Sheets et al v. TACALA, L.L.C.

Filing 44

MEMORANDUM OPINION AND ORDER DISMISSING CASE that defendant's motion to strike is GRANTED in part and DENIED in part; tt is ORDERED that paragraphs 11 and 32 of plaintiff's declaration are STRICKEN; furthermore, the court finds that there a re no genuine issues of material fact, and that judgment as a matter of law is due to be entered in favor of defendant; accordingly, defendant's motion for summary judgment is GRANTED, and all of plaintiff's claims are DISMISSED with prejudice; costs are taxed to plaintiff. Signed by Judge C Lynwood Smith, Jr on 8/10/2012. (AHI)

FILED
2012 Aug-10 PM 03:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LAURA L. PHILLIPS,
Plaintiff,
vs.
TACALA, LLC,
Defendant.

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Civil Action No. CV-10-S-477-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Laura L. Phillips, asserts a claim against her former employer, Tacala,
LLC, for failure to pay wages and overtime in violation of the Fair Labor Standards
Act of 1938, 29 U.S.C. § 201, et seq. (“FLSA”).1 The case currently is before the
court on defendant’s motion for summary judgment2 and defendant’s motion to strike
plaintiff’s declaration.3 Upon consideration of the pleadings, briefs, and evidentiary
submissions, the court concludes the motion to strike is due to be granted in part and
denied in part, and the motion for summary judgment is due to be granted.
I. STANDARD OF REVIEW
1

See doc. no. 1 (Complaint). The case originally was filed as a putative collective action,
with plaintiff and another individual, Beth Sheets, as representative plaintiffs. See id. However, all
of Ms. Sheets’ claims were dismissed on May 13, 2011, and no motion for conditional class
certification ever was filed. See doc. no. 23. Accordingly, the case has proceeded since May of 2011
as an individual claim by plaintiff Laura Phillips.
2

Doc. no. 26.

3

Doc. no. 38.

Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is
only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.

-2-

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis supplied).
See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law”).
II. MOTION TO STRIKE
Defendant asks the court to strike plaintiff’s declaration, which was filed with
her opposition to defendant’s motion for summary judgment, because it is
inconsistent with her prior deposition testimony, and because it contains irrelevant
testimony. To the extent the motion to strike is based upon alleged irrelevant
testimony in plaintiff’s declaration, it will be denied. The court is capable of
discerning what testimony is relevant to the issues raised on summary judgment. It
is not necessary that irrelevant statements be stricken from the record.

The

determination of whether portions of plaintiff’s declaration should be stricken as
inconsistent with prior deposition testimony, however, requires more analysis.
The Eleventh Circuit has held that “a party cannot give ‘clear answers to
unambiguous questions’ in a deposition and thereafter raise an issue of material fact
in a contradictory affidavit that fails to explain the contradiction.” Rollins v.
TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987) (quoting Van T. Junkins and
Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984)). The
-3-

Eleventh Circuit has cautioned, however, that this so-called “sham affidavit” rule
should be applied “‘sparingly because of the harsh effect it may have on a party’s
case.’” Nichols v. Volunteers of America, North Alabama, Inc., 470 F. App’x 757,
2012 WL 1320125, at *3 (11th Cir. April 18, 2012) (pagination for the Federal
Appendix not available on Westlaw) (quoting Latimer v. Roaring Toyz, Inc., 601 F.3d
1224, 1237 (11th Cir. 2010)).
[T]he court must be careful to distinguish “between discrepancies which
create transparent shams and discrepancies which create an issue of
credibility or go to the weight of the evidence.” Tippens v. Celotex
Corp., 805 F.2d 949, 953 (11th Cir.1986).
[E]very discrepancy contained in an affidavit does not
justify a district court’s refusal to give credence to such evidence.
In light of the jury’s role in resolving questions of credibility, a
district court should not reject the content of an affidavit even if
it is at odds with statements made in an early deposition.
Id. at 954 (quoting Kennett–Murray Corp. v. Bone, 622 F.2d 887, 894
(5th Cir.1980)) (alteration in original) (citation omitted).
Faulk v. Volunteers of America, 444 F. App’x 316, 318 (11th Cir. 2011) (first
bracketed alteration supplied, second bracketed alteration in original).
Defendant argues that several statements from plaintiff’s declaration are
inconsistent with her prior deposition testimony. The court will address each
statement, or group of statements, in turn.
A.

Testimony About Time Spent as Assistant General Manager
-4-

In her February 14, 2012 declaration, plaintiff stated:
While I worked as an [Assistant General Manager (“AGM”)] in
the South Cullman store, I spent the majority of my working time
performing the same tasks as those performed by Tacala’s employees
who were paid by the hour and were eligible to receive overtime
compensation; these tasks included, but were not limited to, cooking
food, preparing food orders, operating cash registers, and cleaning the
store.4
During her deposition, which was taken on May 20, 2011, plaintiff testified that,
while she was an AGM, she “typically” served as the Manager-In-Charge (“MIC”)
whenever she was in the store.5 The MIC was the manager in charge of, or
responsible for, the store whenever she was on shift. She would “run the shift,” make
sure “everybody [was] in their places,” and was “in control of the money.”6 Plaintiff
also answered “Yes, Sir,” to the following questions: (1) “As an AGM, your
responsibility was for the performance of the store while you were there, correct?”7;
(2) “As an AGM, you were responsible for managing the store during the shifts that
you ran?”8 ; and (3) “And that’s a responsibility you had throughout the time you were

4

Doc. no. 34 (plaintiff’s evidentiary submission), Exhibit A (Declaration of Laura Phillips),
at ¶ 7 (emphasis supplied).
5

Doc. no. 27 (defendant’s evidentiary submission), Exhibit 1 (Deposition of Laura Phillips),

6

Id. at 60.

7

Id. at 122.

8

Id. at 127.

at 61.

-5-

working as an AGM?”9
Plaintiff’s declaration is not entirely inconsistent with her deposition testimony
on this point. It is reasonably possible for plaintiff to have been the head managerial
employee “in charge” of a shift, and still end up spending more than half of her
working hours performing the same tasks as non-managerial employees, such as
cooking and serving food.
B.

Testimony About Duties Performed
In paragraph 10 of her declaration, plaintiff stated that “[t]he designated MIC

would oversee his or her particular shift while also performing the same tasks as
Tacala’s hourly workers.”10 In paragraph 13, she stated:
Even if I was designated to be the MIC for a shift, I frequently
had to stop or delay performing duties associated with the MIC to
perform non-managerial duties, such as working the drive through
window, sweeping floors, and cleaning Tacala’s kitchen utensils and
equipment so hourly employees could be sent home when their shift
ended in order to prevent the accumulation of overtime compensation.11
In paragraph 32, she stated, “As an AGM in the South Cullman store, I never
investigated or resolved legal problems, employment issues, operation management
issues, or any other matter of significance on behalf of Tacala’s management.”12
9

Id. at 128.

10

Phillips Declaration, at ¶ 10.

11

Id. at ¶ 13.

12

Id. at ¶ 32.
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Defendant asserts that these statements conflict with plaintiff’s earlier
deposition testimony that, when she was MIC, which was “typically,” she was
“responsible for all of the operations of the store,” regardless of what specific tasks
she was performing at any given time, and that she was “responsible for ensuring that
everything that needed to be done at the store was done and getting employees to do
that.”13
Again, the court does not find inherent inconsistencies between plaintiff’s
declaration and the identified deposition testimony. It is reasonably possible that
plaintiff would regularly be required to perform a combination of managerial and
non-managerial duties during any given shift. Plaintiff could be “in charge,” or
“responsible,” during any given shift, even while she was performing non-managerial
tasks.
The court does, however, find inconsistencies between plaintiff’s statement that
she “never investigated or resolved legal problems, employment issues, operation
management issues, or any other matter of significance on behalf of Tacala’s
management,” and other portions of plaintiff’s testimony. As discussed more fully
below in the section entitled “Summary of Facts,” plaintiff testified during her
deposition that she was in charge of making sure each shift ran smoothly, coaching
13

Phillips Deposition, at 61, 97-98.
-7-

employees on their performance, disciplining employees for performance or
behavioral problems, setting performance goals, and ensuring compliance with
corporate policies. Those duties seem to this court to fall under the descriptions of
“employment issues” and “operation management issues,” which plaintiff previously
stated were not part of her job. Accordingly, the court concludes that paragraph 32
of plaintiff’s declaration should be stricken as inconsistent with her prior deposition
testimony.14
C.

Overlapping Schedules of RGM and AGM
In paragraph 11 of her declaration, plaintiff stated: “As an AGM in the South

Cullman store, I was usually the MIC only for Saturday when the [Restaurant General
Manager (“RGM”)] was not working and if I worked when the RGM was off on a
weekday.”15 In paragraph 12, she states: “When I worked a shift as an AGM in the
South Cullman store and was not designated to be the MIC, I performed the exact
same duties and had the same responsibilities as the non-managerial, hourly
workers.”16

14

Additionally, plaintiff’s statement in paragraph 32 — that she did not perform any “matter
of significance” for Tacala — is so vague as to be of any benefit to the court’s analysis. There is no
discernable standard for determining what plaintiff would deem to be a “matter of significance,” and
no way of knowing whether that determination, if it could be performed, would have any legal
significance.
15

Phillips Declaration, at ¶ 11.

16

Id. at ¶ 12.
-8-

During her deposition, plaintiff testified that, throughout the time period she
served as AGM, she was “typically” the MIC whenever she was in the store.17 She
also testified that the MIC would not necessarily be the highest ranking employee in
the store at any given time. Instead, the RGM might be scheduled to work during a
given shift, but she might spend the shift doing paperwork in the office after
designating another employee to serve as the MIC on the work floor.18 Finally,
plaintiff testified that, while she was the AGM at the South Cullman store, she would
serve as MIC, even if there was another employee eligible to work as shift manager
during the same shift.19
There is nothing in this deposition testimony that is inconsistent with paragraph
12 of plaintiff’s declaration. Assuming that there were shifts during which plaintiff
was an AGM but not an MIC, it is reasonable to conclude that, during those shifts,
plaintiff would have performed the same duties as any other hourly worker.
The closer question is whether plaintiff has offered inconsistent testimony as
to how often she actually did serve as MIC. Looking solely at the declaration and the
deposition transcript themselves, the court must conclude that they are inconsistent.
Plaintiff testified during deposition that she was “typically” the MIC whenever she
17

Phillips Deposition, at 61.

18

Id. at 71-72.

19

Id. at 96.
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was in the store. The on-line edition of the Oxford English Dictionary defines the
word “typically” as meaning “So as to constitute a type; in conformity with the type;
representatively; characteristically.” Oxford English Dictionary, http://www.oed.com
(last visited August 3, 2012). If working as the MIC is to be “characteristic” or
“representative” of plaintiff’s usual duties, it must have occurred at least a majority
of the time. Paragraph 11 of plaintiff’s declaration, on the other hand, strongly
suggests that plaintiff was only seldomly the MIC at the South Cullman store, or at
least that she served as the MIC less often than not.
Plaintiff attempts to explain away that inconsistency by pointing to the work
schedules from the South Cullman store, which she claims “show that Phillips
frequently worked along side, and sometimes the exact same shift with, the [RGM]
of the South Cullman store.”20 However, the schedules do not establish as much as
plaintiff wishes they did. In fact, as defendant points out in its reply brief, after a very
thorough analysis of the schedules, the majority of plaintiff’s hours were worked
when no other manager was present in the store.21 Even if that were not so, and
plaintiff actually worked more hours alongside the RGM than not, that would not
contradict plaintiff’s testimony that she was “typically” the MIC. Plaintiff could have
20

Doc. no. 41 (plaintiff’s brief in opposition to motion to strike), at 4. Presumably, plaintiff
is making this argument because the schedules are part of her deposition testimony, and they are
consistent with the statement from her declaration.
21

See doc. no. 43 (defendant’s reply in support of motion to strike), at 4-7.
-10-

been assigned to work as the MIC even if the RGM was on the shift, and, indeed,
plaintiff testified that that situation sometimes arose. Plaintiff also argues that, when
plaintiff testified that she was “typically” the MIC, she could have been referring to
the three-month time period when she was the AGM at another store in Hartselle,
Alabama. The record, however, does not reasonably support that conclusion.
It also should be noted that, in her brief in opposition to defendant’s motion for
summary judgment, plaintiff failed to contradict defendant’s proposed fact no. 32,
which stated, “As an AGM, Phillips was typically the MIC when she was in the
restaurant.”22 According to the Uniform Initial Order that was entered in this case on
June 16, 2010, “All material facts set forth in the statement required of the moving
party will be deemed to be admitted for summary judgment purposes unless
controverted by the response of the party opposing summary judgment.”23 Thus,
plaintiff has admitted, for purposes of this court’s consideration of defendant’s
motion for summary judgment, that she “typically” served as MIC when she was in
the restaurant. As such, her argument that the schedules appended as exhibits to her
deposition somehow alter her actual deposition testimony that she “typically” served
as MIC holds even less water.
22

Doc. no. 28 (defendant’s brief in support of summary judgment), at 7, Proposed Fact No.
32. See also doc. no. 29 (plaintiff’s brief in opposition to summary judgment), which does not
contain any response to defendant’s Proposed Fact No. 32.
23

Doc. no. 9 (Uniform Initial Order), at 16 (emphasis in original).
-11-

In summary, paragraph 11 of plaintiff’s declaration contradicts not only her
sworn deposition testimony, but also her admission of facts in response to defendant’s
motion for summary judgment. Accordingly, paragraph 11of the declaration is due
to be stricken, and the court will not consider that paragraph in deciding the motion
for summary judgment.
D.

Testimony About Job Interviews
In paragraphs 14-16 of her declaration, plaintiff stated:
14. As an AGM in the South Cullman store, I never
interviewed a job applicant.
15. The RGM of the South Cullman store always conducted the
interviews.
16. As an AGM in the South Cullman store, I never chose
which prospective employees would be hired.24
During her deposition, plaintiff consistently testified that she did not schedule

or conduct interviews of prospective employees at the South Cullman store.
However, she also testified that, throughout her time at the South Cullman store, she
would “screen” employees before they met with the RGM. She would let the RGM
know her opinion about whether the employee should be interviewed, and the RGM
“sometimes” followed her suggestion. On one or two occasions, the RGM would
interview an applicant despite plaintiff’s suggestion that the applicant should not be
24

Phillips Declaration, at ¶¶ 14-16.
-12-

interviewed.25
This deposition and declaration testimony is not inconsistent. “Screening”
applicants before an interview is not the same thing as actually conducting the
interview. Accordingly, these statements need not be stricken from plaintiff’s
declaration.
E.

Conclusion About Motion to Strike
Based on all of the foregoing, defendant’s motion to strike will be granted in

part and denied in part. Only paragraphs 11 and 32 of plaintiff’s declaration will be
stricken.
III. SUMMARY OF FACTS
Defendant, Tacala, LLC (“Tacala”), owns and operates 162 Taco Bell
restaurants in six states, including Alabama.26 Each Taco Bell restaurant has one
Restaurant General Manager (“RGM”) and at least one Assistant General Manager
(“AGM”), who are responsible for managing the restaurant and its employees, and for
ensuring that the restaurant operated in accordance with Tacala policies and
procedures.27 At all times relevant to this lawsuit, Tacala classified the RGM and

25

Phillips Deposition, at 109.

26

Defendant’s evidentiary submission, Exhibit 2 (Declaration of Angelique Gisin), at ¶ 2.

27

Id. at ¶ 3; defendant’s evidentiary submission, Exhibit 3 (Declaration of Laura Maravi), at

¶ 3.
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AGM positions as managerial positions exempt from the coverage of the Fair Labor
Standards Act. Therefore, the RGM and AGM were paid a salary, not on an hourly
basis, and they were not eligible for overtime compensation.28
Plaintiff, Laura Phillips, began working for Tacala on October 3, 2007.29 She
trained for six weeks at the Taco Bell restaurant in Hartselle, Alabama, and then she
was assigned to work as one of two AGM’s of the South Cullman Taco Bell store.30
She worked at South Cullman until March of 2009, when she became the acting RGM
at the Hartselle location. At first, plaintiff was only temporarily replacing the former
RGM, who had to suddenly leave the position, but after two months in Hartselle, her
temporary position became permanent.31 Before plaintiff received the promotion to
RGM, she had to submit to an evaluation of her past performance as an AGM.32
Plaintiff’s superiors noted the results of that evaluation on a document called a
“Readiness Checklist,” the purpose of which was to evaluate her readiness to serve
as an RGM. The evaluation covered items such as plaintiff’s abilities to: coach team
members on methods to improve service and quality; serve as a role model to other
team members; respond to customer feedback; handle customer concerns; assist other
28

Gisin Declaration, at ¶ 3.

29

Phillips Deposition, at 28.

30

Id. at 28-29, 31-32, 35.

31

Id. at 38-41.

32

Id. at 123-24.
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team members in addressing customer concerns; build a sense of team during shifts;
forecast and determine scheduling needs for the restaurant; ensure that employees are
properly trained; develop a team member for the Shift Manager position; coach and
improve the performance of poorly performing team members; delegate tasks and
follow up effectively; resolve complaints by team members; set high standards for
appropriate team behavior; recognize good performance in team members; perform
closing tasks; identify and resolve sales and profit problems at the restaurant; and set
goals and assignments for team members and provide feedback on their
performance.33
As an AGM in South Cullman, plaintiff usually worked at least 50 hours each
week.34 When plaintiff first became an AGM, she received a biweekly paycheck of
$1,153.85, which equates to a yearly salary of $30,000. In April of 2009, she
received a raise to $1,176.98 biweekly, which equates to a yearly salary of
$30,601.48. When she was promoted to RGM, she began to earn a biweekly salary
of $1,294.62, which equates to a yearly salary of $33,660.35 Plaintiff received her full
salary every week of her employment with Tacala, except for her final week, when

33

Phillips Deposition, Exhibit 19, at 2 (“Readiness Checklist”).

34

Phillips Deposition, at 59.

35

Id. at 38-39; Gisin Declaration, at ¶ 4.
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she was paid through the last day she worked.36 In addition to her regular pay,
plaintiff received a quarterly bonus based on the performance of the restaurant, and
a separate bonus based on the results of a customer survey. Those bonuses were only
available to the RGM, AGM, and shift leaders at a particular restaurant.37 Both
locations where plaintiff worked usually scheduled at least four non-managerial
employees to work at any given time.38 Those non-managerial employees were paid
hourly rates ranging from $7.25 to $8.75 per hour.39
The Taco Bell restaurants where plaintiff worked were open seven days a
week, from 10:00 a.m. until 2:00 a.m. Sunday through Thursday, and from 10:00 a.m.
until 3:00 a.m. on Friday and Saturday.40 The manager opening the store would arrive
approximately one and a half hours prior to the start of the shift in order to prepare
the store for opening. The manager closing the store had to stay after the last shift
until all of the cleaning and paperwork were completed. It was preferred that all of
the closing tasks be completed within one hour after closing, but those tasks
sometimes took longer than one hour.41

36

Phillips Deposition, at 152-57; Gisin Declaration, at ¶ 4.

37

Phillips Deposition, at 43-44; Gisin Declaration, at ¶ 5.

38

Phillips Deposition, at 36.

39

Gisin Declaration, at ¶ 6.

40

Phillips Deposition, at 46.

41

Id. at 46-47.
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Plaintiff testified that, while she worked for Tacala, the RGM and AGM in a
particular restaurant would typically alternate their schedules so that one or the other
would be in the restaurant at all times.42 At least one manager was scheduled to open
the restaurant, at least one was scheduled to close it, and sometimes a different
manager might be scheduled to work a shift in between opening and closing.43 That
does not mean, however, that the AGM and RGM never worked the same shift. In
fact, as discussed above, the schedules appended to plaintiff’s deposition establish
that she did sometimes work the same shift as the RGM, although she and the RGM
were more often than not scheduled on separate shifts.44
Tacala’s official job description for the AGM position states that the AGM
“serves as the assistant to the Restaurant General Manager and provides additional
management coverage of operating hours and direct supervision of operations in an
individual restaurant,” including “driving excellence in customer service,”
“maintaining company standards in product and facility specifications,” “supervising
food handling procedures and operational processes,” and “exercising basic, shift-toshift financial control to meet the restaurant profit margin targets.”45
42

Id. at 60.

43

Id. at 61.

44

See generally Phillips Deposition, at Exhibit 9 (copies of Tacala work schedules).

45

Phillips Deposition, Exhibit 6 (Tacala, LLC Assistant General Manager Position
Description), at 1.
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In addition, the AGM assumes full responsibility for specific financial
controls, crew training assignments and the screening of prospective
employees under the direction of the RGM. The AGM directly performs
hands-on operational on an on-going basis to train employees, respond
to customer service needs or otherwise role model appropriate skills and
behaviors in the restaurant.46
The primary areas of accountability for the AGM position included customer
satisfaction and product quality, financial, operations, and human resources.47
Plaintiff acknowledged during her deposition that the official job description
accurately described the duties of the AGM position.48
At all times, including when more than one salaried manager was scheduled for
the same shift, one manager was designated as the “Manager in Charge” or “MIC”
during a particular shift. The RGM would decide which employee would serve as
MIC on any given shift.49 The MIC usually was the either the AGM or RGM on duty,
but sometimes the RGM would designate a non-managerial, hourly employee as MIC.
When an hourly employee served as MIC, that employee sometimes also was referred
to as a “shift manager.”50 While plaintiff was the AGM at South Cullman, she was
“typically” the MIC whenever she was in the restaurant.51 The MIC was in charge of
46

Id.

47

Id. at 1-2.

48

Phillips Deposition, at 123.

49

Phillips Declaration, at ¶ 8.

50

Id. at ¶ 9; Phillips Deposition, at 96.

51

Phillips Depositon, at 60-61.
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all of the restaurant’s operations and employees during her shift, including the
following responsibilities:
•

ensuring that company policies were followed and correcting employees
who did not follow the appropriate policies52

•

ensuring that all required tasks were performed on every shift53 and that
the shift ran “smoothly”54

•

completing and verifying the accuracy of the end-of-shift paperwork,
including the shift performance report, and signing off on the prior
shift’s performance report55

•

ensuring that employees met their speed of service goals56

•

tracking inventory costs and performing food safety audits57

•

ensuring that safety and security procedures were followed58

•

performing an “MIC walk” every hour during the shift to ensure that the
restaurant and premises were clean59

52

Id. at 72, 87.

53

Id. at 97-98.

54

Id. at 72.

55

Id. at 73-74.

56

Id. at 87-88.

57

Phillips Deposition, at 89-91.

58

Id. at 94-95.

59

Id. at 96-97.
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•

addressing customer complaints60

•

contacting the Tacala Area Coach to arrange for any necessary
maintenance and repair work61

•

being held accountable by upper management for the revenue, food
costs, customer service, and employees on the shift62

•

coaching employees to perform their work properly and efficiently63

•

opening the restaurant, including reviewing the previous night’s
performance and paperwork, and making sure all employees performed
the tasks required to ready the restaurant for customers64

•

creating a “deployment chart” at the beginning of each shift so that each
employee (including employees with specialities such as cooking,
working the register, and food preparation) would know what tasks they
were supposed to perform during the shift65

•

making sure there were enough employees scheduled to perform the
required work on each shift, but not so many employees that the

60

Id. at 79.

61

Id. at 91-92.

62

Id. at 74.

63

Phillips Deposition, at 96-97.

64

Id. at 114-16.

65

Id. at 67-68.
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restaurant’s allotted number of “labor hours” was exceeded66
•

monitoring employees’ dress and sending home any employees who did
not comply with the dress code67

•

closing the restaurant after the last shift each day, including preparing
paperwork, counting money, and making sure the restaurant was clean.68

In addition to performing these managerial duties, the MIC also was required
to perform many of the same tasks as hourly workers, including cooking food,
preparing orders, operating the cash register, and cleaning the store. It was especially
important for plaintiff, as MIC, to perform whatever tasks were necessary for the
hourly employees to be sent home on time, so that they would not accumulate any
overtime hours.69
As AGM, plaintiff also had duties in addition to the duties of the MIC. The
AGM also was responsible for creating a positive working environment for
employees and a positive dining environment for customers.70 The AGM also
oversaw the training of new hires, and signed off on the training once it was

66

Id. at 99, 117-18.

67

Id. at 98.

68

Id. at 116-17.

69

Phillips Declaration, at ¶¶ 10, 13.

70

Phillips Deposition, at 83.
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satisfactorily completed.71 As AGM, plaintiff also was responsible for issuing verbal
or written discipline to employees when appropriate.72 A written disciplinary action
in an employee’s file could adversely affect the employee’s later chances for a
promotion or pay raise.73 The AGM could recommend to the RGM that an employee
be terminated for failing to correct disciplinary problems.74 However, plaintiff never
actually fired an employee while she was AGM at the South Cullman store. Instead,
the RGM always made any termination decisions.75
The AGM also assisted the RGM in the hiring process by “screening”
applicants. The AGM would review an applicant’s resume and sometimes to talk to
the applicant, then make a recommendation to the RGM about whether the applicant
should be interviewed. The RGM usually would accept the AGM’s recommendation
about which applicants to interview.76 However, plaintiff never actually conducted
an interview or selected an applicant as the AGM at the South Cullman store. The
RGM performed those functions instead.77 Plaintiff also had no authority as AGM
to decide how much any new hire or current employee would be paid, or even
71

Id. at 112-13.

72

Id. at 102.

73

Id.

74

Id. at 104-06.

75

Phillips Declaration, at ¶¶ 17-18.

76

Phillips Deposition, at 108-09.

77

Phillips Declaration, at ¶¶ 14-16.
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whether any employee should be paid on an hourly or salaried basis.78
Plaintiff has not disputed that she had all these managerial responsibilities as
AGM. Even so, she testified that she spent the majority of her actual hours on the job
performing the same types of tasks as hourly employees, including cooking food,
preparing food orders, operating the cash registers, and cleaning the store.79
Plaintiff also presented evidence about the types of duties she did not perform,
or was not authorized to perform, as AGM at the South Cullman store. She stated that
she could not determine what techniques were to be used in any aspect of the
restaurant’s operation, including opening and closing, food preparation, and customer
complaints. Instead, plaintiff was required to follow Tacala’s policies and the
directions of her RGM on these matters.80 She could not decide what kind of kitchen
equipment would be used in the restaurant, which vendors or suppliers to use for
materials and supplies, or which types of food and drink products would be sold at
the restaurant.81 She could not regulate the flow and distribution of food, drinks,
condiments, napkins, plastic silverware, or any other items, because those decisions
were made by the RGM.82 Even so, it appears that, as AGM, plaintiff may sometimes
78

Id. at ¶ 19.

79

Id. at ¶ 7.

80

Id. at ¶ 20.

81

Id. at ¶¶ 21-23.

82

Id. at ¶ 24.
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have been allowed to place orders for supplies.83 As AGM, plaintiff did not have the
authority to plan or control the restaurant’s budget or sales goals, although, as
discussed above, she was responsible for ensuring that the budget was followed.84
She also did not have the authority to commit Tacala in marketing efforts, sales
promotions, creating or designing new products, or changing product vendors or
suppliers.85 She could not legally bind Tacala by negotiating or signing any contracts
or other agreements on Tacala’s behalf.86 Further, as AGM, plaintiff never provided
consultation or expert advice to any member of Tacala’s management,87 and she was
never involved in developing or planning Tacala’s business objectives.88 Finally,
plaintiff never represented Tacala in arbitrating disputes or resolving grievances. The
only complaints she handled were customers’ complaints about food orders or other
aspects of customer service.89
IV. DISCUSSION
83

Phillips Deposition, at 119-20.

84

Phillips Declaration, at ¶ 26.

85

Id. at ¶ 27.

86

Id. at ¶ 29. Plaintiff’s proposed statement of fact also states that she had “no authority to
bind Tacala in any matter, large or small.” See doc. no. 33 (plaintiff’s brief in response to motion
for summary judgment), at Proposed Fact No. 26. That statement goes beyond what plaintiff actually
stated in her declaration, i.e., “I had no authority to obligate or bind Tacala in any matter . . . .”
Phillips Declaration, at ¶ 29.
87

Id. at ¶ 30.

88

Id. at ¶ 31.

89

Id. at ¶ 34; Phillips Deposition, at 78-79.
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The FLSA requires employers to pay all covered employees at least a
statutorily-prescribed minimum wage for each hour worked. 29 U.S.C. § 206(a)(1).
The Act also requires employers to pay covered employees at a rate of one and a half
times their usual rate of pay for each hour over forty hours worked in a given week.
29 U.S.C. § 207(a). Section 216(b) of the FLSA provides the following remedy for
violations of those provisions:
Any employer who violates the provisions of section 206 or section 207
of this title shall be liable to the employee or employees affected in the
amount of their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional equal amount as
liquidated damages.
29 U.S.C. § 216(b).
Plaintiff alleges that defendant violated the FLSA by failing to pay all regular
wages and overtime compensation due to her. Importantly, she has narrowed her
FLSA claim to include only her time as AGM at the South Cullman store; she does
not contend that she fell under the provisions of the FLSA while she was the RGM
in Hartselle.90
Defendant, on the other hand, asserts that the overtime provisions of the FLSA
did not apply to plaintiff while she was AGM at the South Cullman store because she
fell under the so-called “executive exemption” set forth in 29 U.S.C. § 213. That
90

Doc. no. 33, at 6, Proposed Fact No. 1 (“Phillips claims she was not exempt from the FLSA
only while she worked as an AGM in Tacala’s South Cullman store.”).
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statute provides, in pertinent part, that “[t]he provisions of section 206 . . . and section
207 of this title shall not apply with respect to — (1) any employee employed in a
bona fide executive, administrative, or professional capacity . . . .” 29 U.S.C. §
213(a)(1) (emphasis supplied).
The fact that Tacala classified the AGM position as exempt from FLSA
requirements is not the sole determining factor. See 29 C.F.R. § 541.2 (“A job title
alone is insufficient to establish the exempt status of an employee.”). Instead, [t]he
exempt or nonexempt status of any particular employee must be determined on the
basis of whether the employee’s salary and duties meet the requirements of [FLSA
regulations].” Id. (bracketed alterations supplied).
The FLSA regulations define the term “employee employed in a bona fide
executive capacity” as meaning:
any employee:
(1) Compensated on a salary basis at a rate of not less than
$455 per week (or $380 per week, if employed in American
Samoa by employers other than the Federal Government),
exclusive of board, lodging or other facilities;
(2) Whose primary duty is management of the enterprise in
which the employee is employed or of a customarily recognized
department or subdivision thereof;
(3) Who customarily and regularly directs the work of two
or more other employees; and
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(4) Who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other
employees are given particular weight.
29 C.F.R. § 541.100(a).
Plaintiff has not contested that she meets the first, third, and fourth of these
regulatory requirements. Indeed, the record demonstrates that, as AGM, plaintiff was
paid a salary of more than $455 per week, that she customarily directed the work of
at least two other employees, and that her suggestions and recommendations on
employment decisions about other employees were given significant weight by the
RGM. Thus, the only remaining determination is whether plaintiff’s “primary duty”
as AGM in South Cullman was management of the restaurant.
Federal regulations provide additional guidance on the definition of the term
“primary duty” in the exempt employee context:
(a) To qualify for exemption under this part, an employee’s
“primary duty” must be the performance of exempt work. The term
“primary duty” means the principal, main, major or most important duty
that the employee performs. Determination of an employee’s primary
duty must be based on all the facts in a particular case, with the major
emphasis on the character of the employee’s job as a whole. Factors to
consider when determining the primary duty of an employee include, but
are not limited to, the relative importance of the exempt duties as
compared with other types of duties; the amount of time spent
performing exempt work; the employee’s relative freedom from direct
supervision; and the relationship between the employee’s salary and the
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wages paid to other employees for the kind of nonexempt work
performed by the employee.
(b) The amount of time spent performing exempt work can be a
useful guide in determining whether exempt work is the primary duty of
an employee. Thus, employees who spend more than 50 percent of their
time performing exempt work will generally satisfy the primary duty
requirement. Time alone, however, is not the sole test, and nothing in
this section requires that exempt employees spend more than 50 percent
of their time performing exempt work. Employees who do not spend
more than 50 percent of their time performing exempt duties may
nonetheless meet the primary duty requirement if the other factors
support such a conclusion.
(c) Thus, for example, assistant managers in a retail establishment
who perform exempt executive work such as supervising and directing
the work of other employees, ordering merchandise, managing the
budget and authorizing payment of bills may have management as their
primary duty even if the assistant managers spend more than 50 percent
of the time performing nonexempt work such as running the cash
register. However, if such assistant managers are closely supervised and
earn little more than the nonexempt employees, the assistant managers
generally would not satisfy the primary duty requirement.
29 C.F.R. § 541.700.
The regulations also address a situation like the one presented here, where an
employee performs a combination of exempt and non-exempt duties.
(a) Concurrent performance of exempt and nonexempt work does
not disqualify an employee from the executive exemption if the
requirements of § 541.100 are otherwise met. Whether an employee
meets the requirements of § 541.100 when the employee performs
concurrent duties is determined on a case-by-case basis and based on the
factors set forth in § 541.700. Generally, exempt executives make the
decision regarding when to perform nonexempt duties and remain
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responsible for the success or failure of business operations under their
management while performing the nonexempt work. In contrast, the
nonexempt employee generally is directed by a supervisor to perform
the exempt work or performs the exempt work for defined time periods.
An employee whose primary duty is ordinary production work or
routine, recurrent or repetitive tasks cannot qualify for exemption as an
executive.
(b) For example, an assistant manager in a retail establishment
may perform work such as serving customers, cooking food, stocking
shelves and cleaning the establishment, but performance of such
nonexempt work does not preclude the exemption if the assistant
manager’s primary duty is management. An assistant manager can
supervise employees and serve customers at the same time without
losing the exemption. An exempt employee can also simultaneously
direct the work of other employees and stock shelves.
(c) In contrast, a relief supervisor or working supervisor whose
primary duty is performing nonexempt work on the production line in
a manufacturing plant does not become exempt merely because the
nonexempt production line employee occasionally has some
responsibility for directing the work of other nonexempt production line
employees when, for example, the exempt supervisor is unavailable.
Similarly, an employee whose primary duty is to work as an electrician
is not an exempt executive even if the employee also directs the work of
other employees on the job site, orders parts and materials for the job,
and handles requests from the prime contractor.
29 C.F.R. § 541.106.
Finally, the regulations define the term “management,” as it is used in the
context of determining exempt or non-exempt status.
Generally, “management” includes, but is not limited to, activities
such as interviewing, selecting, and training of employees; setting and
adjusting their rates of pay and hours of work; directing the work of
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employees; maintaining production or sales records for use in
supervision or control; appraising employees’ productivity and
efficiency for the purpose of recommending promotions or other
changes in status; handling employee complaints and grievances;
disciplining employees; planning the work; determining the techniques
to be used; apportioning the work among the employees; determining
the type of materials, supplies, machinery, equipment or tools to be used
or merchandise to be bought, stocked and sold; controlling the flow and
distribution of materials or merchandise and supplies; providing for the
safety and security of the employees or the property; planning and
controlling the budget; and monitoring or implementing legal
compliance measures.
29 C.F.R. § 541.102.
It is beyond reasonable dispute that plaintiff regularly performed some duties
properly classified as “managerial” under the regulations.

She recommended

applicants for interviews; trained new employees; assigned tasks to employees on
each shift; helped with paperwork; appraised employees’ performance; disciplined
employees when necessary; ensured the safety and security of the employees,
customers, and property; opened and/or closed the restaurant at the beginning and/or
end of shifts; and ensured that other employees complied with Tacala’s policies. In
short, at least when she was the MIC on a shift, she had overall responsibility for
making sure the shift ran smoothly.
The real dispute is over whether plaintiff’s managerial duties had priority over
her other, non-managerial duties, including cooking and serving food, operating the

-30-

cash register, and cleaning the restaurant. Plaintiff takes the position that she spent
more time performing non-managerial duties, and that her non-managerial duties were
more important to Tacala than her managerial duties. She relies heavily upon the
Eleventh Circuit’s decision in Barreto v. Davie Marketplace, LLC, 331 F. App’x. 672
(11th Cir. 2009), to support her argument. There, the Eleventh Circuit reversed the
district court’s grant of summary judgment in favor of the defendant employer,
holding that there were genuine issues of material fact with regard to whether the
manager of a supermarket’s produce department was an “exempt” employee under the
FLSA. Id. at 673, 678. More specifically, there were fact issues with regard to
whether the plaintiff’s primary duty was management. Even though the plaintiff
acknowledged performing some managerial duties, such as ordering and pricing
produce and scheduling and directing the other produce department employees, the
record demonstrated that the plaintiff spent more than 50% of his time performing the
same tasks as hourly, non-exempt employees. Id. at 675. In fact, the plaintiff spent
so much of his time on non-exempt tasks that he sometimes was unable to perform
all of the required managerial tasks. Id. Further, the plaintiff testified that he had
little to no discretion regarding the manner in which he performed his managerial
tasks, and he was instead subject to heavy direct supervision. Id. at 676. Therefore,
even though the plaintiff’s wages were significantly more than those of the non-31-

exempt employees in his department, the Eleventh Circuit concluded that “a
reasonable factfinder could find that [the plaintiff’s] managerial tasks did not
constitute his ‘primary duties’ under the balancing test set forth in the Regulations.”
Id. (citing Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1280-81 (11th Cir.
2008)).
The only real similarity between the present case and Barretto is that plaintiff,
like Barreto, spent the majority of her actual work hours performing non-managerial
tasks. That fact alone, however, is not dispositive. See 29 C.F.R. § 541.700(b)
(“Time alone, however, is not the sole test, and nothing in this section requires that
exempt employees spend more than 50 percent of their time performing exempt
work.”). Other facts tend to support the conclusion that plaintiff’s management duties
were more important to Tacala than her non-management duties. For example, even
though plaintiff testified that she sometimes would have to cease performing her
managerial duties to help other employees complete their non-managerial tasks within
the time allotted, the evidence does not show that that situation was the norm, or that
assisting hourly employees prevented plaintiff from performing all of her managerial
duties. Furthermore, plaintiff seems to have had more discretion than Barreto in
performing her managerial tasks. It is true that plaintiff’s actions had to comply with
Tacala policies and procedures, but within those boundaries, she had discretion in
-32-

performing her job duties. If mandatory compliance with corporate policies was
enough to place a manager outside the executive exemption, the number of people
eligible for the exemption would be very few indeed. See Jackson v. Advance Auto
Parts, Inc., 362 F. Supp. 2d 1323, 1335 (N.D. Ga. 2005) (“[T]he fact that Plaintiffs
had to adhere to certain guidelines or in certain instances obtain the Store Manager’s
approval does not diminish Plaintiffs’ discretionary powers.”) (citations omitted).
Finally, while plaintiff undeniably was subject to the authority of the RGM, there is
no evidence that the RGM had a heavy hand in controlling plaintiff’s day-to-day
activities as AGM.
Instead, this case is more like those relied upon by defendant. First, in Diaz v.
Team Oney, Inc., 291 F. App’x 947 (11th Cir. 2008), the Eleventh Circuit upheld the
district court’s grant of summary judgment in favor of the defendant on the basis that
the plaintiff, the assistant manager of two Papa John’s pizza restaurants, fell under the
executive exemption to the FLSA. Id. at 948. Even though the plaintiff did
frequently perform non-managerial tasks such as making and cutting pizzas, routing
pizza deliveries, greeting customers and cleaning the store, the record was clear that
his managerial duties — as the highest ranking employee on duty during
the majority of his shifts, in which he supervised the drivers,
counterpersons, and cooks, apportioned work, made deposits, filled out
required forms, interviewed prospective employees, and engaged in
local restaurant marketing — were significantly more important to the
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operation of the restaurant than his non-managerial tasks.
Id. at 949 (citing 29 C.F.R. § 541.700(b), (c)). Additionally, the plaintiff routinely
made recommendations to the store manager on hiring and firing decisions, and he
conducted the first interview of applicants. Finally, and importantly, the plaintiff
admitted that “he was ‘in charge’ of the restaurant for the majority of his shifts,
except for the few hours that the store manager was present per day.” Id. at 950.
In Jackson v. Advance Auto Parts, Inc., 362 F. Supp. 2d 1323 (N.D. Ga. 2005),
the district court granted summary judgment on the FLSA claims of three assistant
managers at Advance Auto Parts stores because they did not fall under the “exempt
employee” exception. Id. at 1336. Even though each of the plaintiffs testified that
they spent 90% of their time performing non-exempt tasks like selling, cleaning, and
operating the register, the evidence as a whole demonstrated that “managing and
directing the day-to-day store operations are the most important functions of the
Assistant Manager position.” Id. at 1334. During the majority of their working
hours, the plaintiffs worked without supervision, and they were in charge of their
respective stores, meaning that they were responsible for delegating tasks to other
employees, disciplining and training other employees, adjusting work schedules,
handling customer complaints and refunds, and performing closing duties like
verifying the cash register and preparing deposits and reports. Id. at 1334-35.
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Importantly, each of the plaintiffs acknowledged that even while they were
performing non-exempt duties, “they were also still overseeing the other employees
in the store and making sure that the store was operating properly.” Id. at 1335.
Similarly, in the present case, even though plaintiff testified that she spent more
than half of her actual work hours performing non-exempt tasks, the record as a
whole demonstrates that she was still acting in a managerial capacity even as she was
performing non-exempt duties. Plaintiff testified that, whenever she was the MIC on
any particular shift, she was responsible for ensuring that the shift ran smoothly in all
respects, including paperwork, customer service, safety, cleanliness, equipment
functioning, work assignments, and employee discipline. Furthermore, plaintiff was
“typically” the MIC, indicating that she had these managerial responsibilities most
of the time, even if she was actually performing other, non-managerial tasks. This
appears to have been true regardless of whether the RGM was also in the store while
plaintiff was MIC. In any event, there is no evidence that the RGM regularly
exercised significant control over plaintiff’s day-to-day activities. Instead, plaintiff
appears to have typically had the discretion to decide when it was appropriate for her
to perform exempt vs. non-exempt tasks. Finally, it should be noted that plaintiff
earned significantly more than the hourly, non-exempt employees working in the
South Cullman restaurant. Assuming that plaintiff worked 50 hours each week, her
-35-

$1,153.85 biweekly pay equates to $11.54 per hour. In addition to that salary,
plaintiff was eligible for bonuses that were not available to hourly employees. In
contrast, hourly employees earned only $7.25 to $8.75 per hour, and they apparently
were typically not allowed to work more than forty hours per week.91 Thus, the
maximum amount an hourly employee could earn during a biweekly pay period
would be $700, or $8.75 per hour for a total of 80 hours. Even assuming that an
hourly could work up to 50 hours per week, the maximum amount she could earn
during a biweekly pay period would be $962.50, or $8.75 per hour for a total of 80
hours ($700), plus $13.125 per hour (time-and-a-half) for the 20 additional hours of
overtime ($262.50).
In summary, considering all the facts as a whole, the record supports the
conclusion that plaintiff fell under the “executive employee” exemption to the
requirements of the FLSA while she was working as an Assistant General Manager
at Tacala’s South Cullman restaurant. Accordingly, summary judgment is due to be
granted in defendant’s favor on plaintiff’s FLSA claim.92
V. CONCLUSION AND ORDER
91

The court reaches this conclusion based on plaintiff’s testimony that she would often have
to take over the work of hourly employees in order to prevent them from earning overtime pay.
92

Because summary judgment is due to be granted on these grounds, there is no need to
consider defendant’s alternative arguments (i.e., that plaintiff was exempt under the FLSA’s
“administrative exemption,” that judicial estoppel bars plaintiff’s claims, and that plaintiff lacks
standing to pursue her claims).
-36-

In accordance with the foregoing, defendant’s motion to strike is GRANTED
in part and DENIED in part. It is ORDERED that paragraphs 11 and 32 of plaintiff’s
declaration are STRICKEN.
Furthermore, the court finds that there are no genuine issues of material fact,
and that judgment as a matter of law is due to be entered in favor of defendant.
Accordingly, defendant’s motion for summary judgment is GRANTED, and all of
plaintiff’s claims are DISMISSED with prejudice. Costs are taxed to plaintiff. The
Clerk is directed to close this file.
DONE and ORDERED this 10th day of August, 2012.

______________________________
United States District Judge

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