UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2321
ROBERT SCHMIDT,
Plaintiff - Appellant,
v.
BARTECH GROUP, INC.; VERIZON CORPORATE SERVICES GROUP INC.,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cv-00112-GBL-IDD)
Submitted: July 24, 2015 Decided: August 5, 2015
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John C. Cook, Lee B. Warren, COOK CRAIG & FRANCUZENKO, PLLC,
Fairfax, Virginia, for Appellant. Roman Lifson, David B. Lacy,
CHRISTIAN & BARTON, LLP, Richmond, Virginia; Betty S.W.
Graumlich, REED SMITH LLP, Richmond, Virginia; Helenanne
Connolly, REED SMITH LLP, Falls Church, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Schmidt appeals the district court’s order granting
summary judgment to his former employers, Bartech Group, Inc.
(“Bartech”), and Verizon Corporate Services Group, Inc.
(“Verizon”) (collectively “Defendants”), on his claims under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219 (2012),
and state-law claims for breach of contract and wrongful
discharge. We affirm.
We review de novo whether a district court erred in
granting summary judgment, viewing the facts and drawing all
reasonable inferences in the light most favorable to the
nonmoving party. Glynn v. EDO Corp., 710 F.3d 209, 213 (4th
Cir. 2013). Summary judgment is properly granted “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A district court should grant summary
judgment unless a reasonable jury could return a verdict for the
nonmoving party on the evidence presented. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
Schmidt first argues that under the FLSA he was entitled to
payment at his hourly rate for hours worked in excess of 40
hours per workweek. “The FLSA establishes the general rule that
employers must compensate each employee ‘at a rate not less than
one and one-half times the regular rate’ for all overtime hours
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that an employee works.” Darveau v. Detecon, Inc., 515 F.3d
334, 337 (4th Cir. 2008) (quoting 29 U.S.C. § 207(a)(1) (2012)).
As relevant here, the FLSA exempts from this general rule “any
employee who is a computer systems analyst, computer programmer,
software engineer, or other similarly skilled worker, . . . who,
in the case of an employee who is compensated on an hourly
basis, is compensated at a rate of not less than $27.63 an
hour.” 29 U.S.C. § 213(a)(17) (2012).
The FLSA provides a private cause of action for violations
of the minimum wage and overtime pay provisions, 29 U.S.C.
§§ 206-207 (2012), and for unlawful retaliation. 29 U.S.C.
§§ 215(a)(3), 216(b) (2012); cf. Kendall v. City of Chesapeake,
Va., 174 F.3d 437, 441 (4th Cir. 1999) (“[T]he FLSA creates
enforceable federal rights to a minimum wage and to overtime
compensation.”). Because Schmidt is exempt from both the
minimum wage and overtime pay provisions, we conclude that he
does not have a cause of action under the FLSA for payment of
his hourly wage for hours worked in excess of 40 hours per week.
Next, Schmidt asserts that the Defendants unlawfully
retaliated against him under the FLSA. The antiretaliation
provision of the FLSA makes it unlawful for an employer “to
discharge or in any other manner discriminate 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). To establish a
prima facie claim of retaliation under the FLSA, a plaintiff
must show that: (1) he engaged in an activity protected by the
FLSA; (2) he suffered adverse action by the employer subsequent
to or contemporaneous with such protected activity; and (3) a
causal connection exists between the employee’s activity and the
employer’s adverse action. Darveau, 515 F.3d at 342.
To meet the second prong, an FLSA plaintiff must show “that
his employer retaliated against him by engaging in an action
that would have been materially adverse to a reasonable employee
because the employer’s actions could well dissuade a reasonable
worker from making or supporting a charge of discrimination.”
Id. at 343 (alteration and internal quotation marks omitted).
We conclude that Schmidt did not suffer an adverse action
because no reasonable jury could find that he was terminated.
Schmidt informed his supervisor that she should contact Bartech
to cancel his contract or request a replacement. When the
supervisor offered to look into a different job with Verizon for
him, Schmidt informed her that such help was unnecessary and
that his former coworker could be a good replacement for him.
Thus, it is clear Schmidt resigned, and therefore, summary
judgment was proper on this claim.
Schmidt also asserts a claim for wrongful termination under
Virginia law. Although Virginia is an at-will employment state
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and Virginia law generally does not support a wrongful
termination cause of action, a narrow exception exists when the
termination occurs as a result of an employer’s violation of
public policy. Bowman v. State Bank of Keysville, 331 S.E.2d
797, 801 (Va. 1985). Because no reasonable jury could conclude
that he was terminated, we conclude that summary judgment was
also appropriate on this claim.
Finally, Schmidt contends that Bartech breached his
employment contract by failing to pay him his hourly wage for
hours worked in excess of 40 per workweek. To sustain a breach
of contract claim under Virginia law, the defendant must violate
a legally enforceable obligation to the plaintiff, resulting in
injury or damage to the plaintiff. Squire v. Va. Hous. Dev.
Auth., 758 S.E.2d 55, 60 (Va. 2014). “A breach is material if
it is a failure to do something that is so fundamental to the
contract that the failure to perform that obligation defeats an
essential purpose of the contract.” Parr v. Alderwoods Grp.,
Inc., 604 S.E.2d 431, 435 (Va. 2004) (internal quotation marks
omitted). A material breach by one party excuses the other from
performing its contractual obligations. Mathews v. PHH Mortg.
Corp., 724 S.E.2d 196, 199 (Va. 2012).
We conclude that Schmidt breached the contract first by
failing to report the hours worked in excess of 40 hours per
workweek and thus Bartech was excused from performance. While
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Virginia “courts will generally not infer covenants and promises
which are not contained in the written provisions, . . . what is
necessarily implied is as much a part of the instrument as if
plainly expressed and will be enforced as such.” Pellegrin v.
Pellegrin, 525 S.E.2d 611, 614 (Va. Ct. App. 2000) (internal
quotation marks omitted). Bartech contracted to pay him an
hourly wage, but it could not be expected to pay him for hours
that he did not report to them. Thus, we conclude that Schmidt
had an implied duty to accurately report his hours. Schmidt’s
failure to do so is a material breach of the contract because
failing to report his hours “defeats an essential purpose of the
contract” — Bartech’s payment of Schmidt for his hours worked.
Parr, 604 S.E.2d at 435 (internal quotation marks omitted).
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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