                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


ALNITA MILLER,                      :
                                    :
             Plaintiff,             :
                                    :
     v.                             : Civil Action No. 08-1945 (JR)
                                    :
HEALTH SERVICES FOR CHILDREN        :
FOUNDATION, et al.,                 :
                                    :
             Defendants.            :

                              MEMORANDUM

             Alnita Miller sues her former employer Health Services

for Children with Special Needs alleging violations of the Fair

Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201 et

seq., retaliation under the FLSA, violations of the Employee

Retirement Income Security Act of 1974, as amended, 29 U.S.C.

§§ 1140 et seq., and common law defamation.     Pending before the

court is the defendant’s motion for summary judgment.     Because

the plaintiff’s job was exempt from FLSA coverage, because there

is insufficient evidence to support retaliatory animus or a

violation of ERISA, and because the allegedly defamatory

statements were privileged and were not published with malice,

the defendant’s motion will be granted.

                              Background1

             HSCSN is a non-profit care management network that

coordinates health and education services for District of



     1
         This Background section includes only undisputed facts.
Columbia children who have severe health issues.     MSJ at 1.

Starting in about July 2004, plaintiff worked for HSCS as a

Behavioral Team Leader, a position which, among other duties,

required her to supervise care managers.    Pl. Opp. at 1; MSJ ex.

1 ¶ 9.

            During her employment with HSCS, plaintiff was also

required to perform certain “utilization review and utilization

management” functions involving the assessment of network members

for their admission to health facilities, the appropriateness of

their treatment, and their continued hospitalization.     MSJ ex. 1

¶ 10; Opp. at 1.    Plaintiff alleges that these duties did not

fall within her job description and that defendant hired other

employees to fulfill them from time to time, so that, as to her,

these duties were “extra” work, the performance of which took

between ten and twenty hours per week.    Opp. at 2.   Overall,

plaintiff worked more than forty hours each week, arriving at

around 8:30 or 9:00 A.M. and leaving anywhere from 6:00 to

8:00 P.M.    MSJ ex. 3 22:1-23:22.; Opp. at 2.   Although she

performed these allegedly “extra” duties for about two and one-

half years, she received no compensatory leave, bonus, or pay

raise.   Opp. at 2.

            In October 2007, defendant’s human resources manager,

Ms. Hostetter, and plaintiff’s supervisor, Ms. Saucier, met with

plaintiff about a grievance that had been brought against her by


                                - 2 -
another employee, AJ.   Opp. at 4.    AJ complained that plaintiff

treated her poorly and specifically referenced a comment that

plaintiff once made to her -- “Where are you waddling off to?” --

to which AJ, who is obese, took particular offense.     Opp. at 4.

A second meeting was held on the matter on November 1, 2007,

which AJ attended.   Opp. at 4; MSJ ex. 1 ¶ 33.    On November 13,

2007, at a third meeting, plaintiff’s employment was terminated.

Opp. at 5.   She was given a letter of explanation.     Id.

           Plaintiff filed for unemployment benefits with the D.C.

Department of Employment Services on November 17, 2007.       Opp. at

5.   After “[p]laintiff presented a copy of her termination letter

per DOES request,” DOES denied her application on the ground that

she had engaged in “misconduct.”     Opp. at 6.   Plaintiff appealed.

An administrative judge held a merits hearing on January 17,

2008, at which plaintiff did not appear.     Opp. ex. 7.   On

January 18, 2009, the appeal was denied as untimely.       Id.

                             Analysis

           On a motion for summary judgment, the movant carries

the burden of demonstrating that the “the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986).   “[A] material fact is ‘genuine’ . . . if the evidence


                               - 3 -
is such that a reasonable jury could return a verdict for the

nonmoving party” on an element of the claim.      Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).     “The evidence of the

non-movant is to be believed, and all justifiable inferences are

to be drawn in his favor.”   Anderson, 477 U.S. at 255.    “If the

evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.”      Id. at 249-50.

1. FLSA Exemption

          Plaintiff claims that under the FLSA she is due

compensation for the “extra” time she put into performing the

UR/UM duties.   Under 29 U.S.C. § 207(a)(1):

       [e]xcept as otherwise provided . . . no employer
       shall employ any of his employees who in any
       workweek is engaged in commerce or in the
       production of goods for commerce, or is employed in
       an enterprise engaged in commerce or in the
       production of goods for commerce, 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.

Certain kinds of employment are excepted from § 207's coverage,

however, including “any employee employed in a bona fide

executive, administrative, or professional capacity . . . .”      29

U.S.C. § 213(a)(1).   Under 29 C.F.R. § 541.300.

       [t]he term “employee employed in a bona fide
       professional capacity” in [29 U.S.C. § 213(a)(1)]
       of the Act shall mean 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 work: (I) Requiring knowledge of an

                               - 4 -
         advanced type in a field of science or learning
         customarily acquired by a prolonged course of
         specialized intellectual instruction; or
         (ii) Requiring invention, imagination, originality
         or talent in a recognized field of artistic or
         creative endeavor2

            Defendant asserts that plaintiff’s job was exempt from

FLSA coverage and that she is due nothing.     Plaintiff concedes

the first point, Opp. at 13, 14; Tr. 8:10-13, which is well

supported by undisputed evidence: her salary was always in excess

of $60,000 per year, Compl. ¶ 6. , MSJ ex. 1, ¶ 18; Compl. ¶ 6,

and her job was a “managerial supervisor position,” MSJ ex. 3 at

11:15 -18, that demanded use of her license as a social worker in

D.C. and the skills she learned getting her masters degree in

social work from Howard University.     MSJ ex. 1 ¶ 7.

            Plaintiff also concedes that, even assuming that the

UR/UM duties were “extra” duties -- i.e. the duties of a separate

compensable position -- and that these duties were non-exempt,3


     2
      Subject to some exceptions not applicable here, in general
“[a]n employee will be considered to be paid on a ‘salary basis’
within the meaning of these regulations if the employee regularly
receives each pay period on a weekly, or less frequent basis, 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.” 29
C.F.R. § 541.602(a). Satisfaction of this element is conceded.
     3
      It appears from the record that the UR/UM duties were in
fact exempt work -- the “work involves an assessment of the
appropriateness and economy of admitting a member to a health
care facility of continued hospitalization, or other plan or
program of treatment,” MSJ at 8 (citing ex. 1 ¶ 10), its duties
were defined by their successful completion, and not the number
of hours worked, Opp. at 2, and on the two occasions when the

                                - 5 -
“the primary duty of Plaintiff’s combined duties remained exempt

work.”   Op. at 15; see, 29 C.F.R. § 541.700.   Plaintiff therefore

admits that she “was not entitled to obtain overtime for

performing the second job.”   Opp. at 14; see Tr. 5:4-12.

Instead, somewhat bafflingly, she argues that somehow the “FLSA

and Defendant’s . . . polic[ies] required Defendant to pay

Plaintiff some form of compensation for performing a second job.”

Opp. at 14.   In support she cites to four sources: (1) an FLSA

regulation, the most relevant section of which gives employers a

means of providing exempt employees some form of non-salary based

compensation in addition to their salary, such as a sales

commission, without compromising the employee’s exempt status, 29

C.F.R. § 541.604; (2) an FLSA regulation which provides a means

of calculating the overtime rate when a non-exempt employee, in a

single workweek, performs two or more distinct types of work,

each of which has a different straight-time rate of pay, 29

C.F.R. § 778.115; (3) the defendant’s internal policy of “dual

employment,” by which, plaintiff asserts, defendant consistently

compensates exempt employees for performing “extra” work; and

(4) a Department of Labor opinion which in fact significantly

undermines her position that she is due additional compensation,



position of UR/UM Care Manager was filled, HSCS hired skilled
professionals, a registered nurse and a social worker, both of
whom earned salaries between $50,000 and $60,000 per year, Opp.
at 13 (citing Pl. Aff. ¶ 5).

                               - 6 -
Department of Labor Opinion, FLSA 2005-14 (March 17, 2005) (“[I]f

the primary duty of [an] employee is the performance of work as

[an] exempt coordinator, it is our opinion that the exemption(s)

under Part 541 would apply.   In that case, no additional

compensation beyond the guaranteed salary required for exemption

would be mandatory . . . .”).    Plaintiff fails completely to

explain how any of these sources obligated defendant to provide

her compensation for the UR/UM duties under the FLSA.

2. Retaliation

            “[I]t shall be unlawful for any person . . . to

discharge or in any other manner discriminate against any

employee because such employee has filed any complaint or

instituted or caused to be instituted any proceeding under or

related to [the FLSA] . . . .”    29 U.S.C. § 215(a)(3).   “[I]n

order to establish a prima facie case of retaliation under the

FLSA, a plaintiff must demonstrate (1) that the employer was

aware that plaintiff was engaged in statutorily protected

activity, (2) that the employer took adverse action against the

plaintiff, and (3) that there was a causal relationship between

the two.”   Cooke v. Rosenker, 601 F.Supp.2d 64 (D.D.C. 2009)

(citations omitted).

            Plaintiff argues first that defendant’s true motive for

firing her was retaliation for an informal complaint she made to

Saucier in October 2007.   Plaintiff described the situation thus:


                                 - 7 -
         On or around the first week of October 2007, I made
         an inquiry with Stacey Saucier regarding when the
         second position would be filled. I indicated that I
         wished to discontinue my performance on the job
         unless I received some form of compensation because
         of the demands of both positions and I had little
         time to spend with my family and friends.

Opp. ex. 7 (Pl. Aff ¶ 7).4

             The D.C. Circuit has yet to decide whether an informal

complaint suffices to trigger FLSA retaliation protection, and

there is a split in the Circuits over the issue.       Cooke, 601

F.Supp.2d at 74-75 (collecting cases).      But even assuming that

retaliation for making an informal complaint is cognizable under

§ 215(a)(3), an “employee must [still] step outside his or her

role of representing the company and . . . threaten to file[] an

action adverse to the employer, actively assist other employees

in asserting FLSA rights, or otherwise engage in activities that

reasonably could be perceived as directed towards the assertion

of rights protected by the FLSA.”       Hicks v. Association of

American Medical Colleges, 503 F. Supp. 2d 48, 52-53 (D.D.C.

2007) (quoting, McKenzie v. Renberg's, Inc., 94 F.3d 1478 , 1486-

87(10th Cir. 1996)); accord, Cooke, 601 F.Supp.2d at 75-76.         In


     4
      Despite this affidavit testimony, during her deposition
plaintiff did not remember requesting compensation for the UR/UM
work during this conversation with Saucier. Opp. at 3, fn. 3.
She now only recalls “making an inquiry with . . . Saucier
regarding the hiring of a full time employee to perform the UR/UM
care manager position.” Id. She further states that “she never
told Dr. Reynolds or anyone else that she felt it was wrong that
she was not being paid for the work that she thought she was
doing.” Opp. at 20.

                                - 8 -
plaintiff’s version of events, she made no reference to the FLSA

or her legal rights under any other statute, nor did she mention

possible legal action.    It is also uncontested that defendant has

always categorized and considered plaintiff’s position to be

exempt.   MSJ ex. 3.   With nothing to connect her supposed

complaint to the assertion of protected rights, the retaliation

claims fails.   Accord, Cooke, 601 F.Supp.2d at 75-76; Hicks, 503

F.Supp.2d at 54.

           Plaintiff’s second theory of retaliation, advanced for

the first time on this motion, is based on her allegation that

the defendant reneged on a promise not to contest her claim for

unemployment benefits.    Opp. ex.7 (Pl Aff. ¶ 20).   More

specifically, plaintiff asserts that, after she sent defendant a

letter on January 10, 2009, stating that she planned to contest

her termination and explicitly invoking the FLSA and ERISA,

defendant decided to contest her appeal of DOES’s rejection of

her unemployment benefits.

           These allegations and this theory of retaliation are

found nowhere in the amended compliant.    Nor is there evidentiary

support for them in the record.    But even accepting plaintiff’s

unsupported factual allegations as true, and applying the

generous standard for retaliatory adverse actions established by

Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006), an expressed desire by defendant to challenge the DOES


                                - 9 -
appeal and defendant’s appearance at the appellate hearing do not

constitute adverse retaliatory action cognizable under the FLSA

when (a) plaintiff reneged on her own undertaking to accept her

termination, (b) plaintiff herself did not show up at the

hearing, and (c) the appeal was rejected, not because of

defendant’s opposition, but because it was untimely.

3. ERISA

           Although the factual and legal underpinnings of

plaintiff’s claim are vague, plaintiff can bring a claim alleging

that defendant fired her for exercising her rights under ERISA

and/or that defendant intended to deny her of ERISA protected

benefits under 29 U.S.C. § 1140.   But such a claim would be based

on essentially the same evidence as the FLSA retaliation claims,

and it fails for substantially the same reasons: there is no

evidence of any kind that defendant’s actions were inspired by

retaliatory animus or were taken to interfere with plaintiff’s

pension benefits,5 and defendant’s actions concerning the DOES

appeal were not adverse.

4. Defamation

           “A plaintiff bringing a defamation action . . . must

show: (1) that the defendant made a false and defamatory

statement concerning the plaintiff; (2) that the defendant


     5
      The plaintiff’s pension benefits would not have vested
until July 9, 2009, nearly a year and a half after she was
terminated. Opp. at 27.

                              - 10 -
published the statement without privilege to a third party;

(3) that the defendant's fault in publishing the statement

amounted to at least negligence; and (4) either that the

statement was actionable as a matter of law irrespective of

special harm or that its publication caused the plaintiff special

harm.”6     Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C.

2001) (internal citation and quotations omitted).

             Plaintiff argues that the termination letter she

received was defamatory, and that she was harmed by its

publication to DOES and her employment file.     Opp. at 21.    But in

nearly the same breath plaintiff correctly concedes that

“information provided to DOES is subject to an absolute

privilege.”     Opp. at 22; Turner v. Federal Express Corp., 539

F.Supp.2d 404, 408-409 (D.D.C. 2008) (“Under settled District of

Columbia law, [r]eports to the unemployment compensation board

(a.k.a. Department of Employment Services) concerning the

termination     of an employee are absolutely privileged and cannot

support a claim for libel.”) (internal quotations and citations

omitted).     Her arguments that this absolute privilege is somehow

not absolute here are confused and unconvincing.

             Defendant’s publication of the termination letter to

plaintiff’s file was protected by a qualified privilege because



     6
         Neither party contests that D.C. law applies to this claim.


                                - 11 -
“[t]he law has long recognized a privilege for anything ‘said or

written by a master in giving the character of a servant who has

been in his [or her] employment.’”7     Turner, 539 F.Supp.2d at 409

(quoting, Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715

A.2d 873, 879 (D.C. 1998) (quoting, White v. Nicholls, 44 U.S.

266, 287, 3 How. 266, 11 L.Ed. 591 (1845)) (further citations

omitted).    This master/servant privilege allows an employer to

make covered “statements against [an employee] even if false,”

Washington Times Co. v. Bonner, 86 F.2d 836, 840 (1936), unless a

plaintiff can show “malice,” defined as “the doing of an act

without just cause or excuse, with such a conscious indifference

or reckless disregard as to its results or effects upon the

rights or feelings of others as to constitute ill will,” Columbia

First Bank v. Ferguson, 665 A.2d 650, 656 (D.C. 1995) (internal

quotation omitted).

            The presence of malice is therefore measured by the

“primary motive by which the defendant is apparently inspired” in

disseminating a statement, not the truth of the assertions.

Columbia first Bank, 664 A.2d at 656.     In this determination,

“the declarant will be presumed to have been actuated by pure

motives in its publication . . . and the plaintiff therefore has


     7
      “[T]he existence of the privilege is a question of law for
the court[;] whether it was abused by the defendant, is a
question of fact for the jury.” Novecon Ltd. v.
Bulgarian-American Enterprise Fund, 190 F.3d 556, 566 (D.C. Cir.
1999).

                               - 12 -
the burden of proving that the declarant acted with malice.”      Id.

(internal quotations and citations omitted).    “Moreover, unless

the statement is so extreme, unreasonable, or abusive that a

reasonable trier of fact would have to find malice inherent in

the statement itself, malice must be proven by extrinsic

evidence.”   Id. (internal citation omitted).   “[I]f the language

of the communication and the circumstances attending its

publication by the defendant are as consistent with the

nonexistence of malice as with its existence, there is no issue

for the jury, and it is the duty of the trial court to direct a

verdict for the defendant.”    Novecon Ltd. v. Bulgarian-American

Enterprise Fund, 190 F.3d 556, 566 (D.C. Cir. 1999) (internal

quotation omitted).

          The termination letter at issue is not facially

malicious, and plaintiff offers no extrinsic evidence of malice.

She only argues that defendant knew or should have known that the

statements in the letter were false -- an argument that oddly

focuses on defendant’s asserted failure to uncover sufficient

evidence to prove that plaintiff harassed AJ or discriminated

against her under federal and District anti-discrimination laws.

Opp. at 23-25.    By its terms, however, the letter is not based on

such a determination, and does not even mention the word

“discriminate.”   Instead, the letter speaks to the plaintiff’s

general lack of sensitivity to AJ and to defendant’s interests,


                               - 13 -
to plaintiff’s inability to foster a team environment, and to the

manner in which plaintiff handled the situation generally; all of

which created “serious concerns regarding [the plaintiff’s]

management skills.”   Opp. ex. 6.       As a whole, the record amply

supports the defendant’s good faith, even to the extent that no

reasonable juror could believe that the letter was published with

malicious motive.

          Plaintiff last argues that HSCS made some unspecified

defamatory statements to prospective employers to which plaintiff

had applied.   This claim is unsupported by any evidence that such

statements were made, let alone what they were,8 and such

statements would be covered by the “master/employee” privilege in

any event.   See, Turner, 539 F.Supp.2d at 409.

                         *          *         *

          For the reasons given above, defendant’s motion for

summary judgment, Dkt. #12, will be granted by an appropriate

order that accompanies this memorandum.




                                     JAMES ROBERTSON
                               United States District Judge



     8
      Plaintiff makes a similar claim that at some unspecified
point in time, unnamed individuals at HSCS made unspecified
statements about plaintiff that were defamatory. Opp. at 23.
This assertion, too, fails for its complete lack of evidentiary
support.

                              - 14 -
