                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 11-2213


DOROTHY ALTEMUS,

                Plaintiff - Appellant,

          v.

FEDERAL REALTY INVESTMENT      TRUST;    DONALD   WOOD,    in   his
individual capacity,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:10-cv-02751-PJM)


Submitted:   July 9, 2012                    Decided:     July 31, 2012


Before AGEE, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Laurence S. Kaye, THE KAYE LAW FIRM, Rockville, Maryland; Julie
G. Martin-Korb, Rockville, Maryland, for Appellant.    Christine
Nicolaides   Kearns,  PILLSBURY  WINTHROP  SHAW   PITTMAN   LLP,
Washington, DC, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Dorothy          Altemus    brought         suit   against     her    former

employer,    Federal         Realty    Investment        Trust    (“FRIT”),      and   her

supervisor, Donald Wood, for payment of overtime compensation

under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.A. §§ 201-

219 (West 1998 & Supp. 2011), and the Maryland Wage and Hour Law

(“MWHL”), Md. Lab. & Empl. Code Ann. §§ 3-401 to 3-431 (2009).

The district court granted the Defendants’ motion for summary

judgment,     finding          that     Altemus         qualified    as    an     exempt

administrative assistant working for a senior executive of a

large business, and Altemus now appeals.                       We have reviewed the

record and find no reversible error.                    Accordingly, we affirm.

            FRIT        is    an    equity       real    estate     investment       trust

specializing       in    the       ownership,     management,       development,       and

redevelopment       of       high     quality      retail      assets.        FRIT     had

approximately 450 employees in 2007; 379 employees in 2008; and

383 employees in 2009.                From September 2003 until March 2010,

FRIT employed Altemus as the sole executive assistant to Donald

Wood, CEO and President of FRIT.                   In addition, from 2008 until

March 2010, Altemus worked as the sole executive assistant to

Dawn Becker, General Counsel and COO of FRIT.                            Although FRIT

employed between ten and fourteen executive assistants during

this period, Altemus was the only executive assistant classified

as exempt.

                                             2
           Altemus’   base   salary       was   $84,000   in   2007,   with   a

$12,146 annual bonus; in 2008, 2009, and 2010, her base salary

was $86,520, with an annual bonus of $6,489 in 2008 and $12,978

in 2009.    In addition, Wood routinely gave Altemus a $5,000

personal check at the end of the year.             Comparatively, the base

salary for each of the other executive assistants was less than

$60,000 during this time period.          Altemus was the only executive

assistant at FRIT to participate in the 15% annual bonus pool,

while all other executive assistants were in the 7% bonus pool.

FRIT also gave Altemus the option to purchase FRIT stock in 2004

and 2005; in 2005, Altemus was the only executive assistant to

be given the option of receiving stock options in lieu of an

increase in salary.

           At the time she was hired in 2003, the job description

for the Executive Assistant to the CEO stated that Altemus was

to “[p]rovide high, executive-level support to the CEO.”                  The

position required five to ten years of previous experience and

listed the following responsibilities:

     Manage the day-to-day business activities of [the]
     CEO; demonstrate the ability to handle confidential
     information with discretion; prioritize and handle
     internal and external correspondence; screen incoming
     calls in the most professional manner; schedule
     meetings and maintain daily and long-term calendar;
     coordinate    Trustees   meetings    and    materials
     preparation; make all necessary travel arrangements;
     create and maintain comprehensive filing system;
     handle all incoming and outgoing mail; maintain


                                      3
      coordination        of     all   external     board     participation
      activities.

During Altemus’ employment with FRIT, Wood spent approximately

30 percent of his time on business travel.                   Altemus coordinated

Wood’s    travel     arrangements         and     monitored       his     email    and

communications as necessary while he was away from the office.

In addition, Altemus assisted Wood in his work with a number of

professional    organizations,         including    his     roles    as   an    active

member of the Board of Governors of the National Association of

Real Estate Investment Trusts (“NAREIT”) and the U.S. Capital

Chapter of the Young President’s Organization (“YPO”).                         Altemus

also assisted Wood with his role as Chairman of the Metro D.C.

Chapter of the Cystic Fibrosis Foundation (“CFF”), a charitable

organization in which Wood participated for both personal and

business reasons.

            Altemus alleged that her administrative tasks as the

sole executive assistant to Wood typically took no more than 20

to   25   percent    of    her    time,    while    her    responsibilities        for

performing personal work for Wood and his family required 75 to

80   percent    of   her       time.      With   respect     to     personal      tasks

performed for Wood and his family, Altemus indicated that she

planned   his   annual     personal       holiday   party,    scheduled        doctors

appointments, managed his personal travel, purchased tickets to

sporting and theatre events, occasionally picked up his children


                                           4
from school, and assisted Wood with his role as little league

coach for his son’s baseball team for two seasons, among other

tasks.    In addition, Altemus stated that she spent a significant

amount of her time working on projects related to the CFF, work

that   she    claimed      was    unrelated      to    the     management         of    FRIT.

Altemus      further     alleged     that    her      work     as    Wood’s       executive

administrative         assistant     “involved        only     minimal         exercise   of

discretion      or     independent     judgment,”         as    “Wood         often    micro-

managed tasks and took control of even the most basic decision

making of those tasks.”

              During     Altemus’     tenure       with      FRIT,       Wood     completed

performance reviews in 2005, 2007, and 2009 addressing Altemus’

strengths     and    weaknesses.       Altemus         reviewed      each       performance

review before signing it, and never objected to the content or

substance of the reviews.            In her 2005 performance review, Wood

stated that Altemus “truly has become my right arm when it comes

to   organizing      and   administering         all    aspects          of    business    at

Federal,”      describing        Altemus    as   “critical          to    the     continued

success of the overall office environment and my ability to be

organized and prioritize.”            In Altemus’ 2007 performance review,

Wood     praised     Altemus’       “superior         interpersonal            skills     and

intelligence,” stating:

       I can honestly say that, in the four years that she
       has been with [FRIT], every decision that I have ever
       seen her make has been made with her strong internal

                                            5
      belief that it is in the best interest of the company
      and of the CEO’s office. As a result, I give Dorothy
      more leeway to make decisions than I have ever given
      to an assistant before.

In addition, Wood stated: “I have never had a more complete

partner in my 25 year professional career.                  Dorothy’s scope of

responsibilities are broad, as she truly assists me in all of

the professional areas of my career that are important to my

overall success as the CEO of the Trust.”

            In her Complaint, Altemus alleged that she worked in

excess of forty hours per week during her tenure with FRIT, but

was not provided overtime compensation, in violation of the FLSA

and the MWHL.      In addition, counsel for Altemus filed a Fed. R.

Civ. P. 56(d) affidavit requesting additional discovery related

to   the   earnings   of   all    individuals         classified   as    executive

assistants, any documents discussing the reasons for Altemus’

salary and earnings increases, all documents in which CFF was

referred to in any way, and documents referring to the duties of

the executive assistants, as well as the opportunity to depose

both Wood and Becker, who provided declarations.                      Following a

hearing,     the   district      court       denied     Altemus’     request     for

additional    discovery    and    granted      the     Defendants’      motion   for

summary judgment, finding that Altemus fell within the executive

administrative     assistant     exemption       from    the   FLSA’s     overtime

requirement.


                                         6
             The   court   rejected   Altemus’   argument     that     the   “50

Percent Rule” governed the court’s analysis of Altemus’ “primary

duty,” finding that employees may indeed qualify for the FLSA’s

administrative exemption if they devote less than half of their

time to administrative duties.            Moreover, the court rejected

Altemus’ allegation that she only spent 20 to 25 percent of her

time completing administrative duties directly related to the

management    of    FRIT   and   exercised   little    to   no    discretion,

finding this proposition directly contradicted by the record,

including the job description for the executive administrative

assistant position and the performance reviews completed by Wood

describing     Altemus’    responsibilities.          The   court      likewise

rejected Altemus’ claim that her work assisting Wood in his role

as Chairman of the Metro D.C. Chapter of the CFF was personal,

as Wood stated in Altemus’ 2007 performance review that his work

for the CFF “added to [FRIT’s] reputation as a more complete

company” and “expanded relationships with many of the key real

estate assistants.”        The court therefore held that Altemus fell

within the executive administrative assistant exemption to the

FLSA and was not entitled to overtime wages.

             Altemus   timely    appealed,   arguing   that      the   district

court erroneously awarded the Defendants summary judgment.                   We

review the district court’s grant of summary judgment de novo.

Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en

                                      7
banc).      Summary judgment shall be granted “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”                          Fed. R.

Civ. P. 56(a).            “At the summary judgment stage, facts must be

viewed in the light most favorable to the nonmoving party only

if there is a genuine dispute as to those facts.”                           Scott v.

Harris, 550 U.S. 372, 380 (2007) (internal quotation marks and

citation omitted).             However, “a nonmovant cannot defeat summary

judgment     with    merely      a    scintilla    of   evidence.”      Blaustein    &

Reich, Inc. v. Buckles, 365 F.3d 281, 286 (4th Cir. 2004).

             Section (7)(a)(1) of the FLSA requires that employers

pay their employees time and a half for work over forty hours a

week.      29 U.S.C. § 207(a)(1).               However, the FLSA provides an

exemption from this overtime requirement for persons “employed

in   a     bona    fide     executive,      administrative,        or   professional

capacity.”        Id. § 213(a)(1).         Whether an employee is exempt from

overtime     requirements        is    a   mixed   question   of     law   and   fact;

“[t]he question of how the [employees] spent their working time

. . . is a question of fact.                    The question of whether their

particular activities excluded them from the overtime benefits

of   the    FLSA     is    a    question     of    law.”      Seafoods,     Inc.    v.

Worthington, 475 U.S. 709, 713-14 (1986); see also Walton v.

Greenbrier Ford, Inc., 370 F.3d 446, 451 (4th Cir. 2004) (“The



                                            8
determination of whether an employee falls within the scope of a

FLSA exemption is ultimately a legal question.”).

              The     FLSA’s      implementing          regulations         define     an

“employee employed in a bona fide administrative capacity” as

any employee (1) compensated on a salary or fee basis at a rate

of not less than $455 per week; (2) whose primary duty is the

performance of office or non-manual work directly related to the

management or general business operations of the employer or the

employer’s        customers;      (3)     whose   primary      duty    includes       the

exercise of discretion and independent judgment with respect to

matters of significance.                29 C.F.R. § 541.200(a).              The claim

that    an   employee      is    exempt    from   overtime      is    an    affirmative

defense      that   must    be    proven    by    the   defendant      by    clear    and

convincing evidence.             Clark v. J.M. Benson Co., Inc., 789 F.2d

282, 286 (4th Cir. 1986) (internal quotation marks and citation

omitted).

              On appeal, Altemus concedes that she met the first

prong   of    the    three-pronged        executive     administrative        assistant

test.     However, she maintains that the district court erred in

finding      that   she    met    the   remaining       two   requirements.          With

respect      to     her    “primary       duty”    as    Wood’s      sole    executive

assistant, Altemus reiterates her assertion below that personal

and family work she performed as Wood’s administrative assistant

occupied between 75 and 80 percent of her work time.                          Although

                                            9
Altemus       acknowledges           that         her     affidavit       was       directly

contradicted      by     the    performance             reviews    prepared        by     Wood,

Altemus insists that she signed the performance reviews “only to

indicate      receipt.”         By    accepting          Wood’s   unsworn       performance

reviews, which were contradicted by Altemus’ sworn statements in

her affidavit, Altemus argues, the district court effectively

drew   inferences      in     favor     of    the       wrong   party    at   the       summary

judgment stage.          In addition, Altemus avers that the district

court erred in failing to apply the “50 Percent Rule” previously

endorsed by this court in Clark v. J.M. Benson Co., Inc., 789

F.3d   282,    286     n.2    (4th    Cir.        1986).        According     to    Altemus,

deviation from this rule of thumb “required consideration of

factual circumstances for which a jury is more appropriate.”

              We conclude that the district court did not err in

finding that Altemus’ “primary duty” related to the management

of FRIT, rather than Wood’s personal tasks.                             Although Altemus

urges us to adhere to the “50 Percent Rule” in assessing whether

her    primary    duty       involved       the    performance      of    administrative

duties related to the management of FRIT, Altemus’ reliance upon

Clark v. J.M. Benson Co., Inc., 789 F.3d 282 (4th Cir. 1986), is

misplaced.       Following Clark, we clarified the application of the

50 percent “rule of thumb” in Counts v. S.C. Elec. & Gas Co.,

stating:



                                              10
      Nothing in the FLSA compels any particular time frame
      for determining an employee’s primary duty.     To the
      extent the regulations refer to time at all, it is
      only to provide that ‘a good rule of thumb [is] that
      primary duty means the major part, or over 50 percent,
      of the employee’s time.’      29 C.F.R. §§ 541.103,
      541.206. . . . [I]n fact, the regulations explicitly
      state ‘time alone, however, is not the sole test,’ and
      that any assessment of primary duty should ‘be based
      on all the facts in a particular case.’    Id.    It is
      clear from this language that the primary duty is
      meant   to  be  assessed   by  the  totality   of   the
      circumstances.

317 F.3d 453, 456 (4th Cir. 2003).                  Indeed, “[e]mployees who do

not spend more than 50 percent of their time performing exempt

duties may nonetheless meet the primary duty requirement if the

other    factors      support      such       a    conclusion.”              29   C.F.R.

§ 541.700(b).

            Under the regulations, “the term ‘primary duty’ means

the   principal,     main,    major      or    most     important      duty    that   the

employee    performs.”        29    C.F.R.        § 541.700(a).         As     the    sole

administrative assistant to the CEO of FRIT, Altemus managed

Wood’s     calendar,      made     all    necessary           travel    arrangements,

screened    incoming      phone    calls,      coordinated      Trustees      meetings,

prepared slides and handouts for meetings, and assisted Wood

with his participation in external boards, tasks necessary to

ensure   the    smooth     administration          of   the    CEO’s    office.        In

addition,      as   the   sole     executive       assistant      to    Dawn      Becker,

General Counsel and COO of FRIT, Altemus scheduled quarterly

Trustees    meetings,      assembled      Trustees       meetings      materials,      and

                                          11
filed documents in corporate files.             Although Altemus claims

that she spent 75 to 80 percent of her time performing personal

tasks for Wood, she does not allege that her personal work for

Wood supplanted her administrative tasks or that she diverted

administrative tasks to other assistants.            Altemus worked as the

sole executive assistant to both the CEO and COO of FRIT, a

company with more than 400 employees.               She held this position

100 percent of the time.        Although Altemus claims that personal

tasks for Wood required a majority of her time, she nonetheless

maintained a responsibility to complete her administrative tasks

at all times.

           Moreover, despite Altemus’ attempts to create an issue

of material fact with respect to the nature of her work, the

district   court    correctly   concluded    that    Altemus’   self-serving

affidavit was unsupported by the record, which includes ample

evidence of her business-related duties as the sole executive

assistant to the CEO of a large company.             In light of extensive

evidence to the contrary, Altemus’ affidavit amounts only to a

“scintilla of evidence.”         Accordingly, the district court did

not err in determining that Altemus’ “primary duty” involved

administrative tasks for the management of FRIT.

           With respect to the level of discretion she exercised,

Altemus maintains that “in virtually every area of her work,

Wood   controlled    decision   making,     often   to   a   minute   detail.”

                                    12
According to Altemus, “Wood told her on a daily basis which

tasks to complete and the order in which to complete them.”

Altemus    further       disputes   the     Defendants’      description   of    her

duties as Wood’s sole executive assistant, maintaining that her

duties    were       “largely   clerical,      involving   the   sending   out   of

mailings drafted by Wood, sending out emails, recording dates in

a calendar and making lists.”             Even if she performed some duties

that could be regarded as administrative, rather than merely

clerical, Altemus contends, “those duties hardly occurred often

enough, or consumed sufficient time to trigger an administrative

exemption.”

            We conclude that the district court did not err in

finding   that       Altemus    exercised      independent    discretion   as    the

sole executive assistant to Wood.                As previously discussed, the

factual assertions in Altemus’ affidavit fly in the face of the

record    as     a    whole,    which     establishes      Altemus’   significant

responsibilities as the sole executive assistant to the CEO of a

large company.         The performance reviews prepared by Wood reflect

the high level of independence and discretion Altemus enjoyed.

In addition, the fact that Altemus, the only executive assistant

supporting the office of the CEO, completed her administrative

tasks while Wood was away from the office on business travel

approximately 30 percent of the time serves as further evidence

of Altemus’ exercise of independent judgment and discretion.

                                          13
             In addition, Altemus was paid a salary commensurate

with her level of responsibility.                Altemus’ salary was nearly

twice that of other non-exempt assistants, taking into account

her annual bonus.        To determine whether an employee’s “primary

duty” involves the performance of exempt work, the implementing

regulations list a number of factors to consider, including “the

relationship between the employee's salary and the wages paid to

other employees for the kind of nonexempt work performed by the

employee.”      29     C.F.R.    § 541.700(a).          Thus,   the   fact    that

Altemus’ salary was significantly higher than all other non-

exempt administrative assistants further supports a finding of

exempt status.        See Lott v. Howard Wilson Chrysler-Plymouth,

Inc.,   203    F.3d     326,     331   (5th      Cir.   2000)   (holding      that

“comparative wages” is part of the analysis to determine whether

an employee qualifies under the administrative exemption).

             Moreover, as the district court noted, Altemus’ high

salary itself creates doubt as to whether she falls within the

scope   of    the     intended     protected      class    in   light   of     the

legislative goals of the FLSA.                We have previously emphasized

that,   “[a]lthough     salary    alone     is   not    dispositive   under    the

FLSA, . . . the FLSA was meant to protect low paid rank and file

employees.”     Darveau v. Detecon, Inc., 515 F.3d 334, 338 (4th

Cir. 2008) (internal quotation marks and citation omitted); see

also Counts, 317 F.3d at 456 (“[The] FLSA was meant to protect

                                       14
low paid rank and file employees, not higher salaried managerial

and    administrative            employees        who    are     seldom         the    victims       of

substandard working conditions and low wages.”).                                       Indeed, the

FLSA’s implementing regulations state that “[a] high level of

compensation         is     a    strong       indicator        of    an    employee’s         exempt

status.”        29 C.F.R. § 541.601(c).                       Accordingly, the district

court    did    not       err     in    finding        that    Altemus      fell       within       the

executive       administrative            assistant        exemption        under       the       FLSA.

The    district       court       therefore       properly          awarded      the    Defendants

summary judgment on Altemus’ overtime claims.

               On     appeal,       Altemus       briefly       addresses         the     district

court’s       denial        of     her     Rule        56(d)     motion         for     additional

discovery,          stating:       “[T]o      the      extent       that   the        trial       court

credited any of Defendants’ evidence as to which the Plaintiff

was denied discovery, the trial court erred in denying Plaintiff

the additional discovery discussed in her Rule 56(d) Affidavit

before    ruling       on       summary    judgment.”            However,        beyond       a    one-

sentence       reference          to    the    court’s         denial      of    her     discovery

request, Altemus provides no substantive argument addressing the

district court’s denial of her discovery request.                                       Therefore,

Altemus has forfeited appellate review of this issue.                                     See Fed.

R.     App.     P.     28(a)(9)(A)            (appellant’s            brief       must     contain

“appellant’s contentions and the reasons for them”); Edwards v.

City    of     Goldsboro,         178     F.3d      231,      241    n.6    (4th       Cir.       1999)

                                                  15
(“Failure to comply with the specific dictates of [Rule 28(a)]

with respect to a particular claim triggers abandonment of that

claim on appeal.”).

              Based on the foregoing, we affirm the judgment of the

district    court.     We    dispense    with   oral     argument    because    the

facts   and    legal   contentions      are   adequately    presented      in   the

materials     before   the   court   and      argument    would     not   aid   the

decisional process.



                                                                          AFFIRMED




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