Bautista v. Ohio Univ., 2020-00592JD

CourtCourt of Claims of Ohio
Writing for the CourtDALE A. CRAWFORD, JUDGE
Citation2022 Ohio 3085
Docket Number2020-00592JD
Decision Date13 July 2022




No. 2020-00592JD

Court of Claims of Ohio

July 13, 2022

Sent to S.C. Reporter 9/2/22



{¶1} Defendant Ohio University (OU or University) moves for a summary judgment in its favor on all claims alleged in a First Amended Class and Collective Action Complaint filed by Plaintiff delfin bautista. bautista, who uses "they/them pronouns" and "the lowercase spelling of their name" (First Amended Complaint, ¶ 1), opposes the University's motion. Because, after the evidence is construed most strongly in favor of bautista, no genuine issue of material fact exists and the University is, as a matter of law, entitled to a judgment in its favor, the University's motion for summary judgment shall be granted.

I. Background

{¶2} bautista was employed as the Director of the LGBT Center at Ohio University from about June 13, 2013, until about January 2019.[1] The parties agree that, at all times relevant, bautista was an employee within the meaning of 29 U.S.C. 203(e),


R.C. 4111.03(D)(3), and R.C. 4112.01 (A)(3) and that Ohio University was an employer within the meaning of 29 U.S.C. 203(d), R.C. 4111.03(D)(2), and R.C. 4112.01 (A)(2).[2]The parties further agree that, at all times relevant, Ohio University was subject to overtime provisions of the Fair Labor Standards Act and the Ohio Minimum Wage Fairness Act.[3]

{¶3} During bautista's employment at the University, the University had a Purchase Card (PCard) program.[4] The University required employees to submit PCard expenses for approval.[5] bautista asserts that the University frequently forced bautista, and similarly situated employees, to pay back sales taxes, business meal expenses, travel insurance expenses and other business expenses that they made with a PCard.[6] bautista further asserts that the University had a policy to charge employees, including bautista, for entire purchases if the University was dissatisfied with the detail included on a receipt provided by the vendor and submitted to the University as part of the PCard procedure.[7]

{¶4} bautista maintains that Ohio University's PCard practices violate the Fair Labor Standards Act because bautista's salary "was not paid 'free and clear' as required by the Fair Labor Standards Act [FLSA] and its associated regulations." (First Amended Complaint, ¶ 19.) bautista alleges:

Defendant OU classified Plaintiff bautista and other employees who were subject to the university wide PCard policies as exempt from the FLSA's minimum wage and overtime requires pursuant to the executive, administrative and professional exemptions provided in 29 U.S.C. 213(a)(1) As such, Defendant OU is subject to the Salary Basis Test in relation to Plaintiff bautista and the other employees that Defendant OU issued a PCard to and classified as exempt. Because Defendant OU has an acutal [sic] practice of charging back its "exempt" employees, including Plaintiff bautista, for legitimate work-related expenses, Defendant OU fails the Salary Basis Test in relation to these employees and these employees are therefore entitled to overtime. * * * Because Plaintiff bautista and similarly situated employees that Ohio University classified as "Administrative Exempt" were subject to the "Salary Basis Test," this business expense kickback policy leads to a failure of the "Salary Basis Test" which results in overtime wages being due to Plaintiff bautista and similarly situated employees.

(First Amended Complaint, ¶ 22.) bautista further alleges that the University's PCard policies violate overtime provisions contained within R.C. 4111.03. (First Amended Complaint, ¶ 46.)

{¶5} baustista seeks, among other things, designation of the action as a collective action under the Fair Labor Standards Act, class certification under Civ.R. 23, a declaratory judgment, overtime pay, liquidated damages, prejudgment interest, and postjudgment interest. (First Amended Complaint, 11-13.)


{¶6} On December 20, 2021, bautista moved for collective certification under the Fair Labor Standards Act and class certification under Civ.R. 23.[8] The University opposed bautista's requests for collective certification and class certification. With the University's response, the University submitted evidence of an internal audit of certain PCard holders from July 1, 2017, through August 3, 2018. According to this evidence, University auditors

determined that additional testing should be performed on the transactions of delfin bautista. Not only did bautista have the highest overall spend, but also the highest percentage of expenses related to business meetings and entertainment, highest percentage of PCard transactions from vendors considered higher risk, and highest incident rate and dollar amount of PCard reimbursements. In addition, bautista had a far greater number of questionable transactions noted during the initial time period review.

(Memorandum dated December 14, 2018, 2.)[9] In another memorandum dated December 14, 2018, University auditors noted that

bautista's PCard spending steadily increased from FY14 to the date of our procedures, August 3, 2018, ($15,091 to $35,855), including spending related to Business Meals &Entertainment ($2,867 to $17,358). This occurred in spite of budget overspending and budget concerns expressed by Dr. Shari Clarke in an email on March 23, 2017, where each unit was urged to not spend down their budget and to have all budgets end the fiscal year in the black. Dr. Clarke's email further requested that no purchases of promotional items, food or entertainment be made. Between the date of Dr. Clarke's email and fiscal year end, bautista made $2,240 of PCard purchases of this type, resulting in a budget deficit for FY17 of $2,166 * * *.

(Memorandum dated 14, 2018, 1.)[10]

{¶7} After bautista's motion for collective certification and class certification was briefed by the parties, the Court determined that bautista's motion should be held in abeyance.[11]

{¶8} On May 17, 2022, the University moved for a summary judgment on all claims alleged by bautista in their First Amended Class and Collective Action Complaint. The University essentially maintains that it is entitled to a summary judgment in its favor because

(1) Any reimbursement required under the University's PCard policies for unallowable expenditures cannot reduce a University employee's predetermined salary in violation of the salary basis test, since the PCard allows employees to access University funds that are separate from the employee's salary;
(2) The University's PCard policies do not violate the salary basis test, because University employees are not subject to reimbursement based on variations in quality or quantity of work; and
(3) The University's recoupment of misappropriated or impermissibly expended public funds does not violate the salary basis test.

{¶9} In response, bautista urges denial of the University's summary-judgment motion because, according to bautista, genuine issues of material fact remain whether the University can satisfy the FLSA's "salary-basis" test and "duties test" and because the University has not met its evidentiary burden "on any relevant overtime exemption defense" for bautista or the putative class members. bautista maintains that the University has not articulated how bautista was properly classified as exempt under any exemption of the FLSA. bautista further maintains that, if the University requires an employee to pay the University back for a purchase (or part of a purchase) that was made in furtherance the employee's job duties, then the University effectively is reducing the amount of the compensation that it has paid to the employee. bautista thus reasons that OU's policy results in a reduction in compensation based on quality of work. bautista also re-asserts a request for the Court to grant their motion for class certification.

{¶10} In reply, the University contends that, in bautista's response, bautista attempts to create genuine issues of material fact where none exist and bautista fails to establish required evidentiary showings to defeat the University's summary-judgment motion. The University maintains that the sole dispute in this case has concerned whether the University violated the salary-basis test under the FLSA. The University further maintains that the record is devoid of any instance of bautista challenging their exempt status under the FLSA and bautista has failed to point to a single disputed material fact that relates to their duties. Additionally, the University maintains that bautista fails to articulate any argument in support of their claim that the duties test is not satisfied, as bautista in their response merely lists the tests for the administrative, executive, and


professional exemptions under the FLSA and bautista merely states that the University has not shown that it properly classified Plaintiff as an exempt employee.

II. Law and Analysis A. Legal Standard

{¶11} A summary judgment terminates litigation to avoid a formal trial in a case where there is nothing to try. Norris v. Ohio Std. Oil Co., 70 Ohio St.2d 1, 2, 433 N.E.2d 615 (1982); Schroeder v. Nationwide Mut. Ins. Co., 10th Dist. Franklin No. 92AP-1728, 1993 Ohio App. LEXIS 2319, *3 (Apr. 27, 1993). Civ.R. 56(C) "provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made." State ex...

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