United States District Court, E.D. Pennsylvania
RICHARD R. KOTOWSKI, Plaintiff,
JGM FABRICATORS & ERECTORS, INC., et al., Defendants.
TIMOTHY R. RICE, U.S. MAGISTRATE JUDGE
determine whether Plaintiff Richard Kotowski, a high-ranking
construction company executive earning $150, 000 annually,
plus bonus, is entitled to overtime wages because he was
required to perform manual labor as his primary job duty. I
find by a preponderance of the evidence that Kotowski worked
primarily, and almost exclusively, in an executive capacity
that is exempt from overtime compensation.
factual findings, as enumerated below, see
Fed.R.Civ.P. 52(a), are informed by my credibility findings
of several key witnesses. I have measured their testimony
against other evidence and documents and assessed their
demeanor, bias, and candor while testifying. I discredit
Kotowski's testimony as embellished and exaggerated based
upon his demeanor. I also discredit the testimony of Michael
Weyant based upon his apparent bias and evidence of his poor
reputation for truthfulness. See Fed.R.Evid. 608(a);
see also N.T. 3/13/2019 at 40-42; N.T. 3/14/2019 at
credit the testimony of Brian Sell and Kim Gunther, both of
whom conceded information helpful to Kotowski, but also
largely contradicted Kotowski. I also credit the testimony of
Joseph Messner, Jr., who corroborated the testimony of Sell
and Gunther. I acknowledge the potential bias of Sell,
Gunther, and Messner, Jr., based upon their status as
employees of Defendant JGM Fabricators & Erectors, Inc.
(“JGM”). Nevertheless, their testimony is
corroborated by documents and by the inherent nature of the
work performed in the steel construction industry. For
example, the type of complex construction involved here could
not have been timely completed unless Kotowski functioned in
a leadership role, as contemplated by his terms of
employment. See Pl. Ex. (“P”) 1.
Although Kotowski and others, including Messner, Jr.,
occasionally were required to assist with manual labor or
emergency tasks, such instances were the exception to
Kotowski's primary role as a well-compensated and
essential executive with managerial responsibilities.
June 10, 2015, JGM offered Kotowski the position of director
of field construction services, P1; N.T. 3/12/2019 at 147;
N.T. 3/13/2019 at 46, at an annual salary of $150, 000, plus
potential bonus of up to 20% of his salary, P1.
Kotowski accepted, and worked at JGM from June 2015 until
March 2018. Id.; N.T. 3/11/19 at 47. He reported
directly to Joseph Messner, Jr., president and chief
executive officer (“CEO”) of JGM. P1; N.T.
3/13/2019 at 165; N.T. 3/14/2019 at 7; Stip. ¶¶
Kotowski's offer letter stated that his responsibilities
included: “Business development, estimating,
Safety/training and management of all field operations and
employees. Assist in the strategic planning and direction for
the growth of the company.” P1 (errors in original).
and Messner, Jr. hired Kotowski with the expectation that
Kotowski would not perform manual labor. N.T. 3/14/19 at
12-13. Likewise, Kotowski did not expect or desire to perform
manual labor. Kotowski believed he was hired to oversee the
field construction services division and perform the duties
outlined in his offer letter. N.T. 3/11/19 at 46-47.
provides industrial construction and steel fabrication
services. Stip. ¶ 4; N.T. 3/13/2019 at 124. The field
construction services division generally provides labor for
JGM projects. N.T. 3/13/2019 at 11-12.
typically uses several manual laborers, who are the primary
source of direct work on a project; one or more forepersons,
who oversee a crew of laborers and assist in the direct work;
and one or more superintendents, who coordinate things as
scheduling and budget, oversee crews, and sometimes assist in
the direct work. Id. at 18; N.T. 3/11/2019 at 78;
N.T. 3/12/2019 at 96. Staffing varies depending on the size
of the job. N.T. 3/13/2019 at 11-12. JGM directly employs
some laborers on a permanent basis and obtains others on a
temporary basis from staffing companies such as Tradesmen
International. Id. at 122; N.T. 3/11/2019 at 77,
director of field construction services, Kotowski typically
oversaw each entire project, which included directing the
work of up to 35 employees. N.T. 3/11/2019 at 197; N.T.
3/12/2019 at 17, 133; N.T. 3/13/2019 at 138; Stip. ¶ 8.
During Kotowski's tenure with JGM, Joe Messner, Jr.
earned an annual salary of $150, 000, N.T. 3/18/2019 at 10,
and J.P. Messner, director of estimating, made $110, 000.
N.T. 3/12/2019 at 156. Superintendents earned an annual
salary of around $110, 000 without overtime, id. at
57, but currently, JGM superintendents are hourly employees,
making $35 per hour plus overtime, N.T. 3/13/2019 at 47, 145.
In 2018, JGM superintendent Brian Sell earned $103, 000, or
approximately $1, 980 per week, including approximately ten
hours per week of overtime pay. Id. at 47-48;
cf. N.T. 3/14/2019 at 56-57 (Sell's 2016 hours).
Tenure with JGM
While employed with JGM, Kotowski earned the $150, 000 salary
reflected in his offer letter, or approximately $2, 885.00
per week, with no overtime pay. N.T. 3/11/2019 at 47; Stip.
¶ 7. He also was provided a vehicle and phone. N.T.
3/11/2019 at 158.
Kotowski provided Messner, Jr. with his contact list, which
consisted of approximately 1, 100 contacts accumulated over
his time employed with other companies. Id. at 126.
Messner, Jr. told Kotowski that JGM employees would
“cold call” the contacts and leverage
Kotowski's relationships to obtain business for JGM.
Kotowski also made several phone calls to potential clients
to try to secure business. Id. at 127-29. Kotowski
helped JGM obtain work for the company Clorox through one of
these calls. Id. at 125; N.T. 3/14/2019 at 84.
Messner, Jr. did not direct Kotowski to call Clorox; rather,
Kotowski did this on his own following a conversation with
Messner, Jr. about contacts to target as potential clients.
N.T. 3/11/2019 at 124.
Kotowski went to lunch with contacts at Adjunct Technology
and Agilent, but those meetings did not result in JGM
business. Id. at 127-28. Similarly, Kotowski had
meetings at Croda, Pittsburgh Tank, and Formosa, none of
which resulted in JGM business. Id.; N.T. 3/14/2019
at 82. Kotowski also called a contact at the Port of
Wilmington twice, and made a site visit once, but these
efforts similarly did not result in JGM business. N.T.
3/11/2019 at 129.
Kotowski undertook an initiative to hire additional skilled
workers for JGM, including ordering magnets for
employees' trucks that advertised JGM was hiring.
Id. at 192. He also provided JGM with job
descriptions from his previous company so that JGM could use
them in posting available positions. N.T. 3/14/2019 at 19.
Kotowski had a desk at JGM's headquarters in Coatesville,
Pennsylvania, where he completed administrative tasks. N.T.
3/11/2019 at 224; N.T. 3/13/2019 at 129-30. The amount of
time Kotowski spent at his desk varied, but he generally
spent between one and three days per week there from 6 a.m.
until 2:30 p.m., or on average, eight hours per
N.T. 3/13/2019 at 131-32; see also N.T. 3/14/2019 at
89 (Kotowski spent 30-40% of his time in the office).
Kotowski routinely participated in project kickoff meetings
at JGM headquarters. N.T. 3/11/2019 at 185-86; N.T. 3/13/2019
at 89-91. At these meetings, JGM personnel would discuss an
upcoming project and its estimate, including the schedule
according to which the work was to be completed and the
manpower, labor, tools, and equipment built into the
estimate. N.T. 3/13/2019 at 89-91. These meetings varied in
length, but typically lasted about an hour. Id. at
Kotowski also attended occasional company meetings and
monthly safety meetings held at JGM headquarters. N.T.
3/11/2019 at 85-86.
Kotowski was responsible for certain trainings, including CPR
certification and MSHA (Miner Safety) training, that he completed
at the JGM office. Id. at 86, 89-90; P5 at JGM80-82.
Gunther, a JGM project management employee, served as a
coordinator for field construction services and reported
directly to Kotowski. N.T. 3/13/2019 at 83-85, 93, 119.
Gunther assisted Kotowski with ordering equipment, machinery,
job trailers, and safety equipment for projects. Id.
at 90, 92; N.T. 3/12/2019 at 151; N.T. 3/18/2019 at 29.
Kotowski's completion of those tasks was essential to
JGM's success. N.T. 3/18/2019 at 30-31 (Kotowski's
successor testifying those tasks were essential); N.T.
3/14/2019 at 67.
Gunther also was required to submit vendor invoices to
Kotowski and could not process the invoices for payment
without Kotowski's approval. N.T. 3/13/2019 at 93-94. No.
further approval was necessary for those invoices; Kotowski
had final authority. Id. at 94.
Kotowski was responsible for approving paid time off
(“PTO”) requests for all field
employees. Id. at 97; N.T. 3/11/2019 at
170-71; e.g., Def. Ex. (“D”) 5 at 1-2.
Kotowski also had authority to deny PTO. N.T. 3/11/2019 at
174; e.g., D5 at 3-4.
Kotowski conducted performance reviews for all
superintendents and forepersons, as well as many laborers,
although superintendents also sometimes performed laborer
reviews. N.T. 3/13/2019 at 113.
least initially, Kotowski maintained master lists of
JGM's equipment resources and personnel. D8, Att. 1 at
2-3; N.T. 3/14/2019 at 27-28. The master manpower list
depicted categories of JGM employees, such as
office-administration, sales/estimating, field, and shop. D8,
Att. 1 at 3. Kotowski listed himself in the
office/administration category, rather than the field
category. Id.; N.T. 3/18/2019 at 28-29.
Kotowski also implemented a weekly manpower schedule, which
depicted all ongoing JGM jobs and their assigned workers,
along with employees in other divisions of the company, such
as office employees. D8, Att. 1 at 4 (manpower
schedule”); N.T. 3/13/2019 at 89-90. Kotowski listed
himself under the category “office” and not under
any of the active projects. D8, Att. 1 at 4. Kotowski also
implemented a monthly labor master plan, which depicted
JGM's active and upcoming projects in detail with
corresponding dates, completion percentages, and estimated
remaining manpower hours. D8, Att. 2 at 5 (labor master
plan); N.T. 3/18/2019 at 46-47. Kotowski stopped preparing
these documents in late 2015. N.T. 3/18/2019 at 47.
Kotowski directed Gunther to locate employees when he wanted
to hire both skilled JGM employees and laborers from agencies
such as Tradesmen International. Id. at 29; N.T.
3/13/2019 at 99. When they needed to hire direct JGM
employees, Gunther provided resumes to Kotowski, who would
decide whether to request an interview. N.T. 3/13/2019 at
100; N.T. 3/11/2019 at 194-95, D7 (emails from Kotowski
responding “no” or “looks good” in
response to candidates provided by Gunther). Gunther then
coordinated interviews and Kotowski, or another JGM executive
in his absence, conducted the interviews. N.T. 3/13/2019 at
101-02; N.T. 3/11/2019 at 194-95; D7. Gunther also
coordinated hiring additional employees from Tradesmen at
Kotowski's direction. N.T. 3/13/2019 at 104-05.
Although Messner, Jr. could overrule his decisions, Kotowski
generally had independent hiring authority. Id. at
101-02; N.T. 3/12/2019 at 17; see also N.T.
3/13/2019 at 10-11 (Kotowski offered JGM superintendent Brian
Sell a job immediately after interview). Kotowski also would
direct Gunther when he wanted to extend an offer to an
employee and confirm the terms of those offers, including pay
rate. N.T. 3/13/2019 at 102-03.
Kotowski, as well as project superintendents and forepersons,
held authority to terminate Tradesmen laborers, and Kotowski
could also terminate JGM employees. Id. at 107- 08;
N.T. 3/11/2019 at 134, 202; N.T. 3/12/2019 at 17.
Kotowski generally had authority to grant raises, often
arising out of performance reviews. N.T. 3/12/2019 at 17;
N.T. 3/13/2019 at 23-24, 36, 113. He also granted raises in
response to employee requests when he thought it was
appropriate. See, e.g., N.T. 3/13/2019 at 36, 113.
Although Messner, Jr. objected to granting certain
individuals raises in rare ...