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
executive, administrative, or professional capacity."
Pursuant to § 207:
no employer shall employ any of his employees . . .
for a workweek longer than forty hours unless such
employee receives compensation for his employment in
excess of the hours above specified at a rate not
less than one and one-half times the regular rate at
which he is employed.
As noted, however, § 207 is inapplicable to "any employee
employed in a bona fide executive, administrative, or
professional capacity . . . as such terms are defined and
delimited . . . by regulations of the Secretary [of Labor]."
29 U.S.C. § 213(a)(1). Whether an exception applies to the FLSA is
an affirmative defense on which the employer has the burden of
proof. See Corning Glass Works v. Brennan, 417 U.S. 188, 94
S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Freeman v. National
Broad. Co., Inc., 80 F.3d 78, 82 (2d Cir. 1996). The exemptions
are narrowly construed and the employer must show that the
employee fits "plainly and unmistakenly within [the exception's]
terms." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct.
453, 456, 4 L.Ed.2d 393 (1960). An employee qualifies for such an
exemption if the he satisfies a "duties" test and is paid on a
"salary basis." See 29 C.F.R. § 541.1 (Executive); 541.2
(Administrative); 541.3 (Professional); see also Kelly v. City
of Mount Vernon, 162 F.3d 765, 766 (2d Cir. 1998).
Here, ATL contends that plaintiff qualifies as a bona fide
professional.*fn2 Because plaintiff earned in excess of $250.00
per week, to prove that plaintiff falls within this exception,
ATL must prove: (1) that plaintiff was compensated on a salary
basis; (2) that his primary duty consists of the "performance of
work requiring knowledge of an advanced type in a field of
science or learning"; and (3) that plaintiff's responsibilities
also include "work requiring the consistent exercise of
discretion and judgment." See Piscione v. Ernst & Young, L.L.P,
171 F.3d 527, 534 (7th Cir. 1999) (quoting 29 C.F.R. § 541.315);
29 C.F.R. § 541.3(e); see also Freeman, 80 F.3d at 83;
Dingwall v. Friedman Fisher Associates, P.C., 3 F. Supp.2d 215,
218 (N.D.N.Y. 1998) (Kahn, J.). The Court will first address the
second element outlined above — the "duties" test.
1. Duties of an NDT Tech
Defendant insists that plaintiff is a learned professional
because he possesses knowledge of an advanced type not generally
attained at the high school level. In support, defendant points
to the facts that plaintiff received certification from the State
University of New York at Delhi, he spent three and one-half
years at Mohawk Valley Community College, he earned a degree from
the College of Oceaneering, and he received numerous advanced
certifications while at ATL. ATL further contends that
plaintiff's job required the consistent exercise of discretion
and judgment because he was responsible for project management,
performing field work, and engaging in client management, report
preparation, report review, and decision making. According to
ATL, when plaintiff was promoted, he took on the additional
financial, management, and marketing responsibilities.
Although DeBejian may have an advanced education, that inquiry
is not determinative. The proper focus is on whether the
particular position at issue necessitated such advanced
knowledge. See Bohn v. Park City Group, Inc., 94
89 F.3d 1457, 1462 (10th Cir. 1996); Dybach v. State of Florida
Dep't of Corrections, 942 F.2d 1562, 1565 (11th Cir. 1991)
([T]he determinative factor is the job requirement and not the
education in fact acquired by the employee.); Dingwall, 3
F. Supp.2d at 218 ("The duties test for the professional exemption
concerns whether the nature of the employee's duties are
appropriately considered professional.") (emphasis supplied).
a. Qualifications for the NDT Tech Position
The undisputed evidence indicates that the NDT Tech position
does not require "knowledge of an advance type in a field of
science or learning customarily acquired by a prolonged course of
specialized intellectual instruction and study."
29 C.F.R. § 541.3(a)(1). NDT Techs need not have a specialized degree and
need not enroll in an extended course of specialized intellectual
instruction and study. See Thew Dep., at 72 (stating that the
qualifications for a NDT Tech could be pretty minimal). Rather,
that position merely requires a high school education, or its
equivalent, in addition to some specialized, but not lengthy,
training and hands-on experience. Evidence submitted by the
plaintiff reveals that an ATL employee can become a Level I NDT
Tech by possessing a high school diploma, or its equivalent,
attending 97 hours of training, and having three months of
on-the-job experience. To become a Level II NDT Tech at ATL, an
employee must complete an additional 100 hours of training, and
have at least 9 months of practical experience. This is advanced
knowledge from a "general academic education and from an
apprenticeship and training in the performance of routine mental,
manual, or physical processes," and not from a "prolonged course
of specialized intellectual instruction and study."*fn3
29 C.F.R. § 541.3(a)(1); see also Fife v. Harmon, 171 F.3d 1173,
1177 (8th Cir. 1999); Dybach, 942 F.2d at 1565 ("The duties of
that position must call for a person who is in a learned
profession with at least a college degree in a specialized type
of learning. A college degree of a generalized type does not meet
that requirement.") (citing 29 C.F.R. § 541.302(a)); Quirk v.
Baltimore County, Maryland, 895 F. Supp. 773, 785 (D.Md. 1995).
The learned professions typically require years, not weeks, of
b. Primary Duties of the NDT Tech Position
An analysis of the primary duties of the job itself
demonstrates that it is not of a professional nature. The primary
duty of an NDT Tech involves utilizing various tools to ascertain
whether the subject steel conforms to industry and/or project
standards. The NDT Tech does not interpret data, but merely
records the test results. See, e.g., Reich v. State of Wyoming,
993 F.2d 739, 741 (10th Cir. 1993). The NDT Tech then compares
the test results with industry and/or project standards to
determine whether the inspected steel conforms with such
standards. See Thew Dep., at pp. 83-85. The results are then
reduced into a report. These tasks do not require advanced
knowledge, but the use of specific skills.
Further, the NDT Tech position does not include work requiring
the consistent exercise of discretion and judgment. See
29 C.F.R. § 541.315(a). To the contrary, as noted, the NDT Tech
merely compares test results with industry or project standards.
The NDT Tech has no authority to deviate from these standards, to
decide to accept non-conforming steel, or to otherwise exercise
independent judgment or discretion. See O'Dell v. Alyeska
Pipeline Serv. Co., 856 F.2d 1452, 1454 (9th Cir. 1988);
29 C.F.R. § 541.207(a) ("In general, the exercise of discretion and
independent judgment involves the comparison and the evaluation
of possible courses of conduct
and acting or making a decision after the various possibilities
have been considered. The term . . . implies that the person has
the authority or power to make an independent choice, free from
immediate direction or supervision, and with respect to matters
of significance."). Indeed, although not binding, see Freeman,
80 F.3d at 83, the Secretary of Labor's interpretations
specifically note that:
Inspectors normally perform specialized work along
standardized lines involving well-established
techniques and procedures which may have been
catalogued and described in manuals or other sources.
Such inspectors rely on techniques and skills
acquired by special training or experience. They may
have some leeway in the performance of their work but
only within closely prescribed limits. Employees of
this type may make recommendations on the basis of
the information they develop on the course of their
inspections (as for example, to accept or reject . .
a product manufactured to specifications), but these
recommendations are based on the development of the
facts as to whether there is conformity with the
prescribed standards. In such cases a decision to
depart from the prescribed standards or the permitted
tolerance is typically made by the inspector's
superior. The inspector is engaged in exercising
skill rather than discretion and independent judgment
within the meaning of the[se] regulations.
29 C.F.R. § 541.207(c)(2); see also 29 C.F.R. § 541.305(b)
("Purely mechanical or routine work is not professional."). The
Secretary of Labor's interpretation at § 541.207(c)(2) fully
comports with the evidence before the Court regarding the NDT
Tech position and compels the conclusion that plaintiff was not a
Plaintiff's promotion in October 1997 does not require a
different result.*fn4 Although ATL submits affidavits stating
that plaintiff's responsibilities increased in October 1997 to
include project management, technical supervision, report
preparation and report review, scheduling, and marketing, see
Remington Aff., at ¶ 26; Thew Aff., at ¶ 14, it submits no
evidence to support a conclusion that these additional
responsibilities transformed plaintiff into a professional. See
Adams v. Department of Juvenile Justice of the City of New York,
143 F.3d 61, 65 (2d Cir. 1998). To the contrary, the evidence
reveals that the major portion of plaintiff's job
responsibilities continued to consist of field inspections as it
had before his promotion. See Thew Dep., at 93 ("I suspect that
[the percentage of time plaintiff spent doing field work once he
became an Assistant Project Manager is] fairly high because
that's what we are all about, is providing technical services. So
even though you are in management you are still doing a lot of
hands-on type work. . . . I would hope [that more than half of
his time was still spent on providing technical services].");
see also Adams, 143 F.3d at 65 ("Clearly, the work of the same
nature as that performed by the employees' subordinates must be
counted as nonexempt work and if the amount of such work
performed is substantial the exemption does not apply.").
Finally, whether plaintiff performed supervisory functions,
engaged in marketing, or had financial and other management
responsibilities is irrelevant to the question of whether he was
employed in a bona fide professional capacity. See Fife, 171
F.3d at 1177 ("Notably, `management' is absent from the
professions listed in the explanatory regulations.") (Citing
29 C.F.R. § 541.301(e)(1)); Piscione, 171 F.3d at 534 ("The
administrative exemption test . . . requires that an employee's
primary duty involve office or nonmanual work `directly related
to management policies or general
business operations,' while the professional exemption test
mandates that an employee's work require advanced knowledge in a
field of science or learning."). Plaintiff did not acquire any
such managerial or supervisory skills through knowledge of an
advanced type or extensive education. Such skills could be, and
were, learned on the job. See Thew Dep., at pp. 72-74.
Based upon this evidence, a rational finder of fact could only
conclude that the NDT Tech position does not necessitate any
advanced knowledge in a field of science or learning.
Accordingly, no rational factfinder could conclude that ATL is
able to fulfill its burden of demonstrating that plaintiff is
exempt from the FLSA and, therefore, summary judgment in favor of
plaintiff is warranted. Compare O'Dell, 856 F.2d at 1453
(inspector exempt because he had discretion to handle
discrepancies, conduct negotiations, reject unacceptable work,
review and override decisions of quality control inspectors, and
were involved in developing field inspections procedures);
Dingwall, 3 F. Supp.2d at 218 (engineer with decision-making
authority satisfied duties test).
C. Liquidated Damages
Plaintiff also moves for summary judgment seeking a
determination that he is entitled to liquidated damages under
29 U.S.C. § 216(b). Under that section, an employer who violates §
206 "shall be liable to the employee . . . affected in the amount
of . . . their unpaid overtime compensation . . . and in an
additional equal amount as liquidated damages."
29 U.S.C. § 216(b). "Liquidated damages are
not a penalty exacted by the law, but rather compensation to the
employee occasioned by the delay in receiving wages due caused by
the employer's violation of the FLSA." Herman v. RSR Sec. Servs., Ltd.,
172 F.3d 132, 142 (2d Cir. 1999) (citing Overnight Motor Transp.
Co. v. Missel, 316 U.S. 572, 583-84, 62 S.Ct. 1216,
86 L.Ed. 1682 (1942)).
Under the FLSA, liquidated damages are "the norm and single
damages the exception." Id. Courts have discretion to deny
liquidated damages only where "the employer shows that, despite
the failure to pay appropriate wages, the employer acted in
subjective `good faith' and had objectively `reasonable grounds'
for believing that the acts or omissions giving rise to the
failure did not violate the FLSA." Id. (citing
29 U.S.C. § 260); see also Brock v. Wilamowsky, 833 F.2d 11, 19 (2d Cir.
1987). The burden of demonstrating good faith is an onerous one
that rests with the employer. See id. "To establish good faith,
the employer must take active steps to ascertain the dictates of
the FLSA and then act to comply with them." Id. This entails "
`plain and substantial' evidence of subjective good faith and
objective reasonableness." Reich v. Southern New England
Telecomm. Corp., 121 F.3d 58, 70 (2d Cir. 1997).
Here, the steps undertaken by ATL included contacting counsel
(the identity of which ATL could not remember) sometime in the
eighties (the precise time of which ATL could not remember) to
"know what the guidelines were so that [it] could follow the
guidelines." Thew Dep., at 28. The extent of the review was "to
tell [ATL] what was required to meet the requirements of exempt
employees." Id., at 30. However, ATL did not furnish counsel
with the duties or qualifications of particular positions to
ascertain whether such positions would be exempt under the FLSA.
See id., at 30-31.
Although ATL purportedly inquired of counsel regarding the
FLSA's general requirements, there is no proof whether ATL made
this inquiry prior to its determination that plaintiff was exempt
or, for that matter, the extent of ATL's inquiry regarding the
requirements of the FLSA. Similarly, as noted, ATL made no effort
to determine whether particular positions, including plaintiffs,
would, in the opinion of counsel, be exempt from the overtime
requirements of the FLSA. Significantly,
ATL offered no evidence that its determination that plaintiff was
exempt was based upon its communications with counsel. Moreover,
it is irrelevant that plaintiff never complained about not being
compensated for overtime. See Southern New England Telecomm.,
121 F.3d at 71. Thus, while ATL may not have intentionally
violated the FLSA, the proof before the Court is insufficient to
demonstrate that its actions were in "good faith," as that phrase
is understood in the context of the FLSA. See id. ("`Good
faith' in this context requires more than ignorance of the
prevailing law or uncertainty about its development. It requires
that an employer first take active steps to ascertain the
dictates of the FLSA and then move to comply with them.").
Accordingly, plaintiff is entitled to liquidated damages.
D. Statute of Limitations
Finally, plaintiff seeks a determination that a three-year
statute of limitations should apply to the instant case because
ATL willfully violated the FLSA.
The FLSA provides for a two-year statute of limitations.
29 U.S.C. § 255(a). This period may be extended to three years for
"a cause of action arising out of a willful violation." Id.; see
also Herman, 172 F.3d at 141. In order to benefit from the
three-year statute of limitations, plaintiff bears the burden of
proving "that the employer either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by
the statute." Id. (quoting McLaughlin v. Richland Shoe Co.,
486 U.S. 128, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988)).
Plaintiff has presented no evidence that ATL knew that it was
violating the FLSA. Similarly, there is a paucity of evidence
that ATL recklessly disregarded its obligations under the
statute. The evidence reveals that ATL contacted counsel to
ensure that its policies conformed to the requirements of the
FLSA. Although, as previously discussed supra at II(c), ATL did
not take sufficient steps to ensure compliance with the FLSA, ATL
did make an effort to ascertain whether its policies were in
compliance and, therefore, it cannot be said that ATL recklessly
disregarded whether its conduct violated the FLSA.
For the foregoing reasons, plaintiff's motion for summary
judgement is GRANTED IN PART and the Court finds that: (1) ATL
violated 29 U.S.C. § 206 and 12 N.Y.C.R.R. Part 142; (2)
plaintiff is entitled to liquidated damages pursuant to
29 U.S.C. § 216(b); and (3) the two-year statute of limitations contained
in 29 U.S.C. § 255(a) applies.
IT IS SO ORDERED