White v. All America Cable & Radio

• Decision Date: 31 March 1987
• Docket Number: Civ. No. 86-1184 HL.
• Parties: W. Gayden WHITE, Plaintiff, v. ALL AMERICA CABLE & RADIO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

656 F. Supp. 1168

W. Gayden WHITE, Plaintiff, v. ALL AMERICA CABLE & RADIO, Defendant.

Civ. No. 86-1184 HL.

United States District Court, D. Puerto Rico.

March 31, 1987.

Charles A. Cordero, Cordero, Colon & Miranda, Old San Juan, P.R., for plaintiff.

Edwin J. Guillot, Jr., McConnell, Valdés, Kelley-Sifre, San Juan, P.R., for defendant.

OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiff, W. Gayden White is back. In 1981 he filed a claim for payment of overtime, severance and vacation pay against his former employer, All America Cable & Radio, Inc. ("All America"). Over the period of four years the parties built a three volume case file of motions, briefs, documents, discovery requests, and other paper battling all possible pretrial issue — without ever reaching the merits of the complaint. Finally, on February 13, 1986, defendant prevailed on one of its motions and the case was dismissed for lack of diversity jurisdiction. 642 F.Supp. 69.

Diversity having been established, the case was refiled and, again, assigned to the undersigned judge. At long last a Motion for Partial Summary Judgment addressing the merits of plaintiff's claim has been filed. Defendant, who presented the motion, claims that plaintiff is not entitled to overtime pay, as he requested pursuant to 29 U.S.C. sect. 207(a) and 29 L.P.R.A. sects. 273 and 274, because he was an exempt employee as defined by both the federal and Puerto Rico statute. We agree with defendant's argument and GRANT the motion.

Plaintiff began work for defendant, All America, a company in the communications business, in 1974. There he was employed until 1981 when he claims to have been intimidated and harassed into resigning. Plaintiff's title with defendant was initially Manager for Safety and Security. His functions were later expanded and he was designated Area Manager for Security and Safety. Plaintiff's essential responsibility in his job was to advise and make recommendations to defendant and those companies forming defendant's "Communication Group" on security matters. Plaintiff was also in charge of overseeing defendant's security procedures and programs. He was the head of the defendant's Safety Committee, he organized employee security and safety training sessions and performed other miscellaneous security functions. During the period he was employed by defendant, plaintiff earned a salary of more than $900.00 per week. At the time of his resignation, his total compensation, including fringe benefits and bonuses, was $85,616.00.

Among the issues perpetrating plaintiff's resignation is the amount of overtime he claims to have worked for defendant without having been compensated for the excess hours. In his complaint plaintiff requests payment of overtime pursuant to Puerto Rico's overtime statute, 29 L.P.R.A. 271 et seq., and the federal Fair Labor Standards Act of 1938, 29 U.S.C. sect. 201 et seq.

Both the federal and Puerto Rico statutes provide for a pay rate equal to time and a half to "employees" who work in excess of a forty hour workweek. 29 L.P. R.A. sects. 273, 274 and 29 U.S.C. sect. 207.¹ However, the overtime provisions do not apply to exempt "employees" working as an "administrator," "executive," or "professional." 29 U.S.C. sect. 213(a)(1); 29 L.P.R.A. sect. 288. The definition and delineation of an "exempt employee" under the federal statute is set forth in the Rules and Regulations ("Regulations") promulgated by the Secretary of Labor. 29 C.F.R. sects. 541.1 et seq.² We focus exclusively on the exemptions applicable to this case; the "executive" and "administrative" exemptions.

The Regulations establish two tests for determining whether an employee is a bona fide executive or administrator. Employees earning less than $250 per week, or $200 per week if employed in Puerto Rico, are subject to the "long test" of 29 C.F.R. sects. 541.1(a)-(e) for executive employees, and sects. 541.2(a)-(e) for administrative employees; whereas those earning $250 ($200 in Puerto Rico) or more per week are governed by the "short test" as set forth in sects. 541.1(f) and 541.2(e). See Donovan v. United Video, Inc., 725 F.2d 577 (10th Cir.1984).

There is no controversy that the "short test" applies in this case. Plaintiff admits to have earned approximately $900 per week, far in excess of the $250 limit established by the Regulations.

According to the Regulations, an employee who earns at least $250 a week qualifies under the "executive" exemption if: 1) his "primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision," and 2) "such duty includes the customary and regular direction of the work of two or more other employees in the establishment or department." 29 C.F.R. 541.1(f). The record in this case is unclear whether plaintiff directed or supervised more than two employees. Plaintiff's job description states that he was to supervise over 2,000 security guards and other security employees. However, in his deposition, plaintiff explained that security was handled by hired security services and that he did not directly supervise the individual guards. Plaintiff testified at the deposition that he supervised only one employee — his secretary. Though we make no specific finding whether plaintiff qualifies as an executive, it would appear from his testimony that the requirement of supervising more than two employees for this exemption has not been met. Instead, we examine more carefully whether there exists any genuine issue of fact that plaintiff falls within the administrative employee exemption.

Judgment on a Rule 56 motion for summary judgment, as is presented by defendant in this case, is proper only if on "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After considering the parties' legal arguments and reviewing the relevant external evidence in this case, deposition and documents, pursuant to the proper summary judgment standard, we find plaintiff to be an administrative employee within the meaning of the exemption. Defendant is entitled to judgment as a matter of law on plaintiff's request for overtime pay.

According to the Secretary of Labor's Regulations, an employee compensated at a rate of more than $250 per week is considered an exempt administrative employee if: 1) his "primary duty consists of ... the performance of office or nonmanual work directly related to management policies or general business operation of the employer ...," sect. 541.2(e)(2), and 2) such duty "includes work requiring the exercise of discretion and independent judgment," sect. 541.2(e)(2).

As explained in the Interpretations of the Regulations, 29 C.F.R. sects. 541-200 et seq.,³ the requirement that the work of a bona fide "administrative" employee must be office or nonmanual work was intended to restrict the exemption to "white-collar" employees who meet the test. 29 C.F.R. sect. 541.203. This requirement does not completely prohibit the performance of manual work by an "administrative" employee. Id. Instead, the focus of the court should be on the quantity of time spent in nonmanual activities in conjunction with the other requirements for the exemptions. The phrase "directly related to management policies or general business operation of the employer" is meant to describe activities of substantial importance to the management or operation of the...