United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. Fallon United States Magistrate Judge
before the court in this employment action alleging
violations of the Fair Labor Standards Act ("FLSA")
and racial discrimination, is defendant Prince Telecom LLC
("Prince") motion for summary judgment. (D.I. 64)
For the following reasons, I recommend that the court grant
Prince's motion for summary judgment.
Wayne Simpson ("Plaintiff) filed this action against
Prince on September 9, 2014, asserting claims for violations
of the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. ("FLSA"), and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000, et
seq. ("Title VII"). (D.I. 1) Plaintiff alleges
that Prince violated the FLSA by misclassifying him as exempt
from the wage and overtime requirements of the FLSA.
(Id. at ¶¶ 41, 45) Accordingly, Plaintiff
asserts that Prince failed to pay wages for all hours worked,
and overtime pay for all hours worked in excess of forty
hours per week. (Id. at ¶¶ 40-47)
Plaintiff also alleges that Prince unlawfully discriminated
against him on the basis of his race. (Id. at
filed the pending motion for summary judgment on May 16,
2016. (D.I. 64) The briefing schedule was extended to allow
for additional limited discovery. (D.I. 71) Briefing was
completed on August 9, 2016. (D.I. 74)
is a national telecommunications customer-service fulfillment
company. (D.I. 65 at 2) Prince provides services for
multi-service operators ("MSO") such as Comcast,
Cablevision, Charter, Time Warner, and WOW. (D.I. 72 at 2)
Prince works exclusively with Comcast in the New Castle
County, Delaware region. (Id.) Prince hired
Plaintiff as a technician for the New Castle facility in
August 2006. (Id.; D.I. 65 at 2-3)
was paid hourly as a technician. (D.I. 72 at 2) His duties
included installing cable, cable boxes, phone, and internet.
(Id.) Prince promoted Plaintiff to Supervisor in
December 2007. (D.I. 65 at 2) As a supervisor, Plaintiff
began to receive a salary instead of the hourly pay he
received as a technician. (D.I. 72 at 2) Prince promoted
Plaintiff to Project Manager on June 6, 2010, with an
associated $56, 000 annual salary. (D.I. 65 at 2-3) He held
the position of Project Manager through the date of his
termination on October 28, 2013. (D.I. 68 at A755-76)
Plaintiffs FLSA claims relate only to the period for which he
claims that he was mischaracterized as exempt while holding
the title of Project Manager. (D.I. 1 at ¶¶ 14-24)
Plaintiffs duties as Project Manager
originally posted a vacancy announcement for the Project
Manager position. (D.I. 66 at ¶ 25) The job
responsibilities listed on the announcement were as follows:
• Direct liaison between Prince Telecom and our MSO
• Maintain positive MSO relationships
• Maintain profitable daily MSO workload within all MSO
time frame requirements and installation specifications.
• Screen applicants, interview, hire or retain, train,
supervise, discipline, evaluate field technicians, office
support personnel, and supervisors.
• Ensure and maintain all billing and payroll integrity,
as well as corporate paperwork requirements.
• Ensure and maintain all MSO and company quality
control and safety requirements.
• Maintain and control all company assets and MSO
• Analyze operations, identify performance issues and
recommend and implement corrective action.
• Hold regular staff meetings for timely communications
of MSO and corporate directives and or changes.
• Complete Weekly Report which summarizes all
operational concerns i.e. converter reconciliation, quality
control, work load, system and personnel needs, etc.
(Id.) The announcement also listed the position as
"Exempt" under the FLSA. (Id.)
Prince's Human Resources Director, Anitha N. Verghese,
clarified through deposition testimony that the position fell
under the administrative exemption, which covers employees
with management duties. (D.I. 72 at 83)
Project Manager, Plaintiff had anywhere from fifteen to fifty
technicians working under him. (D.I. 68 at A770) He went to
unemployment hearings on Prince's behalf, issued
technician discipline and performance evaluations, signed off
on termination forms, issued company policy notices, and
signed technicians' weekly time sheets. (D.I. 66 at
¶ 27-63; D.I. 67 at ¶ 336-40; D.I. 68 at A769-71,
A788-89) He also dispatched technicians to work sites,
performed installations, viewed DriveCam history videos,
and placed orders for equipment. (D.I. 1 at ¶ 15)
Carpenter was a supervisor who reported to Plaintiff when he
held the Project Manager title. (D.I. 68 at A794) Mr.
Carpenter sat in on conference calls with management, where
Plaintiff discussed "trouble technicians" and
financials. (Id. at A802-03) Mr. Carpenter and
Plaintiff also participated in weekly technician meetings,
where Plaintiff discussed DriveCam videos, service calls, and
safety. (Id. at A803) Mr. Carpenter testified that
Plaintiff was involved in technician hiring, discipline, and
firing. (Id. at A794-95) Mr. Carpenter referred
technician discipline to Plaintiff. (Id. at A801)
Plaintiff regularly sat down with technicians to discuss
lateness, absences, and poor DriveCam performance.
(Id. at A801-02)
asserts that his position was mischaracterized as exempt, as
he was actually doing the job of a technician. Because of the
workload, Plaintiff testified that he spent ninety percent of
his time in the field like a technician, performing
installations, changing services, and responding to service
calls. (Id. at A761-62) He claims he spent one
percent of his time sending work out for technicians.
(Id. at A758) He spent less than five percent of his
time viewing DriveCam history videos. (Id. at A759)
Plaintiff also testified that he did not feel he had
discretion in hiring or discipline, as these decisions were
made by his superiors. (D.I. 73 at 41)
testified that, as Project Manager, he worked every day
Monday through Saturday from 6:00AM until midnight.
(Id. at 43-46) He also worked half days on Sunday.
Events underlying Plaintiffs alleged discrimination and
2012, Plaintiff complained to Ms. Verghese that his
supervisor, Bruce Schaefer, was not treating African American
employees fairly. (Id. at 100) Plaintiff testified
that Mr. Schaefer tore up disciplinary documents for white
technicians, but allowed discipline for African American
technicians for the same conduct. (Id. at 53-54)
Plaintiff testified that Ms. Verghese dismissed his
complaints. (Id. at 54-55)
Schaefer testified that in April and May of 2012, Plaintiff
failed to properly enforce the DriveCam safety policy. (D.I.
68 at A705) Specifically, Plaintiff failed to discipline
seven drivers. (Id.) On September 28, 2012, Prince
issued Plaintiff a Performance Improvement Plan outlining
concerns regarding Plaintiffs failure to meet expectations.
(Id. at A711) The warning outlined the following
transgressions, which occurred on September 18, 2012:
• Work Orders for Restart/Reconnect at the pole were
being marked as completed and submitted to Comcast as
completed even though they were not.
• These work orders were placed under a Supervisors
[sic] Tech Number. The Supervisor coded the job and signed
off as completed when that was not the case.
• The incomplete work orders were submitted to
[redacted] with fictitious meter readings documented by your
• These work orders were then handed to the Technicians
within a few days to be completed, with the techs paid hourly
codes including training wages.
• Trainees were used to complete this work and paid
training wages costing the company more money than the normal
payout for the job.
(Id.) The warning also outlined areas requiring
immediate improvement. (Id.) As a result, Plaintiff
received a one week suspension from the company.
29, 2013, Prince asked Plaintiff to consider stepping down
from Project Manager to Project Supervisor based on several
incidents, including failure to check and approve salaried
timecards, a complaint that Plaintiff was late and
uninterested in a technician job interview, and failure to
respond to Dispatch regarding a technician who needed
equipment. (Id. at A710) Plaintiff was permitted to
keep his job based on the assurance that he would improve his
performance. (Id. at A734)
August 23, 2013, Plaintiff received an additional warning for
failing to discipline a technician who had multiple DriveCam
violations. (Id. at A706, A713)
September 2013, Ben Herson, a Caucasian male, became
Plaintiffs direct supervisor. (D.I. 73 at 100) Plaintiff
testified that during a phone conversation with Mr. Herson in
early September, "Mr. Herson made insensitive and
stereotypical remarks relating to African Americans."
(Id.) Mr. ...