Knight v. Valley Country Club, The et al

Filing 29

ORDER. ORDERED that defendants The Valley Country Club, Mark Tiernan, and Andreya Bender's Motion for Summary Judgment [Docket No. 22] is DENIED. Entered by Judge Philip A. Brimmer on 08/31/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02470-PAB-MJW
LAURA L. KNIGHT,
Plaintiff,
v.
THE VALLEY COUNTRY CLUB, a Colorado non-profit corporation,
MARK TIERNAN, and
ANDREYA BENDER, an individual,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Summary Judgment [Docket
No. 22] filed by defendants The Valley Country Club (“VCC”), Mark Tiernan, and
Andreya Bender. Plaintiff filed this action under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201 et seq., to recover overtime she alleges defendants failed to pay her.
Defendants’ summary judgment motion raises the issue of whether plaintiff falls within
the “administrative exemption” of the FLSA. The Court has jurisdiction pursuant to 28
U.S.C. § 1331.
I. BACKGROUND1
VCC is a private country club with golf, tennis, and swimming facilities as well as
a dining facility. Docket No. 22 at 2, Statement of Undisputed Material Facts (“SUMF”)
1. VCC hosts catered events for members and nonmembers as well as catered holiday

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The following facts are undisputed unless otherwise indicated.

events. Id. SUMF 2. In January 2008, VCC hired plaintiff as the Catering Director, at
an annual salary of $43,000. Id. at 3, SUMF 3-4. Plaintiff was eligible for a bonus
depending on the amount of revenue she generated from catered events. Id. SUMF 4.
Plaintiff reported directly to VCC’s executive chef. Id. SUMF 5. VCC’s marketing
material for special events highlighted the ease of planning events. See Docket No. 273 at 4 (“Our three step planning process is designed to make planning your event easy
and efficient so you may concentrate on your other priorities. Our process is: Secure
Your Date and Time[,] Select Your Meal Choices[,] Select Your Beverages”).
The parties dispute the precise nature of plaintiff’s work as Catering Director.
Defendants state that plaintiff was “in charge of planning” all member and nonmember
club and banquet events. Docket No. 22 at 3, SUMF 6. Plaintiff responds that she was
not in charge but, rather, that she worked under supervision and in committees. Docket
No. 27 at 2, Response to SUMF 6. 2
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In many instances, defendants overstate plaintiff’s deposition testimony. For
instance, in defendants’ SUMF 7, they claim that plaintiff was “authorized to waive
certain fees at her discretion.” Docket No. 22 at 4. The cited testimony, however,
provides no support for defendants’ statement. When asked if she had authority to
waive the “room charge” for events, plaintiff responded that she remembered one
occasion on which she “asked . . . if we could waive the room charge,” and indicated
that the couple for whom she made the request may have been a former employee.
See Docket No. 22-1 at 17, 66:24-67:6. This does not support defendants’ claim that
plaintiff had “the unilateral discretion to waive certain fees.” Docket No. 22 at 13.
Defendants’ SUMF 8 implies that one of plaintiff’s primary duties was “work[ing] with the
Chef to create a menu” to fit the client’s needs. Id. at 4. Plaintiff’s testimony, however,
states that VCC had a packet with pre-set menus and that, if a customer wanted
something that was not on those menus, “we could customize” a different menu.
Docket No. 22-1 at 8-9, 29:14-30:5. Likewise, defendants’ SUMF 10 states that plaintiff
“was the face of VCC when it came to catered events” and that she “worked with the
clients, staff, and vendors to ensure the clients had the experience they desired.” Id. at
4. The cited evidence, however, is defendants’ counsel’s characterization that, if a
client who booked an event came in before the event to “kind of make sure everything .
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Plaintiff was present for nearly every catered event and would review details
with the staff beforehand. Docket No. 22 at 4, SUMF 9. Defendants state that plaintiff
“oversaw” all regularly-scheduled events, including yearly holiday events, See Docket
No. 22 at 4, SUMF 11. Plaintiff disputes this. Docket No. 27 at 3, Response to SUMF
11. Plaintiff maintains that decisions concerning events were made by a committee and
that her role was implementing the committee’s decisions, Docket No. 22-1 at 15,
58:23-59:15; that the wait staff was primarily responsible for responding to problems
with food service, id., 61:19-25; that plaintiff’s role in responding to client complaints
was to bring them to the chef, id. at 16, 62:6-13, and that work performed during
banquets was a team effort. Id. 62:21-25. Plaintiff claims that the person who gave
“direction” related to problem solving alternated among plaintiff, the Banquet Captain,
and the Food and Beverage Director. Id. 62:21-63:16. Plaintiff did not have an
assigned work or break schedule and was not required to clock in or out. Docket No.
22 at 5, SUMF 14-15. Instead, plaintiff had discretion to decide when to begin work and
when to leave after her work was completed. Id. at 6, SUMF 19.
Plaintiff was responsible for soliciting business from non-VCC members. Id.
SUMF 21. Plaintiff hosted and attended lunch events with catering directors from other
venues. Id. SUMF 24. The catering directors who attended these luncheons would

. . is set up right, looks right,” plaintiff would be the person who would “kind of do that
walk-through[.]” Docket No. 22-1 at 16, 62:14-19. Plaintif f responded that defendants’
counsel’s characterization was correct “[m]ost of the time.” Id. 62:20. Defendants cite
no testimony that supports that plaintiff worked with staff or vendors. Plaintiff
consistently testified that staffing events was not part of her duties, see id. at 9, 31:7-12,
15, 60:1-9, 61:2-8, and that she only directed the wait staff at events when the Food
and Beverage Director was not present. Id. at 15, 61:15-18.
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regularly refer clients to each other when clients sought to book their events on a date
that was not available. Id.; see also Docket No. 22-1 at 8, 28:22-29:13. Plaintif f states
that “[a]pproximately 80%” of her work time was spent communicating with customers
and potential customers. Docket No. 27-3 at 2, ¶ 6. Plaintiff states that this
communication involved “showing customers [VCC’s] banquet rooms, providing price
lists and other materials to customers and preparing banquet event orders.” Id. In
2013, plaintiff sold 396 member and non-member events at VCC and assisted in 73
club events. Id. ¶ 7. The VCC club events, which included holiday events, were
provided as a benefit of club membership and did not generate meaningful revenue for
VCC. Id. ¶ 8. VCC terminated plaintiff’s employment on April 21, 2014. Docket No. 22
at 6, SUMF 25.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.

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1997). Where “the moving party does not bear the ultimate burden of persuasion at
trial, it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal quotation
marks omitted)). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party
may not rest solely on the allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324;
see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the nonmovant must
establish, at a minimum, an inference of the presence of each element essential to the
case.” Bausman, 252 F.3d at 1115 (citation omitted). When reviewing a motion for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. Id.; see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
III. ANALYSIS
Under the FLSA, an employer must pay an employee overtime compensation at
a rate not less than one and one-half times the employee’s regular rate of employment
for all hours that the employee works in a given week above 40 hours. 29 U.S.C.
§ 207(a)(1) (the “overtime requirement”). The FLSA includes a number of exemptions
to the overtime requirement. The relevant exemption in this case is the so-called

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“administrative exemption,” which applies to “any employee employed in a bona fide . . .
administrative . . . capacity[.]” 29 U.S.C. § 213(a). Regulations promulgated by the
Department of Labor define an administrative employee as any employee:
(1) Compensated on a salary or fee 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 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) whose primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.
29 C.F.R. § 541.200(a). “Exemptions are to be narrowly construed, and the employer
bears the burden of showing the employee fits plainly and unmistakenly within the
exemption’s terms.” Spradling v. City of Tulsa, Okla., 95 F.3d 1492, 1495 (10th Cir.
1996).
Plaintiff does not dispute that she satisfies the minimum salary requirement of an
administrative employee but argues that her primary duty was not directly related to the
management of general business operations and did not involve the exercise of
sufficient discretion and independent judgment on matters of significance to render her
exempt from the overtime requirement. The Court addresses each of these issues in
turn.
The second element of the administrative exemption test is whether plaintiff’s
primary duty is the performance of work “directly related to the management or general
business operations of the employer or the employer’s customers.” 29 C.F.R.
§ 541.200(a)(2). “The phrase ‘directly related to the management or general business
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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.”
Id. § 541.201(a). 3
“The term ‘primary duty’ means the principal, main, major or most important duty
that the employee performs.” 29 C.F.R. § 541.700(a). Although “[t]he amount of time
spent performing exempt work can be a useful guide” in determining an employee’s
primary duty, “[t]ime alone . . . is not the sole test.” Id. § 701(b). Factors to consider
include “the relative importance” of any exempt duties “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.” Id. § 541.700(a). “[T]he question of which duty is the ‘primary duty’ is a
question of fact.” Maestas v. Day & Zimmerman, LLC, 664 F.3d 822, 828 (10th Cir.
2012).
Defendants argue that it is “undisputed that Plaintiff’s primary duty as the
Catering Director was to plan, organize, and execute member and nonmember events

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Examples of work “directly related to management or general business
operations” include, but are not limited to, “functional areas such as tax; finance;
accounting; budgeting; auditing; insurance; quality control; purchasing; procurement;
advertising; marketing; research; safety and heath; 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.” 29 C.F.R. § 541.201(b).
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at VCC,” that plaintiff “scheduled herself to ensure she was present for nearly every
event,” and that the “vast majority of Plaintiff’s time was spent working with clients to
plan and organize their events.” Docket No. 22 at 9. Defendants state that plaintiff
solicited new nonmember business, attended networking events on behalf of VCC, and
worked directly with clients to plan and execute events. Id. at 10. Plaintiff responds
that her primary duties were sales and sales-related tasks and that the task of
interacting with customers looking for a venue to host an event and providing them with
information about VCC’s facilities and pricing occupied approximately 80% of her time.
Docket No. 27 at 7; see also Docket No. 27-3 at 2, ¶ 6.
The Court finds that defendants have not met their burden of showing “clearly
and unmistakenly” that plaintiff’s primary duty was directly related to management or
general business operations. Spradling, 95 F.3d at 1495. The parties seem to agree
that plaintiff spent a good deal of time interacting with clients and potential clients, but
they disagree about how to characterize that interaction. Defendants characterize
plaintiff’s client interaction as reflecting an administrative function, “interact[ing] with
clients on all issues ranging from decorations, to layout of the event, to entertainment
and vendors, to creating a menu and providing alcohol.” Docket No. 22 at 10. Plaintiff,
however, characterizes her client interaction as primarily sales-based. Docket No. 27 at
7.4 Plaintiff also introduces evidence from Robert Banker, a former VCC employee who
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Defendants argue that, to the extent the Court accepts plaintiff’s
characterization of her work in her affidavit as sales-based, the affidavit should be
rejected as a sham affidavit that contradicts her deposition testimony. Docket No. 28 at
3, n.2. The Court disagrees. Defendants do not cite any testimony that relates to the
amount of time that plaintiff spent on any specific activity and therefore have not
demonstrated any contradiction between plaintiff’s deposition and her affidavit.
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was in charge of human resources, who describes plaintiff as an “order-taker” whose
primary duty “was to speak to or meet with prospective customers,” show them “a preprinted set of available menus and tell them about or show them the rooms that were
available at VCC for such events.” Docket No. 27-4 at 2, ¶ 6. 5
Defendants cite Hines v. State Room, Inc., 665 F.3d 235, 242-43 (1st Cir. 2011),
for the proposition that a catering director whose job requires him or her to work with
clients to create custom events satisfies the second element of the administrative
exemption test. See Docket No. 22 at 11. In Hines, the court found that former sales
managers satisfied the second element of the administrative exemption test. See id.
Hines is distinguishable from this case in numerous respects. First, the Hines court
found that the “principal business” of the defendant was providing banquets. 665 F.3d
at 242. Here, by contrast, defendants describe VCC as a “private country club with golf,
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Defendants ask the Court to reject Mr. Banker’s statements as a sham affidavit
on the grounds that it contradicts plaintiff’s deposition testimony. Docket No. 28 at 5.
The Court will not do so. First, defendants mischaracterize much of Mr. Banker’s
testimony. For example, defendants say that Mr. Banker testified that plaintiff “only
offered standardized menu items and could not customize menus or events.” Id. Mr.
Barker’s testimony was that plaintiff “could only deviate from pre-printed menus with the
direct approval and pricing instruction from the Chef.” Docket No. 27-4 at 3, ¶ 9. As
discussed in this order, defendants’ characterization of plaintiff’s supposedly wideranging authority to customize menus misstates her testimony. The Court sees no
contradiction between Mr. Banker’s affidavit and plaintiff’s deposition testimony on this
point. Second, defendants cite to no Tenth Circuit case applying the sham affidavit
doctrine to third parties. The Ninth Circuit case that defendants cite stands for the
opposite proposition. See Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009)
(“we decline to extend our sham affidavit jurisprudence to preclude the consideration of
testimony from third parties that is arguably inconsistent with a party’s own testimony”).
The Eighth Circuit case that defendants cite mentioned the sham affidavit doctrine in
the context of rejecting a third-party affidavit, but also held that, due to the third party’s
own internal contradictions, “no reasonable jury” could return a verdict for the plaintiff
based on the contradictory testimony. Prosser v. Ross, 70 F.3d 1005, 1009 (8th Cir.
1995).
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tennis and swimming facilities” in addition to its banquet facility. Docket No. 22 at 2,
SUMF 1. Moreover, plaintiff states in her affidavit that the club’s dining facility was used
to put on events for members that cost VCC money rather than generating revenue.
See Docket No. 27-3 at 2, ¶ 8. Thus, unlike the defendant in Hines, VCC’s primary
business was not holding banquets. Moreover, the Hines court stressed that one of the
primary goals of the plaintiffs’ job was to “create a truly custom event for each client,”
Hines, 665 F.3d at 245, and that the plaintif fs “worked with each client to create a
custom event in all of the particulars.” Id. at 243. The Hines plaintiffs were required to
“proactively manage client expectations” and they were “accountable for the ‘life’” of
clients “while they book, and then plan and execute their event” with the defendant. Id.
at 237. Here, plaintiff provides evidence that she was an “order-taker” who was
“responsible for offering standardized items to customers.” Docket No. 27-4 at 2-3,
¶¶ 6, 9. Plaintiff has also provided evidence that VCC marketed itself to potential
customers as a venue that would make event planning “easy and efficient” so that
customers can “concentrate on [their] other priorities,” Docket No. 27-3 at 4, rather than
a venue that specialized in creating “custom event[s] in all of the particulars.” Hines,
655 F.3d at 243.
The Court finds that, based on the evidence plaintiff has introduced concerning
the scope of her duties, a reasonable jury could conclude that her primary duty involved
sales of VCC’s banquet service. This dispute bears directly on whether plaintiff
qualifies under the administrative exemption, since “selling a product in a . . . service
establishment” is not a duty that is “directly related to management or general business

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operations.” 29 C.F.R. § 541.201. The parties’ differing interpretations of plaintiff’s
duties create a genuine issue of material fact that is properly for a jury to resolve.
Because the Court finds that defendants have not satisfied their burden of
showing that plaintiff’s primary duty was directly related to the management or general
business operations of her employer, summary judgment is inappropriate. The Court
need not and does not consider whether defendants have met their burden, under the
third element of the administrative exemption test, to show that plaintiff’s primary duty
includes the exercise of discretion and independent judgment with respect to matters of
significance.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendants The Valley Country Club, Mark Tiernan, and
Andreya Bender’s Motion for Summary Judgment [Docket No. 22] is DENIED.
DATED August 31, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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