Posely v. Eckerd Corp.

• Decision Date: 16 May 2006
• Docket Number: No. 02-23623-CIV-ALTONAGA/Turnoff.,02-23623-CIV-ALTONAGA/Turnoff.
• Parties: Adriene POSELY and Karl O. Bloomfield, individually and on behalf of all other employees of Defendant similarly situated, Plaintiff(s), v. ECKERD CORPORATION, a Florida corporation doing business in Florida, Defendant.
• Court: U.S. District Court — Southern District of Florida

433 F.Supp.2d 1287

Adriene POSELY and Karl O. Bloomfield, individually and on behalf of all other employees of Defendant similarly situated, Plaintiff(s), v. ECKERD CORPORATION, a Florida corporation doing business in Florida, Defendant.

No. 02-23623-CIV-ALTONAGA/Turnoff.

United States District Court, S.D. Florida, Miami Division.

May 16, 2006.

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Susan L. Dolin, Esq., Michael A. Pancier, Esq., Rothstein, Rosenfeldt, Adler, Fort Lauderdale, Counsel for Defendant.

Joshua Fuller, Esq, Fuller & Associates, P.A., Coral Gables, Counsel for Plaintiff.

John Campbell, Esq., Campbell & Malafy, P.A., Coral Gables, Manuel L. Dobrinsky, Esq., Freiden & Dobrinsky, David S. Harris, Esq., Miami, of counsel for Plaintiff.

ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT

ALTONAGA, District Judge.

THIS CAUSE came before the Court on Defendant, Eckerd Corporation's ("Eckerd['s]") Renewed Motion for Final Summary Judgment [D.E. 294], filed on December 9, 2005. The Court held a hearing on the matter on February 7, 2006 and has carefully considered the parties' written submissions and all applicable law.

This case, filed over three years ago, has enjoyed, or suffered from, a long and tortured history, replete with multiple discovery disputes that continue to this day. Eckerd initially filed a Motion for Summary Judgment on April 28, 2004 [D.E. 54]. In an order dated January 13, 2005 [D.E. 175], the Court stayed that summary judgment motion, affording Plaintiffs "an opportunity to review outstanding discovery and perhaps supplement the information provided in their summary judgment papers." Now, more than two years after the initial motion for summary judgment was filed, and more than one year following the order staying that prior motion, the Court again considers Eckerd's Motion for Summary Judgment.

I. BACKGROUND

Eckerd is a retail pharmacy chain, and during the relevant time period, operated drug stores in 23 states. (Sidman Dep. p. 17)(Def. App. [D.E. 296] Ex. 3).¹ Plaintiffs were employed by Eckerd as store managers² for varying lengths of time prior to commencement of this suit. Plaintiffs, for themselves and as representatives of a purported class,³ claim to have been under-compensated by Eckerd and assert various state and federal causes of action against Eckerd.

Although the parties dispute the overall level of autonomy that Eckerd afforded its store managers, most of the specific functions of the store managers, and the constraints placed upon the exercise of those functions, are not in dispute. In contrast, the legal ramifications of Plaintiffs' employment duties and the limitations thereon are hotly contested.

General Job Description

Store managers are at the top of each store's hierarchy. (McGinnis Dep. p. 12)(Def.App.Ex. 4). Within a store, managers are the party most responsible for maximizing revenues in their store. (See McGinnis Dep. pp. 106-07). A store manager is typically responsible for handling between $3-4 million in revenue per year, although revenues vary greatly from store to store. (Sidman Dep. p. 20). Store managers are entitled to receive bonuses as part of their compensation package. (Bloomfield Dep. p. 21; Waite Dep. p. 33)(Def.App.Exs.7, 11).⁴ Moreover, managers at higher revenue stores receive greater salaries. (Colon Dep. p. 23)(Def.App.Ex. 9).

Managers have a huge impact on a store's profitability. (See Colon Dep. pp. 24, 63 (stating that manager is most important factor in increasing a store's sales volume); Hodges Dep. p. 79 (Def.App.Ex. 17)(store manager "influence[s] and impacts the sales more [than] anybody else"); Id. at pp. 89-90 (store manager is captain of the ship)). Opt-in Plaintiff Brazeau agreed that "with respect to whether the store does good or bad, it falls on" the manager's head. (Brazeau Dep. p. 42). Likewise, opt-in Plaintiff Waite agreed that the store manager was "ultimately responsible for the store." (Waite Dep. p. 24).

Store managers are expected to work at least 40 hours per week. (McGinnis Dep. p. 51). Eckerd does not regulate the maximum hours worked by store managers. (Id.). The record, however, indicates that managers typically work far more than 40 hours per week. (See Posely Dep. p. 32 (Def.App.Ex. 5); Bloomfield Dep. p. 57; Waite Dep. p. 45; Razack Dep. p. 16 (Def.App.Ex. 15)). Moreover, managers are apparently required to receive permission from the district manager if they intend to work less than 40 hours in any week. (Colon Dep. p. 57).

District Managers and Front End Supervisors

Store managers are supervised by frontend supervisors as well as district managers⁵ who manage, according to Eckerd, between 25-30 stores. (Statement of Undisputed Facts p. 2).⁶ District manager Felix Hodges testified that he currently manages 34 stores and had formerly managed 28 stores. (Hodges Dep. pp. 16, 20). Mr. Hodges further testified that district managers "are responsible for the every day operations, profits and losses of each of those locations, managing the staff, store staff, insuring compliance of the company programs." (Hodges Dep. p. 29).

The precise number of visits that district managers and front-end supervisors pay to a store varies. Plaintiff, Adriene Posely, testified that his store received visits between twice a week and twice a month (Posely Dep. p. 63), and Hodges testified that he visited stores approximately once per month, with each visit lasting approximately one to two hours. (Hodges Dep. p. 34). However, the record indicates that district managers communicate with each store manager as frequently as once per day. (See id.).

During store visits, district managers seek to ensure that the store is being operated pursuant to Eckerd's guidelines, and may offer advice to managers, and to other store employees, to help improve a store's operations or condition. (See Posely Dep. pp. 63-64). District managers often provide managers with explicit instructions regarding how to run the store. (See Goodrich Dep. pp. 15-16)(Def.App.Ex. 13). Moreover, the front-end supervisor and/or the district manager may, if necessary, provide direct training to assistant managers and other store employees. (Neville Dep. p. 32 (Def.App.Ex. 16); Hodges Dep. p. 38).

Managers' Authority Over Store Personnel

Store managers maintain significant supervisory authority over the personnel of their stores. They are responsible for hiring, staffing, and scheduling decisions. (McGinnis Dep. p. 67; Posely Dep. p. 19; Bloomfield Dep. p. 42). They may delegate tasks to any of their subordinates and are ultimately responsible for the performance of their subordinates.⁷ (Brazeau Dep. p. 39). In fact, Plaintiff Posely testified that he was the sole person in the store with the ultimate ability to delegate responsibility. (Posely Dep. p. 57; see also Razack Dep. p. 57).

Store managers establish the working schedule for each store employee, with the exception of the pharmacist. (Posely Dep. p. 30; Bloomfield Dep. p. 46; Waite Dep. p. 19; Razack Dep. pp. 54-55). As part of the schedule-making function, store managers approve time off and vacations for all hourly associates. (Bloomfield Dep. pp. 46-47; Waite Dep. p. 23). An employee may not deviate from the work schedule developed by the store manager without the express approval of the store manager. (See Bloomfield Dep. p. 46; Waite Dep. p 23; Posely Dep. p. 31; Razack Dep. p. 55). Store managers also have the ultimate authority to approve corrections to hourly employees' time records. (Bloomfield Dep. p. 68).

A store manager's hiring and staffing discretion is circumscribed by Eckerd's corporate guidelines. For instance, although store managers may hire as many people as they deem necessary, they may not exceed the payroll budget established by Eckerd. (McGinnis Dep. p. 105). The payroll budget of a store is determined pursuant to a corporate formula. (Goodrich Dep. p. 18; Hodges Dep. p. 53). While the record does not indicate the precise variables utilized to determine each store's payroll budget, it does indicate that a store's sales volume is a paramount factor in determining the budget. (See, e.g., McGinnis Dep. p. 101; Goodrich Dep. p. 20; Hodges Dep. pp. 69, 75).

Store managers must first administer a form/test to each job applicant. (Posely Aff. ¶ 3c; Bloomfield Aff. ¶ 2c; Colon Dep. p. 26). The applications are subsequently submitted to Eckerd headquarters for approval; no new employee may be hired absent prior Eckerd approval. (Id.). However, after receiving permission from Eckerd, the ultimate decision of whether to hire a new employee rests with the store manager. (Colon Dep. pp. 25-26; Brazeau Dep. pp. 25-27; Waite Dep. p. 18). Store managers hire pharmacy associates through a similar process, although pharmacy associates must also undergo a background check. (Colon Dep. p. 31). Store managers do not hire assistant managers, photo lab managers or pharmacists. (Posely Aff. ¶ 3e; Bloomfield Aff. ¶ 2e).

Store managers conduct annual performance reviews of hourly associates, assistant managers, first and second assistant managers, and photo lab associates (in conjunction with the photo lab managers). (See Posely Dep. p. 26; Bloomfield Dep. p. 45; Brazeau Dep. p. 52). The annual evaluations determine whether an employee receives a raise, and the extent of the raise, within Eckerd guidelines.⁸ (Posely Dep. pp. 26-27; Bloomfield Dep. pp. 45-46). Although Eckerd provides store managers with personnel evaluation checklists, the evaluations are conducted without contacting human resources. (Posely Dep. p. 26).

Store managers retain the sole responsibility to notify Eckerd's human resources department of personnel problems. Although assistant managers generally have the power to write up employees when the manager is not present, the appraisals may not be submitted to "corporate" absent the prior approval of a store manager. (See Posely Dep. p. 21; Brazeau Dep. p. 24; ...