Stricker v. Eastern Off Road Equipment, Inc.

• Decision Date: 23 July 1996
• Docket Number: Civil No. CCB-94-2446.
• Parties: Edward Patrick STRICKER v. EASTERN OFF ROAD EQUIPMENT, INC.
• Court: U.S. District Court — District of Maryland

935 F. Supp. 650

Edward Patrick STRICKER v. EASTERN OFF ROAD EQUIPMENT, INC.

Civil No. CCB-94-2446.

United States District Court, D. Maryland.

July 23, 1996.

COPYRIGHT MATERIAL OMITTED

David H. Greenberg, Spahn, Harvis, Greenberg & Broida, Columbia, MD, for Plaintiff.

Michael J. Wietrzychowski, Cureton Caplan & Clark, P.C., Mount Laurel, NJ, Jonathan D. Strum, Washington, DC, for Defendant.

MEMORANDUM OPINION

BLAKE, District Judge.

Now pending is the defendant's motion for summary judgment concerning the plaintiff's claim for overtime compensation under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). At issue is whether Edward Stricker, while working as a store manager for Eastern Off Road Equipment, Inc., was an exempt employee under the Act not entitled to overtime. The parties have completed discovery and the material facts are undisputed. For the following reasons, the defendant's motion will be GRANTED.

I.

The defendant, Eastern Off Road Equipment, Inc. ("Eastern"), is a retailer of truck and off-road vehicle equipment. Eastern owns a number of independent retail outlet stores in several States. The plaintiff, Edward Patrick Stricker, worked for the defendant's store in Gaithersburg, Maryland. The parties dispute only the legal significance of the plaintiff's job duties, not the duties themselves.

The plaintiff began his employment with Eastern Off Road when he applied for and secured a job described in the newspaper as the "Store Manager" for Eastern Off Road.¹ After a three-week management training program, the plaintiff assumed the position of "Store Manager." James Banner, the General Manager of Eastern Off Road, testified that the store managers of the company's retail outlets are responsible for sales, profit, and the management of all controllable expenses as well as inventory and physical upkeep of the store. The description for the "retail manager" position lists the following duties: training and development of personnel; recommending personnel for promotions and transfers; ensuring that the proper procedures are followed when an employee leaves the company; and supervising the performance of personnel including ensuring that employees follow company policy with respect to: company money and property, store appearance and merchandising, records and all other paperwork, the store's check policy, the timely opening and closing of the store, managing the flow of inventory, and the time management of employees.

The plaintiff argues that his status and title were nothing more than an attempt by the defendant to avoid paying overtime under the FLSA. The plaintiff argues that he was little more than "a salesman, a stock boy, a janitor, and a clerical worker."

II.

The defendant has filed a motion for summary judgment arguing that the plaintiff was at all relevant times an exempt employee under the FLSA. The standards governing summary judgment are familiar and will be set forth first. The standards governing the plaintiff's FLSA claim follow.

A.

Rule 56(c) of the Federal Rules of Civil Procedure provides that:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The only facts that are properly considered "material" are those that might affect the outcome of the case under the governing law. Id. at 249-50, 106 S.Ct. at 2511. If the evidence favoring the non-moving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Id.

To determine whether a genuine issue of material fact exists, all facts and all reasonable inferences drawn therefrom are construed in favor of the non-moving party. However, the non-moving party may not rest on its pleadings, but must show that specific, material facts exist to create a genuine, triable issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir.1996).

The Supreme Court has explained that the Rule 56(c) standard mirrors the standard for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The Court has stated that "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511; see also Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 67, 130 L.Ed.2d 24 (1994); Catawba Indian Tribe v. South Carolina, 978 F.2d 1334, 1339 (4th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1415, 122 L.Ed.2d 785 (1993). While the court must "view the facts and draw reasonable inferences in a light most favorable to the nonmoving party," Shaw, 13 F.3d at 798, it also must abide by its affirmative obligation to ensure that factually unsupported claims and defenses do not proceed to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (citing Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553). The district court is required to enter judgment against a party who, "after adequate time for discovery ... 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." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. "A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial and the moving party is `entitled to judgment as a matter of law.'" Id. at 323, 106 S.Ct. at 2552.

B.

Generally, employees working more than forty hours in a workweek must be paid at a rate of time and one half for the excess hours worked. 29 U.S.C. § 207(a)(1). However, these overtime pay requirements do not apply to "any employee employed in a bona fide executive, administrative, or professional capacity." Id. § 213(a). Exempt status is an affirmative defense under the FLSA, and, therefore, the defendant bears the burden of proof on that issue. See Clark v. J.M. Benson Co., 789 F.2d 282, 286 (4th Cir.1986). Because FLSA exemptions must be narrowly construed, see Hays v. City of Pauls Valley, 74 F.3d 1002, 1006 (10th Cir.1996), the defendant must prove the plaintiff's exempt status by clear and convincing evidence, see Shockley v. City of Newport News, 997 F.2d 18, 21 (4th Cir.1993).

Regulations promulgated by the Department of Labor establish binding standards² for determining whether an employee is employed in a "bona fide executive, administrative, or professional capacity." See 29 C.F.R. pt. 541. For each of the three exempt categories, the regulations provide a detailed "long test" and a less detailed "short test." The short test contains fewer specific standards but requires a greater minimum weekly salary than required for qualification under the long test.

Store managers are frequently held to be exempt under the executive category. See, e.g., Murray v. Stuckey's, Inc., 50 F.3d 564, 570 (8th Cir.) (convenience store managers), cert. denied, ___ U.S. ___, 116 S.Ct. 174, 133 L.Ed.2d 114 (1995); Donovan v. Burger King Corp., 675 F.2d 516, 520-22 (2d Cir. 1982) (fast food restaurant assistant managers); Masilionis v. Falley's, Inc., 904 F.Supp. 1224, 1229-30 (D.Kan.1995) (produce manager of a grocery store); Meyer v. Worsley Cos., 881 F.Supp. 1014, 1017-21 (E.D.N.C.1994) (Scotchman store manager). However, under both the long and short tests, an exempt executive employee must "customarily and regularly" supervise two or more other employees. See 29 C.F.R. § 541.1(b), (f). The defendants concede that the plaintiff did not supervise more than two employees and therefore does not satisfy this requirement for exemption. They argue instead that the plaintiff's duties meet the requirements of the administrative short test, see id. § 541.2(e)(2), or, in the alternative, a "combination exemption" which incorporates the executive and administrative exemptions, see id. § 541.600.³

The combination exemption applies to workers whose primary duty is neither management nor administration. See Shockley, 997 F.2d at 29. "`In combination exemptions ... the employee must meet the stricter of the requirements on salary and non-exempt work.'" Id. (quoting 29 C.F.R. § 541.600(a)). To qualify for the combination exemption, the plaintiff must satisfy the long tests for both executive and administrative employees, and the defendant must demonstrate that no more than 20% of the plaintiff's time was devoted to non-exempt work. See Auer v. Robbins, 65 F.3d 702, 722 (8th Cir.1995), cert. granted, ___ U.S. ___, 116 S.Ct. 2545, 135 L.Ed.2d 1066 (1996); Shockley, 997 F.2d at 29. Because the defendant concedes that the plaintiff did not supervise two or more employees, he does not qualify for the executive exemption, see 29 C.F.R. § 541.1(b), and therefore can not qualify for the combination exemption.

The short test for the administrative exemption applies here because the plaintiff earned more than $250 per week in salary.⁴ The short test provides, in relevant part:

An employee who is compensated on a salary or fee basis at a rate of not less than $250 per week ... and whose primary duty consists of the performance of office or nonmanual work directly related to management policies or general

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