Kathy Radtke v. Maria Caschetta , 795 F.3d 159 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 23, 2015 Decided July 28, 2015
No. 14-7079
KATHY RADTKE AND CARMEN CUNNINGHAM,
APPELLEES
v.
LIFECARE MANAGEMENT PARTNERS AND ADVANTA MEDICAL
SOLUTIONS, LLC,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-02031)
Alan Lescht argued the cause and filed the briefs for
appellants.
S. Micah Salb argued the cause for appellees. With him
on the brief was Dennis Chong.
Before: MILLETT and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Appellees, medical
records coders employed by appellants, brought this action
against their employers for unlawfully failing to pay overtime
pay. Appellees prevailed in a jury verdict that found they
were not exempt from overtime pay. The district court denied
defendant-appellants’ motions for judgment as a matter of
law, for a new trial, and to alter or amend the judgment.
Appellants brought the present appeal, contending that no
reasonable jury could have found appellees not to be exempt,
and that errors by the court require a new trial. Finding no
merit in appellants’ arguments, we affirm the judgment of the
district court for the reasons more fully set forth below.
BACKGROUND
Plaintiff-appellees Kathy Radtke and Carmen
Cunningham were employed as medical records coders by
defendant-appellants. Appellees brought the present action
against their former employers. Although the complaint and a
subsequent amended complaint asserted multiple theories of
relief, as relevant to the present appeal, plaintiffs asserted that
defendants had failed to pay them compensation at the rate of
one and a half times their normal pay for work in excess of
forty hours per week, in violation of the Fair Labor Standards
Act (FLSA), 29 U.S.C. § 207(a) et seq. 1 Defendants
contended that plaintiffs were exempt from the requirement to
1
We note that our review of the complaint and amended complaint
would have been expedited had either party seen fit to include
either document in the Joint Appendix or Supplemental Appendix
filed with this court.
3
pay overtime pay under the administrative and professional
exemptions defined in 29 C.F.R. § 541.200 and § 541.300.
This case came on for trial before a judge and jury.
Plaintiffs offered testimonial and documentary evidence to
support the proposition that they had worked beyond forty
hours per week and not been paid at time and a half.
Defendants offered evidence and arguments to the effect that
plaintiffs were exempt from the statutory enhancement and
offered descriptions of the employees’ duties, which
defendants contended were consistent with administrative and
professional employment as defined in 29 C.F.R. § 541.200
and § 541.300, so that they would be exempt from the
statutory requirement for payment of the enhanced wages.
The Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,
“ordinarily requires employers to pay employees time-and-
one-half for hours worked beyond forty per week unless the
employees are exempt.” Robinson-Smith v. GEICO, 590 F.3d
886, 888 (D.C. Cir. 2010); see also 29 U.S.C. §§ 207, 213.
Relevant to this case, an employer is not required to pay
overtime to exempt “administrative” and “professional”
employees. An employee falls under the administrative
exemption if her compensation is high enough (not in dispute
in this case), her “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,” and her “primary duty includes the exercise of
discretion and independent judgment with respect to matters
of significance.” 29 C.F.R. § 541.200(a). An employee falls
under the professional exemption if her compensation is high
enough (not in dispute in this case), and her “primary duty is
the performance of work…[r]equiring knowledge of an
advanced type in a field of science or learning customarily
acquired by a prolonged course of specialized intellectual
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instruction; or…[r]equiring invention, imagination, originality
or talent in a recognized field of artistic or creative endeavor.”
29 C.F.R. § 541.300(a). The employer bears the burden of
establishing that its employee falls within a recognized
overtime exemption. See Robinson-Smith, 590 F.3d at 891.
DISCUSSION
Appellants’ main line of argument is that they were
entitled to judgment as a matter of law, notwithstanding the
verdict. Appellants rely on Federal Rule of Civil Procedure
50(a), which provides that, “[i]f a party has been fully heard
on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue,” the trial court may
grant a motion for judgment as a matter of law against that
party on that issue. While we review the district court’s
denial of a motion for judgment as a matter of law de novo,
Novak v. Capital Mgmt. & Dev. Corp., 570 F.3d 305, 311
(D.C. Cir. 2009), “[w]e do not…lightly disturb a jury verdict.
Judgment as a matter of law is appropriate only if the
evidence and all reasonable inferences that can be drawn
therefrom are so one-sided that reasonable men and women
could not have reached a verdict in plaintiff’s favor,”
Muldrow v. Re-Direct, Inc., 493 F.3d 160, 165 (D.C. Cir.
2007) (internal quotation marks and citation omitted). This
court must resolve all reasonable inferences in plaintiffs’
favor and “cannot substitute its view for that of the jury, and
can assess neither the credibility nor weight of the evidence.”
Scott v. District of Columbia, 101 F.3d 748, 753 (D.C. Cir.
1996).
As to appellants’ alternate argument that the district court
erred in denying their motion for a new trial, Federal Rule of
Civil Procedure 59(a)(1) provides in relevant part that “[t]he
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court may, on motion, grant a new trial on all or some of the
issues…after a jury trial, for any reason for which a new trial
has heretofore been granted in an action at law in federal
court.” “We review the district court’s denial of [a] motion
for a new trial ‘only for an abuse of discretion.’” Muldrow,
493 F.3d at 166 (quoting Daskalea v. District of Columbia,
227 F.3d 433, 443 (D.C. Cir. 2000)). “When the district court
denies a motion for new trial, our scope of review is
particularly narrow because the trial court’s decision accords
with the jury’s.” Hutchinson v. Stuckey, 952 F.2d 1418, 1420
(D.C. Cir. 1992) (emphasis in original). “In reviewing for an
abuse of discretion, the Court considers ‘whether the decision
maker failed to consider a relevant factor, whether [the
decision maker] relied on an improper factor, and whether the
reasons given reasonably support the conclusion.’” Peyton v.
DiMaro, 287 F.3d 1121, 1126 (D.C. Cir. 2002) (quoting
Barbour v. Merrill, 48 F.3d 1270, 1278 (D.C. Cir. 1995)).
A. Defendant–Appellants’ Argument for Judgment as
a Matter of Law
Appellants argue that they are entitled to judgment as a
matter of law, as no reasonable jury could have come to the
conclusion that Radtke and Cunningham were non-exempt
based on the evidence adduced at trial. Appellants contend
that “Ms. Radtke’s and Ms. Cunningham’s statements in their
resumes, job applications and emails demonstrate that their
jobs fell within the administrative exemption and that they
were not simply looking up codes in a book.” Appellants’ Br.
23. Appellants argue that Cunningham was exempt under the
administrative exemption because Cunningham “supervised
between 9 and 22 coders,…provided training as well as
feedback to physicians regarding documentation and coding,”
id. at 24, and worked independently to evaluate and revamp
the coding procedures of Walter Reed Medical Center, id. at
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25–26. Appellants similarly argue that Radtke fell under the
administrative exemption because “she was responsible for
educating physicians and other clinicians and proper coding
of visits, procedures and diagnoses,” id. at 27, and worked
independently on projects such as creating a “new super bill
for the doctors,” a document that “codifies the most typical
diagnoses and procedures that a group of practitioners is
handling so the provider can easily find the code,” id. at 28.
Appellees respond that the majority of their work, their
“primary duties,” entailed simply medical records coding.
Coding does not require independent judgment; the relevant
codes and descriptions are all specified in manuals.
Informing physicians and other professionals how to code
properly does not require the exercise of discretion and
independent judgment in matters of significance. See
Appellees’ Br. 23. And even if some of Radtke and
Cunningham’s time was spent on matters involving the
exercise of discretion and independent judgment, appellants
have not shown that these tasks constituted their “primary
duties.” Id. at 24.
Appellees introduced time cards showing that they spent
most of their time coding. Cunningham spent 75% of her
time coding medical records, Radtke 92% of her time. Id. at
21. The time spent by an employee on various tasks is a
useful guide in determining an employee’s “primary duty.”
Maestas v. Day & Zimmerman, LLC, 664 F.3d 822, 827 (10th
Cir. 2012). A relevant regulation provides, “employees who
spend more than 50 percent of their time performing exempt
work will generally satisfy the primary duty requirement.” 29
C.F.R. § 541.700(b).
Appellants contend that these time records do not support
the jury’s verdict because “‘a number of different
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functions…were characterized under the rubric of coding.’”
Appellants’ Br. 30 (quoting testimony of defendant Maria
Caschetta). Further, appellants point to Robinson-Smith, 590
F.3d at 894, for the proposition that an employee may still fall
within the administrative exemption even if the employee
spent the majority of her time engaged in non-exempt work.
Appellants maintain that the time cards do not undermine the
other evidence (adduced by appellees’ testimony, resumes,
internal communications, etc.), which overwhelmingly shows
that the appellees fall under the administrative exemption.
Appellants further argue that Radtke and Cunningham
fall under the professional exemption, as “their jobs required
independent judgment and discretion” and “[t]hey were hired
because they were seasoned professionals with the
educational background and experience to work
independently.” Appellants’ Br. 33. Appellants point out that
both Radtke and Cunningham possess certifications and
college degrees relevant to medical coding. Id. at 33–37.
Appellees respond that Radtke and Cunningham’s credentials
are not controlling; “it is the educational requirements of the
job, not the education of the individual, that matter for the
professional exemption.” Appellees’ Br. 17 (emphasis in
original) (citing Young v. Cooper Cameron Corp., 586 F.3d
201, 206 (2d Cir. 2009)). Appellees contend that appellants
failed to prove that their jobs required sufficient professional
training to be exempt.
It is clear to us that the appellants are not entitled to
judgment as a matter of law. Appellants have shown at most
that there was a conflict in the evidence before the jury. It is
the function of the jury and not this court to weigh evidence
and make findings. It is true that we recently held that
“[w]hether an employee comes within the FLSA
administrative employee exemption from overtime benefits is
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a question of law.” Robinson-Smith, 590 F.3d at 891. In the
Robinson-Smith case, however, the facts material to this legal
determination were “largely undisputed.” Id. at 891 n.5.
When the underlying facts are in dispute, “[t]he exemption
question under the FLSA is a mixed question of law and fact.”
Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d
Cir. 2012) (internal quotation marks and citation omitted). As
the Supreme Court explained, “The question of how the
[employees] spent their working time…is a question of fact.
The question whether their particular activities excluded them
from the overtime benefits of the FLSA is a question of law.”
Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714
(1986).
Each side offered its evidence. The matter went to the
jury. The jury resolved the factual disputes, regarding the
type of work primarily performed by Radtke and
Cunningham, in appellees’ favor. We agree with the district
court that “this case presented a pristine example of how a
genuine issue of material fact emerges from all the evidence,
requiring its resolution by the jury.” Mem. Op. & Order 5,
Radtke v. Caschetta, No. 06-cv-02031 (D.D.C. May 14,
2014), ECF No. 182. As noted above, the parties introduced
conflicting evidence regarding the appellees’ primary duties.
Appellants have not shown, as they must to prevail, that the
evidence is “so one-sided that reasonable men and women
could not have reached a verdict in plaintiff’s favor.”
Muldrow, 493 F.3d at 165.
At trial, appellants bore the burden of showing that
Radtke and Cunningham were exempt. See, e.g., Kinney v.
District of Columbia, 994 F.2d 6, 10 (D.C. Cir. 1993) (“The
[employer], of course, had the burden of showing that its
employees are exempt from the FLSA’s overtime
provisions.”). Appellants bear a heavier burden in convincing
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this court to override the jury’s verdict. As stated by the
Third Circuit:
It is rarely appropriate to grant a directed verdict or
judgment n.o.v. in favor of the party having the burden
of proof; such action is reserved for those extreme
circumstances where the effect of the evidence is not
only sufficient to meet his burden of proof, but is
overwhelming, leaving no room for the jury to draw
significant inferences in favor of the other party.
Gay v. Petsock, 917 F.2d 768, 771 (3d Cir. 1990). In this
case, the evidence is far from overwhelmingly in favor of
appellants. Appellants phrase the issue on appeal as
“[w]hether there is substantial evidence to support the jury
verdict that [a]ppellees…were non-exempt from the
requirement to pay overtime under the administrative and
professional exemptions.” Appellants’ Br. 1. Appellants
argue that “Ms. Radtke and Ms. Cunningham did not produce
significantly probative evidence supporting the jury verdict
that [p]laintiffs were non-exempt.” Id. at 23. Since
appellants bore the burden of proof on the exemption issue,
however, the appellees were under no obligation to introduce
such evidence that they were non-exempt. A more accurate
way to frame the issue would be: whether the evidence was so
one-sided that reasonable men and women must find that
appellants sufficiently proved that Radtke and Cunningham
were exempt. See Muldrow, 493 F.3d at 165. The evidence
does not compel such a conclusion, and we affirm the district
court’s denial of appellants’ motion for judgment as a matter
of law.
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B. Defendant–Appellants’ Argument for a New
Trial
Appellants further argue that even if they are not entitled
to judgment as a matter of law, we should nonetheless vacate
the judgment and remand the case for a new trial. Appellants
argue that a new trial is warranted for three reasons. First,
they contend that Radtke gave “improper testimony” that
clearly influenced the jury’s verdict. Appellants’ Br. 39.
Appellants contend that “Radtke blurted out that she was not
treated as exempt under FLSA in a job she held subsequent to
her job with Advanta after the [c]ourt sustained [a]ppellants’
objection to that question.” Id. Despite the trial court’s
instructions to disregard, appellants maintain that this
statement “was not a bell that could be unrung” and a new
trial was warranted. Id. at 40.
We disagree. The trial court judge instructed the jury
multiple times to disregard that statement. He did so twice
after Radtke gave her answer, once directly after Radtke gave
her response and again after a sidebar conference. Trial Tr.,
Jan. 15, 2014, 10:13–20, 21:7–13. And he reminded the jury,
in his instructions to them, to disregard any stricken
testimony. Trial Tr., Jan. 15, 2014, 76:20–24. “We assume
juries follow their instructions,” and the appellants here have
“raise[d] no argument nor proffered evidence that would
suggest to us that the jury did not heed the court’s
admonition.” United States v. Celis, 608 F.3d 818, 846 (D.C.
Cir. 2010). Or, as the Supreme Court put it, “We normally
presume that a jury will follow an instruction to disregard
inadmissible evidence inadvertently presented to it, unless
there is an overwhelming probability that the jury will be
unable to follow the court’s instructions and a strong
likelihood that the effect of the evidence would be devastating
to the defendant.” Greer v. Miller, 483 U.S. 756, 767 n.8
11
(1987) (internal quotation marks and citations omitted). We
thus hold that the district court did not abuse its discretion in
not ordering a new trial.
Second, appellants argue that a new trial is warranted
because “[t]he [c]ourt should not have allowed Ms.
Cunningham to repeatedly contradict herself without giving
the jury a perjury instruction.” Appellants’ Br. 40.
Appellants contend that Cunningham contradicted her prior
statements and her resume when she testified that she was not
a supervisor when she worked for Lifecare. According to
appellants, the court should have issued “an instruction that
Ms. Cunningham put forth false evidence with the intent to
deceive the jury into believing facts that are not true.” Id. at
41. We disagree.
Simply put, credibility judgments are the sole province of
the jury. Cunningham testified that she was not a supervisor,
and appellants had the opportunity to impeach her testimony
by her prior statements and the job description on her resume.
Cunningham did her best to explain those apparent
discrepancies, and the jury ultimately decided whom to
believe, and how important this issue was to its verdict. The
judge was not required to himself weigh the evidence, assess
Cunningham’s credibility, and then instruct the jury as to his
view of the evidence. We hold that the trial judge did not
abuse his discretion in denying appellants a new trial for this
reason.
We further note that we are not compelled to consider
this argument at all. Appellants provide us no indication that
they raised the issue before the district court, and even when
directly asked at oral argument whether they had tendered any
such instructions to the court, they could provide no
reference. See Coleman-Lee v. District of Columbia, __ F.3d
12
__, 2015 WL 2365709, *1 (D.C. Cir. May 19, 2015) (per
curiam) (when an objection to the jury instruction is “never
raised and preserved” by party, “we review only for plain
error”). Appellants have cited no case in which this circuit
has ever reversed a judgment of the district court for failure to
give a “perjury instruction,” with or without an objection in
the district court. Indeed, a Westlaw search reveals no
opinion of this court in which we have ever used the
expression “perjury instruction.” Appellants have not shown
plain error.
Appellants finally argue that a new trial is required
because plaintiff–appellees’ attorney stated, in his opening
statement, that appellants needed to prove that Radtke and
Cunningham were exempt by clear and convincing evidence.
See Appellants’ Br. 21, 41; Trial Tr., Jan. 13, 2014, 84:2–7.
This statement was erroneous, appellants contend, as the
judge later instructed the jury that the defendant–appellants
“must prove every element of their defenses that the
[plaintiff–appellees] are exempt from the overtime
requirement of the Fair Labor Standards Act by a
preponderance of the evidence.” Trial Tr., Jan. 15, 2014,
78:24–79:1 (emphasis added). Appellants thus argue that,
“[b]ecause there is a direct link between the errors and the
jury’s determination that Ms. Radtke and Ms. Cunningham
were non-exempt, Appellants are entitled to a partial new
trial.” Appellants’ Br. 41. This is the entirety of the
appellants’ argument.
We might reject appellants’ discussion as so scant and
conclusory as to constitute a waiver of that argument. In any
event, appellants are not entitled to a new trial. It may be an
overstatement to characterize the attorney’s remarks as
“inappropriate,” id., as this circuit has never stated what the
proper burden of proof is in this context, Robinson-Smith, 590
13
F.3d 891 n.5, and some of our sister circuits have required
employers to prove exemption by “clear and convincing
evidence,” see, e.g., Desmond v. PNGI Charles Town
Gaming, L.L.C., 564 F.3d 688, 692 n.3 (4th Cir. 2009). We
need not decide the appropriate standard of proof in this case,
because the jury instructions and verdict form enforced the
standard of proof most favorable to the appellants of the
available options. The judge gave the jury detailed and clear
instructions that appellants needed to prove exemption only
by “a preponderance of the evidence,” Trial Tr., Jan. 15,
2014, 79:1, which appellants argue is the proper standard.
As we noted above, we presume that juries follow the
instructions of the district judge. See, e.g., Celis, 608 F.3d at
846. In the present case, the presumption is particularly
compelling, as appellants neither objected to the statement by
plaintiffs’ counsel nor submitted any other proposed
instruction to the district court on the subject. As we further
stated above, such an objection is normally forfeited, and if
we were to review it at all, it would be solely for plain error.
See, e.g., Coleman-Lee, __ F.3d. __, 2015 WL 2365709, at
*1. Appellants are not close to meeting that standard.
Appellants would have us conclude that the jury must have
ignored the judge’s instructions and been unduly influenced
by appellees’ opening statement, based on the mere fact that
the jury found for the appellees. We reject their argument. In
short, appellants give us no reason to think that the judge
abused his discretion in denying the motion for a new trial;
we thus affirm the district court.
As further evidence of the frailty of this allegation of
error, the verdict forms submitted to the jury 2 expressly
2
We note that the verdict forms, like the complaints, were not
included in the Appendices or other filings of the parties.
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asked: “Did the defendants establish by a preponderance of
the evidence that plaintiff . . . was exempted from the
overtime requirements of the Fair Labor Standards Act
because of the” administrative or professional exemption.
Verdict Form for Plaintiff Radtke, Radtke v. Caschetta, No.
06-cv-02031 (D.D.C. Jan. 15, 2014), ECF No. 141 (emphasis
added); Verdict Form for Plaintiff Cunningham, Radtke v.
Caschetta, No. 06-cv-02031 (D.D.C. Jan. 15, 2014), ECF No.
142 (same).
CONCLUSION
In sum, the jury fulfilled its function. It considered
conflicting evidence, resolved factual disputes, and returned a
verdict. There is no reason for us to upset that verdict or
order a new trial. We thus affirm the judgment of the district
court.
So ordered.