Langley v. Gymboree Operators, Inc., 07-80549-CIV.

• Decision Date: 08 January 2008
• Docket Number: No. 07-80549-CIV.,07-80549-CIV.
• Citation: 530 F.Supp.2d 1297
• Parties: Neda LANGLEY, on her own behalf and all others similarly situated, Plaintiff, v. GYMBOREE OPERATIONS, INC., a California Corporation, Defendant.
• Court: U.S. District Court — Southern District of Florida

530 F.Supp.2d 1297

Neda LANGLEY, on her own behalf and all others similarly situated, Plaintiff, v. GYMBOREE OPERATIONS, INC., a California Corporation, Defendant.

No. 07-80549-CIV.

United States District Court, S.D. Florida.

January 8, 2008.

Jason S. Haselkorn, Casey Ciklin Lubitz Martens & O'Connell, West Palm Beach, FL, for Plaintiff.

Jeffrey Mandel, Fisher & Phillips LLP, Orlando, FL, Jessica R. Perry, Orrick Herrington & Sutcliffe LLP, Menlo Park, CA, for Defendant.

ORDER

DONALD M. MIDDLEBROOKS, District. Judge.

THIS CAUSE comes before the Court upon Defendant Gymboree Operations, Inc.'s Motion for Summary Judgment (DE 59). The Court has reviewed the record and is otherwise advised in the premises.

Background

This action arises out of a claim for unpaid overtime compensation pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and for a statutory collective action pursuant to 29 U.S.C. § 216(b). Defendant Gymboree Operations, Inc. ("Gymboree") now moves for summary judgment on all counts.

Facts

Defendant Gymboree Operations, Inc. ("Gymboree") is a San Francisco, California-based retail company engaged in the business of selling children's apparel. Plaintiff Neda "Lilly" Langley ("Langley") was employed by Gymboree from November 11, 2003 until her voluntary resignation from the company on June 30, 2007. At all times during her employment with Gymboree, Langley was employed as a Store Manager.

During the two years preceding the filing of the instant lawsuit, Langley was the Store Manager for Gymboree's Gardens Mall Store ("the Gardens") in Palm Beach Gardens, Florida. The Gardens is physically separate from any of Gymboree's corporate offices. Langley was the most senior employee assigned to the Gardens store. Assistant Managers and Sales Associates employed by Gymboree also were assigned to the Gardens store. Langley also helped out at the City Place Gymboree store one to two times per week for about eight months. (Dep. p. 88.)

As the Store Manager, Langley was the only person Gymboree classified as a salaried, overtime exempt employee in the store. She was always paid in excess of $455 each week and always received her full salary regardless of the number of hours worked. The Assistant Managers and Associates assigned to the Gardens store were all hourly, non-exempt overtime-eligible employees. The highest-paid, full-time assistant manager at the Gardens store made $15 an hour, while the highest paid sales associate made $10 an hour, with most making $7 an hour.

As the Gardens Store Manager, Langley reported to a District Manager ("DM"), who was usually located in Fort Pierce, Florida. The DM was responsible for ten stores in the District. Rosanne Hernandez was the DM when Langley became the Store Manager of the Gardens Mall store. Carol Slawnikowski became Langley's DM in May 2006, and served in that capacity until May 2007, when Cecilia (Carmen) Diaz became the acting DM for the District. The DMs for Langley's District reported to Regional Manager ("RM") Kathy Zorich, who was located in Boca Raton, Florida. Ms. Zorich was responsible for up to nine DMs sixty-eight stores.

Langley saw the DM approximately once every six to eight weeks. There were weeks in which Langley would not speak to her DM other than in a Monday morning weekly conference call with the DM and all of the Store Managers in the District. Langley's RM visited the Gardens store two times per year.

As Store Manger during the relevant time period, Langley performed job duties that included: interviewing, selecting and training employees; setting and adjusting rates of pay and hours or work; directing the work of employees; appraising employee productivity and efficiency; disciplining employees; providing for the, safety of the employees or the property; selling, servicing customers, and merchandising.

Summary Judgment Standard

Summary judgment is appropriate only when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of meeting this exacting standard. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In applying this standard, the evidence, and all reasonable factual inferences drawn therefrom, must be viewed in the light most favorable to the non-moving party. See Arrington v. Cobb County, 139 F.3d 865, 871 (11th Cir.1998); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). The non-moving party, however, bears the burden of coining forward with evidence of each essential element of their claims, such that a reasonable jury could find in their favor. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990). The non-moving party "[m]ay not rest upon the mere allegations and denials of [its] pleadings, but [its] response ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, conclusory, uncorroborated allegations by a plaintiff in an affidavit or deposition will not create an issue of fact for trial sufficient to defeat a well supported summary judgment motion. See Earley, 907 F.2d at 1081. The failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial and requires the court to grant the motion for summary judgment. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

Legal Analysis

At issue is whether Plaintiff is exempt as an executive from the overtime compensation provisions of the FLSA. Generally, the FLSA requires that employees receive one and one-half times their regular rate of pay for all hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). However, "any employee employed in a bona fide executive ... capacity" who receives payment on a salary basis is exempt from this requirement. 29 U.S.C. § 213(a)(1). Pursuant to the applicable Department of Labor regulations, to be "employed in a bona fide executive capacity" an employee must:

(1) be compensated on a salary basis at a rate of not less than $455 per week;

(2) have the primary duty of management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;

(3) customarily and regularly direct the work of two or more employees; and

(4) have the authority to hire or fire other employees or have the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees given particular weight. 29 C.F.R. § 541.100(a)(l)-(4). Here, the parties agree that, as Store Manager, Plaintiff: 1) was compensated on a salary basis at a rate of not less than $455 per week; 2) customarily and regularly directed the work of two or more employees; and 3) had the authority to hire or fire other employees or her suggestions and recommendations as to the hiring, firing, advancement, promotion, or other change of status of other employees was given particular weight. (Joint Pretrial Stip. p. 6.)

Therefore, the only remaining prong of the applicable regulation at issue is whether Plaintiff had the primary duty of management of the enterprise in which she was employed or of a customarily recognized department or subdivision thereof.

The Secretary of Labor has issued a regulation elucidating the type of work that constitutes "management."

Generally, "management" includes, but is not limited to, activities such as 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. An employee's "primary duty" is determined based on all of the facts in a particular case, with emphasis placed upon the character of the employee's job as a whole. § 541.102(a). The regulations provide a list of factors and issues to consider in determining whether an employee's "primary duty" is management:

Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.

The amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty of an employee. Thus, employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement. Time alone, however, is not the sole test, and nothing in this section requires that exempt employees spend more than 50 percent of their...