Schmidt v. Recycling

• Decision Date: 22 March 2010
• Docket Number: No. 09-1901.,09-1901.
• Citation: 599 F.3d 626
• Parties: Tammy SCHMIDT, Plaintiff-Appellant, v. EAGLE WASTE & RECYCLING, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

599 F.3d 626

Tammy SCHMIDT, Plaintiff-Appellant, v. EAGLE WASTE & RECYCLING, INC., Defendant-Appellee.

No. 09-1901.

United States Court of Appeals

Seventh Circuit.

Argued: Dec. 2, 2009.

Decided: March 22, 2010.

COPYRIGHT MATERIAL OMITTED

Samuel C. Gold (argued), Tallahassee FL, for Plaintiff-Appellant.

Geoffrey S. Trotier (argued), Davis &amp Kuelthau, Milwaukee, WI, for DefendantAppellant.

Before POSNER, FLAUM, and SYKES, Circuit Judges.

FLAUM, Circuit Judge.

The plaintiff, Tammy Schmidt, brought this action for monetary relief under the Fair Labor Standards Act ("FLSA"), alleging that she was not paid overtime due under the Act, The defendant, Eagle Waste and Recycling, Inc. ("Eagle") moved for summary judgment, arguing that Schmidt was exempt from the act because she was either an "outside salesperson" or a combination of an "outside salesperson" and an "administrative employee." Taking Eagle's proposed findings of fact as true because Schmidt failed to contest them in the manner prescribed by the local rules, the district court granted summary judgment for the defendant. Schmidt appeals, arguing that the district court erroneously denied her an opportunity to cure the defects in her response brief, failed to "liberally construe" the FLSA, and incorrectly applied the "outside salesperson" and "combination" exemptions to the FLSA. We affirm.

I. Background¹

Eagle, a corporation located in Eagle River, Wisconsin, is in the business of waste removal from residential and commercial properties. Alan Albee is the president of Eagle and has been since its founding on July 1, 2005. Albee hired Schmidt on September 12, 2005. According to Eagle, Schmidt was hired as a sales representative and adopted the title of "account representative" with Albee's permission.

Schmidt reported to Albee, her sole supervisor.

Schmidt's duties included contacting potential commercial customers at their places of business and convincing them to use Eagle's waste disposal and recycling services. She was responsible for bringing in new customers, and maintaining and increasing the business of existing customers. Schmidt spent some time in the office on approximately half of her workdays. On those days, she was in the office between one and four hours. Schmidt spent four to eight hours a day outside the office making sales calls to current and potential customers. Schmidt would schedule inperson sales calls in the mornings and afternoons so that she could meet with these customers on the way to and from the office. She controlled the amount of time she spent on these calls. She was also authorized to negotiate prices with customers. For her efforts, she was paid a commission on sales in addition to her base salary.

Schmidt also had promotional and marketing duties. She conferred frequently with Albee to determine new locations and businesses to target. Schmidt would then develop a marketing campaign that Albee would review. Schmidt spent time in and out of the office promoting Eagle. For example, she attended weekly chamber of commerce meetings and social functions where she distributed business cards and flyers, talked to area business people, and sold services Eagle offered. Schmidt spent approximately five or six hours a week promoting Eagle outside the office including two to four hours a week at chamber of commerce meetings. She spent another ten hours a week working on promotional and marketing efforts at the office.

Finally, Schmidt was responsible for customer service and maintaining the cus tomer database. She made in-person visits to resolve any service problems her customers had, ranging from confusion with neighbors' containers to billing and accounting. Her database tracked current customers, prospects, and lost customers. She used the database to collect money owed by her customers, sometimes adjusting bills if a customer had a complaint or concern. These collections formed the basis of her commission payments.

Occasionally, other employees consulted Schmidt when Albee was out of the office. For example, if a customer complained about service, Schmidt would decide whether to give the customer a credit on the next bill. If a vehicle needed to be repaired, Schmidt would sometimes authorize the ordering of replacement parts without consulting Albee.

When she was hired in September 2005, Schmidt's base salary was $384.62 a week plus commission. Beginning January 1, 2006, she received a base salary of $461.54 a week plus commission. She received $26,319.75 in commissions during her time as an employee of Eagle, which ended on December 31, 2007.

Schmidt brought this action in state court on April 4, 2008. Eagle removed the case to federal court and answered the complaint on April 23, 2008. On May 15, 2008, Magistrate Judge Stephen Crocker held a pretrial conference in which he set deadlines for discovery and a trial date. Notice of these deadlines was sent to both parties along with a copy of the procedures for briefing summary judgment motions. Following depositions of Schmidt and Albee, Eagle filed its motion for summary judgment on November 13, 2008. Schmidt filed her brief in opposition to Eagle's motion on December 4, 2008, before the deadline of December 15, 2008. That same day, she filed a sworn affidavit making various statements in support of herresponse. Eagle filed its reply on December 12, 2008, raising Schmidt's failure to respond to its proposed findings of fact in accordance with the local rule and asking that Schmidt's affidavit be stricken because it contradicted her deposition testimony. On December 26, 2008, Schmidt filed a motion for leave to file a sur-reply brief and to modify her responses to Eagle's proposed findings of fact. The brief and proposed findings of fact she sought to file were not included with the motion.

On February 25, 2009, the district court entered an order denying Schmidt's motion for leave to file a surreply brief and correct her proposed findings of facts. The same order granted summary judgment to Eagle. Schmidt now appeals.

II. Analysis

At the outset, we must address Schmidt's argument that the district court erred when it deemed Eagle's proposed findings of fact admitted and refused to consider additional facts alleged by Schmidt. The district court did so because Schmidt failed to follow the local rule for making and opposing proposed findings of fact for summary judgment, which required her to respond to the defendant's proposed findings paragraph by paragraph and put her own proposed findings into separate numbered paragraphs. Instead Schmidt included only a "statement of facts" of the sort that might be found in an appellate brief. While this statement of facts did contain some pinpoint citations, it did not directly respond to Eagle's proposed findings and lumped several distinct factual assertions together in each paragraph.

We have routinely held that a district court may strictly enforce compliance with its local rules regarding summary judgment motions. See, e.g., Patterson v. Indiana Newspapers Inc., 589 F.3d 357, 360 (7th Cir.2009). Indeed, we have previously upheld a district court's decision to enforce compliance with the precise local rule at issue here. See Hedrich v. Bd, of Regents of Univ. of Wis. Sys., 274 F.3d 1174, 1177 (7th Cir.2001). In Hedrich, as here, the nonmoving party did include some citations to the record but failed to follow the requirement that specific factual allegations be made or contested in numbered paragraphs. Id. at 1178. Similarly, as in Hedrich, a separate reminder of the local rule accompanied notices sent to the parties. Id. Schmidt's reliance on a pair of Supreme Court cases addressing pleading standards, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) and Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), is misplaced. Not only has Conley been abrogated by Bell Atlantic v. Twombly, 550 U.S. 544, 560-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), but the issue of notice pleading is fundamentally different from compliance with the local rule at issue here. The local rule serves an important function by ensuring that the proposed findings of fact are in a form that permits the district court to analyze the admissible evidence supporting particular tactual propositions and determine precisely what facts, if any, are material and disputed. See Hedrich, 274 F.3d at 1178. This is not a hyper-technical rule that turns "pleading [into] a game of skill in which one misstep by counsel may be decisive of the outcome, " Conley, 355 U.S. at 48, 78 S.Ct. 99. Rather, the rule provides district courts with the means to resolve motions for summary judgment on the merits. Here, even after Schmidt was informed of the deficiencies in her response brief, she waited two weeks before asking for leave to correct her proposed findings of fact and did not tender a corrected version with her motion. The district court concluded that Schmidt had not given an adequate expla-nation for her disregard of the local rules or her delay in attempting to cure the error. Schmidt has not explained why those findings were erroneous. Consequently, the district court did not abuse its discretion when it denied Schmidt the opportunity to amend her response brief and proposed findings of fact.² We therefore proceed, as the district court did, on the findings of fact proposed by Eagle.

Next, we address Schmidt's argument that she was not an "outside salesperson" as defined in the FLSA regulations. The Secretary of Labor defines an "outside salesperson" as an employee (1) whose "primary duty" consists of "making sales" or "obtaining orders or contracts for services" and (2) who is "customarily and regularly engaged away from the employer's place or places of business in performing such primary duty." 29 C.F.R § 541.500 (2009). An employee's "primary duty" is the "principal, main, major, or most important duty that the employee performs." Id....