                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-2648
                                     _____________

                                 LESLIE L. SANDER,
                                                Appellant

                                           v.

                                 LIGHT ACTION, INC.
                                   _______________

                    On Appeal from the United States District Court
                              for the District of Delaware
                                (D.C. No. 1-10-cv-0684)
                        District Judge: Hon. Leonard P. Stark
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 25, 2013

          Before: JORDAN, GREENBERG and NYGAARD, Circuit Judges.

                                 (Filed: April 26, 2013)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Leslie Sander appeals the denial of her motion for reconsideration of an order

granting summary judgment to Defendant Light Action, Inc. (“Light Action”) and

denying her motions for summary judgment and for leave to amend her complaint. For

the following reasons, we will affirm.
I.    Background1

          From 2000 until she was fired in 2010, Sander was an employee of Light Action,

a Delaware production company specializing in theatrical lighting, staging, audio-video

systems, and outdoor roofing systems. She became the company‟s Warehouse Manager

in 2007 and received a new compensation plan as part of that change in position.2 Under

that plan, Sander was entitled to a guaranteed base pay of $60,000, and she was expected

to work 45 hours per week. She could receive additional compensation for working at

events, or “gigs,” that occurred off-site, and for working overtime hours. Those

additional compensation opportunities were intended to keep her total pay level close to

$74,118, which is what it had been before she changed positions.

      In keeping with the plan, Sander was paid $1,153.85 a week for the weeks in

which she only worked on-site, which corresponds to her $60,000 base pay.3 When she

had off-site events, however, her amount of compensation was determined by prorating

her hours. For the hours that she worked “in the shop,” she would be paid a

corresponding percentage of her standard weekly rate. For the hours she spent at the

events, she was compensated at a higher rate, meaning that her total weekly

compensation, assuming she did not take any leave days, was higher than her standard




      1
        In accordance with our standard of review, we recite the facts in the light most
favorable to Sander, the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
      2
          She had previously been a Lighting Production Manager.
      3
          $1,153.85 multiplied over 52 weeks totals $60,000.

                                             2
weekly pay.4 In total, Sander earned $76,253 in 2007, $71,983 in 2008, and $67,653 in

2009 under that compensation plan.

      In May 2010, Sander complained to Light Action‟s management on at least one

occasion about its leave policy and her level of compensation. Later that month, she

informed Light Action that she was seeking legal counsel regarding her compensation

complaints. On May 26 or 27, several mishaps in the preparation for a show prompted a

disagreement between Sander and her supervisors, during which she became belligerent

and hostile. After she returned home from work that day, she received a telephone call

terminating her employment with Light Action.5

      On August 12, 2010, Sander brought the present suit alleging, that she had not

been paid overtime wages as required by the Fair Labor Standards Act (“FLSA”), 29

U.S.C. §§ 207, 215(a)(2). On January 24, 2011, she filed an amended complaint that

added a state law retaliation claim. After discovery, both parties moved for summary

judgment, with Sander seeking partial summary judgment on her FLSA claim to overtime

wages, and Light Action moving for summary judgment on all counts. Sander then filed

a motion for leave to file a second amended complaint. On March 21, 2012, the District

      4
          More specifically, Sander was generally paid $388.50 per show, a figure that
appears to presume ten-hour “show days”. When Sander worked a show day longer than
ten hours, she earned $32.28 per hour on top of the $388.50. Her overtime rate for in-
shop hours was $30.
      5
          Sander states in her amended complaint that she was fired on May 26, 2010,
whereas Light Action says she was terminated on May 27. Sander does not mention the
conflict over the show in her briefing, nor does she present evidence to contradict Light
Action‟s version of that event or deny that it occurred. We therefore assume that the
conflict unfolded as Light Action describes, and that it occurred on the day that Sander
was fired, whichever day that was.

                                            3
Court denied that motion and Sander‟s motion for partial summary judgment. The Court

granted Light Action‟s motion, finding that there was no genuine dispute that Sander was

exempt from the FLSA overtime requirements because she was a salaried employee, and

that she had presented no evidence of unlawful retaliation. Sander moved for

reconsideration of that order, which was denied on May 18, 2012. This timely appeal

followed.

II.   Discussion6

      Sander raises three arguments on appeal. First, she maintains that there is a

genuine dispute of material fact as to whether her exempt status under the FLSA was

undermined by Light Action‟s practice of prorating her hours, which she argues made her

      6
        The District Court had subject matter jurisdiction over the FLSA claims pursuant
to 28 U.S.C § 1331, and over the state law retaliation claim pursuant to 28 U.S.C § 1367.
We have jurisdiction to review the denial of the motion for reconsideration under 28
U.S.C § 1291. An appeal from a denial of a motion for reconsideration also “brings up
the underlying judgment for review,” Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345,
348 (3d Cir. 1986) (internal quotation marks omitted), and Federal Rule of Appellate
Procedure 4(a)(4)(A) provides that, if a such a motion was timely filed, “the time to
appeal begins to run from the district court‟s disposition of the motion,” Long v. Atlantic
City Police Dept., 670 F.3d 436, 438 (3d Cir. 2012). Sander filed her motion for
reconsideration and her notice of appeal in a timely fashion, and thus we have jurisdiction
to review both the denial of reconsideration and the underlying judgment. See Lazaridis
v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (concluding that the court had jurisdiction
to review the underlying order dismissing the complaint because the plaintiff‟s “timely
Rule 59(e) motion tolled the time to file a notice of appeal”).
        Although we review the denial of a motion to reconsider for abuse of discretion,
id., the District Court‟s grant of summary judgment is subject to plenary review,
Rauscher, 807 F.2d at 348. “Summary judgment is appropriate where the Court is
satisfied „that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.‟” Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986) (quoting Fed. R. Civ. P. 56(c)). We review a district court‟s denial of a motion for
leave to amend a complaint for abuse of discretion. Cureton v. Nat’l Collegiate Athletic
Ass’n, 252 F.3d 267, 272 (3d Cir. 2001).

                                            4
an hourly employee entitled to overtime compensation. Second, she asserts that the

District Court erred in concluding that she failed to plead or prove her retaliation claim.

Third, she contends that the Court abused its discretion by refusing to allow her to file a

second amended complaint. We address her arguments in turn.

       A.     FLSA Exemptions

       The FLSA establishes the general rule that “no employer shall employ any of his

employees … for a workweek of longer than forty hours unless such employee receives

compensation … at a rate not less than one and one-half times the regular rate at which

he is employed.” 29 U.S.C. § 207(a)(1). Nonetheless, certain employees are exempted

from that requirement, including individuals who are “employed in a bona fide executive,

administrative, or professional capacity.” Id. § 213(a)(1). An employee falls within that

exemption if she is “[c]ompensated on a salary or fee basis at a rate of not less than $455

per week,” her “primary duty” is “directly related to the management or general business

operations of the employer,” and that duty “includes the exercise of discretion and

independent judgment.” 29 C.F.R. § 541.200(a). The employer bears the burden of

proving that a purportedly exempt employee satisfies those requirements. See Corning

Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974) (“[T]he application of an

exemption under the Fair Labor Standards Act is a matter of affirmative defense on

which the employer has the burden of proof.”).




                                              5
       At issue in this appeal is the “salary basis” component of that test.7 Light Action

maintains that, as the District Court concluded, Sander was paid on a salary basis and

therefore was an exempt employee not entitled to overtime under the FLSA. Sander

disagrees, insisting that, regardless of the terms of her compensation package, she was in

fact paid as an hourly employee and thus should have been paid at a rate one and one-half

times her normal salary any time she worked more than 40 hours a week.

       Federal regulations provide that an individual is paid on a salary basis “if the

employee regularly receives each pay period … a predetermined amount constituting all

or part of the employee‟s compensation, which amount is not subject to reduction

because of variations in the quality or quantity of the work performed.”8 29 C.F.R. §

541.602(a). In other words, the employee “must receive the full salary for any week in

which the employee performs any work without regard to the number of days or hours

worked.” Id. Under that standard, employees “who can be docked pay for missing a

fraction of a workday must be considered … hourly.” Martin v. Malcolm Pirnie, Inc.,

949 F.2d 611, 615 (2d Cir. 1991). On the other hand, employees who receive a fixed,

predetermined amount plus an amount that may be subject to deductions are generally not

considered hourly employees. Harvey v. Homebound Mortg., Inc., 547 F.3d 158, 165 (2d

Cir. 2008) (“A two-part salary scheme in which employees receive a predetermined


       7
        Sander concedes that her position at Light Action satisfied the “primary duty”
requirements.
       8
         There are a number of exceptions to that requirement. Most notably, full-day
absences for personal reasons, sickness, or disability generally can be deducted from the
predetermined salary without an employee losing exempt status. 29 C.F.R. § 541.602(b).

                                             6
amount, plus … an additional portion subject to deductions for quality errors does not

violate the salary-basis test unless the system is designed to circumvent the requirements

of the FLSA.” (internal quotation marks omitted)).

       Sander argues that she is a non-exempt hourly employee under the FLSA because

Light Action “docked” her hours when she worked outside the shop. (Appellant‟s

Opening Br. at 8.) Specifically, she complains that, by prorating her hours during weeks

in which she had shows, Light Action was improperly deducting money from the

“predetermined amount” that she was supposed to receive each pay period. See 29

C.F.R. § 541.602(a). According to Sander, those “partial-day deductions” added up to a

total of 241.3 hours, and thus she was effectively docked $6,220.04 from 2007 to 2010.

(Appellant‟s Opening Br. at 23.)

       But the conclusion that Sander was an hourly employee simply does not follow

from the undisputed facts of her compensation scheme. Sander does not contest that, on

weeks when she did not have any shows, she was paid her standard weekly rate

regardless of how many hours she worked. As is clearly demonstrated by her time cards,

whether Sander worked 31 hours, 38 hours, or 44 hours a week in the shop, she always

earned $1,153.85. Moreover, on weeks in which she worked off-site at events, she

earned even more, provided she did not take any sick days or vacation days. The reason

that her hours were “prorated” during those weeks was not to deduct anything from her

base rate, but rather to ensure that she was paid a premium for the hours she spent off-

site. In other words, the additional compensation she earned for working at shows was

effectively calculated on an hourly basis, and she was paid that premium on top of her

                                             7
standard weekly salary. The multi-tiered nature of that scheme does not change the fact

that Sander earned as part of her compensation package “a predetermined amount …

[that was] not subject to reduction.” 29 C.F.R. § 541.602(a); see also Harvey, 547 F.3d

at 165 (permitting a similar two-tiered structure). The District Court was therefore

correct to conclude that there is no genuine dispute as to whether Sander was a salaried

employee, and her claim to FLSA overtime compensation fails as a matter of law.9

       B.     Retaliation Claim

       In her amended complaint, Sander also brought a retaliation claim against Light

Action, alleging that the company “intentionally and maliciously discriminated against

[her] in retaliation for her complaints in violation of 19 Del. C. § 726.” (App. at 41.)

Sander now concedes that she has no viable cause of action under that provision of

Delaware law, which prohibits discrimination on the basis of disability. See Del. Code

Ann. tit. 19, § 726 (prohibiting an employer from discriminating against an employee

who “opposed any practice prohibited by this subchapter”); id. § 721 (“This subchapter is

intended to encourage and enable qualified persons with disabilities to engage in

       9
          To the extent that there is a factual dispute regarding Sander‟s compensation, it
is over the amount of additional compensation to which she was entitled, not whether her
base pay was subject to deduction. Sander argues that the show hours calculated at the
premium rate should have been added on to her $1,153.85 base salary, meaning that if
she worked a full week outside the shop, she should have earned more than twice her
normal salary (her baseline $1,153.85, plus a week‟s worth of hours at the premium rate).
Light Action agrees that she was entitled to compensation above the $1,153.85 baseline,
but only in the amount represented by the difference between the premium and the base
rates. If this case were a contract dispute, that disagreement about the proper size of the
premium perhaps would call for an interpretation of the pertinent contract provisions, and
that could conceivably involve factual issues, but a disagreement about the size of the
premium has no effect on Sander‟s status as an exempt employee under the FLSA.

                                              8
remunerative employment … .”). Nonetheless, Sander argues that “the unfortunate

reference to discrimination in the retaliation paragraph” should not have prevented the

District Court from treating the allegation as an FLSA retaliation claim, which is what

she says she meant to bring. (Appellant‟s Opening Br. at 28.) What she wanted to do

and what she actually did are, however, quite different. Sander pled a disability

discrimination claim under Delaware law, not an FLSA retaliation claim, and she cites no

authority by which the District Court could have redrafted her claim to make it something

it was not. The Court was therefore correct to grant summary judgment to Light Action

on that claim, as Sander provided no evidence that she was discriminated against on the

basis of a disability.10

       C.      Denial of Leave to Amend the Complaint

       Finally, Sander argues that the District Court abused its discretion by not allowing

her to amend her complaint after both parties had moved for summary judgment, less

than six weeks before trial. Specifically, in response to a suggestion by Light Action that

the partial-day deduction argument was not properly raised in the pleadings, she sought to

add language to the complaint “in support of her claim for non-exemption from the FLSA

       10
           Even if Sander had succeeded in pleading an FLSA retaliation claim, the
District Court correctly concluded that Light Action would still be entitled to summary
judgment, as Sander presented no evidence that the reason Light Action provided for her
termination – her belligerent behavior toward her supervisors – was a mere pretext for
unlawful retaliation. Cf. Burton v. Teleflex Inc., __ F.3d __, No. 11-3752, 2013 WL
616973, at *6 (3d Cir. Feb. 20, 2013) (holding that when a defendant has provided a
legitimate reason for an employment action, the burden shifts “back to the plaintiff to
provide evidence from which a factfinder could reasonably infer that the employer‟s
proffered justification is merely a pretext for discrimination,” and “[t]he plaintiff must
make this showing of pretext to defeat a motion for summary judgment”).

                                             9
because of improper deductions from her base pay.” (Appellant‟s Opening Br. at 11-12.)

The District Court refused to permit such a late amendment to the pleadings, concluding

that, “to the extent the Second Amended Complaint would add something new to the

instant case,” that addition was “too late – and too prejudicial and burdensome to

Defendant, as well as disruptive to the Court” – to be permitted. (App. at 17-18.)

       We cannot say that that conclusion was an abuse of the District Court‟s discretion.

Although we have adopted a liberal approach to the amendment of pleadings, we also

recognize that “when a movant has had previous opportunities to amend a complaint,” or

when allowing an amendment will place “an unfair burden on the opposing party,” there

may be sufficient ground to deny leave to amend. Cureton v. Nat’l Collegiate Athletic

Ass’n, 252 F.3d 267, 273 (3d Cir. 2001). Here, Sander had many opportunities to amend

her complaint throughout the discovery process, and yet waited to do so until two weeks

before the final pretrial conference, plainly burdening both the Court and the Defendant.

It was therefore within the District Court‟s discretion to deny leave to amend.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court‟s denial of Sander‟s

motion for reconsideration, as well as its order granting summary judgment to Light

Action, denying partial summary judgment to Sander, and denying leave to amend the

complaint.




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