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Semenovich v. Project Performance Corporation, Inc.

United States District Court, E.D. Virginia, Alexandria Division

March 18, 2016




This matter is before the Court on Defendant Project Performance Company’s (“PPC” or “Defendant”) Motion or for Summary Judgment. [Dkt. 41.] For the following reasons, the Court will grant the Defendant’s Motion for Summary Judgment in part and deny the motion in part.

I. Background

Plaintiff Yanina Semenovich (“Plaintiff”) was an employee of Defendant PPC from July 2009 until June 7, 2012. (Pl.’s Mem. in Opp. [Dkt 49] at 1.) PPC is an information technology and management consulting firm, whose primary business consists of contracting out skilled consultants to clients and billing them hourly. (Def.’s Mem. in Supp. [Dkt. 47] at 3.) PPC relies on its employees to track and report their hours worked on a daily basis, filling out a timecard recording both hours worked on billable accounts and hours worked on non-billable, internal matters. (Id. at 4.) If an exempt employee failed to enter any time for a particular workweek, then PPC’s payroll department would have no way of knowing that employee performed any work during that week, and the employee would receive no pay for that workweek. (Id.)

Plaintiff was originally hired as a Principal Analyst with a starting salary of $105, 000 a year. Her first role at PPC was as a project manager on the “Tokyo Millennium” reinsurance company account. (Pl.’s Mem. in Opp. at 8.) At the time of her interview, that account was run by Principal Michael Fleckenstein, also an employee of PPC. (Id.) Semenovich received decent performance reviews her first several years at PPC, and received several increases in salary. (Id. at note 21.) Plaintiff ultimately reached a salary of $113, 000 a year in 2013. (Id.) However, Plaintiff began to worry and complain about her lack of promotion within PPC and began to voice those concerns to management sometime in late 2010 or early 2011. (Id. at 11-12.) During this time, PPC underwent several reorganizations and the practice to which Plaintiff was originally hired was disbanded. (Def.’s Mem. in Supp. at 7.) Plaintiff was left without a practice or a direct supervisor, so Plaintiff began working as a kind of floater, moving across divisions and practices and providing advisory technical services or strategic support to other groups. (Id.) While Plaintiff’s work still received good reviews, very little of it was billable in this new role. (Id.) Plaintiff’s billable rate in December 2011 reached only 16%. (Pl.’s Mem. in Opp. at Note 73.) During that same period, late 2011, Plaintiff became extremely unreliable in submitting her timecards on a daily basis as required by company policy. (Def.’s Mem. in Supp. at 7-8.) In October 2011, PPC hired Michael Freeman to be its new CEO in an effort to turn around the company’s worrisome financial situation. (Id.) In November 2011, PPC underwent a reduction in force which led to a large reorganization and the promotion of Zach Wahl to Vice President. (Id.) Plaintiff was distraught that she had not been awarded the Vice President position, and she confronted Dale Tuttle, PPC’s Chief Technological Officer about the decision to promote Wahl. (Pl.’s Mem. in Opp. at 13.)

Under Michael Freeman, PPC and their new CFO, Dan Rice, began to crack down on the amount of overhead labor costs by closely monitoring which employees were being paid without bringing in money for PPC. (Def.’s Mem. in Supp. at 8.) The new management team was concerned about Plaintiff’s role with the company because of her chronically low billable rate and her heavy use of overhead. (Id.) They were also concerned by the Plaintiff’s lack of experience leading projects or supervising teams. (Id.) Additionally, by Fall of 2011, Plaintiff had exceeded her paid leave allotment and accumulated a high amount of negative leave by taking paid leave that she had not yet earned. (Id.) In November 2011, Freeman told Chief Information Officer Tony Cicco and Vice President of Human Resources Jennifer Gertenbach that Plaintiff’s current situation was untenable and they needed to either find her a productive role or let her go. (Id.) Throughout the late fall and winter of 2011 Cicco and Gertenbach attempted to put Plaintiff in touch with various teams at PPC which might have had a role for her. (Id. at 10.) In early January 2012 Plaintiff was told by Ms. Gertenbach that if she did not find billable work soon, her employment might be terminated. (Id.)

In mid-January 2012, Plaintiff reached out to Nathan Smith regarding potential work on a bid proposal to the Environmental Protection Agency (“EPA”). (Id. at 11.) This eventually led to Plaintiff working on that project and receiving compensation for time worked in that capacity from March 8, 2012 to March 28, 2012. (Pl.’s Mem. in Opp. at 15.) Plaintiff was subsequently listed as a “key person” on the resulting bid proposal to the EPA. (Id. at 2.)

However, Plaintiff did not receive a pay check for the pay periods between November 16, 2011 and March 7, 2012, or for the pay periods between March 29, 2012 and July 7, 2012. (Id. at 13-14; Def.’s Mem. in Supp. at 26.) During those time periods, Plaintiff either did not submit timesheets, or submitted timesheets indicating that she was on leave without pay (“LWOP”). (Def.’s Mem. in Supp. at 26.) Plaintiff contends that she was continuing to work during this time, and was submitting her timesheets indicating LWOP only because she was not provided with a valid charge code by Defendant. (Pl.’s Mem. in Opp. at 14.) Defendant, on the other hand, argues that the Plaintiff was not performing any work for the company during these time periods. (Def.’s Mem. in Supp. at 26, 29.)

In April of 2012, Defendant transferred Plaintiff to Mr. Smith’s “Energy, Environment, and Climate Solutions” division. (Id. at 11.) On April 19, 2012, Mr. Smith emailed Ms. Gertenbach informing her that Plaintiff had declined to join his division. (Romansic Decl. [Dkt. 43-1] Ex. 18.) On April 17, 2012, after an e-mail conversation with Ms. Gertenbach regarding Plaintiff’s incomplete timesheets, Plaintiff submitted a “demand letter” to Defendant’s CEO, Mike Freeman. (Id. at Ex. 41, Ex. 19.) In her demand letter, Plaintiff notified Defendant that she had been in touch with an attorney, accused Defendant of a “long time pattern of discrimination and discriminatory promotion practices, ” and demanded a promotion to “Vice President of Strategic Technology” and a retroactive pay increase. (Id. at Ex. 19.) Mr. Freeman referred the matter to Ms. Gertenbach for handling. (Def.’s Mem. in Supp. at 14.) On April 19, 2012, Ms. Gertenbach informed Plaintiff that Defendant would be conducting an investigation into the claims made in the demand letter, asked Plaintiff when she would be available to meet, and told Plaintiff to refrain from performing any work duties for PPC until the complaint was resolved. (Romansik Decl. Ex. 21.) When Plaintiff responded, she informed Defendant that she was only willing to meet with her husband present. (Id.) Defendant informed Plaintiff that her husband would not be permitted to attend the meeting, and Plaintiff ultimately decided against attending the meeting. (Id.) On April 27, 2012, an attorney representing Plaintiff informed Defendant that Plaintiff intended to pursue legal action. (Id. at Ex. 22.)

That same day, April 27, 2012, Plaintiff was informed that Defendant had won the EPA contract she had been working on that March. (Pl.’s Mem. in Opp. at 16.) On May 8, 2012, Defendant requested the EPA’s approval to remove Plaintiff as a key person on the EPA contract. (Romansik Decl. Ex. 24.) On May 14, 2012, Plaintiff sent an email titled “final notice” to John Lowry, the CEO of Defendant’s parent company. (Id. at 27.) In this email, Plaintiff complained about her removal from the EPA contract and stated that she would pursue legal action unless Defendant accepted her salary and promotion demands within two days. (Id.)

Defendant was unwilling to concede to Plaintiff’s demands, and on June 7, 2012, Defendant informed Plaintiff that they were terminating her employment effective immediately. (Def.’s Mem. in Supp. at 17.) On December 24, 2014, Plaintiff brought this suit alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, the creation of a hostile work environment in violation of Title VII, retaliation for engaging in a protected activity in violation of Title VII, unpaid wages in violation of the Fair Labor Standards Act, and breach of implied contract stemming from unpaid wages. (Am. Compl. [Dkt. 23] ¶¶ 48-76.) After discovery, Defendant filed this motion for summary judgment. The matter has been briefed and argued, and it is now ripe for decision.

II. Legal Standard

Summary judgment is appropriate only where, on the basis of undisputed material facts, the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the record on summary judgment, “the court must draw any inferences in the light most favorable to the non-movant [and] determine whether the record taken as a whole could lead a reasonable trier of fact to find for the non-movant.” Brock v. Entre Computer Ctrs., 933 F.2d 1253, 1259 (4th Cir. 1991)(citations omitted).

Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); see also Ray Commc’ns, Inc. v. ...

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