Thompson v. Scott Petroleum Company

Filing 31

MEMORANDUM OPINION AND ORDER re: 18 Motion for Summary Judgment filed by Charles H. Thompson and 10 Motion for Summary Judgment filed by Scott Petroleum Company. Signed by Honorable Robert T. Dawson on March 9, 2012. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CHARLES H. THOMPSON,

PLAINTIFF

v.

Case No. 11-1012

SCOTT PETROLEUM CORPORATION

DEFENDANT

MEMORANDUM OPINION AND ORDER
I.

Background
Defendant Scott Petroleum Corp. is a petroleum and propane

company

operating

primarily

in

the

rural,

agricultural

and

commercial fuel industry in Mississippi, Louisiana and Arkansas.
(Doc. 12, ¶ 3).

Plaintiff Thompson alleges that Scott, his

former employer, violated the overtime requirements of the Fair
Labor Standards Act (FLSA).

(Doc. 1).

He also alleges Scott

terminated him after he informed it that the refusal to pay an
overtime premium violated the law.

He seeks recovery of back-

pay, liquidated damages, interest, costs and attorney’s fees.
Before the Court are Defendant’s Motion for Summary Judgment
(Doc. 10), Brief in Support (Doc. 11), Statement of Facts (Doc.
12), Plaintiff’s Motion for Summary Judgment (Doc. 18), Brief in
Support (Doc. 21) and Statement of Facts (Doc. 20).
II. Standard of Review
Summary judgment is appropriate when, viewing the facts and
inferences in the light most favorable to the nonmoving party,
1 

“the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”

Fed.R.Civ.P. 56(c). The plain language of Rule

56(c) mandates the entry of summary judgment, 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.

Catrett, 477 U.S. 317, 322 (1986).

Celotex

Corp.

v.

“A party seeking summary

judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying
those

portions

of

interrogatories,

the

and

pleadings,

admissions

depositions,

on

file,

answers

together

with

to
the

affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact.”

Id. at 323.

If the moving

party meets the initial burden, the burden then shifts to the
opposing party to produce evidence of the existence of a genuine
issue for trial.

Id. at 324.

The evidence must be viewed in the light most favorable to
the nonmoving party, giving the nonmoving party the benefit of
all reasonable inferences.

Kenney v. Swift Transport, Inc., 347

F.3d 1041, 1044 (8th Cir. 2003).
summary

judgment,

a

court

must
2 

“In ruling on a motion for
not

weigh

evidence

or

make

credibility determinations.”

Id.

“Where the unresolved issues

are primarily legal rather than factual, summary judgment is
particularly appropriate.”

Koehn v. Indian Hills Cmty. Coll.,

371 F.3d 394, 396 (8th Cir. 2004).
III.

DISCUSSION
Thompson has moved for Summary Judgment contending he is

not exempt from the overtime provisions of the FLSA and that he
is entitled to liquidated damages, attorney’s fees and costs.
Scott

has

claim,

moved

for

contending

Summary
he

Judgment

meets

the

administrative exemption to the FLSA.

on

Thompson’s

qualifications

overtime
of

the

In the alternative, Scott

asks the court to grant Summary Judgment limiting recovery under
the FLSA in accordance with the fluctuating work week standard.
An

employee

may

be

exempt

from

the

FLSA's

overtime

requirements under the administrative exemption. See 29 U.S.C.    
§ 213(a)(1). Generally, the administrative exemption applies to
any employee:

(1) Compensated on a
not less than $455
employed in American
Federal Government),
other facilities;

salary or fee basis at a rate of
per week (or $380 per week, if
Samoa by employers other than the
exclusive of board, lodging or

(2) Whose primary duty is the performance of office or
non-manual work directly related to the management or
general business operations of the employer or the
employer's customers; and

3 

(3) Whose primary duty includes the exercise of
discretion and independent judgment with respect to
matters of significance.
29 C.F.R. § 541.200(a).
The Code of Federal Regulations sets out examples and some
guidance for analyzing the second element of this exemption:
(a) To qualify for the administrative exemption, an
employee's primary duty must be the performance of
work directly related to the management or general
business operations of the employer or the employer's
customers. The phrase “directly related to the
management or general business operations” refers to
the type of work performed by the employee. To meet
this requirement, an employee must perform work
directly related to assisting with the running or
servicing of the business, as distinguished, for
example, from working on a manufacturing production
line or selling a product in a retail or service
establishment.

(b) Work directly related to management or general
business operations includes, but is not limited to,
work in functional areas such as tax; finance;
accounting; budgeting; auditing; insurance; quality
control;
purchasing;
procurement;
advertising;
marketing; research; safety and health; personnel
management; human resources; employee benefits; labor
relations; public relations, government relations;
computer
network,
internet
and
database
administration; legal and regulatory compliance; and
similar activities. Some of these activities may be
performed by employees who also would qualify for
another exemption.

(c) An employee may qualify for the administrative
exemption if the employee's primary duty is the
performance of work directly related to the management
or general business operations of the employer's
customers. Thus, for example, employees acting as
advisers or consultants to their employer's clients or

4 

customers (as tax experts or financial consultants,
for example) may be exempt.
29 C.F.R. § 541.201.
“Disputes regarding the nature of an employee’s duties are
questions of fact, but the ultimate question whether an employee
is exempt under the FLSA is an issue of law.”

Jarrett v. ERC

Properties, Inc., 211 F.3d 1078, 1081 (8th Cir. 2000).
It is undisputed that during the three years prior to his
termination,
$455.00,

Thompson

thus

was

paid

weekly

meeting

the

first

element

administrative exemption.

wages
of

in

the

(Doc. 12, 16 ¶ 6).

excess

test

of

of
the

However, there

is disagreement about the other requirements for exemption.
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.
541.700(a).

29 C.F.R. §

“Under these regulations, therefore, an employee's

primary duty is that which is of principal importance to the
employer, rather than collateral tasks which may take up more
than fifty percent of his or her time.”

Spinden v. GS Roofing

Products Co., Inc., 94 F.3d 421 (8th Cir. 1996).
Scott

contends

that

Thompson’s

primary

role

was

the

performance of office or non-manual work directly related to
Scott’s general business operations.

(Doc. 11).

Specifically,

Scott refers to Thompson’s duties of dispatching fuel delivery
drivers,

tracking

warehouse

inventory,
5 

handling

customer

complaints and remaining in contact with his division manager,
all of which can be categorized as “generally assist[ing] with
the running of Scott’s business.”

(Doc. 11).

Scott further

argues that Thompson’s duties involved the use of discretion and
independent judgment in that he was authorized to adjust fuel
prices to some customers within a preset range of two cents per
gallon and could recommend additional price adjustments to his
division managers.
Thompson claims that he spent 20% of his days inputting
station

and

truck

tickets;

10%

reviewing

inventory

for

the

station and division; 65% waiting on customers who came to the
station to buy fuel and fuel-related products and 5% opening and
closing the store, answering customer questions and performing
general customer service related issues.

(Doc. 20, ¶ 10).

He

was the only employee at the store and did not supervise anyone.
(Doc.

20,

¶

9).

Thompson

argues

that

his

discretion

was

substantially limited by company policies and that the exercise
of such discretion (two cent discount on fuel) had little impact
on Scott’s business and profit margins.
his

time

was

spent

selling

a

Because a majority of

product

in

a

service

related

establishment and his ability to perform duties directly related
to

the

general

business

operations

was

restricted

by

the

oversight of his supervisors, Thompson argues that he cannot fit
within the administrative exemption.
6 

In

response

to

Thompson’s

Motion

for

Summary

Scott continues to argue Thompson is exempt.

Judgment,

Scott produced an

affidavit from its General Manager stating that Thompson was not
always in the office from 7:30 a.m. to 5:00 p.m. and that he was
paid significantly more than employees it employed to handle
counter

activity,

answer

telephones,

payment for sales at the pump.

take

orders

and

(Doc. 27, Ex. 1).

collect

Scott also

produced an application for employment filled out by Thompson
after his termination from Scott, wherein Thompson described his
previous
liquid

duties

as

inventory

highlights

“customer

and

portions

service,

sales.”
of

(Doc.

Thompson’s

billing
27,

and

Ex.

deposition,

invoicing,

3).
in

Scott
which

he

testified that he was called a manager, that he had been asked
by

a

regional

manager

to

“run

the...

office”,

“mainly did paperwork and talking on the phone.”
4).
in

and

that

he

(Doc. 27, Ex.

Scott provided the General Manager’s deposition testimony
which

Thompson

the

GM

was

“responsibility.

stated

exempt

he

had

because

come
he

to
had

the

conclusion

that

“discretion”

and

(Doc. 27, Ex. 5).

In Thompson’s Response to Scott’s Motion to Dismiss, he
contends that he did not perform the majority of the activities
set out in 29 C.F.R. § 541.201 and that the ones he did perform
were restricted by the oversight of his supervisors and the

7 

amount of time he spent on them (purchasing) was insignificant.
(Doc. 21.)
Scott is correct that the percentage of time an employee
spends on administrative tasks is but one factor in determining
if administration was the employee’s primary duty.

See Spinden

v. GS Roofing Products Co., Inc., 94 F.3d 421, 427 (8th Cir.
1996).

The Eighth Circuit also said in Spinden that “the amount

of time devoted to administrative duties, and the significance
of

those

duties,

present

factual

(internal citations omitted.)
the

burden

to

“demonstrate[ing]

prove
that

questions.”

Id.

at

426

Furthermore, the employer bears

that

the

their

exemption

employees

fit

applies
‘plainly

unmistakably within the exemption’s terms and spirit.”

by
and

Id. at

426 (internal citations omitted).
In cases such as this, the demanding fact-based inquiry is
not appropriate for summary judgment. While it is the Court's
role to determine Thompson’s status, the record does not serve
to

satisfy

Scott’s

administrative

roles

administrative

duties.

burden
were
Nor

of

showing

more
is

important
it

that
than

sufficient

to

Thompson’s
his

non-

show

that

Thompson fits “plainly and unmistakably” within the exemption
which is to be “narrowly construed in order to further Congress’
goal of providing broad federal employment protection.”
at 426 (internal citations omitted).
8 

Spinden

There are facts which could lead to the conclusion that
Thompson’s primary duty was administrative and facts that could
lead to the opposite conclusion.

The parties do not agree on

what Thompson did during his workday or how much discretion and
responsibility he had.
credibility

which

need

In addition, there may be issues of
to

be

addressed.

Genuine

issues

of

material fact relating to whether Plaintiff’s primary duties at
Scott’s Petroleum fell within FLSA's administrative exemption
for overtime pay preclude the grant of the parties’ Motions for
Summary Judgment.
The Court declines to address the ancillary issue of the
fluctuating workweek.

This issue is best addressed if and when

it becomes appropriate at trial.
IV. CONCLUSION
Accordingly, Defendant’s Motion for Summary Judgment (Doc.
10) is DENIED and Plaintiff’s Motion for Summary Judgment (Doc.
18) is DENIED and this matter remains set for a jury trial on
Monday, March 26, 2012 beginning at 9:00 a.m.

Attorneys will be

present at 8:00 a.m. to discuss trial-related matters.

IT IS SO ORDERED this 9th day of March, 2012.

/s/ Robert T. Dawson
Robert T. Dawson
United States District Judge
9