In re Family Dollar Flsa Litig..Irene Grace
| Decision Date | 22 March 2011 |
| Docket Number | No. 09–2029.,09–2029. |
| Parties | In re FAMILY DOLLAR FLSA LITIGATION.Irene Grace; Sharron Daugherty; John A. Gertken; Dusty G. Hylton; Lasandra B. Rose; Phillis Fancher; Jodi Hare; Angela J. Cooper; Melvin Cathey; Mark Clark; John E. Gersch; Margie A. Little; Vicki Brown Guy; Brenda Kay Russell, a/k/a Brenda K. Russell–Stain; Barbara G. Brown; Marcella San Giorgio; Brian K. Backlund; James Manos; Arlene Atkins; Tracy Kloppe; Sandra Carney; Catherine M. Dawson; Alfred Blair; Ethel Braswell; Sharon Cantrell; Judy Carver; Erica L. Lewis; Michael M. McCoy; Brenda Endlsey Romines; Eddie Mae Smith; Khiallah Solomon; Iva Vanetta Tate; William K. Tedder; Natasha Ledyard; Donna Gail Davis; Veronica Taylor; Nannie Sue Daniels; Tanya Lakitsha Warren, a/k/a Tanya Warren–Thomas; Sandra Diane Rhinehart; Monica Jennifer Dance; Jennifer K. Leonard; Betty J. Dearmon; Jimmy Earl Gilbert; Susan Brown; Mary Defoor; Todd Hargrove; Jewel Ray Belford; Gwen Sinns; Robby Quinton; Tara Y. Jahateh; Tammie Brunson; Brenda Louise Bilbrey; Tammy Asher; Nancy Burnette; Sharon Phillips Bell; Amanda Echols; Clair W. Trost, Sr.; Austin S. Mudenda; Nancy Smith; John Morrison; Dorothy L. Evans; Joanne K. Mullins–Swain; Donna Sanchez, Plaintiffs–Appellants,v.Family Dollar Stores, Incorporated, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Robert L. Wiggins, Jr., Wiggins, Childs, Quinn & Pantazis, PC, Birmingham, Alabama, for Appellants. Robert Allen Long, Jr., Covington & Burling, LLP, Washington, D.C., for Appellee. ON BRIEF: Gregory O. Wiggins, Wiggins, Childs, Quinn & Pantazis, PC, Birmingham, Alabama; Robert E. DeRose, Katherine A. Stone, Barkan Neff Handelman Meizlish, LLP, Columbus, Ohio; Gregory L. Jones, Greg Jones & Associates, PA, Wilmington, North Carolina, for Appellants. Mark W. Mosier, Covington & Burling, LLP, Washington, D.C., for Appellee.Before NIEMEYER and KING, Circuit Judges, and PATRICK MICHAEL DUFFY, Senior United States District Judge for the District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING and Senior Judge DUFFY joined.
Irene Grace, a former store manager for Family Dollar Stores, Inc., who worked 50–65 hours per week and was paid a fixed salary plus bonus, commenced this action against Family Dollar under the Fair Labor Standards Act for overtime wages. While Family Dollar treated Grace as an executive exempt from overtime pay requirements under 29 U.S.C. § 213(a)(1), Grace argues that she was not subject to this exemption because she devoted the vast majority of her time to nonexecutive tasks and therefore should be paid wages on the basis of a 40–hour work week plus overtime, as required by 29 U.S.C. § 207(a)(1). She seeks relief on behalf of herself and other employees similarly situated.
Even though the record shows that as a store manager, Grace was required to perform the full range of tasks necessary for the successful operation of a store, including nonexecutive tasks, she nonetheless remained the highest level Family Dollar employee at the store, and her income depended on the success of her performance and the profits of the store. After applying the statutory and regulatory factors under 29 U.S.C. § 213(a)(1) to determine whether Grace was exempt as an executive, we conclude that she was exempt and therefore not entitled to overtime pay. Accordingly, we affirm the judgment of the district court.
Because Grace's claim was properly dismissed on summary judgment, we do not decide whether the district court abused its discretion in declining to permit Grace to pursue her claim on behalf of other similarly situated employees.
Family Dollar Stores, Inc. is a national discount retail chain, operating over 6,000 stores in 44 States. It has divided its operations into 95 regions, each run by a vice president, and then into districts, each run by a district manager. A district, which can vary in size from a single city to an area within multiple States, includes 10 to 30 retail stores, each run by a salaried store manager. The store manager supervises one or more hourly assistant managers and multiple hourly employees, who work as clerks. Each store manager sets his or her own hours of employment and is authorized to make decisions that affect the profitability of the store. Each store, which can vary in size from 3,700 square feet to 12,300 square feet, is a profit center, and the store manager receives a bonus that is directly related to the profitability of the store.
Family Dollar's store managers open and close stores; train, supervise, discipline, and evaluate employees; order inventory; handle relations with customers, both to assure their satisfaction and also to monitor their conduct to prevent theft; operate the stores against a quarterly budget; handle the money received by the store, make deposits, and complete the paperwork related to sales and receipts. The store managers also devote a large percentage of their time to nonexecutive tasks, such as unloading freight, stocking shelves, running cash registers, and cleaning up.
While store managers make numerous decisions that can affect the profitability of a store, they are also subject to company policies related to the appearance of the stores and their inventory, the layout of the stores, the stores' hours of operation, and the wages that employees are paid. To this end, the district managers supervise store managers and visit each store on a regular basis.
Over the years, Family Dollar has considered its store managers to be executives who are exempt from overtime pay requirements.
Irene Grace began working at Family Dollar in 1996 and shortly thereafter, because of her prior managerial experience, became a store manager. She remained at Family Dollar until October 2004, when she resigned to take a job less demanding of her time. While at Family Dollar, Grace worked from 50–65 hours per week, depending on the store's particular needs at any given time. Her salary was initially $400 a week and increased during the eight years she worked as a store manager to $655. She also received a bonus each year, depending on her performance and the performance of her store.
Grace reported to a district manager, who was responsible for 17 stores and who, she stated, visited her store once every two to three weeks. In operating her store, Grace regularly performed all the tasks necessary for the operation of her store. In addition, she supervised all operations. She handled disputes among employees; handled customer complaints; marked down inventory; established employee schedules; trained and disciplined employees; made personnel recommendations to the district manager, who followed those recommendations 95% of the time; and took care of deposits and paperwork for the store. She explained that her job required that she “multi-task,” such that while she performed nonmanagerial tasks, she was also functioning as a manager, which required that she watch out for possible theft by customers, train other employees, and perform other managerial tasks.
In May 2004, Grace commenced this action on behalf of herself and other employees similarly situated, filing her action in the Middle District of Georgia. Family Dollar moved to strike the collective-action allegations and also to transfer the case to the Western District of North Carolina, where Family Dollar was headquartered and where similar cases were pending. The district court in the Middle District of Georgia transferred Grace's action to the Western District of North Carolina where it became part of the “Family Dollar FLSA Multidistrict Litigation.”
The district court, in a ruling dated September 6, 2007, denied Grace's motion for preliminary certification as a collective action to facilitate notice to potential plaintiffs. Nonetheless, 74 plaintiffs opted to join Grace's collective action, pursuant to 29 U.S.C. § 216(b). In denying a preliminary certification in Grace's case, the court concluded that any nonexecutive duties performed by store managers were not the result of Family Dollar policy but rather the decisions of individual store managers. It concluded, The court concluded that “[g]iven the variation in duties among managers in different stores, the pleadings do not meet the standard of commonality needed for this Court to find that Plaintiffs are similarly situated.”
On Family Dollar's subsequent motion, the district court entered summary judgment in favor of Family Dollar based on Grace's deposition testimony, which the court summarized as follows:
Grace testified in the deposition that she regularly interviewed and provided recommendations as to the hiring of employees, trained employees, assigned employees to a schedule and set their hours of work, and directed and supervised her employees' work. She also maintained sales records and was responsible for financial records, conducted performance reviews of her employees, handled employees' complaints and disputes between employees, disciplined employees, planned and apportioned work among her employees, was responsible for ordering merchandise, controlled the flow and distribution of merchandise, was responsible for the safety of her employees at the store, and was responsible for handling customer complaints and controlling theft. Defendant also alleges that she was free from supervision as her District Manager was only in her store 2–3 times per month. However, Grace also testified in her deposition, that her primary duty was freight and that she spent 95% of the time doing freight ...
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