her argument that
her work involves primarily clerical, nondiscretionary, and
16
routine work. On her resume, Williams describes her job as
follows:
Serve as case manager for multidisciplinary files
assessing patient needs, designing research-driven
life care plans, and coordinating [the] delivery of
care. Oversee medical record reviews, extensive
client interview process, collaboration with the
treatment team, data analysis, and research to project
current and long-term medical needs and their economic
impact. Coordinating case management initiatives in
concert with providers. Develop strong professional
relationships through proactive communication and
coalition-building, facilitating life care planning,
trust management, litigation support.
(J.A. 340). This description conflicts with the labels Williams
applies to her job duties in the context of this litigation,
namely that her work is clerical, nondiscretionary, and routine.
It is well-settled that a plaintiff may not avoid summary
judgment by submitting contradictory evidence. See Barwick v.
Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“A genuine
issue of material fact is not created where the only issue of
fact is to determine which of the two conflicting versions of
the plaintiff’s testimony is correct.”). To do so “would
greatly diminish the utility of summary judgment as a procedure
for screening out sham issues of fact.” Id. (citation and
internal quotation marks omitted).
Notwithstanding this ploy, the record evidence submitted
demonstrates beyond question that Williams regularly uses her
skills, training, and knowledge as an RN to perform her duties
17
as an FMCM. See 29 C.F.R. § 541.301(e)(2) (“Registered nurses
who are registered by the appropriate State examining board
generally meet the duties requirements for the learned
professional exemption.”). Consistent with her core job
responsibilities which focus on the use of her “clinical/nursing
skills,” (J.A. 683), Williams develops individual care plans by
reviewing injured workers’ medical records and interviewing such
workers about their medical conditions and recovery. The
development of these care plans must be consistent with clinical
criteria and follow current nursing practices in Maryland. She
also coordinates medical care and communicates with medical
providers, insurers, employers, and attorneys to assess whether
injured workers are receiving appropriate care. She educates
injured workers on their disabilities and answers any questions
they may have in an effort to facilitate their return to work.
In the exercise of her discretion and judgment, she makes
recommendations concerning alternate forms of treatment. In her
periodic reports on injured workers, she assesses and analyzes
the injured workers’ conditions, but also provides her own
commentary and suggestions. Her training and experience as an
RN is indispensable in the performance of these duties. In
other words, the record makes clear that Williams’
responsibilities, performed with little or no direct
supervision, involve the consistent exercise of discretion and
18
judgment as well as the use of her advanced nursing knowledge to
“analyze, interpret or make deductions from varying facts or
circumstances.” 29 C.F.R. § 541.301(b).
Sensing that her work involves the use of her RN skills,
Williams points us to the 50 percent threshold in § 541.700(b),
suggesting that she needs to spend at least 50 percent of her
time doing exempt work to qualify for the learned professional
exemption. Such is not the case. The amount of time an
employee spends on exempt work is not dispositive of whether the
employee is a learned professional. See id. § 541.700(b) (“Time
alone, however, is not the sole test, and nothing in this
section requires that exempt employees spend more than 50
percent of their time performing exempt work.”). And even if
some of her job duties fell under the rubric of nonexempt work,
such job duties only amounted to a small portion of her overall
job duties, as the record reflects that the vast majority of her
work involved the use and application of her RN skills.
We also note that Williams’ high salary, over $80,000.00 in
the two years preceding this litigation, itself creates doubt as
to whether she falls within the FLSA’s intended protected class.
We have previously emphasized that, “[a]lthough salary alone is
not dispositive under the FLSA, . . . the FLSA was meant to
protect low paid rank and file employees.” Darveau v. Detecon,
Inc., 515 F.3d 334, 338 (4th Cir. 2008) (citation and internal
19
quotation marks omitted); see also Marshall v. Western Union
Tel. Co., 621 F.2d 1246, 1251 (3d Cir. 1980) (noting that the
FLSA was meant to protect low paid “rank and file” employees,
not higher salaried managerial and administrative employees who
are “seldom the victims of substandard working conditions and
low wages.”). Indeed, the FLSA’s implementing regulations state
that “[a] high level of compensation is a strong indicator of an
employee’s exempt status.” 29 C.F.R. § 541.601(c).
In sum, Williams has failed to come forward with any
persuasive evidence that Genex violated the FLSA by classifying
her primary duty as professional. Thus, we conclude that
Williams is exempt from the mandatory overtime provisions of the
FLSA.
III
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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