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DEBEJIAN v. ATLANTIC TESTING LABORATORIES

August 27, 1999

DUANE A. DEBEJIAN, PLAINTIFF,
v.
ATLANTIC TESTING LABORATORIES, LIMITED, DEFENDANT.



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.

I. BACKGROUND

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.

II. DISCUSSION

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 judgment.

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 executi ...


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