Crayton v. Valued Services of Alabama, LLC

Filing 42

MEMORANDUM OPINION AND ORDER that defendant's 33 MOTION for Summary Judgment is GRANTED; that plaintiff's First Amended Complaint is DISMISSED with prejudice. Signed by Honorable Wallace Capel, Jr on 9/2/2010. (cc, )

C rayton v. Valued Services of Alabama, LLC (CONSENT)

Do c. 42

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION T W A N N A D. CRAYTON, ) ) P la in tif f , ) ) v. ) ) V A L U E D SERVICES OF ALABAMA, ) L L C , d/b/a FIRST AMERICAN CASH ) ADVANCE, ) ) D e f e n d a n t. )

CASE NO. 3:09-CV-726-WC

M E M O R A N D U M OPINION AND ORDER C u rre n tly pending before the Court is Defendant's Motion for Summary Judgment (D o c . #33), Plaintiff's Response (Doc. #34), and Defendant's Reply (Doc. #35). For the re a s o n s that follow, Defendant's Motion for Summary Judgment (Doc. #33) is GRANTED. I. BACKGROUND P lain tiff 's First Amended Complaint (Doc. #26) is presently pending before the Court. P la in t if f Twanna Crayton ("Plaintiff" or "Crayton") brings several causes of action against h e r former employer, Defendant Valued Services of Alabama ("Defendant" or "Valued S e rv ic e s" ). Specifically, Plaintiff states the following causes of action: 1) that Defendant " v io la te d [Plaintiff's] rights under Title VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2 0 0 0 e , et seq.] by treating her less favorably than her Caucasian counterparts in terms of pay a n d benefits" (Count One); 2) that Defendant violated Plaintiff's rights under Title VII "by su b jec tin g her to harsher work conditions and reprimands because she had engaged in

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p ro te c te d activity by complaining about racially discriminatory conduct against herself and o th e rs " and "by terminating her employment because she engaged in protected activity by co m p lain in g about racially discriminatory conduct against herself and others" (Count Two); ( 3 ) that the alleged discriminatory and retaliatory actions alleged in counts one and two also v io late d Plaintiff's rights under 42 U.S.C. § 1981 (Count Three); 4) that Defendant "willfully v io la te d the provisions" of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. "by failing to compensate [Plaintiff] with overtime pay for work weeks in which she worked more than f o rty hours" and by "fail[ing] to maintain accurate records as required by the FLSA with re sp e c t to [Plaintiff], including records sufficient to accurately determine [Plaintiff's] wages a n d hours of employment" (Count Four) and 5) "Defendant retaliated against [Plaintiff] . . . by terminating her, in part, as a result of her complaints regarding her lack of overtime c o m p e n s a tio n " (Count Five). First Amended Complaint (Doc. #26) at ¶¶ 32, 35-36, 39, 434 4 , & 48. On May 21, 2010, Defendant filed the instant Motion and supporting materials. D e f en d a n t asserts it is entitled to summary judgment for the following reasons: 1) Defendant p ro p e rly classified Plaintiff as an exempt employee under the FLSA; 2) Plaintiff can not e sta b lis h a prima facie case of retaliation under the FLSA; 3) even assuming such a prima fa c ie case, Plaintiff can not establish that Defendant's reason for terminating her employment w a s pretextual; 4) Plaintiff can not establish a prima facie case of discrimination in violation o f Title VII with respect to her compensation relative to other employees; even assuming

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s u c h a prima facie claim, Plaintiff can not show that Defendant's reasons for compensating P la in tiff's supposed comparator differently are pretextual; and 5) Plaintiff's retaliation claims u n d e r Title VII and § 1981 fail because Plaintiff's internal complaints did not constitute p ro te c te d activity, she can not establish a prima facie case of retaliation based on alleged d is p a ra te discipline and/or surveillance or termination, and she can not show that D e f en d a n t's reasons for implementing any employment action, be it termination or nonter m in a tio n , were pretextual. Plaintiff filed her "Memorandum Brief Filed in Opposition to D e f en d a n t's Motion for Summary Judgment" (Doc. #34) on June 11, 2010, and Defendant f ile d its Reply (Doc. #35) on June 18, 2010. II. S T A N D A R D OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). Only disputes about material facts will preclude the g ra n tin g of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "An issue of fact is `genuine' if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the c a se under the governing law." Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1 4 8 9 , 1496 (11th Cir. 1996) (quoting Anderson, 477 U.S. at 248).

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T h e party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a c ts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In d e ter m in in g whether a genuine issue for trial exists, the court must view all the evidence in th e light most favorable to the nonmovant. McCormick v. City of Fort Lauderdale, 333 F.3d 1 2 3 4 , 1243 (11th Cir. 2003). Likewise, the reviewing court must draw all justifiable in f e re n c e s from the evidence in the non-moving party's favor. Anderson, 477 U.S. at 255. A fter the non-moving party has responded to the motion for summary judgment, the court m u s t grant summary judgment if there is no genuine issue of material fact and the moving

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p a rty is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). III. S T A T E M E N T OF FACTS The Court has carefully considered the pleadings in this case and all documents s u b m itte d in support of the pleadings before the Court. The submissions of the parties, v ie w e d in the light most favorable to the non-moving party, establish the following relevant f a c t s :1 Plain tiff is an African-American female. Defendant is a deferred presentment services p ro v id e r2 operating in numerous states, including Alabama, and was Plaintiff's employer at a ll times relevant to this action.3 In pertinent part, Defendant conducts its operations as f o llo w s : Defendant operates its business and transacts loans through separate branches, or stores, throughout Alabama. Each store is staffed with a Store Manager and one or more h o u rly sales associates or customer service representatives. A District Manager (DSM) o v e rs e e s multiple stores within a given territory. The DSMs report to a Regional Director o f Operations (RDO), who typically oversees four to eight DSMs across multiple states. The

In making the factual findings set forth herein, the Court relies upon the parties' statements of uncontested facts in each of their briefs, as well as the Court's own findings based on the evidentiary materials submitted to the Court. The following recitation of facts is not exhaustive; the Court may set forth additional factual findings in discussing and clarifying the legal issues in other portions of this opinion.
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"Deferred presentment services" appears to be industry parlance for "payday

loans." Defendant is an equal opportunity employer and maintains policies against d is c rim in a tio n , harassment, and retaliation. 5
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R D O s report to the Vice President of Operations (VPO), Drew Haney. The VPO reports to th e President, Bob Manning, who is the highest ranking officer in Defendant's corporate s tr u c tu r e . P la in tif f applied for a Store Manager position with Defendant in August of 2006. P la in tif f was hired to manage the Phenix City, Alabama, store and began her employment on o r around August 28, 2006. At that time, her DSM was Clint Gordy and her RDO was Greg J o w e rs .4 At the time she was hired, Plaintiff was classified as an exempt employee for p u rp o s e s of the FLSA, meaning she would not be paid additionally for overtime worked, and h e r salary was listed as $27,000.00 per year. As a Store Manager, Plaintiff's duties included c e rta in managerial and supervisory duties in addition to the sales duties of her subordinate a ss o c ia te s. For example, a Sales Manager: "Coordinates allocation and use of company re so u rc e s to ensure efficient stable sales growth and collections;" "Works with Corporate M a rk e tin g Group to develop and execute local marketing plans and strategies including m a rk e tin g schedules, coverage maps, and customer appreciation programs;" "Coordinates p e r s o n n e l activities of staff (i.e., personnel scheduling, trains, appraises, rewards, motivates, d is c ip lin e s, and recommends terminations as appropriate);" "Recommends candidates for in ter v iew and selection;" "Prepares store reports and documents in accordance with e sta b lis h e d company policies and procedures;" "Maintains sales and operating records, and

Apparently, Defendant changed DSMs between Plaintiff's hiring and the date she began working, as Plaintiff interviewed with and was offered her position by DSM Karen Nickles. 6

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f ile s in accordance with established company policies and procedures including Federal and S ta te regulatory compliance." Job Description, Ex. 5 to Pl.'s Resp. (Doc. #34). Sometime after her hiring, Plaintiff was designated a Certified Trainer by Defendant. F o r each employee she trained, Plaintiff was eligible to receive a performance bonus in ad d ition to her salary. In June, 2007, Plaintiff discovered that a Caucasian male Store M a n a g er whom she had trained, Casey Benson, was being paid on an hourly basis, rather th a n a yearly salary, meaning he was eligible to receive overtime. Plaintiff raised this p e rc e iv e d discrepancy with her then DSM and RDO and admits that she was told that it was a ttrib u ta b le , at least in part, to the number of employees assigned to her store relative to that o f Mr. Benson. Deposition of Plaintiff at 160, Ex. 3 to Plaintiff's Resp. (Doc. #34).5 Later, i n or around November of 2007, Jack Steffen and Joe Paris replaced Gordy and Jowers as P la in tif f 's respective DSM and RDO. In December, 2007, Plaintiff was engaged in training a Caucasian woman, Pamela F lo re s, and an African-American woman, Rashada Brown, at her store. Flores was hired as a Store Manager while Brown was to be a sales associate. Both women were struggling with p a ss in g certain testing required by Defendant as a component of their training. Plaintiff p e r c e iv e d Steffen's reaction to each woman's struggles with passing the test as disparate.

In pertinent part, Defendant based its FLSA exemption classification for Store Managers upon whether or not the relevant store employed more than one associate in addition to the Store Manager. For larger stores, i.e., stores employing a Manager and two or more associates, the Store Manager was classified as exempt. See Job Description for Sales Manager II, Ex. 5 to Pl.'s Resp. (Doc. #34) at 2 ("Customarily and regularly supervises two or more fulltime equivalent Sales Associates."). 7

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M e m o from Crayton to Cook, Ex. 5 to Pl.'s Resp. (Doc. #34). On December 21, 2007, Flores to o k and passed the exam on her third try, outside the presence of Plaintiff. Plaintiff and F lo re s later argued over whether Flores was required to wait for Plaintiff before taking the te st. As the argument escalated, Plaintiff instructed Flores to leave the Phenix City store and w a it to hear from Steffen on the matter. Plaintiff and Flores both had phone conversations w ith Steffen after the argument. Steffen instructed Flores to go work at the Eufala, Alabama, s to re for the remainder of the day. Plaintiff was not pleased with this because she perceived F lo re s's conduct as disrespectful and she felt Steffen was condoning such behavior and/or s id in g with Flores. Later that day, Plaintiff prepared a memo describing the day's events and h e r belief that Steffen "has shown to [sic] types of treatment when dealing with" Flores and B ro w n during their training. She faxed the memo to Diane Cook, Defendant's Director of H u m a n Resources. On December 23, 2007, Plaintiff filed a charge of discrimination with the EEOC. The c h a rg e was primarily based upon Plaintiff's continuing concern about her categorization as a salaried employee exempt from overtime relative to other, Caucasian, Store Managers and h e r belief that she was unfairly compensated due to her race. Plaintiff further claimed that, d u e to her complaints to Gordy and Jowers about the situation, she had been subject to " u n w a rra n te d store and desk audits" and a "racially hostile environment." Thus, Plaintiff a lle g e d retaliation in addition to race discrimination. Charge of Discrimination, Ex. 14 to P l.'s Resp. (Doc. #34). Notice of the charge was provided to Defendant in January, 2008.

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O n January 25, 2008, Defendant reclassified Plaintiff as non-exempt for purposes of th e FLSA when one of Defendant's employees left Plaintiff's store and Defendant decided n o t to immediately replace the employee. The change in status required that, henceforth, P la in tif f would be compensated fully for any overtime worked. Despite the fact that Plaintiff had complained to Defendant and the EEOC about her exempt classification, Plaintiff viewed th is change in status as a demotion. Deposition of Plaintiff, Ex. 3 to Pl.'s Resp. (Doc. #34) a t 115-16. I n March of 2008, Defendant realigned certain of its stores with its auditors. D e f e n d a n t' s auditors operate largely independent of Defendant's DSMs and RDOs. That is, th e auditing department generally sets its own schedule for conducting audits, without input f ro m management at the store, district, or regional level. In March, 2008, auditor Dora Clark, a n African-American female, assumed responsibility over several stores in Alabama, in c lu d in g Plaintiff's store in Phenix City. Because Clark was new to those stores, her s u p e rv is o r instructed her to immediately audit the new stores, rather than abiding by the usual s c h e d u le for auditing stores. Clark states that this was consistent with the auditing

d e p a rtm e n t's customary practice. Clark conducted the audit of Plaintiff's store on March 262 7 , 2008, approximately fifty-seven days after the last audit of Plaintiff's store.6 Plaintiff w a s unaware the audit was planned and, according to Clark, was combative and defensive to w a rd Clark during the process. Plaintiff's store failed the audit. In response to the failed Because of Plaintiff's score on her January 29, 2008, audit, Defendant's customary policy indicated that her next audit would come ninety days later. 9
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a u d it, Plaintiff sent a very large fax or email to the President of the company and ViceP r e sid e n t of Operations in which she challenged various findings of the audit and raised o th e r concerns about the process. Defendant investigated her concerns, but ultimately d e te rm in e d that, while two of her contentions were meritorious, the appropriate revision of th e score still resulted in a failed audit for the store. On April 25, 2008, Plaintiff and Steffen had an email exchange regarding Plaintiff's d e c is io n to waive certain fees for two of her customers. Plaintiff first described the situation a n d why she felt that the fees should be refunded to the customers in an email around 11:45 a .m . Email from Crayton to Steffen, Ex. 40 to Pl.'s Resp. (Doc. #34). After investigating the m a tter, Steffen responded to Plaintiff's email around 1:36 p.m. and instructed her not to re f u n d the fees. Email from Steffen to Crayton, Ex. 41 to Pl.'s Resp. (Doc. #34). In an email la te r that day, Plaintiff indicated that she had already refunded the fees because she did not k n o w that Steffen had responded to her email and further defended her decision to do so. E m a il from Crayton to Steffen, Ex. 42 to Pl.'s Resp. (Doc. #34). Plaintiff faxed and/or e m a ile d VPO Haney and Diane Cook in Human Resources with her concerns about the s itu a tio n and her disagreement with Steffen over the refunds. In conjunction with Defendant's review of Plaintiff's audit-related complaints, and in response to other concerns with Plaintiff's performance and interactions, Defendant d e c id e d to issue some Performance Counseling Reviews (PCR), or written warnings, to P la in tif f . Accordingly, on May 2, 2008, Plaintiff was presented with three PCRs that had

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b ee n prepared by Cook after collaborating with Paris. The first PCR concerned Plaintiff's p ra c tic e of raising concerns about operational matters outside her direct chain of command, w h ic h was deemed a violation of Defendant's policy for resolving differences and m is u n d e rs ta n d in g s as set forth in the Operations Associate Handbook.7 The PCR identified th re e discrete instances in which it was determined that Plaintiff's conduct violated D e f en d a n t's policy: 1) Plaintiff's December 21, 2007, fax or email to Cook regarding S tef f e n 's handling of the Flores situation; 2) Plaintiff's March 28, 2008, fax or email to P r e sid e n t Manning and VPO Haney about the failed audit; and 3) Plaintiff's April 25, 2008, f a x or email to Cook and VPO Haney about her dispute with Steffen over her refund of fees to two customers. The PCR further instructed Plaintiff on how to raise operational concerns w h ic h involve her DSM, Steffen. Plaintiff was advised that she was required under the p o lic y to contact her RDO, Paris, if she is "unsatisfied" with Steffen. T h e second PCR given Plaintiff concerned her failed audit. The PCR attributed the fa ilu re to Plaintiff's "lack of knowledge, refusal to follow processes, policy & procedure o u tlin e d in e-manual." The PCR further instructed Plaintiff to read the e-manual and pass a ll subsequent audits. The final PCR concerned Plaintiff's refund of fees to two customers despite Steffen's

Specifically, the policy instructs that employees are to raise issues, not including harassment, with their "immediate supervisor." If the employee is not comfortable in doing so with their "immediate supervisor," or if the problem is not satisfactorily resolved after a complaint is made to such supervisor, then the employee is instructed to "meet with the next management level," and so on until the problem is resolved. See Resolving Differences and Misunderstandings, Ex. 37 to Pl.'s Resp. (Doc. #34). 11

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instruction not to refund the fees. The PCR stated that Plaintiff "ignored her manager's d e c is io n not to waive fees and had waived fees prior to permission from her manager" and fu rth er instructed Plaintiff to obtain "written approval from her DSM, Jack Steffen, before w a iv in g fees for a customer." In addition to the three PCRs, Paris also prepared a memorandum for Plaintiff which h e intended as a "summary" of the PCRs and as notice of other concerns held by Defendant re g a rd in g Plaintiff's performance and demeanor. The memorandum explained, at length, the p rob lem s caused by Plaintiff's repeated practice of complaining about operational matters o u ts id e her chain of command. The memorandum also raised Defendant's concern about the h ig h turnover rate of employees at Plaintiff's store and highlighted certain areas where P lain tiff 's performance was deemed insufficient in implementing certain of Defendant's sa les , marketing, and charitable initiatives. In light of these various concerns, Paris

d e te rm in e d to suspend Plaintiff's training certification, with the possibility of reinstatement u p o n her demonstration of improvement. Paris further advised Plaintiff that her failure to a d d re ss and correct the problems outlined in the memorandum would subject her to "further d is c ip lin a ry action up to and including termination." Memorandum from Paris to Crayton, E x . 7 to Pl.'s Resp. (Doc. #34). On May 2, 2008, Diane Cook sent a letter to Plaintiff conveying the results of D e f en d a n t's review of Plaintiff's complaint about the audit and counseling Plaintiff about c irc u m v entin g the chain of command when lodging complaints about operational matters and

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D e f en d a n t's concerns about Plaintiff's strained interactions with others. The letter informed th a t Plaintiff would no longer be allowed to train new hires and further warned Plaintiff that " [ i]m m e d ia te improvement [with respect to both "interpersonal relationships" and job p e rf o rm a n c e] is necessary or your employment will be terminated." Letter from Cook to C r a y to n , Ex. 26 to Pl.'s Resp. (Doc. #34). O n May 6, 2008, a Sales Associate at Plaintiff's store, Niquitta Williams, an African A m erican female, phoned Steffen and complained about Plaintiff's recent behavior toward h e r. She requested a transfer out of Plaintiff's store in lieu of resignation. Steffen relayed th e matter to Paris, who instructed him to discuss it with Cook. Eventually, Steffen rec o m m en d ed that Plaintiff be terminated based upon the continuing pattern of Plaintiff's b e h a v io r. In considering whether to terminate Plaintiff, Paris considered both the record of h e r interactions with different employees and the overall performance of her store during her tenu re. Paris determined that both concerns militated in favor of terminating Plaintiff's e m p lo ym e n t. Accordingly, Plaintiff was terminated on May 16, 2008. O n April 13, 2009, the EEOC issued a Determination in which it concluded that " [ t]e stim o n ia l and documentary evidence disclosed that Charging Party was singled out for c ritic is m and discharged from her position in retaliation for opposing a protected activity." E E O C Determination, Ex. 51 to Pl.'s Resp. (Doc. #34) at 1.8
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Somewhat confusingly, the Determination states that the evidence reviewed by the EEOC "established reasonable cause to believe that Charging Party was discriminated against because of her race," depsite apparently reaching a contrary conclusion in the very next paragraph when it states "the evidence obtained in the investigation established no reasonable 13

IV .

D IS C U S S IO N D ef en d an t has moved for summary judgment on each of Plaintiff's claims. The Court

w ill address each claim below. A. D is c r im in a tio n in violation of Title VII of the Civil Rights Act of 1964 and 4 2 U.S.C. § 1981. In Counts One and Three of the First Amended Complaint, Plaintiff claims that she w as treated "less favorably than her Caucasian counterparts in terms of pay and benefits[,]" in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., and 42 U .S .C . § 1981. First Amended Complaint (Doc. #26) at ¶¶ 32, 39. The factual allegations w h ich appear to support Plaintiff's discrimination claims consist of her charge that, " [ s]im ila rly situated Caucasian employees were classified as hourly employees making them elig ible to receive overtime pay[;]" and Defendant "continued to hire Caucasian managers u n d e r more favorable terms than" Plaintiff. Id. at ¶¶ 15, 19. Defendant contends that P l a in tif f has failed to state a prima facie claim of discrimination based on compensation b e c au s e her claim generally lacks evidentiary support and because she has failed to identify an y similarly situated individuals that received more favorable treatment by Defendant. In p a r tic u l a r, Defendant contends that Plaintiff and the supposed comparator she identifies, C ase y Benson, are not similarly situated because, unlike Plaintiff, Benson had several years o f relevant experience at the time of his hiring and had a college degree. Def.'s Memo (Doc. cause to believe that Charging Party was discriminated against because of her race[.]" EEOC Determination, Ex. 51 to Pl.'s Resp. (Doc. #34) at 1-2. 14

# 3 3 -1 ) at 24-25. Title VII "makes it unlawful for an employer to `discriminate against any individual w ith respect to his compensation, terms, conditions, or privileges of employment because of s u c h individual's race." Brown v. Alabama Dept. of Transp., 597 F.3d 1160, 1174 (11th Cir. 2 0 1 0 ) (quoting 42 U.S.C. § 2000e-2(a)(1)).9 "A prima facie claim of discrimination can be e s ta b lis h e d three ways: 1) direct evidence; 2) circumstantial evidence; or 3) statistical proof." D a v is v. City of Panama City, Fla., 510 F. Supp. 2d 671, 681 (N.D. Fla. 2007) (citing Earley v . Champion Int'l Corp., 907 F. 2d 1077, 1081 (11th Cir.1990)). Plaintiff has offered no d ire c t evidence of racial discrimination by Defendant. Rather, Plaintiff's First Amended C o m p la in t appears to rely upon only circumstantial evidence in support of her claim of d i s c r im i n a t i o n . Accordingly, the Court must utilize the burden-shifting framework

e sta b lis h e d in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny.1 0

While Plaintiff also presents a claim under § 1981, "the analysis under [that] claim mirrors that under Title VII." Brown, 597 F.3d at 1174 n.6; see also Standard v. A.B.E.L. S e rv ., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) ("Both of these statutes [Title VII and § 1981] have the same requirements of proof and use the same analytical framework, therefore we shall explicitly address the Title VII claim with the understanding that the analysis applies to the § 1981 claim as well."). See Standard, 161 F.3d at 1332 ("When a plaintiff offers circumstantial e v id e n c e to prove a Title VII claim, we use the analytical framework established by the S u p r e m e Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 [] (1973). Under this f ra m e w o rk , the plaintiff must establish a prima facie case of discrimination. The e sta b lis h m e n t of a prima facie case creates a presumption of discrimination. The e m p lo ye r must then offer legitimate, nondiscriminatory reasons for the employment a c tio n to rebut the presumption. If the employer successfully rebuts the presumption, the b u rd e n shifts back to the plaintiff to discredit the proffered nondiscriminatory reasons by sh o w ing that they are pretextual."). 15
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U n d e r the McDonnell Douglas framework, to establish a prima facie case of d is c rim in a tio n under Title VII the plaintiff must show: "(1) she is a member of a protected c la ss ; (2) she was subjected to an adverse employment action; (3) her employer treated s im ila rly situated employees outside of her protected class more favorably than she was tre a te d ; and (4) she was qualified to do the job." Burke-Fowler v. Orange County, Fla., 447 F .3 d 1319, 1323 (11th Cir. 2006). Regarding the third prong of the inquiry, "[t]he plaintiff a n d the employee she identifies as a comparator must be similarly situated in all relevant re sp e c ts . The comparator must be nearly identical to the plaintiff to prevent courts from s e c o n d -g u e ss in g a reasonable decision by the employer." Wilson v. B/E Aerospace, Inc., 376 F .3 d 1079, 1092 (11th Cir. 2004) (internal quotation omitted). Plaintiff now concedes that, "[i]n light of the evidence developed during the discovery p roc ess, . . . she cannot establish the third prong of her prima facie case in light of Benson's e d u c atio n and experience [and that] . . . summary judgment is due to be granted on that c la im ." Pl.'s Resp. (Doc. #34) at 36-37 (citation omitted). Accordingly, summary judgment s h a ll be granted in favor of Defendant on Plaintiff's Title VII and § 1981 discrimination c la im s . B. R e ta lia tio n in violation of Title VII and § 1981.

In Counts Two and Three of her First Amended Complaint, Plaintiff claims that she w a s unlawfully retaliated against in violation of Title VII and § 1981 when Defendant a lleg e d ly "subject[ed] her to harsher work conditions and reprimands" and eventually

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" te rm in a t[ e d ] her employment because she had engaged in protected activity by complaining a b o u t racially discriminatory conduct against herself and others." First Amended Complaint (D o c. #26) at ¶¶ 35-36, 39. Plaintiff describes Defendant's non-termination retaliatory co n d u ct as follows: 1) failing to timely respond, or not responding altogether, to Plaintiff's " re q u e sts for assistance regarding matters requiring immediate attention at her location;" " in c r e a s e d surveillance of [Plaintiff] at her store;" failing "to timely conduct [Plaintiff's] p e rf o rm a n c e review thereby delaying deserved pay increase;" demoting Plaintiff "by re m o v in g her designation as a Certified Training Manager;" carrying out "repeated and u n w a rra n te d audits" of Plaintiff's store; forcing Plaintiff "to work every weekend until f u rth e r notice;" ordering Plaintiff "to provide the District Manager with a weekly roster of h e r schedule;" "issuing multiple, undeserved and unwarranted reprimands to" Plaintiff; and " re p e a te d ly threaten[ing] to terminate" Plaintiff's employment. Id. at ¶ 25. Plaintiff further c la im s that the May 2, 2008, PCRs were based on "stale and questionable incidents," and that h e r eventual termination was also an incident of retaliation. Id. at ¶¶ 26, 28. D e f en d a n t contends that it is entitled to summary judgment on any theory of re talia tio n asserted by Plaintiff because her internal complaints about alleged disparate tre a tm e n t of herself or others did not amount to a protected activity, her allegations c o n c e r n in g discipline or "increased surveillance" do not suffice as materially adverse e m p lo ym e n t actions, and she cannot show that any of Defendant's justifications for its a c tio n s are pretext. Defendant further claims that, as to Plaintiff's retaliatory discharge

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c la im , Plaintiff has failed to show a prima facie case of retaliation and, moreover, Plaintiff is unable to show that Defendant's proffered reasons for terminating Plaintiff are pretext. D e f .'s Memorandum (Doc. #33-1) at 26-36. Finally, Defendant also asserts that, in failing to address Defendant's arguments with respect to Defendant's alleged non-termination c o n d u c t, Plaintiff has essentially abandoned her claims that Defendant's non-termination c o n d u c t was unlawfully retaliatory. Def.'s Reply (Doc. #35) at 2-3. 1. P la i n t if f' s non-termination retaliation claims.

T h e Court will first address Defendant's claim that Plaintiff has abandoned all of her r e ta lia tio n claims excepting retaliatory discharge. As discussed above, Plaintiff's First A m e n d e d Complaint presents several allegations of retaliatory conduct less than termination. D e f en d a n t addressed those claims, contending that 1) Plaintiff's complaint in the December 2 1 , 2007, memorandum to Cook about Steffen's alleged disparate treatment of Brown and F lo re s does not constitute protected activity, 2) that Plaintiff cannot establish a causal link b e tw e e n Defendant's non-termination conduct and Plaintiff's filing of a charge of d isc rim in a tio n , 3) that Defendant's actions complained of by Plaintiff do not constitute m aterially adverse employment actions, and 4) Plaintiff cannot establish that Defendant's ju s tif ic a tio n for any actions taken are pretextual. In responding to Defendant's motion for s u m m a r y judgment as to Plaintiff's retaliation claims, Plaintiff wholly failed to address D e f e n d a n t's arguments respecting Defendant's alleged non-termination retaliatory conduct. S e e Pl.'s Response (Doc. #34) at 37-42. Instead, Plaintiff limited her discussion of retaliation

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to her claim of retaliatory discharge. See, e.g., id. at 37 ("Further, there can be no dispute th a t Crayton suffered an adverse employment action when she was terminated."). Thus, D e f e n d a n t contends, all such claims have been abandoned. The Court agrees with Defendant. Plaintiff's failure to address Defendant's many a rg u m e n ts with respect to perceived infirmities with her non-termination retaliation claims a m o u n ts to an abandonment of such claims. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1 3 2 2 (11th Cir. 2001) (finding claim abandoned, and affirming grant of summary judgment, as to claim presented in complaint but not raised in initial response to motion for summary ju d g m e n t); Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1 3 0 1 , 1325 (11th Cir. 2000) (finding claim abandoned where it was not briefed and argued in district court in party's response to motion for summary judgment or in party's own motion f o r summary judgment). See also Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 182 F.3d 8 8 8 , 898 (11th Cir. 1999) (affirming "the unremarkable position that assertions made in the p l e a d in g s (e.g., complaint or answer), but not made in opposition to a motion for summary ju d g m e n t, need not be considered by the district court or the appellate court in ruling on the m o tio n for summary judgment."); Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (1 1 th Cir. 1995) ("In opposing a motion for summary judgment, `a party may not rely on his p lea d in g s to avoid judgment against him. There is no burden upon the district court to distill ev ery potential argument that could be made based upon the materials before it on summary ju d g m e n t. Rather, the onus is upon the parties to formulate arguments; grounds alleged in

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the complaint but not relied upon in summary judgment are deemed abandoned."). A c c o rd in g ly, and upon consideration of these precedents, the Court finds that Plaintiff has ab an d o n ed her non-termination retaliation claims due to her failure to address Defendant's a rg u m e n ts respecting these claims or otherwise provide support for them in her response to th e motion for summary judgment.1 1 2. P la in tiff's claim of retaliatory termination. As with

The Court now turns to Plaintiff's claim of retaliatory termination.

d i sc r im in a t io n claims predicated on Title VII and § 1981, the elements required to establish a retaliation claim under both Title VII and § 1981 are the same. Goldsmith v. Bagby E le v a to r Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008). "To make a prima facie showing o f retaliation, the plaintiff must show: (1) that she engaged in statutorily protected conduct; (2 ) that she suffered adverse employment action; and (3) that there is `some causal relation' b e tw e e n the two events." Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1268 (1 1 th Cir. 2010) (quoting McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008)).

The Court here notes that, in the narrative section of her response labeled "Contested Facts," Plaintiff does recount many of the factual circumstances and developments which appear to represent the many non-termination acts of retaliation alleged in the Amended Complaint. See Pl.'s Resp. (Doc. #34) at 11 (regarding change in FLSA status); id. at 14 (regarding alleged "threats" to terminate Plaintiff); id. at 17 (regarding "unwarranted audit" and revocation of Plaintiff's trainer designation); and id. at 18-22 (regarding reprimands given Plaintiff). However, the Court cannot turn a blind eye to this Circuit's precedent and Plaintiff's complete failure to address Defendant's assertions regarding the many perceived infirmities with these claims. Merely providing a narrative statement which encompasses some of the factual allegations of the complaint, under the rubric "Contested Facts," does not suffice as a defense to a motion for summary judgment or cure Plaintiff's effective abandonment of such claims. 20

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P la in tif f predicates her retaliatory discharge claim on her filing of an EEOC charge in December, 2007, and her termination in May of 2008. See Pl.'s Resp. (Doc. #34) at 37. D e f en d a n t does not dispute that these events satisfy the first two prongs of the prima facie in q u iry as statutorily protected activity and adverse employment action. However, Defendant d o es challenge whether Plaintiff has satisfied the third prong of the inquiry requiring Plaintiff to show a causal connection between her protected activity and the decision to terminate her e m p lo ym e n t. "With respect to the third element, a plaintiff merely has to prove that the p ro te c te d activity and the negative employment action are not completely unrelated. H o w e v e r , to satisfy the causal link prong, a plaintiff must, at a minimum, generally establish th a t the defendant was actually aware of the protected expression at the time the defendant to o k the adverse employment action." Sridej v. Brown, 361 F. App'x 31, 35 (11th Cir. 2010) (in te rn a l quotations and citations omitted). Defendant claims that there is insufficient te m p o r a l proximity between the EEOC charge and the decision to terminate to satisfy the c a u sa tio n inquiry and that, moreover, the intervening circumstance of Plaintiff's conduct with N ia q u itta Williams breaks any chain of causation. Defendant first contends that the amount of time between Plaintiff's protected activity a n d Defendant's adverse employment action defeats any assertion of a causal connection. M o re than four months passed between Defendant's receipt of notice of the charge and the d e c is io n to terminate. Indeed, the Eleventh Circuit Court of Appeals has held that, "in the a b se n c e of any other evidence of causation, a three and one-half month proximity between

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a protected activity and an adverse employment action in insufficient to create a jury issue o n causation." Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006). Plaintiff's response to this hurdle is two-pronged. On the one hand she asserts that Steffen was the relevant d e c isio n maker, and that his testimony that he learned of Plaintiff's EEOC charge in late A p ril demonstrates any requisite temporal proximity. In the alternative, Plaintiff asserts that, e v e n crediting Paris and/or Cook as the pertinent decision makers, the evidence she has p ro v id e d demonstrating the "deterioration" of her workplace environment beginning in J a n u a ry, 2008, and continuing through the date of her termination provides "other evidence o f causation" sufficient to satisfy the causal relation prong. T h e Court finds that, to the extent the decision to terminate must be attributed to a n yo n e in resolving the causation inquiry, while it is clear that Steffen did suggest that P la in tif f be terminated, the ultimate decision to terminate clearly came from Paris and Cook a n d was preceded by investigation independent of Steffen's recommendation. See

D e c la ra tio n of Paris, Ex. 4 to Def.'s Mot. For Summary Judgment (Doc. #33) at ¶¶ 17-19; D e c la r a tio n of Cook, Ex. 3 to Def.'s Mot. For Summary Judgment (Doc. #33) at ¶¶ 18-19. B e c au s e the true decision makers in this case acted independently of any purportedly "biased rec o m m en d atio n " on the part of Steffen, Plaintiff's termination does not fit within the "cat's p a w theory" of causation, which requires that "the plaintiff shows the decisionmaker f o llo w e d an illegally-biased recommendation without independently investigating the re a so n in g behind it." Hanford v. Geo Group, Inc., 345 F. App'x 399, 406 (11th Cir. 2009).

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A cc o rdin g ly, in judging the temporal proximity of Defendant's knowledge of Plaintiff's p ro te c te d activity and the decision to terminate her employment, the Court considers January, 2 0 0 8 , the pertinent date for attributing knowledge to Defendant. G iven the more than four month gap between Defendant's awareness of Plaintiff's p ro te c te d activity and her termination, Plaintiff must present "other evidence of causation" in order to "create a jury question on causation." Drago, 453 F.3d at 1308. The Eleventh C irc u it has recently remarked that, "[i]n the absence of close temporal proximity between the p r o te c te d activity and the employer's adverse action, a plaintiff may be able to establish c a u sa tio n where intervening retaliatory acts commenced shortly after the plaintiff engaged in a protected activity." Boyland v. Corrections Corp. of America, 2010 WL 3064420 at *2 (1 1 th Cir. Aug. 6, 2010). Plaintiff contends that the "deterioration of [her] work environment b e g in n in g immediately after she filed her EEOC charge (the untimely audit, the removal of h e r trainer designation, the three May 1, 2008 PCRs, etc.)" suffice as evidence of such c a u sa tio n . Pl.'s Resp. (Doc. #34) at 40. Plaintiff contends that the Court should "infer that e a ch of these matters props up the temporal proximity of the mere four months between n o tic e of [Plaintiff's] EEOC charge and termination." Id. Defendant, on the other hand, a ss e rts that "any alleged continuing actions do not negate the lack of causation between when P lain tiff filed her EEOC Charge and when [Defendant] ended her employment." Def.'s R e p ly (Doc. #35) at 20. P la in tif f 's reliance on the several alleged acts of non-termination retaliatory conduct

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b y Defendant in order to "prop up" her claim that her termination is causally connected to h e r EEOC charge is problematic. For purposes of a Title VII retaliation claim, an actionable " a d v ers e employment action" includes not just "an ultimate employment decision or s u b s ta n tia l employment action," but also one "which has a materially adverse effect on the p la in tif f , irrespective of whether it is employment or workplace-related . . . [and] `might have d is s u a d e d a reasonable worker from making or supporting a charge of discrimination." C ra w fo rd v. Carroll, 529 F.3d 961, 973-74 (11th Cir. 2008) (quoting Burlington N. & Santa F e Ry. Co. v. White, 548 U.S. 53, 68 (2006)).1 2 However, as discussed above, Plaintiff has f a ile d to rebut Defendant's contention that each action about which she complains is either n o t cognizable as a materially adverse employment action or was based on legitimate reasons re la te d to Plaintiff's conduct and performance, and not pretext for retaliation. In the absence o f affirmative argument by Plaintiff, and based on the record before the Court, the Court f in d s that the purported "intervening retaliatory acts" do not provide the requisite inference o f causation. P la in tif f claims that the March 26-27, 2008, audit was "untimely" and "unwarranted." A t the outset, the Court struggles to comprehend how the mere fact of carrying out an audit o f Plaintiff's store to ensure her compliance with company procedures and standards, even

While "[t]he materiality of the alleged adverse action is judged by an objective standard," Foshee v. Ascension Health-IS, Inc., 2010 WL 2511384 at *2 (11th Cir. 2010), the Eleventh Circuit has remarked that Supreme Court precedent "strongly suggests that it is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered `materially adverse' to [her] and thus constitute adverse employment actions." Crawford, 529 F.3d at 973 n.13. 24

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if one assumes it to be "untimely," qualifies as a materially adverse employment action. In a n y event, Plaintiff has offered no evidence to rebut Defendant's assertion that the audit was c a rrie d out in full compliance with Defendant's normal practice for newly aligned stores or th a t other stores were similarly audited out-of-time due to this policy.1 3 Plaintiff also has not re b u tte d Defendant's contention that the decision to audit Plaintiff's store did not come from S tef f e n , Paris, Cook, or anyone else involved in the decision to terminate Plaintiff's e m p l o ym e n t. Nor has Plaintiff rebutted Defendant's assertion that the auditor and her s u p e r v is o r were not even aware that Plaintiff had engaged in protected activity at the time o f the audit. Accordingly, the audit simply does not suffice as an "intervening retaliatory act" f o r purposes of showing causation. L ik e w is e , the Court finds that the removal of Plaintiff's trainer designation does not s u f f ic e as an intervening retaliatory act for purposes of establishing causation. First, Plaintiff h a s not challenged Defendant's assertion that the suspension of her training authority did not re su lt in a loss of income to Plaintiff because Defendant did not hire any new employees b e tw e e n the time her certification was suspended and her termination. See Def.'s Mot. (Doc. # 3 3 ) at 12. Second, and more fundamentally, even assuming the suspension was materially

See Declaration of Clark, Ex. 6 to Def.'s Mot. For Summary Judgment (Doc. #33) at ¶ 4 ("Because those stores [Eufala and Phenix City] had changed auditors, Ms. Freed directed me to conduct audits immediately upon my assuming responsibility for the stores and not in accordance with the Company's usual audit schedule . . . . This directive was consistent with Ms. Freed's practice that had been in place at least since I became an auditor in 2004 and has been consistently applied since March 2008. In other words, when an auditor is assigned to a new store, that auditor is supposed to conduct an immediate audit without regard to the store's prior audit score and the Company's usual audit schedule."). 25

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a d v e rs e , Plaintiff has not rebutted Defendant's assertion that the decision to suspend P la in tif f 's trainer certification was reasonable and justified, given her failed audit and other c irc u m s ta n c es , and not pretext for retaliation. "If the employer offers legitimate reasons for th e employment action, the plaintiff must then demonstrate that the employer's proffered e x p la n a tio n is pretext for retaliation." Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1 9 9 7 ) . To show such pretext, "[t]he plaintiff must meet the reason proffered head on and re b u t it." Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007). "In o r d e r to do so, [Plaintiff] must demonstrate `such weaknesses, implausibilities, in c o n site n c ies , incoherencies, or contradictions in the employer's proffered legitimate rea so n s for its action that a reasonable factfinder could find them unworthy of credence.'" M c C a n n v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008) (quoting Cooper v. Southern Co., 3 9 0 F.3d 695, 725 (11th Cir. 2004)). It is clear that Defendant's decision to discontinue a llo w in g Plaintiff to train new hires was based at least as much on Plaintiff's failed audit s c o re as her strained interactions with others. See Memorandum from Paris to Crayton, Ex. 7 to Pl.'s Resp. (Doc. #34) at 2 ("The potential to regain this position does exist and will be c o n s id e r e d but is entirely dependent on your actions, performance, ability and willingness t o address and correct everything I have laid out in this summary as well as achieving and m a in tain in g acceptable audit scores."); Letter from Cook to Crayton, Ex. 26 to Pl.'s Resp. (D o c . #34) at 1 ("We must ensure you have a clear understanding of the regulations and e x p e c tatio n s in the following areas where audit points were low. At this time, we will refrain

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f ro m sending new hires to your store for training."). While Plaintiff has expended much e f f o rt disputing Defendant's contention that her workplace demeanor was unprofessional at tim es, Plaintiff does not assert that she did not actually fail the audit or that Defendant's re v ie w of her internal challenge of the audit was incorrect or unfair. Plaintiff also does not s u g g e st that it would be unreasonable for Defendant to suspend the training certification of an y trainer whose store failed an audit. Thus, Plaintiff has failed to show that Defendant's d e c is io n to suspend her training certification was pretext for retaliation. P la in tif f also claims that the three PCRs she was given as reprimands in May, 2008, " p ro p up" her claim that her EEOC challenge is causally linked to her termination. Plaintiff w a s reprimanded for repeatedly violating company policy by complaining about operational m a tters directly to upper-level management, for her failed audit, and for refunding certain f e es without approval from her supervisor. In each instance, the PCR simply alerted Plaintiff to specific instances of her conduct which Defendant deemed unacceptable and provided her w ith clear instructions going forward. See PCR I, Ex. 36 to Pl.'s Resp. (Doc. #34) at 4 (" Im m e d ia te ly, Twanna is to follow the policy and procedures as outlined in the Operations A s s o c ia te Handbook for resolving differences and misunderstandings when she disagrees w i t h her manager, Jack Steffen. She is then to take the issue to her RDO, Joe Paris, then E V P , Drew Haney, then President, Bob Manning."); PCR II, Ex. 38 at 3 ("Read e-manual, a c h ie v e passing score on follow up and all subsequent audits."); PCR III, Ex. 39 at 3 (" T w a n n a must have written approval from her DSM, Jack Steffen, before waiving fees for

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a customer."). Plaintiff does not specify how any of these reprimands would be viewed by a reasonable person as having a "materially adverse effect" on Plaintiff or otherwise dissuade a reasonable employee from complaining of discrimination. Absent such evidence, or any o th e r tangible evidence of consequences for her employment caused by the reprimands, the P C R s do not constitute materially adverse employment actions for purposes of establishing c a u sa tio n . Moreover, even assuming that the PCRs did somehow constitute materially a d v e rs e actions, Plaintiff has not sufficiently rebutted Defendant's assertion that each of the P C R s was issued because of Plaintiff's various violations of policy and/or to correct future b eh av ior, rather than as pretext for retaliation.1 4 Accordingly, the three PCRs do not support a finding of causation between Plaintiff's EEOC charge and her termination. T h e numerous other actions identified by Plaintiff in her complaint as retaliatory, but n o t otherwise discussed in her response to the Motion for Summary Judgment or explicitly re f ere n c ed in her contention that certain acts "prop[] up the temporal proximity of" her E E O C charge and termination, are similarly insufficient for the purpose asserted.1 5 Plaintiff In her narrative statement of "Contested Facts," Plaintiff continues to quibble with the justification supporting each PCR. See Pl.'s Resp. (Doc. #34) at 18-20. However, Plaintiff has not provided any evidence that she did not repeatedly report operational concerns outside her chain of command, that she did not fail her audit, and that she did have permission from her supervisor to refund the fees at issue in PCR III. Moreover, Plaintiff has not provided any evidence that the PCRs had any effect other than to instruct her on how to handle such matters in the future. Upon the Court's review, these acts appear to include: failing to timely respond, or not responding altogether, to Plaintiff's "requests for assistance regarding matters requiring immediate attention at her location;" "increased surveillance of [Plaintiff] at her store;" failing "to timely conduct [Plaintiff's] performance review thereby delaying deserved pay increase;" forcing Plaintiff "to work every weekend until further notice;" ordering Plaintiff "to provide the 28
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d o e s not endeavor to explain how each of these acts would be viewed by a reasonable person as having a materially adverse effect and why Defendant's explanation for each is mere p r e te x t for retaliation.1 6 Suffice it to say that the acts which Plaintiff alleged in the First A m en d ed Complaint do not qualify, in isolation or aggregated, as "intervening retaliatory a c ts " for purposes of "prop[ping] up the temporal proximity" or otherwise establishing c a u sa tio n . G iv e n all of the above, the Court finds that, because of the lack of temporal proximity b e tw e e n Plaintiff's protected activity and her termination, and because of the absence of o th e r evidence of causation, Plaintiff has failed to present a jury question on the issue of c a u sa tio n and has therefore failed to state a prima facie claim of retaliatory termination. A c c o rd in g ly, Defendant is entitled to summary judgment as to Plaintiff's claim that she was re ta lia te d against in violation of Title VII and 42 U.S.C. § 1981. C. P la in tiff's Fair Labor Standards Act Claim.

In Count Four of her amended complaint, Plaintiff claims that "Defendant willfully

District Manager with a weekly roster of her schedule;" and "repeatedly threaten[ing] to terminate" Plaintiff's employment. First Amended Complaint (Doc. #26) at ¶ 25. Plaintiff does not describe most of the actions in precise detail so that the Court may subject them to the requisite analysis. The Court is left to speculate about the particulars of Plaintiff's unanswered "requests for assistance" and "increased surveillance." Moreover, several of these acts appear attributable to Steffen who, as Plaintiff has asserted, was not even aware of Plaintiff's EEOC charge at the time he failed "to timely conduct [Plaintiff's] performance review," required her "to work every weekend," and "provide the District Manager with a weekly roster of her schedule." Of course, Plaintiff also has not rebutted Defendant's assertions that these actions by Steffen applied to all Store Managers within his district and thus cannot be retaliatory as to Plaintiff. 29
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a n d wrongfully misclassified [her] as an employee exempt from the provision of the FLSA," that Defendant "willfully violated the provisions of the FLSA by failing to compensate [her] w ith overtime pay for work weeks in which she worked more than forty hours," and that " D e f e n d a n t failed to maintain accurate records as required by the FLSA with respect to [P lain tiff ], including records sufficient to accurately determine [Plaintiff's] wages and hours o f employment." First Amended Complaint (Doc. #26) at ¶¶ 42-44.1 7 Plaintiff's response to the motion for summary judgment clarifies that she "asserts that she was wrongfully c la ss if ie d as exempt from her hire until January 30. 2008." Pl.'s Resp. (Doc. #34) at 43-44. D e f en d a n t argues that it is entitled to summary judgment as to this claim because Plaintiff w as properly classified during that time as an exempt employee for purposes of the FLSA's o v e rtim e requirement. Def.'s Brief (Doc. #33-1) at 15. Specifically, Defendant asserts that P la in tif f was properly classified as exempt under three different exemptions recognized u n d e r the FLSA - the executive, the administrative, and the combination. Plaintiff denies that any of the exemptions are applicable to her. T h e Eleventh Circuit has recently addressed the purpose and scope of the FLSA and its exemptions: T h e FLSA was enacted in 1938 to aid the unprotected, unorganized, a n d lowest paid of the nation's working population; that is, those employees w h o lacked sufficient bargaining power to secure for themselves a minimum s u b s is te n c e wage. To further goals of protecting employees from abusive la b o r practices, Congress set federal standards regarding minimum wages and Plaintiff did not present this claim in her original complaint filed on July 31, 2009. The First Amended Complaint was filed on November 19, 2009. 30
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c h ild labor, and established a forty-hour workweek. There are provisions for a workweek beyond the forty hours set by the s ta tu te . If an employee works more than forty hours in a week, the employee m u s t be compensated at least time-and-a-half for each hour over forty. H o w e v e r, if the employee works in a bona fide executive, administrative, or p ro f e s s io n a l capacity, then the overtime pay requirements do not apply. . . . T h e employer bears the burden of proving that an employee is exempt f ro m overtime payments. FLSA provisions are to be interpreted liberally in the em p lo yee 's favor and its exemptions construed narrowly against the employer. R o c k v. Ray Anthony Intern., LLC, 2010 WL 2089636 at *1-*2 (11th Cir. May 26, 2010) (in te rn a l quotations and citations omitted). Against this backdrop, the Court will consider w h e th e r there is a genuine issue of material fact respecting whether any of the exemptions a ss e rte d by Defendant are applicable. 1. T h e Administrative Exemption.

In relevant part, the Code of Federal Regulations establishes a three-part test to d e te rm in e whether an employee fits within the administrative exemption: 1 ) the employee must be compensated "on a salary basis at a rate of not le ss than $455 per week"; 2 ) the employee's "primary duty is the performance of office of nonm anual work directly related to the management or general business operations o f the employer or the employer's customers;" and 3 ) the employee's "primary duty includes the exercise of discretion and in d e p e n d e n t judgment with respect to matters of significance." 2 9 C.F.R. § 541.200; see also Rock, 2010 WL 2089636 at *2. Plaintiff concedes that

D e f en d a n t can establish the first and second prongs of the administrative exemption, but co n tend s that there is a genuine issue of fact with respect to the applicability of the third

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p ro n g , i.e., whether her "primary duty include[d] the exercise of discretion and independent ju d g m e n t with respect to matters of significance." Pl.'s Resp. (Doc. #34) at 48. According to the Eleventh Circuit, with respect to the third prong, Courts must determine whether the employee's job involves the comparison a n d evaluation of possible courses of conduct, and acting or making a decision a f ter the various possibilities have been considered. The ultimate question is w h e th e r the employee has the ability to make an independent choice, free from im m e d ia te direction or supervision. Although there is no requirement that the e m p l o ye e operate free from oversight, the employee's duties must involve m o re than the use of skill in applying well-established techniques, procedures o r specific standards described in manuals and other sources. R o c k , 2010 WL 2089636 at *3 (internal citations and quotations omitted). T h e Court has previously listed the particular management-related duties germane to P la in tif f 's position which are set out in her job description.1 8 Defendant further describes the d u ties and expectations of its Store Managers as follows: "Store Managers . . . manage the day-to-day operations of each store, p a rtic u la rly to supervise the sales associates assigned to each store. Indeed, m a n a g in g each store and supervising the full-time sales associates is the p rim a ry responsibility of a Store Manager . . . . Store Managers also make c a sh deposits for each of their stores. They also apportion the work between th e ir direct reports. Store Managers also plan and ensure compliance with the

According to the job description, these included: "Coordinates allocation and use of company resources to ensure efficient stable sales growth and collections;" "Works with Corporate Marketing Group to develop and execute local marketing plans and strategies including marketing schedules, coverage maps, and customer appreciation programs;" "Coordinates personnel activities of staff (i.e., personnel scheduling, trains, appraises, rewards, motivates, disciplines, and recommends terminations as appropriate);" "Recommends candidates for interview and selection;" "Prepares store reports and documents in accordance with established company policies and procedures;" "Maintains sales and operating records, and files in accordance with established company policies and procedures including Federal and State regulatory compliance." Job Description, Ex. 5 to Pl.'s Resp. (Doc. #34). 32

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b u d g e t for their respective stores. S to re Managers oversee the operations of their assigned branch. Their d u tie s include, but are not limited to: recruiting new sales associates; in te rv ie w in g and hiring sales associates candidates1 9 ; disciplining sales a ss o c iate s; recommending termination of any associates under their su p e rv isio n if necessary; and reviewing sales associates' weekly audits of held c h e c k s and other transactions to ensure compliance with Company procedures. T h e audits were important because of applicable government regulations that a p p ly to financial institutions like Valued Services. If Valued Services is in v io la tio n of those regulations, it could be subject to stiff fines or other p u n is h m e n t. . . . [Plaintiff was also asked] to complete Daily/Weekly Goal S h e e ts , which sets out the weekly sales and collections goals for the stores and d e ta ils the marketing activities each Store Manager planned for the week. A lth o u g h the Company typically sets some monthly targets, the Store M a n a g ers have discretion to set their own sales and collections goals for each w ee k , without [the] input or approval [of her District Manager].

Declaration of Steffen, Ex. 6 to Def.'s Mot. (Doc. #33) at ¶¶ 4-5. Defendant also claims that P lain tiff "often disciplined the sales associates who reported to her;" "executed agreements w ith employees on behalf of the Company;" and further asserts that Store Mangers supervise their sales associates by giving them daily/weekly/monthly tasks, se ttin g a work schedule, giving them goals, following up behind them to e n su re compliance, resolving any internal conflicts or issues, providing g u id a n c e and feedback, and continuously training. Store Managers review th e i r budget and maintain cost within budget limits (payroll dollars, utilities, s u p p lie s, etc.). They make decisions regarding how and when best to market th e business locally via sending out mailers, calling inactive customers, v is itin g business partners, dropping fliers, and other activities they deem e f f e c ti v e . Id . at ¶¶ 8, 9, & 10. Based upon her discharge of these myriad duties and expectations,

Of course, Plaintiff's authority to hire associates was not absolute. However, her recommendations as to hiring were considered and ordinarily given deference during the decision making process. See Declaration of Steffen, Ex. 6 to Def.'s Mot. (Doc. #33) at ¶ 6. 33

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D e f en d a n t contends that Plaintiff satisfies the administrative exemption because Plaintiff performed the following tasks that demonstrate that her duties `in c lu d e d ' the exercise of discretion: (1) she performed work that substantially a f f e c ted business operations to a significant degree; (2) she had authority to c o m m it Valued Services in matters that had substantial impact, including m ar k etin g plans and agreements with sales associates; (3) she audited the work o f sales associates; (4) she was involved in planning and setting long or shortter m goals for her store; (5) she was responsible for ensuring compliance with re g u la to ry requirements; and (6) she completed critical reports directly related to the management of her store. D e f .'s Memorandum of Law (Doc. #33-1) at 20. In the face of these many recitations of the duties and expectations related to P la in tif f 's position and Defendant's assertion that Plaintiff fits squarely within the a d m in is tra tiv e exception, Plaintiff's response is tepid by comparison. Plaintiff's contention th a t her "primary duty" did not include "the exercise of discretion and independent judgment w ith respect to matters of significance" is predicated entirely on a brief excerpt of Paris's m e m o r a n d u m to Plaintiff at the time she was given the three PCRs in May, 2008, in which P a ris admonished Plaintiff that "It must be made clear that while you are a `Manager' of a s t o r e , you do not possess the right or the authority to interpret any company policies or p ro c e d u re s." See Memo from Paris to Crayton, Ex. 7 to Pl.'s Resp. (Doc. #34) at 1. For P la in tif f, these words "clearly demonstrate how Valued Services viewed [Plaintiff's] ex