Meyer v. Worsley Companies, Inc.

• Decision Date: 23 August 1994
• Docket Number: No. 93-547-CIV-5-F.,93-547-CIV-5-F.
• Citation: 881 F. Supp. 1014
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Roger MEYER, II, Plaintiff, v. WORSLEY COMPANIES, INC., and Entrepreneur, Inc., Defendants.

881 F. Supp. 1014

Roger MEYER, II, Plaintiff, v. WORSLEY COMPANIES, INC., and Entrepreneur, Inc., Defendants.

No. 93-547-CIV-5-F.

United States District Court, E.D. North Carolina, Raleigh Division.

August 23, 1994.

Robert J. Willis, Raleigh, NC, for plaintiff Roger Meyer, II.

W.R. Loftis, Jr., Constangy, Brooks & Smith, Winston Salem, NC, for defendants Worsley Companies, Inc., Entrepreneur, Inc.

ORDER

JAMES C. FOX, Chief Judge.

This matter is before the court for ruling on defendants' Motion for Summary Judgment and on plaintiff's "Request for Order Directing Defendant to File Original of Transcript of Plaintiff's Deposition." Plaintiff's deposition is a part of the record, having been filed May 26, 1994. Therefore plaintiff's "Request" is DENIED AS MOOT.

This action was brought pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., for defendants' alleged failure to pay the plaintiff overtime wages at the rate required by 29 U.S.C. § 207(a). The basis for defendants' Motion for Summary Judgment is that, as store manager, plaintiff was a bona fide executive employee, exempt from § 207 pursuant to 29 U.S.C. § 213(a)(1). Whether the plaintiff qualifies under the statute as a bona fide executive employee, exempt from § 207, is a legal question. Shockley v. City of Newport News, 997 F.2d 18, 26 (4th Cir.1993). Plaintiff contends that a factual issue exists whether his "primary duty" was managerial.

FACTUAL BACKGROUND

Plaintiff, Roger Meyer, began working for the defendant companies as a management trainee in the Fayetteville, North Carolina, Scotchman store. In July 1992, area supervisor, Vickie Beck, interviewed plaintiff for the position as store manager for the Pittsboro, North Carolina, Scotchman store. Plaintiff was hired, and held the position as the Pittsboro Scotchman store manager from July 1992, to January 1993, at which time he was involuntarily terminated.

The job description for a Scotchman "store manager" lists 83 separate duties under the headings, "sales and customer relations," "interviewing and hiring," "personnel," "work schedules and duties," training and development," "repairs and maintenance," "store security," "records and accounting," "store operations," "vendors," "marketing/merchandising," "government agencies and regulations," "other." As store manager, one of plaintiff's responsibilities was to set up employee work schedules. The Pittsboro store operated 24 hours per day, with three shifts; only one employee was to work per shift. Therefore, during most of the time pertinent hereto, plaintiff and at least two other employees manned the shifts at the Pittsboro Scotchman.

In most of the area Scotchman stores, the store manager works the first shift, which is from 7:00 a.m. to 3:00 p.m.; however, because the store manager sets the schedules, he or she may choose another shift more suitable to his or her needs. Although most of the shift duties were relatively standardized throughout the Scotchman system, plaintiff tried to assign the shift duties to fit the nature of the business that ordinarily took place during that shift. Plaintiff worked the first shift at the Pittsboro store during which he performed all the regular first shift duties in addition to his managerial duties. He usually came in one or two hours early to do paperwork, and usually left late in order to make the bank deposit after the second shift worker relieved him.

Plaintiff also stopped into the store during other employees' shifts, sometimes to make a purchase and get "just a general impression of what was going on," Meyer Dep. at 32, or to spot check the store, Dep. at 41. He listened to customer opinions and responded to negative comments regarding the store or the clerks. Plaintiff interviewed clerk applicants, made hiring recommendations and trained new clerks. He also had input with his supervisors regarding the performance of the employees.

Plaintiff met with the various vendors who made their rounds during the first shift to deliver inventory. He checked in the merchandise and ensured proper billing. Plaintiff completed paperwork, took cigarette inventory, input daily information into the computer, and made bank deposits. He checked the clerks' time cards for accuracy and adjusted employee time in the computer when necessary, such as when an employee forgot to punch in. When an employee failed to come to work, plaintiff was responsible for finding a substitute.

Plaintiff exercised discretion with regard to security matters. On one occasion, he caught a customer shoplifting, but decided not to prosecute because the customer was mentally disabled and plaintiff felt that pursuing legal action against him was unwarranted.

Plaintiff's superior, Vickie Beck, was the Scotchman area supervisor. She telephoned the Pittsboro store frequently and often stopped in to check on the store or to use the facility for catching up on other Scotchman business. Ms. Beck and the plaintiff consulted with one another regarding matters at the Pittsboro store. Deposition testimony submitted in conjunction with the instant motion indicates that Ms. Beck employed a very direct, hands-on supervisory style, in contrast, for example, with her successor, Mr. Samuel McCullen.

STANDARD OF REVIEW

Summary judgment is appropriate when there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the burden initially of coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party then must come forward and demonstrate that such a fact issue does exist. Matsushita Electric Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The Supreme Court has explained that:

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof.

Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. The moving party therefore can meet its burden as to an issue — proof at trial of which will rest on the non-movant — by demonstrating that there is a lack of evidence to support the non-moving party's case. Id. at 325, 106 S.Ct. at 2553-54. Because the standard for determining whether summary judgment is appropriate mirrors the standard for directing a verdict under Rule 50(a), Fed.R.Civ.P., the inquiry is whether, by a preponderance of the evidence, a jury properly could base a verdict for the party "`upon whom the onus of proof is imposed.'" Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 (internal citation omitted).

In the instant case, the defendant has the burden of proof as to the dispositive question on liability under the applicable Wage and Hour law. Foremost Dairies, Inc. v. Wirtz, 381 F.2d 653, 656 n. 4 (5th Cir.1967) (employer invoking wage plan exception has burden of affirmatively showing that each essential condition to the exception is met), cert. denied, 390 U.S. 946, 88 S.Ct. 1031, 19 L.Ed.2d 1134 (1968). This lawsuit centers around the applicability of 29 U.S.C. § 213(a)(1) to plaintiff's actual duties and performance during the time he was employed as the Pittsboro Scotchman "store manager." The FLSA "is to be interpreted liberally with exceptions narrowly construed against those seeking to assert them." Wirtz v. Jernigan, 405 F.2d 155, 158 (5th Cir.1968), citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960). As will be set forth in detail below, the gravamen of the court's query is whether the defendants have made a showing sufficient to entitle them to summary judgment that the plaintiff was a bona fide executive employee pursuant to § 213(a)(1).

ANALYSIS

"Executive Capacity"

The minimum wage and maximum hour requirements of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., ("the Act") do not apply to an employee who is "employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). Simply put, employers are not required to pay overtime to "executives" who work more than forty hours per week; executives are "exempt" from the overtime laws. According to regulations promulgated under the Act, an employee employed in a bona fide executive capacity means any employee:

(a) Whose primary duty consists of the management of the enterprise in which he in employed or of a customarily recognized department or subdivision thereof; and

(b) Who customarily and regularly directs the work of two or more other employees therein; and

(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and

(d) Who customarily and regularly exercises discretionary powers; and

(e) Who does not devote more than 20 percent ... of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section

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