171 F.3d 527 (7th Cir. 1999), 98-1923, Piscione v. Ernst & Young, L.L.P.

Docket Nº:98-1923.
Citation:171 F.3d 527
Party Name:(BNA) 361, 5 Wage & Hour Cas.2d (BNA) 362 Anthony PISCIONE, Plaintiff-Appellant, v. ERNST & YOUNG, L.L.P., Defendant-Appellee.
Case Date:March 23, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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171 F.3d 527 (7th Cir. 1999)

(BNA) 361,

5 Wage & Hour Cas.2d (BNA) 362

Anthony PISCIONE, Plaintiff-Appellant,


ERNST & YOUNG, L.L.P., Defendant-Appellee.

No. 98-1923.

United States Court of Appeals, Seventh Circuit

March 23, 1999

Argued Oct. 1, 1998.

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Andrew P. Wirick (argued), Hume, Smith, Geddes, Green & Simmmons, Indianapolis, IN, for Plaintiff-Appellant.

Lee B. McTurnan, McTurnan & Turner, Indianapolis, IN, Bruce M. Cormier (argued), Ernst & Young, Washington, DC, for Defendant-Appellee.

Before COFFEY, KANNE, and DIANE P. WOOD, Circuit Judges.

KANNE, Circuit Judge.

Anthony Piscione appeals the district court's decision granting the motion for summary judgment made by Ernst & Young, L.L.P. ("Ernst & Young"), his former employer. Piscione sued Ernst & Young under the Fair Labor Standards Act ("FLSA") for failure to provide him with overtime pay. He argues that the district court erred in granting summary judgment because it failed to consider evidence he believes demonstrates that he does not fit within one of the statutory exemptions relieving employers from their statutory duty to pay overtime to their salary basis employees. Upon examination of the record, we conclude that the district court properly granted Ernst & Young's motion for summary judgment in light of the evidence before it and, therefore, affirm its decision.

I. History

Ernst & Young employed Piscione between 1991 and 1996 as a consultant in its Human Resources Consulting Group located in Indianapolis, Indiana. During this time, Piscione, a careertrack employee,

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worked in the defined benefit plans and defined contribution plans practice groups. Piscione maintained a solid work history while employed by Ernst & Young. During his tenure, he received two promotions: the firm promoted him from the position of staff consultant to that of senior staff consultant and later to that of manager. Ernst & Young paid Piscione an annual salary. During the first eight months of his employment, Piscione received straight overtime pay for the hours he worked in excess of forty hours per week. After that period, he did not receive any overtime compensation.

The parties dispute the nature of Piscione's duties. According to Ernst & Young, Piscione's duties, while working in the defined benefits plans practice group, included managing and administering several multi-million dollar benefit plans in which thousands of individuals participated. He also served as the day-to-day contact person for twenty plans, which ranged in size from ten to 3,500 participants. In these capacities, he performed actuarial valuation, prepared government filings, and calculated benefits for separate participants. When Ernst & Young transferred him to the defined contributions area, Piscione assumed client management responsibility for fifteen multi-participant plans. He also performed periodic valuations and compliance testing for thirty plans, ranging in size from ten to 6,000 participants. In order to perform these duties, Piscione had to apply varying plan provisions to many transactions, perform complex calculations using the company's computers, account for variances and imbalances that arose in the plans, and ensure that the plans comported with the Internal Revenue Code. According to Ernst & Young, Piscione "worked independently, actively, and creatively in addressing client needs." He examined client data for problems, proposed solutions to clients, and advised them about their plans. In addition, he supervised junior employees and evaluated potential employees during the hiring process. He also pursued professional certification and met the firm mandated continuing education requirements.

Piscione does not disagree that while employed by Ernst & Young he was involved in benefits calculation, actuarial valuation, government filings, answering client questions, period valuations, compliance testing, and other projects, including training and supervising other employees. What he does disagree with, however, is Ernst & Young's assertion that these activities required independent thought or creativity on his part. He argues that he prepared reports by merely plugging numbers into formulas. The time he spent with the clients involved asking basic plan questions, not proposing solutions to problems he allegedly found while analyzing their data. He describes his participation in the training of other employees as centering only on "rote tasks performed by entry level persons." Piscione also characterizes his supervision of employees as involving very little of his time. He says that this responsibility did not become part of his job until June 1996. He claims he never interpreted the Internal Revenue Code or Internal Revenue Service regulations. Rather, he asserts that his superiors made any necessary determinations and decisions. In sum, he characterizes his responsibilities as more akin to those of a cashier in retail sales than those of a professional or administrative employee.

In September 1996, Piscione resigned from Ernst & Young. The next month, he filed this suit claiming Ernst & Young violated the FLSA by classifying him as an exempt employee and, thereby, not paying him time and one-half overtime for the period beginning nine months into his employment and ending when he left the firm. Ernst & Young filed a motion for summary judgment claiming that Piscione fell within either the FLSA's administrative or professional employee exemption or both. Even though Piscione submitted his own affidavit, contesting Ernst & Young's motion, the district court concluded that

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Piscione failed to identify any genuine material issue of fact. It also found that Ernst & Young had sufficiently established Piscione was exempt under both statutory exceptions. Piscione appeals the district court's decision.

II. Standard of Review

We review a district court's grant of summary judgment de novo. See Tesch v. County of Green Lake, 157 F.3d 465, 471 (7th Cir.1998). Summary judgment is proper when "the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, we construe all facts in the light most favorable to the nonmoving party and draw all reasonable and justifiable inferences in that party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, neither "the mere existence of some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, nor the existence of "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), is sufficient to defeat such a motion.

III. Analysis

Piscione urges us to reverse the district court's decision granting summary judgment to Ernst & Young because he believes the court failed to consider evidence demonstrating that he does not come within one of the statutory exemptions to the FLSA requirement that employers must pay overtime to employees who work in excess of forty hours in a week. We, however, agree with the district court's conclusion that Piscione failed to present genuine issues of material fact regarding his contention that he could not come within either the administrative or professional exemption. Thus, as a matter of law, based upon the facts construed in a light most favorable to him, we agree with the district court's conclusion that Piscione did fall within the professional and administrative exceptions under the FLSA, thus, entitling Ernst & Young to summary judgment.

  1. Piscione's Affidavit Versus His Deposition Testimony

    In arguing that genuine issues of material fact exist in the record, Piscione presented the district court with his own affidavit. This affidavit contradicts Piscione's deposition testimony, upon which Ernst & Young relied, in part, for its motion for summary judgment.

    It is a well-settled rule of this Court that a plaintiff cannot create an issue of material fact merely by manufacturing a conflict in his own testimony by submitting an affidavit that contradicts an earlier deposition, see Darnell v. Target Stores, 16 F.3d 174, 176 (7th Cir.1994), and, in turn, defeat a defendant's motion for summary judgment. See Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 379 (7th Cir.1995); Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995). "Parties cannot thwart the purpose of Rule 56 by creating issues of fact through affidavits that contradict their own depositions." Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir.1985). Thus, when a conflict arises between a plaintiff's own sworn deposition and his sworn affidavit, the deposition testimony overrides statements made in the affidavit. As we have noted, "[s]elf-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.1993). When a "deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement

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    in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy." Russell, 51 F.3d at 67-68 (citing Slowiak, 987 F.2d at 1297...

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