L. SCOTT COOGLER, District Judge.
Before this Court is the fourth in a series of motions for summary judgment filed by Defendant Mercedes-Benz U.S. International, Inc. ("MBUSI").
The present motion concerns eighteen Plaintiffs, fifteen of which have claims remaining:
All of these Plaintiffs are, or were, were employed by MBUSI as Group Leaders ("GLs"). Each GL has a group which consists of Team Leaders ("TLs") and Team Members ("TMs"). While employed as GLs, these Plaintiffs were classified by MBUSI as exempt employees. MBUSI made changes to the overtime policy for exempt employees in February and March of 2005, and again in March of 2006. Following the March 2006 changes, GLs could be paid overtime only after completing five unpaid hours per week of pre- and post-shift work activities designated as "casual time." While overtime would still be paid for extra hours worked on weekends without the casual time requirement, the policy effectively required forty-five hours, rather than forty, to be worked before any weekday overtime could accrue. The "casual time" language was removed from the policy in a revision on April 7, 2008.
On June 10, 2009, a number of GLs and former GLs filed a complaint against MBUSI. The essence of the complaint is that, by mischaracterizing the GLs as exempt, MBUSI was "requiring [them] ... to work overtime without payment of overtime... in violation of the [FLSA]." (Lawson Doc. 1 at 9.)
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories,
Once the movant has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting FED. R.CIV.P. 56(e)). "A factual dispute is genuine only if a `reasonable jury could return a verdict for the nonmoving party.'" Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.2002) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991)).
Section 13(a)(1) of the FLSA provides that its minimum-wage and overtime provisions do "not apply with respect to ... any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). As with all FLSA exemptions, the executive exemption is to be "narrowly construed so that it applies to those plainly within its terms and spirit." Gregory v. First Title of Am., Inc., 555 F.3d 1300, 1302 (11th Cir.2009). In asserting that an exemption applies, "the employer `bears the burden of proving the applicability of a[n] FLSA exception by clear and affirmative evidence.'" Id. (quoting Klinedinst v. Swift. Invs., Inc., 260 F.3d 1251, 1254 (11th Cir.2001)). The regulations provide a four-part test for determining whether an employee fits the executive exemption:
29 C.F.R. § 541.100. Each one of these requirements is the subject of debate between the parties: MBUSI contends that
To meet the executive exemption, the "management" of a customarily recognized department or subdivision must be the employee's "primary duty." "Management" is defined by the regulations to include:
29 C.F.R. § 541.102. The term "primary duty" is broadly defined as "the principal, main, major or most important duty that the employee performs." 29 C.F.R. § 541.700(a). MBUSI's first argument for the present set of Plaintiffs is that they all have admitted that their primary duty is management. Such a concession would indeed be dispositive of the issue, and the Plaintiffs' admissions are indeed important to the Court's analysis below. Most of the Plaintiffs, however, do not concede the ultimate issue in so sweeping a fashion as MBUSI suggests. Thus, in order to determine an employee's "primary duty," the Court looks to the criteria established by the regulations. They provide a set of nonexclusive factors, consisting of:
29 C.F.R. § 541.700(a). Notably, three of these four factors presuppose that some nonexempt work is performed. The first is concerned with the importance of nonexempt work as compared to the employee's exempt work, and the second looks to the amount of time spent on each. The fourth factor likewise requires that the employee performs nonexempt work to identify the wages of comparable employees performing such work. Of course, the regulations are clear that these factors, while helpful, are not exhaustive. Instead of relying on any set of fixed criteria, each determination
MBUSI argues that summary judgement is appropriate precisely for this reason, since Plaintiffs "do not allege that they perform production work or that they sit on the line checking quality." (Doc. 114 at 3.) Of course, MBUSI still bears "the burden of proving the applicability of [this] FLSA exemption." Gregory, 555 F.3d at 1302. That burden cannot be met simply by a lack of assertions on the part of Plaintiffs; their omissions are not alone sufficient even if MBUSI's correctly describes it. But if MBUSI can first demonstrate the exempt, managerial nature of Plaintiffs' work, then Plaintiffs' failure to allege the performance of any nonexempt work becomes significant, showing that there is no genuine issue of material fact on the issue. As the Eleventh Circuit observed in Rodriguez v. Farm Stores, "[w]hen it comes to deciding whether an employee is an executive within the meaning of the FLSA, the answer is in the details." 518 F.3d 1259, 1264 (11th Cir. 2008.) Accordingly, the relevant details are examined for each Plaintiff in turn below; first, with an eye to the exempt management duties that each performs, and then focusing on any nonexempt, nonmanagement duties that Plaintiffs allege.
Hugh Boles admitted in his deposition that "it's [his] primary duty ... to oversee the work and performance of [his] Team Members and direct their work." (Doc. 116-2 at 35.)
Against this undisputed account of Boles' duties, Plaintiffs add only a few "facts" of their own. They allege that the majority of Boles' time "is not spent supervising and managing his group." (Doc. 136 at 5.) But this assertion is ungrounded, since the only support offered for it is Boles' denial of Request for Admission ("RFA") #39. (Doc. 116-1 at 11.) Although an admission to an RFA renders the matter "conclusively established," FED. R.CIV.P. 36(b), a party cannot rely on his own denial of a request for admission. Unlike admissions, denials do not constitute "materials in the record" that can be relied on in making or responding to a motion for summary judgment. FED. R.CIV.P. 56(c)(1)(A). A denial simply shows that the issue has not been conceded; it does not possess the heft of an affidavit, stipulation, interrogatory answer, or deposition testimony, let alone the "conclusively established" status of an admission. The same goes for qualifications to admissions, on which Plaintiffs mistakenly rely when asserting that "Boles only occasionally counsels TMs and TLs on performance, quality of work, and conduct." (Doc. 136 at 5.)
Putting aside such unsupported assertions, the few remaining facts presented by Plaintiffs are of little consequence. Notably, they do not present any examples of nonexempt work, nor do they list even a single nonmanagement activity performed by Boles. Most of their assertions concern Boles' interactions with Human Resources ("HR") and his Assistant Manager ("AM") in various circumstances: that he "contacts" them if a TM violates safety policy, if a TM "continues to fail to comply with safety policies," or if "somebody gets hurt on the job." (Doc. 136 at 5.) If anything, the responsibility to contact HR or an AM in such situations only underscores Boles' management role. The FLSA and the regulations certainly do not require employees, in order to fit the executive exemption, to singlehandedly address all safety concerns without informing others.
Plaintiffs contend that "[t]he AM tells Boles whether to give a TM a minor or a major in the event of a safety violation." (Doc. 136 at 5.) This is the solitary example of something offered by Plaintiffs that could potentially detract from Boles' "relative freedom from direct supervision." 29 C.F.R. § 541.700(a). Even here, Boles described the process as looking at the Safety Escalation Plan, "looking to see which area [the incident] is classified in," then "usually discuss[ing] it together" with his AM before a decision was reached. (Doc. 116-2 at 23.)
Plaintiffs also contend that Boles "does not develop an annual plan as described in roles and responsibilities card." (Doc. 136
Far from showing that there is a genuine issue of material fact on this point, Plaintiffs' assertions only serve to emphasize that Boles performs no nonexempt duties, and that his "primary duty" is management.
As was the case for Boles, Plaintiffs have left unchallenged MBUSI's statement that "Brian Boyd ("Boyd") admitted in Response to a Request for Admission that he was properly classified as an exempt employee."
Once again, Plaintiffs do not bother to dispute MBUSI's description of his tasks. Instead, they offer just two brief points relating to Boyd's activities.
The two "facts" cited by Plaintiffs are largely irrelevant. At issue is simply whether there is a genuine dispute concerning Boyd's "primary duty." There is not. Plaintiffs do not offer a single nonexempt duty that he performs, and they have not even contested MBUSI's description of his activities.
Gerald Chiabi describes his own "primary duty" as "[m]onitoring the line, responding to line pulls
Plaintiffs' section of facts relating to Chiabi is much more extensive than their respective sections for Boles or Boyd. A great many of these, however, are either beside the point or are merely attempts to chip away at Chiabi's admissions. For example, the facts section of Plaintiffs' brief asserts that "Chiabi does not lead team members," (Doc. 136 at 8), contradicting Chiabi's admission that he "can and does lead [his] group." (Doc. 116-8 at 8.) Notwithstanding such contradictions, the Court is not free to reject facts that are "conclusively established" through Rule 36 admissions, "even if it `[finds] more credible the evidence of the party against whom the admissions operate.'" Williams v. City of Dothan, 818 F.2d 755, 762 (11th Cir.1987) (quoting Brook Village N. Assocs. v. General Elec. Co., 686 F.2d 66, 73 (1st Cir.1982)). As between deposition testimony and admissions made under Rule 36, the admissions are controlling.
The only remaining facts are those that relate to Chiabi's performance of nonexempt work. As distinct from Boles and Boyd, Plaintiffs do assert that Chiabi "regularly works the production line and performs other manual labor tasks." (Doc. 136 at 6.) Plaintiffs cite to three sections of Chiabi's deposition in support. The first section demonstrates that, during a limited time range, he would sometimes engage in "filling out documents, fixing cars, sweeping, [or] mopping" for one to two hours after his shift ended. (Doc. 116-7 at 10.) The second citation simply explains that when a TMs takes a bathroom break, one
Even taking Chiabi's evidence in the light most favorable to him, it is not enough that he momentarily covers for TMs during their bathroom breaks, or performs an hour or two of post-shift work activities. Although employees with other factors supporting an exempt "primary duty" need not "spend more than 50 percent of their time" on nonexempt tasks, see 29 C.F.R. § 541.700(b), Chiabi's percentage is far smaller, and with no other supporting factors. Even taken together, the facts Plaintiffs offer do not show that there is a genuine question of material fact as to Chiabi's "primary duty."
Unique among this set of Plaintiffs, James Davis responded with an unqualified, unambiguous "Admit" when asked to admit whether, "[w]hile a Group Leader at MBUSI, [he was] properly classified under the Fair Labor Standards Act as an exempt employee." (Doc. 110-1 at 92.) Taking this fact as "conclusively established" under FED.R.CIV.P. 36(b), there is no need to discuss Davis' "primary duty" — or the other requirements for meeting the executive exemption. Summary judgment is manifestly warranted for his claims.
With only one minor exception,
Plaintiffs make a single — but potentially significant — assertion regarding Englebert's nonexempt work. He was allegedly "instructed to never leave the end of a line unless he was assisting a TM," and so he "stood alone at the end of the line inspecting for issues such as parts missing from a car." (Doc. 136 at 16.) Such inspection of vehicles on the line, if indistinguishable "from the work ordinarily performed by a nonexempt inspector," would indeed be nonmanagement work. 29 C.F.R. § 541.703(b)(3). The cited portion of the record does not, however, support this description.
First, although Englebert was indeed told at one point to stay in one area — at the end of the line — this instruction came midway through his time as a GL. Before that he "constantly" walked the line. (Doc. 116-11 at 20.) Even after the instruction was given, he would begin his day by going around the line to "greet everyone, welcome them back for that day of work" before going to his position at the end of the line. (Id.) Once he was stationed there, the purpose was not to inspect for missing parts. He was admittedly "not performing any work on the car" there. (Doc. 116-11 at 19.) Rather, Englebert was instructed only to "stay in that area unless there was a line pull or parts not making it to the line." (Id.) According
Instead of admitting, denying, objecting, or asserting lack of knowledge in response to his RFAs, Curtis Gibbs gives an identical nonresponsive answer to all but a handful of the requests. For nearly all of them — including RFA # 43, the request to admit that he was properly classified under the FLSA as exempt, plus all of the requests admitted by Chiabi above — Gibbs gave the following response: "Plaintiff responds that this information is in the possession of defendants per his deposition." (Doc. 116-13 at 3-12.) Unlike Boles' claim that he was "unsure" of the answer, or Boyd's response that he "was never informed," Gibbs essentially admits that he does know the answer, but will not produce it on the grounds that he had already done so in his deposition. This response could be taken in three different ways, all deserving of treatment as an admission. First, the wording of Gibbs' response could be taken as an explicit admission — i.e., an acknowledgment that because these matters were already admitted, they need not be admitted again. Second, if looked at another way, Gibbs' refusal to answer the individual requests is no different than refusing to answer the RFAs altogether (except without room for debate about proper service of the requests). If treated as such a refusal, the rule is adamant about the result: an unanswered Request for Admission simply "is admitted." FED. R.CIV.P. 36(a)(3). See also U.S. v. 2204 Barbara Lane, 960 F.2d 126, 129 (11th Cir.1992) ("Federal Rule of Civil Procedure 36 expressly provides that requests for admissions are automatically deemed admitted if not answered...."). Third, Gibbs' response — at best — falls outside the range of legitimate options provided by the rule: to admit, deny, object, or assert lack of knowledge after making a reasonable inquiry. As noted by the advisory committee, Rule 36 "seems to contemplate that defective answers bring about admissions just as effectively as if no answer had been served." FED.R.CIV.P. 36(a)(4) advisory committee notes. Thus, regardless of how it is classified, Gibbs' evasive response is properly construed as an admission to all the RFAs where it is employed, establishing that Gibbs was "properly classified under the Fair Labor Standards Act as an exempt employee." (Doc. 116-13 at 12.) Further consideration of his claims is therefore precluded.
Mark Gothard makes the same set of admissions discussed above for Gerald Chiabi. (Doc. 117-2 at 3-9.) As was the case for Chiabi, Gothard's factual assertions are aimed at detracting from his own "conclusively established" admissions, and seek in vain to minimize the extent of his management activities. (Doc. 136 at 16-19.) Gothard does not, however, describe a single instance of "working the line" or performing any nonexempt labor. (Id.) In
Chad Hampton makes all of the Chiabi admissions as well, with just one slight difference: he admits that he "can and do[es] lead [his] group independently of [his] Manager or Assistant Manager," but adds that "certain situations require him to inform either an assistant manager or a manager." (Doc. 117-4 at 9.) He admits without qualification, however, that he "take[s] control of situations in [his] area that arise when [his] Assistant Manager is absent." (Id.) Plaintiffs do not dispute MBUSI's facts concerning Hampton, and they add only two brief "facts" of their own. (Doc. 136 at 19.) Neither is related to the performance of nonexempt work, or otherwise demonstrates a genuine issue of material fact as to Hampton's "primary duty."
Daryl Hiott denies that he "leads his group independently of [his] Manager or Assistant Manager." (Doc. 117-6 at 9.) Aside from that one denial, however, Hiott makes all of the Chiabi admissions, some with qualifications that he reports his activities to an AM, or "is supported by his [AM]" in performing the admitted tasks. (Id. at 3-9.) Hiott does openly admit that he "take[s] control of situations in his area that arise when [his AM] is absent." (Id. at 9.) He also admits that he is "the leader of his group" and "does use leadership skills." (Id. at 8-9.) He "leads change in his group," and also "leads his group in meeting Company standards."(Id.) Hiott acknowledges that he "perform[s] duties that differ from those performed by the Team Members in his group." (Id. at 8-9.)
Hiott understood MBUSI's document listing "GL Roles & Responsibilities" to be the "expectations of his group leader job." (Doc. 117-5 at 24.) He states that he "fulfills all" of these various roles and responsibilities. (Doc. 117-6 at 8.) These "GL Roles & Responsibilities" are summarized as the duty to "
As with the rest of this set of Plaintiffs, Hiott's own admissions are augmented by MBUSI's own undisputed facts. (Doc. 115 at 97-107.) Also, like many of the others examined so far, Hiott's own set of facts do not mention any nonexempt work, or anything else that would genuinely put his "primary duty" in controversy. (Doc. 136 at 20.)
Like Mark Gothard, Jay Houser makes all of the Chiabi admissions (Doc 117-8 at 3-9), and does not dispute MBUSI's facts (Doc. 115 at 108-117). Plaintiffs' brief attempts to downplay Houser's own "conclusively established" admissions, but does not identify any nonexempt activities that he performs. (Doc. 136 at 20-26.) There is therefore no question that his "primary duty" is management.
Kevin Martin makes all but two of the Chiabi admissions. (Doc. 117-10 at 3-9.) He admits that "he gives work assignments to members of his group," but makes the distinction that he "does not give work directions." (Id. at 3.) He denies that he "leads his group independently of [his] Manager or Assistant Manager." (Id. at 9.) He admits, however, that he is "the leader of his group" and "he does use leadership skills." (Id. at 8-9.) He "leads change in his group," and also "leads his group in meeting Company standards." (Id.) He admits that he "can direct training and retraining," and that he "do[es] so if he deem[s] appropriate." (Id. at 6.)
Kevin McCurley makes all of the Chiabi admissions (Doc 117-12 at 3-9), and does not dispute MBUSI's facts demonstrating that his "primary duty" is management. (Doc. 115 at 128-137). Plaintiffs do not identify any nonexempt activities that he performs. (Doc. 136 at 36-38.) Accordingly, his "primary duty" is not genuinely in dispute.
The same is true for Steven Munoz. He makes all of the Chiabi admissions (Doc. 110-7 at 3-9), and does not dispute any of MBUSI's extensive facts showing his management duties. (Doc. 115 at 137-149). Plaintiffs do not identify a single non-exempt activity in their own facts. (Doc. 136 at 38-39.) Munoz' "primary duty" is therefore not at issue.
Pope admits that she was "properly classified under the Fair Labor Standards Act as an exempt employee," but qualifies her response to say that she had always been "paid for any overtime hours she worked" until the "casual time" policy was implemented. (Doc. 111-7 at 49.) As discussed below in Part IV.B, payment of overtime is no obstacle to being considered exempt.
To the extent her admission to being properly classified as exempt does not dispose of her claims, Pope's "primary duty" is clear from the other evidence. Susan Pope makes all of the Chiabi admissions (Doc. 111-7 at 40-47), and fails to challenge MBUSI's facts showing that her "primary duty" is management. (Doc. 115 at 150-162.) Unlike most of the others discussed so far, Plaintiffs do allege that Pope engaged in nonexempt work; they claim that "Pope works side by side on the production line with her Team Members," and that "[h]er duties are no different [than] those of Team Leaders — she re-inspects vehicle[s] to verify that car[s][are] correctly constructed." (Doc. 136 at 39.) The first of these assertions is, at best, misleading. Pope did testify that at one point she "spent many an hour out in the cold doing the same job as ... team members and team leaders." (Doc. 111-7 at 14.) The time period in question, however, was in 2005 — long before the "casual time" policy was implemented, and well outside the statute of limitations. Plaintiffs' second assertion, that her "duties are no different than those of Team Leaders," is also exaggerated. At best, Pope's testimony shows that the duties of TLs overlapped with hers in a particular area, thanks in part to her own directions: "I instruct the team leaders as to what's being missed, ask them to watch. The team leader also does the same thing I do, they watch the team." (Doc. 111-7 at 29.) Plaintiffs give no significant examples of nonexempt work, and do nothing to diminish the primacy of Pope's management duties during the relevant time period.
Like most of the others discussed above, Willie Mark Williams makes all of the Chiabi admissions (Doc 117-18 at 3-9), and does not deny MBUSI's facts showing that his "primary duty" is management (Doc. 115 at 189-201). In their own statement of facts, Plaintiffs do not identify a single non-exempt activity that he performs.
Before moving on to the other three requirements, there is an additional issue to consider. To meet the current prong of the four-part test, an employee's "primary duty" must be "management of the enterprise ... or of a customarily recognized department or subdivision thereof." 29 C.F.R. § 541.100(a)(2) (emphasis added). The purpose of this requirement is "to distinguish between a mere collection of employees assigned from time to time to a specific job or series of jobs and a unit with permanent status and function." 29 C.F.R. § 541.103(a). Plaintiffs argue that although GLs are "in charge of a team of people," those teams "change with the needs of production." (Doc. 136 at 63.) They contend that these teams or groups are therefore "not a department or other recognized subdivision." (Id.) Plaintiffs assert that, for example, "[w]hile the `Paint Department' may have a permanent status and continuing function, each of the three to five `groups' within the Paint Department does not." (Id.) Notably, Plaintiffs provide no citations to the record in support of their position. To the contrary, throughout the various depositions, the groups are referred to by name, such as "Body and Paint Quality Control," "Structure 1," "Conveyance," etc., and appear to have permanent designations. According to authority provided in Plaintiffs' own brief, a "department or subdivision can include small groups of employees ... within a larger department, such as a group leader of four draftsment in the gauge section of a much larger department." (Doc. 136 at 63, quoting 69 Fed.Reg. 22122, 22134 (Apr. 23, 2004) (internal quotation omitted)). A similar arrangement prevails at MBUSI, albeit on a larger scale.
Individually, the Plaintiffs certainly acknowledge their groups to be "recognized unit[s] with a continuing function," 29 C.F.R. § 541.103(c). Together they appear to tacitly acknowledge this fact in the "Agreed Upon Undisputed Common Facts." (Doc. 97 ¶ 5 ("Each Production group at MBUSI has a GL. Generally, each GL has a group consisting of one or more teams. Generally, each team is organized with a TL and multiple TMs.")) The record is clear that the groups supervised by GLs are much more than "mere collection[s] of employees assigned from time to time to a specific job," 29 C.F.R. § 541.103(a), and they therefore satisfy the "customarily recognized department or subdivision" requirement.
Plaintiffs maintain, correctly, that determining an employee's "primary duty" ordinarily presents a jury question. But for each of the Plaintiffs just discussed, the evidence is completely one-sided, and all but devoid of nonexempt work. The four "primary duty" factors offer Plaintiffs no refuge: without establishing the existence of nonexempt work, it is nonsensical to attempt a comparison of its importance, the amount of time spent on it, or the wages given to other employees for similar nonexempt work.
Plaintiffs assert that "as a threshold matter, the `executive exemption' is inapplicable because GLs were not paid a true salary." (Doc. 136 at 4.) They repeat this point later in their brief: "As a threshold matter, Mercedes' motion must fail because there is a genuine issue of material fact whether GLs are compensated on a true salary basis." (Doc. 136 at 49.) Plaintiffs are correct that "compensat[ion] on salary basis at a rate of not less than $455 per week" is indeed a threshold question to meeting the executive exemption. See 29 C.F.R. § 541.100(a)(1). They neglect to point out, however, that it is a threshold that they have voluntarily crossed. Every one of these Plaintiffs received an RFA with the following prompt: "[i]n your job as Group Leader at MBUSI, you earn at least $455 per week salary." Each Plaintiff answered with an unqualified "Admit."
Even if their admissions were not enough, this "threshold question" has previously been answered in this case (see Doc. 71 at 6-9; Doc. 182 at 11-13), and the same analysis applies here with equal force. Plaintiffs again claim that their compensation was "subject to reduction because of variations in the quality or quantity of the work performed." 29 C.F.R. § 541.602(a). As explained before, this argument fails because it relates solely to Plaintiffs' overtime compensation. The regulations specifically provide that "an employer may provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis." 29 C.F.R. § 541.604(a). Plaintiffs do not allege that their actual base salaries were impacted by the number of hours worked, only that it affected their payment for overtime. Because their salaries remained constant regardless of the amounts of overtime earned, MBUSI's choice to provide additional compensation for overtime
Plaintiffs again attempt to buttress their argument by claiming that "deductions ... [were] made for absences occasioned by Mercedes or by the operating requirements of the business." (Doc. 136 at 49.) As of 2008, MBUSI does not build cars at its Alabama plant on Fridays, although some non-production activities apparently still take place. GLs not scheduled to work on these non-production Fridays have various options: they can elect to use a paid vacation day, they can take an unpaid personal day off work, or they can bank their unworked Friday hours against future overtime hours. Plaintiffs argue that this "Friday Bank" procedure requires MBUSI to "count[] hours worked, which violates the whole concept of a fixed salary." (Doc. 136 at 53-54.)
In so arguing, Plaintiffs continue to confuse the concept of counting hours for base compensation with counting hours for overtime. As noted above, employers may — but are not required — to provide overtime compensation for exempt, salaried employees. MBUSI's decision to provide overtime in addition to a predetermined salary has no bearing on whether a "salary basis" exists. If MBUSI — of its own accord — chooses to pay an overtime premium, it may also determine how that overtime is paid, so long as employees still receive, in full, their predetermined salaries. There appears to be no dispute that Plaintiffs did receive their full salaries, even when "banking" Friday hours against future overtime. As such, Plaintiffs were plainly "[c]ompensated on a salary basis at a rate of not less than $455 per week." 29 C.F.R. § 541.100(a)(1).
The third prong of the executive exemption test requires an employee to "customarily and regularly direct[] the work of two or more other employees." 29 C.F.R. § 541.100(a)(3). As with the requirements already discussed, Plaintiffs' own admissions do most of the heavy lifting on this issue.
All of these Plaintiffs admit in RFA # 1 that as GLs, they "supervise the team leaders and team members in [their] group[s]."
As to whether such direction is "customarily and regularly" done, the phrasing of the RFAs indicates that directing the work
Additionally, the required number of "other employees" poses no obstacle. It is undisputed that each GL has a group that "consist[s] of one or more teams." (Doc. 97 at ¶ 5.) Each team, in turn, is generally "organized with a TL and multiple TMs." (Id.) Even the smallest possible group — a single team consisting of just one TL and one TM — would still satisfy the "two or more" requirement. Most, however, appear to be significantly larger, with dozens of TMs and a handful of TLs. Given all of this, there is no question that each of these Plaintiffs "customarily and regularly directs the work of two or more other employees." 29 C.F.R. § 541.100(a)(3).
The final prong of the executive exemption test is whether each of these Plaintiffs "has the authority to hire or fire other employees," or whether their "suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight." 29 C.F.R. § 541.100(a)(4). MBUSI does not contend that Plaintiffs have the authority to hire or fire, but that their suggestions and recommendations are given "particular weight." The regulations provide a set of nonexclusive factors for making this inquiry:
29 C.F.R. § 541.105. Once again, Plaintiffs go a long way toward establishing this with their own admissions. Each of them admit in RFA # 7 that they "provide an opinion as to whether or not team members and team leaders in [their] group[s] are ready for promotion."
In addition to the role their recommendations play in promotion decisions, Plaintiffs can — at their discretion — take steps that could lead to a team member's termination. In their responses to RFA # 10, each of the Plaintiffs admit that, as GLs, they "have the authority to initiate a Corrective Performance Review on a team member when [they] deem necessary."
In their brief, Plaintiffs admit that GLs give performance evaluations and can initiate corrective performance reviews, but argue that such actions "must be approved by an Assistant Manager and HR," and in any case are "only one of several evaluation tools utilized by MBUSI's Management." (Doc. 136 at 65.) But the regulations specifically provide that "[a]n employee's suggestions and recommendations may still be deemed to have `particular weight' even if a higher level manager's recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee's change in status." 29 C.F.R. § 541.105. In light of the factors listed above, there is no question that these Plaintiffs' suggestions and recommendations are given "particular weight."
All fifteen of these Plaintiffs are exempt from the FLSA's overtime requirements under the "executive exemption." As such, summary judgment is appropriate as to their claims, and in each of their respective cases, MBUSI's motion (Doc. 114) is due to be granted. Separate orders consistent with this opinion will be entered.
Unless otherwise noted, citations to the record are to the document numbers in the Hicks v. MBUSI case, 7:08-cv-0536-LSC. Document numbers preceded by "Lawson" reflect the document number assigned in Lawson v. MBUSI, 7:09-cv-1157-LSC.
Even though Boles' "unsure" response to RFA # 43 does not itself warrant treatment as an admission, Plaintiffs have essentially made the same admission by a different route. MBUSI included this "admission" as a statement of fact in its summary-judgment motion (Doc. 115 at 7), and Plaintiffs have not disputed it. Both the Federal Rules of Civil Procedure and the Uniform Initial Order require a responding party to individually address the factual assertions made in a summary-judgment motion, supported by citations to the record. FED.R.CIV.P. 56(c), (e); (Doc. 9. at IV(A), Appx. II). Because MBUSI's assertions regarding Boles' admissions have gone unchallenged by Plaintiffs in their response brief (Doc. 136 at 5), Plaintiffs have conceded the admission.