United States District Court, D. Alaska
ORDER RE PENDING MOTIONS
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Before
the Court are Defendant Classic Alaska Trading/Big Ray's
Alaska, Inc.'s (“Classic”) Motion for Summary
Judgment at Docket 83, Plaintiff Catherine Scalf's Motion
for Partial Summary Judgment at Docket 97, and Plaintiff
Suzanne Blake's Motion for Partial Summary Judgment
Regarding Liability at Docket 100. The motions are fully
briefed.[1] Oral argument on the summary judgment
motions was held on March 14, 2018.[2]Also before the Court is
Classic's Motion to Certify at Docket 137.[3]
BACKGROUND
On
cross-motions for summary judgment, the Court must consider
each motion separately to determine whether that party has
met its burden with the facts construed in the light most
favorable to the other side.[4] Because the Court will grant
summary judgment to Classic as to Ms. Blake for the reasons
set forth herein, the facts as to Ms. Blake are presented in
the light most favorable to her. As to Catherine Scalf, the
Court denies both motions, and thus the facts are presented
from each side's perspective.
A.
Suzanne Blake
Plaintiff
Suzanne Blake was hired by Classic on August 27, 2013 as an
outside retail sales manager (“ORSM”) at the
Fairbanks Market downtown Big Ray's store.[5] Ms. Blake agreed
to a salary of $62, 000 per year.[6] Ms. Blake states that as
ORSM, “[her] primary duties consisted of fielding
internet and phone orders from customers and processing them,
and manually updating the website. After receiving an
internet order, [she] processed it through about a 90 step
manual procedure. After receiving a phone order, [she] also
processed it through a 97 step manual
procedure.”[7] Approximately three weeks after being
hired, Ms. Blake was informed by Monty Rostad, her supervisor
and a co-owner of the company, that she would also be taking
on the duties of the Fairbanks Market Manager
(“MM”).[8] As MM, she was assigned to report to Jesse
Glamann, who was located in Kodiak, Alaska, with whom she
communicated by phone and email; Mr. Rostad also oversaw her
activities as MM.[9] Ms. Blake states that as MM, her primary
duties consisted of learning how to ring up cash register
sales, assisting customers, cleaning the premises, making
sales signs, straightening and folding clothes on display
tables and racks, stocking apparel and clothes, mowing the
lawn, shoveling snow, opening and closing computer files,
opening and closing the store, alarming the security system,
and other similar duties.[10] Ms. Blake maintains that
overall her primary duties were those of an ORSM and the
daily non-exempt tasks she performed in that role. She
estimates those duties made up about 90 percent of her time
at Big Ray's.[11] Ms. Blake states that approximately
“ten percent of [her] actual duties while
working at Big Ray's consisted of performing as market
manager.”[12]
As part
of her job duties, Ms. Blake supervised
employees.[13] On at least one occasion, Ms. Blake gave
an employee a raise.[14] On at least one occasion, Ms. Blake
promoted an employee.[15] Ms. Blake had the authority to grant
employee time-off requests.[16] Ms. Blake also hired
employees.[17] And Ms. Blake had and exercised the
authority to fire employees.[18] However, Ms. Blake has stated
that a “[v]ery little part of [her] job was hiring and
firing employees.”[19] Ms. Blake stated that she answered
only to the three owners of the company, as well as to Jesse
Glamann and Cindy Benford.[20]
Ms.
Blake turned in her resignation from Big Ray's on
September 27, 2014 because she felt she was not being paid
for the overtime she was working.[21] On January 20, 2016, Ms.
Blake initiated this action against Classic, alleging that
she was not paid for all of the time she worked, including
the overtime hours for which she claims she was entitled to a
rate equal to one-and-a-half times her usual
rate.[22] Ms. Blake alleges that Classic's
actions violated the Fair Labor Standards Act, 29 U.S.C.
§ 201, et seq.
(“FLSA”).[23] Ms. Blake also alleges violations of
Alaska Law, AS 23.5.140-260, and the Alaska Wage and Hour
Act, AS 23.10.50-150 (“AWHA”), and a violation
the implied covenant of good faith and fair
dealing.[24] Ms. Blake's Complaint also alleges
that she “was not paid her final two days wages after
separation nor was she paid her appropriate overtime in
accordance with Alaska law.”[25] In July 2016, after the
Complaint was filed, Classic paid Ms. Blake her wages for
these two days.[26] However, Ms. Blake seeks a statutory
penalty for the delay.[27]
B.
Catherine Scalf
The
following facts are undisputed:
Plaintiff
Catherine Scalf worked at Big Ray's from early 2006 until
the summer of 2015.[28] During her final three years working
there, her title was Corporate Sales Manager
(“CSM”).[29] Ms. Scalf's average annual
compensation, including salary and benefits, from 2012 to
2015 was $52, 910.[30]
On
April 6, 2016, Ms. Scalf filed a Complaint in this Court,
alleging that Classic's actions violated the FLSA, 29
U.S.C. § 201, et seq.[31] Ms. Scalf also alleges
violations of Alaska Law, AS 23.5.140-260, and the AWHA, AS
23.10.50-150, and a violation of the implied covenant of good
faith and fair dealing.[32] On December 5, 2016, Ms. Scalf's
case was consolidated into Ms. Blake's similar case
against Classic.[33]
The
parties dispute a number of facts relating to the character
of Ms. Scalf's job duties. According to Classic, the
facts are as follows:
Despite
Ms. Scalf's claims to the contrary, Ms. Scalf did in fact
have the authority to hire and fire employees.[34] Ms. Scalf
supervised employees in her department, as she acknowledged
in her deposition.[35] Ms. Scalf also signed contracts on
behalf of Classic and went on sales calls in an effort to
establish new customer accounts.[36] Ms. Scalf made bids on
behalf of Classic.[37] Ms. Scalf also had input into the
budget.[38]
Ms.
Scalf's view of these facts is as follows:
Ms.
Scalf was “nominally in charge of the corporate sales
department and embroidery department of the Fairbanks
downtown store.”[39] Nevertheless, Ms. Scalf maintains
that “approximately ninety percent of [her] time was
spent taking, invoicing and filling purchase orders from
corporate customers and their employees.”[40] Ms. Scalf
described her duties as follows during her deposition:
I took phone calls; I fitted the customers, cleaned the
department . . . stocked the FR clothing, invoiced the
customers and [gave] them a receipt, taking the garments over
to embroidery so they can be embroidered. . . . [I]f I was
the first one at the store and it snowed, I shoveled the
snow.
When we were on the main floor, there was a whole bank of
windows that faces the parking garage. I kept those clean
because there was always nasty stuff on the windows, so I
always would keep those clean and any other duties that
needed to be done.[41]
Ms.
Scalf stated that during her final two and a half years at
Big Ray's, she supervised one full-time employee; for a
few months during that time, she supervised a second fulltime
employee and a part-time employee.[42] Ms. Scalf stated that
although she made bids and signed contracts and corporate
agreements on behalf of Classic, she did not have the
independent discretion to make these decisions.[43]
C.
Motions for Summary Judgment
On
December 1, 2017, the parties all filed dispositive motions.
Classic's motion asserts that Ms. Blake and Ms. Scalf
were each undisputedly exempt executive or administrative
employees, or a combination of both, under both the FLSA and
the AWHA.[44] Classic asserts that the claim of breach
of implied covenant of good faith and fair dealing also
fails. Ms. Scalf's Motion for Partial Summary Judgment
contends that because she engaged primarily in non-exempt
work, as a matter of law she is entitled to overtime
pay.[45] Ms. Blake's Motion for Partial
Summary Judgment likewise asserts that as a matter of law,
she was a non-exempt employee who was unlawfully denied
overtime pay.[46]
DISCUSSION
I.
Jurisdiction and Applicable Law
This
Court has jurisdiction pursuant to 28 U.S.C. § 1331
because this is a civil action with certain claims arising
under federal law, 29 U.S.C. § 201, et seq. The
Court has supplemental jurisdiction over Plaintiffs'
related state law claims.[47]
The
Court applies federal procedural law; Alaska substantive law
applies to the state law claims.[48]
II.
Standard for Summary Judgment
Federal
Rule of Civil Procedure 56(c) directs a court to grant
summary judgment if the movant “show[s] that there is
no genuine issue as to any material fact and that [the
movant] is entitled to a judgment as a matter of law.”
When considering a motion for summary judgment, “[t]he
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his [or her]
favor.”[49] When faced with cross-motions for
summary judgment, the court “review[s] each separately,
giving the non-movant for each motion the benefit of all
reasonable inferences.”[50] To reach the level of a
genuine dispute, the evidence must be such “that a
reasonable jury could return a verdict for the non-moving
party.”[51] If the evidence provided by the
non-moving party is “merely colorable” or
“not significantly probative, ” summary judgment
is appropriate.[52]
III.
Applicable Laws
A. Fair
Labor Standards Act
The
FLSA requires that employers pay overtime wages to employees
who work more than 40 hours per week.[53] However,
“[e]mployees who are employed in executive,
administrative, or professional capacities are exempt from
that overtime requirement.”[54]Regulations define whether
an employee is “employed in a bona fide executive,
administrative, or professional capacity” so as to be
exempt under 29 U.S.C. § 213(a)(1).
According
to the regulation in effect during the relevant time,
[55]
the executive exemption applies to an employee who is:
(1) Compensated on a salary basis at a rate of not less than
$455 per week . . .;
(2) Whose primary duty is management of the enterprise in
which the employee is employed or of a customarily recognized
department or subdivision thereof;
(3) Who customarily and regularly directs the work of two or
more other employees; and
(4) Who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring,
firing, advancement, promotion or any other change of status
of other employees are given particular weight.[56]
The
applicable regulation defines an administrative employee as
one who is:
(1) Compensated on a salary or fee basis at a rate of not
less than $455 per week . . .;
(2) Whose primary duty is the performance of office or
non-manual work directly related to the management or general
business operations of the employer or the employer's
customers; and
(3) Whose primary duty includes the exercise of discretion
and independent judgment with respect to matters of
significance.[57]
An
employee can also be exempt under the “combination
exemption.” Under that exemption,
[e]mployees who perform a combination of exempt duties as set
forth in the regulations in this part for executive,
administrative, professional, outside sales and computer
employees may qualify for exemption. Thus, for example, an
employee whose primary duty involves a combination of exempt
administrative and exempt executive work may qualify for
exemption.[58]
The
applicable regulation defines “primary duty” to
mean “the principal, main, major or most important duty
that the employee performs.”[59] In other words, an
employee's primary duty is what she does that is of
“principal value” to her employer.[60]Determining an
employee's primary duty may involve consideration of a
number of factors, including: (1) the relative importance of
the exempt duties as compared with other types of duties, (2)
the amount of time spent performing the exempt work, (3) the
employee's relative freedom from direct supervision, and
(4) the relationship between the employee's salary and
the wages paid to other employees for the kind of nonexempt
work performed by the employee.[61] Ultimately,
“[d]etermination of an employee's primary duty must
be based on all the facts in a particular case, with the
major emphasis on the character of the employee's job as
a whole.”[62]
“FLSA
exemptions are to be narrowly construed against employers and
are to be withheld except as to persons plainly and
unmistakably within their terms and
spirit.”[63]
“The
employer always has the burden of showing the exemption
applies to its employee.”[64] The standard of proof for
an exemption is “preponderance of the
evidence.”[65] “The question of how the Employees
spent their working time is a question of fact . . . . The
question whether their particular activities excluded them
from the overtime benefits of the FLSA is a question of
law.”[66]
B.
Alaska Wage and Hour Act
The
Alaska Wage and Hour Act, like the FLSA, requires employers
to pay overtime wages, equal to one and one-half times the
regular rate, to employees who work more than 40 hours per
week.[67] Like the FLSA, the AWHA exempts
individuals employed “in a bona fide executive,
administrative, or professional capacity” from the
overtime requirement.[68] In 2005, the Alaska Legislature
amended the AWHA to adopt the federal definitions of
executive, administrative, and professional
employees.[69] Accordingly, the Alaska Supreme Court
has held that when determining whether an employee is exempt
under the AWHA, “trial courts should . . . apply the
‘primary duty test' of [DOL
regulations].”[70]
However,
while it is settled law that the standard of proof for an
exemption under the FLSA is the preponderance of the evidence
standard, it is not entirely clear what standard the Alaska
Supreme Court would apply at this time. In 1993, in
Dayhoff v. Temsco Helicopters, Inc., the Alaska
Supreme Court adopted a “beyond a reasonable
doubt” standard to establish an exemption under Alaska
law.[71] Dayhoff has not been expressly
overruled. However, in Resurrection Bay the Alaska
Supreme Court more recently held:
[a] federal statute, the Fair Labor Standards Act (FLSA),
applies concurrently and requires overtime pay under
circumstances identical to those identified in the AWHA. The
terms used in the AWHA, if not defined in Alaska law, carry
the definitions used in the FLSA.[72]
But the
Alaska Supreme Court also recognized in Resurrection
Bay that a preponderance of the evidence standard is
applied under federal law, contrary to state
law.[73] Thus, it may be that the Alaska Supreme
Court, if presented the question, might overrule its earlier
precedent and find that the federal preponderance of the
evidence standard now governs AWHA claims.[74] However, it
has not yet considered this issue. Therefore, in the absence
of an opinion by the Alaska Supreme Court that overrules
Dayhoff, this Court will apply the beyond a
reasonable doubt standard to the AWHA claims.
IV.
Analysis
A.
Suzanne Blake
1.
Executive Employee
Classic
maintains that Ms. Blake was an exempt executive employee. To
prevail on this claim on summary judgment, Classic must
demonstrate that when the evidence is viewed in the light
most favorable to Ms. Blake, she meets the four-part test set
out in 29 C.F.R. § 541.100(a).[75]
a.
Compensation of at least $455 per week
It is
undisputed that Ms. Blake received a salary of at least $455
per week.[76]
b.
Primary duty
The
second element requires Classic to show that Ms. Blake's
primary duty was management. The relevant regulation
provides:
Generally, “management” includes, but is not
limited to, 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.[77]
Classic
contends that “Ms. Blake's position with Classic
Alaska was akin to the store manager's position in
Family Dollar, ” a case in which the
plaintiff-employee was found to be an executive employee at
the summary judgment stage despite her contention that
“99% of her time was devoted to nonexecutive
duties.”[78] There, the court found that “while
[the plaintiff] performed nonmanagerial tasks around the
store as she determined necessary, she concurrently
performed the managerial duties of running the
store.”[79] Citing 29 C.F.R. § 541.106, the
court held “[t]his multi-tasking-doing management jobs
while doing nonexempt work-is explicitly recognized as a
managerial duty by the Department of Labor's
regulations.”[80] That regulation states:
[A]n assistant manager in a retail establishment may perform
work such as serving customers, cooking food, stocking
shelves and cleaning the establishment, but performance of
such nonexempt work does not preclude the exemption if the
assistant manager's primary duty is management. An
assistant manager can supervise employees and serve customers
at the same time without losing the exemption. An exempt
employee can also simultaneously direct the work of other
employees and stock shelves.[81]
The
court concluded that the employee was an exempt executive and
affirmed summary judgment for the defendant.[82] While not
binding on this Court, Family Dollar illustrates how
an employee's primary duty may be management even when
that employee spends most of her time on non-exempt
tasks.[83]
Determining
whether management was Ms. Blake's “primary
duty” requires consideration of several
factors.[84] First, the Court looks at the
“relative importance of the exempt duties as compared
with other types of duties.” This factor “focuses
on an employee's ‘principal value' to the
company.”[85] While the Court assumes, for purposes of
the motion, that Ms. Blake spent the vast majority of her
time performing non-exempt tasks, the record indicates that
Ms. Blake routinely made important decisions relating to the
daily management and functioning of the company, particularly
with respect to personnel issues.[86] Ms. Blake's decisions
relating to the supervision of employees and management of a
retail business would be more valuable to Classic than her
non-exempt activities related to completing mail orders and
working in the store. The fact that Ms. Blake reported only
to upper management, specifically Jesse Glamann and the
company's owners, further evidences the significance of
her role within the company and the importance of her
managerial duties.[87] Ms. Blake's managerial duties
included evaluating and disciplining employees, as Ms. Blake
describes in an email to Jesse Glamann on July 31,
2014.[88] Ms. Blake also hired and fired
employees, directed their work, and supervised them to ensure
their compliance with instructions.[89] Ms. Blake also had some
level of input into the budget for her
department.[90] Perhaps most crucially, Ms. Blake
retained her role as manager even while performing non-exempt
tasks such as completing orders, as she acknowledged in her
deposition.[91]
Second,
the Court looks at “the amount of time spent performing
exempt work.” Here, Ms. Blake asserts that most of her
time was spent performing non-exempt work, such as processing
internet orders, assisting customers, and cleaning the
premises. For purposes of this motion, the Court assumes that
such non-exempt tasks made up 85 to 90% of Ms. Blake's
work day.[92] However, the executive exemption may
nonetheless apply.[93]
Third,
the Court looks at “the employee's relative freedom
from direct supervision.” Although Ms. Blake was not
completely without supervision, the scope of and character of
her duties indicate that she was accorded a substantial
amount of discretion in discharging her managerial duties. As
discussed previously, Ms. Blake fired a number of
employees.[94] Ms. Blake also had the authority to hire
employees and she testified as to having hired approximately
ten employees.[95] Ms. Blake's decisions to hire and
fire employees did not require the approval of any other
managers or the company's owners.[96] Ms. Blake
acknowledged during her deposition that when she was hired,
she understood that supervising employees would be part of
her job, as would hiring and firing employees.[97] Ms. Blake
also acknowledged giving a raise to at least one
employee.[98]Furthermore, Ms. Blake acknowledged that
her only superiors in the company were Jesse Glamann, Cindy
Benford, and its three owners.[99] Therefore, Ms. Blake was
unquestionably a high-ranking manager within the company. The
facts, even when viewed in the light most favorable to Ms.
Blake, clearly indicate that Ms. Blake enjoyed relative
freedom from supervision.
Fourth,
the Court looks at “the relationship between the
employee's salary and the wages paid to other employees
for the kind of nonexempt work performed by the
employee.” Ms. Blake was paid $62, 000 annually, while
Classic provides evidence indicating that the highest paid
employee working under Ms. Blake was paid an annual
compensation of $36, 985.[100] This wide disparity between
Ms. Blake's salary and the wages of her subordinates
strongly supports the applicability of the executive
exemption as to Ms. Blake.
Ms.
Blake maintains that her “primary duties as MM
consisted of a [sic] learning how to ring up cash register
sales; assist customers, clean the premises; make up sales
signs; straighten and fold clothes on display tables and
racks; stock apparel and clothes; mow the lawn and shovel
snow; opening and closing computer files; opening and closing
the store; alarming the security system; and, other similar
types of duties.”[101] Ms. Blake also states that
as ORSM, her “primary duties consisted of fielding
internet and phone orders from customers and processing them,
and manually updating the web site.”[102]However,
Ms. Blake's conclusory statements regarding her primary
duties do not create a triable issue of fact. Rather,
applying the four factors outlined in the FLSA and viewing
the evidence in the light most favorable to Ms. Blake, it is
clear that Ms. Blake's most important duty and her main
contribution to the company lay not in the non-exempt tasks
she performed much of the time, but in the performance of her
managerial duties.[103]Examining the character of Ms.
Blake's position as a whole, including her relative
salary, the authority she exerted over other employees, and
her relative freedom from supervision, the Court finds that
Ms. Blake's primary duty was management.
c.
Customarily and regularly directs work of two or more
employees Ms. Blake meets the third element of an exempt
executive employee because it is undisputed that she
“customarily and regularly direct[ed] the work of two
or more other employees.”[104]
d.
Authority to hire and fire employees
Ms.
Blake also meets the fourth and final element because she
unquestionably had the authority to hire and fire employees,
as previously described.[105]
In her
motion, Ms. Blake asserts that her “primary duties did
not include managing a department; or directing the work of
two or more employees; or, exercising the authority to hire
and fire employees.”[106] However, Ms. Blake does not
provide evidence that supports these assertions. To the
contrary, the evidence in the record, including Ms.
Blake's own deposition testimony, undisputedly
demonstrates that Ms. Blake did in fact supervise
employees.[107] Furthermore, Ms. Blake's
conclusory affidavits do not establish a genuine issue of
fact, to the extent they contradict her previous deposition
testimony.[108]Based on the foregoing, the Court finds
that Classic has demonstrated that Ms. Blake meets each of
the four elements laid out in 29 C.F.R. §
541.100(a).[109] When all justifiable inferences are
drawn in Ms. Blake's favor, the Court finds that no
reasonable jury could find that Ms. Blake was not an exempt
executive employee under the FLSA and AWHA.[110]
2.
Penalty
Ms.
Blake also maintains that she is entitled to a penalty
pursuant to AS 23.05.140 due to Classic's failure to pay
her wages for her final two days of work until after the
deadline provided by that statute.[111] While Classic admits
failing to pay Ms. Blake her outstanding wages until July 18,
2016, it asserts that “the nonpayment was in part the
result of an accounting mistake and in part the result of
Blake's failure to submit a leave slip to Classic
Alaska's payroll department for her day off on September
29, 2014.”[112]
It is
within the Court's discretion to levy a penalty under AS
23.05.140.[113] Classic maintains that its
“failure to pay Blake's final two days'
compensation was not intentional or in bad faith” and
that the Court should thus use its discretion to waive the
penalty.[114]However, the record demonstrates that
the Alaska Department of Labor and Workforce Development
informed Classic on November 14, 2014 about Ms. Blake's
wage claim.[115]Therefore, the Court denies summary
judgment as to whether a penalty should be imposed and, if
so, the amount of such penalty.
B.
Catherine Scalf
1.
Administrative Employee
Classic
contends that Ms. Scalf was an administrative employee who
was exempt from the overtime provisions of the FLSA. Ms.
Scalf counters in her motion for summary judgment by
asserting that “[t]he evidence presented shows that
there is no genuine issue as to any material fact and that,
as a matter of law, Catherine Scalf was not exempt from the
overtime requirements of the Fair Labor Standards Act and
Alaska Wage and Hour Act.”[116] “To qualify for
the administrative exemption, an employee's primary duty
must be the performance of work directly related to the
management or general business operations of the employer or
the employer's customers.”[117] In order
to demonstrate that Ms. Scalf is an exempt administrative
employee, Classic must show that Ms. Scalf fulfills the three
elements described in 29 C.F.R. §
541.200(a).[118]
a.
Compensation of at least $455 per week
It is
undisputed that the first element was met during Ms.
Scalf's employment.[119]
b.
Primary duty is the performance of office or non-manual work
directly related to the management or general business
operations
As to
the second element, Classic must show that Ms. Scalf's
“primary duty [wa]s the performance of office or
non-manual work directly related to the management or general
business operations of the employer or the employer's
customers.” As stated in the relevant regulation,
“[t]o meet this requirement, an employee must perform
work directly related to assisting with the running or
servicing of the business, as distinguished, for example,
from working on a manufacturing production line or selling a
product in a retail or service
establishment.”[120] “This requirement is met if
the employee engages in ‘running the business itself or
determining its overall course or policies,' not just in
the day-to-day carrying out of the business'
affairs.”[121]
In
support of its motion, Classic provides the job description
of the Corporate Outfitting Director position that Ms. Scalf
held.[122] However, a job description is not
dispositive-the actual work performed by the employee is
determinative.[123] Classic also provides a resume
prepared by Ms. Scalf, which Ms. Scalf points out in her
opposition is virtually identical to a job description of the
Big Ray's commercial sales manager
position.[124] However, at her deposition, Ms. Scalf
adopted much of the job description in that resume as
accurately reflecting her job duties.[125] Ms. Scalf
acknowledged performing a number of tasks through which she
contributed to the overall running of the business,
particularly with regard to her role in establishing new
customer accounts, maintaining existing customer
relationships, [126] providing input into budget decisions,
[127]and supervising
employees.[128]
Nevertheless,
Ms. Scalf asserts that she is entitled to summary judgment
and that she is non-exempt, and denies that her
“primary duty [was] the performance of office or
non-manual work directly related to the management or general
business operations of the employer or the employer's
customers.”[129] Although Ms. Scalf's conclusory
assertions cannot create a genuine issue of fact, Ms. Scalf
also provides evidence that supports her contention that she
was not an exempt administrative employee. Ms. Scalf explains
that although her title was manager of corporate sales, her
actual work was largely ministerial as she did not have the
ability to negotiate contracts with customers.[130]Instead,
the offers she made to customers were negotiated by other
individuals within the company and included standard
discounts.[131] Ms. Scalf also explained that the
resume she prepared listing her job skills included skills
she had performed prior to her employment at Classic and were
not reflective of her work there.[132] Much of Ms.
Scalf's sales work entailed advising individual customers
on items that would suit their needs.[133]In short,
Ms. Scalf describes her primary role as selling a product in
a retail establishment, which does not qualify for the
administrative exemption, according to 29 C.F.R. §
541.201(a), [134] and was not directly related to the
running of the business.[135]
Viewing
the facts in the light most favorable to Ms. Scalf, Classic
has not established that Ms. Scalf's primary duty
undisputedly was office or non-manual work directly related
to Classic's management or general business operations.
Viewing the facts in the light most favorable to Classic, Ms.
Scalf cannot establish that no reasonable jury would find
that her primary duty was office or non-manual work directly
related to Classic's management or general business
operations. As such, neither party can meet the second
element at the summary judgment stage.
c.
Primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance
The
third element requires that the employee's “primary
duty includes the exercise of discretion and independent
judgment with respect to matters of significance.”
Classic provides a payroll form as evidence that Ms. Scalf
had input into the decision to give one employee a pay
raise.[136] Classic also provided evidence that
Ms. Scalf had the authority to hire and fire
employees.[137] In addition, Classic provides evidence
that Ms. Scalf had input into the discounts offered to
corporate customers.[138] Ms. Scalf also went on independent
sales calls and signed contracts with customers, albeit after
speaking with her director.[139] Ms. Scalf also made bids on
behalf of Classic.[140] Throughout Ms. Scalf's tenure as
Corporate Outfitting Director, she supervised at least one
full-time employee at all times, frequently supervised two
full-time employees, and briefly supervised three employees,
one of who whom was part-time.[141] Classic contends that
this evidence indicates that Ms. Scalf possessed sufficient
independence and discretion to meet the third element.
Viewing the facts in the light most favorable to Classic,
Classic has raised genuine factual issues sufficient to
defeat Ms. Scalf's motion for summary judgment as to the
applicability of the administrative exemption.
Ms.
Scalf counters that she lacked the discretion and independent
judgment to qualify as an exempt administrative
employee.[142] In Ms. Scalf's deposition, she
acknowledged that her responsibilities included recruiting,
training, supervising, and monitoring
employees.[143] However, while Ms. Scalf stated in her
deposition that she had the authority to terminate employees,
she asserted that Mr. Rostad or another supervisor would
first have to approve the termination.[144]
Furthermore, Ms. Scalf maintained that she did not negotiate
contracts.[145] Taken together, Ms. Scalf's
evidence suggests that while she had some level of
independent authority, the majority of her decisions
regarding matters of significance required approval from more
senior managers.[146] Ms. Scalf has shown sufficient factual
disputes so as to defat Classic's motion for summary
judgment on this exemption.
2.
Executive Employee
Classic
also contends that Ms. Scalf qualifies for the executive
exemption. Ms. Scalf disputes this, asserting that she was
not an exempt executive employee and is entitled to summary
judgment in her favor.[147] In order to demonstrate that Ms.
Scalf qualifies as an executive employee, Classic must
demonstrate that Ms. Scalf meets the aforementioned four-part
test.[148]
a.
Compensation of at least $455 per week
It is
undisputed that Ms. Scalf ...