The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
Plaintiff Duane A. DeBejian commenced the instant litigation
against Defendant Atlantic Testing Laboratories, Ltd. ("ATL")
pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), as
amended, 29 U.S.C. § 201, et. seq. claiming that he did not
receive overtime compensation (that is, for those hours worked in
excess of forty per week). Presently before the Court is
plaintiff's motion for partial summary judgment pursuant to
FED.R.CIV.P. 56, seeking a determination that: (1) ATL is liable
under the FSLA; (2) plaintiff is entitled to liquidated damages;
and (3) the FLSA's statute of limitations should be extended from
two to three years.
Because plaintiff has moved for summary judgment, the following
facts are presented in the light most favorable to defendant.
See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).
Plaintiff was hired by ATL on or about December 5, 1995 as a
Non-Destructive Testing Technician ("NDT Tech") at a salary of
$442.31 per week. Non-destructive testing involves the on-site
inspection and testing of steel to determine whether it conforms
to industry and/or project standards. An NDT Tech travels to the
testing site and employs various tools to test the steel. The NDT
Tech then compares the results of his tests to industry or
project standards. Finally, the NDT Tech prepares a report
outlining the results of the testing.
To qualify as an NDT Tech, one needs a high school diploma, or
its equivalent, with specific NDT training. Although ATL
preferred individuals with a two-year degree, it would accept
persons with a high school education who also had experience.
On October 8, 1997, plaintiff was promoted to the position of
Non-Destructive Testing Assistant Project Manager ("Assistant
Project Manager"), and his salary was increased to $490.39 per
week. The qualification for this position was experience as an
NDT Tech. In fact, the majority of plaintiff's time as an
Assistant Project Manager was spent performing the same tasks he
did as an NDT Tech. However, as an Assistant Project Manager,
plaintiff had additional responsibilities including "project
management and technical supervision . . . scheduling
responsibilities for [his] projects and . . . time . . . [and]
project financial management." Pl. Ex. G. According to ATL,
plaintiff also was responsible for marketing and project
profitability and would review contract specifications, job
specifications and assist in hiring.
Plaintiff alleges in his Complaint that he was a nonexempt
employee and was denied overtime compensation due to him.
Presently before the Court is plaintiff's motion pursuant to
FED.R.CIV.P. 56 seeking judgment as a matter of law that: (1) ATL
violated the FLSA; (2) plaintiff is entitled to liquidated
damages; and (3) a three-year statute of limitations applies.
A. Summary Judgment Standard
The standard for summary judgment is well-settled and need not
be restated here. This Court has set forth the appropriate
standard to be applied in numerous published decisions, see
Roman v. Cornell Univ., 53 F. Supp.2d 223, 232 (N.D.N.Y. 1999);
Phipps v. New York State Dep't of Labor, 53 F. Supp.2d 551, 556
(N.D.N.Y. 1999); Riley v. Town of Bethlehem, 44 F. Supp.2d 451,
458 (N.D.N.Y. 1999), and will apply the same standards discussed
in those cases to plaintiff's motion for partial summary
B. Whether Plaintiff is an Exempt Employee*fn1
The crux of this case focuses on the applicability of
29 U.S.C. § 207 and the exceptions found at 29 U.S.C. § 213(a)(1) for
"employees employed in a bona fide