Stein v. JC Penney Co., Civ. A. No. 80-2278-H.

• Decision Date: 16 February 1983
• Docket Number: Civ. A. No. 80-2278-H.
• Court: U.S. District Court — Western District of Tennessee
• Parties: Donald H. STEIN, Plaintiff, v. J.C. PENNEY COMPANY, Defendant.

557 F. Supp. 398

Donald H. STEIN, Plaintiff, v. J.C. PENNEY COMPANY, Defendant.

Civ. A. No. 80-2278-H.

United States District Court, W.D. Tennessee, W.D.

February 16, 1983.

Jack F. Marlow, Memphis, Tenn., for plaintiff.

Etrula R. Trotter, Memphis, Tenn., Nelle M. Funderburk, Atlanta, Ga., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER

HORTON, District Judge.

This action was brought pursuant to provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219. Jurisdiction is conferred upon this Court by 28 U.S.C. § 1337 and § 16(b) of the Act. The case was tried without a jury, October 27 through November 1, 1982.

Plaintiff, Donald H. Stein, is a former employee of the defendant, J.C. Penney Company. Plaintiff contends that, although his job title and description fell within a classification that is exempt from overtime provisions of the Fair Labor Standards Act, his actual duties were of a nonexempt nature. Plaintiff thus claims that he is entitled to overtime pay for more than 800 hours and seeks a compensatory award for unpaid overtime pay, liquidated damages pursuant to a statutory double penalty provision (29 U.S.C. § 260), pre-judgment interest and attorneys fees. The Court finds that plaintiff's job was properly exempt from the overtime provisions of the Act and judgment should therefore be entered in favor of the defendant.

Plaintiff, 47, is well educated with both a college education and a law degree. After several years in the legal profession, plaintiff began a career in retail store management, first with Sears, Roebuck & Company and then with the J.C. Penney Company, the defendant in this lawsuit.

Plaintiff's association with the defendant began in 1971 when he joined the company's Treasury Division as a management trainee in Atlanta. He was soon transferred to the Memphis area where he served as operations manager of the Treasury store in Whitehaven until July of 1978. In that position he was involved in management responsibilities relating to scheduling, staffing, budget, payroll and other activities of an operational nature.

Plaintiff, after several years at the Whitehaven store, became interested in advancement to a store manager's position. He was advised that, since his primary experience to date had been in the operations area, it would be useful for him to work in a merchandising job before being considered for a position as store manager. Plaintiff requested a merchandising position and was transferred to the Treasury's North Hollywood store, also in Memphis, in July of 1978.¹ Plaintiff served as a senior merchandising manager at the North Hollywood store until he was dismissed in August of 1979. Within two weeks after his dismissal by defendant, plaintiff was hired to his current position as manager of a Fred P. Gattas store in Memphis.

The focus of this lawsuit is plaintiff's job activities at defendant's Treasury store on North Hollywood. Plaintiff held his position at that store for just over one year, for which he received an annual salary of $18,940.

It is important to recognize that this is not an action for wrongful dismissal. The sole claim made by the plaintiff is that he was entitled to overtime pay for 817.75 hours worked in addition to the normal 40-hour work week while at the North Hollywood store. For defendant's failure to pay overtime, plaintiff seeks $11,163 in unpaid overtime compensation, an additional $11,163 in liquidated damages, plus interest and attorneys fees.

A brief review of the organizational structure of the North Hollywood Treasury store is helpful in understanding the nature of plaintiff's job and his role in the management of the store. At the top of the organizational chart is the store manager. This position was held by John Struthers during part of plaintiff's tenure at the store and then by Jamie Luter for approximately three months just before plaintiff was dismissed.

Below the store manager, the organization of the Treasury store essentially separates into two functional divisions, one headed by the operations manager² and the other directed by the general merchandising manager. It is, of course, the merchandising component of the store that is of importance in the case now under consideration.

The general merchandising manager of the Hollywood store, at all times pertinent to this lawsuit, was Michael Tognetti. Reporting to Mr. Tognetti were merchandise managers, senior merchandise managers and merchandiser trainees. The duties of the merchandising personnel who reported directly to Mr. Tognetti were similar in that each of these employees was involved in the presentation and buying of merchandise. However, as the title implies, the position of senior merchandising manager encompassed considerably more responsibilities than that of merchandising manager or merchandiser. Plaintiff's position required control over a larger number of departments, supervision of more employees and generally greater management duties than the other merchandising personnel.

Plaintiff was in charge of four departments out of the fourteen in the store. His departments included men's and boys', home entertainment, toys, and automotive. Plaintiff regularly had at least seven and sometimes as many as twelve employees reporting to him. This included full-time as well as part-time sales clerks and commission salesmen assigned to the four departments. In addition to his regular duties, plaintiff was in complete charge of the store two nights per week, alternating the night/Sunday management shift with two other managers.

Plaintiff's job description indicates that the position of senior merchandising manager entails considerable management activity. It involves developing merchandising plans, purchasing merchandise, determining merchandise presentation, meeting productivity objectives, providing personnel leadership, supervising sales and customer service in assigned areas and numerous other managerial functions.

In contrast to the job description, which emphasizes management activities which would be exempt under the Fair Labor Standards Act, plaintiff contends that his actual duties were primarily of a non-exempt nature. The plaintiff testified he spent 70-80 percent of his time on the sales floor, with the majority of his working hours spent on manual labor, including such tasks as returning shopping carts, packaging merchandise and running the cash register.

There is little doubt that the plaintiff did indeed perform more manual labor than one might expect from a reading of the job description. A former Treasury employee, Charlotte Swailles, supported plaintiff's estimate that he spent 70-80 percent of his time on the sales floor. And she agreed that it was not uncommon to see him changing displays, cleaning the fish tanks, stocking shelves or even sweeping the floor. However, the fact that the plaintiff did on occasion perform non-exempt work does not automatically make him a non-exempt employee. The Court must look not only at specific tasks plaintiff sometimes performed but also at the overall nature of the job. In determining the exempt or non-exempt status of plaintiff's position, and in assessing the validity of plaintiff's claims, the Court finds three specific factual elements of this case deserving of special attention.

First, the Court notes that the three Treasury stores in Memphis were all having financial difficulties during the 1978-79 year, and the North Hollywood store was a particularly troublesome problem for the defendant's Treasury Division. The North Hollywood store had the lowest sales volume of any of the Memphis stores and one of the lowest in the country. Not once did the North Hollywood store ever show an annual profit.

Because of the financial difficulties, the defendant was not able to staff the Hollywood store at optimum levels. This meant that employees were routinely shuffled among the various departments and called away from their normal assignments for brief periods to perform other tasks. For example, it was not uncommon for a sales clerk assigned to a specific department to be pulled away from her department and called to the front of the store to run a cash register during a peak period. However, despite these problems, the record indicates that staffing never fell below the minimum standards established by the Treasury Division for a store having the size and sales volume of the North Hollywood store. As one former merchandiser, Laurie Hogan Richardson, explained: "Nobody ever really had enough help, but we made do."

The plaintiff obviously had more difficulty "making do" than the other managers. He constantly felt, and occasionally complained, that he was understaffed and had to do much of the physical work that non-exempt employees would normally be required to do. It is clear, however, that plaintiff's departments were no more understaffed than other parts of the store. It is equally clear that staffing, though far from ideal, was sufficient to adequately handle the essential operations of the store if the personnel were efficiently managed. The testimony indicated that plaintiff's successor, Ken Austin, was able to handle the job with the same personnel but without the same degree of difficulty demonstrated by the plaintiff.

The second factor that deserves attention is the personality and management style of plaintiff's immediate supervisor at the North Hollywood store, Michael Tognetti. Mr. Tognetti described himself as "very aggressive" and conceded that he had a temper and a tendency to occasionally speak harshly to his employees. Jamie Luter, the store manager during the last three months plaintiff was on the job, said Mr. Tognetti was the type of person "who wanted to get the job done." From the plaintiff's perspective, Mr. Tognetti not only wanted to get the job done, he always wanted it done "his way."

Plaintiff may have overreacted at times to Mr. Tognetti's demanding nature, and this...