UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ERIN BENTON, : : Plaintiff, : Civil Action No.: 14-1073 (RC) : v. : Re Document Nos.: 31, 32 : LABORERS’ JOINT TRAINING FUND, : : Defendant. : MEMORANDUM OPINION
D ENYING D EFENDANT ’ S M OTION FOR S UMMARY J UDGMENT AND D ENYING P LAINTIFF ’ S M OTION FOR S UMMARY J UDGMENT
I. INTRODUCTION Plaintiff Erin Benton brought thi s action alleging that her for mer employer, Defendant Laborers’ Joint Training Fund ( “the Fund”), failed to pay her o vertime wages in violation of the Fair Labor Standards Act (“FLSA ”) and the D.C. Minimum Wage Rev ision Act (“DCMWRA”). The Court previously granted s ummary judgment to the Fund on Ms . Benton’s FLSA overtime claim (as well as her related r etaliation claim), after finding that Ms. Benton failed to establish that the Fund is a covered e nterprise under the FLSA. See generally Benton v. Laborers’ Joint Training Fund , 121 F. Supp. 3d 41 (D.D.C. 2015). The Court permitted Ms. Be nton “to seek leave to amend her complaint to i nclude a claim of individual c overage based on interstate travel,” however, id. at 54, and the Court granted Ms. B enton’s subsequent motion to amend to the extent it sought leave to add a llegations of individual FLS A coverage, see generally Benton v. Laborers’ Joint Training Fund , No. 14-1073, 2015 WL 7737304 ( D.D.C. Dec. 1, 2015). The parties have again filed cro ss-motions for summary judgment . The Fund moves for summary judgment on the FLSA clai m, arguing that Ms. Benton fai ls to establish individual2 FLSA coverage and that, in any eve nt, she is exempt from the FL SA’s overtime provisions because she worked in a bona fide administrative position. See Def.’s Mot. Summ. J., ECF No. 31; Def.’s Mem. Law Supp. Def.’s Mot. Summ. J. at 12–21, ECF No . 31-1 (“Def.’s Mem. Supp. Mot. Summ. J.”). Because it contends that summary judgment sho uld be entered in its favor on the FLSA claims, the Fund argue s that the Court should decline to exercise supplemental jurisdiction over the DCMWRA cla im or otherwise grant summary j udgment in its favor because the same administrative exemption applies. See Def.’s Mem. Supp. Mot. Summ. J. at 21–22. For her part, Ms. Benton seeks summary judgment on both claims, asserting that she is owed $6,194.34 in unpaid wages for hours th at she worked between Jun e 25, 2011, and December 31, 2012, and that she should be awarded an equal amount in liquida ted damages under the FLSA and DCMWRA. See Pl.’s Mot. Summ. J. at 18, ECF No. 32; see generally Pl.’s Mem. Supp. Mot. Summ. J., ECF No. 32-1. Upon c onsideration of the parties ’ motions, the memoranda in support thereof and opposition thereto, and the summary judgmen t record, the Court finds that genuine issues of fact exist regar ding Ms. Benton’s coverage un der the FLSA and, if she is covered, whether she is exempt f rom the Act’s overtime requirem ent because of her position. Accordingly, the Court will deny both parties’ motions.

II. FACTUAL BACKGROUND The Fund is a non-profit 501(c)(5) organization “designed to pr ovide training to members of two labor unions in the Washi ngton, D.C. Metropolitan Area: Laborers’ International Union of North America (‘LIUNA’) Lo cal 657 and Local 11.” Def.’s Stmt. Material Facts Not in Genuine Dispute ¶¶ 1, 4, ECF No. 31 -2 (“Def.’s SOF”). The Fund provides labor training on various subjects concerning the c onstruction industry, specific ally, see id. ¶ 8, and “the purpose of the Training Fund is to provide unique training to construct ion laborers who are members of3 LIUNA to help them qualify for w ork and to get better work,” see Dep. Erin Benton at 18:13–18, ECF No. 31-4 (“Benton Dep.”). T he organization is a third-party recipient of contributions made pursuant to collective bargaini ng agreements entered into betwe en the union and employers, and additional funding comes from fe deral, local, and union grants. Def.’s SOF ¶¶ 5, 6. Ms. Benton was a full-time, sal aried employee of the Fund from January 1, 2003, until her termination on May 16, 2014. Pl. ’s Resp. Def.’s Interrog. No. 7, ECF No. 32-5. At times, and beginning after Shannon Jones became director of the Fund i n August 2007, Ms. Benton traveled to the Fund’s traini ng location in Alexandria, Virgini a from the Fund’s offices in Washington, D.C. to perform some of her job duties. Benton Dep . at 114:8–12, 116:7–11, 117:17–118:2; see Decl. Shannon Jones ¶ 2, ECF No. 31-11 (Jones Decl.). Ms. Bent on testified that how often she traveled there “depended on the schedule,” b ut that she was at the Virginia site on some occasions “twice a week,” and on others “four days a week.” Benton Dep. at 116:9–11. The Fund “admits that [Ms . Benton] did perform” whatit characterizes as “very limited work at the Fund’s satel lite office in Virginia on occa sion,” but the Fund contends that it lacks sufficient information to de termine how often Ms. Benton traveled to that office or whether she traveled from the Fund’s Wa shington office or Ms. Benton’s home in Maryland. Def.’s Mem. Supp. Mot. Summ. J. at 13, E CF No. 31-1. Indeed, an e-mai l in April 2013 from Justin Meighan, the chairman of the F und’s Board of Trustees, sought “ [c]onfirmation that [Ms. Benton] will work only out of [th e] Local 657 office,” and requ ested that her cell phone be cancelled since she would be worki ng “at a single site.” Def.’ s Ex. 16, ECF No. 31-18. These requests suggest that Ms. Bent on did in fact work at other loca tions on occasion. On a number of occasions, Ms. Benton also traveled to and worke d at the Virginia training center during Saturda y training sessions put on by the Fund. See Progress Report, ECF4 No. 31-32. At the Saturday trainin gs, she processed classes an d issued certificates and state licenses to attendees. 1 Benton Dep. at 267:13–15. She es timates that, as a result, s he worked 595.5 hours of overtime from 2008 through 2012. Pl.’s Suppl. R esp. Interrog. No. 15, ECF No. 32-12. The Fund disputes the numbe r of hours and instances Ms. Benton claims that she worked on Saturdays, but does not otherwis e dispute that Ms. Benton ma de some Saturday trips to the Virginia site. See Def.’s Resp. Pl.’s Stmt. Materia l Facts Not in Dispute ¶ 16, EC F No. 33-1. Ms. Benton testified that her travel to Virginia ceased around April 26, 2013. See Benton Dep. at 261:5–7. The parties dispute whether Ms. Benton had an official job titl e, but she was at times referred to as an “Administrati ve Assistant,” Def.’s Ex. 12 at 6, ECF No. 31-14, and at other times referred to as the “Offi ce Manager,” Def.’s Ex. 13, ECF N o. 31-15, or the “Assistant to [the] Director,” Def.’s E x. 15, ECF No. 31-17. When she was fi rst hired, Ms. Benton’s responsibilities included clerical duties, filing reports, impl ementing a database, assisting the director of the Fund, supporting th e Fund’s instructors, and pr oviding customer service to the Fund’s members. Benton Dep. at 22:7–11. By 2006, however, Ms. Benton had gained experience at the Fund and the di rector during her initial peri od of employment, Kelly Lapping, had been replaced by an individual who was less familiar with the role, so Ms. Benton took on

1 As explained in more detail below, see infra note 4, the Court construes this evidence to refer to weekday trips to the Fund site in Virginia and separat e, Saturday trips to that site. The nature of Ms. Benton’s work at the Virginia site on non-Saturdays is not made clear in the record. Ms. Benton’s statement of facts claims that she travel ed to the Virginia site to “process classes and issue certifications and state licenses,” but the p arts of her deposition she cites discuss those responsibiliti es only in relation to her Saturday trips to the Virginia site. Compare Pl.’s Mem. Supp. Mot. Summ. J. at 4 ¶ 15, with Benton Dep. at 267:11–17. Similarly, one of Ms. Benton’s co-workers discusse s her activities at the Virgini a site but only discusses accompanying her there on Saturdays. See Deposition of David Mej ia at 26:2–21, ECF No. 31-7 (“Mejia Dep.”) (discussing Saturday work at the Virginia traini ng center and Ms. Benton’s responsibilities at thos e Saturday sessions).5 greater responsibilit ies in assisting the director, communicati ng with the Fund’s third-party administrator about the Fund’s bills, and obtaining grants for the Fund. Id. at 26:2–36:12; 52:13–56:18. Among other things, Ms . Benton also reconciled th e petty cash book, processed checks for stipends, ordered offi ce supplies and meals for trai nings, assisted in creating the Fund’s training schedules, solicit ed bids for service providers and rental equipment, signed a $35,220 lease for a copier, and kept the office running while the director was out. Id. at 41:16–48:8, 58:18–59:13, 127:17–128:8, 137:19–144:19. On December 31, 2012, the Fund termina ted its relationship withthe third-party administrator that had previousl y handled tasks like administer ing payroll, benefits, and cutting checks for vendors. Dep. Justi n Meighan at 30:17–31:17, ECF No . 31-6 (“Meighan Dep.”). The decision to administer the Fund i nternally was made in an effort to reduce the organization’s expenses. Benton Dep. at 61:11–63: 12. As a result, Mary McNel is began handling the work related to administeri ng the Fund as of January 1, 2013. Id. at 62:2–63:12, 227:5–10. Ms. McNelis “essentially took over a lot of [Ms. Ben ton’s] responsi bilities.” Id. at 227:16–18; see also Decl. Mary McNelis ¶ 5, ECF No. 31-13. During her employment at the F und, Ms. Benton’s annual salary r anged from $50,404 to $54,512. Pl.’s Suppl. Resp. Interrog. No. 15, ECF No. 32-12. She was not paid time-and-half for hours worked on Saturdays, reg ardless of whe ther it caused her to work over forty hours in a given week. Id. Ms. Benton was terminate d on May 16, 2014, and she initiated th is action on June 25, 2014, alleging that she is entitle d to unpaid overtime wages fo r hours worked between February 9, 2008 and April 13, 2013. Compl. ¶¶ 12, 40, ECF No. 1. Coun ts I and II of her complaint alleged violations of the overtim e provisions of the FLSA and the DCMWRA, respectively, id.6 ¶¶ 36–48, while Count III of Ms. Bent on’s complaint alleged tha t she was unlawfully terminated “in retaliation for complaini ng and asserting her rights to unp aid overtime wages under the FLSA,” id. ¶¶ 18–24, 49–56. In a prior Memora ndum Opinion, the Court gra nted summary judgment to the Fund on Ms. Benton’s FLSA overtime claim (as we ll as her related retaliation claim), after finding that Ms. B enton failed to establish that the Fund is a covered enterprise under the FLSA. See generally Benton , 121 F. Supp. 3d 41. In her Second Amended Complaint, Ms. Benton now alleges that she is covered by the FLSA’s indivi dual coverage because she “regularly and customarily crosse d state lines” in the “course of performing her job duties.” 2d Am. Compl. ¶ 3, ECF No. 27. She again seeks overtime compensat ion and liquidated damages under the FLSA and the DCMWRA for hours she worked while employ ed at the Fund. 2 Id. ¶¶ 28–40.

III. LEGAL STANDARD Summary judgment is appropriate “ if the movant shows that there is no genuine dispute as to any material fact and [thus ] the movant is entitled to ju dgment as a matter of law.” Fed. R.

2 Ms. Benton’s Second Amended Compl aint alleges that she is owed overtime for the entire period between F ebruary 9, 2008 and April 13, 2013, and alleges that equitable tolling applies to allow her to assert claims for this entire period. See 2d Am. Compl. ¶ 21; see also id. ¶¶ 18–20. Yet, Ms. Benton’s motion for summary judgment acknow ledges that a two year statute of limitations generally applies to FLSA claims, exceptif an employer’s violation is willful, and a three year statute of limitations applies under the DCMWRA, see Pl.’s Mem. Supp. Mot. Summ. J. at 17 & n.8; see also 29 U.S.C. § 255(a); D.C. Code § 32-1013 (1993); D.C. Code § 32-1308(c)(1) (codifying D.C. sta tute of limitations after 20 15 amendment, which maintains a three year statute of limitati ons). Her motion also seeks dama ges only for overtime worked since June 25, 2011—three years before she initiated this lawsuit—and does not seek any damages for time worked between February 9, 2008 and June 25, 2011. See Pl.’s Mem. Supp. Mot. Summ. J. at 2 ¶ 4 & n.2. Unlike her prior motion for summary judgment, which asserted that she would “continue to pursue” her tolli ng claims “at trial,” and which w as stylized as only a “partial” motion for summary judgment, see Pl.’s Mot. Partial Summ. J. at 1 n.1, ECF No. 14, neither her current motion nor her memorandum in support of that motion mak e any similar assertion, see generally Pl.’s Mot. Summ. J.; Pl.’s Mem. Supp. Summ. J.7 Civ. P. 56(a); accord Talavera v. Shah , 638 F.3d 303, 308 (D.C. Cir. 2011). “A fact is material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a reason able jury could return a verdict for the nonmoving party.’” Steele v. Schafer , 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). When Rul e 56 is invoked, the movi ng party has the initial burden of demons trating the absence of a genuin e dispute as to any material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). When the moving party does not bea r the burden of persuasion at tri al, its burden “may be discharge d by ‘showing’—that is, pointing out to the district court—that th ere is an absence of evidence to support the nonmoving party's case.” Id. at 325. Once the moving party has met its burden, to defeat the motion the nonmoving party must designate “specific facts showing that there is a genuine issue for trial.” Id. at 324 (citation omitted). Although the Court must view this evidence in the li ght most favorable to the nonmoving party and draw all reason able inferences in that party’s favor, see Grosdidier v. Broad. Bd. of Governors, Chairman , 709 F.3d 19, 23–24 (D.C. Cir. 2013), the nonmoving party must show more than “[t]he mere existence of a scintilla of evi dence in support of” his position—“there must be evidence on which the jury could reason ably find for [the nonmoving party].” Anderson , 477 U.S. at 252. Moreover, the nonmoving party “may not rest upon mere allegation or denials of his plea ding but must present affirmat ive evidence showing a genuine issue for trial.” Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987) (internal quotation marks and citation omitted). When both parties file cross-motions for summary judgment, “eac h must carry its own burden under the applicab le legal standard.” Ehrman v. United States , 429 F. Supp. 2d 61, 678 (D.D.C. 2006); Nuzzo v. FBI, No. 95-CV-1708, 1996 WL 741587, at *1 (D.D.C. Oct. 8, 1996) (“When both parties in a cause of action move for summary judgm ent, each party must carry its own burden.”). Finally, the Court notes that “[c]redibility de terminations, the weighing of the evidence, and the drawing of legitimate inferences from the fac ts are jury functions, not those of a judge at summary judgment.” Barnett v. PA Consulting Grp., Inc ., 715 F.3d 354, 358 (D.C. Cir. 2013) (citation omitted). Ind eed, a court’s role in decid ing a summary judgment motion is not to “determine the truth of the matter, but instead [to] dec ide only whether there is a genuine issue for trial.” Id. (citation omitted).

IV. ANALYSIS A. FLSA Overtime Claim Ms. Benton’s FLSA claim is prem ised on her allegation that the Fund failed to pay her time-and-half for overtime hours she worked during Saturday tra ining sessions and otherwise, in violation of the FLSA. See 2d Am. Compl. ¶¶ 28–34. “Under the FLSA an employee is ordinarily entitled to pay equa l to one and one-half times his normal hourly wage for all hours worked beyond forty per week.” Robinson-Smith v. Gov’t Emps. Ins. Co. , 590 F.3d 886, 892 (D.C. Cir. 2010) (citing 29 U.S.C . § 207(a)(1)). Ms. Benton se eks summary judgment as to unpaid overtime wages for hours worked between June 25, 2011 an d December 31, 2012. 3 Pl.’s

3 See supra note 2. In addition, the Court notes that the chart Ms. Benton provides on page 18 of her memorandum in support of her motion for summary judgment contains two typographical errors. First, she appears to have interchanged the number of hours she claims for 2011 with those that she claims for 2012, and vice versa. Compare Pl.’s Mem. Supp. Summ. J. at 18 (listing 104 hours for 2011), with Pl.’s Suppl. Resp. to Interrog. No. 15, ECF No. 32-12 (listing 104 hours for 2012). In addi tion, the chart asserts that the 2011 overtime hours begin on May 25, but her statement of facts ma kes clear—and the calculat ion of the relevant hours as represented in Ms. Benton’s s upplemental response to the Fund’s interrogatories confirms—that she only seeks overtime pay for hours accrued beginning on June 25, 2011. See Pl.’s Mem.9 Mem. Supp. Mot. Summ. J. at 5–18. The Fund’s own motion for su mmary judgment maintains that it is entitled to summar y judgment as to the entirety of M s. Benton’s FLSA claim because she has not shown that she is i ndividually covered by the FLSA and, in any event, that even if she is covered she worked in a bonafide administrative capacity during the relevant time period and was therefore exempt from the FLSA. See Def.’s Mot. Summ. J. at 12–21. The Court will begin its analysis with the cove rage issue, and then turn to th e exemption issue. On both fronts, the Court concludes that the r ecord presents genuine issues of material fact and, therefore, the parties’ respective motions for summary judgment must be denied

. 1. FLSA Coverage Although courts construe the FLSA “liberally to apply to the fu rthest reaches consistent with congressional direction,” Tony & Susan Alamo Found. v. Sec’y of Labor , 471 U.S. 290, 296 (1985) (quoting Mitchell v. Lublin, McGaughy & Assocs. , 358 U.S. 207, 211 (1959)), the reach of the FLSA’s overtime provisi on is expressly limited to those “employees who in any workweek [are] engaged in comme rce or in the production of good s for commerce, or [are] employed in an enterprise engage d in commerce or in the product ion of goods for commerce,” 29 U.S.C. § 207(a)(1). Accordingl y, before an employee can rec over overtime wages under the Act, she must first establish tha t her employment relationship is subject to coverage under the FLSA. See D.A. Schulte, Inc., v. Gangi , 328 U.S. 108, 120 (1946) (discussi ng plaintiff’s burden of establishing individual FLSA coverage); Malloy v. Ass’n of State & Territorial Solid Waste Mgmt. Officials , 955 F. Supp. 2d 50, 54 (D.D.C. 2013) (hol ding that “enterpris e coverage [is] a substantive ingredient of the plaintiff’s [FLSA] claim”); Ramirez v. Amazing Home Contractors,

Supp. Mot. Summ. J. at 2 ¶ 4 & n.2; Pl.’s Suppl. Resp. to Interrog. No. 15, ECF No. 32-12 (chart listing hours per week that add up to 57 hours between June 27, 2011 and December 31, 2011).10 Inc. , 114 F. Supp. 3d 306, 309 (D. Md. 2015) (explaining that “FLSA coverage (individual or enterprise) is an essential elem ent of a plaintiff’s FLSA claim ”). FLSA coverage comes in two forms: “enterprise” and “individual. ” Tony & Susan Alamo Found. , 471 U.S. at 295 n.8. An employee with “enterprise” coverage works for an employer that is both “an enter prise” and “engaged in commerce or in the production of goods for commerce.” See 29 U.S.C. § 207(a)(1); see also Malloy , 955 F. Supp. 2d at 55 (explaining that to establish enterprise cove rage, an employee must first s how that the employer is an “enterprise,” and then show that the enterprise is “engaged in commerce”). Alternatively, an employee is covered individuall y under the FLSA if she personal ly is “engaged in commerce or in the production of goods for commerce.” 29 U.S.C. § 207(a)(1 ). A given employee may have coverage under either or both the ories, and Ms. Benton initiall y alleged only enterprise coverage, an issue on which the Court prev iously granted summary judgmentto the Fund. See Benton , 121 F. Supp. 3d at 50–53. Now, in her Second Amended Complai nt, Ms. Benton alleges indivi dual coverage. A plaintiff may attempt to show tha t she is “engaged in commerce” in several ways, including by showing that she is employed in i ndustries that “serve as the a ctual instrumentalities and channels of interstate and forei gn commerce,” such as the telep hone, transportation, or shipping industries; by showing that she is employed in a type of busine ss that “regularl y utilize[s] the channels of interstate and fore ign commerce in the course of th eir operations,” such as the banking, insurance, or publishi ng industries; o r by showing tha t she directly part icipates in the actual movement of people or goods in interstate commerce. See 29 C.F.R. §§ 776.10, 776.11; see also Thorne v. All Restoration Servs., Inc. , 448 F.3d 1264, 1266 (11th Cir. 2006). Here, Ms. Benton raises only one ground for c oncluding that she is covere d by the FLSA: she alleges that11 she was “engaged in commerce” while working at the Fund because “she regularly and customarily crossed state lines.” 2d Am. Compl. ¶ 3. The FLSA’s implementing regula tions explain that travel across state lines can, in some circumstances, establish i ndividual FLSA coverage. See 29 C.F.R. § 776.12. The regulation explains that typical types of e mployment that involve regular interstate travel include “traveling service men, traveling buyers, t raveling construction crews, co llectors, and employees of such organizations as circuses, carni vals, road shows, and orchestra s.” Id. But the regulation elaborates that the “area of c overage in such situations cannot be delimited by any exact formula, since questions of degree ar e necessarily involved.” Id. Employees who regularly travel “across State lines in the performance of their duties (a s distinguishe d from merely going to and from their homes or lodgings in commu ting to a work pl ace) are engag ed in commerce and covered by the Act.” Id. But an employee who only “in iso lated or sporadic instances, happens to cross a State line in the course of his employment, which is otherwise intrastate in character, is not, for that sole reason, covered by the Act.” Id. Ultimately, the regulation explains that “[d]oubtful questions arising in the area betw een the two extremes must be resolved on the basis of the facts in each individual case.” Id. There is a paucity of case law examining the facts of individua l cases, however, or providing guideposts for how freque ntly an individual must trav el across state lines in order to establish individual covera ge. The parties do not cite any cas es, and the Court’s own research discloses only three cases disc ussing the issue in any detail. Accord Solano v. A. Navas Party Prod., Inc. , 728 F. Supp. 2d 1334, 1346 (S.D. Fla. 2010) (explaining that “[t]he case law is very limited on how much travel is re quired to qualify as ‘regular’ rather than ‘isolated or sporadic,’” and noting that the court found “only . . . one case . . . thro ugh independent research”). The12 cases that do exist suggest thatweekly or bi-weekly travel is almost certainly sufficient to establish individual coverage, w hile bi-monthly travel approach es the limits of coverage, and more infrequent travel amounting to only sporadic trips each ye ar are insufficient. See, e.g. , Bowrin v. Catholic Guardian Soc’y , 417 F. Supp. 2d 449, 468–71 (S.D.N.Y. 2006) (concluding that plaintiff employees of an eld erly care faci lity who travel ed out of state weekly or two to four times per month with facility res idents established individual coverage to survive summary judgment, but those plaintiff employees who traveled out of sta te on only two occasions during three years of employment or on f ive instances over a several y ear period did not establish coverage); Isaacson v. Penn Cmty. Servs., Inc. , Nos. 69-878 & 69-879, 1970 WL 794, at *4 (D.S.C. Oct. 19, 1970), rev’d on other grounds by 450 F.2d 1306 (4th Cir. 1971) (concluding, after a bench trial, that a plai ntiff who “crossed the state li ne only four times in a period of 19 months,” could not “reasonably be c onstrued to have been ‘engag ing in commerce’ as contemplated by the Act”). For example, in Solano , the district court co ncluded that “two [interstate] trips in thirty-s ix months would be ‘isolated or s poradic,’ and Pl aintiff would not qualify for individual coverage,” but it would be a “closer cal l if Plaintiff can prove he traveled at least fifteen times in conn ection with his employment.” See 728 F. Supp. 2d at 1346. In this case, Ms. Benton claims that the record shows that she “was required to and regularly crossed state lines—as often as four times per week—i n the course of her employment.” Pl.’s Mem. Supp. Mot. Summ. J. at 6. She claims that she made such trips to “process classes and i ssue certifications a nd state licenses,” and that, “[f]urther,” the Fund required her to work on Saturdays o n at least nineteen occasionduring the relevant time period at the Alexandria, Virginia training site. Id. at 4 ¶¶ 15–16. The connecti on, if any, between what appear to be workweek trips acro ss state lines (because Ms. Ben ton claims there were multiple13 trips in some weeks) and the Saturday trips is not made particu larly clear in the record. 4 In opposing Ms. Benton’s motion for summary judgment and seeking s ummary judgment in their own favor, the Fund argues that Ms. Benton’s conclusory testimo ny fails to provide any evidence concerning the frequency of her inte rstate travel, whether she traveled from the Fund’s office or from her home, or during what period of her employment she enga ged in such travel—and that the absence of these types of f acts are fatal to her effort to show individual coverage. See Def.’s Mem. Law Opp’n Pl.’s Mot. Summ. J. at 5–6, ECF No. 33 (“Def.’s Opp’n”); see also Def.’s Mem. Supp. Mot. Summ. J. at 13–14. The Court first considers Ms. Benton’s alleged workweek trips t o the Virginia training site, and the Court agrees with the Fund that Ms. Benton fails to provide sufficient evidence from which the finder of fact could asse ss whether she traveled acro ss state lines sufficiently frequently in the performance of her duties to establish indivi dual FLSA coverage. Ms. Benton claims that she traveled from Washington, D.C. to Virginia and “performed work duties in Virginia between two and four times per week in the course of h er employment,” see Pl.’s Mem. Supp. Mot. Summ. J. at 4 ¶ 15, but thi s is a charitable and ove rstated reading of a single line of testimony in her deposition. In the context of discussing her use of a Fund credit card, Ms. Benton stated in passing that she us ed the card to purchase gas “[f]or traveling to Virginia.” Benton Dep. at 112:15–113:21. She cla imed that her usage of th e card “depend[ed] on if I was going to Virginia, [and] howmany times I went.” Id. at 115:2–3. When asked how often she traveled to Virginia Ms. Bent on testified, vaguely, that “it de pended on the schedule,” and that

4 Indeed, it is not apparent whether Ms. Benton’s reference to m aking two or four trips per week, on some occasions, includes or excludes the Saturday trips. Even though these trips may overlap somewhat, for clar ity, and to distinguish among the factual evidence to which Ms. Benton points, the Court will refer to her “workweek trips” and her “Saturday trips.”14 “[s]ometimes I was down there twi ce a week,” but “[s]ometimes I was down there four days a week.” Id. at 116:9–11. Yet, the problem with the workwee k evidence is that it is phras ed at such a vague level of generality that it leaves the factfinder unable to assess the f requency with which Ms. Benton traveled across state lines—wh ich is the critical issue in dete rmining whether she is covered. Absent from her testimony’s sing le, passing reference to inters tate travel is a ny discussion of the frequency of that travel. See Bowrin , 417 F. Supp. 2d at 469–70 (granti ng summary judgment to defendant for portion of work “pe rformed [for] an otherwise unc overed” employer because “in the absence of evidence as to the number of out-of-state trips taken . . . there is no factual basis to support a finding of individual cove rage” (emphasis added)). W hile Benton asserts that there are “multiple sources” in the record corroborating her travels to V irginia, she in fact only points to two: the testimony of Benton hers elf, and her co-worker, David Mejia. See Pl.’s Opp’n Def.’s Mot. Summ. J. at 7, ECF No. 34 (“Pl.’s Opp’n”); see also Pl.’s Mem. Supp. Mot. Summ. J. at 4 ¶¶ 14–16 (citing only deposition testimony from Benton and Meji a). And even Mejia’s testimony only discusses Ms. Ben ton’s work on Saturdays. See Mejia Dep. at 26:12–15, ECF No. 31-7. The absence of evidence concer ning the frequency of Ms. Benton’ s travel is particularly problematic given the period of time across which her potential trips spanned. She testified that she began purchasing gas with aFund credit card when Shannon J ones became director of the Fund, which was in August 2007. See Benton Dep. at 117:17–118:2; Jones Decl. ¶ 2. This evidence thus suggests that Augus t 2007 was the earliest she be gan traveling to Virginia. She also testified that she was instructed to cease traveling or wo rking at the Virginia site as of April 26, 2013. See Benton Dep. at 261:5–7. Her trave l therefore may have occurred any time during15 a nearly six year period. To be s ure, there is no dispute that Ms. Benton did work out of the Virginia site on some occasi ons during that time. The Fund adm its as much, Def.’s Mem. Supp. Mot. Summ. J. at 13, and evide nce from April 2013, at which poi nt the chairman of the Fund’s Board of Trustees sought “[c]onfirmation that [Ms. Benton] will work only out of [the] Local 657 office” and requested that he r cell phone be cancelled sinc e she would be working “at a single site,” demonstrates tha t Ms. Benton did, at times, work at other locations. Def.’s Ex. 16. Yet, Ms. Benton’s overtime claims in this case involve the spec ific time period between May 2011 and December 2012. Her testimony provides no temporal context for understanding both when, during the six-year period between 2007 and 2012, she tra veled interstate, and the frequency with which she tra veled during those years. Coverage decisions based on interst ate travel that “aris[e] in the area between the two extremes” of regular engagement in travel or isolated or sporad ic instances of travel “must be resolved on the basis of the fact s in each individual case.” 2 9 C.F.R. § 776.12. Ms. Benton has the burden to show that she is covered by the FLSA, see D.A. Schulte, Inc. , 328 U.S. at 120, and to defeat the Fund’s motion for s ummary judgment she must point to “specific facts showing that there is a genuine i ssue for trial,” Celotex Corp. , 477 U.S. at 324. But, here, Ms. Benton provides no concrete evidence at all from which a finder of fac t could make a determination. Cf. Shelton v. Inn at Trivium , No. 6:08cv00040, 2009 WL 1255465, at *3 (W.D. Va. May 6, 2009 ) (denying request for damages on de fault judgment for period dur ing which the pl aintiff “could not provide any specific examples or estimate what percentage o f her job duties was taken up by the[] tasks” involving interst ate commerce). It would be one t hing if Ms. Benton provided an estimation of the trips she t ook from the Washington, D.C. offi ce to the Virginia site, or provided any type of testimony concerning the frequency of those trips d uring the relevant time period16 (June 2011 through December 2012). If that were the case, the question would turn on her credibility, and it is unlikely the Court c ould grant summary j udgment in either party’s favor on this issue. See Solano , 728 F. Supp. 2d at 1346 (concluding that coverage would be a “closer call” if the plaintiff could pr ove his factual assertions, and finding that “[h]aving the parties more fully present the disputed facts at trial will help the Court d etermine whether Plaintiff was engaged in commerce”). But here, however, Ms. Benton has provi ded nothing beyond her conclusory assertion that she tr aveled on some occasions to the Virginia site two or four times a week. The Court comes to a different conclusion with respect to Ms. B enton’s Saturday trips to the Virginia site to assist with training classes. For those i nstances of travel, Ms. Benton does estimate, with specific dates, the nineteen times that she clai ms to have worked on Saturdays.
See Progress Report, ECF No. 31-32. N ineteen instances of interst ate travel over a nineteen month period (averaging one insta nce of travel per month) would be sufficient to show that Ms. Benton “regularly engaged in trave ling across State lines,” and thus was covered by the FLSA. 29 C.F.R. § 776.12; see Solano , 728 F. Supp. 2d at 1346 (concluding that fifteen instances of travel over a thirty-six month pe riod presented a “close call”) ; Bowrin , 417 F. Supp. 2d at 470 (finding two to four out-of-state trips per month sufficient to establish individual coverage). Notwithstanding these concrete i nstances of travel outside of the District of Columbia, where the Fund is based, the Fund argues that Ms. Benton’s fail ure to explain whether she traveled to the site from her home in Maryland is fatal to her ability to invoke those instances as a basis for coverage. See Def.’s Mem. Supp. Mot. Summ. J. at 13; Def.’s Opp’n at 4–6; see also 2d Am. Compl. ¶ 1 (alleging that Ms . Benton resides in Maryland ). It is true that the relevant regulation emphasizes that “mer ely going to and from their home s or lodgings in commuting to a17 work place” does not establish that employees are engaged in in terstate commerce. 29 C.F.R. § 776.12. Yet, in this instance, it is not quite accurate to d escribe Ms. Benton’s travel as simply commuting from her home to her place of work because, while her typicalworkplace is in the District of Columbia, her week end work took place in a differen t state. No case that the Court has identified involves a type of interstate travel in which th e employee works predominantly in one state but, on occasion, travels from her home to an employe r’s separate location in a second state to carry out her duties. T he Fund cites no cases present ing those facts, either. In the Court’s estimation, that type of scenario, as presented by the facts here, does not fall outside the regulation’s intended scope. The salient question is whether the employee travels across state lines “ in the performance of [her] duties.” 29 C.F.R. § 776.12 (emphasis added). To the extent she traveled outside of the Distr ict of Columbia to Virginia in order to assist i n providing training classes to members of the unions the Fund serves, Ms. Benton’s travel was undertaken in the performance of her work duties. T hus, even if her journey bega n from her home, rather than her typical work location in the Di strict of Columbia, those instan ces of travel constitute travel across state lines in the course o f her employment. The Fund d oes not expressly argue otherwise. The Fund does dispute, in some respects, the evidence that Ms. Benton provides to support her claim that she made nineteen trips to Virginia duri ng the relevant time period. 5 See Def.’s Opp’n at 18 (arguing that the estimation was “not prepar ed contemporaneously with the hours worked,” assembled “at the direction of her attorney sole ly for the purposes of calculating damages in this litigation,” we re “created from reviewing some, but not all, e-mails and

5 Although the Fund lodges these concerns in opposition to Ms. B enton’s motion for summary judgment with respectto the damages issue, see Def.’s Opp’n at 17–19, the Court finds that they are equally relevant to determining the factual quest ion of how often Ms. Benton traveled to Virginia in the course of her employment.18 documents available,” and were “b elatedly produced to the Fund” ); see also Def.’s Resp. Pl.’s Stmt. Material Facts Not in Dispute ¶ 16. Because the frequenc y of travel is critical to establishing coverage , this dispute is mat erial. Moreover, whe ther Ms. Benton can substantiate her factual claim depends, in pa rt, on assessing her credibility, which is within the province of the jury. See Barnett v. PA Consulting Grp., Inc ., 715 F.3d 354, 358 (D.C. Cir. 2013). Accordingly, genuine issues of m aterial fact exist regarding wh ether Ms. Benton has “regularly engaged in traveling across St ate lines in the performance of [ her] duties” and, thus, whether she was individually covered by the FLSA. 29 C.F.R. § 776.12; see Solano , 728 F. Supp. 2d at 1346 (“Having the parties more fully pr esent the disputed facts at trial will help the Court determine whether Plaintiff was engaged i n commerce.”). As a result, the Court must deny both parties’ motion for summary judgment on this threshold issue. 2. Bona Fide Administrati ve Capacity Exemption If Ms. Benton is successful in e stablishing individual coverage , the burden would then shift to the Fund to show that sh e falls within one of the exem ptions to the FLSA’s overtime requirements. Briggs v. Chesapeake Volunteers in Youth Servs., Inc. , 68 F. Supp. 2d 711, 714 (E.D. Va. 1999) (“Employees seeking compensation based on the F LSA have the burden of proving that the FLSA applies to their employer/employee relati onship . . . . Once this initial burden is met, the burden shifts to the employer to establish w hether one of the specific exemptions under the FLSA applies.”); see also Robinson-Smith v. Gov’t Emps. Ins. Co. , 590 F.3d 886, 891 (D.C. Cir. 2010) (holding t hat the employer bears the burden of establishing that employee falls within administr ative exemption to the FLSA). T he Fund asserts that, even if she is covered by the Act, the job dut ies Ms. Benton performed and independent judgment she exercised as the Administrative Assistant to the Fund’s Directo r qualify her for the FLSA19 exemption for “employee[s] employed in a bona fide executive, a dministrative, or professional capacity.” 29 U.S.C. § 213(a)(1); see 29 C.F.R. § 541.200(a); see also Def.’s Mem. Supp. Mot. Summ. J. at 14–21. 6 Department of Labor regulations further elucidate the meaning o f the term “bona fide administrative capacity.” An emp loyee is only employed in sucha capacity if three criteria are established: first, that the em ployee is compensated “on a sala ry or fee basis at a rate of not less than $455 per week”; second, that th e employee’s “primary duty is the performance of office or non-manual work directly related t o the management or general b usiness operations of the employer or the employer’s custo mers”; and, third, that the emp loyee’s “primary duty includes the exercise of discretion and i ndependent judgment with respec t to matters of significance.” 29 C.F.R. § 541.200(a). In this case , Ms. Benton concedes that sh e was paid during her employment at the Fund at a r ate greater than $455 per week, see, e.g. , Pl.’s Opp’n at 8, so the Court will focus only on the second and third showings. With respect to the second showing, an employee’s primary duty is related to the management or general business ope rations of the employer if th e employee’s work is “directly related to assisting with the r unning or servicing of the busin ess, as distingui shed from, for

6 The parties dispute Ms. Bent on’s title, but that issue is not material to the Court’s ultimate resolution of whether her job duties render her exempt from the FLSA’s overtime requirements. See Hunter v. Sprint Corp. , 453 F. Supp. 2d 44, 51 (D.D.C. 2006) (“Whether an employee is exempt is determined by the employee’s actual work activities, not by the employer’s characterization of those activitie s through a job t itle or job description.” (quoting Cooke v. Gen. Dynamics Corp. , 993 F. Supp. 56, 61 (D. Conn. 1997)). Thus, for purposes of this opinion, the Court will refer to Ms. Benton’s position as that of the “Administrative Assistant.” In addition, the Fund concedes that Ms. Benton was no longer em ployed in a bona fide administrative capacity as of January 1, 2013, when another emp loyee, Mary McNelis, took on the role of Fund administrator. See, e.g. , Def.’s Opp’n at 6 n.7. Because Ms. Benton only seeks overtime for hours worked prio r to January 1, 2013, however, th is factual assertion is immaterial to the Court’s resolution of the parties’ motions.20 example, working on a manufacturin g production line or selling a product in a retail or service establishment.” 29 C.F.R. § 541.201( a). Among other tasks, management work can encompass “accounting,” “budgeting,” “insurance,” “purchasing,” “procurem ent,” “personnel management” and “human resources,” and “employee benefits.” Id. § 541.201(b). But it must encompass more than simply “the day-to-day carrying out of the business’ affairs.” Bothell v. Phase Metrics, Inc. , 299 F.3d 1120, 1125 (9th Cir. 2002). The third prong requires that, in the course of performing thos e primary duties, the employee exercises “discretion and independent judgment with re spect to matters of significance.” 29 C.F.R. § 541.202(a) . Given this third prong , plaintiffs “would not be exempt if the performance of their work was significant to Defendant, but the matters ov er which they had discretion were not.” Ruggeri v. Boehringer Ingelheim Pharm., Inc. , 585 F. Supp. 2d 254, 275 (D. Conn. 2008) (emphasis in origina l). Such discretion arises when the employee is tasked with “the comparison and the evaluati on of possible courses of condu ct, and acting or making a decision after the various possibi lities have been considered.” 29 C.F.R. § 541.202(a). The employee’s degree of discretion mus t be considered “in the ligh t of all the facts involved in the particular employment situation in which the question arises,” but factors that merit consideration in that assessment include, among other things: “ whether the employee carries out major assignments in conducting the operations of the business, ” “whether the employee has authority to commit the employer in matters that have significant financial impact,” and “whether the employee has authority to negotiate and bind the c ompany on significant matters.” Id. § 541.202(b). An employee must have the authority “to make anindependent choice, free from immediate direction or supe rvision,” but the fact that an employee’s “decisions or recommendations are reviewed at a higher level” does not necess arily preclude application of the21 exemption. Id. § 541.202(c). “The fact that an employee’s decision may be su bject to review and that upon occasion the decisions are revised or reversed af ter review does not mean that the employee is not exercising disc retion and independent judgment. ” Id. The regulations also provide several examples of positions that generally qualify for the administrative exemption. See id. § 541.203. Of particular relevan ce to this case is the regulation’s inclusion of an “executive assistant or administrative assistant to a business owner or senior executive of a large business.” Id. § 541.203(d). An individual employed in that capacity “generally meets the duties requirements for the admin istrative exemption if such employee, without specific instru ctions or prescribed procedure s, has been delegated authority regarding matters of significance.” Id. At the same time, however, “cl erical or secretarial work” such as “recording or tabulat ing data, or performing other mech anical, repetitive, recurrent or routine work,” does not require the “exercise of discretion and independent judgment,” and therefore falls outside the administrative exemption. Id. § 541.202(e). The ultimate question of “[w]hether an employee comes within th e FLSA administrative employee exemption from overtime benefits is a question of law. ” Robinson-Smith v. Gov’t Emps. Ins. Co. , 590 F.3d 886, 891 (D.C. Cir. 2010). Nevertheless, if “the un derlying facts are in dispute, ‘[t]he exemption question under the FLSA is a mixed qu estion of law and fact.’” Radtke v. Lifecare Mgmt. Partners , 795 F.3d 159, 165 (D.C. Cir. 2015) (alteration in original) ( quoting Ramos v. Baldor Specialty Foods, Inc. , 687 F.3d 554, 558 (2d Cir. 2012)). “Whether a particular duty is administrative presents a legal question, whereas the a mount of time devoted to administrative duties, and the s ignificance of those duties, ar e questions of fact.” McKinney v. United Stor-All Ctrs. LLC , 656 F. Supp. 2d 114, 122 (D.D.C. 2009); see Icicle Seafoods, Inc. v. Worthington , 475 U.S. 709, 714 (1986) (explaining t hat how employees spend ing their time22 working “is a question of fact”) . If the record discloses a ge nuine dispute regarding the employee’s primary duty or her ex ercise of discretion, that dis pute is a question of fact for the jury to resolve. See Radtke , 795 F.3d at 165 (affirming the deni al of a motion for judgmen t as a matter of law where “the part ies introduced conflicting evidenc e regarding the appellees’ primary duties”); see also Ruggeri , 585 F. Supp. 2d at 274 (declining t o grant summary judgment where, among other things, “there is substantial dispute about how to characterize the level at which [the employee’s] discretion was exercised”). In this case, the Fund contends that Ms. Benton’s job responsib ilities involved nonmenial tasks that are directlyrelated to the Fund’s management or general business operations, including, among other things, pr eparing and filing proposals f or federal, local , and union grant funding, soliciting contract bids f rom service providers and ve ndors, scheduli ng training for signatory contractors and prep aring the Fund’s training schedul e, and regularly communicating with Carday, the Fund’s th ird-party administrator. See, e.g. , Def.’s Mem. Supp. Mot. Summ. J. at 17. The Fund further argues that Ms. Benton exercised a lev el of discretion and independent judgment with respect to these tasks. See, e.g. , id. at 18–21. For her part, Ms. Benton claims that her primary duties entailed merely supporting the Fund’s d irector, and that she lacked the discretion to make decisions w ithout the autho rization of the d irector. See, e.g. , Pl.’s Mem. Supp. Mot. Summ. J. at 11–15. Both part ies argue that the mate rial facts sufficient to make these determinations are undisputed and, therefore, that summary judg ment should be granted in their favor. Nevertheless, the Court conclude s that the reco rd contains genu ine disputes of material fact that preclude granting su mmary judgment for either party. First, there is a dispute in the record concerning the nature of the tasks that Ms. Benton perfo rmed. That dispute prevents the23 Court from concluding that the record can only support a findin g that those tasks either did or did not relate to “the management or general business operations of the employer.” The Fund claims that Ms. Benton’s work “far exceeded a traditional ‘administrat ive assistant,’” and “involved carrying out the Fund’s policies and procedures.” Def.’s Mem. Supp. Summ. J. at 18. By contrast, Ms. Benton characteri zes her role as more akin to the plaintiff in Rainey v. America Forest & Paper Ass’n , in which a court in this distr ict concluded that an employee was not exempt because her job duties involved, among other things, “as sisting the seni or director in creating reports, spreadsheets, a nd special projects, including with regard to work with outside consultants and for preparation f or audits and investigations,” but “did not requi re plaintiff to do anything but carry out the instru ctions of her supervisor.” 26 F. Supp. 2d 82, 89 (D.D.C. 1998). Yet, in most instances, both of the parties point only to vague descriptions of what Ms. Benton’s job duties entailed—descriptions that fail to indisputably showwhether those duties involved truly “management” tasks as opposed “menial ones” and, moreover , whether they were Ms. Benton’s primary tasks. 7

7 This latter issue—determining t he relative importance of the p utative management duties—is important because dete rmining whether duties are amon g an individual’s primary duties involves comparing “the im portance of the plaintiff’s [e xempt] duties with the importance of her [non-exempt] duties, keep ing in mind the end goal of ach ieving the overall success of the company.” McKinney , 656 F. Supp. 2d at 123 (quoting Thomas v. Speedway SuperAmerica, LLC , 506 F.3d 496, 505 (6th Cir. 2007)); see also id. at 123 n.2 (explaini ng that, “[a]lthough Thomas concerned the application of the ‘executive’ exemption rather than the ‘administrative’ exemption, both exemptions share the same definition of ‘primar y duty’”). So far as the parties identify, the record here c ontains little to no discussion conc erning the relative amount of time Ms. Benton spent on those tasks t hat the Fund claims were relat ed to the Fund’s management or general business operations. This is particularly problematic with respect to the Fund’s efforts to show that Ms. Benton solicited bid s from service providers and executed agreements on behalf of the Fund, because the Fund identifies only three specific in stances in which Ms. Benton signed a contract for serv ices on behalf of the Fund, and only one which indisputab ly falls within the 2011 to 2012 time period. See Def.’s Ex. 13, ECF No. 31-15 (GE contract for a copier, signed on July 1, 2009); Def.’s E x. 14, ECF No. 31-16 (undated equipment contract); Def.’s Ex. 15, ECF No. 31-17 (Pitney Bowes cont ract for mail services, sig ned on October 25, 2012).24 A representative example is Ms . Benton’s work preparing the Fun d’s applications for grants. The Fund contends that Ms . Benton “evaluated, complete d and submitted the Fund’s grant applications.” Def.’s SOF ¶ 25; see also Def.’s Opp’n at 13. In the course of that work, the Fund claims, Ms. Benton “condu cted cost assessments, estima ted the amount of time needed for training, determined the t opics that would be covered in tr aining, estimated the number of trainees to expect, and estimate d the costs associated with tra ining and feeding the trainees.” Def.’s SOF ¶ 26. But the portions of Ms. Benton’s deposition that the Fund cites merely indicates that these types of i nformation were included in the Fund’s grant applications. See Benton Dep. at 52:8–55:13. She testi fied that the director wou ld have her “start to do the grant work,” that, “[u]sually the gran t proposal was a one page propo sal,” and that she “always worked with the directors” on the proposals. Id. at 33:1, 53:9–11, 54:14–21. In her opposition, Ms. Benton claims that her testimony me rely indicates that “she ass isted the Director in completing the grant form,” and that she “never evaluated or approved any grant work.” Pl.’s Opp’n at 3 ¶¶ 6–7. Moreover, it is not appare nt from this evidence whethe r Ms. Benton’s work involved making more substantive or predic tive judgments concerning the Fund’s needs and describing the Fund’s potential use of the funds or, instead, something mo re akin to the clerical work of simply filling out the grant propos al forms, with direction fro m the Fund’s director and using prior samples as “go-bys.” In the latter case, Ms. Benton’s wo rk would be closer to the type of work in Rainey the court concluded was not cov ered by the administrative exemp tion. See 26 F. Supp. 2d at 89. These questions of factmust be resolved in or der to determine whether Ms. Benton’s work was “directly rel ated to the management or genera l business operations of the employer or the employer’s customers.” 29 C.F.R. § 541.201(a).25 The same type of dispute is apparent with respect to the eviden ce concerning Ms. Benton’s work fielding inquiries fro m signatory contractors ( i.e. , those contractor s whose collective bargaining agreements required th em to contribute to the Fund’s work, see Benton Dep. at 131:7–19) and communicating with the Fund’s third-party adminis trator, Carday. See Def.’s Opp’n at 14. The Fund characteri zes Ms. Benton’s testimony as establishing that she was the “point person” for the contract ors and “would re gularly conductbusiness with them on behalf of the fund.” Def.’s SOF ¶ 43. Ms . Benton agreed that she someti mes “interface[d] with the signatory contractors,” but testified tha t she “couldn’t give a yes or no answer to a contractor,” and would “just gather the information and forward it to the director.” Benton Dep. at 1 32:14–133:6. With respect to Carday, which “physica lly cut the checks to be paid for vendors,” handled payroll and employee benefits, and generally t ook care of “the administrati ve side of the [F]und,” Meighan Dep. at 31:5–17, the F und argues that the r ecord shows that Ms. Benton “regularly communicated with Carday regarding matters of high significance,” Def.’s SOF ¶ 38. Others, including the Fund’s chairman, testified, however, that Ms. Benton did not ha ve the authority to sign checks.
See Meighan Dep. at 32:16–19; Aff. K elly Lapping ¶ 4 (“Lapping Aff. ”), ECF No. 32-9. 8 If Ms. Benton acted more akin to a receptionist in simply responding t o inquiries or managing documents that were sent to and f rom the third-party administra tor, her work likely falls more on the side of “the day-to-day car rying out of the business’ affai rs,” and would not constitute work directly related to management or general business operations. Bothell , 299 F.3d at 1125.

8 The Court recognizes that the F und claims Mr. Lapping’s affida vit should not be considered because he left his position as director in 2006—lon g before the 2011 through 2012 time period at issue in this case. See Def.’s Opp’n at 11. To be sur e, Mr. Lapping’s testimony does not bear directly on Ms. Ben ton’s job duties during the 20 11 through 2012 time period, but a finder of fact could consider it as corroborating Ms. Benton’ s testimony to the extent Ms. Benton claims—as she does in sev eral respects—that her duties r emained consistent both during and after Mr. Lapping’s tenure as director.26 Perhaps in an effort to show tha t Ms. Benton’s duties involved “budgeting,” “purchasing,” or “procurem ent,” 29 C.F.R. § 541.201(b), the Fun d also maintains that Ms. Benton had significant financial re sponsibilities, pointing to the fact that she managed the Fund’s petty cash account, issu ed stipend checks, and had a Fund credi t card, see Def.’s Opp’n at 14–15. Yet, some of the evidence is d isputed or contradictory in this regard. As just noted, Ms. Benton emphasizes that she was unable to sign checks on the Fund’s beh alf, see Meighan Dep. at 32:16–19, and she contends that she was not authorized to commi t the Fund’s financial

resources, see Pl.’s Opp’n at 9. Even if she issued stipend checks, it is not apparent that Ms. Benton had the authority to approve the amount of those checks or to sign the checks. Ms. Benton did have a Fund credit car d, but she discussed using tha t card only for gas purchases when she traveled to or from the Virginia training site. See Benton Dep. at 112:15–19, 113:11–115:7, 265:13–21. Although her tes timony indicates that she had some freedom to use the credit card for this pur pose, her testimony does not appear to support the Fund’s broad proposition that she enjoyed “th e discretion to use it when andhow she wanted.” Def.’s SOF ¶ 50. And with respect to the petty cash account, Ms. Benton tes tified that the Fund “didn’t really purchase anything with the petty cash account,” Benton Dep. at 112:11–12, which casts doubt on the Fund’s use of this evidence t o show that Ms. Benton’s prima ry duties were related to management and business operations. The Fund also references the tes timony of several former Fund d irectors who assert that Ms. Benton was known to be “in charge” when the directors were away from the office. See Decl. of Rodney Sewell ¶ 7, E CF No. 31-10 (Sewell Decl.); see also Jones Decl. ¶ 4, ECF No. 31-11. But “the mere fact that an e mployee [is] ‘in charge’ do es not necessarily mean that her primary duty involved the exercise of management-related respon sibilities.” McKinney , 656 F.27 Supp. 2d at 124 (quoting Thomas v. Speedway SuperAmerica, LLC , 506 F.3d 496, 503 (6th Cir. 2007)). Without a more concrete un derstanding of what her job duties entailed, the Court cannot determine whether these tasks fall within the administrative ex emption. It is the third showing required to bring an employee within th e administrative exemption that is most critical to the Court’s conclusion that there exis t genuine issues of fact, however. The parties present particularl y divergent evidence concerning whether Ms. Benton was able to exercise independent discret ion. Even if the Fund could show that Ms. Benton’s job duties primarily involved management or general business operations, the record discloses a dispute regarding the latitude she was gi ven to make those decisions. See Ruggeri , 585 F. Supp. 2d at 275 (noting that plaintiffs “ would not be exempt if the performance of their work was significant to Defendant, but the matters over which they had discretion were not” (emphasi s in original)). The Court finds that a genuine i ssue of fact exists concerning this third prong of the administrative exemption test. As noted above, an employee must exercise “discretion and indep endent judgment with respect to matters of signifi cance” to be exempt. 29 C.F.R. § 541.202(a). Such discretion arises if the employee is tasked with “the comparison and the evaluati on of possible courses of conduct, and acting or making a decision aft er the various possibilities have been considered.” Id. But the mere fact that “an employee’ s decision may be subject to re view and that upon occasion the decisions are revised or reverse d after review does not mean th at the employee is not exercising discretion and independent judgment.” Id. § 541.202(c); accord Piscione v. Ernst & Young,
LLP , 171 F.3d 527, 535–36 (7th Cir. 1999) (“E ven though [Plaintiff s’] work is subject to approval, even to the extent th at a decision may be reversed byhigher level management, it does not follow that the work did not r equire the exercise of discre tion and independent judgment as28 the terms are defined for the adm inistrative employee exemption .” (quoting Dymond v. U.S. Postal Serv. , 670 F.2d 93, 96 (8th Cir. 1982))), overruled on other grounds by Hill v. Tangherlini , 724 F.3d 965 (7th Cir. 2013). In the Court’s view, the diffe rence boils down to a distinction between employees who must affirmatively obtain authorization to do something, and employees who enjoy the ability t o make independent decisions i n their own discretion, even if those decisions are subject t o later revision by superiors. Compare, e.g. , Moncrief v. Daro Realty, Inc. , No. 03-762, 2005 WL 1119794, at *6 (D.D.C. Apr. 28, 2005) (co ncluding that plaintiffs exercised discretion and independent judgment where they “supervised other employees, assigned and directed the work of other employees an d contractors, ordered supplies, handled employee issues, made day-to-day decisions, handled ten ant complaints and leased apartments”), with McKinney , 656 F. Supp. 2d at 129 (denying employer’s motion for summary judgment where employer’s operatio ns manual “greatly limited th e discretion and independent judgment exercised by Primary Managers, both by prescribing det ailed procedures for the completion of nearly all day-t o-day tasks and by requiring thatPrimary Managers defer to District Managers on most matte rs of significan ce to the busine ss”). And, here, the factual evidence provides two different understa ndings of Ms. Benton’s authority—evidence that must be weighed by the jury. For examp le, the Fund contends that Ms. Benton “executed agreements w ith service providers on behalf of the Fund for tens of thousands of dollars,” that Ms. Benton “made discretionary financial deci sions,” and that she also “made the training schedules and, as a result, managed the training i nstructor’s [sic] work schedules.” Def.’s Mem. Supp. Mot. Summ. J. at 19–20. Some of these charac terizations of Ms. Benton’s discretion come from the testim ony of her co-workers, the Fund’ s chairman, or the declaration of a former director who simply asse rts, without elaboration, that that Ms. Benton “set up training29 schedules,” “select[ed] service providers,” and “authorize[d] c ertain Fund expenditures.” Sewell Decl. ¶ 4; see, e.g. , Def.’s SOF ¶¶ 30–32, 53. Yet, Ms. Benton’s own testimony paints a more limited picture. It is true that her signature appears on the three equi pment rental forms that the Fund identifies. See Def.’s Ex. 13, ECF No. 31-15 (GE contract for acopier); Def.’s Ex. 14, ECF No . 31-16 (unidentified equipment contract); Def.’s Ex. 15, ECF No. 31-17 (Pitney Bowes contract for mail services). Ms. Benton testified, however, tha t, she “took instructions fro m the director” when soliciting bids for services, that “no deci sions” concerning equipment lea ses “were made without [the director’s] authorization,” and that she only signed the copier lease, specifically, because the director could not be in the o ffice that day. Benton Dep. at 1 28:5–8, 138:7–8, 147:15–16. In addition, she claims that she l acked any authority to independe ntly make training schedules. “Any schedule that I’ve put t ogether was approved by the direct or,” she testified. Id. at 111:9–10. Finally, as already disc ussed above, the record does not appear to necessarily support the Fund’s broad assertion that Ms. Benton was empowered to mak e significant financial decisions. Admittedly, this contrary evidence comes almost exclusively fro m Ms. Benton’s own testimony. A plaintiff’s ow n, even self-serving testimony, how ever, will often suffice to defeat summary judgment—particularly where she has firsthand knowledge of a fact or observed an event, and where the case depe nds on the jury’s resolution of c ompeting testimony and witness credibility. See Johnson v. Perez , 823 F.3d 701, 710 (D.C. Cir. 2016). “To the extent the testimony of a witness who is also a party may be impaired by p arty self-interest, it is ordinarily the role of the jury—not the cour t on summary judgment—to disco unt it accordingly.” Id. ; see also Desmond v. Mukasey , 530 F.3d 944, 964 (D.C. Cir. 2008). Here, a reasonable jury could find Ms. Benton credible and cre dit her testim ony that she lack ed the ability to make independent30 determinations concerning equipmen t rentals and leases, trainin g schedules, or financial decisions. If the jury did so, it would likely have to conclud e that she lacked the “exercise of discretion and independent judgm ent” necessary to make her exem pt under the FLSA. And even some of Ms. Benton’s co -workers and the Fund chairman, upon whose testimony the Fund largely relies , were more tentative in their assessment of Ms. Benton’s discretion. For example, Mr. Mej ia, an instructor supervisor, testified during his deposition that “it would be the director” who dete rmined locations for trainin gs, but that Ms. Benton “would work with him to determine the location which will be more conv enient for inspectors.” Mejia Dep. at 27:17–28:1, ECF No. 31-7. Mr . Mejia stated that Ms. Be nton could “make [a] suggestion to the director,” but that “[s]uggestions can be mad e by anyone.” Id. at 28:18–29:1. Similarly, the Fund’s chairman, Mr. Meighan, also hedged his te stimony regarding Ms. Benton’s ability to enter int o contracts with servi ce providers, stating that his understanding was that Ms. Benton did enter into the contra cts, “and there was no recourse by the director,” so he “would assume she had the implied autho rity.” Meighan Dep. at 82:7–9. But it is equally plausible that there was no recourse because, a s Ms. Benton testified “no deci sions were made without [the director’s] authorizati on.” Benton Dep. at 147:15–16. To be sure, as the Fund emphasizes , the Department of Labor’s r egulations make clear that an “executive assistant or administrative assistant” can m eet the requirements for the administrative exemption “if such employee, without specific in structions or prescribed procedures, has been delegated authority regarding matters of s ignificance.” 29 C.F.R § 541.203(d). And the Fund cites seve ral cases in which courts have determined that these criteria were met. See Def.’s Mem. Supp. Mot. Summ. J. at 15 n.8. At bottom, however , much of the evidence the parties present in this case is framed in very gene ralized terms, leaving the31 Court unable to meaningfully determine wh ether Ms. Benton’s rol e meets these criteria. Questions of fact remain, for example, conc erning whether the preparationof grant proposals involved work directly related to the F und’s management or more routine, menial paperwork—and, even if so, whether those duties wer e Ms. Benton’s primary ones. Inaddition, there remains the question of whether Ms. Benton was “delegated authority regardi ng matters of significance” without “specific instructions or prescribed procedures.” 29 C .F.R. § 541.203(d). Thus, there exist genuine issues of materia l fact, and the Court must deny both parties’ motions for summary judgment. See Gonda v. Donahoe , 79 F. Supp. 3d 284, 306 (D.D.C. 2015) (denying summary judgment where “there is a genui ne dispute of material fact as to whether the administrative exemption applied”). * * * Given the existence of genuine i ssues of fact, resolution of th e remaining issues the parties raise in the ir respective motions for summary judgment is premature. The Fund urges the Court to decline to exercise supplemental jurisdiction over Ms. Benton’s DCMWRA claim or otherwise grant summary judgment in the Fund’s favor because th e DCMWRA also exempts employees employed in a bona fid e administrative capacity—an ex emption that D.C. courts construe identically to the FLSA’s exemption. See Def.’s Mem. Supp. Summ. J. at 21–22; see also D.C. Code § 32-1004(a)(1) (exemp ting an employee “employed in abona fide executive, administrative, or professiona l capacity . . . as these terms are defined by the Secretary of Labor under 201 et seq. of the Fair Labor Standards Act” ). But the latter issue overl aps with the FLSA exemption issue, the resoluti on of which depends on disputed is sues of fact. Until the Court definitively resolves the coverage issue, there are grounds for exercising supplemental jurisdiction over the D.C. law claim raising common questions o f law and fact.32 For her part, Ms. Benton argues that she is entitled to liquida ted damages and that she has met her burden to show the number of overtime hours worked. See Pl.’s Mem. Supp. Summ. J. at 15–18; Pl.’s Reply at 9–12, E CF No. 36. The FLSA provides f or liquidated damages; an employer can be liable to the employee “in the amount of their . . . unpaid overtime compensation . . . and in an additiona l equal amount as liquida ted damages.” 29 U.S.C. § 216(b). An employer can avoid such damages by showing “to th e satisfaction of the court that the act or omission giving rise to such action was in good faith and that [the employer] had reasonable grounds for believing that his act or omission was n ot a violation of the Fair Labor Standards Act.” Id. § 260. “In most instances an employer will be able to satisfy § 260’s ‘reasonable grounds’ requiremen t only if it has relied on a rea sonable, albeit erroneous, interpretation of the Fair Labor Standards Act or of the regula tions issued thereunder.” Thomas v. Howard Univ. Hosp. , 39 F.3d 370, 373 (D.C. Cir. 1994). Until the Court resolves exactly what Ms. Benton’s job duties entailed, however, the Court canno t adequately assess whether liquidated damages are warranted in this case. See id. at 373 (“A court cannot evaluate the ‘reasonableness’ of an employer’s b elief that its ‘act or omiss ion was not a violation’ without first identifying the ‘act or omission.’”). And, finally, unti l liability is established, any damages determination is premature.

V. CONCLUSION For the foregoing reasons, Defendant’s motion for summary judgm ent (ECF No. 31) is
DENIED and Plaintiff’s motion for summary judgment (ECF No. 32) is DENIED . An order consistent with this Memorandum Opinion is separately and conte mporaneously issued.
Dated: September 27, 2016 RUDOLPH CONTRERAS United States District Judge