United States District Court, D. Massachusetts
Drexler, Plaintiff, Pro se, Billerica, MA.
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.
MEMORANDUM AND ORDER
P. WOODLOCK, UNITED STATES DISTRICT JUDGE.
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.
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
defendants have moved to dismiss all of the claims asserted
complaint, Mr. Drexler sets forth the facts as follows:
Nexx 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.
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.
May 1, 2012 through April 11, 2013, Barry Mayer was the CEO
of the corporate parent of Tel Nexx, Inc. Compl. ¶ 96.
Mr. Drexler's Work for Tel Nexx
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.
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.
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
¶ 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.
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.
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.
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.
Contract Discussions Between Tel Nexx and Mr.
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
insurance, that sort of thing." Compl. ¶ 162.
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.
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. 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.
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.
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.
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
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.
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.
Reprimands and Events Leading to Mr. Drexler's
30, 2012, in a disciplinary notice threatening Mr. Drexler
with termination, Mr. Drexler's supervisor, Director Chu,
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.
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.
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.
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.
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.
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.
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
time employee, but instead was classified as an independent
contractor. Compl. ¶ 286.
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 ...