United States Court of Appeals For the First Circuit

Nos. 22-1134 22-1135

PETER MARCUS, on behalf of himself and others similarly situated; MATT KOLTNOW, on behalf of himself and others similarly situated; DIANNE BARTON-PAINE, on behalf of herself and others similarly situated; ERIC BELL; JENNIFER CARMICHAEL; SUSAN S.M. DOE; HARRY FALK; JOHN GRAM; ARLEEN HARVEY; JEFFREY A. JACOB; CANDACE S. KOSCHNER; TERRY LAVENDER; KARL P. MILLER, JR.; MCKENZIE MYERS; JOAN M. PARADEIS; KENNETH VAN CLEVE; NANCY R. WATKINS; MARILYN WELLS; LYNN YOKEL,

Plaintiffs, Appellants/Cross-Appellees,

v.

AMERICAN CONTRACT BRIDGE LEAGUE,

Defendant, Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Kayatta, Howard, and Montecalvo, Circuit Judges.

Raymond Dinsmore, with whom Peter Goselin, The Law Office of Peter Goselin, and Hayber, McKenna & Dinsmore, LLC were on brief, for appellants/cross-appellees. Paul E. Prather, with whom Melissa L. McDonagh, Francis J. Bingham, and Littler Mendelson, P.C. were on brief, for appellee/cross-appellant. August 14, 2023 MONTECALVO, Circuit Judge. Peter Marcus originally

brought this action against the American Contract Bridge League

("ACBL"), where he was formerly employed. In the amended

complaint, Marcus and his co-plaintiffs sought unpaid overtime

wages that they claimed were due under the Fair Labor Standards

Act ("FLSA"). See

(a). Marcus also claimed that

he was wrongfully discriminated and retaliated against for

requesting such pay. ACBL and plaintiffs both sought summary

judgment on the wage claims, and ACBL sought summary judgment on

Marcus's retaliation claim. ACBL asserted that plaintiffs were

exempt from the overtime requirement because they were properly

classified as administrative employees under the FLSA. The

plaintiffs countered that their primary duties did not involve

managerial work sufficient to satisfy the exemption.

Based on facts it deemed undisputed, the district court

concluded that the administrative exemption applied to five

classifications of employees because their primary duties related

to ACBL's management or general business operations, and that those

employees were not entitled to overtime pay; accordingly, partial

summary judgment was entered for ACBL. The court also concluded

that one classification of employees was not subject to the

administrative exemption and that those employees were entitled to

overtime pay; accordingly, summary judgment was entered for

certain plaintiffs. As to Marcus's retaliation claim, the district

- 3 - court entered summary judgment for ACBL because it found that

Marcus failed to show that any adverse employment action taken

against him was causally connected to him seeking overtime wages.

These cross appeals follow.

I. Statutory Background

The FLSA requires certain employers to pay their

employees at least "one and one-half times the regular rate" for

any hours worked in excess of a forty-hour workweek.

(a)(1). Exempt from this overtime requirement is "any

employee employed in a bona fide . . . administrative . . .

capacity."

§ 213(a)(1). An employer seeking to establish

that an employee is exempt under the "administrative" exemption

must show that: (1) the employee's salary is at least $684 per

week; (2) the employee's "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) the employee's "primary duty includes the exercise of

discretion and independent judgment with respect to matters of

significance."

(a).

When considering whether the administrative exemption

applies, the first determination is what an employee's "primary

duty" is. "Factors to consider when determining the primary duty

of an employee include, but are not limited to, the relative

importance of the exempt duties as compared with other types of

- 4 - duties; the amount of time spent performing exempt work; [and] the

employee's relative freedom from direct supervision."

§ 541.700(a). However, "an employee's 'primary' duty is not

determined solely by the amount of time [they] devote[] to the

different categories of tasks -- i.e., exempt vs. nonexempt -- but

on the overall character of [their] position." Marzuq v. Cadete

Enters., Inc.,

(1st Cir. 2015); see

(a) ("Determination of an employee's primary duty 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.").

Assuming the salary criterion of

(a)

is met, once an employee's primary duty is established, the

operative question then becomes whether that primary duty is "work

directly related to the management or general business operations

of the employer or the employer's customers."

(a). "To meet this requirement, an employee must perform

work directly related to assisting with the running or servicing

of the business."

The employee's primary duty also "must

include the exercise of discretion and independent judgment with

respect to matters of significance."

at § 541.202(a). If all

of these criteria are met, then the employee is exempt and not

entitled to overtime pay.

- 5 - II. Factual Background

ACBL is the largest bridge organization in the world,

with over 162,000 members. ACBL's mission is to "promote, grow

and sustain the game of bridge and serve the bridge-related

interests of its members" throughout the United States, Canada,

Mexico, and Bermuda. ACBL divides its geographical reach into

twenty-five districts, and each district is divided into a varying

number of units. In furtherance of its mission, ACBL sanctions

bridge tournaments at three different levels: sectionals, which

usually involve only one unit; regionals, which usually involve

one district; and the North American Bridge Championships

("Nationals"), which are held three times a year and involve all

districts. While Nationals are sponsored and run by ACBL, regional

and sectional tournaments are not; ACBL does provide staff "to

direct and support the [regional and sectional] tournaments and

will bill the tournament sponsor."

A. Relevant Job Positions at ACBL

The job titles assigned by ACBL to their employees

relevant to the instant appeal are Tournament Director, National

Tournament Director, Associate National Tournament Director, Field

Supervisor, Area Manager, and Mentor. Tournament Directors "act

as a referee for the games played at the tournament to ensure they

are played fairly and with integrity for all the players in

accordance with the Laws of Duplicate Bridge." Tournament

- 6 - Directors may, inter alia, rule on disputes, enforce and maintain

discipline among players, keep and verify the accuracy of scores,

ensure timely play, and penalize players via the deduction of

points or ejection. Tournament Directors are also responsible for

setting up the tournaments and selling entries.

The number of Tournament Directors present at a given

tournament varies depending on the level of tournament, but every

tournament has one Tournament Director who serves as the

Director-in-Charge ("DIC"). The DIC role is typically filled by

a full-time ACBL employee who is responsible for determining how

many Tournament Directors are required for a tournament and

supervising those Tournament Directors and other tournament staff.

Tournament Directors are also assigned ranks based on

their experience and skill. The rank determines what level of

tournament the employee can oversee as a DIC. All full-time

Tournament Directors hold the rank of (from junior to senior)

tournament director, associate national tournament director, or

national tournament director. Generally, the DIC must have the

rank of (1) at least tournament director for a sectional

tournament; (2) at least associate national tournament director

- 7 - for a regional tournament; and (3) at least national tournament

director for Nationals.1

Field Supervisor was a position in existence prior to

January 2018, primarily responsible for tournament organization,

operations, and directing. Tournament Directors reported to Field

Supervisors, and Field Supervisors were responsible for hiring and

firing decisions, as well as promotion, demotion, recruiting,

training, and development of Tournament Directors. Field

Supervisors assigned the DIC for sectional and regional

tournaments and completed performance reviews for the Tournament

Directors they oversaw. At tournaments, Field Supervisors

refereed game play while also supervising and providing feedback

to their direct reports.

In early 2018, ACBL reorganized its Field Operations

department: it eliminated the Field Supervisor position and

created four new positions. The duties of the Field Supervisor

position were rolled over to the newly created Area Manager

position, except that Area Managers have responsibility over more

districts and perform special projects. Area Managers are the

1 We agree with the district court's observation that "ACBL uses a somewhat bewildering variety of job titles and rankings." For example, "Tournament Director" is seemingly used as a general term for those who oversee tournaments, a job title, and a specific rank. Likewise, National Tournament Director and Associate National Tournament Director are seemingly job titles within ACBL as well as ranks of tournament directors.

- 8 - "first point of contact" for issues relating to the operation of

tournaments and the setup of games, and they interpret and

implement game rules, manage the flow and pace of gameplay, and

resolve disputes, including appeals made by players concerning the

rulings of other Tournament Directors. Area Managers also make

employment decisions, including hiring and firing, assigning DICs,

and writing annual performance reviews.

Mentor was another position created in the 2018

reorganization. This position only existed from January 2018 to

June 2019 and was responsible for the recruitment, training, and

promotion of Tournament Directors. Mentors directly answered

Tournament Directors' questions, checked their hours, and gave

performance reviews. Mentors could also serve as a DIC at large

tournaments and work directly with Area Managers to make tournament

staffing decisions. Although Mentors did not have the authority

to fire employees, their recommendations as to employment

decisions were generally deferred to.

The final two positions that came into existence because

of the 2018 reorganization are National Tournament Director and

Associate National Tournament Director. These employees are

responsible for managing large tournaments and associated staff;

training and mentoring other directors in making rulings, game

setup, and scheduling; guiding disputes concerning game play and

- 9 - poor behavior, including through the appeals process; and drafting

regulations.

B. Compensation

1. Tournament Directors

In 2014, the only relevant position in existence was

that of Tournament Director. At that time, ACBL asked its legal

counsel to evaluate whether full-time Tournament Directors were

properly classified as exempt under the FLSA. ACBL was advised

that it had a "solid argument" that full-time Tournament Directors

were exempt pursuant to the FLSA's administrative exemption; ACBL

thus continued to treat those employees as exempt from overtime

pay requirements. ACBL was also advised that employees who

typically acted as DICs "almost certainly would qualify as exempt."

2. Department of Labor Investigation

In 2014, Marcus -- a full-time salaried Tournament

Director -- filed a complaint with the United States Department of

Labor ("DOL"). Marcus alleged that he had been misclassified as

an exempt employee and was entitled to overtime pay. A DOL

investigator concluded that "tournament directors in the field"

were not exempt because "they did not supervise employees, did not

have any authority to hire, fire, or discipline or make those

recommendations, and did not have management as their primary

duty." The investigator concluded that Marcus was entitled to

$3,883.14 in overtime back wages.

- 10 - The DOL investigator communicated their findings to

ACBL's counsel in October 2015. Counsel told the investigator

that ACBL would not agree to pay any back wages because it

disagreed that overtime was due to full-time salaried Tournament

Directors. Counsel also said that ACBL was planning to discontinue

the Tournament Director position and assured future compliance.

The investigator "recommended that the file should be

administratively closed." The investigation did not result in any

monetary penalties or enforcement actions against ACBL.

3. Post-Investigation Exemption Status

In January 2017, ACBL began to classify full-time

Tournament Directors as non-exempt. Field Supervisors remained

exempt and ineligible for overtime pay. When ACBL reorganized its

Field Operations team in 2018, the newly created positions of

National Tournament Director, Associate National Tournament

Director, Area Manager, and Mentor were all full-time exempt

salaried positions.

C. Marcus's Retaliation Claim

Marcus was first hired by ACBL in 1993 as a Tournament

Director and, in 2001, he held the rank of associate national

tournament director. In 2011, he began directing Sectional

Tournaments at Clubs ("STaCs"), which allow players from various

clubs to compete in a tournament even though the players are in

different physical locations. When directing STaCs, Marcus

- 11 - assisted -- by phone or email -- in directing games at the clubs,

as well as compiling the results.

In June 2015, Marcus was promoted to the position of

STaC Coordinator and his salary was increased. The STaC

Coordinator position was salaried and ineligible for overtime. In

Marcus's annual performance review for the period from January 1,

2015, to December 31, 2015, he received an overall rating of "Meets

Expectations - 3," meaning the reviewer -- ACBL's Chief Executive

Officer Robert Hartman -- found that his "[p]erformance

consistently meets the standards of performance for [his] position

and sometimes exceeds expectations." After the performance

review, Marcus's salary was increased to approximately $893 per

week.

Thereafter, in April 2016, Marcus applied for the open

position of Director of Field Operations. Marcus interviewed for

the position in June 2016; he was the only candidate interviewed

at that time. ACBL's Human Resources Manager, Nancy Rosenbury,

told Marcus that his interview had gone well, and sometime in

mid-June Marcus met with Hartman to ask when a hiring decision

would be made. Hartman apparently indicated that he expected "to

make some decision in the near future." Marcus alleges that

sometime thereafter Rosenbury called to inform him that he would

not be hired as the Director of Field Operations due to

"attitudinal concerns."

- 12 - The following month, Marcus proposed to Hartman that he

work as the Director of Field Operations on a trial basis. On

August 9, 2016, Hartman informed Marcus that "[t]he executive team

met [] and [] discussed your proposal. We are still considering

the position. Whatever route we take, we decided not to bring

anyone in on an interim or trial basis." Two days later, Hartman

reached out to Marcus about a complaint he received about STaC

scores not being timely posted. Marcus resigned, effective

immediately, on August 12, 2016. Marcus testified that he felt

frustrated and that there was no future for him at ACBL.

In April 2017, ACBL hired another individual as Director

of Field Operations. That individual had no previous knowledge of

bridge directing or bridge tournaments.

III. Procedural History

A. Institution

Marcus filed the instant action on June 23, 2017, and

filed an amended complaint on November 17, 2017. Marcus's suit

alleged that ACBL failed to pay him and other similarly situated

employees their FLSA-required overtime wages. Marcus also alleged

that ACBL retaliated against him for lodging a complaint with the

DOL, in violation of the FLSA. The district court conditionally

certified the FLSA collective action, and notice was issued to

potential class members. The district court ultimately recognized

- 13 - Marcus, Matt Koltnow, and Dianne Barton-Paine as named plaintiffs,

along with sixteen opt-in plaintiffs.

B. Motion to Substitute

Kenneth Van Cleve, an opt-in plaintiff, died on July 9,

2019. ACBL filed a notice of death on May 11, 2020. On October

13, 2020, plaintiffs filed a motion to substitute his widow, Sarah

Van Cleve, as a party to the lawsuit. ACBL objected, arguing that

the motion to substitute was untimely because plaintiffs failed to

file it within 90 days after ACBL filed the notice of death as

required by the Federal Rules of Civil Procedure. The plaintiffs

maintained that because ACBL did not serve the notice of death on

Sarah Van Cleve, Kenneth's personal representative, the 90-day

clock never started to run and, "[i]n the absence of a duly-served

[n]otice of [d]eath, the [c]ourt is not constrained from

considering the plaintiffs' timely motion to substitute."

The district court agreed with ACBL and denied the motion

to substitute. The court found that pursuant to Rule 25(a)(1) of

the Federal Rules of Civil Procedure, if a motion to substitute is

not made within 90 days after service of a notice of death, the

action must be dismissed. As to plaintiffs' argument that ACBL

was required to serve the notice of death upon Kenneth's personal

representative, the court found that argument "without merit; the

rule contains no such requirement."

- 14 - C. Summary Judgment Proceedings

In May 2020, the parties filed cross-motions for summary

judgment. ACBL and plaintiffs both moved for summary judgment on

the unpaid overtime wages claims, and ACBL moved for summary

judgment on Marcus's retaliation claim.

It is undisputed that plaintiffs satisfy the salary

criterion of

(a). That left only two prongs of

the administrative exemption test for the district court to

consider: (1) whether the employee's "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 (2) whether the employee's "primary duty

includes the exercise of discretion and independent judgment with

respect to matters of significance."

(a).

The district court ultimately concluded that Tournament

Directors are not subject to the administrative exemption because

"the primary duty of Tournament Directors, which is officiating

bridge contests, does not relate to the management or general

business operations of ACBL, and [Tournament Directors] do not

exercise discretion or independent judgment with respect to

matters of significance." Thus, the district court found that

those plaintiffs who worked as "salaried Tournament Directors

since April 24, 2017," were entitled to overtime pay.

- 15 - As to the remaining positions (National Tournament

Directors, Associate National Tournament Directors, Field

Supervisors, Area Managers, and Mentors), the district court found

that all these positions are subject to the administrative

exemption. The district court concluded that the primary duty of

these positions -- managing large tournaments and associated

staff; training and mentoring other directors in making rulings

and tournament scheduling; guiding disputes; and drafting and

updating tournament regulations -- "go[es] beyond officiating

individual contests and directly relate[s] to ACBL's management

and general business operations" and "includes the exercise of

discretion and independent judgment with respect to matters of

significance." Thus, the district court found that those

plaintiffs who worked as National Tournament Directors, Associate

National Tournament Directors, Field Supervisors, Area Managers,

or Mentors were not entitled to overtime pay.

Finally, the district court granted ACBL's motion for

summary judgment as to Marcus's retaliation claim. The court found

that "Marcus ha[d] failed to put forth evidence from which a

reasonable factfinder could infer that [ACBL] did not promote him

because of his November 2014 complaint" to the DOL. This appeal

followed.

- 16 - IV. Standard of Review

We review the entry of summary judgment de novo. See

Walsh v. Unitil Serv. Corp.,

, 5 (1st Cir. 2023).

"Cross-motions for summary judgment do not alter the basic . . .

standard, but rather simply require us to determine whether either

of the parties deserves judgment as a matter of law on facts that

are not disputed." Alasaad v. Mayorkas,

, 16 (1st Cir.

2021), cert. denied sub nom., Merchant v. Mayorkas,

(2021) (quoting Adria Int'l Grp., Inc. v. Ferre Dev., Inc.,

(1st Cir. 2001)).

Because the district court's ruling on the motion to

substitute a party turned on a question about the interpretation

of Rule 25 itself, that ruling requires de novo review. See

Comfort v. Lynn Sch. Comm.,

(1st Cir. 2009)

(employing de novo review "about the meaning or interpretation" of

a Federal Rule of Civil Procedure); see also Barlow v. Ground,

(9th Cir. 1994) ("The proper interpretation of Rule

25(a) is a question of law that we review de novo.").

We begin with the motion to substitute a party, then

move to Marcus's retaliation claim, and end on the overtime wages

claims.

- 17 - V. Analysis

A. Motion to Substitute a Party

The parties dispute whether ACBL was required to serve

the statement noting death upon Kenneth Van Cleve's successor or

representative. If a claim survives the death of a party, Rule 25

"facilitates the substitution of a 'proper party' to take the place

of the decedent." Silas v. Sheriff of Broward Cnty.,

, 876 (11th Cir. 2022) (quoting Fed. R. Civ. P. 25(a)(1)). The

rule requires "service of a statement noting the death," but fails

to specify upon who that notice must be served. Fed. R. Civ. P.

25(a)(1). However, who, exactly, must be served is an important

facet of the rule because "[i]f the motion [to substitute a party]

is not made within 90 days after service of a statement noting the

death, the action by or against the decedent must be dismissed."

We have not yet had occasion to address whether the

statement of the fact of death must be served upon the decedent's

successor or personal representative before the 90-day clock

starts to run. Several of our sister circuits have considered

this issue and concluded that service of the notice of death upon

nonparty successors or representatives of the deceased party is

required to commence the 90-day substitution period. See Silas,

55 F.4th at 876; Sampson v. ASC Indus.,

(5th

Cir. 2015); Atkins v. City of Chicago,

(7th Cir.

- 18 - 2008); Barlow,

; Gilmore v. Lockard,

,

866 (9th Cir. 2019); Grandbouche v. Lovell,

(10th

Cir. 1990); Bass v. Attardi,

, 50 n.12 (3d Cir. 1989);

Farris v. Lynchburg Foundry,

, 962 (4th Cir. 1985).

This conclusion is supported by both the language and purpose of

the rule.

Rule 25(a)(3) plainly requires that the statement noting

death "must be served on the parties as provided in Rule 5 and on

nonparties as provided in Rule 4." The only nonparties mentioned

in Rule 25 are "the decedent's successor or representative." Fed.

R. Civ. P. 25(a)(1). As such, it would be superfluous for the

rule to provide that nonparties must be served under Rule 4 if

service upon a decedent's successor or personal representative was

not required. See United States v. Walker,

(1st

Cir. 2011) (noting that "[g]reat weight must be given to the plain

language of [a] rule" of federal procedure).

Moreover, when Rule 25(a)(1) was last substantively

amended in 1963, the Advisory Committee noted that the intent of

the amended rule was to establish "a time limit for the motion to

substitute based not upon the time of the death, but rather upon

the time information of the death is provided by means of a

suggestion of death upon the record, i.e.[,] service of a statement

of the fact of death." Fed. R. Civ. P. 25 advisory committee's

note to 1963 amendment. It is clear to us that "information of

- 19 - the death" must be provided to nonparty successors or

representatives in order to empower them to take appropriate

"action to preserve the claim if so desired." Fariss, 769 F.2d at

962.

The import of this requirement is most apparent where,

as here, the "opposing party, to start the 90-day clock, filed the

suggestion of death." Atkins,

. Service of the

suggestion of death upon the decedent's successor or personal

representative "alerts [them] to the consequences of death for a

pending suit." Fariss, 967 F.2d at 962. The function of "[t]he

90[-]day period [is] not intended to act as a bar to otherwise

meritorious actions." Rende v. Kay,

(D.C. Cir.

1969) (quoting Staggers v. Otto Gerdau Co.,

(2d

Cir. 1966)). As such, "where a party files a suggestion of death,

it must do so in a manner that puts all interested parties and

nonparties on notice of their claims in order to trigger the 90-day

window." Gilmore, 936 F.3d at 866-67.

It appears that, of the circuits to have considered this

precise issue, only the Second Circuit has concluded that under

Rule 25(a)(1) the 90-day deadline for a party to move to substitute

is triggered by the proper service of a notice of death upon the

parties, "regardless of whether that notice was also served upon

the decedent's successor or representative." Kotler v. Jubert,

, 150 (2d Cir. 2021), cert. denied,

- 20 - (2021). However, the Kotler court recognized that the facts of

the case before it did not arise from the posture of a "deceased

plaintiff's representative who, having never received service of

a notice of death, attempts to revive the deceased plaintiff's

dismissed lawsuit."

(emphasis in original). And that

is exactly the case we have here: Sarah Van Cleve was not served

with the notice of death, and she attempted to revive Kenneth's

claims by moving to substitute. There is no indication that Sarah

Van Cleve "actually received notice . . . and sat on h[er] hands

while the 90-day window lapsed."

In sum, we hold that in order for the 90-day clock to

begin running under Rule 25, the suggesting party must properly

serve both the other parties and a nonparty successor or personal

representative of the deceased with a notice of death. Because

ACBL failed to serve Kenneth Van Cleve's successor with the notice

of death, the 90-day period to move to substitute was never

triggered. Thus, the district court erred in denying the motion

to substitute Sarah Van Cleve.

B. Retaliation

We next turn to whether the district court properly

granted summary judgment in favor of ACBL on Marcus's retaliation

claim. The FLSA prohibits employers from retaliating against "any

employee because such employee has filed any complaint or

instituted or caused to be instituted any proceeding under or

- 21 - related to" the FLSA.

(a)(3). Employees mounting

an unlawful retaliation claim "must prove (1) that they 'engaged

in statutorily protected activity' and (2) that their employers

afterward took 'adverse employment action' against them (3) 'as

reprisal for having engaged in the protected activity.'" Uphoff

Figueroa v. Alejandro,

(1st Cir. 2010) (quoting

Claudio-Gotay v. Becton Dickinson Caribe, Ltd.,

(1st Cir. 2004)).2

The parties do not dispute that the first part of this

test is met -- i.e., that Marcus engaged in statutorily protected

activity when he filed a complaint with the DOL -- and the district

court assumed that ACBL's "decision not to promote Marcus to

Director of Field Operations constitutes an adverse employment

action." Thus, the case turns on whether the record -- read in

the light most favorable to Marcus -- "suffices to support an

inference as to whether retaliatory animus was the 'true reason or

motive' for" Marcus not being promoted. Kearney v. Town of

Wareham,

(1st Cir. 2002) (quoting Hoeppner v.

Crotched Mtn. Rehab. Ctr.,

(1st Cir. 1994)).

2 We have held before that "Title VII, ADEA, ERISA, and FLSA [] stand[] in pari passau," and that "judicial precedents interpreting one such statute [are] instructive in decisions involving another." Serapion v. Martinez,

(1st Cir. 1997). Thus, we sometimes draw on precedents developed in other types of discrimination cases.

- 22 - We begin with the temporal proximity between the DOL

complaint and ACBL's decision not to promote Marcus. Marcus

maintains that "the timing" of the DOL complaint and ACBL's

decision not to promote him to Director of Field Operations

contributes to the requisite causal connection showing.

"[T]emporal proximity alone can suffice to 'meet the relatively

light burden of establishing a prima facie case of retaliation.'"

DeCaire v. Mukasey,

(1st Cir. 2008) (quoting

Mariani-Colon v. Dep't of Homeland Sec. ex rel. Chertoff,

(1st Cir. 2007)).

The parties set forth different milestones from which to

measure temporal proximity. Marcus maintains that the relevant

time span is October 2015 -- when he alleges ACBL learned of the

DOL complaint -- to July 2016 -- when he was denied the position

of Director of Field Operations. Accepting Marcus's shortest

proposed timeline, the time between ACBL's knowledge of the

protected activity and the adverse employment action is nine

months, but "a gap of several months cannot alone ground an

inference of a causal connection between a complaint and an

allegedly retaliatory action." Ahern v. Shinseki,

(1st Cir. 2010).

However, Marcus does not only rely on the timing of the

employment actions as his evidence of causal connection. Indeed,

"'temporal proximity' is merely one factor relevant to causation,"

- 23 - Garayalde-Rijos v. Mun. of Carolina,

(1st Cir.

2014), and, where it is lacking, an inference of causation can be

"reinforced by other evidence in the record." Trainor v. HEI

Hosp., LLC,

(1st Cir. 2012). The "other evidence"

Marcus fastens on to show that ACBL's decision to not promote him

to Director of Field Operations was motivated by retaliatory animus

is that he was the only applicant interviewed for the position

and, thus he presumes, the only qualified applicant, and that ACBL

ultimately filled the position with someone Marcus believes was

"far less qualified than" himself. Marcus also relies on purported

statements made by ACBL's Human Resources Manager that he was not

promoted due to "attitudinal" concerns.

We begin with Marcus's latter argument. He maintains

that Rosenbury informed him that even though his interview had

gone well, he would not be hired as the Director of Field

Operations due to "attitudinal concerns." However, Marcus

testified under oath that Rosenbury "did not use that word for

sure because that's [his] word, not hers." "It is well-settled

that a judge must not engage in making credibility determinations

or weighing evidence at the summary judgment stage, but it is

equally clear that judges cannot allow conjecture to substitute

for the evidence necessary to survive summary judgment." Pina v.

Children's Place,

(1st Cir. 2014) (internal

citations omitted). As such, Marcus cannot rely on his speculative

- 24 - and unsupported assertion of why ACBL did not hire him for the

position when he readily admits that he "d[id] not remember

[Rosenbury's] words." See Cabán Hernández v. Philip Morris USA,

Inc.,

(1st Cir. 2007) (noting that when reviewing

the entry of summary judgment, we will not "credit bald assertions,

empty conclusions, [or] rank conjecture").

We next turn to the fact that ACBL only interviewed

Marcus for the position but ultimately hired someone who had very

limited experience with the game of bridge. The record reflects

that after Marcus filed the DOL complaint, ACBL promoted him,

raised his pay, and gave him a positive performance evaluation.

Moreover, ACBL hired another individual as the Director of Field

Operations eight months after Marcus voluntarily resigned, and

Hartman testified that this individual "had a lot of experience in

[] many kinds of casino-type of environment[s]" and "gave a fresh

perspective to the organization." Marcus has not produced any

evidence that ACBL's stated reasons for denying him the position

of Director of Field Operations were pretextual.

We end with one additional argument advanced by Marcus:

that "Hartman harbored animus against Marcus for having initiated

a complaint . . ., and that the fruit of that animus was the

decision to deny Marcus a promotion." In furtherance of this

argument, Marcus contends that Hartman lied in claiming that he

did not remember Marcus applying for the position of Director of

- 25 - Field Operations, and that a reasonable jury could find this

omission was pretext for Hartman's retaliatory motive. However,

to draw an inference of causation "there must be proof that the

decisionmaker knew of the plaintiff's protected conduct when

[they] decided to take the adverse employment action." Pomales v.

Celulares Telefonica, Inc.,

(1st Cir. 2006). A

reasonable juror could not, on this record, find that Hartman knew

about Marcus's protected activity.

The only evidence Marcus points to is that in November

2015 a DOL investigator told ACBL's legal counsel that Marcus was

owed overtime wages as a result of an audit. Marcus does not point

to any evidence that ACBL's counsel told Hartman -- or anyone at

ACBL for that matter -- about the overtime wages due, or that

counsel even adduced that Marcus was the one who filed the DOL

Complaint. Marcus does not contest this lack of evidence and does

not dispute that he "has no evidence [that Hartman knew he was the

one who filed the DOL complaint] other than his knowledge that he

informed the [DOL] that they had his permission to use his name."

Accordingly, any purported incredible testimony given by Hartman

is not probative of retaliation because there is no evidence in

the record from which a reasonable juror could infer that Hartman

knew about Marcus's protected activity.

In short, based on the record before us, we can find no

evidence of a causal connection between Marcus's filing of the DOL

- 26 - complaint and ACBL's decision not to promote him to Director of

Field Operations. We therefore affirm the district court's entry

of summary judgment in favor of ACBL on Marcus's retaliation claim.

C. Administrative Exemption

Finally, we consider whether the district court properly

classified the various positions at issue pursuant to the FLSA and

the administrative exemption. As we previously stated, the parties

do not dispute that the first prong of the administrative exemption

is met (sufficient compensation requirement) for all of the

positions. Rather, the disputes turn on the second prong (primary

duty is the performance of office or non-manual work directly

related to management or general business operations) and third

prong (primary duty includes the exercise of discretion and

independent judgment with respect to matters of significance).

1. Tournament Directors

We begin with whether the Tournament Directors' primary

duty is "directly related" to the management or general business

operations of ACBL. As we recently noted, "it is often useful to

[first] identify and articulate the business purpose of the

employer." Walsh, 64 F.4th at 6. ACBL is in the business of

serving its members by annually "sanction[ing] over 3.5 million

tables of bridge, played in more than 3,000 bridge clubs and 1,100

sectional and regional tournaments, plus 1 million tables played

online." Providing Tournament Directors for contract bridge

- 27 - tournaments sanctioned by ACBL represents ACBL's largest source of

revenue besides membership dues.

The primary duty of Tournament Directors is to

"supervise a duplicate bridge contest." This work, when considered

in relation to ACBL's business purpose, is the very service that

ACBL is in the business of providing. Therefore, because

Tournament Directors "provide the service that [ACBL] is in

business to provide, the second prong is not satisfied." Walsh, 64

F.4th at 7; see Davis v. J.P. Morgan Chase & Co.,

(2d Cir. 2009) (noting that "employees directly producing the

good or service that is the primary output of a business" do not

perform administrative work). The district court thus correctly

concluded that Tournament Directors are not subject to the

administrative exemption under the FLSA.

2. National Tournament Directors and Associate National Tournament Directors

Like Tournament Directors, the primary duty of National

and Associate National Tournament Directors is to supervise bridge

tournaments. They are required to work around 300 tournament

sessions each year. And, although they may have additional duties

such as training and mentoring other directors in

tournament-related areas, guiding disputes concerning game play,

and/or drafting tournament regulations, these duties all go

towards producing an ACBL-sanctioned bridge tournament. National

- 28 - and Associate National Tournament Directors' responsibilities

begin and end with the tournament they are working on. There is

no evidence in the record that National and Associate National

Tournament Directors are part of the management structure of ACBL

or that they assist "with the running or servicing of the

business."

(a).

National Tournament Directors and Associate National

Tournament Directors produce the key product of ACBL-sanctioned

bridge tournaments. Given the nature of ACBL's business, their

primary duties amount to production work. See Desmond v. PNGI

Charles Town Gaming, L.L.C.,

(4th Cir. 2009)

(holding that horse racetrack officials who observed and examined

horses and jockeys, filled out relevant paperwork for the horses

and order of finish for the race, and dealt with subsequent claims

were not administrative employees because they performed tasks to

produce the very product their employer offered to the public).

They did not perform "work directly related to [ACBL's] management

or general business operations."

(a)(2).

We need not address whether their work met the additional

administrative exemption requirement of "includ[ing] the exercise

of discretion and independent judgment with respect to matters of

significance."

at § 541.200(a)(3). Both requirements must be

met for the exemption to apply. Because ACBL has failed to show

that the FLSA's administrative exemption applies to National

- 29 - Tournament Directors and Associate National Tournament Directors,

the district court erred in granting summary judgment in favor of

ACBL and in denying summary judgment to the corresponding

plaintiffs.

3. Field Supervisors and Area Managers

Unlike the preceding positions, Field Supervisors and

Area Managers meet both outstanding requirements of the

administrative exemption. Despite plaintiffs' argument to the

contrary, we do not agree that the primary duty of Field

Supervisors and Area Managers is directing tournaments. These

employees may spend approximately 75 percent of their time

tournament directing, but "the character of the employee's job as

a whole" reveals that their primary duty does, in fact, relate to

ACBL's management or general business operations.

(a)(2).

The duty of these employees goes beyond producing

ACBL-sanctioned bridge tournaments and instead requires them to do

"work directly related to the management or general business

operations of" ACBL.

(a)(2). Field Supervisors

and Area Managers focus on "(1) tournament organization . . .

(2) workforce supervision (3) tournament operations, and (4)

executing the strategic direction of field operations." They are

expected to develop, implement, and manage strategic and long-term

processes and programs, including tournament planning/review and

- 30 - plans to maintain standards of player satisfaction. The processes

and programs directly relate to the running of ACBL and are

significant to ACBL because they are designed to ensure the

long-term integrity of bridge tournaments and satisfaction of

ACBL's consumers. See Hines v. State Room, Inc.,

(1st Cir. 2011) (working to "establish long-term

relationships, to keep clients happy and to maintain the overall

reputation of their employer[]" directly relates to management or

general business operations). And, as the very developers of the

plans, Field Supervisors and Area Managers "exercise discretion

and independent judgment."

(a)(3); see also

§ 541.202(b).

While directing tournaments, Field Supervisors and Area

Managers were also expected to be the "[f]irst point of contact

for issues related to tournament operations and staff" and to

"[e]stablish and maintain effective relationships with tournament

sponsors." These high-level customer service-oriented

responsibilities also directly relate to ACBL's business

operations. See Cash v. Cycle Craft Co., Inc.,

(1st Cir. 2007) (finding that an employee who "focused on improving

customer service" and satisfaction fell within administrative

exemption).

Beyond these long-term goals, Field Supervisors and Area

Managers also had significant supervisory authority over other

- 31 - employees, including writing annual performance reviews and making

hiring/firing decisions. "The supervision of other employees is

clearly a management duty," Donovan v. Burger King Corp.,

(1st Cir. 1982), and it involves the exercise of

discretion and independent judgment because the employment

decisions made by Field Supervisors and Area Managers "affect[]

business operations to a substantial degree," "commit [ACBL] in

matters that have significant financial impact," and "bind [ACBL]

on significant matters."

(b).

Accordingly, all prongs of the administrative exemption

are satisfied with respect to Field Supervisors and Area Managers.

We therefore affirm the district court's grant of summary judgment

in favor of ACBL with respect to the FLSA exemption status of Field

Supervisors and Area Managers.

4. Mentors

This brings us to the final disputed position of Mentors.

Each Mentor reported directly to an Area Manager and was

"responsible for (1) workforce recruitment; (2) workforce

supervision and development; and (3) tournament operations."

Mentors answered Tournament Directors' questions, checked their

hours, and gave performance reviews. In so doing, Mentors "engaged

in something more than routine" tournament directing. Cash,

(quoting Reich, 126 F.3d at 10). Instead, Mentors

helped run ACBL's business by recruiting, supervising, and setting

- 32 - standards for Tournament Directors. See Reich, 126 F.3d at 10

(holding that "representing the company" qualified as

administrative work).

Mentors exercised discretion and independent judgment

with respect to matters of significance because "higher-level

managers generally deferred to" their recommendations "as to

important employment decisions." See

(c)

("[E]mployees can exercise discretion and independent judgment

even if their decisions or recommendations are reviewed at a higher

level."). Accordingly, all prongs of the administrative exemption

are satisfied with respect to Mentors.

VI. Conclusion

For the foregoing reasons, we reverse the district

court's order denying plaintiffs' motion to substitute a party;

affirm the district court's judgment in favor of ACBL on Marcus's

retaliation claim; reverse the district court's judgment with

respect to the FLSA overtime claims of National Tournament

Directors and Associate National Tournament Directors; affirm the

district court's judgment in all other regards; and remand this

case to the district court for any further proceedings consistent

with this opinion. Each party shall bear its own costs on appeal.

- 33 -