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Blake v. Classic Alaska Trading/Big Ray's Alaska, Inc.

United States District Court, D. Alaska

August 27, 2018

SUZANNE BLAKE and CATHERINE SCALF, Plaintiffs,
v.
CLASSIC ALASKA TRADING/BIG RAY'S ALASKA, INC., Defendant.

          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 ...


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