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Drexler v. Tel Nexx, Inc.

United States District Court, D. Massachusetts

August 28, 2015


Page 362

          Joshua Drexler, Plaintiff, Pro se, Billerica, MA.

         For TELL NEXX, INC, Tokyo Electron U.S. Holdings, Inc., Tokyo Electron America, Inc., Barry Mayer, Thomas Walsh, Christina Chu, Rezwan Lateef, Five Doe Defendants, Defendants: Danielle Y. Vanderzanden, LEAD ATTORNEY, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Boston, MA; Andrew E. Silvia, Ogletree Deakins Nash Smoak & Stewart, Boston, MA.

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         Joshua Drexler worked for Tel Nexx, Inc., first as an independent contractor and later as a payroll employee, authoring technical manuals that accompanied the electronic goods manufactured by the defendants.

         Mr. Drexler alleges that, in order to complete his assigned tasks, he was required to work excessively long hours for which he was not compensated. He claims that by failing to pay overtime compensation, the defendants violated state and federal labor laws, including the Fair Labor Standards Act (FLSA). He also claims that the defendants breached his employment contract, violated the Massachusetts Aone day of rest@ statute, and misclassified him as an independent contractor.

         The defendants have moved to dismiss all of the claims asserted against them.

         I. BACKGROUND

         In his complaint, Mr. Drexler sets forth the facts as follows:

         A. The Parties

         Tel Nexx[1] is a corporation that designs, builds, and installs machinery and equipment used in the fabrication of computer chips. Tel Nexx sells and ships its products to customers located throughout the United States and the rest of the world. Compl. ¶ ¶ 14, 16. Mr. Drexler worked as a technical writer for Tel Nexx from August 2001 until April 11, 2013, when he was discharged. Compl. ¶ 135, 139, 178, 280.

         Thomas Walsh, Cristina Chu, and Rezwan Lateef are individuals who work for Tel Nexx and who were Mr. Drexler's supervisors there. Mr. Walsh was the CEO. Compl. ¶ 26. Ms. Chu was the Strategic Business Development Director and was Mr. Drexler's immediate supervisor and manager. Compl. ¶ 32. Mr. Lateef was the Vice President and Manager of the Customer Operations Department of Tel Nexx; he supervised Mr. Drexler from August 19, 2011, until Mr. Drexler's discharge in April of 2013. Compl. ¶ ¶ 43-45.

         From May 1, 2012 through April 11, 2013, Barry Mayer was the CEO of the corporate parent of Tel Nexx, Inc. Compl. ¶ 96.

         B. Mr. Drexler's Work for Tel Nexx

         Mr. Drexler possesses a Bachelors Degree in Economics and a Masters Degree in Business Administration. He has no other degrees or credentials, including none in the areas of technical writing, technical illustration, engineering, electronics, robotics, law, or any related fields. Compl. ¶ 114. He did earn approximately two years of general science-related academic course credit nearly 40 years ago. Compl. ¶ 116.

         Prior to working for Tel Nexx, Mr. Drexler's experience included approximately fifteen years of industrial sales as well as wood carving, economic regulation, and experience as a merchant seaman and sheet metal worker. Compl. ¶ 118.

         Mr. Drexler's job at Tel Nexx involved drafting technical manuals. Compl. ¶ 110. Prior to his work at Tel Nexx, he had never been engaged in technical writing. His skills in the field were gained entirely on the job and through experience. Compl.

Page 364

¶ 119. Mr. Drexler analogizes his work as a technical writer to that of a reporter. He gathered information, interviewed relevant subjects, and summarized and organized the information that he learned as clearly, concisely, and logically as possible. Compl. ¶ 121. Mr. Drexler was never given discretion to choose his own scope of work, objectives, or tasks. He was instead assigned specific tasks, although some of these, such as a complete new equipment manual, took many months to deliver. Mr. Drexler's progress was closely and regularly monitored at all times. Compl. ¶ 112. His work was also subjected to rigorous internal review. His drafts were circulated through review committees where they were redlined. He then revised his drafts based on redlines and comments. Compl. ¶ 122. In this role, accuracy was the paramount consideration. Compl. ¶ 129. According to Mr. Drexler, his role was not to create, invent, or innovate. Compl. ¶ 127.

         The manuals drafted by Mr. Drexler were shipped to customers in the same sets of shipping crates that carried Tel Nexx's manufactured products. The manuals were assigned equipment numbers much the same as other Tel Nexx goods such as electronics, computers, or other parts. Compl. ¶ 143. The manuals are referenced by name and part number, and are included in the bills of materials included in the shipment to Tel Nexx's customers. Compl. ¶ ¶ 144, 145.

         Between August 2001 and June 30, 2003, Mr. Drexler was employed episodically by Tel Nexx as a consultant or independent contractor without receiving employee benefits or standardized deductions. Compl. ¶ 135. This was consistent with the treatment of all other technical writers who were also classified as independent contractors and paid on that basis. Compl. ¶ 133. On or around July 1, 2003, Mr. Drexler ceased working for any other employer and devoted his time exclusively to Tel Nexx. From that time until December 31, 2005, Mr. Drexler performed work for Tel Nexx daily at a desk in the employer's headquarters and derived 100% of his income from Tel Nexx. Compl. ¶ ¶ 139, 140.

         From July 1, 2003, through December 2005, Mr. Drexler continued to be classified as an independent contractor; he was paid as such using an IRS Form 1099 and was not provided with health or other benefits. Compl. ¶ ¶ 152, 153.

         C. Contract Discussions Between Tel Nexx and Mr. Drexler

         On November 18, 2005, Tel Nexx's CEO at the time, Dr. Richard Post, sent Mr. Drexler an email entitled " Your Employment." The email stated in its entirety

Josh, you are a consultant, but you are now working so much for Nexx that the state may consider you an employee. I would like to discuss the situation with you to decide if you should convert or if you do enough work for others that you would be viewed by the state as a consultant.

Compl. ¶ 155. At the time Dr. Post wrote this email, he, Mr. Lateef and other Tel Nexx employees were aware that plaintiff was working exclusively for Tel Nexx. Mr. Post had observed Mr. Drexler's daily attendance at his desk and could not have been unaware that Mr. Drexler worked full-time for Tel Nexx. Compl. ¶ 157. Dr. Post's email spurred discussions between Tel Nexx and Mr. Drexler aimed at changing Mr. Drexler's status from a consultant to a full time Tel Nexx employee. Compl. ¶ 161. As part of those discussions, Dr. Post offered Mr. Drexler a one- time payment of $1,000 for " all your trouble." When Mr. Drexler asked what trouble Dr. Post was referring to, Dr. Post responded " you know, working all that time without health

Page 365

insurance, that sort of thing." Compl. ¶ 162.

         The employment discussions were memorialized in a spreadsheet prepared by Dr. Post entitled " Comp for Josh.xls." Compl. ¶ 163. Among the terms included in the spreadsheet were " Hours Worked Per Day On Average . . . 8; " " Available Working Days Comparable to Nexx . . . 239; " " Bonus Percent Eligibility . . . 10%; " and " Likelihood of Bonus in 2006 . . . 100%." Compl. ¶ 165; Compl. Exs. 2-3. The 239 working days were arrived at based upon 5 work days per week for 52 weeks, adjusted for vacation days and holidays. Compl. ¶ 165.

         Tel Nexx sent an offer letter to Mr. Drexler on December 8, 2005, which Mr. Drexler accepted. Although consistent with the spreadsheet " Comp for Josh.xls," the offer letter presents only a subset of the terms referred to in the spreadsheet. Compl. ¶ 171. The December 8, 2005, offer letter explained that Tel Nexx was offering Mr. Drexler a position of Senior Technical Writer.[2] The letter continued, " the starting bi-weekly salary for this position is $2,961.54, which is equivalent to $77,000.00 annually" and that Mr. Drexler would be " eligible for a bonus for up to 10% of his base salary based on his performance and company profit" subject to the Board of Directors' approval. Mr. Drexler would also be entitled to participate in a benefits package described in documents attached to the offer letter. He was in fact paid bonuses dependent on the quantity and quality of his work from time to time during the period January 1, 2006, through his termination. Compl. ¶ 177. The letter said nothing about average hours worked or number of working days per year.

         In addition to producing technical manuals, Mr. Drexler engaged in other occasional duties for Tel Nexx, including production of preventative maintenance procedures, best known method procedures, and other similar procedures and explanations for Tel Nexx's products. Compl. ¶ 192. He also occasionally conducted classroom equipment training for Tel Nexx's customers and produced graphic materials for inclusion in Tel Nexx's marketing materials and presentations. Compl. ¶ 193-94.

         Mr. Drexler maintained a personal work journal beginning intermittently in February 2007 and becoming regular and daily in July of that year. Compl. ¶ 195. In his journal, Mr. Drexler listed the starting and ending time of his work day and a summary of the work performed for Tel Nexx on each day. Compl. ¶ 196. This journal chronicled the fact that Mr. Drexler regularly worked late into the evenings and on weekends. Compl. ¶ ¶ 204-08. The journal also reflects the corrosive effect that these long hours coupled with the sometimes contemptuous attitude of Mr. Drexler's supervisors had on Mr. Drexler. Compl. ¶ 206. The deadlines set by his supervisors were absolute and inflexible and necessitated that Mr. Drexler work large numbers of overtime hours both on nights and weekends. Compl. ¶ 206. In the years 2010 through 2013, Mr. Drexler worked on numerous holidays including on Christmas Day, New Years Day, Memorial Day, the 4th of July, Labor Day, and Thanksgiving. Compl. ¶ 211.

         Mr. Drexler worked averages of 63.5, 65, 74, and 69.5 hours per week in 2010, 2011, 2012, and 2013 respectively. During those years, Mr. Drexler worked an average of

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6.4 days per week. Compl. ¶ ¶ 167, 168. Based upon records that he kept of his time, he has computed that he worked 3,859 hours in excess of 40 hours per week in the period from October 24, 2010, until his discharge on April 11, 2013. Compl. ¶ 317.

         Although he was paid bonuses, Mr. Drexler was not paid any additional compensation for the sizable amounts of time above 40 hours per week that he worked for Tel Nexx. Compl. ¶ ¶ 178, 181, 191.

         D. Reprimands and Events Leading to Mr. Drexler's Termination

         On June 30, 2012, in a disciplinary notice threatening Mr. Drexler with termination, Mr. Drexler's supervisor, Director Chu, wrote:

Josh has had difficulties since he started working for me in September 2011 with setting priorities for his daily tasks, meeting deadlines and managing his workload. At first, I believed that this problem may have been due to the fact that his role broadened to include the production of many collateral materials beyond manuals and that after a few months of transition we would surpass the inefficiency, but this has not occurred.

Compl. ¶ 214. On February 24, 2012, Mr. Drexler was reprimanded by Ms. Chu for his performance of discretionary weekend work which Mr. Drexler believed to be required in Tel Nexx's best interest. Ms. Chu threatened Mr. Drexler with immediate termination, disciplined him and placed him on a performance improvement plan. Compl. ¶ 222. Over the next fourteen months, Mr. Drexler was reprimanded by Ms. Chu three more times at roughly four to five month intervals. These reprimands included one instance on April 9, 2013, when Mr. Drexler requested an instruction from Ms. Chu on whether or not to sign an invoice to pay a vendor. Compl. ¶ 223. This incident stemmed in part from an earlier instance when Mr. Drexler had been asked to sign an invoice, but had been informed by Tel Nexx's CFO that he lacked proper authority to do so. Compl. ¶ ¶ 224-26.

         On November 13, 2012, Mr. Drexler met with Mr. Lateef. At the time of that meeting, Mr. Drexler had worked 173 days in a row. Compl. ¶ ¶ 228-29. He expressed his frustration at being pressured to take on additional tasks by Ms. Chu including tasks for which he had not been hired and which he felt fell outside of his job role. During the meeting, Mr. Drexler suggested that Tel Nexx either acknowledge that Mr. Drexler had taken on an expanded role and relieve him of some of his constantly expanding obligations, or else Mr. Drexler should be permitted to perform only the technical writing and illustrating duties for which he had been hired and which he understood to underlay his contract of employment. Compl. ¶ 229. Mr. Drexler expressed these same views on April 9, 2013, in a meeting with Mr. Lateef and Ms. Chu. Compl. ¶ 230.

         During these meetings, Mr. Lateef expressed his disappointment that Mr. Drexler declined to perform new managerial functions in addition to his previous regular duties. Compl. ¶ 231. On November 19, 2012, Mr. Drexler provided a letter to Mr. Lateef. In that letter, Mr. Drexler expressed his concern with his classification as an exempt worker under provisions of the FLSA. Compl. ¶ ¶ 233-34. In his letter, Mr. Drexler expressed his belief that he was Amisclassified as exempt labor under the provisions@ of the FLSA and related regulations and requested that he be reclassified as a non-exempt laborer " subject to payment of overtime for all work beyond 40 hours in each workweek and [he] should be paid for all of [his] hours of work." Compl. ¶ 236.

Page 367

          On November 21, 2012, two days after Mr. Drexler submitted his letter, he attended a previously scheduled semi-annual interview with his supervisor, Ms. Chu, who was accompanied at the meeting by a representative of Tel Nexx's Corporate Benefits and Compensation department, Marie Graichen. Compl. ¶ 240. During this meeting, Mr. Drexler asked whether there would be any response to his November 21, 2012, letter. Ms. Graichen told Mr. Drexler that she had considered the matter and determined that Mr. Drexler was correctly classified as an exempt worker. Compl. ¶ 241. During that same meeting, Mr. Drexler stated that he was unable to meet the deadlines imposed on him by working only normal work hours and asked for a definition of normal work hours, a request which was turned aside. That same evening, Mr. Drexler emailed Ms. Graichen asking for a classification of the term " normal working hours." Mr. Drexler never received a reply to this email. Compl. ¶ ¶ 241-243. A sign posted on the outside of Tel Nexx's headquarter's building, near to the rear employee entrance reads " Normal Working Hours 8:00 AM - 12 Noon" and " 12:30 PM to 5:30 PM." Compl. ¶ 244.

         On December 17, 2012, Mr. Drexler attended a teleconference with representatives of Corporate Benefits and Human Resources at Tel Nexx. Compl. ¶ 259. During that meeting, a Corporate Benefits Manager, Mr. Gibson, told Mr. Drexler that he had " determined that [Drexler] was properly classified as exempt" and that the topic was " not open for discussion or debate." Compl. ¶ 260. Mr. Gibson also stated that there would be no retaliation against Mr. Drexler for filing his letter of complaint. Mr. Gibson provided no explanation to Mr. Drexler for the basis for his determination that Mr. Drexler was an exempt employee, nor did he explain what exemption category Mr. Drexler fell within. Mr. Gibson did not ask Mr. Drexler why he (Mr. Drexler) believed there may have been violations of federal or state wage or fair labor standards. During that meeting, Mr. Gibson also did not address a waiver of privacy rights form that Mr. Drexler had been asked, but refused, to sign up until that date. Compl. ¶ ¶ 262-67.

         From approximately December 17, 2012, onwards, Ms. Chu delegated management of Mr. Drexler to Mr. Jeff Stoddard, a manager in the Technical Writing group. Compl. ¶ 246. Under Mr. Stoddard, the management of Mr. Drexler's work became rigidly prescriptive. Any discretion or independent judgment was discouraged and subject to reprimand. Compl. ¶ 247. On February 12, 2013, acting on the basis of one of Mr. Stoddard's reprimands of Mr. Drexler, Ms. Chu issued a disciplinary warning to Mr. Drexler. Compl. ¶ 249. The source of Mr. Stoddard's reprimand was a minor revision made by Mr. Drexler to a proposed cover for a new equipment manual that was submitted to Mr. Stoddard for his approval. Mr. Drexler had undertaken this change based upon his own initiative and exercising his independent judgment. Compl. ¶ 250.

         On April 11, 2013 -- two days after being reprimanded by Mr. Chu for his inquiry about his authority to sign an invoice -- Mr. Drexler was terminated in a meeting attended by Ms. Chu, Mr. Lateef and Ms. Graichen. Ms. Graichen stated that Mr. Drexler had been fired by Ms. Chu. Compl. ¶ 280. At the termination meeting, Mr. Drexler demanded that a litigation hold be placed on all files and electronically stored information about him held within defendants' files, including computer files and email stored dating back to 2002. Compl. ¶ 284. Mr. Drexler also demanded payment of his back wages and fringe benefits for the period when he believed that he should have been classified as a full

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time employee, but instead was classified as an independent contractor. Compl. ¶ 286.

         Mr. Drexler did not receive any unpaid back wages. Compl. ¶ 286. On April 15, 2013, Mr. Drexler wrote to Thomas Mungovan, Tel Nexx's CFO, inquiring about the held back payment of stock options that Mr. Drexler had owned but were liquidated as part of a corporate merger and acquisition that occurred in May 2012. Compl. ¶ 287. Mr. Drexler believed that the final 10% payment of his stock options was to be held back for one year. The scheduled due date for his final hold back payment was May 1, 2013, only 21 days after the date of Mr. Drexler's termination. Compl. ¶ 288. On May 6, 2013, Mr. Drexler received a letter from Tel Nexx's Human Resources Vice President Vicky Lee in ...

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