UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

U.S. Dep’t of Labor, Secretary of Labor

v. Civil No. 19-cv-693-LM Opinion No.

P Unitil Service Corp.

ORDER The United States Secretary of Labor (“DOL”) brings this Fair Labor

Standards Act (“FLSA”) suit against Unitil Service Corporation. DOL alleges that

Unitil Service violated FLSA’s overtime compensation and recordkeeping

requirements with respect to persons Unitil Service employed as Electric

Distribution Dispatchers (“Dispatchers”) and Senior Gas Controllers (“Controllers”).

Before the court are DOL’s and Unitil Service’s cross-motions for summary

judgment (doc. nos. 19, 20, and 21). The parties do not dispute that Dispatchers

and Controllers have worked overtime hours but were not paid overtime wages for

that work, nor that Unitil Service failed to create and maintain records of the hours

those employees worked. Rather, Unitil Service contends that Dispatchers and

Controllers are exempt from FLSA’s requirements because they are administrative

employees. In contrast, DOL argues that the employees are not administrative

employees because their primary duties are not directly related to Unitil Service’s

general business operations. DOL also argues that genuine disputes of material

fact exist as to whether the employees exercise discretion and independent judgment as part of their primary duties. The parties also dispute the admissibility

of the declaration of DOL Investigator Divya Sood.

For the reasons set forth below, the court grants Unitil Service’s motion for

summary judgment (doc. no. 21) and denies DOL’s motion for summary judgment

(doc. nos. 19, 20).

LEGAL STANDARD A moving party is entitled to summary judgment if it “shows that there is no

genuine dispute as to any material fact and [that it] is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Joseph v. Lincare, Inc.,

(1st

Cir. 2021). The court construes all facts and reasonable inferences in the light most

favorable to the nonmoving party. Thompson v. Gold Medal Bakery, Inc.,

(1st Cir. 2021). The court treats cross-motions for summary judgment

separately, drawing inferences in the nonmoving party’s favor. AJC Intern., Inc. v.

Triple-S Propiedad,

(1st Cir. 2015). To generate a genuine dispute,

evidence must be “more than merely colorable” and it must be “significantly

probative” of the pertinent fact, meaning that a reasonable jury might be able to

find in the nonmovant’s favor. See Flovac, Inc. v. Airvac, Inc.,

(1st Cir. 2016); see also Anderson v. Liberty Lobby, Inc.,

(1986).

BACKGROUND Unitil Service is a wholly-owned subsidiary of Unitil Corporation. Unitil

Corporation, through several subsidiary corporations, purchases electricity and

2 natural gas and distributes it to residential, commercial, and industrial users in

New Hampshire, Massachusetts, and Maine. Unitil Corporation and its

subsidiaries own and maintain physical infrastructure, such as electrical wires,

switches, and substations and natural gas pipelines. Unitil Corporation and its

subsidiaries neither own power plants nor generate any electricity or produce any

natural gas themselves.

The Unitil Corporation umbrella includes a collection of wholly-owned

subsidiaries that play distinct roles in the distribution of electricity and natural gas.

Unitil Service’s role under the Unitil Corporation umbrella is to provide “a variety

of administrative and professional services on a centralized basis to affiliated Unitil

companies, including regulatory, financial, accounting, human resources,

engineering, operations, technology, energy management and management

services.” Doc. no. 20-6 at 7. Pertinent to this FLSA suit, Unitil Service employs

workers who operate centralized control rooms for its customers. Unitil Service’s

customers are other subsidiaries of Unitil Corporation that own the physical

infrastructure.

DOL asserts that Unitil Service has violated FLSA as to two categories of

employees who work in its centralized control rooms: Dispatchers and Controllers.

Unitil Service does not pay Dispatchers or Controllers a standard overtime rate

(one- and one-half times their hourly wage) when they work more than 40 hours in

a workweek. Rather, Unitil Service classifies Dispatchers and Controllers as

“exempt” under FLSA on the ground that they are administrative employees. DOL,

3 however, asserts that this classification is erroneous and seeks backpay for certain

employees who worked overtime hours as Dispatchers or Controllers in 2017 and

2018,1 in addition to an injunction prohibiting Unitil Service from future FLSA

violations.

Whether Dispatchers or Controllers are administrative employees—and

therefore exempt from FLSA’s overtime compensation provisions—turns on Unitil

Service’s ability to establish three elements defined by DOL regulations: (1)

sufficient compensation; (2) the employees’ primary job duties are performance of

non-manual or office work “directly related” to Unitil Service’s management or

general business operations; and (3) the employees’ primary job duties include the

exercise of discretion and independent judgment with respect to matters of

significance. See

(a); infra p.19. Since the parties agree that the

sufficient compensation element has been met, the matter depends on the nature of

Dispatchers’ and Controllers’ job duties.

I. Duties of Dispatchers Unitil Service developed a general “position description” for Dispatchers in

August 2013, which describes their job duties as follows:

Provide[ ] 24/7 monitoring and control of the electric transmission and distribution systems for all Unitil Electric Distribution Operating Companies (DOC’s); provide outage management response and

1 The Dispatchers are identified as Michael Bechard, Edward Diaz, Peter

Leger, Scott Nichol, and Michael Pouliot, and the Senior Gas Controllers are identified as Rene Bordeleau, Jason Brooks, Samantha Keach, Scott Lacouture, and Ryan Tardif.

4 reporting for all electric DOC’s; and perform tasks associated with compliance with regulatory requirements including but not limited to NERC (National Energy Regulatory Commission), MDPU (Massachusetts Department of Public Utilities), NHPUC (New Hampshire Public Utilities Commission) that would include reporting, emergency response, notifications and questions regarding the electric systems. Monitor electric [software alarm] systems and take necessary actions to respond to current system conditions. Doc. no. 20-9 at 2. The position description states that about 60 percent of a

dispatcher’s time is dedicated to “monitoring and control of electric systems and

emergency response”; 15 percent is dedicated to “communications and notifications,”

which includes “communicat[ing] with company personnel, municipal and

regulatory representatives, customers, and contractors on a regular basis.”; and the

remaining 25 percent of the position is dedicated to “regulatory reporting

compliance” and “documentation.” Id.2

James Goudreault, manager of electric dispatch and substations at Unitil

Service and a former Dispatcher, testified that the purpose of the Dispatcher

position is to “provide centralized support services” to Unitil Service’s customers,

which are the “electric operating companies” that own and maintain physical

infrastructure used to transmit electricity. Goudreault Depo. at 22.3 Dispatchers

2 Unitil Service updated the position description in June 2018.The updated position description makes minor changes to the description. Those changes are not material for purposes of DOL or Unitil Service’s summary judgment motions.

3 The parties filed several exhibits containing excerpts of Goudreault’s

deposition. E.g., doc. nos. 20-7, 21-10, and 24-3. For ease of reference, citations to Goudreault’s deposition use the page number of the deposition transcript, which are consistent throughout the record, rather than the page numbers generated by the court’s electronic filing system.

5 do not “actively control power flow.” Id. at 25. Rather, one of the “primary

responsibilities” of a Dispatcher is to “monitor and manage” Unitil Service’s

software systems that track issues that arise on the physical grid. Id. at 34.

To aid with this task, Unitil Service provides “procedures” to Dispatchers

that are compiled in a written manual.4 Goudreault testified, however, that

Dispatchers are permitted to deviate from those procedures in “certain

circumstances” if they can “determine an alternate way to meet the intent of the

procedure and still accomplish the task without following the procedure to the

letter.” Id. at 60. Goudreault stated that Dispatchers deviate from the procedures

“on a daily basis” in response to alarms delivered on their computers through

software such as the outage management system and the supervisory control and

data acquisition (“SCADA”) system. Id. at 61, 63; doc. no. 21-13 ¶ 15.

If there is an outage or other problem, Unitil Service’s software (either

SCADA or the outage management system) sends the Dispatcher “a visible and

audible” alarm. Goudreault Depo. at 41. When a problem arises, Dispatchers

determine its severity, ascertain which, if any, protective devices (such as breakers)

have tripped, and isolate the area near the fault from the rest of the electrical grid

to allow for safe maintenance. Id. at 34. The Dispatcher may send a field crew to

the area or call local first responders, depending on the specific issue and whether a

4 Unitil Service filed the pertinent procedures under seal, which the court has

reviewed.

6 life safety hazard has been reported. The Dispatcher also documents those calls

and incidents.

The SCADA software system, which the Dispatchers use alongside the outage

management system to monitor the condition of the physical electrical

infrastructure, “may generate hundreds of alarms in a single day,” some of which

may be “nuisance alarm[s]” while others may require an immediate or emergency

response. Id. at 63. If the Dispatcher determines that the alarm requires an

immediate response, they may, for example, dispatch personnel for field

investigation and contact local emergency response personnel. If the Dispatcher

determines that the alarm does not require an immediate response, potential

responses include closely monitoring the situation and notifying other personnel to

flag the issue for a follow-up investigation. Some alarms may not require any

response, immediate or otherwise. It is “up to the dispatcher to evaluate real-time

system conditions from the SCADA system to determine whether or not the

alarm . . . warrants an immediate response, or is a nuisance alarm, or could just be

a momentary change of state that has resolved itself.” Id.

Dispatchers can also use SCADA to control the physical infrastructure, as

SCADA generally allows them to flip switches and breakers on the electrical grid.

Some physical devices, however, are not accessible to Dispatchers through SCADA.

In those cases, Unitil Service sends field crews to operate the devices. In addition,

while Dispatchers can use SCADA to “approximate” where a problem is, a crew

must go into the field to confirm the location. Therefore, the Dispatcher passes the

7 information from SCADA to a field crew to “minimize” the locations that the field

crew must search. Id. at 110. The field crew determines how to fix the problem.

In addition to their responsibilities during emergencies, Dispatchers de-

energize pieces of physical equipment so field crews can safely conduct planned

maintenance. Specifically, Dispatchers operate switches to isolate physical

equipment from the rest of the electrical grid so that the equipment can be serviced

by field crews while ensuring that customers still receive electrical service.

Dispatchers interact with field crews daily to respond to outages and maintain lines

of communication during typical construction and maintenance. Dispatchers also

interact with field crews and assist in “troubleshooting” non-outage problems. Id. at

42. Dispatchers, however, do not go in the field to perform their normal activities.

Finally, Dispatchers are expected to monitor the electrical grid during normal

operation to ensure voltage and power levels are maintained within certain limits.

Dispatchers monitor and control devices that affect these levels.

A supervisor is always available to the Dispatchers working in the central

control room, either physically in the room or by telephone. Goudreault testified

that Dispatchers communicate with their supervisor “regularly” during “normal

business hours,” which are weekdays from seven a.m. to three p.m., but “very

rare[ly]” after those hours or on weekends. Id. at 64. The supervisor in the room

can see all the same alarms that Dispatchers can see. Goudreault noted that there

is, however, only one person employed to supervise the Dispatchers and that the

8 room operates 24 hours, 7 days per week, such that “most of the working hours of

the Dispatchers are unsupervised.” Id. at 65.

II. Duties of Controllers

Turning to the Controllers, Unitil Service created a “position description” for

the Controller position dated April 2015. It states as follows:

This position has primary oversight responsible for the operation and control of the Company’s gas transmission distribution system; and the managing of pipeline and peak shaving supplies. The incumbent must ensure that the system is operated within the constraints of Federal, State and Company codes and standards as well [as] tariff constraints for the receipt and control of the system supply. This position also provides training and daily guidance to subordinate Gas Controllers and Field Services Coordinator. Doc. no. 20-11 at 2. Unitil Service’s position description states that 60 percent of

the position is monitoring and controlling gas pipeline systems, supporting

“processes related to market requirements for Unitil’s transmission and local

distribution companies,” and “[p]rovid[ing] general control, confirmation,

scheduling, balancing and live gas operations.” Id. Thirty percent of the position is

interpreting, organizing, and executing “complex assignments,” assisting

supervisors with training, coordination, and review of work for subordinate Gas

Controllers,5 and estimating personnel needs, scheduling and assigning work, and

5 Despite the position description’s references to subordinate Gas Controllers,

DOL and Unitil Service agree that Controllers did not supervise anyone.

9 managing projects of a complex nature. Id. The remaining ten percent of work is

“[b]ack up to Field Services Coordinator as needed and off hours.” Id.6

Mark Dupuis, manager of gas systems operations for Unitil Service, testified

that Unitil Corporation receives natural gas from “upstream suppliers” that feed

into the gas transmission system that Unitil Corporation and its subsidiaries own

and maintain. Doc. no. 20-8 at 8. Individual lines owned by Unitil Corporation and

its subsidiaries feed service lines to residential, industrial, and commercial end

users.

Unitil Corporation must lower the pressure of gas that flows into its

transmission system to an amount that can be safely received by end users. Dupuis

testified that Controllers monitor the inflow of natural gas into the transmission

system to ensure that the pressure of the inflowing gas complies with state and

federal operating regulations. Dupuis testified that, as part of their responsibility

to monitor the inflow of natural gas, Controllers must “forecast supply and demand

based on operational conditions as well as weather conditions.” Id. at 11. If a

Controller identifies an issue while monitoring the system, they must “either direct

supplemental supply operations” or contact Unitil Corporation’s suppliers to try to

increase the inflow of gas. Id. Dupuis added that the Controllers must also monitor

the pressure of gas flow through the entire pipeline, which is designed to operate

6 An updated position description from April 2019 changes the name of the

position to “Gas Controller I” and makes additional minor changes not material to the present issues.

10 only within a defined range of pressures. Controllers are further responsible for

monitoring and assessing alarms that appear on their software system and making

decisions about whether first responders or technicians must be dispatched to

remedy issues.

In terms of operating physical components of the system, Controllers can use

software to increase or decrease gas flow into the transmission system. However,

they have neither the ability nor permission to shut down the system. Similar to

Dispatchers, Controllers do not tell field crews how to fix issues in the field.

Instead, Controllers provide field crews with supporting information about the issue

to help them fix the problem.

III. Investigator Divya Sood’s Declaration

In support of its objection to Unitil Service’s motion for summary judgment,

DOL submitted the declaration of Divya Sood, who conducted the investigation in

this case on DOL’s behalf. In her declaration, Sood avers that, between March and

October 2018, she interviewed four Dispatchers and two Controllers. After the

interviews, Sood prepared an “employee personal interview statement” based on

each interview. Sood sent each employee their respective “employee personal

interview statement” and requested their signature on it. Neither of the two

Controllers whom Sood interviewed signed Sood’s prepared statement and only one

of the four dispatchers signed.

11 DOL did not attach the “employee personal interview statements” as

evidence to support its summary judgment motion. Instead, the “employee personal

interview statements” are incorporated into Sood’s declaration as “sample excerpts.”

The sample excerpts are written from the employees’ point of view, even though

they are (with one exception)7 drawn from documents unattested to by the

employees. Unitil Service challenges the admissibility of the “sample excerpts” and

of the statements made by its employees as relayed by Sood.

According to Sood, an anonymous Dispatcher identified as “EDD 1” told her

that the Dispatchers’ supervisor would decide “what to do” and that switching

orders needed approval from other divisions before they could be executed. Doc. no.

24-1 at 2. Similarly, a Dispatcher identified as “EDD 2” told Sood that Dispatchers

“don’t make any decisions in this work—we’re just told what to do” and that “we

don’t make decisions here.” Id. at 3. Sood’s declaration does not contain any

additional context about what EDD 2 meant about not making “any decisions.”

EDD 2 and another Dispatcher identified as “EDD 3” acknowledged that if

changes needed to be made to a switching order or if something unusual happens

while a switching order is being executed, Dispatchers have the authority to halt

the switching and to notify the relevant manager or supervisor about the issue to

receive further instructions. The Dispatchers who were interviewed said they did

not have authority to make changes to switching orders.

7 Sood’s declaration does not state which “sample excerpt” was taken from the

“employee personal interview statement” that was signed.

12 EDD 3 also told Sood that they have “a bunch of alarms come in all the time,”

most of which are due to “communication failures.” Id. at 3. The Dispatcher said

that depending on the type of alarm, the Dispatcher might send an e-mail to

“appropriate folks” (for unspecified “unusual alarms”) or dispatch crews (for breaker

trips and power outages). Id. EDD 3 stated that Dispatchers have “guidelines” on

how to respond to each type of alarm. Id.

The Dispatcher identified as “EDD 4” told Sood that Unitil had “written

policies and procedures that cover whenever we might have to dispatch someone or

any other situation we may encounter. . . . [T]here’s a procedure for just about any

situation that occurs . . . .” Id. at 3-4. That Dispatcher also told Sood that

everything was contained in a manual “that’s so cumbersome that it’s almost

useless” and that the Dispatchers have “parsed out the more common things” and

that Unitil Service sends out e-mail memos as reminders about what to do in

certain circumstances or in situations that may arise. Id. at 4.

The Senior Gas Controller identified as “SGC 1” told Sood that “[t]here’s a

procedure of a procedure for everything.” Id. at 4. A Controller identified as “SGC

2” told Sood that “[t]he situations where we can act immediately are fairly black

and white.” Id. In all other situations, SGC 2 stated, “we do consult a supervisor or

manual, and also rely on our internal knowledge of weather and other factors.” Id.

SGC 2 provided the following example of how a Controller might handle a certain

situation:

[I]n the summer, if a heater goes out for one of the pipes, we might not notify a supervisor until the morning, but in the winter, we would. Or

13 depending on the station and its importance, it could necessitate an immediate call out instead of a supervisor call. Within certain sets of circumstances, we take one set of actions, with other circumstances, we take other actions.

Id.

DISCUSSION

The court addresses Unitil Service’s challenges to the admissibility of Sood’s

declaration first, and whether Dispatchers and Controllers fall within FLSA’s

administrative employee exemption second.

I. Admissibility of Investigator Sood’s Declaration

Unitil Service contends that the statements by its employees contained in

Sood’s declaration are inadmissible hearsay; that only one of the several anonymous

employees quoted by Sood signed their “employee personal interview statement”;

that DOL cannot use statements made by anonymous sources as evidence without

disclosing their identities; and that DOL should have provided the entire “employee

personal interview statements” to the court instead of “sample excerpts.” DOL

objects to the exclusion of Sood’s declaration on the grounds that the “sample

excerpts” are not hearsay under Federal Rule of Evidence 801(d)(2)(D) and that

Unitil Service never moved to compel DOL to disclose the identities of the

anonymous employees.

14 A. Hearsay

Impermissible hearsay cannot be considered in support of or in opposition to

a summary judgment motion. Davila v. Corporacion De Puerto Rico Para La

Difusion Publica,

(1st Cir. 2007). An out-of-court statement offered

for the truth of the matter asserted is not hearsay if it is “offered against an

opposing party” and “was made by the party’s agent or employee on a matter within

the scope of that relationship and while it existed . . . .” Fed. R. Evid. 801(d)(2)(D).

The statement must concern “a matter within the scope” of the declarant’s agency

or employment, but the making of the statement itself does not need to be within

the declarant’s agency. See Larch v. Mansfield Mun. Elec. Dep’t,

(1st Cir. 2001); see also Fed. R. Evid. 801(d)(2)(D) Advisory Committee Notes (“A

substantial trend favors admitting statements related to a matter within the scope

of the agency or employment.”). In other words, whether making statements to a

DOL investigator is “within the scope” of the person’s employment with Unitil

Service does not matter because the question under Rule 801(d)(2)(D) is only

whether the statements themselves concerned matters within the scope of

employment. See Larch,

.

According to Sood, the employees made the statements to her in interviews in

2018, while Unitil Service employed them as Dispatchers and Controllers. The

content of the statements is within the scope of that employment, as the statements

are about their job duties. Accordingly, the employees’ statements referenced in

Sood’s declaration are nonhearsay and may not be excluded at this stage on that

15 ground. See id.; DCS Sanitation Mgmt., Inc. v. Occupational Safety and Health

Review Comm’n,

(8th Cir. 1996) (holding that OSHA investigator’s

written documentation based on what defendant’s employees told him during oral

interviews was admissible as nonhearsay under Rule 801(d)(2)(D)); Scalia v. Ghosn,

, 1221 (W.D. Okla. 2020) (allowing affidavit of DOL

investigator, which included statements made by anonymous employees of

defendant, to be considered at summary judgment over objection under Rule

801(d)(2)(D)); Ferring Pharm., Inc. v. Braintree Labs., Inc.,

(D. Mass. 2016) (finding that statements made by opposing party employees

incorporated into attorney’s declaration were nonhearsay under Rule 801(d)(2)(D)).

B. Informer’s Privilege & Identity of Employees

Next, Unitil Service contends that because DOL redacted the names of the

employees whom Sood interviewed, Unitil Service was unable to depose or cross-

examine the employees about their interviews with Sood and therefore cannot test

the reliability of Sood’s report of their statements. Considering the circumstances,

this argument lacks merit. During discovery, DOL provided Unitil Service with the

redacted “employee personal interview statements,” and Unitil Service knew that

they referred to statements made by anonymous employees. Unitil Service,

however, never brought a challenge to DOL’s assertion of informer’s privilege nor

did it move to compel deposition testimony from the anonymous employees. For

that reason, Unitil Service has waived any challenge it may have made to DOL’s

16 assertion of informer’s privilege as to the employees’ interviews with DOL for the

purpose of that evidence’s use at summary judgment. See Ghosn, 451 F. Supp. 3d

at 1221 (rejecting argument in FLSA suit that the court should, at summary

judgment, strike declaration by DOL investigator that contained statements by

anonymous employees because government’s invocation of the informer’s privilege

had been unchallenged during discovery).

C. Signatures on “Employee Personal Interview Statements”

Unitil Service argues that the court should not consider the employees’

statements because Sood’s recollection in her declaration is based on documents

that she prepared but the employees did not sign (with, as noted above, one

exception). The “employee personal interview statements,” however, were not

submitted into the summary judgment record, so their admissibility is not in

question. Rather, the evidence in question is Sood’s declaration, which is

admissible under Federal Rule of Civil Procedure 56(c)(4).8

Under Rule 56(c)(4), “[a]n affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that would be admissible

8 In her affidavit, Sood states that the “sample excerpts” she provides from

the “employee personal interview statements” are derived “from the statements that [she] received from” the employees she interviewed. Doc. no. 24-1 ¶ 6. The declaration is confusing in this regard, as it refers to two forms of similar evidence: the “employee personal interview statements,” which Sood prepared and sent to the employees but were not signed (with one exception) and were not submitted into the record for purposes of summary judgment, and the “statements” that Sood claims the employees made to her during the interviews, to which Sood can aver by virtue of her presence at the interviews.

17 in evidence, and show that the affiant or declarant is competent to testify on the

matter stated.” Sood’s declaration provides sufficient information to show that her

assertions about what the employees said are based on personal knowledge. See

doc. no. 24-1 ¶ 4 (“I interviewed four Electrical Distribution Dispatchers and two

Senior Gas Controllers employed by Unitil Service.”). Sood avers that the

information presented is true to the best of her knowledge and belief, and she

signed the declaration under penalty of perjury. And, as discussed above, the

employees’ statements are nonhearsay under Federal Rule of Evidence 801(d)(2)(D).

Accordingly, Sood’s declaration is admissible for purposes of summary judgment.

D. Failure to Submit Complete “Statements”

Lastly, Unitil Service faults DOL for failing to submit the entire “employee

personal interview statements” to the court. Unitil Service, however, does not

dispute that DOL provided it the complete statements during discovery. Indeed,

Unitil Service quotes additional portions of the statements in its reply brief. Unitil

Service could have submitted the complete “statements” into the record if it deemed

them necessary to a fair evaluation of the motion for summary judgment.

For those foregoing reasons, Sood’s declaration can be considered as to the

substantive portion of the cross-motions for summary judgment, that is, whether

Dispatchers and Controllers are exempt from FLSA’s overtime compensation and

recordkeeping rules because they are administrative employees.

18 II. Administrative Employee Exception

Under the overtime compensation rule, FLSA requires employers to pay their

employees time-and-a-half when they work more than 40 hours per week.

(a)(1).9 An employer subject to FLSA must also comply with recordkeeping

rules. See

§ 211(c). FLSA, however, exempts from these rules “any employee

employed in a bona fide executive, administrative, or professional capacity . . . .” Id.

§ 213(a)(1).10 DOL regulations further define what constitutes an administrative

employee, stating that the exemption includes any employee:

(1) Compensated on a salary or fee basis . . . at a rate of not less than $684 per week . . . exclusive of board, lodging or other facilities; (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; and (3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

(a).

9 Specifically, an employer violates FLSA if it employs anyone “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 [their] 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.”

10 The longstanding dictate from the Supreme Court that FLSA exemptions

are to be “narrowly construed” no longer applies. Encino Motorcars, LLC v. Navarro,

(2018) (“The Ninth Circuit also invoked the principle that exemptions to the FLSA should be construed narrowly. . . . We reject this principle as a useful guidepost for interpreting the FLSA.”); Marcus v. Am. Cont. Bridge League, Inc.,

, at *14 (D. Mass. Mar. 24, 2021).

19 The employer must demonstrate that the position or employee at issue meets

all three prongs of § 541.200(a) to fall within the administrative employee

exception. See id. Here, the parties agree that Dispatchers and Controllers are

salaried and compensated at a rate not less than $684 per week, satisfying the first

prong of § 541.200(a). The dispute centers on whether the primary duties of

Dispatchers and Controllers are work that is “directly related to the management or

general business operations” of Unitil Service or its customers and whether the

positions include the “exercise of discretion and independent judgment.”

A. Whether Primary Duties are Directly Related to General Business Operations

As to prong two, § 541.200(a)(2), Unitil Service contends that the primary

duties of Dispatchers and Controllers are ancillary to the principal function of

Unitil Service’s customers and therefore are directly related to the “general

business operations” of those customers. In contrast, DOL argues that the primary

duties of Dispatchers and Controllers are directly related to Unitil Service’s

customers’ principal functions, which it asserts is the transmission of electricity and

natural gas.11

11 The parties do not dispute that Dispatchers and Controllers perform only

office or non-manual work, so the court need only determine whether the primary duties of Dispatchers and Controllers are “directly related to the management or general business operations” of Unitil Service or its customers. See 29 C.F.R § 541.200(a)(2).

20 “Primary duty” means “the principal, main, major or most important duty

that the employee performs.” Id. § 541.700(a). The analysis of what duty is

primary “must be based on all the facts in a particular case, with the major

emphasis on the character of the employee’s job as a whole.” Id. Courts should

consider factors such as the relative importance of different types of duties, the

amount of time spent performing the duties, and the amount of direct supervision of

the employee. Id.12

Primary duties that are “directly related to the management or general

business operations” of the employer or its customers must be “directly related to

assisting with the running or servicing of the business, as distinguished, for

example, from working on a manufacturing production line or selling a product in a

retail or service establishment.” Id. § 541.201(a). Generally, work that is

“ancillary” to the principal function of the employer or its customers will be

considered “directly related” to the employer’s “general business operations.” See

Hines v. State Room, Inc.,

(1st Cir. 2011); Lutz v. Huntington

Bancshares, Inc.,

(6th Cir. 2016); Grage v. N. States Power Co.-

Minnesota,

(8th Cir. 2015). Work that is typically ancillary to

principal businesses or functions includes, among other examples, quality control,

12 The regulation also states that courts should consider “the relationship

between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.”

In this case, however, neither party submitted evidence that goes toward this factor.

21 safety and health, government relations, legal and regulatory compliance, and

“similar activities.” See

(b).

1. Electric Distribution Dispatchers

The primary duty of Dispatchers is to monitor and, when circumstances

dictate, control the physical electrical infrastructure that Unitil Service’s customers,

i.e., its sister subsidiaries, operate and maintain. The parties do not dispute that

Dispatchers spend most of their time performing this task or that it is their main

job function. The Dispatchers’ other functions, such as executing switching orders,

contacting field crews, and communicating with municipal first responders, are

generally consequential to the Dispatchers’ primary duty of monitoring the

infrastructure for unusual or emergent situations.

This primary duty is “directly related” to the “general business operations” of

Unitil Service’s customers,13 as it is comparable to the functional work areas listed

under § 541.201(b), which lists categories of duties that should be considered

administrative. For example, the Dispatchers’ responsibilities to monitor the

electrical grid and ensure that it is performing in compliance with Unitil’s and the

13 “An employee may qualify for the administrative exemption if the

employee’s primary duty is the performance of work directly related to the management or general business operations of the employer’s customers.”

(c). Because the duties that Dispatchers and Controllers perform are coextensive with the services that Unitil Service provides, the parties focus on whether the duties are directly related to the management or general operations of Unitil Service’s customers, which are its sister corporations within Unitil Corporation.

22 government’s standards are analogous to “quality control” and “regulatory

compliance” functions. See

(b). Dispatchers also perform

“health and safety” tasks when they interpret alarms via SCADA to determine

whether they require corrective action and when, consequent to that function, they

operate switches to isolate devices or service areas to ensure that field crews can

safely work on the physical infrastructure.

Other courts that have addressed whether employees with similar primary

duties are exempt have likewise found these duties to be directly related to their

employers’ general business operations. In Galdo v. PPL Electric Utilities

Corporation, for example, a utility company with operations similar to Unitil

Corporation employed “system operators” whose primary duty included “evaluating

and controlling [the corporation’s] electrical grid, documenting maintenance and

work activities, and executing emergency procedures when needed.”

, at *5 (E.D. Pa. Feb. 5, 2016). The court found that “[t]hese duties

contribute to the running of [the utility company’s] business, as they are ancillary to

[the utility’s] principal production activity of generating electricity.”

It added

that those duties “moreover, fall within the functional areas identified by the

Secretary of Labor’s regulations as work directly related to management or general

business operations.”

DOL contends that Galdo is distinguishable because PPL,

the utility company involved, generated electricity, unlike Unitil Service. That

distinction, however, does not undercut Galdo’s persuasive value because PPL’s

productive business operations included the transmission of electricity in addition

23 to the generation of electricity. See

, at *2 (noting that the system

operators worked in the defendant’s “Transmission Department”); Galdo v. PPL

Elec. Utils. Corp.,

, at *1 (E.D. Pa. Aug. 26, 2016) (finding, after

bench trial, that system operators were exempt from FLSA as administrative

employees and stating that “PPL is an electrical distribution and transmission

company”).

Similarly, in Zelenika v. Commonwealth Edison Co., a utility company

employed “Senior Distribution System Dispatchers” who worked in a centralized

control room and had primary duties that included “monitor[ing] [the utility’s]

electrical distribution system and adjust[ing] voltages on the system using

computer displays, alarm systems, maps, and controls,” “receiv[ing] notifications of

power outages or other emergency situations directly from customers,”

“documenting changes in the distribution system such as system outages,” and

“communicating with field crews to help resolve problems and complete repairs to

the system.”

, at *2 (N.D. Ill. July 23, 2012). The Northern

District of Illinois found that those primary duties were directly related to the

utility company’s general business operations even where its productive operations

included transmission of electricity.

Considering that the duties of the “system

operators” in Galdo and the “Senior Distribution System Dispatchers” in Zelenika

are almost identical to the duties of Dispatchers, the reasoning and result in those

cases are persuasive and applicable here.

24 DOL argues that, because Dispatchers can exercise control over the electrical

grid using the SCADA system, they are responsible for the transmission of

electricity and therefore perform a primary duty that is directly related to, rather

than ancillary to, the principal business purposes of Unitil Service’s customers. But

DOL overlooks that, as to their primary duties, Dispatchers only exercise control

over the system in limited circumstances when health, safety, or regulatory

prescriptions require it. In all other circumstances, the infrastructure operates

without action from the Dispatchers. For example, if a power outage occurs,

Dispatchers can flip switches to prevent injury to field crews while the field crews

try to repair electrical lines to restore power to end users. Dispatchers also use the

SCADA system to attempt to narrow the location of the problem to help field crews

identify the physical location where a repair may be necessary. And if a Dispatcher

detects a situation where voltage or power is outside operating restrictions or

expectations, which may result in injuries to end users, the Dispatcher can

manipulate the system to try to bring it back in compliance. In each example where

Dispatchers exercise control over the electrical grid, Dispatchers act in support of

Unitil Service’s customers and its field crews. That a Dispatcher’s primary duty

may be necessary to the safe and successful operation of Unitil Corporation and its

subsidiaries is immaterial because it is nonetheless “ancillary” to the firm’s

principal productive functions. See Hines,

(“The sales aspect of the

defendants’ businesses, although necessary to their success, is clearly ancillary to

the principal function of actually providing the banquet services themselves.”).

25 In sum, the primary duty of Dispatchers for Unitil Service is remote

monitoring of the physical infrastructure owned and operated by Unitil Service’s

customers and intervening in limited circumstances to control the infrastructure to

ensure the safety of other employees who maintain the infrastructure. Dispatchers

do not build or maintain that infrastructure. Rather, they support the elements of

Unitil Service and Unitil Service’s customers that do. For the foregoing reasons, the

primary duty of Dispatchers is “directly related” to the general business operations

of Unitil Service’s customers. Accordingly, as to the Dispatcher position, Unitil

Service has shown that is entitled to summary judgment in its favor as to prong two

of the administrative employee exemption, § 541.200(a)(2).

2. Senior Gas Controllers

Controllers also perform work that is “directly related” to the “general

business operations” of Unitil Service’s customers. The primary duty of Controllers

is to monitor the flow of natural gas through Unitil’s transmission systems to

ensure that the pipeline is operating correctly and that the gas flow complies with

corporate, state, and federal standards.

As with Dispatchers, the primary duty performed by Controllers is

comparable to the functional work areas listed under § 541.201(b). For example,

monitoring the pressure of flowing gas to ensure that it complies with regulatory

requirements is a “regulatory compliance” task. See

(b).

Monitoring the transmission system and tracking alarms to determine whether

26 problems have arisen on the system are health, safety, and quality control tasks.

See

In addition, the Controller position is analogous to the position at issue in

Zannikos v. Oil Inspections (U.S.A.), where employees’ primary duties were directly

related to assisting with the running or servicing of a business’s customers when

they included “observing oil transfers to verify that performance was accurate,

legal, and safe,” “monitor[ing] the loading and unloading of cargo and report[ing]

any errors or losses,” and “monitor[ing] and report[ing] on transfers’ compliance

with Oil Inspections’ safety policies and nationally recognized safety standards.”

(5th Cir. Mar. 27, 2015).

Therefore, as to the Controller position, Unitil Service is entitled to summary

judgment in its favor as to prong two of the administrative employee exemption,

§ 541.200(a)(2).

B. Whether Primary Duties Include Exercise of Discretion and Independent Judgment

As to prong three, § 541.200(a)(3), Unitil Service contends that Dispatchers

must use their discretion and independent judgment when monitoring the electrical

infrastructure to determine whether any problematic conditions exist, including

power outages and health and safety situations. Unitil Service asserts that, while

there are procedures that Dispatchers must follow once they determine what the

issue is, a Dispatcher’s responsibility is to determine which procedure of many is

appropriate to follow. In addition, Unitil Service argues that Dispatchers are

27 permitted to deviate from procedures to accomplish the procedure’s intent if

necessary. As to Controllers, Unitil Service contends that they have authority to

formulate, affect, interpret, and implement policies and operating practices on a

daily basis.

DOL, on the other hand, argues that a genuine dispute of material fact exists

as to whether Dispatchers and Controllers exercise discretion and independent

judgment in their jobs. In support, DOL references Sood’s declaration, in which she

recounts statements made to her in interviews with Dispatchers and Controllers.

DOL argues that these statements are sufficient to show that a genuine dispute of

material fact exists as to whether Dispatchers and Controllers exercise discretion

and independent judgment. DOL also contends that Dispatchers and Controllers

are constrained in their discretion and independent judgment by Unitil

Corporation’s written procedures.14

“[T]he exercise of discretion and independent judgment involves the

comparison and the evaluation of possible courses of conduct, and acting or making

a decision after the various possibilities have been considered.”

(a). Exercise of discretion and independent judgment means that an

employee has the authority to make independent choices free from “immediate

14 Prong three requires the employer to demonstrate that discretion and

independent judgment are used “with respect to matters of significance.”

(a). In this case, however, DOL does not contend that remote monitoring of physical infrastructure and responding to alarms, which are the primary duties of Dispatchers and Senior Gas Controllers, are not matters of significance to Unitil Service.

28 direction or supervision.”

§ 541.202(c). At the same time, however, “employees

can exercise discretion and independent judgment even if their decisions or

recommendations are reviewed at a higher level” and “decisions made as a result of

the exercise of discretion and independent judgment may consist of

recommendations for action rather than the actual taking of action.” Id. Unlimited

authority or complete absence of review is not a prerequisite to “exercise of

discretion and independent judgment.” Id.

1. Electric Distribution Dispatchers

The undisputed facts demonstrate that Dispatchers’ primary duty includes

the exercise of discretion and independent judgment with respect to matters of

significance. Specifically, Dispatchers must exercise discretion and independent

judgment in interpreting the data provided to them through SCADA and the outage

management system, which they use to monitor Unitil Corporation’s electrical

infrastructure. Both Goudreault and the anonymous Dispatchers interviewed by

Sood stated that they respond to a high number of alarms. Goudreault explained

further, testifying that Dispatchers are expected to interpret these alarms and to

determine whether they can be safely ignored or require a reaction. See

(b) (stating that whether the employee investigates and resolves matters

of significance on behalf of management is a factor in considering whether work

requires the exercise of discretion and independent judgment).

29 The reasoning and result in the Galdo case, already discussed above, is also

applicable to whether Dispatchers’ primary duty includes exercise of discretion and

independent judgment. In Galdo, the “system operators” spent—much the same as

the Dispatchers at issue in this case—“the majority of their work day interpreting

and implementing management policies or operating practices by monitoring

Defendant’s electrical grid, coordinating planned work outages and repairs, and

addressing emergent situations.” Galdo,

, at *8. Although system

operators were “constrained in their actions by PPL’s extensive sets” of instructions

and procedures, the evidence showed that “these materials are hardly akin paint-

by-number kits foreclosing discretion and independent judgment.”

The court

also observed that the system operators “must exercise judgment” in determining

which instructions or procedures were applicable after considering the

circumstances and that, while the instructions “might give a step-by-step procedure

on how to perform a specific action, [they] do[] not specify when that action is

necessary or why.”

Considering these facts together, the court found that

system operators exercised discretion and independent judgment with respect to

matters of significance.

DOL contends that Unitil Service’s manual forecloses Dispatchers’ discretion

and independent judgment, but the procedures in the manual are like those

described in Galdo. To be sure, Unitil Service’s manual includes procedures that

prescribe what actions Dispatchers must take in certain situations, but the manual

does not explain in detail the contexts or circumstances in which certain procedures

30 are applicable, nor does it explain how Dispatchers should determine what

procedure to apply based on what they see in the SCADA or outage management

system. Instead, those matters are left to Dispatchers’ discretion and independent

judgment.

Sood’s affidavit is also insufficient to create a genuine dispute of material fact

as to exercise of discretion and independent judgment. EDD 2 told Sood that “[w]e

don’t make any decisions in this work—we’re just told what to do,” but that

statement is not sufficient to create a genuine dispute about whether Dispatchers

exercise discretion and independent judgment in their primary duty because it is

conclusory and lacks sufficient supporting factual matter. See Serra v. Quantum

Servicing Corp.,

(1st Cir. 2014) (stating that “allegations of a merely

speculative or conclusory nature are rightly disregarded”). Neither EDD 2’s other

statements to Sood nor DOL’s other evidence lend factual support to the conclusion

that Dispatchers do not “make any decisions,” which can only be reasonably

construed as hyperbole when considered with context. See Conward v. Cambridge

Sch. Comm.,

(1st Cir. 1999) (stating that the court should “refuse[]

to indulge rank speculation or unsupportable hyperbole” at summary judgment).

For example, EDD 2 gives an example of a decision that Dispatchers can make

when observing that Dispatchers can tell field crews to stop during switching

orders.15 And DOL itself asserts in its statement of undisputed facts that

15 EDD 3 likewise observes that Dispatchers have “authority” to halt

switching if the Dispatcher determines that “something unusual” happens. Doc. no. 24-1 at 3.

31 Dispatchers can decide to deviate from Unitil Service’s procedures “on occasion.”

Doc. no. 24 at 4, ¶ 12.

DOL also points out that Dispatchers must usually clear their decisions with

supervisors. Goudreault, however, testified that only one person is employed to

supervise the Dispatchers, and it is undisputed that Dispatchers spend most of

their time working without supervision. In any event, the regulations do not

mandate that an employee’s use of independent judgment and exercise of discretion

come without any supervisory review. See

(c) (explaining that

use of independent judgment and exercise of discretion does not require employee to

have final decision-making authority or be entirely unsupervised); Hines,

(“The regulations likewise provide that an employee’s discretionary

actions need not ‘have a finality that goes with unlimited authority and a complete

absence of review’ . . . . The fact that, after engaging a potential client and arriving

at a proposed agreement for a banquet, the sales managers submitted the proposal

to management for approval does not, therefore, detract from the judgment that

was exercised in arriving at the proposal in the first instance.”). Here, even if their

decisions are recommendations or proposals when a supervisor is present,

Dispatchers must still exercise discretion and independent judgment when making

those recommendations. See Hines,

.

Lastly, DOL’s argument that Dispatchers do not use independent judgment

or exercise discretion in their primary duty because they are told how to execute

switching orders and because certain communications with field crews are scripted

32 is unpersuasive. Although Dispatchers must follow specific scripts outlined in the

procedures when communicating with field crews in some circumstances, just

because one aspect of the Dispatchers’ primary duty offers limited opportunities to

exercise independent judgment or discretion does not mean it does not “include”

aspects that do. Likewise, executing switching orders is only one aspect of

Dispatchers’ primary duty. Because the regulations only require independent

judgment and exercise of discretion to be “included” in the employee’s primary duty,

whether Dispatchers spend some of their time on tasks that do not require

independent judgment or exercise of discretion is immaterial. See

(a)(3).

2. Senior Gas Controllers

As with Dispatchers, DOL contends that Controllers do not use independent

judgment and discretion because many of their decisions are subject to the review of

supervisors or dictated by procedures. As with Dispatchers, however, that reality

does not mean that Controllers lack the ability to use discretion and independent

judgment as part of their primary duty. At the monitoring, diagnosis, and triaging

stage, which the parties do not dispute constitutes the bulk of the Controllers’ job

responsibilities, Controllers must exercise discretion and independent judgment.

For example, Controllers must interpret the meaning of alarms on their software

systems and use their judgment to determine whether the alarm presents a

problem that requires immediate attention. If the situation requires immediate

33 attention, the Controller must use their judgment to decide what type of issue

occurred, such as whether the issue is mechanical or a failure of a field device.

The only other relevant evidence that might support DOL’s position that

Controllers do not exercise discretion and independent judgment is from Sood’s

declaration. The statements in Sood’s declaration, however, are not sufficient to

generate a genuine issue of material fact. For example, SGC 1 states that there is a

“procedure of a procedure for everything,” but, considered in context, SGC 1 was

discussing how Controllers handle situations after using their independent

judgment to determine that an issue requires handling.

Indeed, SGC 2’s statements confirm that Controllers use independent

judgment and exercise discretion. Specifically, SGC 2 observed that there are

“situations where we can act immediately” and, in formulating a decision about

whether immediate action or what kind of response is necessary, Controllers

“consult” with a supervisor or their manual while at the same time relying on their

own experience. As SGC 2 states, “[w]ithin certain sets of circumstances, we take

one set of actions, with other circumstances, we take other actions.” Doc. no. 24-1 at

4. Making an informed decision or recommendation about which set of actions to

take depending on the present circumstances after consultation with training

materials, supervisors, and personal experience is paradigmatic exercise of

discretion and independent judgment. See

(a) (“[T]he exercise of

discretion and independent judgment involves the comparison and the evaluation of

34 possible courses of conduct, and acting or making a decision after the various

possibilities have been considered.”).

CONCLUSION For the reasons discussed above, Unitil Service has shown that there are no

genuine disputes of material fact and that Dispatchers and Controllers fall within

FLSA’s administrative employee exemption,

(a)(1) and

(a), as a matter of law. It follows that Unitil Service is entitled to

summary judgment on DOL’s claims that it violated FLSA’s overtime compensation

and recordkeeping provisions as to those employees. Accordingly, Unitil Service’s

motion for summary judgment (doc. no. 21) is granted. DOL’s motion for summary

judgment (doc. no. 20) is denied.

No claims remain in this suit. The clerk of court is directed to enter

judgment in favor of Unitil Service and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

November 17, 2021

cc: Counsel of Record

35