United States Court of Appeals

For the First Circuit

Nos. 22-1134

 22-1135

PETER MARCUS, on behalf of himself and others similarly 

situated; MATT KOLTNOW, on behalf of himself and others 

similarly situated; DIANNE BARTON-PAINE, on behalf of herself 

and others similarly situated; ERIC BELL; JENNIFER CARMICHAEL; 

SUSAN S.M. DOE; HARRY FALK; JOHN GRAM; ARLEEN HARVEY; JEFFREY A. 

JACOB; CANDACE S. KOSCHNER; TERRY LAVENDER; KARL P. MILLER, JR.; 

MCKENZIE MYERS; JOAN M. PARADEIS; KENNETH VAN CLEVE; NANCY R. 

WATKINS; MARILYN WELLS; LYNN YOKEL, 

Plaintiffs, Appellants/Cross-Appellees,

v.

AMERICAN CONTRACT BRIDGE LEAGUE,

Defendant, Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Kayatta, Howard, and Montecalvo, 

Circuit Judges.

Raymond Dinsmore, with whom Peter Goselin, The Law Office of 

Peter Goselin, and Hayber, McKenna & Dinsmore, LLC were on brief, 

for appellants/cross-appellees.

Paul E. Prather, with whom Melissa L. McDonagh, Francis J. 

Bingham, and Littler Mendelson, P.C. were on brief, for 

appellee/cross-appellant. 
August 14, 2023
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MONTECALVO, Circuit Judge. Peter Marcus originally 

brought this action against the American Contract Bridge League 

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

complaint, Marcus and his co-plaintiffs sought unpaid overtime 

wages that they claimed were due under the Fair Labor Standards 

Act ("FLSA"). See 29 U.S.C. § 207(a). Marcus also claimed that 

he was wrongfully discriminated and retaliated against for 

requesting such pay. ACBL and plaintiffs both sought summary 

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

Marcus's retaliation claim. ACBL asserted that plaintiffs were 

exempt from the overtime requirement because they were properly 

classified as administrative employees under the FLSA. The 

plaintiffs countered that their primary duties did not involve 

managerial work sufficient to satisfy the exemption. 

Based on facts it deemed undisputed, the district court 

concluded that the administrative exemption applied to five 

classifications of employees because their primary duties related 

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

employees were not entitled to overtime pay; accordingly, partial 

summary judgment was entered for ACBL. The court also concluded 

that one classification of employees was not subject to the 

administrative exemption and that those employees were entitled to 

overtime pay; accordingly, summary judgment was entered for 

certain plaintiffs. As to Marcus's retaliation claim, the district 
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court entered summary judgment for ACBL because it found that 

Marcus failed to show that any adverse employment action taken 

against him was causally connected to him seeking overtime wages. 

These cross appeals follow. 

I. Statutory Background

The FLSA requires certain employers to pay their 

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

any hours worked in excess of a forty-hour workweek. 29 U.S.C. 

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

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

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

that an employee is exempt under the "administrative" exemption 

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

week; (2) the employee's "primary duty is the performance of office 

or non-manual work directly related to the management or general 

business operations of the employer or the employer's customers"; 

and (3) the employee's "primary duty includes the exercise of 

discretion and independent judgment with respect to matters of 

significance." 29 C.F.R. § 541.200(a). 

When considering whether the administrative exemption 

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

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

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

importance of the exempt duties as compared with other types of 
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duties; the amount of time spent performing exempt work; [and] the 

employee's relative freedom from direct supervision." Id.

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

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

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

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

Enters., Inc., 807 F.3d 431, 436 (1st Cir. 2015); see 29 C.F.R. 

§ 541.700(a) ("Determination of an employee's primary duty must be 

based on all the facts in a particular case, with the major 

emphasis on the character of the employee's job as a whole.").

Assuming the salary criterion of 29 C.F.R. § 541.200(a) 

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

operative question then becomes whether that primary duty is "work 

directly related to the management or general business operations 

of the employer or the employer's customers." 29 C.F.R. 

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

work directly related to assisting with the running or servicing 

of the business." Id. The employee's primary duty also "must 

include the exercise of discretion and independent judgment with 

respect to matters of significance." Id. at § 541.202(a). If all 

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

entitled to overtime pay. 
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II. Factual Background

ACBL is the largest bridge organization in the world, 

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

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

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

Mexico, and Bermuda. ACBL divides its geographical reach into 

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

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

bridge tournaments at three different levels: sectionals, which 

usually involve only one unit; regionals, which usually involve 

one district; and the North American Bridge Championships 

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

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

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

direct and support the [regional and sectional] tournaments and 

will bill the tournament sponsor." 

A. Relevant Job Positions at ACBL

The job titles assigned by ACBL to their employees 

relevant to the instant appeal are Tournament Director, National

Tournament Director, Associate National Tournament Director, Field 

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

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

are played fairly and with integrity for all the players in 

accordance with the Laws of Duplicate Bridge." Tournament 
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Directors may, inter alia, rule on disputes, enforce and maintain 

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

ensure timely play, and penalize players via the deduction of 

points or ejection. Tournament Directors are also responsible for 

setting up the tournaments and selling entries. 

The number of Tournament Directors present at a given 

tournament varies depending on the level of tournament, but every 

tournament has one Tournament Director who serves as the

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

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

many Tournament Directors are required for a tournament and 

supervising those Tournament Directors and other tournament staff. 

Tournament Directors are also assigned ranks based on 

their experience and skill. The rank determines what level of 

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

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

tournament director, associate national tournament director, or 

national tournament director. Generally, the DIC must have the 

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

tournament; (2) at least associate national tournament director 
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for a regional tournament; and (3) at least national tournament 

director for Nationals.1 

Field Supervisor was a position in existence prior to 

January 2018, primarily responsible for tournament organization, 

operations, and directing. Tournament Directors reported to Field 

Supervisors, and Field Supervisors were responsible for hiring and 

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

training, and development of Tournament Directors. Field 

Supervisors assigned the DIC for sectional and regional 

tournaments and completed performance reviews for the Tournament 

Directors they oversaw. At tournaments, Field Supervisors 

refereed game play while also supervising and providing feedback 

to their direct reports. 

In early 2018, ACBL reorganized its Field Operations 

department: it eliminated the Field Supervisor position and 

created four new positions. The duties of the Field Supervisor 

position were rolled over to the newly created Area Manager 

position, except that Area Managers have responsibility over more 

districts and perform special projects. Area Managers are the 

1 We agree with the district court's observation that "ACBL 

uses a somewhat bewildering variety of job titles and rankings." 

For example, "Tournament Director" is seemingly used as a general 

term for those who oversee tournaments, a job title, and a specific 

rank. Likewise, National Tournament Director and Associate 

National Tournament Director are seemingly job titles within ACBL 

as well as ranks of tournament directors. 
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"first point of contact" for issues relating to the operation of 

tournaments and the setup of games, and they interpret and 

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

resolve disputes, including appeals made by players concerning the 

rulings of other Tournament Directors. Area Managers also make 

employment decisions, including hiring and firing, assigning DICs, 

and writing annual performance reviews. 

Mentor was another position created in the 2018 

reorganization. This position only existed from January 2018 to 

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

promotion of Tournament Directors. Mentors directly answered 

Tournament Directors' questions, checked their hours, and gave 

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

tournaments and work directly with Area Managers to make tournament 

staffing decisions. Although Mentors did not have the authority 

to fire employees, their recommendations as to employment 

decisions were generally deferred to. 

The final two positions that came into existence because 

of the 2018 reorganization are National Tournament Director and 

Associate National Tournament Director. These employees are 

responsible for managing large tournaments and associated staff; 

training and mentoring other directors in making rulings, game 

setup, and scheduling; guiding disputes concerning game play and 
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poor behavior, including through the appeals process; and drafting 

regulations. 

B. Compensation 

1. Tournament Directors

In 2014, the only relevant position in existence was 

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

counsel to evaluate whether full-time Tournament Directors were 

properly classified as exempt under the FLSA. ACBL was advised 

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

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

thus continued to treat those employees as exempt from overtime 

pay requirements. ACBL was also advised that employees who 

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

2. Department of Labor Investigation

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

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

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

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

investigator concluded that "tournament directors in the field" 

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

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

recommendations, and did not have management as their primary 

duty." The investigator concluded that Marcus was entitled to 

$3,883.14 in overtime back wages. 
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The DOL investigator communicated their findings to 

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

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

disagreed that overtime was due to full-time salaried Tournament 

Directors. Counsel also said that ACBL was planning to discontinue 

the Tournament Director position and assured future compliance. 

The investigator "recommended that the file should be

administratively closed." The investigation did not result in any 

monetary penalties or enforcement actions against ACBL. 

3. Post-Investigation Exemption Status

In January 2017, ACBL began to classify full-time 

Tournament Directors as non-exempt. Field Supervisors remained 

exempt and ineligible for overtime pay. When ACBL reorganized its 

Field Operations team in 2018, the newly created positions of 

National Tournament Director, Associate National Tournament 

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

salaried positions. 

C. Marcus's Retaliation Claim

Marcus was first hired by ACBL in 1993 as a Tournament 

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

tournament director. In 2011, he began directing Sectional 

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

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

different physical locations. When directing STaCs, Marcus 
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assisted -- by phone or email -- in directing games at the clubs, 

as well as compiling the results. 

In June 2015, Marcus was promoted to the position of 

STaC Coordinator and his salary was increased. The STaC 

Coordinator position was salaried and ineligible for overtime. In 

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

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

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

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

consistently meets the standards of performance for [his] position 

and sometimes exceeds expectations." After the performance 

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

week. 

Thereafter, in April 2016, Marcus applied for the open 

position of Director of Field Operations. Marcus interviewed for 

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

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

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

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

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

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

sometime thereafter Rosenbury called to inform him that he would 

not be hired as the Director of Field Operations due to 

"attitudinal concerns." 
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The following month, Marcus proposed to Hartman that he 

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

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

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

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

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

reached out to Marcus about a complaint he received about STaC 

scores not being timely posted. Marcus resigned, effective 

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

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

In April 2017, ACBL hired another individual as Director 

of Field Operations. That individual had no previous knowledge of 

bridge directing or bridge tournaments. 

III. Procedural History 

A. Institution

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

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

alleged that ACBL failed to pay him and other similarly situated 

employees their FLSA-required overtime wages. Marcus also alleged

that ACBL retaliated against him for lodging a complaint with the 

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

certified the FLSA collective action, and notice was issued to 

potential class members. The district court ultimately recognized 
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Marcus, Matt Koltnow, and Dianne Barton-Paine as named plaintiffs, 

along with sixteen opt-in plaintiffs. 

B. Motion to Substitute

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

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

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

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

the motion to substitute was untimely because plaintiffs failed to 

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

required by the Federal Rules of Civil Procedure. The plaintiffs 

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

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

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

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

considering the plaintiffs' timely motion to substitute." 

The district court agreed with ACBL and denied the motion 

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

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

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

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

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

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

rule contains no such requirement." 
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C. Summary Judgment Proceedings

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

judgment. ACBL and plaintiffs both moved for summary judgment on 

the unpaid overtime wages claims, and ACBL moved for summary 

judgment on Marcus's retaliation claim. 

It is undisputed that plaintiffs satisfy the salary 

criterion of 29 C.F.R. § 541.200(a). That left only two prongs of 

the administrative exemption test for the district court to 

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

performance of office or non-manual work directly related to the 

management or general business operations of the employer or the 

employer's customers" and (2) whether the employee's "primary duty 

includes the exercise of discretion and independent judgment with 

respect to matters of significance." 29 C.F.R. § 541.200(a). 

The district court ultimately concluded that Tournament 

Directors are not subject to the administrative exemption because 

"the primary duty of Tournament Directors, which is officiating 

bridge contests, does not relate to the management or general 

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

exercise discretion or independent judgment with respect to 

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

those plaintiffs who worked as "salaried Tournament Directors 

since April 24, 2017," were entitled to overtime pay. 
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As to the remaining positions (National Tournament 

Directors, Associate National Tournament Directors, Field 

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

that all these positions are subject to the administrative 

exemption. The district court concluded that the primary duty of 

these positions -- managing large tournaments and associated 

staff; training and mentoring other directors in making rulings 

and tournament scheduling; guiding disputes; and drafting and 

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

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

and general business operations" and "includes the exercise of 

discretion and independent judgment with respect to matters of 

significance." Thus, the district court found that those 

plaintiffs who worked as National Tournament Directors, Associate 

National Tournament Directors, Field Supervisors, Area Managers, 

or Mentors were not entitled to overtime pay. 

Finally, the district court granted ACBL's motion for 

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

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

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

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

followed. 
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IV. Standard of Review

We review the entry of summary judgment de novo. See

Walsh v. Unitil Serv. Corp., 64 F.4th 1, 5 (1st Cir. 2023). 

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

standard, but rather simply require us to determine whether either 

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

are not disputed." Alasaad v. Mayorkas, 988 F.3d 8, 16 (1st Cir. 

2021), cert. denied sub nom., Merchant v. Mayorkas, 141 S. Ct. 

2858 (2021) (quoting Adria Int'l Grp., Inc. v. Ferre Dev., Inc., 

241 F.3d 103, 107 (1st Cir. 2001)). 

Because the district court's ruling on the motion to 

substitute a party turned on a question about the interpretation 

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

Comfort v. Lynn Sch. Comm., 560 F.3d 22, 25 (1st Cir. 2009)

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

a Federal Rule of Civil Procedure); see also Barlow v. Ground, 39 

F.3d 231, 233 (9th Cir. 1994) ("The proper interpretation of Rule 

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

We begin with the motion to substitute a party, then 

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

claims. 
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V. Analysis 

A. Motion to Substitute a Party

The parties dispute whether ACBL was required to serve 

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

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

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

of the decedent." Silas v. Sheriff of Broward Cnty., 55 F.4th 

872, 876 (11th Cir. 2022) (quoting Fed. R. Civ. P. 25(a)(1)). The 

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

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

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

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

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

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

Id. 

We have not yet had occasion to address whether the 

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

successor or personal representative before the 90-day clock 

starts to run. Several of our sister circuits have considered 

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

nonparty successors or representatives of the deceased party is 

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

55 F.4th at 876; Sampson v. ASC Indus., 780 F.3d 679, 681-82 (5th 

Cir. 2015); Atkins v. City of Chicago, 547 F.3d 869, 873 (7th Cir. 
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2008); Barlow, 39 F.3d at 234; Gilmore v. Lockard, 936 F.3d 857, 

866 (9th Cir. 2019); Grandbouche v. Lovell, 913 F.2d 835, 837 (10th 

Cir. 1990); Bass v. Attardi, 868 F.2d 45, 50 n.12 (3d Cir. 1989); 

Farris v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985). 

This conclusion is supported by both the language and purpose of 

the rule. 

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

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

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

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

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

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

service upon a decedent's successor or personal representative was 

not required. See United States v. Walker, 665 F.3d 212, 228 (1st 

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

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

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

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

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

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

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

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

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

note to 1963 amendment. It is clear to us that "information of 
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the death" must be provided to nonparty successors or 

representatives in order to empower them to take appropriate 

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

962. 

The import of this requirement is most apparent where, 

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

suggestion of death." Atkins, 547 F.3d at 873. Service of the 

suggestion of death upon the decedent's successor or personal 

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

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

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

meritorious actions." Rende v. Kay, 415 F.2d 983, 986 (D.C. Cir.

1969) (quoting Staggers v. Otto Gerdau Co., 359 F.2d 292, 296 (2d 

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

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

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

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

It appears that, of the circuits to have considered this 

precise issue, only the Second Circuit has concluded that under 

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

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

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

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

986 F.3d 147, 150 (2d Cir. 2021), cert. denied, 142 S. Ct. 598 
- 21 -

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

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

plaintiff's representative who, having never received service of 

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

dismissed lawsuit." Id. at 154 (emphasis in original). And that 

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

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

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

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

while the 90-day window lapsed." Id. 

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

begin running under Rule 25, the suggesting party must properly 

serve both the other parties and a nonparty successor or personal 

representative of the deceased with a notice of death. Because 

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

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

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

to substitute Sarah Van Cleve. 

B. Retaliation

We next turn to whether the district court properly 

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

claim. The FLSA prohibits employers from retaliating against "any 

employee because such employee has filed any complaint or 

instituted or caused to be instituted any proceeding under or 
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related to" the FLSA. 29 U.S.C. § 215(a)(3). Employees mounting 

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

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

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

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

Figueroa v. Alejandro, 597 F.3d 423, 431 (1st Cir. 2010) (quoting 

Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 

(1st Cir. 2004)).2

The parties do not dispute that the first part of this 

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

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

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

Director of Field Operations constitutes an adverse employment 

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

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

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

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

Wareham, 316 F.3d 18, 23 (1st Cir. 2002) (quoting Hoeppner v. 

Crotched Mtn. Rehab. Ctr., 31 F.3d 9, 14 (1st Cir. 1994)). 

2 We have held before that "Title VII, ADEA, ERISA, and FLSA 

[] stand[] in pari passau," and that "judicial precedents 

interpreting one such statute [are] instructive in decisions 

involving another." Serapion v. Martinez, 119 F.3d 982, 985 (1st 

Cir. 1997). Thus, we sometimes draw on precedents developed in 

other types of discrimination cases.
- 23 -

We begin with the temporal proximity between the DOL 

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

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

decision not to promote him to Director of Field Operations 

contributes to the requisite causal connection showing. 

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

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

DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008) (quoting 

Mariani-Colon v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d 

216, 224 (1st Cir. 2007)). 

The parties set forth different milestones from which to 

measure temporal proximity. Marcus maintains that the relevant 

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

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

of Director of Field Operations. Accepting Marcus's shortest 

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

protected activity and the adverse employment action is nine 

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

inference of a causal connection between a complaint and an 

allegedly retaliatory action." Ahern v. Shinseki, 629 F.3d 49, 58 

(1st Cir. 2010). 

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

employment actions as his evidence of causal connection. Indeed, 

"'temporal proximity' is merely one factor relevant to causation," 
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Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15, 25 (1st Cir. 

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

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

Hosp., LLC, 699 F.3d 19, 28 (1st Cir. 2012). The "other evidence" 

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

to Director of Field Operations was motivated by retaliatory animus 

is that he was the only applicant interviewed for the position 

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

ultimately filled the position with someone Marcus believes was 

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

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

promoted due to "attitudinal" concerns. 

We begin with Marcus's latter argument. He maintains 

that Rosenbury informed him that even though his interview had 

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

Operations due to "attitudinal concerns." However, Marcus 

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

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

that a judge must not engage in making credibility determinations 

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

equally clear that judges cannot allow conjecture to substitute 

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

Children's Place, 740 F.3d 785, 802 (1st Cir. 2014) (internal 

citations omitted). As such, Marcus cannot rely on his speculative 
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and unsupported assertion of why ACBL did not hire him for the 

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

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

Inc., 486 F.3d 1, 8 (1st Cir. 2007) (noting that when reviewing 

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

empty conclusions, [or] rank conjecture"). 

We next turn to the fact that ACBL only interviewed 

Marcus for the position but ultimately hired someone who had very 

limited experience with the game of bridge. The record reflects 

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

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

Moreover, ACBL hired another individual as the Director of Field 

Operations eight months after Marcus voluntarily resigned, and 

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

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

perspective to the organization." Marcus has not produced any 

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

of Director of Field Operations were pretextual.

We end with one additional argument advanced by Marcus: 

that "Hartman harbored animus against Marcus for having initiated 

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

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

argument, Marcus contends that Hartman lied in claiming that he 

did not remember Marcus applying for the position of Director of 
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Field Operations, and that a reasonable jury could find this 

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

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

decisionmaker knew of the plaintiff's protected conduct when 

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

Celulares Telefonica, Inc., 447 F.3d 79, 85 (1st Cir. 2006). A 

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

about Marcus's protected activity. 

The only evidence Marcus points to is that in November 

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

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

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

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

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

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

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

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

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

Accordingly, any purported incredible testimony given by Hartman 

is not probative of retaliation because there is no evidence in 

the record from which a reasonable juror could infer that Hartman 

knew about Marcus's protected activity. 

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

evidence of a causal connection between Marcus's filing of the DOL 
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complaint and ACBL's decision not to promote him to Director of 

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

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

C. Administrative Exemption

Finally, we consider whether the district court properly 

classified the various positions at issue pursuant to the FLSA and 

the administrative exemption. As we previously stated, the parties 

do not dispute that the first prong of the administrative exemption 

is met (sufficient compensation requirement) for all of the 

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

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

related to management or general business operations) and third 

prong (primary duty includes the exercise of discretion and 

independent judgment with respect to matters of significance). 

1. Tournament Directors

We begin with whether the Tournament Directors' primary 

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

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

[first] identify and articulate the business purpose of the 

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

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

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

sectional and regional tournaments, plus 1 million tables played 

online." Providing Tournament Directors for contract bridge 
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tournaments sanctioned by ACBL represents ACBL's largest source of 

revenue besides membership dues.

The primary duty of Tournament Directors is to 

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

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

ACBL is in the business of providing. Therefore, because 

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

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

F.4th at 7; see Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 

535 (2d Cir. 2009) (noting that "employees directly producing the 

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

perform administrative work). The district court thus correctly 

concluded that Tournament Directors are not subject to the 

administrative exemption under the FLSA. 

2. National Tournament Directors and Associate National 

Tournament Directors 

Like Tournament Directors, the primary duty of National 

and Associate National Tournament Directors is to supervise bridge 

tournaments. They are required to work around 300 tournament 

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

such as training and mentoring other directors in 

tournament-related areas, guiding disputes concerning game play, 

and/or drafting tournament regulations, these duties all go 

towards producing an ACBL-sanctioned bridge tournament. National 
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and Associate National Tournament Directors' responsibilities 

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

no evidence in the record that National and Associate National 

Tournament Directors are part of the management structure of ACBL 

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

business." 29 C.F.R. § 541.201(a). 

National Tournament Directors and Associate National 

Tournament Directors produce the key product of ACBL-sanctioned 

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

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

Charles Town Gaming, L.L.C., 564 F.3d 688, 694-95 (4th Cir. 2009)

(holding that horse racetrack officials who observed and examined 

horses and jockeys, filled out relevant paperwork for the horses 

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

were not administrative employees because they performed tasks to 

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

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

or general business operations." 29 C.F.R. § 541.200(a)(2). 

We need not address whether their work met the additional 

administrative exemption requirement of "includ[ing] the exercise 

of discretion and independent judgment with respect to matters of 

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

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

that the FLSA's administrative exemption applies to National 
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Tournament Directors and Associate National Tournament Directors, 

the district court erred in granting summary judgment in favor of 

ACBL and in denying summary judgment to the corresponding 

plaintiffs. 

3. Field Supervisors and Area Managers

Unlike the preceding positions, Field Supervisors and 

Area Managers meet both outstanding requirements of the 

administrative exemption. Despite plaintiffs' argument to the 

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

Supervisors and Area Managers is directing tournaments. These 

employees may spend approximately 75 percent of their time 

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

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

ACBL's management or general business operations. 29 C.F.R. 

§ 541.200(a)(2). 

The duty of these employees goes beyond producing 

ACBL-sanctioned bridge tournaments and instead requires them to do 

"work directly related to the management or general business 

operations of" ACBL. 29 C.F.R. § 541.200(a)(2). Field Supervisors 

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

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

executing the strategic direction of field operations." They are 

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

processes and programs, including tournament planning/review and 
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plans to maintain standards of player satisfaction. The processes 

and programs directly relate to the running of ACBL and are 

significant to ACBL because they are designed to ensure the 

long-term integrity of bridge tournaments and satisfaction of 

ACBL's consumers. See Hines v. State Room, Inc., 665 F.3d 235, 

243 (1st Cir. 2011) (working to "establish long-term 

relationships, to keep clients happy and to maintain the overall 

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

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

plans, Field Supervisors and Area Managers "exercise discretion 

and independent judgment." 29 C.F.R. § 541.200(a)(3); see also

id. § 541.202(b). 

While directing tournaments, Field Supervisors and Area 

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

for issues related to tournament operations and staff" and to 

"[e]stablish and maintain effective relationships with tournament 

sponsors." These high-level customer service-oriented 

responsibilities also directly relate to ACBL's business 

operations. See Cash v. Cycle Craft Co., Inc., 508 F.3d 680, 686 

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

customer service" and satisfaction fell within administrative 

exemption).

Beyond these long-term goals, Field Supervisors and Area 

Managers also had significant supervisory authority over other 
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employees, including writing annual performance reviews and making 

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

clearly a management duty," Donovan v. Burger King Corp., 672 F.2d 

221, 226 (1st Cir. 1982), and it involves the exercise of 

discretion and independent judgment because the employment 

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

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

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

on significant matters." 29 C.F.R. § 541.202(b). 

Accordingly, all prongs of the administrative exemption 

are satisfied with respect to Field Supervisors and Area Managers. 

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

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

Supervisors and Area Managers.

4. Mentors

This brings us to the final disputed position of Mentors. 

Each Mentor reported directly to an Area Manager and was 

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

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

Mentors answered Tournament Directors' questions, checked their 

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

in something more than routine" tournament directing. Cash, 508

F.3d at 686 (quoting Reich, 126 F.3d at 10). Instead, Mentors 

helped run ACBL's business by recruiting, supervising, and setting 
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standards for Tournament Directors. See Reich, 126 F.3d at 10 

(holding that "representing the company" qualified as 

administrative work). 

Mentors exercised discretion and independent judgment 

with respect to matters of significance because "higher-level 

managers generally deferred to" their recommendations "as to 

important employment decisions." See 29 C.F.R. § 541.202(c) 

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

even if their decisions or recommendations are reviewed at a higher 

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

are satisfied with respect to Mentors.

VI. Conclusion

For the foregoing reasons, we reverse the district 

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

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

retaliation claim; reverse the district court's judgment with 

respect to the FLSA overtime claims of National Tournament 

Directors and Associate National Tournament Directors; affirm the 

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

case to the district court for any further proceedings consistent 

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