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USERRA And FLSA Claims Proceed To Trial In Eastern District Of Virginia

Published by on May 28, 2008

In Sutherland v. SOS International, Judge Cacheris of the U.S. District Court for the Eastern District of Virginia denied the employer’s pre-trial motion for summary judgment related to the employee’s overtime claims under the FLSA and discriminatory discharge claim under USERRA due to the existence of factual disputes.  The denial of the employer’s pre-trial motion […]

In Sutherland v. SOS International, Judge Cacheris of the U.S. District Court for the Eastern District of Virginia denied the employer’s pre-trial motion for summary judgment related to the employee’s overtime claims under the FLSA and discriminatory discharge claim under USERRA due to the existence of factual disputes.  The denial of the employer’s pre-trial motion for summary judgment means that the case will proceed to a jury trial.  The case highlights some of the issues that trip up employers when defending these types of claims.

Plaintiff William D. Sutherland was hired by SOS in September 2006 as Manager of Marketing and Communications in Reston, Virginia by Julian Setian, a named defendant.  When Setian hired Sutherland, he knew of Sutherland’s membership in the U.S. Army Reserve and his ongoing reservist obligations.   Sutherland’s employment was terminated on March 31, 2007, at the direction of Setian due to poor work performance.

While Sutherland claimed he was a non-exempt employee, SOS argued that Sutherland fell under the FLSA’s administrative and professional exemptions.  In regard to the administrative exemption, the Court looked at the third requirement for an administrative exemption:  that the employee exercise discretion and independent judgment.  FLSA regulation 29 C.F.R. § 541.202(c) states that the existence of significant supervision is contrary to the requirement that an administrative employee exercise independent judgment.  The Court found that because plaintiff and defendants did not agree on the extent of supervision plaintiff received, a reasonable fact finder might conclude that he was not an administrative employee and thus summary judgment was not appropriate on this issue.

The professional exemption requires that the position’s primary duty “require knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.”  29 C.F.R. § 541.300.  In other words, employees exempt under the professional exemption must need to use their specialized degree for employment.  The Court found that SOS could not identify a particular certification or education required for Sutherland’s positions and therefore found that summary judgment was not appropriate.

SOS also moved for summary judgment on Sutherland’s claim of discriminatory discharge under USERRA.  The Court stated that it is difficult but not impossible for employers to achieve summary judgment under USERRA.  SOS argued that the “same actor inference” applied in ADA and Title VII cases should be applied under USERRA.  The Court therefore looked at the Fourth Circuit’s four-part test for the inference:  (1) the person who hired the plaintiff knew of the plaintiff’s protected condition, (2) the person who hired the plaintiff also fired him, (3) within a relatively short time following the hiring, and (4) the employer advances a legitimate, nondiscrimatory reason for the discharge.

Here, the facts showed that Setian hired Sutherland knowing that he was a reservist and that less than eight months later, Setian was responsible for terminating Sutherland’s employment.  Sutherland, however, argued that his reservist status is distinguishable from the type of categories to which the Fourth Circuit has applied the inference.  The disabilities under the ADA and protected classes under Title VII are immediately apparent at the time of hiring.  In contrast, the amount of time a reservist may need away from work is not so overtly obvious.  Sutherland argued that it was not until SOS learned of his obligation requiring two weeks of leave from work that they realized the extent of his reservist obligations.  It was that knowledge, Sutherland asserted, that triggered the discriminatory termination.

SOS denied that there was ever a meeting in which Plaintiff informed it of his need for leave.  The Court found that the existence of this meeting was a disputed issue of material fact, and a reasonable fact finder could conclude that the conversation led to Plaintiff’s termination – even with SOS’s evidence that Sutherland’s job performance was unsatisfactory.   Summary judgment was therefore denied.

Contributed by Michael K. Wilson

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