Dorothy Altemus v. Federal Realty Investment ( 2012 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-2213
    DOROTHY ALTEMUS,
    Plaintiff - Appellant,
    v.
    FEDERAL REALTY INVESTMENT      TRUST;    DONALD   WOOD,    in   his
    individual capacity,
    Defendants - Appellees.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt.     Peter J. Messitte, Senior District
    Judge. (8:10-cv-02751-PJM)
    Submitted:   July 9, 2012                    Decided:     July 31, 2012
    Before AGEE, DAVIS, and WYNN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Laurence S. Kaye, THE KAYE LAW FIRM, Rockville, Maryland; Julie
    G. Martin-Korb, Rockville, Maryland, for Appellant.    Christine
    Nicolaides   Kearns,  PILLSBURY  WINTHROP  SHAW   PITTMAN   LLP,
    Washington, DC, for Appellees.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Dorothy          Altemus    brought         suit   against     her    former
    employer,    Federal         Realty    Investment        Trust    (“FRIT”),      and   her
    supervisor, Donald Wood, for payment of overtime compensation
    under the Fair Labor Standards Act (“FLSA”), 
    29 U.S.C.A. §§ 201
    -
    219 (West 1998 & Supp. 2011), and the Maryland Wage and Hour Law
    (“MWHL”), Md. Lab. & Empl. Code Ann. §§ 3-401 to 3-431 (2009).
    The district court granted the Defendants’ motion for summary
    judgment,     finding          that     Altemus         qualified    as    an     exempt
    administrative assistant working for a senior executive of a
    large business, and Altemus now appeals.                       We have reviewed the
    record and find no reversible error.                    Accordingly, we affirm.
    FRIT        is    an    equity       real    estate     investment       trust
    specializing       in    the       ownership,     management,       development,       and
    redevelopment       of       high     quality      retail      assets.        FRIT     had
    approximately 450 employees in 2007; 379 employees in 2008; and
    383 employees in 2009.                From September 2003 until March 2010,
    FRIT employed Altemus as the sole executive assistant to Donald
    Wood, CEO and President of FRIT.                   In addition, from 2008 until
    March 2010, Altemus worked as the sole executive assistant to
    Dawn Becker, General Counsel and COO of FRIT.                            Although FRIT
    employed between ten and fourteen executive assistants during
    this period, Altemus was the only executive assistant classified
    as exempt.
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    Altemus’   base   salary       was   $84,000   in   2007,   with   a
    $12,146 annual bonus; in 2008, 2009, and 2010, her base salary
    was $86,520, with an annual bonus of $6,489 in 2008 and $12,978
    in 2009.    In addition, Wood routinely gave Altemus a $5,000
    personal check at the end of the year.             Comparatively, the base
    salary for each of the other executive assistants was less than
    $60,000 during this time period.          Altemus was the only executive
    assistant at FRIT to participate in the 15% annual bonus pool,
    while all other executive assistants were in the 7% bonus pool.
    FRIT also gave Altemus the option to purchase FRIT stock in 2004
    and 2005; in 2005, Altemus was the only executive assistant to
    be given the option of receiving stock options in lieu of an
    increase in salary.
    At the time she was hired in 2003, the job description
    for the Executive Assistant to the CEO stated that Altemus was
    to “[p]rovide high, executive-level support to the CEO.”                  The
    position required five to ten years of previous experience and
    listed the following responsibilities:
    Manage the day-to-day business activities of [the]
    CEO; demonstrate the ability to handle confidential
    information with discretion; prioritize and handle
    internal and external correspondence; screen incoming
    calls in the most professional manner; schedule
    meetings and maintain daily and long-term calendar;
    coordinate    Trustees   meetings    and    materials
    preparation; make all necessary travel arrangements;
    create and maintain comprehensive filing system;
    handle all incoming and outgoing mail; maintain
    3
    coordination        of     all   external     board     participation
    activities.
    During Altemus’ employment with FRIT, Wood spent approximately
    30 percent of his time on business travel.                   Altemus coordinated
    Wood’s    travel     arrangements         and     monitored       his     email    and
    communications as necessary while he was away from the office.
    In addition, Altemus assisted Wood in his work with a number of
    professional    organizations,         including    his     roles    as   an    active
    member of the Board of Governors of the National Association of
    Real Estate Investment Trusts (“NAREIT”) and the U.S. Capital
    Chapter of the Young President’s Organization (“YPO”).                         Altemus
    also assisted Wood with his role as Chairman of the Metro D.C.
    Chapter of the Cystic Fibrosis Foundation (“CFF”), a charitable
    organization in which Wood participated for both personal and
    business reasons.
    Altemus alleged that her administrative tasks as the
    sole executive assistant to Wood typically took no more than 20
    to   25   percent    of    her    time,    while    her    responsibilities        for
    performing personal work for Wood and his family required 75 to
    80   percent    of   her       time.      With   respect     to     personal      tasks
    performed for Wood and his family, Altemus indicated that she
    planned   his   annual     personal       holiday   party,    scheduled        doctors
    appointments, managed his personal travel, purchased tickets to
    sporting and theatre events, occasionally picked up his children
    4
    from school, and assisted Wood with his role as little league
    coach for his son’s baseball team for two seasons, among other
    tasks.    In addition, Altemus stated that she spent a significant
    amount of her time working on projects related to the CFF, work
    that   she    claimed      was    unrelated      to    the     management         of    FRIT.
    Altemus      further     alleged     that    her      work     as    Wood’s       executive
    administrative         assistant     “involved        only     minimal         exercise   of
    discretion      or     independent     judgment,”         as    “Wood         often    micro-
    managed tasks and took control of even the most basic decision
    making of those tasks.”
    During     Altemus’     tenure       with      FRIT,       Wood     completed
    performance reviews in 2005, 2007, and 2009 addressing Altemus’
    strengths     and    weaknesses.       Altemus         reviewed      each       performance
    review before signing it, and never objected to the content or
    substance of the reviews.            In her 2005 performance review, Wood
    stated that Altemus “truly has become my right arm when it comes
    to   organizing      and   administering         all    aspects          of    business    at
    Federal,”      describing        Altemus    as   “critical          to    the     continued
    success of the overall office environment and my ability to be
    organized and prioritize.”            In Altemus’ 2007 performance review,
    Wood     praised     Altemus’       “superior         interpersonal            skills     and
    intelligence,” stating:
    I can honestly say that, in the four years that she
    has been with [FRIT], every decision that I have ever
    seen her make has been made with her strong internal
    5
    belief that it is in the best interest of the company
    and of the CEO’s office. As a result, I give Dorothy
    more leeway to make decisions than I have ever given
    to an assistant before.
    In addition, Wood stated: “I have never had a more complete
    partner in my 25 year professional career.                  Dorothy’s scope of
    responsibilities are broad, as she truly assists me in all of
    the professional areas of my career that are important to my
    overall success as the CEO of the Trust.”
    In her Complaint, Altemus alleged that she worked in
    excess of forty hours per week during her tenure with FRIT, but
    was not provided overtime compensation, in violation of the FLSA
    and the MWHL.      In addition, counsel for Altemus filed a Fed. R.
    Civ. P. 56(d) affidavit requesting additional discovery related
    to   the   earnings   of   all    individuals         classified   as    executive
    assistants, any documents discussing the reasons for Altemus’
    salary and earnings increases, all documents in which CFF was
    referred to in any way, and documents referring to the duties of
    the executive assistants, as well as the opportunity to depose
    both Wood and Becker, who provided declarations.                      Following a
    hearing,     the   district      court       denied     Altemus’     request     for
    additional    discovery    and    granted      the     Defendants’      motion   for
    summary judgment, finding that Altemus fell within the executive
    administrative     assistant     exemption       from    the   FLSA’s     overtime
    requirement.
    6
    The   court   rejected   Altemus’   argument     that     the   “50
    Percent Rule” governed the court’s analysis of Altemus’ “primary
    duty,” finding that employees may indeed qualify for the FLSA’s
    administrative exemption if they devote less than half of their
    time to administrative duties.            Moreover, the court rejected
    Altemus’ allegation that she only spent 20 to 25 percent of her
    time completing administrative duties directly related to the
    management    of    FRIT   and   exercised   little    to   no    discretion,
    finding this proposition directly contradicted by the record,
    including the job description for the executive administrative
    assistant position and the performance reviews completed by Wood
    describing     Altemus’    responsibilities.          The   court      likewise
    rejected Altemus’ claim that her work assisting Wood in his role
    as Chairman of the Metro D.C. Chapter of the CFF was personal,
    as Wood stated in Altemus’ 2007 performance review that his work
    for the CFF “added to [FRIT’s] reputation as a more complete
    company” and “expanded relationships with many of the key real
    estate assistants.”        The court therefore held that Altemus fell
    within the executive administrative assistant exemption to the
    FLSA and was not entitled to overtime wages.
    Altemus   timely    appealed,   arguing   that      the   district
    court erroneously awarded the Defendants summary judgment.                   We
    review the district court’s grant of summary judgment de novo.
    Jennings v. Univ. of N.C., 
    482 F.3d 686
    , 694 (4th Cir. 2007) (en
    7
    banc).      Summary judgment shall be granted “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).            “At the summary judgment stage, facts must be
    viewed in the light most favorable to the nonmoving party only
    if there is a genuine dispute as to those facts.”                           Scott v.
    Harris, 
    550 U.S. 372
    , 380 (2007) (internal quotation marks and
    citation omitted).             However, “a nonmovant cannot defeat summary
    judgment     with    merely      a    scintilla    of   evidence.”      Blaustein    &
    Reich, Inc. v. Buckles, 
    365 F.3d 281
    , 286 (4th Cir. 2004).
    Section (7)(a)(1) of the FLSA requires that employers
    pay their employees time and a half for work over forty hours a
    week.      
    29 U.S.C. § 207
    (a)(1).               However, the FLSA provides an
    exemption from this overtime requirement for persons “employed
    in   a     bona    fide     executive,      administrative,        or   professional
    capacity.”        
    Id.
     § 213(a)(1).         Whether an employee is exempt from
    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 of whether their
    particular activities excluded them from the overtime benefits
    of   the    FLSA     is    a    question     of    law.”      Seafoods,     Inc.    v.
    Worthington, 
    475 U.S. 709
    , 713-14 (1986); see also Walton v.
    Greenbrier Ford, Inc., 
    370 F.3d 446
    , 451 (4th Cir. 2004) (“The
    8
    determination of whether an employee falls within the scope of a
    FLSA exemption is ultimately a legal question.”).
    The     FLSA’s      implementing          regulations         define     an
    “employee employed in a bona fide administrative capacity” as
    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 office or non-manual work directly related to the
    management or general business operations of the employer or the
    employer’s        customers;      (3)     whose   primary      duty    includes       the
    exercise of discretion and independent judgment with respect to
    matters of significance.                
    29 C.F.R. § 541.200
    (a).              The claim
    that    an   employee      is    exempt    from   overtime      is    an    affirmative
    defense      that   must    be    proven    by    the   defendant      by    clear    and
    convincing evidence.             Clark v. J.M. Benson Co., Inc., 
    789 F.2d 282
    , 286 (4th Cir. 1986) (internal quotation marks and citation
    omitted).
    On appeal, Altemus concedes that she met the first
    prong   of    the    three-pronged        executive     administrative        assistant
    test.     However, she maintains that the district court erred in
    finding      that   she    met    the   remaining       two   requirements.          With
    respect      to     her    “primary       duty”    as    Wood’s      sole    executive
    assistant, Altemus reiterates her assertion below that personal
    and family work she performed as Wood’s administrative assistant
    occupied between 75 and 80 percent of her work time.                          Although
    9
    Altemus       acknowledges           that         her     affidavit       was       directly
    contradicted      by     the    performance             reviews    prepared        by     Wood,
    Altemus insists that she signed the performance reviews “only to
    indicate      receipt.”         By    accepting          Wood’s   unsworn       performance
    reviews, which were contradicted by Altemus’ sworn statements in
    her affidavit, Altemus argues, the district court effectively
    drew   inferences      in     favor     of    the       wrong   party    at   the       summary
    judgment stage.          In addition, Altemus avers that the district
    court erred in failing to apply the “50 Percent Rule” previously
    endorsed by this court in Clark v. J.M. Benson Co., Inc., 
    789 F.3d 282
    ,    286     n.2    (4th    Cir.        1986).        According     to    Altemus,
    deviation from this rule of thumb “required consideration of
    factual circumstances for which a jury is more appropriate.”
    We conclude that the district court did not err in
    finding that Altemus’ “primary duty” related to the management
    of FRIT, rather than Wood’s personal tasks.                             Although Altemus
    urges us to adhere to the “50 Percent Rule” in assessing whether
    her    primary    duty       involved       the    performance      of    administrative
    duties related to the management of FRIT, Altemus’ reliance upon
    Clark v. J.M. Benson Co., Inc., 
    789 F.3d 282
     (4th Cir. 1986), is
    misplaced.       Following Clark, we clarified the application of the
    50 percent “rule of thumb” in Counts v. S.C. Elec. & Gas Co.,
    stating:
    10
    Nothing in the FLSA compels any particular time frame
    for determining an employee’s primary duty.     To the
    extent the regulations refer to time at all, it is
    only to provide that ‘a good rule of thumb [is] that
    primary duty means the major part, or over 50 percent,
    of the employee’s time.’      
    29 C.F.R. §§ 541.103
    ,
    541.206. . . . [I]n fact, the regulations explicitly
    state ‘time alone, however, is not the sole test,’ and
    that any assessment of primary duty should ‘be based
    on all the facts in a particular case.’    
    Id.
        It is
    clear from this language that the primary duty is
    meant   to  be  assessed   by  the  totality   of   the
    circumstances.
    
    317 F.3d 453
    , 456 (4th Cir. 2003).                  Indeed, “[e]mployees 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.”              
    29 C.F.R. § 541.700
    (b).
    Under the regulations, “the term ‘primary duty’ means
    the   principal,     main,    major      or    most     important      duty    that   the
    employee    performs.”        
    29 C.F.R. § 541.700
    (a).         As     the    sole
    administrative assistant to the CEO of FRIT, Altemus managed
    Wood’s     calendar,      made     all    necessary           travel    arrangements,
    screened    incoming      phone    calls,      coordinated      Trustees      meetings,
    prepared slides and handouts for meetings, and assisted Wood
    with his participation in external boards, tasks necessary to
    ensure   the    smooth     administration          of   the    CEO’s    office.        In
    addition,      as   the   sole     executive       assistant      to    Dawn      Becker,
    General Counsel and COO of FRIT, Altemus scheduled quarterly
    Trustees    meetings,      assembled      Trustees       meetings      materials,      and
    11
    filed documents in corporate files.             Although Altemus claims
    that she spent 75 to 80 percent of her time performing personal
    tasks for Wood, she does not allege that her personal work for
    Wood supplanted her administrative tasks or that she diverted
    administrative tasks to other assistants.            Altemus worked as the
    sole executive assistant to both the CEO and COO of FRIT, a
    company with more than 400 employees.               She held this position
    100 percent of the time.        Although Altemus claims that personal
    tasks for Wood required a majority of her time, she nonetheless
    maintained a responsibility to complete her administrative tasks
    at all times.
    Moreover, despite Altemus’ attempts to create an issue
    of material fact with respect to the nature of her work, the
    district   court    correctly   concluded    that    Altemus’   self-serving
    affidavit was unsupported by the record, which includes ample
    evidence of her business-related duties as the sole executive
    assistant to the CEO of a large company.             In light of extensive
    evidence to the contrary, Altemus’ affidavit amounts only to a
    “scintilla of evidence.”         Accordingly, the district court did
    not err in determining that Altemus’ “primary duty” involved
    administrative tasks for the management of FRIT.
    With respect to the level of discretion she exercised,
    Altemus maintains that “in virtually every area of her work,
    Wood   controlled    decision   making,     often   to   a   minute   detail.”
    12
    According to Altemus, “Wood told her on a daily basis which
    tasks to complete and the order in which to complete them.”
    Altemus    further       disputes   the     Defendants’      description   of    her
    duties as Wood’s sole executive assistant, maintaining that her
    duties    were       “largely   clerical,      involving   the   sending   out   of
    mailings drafted by Wood, sending out emails, recording dates in
    a calendar and making lists.”             Even if she performed some duties
    that could be regarded as administrative, rather than merely
    clerical, Altemus contends, “those duties hardly occurred often
    enough, or consumed sufficient time to trigger an administrative
    exemption.”
    We conclude that the district court did not err in
    finding   that       Altemus    exercised      independent    discretion   as    the
    sole executive assistant to Wood.                As previously discussed, the
    factual assertions in Altemus’ affidavit fly in the face of the
    record    as     a    whole,    which     establishes      Altemus’   significant
    responsibilities as the sole executive assistant to the CEO of a
    large company.         The performance reviews prepared by Wood reflect
    the high level of independence and discretion Altemus enjoyed.
    In addition, the fact that Altemus, the only executive assistant
    supporting the office of the CEO, completed her administrative
    tasks while Wood was away from the office on business travel
    approximately 30 percent of the time serves as further evidence
    of Altemus’ exercise of independent judgment and discretion.
    13
    In addition, Altemus was paid a salary commensurate
    with her level of responsibility.                Altemus’ salary was nearly
    twice that of other non-exempt assistants, taking into account
    her annual bonus.        To determine whether an employee’s “primary
    duty” involves the performance of exempt work, the implementing
    regulations list a number of factors to consider, including “the
    relationship between the employee's salary and the wages paid to
    other employees for the kind of nonexempt work performed by the
    employee.”      
    29 C.F.R. § 541.700
    (a).          Thus,   the   fact    that
    Altemus’ salary was significantly higher than all other non-
    exempt administrative assistants further supports a finding of
    exempt status.        See Lott v. Howard Wilson Chrysler-Plymouth,
    Inc.,   
    203 F.3d 326
    ,     331   (5th      Cir.   2000)   (holding      that
    “comparative wages” is part of the analysis to determine whether
    an employee qualifies under the administrative exemption).
    Moreover, as the district court noted, Altemus’ high
    salary itself creates doubt as to whether she falls within the
    scope   of    the     intended     protected      class    in   light   of     the
    legislative goals of the FLSA.                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) (internal quotation marks and citation omitted); see
    also Counts, 
    317 F.3d at 456
     (“[The] FLSA was meant to protect
    14
    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).                       Accordingly, the district
    court    did    not       err     in    finding        that    Altemus      fell       within       the
    executive       administrative            assistant        exemption        under       the       FLSA.
    The    district       court       therefore       properly          awarded      the    Defendants
    summary judgment on Altemus’ overtime claims.
    On     appeal,       Altemus       briefly       addresses         the     district
    court’s       denial        of     her     Rule        56(d)     motion         for     additional
    discovery,          stating:       “[T]o      the      extent       that   the        trial       court
    credited any of Defendants’ evidence as to which the Plaintiff
    was denied discovery, the trial court erred in denying Plaintiff
    the additional discovery discussed in her Rule 56(d) Affidavit
    before    ruling       on       summary    judgment.”            However,        beyond       a    one-
    sentence       reference          to    the    court’s         denial      of    her     discovery
    request, Altemus provides no substantive argument addressing the
    district court’s denial of her discovery request.                                       Therefore,
    Altemus has forfeited appellate review of this issue.                                     See Fed.
    R.     App.     P.     28(a)(9)(A)            (appellant’s            brief       must     contain
    “appellant’s contentions and the reasons for them”); Edwards v.
    City    of     Goldsboro,         
    178 F.3d 231
    ,      241    n.6    (4th       Cir.       1999)
    15
    (“Failure to comply with the specific dictates of [Rule 28(a)]
    with respect to a particular claim triggers abandonment of that
    claim on appeal.”).
    Based on the foregoing, we affirm the judgment of the
    district    court.     We    dispense    with   oral     argument    because    the
    facts   and    legal   contentions      are   adequately    presented      in   the
    materials     before   the   court   and      argument    would     not   aid   the
    decisional process.
    AFFIRMED
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