NANCY K. JOHNSON, Magistrate Judge.
Pending before the court
Plaintiffs Cedric Ntuk ("Ntuk"), John Clark ("Clark"), Drachan Johnson ("Johnson"), and Kevin Mallard ("Mallard") (collectively, "Plaintiffs") filed this action alleging that Defendants violated the Fair Labor Standards Act
Waste Management hired TSC as an independent contractor "to provide staffing services for trash hauling," including "supplying trained and qualified temporary [labor] to perform work as requested by Waste Management" and "performing all hiring, firing, discipline, training and other responsibilities necessary to discharge its legal obligations as the employer of the Personnel supplied to Waste Management."
Smith averred that Plaintiffs were paid weekly salaries that were unaffected by the number of hours they worked.
In terms of their day-to-day responsibilities, Smith averred that Clark, Ntuk, and Mallard:
Smith testified to the fact that Ntuk, Mallard, and Clark were the "primary representative[s]" of TSC onsite and had the power to hire and fire helpers.
The TSC letter offering employment to Ntuk, Mallard, and Clark outlined that their "initial tasks" for TSC would include: (1) ensuring that the site had the proper number of helpers; (2) training helpers on a weekly basis and verifying that they had been properly trained and equipped before starting work; (3) tracking time worked and submitting the time logs to payroll; (4) "[r]eleas[ing] an employee from his/her job assignment upon request [of Waste Management or TSC's administrative office]"; (5) performing routine quality assurance checks on the routes; and (6) upon termination of a helper before his shift ended, finding a replacement and transporting the terminated helper to his home or vehicle.
Ntuk testified that he saw his role as a "middle man" rather than a supervisor, stating that he merely told workers to which trucks they had been assigned, "cop[ied] and pasted the payroll," and observed trucks for Waste Management; his primary role, according to his testimony, was to staff the trucks.
In terms of his daily duties, Mallard stated that he would facilitate a roll call to check attendance and would ensure that employees were wearing their required gear.
Johnson testified that she was paid time and a half for overtime and that she was paid by TSC for all of the hours that she requested.
On April 28, 2016, Plaintiffs filed their complaint alleging violations of the FLSA.
On May 4, 2017, Defendants filed the pending motion for summary judgment, contending that Plaintiffs were exempt under the FLSA.
Plaintiffs ask the court to strike Defendants' motion for summary judgment, contending that: (1) Defendants failed to plead the exemptions in their answer; and (2) Defendants did not provide specific record citations in support of their motion for summary judgment. Plaintiffs also ask the court to strike Smith's affidavit, arguing that it does not comply with the Federal Rules of Evidence and contains false statements.
In Plaintiffs' motion to strike and in their response to Defendants' motion for summary judgment, they contend that Defendants failed to raise the administrative and executive exemptions in their answer. Defendants respond that the administrative exemption was properly pled, and, alternatively, Defendants requested leave of court to file an amended answer adding the word "administrative" to cure any uncertainty that this exemption had been pled.
Traditionally, "[a]n affirmative defense is subject to the same pleading requirements as is the complaint."
District courts are divided about whether the fair notice or the
In their second amended answer, Defendants state that Plaintiffs were exempt employees, paid more than the $455 rate set by the FLSA, "agreed through a Letter of Engagement with [TSC] to exercise a wide level of discretion and independent judgment to supervise Helpers at the Pasadena Facility; give truck assignment, engage as a liason between [Waste Management] and [TSC], to relieve Helpers of their duties, hire, suspend and terminate Helpers, handle payroll logs and checks, and performing safety inspections of helpers," and "the Plaintiffs through his [sic] pay grade, job duties, and the carrying out of his duties and independent judgment, the Plaintiff was an exempt employee under the FLSA standards."
Defendants' statements in their second amended answer clearly alleged the three elements required for the administrative exemption to apply. They alleged that Plaintiffs were paid at least $455 per week, that Defendants performed office or non-manual work such as handling payroll, hiring, and firing, and that they exercised discretion and independent judgment. Regardless of which pleading standard is applicable to affirmative defenses, Defendants adequately pled the administrative exemption in their answer before it was amended. While the amendment helped to clarify that they were pleading the administrative exemption, the original answer contained statements clearly indicating that they were asserting the administrative exemption as an affirmative defense. Therefore, the court finds that Defendants adequately pled the administrative exemption as an affirmative defense.
As to the executive exemption, it is unclear whether Defendants actually meant to assert the exemption in this case. While Defendants did allege that Plaintiffs were paid $455 a week and had hiring and firing power, there is no allegation in the second or third amended answer that Plaintiffs' primary duty was management or that they regularly directed the work of at least two employees, as required by the executive exemption. And, while Defendants make passing mention of the elements of the executive exemption in the beginning of their motion for summary judgment,
Plaintiffs complain that Defendants generally cite to documents in their motion for summary judgment, rather than identifying with more specificity the evidence that supports their motion. This statement is unfounded. Throughout the motion for summary judgment, Defendants cite to affidavits and depositions, providing the court and Plaintiffs with specific page numbers to demonstrate the source of their factual support. Therefore, this objection is overruled.
Based on the foregoing, the court
Plaintiffs lodge a number of evidentiary objections to Defendants' motion for summary judgment and Smith's accompanying affidavit.
A party must support its factual positions on summary judgment by citing to particular evidence in the record. Fed. R. Civ. P. 56(c)(1). Federal Rule of Civil Procedure 56(c)(2) allows a movant to object to exhibits that "cannot be presented in a form that would be admissible in evidence" under the Federal Rules of Evidence.
Only relevant evidence is admissible. Fed. R. Evid. 402. Relevant evidence has a "tendency to make a fact more or less probable than it would be without the evidence" and relates to a fact "of consequence in determining the action." Fed. R. Evid. 401. Affidavits supporting summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). The court may strike an affidavit that violates this rule.
Hearsay is not admissible evidence. Fed. R. Evid. 802. Hearsay is an out-of-court statement that is offered for "the truth of the matter asserted in the statement." Fed. R. Evid. 801. Statements offered against an opposing party made "by the party in an individual or representative capacity" are not hearsay." Fed. R. Evid. 801(d)(2). The Federal Rules of Evidence also list exceptions to the rule against hearsay. Fed. R. Evid. 803-804, 807.
For purposes of authentication, Federal Rule of Evidence 901(a) requires "evidence sufficient to support a finding that the item is what the proponent claims it is." Circumstantial evidence, such as the document itself and the circumstances surrounding its discovery, is sufficient for authentication.
Plaintiffs object to Smith's affidavit, asserting that it violates Federal Rules of Evidence ("Rule") 602, 802, and 901(9) and contains misleading statements.
Pointing first to Rule 602, Plaintiffs take issue with Smith's statements as to Plaintiffs' job duties on the basis that she lacked personal knowledge. Rule 602 limits a witness to testifying about matters of which she has personal knowledge. Fed. R. Evid. 602. In her affidavit, Smith explains that her knowledge comes from performance of her job as the CEO of TSC. In response to the motion to strike, Defendants attach supplemental affidavits from Smith, further detailing the basis for her personal knowledge of Plaintiffs' duties, and from Mike Green, the supervisor for Ntuk, Clark, and Mallard. The court finds that the affidavits satisfy Rule 602's requirement of personal knowledge. Plaintiffs' objection is overruled.
Plaintiffs next contend that Smith's affidavit contains hearsay statements, violating Rule 802, as she "references to her company's contractual obligations to her client Waste Management and testifies that Ntuk and Mallard were obligated to act as `supervisors' and as `eyes & ears' on the ground on behalf of [TSC] when dealing with Waste Management."
Rule 801(c) defines hearsay as an out-of-court statement of another offered for the truth of the matter asserted. Fed. R. Evid. 801(c). There is no such out-of-court statement contained in Smith's affidavit. As to Plaintiffs' argument that Smith's characterization of Plaintiffs' duties as supervisory lacked a factual foundation, the court finds that this, too, is without merit. Smith's personal knowledge of their duties was established through her statement that she was the CEO of TSC, and Plaintiffs' argument that the contract is the best evidence of its obligations was cured when they attached the contract between Waste Management and TSC to their cross-motion for summary judgment. Plaintiffs' hearsay objections are overruled. Plaintiffs also argue that Smith's affidavit runs afoul of Rule 901(9), which sets forth how certain documents may be authenticated. Rule 901(9) applies to documentation of a process or system. Plaintiffs contend that "there should be some documentation, however, reflecting and memorializing each of these individuals' daily decision making," and without such documentation, her affidavit is untrustworthy.
Finally, Plaintiffs object that Smith's affidavit contains false and misleading statements. Plaintiffs challenge the statement, "The prospective employee could apply, be interviewed and began [sic] work without very [sic] speaking to another Taylor Smith employee."
Plaintiffs also argue that Smith's statement that they had hiring and firing power is false, because Plaintiffs testified that they did not have that power. To restate the obvious, it is not up to the court to weigh the evidence and decide who is telling the truth. This is a fact question for the jury to decide. Therefore, all of Plaintiffs' objections are overruled.
In their response to Plaintiffs' cross-motion for summary judgment, Defendants contend that the motion was untimely because the dispositive motion deadline was May 5, 2017, and Plaintiffs did not file their cross-motion until May 25, 2017, and filed it without leave of court. In their cross-motion, Plaintiffs do not acknowledge that they missed the dispositive motion deadline. Plaintiffs do not offer any explanation for the late-filing of their motion and do not ask the court for an extension of the dispositive motion deadline. The court agrees that the motion was untimely and will treat Plaintiffs' cross-motion for summary judgment merely as a response to Defendants' motion for summary judgment, not as a summary judgment motion.
Summary judgment is warranted when the evidence reveals that no genuine dispute exists on any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues.
The FLSA provides a general rule that an employer must pay its employees overtime compensation for hours worked in excess of forty per week. 29 U.S.C. § 207(a)(1);
Under 29 U.S.C. § ("Section") 207(a), the FLSA requires covered employers to compensate nonexempt employees at overtime rates for time worked in excess of statutorily defined hours. Section 216(b) creates a cause of action for employees against employers violating the overtime compensation requirements. Section 213(a)(1) exempts employees occupying "bona fide executive, administrative, or professional" positions from the overtime requirements of Section 207. These terms "are [to be] defined and delimited from time to time by regulations of the Secretary [of Labor]." 29 U.S.C. § 213(a)(1).
While the decision whether an employee is exempt from the overtime compensation requirement is primarily a question of fact, the ultimate issue is a question of law.
The regulations provide that an exempt administrative employee is one: (1) compensated at a rate of not less than $455 per week; (2) [w]hose primary job duty is the performance of office or non-manual work directly related to management or general business operations of the employer or the employer's customers; and (3) [w]hose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R. § 541.200(a). The court considers each element in turn.
In order to be considered an exempt administrative employee, an employer must pay the employee in excess of $455 per week. Plaintiffs' pay stubs and Smith's averments as to their salaries demonstrated that each was paid more than $455 per week. Plaintiffs do not dispute this in their response. Therefore, Defendants have met the first prong of the administrative exemption test.
Turning to the second prong of the administrative exemption, the regulations require that in order to qualify for the exemption, an employee's primary duty must be "work directly related to the management or general business operations of the employer or the employer's customers." 29 C.F.R. § 541.201(a). The regulation further explains: "Work directly related to management or general business operations includes, but is not limited to, work in functional areas such as . . . personnel management; human resources; . . . labor relations; . . . and similar activities." 29 C.F.R. § 541.201(b). The court must focus on the actual day-today activities of the employee and not the characterizations of those activities by the employee or the employer.
The regulations further explain that to qualify for exemption from overtime, an employee's "primary duty" must be the performance of exempt work. 29 C.F.R. § 541.700(a). The regulation states:
29 C.F.R. § 541.700(a). The regulations caution that, while the amount of time spent performing exempt work is a useful guide in determining an employee's primary duty, time alone is not the sole factor and "nothing in this section requires that exempt employees spend more than 50 percent of their time performing exempt work. Employees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirement if the other factors support such a conclusion." 29 C.F.R. § 541.700(b).
Consistent with the regulations, the Fifth Circuit has held that, as a general rule, an employee's "primary duty" will typically require over fifty percent of his work time.
It is undisputed that Plaintiffs had the responsibility to ensure that there were the proper number of helpers to staff Waste Management's trucks. However, the extent of their "management" role is disputed. Smith averred that they managed Waste Management and other TSC employees, scheduled and assigned helpers to trucks, hired and fired helpers, observed helpers, and checked and reported helpers' hours. Defendants also submitted an email in which Ntuk discusses firing a certain employee. However, Plaintiffs dispute this, with Ntuk and Mallard testifying that his role as a "supervisor" was in name only, that their primary role was to make sure trucks were staffed, and that they had no firing power. Mallard testified that he did not supervise anyone. Therefore, fact questions exist whether Plaintiffs' primary job duties were managerial in nature.
The third prong of the administrative exemption requires Defendants to prove that Plaintiffs customarily and regularly exercised independent judgment and discretion in the performance of their job duties.
Factors to be considered are whether the employee "performs work that affects business operations to a substantial degree, even if the employee's assignments are related to operation of a particular segment of the business," "whether the employee has the authority to commit the employer in matters that have significant financial impact," and "whether the employee investigates and resolves matters of significance on behalf of management." 29 C.F.R. § 541.202(b). The regulation cautions that employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level. 29 C.F.R. § 541.202(c). In interpreting this prong of the administrative exemption, the Fifth Circuit has held that the exercise of discretion and judgment must be with respect to matters of consequence, but need not be final, decision-making authority.
Because the court already found that fact questions exist on the second prong, the court need not reach this prong. However, the court acknowledges that, as with the second prong, fact questions exist whether Plaintiffs exercised independent judgment and discretion. For example, it is disputed whether Plaintiffs had hiring and firing power and unclear how much decision-making power they had in their roles as onsite supervisors. Therefore, summary judgment for Defendants must be denied. Even if this court had considered Plaintiffs' late-filed motion, fact issues would require its denial.
Defendants contend that summary judgment should be granted on the claims by Johnson, as she admitted in her deposition that Defendants owed or no money and that she fell under the administrative exemption because she was paid $605.77 per week. However, several minutes later she testified that she was owed money by Defendants and did not have hiring and firing power. The court cannot resolve this conflicting testimony via a summary judgment motion. Therefore, summary judgment is denied on Johnson's FLSA claims.
Based on the foregoing, the court
