East v. Bullock's Inc., 96-1251-PHX-SMM(DAE).

• Decision Date: 02 December 1998
• Docket Number: No. 96-1251-PHX-SMM(DAE).,96-1251-PHX-SMM(DAE).
• Citation: 34 F.Supp.2d 1176
• Parties: Melinda Anne EAST, an individual, for herself and others similarly situated, Plaintiff, v. BULLOCK'S INC., a Delaware corporation, dba Macy's/Bullock's and Federated Department Stores, Inc., a foreign corporation, Defendants.
• Court: U.S. District Court — District of Arizona

34 F.Supp.2d 1176

Melinda Anne EAST, an individual, for herself and others similarly situated, Plaintiff, v. BULLOCK'S INC., a Delaware corporation, dba Macy's/Bullock's and Federated Department Stores, Inc., a foreign corporation, Defendants.

No. 96-1251-PHX-SMM(DAE).

United States District Court, D. Arizona.

December 2, 1998.

William Porter Allen, Donald Charles Zavala, Jr., Snell & Wilmer LLP, Phoenix, AZ for Melinda Anne East, an individual, for herself and others similarly situated, plaintiff.

Thomas Edward Hill, Scott Lee Gardner, Thelen Reid & Priest LLP, Los Angeles, CA, for Bullock's Inc, a Delaware corporation dba Macy's Bullock's, defendant.

Scott Lee Gardner, Thelen Reid & Priest LLP, Los Angeles, CA, for Federated Department Stores, Inc., a foreign corporation, defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DECLARING PLAINTIFF'S MOTION TO STRIKE MOOT

EZRA, District Judge.

The court heard Plaintiff's and Defendants' Motions on November 9, 1998. William P. Allen, Esq., and Don Zavala, Esq., appeared at the hearing on behalf of Plaintiff; Tom Hill, Esq., appeared at the hearing on behalf of Defendants. After reviewing the motions and the supporting and opposing memoranda, the court DENIES Plaintiff's Motion for Partial Summary Judgment; GRANTS Defendants' Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment; and DECLARES Plaintiff's Motion to Strike Moot.

BACKGROUND

This is an employment dispute in which Plaintiff Melinda Anne East ("Plaintiff") alleges various statutory and common law violations against her former employer, Bullock's, Inc., and Federated Department Stores, Inc. (collectively "Bullock's"). Bullock's is owned and operated by Federated Department Stores.

Plaintiff was employed at the Bullock's department store in Scottsdale, Arizona from July 10, 1991 until she was terminated on March 29, 1995. During the course of Plaintiff's employment, she worked in various positions. Initially, Plaintiff was hired as a sales associate and paid on an hourly basis. In April of 1992, Plaintiff was promoted to Manager of the Young Men's department and reclassified as a salaried employee. From February of 1993 through May of 1993, Plaintiff worked as a Merchandise Trainer and was again paid hourly. In May of 1993, she was named Manager of the Children's department and paid on a salaried basis. In December of 1993, Plaintiff became an Assistant Manager in the Designer Ladies Dresses' department and paid hourly. Thereafter, Plaintiff assumed the position of Selling Manager in the Mens' Polo department on a salaried basis. In November of 1994, Bullock's redefined the position of Selling Manager and, although Plaintiff retained the same title, she was reclassified as an hourly employee. Plaintiff continued in this capacity until her March 1995 termination.

On October 30, 1994, Kerry McBay, the Human Resources Manager at Bullock's Scottsdale store, met with Plaintiff to discuss problems relating to Plaintiff's timekeeping. Plaintiff had neglected to "clock in" and "clock out" on a regular basis as required by Bullock's Rules of Conduct.

Sometime in early 1995, another manager at the Scottsdale store reported that Plaintiff was making additions or corrections to her time records after the fact, rather than on a real time basis. Thereafter, Bullock's Security department placed Plaintiff under surveillance. Video cameras recorded Plaintiff's entrances and exits. On several occasions, between March 15, 1995 and March 25, 1995, Plaintiff's time records failed to match the times when she was observed entering and exiting the store.

On March 28, 1995, Security Chief Dale Lindgren interviewed Plaintiff. When queried about the time discrepancies, Plaintiff denied intentionally misrepresenting her hours. She apologized if she had made any inadvertent errors. Plaintiff stated that her failure to punch in and out could be attributed to her frequent reclassification from hourly to salaried. Salaried employees are not required to record their time.

After Plaintiff's interview, she was suspended by Mr. McBay. Mr. McBay then sought direction from Denise Flynn, Bullock's Vice President of Human Resources. Ms. Flynn instructed Mr. McBay to terminate Plaintiff. Plaintiff was terminated on March 29, 1995.

At the time of Plaintiff's termination, Ms. Flynn called Jill Lansdale, the Scottsdale store manager, and advised her of Plaintiff's termination. Ms. Lansdale informed the senior managers in the store that Plaintiff had been terminated for falsifying company documents.

Based on the foregoing events, Plaintiff filed the instant action, alleging violations of the Fair Labor Standards Act, breach of contract, defamation, and violation of Arizona's statutory wage laws. After the parties engaged in discovery, Plaintiff filed a Motion for Partial Summary Judgment. Bullock's likewise filed a Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment. Also before the court is Plaintiff's Motion to Strike Evidence Relating to Non-Existent Videotape and Documentary Evidence.

STANDARD OF REVIEW

Rule 56(c) provides that summary judgment shall be entered when:

[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). The moving party has the initial burden of demonstrating for the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). However, the moving party need not produce evidence negating the existence of an element for which the opposing party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. 2548.

Once the movant has met its burden, the opposing party has the affirmative burden of coming forward with specific facts evidencing a need for trial. Fed.R.Civ.P. 56(e). The opposing party cannot stand on its pleadings, nor simply assert that it will be able to discredit the movant's evidence at trial. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987); Fed.R.Civ.P. 56(e). There is no genuine issue of fact "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).

A material fact is one that may affect the decision, so that the finding of that fact is relevant and necessary to the proceedings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue is shown to exist if sufficient evidence is presented such that a reasonable fact finder could decide the question in favor of the nonmoving party. Id. The evidence submitted by the nonmovant, in opposition to a motion for summary judgment, "is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 255, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the court must bear in mind the actual quantum and quality of proof necessary to support liability under the applicable law. Id. at 254, 106 S.Ct. 2505. The court must assess the adequacy of the nonmovant's response and must determine whether the showing the nonmovant asserts it will make at trial would be sufficient to carry its burden of proof. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

At the summary judgment stage, this court may not make credibility determinations or weigh conflicting evidence. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir.1990). The standard for determining a motion for summary judgment is the same standard used to determine a motion for directed verdict: does the evidence present a sufficient disagreement to require submission to a jury or is it so one-sided that one party must prevail as a matter of law. Id. (citation omitted).

DISCUSSION

I. Plaintiff's Motion for Partial Summary Judgment

Plaintiff's motion seeks summary judgment as to Count 1 (Violation of FLSA), Count 3 (Defamation) and Count 4 (Violation of Arizona's statutory wage law) of Plaintiff's Amended Complaint.

I.A. FLSA Violation

Plaintiff alleges that she was improperly classified as a salaried "executive" employee. Such employees are exempt from the Federal Labor Standards Act's ("FLSA") overtime pay requirements. Plaintiff also alleges that Bullock's violated FLSA's recordkeeping requirements.

I.A. 1. Classification of Exempt Employees

FLSA generally requires employers to pay overtime to employees who work more than 40 hours per week. 29 U.S.C. § 207. The overtime rate is calculated as not less than one and one-half times the regular rate of pay. Id. Certain types of employees are exempt from the overtime requirement. An exempt employee is one who is "employed in a bona fide executive, administrative, or professional capacity...." 29 U.S.C. § 213(a)(1). The administrative regulations promulgated pursuant to FLSA establish both a duties test and a salary basis test for determining whether an employee is employed in a bona fide executive, administrative, or professional capacity. See 29 C.F.R. § 541.118; 29 C.F.R. § 541.103.

I.A. 1.a. Duties Test

The Department of Labor's regulatory duties test for an executive earning more than $250 per week requires that the employee 1) have management as her primary duty; 2) be in charge of a customarily recognized subdivision of the business; and 3) regularly direct the work of two or more full-time employees. 29 C.F.R. § 541.1(f). "Management" is defined to include the hiring and training of employees, setting their hours and pay rates, directing their work,...