Dorothy Altemus v. Federal Realty Investment

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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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
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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.
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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
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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
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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:
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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
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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
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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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