Hicks v. Mercedes-Benz U.S. International, Inc.

Filing 258

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 7/5/12. (KGE, )

FILED
2012 Jul-05 PM 03:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
JEFF HICKS,
Plaintiff;
vs.
MERCEDES-BENZ U.S.
INTERNATIONAL, INC.,
Defendant.

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7:08-cv-0536-LSC

MEMORANDUM OF OPINION
I. Introduction
Before this Court is the seventh in a series of motions for summary judgment
filed by Defendant Mercedes-Benz U.S. International, Inc. (“MBUSI”).1 The present
motion, filed on November 7, 2011 (Doc. 138), seeks summary judgment as to the
claims of just two Plaintiffs who allegedly meet the executive exemption to the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA” or “the Act”), because “they
admit their primary duty is management and they perform some non-exempt work,
1

This series of motions concerns the Plaintiffs who filed suit together in Lawson v. MBUSI,
7:09-cv-1157-LSC, and does not pertain to Jeff Hicks himself. The Lawson and Hicks cases were consolidated
for discovery purposes, and on February 7, 2012, this Court ordered the claims of the individual Lawson
Plaintiffs to be severed into individual cases. (Hicks Doc. 162.) These individual cases remain consolidated
for case management purposes under Hicks, with the Court continuing to evaluate the already-filed set of
summary judgment motions.
Unless otherwise noted, citations to the record are to the document numbers in the Hicks vs. MBUSI
case, 7:08-cv-0536-LSC. Document numbers preceded by “Lawson” reflect the document number assigned
in Lawson v. MBUSI, 7:09-cv-1157-LSC.

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but they decide if they will perform that work or direct TMs to perform the work.”
(Doc. 138 at 2.) A brief in support of the motion (Doc. 139) was contemporaneously
filed. Plaintiffs filed a response to the motion on December 7 (Doc. 148), and MBUSI
filed a reply brief on December 28, 2011 (Doc. 153). This motion is now ripe for
decision.
II. Facts2
The present motion concerns two Plaintiffs: Maurice Costes and Daniel
Fenimore. Both are employed by MBUSI as Group Leaders (“GLs”).3 While
employed as GLs, these Plaintiffs have been classified by MBUSI as exempt
employees. MBUSI made changes to the overtime policy for exempt employees in
February and March of 2005, and again in March of 2006. Following the March 2006
changes, GLs could be paid overtime only after completing five unpaid hours per week
of pre- and post-shift work activities designated as “casual time.” While overtime
would still be paid for extra hours worked on weekends without the casual time
2

The facts set out in this opinion are gleaned from the “Agreed Upon Undisputed Common Facts
Applicable to Summary Judgment Motions,” (Doc. 97), the undisputed facts in the parties’ briefs, as well as
the Court’s own examination of the evidentiary record. All reasonable doubts about the facts have been
resolved in favor of the nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220,
1224 (11th Cir. 2002). These are the “facts” for summary judgment purposes only. They may not be the
actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).
Additional facts specific to each Plaintiff are addressed in the Court’s analysis below.
3

Each GL has a group which consists of Team Leaders (“TLs”) and Team Members (“TMs”).
GLs, in turn, typically answer to Assistant Managers (“AMs”) and Managers.

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requirement, the policy effectively required forty-five hours, rather than forty, to be
worked before any weekday overtime could accrue. The “casual time” language was
removed from the policy in a revision on April 7, 2008.
On June 10, 2009, a number of GLs and former GLs filed a complaint against
MBUSI. The essence of the complaint is that, by mischaracterizing the GLs as
exempt, MBUSI was “requiring [them] . . . to work overtime without payment of
overtime . . . in violation of the [FLSA].” (Lawson Doc. 1 at 9.)
III. Standard
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The party moving for
summary judgment “always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the evidence] which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden by presenting
evidence showing that there is no genuine dispute of material fact, or by showing that
the nonmoving party has failed to present evidence in support of some element of its

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case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322–23. In
evaluating the arguments of the movant, the court must view the evidence in the light
most favorable to the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d
739, 742 (11th Cir. 1996).
Once the movant 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 interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting FED. R. CIV. P. 56(e)).
“A factual dispute is genuine only if a ‘reasonable jury could return a verdict for the
nonmoving party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220,
1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Property, 941 F.2d
1428, 1437 (11th Cir. 1991)).
IV.

Discussion
Section 13(a)(1) of the FLSA provides that its minimum-wage and overtime

provisions do “not apply with respect to . . . any employee employed in a bona fide
executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). As with
all FLSA exemptions, the executive exemption is to be “narrowly construed so that
it applies to those plainly within its terms and spirit.” Gregory v. First Title of Am., Inc.,

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555 F.3d 1300, 1302 (11th Cir. 2009). In asserting that an exemption applies, “the
employer ‘bears the burden of proving the applicability of a[n] FLSA exception by
clear and affirmative evidence.’” Id. (quoting Klinedinst v. Swift. Invs., Inc., 260 F.3d
1251, 1254 (11th Cir. 2001)).The regulations provide a four-part test for determining
whether an employee fits the executive exemption:
(a) The term ‘‘employee employed in a bona fide executive
capacity’’ in section 13(a)(1) of the Act shall mean 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
(4) Who has the authority to hire or fire other
employees o r w h o s e s u g g e s t i ons 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. Each one of these requirements is a subject of debate between the
parties: MBUSI contends that all four are easily demonstrated, and that summary
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judgment is therefore appropriate. Plaintiffs hold to the other extreme, that none of
the four can be established and that each one presents genuine issues of material fact.
Despite the breadth of the parties’ disagreement, the real crux of the dispute in this
motion is relatively narrow: the “primary duty” of the Plaintiffs. MBUSI argues that
this particular pair of Plaintiffs should be found exempt as a matter law because they
allegedly “admit their primary duty is management and they perform some
non-exempt work, but they decide if they will perform that work or direct TMs to
perform the work.” (Doc. 138 at 2.) The Court thus begins its analysis here—with the
second of the four requirements—determining if there is a genuine dispute of material
fact as to whether Plaintiffs’ “primary duty is management . . . of a customarily
recognized department or subdivision” of MBUSI. 29 C.F.R. § 541.100(a)(2).
A. Primary Duty
To meet the executive exemption, “management” must be the employee’s
“primary duty.” “Management” is defined by the regulations to include:
[A]ctivities such as interviewing, selecting, and training of
employees; setting and adjusting their rates of pay and
hours of work; directing the work of 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;
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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. The term “primary duty” is broadly defined as “the principal,
main, major or most important duty that the employee performs.” 29 C.F.R.
§ 541.700(a). In determining an employee’s “primary duty,” the regulations
prescribe a variety of factors rather than a bright-line rule. The factors given are:
[T]he 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 wages paid to other
employees for the kind of nonexempt work performed by
the employee.
29 C.F.R. § 541.700(a). The regulations are clear that these factors, while helpful, are
not to be taken as exhaustive. Instead of relying on any set of fixed criteria, each
determination “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.” Id. As the Eleventh
Circuit observed in Rodriguez v. Farm Stores, “[w]hen it comes to deciding whether

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an employee is an executive within the meaning of the FLSA, the answer is in the
details.” 518 F.3d 1259, 1264 (11th Cir. 2008).
In looking at these details, the Court pays close attention to the duties of each
Plaintiff, specifically their performance of exempt management duties, as well as any
nonexempt, nonmanagement duties. Notably, of the four “primary duty” factors
provided in § 541.700(a), three factors presuppose that at least some nonexempt work
is performed. The first is concerned with the importance of nonexempt work as
compared to the employee’s exempt work, and the second looks to the amount of time
spent on each. The fourth factor requires that the employee in question perform
nonexempt work in order to identify the wages of comparable employees who perform
similar work. Even with a less rigid application of the factors, determining the
composition of exempt and nonexempt duties is central to understanding the
“character of the employee’s job as a whole.” Accordingly, the details specific to each
Plaintiff are examined below, with a focus on each Plaintiff’s management duties in
addition to any alleged nonmanagement duties.4

4

For each of the Plaintiffs discussed, there are numerous facts supporting management duties that
are not included here. Although the Court earnestly attempts to include and discuss nearly every
nonmanagement duty that is raised, the recital of exempt management activities are, in the interest of brevity,
only a representative sampling. Regardless, the Court has reviewed each of the Plaintiffs’ duties, taking them
into consideration where appropriate.
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1. Maurice Costes
In addition to his own testimony, the management duties of Maurice Costes are
established in large part by his responses to MBUSI’s Requests for Admission
(“RFAs”). Rule 36 of the Federal Rules of Civil Procedure provides that such
admissions have special weight, unique among the various discovery mechanisms,
such that “[a] matter admitted under this rule is conclusively established unless the
court, on motion, permits the admission to be withdrawn or amended.” FED. R. CIV.
P. 36(b). See also In re Carney, 258 F.3d 415, 420 (5th Cir. 2001) (“Since Rule 36
admissions, whether express or by default, are conclusive as to the matters admitted,
they cannot be overcome at the summary judgement stage by contradictory affidavit
testimony or other evidence in the summary judgment record.”). In the Eleventh
Circuit, it is reversible error for a district court to discount facts that are “conclusively
established” through Rule 36 admissions, “even if it ‘[finds] more credible the
evidence of the party against whom the admissions operate.’” Williams v. City of
Dothan, 818 F.2d 755, 762 (11th Cir. 1987) (quoting Brooks Village N. Assocs. v. General
Elec. Co., 686 F.2d 66, 73 (1st Cir. 1982)). Thus, the Court takes the admissions
discussed below to be “conclusively established,” despite Plaintiffs’ efforts to gainsay
these admissions in their brief.

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In his RFA responses, Costes admitted that he “supervise[s] the team leaders
and team members in [his] group,” and he “give[s] [them] work directions and
assignments.” (Doc. 140-2 at 3.) He likewise admitted that he “manage[s] attendance
in [his] group,” and also “manage[s] vacation scheduling, timekeeping and attendance
tracking.” (Id.) As a GL, he “direct[s] [his] group in meeting the Company’s
objectives for safety, product quality, accuracy, productivity, cost reduction,
housekeeping, efficiency, training and team harmony.” (Id.) He “ensure[s]” that
“quality goals are met” and that “company policies and work rules are enforced” in
his group. (Id. at 5.) Costes is also responsible for monitoring his area for safety
hazards, and he “ensure[s] that [his] group works safely.” (Id. at 6.) He admits that
he has the authority to “direct training and retraining” as he deems appropriate. (Id.)
Costes acknowledges that his job involves the use of discretion, and he “use[s] [his]
best judgment” in performing all of his GL duties. (Id. at 7.) He “initiate[s],
facilitate[s] and monitor[s] problem solving,” and “handle[s] employee issues and
conflicts.” (Id. at 5–6.) As a GL he also has the authority to “decide when to involve
higher management or MBUSI's Team Relations Department” in handling such
conflicts. (Id. at 6.) His management responsibilities also include evaluating the
performance of his TMs and TLs, and providing an opinion about their readiness for

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promotion. (Id. at 4.) Conversely, as GL he also “ha[s] the authority to initiate a
Corrective Performance Review on a team member when [he] deem[s] necessary,”
so long as his superiors agree. (Id. at 5.)
In addition to these Rule 36 admissions, Costes testified to his management
responsibilities in his deposition. He agreed that he “direct[s] team members and
team leaders in what they’re supposed to be doing.” (Doc. 140-1 at 26.) As a GL he
“think[s] stragegically,” and focuses on strategy for his group. (Id.) It is undisputed
that “Costes agrees that leadership skills are important for a GL because a GL has to
lead TLs and TMs and cannot be afraid to tell people what to do.” (Doc. 148 at 7.) He
believes that he does “the best job [he] can in overseeing the performance of [his]
group.” (Id. at 9, Doc. 140-1 at 42.) In short, there is abundant evidence of Costes’
management duties from his own admissions and testimony. The remaining question
on this issue is whether Costes can point to nonmanagement duties of enough
substance to put his “primary duty” in controversy.
The only nonmangement task that Plaintiffs discuss in their arguments is
Costes’ repair work. Although the frequency of his repair work has varied, the parties
agree that he makes repairs from “[t]wenty to thirty times a day.” (Doc. 148 at 16.)
Depending on the type of repair and the manpower situation, some repairs may take

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as little as five seconds to complete. Others can take as long as thirty minutes,
although repairs of such length “may only happen once every few weeks.” (Id.)
Plaintiffs argue that the “majority of [Costes’] time is spent performing manual
labor,” (Doc. 148 at 34), but the facts simply do not support this assertion. In fact,
Plaintiffs elsewhere agree that “Costes spends most of his day walking up and down the
Line communicating with his TLs and TMs.” (Id. at 15, emphasis added.)
Of course, while the regulations provide that “employees who spend more than
50 percent of their time performing exempt work will generally satisfy the primary
duty requirement,” this is not always the case. 29 C.F.R. § 541.700(b). The same
subsection goes on to clarify that “[t]ime alone is not the sole test.” Id. An employee
who spends a majority of his time on exempt work may yet be nonexempt—or vice
versa—if the “other factors support such a conclusion.” Id. Here, the other relevant
factors do not offer any refuge to Plaintiffs. Where both exempt and nonexempt work
is involved, the regulations provide that the hallmarks of an exempt employee are
“mak[ing] the decision regarding when to perform nonexempt duties” and
“remain[ing] responsible for . . . success or failure” while performing such duties. 29
C.F.R. § 541.106(a). Both circumstances are evident here.

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The first—making the decision whether to perform the nonexempt work—is
easily seen as related to Costes’ repair work. Plaintiffs do not dispute that “Costes
decides whether a repair can be performed on Line, if he needs to talk to the suppliers
about an issue, if he is going to make the repair himself, and if the issue is something he
should feed back to his TMs.” (Doc. 148 at 15, emphasis added.) Costes agrees that
when there is a quality issue, he decides “do I fix it myself, do I send a team leader to
fix it or do I involve the assistant manager . . . ?” (Doc. 140-1 at 12.) It is clear that
Costes’ repair work is, at least often, the product of his own choice.
Likewise, it is clear that Costes remains responsible for the success or failure of
his group even while making repairs. If he is already on the line when a call comes
from the quality department, he decides, “am I going to go investigate it or am I going
to send somebody to go investigate it?” (Doc. 140-1 at 12.) The parties agree that even
while “Costes is making a repair, he is also directing his TMs.” (Id. at 16.) Finally, it
is undisputed that “Costes is responsible for his group producing a good quality
vehicle no matter what he is doing.” (Doc. 148 at 9, emphasis added.) Thus, the
circumstances of his repair work, in addition to the amount of time he spends engaged
in it, show that there is no genuine issue concerning Costes’ “primary duty.”

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2. Daniel Fenimore
Like Costes, Daniel Fenimore’s RFA responses demonstrate a considerable
amount of management responsibility. Fenimore admits that he “supervise[s] the
team leaders and team members in [his] group,” and he “give[s] [them] work
directions and assignments.” (Doc. 140-4 at 3.) He likewise admits that he
“manage[s] attendance in [his] group,” and also “manage[s] vacation scheduling,
timekeeping and attendance tracking.” (Id.) As a GL, he “direct[s] [his] group in
meeting the Company’s objectives for safety, product quality, accuracy, productivity,
cost reduction, housekeeping, efficiency, training and team harmony.” (Id. at 3–4.)
He “ensure[s]” that “quality goals are met” and that “company policies and work
rules are enforced” in his group. (Id. at 5.) Fenimore is also responsible for monitoring
his area for safety hazards, and he “ensure[s] that [his] group works safely.” (Id. at 6.)
He admits that he has the authority to “direct training and retraining” as he deems
appropriate. (Id.) Fenimore acknowledges that his job involves the use of discretion,
and he “use[s] [his] best judgment” in performing all of his GL duties. (Id. at 7.) He
“initiate[s], facilitate[s] and monitor[s] problem solving,” and “handle[s] employee
issues and conflicts.” (Id. at 5–6.) As a GL he also has the authority to “decide when
to involve higher management or MBUSI's Team Relations Department” in handling

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such conflicts. (Id. at 6.) His management responsibilities also include evaluating the
performance of his TMs and TLs, and providing an opinion about their readiness for
promotion. (Id. at 4.) Conversely, as GL, Fenimore also “ha[s] the authority to initiate
a Corrective Performance Review on a team member when [he] deem[s] necessary.”
(Id. at 5.) In addition to these “conclusively established” admissions, the parties agree
that “[a]s GL, Fenimore is responsible for making sure the Company’s policies are
followed.” (Doc. 148 at 20.) Tellingly, Fenimore agrees with MBUSI’s summary of
the GL position: “I manage my line/group as an operational unit and I am responsible
for accomplishing our company’s goals and targets.” (Doc. 140-3 at 26–27, 51,
emphasis added.)
Against this evidence of management duties, Plaintiffs point to Fenimore’s
repair work and production work. They contend that Fenimore “personally fixes the
problem when responding to line pulls and works on the production line when there
is insufficient manpower.” (Doc. 148 at 34.) Both of these reasons are insufficient.
Regarding repair work, Fenimore did say that his response to line pulls is
usually to fix a problem that he is capable of fixing himself. (Doc. 140-3 at 23.) He also
indicated, however, that he is the one making that decision; depending on the
circumstances, he has “the choice of whether or not a team leader fixes it or the team

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member fixes it.” (Id.) He also explained that he himself does not know how to fix
every defect that comes up in his group; for some situations, he has to wait for
someone with a higher “Circle of Skills level.” (Id.) In fact, part of Fenimore’s job as
GL is to try to “strategically place” his group members, with the “best people in
different places,” in order for them to efficiently respond to such situations. (Id.)
There is no indication that Fenimore spends a substantial amount of his time making
repairs. On the contrary, it is undisputed that “[n]ormally, Fenimore walks up and
down the line all day,” in order to supervise his group. (Doc. 148 at 23.)
Fenimore does do production work on the line to fill in for others, but appears
to do so infrequently at best. When asked how often, as a GL, he actually works a
process, Fenimore responded, “Lately, not any.” (Doc. 140-3 at 24, emphasis added.)
While he was GL of another group he spent several days on the line because of a
manpower shortage. (Id.) But aside from unusual manpower issues, Fenimore testified
that there is not “any other reason that [he] would have to work on the line.” (Id.)
Indeed, Plaintiffs do not point to any other time that he has spent doing production
work. The possibility of filling in for a manpower shortage—which he undisputedly
has not done at all lately—could not possibly be the “principal, main, major or most
important duty” that Fenimore performs. 29 C.F.R. § 541.700(a). Thus, neither his

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repair work or production work create a genuine issue of material fact concerning his
“primary duty.”
3. Customarily Recognized Department or Subdivision
Before moving on to the other three executive exemption requirements, there
is an additional issue to consider. To meet the second prong of the four-part test, an
employee’s “primary duty” must be “management of the enterprise . . . or of a
customarily recognized department or subdivision thereof.”29 C.F.R. § 541.100(a)(2)
(emphasis added). The purpose of this requirement is “to distinguish between a mere
collection of employees assigned from time to time to a specific job or series of jobs
and a unit with permanent status and function.” 29 C.F.R. § 541.103(a). Plaintiffs
argue that although GLs are “in charge of a team of people,” those teams “change
with the needs of production.”(Doc. 148 at 40.) They contend that these teams or
groups are therefore “not a department or other recognized subdivision.” (Id.)
Plaintiffs assert, for example, that “[w]hile the ‘Paint Department’ may have a
permanent status and continuing function, each of the three to five ‘groups’ within
the Paint Department does not.” (Id.) Notably, Plaintiffs provide no citations to the
record in support of this position. To the contrary, the groups identified in the parties’
briefs and the Plaintiffs’ depositions all appear to have distinct and permanent

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designations. According to authority provided in Plaintiffs’ own brief, a “department
or subdivision can include small groups of employees . . . within a larger department,
such as a group leader of four draftsmen in the gauge section of a much larger
department.” (Doc. 148 at 39–40, quoting 69 Fed. Reg. 22122, 22134 (Apr. 23, 2004)
(internal quotation omitted)). An identical arrangement prevails at MBUSI, albeit on
a larger scale.
Individually, the Plaintiffs certainly treat their groups as “recognized unit[s]
with a continuing function,”29 C.F.R. § 541.103(c), in their individual descriptions
of them. Together, they appear to tacitly acknowledge this in their “Agreed Upon
Undisputed Common Facts.” (Doc. 97 ¶ 5 (“Each Production group at MBUSI has
a GL. Generally, each GL has a group consisting of one or more teams. Generally,
each team is organized with a TL and multiple TMs.”)) The record is clear that the
groups supervised by GLs are much more than “mere collection[s] of employees
assigned from time to time to a specific job,” 29 C.F.R. § 541.103(a), and they
therefore satisfy the “customarily recognized department or subdivision”
requirement. There is thus no dispute that these Plaintiffs meet the “primary duty”
prong of the executive exemption test. As Plaintiffs succinctly phrase it in their own

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brief, “[a] GL is in charge of a team of people.” (Doc. 148 at 40.) The Court now
turns to the remaining three requirements.
B. Salary Basis
Plaintiffs assert that “as a threshold matter, the ‘executive exemption’ is
inapplicable because GLs were not paid a true salary.” (Doc. 148 at 5.) They repeat
this point later in their brief: “As a threshold matter, Mercedes’ motion must fail
because there is a genuine issue of material fact whether GLs are compensated on a
true salary basis.” (Id. at 28.) Plaintiffs are correct that “compensat[ion] on salary
basis at a rate of not less than $455 per week” is indeed a threshold question to
meeting the executive exemption. See 29 C.F.R. § 541.100(a)(1).They neglect to point
out, however, that it is a threshold that they have voluntarily and unequivocally
crossed. Every one of these Plaintiffs received a Request for Admission posing the
following prompt: “[i]n your job as Group Leader at MBUSI, you earn at least $455
per week salary.” Each Plaintiff answered with an unadorned “Admit.” (Doc. 140-2
at 11, Doc. 140-4 at 10.) By their own admissions, Plaintiffs have affirmatively
answered this threshold question.
Even if this were not enough, this question is now well settled by this Court’s
previous opinions in this case. (See, e.g., Doc. 71 at 6–9; Doc. 182 at 11–13.) The same

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analysis applies here with equal force. Plaintiffs once again claim that their
compensation was “subject to reduction because of variations in the quality or
quantity of the work performed.” (Doc. 148 at 28 (quoting 29 C.F.R. § 541.602(a)).)
As explained before, this argument fails because it relates solely to Plaintiffs’ overtime
compensation. The regulations specifically provide that “an employer may provide
an exempt employee with additional compensation without losing the exemption or
violating the salary basis requirement, if the employment arrangement also includes
a guarantee of at least the minimum weekly-required amount paid on a salary basis.”
29 C.F.R. § 541.604(a). Plaintiffs do not allege that their actual base salaries were
impacted by the number of hours worked, only that it affected their payment for
overtime. Because their salaries remained constant regardless of the amounts of
overtime earned, MBUSI’s choice to provide additional compensation for overtime
does not diminish the “salary basis” on which Plaintiffs were paid.
Plaintiffs again attempt to buttress their argument by claiming that
“deductions . . . [were] made for absences occasioned by Mercedes or by the
operating requirements of the business.”(Doc. 148 at 28.) As of 2008, MBUSI does
not build cars at its Alabama plant on Fridays, although some non-production
activities apparently still take place. GLs not scheduled to work on these non-

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production Fridays have various options: they can elect to use a paid vacation day,
they can take an unpaid personal day off work, or they can bank their unworked Friday
hours against future overtime hours. Plaintiffs argue that this “Friday Bank”
procedure requires MBUSI to “count[] hours worked, which violates the whole
concept of a fixed salary.” (Doc. 148 at 31.)
Plaintiffs continue to confuse the concept of counting hours for purposes of
base compensation with counting hours for purposes of calculating overtime above
and beyond the fixed salary. As noted above, employers may—but are not
required—to provide overtime compensation for exempt, salaried employees.
MBUSI’s decision to provide overtime in addition to a predetermined salary has no
bearing on whether a “salary basis” exists. If MBUSI—of its own accord—chooses
to pay an overtime premium, it may also determine how that overtime is paid, so long
as employees still receive, in full, their predetermined salaries. There appears to be
no dispute that Plaintiffs did receive their full salaries, even when “banking” Friday
hours against future overtime. As such, even apart from their own admissions,
Plaintiffs were plainly “[c]ompensated on a salary basis at a rate of not less than $455
per week.” 29 C.F.R. § 541.100(a)(1).

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C. Directing the Work of Two or More Other Employees
The third prong of the executive exemption test requires an employee to
“customarily and regularly direct[] the work of two or more other employees.” 29
C.F.R. § 541.100(a)(3). As with the requirements already discussed, Plaintiffs’ own
admissions do most of the heavy lifting on this issue.
Both Costes and Fenimore admit in RFA #1 that, as GLs, they “supervise the
team leaders and team members in [their] group[s].” (Doc. 140-2 at 3, Doc. 140-4 at
3.) Not only do they “supervise,” they specifically admit in RFA #2 that they “give
work directions and assignments” to the members of their group. (Id.) To
“supervise” employees and “give work directions” certainly constitutes “directing
the work” of those employees. Additionally, both Plaintiffs’ depositions are replete
with instances of directing the work of their subordinates. (See, e.g., Doc. 140-1 at
16–17, 23, 26; Doc. 140-3 at 17, 19, 21–23.)
As to whether such direction is “customarily and regularly” done, the phrasing
of the RFAs and the record as a whole indicates that directing the work of TMs and
TLs is a constant aspect of the GL position. Nothing in the record would suggest that
directing the work of TMs or TLs was even close to being a mere “isolated or
one-time” occurrence for either of the Plaintiffs at issue. Rather, both Costes and

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Fenimore testified that they spend most of their time walking their respective lines,
directing the work of TMs and TLs as necessary. As such, the directing of other
employees was certainly “customarily and regularly” performed as defined by the
regulations. See 29 C.F.R. § 541.701.
Additionally, the required number of “other employees” poses no difficulty.
It is undisputed that each GL has a group that “consist[s] of one or more teams.”
(Doc. 97 at ¶ 5.) Each team, in turn, is generally “organized with a TL and multiple
TMs.” (Id.) Even a GL with the smallest possible group—a single team consisting of
just one TL and one TM—would still satisfy the “two or more” requirement. Both
Costes and Fenimore had considerably more than this throughout their time as GLs.
(Doc. 148 at 6, 17.) Given all of this, there is no question that both of these Plaintiffs
“customarily and regularly direct[] the work of two or more other employees.”
29 C.F.R. § 541.100(a)(3).
D. Recommendations Given Particular Weight
The final prong of the executive exemption test is whether each of these
Plaintiffs “has the authority to hire or fire other employees,” or whether their
“suggestions and recommendations as to the hiring, firing, advancement, promotion
or any other change of status of other employees are given particular weight.” 29

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C.F.R. § 541.100(a)(4). MBUSI does not contend that Plaintiffs have the authority to
hire or fire, but does maintain that their suggestions and recommendations are given
“particular weight.” Here again the regulations provide a factor-based approach:
To determine whether an employee’s suggestions and
recommendations are given ‘‘particular weight,’’ factors to
be considered include, but are not limited to, whether it is
part of the 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. Once again, Plaintiffs go a long way toward establishing this with
their own admissions. Each of them admit that, as part of their jobs as GLs, they
“provide an opinion as to whether or not team members and team leaders in [their]
group[s] are ready for promotion.” (Doc. 140-2 at 4, Doc. 140-4 at 4.) The
“frequency with which the employee’s suggestions and recommendations are relied
upon” is clearly seen from MBUSI’s own written policies. (See Doc. 109-22.) As
explained by Marcus Jones, MBUSI’s HR Manager, “the GL’s assessment of the TM
or TL is followed barring exceptional circumstances.” (Doc. 109-1 at 9.) Additionally,
if a GL gives a TM or TL a negative performance evaluation in any area but
attendance, that employee “cannot be promoted.” (Id. at 9–10.) Such evaluations by
GLs are made part of the employee’s personnel file. (Id. at 10.)
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In addition to Marcus Jones’ explanation, both of these Plaintiffs have
personally acknowledged the significant weight given to their opinions regarding
promotion. Costes agrees that to even “be considered for a promotion, a team
member has to have a satisfactory evaluation.” (Doc. 140-1 at 29.) Likewise, Plaintiffs
concede that a “not satisfactory” rating from Fenimore will destroy that group
member’s eligibility for promotion. (Doc. 148 at 20.) Plaintiffs also agree that
“Fenimore’s opinion on whether a TM or TL should be promoted normally is
followed.” (Id.) Although Costes and Fenimore do not have the final authority to
make hiring or promotion decisions, there is no question that their suggestions and
recommendations regarding promotions are given “particular weight.” And in
addition to their influence in promotion decisions, these Plaintiffs can—at their
discretion—take steps that could lead to a team member’s termination. They “have
the authority to initiate a Corrective Performance Review on a team member when
[they] deem necessary.” (Doc. 140-2 at 4–5, Doc. 140-4 at 4–5, emphasis added.)
In their brief, Plaintiffs admit that GLs give performance evaluations and can
initiate corrective performance reviews, but argue that such actions “must be
approved by an Assistant Manager and HR,” and in any case are “only one of several
evaluation tools utilized by MBUSI’s Management.” (Doc. 148 at 41.) But the

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regulations specifically address this issue. The relevant section provides that “[a]n
employee’s suggestions and 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. In light of the relevant factors,
there is no question that these Plaintiffs’ suggestions and recommendations are given
“particular weight.”
V. Conclusion
There are no genuine issues of material fact concerning the claims of either
Costes or Fenimore, since both meet all of the requirements of the executive
exemption to the FLSA. MBUSI’s motion (Doc. 138) is therefore due to be
GRANTED. Separate orders consistent with this opinion will be entered.
Done this 5th day of July 2012.

L. Scott Coogler
United States District Judge
[167037]

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