Cort v. Kum & Go, L.C.

• Decision Date: 11 February 2013
• Docket Number: Case No. 11–3448–CV–S–RED.
• Citation: 923 F.Supp.2d 1173
• Court: U.S. District Court — Western District of Missouri
• Parties: David CORT, Plaintiff, v. KUM & GO, L.C., Defendant.

923 F.Supp.2d 1173

David CORT, Plaintiff,

v.KUM & GO, L.C., Defendant.

Case No. 11–3448–CV–S–RED.

United States District Court,

W.D. Missouri,

Southern Division.

Feb. 11, 2013.

Jason T. Umbarger, The Law Office of Jason T. Umbarger, Springfield, MO, for Plaintiff.

Thomas M. Cunningham, Nyemaster Goode, P.C., Des Moines, IA, for Defendant.

ORDER

RICHARD E. DORR, District Judge.

Before the Court are the parties' motions for summary judgment (Docs. 21 and 23). After careful consideration of the parties' submissions and for the following reasons, the Court GRANTS Kum & Go, L.C.'s Motion for Summary Judgment (Doc. 23) and DENIES David Cort's Motion for Summary Judgment (Doc. 21).

BACKGROUND

On August 29, 2011, Plaintiff David Cort (“Plaintiff”) filed a petition for damages in the Circuit Court of Green County, Missouri. Plaintiff's Petition contained five counts against Defendant Kum & Go, L.C. (“Defendant”). Plaintiff's Petition alleged: Violations of the Fair Labor Standards Act (Count I); Violations of Missouri's Wage and Hour Laws (Count II); Breach of Contract (Count III); Quantum Meruit (Count IV); and Unjust Enrichment (Count V). On November 16, 2011, Defendant removed this action to Federal Court. Subsequently, on October 4, 2012, the parties filed their motions for summary judgment (Docs. 21 and 23).

Plaintiff's cause of action arises from Defendant's employment practices. Plaintiff was employed by Defendant as a General Manager of various Kum and & Go convenience stores in Springfield, Missouri from April 2004 to August 31, 2010. During the time he was employed by Defendant, Plaintiff was expected to work 54 hours a week. Plaintiff was paid a bi-weekly salary of $1,616.57 or $808.28 per week. Plaintiff was not paid for overtime and his pay was not reduced if he did not work 54 hours in any given week. In addition to his salary, Plaintiff had the ability to earn up to an additional $1,000.00 a month in bonus pay based upon his managerial performance. Plaintiff now claims that Defendant violated the FLSA and Missouri's Wage and Hour Laws (“MWHL”) by failing to compensate him with overtime pay.

STANDARD OF REVIEW

Summary judgment is proper if, viewing the record in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Where there is no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate.” Quinn v. St. Louis County, 653 F.3d 745, 750 (8th Cir.2011). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets the initial step, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do so, the moving party must “do more than simply show there is 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).

DISCUSSION

Plaintiff and Defendant have both filed motions seeking summary judgment. Plaintiff's motion seeks summary judgment on his Fair Labor Standards Act claim and Missouri's Wage and Hour Laws claim only. Conversely, Defendant seeks summary judgment on all of Plaintiff's claims.

I. KUM & GO L.C.'S MOTION FOR SUMMARY JUDGMENT

Defendant filed its motion for summary judgment asserting that the issue is ripe for summary judgment because the question of whether an employee is properly classified as an exempt employee under the Fair Labor Standards Act (“FLSA”) and Missouri's Wage and Hour Laws (“MWHL”) is an issue of law and that Plaintiff cannot generate a genuine issue of material fact as to whether he was an exempt executive employee.¹Citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986). In addition, Defendant asserts that summary judgment is proper on Plaintiff's state law claims for breach of contract, unjust enrichment, and quantum meruit because the state law claims are preempted by the FLSA.

While Plaintiff responded to Defendant's argument and asserts that Defendant is not entitled to summary judgment, Plaintiff's response did not properly contest Defendant's statement of facts as set forth in Fed.R.Civ.P. 56(e) and L.R. 56.1(a). In the event a party fails to properly address the other party's assertion by “citing to particular parts of materials in the record” or “showing the materials cited do not establish the absence or presence of a genuine dispute,” the court may consider the fact undisputed for purposes of the motion. QuotingFed.R.Civ.P. 56(c); see alsoFed.R.Civ.P. 56(e), L.R. 56.1(a). Since Plaintiff states that he disputes several of Defendant's facts but does not offer a citation as required by the rules, the Court will consider those facts as undisputed for purposes of this motion.

A. Defendant is entitled to summary judgment on Plaintiff's FLSA and MWHL claims.

The FLSA requires an employer to pay its employees a rate of at least one and one-half their regular rate of pay for hours worked in excess of forty hours in a week. 29 U.S.C. § 207(a)(1) and (a)(2); Specht v. City of Sioux Falls, 639 F.3d 814, 819 (8th Cir.2011). However, if an employee falls within one of the exemptions identified in the act, the employer is not required to comply with the wage requirements of section 207. See29 U.S.C. § 213; Guerrero v. J.W. Hutton, Inc., 458 F.3d 830, 834 (8th Cir.2006). The employer bears the burden of proving such an exception applies. Hertz v. Woodbury Cnty., Iowa, 566 F.3d 775, 783 (8th Cir.2009). “The question whether [employees] particular activities excluded them from the overtime benefits of the FLSA is a question of law....” Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986); see also Jarrett v. ERC Props., Inc., 211 F.3d 1078, 1081 (8th Cir.2000). However, the nature of employees' activities is a question of fact. Id. The Eighth Circuit has held “[c]ourts should broadly interpret and apply the FLSA to effectuate its goals because it is remedial and humanitarian in purpose.” Specht at 819.

In this case, the outcome of both parties' motions for summary judgment hinge upon the determination of whether Plaintiff was an exempt employee. Defendant asserts that Plaintiff was an executive exempt employee under the rules. One of the exemptions identified in the act excludes employees “employed in a bona fide executive, administrative, or professional capacity....” Id. at 213(a)(1). An exempt executive employee is an employee:

(1) Compensated on a salary basis at a rate 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 whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status or other employees are given particular weight.

29 C.F.R. § 541.100(a).

While an employee is an exempt executive employee if the four factors, set forth above, apply to the employee, Plaintiff concedes that three of the four factors apply to Plaintiff. See Doc. 26 pg. 6–7. Plaintiff only disputes that his primary duty was not management of the store.²

The executive exemption test, set forth above, requires that the qualifying employee's primary duty be the “management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof.” 29 C.F.R. § 541.100(a)(2). The regulations set forth a list of management activities which include, but are not limited to:

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.

29 C.F.R. § 541.102. In addition, the regulations define “primary duty” as “the principal, main, major or most important duty that the employee performs” and provide the following non-exclusive list of factors to consider in determining whether an employee's “primary duty” is management:

(1) [T]he relative importance of the exempt duties as compared with other types of duties;

(2) [T]he amount of time spent performing exempt work; (3) [T]he employee's relative freedom from direct supervision; and

(4) [T]he relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.

29 C.F.R. § 541.700(a). While this list is not exclusive, it provides a template the Court to use in order to determine whether an employee's primary duty is management and whether the employee is exempt under the regulations.

1. Relative Importance of Exempt Duties as Compared...