Lozano v. Burlington Coat Factory of Alabama, LLC

Filing 25

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/30/13. (SAC )

FILED
2013 Sep-30 PM 02:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANDRINA LANDO LOZANO,
Plaintiff
vs.
BURLINGTON COAT FACTORY
OF ALABAMA, LLC,
Defendant

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Case No. 2:11-cv-03475-KOB

MEMORANDUM OPINION
On August 21, 2013, the magistrate judge entered his report and
recommendation, recommending that the court grant the Defendant’s summary
judgment motion as to the Plaintiff’s Title VII claims in Counts I and II of the
Complaint but deny the motion as to the FLSA claims in Count III. (Doc. 22). On
September 4, 2013, the Defendant filed objections to the magistrate judge’s report
and recommendation, along with a brief supporting its objections. (Docs. 23 &
24). The Defendant argues that summary judgment should be granted on the
FLSA count because the evidence of the Plaintiff’s managerial duties comports
with the Department of Labor regulations for determining whether an employee’s
job duties qualify for the executive exemption. The Plaintiff filed no objections.

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The court has carefully considered the entire record in this case, including
the magistrate judge’s report and recommendation and the Defendant’s objections
and brief. The court hereby ADOPTS the report of the magistrate judge and
further ACCEPTS his recommendations as to the Title VII counts. The court
agrees that it should GRANT the Defendant’s motion for summary judgment as to
the Plaintiff’s Title VII claims in Counts II and III for racial discrimination,
racially hostile environment, and retaliation based on her complaints of sexual
harassment. The court finds that no genuine issue of material fact exists as to any
of the Plaintiff’s Title VII claims and that the Defendant is entitled to judgment as
a matter of law.
However, as to the FLSA issue in Count III, the court disagrees with and
rejects the magistrate judge’s finding that a disputed issue of fact as to the
Plaintiff’s job duties precludes summary judgment as to whether Burlington
established the executive exemption defense. The magistrate judge found that
Burlington met the first three prongs necessary to establish that it correctly
classified Lozano’s job as exempt.
The Department of Labor (DOL) regulations specify
that an employee qualifies as an executive if the employee is:
(1) Compensated on a salary basis at a rate of at least
$455 per week;
(2) Whose primary duty is management;

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(3) Who customarily and regularly directs the work of
two or more other employees;
(Doc. 22 at 31) (quoting 29 C.F.R. § 541.100(a)).
At issue is whether, as the magistrate judge found, a genuine issue of fact
exists as to whether Lozano is an employee “(4) Who has the authority to hire and
fire other employees or whose suggestions and recommendation as to the hiring,
firing, advancement, promotion, or any other change in status of other employees
are given particular weight.” Id.
Although Burlington may dispute some of Lozano’s testimony, the court
accepts her version for the purpose of summary judgment. The relevant dispute
focuses on her testimony that, although her job duties provided that she was to
make recommendations regarding hiring and promoting staff, and she performed
those duties between five and ten times, her recommendations were never
accepted. She testified that her recommendations were always overridden by the
store manager. She did coach two employees and issued a final written warning, a
form of discipline, to two employees during her short five-and-a-half month
tenure.
Factors that the DOL considers relevant to determining whether an
employee’s participation in the hiring and disciplinary process satisfies the final
prong of the executive exemption test include: “whether it is part of the
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employee’s job duties to make such suggestions and recommendations; the
frequency with which such suggestions and recommendations are made or
requested; and the frequency with which the employee’s suggestions and
recommendations are relied upon.” 29 C.F.R. § 541.105.
As noted above, Lozano’s job duties specifically required her participation
in the hiring, promoting, and disciplining process by making recommendations.
She testified that she made hiring recommendations five to ten times during fiveand-a-half months—an average of one to two times a month. She also coached
two employees and participated in disciplining two employees. Inherent in the
concept of “frequency” is the duration of the employee’s term of employment.
Considering that ninety days of Lozano’s employment included her probationary
period enhances the “frequency” of her participation. So the first two factors are
met.
As the DOL regulations recognize, an employee’s recommendations “may
still be deemed to have ‘particular weight’ even if a higher level manager’s
recommendation has more importance and even if the employee does not have
authority to make the ultimate decision as to the employee’s change in status.” 29
C.F.R. § 541.105. Although Lozano’s supervisor disagreed with her
recommendations, no one disputes that she participated, as her job duties required,

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in the hiring, promoting, and disciplining of employees on numerous occasions
during her brief tenure at Burlington.
The mere fact that higher management does not accept an employee’s
recommendation does not prevent an employer from establishing the applicability
of the managerial exemption when the other factors are met. See, e.g., Hicks v.
Mercedes-Benz U.S. Int’l, 877 F. Supp. 2d 1161, 1180-81 (N.D. Ala. 2012)
(granting summary judgment for employer despite plaintiffs’ contention that their
evaluations of employees’ performance and issuance of corrective action were not
given “particular weight”); Rozenblum v. Ocean Beach Props., 436 F. Supp. 2d
1351, 1363–64 (S.D. Fla. 2006) (holding plaintiff’s recommendations were given
“particular weight” where it was undisputed that he made recommendations
regarding changes in status, including employees’ performance); see also Gellhaus
v. Wal-Mart Stores, Inc., 769 F. Supp. 2d 1071, 1081-83 (E.D. Tex. 2011)
(granting summary judgment for employer despite plaintiff’s testimony that her
recommendations regarding employee status were not followed); Buechler v.
DavCo Rests., Inc., 2009 WL 3833999, at *6 (D. Md. Nov. 16, 2009) (granting
summary judgment for employer where plaintiff’s job description included
recommending candidates for employment, even though no evidence of
the frequency with which plaintiff’s suggestions were requested or relied upon);
see, e.g., Slusser v. Vantage Builders, Inc., 576 F. Supp. 2d 1207, 1221-23
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(D.N.M. 2008) granting summary judgment for employer even though evidence
indicated that employer did not follow plaintiff’s recommendations).
Therefore, the court finds the fact that Lozano’s recommendations were not
accepted does not create a genuine issue about the propriety of her classification as
exempt under 29 C.F.R. § 541.100.
The court agrees with the magistrate judge’s pronouncement that Plaintiff’s
salary met the first element (Doc. 22 at 32); that “plaintiff’s primary job function
was one of management,” that she “was clearly involved in management activities
and oversaw the activities of two or more employees in the execution of those
duties,” meeting the second and third elements of 29 C.F.R. § 541.100. (Doc. 22 at
35). Having found that Lozano’s job duties also met the fourth element of the
executive exemption, the court finds that Burlington is entitled to summary
judgment on that count as well.
Therefore, the court REJECTS the recommendation as to Count III and
instead will enter SUMMARY JUDGMENT in favor of Burlington and against the
Plaintiff Lozano on that Count.
The court will enter a separate Order in conformity with this Memorandum
Opinion.
DONE and ORDERED this 30th day of September, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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