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Andrew R. Frisch
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N.D.Tex.: Absent Proof Of Likelihood Of Interstate Trips, Plaintiff Truckdrivers Not Subject To Motor Carrier Act (MCA) Exemption; Summary Judgment Held In Abeyance

June 26, 2009 11:46 am / Leave a comment

Songer v. Dillon Resources, Inc.

Here, the parties moved by cross Motions for Summary Judgment for a determination as to whether the Plaintiff-truckdrivers were subject to the so-called Motor Carrier Exemption of the FLSA, based on the nature of their duties driving for Defendant, an interstate motor carrier. The Court held the Motions in abeyance, questioning the quality of proof offered by the Defendant.

After acknowledging the parties agreed Defendant was a “motor carrier” the Court examined the necessary proof the Defendant was required to come forward with in order to meet its burden of proof on the exemption, and concluded Defendant had failed to do so, “[c]oncluding that plaintiffs, as truck drivers, are subject to the Motor Carrier Act exemption, however, does not end the court’s inquiry. The court is not persuaded that the exemption bears the unlimited scope and duration defendants have suggested. In support of their respective positions, the parties argue regarding the application and authority of a number of interpretive guides, including an Interpretive Bulletin of the Department of Transportation, Federal Highway Administration, 46 Fed.Reg. 37902, 1981 WL 115508; the DOL Field Operations Handbook; and Opinion Letters of the DOL’s Wage and Hour Division. All of these sources, while not controlling or entitled to deference, are “entitled to respect” to the extent they are persuasive or offer guidance. Christensen v. Harris County, 529 U.S. 576, 587-88 (2000); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). All of these sources lead to the same conclusion: a driver is subject to the jurisdiction of the Secretary, and thus under the Motor Carrier Act exemption, for a “4-month period from the date of the proof” that he was, or could have been, called upon to engage in interstate commerce. 46 Fed.Reg. 37902, 37903.

Although the court concludes that plaintiffs, as drivers for at least one motor carrier, are subject to the Motor Carrier Act exemption to some extent, defendants have failed to adduce summary judgment evidence of the specific application of the exemption as to each plaintiff for these defendants. The summary judgment evidence submitted by defendants sets forth generally the dates of plaintiffs’ employment and states generally the number of interstate trips made by that plaintiff. However, defendants have adduced nothing as would show, as to each plaintiff, proof of when he or she was, or could have been, called upon to transport goods in interstate commerce such that the exemption clock began ticking as to that plaintiff.

Defendants submitted summary judgment evidence that purports to be bills of lading or similar types of work tickets showing that various plaintiffs transported goods across state lines or within Texas in the intrastate flow of interstate commerce. Insofar as the court can tell, none of these items show any of the defendants as the employer or trucking company of record. For example, many of the work tickets, under the heading “Carrier,” list “Sunset Transp” or, in some cases, “Sunset Trucking.” Neither of these entities is a party to this action, nor have defendants pointed the court to any summary judgment evidence explaining the relationship, if any, between them and either of those entities.

The court also has concerns about defendants’ summary judgment evidence generally. Defendants’ appendices as assembled do not correspond to either the tables of contents or to internal citations to exhibits within affidavits. By way of example, in volume I of the appendix, the affidavit of Edward Brady refers to exhibits A, B, C, etc., attached thereto. The exhibits themselves, however, are tabbed as number 1, 2, 3, etc., making it difficult for the court to identify exactly to which exhibit the affidavit refers. This pattern is repeated as to each affidavit with exhibits. Further, the affidavits contain many conclusory assertions and do not properly authenticate the documents attached thereto as exhibits. As the court would find it helpful for the parties to provide additional briefing and evidence on the limited issues set forth below, it is expected that any additional evidence submitted will be properly assembled and identified and internally consistent. Therefore,

The court ORDERS that plaintiffs’ partial motion for summary judgment, and defendants’ motion for summary judgment, be, and are hereby, held in abeyance pending further consideration by the court of the parties’ supplemental filings ordered below.”

S.D.Fla.: Enterprise Coverage Properly Asserted Where Employer Grossed $500K And 2 Or More Employees Handled Goods Which Had Traveled In Interstate Commerce; “Ultimate Consumer” Not Applicable To This Prong Of Enterprise Coverage

June 25, 2009 11:42 am / Leave a comment

Diaz v. Jaguar Restaurant Group, LLC

This case was before the Court on Defendants’ Motion for Summary Judgment, based on an asserted lack of enterprise coverage under the FLSA. The Court denied Defendants’ Motion, based on the fact that Plaintiff demonstrated that 2 or more employees handled goods which had traveled in interstate commerce. While, this appears to be an unquestionable correct reading of the statute, it is significant, because several courts within the Southern District of Florida, have inexplicably failed to read the statute on its face to allow for coverage under similar circumstances.

After considering the historical perspective (and changes) to the FLSA, the Court stated, “in a case where materials are at issue under the second prong of the definition of an enterprise, the “ultimate consumer” limitation has no application. See also Exime, 591 F.Supp.2d at 1371 (Court should “give effect, if possible, to every word and clause” contained in a statute, citing Lowery v. Ala. Power Co., 483 F.3d 1184, 1204-05 (11th Cir.2007)).

Finally, if we step back to ask what the Congress meant in the original 1938 statute with its “goods” limitation found in section 203(i), as opposed to what a very different Congress meant in 1974 by adding “materials” to the enterprise coverage provision in question, the answer is evident from the quite disparate contexts in which these provisions were adopted. The original definition of goods was adopted in a FLSA statute that was purposefully limited to only those individual employees who were themselves participating in interstate commerce. The context of the 1974 amendments was precisely the opposite. A far more liberal Congress was certainly seeking to expand enterprise coverage even further than it did in 1961 and 1966, for employees who were not directly engaged in interstate commerce.”

Addressing recent 11th Circuit case law related to coverage (and distinguishing same), the Court stated, “Fast forward then to 2006 and beyond. We recognize that the cases relied upon by Defendant (including several recent Southern District cases interpreting language found in two Eleventh Circuit cases) ostensibly support a far different construction of enterprise coverage that takes us back to where we were prior to 1974. See, e.g., Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1267 (11th Cir.2006) (citing Dunlop in part for the proposition that “[w]hen goods reach the customer for whom they were intended, the interstate journey ends and employees engaged in any further intra state movement of the goods are not covered under the Act.”) (emphasis in original) (citations omitted); Lamonica, 578 F.Supp.2d at 1367 (“[A] customer who purchases an item from Home Depot is not engaged in commerce even if Home Depot previously purchased it from out-of-state wholesalers.”); Navarro, 533 F.Supp.2d at 1226 (“[T]he out-of-state shippers send the parts to the local dealer, where they are kept until they are purchased in the local market. Therefore, the interstate journey stops when the parts reached [sic] the local dealer.”).

To the extent these district court were applying the second prong of enterprise coverage under section 203(s)(1)(A)(i), which is at issue here, they may be over-relying on distinguishable, but more recent, Eleventh Circuit cases, and overlooking the analysis of the question in Dunlop following the 1974 amendments to the FLSA.

So where did the confusion originate? It seems to have begun with the Eleventh Circuit panel decision’s summary discussion of Dunlop in Thorne v. All Restoration Services, which was a case decided entirely under the individual coverage provisions of the FLSA. A worker, Thorne, who was employed by a small mold restoration company sued for overtime compensation under the FLSA. Thorne claimed that the company was covered by the enterprise coverage as well as the individual coverage provisions of the statute. At trial, however, only Thorne testified in his case in chief. The trial court, Judge Cohn from our district, entered Rule 50 judgment as a matter of law on both the enterprise coverage and individual coverage components of the case. SeeCase No. 04-60095, D.E. 46 (S.D. Fla. Feb 1, 2005).

On appeal to the Eleventh Circuit, Thorne did not challenge Judge Cohn’s finding that enterprise coverage had not been established as a matter of law. Apparently there was no testimony in the record at that point in the trial that even the $500,000 sales threshold had been met. See Brief for Appellant, 2005 WL 4814060, at *3-7 (11th Cir. May 31, 2005). The Court’s opinion expressly acknowledged that enterprise coverage was no longer at issue on appeal. 448 F.3d at 1265 n. 1.

The Court then examined whether Judge Cohn’s determination as to individual coverage should be upheld. The individual coverage issue, as the Court pointed out, turned on whether Thorne was “directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce, e.g., transportation or communication industry employees, or (ii) by regularly using the instrumentalities of interstate commerce in his work, e.g., regular and recurrent use of interstate telephone, telegraph, mails, or travel.” Id. at 1266.That is undoubtedly the test for individual coverage under 29 U.S.C. § 207(a)(1) and the regulations thereunder, 29 C.F.R. §§ 776.23(d)(2), 776.24 (2005).

The statutory definition for enterprise coverage, by contrast, does not only apply to employees with “direct participation” in the “actual movement” of things in interstate commerce. That is a far narrower test found in the first prong of the statute, which is precisely why the 1961, 1966 and 1974 amendments created and expanded enterprise coverage under the statute. See29 U.S.C. § 203(s)(1)(A)(i) (“has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person”) (emphasis added).

It is telling, for instance, that many of the primary decisions cited by the Eleventh Circuit’s decision in Thorne were from the 1940’s. 448 F.3d at 1266-68 (citing McLeod v. Threlkeld, 319 U.S. 491, 496-97 (1943) (finding that plaintiff’s activities were purely local, and he was not individually engaged in commerce when he merely cooked and cleaned for railroad workers); Kirschbaum v. Walling, 316 U.S. 517, 518-526 (1942)).

The outcome in Thorne is thus entirely expected and non-controversial. The same cannot be said, as it turns out, of the Court’s citation and reliance on the Fifth Circuit’s decision in Dunlop as follows:

Courts distinguish between merchants who bring commerce across state lines for sale and the ultimate consumer, who merely purchases goods that previously moved in interstate commerce for intrastate use. Therefore, a customer who purchases an item from Home Depot is not engaged in commerce even if Home Depot previously purchased it from out-of-state wholesalers.

In Dunlop v. Industrial America Corporation, 516 F.2d 498, 499 (5th Cir.1975), the court was faced with the question of whether a business which consumes gasoline and oil in the process of providing services to its customers is the “ultimate consumer” of those goods, and therefore not subject to FLSA coverage. The defendant corporation operated a wholly intrastate garbage removal service, and its only tie to interstate commerce was that its employees used gasoline and oil products which had moved in interstate commerce in operating and maintaining the company’s trucks. The court held that the defendant was not covered because it was an “ultimate consumer” of the goods. Id. at 499-502.
448 F.3d at 1267-68.

From this discussion, one is left with two important impressions. One is that Dunlop stands for that proposition today. And, two, is that this proposition applies equally to individual coverage cases like Thorne, as well as enterprise coverage cases like Dunlop.Both impressions are flatly incorrect. First, Dunlop does not stand for the proposition that, even after the 1974 amendments, enterprise coverage under the second prong of subsection s(1)(A)(i) fails when an entity is the ultimate consumer of “materials” as well as goods that have moved in interstate commerce in the past. The Thorne decision never explained that the holding in Dunlop was out-dated by the Court’s own admission after 1974. That omission was not critical, of course, to the outcome in Thorne.Frankly, the entire citation and reference to Dunlop was indeed dicta because the holding in Thorne was expressly not applicable to enterprise coverage.

Second, Dunlop also does not apply to individual coverage analysis.Dunlop was focused on the second prong of the enterprise definition. Unlike the first prong of that definition, individual coverage analysis is entirely distinct from the “goods or materials” prong of the statute. Dunlop thus has no relevance to a case limited to individual coverage. Similarly, Dunlop has no application to an enterprise coverage case that is based on the first prong of the statute. And, for the same reason, Thorne has no relevance to a case governed by the broader second prong of subsection s(1)(A)(i). Yet, Thorne’s reliance on Dunlop seems to suggest quite the opposite.

That is also evident from a later Eleventh Circuit case, Scott v. K.W. Max Invs., Inc., 256 Fed.Appx. 244 (11th Cir.2007). That case, at first blush, appears to have relied on Thorne’s individual coverage analysis and the “ultimate consumer” limitation to decide an enterprise coverage claim. And it has been cited as such by some district court opinions, infra.Yet that opinion did not once mention Dunlop or distinguish its analysis of the expansion of enterprise coverage via the “materials” prong added in 1974. It did not need to do so, in fact, because it was deciding the enterprise coverage issue primarily on the “first prong” of the statute. The court’s holding as to enterprise coverage claim was focused on whether there was any evidence in the record of any “actual movement” of goods in commerce. None was presented except for a single isolated purchase of lumber in interstate commerce that did not qualify as a regular and recurrent practice. With respect to the second prong of enterprise coverage, “goods or materials” that had been moved in commerce in the past, the Court’s discussion was quite limited. “Scott offers no specific argument or any evidence that any of the goods purchased from Home Depot had been moved in or produced for interstate commerce.” Id. at 248.Therefore, we do not read Scott as holding in any way that the ultimate consumer limitation applies to “materials” under the second prong of the statute.

Unlike Judge Seitz’s opinion in Exime, however, several Southern District cases rely on the conclusion that Scott permits the use of individual coverage case definitions to decide enterprise coverage cases as a general matter. This is simply too broad a proposition. With respect to the “goods or materials” prong of the statute, as discussed earlier, the 1974 amendments significantly broadened that definition of enterprise coverage, extinguishing the “ultimate consumer” issue altogether from that prong of the statute. This significant change to the text of the statute did not apply to individual coverage cases governed by 29 U.S.C. § 207(a)(1), nor did it apply to the first prong of the definition of an enterprise under 29 U.S.C. § 203(s)(1)(A)(i).

Like Judge Seitz, we do not choose to follow those cases that read more into the holding in Scott and the dicta in Thorne, and overlook the significance of the holding and analysis found in Dunlop. See, e.g., Lamonica, 578 F.Supp.2d at 1366; Ben-Aime, 572 F.Supp.2d at 1317; Polycarpe, 572 F.Supp.2d at 1321. We certainly do not question the outcome of these decisions to the extent they were based, as several seem to be, on the first prong of the enterprise coverage provision. The ultimate consumer doctrine certainly continues to apply, as it does for individual coverage, to enterprise coverage cases that are so limited. If, on the other hand, the “goods or materials” prong of the statute applies, then there is no longer any need to address the ultimate consumer or “come to rest” doctrine. The dispositive question simply asks whether two or more employees are handling materials, that have traveled in interstate commerce at some point in the past, for an enterprise with at least $500,000 in sales. And while it is true, as Defendants contend, that fulfillment of the statutory business volume requirement is not itself sufficient to create enterprise coverage, “[m] ost, if not every, Circuit Court that has spoken on this issue [including the 11th Circuit, as well as some lower federal courts] ha[ve] … construed the 1974 amendment as expanding enterprise coverage to virtually all employers, so long as that employer satisfies the $500,000 gross sales requirement.”Exime, 372 F.Supp.2d at 1370. “Thus the enterprise commerce test, quite simply, embraces all businesses whose employees regularly handle materials previously moved across inter-state lines.”Id. at 1372.

Having determined, under the current version of the FLSA, Defendants’ employees handled materials that are still “in commerce,” the Court then found that Plaintiff had produced sufficient evidence that they did so on a “regular and recurrent” basis. Therefore, the Court denied Defendants Motion for Summary Judgment.

Although not mentioned by the Court, many of the cases holding contra are up on a consolidated appeal at the 11th Circuit. Therefore, this case, which appears to correctly annunciate the scope of enterprise coverage under the circumstances, will stand if the 11th Circuit similarly reverses the prior contra holdings of several the Florida district courts distinguished by this Court.

S.D.Miss.: FLSA Prohibits Offset Based On Paying Employees 11 Minutes Per Day For Time Not Worked

June 24, 2009 1:05 am / Leave a comment

Agee v. Wayne Farms LLC

The litigation in this case arises from the allegations that the Defendant has violated the Fair Labor Standards Act (“FLSA”) by failing to compensate a number of its employees for work-related activities. See generally29 U.S.C.S. § 201 et seq. The Plaintiffs in this case contest a specific pay practice: the use of a master time card to track the work hours of employees assigned to a processing line at the Defendant’s Laurel, Mississippi plant. The Plaintiffs contended that this pay practice allows the Defendant to forego paying them for time spent on activities that are compensable under the FLSA. The case was before the Court on Defendant’s motion for partial summary judgment. Finding that Defendant’s could not properly off-set time worked by Plaintiffs but not properly paid by Defendant, the Court denied Defendant’s Motion.

The Plaintiffs filed this action against Wayne Farms claiming violations of the minimum wage and maximum hour (overtime) requirements of the FLSA. see29 U.S.C. §§ 206, 207. In their motion for summary judgment, Defendant contended that the Plaintiffs’ complaints ignored Defendant’s practice of paying each employee for 11 extra daily minutes in addition to those minutes actually worked. Six of these eleven extra daily minutes are paid as “personal time.” Defendant alleged that it “adds another five paid minutes to each day by giving Laurel plant employees a thirty-five minute lunch break, while deducting only thirty of those minutes from paid time.” Defendant contended that when the additional 11 daily minutes are factored in, the 17 Plaintiffs listed above no longer allege viable FLSA claims.

Addressing this argument, deemed one of first impression by the Court, the Court explained, “[e]ven assuming that Wayne Farms has established that there is no genuine issue of material fact, this Court cannot grant the instant motion for summary judgment unless it is convinced that Wayne Farms is also entitled to judgment as a matter of law. FED R. CIV. P. 56(b). Wayne Farms has failed to cite even a single legal authority supporting its contention that it need not compensate its employees for work performed but can simply credit it against payments made to its employees for a paid lunch period or a paid personal time period . In light of Wayne Farms’ utter failure to cite legal authority in support of its contention, combined with the results of the Court’s independent research, the Court is not convinced that Wayne Farms would be entitled to judgment as a matter of law even if the facts of the case are as Wayne Farms represents them to be.

The question of whether an employer can lawfully credit “personal time” payments and “paid lunch” payments against compensation due to the employees under the FLSA appears to be one of first impression in this district. The Court notes, however, that one district court in this circuit has considered and rejected a similar argument. In addition, at least one circuit court has rejected a similar argument.

Section 207(h) of the FLSA governs compensation creditable toward minimum wage and overtime compensation. See§ 207(h)(1). Generally, “sums excluded from the regular rate … shall not be creditable” toward such wages. Id. Instead, only the “[e]xtra compensation paid as described in [§ 207(e)(5)–(e)(7) ] shall be creditable ….” § 207(h)(2).Sections 207(e)(5) through (e)(7) list only the “extra compensation provided by a premium rate” and are therefore inapplicable in the case at bar. As a result, the Court concludes that § 207(h) prohibits the manner of offsetting that Wayne Farms seeks to employ.

In Duplessis v. Delta Gas, Inc., 640 F.Supp. 891 (E.D.La.1986), a district court in this circuit interpreted § 207(h) with similar results. In Duplessis, the defendants sought “a credit against [the] plaintiffs’ award of overtime compensation for the extra compensation paid for nonproductive time and year end bonuses.”Id. at 896.Noting that the payments made were not “related to the performance of overtime, and instead [were] ‘payments made for occasional periods when no work is performed’ ” the Duplessis court held that the payments were not creditable as overtime. Id. at 897 (citing §§ 207(e)(2), (e)(3), and (h)).

The United States Court of Appeals for the Ninth Circuit held that an employer could not “lawfully credit the ‘paid lunch’ time payments against overtime compensation due the employees.” Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 903, 913-14 (9th Cir.2004). In Ballaris, the plaintiff employees received two meal periods: a 30-minute unpaid meal period and a 30-minute paid meal period. Id. at 906.The court noted that “the parties treated the half-hour paid lunch period as non-working time.”Id. at 909.Consequently, the court found “that the payments for the lunch periods constituted an additional benefit for employees and not compensation for hours worked.”Id. Denying the defendant’s request to credit the “paid lunch” compensation against the compensation required by the FLSA, the court relied primarily on § 207(h).See id. at 913-14.The court noted that “compensation for paid lunch periods is excluded from the regular rate under section 7(e)(2)” and that, as a result, any “offset of wages or overtime compensation due for hours worked is in direct violation of the express provisions of section 7(h).”Id at 913.In addition, the court noted that such a practice “would undermine the purpose of the FLSA” and would constitute a “false and deceptive ‘creative’ bookkeeping.” Id. at 914.

As these non-binding cases are consistent with this Court’s interpretation of the FLSA, the Court concludes that the motion for summary judgment should be denied.”

E.D.Cal.: Settlement Of Rule 23 And 216(b) Class Hybrid Action Requires Simultaneous Notice; Opt-out Notice Alone Insufficient To Bind Class On FLSA Claims

June 23, 2009 11:16 am / Leave a comment

Wright v. Linkus Enterprises, Inc.

Plaintiffs filed this action against Defendant for violation of various state and federal labor laws. Before the Court was Plaintiffs’ Unopposed Motion for Preliminary Approval of Settlement of their hybrid action, which consisted of both a Federal Rule of Civil Procedure 23(b)(3) class action and a Federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), collective action. Though the Motion was essentially unopposed, the parties did disagree as to one issue pertaining to release of claims by currently absent parties, regarding notice required to the class members (Defendant proposed an opt-out Rule 23 notice alone). The Court resolved that dispute by ordering that the parties’ existing agreement and forms be modified to provide both “opt-out” procedures as allowed under Rule 23 and “opt-in” procedures as required by the FLSA.

Explaining that opt-in notice as well as opt-out notice must be provided to class members in such a hybrid action, the Court stated, “According to Defendants, the Rule 23 opt-out procedures, under which potential plaintiffs are bound by the terms of the settlement unless they affirmatively opt out, should apply to both the state law claims and to those claims arising under the FLSA. Plaintiffs disagree arguing that, while Rule 23 applies to their state law claims, the FLSA requires potential plaintiffs to opt-in to this action in order to release any claims they may have under the FLSA. The Court agrees with Plaintiffs.

In a collective action brought under the FLSA, “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”29 U.S.C. § 216(b). Congress enacted this provision for the purpose of “limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers of the burden of representative actions.” Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989).

Conversely, a class action brought pursuant to Rule 23(b)(3) mandates notice informing potential plaintiffs that they can avoid being bound by the terms of a settlement or judgment if they so inform the court. SeeFed.R.Civ.P. 23(c)(2)(B)(v). Thus, a plaintiff that does not affirmatively “opt-out” from the class may be bound by the disposition of the case, regardless of whether he received actual notice. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614-15 (1997).

In Kakani v. Oracle Corp., the Northern District examined the relationship between the two regimes and held that the use of “opt-out” notice would violate the FLSA.2007 WL 1793774, at *7 (N.D. Cal. June 19, 2007). That court stated that it would have been “unconscionable to try to take away the FLSA rights of all workers, whether or not they choose to join in affirmatively.”Id. (emphasis in original).

Defendants’ authority to the contrary is inapposite. First, Defendants cite Hoffman-La Roche Inc. for the proposition that district courts possess discretion over the procedural methods used to join multiple parties in a single case. However, Defendants interpret Hoffman-La Roche too broadly. That case merely established that district courts may authorize notification of potential plaintiffs regarding the opportunity to “opt-in” to a collective action. 493 U.S. at 169. Hoffman La Roche does not stand for the proposition that this Court may substitute Rule 23 “opt-out” notice for the “opt-in” notice expressly required by 29 U.S.C. § 216(b).

Defendants also cite two district court opinions, one in which the court stated without analysis that “opt-out” procedures would be used to settle both FLSA and state law claims, and one in which the federal court simply refused to enjoin a state court from releasing FLSA claims as part of a settlement that utilized “opt-out” notice. Frank v. Eastman Kodak Co., 228 F.R.D. 174, 179 (W.D.N.Y.2005); Dibel v. Jenny Craig, Inc., 2007 WL 2381237, at * 1 (S.D. Cal Aug. 10, 2007). This Court finds neither of these cases persuasive and now holds that “opt-in” procedures must be provided for the release of the instant FLSA claims.

M.D.Fla.: Question Of Fact For Jury Whether “Field Coordinator” For Cable Company, Who Managed Subcontractors, Administratively Exempt; Summary Judgment Denied

June 21, 2009 11:59 am / Leave a comment

Driggers v. Cable Television Intsallation & Service, Inc.

This case was before the Court on Defendant’s Motion seeking summary judgment finding that Plaintiff was subject to the Administrative Exemption of the FLSA. Reviewing the evidence in the light most favorable to the Plaintiff, as the non-moving party, the Court denied Defendant’s Motion.

The Court assumed the following facts, as averred by Plaintiff:

“Plaintiff was employed by CTIS, a cable and internet installation services provider. He began his employment in dispatch and then became a cable installer (“Subcontractor”) for two to three years. Subcontractors are independent contractors required to use their own equipment and tools in their installation work as well as provide their own insurance. In May 2005, Plaintiff began working as a Field Coordinator, later called a Field Advisor, and continued in this position until he was terminated in May 2008.

As Field Coordinator, Plaintiff was assigned a hub, which was a geographical area based on zip code. Each morning, he handed out work assignments to subcontractors in his hub, making the assignments based on the time of the scheduled work and, when the workload permitted, on subcontractor ability and experience. Plaintiff also reviewed and entered subcontractor paperwork, which included checking billing documents to assure they were filled out in compliance with the standards of CTIS and its customer Bright House. He adjusted billing codes to comply with the job specifications and billing rules, often seeking guidance from Bright House.

Plaintiff was responsible for informing the subcontractors in his hub of changes to job specifications put out by Bright House and CTIS. He sometimes explained what the changes meant and suggested approaches to performing the job to the new specifications. If a subcontractor had a problem with an installation, Plaintiff would try to help the subcontractor figure out how to make the job comply with specifications, and if he could not, he would contact Bright House for further instructions. Plaintiff did not have the authority to deviate from job specifications without first consulting Bright House.

In the afternoons Plaintiff performed inspections. He had the authority to inspect installations of his choice to ensure compliance with job specifications. The number of these quality control inspections varied based upon Plaintiff’s workload in the office and number of damage inspections assigned by Bright House. If his quality control inspection revealed deviations from specifications, Plaintiff would have the installation subcontractor fix the problem to meet job specifications or assign another subcontractor to do so. Occasionally Plaintiff performed the repair work himself When customers had complaints about installations, they contacted Bright House or CTIS who in turn would contact Plaintiff, instructing him to inspect the damage. Plaintiff performed these inspections to determine if the subcontractor was responsible for the damage. If the subcontractor made a mistake that caused the damage, the subcontractor and his insurance were responsible. If the damage was caused by the subcontractor following specifications, Plaintiff would contact CTIS for approval of a repair or assign another subcontractor to handle the issue. If the subcontractor was not responsible for the damage, Plaintiff would not offer repairs and the customer would have to contact CTIS to take the claim further.”

The Court noted, “[i]n their filings, both parties state that Plaintiff satisfies the first and second prongs of the administrative exemption. Defendant has described Plaintiff’s primary duty as quality assurance, including assigning work orders, communicating changes in job specifications, checking subcontractor paperwork for compliance with policy, and ensuring subcontractor installations met specifications and quality standards. For the purposes of summary judgment, Plaintiff has agreed to this description and its satisfying the second prong. Plaintiff challenges only the use of discretion and independent judgment with respect to matters of significance in the performance of Plaintiffs primary duty as required in the third prong.”

Although the Court agreed with Defendant, that a jury could find that, since 4 or the 10 tests for independent judgment and discretion laid out in the CFR were satisfied, it was a question of fact of the jury whether Plaintiff met the requisite independent judgment and discretion element of the Administrative Exemption. Thus, the Court denied summary judgment stating, “[t]he undisputed facts allow a jury to reasonably find that Plaintiff has met some or none of the factors to be considered for the applicability of the third prong of the administrative exemption. The jury could determine that Plaintiffs use of skill and experience in the performance of his primary duty and his limited leeway in decisions do not allow him to qualify under the administrative exemption. Cotton v. HFS-USA, Inc., No. 8:08-cv-251-T-33TGW, 2009 WL 1396351 (M.D.Fla. May 18, 2009) (summary judgment order) (finding an employee who performed quality control inspections through comparison to standards and who assigned subcontractor work and repairs without direct supervision did not exercise discretion and independent judgment because most of his decisions were based on experience in the industry, well-established standards, and the use of common sense, and because he sought approval for deviations from specifications and frequently spoke with his superiors). The motion for summary judgment is therefore denied.”

W.D.Tenn.: “Maintenance Director” Not Executive Exempt; Management Not Primary Duty; Defendant Failed To Establish Plaintiff Supervised 2 Or More Co-Employees

June 20, 2009 1:16 pm / Leave a comment

Jones v. FMSC Leasehold, LLC

Before the Court was Plaintiff’s Motion for Partial Summary Judgment seeking a finding that he was not executive exempt as a matter if law, because management was not his primary duty, and because he did not supervise 2 or more employees. The Court granted Plaintiff’s Motion, agreeing that neither of these required elements of the executive exemption were present here.

Plaintiff was employed at High Pointe Health and Rehabilitation Center (“the facility”) from June 19, 2005 to February 5, 2008. Starting in November 2005 and continuing until his employment ended, Plaintiff served as Maintenance Director at the facility. Plaintiff averred that he had only one assistant reporting to him during that time, and Sanford Mann, the administrator of the facility, verified that Plaintiff had only one assistant during the time Mann worked at the facility from June 2007 to January 2008. Plaintiff contended that his primary job duty as Maintenance Director was manual labor performing general maintenance tasks at the facility. Plaintiff received a salary and was not compensated by the hour. During weeks in which he worked more than forty (40) hours, Plaintiff was not paid one and one-half (1.5) times his regular rate of pay. Plaintiff argued that Defendant could demonstrate that Plaintiff was an exempt employee for purposes of overtime pay as defined under the FLSA and its regulations.

First, the Court discussed Defendant’s failure to raise an issue of triable fact regarding Plaintiff’s primary duty, stating, “[t]he Court holds that Defendant has failed to carry its burden as to the second element, whether Plaintiff’s primary duty was management. Defendant argues that Plaintiff held the title “Maintenance Director” at the facility and his primary duty was to manage the maintenance department and the assistants who reported to him. According to Defendant, Plaintiff had input on the hiring, firing, promotion and assignment of his assistants and was able to set his own work schedule. Plaintiff disputes that he ever had actual managerial duties and argues that his duties were limited to only maintenance tasks.

Rather than rely on a job description or an employee’s job title, the Court must analyze an employee’s “actual duties” in light of the factors set forth and defined in the Department of Labor regulations. With respect to this second element of the exemption, Defendant must prove that Plaintiff’s primary duty was “management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof.”The regulations implementing the FLSA define “management” to include activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.

The phrase “a customarily recognized department or subdivision” indicates “a unit with permanent status and … a continuing function.” Furthermore, “[c]ontinuity of the same subordinate personnel is not essential to the existence of a recognized unit with a continuing function.”

Perhaps most importantly, the Court must determine that management was the employee’s primary duty in order for the exemption to apply. A “primary duty” means “the principal, main, major or most important duty that the employee performs.”

Based on the record before the Court, Defendant has failed to adduce evidence from which a reasonable juror could conclude that Plaintiff’s primary duty was management. In his affidavit Plaintiff has stated that his primary job duties were as follows: manual labor such as replacing lights, replacing receptacles, cutting the lawn, law (sic) maintenance, cleaning and servicing heating and air units, minor plumbing, painting, carpeting, tiling floors, minor pipe replacement, some small motor repair, and other preventive maintenance including record keeping and documentation….

Defendant has not demonstrated the amount of time Plaintiff spent performing exempt work or the scope of discretion Plaintiff was granted in performing that work. Defendant has presented no evidence concerning Plaintiff’s relative freedom from direct supervision other than to state Defendant could set his own schedule. Defendant has failed to provide evidence about wages paid to other employees including employees Plaintiff allegedly supervised for the same kind of nonexempt work performed by Plaintiff. As a result, Defendant has provided very little from which a reasonable juror could find that this element is satisfied.

Defendant has proffered a job description for Plaintiff’s position. However, there is no corroborating evidence that the duties listed in the five-page job description were the actual duties carried out by Plaintiff….

Having failed to meet its burden as to this element, the Court concludes that Defendant is not entitled to the affirmative defense that Plaintiff was an exempt employee.”

The Court further held that Defendant could not satisfy the so-called 2 or more element either.

Therefore, the Court held that, as a matter of law, Plaintiff was not subject to the FLSA’s executive exemption.

D.Or.: Oregon Did Not Waive Sovereign Immunity With Regard To The FLSA By Implementing The Oregon Tort Claims Act (OTCA); FLSA Suit Dismissed

June 18, 2009 12:53 am / Leave a comment

Dinicola v. Service Employees Intern. Union Local 503

Plaintiff was a past elected president of defendant SEIU Local 503.  The complaint alleged that the Oregon Department of Revenue (ODR) employed plaintiff and assigned him for a period of time to perform union duties pursuant to a written agreement by which ODR paid plaintiff’s wages and benefits and received reimbursement from Local 503.  Local 503 also paid plaintiff $400 per month as president’s pay.  The complaint further alleged that plaintiff attempted to collect unpaid overtime compensation by filing a lawsuit in the Circuit Court of the State of Oregon for Marion County, among other means.  The complaint further alleges that Local 503 opposed plaintiff’s claim for entitlement to overtime compensation and that certain Local 503 members criticized plaintiff and his claim.

The State of Oregon filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

The Court granted the State of Oregon’s Motion noting, “[b]ecause it did not expressly or impliedly waive its Eleventh Amendment immunity from suit in federal court for violation of the FLSA, the State of Oregon’s motion for judgment on the pleadings is granted.  Quillin v. State of Oregon, 127 F.3d 1136, 1138 (9th Cir.1997). Plaintiff’s authority does not support his waiver argument. In Butterfield v. State, the court held that an FLSA claim was a tort claim within the meaning of the Oregon Tort Claims Act, under which the state partially waived its sovereign immunity. 987 P.2d 569, 574 (Or.App.1999). The OTCA is not a waiver of Eleventh Amendment immunity, however. Estate of Pond v. Oregon, 322 F.Supp.2d 1161, 1165 (D.Or.2004). Not surprisingly, Clayton v. State of Oregon, 1990 WL 32088 (D.Or.1990), contains no discussion of Eleventh Amendment immunity, as the defense was clearly foreclosed at the time of the decision. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). A state does not waive Eleventh Amendment immunity in these circumstances. Quillin, 127 F.3d at 1139. The case of Chao v. State of Oregon, No. 03-6194-AA (D.Or.), did not yield an opinion and did not involve a suit by a citizen of a state against the state.”

9th Cir.: Lead Plaintiffs Who Voluntarily Settle Their FLSA Claims May Not Proceed On Behalf Of The Putative Class Thereafter

June 17, 2009 10:20 am / Leave a comment

Smith v. T-Mobile USA, Inc.

The case was before the Court on Plaintiffs’ appeal of an Order, on reconsideration, denying Plaintiffs’ Motion for Conditional Certification. Appellants Mentha Smith and Justin Gossett — the only named plaintiffs in this case — voluntarily settled their Fair Labor Standards Act claims before this appeal was taken. The Court held, “that such plaintiffs no longer have a personal stake in the outcome…” and “thus rendered moot.” Accordingly, the Court dismissed the appeal for lack of jurisdiction.

“The district court initially granted the motion for conditional certification. However, it reversed its decision after T-Mobile filed a motion for reconsideration. Plaintiffs filed a motion for reconsideration, which the district court denied. Following that ruling, Smith and Gossett voluntarily accepted an offer of judgment from T-Mobile and settled their claims. A stipulated judgment set out the amounts T-Mobile agreed to pay to plaintiffs as “full, complete, and final satisfaction of all [their] individual claims as stated in this action.” The parties agreed that Chavez was not entitled to any payment since all the claims he could have asserted were fully satisfied in connection with the settlement of a prior lawsuit. T-Mobile also agreed to pay plaintiffs’ counsel $10,000 as “full, complete and final satisfaction of any claim they or their clients may have for attorneys’ fees and/or costs of litigation in connection with the individual claims asserted by their clients.”

Before reaching settlement, the parties represented to the district court that they discussed whether there existed a mechanism by which plaintiffs’ individual claims could be settled while still preserving their ability to appeal the ruling denying FLSA certification. They eventually signed a stipulated judgment that stated: At Plaintiffs’ request, . . . Plaintiffs’ acceptance of this Offer shall be expressly subject to Plaintiffs[‘]. . . reservation of rights (a) to take an appeal, as contemplated in Dugas v. Trans Union Corp., 99 F.3d 724 (5th Cir. 1996), and the cases cited therein, of the Court’s earlier Order denying their motion for conditional certification of this action as a collective action under the Federal Fair Labor Standards Act(“FLSA”), and (b) in the event such an appeal is pursued, is successful and the case is remanded to this Court for further proceedings, to continue to prosecute the case in accordance with the order of remand, with the understanding, however, that their individual claims have been fully and finally compromised, settled and dismissed, and that these claims may not be reinstated or reopened, and that no further claimsof any kind may be asserted on their individual behalf. In accepting this Offer, Plaintiffs and their counsel acknowledge that they have relied solely on their own legal analysis and not on any representation by Defendants or their counsel regarding the legal effect of this Offer and/or their standing to appeal. The district court entered judgment in accordance with the parties’ stipulations. Plaintiffs then timely filed a notice of appeal.”

Distinguishing this case from a Rule 23 class action the Court explained, “We need not decide whether a Rule 23 class action plaintiff who settles his individual claims can preclude mootness by affirmatively preserving his claim to appeal in the settlement agreement and then asserting a procedural right to represent a class. Compare, e.g., Richards v. Delta Air Lines, Inc., 453 F.3d 525, 528-29 (D.C. Cir. 2006) (finding reservation sufficient to preclude mootness) with, e.g., Potter, 329 F.3d at 613-14 (finding reservation insufficient to preclude mootness); cf. Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (9th Cir. 1986) (also declining to address this issue). We do not decide this issue because here, structural distinctions between a FLSA collective action and a Rule 23 class action foreclose appellants’ claims of a continuing personal stake. Accordingly, we join our sister circuits in holding that a FLSA plaintiff who voluntarily settles his individual claims prior to being joined by opt-in plaintiffs and after the district court’s certification denial does not retain a personal stake in the appeal so as to preserve our jurisdiction. See Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915-19 (5th Cir. 2008); Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1247-49 (11th Cir. 2003).

A plaintiff seeking FLSA collective action certification does not have a procedural right to represent a class in the absence of any opt-in plaintiffs. Section 216(b) of the FLSA, the collective action provision, provides that no employee other than the plaintiff “shall be a party plaintiff to [a FLSA collective] action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Thus, while the existence of a Rule 23 class action “does not depend in theory on the participation of other class members,” who can either opt in or opt out, a FLSA case cannot become a collective action unless other plaintiffs affirmatively opt in by giving written and filed consent. Cameron-Grant, 347 F.3d at 1248-49. A FLSA plaintiff therefore has no independent right to represent a class that would preserve a personal stake in the outcome for jurisdictional purposes; his right to represent a class depends entirely on whether other plaintiffs have opted in. This key difference between a Rule 23 opt-out class action and a FLSA opt-in collective action cannot be overlooked for purposes of determining our jurisdiction to entertain this appeal.

Because plaintiffs did not have a right to represent a class, they were not acting in the capacity of class representatives at the time of settlement as they now claim. Compare Dugas v. Trans Union Corp., 99 F.3d 724, 726-29 (5th Cir.1996). Thus, Smith and Gossett’s acceptance of T-Mobile’s offer of judgment when no other plaintiffs had opted in disposed of the only claims they could assert at the time. See Sandoz, 553 F.3d at 919 (“This means that when Cingular made its offer of judgment, Sandoz represented only herself, and the offer of judgment fully satisfied her individual claims.”).

For the same reasons, Smith and Gossett’s argument that they continue to retain a personal stake in the recovery of attorneys’ fees and costs relative to the class claims, the “class share” of any liquidated or punitive damages, and the enhancement to which a class representative is entitled if the claims ultimately prevail also fails. Plaintiffs’ attorneys agreed to accept $10,000 as full satisfaction of any claim they had to attorneys’ fees and costs of litigation in connection with the individual claims. At the time they settled, plaintiffs could only assert individual claims because they had no right to represent a class, as to reiterate, they were the only plaintiffs in the case. Attorneys’ fees therefore do not provide the plaintiffs with the personal stake required for a case or controversy.

Any enhancement a district court may order for plaintiffs’ service as class representatives also does not create a personal interest in the case, as any enhancement awarded would relate only to costs of litigation brought about by the class litigation itself.3 They similarly had no right to liquidated and punitive damages that a district court might award if other plaintiffs opted in. Because the plaintiffs voluntarily settled all of their claims after the district court’s denial of certification, they have failed to retain a personal stake in the litigation and their case is moot.”

Accordingly, the Court dismissed the appeal for lack of jurisdiction.

U.S.Jud.Pan.Mult.Lit.: 7 “Assistant Manager” Misclassification Cases Against Enterprise Rent-A-Car Suitable For Centralization

June 16, 2009 10:30 am / Leave a comment

In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation

Before the Multidistrict Litigation Panel was Plaintiff in an action pending in the Northern District of Illinois’ ( Averill ) Motion, pursuant to 28 U.S.C. § 1407, for centralization of this litigation in the Northern District of Illinois. This litigation currently consists of two actions pending in the Northern District of Illinois (including the moving plaintiff’s action) and five actions pending in the Middle District of Florida, the Southern District of Florida, the Northern District of Georgia, the Southern District of New York, and the Western District of Pennsylvania, respectively, as listed on Schedule A.

Granting Plaintiff’s Motion, the Court reasoned, “Plaintiffs in the six other constituent actions support centralization. With the exception of plaintiff in the Western District of Pennsylvania action, who urges that the Panel select that district as transferee district, all responding plaintiffs support selection of the Northern District of Illinois. Responding defendants Enterprise Rent-A-Car Co., Inc., and its affiliates, however, oppose centralization, and, if the Panel orders centralization over their objections, ask that the Eastern District of Missouri be selected as transferee district.

On the basis of the papers filed and hearing session held, we find that these seven actions involve common questions of fact, and that centralization under Section 1407 in the Western District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve allegations that defendants violated the Fair Labor Standards Act (FLSA) by misclassifying their assistant managers as salaried and thus not entitled to overtime. Centralization under Section 1407 will eliminate duplicative discovery and prevent inconsistent pretrial rulings (particularly with respect to plaintiffs’ multiple requests for certification of a nationwide collective action), and conserve the resources of the parties, their counsel and the judiciary.

In opposing centralization, defendants argue, inter alia, that the actions do not share factual issues, because individual Enterprise subsidiaries-unique to each state-employed the assistant branch managers and were responsible for classifying them as exempt and ensuring compliance with the FLSA. We are not persuaded by this argument, however, because the record indicates that the involvement vel non of Missouri-based Enterprise Rent-A-Car Co., Inc., in overseeing its subsidiaries and, in particular, setting policies affecting the employment of assistant managers is, in fact, an open question common to the actions in the litigation. On this and any other common issues, centralization under Section 1407 has the benefit of placing all actions in this docket before a single judge who can structure pretrial proceedings to consider all parties’ legitimate discovery needs, while ensuring that common parties and witnesses are not subjected to discovery demands that duplicate activity that has already occurred or is occurring in other actions. See, e.g., In re Department of Veterans Affairs (VA) Data Theft Litigation, 461 F.Supp.2d 1367, 1368-69 (J.P.M.L.2006). As centralized proceedings evolve in the transferee district, it may be that unique issues in one or more of the subject actions render their continued inclusion in the multidistrict proceedings unnecessary or inadvisable. At that point, defendants (or the involved plaintiff or plaintiffs) are free to approach the transferee judge for a suggestion of remand to the transferor court. Whenever the transferee judge deems remand of any claims or actions appropriate, procedures are available whereby this may be accomplished with a minimum of delay. See Rule 7.6, R.P.J.P.M.L., 199 F.R.D. 425, 436-38 (2001).”


11th Cir.: Issue Of Fact Precludes Finding “Manager” Subject To Executive Exemption; Summary Judgment Reversed

June 15, 2009 10:54 am / Leave a comment

Barreto v. Davie Marketplace, LLC

This FLSA overtime case was before the Court on Plaintiff’s appeal from an Order awarding Defendant summary judgment based on a finding that Plaintiff, a”manager” of Defendant’s produce department, was subject to the FLSA’s executive exemption. Reviewing the evidence de novo, the Eleventh Circuit held that the Court below erred and reversed. The record, taken in the light most favorable to Plaintiff, the non-moving party, could support a finding that Plaintiff was not subject to the executive exemption.

“Barreto claims that although his title was that of “manager” and he admittedly performed some managerial-type tasks, his deposition testimony, considered in the light most favorable to him, creates a genuine dispute as to whether management was his primary duty. We agree. The parties agree that Barreto performed the managerial tasks of ordering produce, pricing produce, and scheduling and directing produce department employees; however, it is also undisputed that Barreto spent more than 50% of his time performing tasks identical to those performed by the hourly, non-exempt employees. Indeed, Barreto testified that, due to management’s under-staffing of the department, he was required to perform non-exempt work for such a large percentage of his time that he had no time to fulfill some of the managerial responsibilities he had been nominally given, i.e., to supervise other employees and to purchase the least expensive produce. He also testified that the four other non-exempt employees did not require his supervision, as they already “knew what the job was.” This evidence suggests that Barreto’s non-management responsibilities were more important to the operation of the store than his few managerial duties.  Cf. Diaz v. Team Oney, Inc., 291 Fed. Appx. 947 (11th Cir.2008) (rejecting plaintiff’s claim that management was not his “prime responsibility” where the record was clear that “his managerial duties-as the highest ranking employee on duty during the majority of his shifts, in which he supervised the drivers, counterpersons, and cooks, apportioned work, made deposits, filled out required forms, interviewed prospective employees, and engaged in local restaurant marketing-were significantly more important to the operation of the restaurant than his non-managerial tasks”).

Barreto also presented evidence that his discretion in performing his managerial tasks was limited and his work was subject to supervision. Specifically, Barreto testified that he was required to order the cheapest produce available from a list of vendors pre-selected by management, to fix the pricing of the produce by increasing the wholesale prices according to a set scale given to him by management, and to order produce only as needed to restock preexisting supplies. He testified that he was told at the managers’ meeting how many employees he needed to schedule for each shift and how many hours the employees would work. Barreto also testified that when he asked management to hire one or two more employees for his understaffed department, management denied his request and instructed him to cut the hours of the remaining hourly employees from 40 to 30 hours per week. This testimony, considered in the light most favorable to Barreto, contradicts Dhawan’s conclusory affidavit statements that Barreto was given “wide latitude” in managing his department and that he was responsible for using “his judgment” to accomplish certain business goals. As such, Barreto’s testimony creates a genuine issue of fact regarding the extent of Barreto’s discretionary powers and relative freedom from direct supervision while performing his identified managerial tasks, i.e., ordering produce, setting prices, and setting the work schedule for non-exempt employees.

In summary, Barreto’s sworn testimony suggests that Barreto spent the majority of his time performing non-management duties; the management duties he did perform were less important to his position than the other types of duties he performed; and Barreto infrequently exercised his discretion and was subject to direct supervision. Accordingly, even though the evidence suggests that Barreto’s wages were significantly greater than the wages paid to the non-exempt employees in the produce department, we conclude that a reasonable factfinder could find that Barreto’s managerial tasks did not constitute his “primary duties” under the balancing test set forth in the Regulations. See Morgan, 551 F.3d at 1280-81 (holding that store managers were not exempt executives where evidence showed that they “spent most of their time performing manual, not managerial, tasks, that corporate manuals micro-managed store managers’ performance of those tasks, that the 380 district managers closely supervised their store managers, and that store managers had little discretion or freedom from supervision”).

Based solely on Barreto’s deposition, the district court also found that the evidence established that Barreto “customarily and regularly directed the work of two or more employees” and that his recommendations in hiring, firing or the advancement of employees were given “particular weight.” Accordingly, the court found Davie Marketplace met the third and fourth prongs of the executive exemption test as a matter of law. Specifically, the district court noted that Barreto admitted that “he told employees who worked in the produce department their schedules and place[d] them on either the morning shift or afternoon shift,” that “he would assign jobs to the employees to take merchandise outside, and had them rotate bad produce and refill missing produce,” and that “none of [the other employees] were experienced.” The district court also noted that Barreto admitted that he had recommended that an employee be terminated for eating “very expensive fruit” and that the employee had subsequently been fired. Furthermore, although Barreto made no recommendations regarding hiring or advancement of employees, the district court found that “it is unlikely that evaluations and recommendations of advancement of employees would be made” in the five months Barreto worked for Davie Marketplace. Therefore, although Dhawan’s affidavit did not comment upon Barreto’s authority to direct other employees or upon the weight given to his hiring or firing recommendations, the district court found that Barreto’s deposition testimony alone established that the third and fourth prongs of the executive exemption had been met as a matter of law.

We conclude, however, that Barreto’s deposition testimony, when read in its entirety, does not support the district court’s conclusion. First, regarding the third prong, the Regulations define “two or more other employees” as either two full-time workers or their equivalent. 29 C.F.R. § 541.104(a). As to equivalency, “[o]ne full-time and two half-time employees, for example, are equivalent to two full-time employees. Four half-time employees are also equivalent.” Id.; Morgan, 551 F.3d at 1274. In his deposition, Barreto testified that the produce department consisted of five employees, including himself, during his first week of employment, but that after the first week, “two of them were reduced” and that ultimately, there were “three less” employees in the department. Barreto also testified that after the first week, there were “three [employees in the produce department] in the morning and one in the afternoon.” Considering this testimony in the light most favorable to Barreto, after his first week on the job, Barreto supervised two half-time employees in the morning and was by himself in the department in the afternoon. Davie Marketplace offers no evidence refuting this testimony. Accordingly, we conclude that Davie Marketplace has not satisfied its burden of proving that Barreto regularly directed the work of two or more full-time employees.

Regarding the fourth prong, we disagree that evidence of one employment recommendation that was followed is sufficient to establish as a matter of law that Barreto’s recommendations regarding hiring and firing were given a “particular weight.” The Regulations explain that “[t]o determine whether an employee’s suggestions and recommendations are given ‘particular weight,’ factors to be considered include, but are not limited to, whether it is part of the employee’s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon.” 29 C.F.R. § 541.105. Here, Barreto’s testimony established that, in one instance, his recommendation to fire an employee for a serious infraction-stealing-was followed; however, his testimony also showed that in another instance, he recommended hiring additional employees and this advice was not heeded. Indeed, after he recommended that additional employees be hired, Barreto was directed instead to cut the hours of his remaining employees. Furthermore, Barreto stated that he did not evaluate the employees in his department and it is uncontested that he did not interview candidates or make any decisions regarding the hiring or advancement of other employees. As such, the evidence in the record creates a genuine issue of fact as to whether Barreto’s employment recommendations were given “particular weight.”

Viewing the evidence in the light most favorable to Barreto, there are questions of fact as to whether his “primary duty” consisted of management, whether he regularly directed the work of two or more full-time employees, and whether his recommendations in hiring, firing, or advancement of employees were given particular weight. Summary judgment based on the executive exemption is appropriate only where the four prongs of the “executive exemption” test are met as a matter of law; it is not the appropriate disposition where, as here, there remain issues of fact regarding three of the four elements. Accordingly, we vacate the entry of summary judgment and remand this matter to the district court.”

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