Perkins v. Southern New England Telephone Co Inc

Filing 361

RULING denying 307 Motion for Summary Judgment; terminating 338 Motion to Strike as moot. Signed by Judge Janet C. Hall on 6/1/2011. (Simpson, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SHARON L. PERKINS, ET AL.,
Plaintiffs,
v.
SOUTHERN NEW ENGLAND
TELEPHONE CO.,
Defendant.

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CIVIL ACTION NO.
3:07-CV-967 (JCH)

JUNE 1, 2011

RULING RE: DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
(Doc. No. 307) AND PLAINTIFFS’ MOTION TO STRIKE (Doc. No. 338)
I.

INTRODUCTION
Plaintiffs, Sharon Perkins, Michael Blasko, Joseph Kiely, Michael McDermott,

and Kelly Werbinski, bring this action against defendant, Southern New England
Telephone Co. (“SNET”), on behalf of themselves and a class of similarly situated
employees (collectively, “class plaintiffs”), alleging that they were not paid for overtime
work in violation of the Fair Labor Standards Act (“the FLSA”), 29 U.S.C. § 207 and
Connecticut General Statutes §§ 31-60(a) and 31-76(c). See Second Am. Compl.
(Doc. No. 118).
On January 18, 2011, SNET filed a Motion for Partial Summary Judgment (Doc.
No. 307) with respect to class plaintiffs’ state law claims. According to SNET, class
plaintiffs qualify as executive employees under the relevant Connecticut statutory and
regulatory provisions and are, therefore, as a matter of law, exempt from the state
overtime requirements.
1

For the following reasons, the court denies defendant’s Motion for Partial
Summary Judgment. In light of this Ruling, the court terminates plaintiffs’ Motion to
Strike (Doc. No. 338) as moot.
II.

FACTUAL BACKGROUND1
On November 4, 2009, this court certified a Rule 23 class action of SNET First

Level Managers (or “Level Ones”). See Doc. No. 204. The parties have stipulated that
this class is defined to include:
only those Level One employees in two titles (Manager Network Services
and Manager Construction and Engineering) who were assigned technicians
with specific bargaining unit titles as follows: Network Delivery Technician,
Network Deployment Technician, Installation and Repair Technician, Outside
Plant Technician, Premises Technician, Service Delivery Technician, Service
Delivery Technician-Business.
L.R. 56(a)(1) Stmt. ¶ 1 (Doc. No. 309).
Level Ones are classified as “managers” by SNET and have held that title at all
times relevant to this case. L.R. 56(a)(1) Stmt. ¶ 8. According to SNET, this title
appropriately accounts for the duties Level Ones engage in during their workday. In
contrast, however, class plaintiffs describe their duties as clerical and wholly lacking the
imprimaturs of management.
Little is agreed upon between the parties in this case. See L.R. 56(a)(2) Stmt.
(class plaintiffs denying twenty-seven out of thirty-two separately identified “facts” cited

1

The court would norm ally rely heavily on defendant’s Local Rule 56(a)(1) Statem ent in order
to articulate the factual background. The Statem ent will generally include a substantial num ber of
undisputed facts. Unfortunately, this docum ent is all but useless to the court in the present case. The
vast m ajority of defendant’s “facts” are too broad and too contentious to perm it a straightforward
adm ission or denial. See, e.g., L.R. 56(a)(1) Stm t. ¶ 13 (“Plaintiffs also arrange for their Techs to
participate in inform al “peer to peer” training with another Tech or provide “on the job training,” and
ensure that Techs have the appropriate training on new or changing technologies.” (em phasis
added)). Class plaintiffs cannot be expected to adm it or deny such “facts.” As such, the court will
generally rely on the factual record.

2

by SNET). It is clear that Level Ones work in one of three different subdivisions of
SNET, Core Installation & Maintenance (“I&M”), Construction and Engineering (“C&E”),
or U-verse, and that they are assigned to work with anywhere from ten to thirty
technicians (“Techs”). See L.R. 56(a)(1) Stmt. ¶¶ 2-3.2 Level Ones report to “Area
Managers,” who supervise anywhere from five to twelve Level Ones and upwards of
100 Techs. Id. at ¶ 6. These Area Managers supervise Level Ones at multiple sites
and are typically not on-site to oversee Levels Ones or Techs. Id. at ¶ 7.
Level Ones meet daily with their assigned Techs to review an agenda. Id. at ¶
10; L.R. 56(a)(2) Stmt. ¶ 10 (disputing nature of meetings, but not disputing that they
took place on a daily basis). At these meetings (or “huddles”), Level Ones provide to
their assigned Techs safety alerts, company policies, and information on their Techs’
productivity. See, e.g., Keith Dep. 46:22-47:3, Oct. 8, 2008 (safety alerts and company
policies); McKeon Dep. 38:24-39:5, Aug. 11, 2010 (productivity). These meetings also
appear to be opportunities to discuss jobs that were previously finished or ones that
were planned for that day. See, e.g., McKeon Dep. 39:9-10 (“The technicians may
bring up a roadblock or two based on the day before’s work.”); M. Theriault Dep. 43:1618, June 8, 2010 (“[O]n occasion, there is [sic] jobs that I need to talk about.”). Daily
huddles appear to last up to twenty minutes. See, e.g., McKeon Dep. 39:21-24
(“Company policy it should last about ten minutes. It could go a little longer, 20 minutes
depending on the subject that needs to be covered or the discussion that we are
having.”).

2

Although class plaintiffs “deny” these paragraphs, they do not cite facts disputing either that
Level Ones are assigned technicians or that they work in the three m entioned subdivisions of SNET.
See L.R. 56(a)(2) Stm t. ¶¶ 2-3.

3

Outside of these meetings, Level Ones engage with their assigned Techs on a
variety of levels. Level Ones inform Techs of any necessary training and sometimes
facilitate such training. See, e.g., Greco Dep. 58:3-6, July 27, 2010; Troiano Dep.
173:13-19, Aug. 10, 2010 (agreeing that Level Ones would coordinate technician
pairings for training). Level Ones assist in removing “roadblocks” between Techs and
their projects. See, e.g., L. Albert Dep. 35:4-7, Aug. 10, 2010; Poirier Dep. 50:21-51:6,
July 8, 2010. Level Ones perform site inspections, review performance metrics, and
conduct “ride alongs” with their Techs from time to time. See, e.g., Barber Dep. 56:557:12, 60:4-61:12, Sept. 23, 2008 (site inspections); Burdon Dep. 248:10-18, July 14,
2010 (“ride alongs”); Greco Dep. 96:3-13 (review of performance metrics); see also
Fermo Dep. 37:4-7, Aug. 19, 2010 (noting that, although he did not participate in ridealongs, he planned to). Level Ones also review Techs’ timesheets3 and supply orders,
occasionally separately order supplies, and conduct safety sweeps of their garages.
See, e.g., L. Albert Dep. 40:12-18 (ordering supplies); Barber Dep. 35:24-37:8
(timesheets); Lavery Dep. 119:22-24, Sept. 26, 2008 (safety sweeps); Reynolds Dep.
201:8-15, July 21, 2010 (reviewing supply orders).
Class plaintiffs are quick to point out at every turn—and SNET does not appear
to dispute—that Level Ones do not have very much discretion in conducting these
various tasks. See, e.g., L.R. 56(a)(2) Stmt. ¶ 47; Def.’s Reply to L.R.56(a)(2) Stmt. ¶

3

Class plaintiffs “deny” this fact. See L.R. 56(a)(2) Stm t. ¶ 25. However, none of the cited facts
contradict the fact that “[p]laintiffs review and sign off on tim e sheets of the Techs assigned to them .” L.R.
56(a)(1) Stm t. ¶ 25.

4

47.4 Rather, Level Ones’ duties are heavily circumscribed. Everything from the daily
“huddles” to site inspections to Techs’ training requirements is carefully laid out with no
input from Level Ones. See, e.g., L. Albert Dep. 173:24-174:4 (“I can’t make a
decision. . . . I have to get direction on everything that I do. I can’t order a screwdriver,
and I’m being told everything to do.”). Level Ones are required to follow guidelines and
checklists and do not have an opportunity to inject their viewpoints into any of the
processes they supposedly oversee. See, e.g., Barber Dep. 165:22-166:3 (“I follow
company procedure and guidelines all day long . . . . My day is spent following
guidelines and passing that onto my technicians.”).
III.

STANDARD OF REVIEW
A motion for summary judgment “may properly be granted . . . only where there

is no genuine issue of material fact to be tried, and the facts as to which there is no
such issue warrant judgment for the moving party as a matter of law.” In re Dana Corp.,
574 F.3d 129, 151 (2d Cir. 2009). Thus, the role of a district court in considering such a
motion “is not to resolve disputed questions of fact but only to determine whether, as to
any material issue, a genuine factual dispute exists.” Id. In making this determination,
the trial court must resolve all ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought. See Loeffler v. Staten Island Univ. Hosp.,
582 F.3d 268, 274 (2d Cir. 2009).

4

Class plaintiffs object to SNET’s separate “Statem ent in Reply.” See Pls.’ Mot. to Strike (Doc.
No. 338). W hile the court has never seen a statem ent of this nature and doubts its perm issibility under
the Local Rules, the court did find the statem ent helpful in identifying which facts cited by plaintiffs were
and were not disputed by defendants. In light of the court’s Ruling in favor of class plaintiffs below, the
court does not need to address their objection to this pleading.

5

“[T]he moving party bears the burden of showing that he or she is entitled to
summary judgment.” United Transp. Union v. Nat’l R.R. Passenger Corp., 588 F.3d
805, 809 (2d Cir. 2009). Once the moving party has satisfied that burden, in order to
defeat the motion, “the party opposing summary judgment . . . must set forth ‘specific
facts’ demonstrating that there is ‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). “A dispute about a ‘genuine
issue’ exists for summary judgment purposes where the evidence is such that a
reasonable jury could decide in the non-movant’s favor.” Beyer v. County of Nassau,
524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d
Cir. 2007)); see also Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir.
2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (stating that a
non-moving party must point to more than a mere “scintilla” of evidence in order to
defeat a motion for summary judgment).
IV.

DISCUSSION
Class plaintiffs bring this action pursuant to both the Connecticut Minimum Wage

Act (“the CMWA”) and the FLSA, see Second Am. Compl. ¶¶ 148-66, and SNET
asserts defenses under both statutes, see Answer at 6 (Doc. No. 139). The present
Motion, however, is brought only with respect to the CMWA claims and that statutes’
executive exemption. See generally Def.’s Mem. (Doc. No. 308). SNET argues that
class plaintiffs are executive employees, as a matter of Connecticut law, and that
summary judgment is appropriate on plaintiffs’ CMWA claims.
However, upon review of the facts on the record, including the excerpts from the
depositions of more than fifty class members, the court concludes that there are
6

material issues of fact such that a reasonable jury might determine that Level Ones are
non-exempt employees under the CMWA. For this reason, the court denies SNET’s
Motion for Partial Summary Judgment.
A.

Regulatory Language

The executive exemptions found in the FLSA and CMWA regulations are very
closely matched. In fact, until 2004, the relevant language was essentially identical.
Compare Conn. Agencies Regs. § 31-60-14(a), with 29 C.F.R. § 541.1 (2003). As of
2004, however, the federal regulations eliminated what were previously known as the
“short” and “long” test versions of the executive exemption. See 29 C.F.R. § 541.100.
In order to frame its later discussion, the court below sets out the current and former
state and federal schemes.
The court rejects SNET’s suggestion that it interpret the Connecticut regulations
in a vacuum, without relying on federal law, given the slight differences between the
provisions. See Def.’s Mem. 3-4, 6, 8-9. The Connecticut Supreme Court has made it
clear that, when interpreting the CMWA, Connecticut courts rely on federal precedent
interpreting analogous provisions of the FLSA. See Roto-Rooter Servs. Co. v. Dep’t of
Labor, 219 Conn. 520, 528 n.8 (1991). The federal and state regulations were virtually
the same until 2004, so interpretations of the pre-2004 federal regulations are clearly
relevant to this court’s inquiry. Further, the language in the federal regulations has not
substantially changed and, thus, even cases interpreting the post-2004 regulations are
pertinent to the court’s analysis.
1.

The CMWA “Short” and “Long” Tests

7

Connecticut regulations currently provide that the executive exemption includes
any employee:
(1) whose primary duty consists of the management of the enterprise in
which he is employed or of a customarily recognized department or
subdivision thereof; and
(2) who customarily and regularly directs the work of two or more other
employees therein; and
(3) who has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring or firing and as to the
advancement and promotion or any other change of status of other
employees will be given particular weight; and
(4) who customarily and regularly exercise discretionary powers; and
(5) who does not devote more than twenty percent . . . of his hours of work
in the workweek to activities which are not directly and closely related to the
performance of the work described in subdivisions (1) to (4), inclusive, of this
section; . . . and
(6) who is compensated for his services on a salary basis at a rate of not less
than four hundred dollars per week . . . .
Conn. Agencies Regs. § 31-60-14(a). This test is sometimes known as the “long” test.
For employees who make $475 or more per week, however, the regulations provide for
a truncated—or “short”—test, which renders exempt any employee “whose primary duty
consists of the management of the enterprise in which he is employed or of a
customarily recognized department or subdivision thereof, and includes the customary
and regular direction of the work of two or more other employees therein.” Id.
Connecticut regulations do not provide any further explication of the terms used
throughout these provisions, such as “management” or “primary duty.” However, the
Connecticut Department of Labor has released a worksheet to assist employers in
identifying whether or not an employee is exempt.5 Included in this worksheet is a list of

5

This worksheet is available on the Connecticut Departm ent of Labor website, at
www.ctdol.state.ct.us/ wgwkstnd/form s/pay001.pdf.

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exempt, “managerial” duties, including:
• Interviewing, selecting, hiring and training employees.
• Setting and adjusting pay rates and work hours or recommending same.
• Directing work.
• Keeping production records of subordinates for use in supervision.
• Evaluating employees’ efficiency and productivity.
• Handling employees’ complaints.
• Disciplining employees including termination, or recommendation to terminate.
• Planning work.
• Determining techniques to be used at work.
• Distributing work to others.
• Deciding on types of merchandise, materials, supplies, machinery, or tools.
• Controlling flow and distribution of merchandise, materials and supplies.
• Providing for safety of employees and property.
• Establishing strategy, making financial or marketing decisions, etc.
CDOL Worksheet at 3-4 (Doc. No. 323-4). This list is quite similar to the one found in
the FLSA regulations, discussed further below.
2.

The FLSA Regulations Pre- and Post-2004

The federal regulations under the FLSA were virtually identical to Connecticut
provisions until 2004. These regulations also included a short and long test. The long
test exempted any employee:
(a) Whose primary duty consists of the management of the enterprise in
which he is employed or of a customarily recognized department of
subdivision thereof; and
(b) Who customarily and regularly directs the work of two or more other
employees therein; and
(c) Who has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring or firing and as to the
advancement and promotion or any other change of status of other
employees will be given particular weight; and
(d) Who customarily and regularly exercises discretionary powers; and
(e) Who does not devote more than 20 percent . . . of his hours of work in
the workweek to activities which are not directly and closely related to the
performance of the work described in paragraphs (a) through (d) of this
section . . . ; and
(f) Who is compensated for his services on a salary basis at a rate of not less
than $155 per week . . . .
9

29 C.F.R. § 541.1 (2003). The pre-2004 short test exempted employees making more
than $200 per week, “whose primary duty consists of the management of the enterprise
in which the employee is employed or of a customarily recognized department or
subdivision thereof, and includes the customary and regular direction of the
work of two or more other employees therein.” Id.
As of 2004, however, the regulations changed and the distinction between the
short and long tests disappeared. Now, federal regulations exempt an employee:
(1) Compensated on a salary basis at a rate of not less than $455 per week
...;
(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 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).
Federal regulations also provide further instructions with respect to the
definitions of both “management” and “primary duty.” Before 2004, the regulations
provided a list of duties that were generally understood to be managerial, including:
Interviewing, selecting, and training of employees; setting and adjusting their
rates of pay and hours of work; directing their work; maintaining their
production or sales records for use in supervision or control; appraising their
productivity and efficiency for the purpose of recommending promotions or
other changes in their status; handling their complaints and grievances and
disciplining them when necessary; planning the work; determining the
techniques to be used; apportioning the work among the workers;
determining the type of materials, supplies, machinery 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
of the men and the property.
10

29 C.F.R. § 541.102(b) (2003). The 2004 regulations added three additional duties to
this list, including “providing for the . . . 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 pre-2004 explanation of primary duty included four factors a court should
consider, in addition to “[t]he amount of time spent in the performance of the
managerial duties,” including:
the relative importance of the managerial duties as compared with other
types of duties, the frequency with which the employee exercises
discretionary powers, his relative freedom from supervision, and the
relationship between his salary and the wages paid other employees for the
kind of nonexempt work performed by the supervisor.
29 C.F.R. § 541.103 (2003). The current statutes no longer mention “the frequency
with which the employee exercises discretionary powers.” See 29 C.F.R. § 541.700.
However, courts understand this factor to be incorporated into an analysis of an
employee’s “relative freedom from supervision.” See, e.g., Morgan v. Family Dollar
Stores, 551 F.3d 1233, 1270 n.57 (11th Cir. 2008) (“Having discretionary power is one
aspect of freedom from supervision.”).
B.

Executive Exemption as Applied to Level Ones

Class plaintiffs stipulate that they satisfy the salary requirements of the CMWA’s
short test. Therefore, SNET need only prove two things in order for Level Ones to
qualify as exempt: (1) that Level Ones’ primary duty is management and (2) that Level
Ones direct the work of two or more other employees. See Conn. Agencies Regs. §
31-60-14. Further, the court will assume that, if SNET could prove the first prong of the

11

exemption—that Level Ones’ primary duty is management—than it can also prove that
Level Ones direct the work of two or more employees.6
Thus, the court need only determine whether Level Ones’ “primary duty is
management.” For the reasons stated below, the court is of the view that there are
material issues of fact7 such that a reasonable jury could find (1) that Level Ones’ work
is not managerial, and (2) that, to the extent Level Ones engage in managerial work,
such work is not their primary duty.
1.

“Management”

The term “management” is not self-defining. Titles are cheaply had, and little
weight, if any, can be given to the fact that SNET labels their employees “managers.”
See, e.g., Dep’t of Labor v. City of Sapulpa, Okla., 30 F.3d 1285, 1288 (10th Cir. 1994)
(“The common thread in each of these cases is that a title . . . provides no guidance
. . . .”). Further, the fact that Level Ones take advantage of this title in constructing their
resumes is both unsurprising and unhelpful. See Thomas v. Speedway SuperAmerica,
LLC, 506 F.3d 496, 503 (6th Cir. 2007) (“[C]ourts cannot rely on the plaintiff’s or the
employer’s description of the plaintiff’s position or authority . . . .” (emphasis removed))
Instead, the “primary factor . . . is the nature of [the employees’] duties.” Butler

6

Class plaintiffs argue this point. See Pls.’ Opp. 36-40. However, this argum ent is “closely linked”
to their argum ent that Level Ones’ prim ary duty is not m anagem ent and is addressed in the discussion of
that prong. Mullins v. City of New York, 523 F. Supp. 2d 339, 359 n.217 (S.D.N.Y. 2007). The court
rejects class plaintiffs’ suggestion that, to satisfy this elem ent, Level Ones m ust direct their Techs m ore
than eighty percent of the tim e they spend working. See Pls.’ Opp. 38-40. This requirem ent would be
com pletely at odds with the cases that have held that an exem pt m anager m ay spend m ore than fifty
percent of her tim e doing nonexem pt work. See, e.g., Donovan, 675 F.2d at 521.
7 In the following subsection 1(a)-(e), the court sets forth evidence in the record that is contrary
to defendant’s position in its Motion for Sum m ary Judgm ent. Thus, such evidence creates issues of
m aterial fact.

12

ex rel. Skidmore v. Hartford Tech. Inst., Inc., 243 Conn. 454, 467 (1997); see also
Myers v. Hertz Corp., 624 F.3d 537, 548 (2d Cir. 2010) (“The exemption question,
therefore, is a mixed question of law and fact, involving a number of subsidiary
questions . . . . Significantly, the regulations make clear that these questions should be
resolved by examining the employees’ actual job characteristics and duties.” (citation
omitted)). In aid of its analysis, the court will consider the variety of duties that have
been identified as managerial by pre-2004 federal regulations, as well as those listed in
the Connecticut Department of Labor worksheet, discussed supra. See 29 C.F.R. §
541.102; CDOL Worksheet at 3-4. Unlike class plaintiffs, however, the court does not
view these lists as “factors” in analyzing whether someone is exempt, see Pls.’ Opp. 1622, but rather as lists of actual duties that could qualify Level Ones as exempt, if any
number of these tasks can be considered Level Ones’ “primary duty.”
SNET, in its Reply, argues that Level Ones perform the following duties: (1)
“Directing work”; (2) “Evaluating employees’ efficiency and productivity”; (3) “Handling
employee’s complaints”; (4) “Distributing work to others”; (5) “Controlling flow and
distribution of merchandise, materials and supplies”; and (6) “Providing for safety of
employees and property.” Def.’s Reply at 5. However, after considering the record in a
light most favorable to class plaintiffs, the court does not agree with SNET’s
assessment.
a)

Directing, Distributing, or Apportioning Work

Level Ones disseminate information to Techs about their daily assignments and
any important information regarding their workday. See, e.g., Keith Dep. 46:22-47:3
(discussing the daily dispensation of information and tasks to Techs). However, Level
13

Ones do not determine the nature of the work to be conducted by a given Tech on any
given day. See, e.g., Baranosky Dep. 100:9-16. Rather, Level Ones receive preset
instructions on what each Tech is required to do. See, e.g., Poplawski Dep. 24:15-25,
July 7, 2010. Level Ones cannot modify these assignments, nor determine whether a
particular Tech is better suited for a particular task. See, e.g., Kiely Dep. 29:2-8, Sept.
25, 2008.
Although Level Ones hold a daily meeting with Techs for up to twenty minutes,
these meetings do not appear to be anything more than opportunities to convey
information from the Level Ones’ superiors to the Techs. See, e.g., L. Albert Dep.
18:11-21 (discussing scripted agenda). This transference of information might
conceivably be termed “directing,” “distributing,” or “apportioning.” However, the simple
fact is that the handing out of predetermined assignments is not a “management” task.
See, e.g., Gorman v. Cont’l Can Co., No. 76 C 908, 1985 WL 5201, at*22 (N.D. Ill. Dec.
31, 1985) (finding that the distribution of work did not constitute “directing” employees).
Rather, an employee must exercise some modicum of control over these processes in
order for them to appropriately qualify as exempt duties.
b)

Evaluating Employees’ Efficiency and Productivity

Level Ones review performance metrics with their technicians and conduct site
visits and “ride alongs.” See, e.g., Barber Dep. 56:5-57:12, 60:4-61:12 (site
inspections); Burdon Dep. 248:10-18 (“ride alongs”); Greco Dep. 96:3-13 (review of
performance metrics). However, as with their morning huddles, these evaluations are
circumscribed. Techs’ performance metrics are computer generated, see Fredsall Dep.
204:22-205:8, July 22, 2010 (“[W]e have to go on the site and go on that. And then we
14

look at the results. And if the results are okay, they meet them, and if the results are
bad, then they don’t meet them.”), and Level Ones do not offer advice to their Techs
with respect to their numbers, see, e.g., Burdon Dep. 157:19-59:23 (stating that he did
not make suggestions to Techs on how to improve their numbers). Level Ones conduct
their inspections and “ride alongs” with pre-written forms, on which Level Ones are
required to complete checklists and are not given an opportunity to elaborate or explain.
See, e.g., Baranowsky Dep. 89:9-21, Oct. 8, 2008; Blasko Dep. 104:12-17, Oct. 6,
2008.
Level Ones have no involvement in the creation or modification of these forms or
the data used to generate them. See, e.g., Hunt Dep. 192:16-18, Sept. 25, 2008
(stating that he had no influence over “what the goals are set as to what the number
should be”). Instead, all work analyzing and reacting to these evaluations is done by
Level Ones’ superiors. See, e.g., Marsella Dep. 188:14-15, June 16, 2010 (“[P]olicies
[are] driven by the company—corporate. We don’t draw up policy.”).
Again, although Level Ones may technically “evaluate” their assigned Techs, this
cannot be appropriately considered a “management” duty. See, e.g., Pressler v. FTS
USA, LLC, No. 4:09-cv-676, 2010 WL 5105135, at *2 (E.D. Ark. Dec. 9, 2010) (finding
plaintiff’s “primary duties were not in management,” where “he checked others’ work
using a standard form”). Absent some level of control over the design or method of
implementation of these processes, these duties cannot be considered exempt.
c)

Handling Employees’ Complaints or Grievances

Level Ones often serve as the initial recipient of a complaint or grievance from
one of their assigned Techs. However, Level Ones are not permitted to resolve these
15

concerns, but must redirect them to the Area Manager. See, e.g., Anderson Interrog.
Resp. 2 (Doc. 322-2) (“I do not have the authority to resolve grievances. It is
understood that they are rarely if ever resolved at the Level One level.”). Level Ones
would participate in “informationals,” which appear to be the beginning of the grievance
procedure. See Marsella Dep. 117:16-23. However, these meetings are not meant to
resolve grievances, and Level Ones were not involved in the actual grievance
proceedings, except to rarely respond to factual inquiries. See, e.g., L. Albert Interrog.
Resp. 2 (Doc. No. 322-1).
Level Ones cannot discipline Techs, nor do Level Ones’ views appear to be
given much, if any weight, during disciplinary proceedings. See, e.g., Fermo Dep.
236:22-237:13. Thus, contrary to SNET’s characterization, Level Ones do not appear
to “handle” these complaints or grievances. Instead, they merely direct Techs to the
appropriate person to be resolved.
d)

Controlling Flow and Distribution of Supplies

Level Ones order supplies to some extent. See, e.g., L. Albert Dep. 40:12-18.
Technicians also purchase supplies on their own, subject to Level Ones’ “approval.”
See, e.g., Miller Dep. 65:19-66:18, July 15, 2010. However, as with everything else
Level Ones do, the task of ordering supplies, when it is engaged in, is heavily
circumscribed. When Level Ones purchase supplies they utilize a mechanized system
and must receive their supervisors’ approval. See, e.g., L. Albert Dep. 40:16-18.
Further, to the extent Level Ones “approve” their Techs’ supply orders, this process
appears to be only an opportunity to reject items that are not permitted by company
policy. See, e.g., Schwab Dep. 49:24-50-10, Aug. 4, 2010; see also Miller Dep. 65:1916

66:18.
Again, the court does not find this rubber stamping process to fall within the
definition of “management.” Absent some amount of control over the nature and
number of products purchased, Level Ones’ “purchase” of supplies does not constitute
exempt activity.
e)

Providing for Safety of Employees and Property

At their daily “huddles,” Level Ones inform Techs of any safety alerts. See, e.g.,
Keith Dep. 46:22-47:3. Additionally, Level Ones sometimes perform site inspections for
safety and safety sweeps of their garages. Barber Dep. 56:5-57:12, 60:4-61:12 (site
inspections); Lavery Dep. 119:22-24 (safety sweeps). As with each of the previously
discussed duties, however, Level Ones do not exercise any control with respect to the
information conveyed to Techs nor over the nature of the inspections or the
consequences for violations. See, e.g., L. Albert Dep. 18:11-21 (discussing scripted
agenda); Carey Dep. 127:24-128:12, Sept. 30, 2008 (describing checklist for safety
inspections); Burr Dep. 85:2-86:7, Nov. 11, 2008 (noting lack of discretion with respect
safety-related disciplinary scheme). Absent such control, the court does not view these
activities as exempt “management” duties. See, e.g., Pressler, 2010 WL 5105135, at
*2.
f)

Conclusion

In light of the little control Level Ones exercise over the nature of the various
duties described in this section, the record supports a finding that Level Ones do not
engage in “management” duties. See, e.g., Ale v. TVA, 269 F.3d 680, 692 (6th Cir.
2001) (“Although [plaintiffs] did spend some of their time supervising employees, this
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supervision was not managerial in nature because they had no control over the people
they supervised.”). Instead of management, a reasonable jury could conclude that
Level Ones’ duties are better characterized as those of an administrative assistant to
the Area Manager, lacking any real authority or power. Partial summary judgment on
class plaintiffs’ CMWA claims is, therefore, inappropriate.
2.

“Primary Duty”

Even if one or more of the aforementioned duties were to constitute
“management,” partial summary judgment would be inappropriate in this case. The
court must also consider whether any such management work can properly be
considered Level Ones’ “primary duty.” See Conn. Agencies Regs. 31-60-14(a).
Federal regulations interpret this term to mean “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,” it is “not the sole
test.” Id. § 541.700(b). Instead, a court will consider a number of factors, including:
“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
wages paid to other employees for the kind of nonexempt work performed by the
employee.” Id. § 541.700(a). This inquiry is a “fact-intensive” one. Reich v. New York,
3 F.3d 581, 586 (2d Cir. 1993), abrogated on other grounds as recognized by Close v.
New York, 125 F.3d 31, 38 (2d Cir. 1997); see also Indergit v. Rite Aid Corp., No. 08
Civ. 9361, 2010 WL 1327242, at *6 (S.D.N.Y. Mar. 31, 2010) (“Many courts have held

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that resolving this difficult and intensive factual inquiry is inappropriate at summary
judgment.”).
There is undisputed evidence on the record that Level Ones exercise very little
discretion in their position, are closely monitored by their superiors, and earn less
money than their “subordinate” Techs. See L.R. 56(a)(2) Stmt. ¶¶ 47-49; Def.’s Reply
to L.R.56(a)(2) Stmt. ¶¶ 47-49.8 In light of this evidence, summary judgment is clearly
inappropriate.
SNET, responding to this argument, has suggested that the federal regulations
are inappropriate to apply, because consideration of an employees’ discretion under the
“primary duty” prong would render the inclusion of the additional “discretion” prong in
the long test superfluous. See Def.’s Reply at 2. Notably, however, SNET failed to cite
any cases in support of its position. This is in spite of the fact that the supposed
inconsistency identified by SNET was present in the FLSA regulations until their
emendation in 2004.
Prior to 2004, federal regulations included a short and long test which were all
but identical to the current Connecticut tests. Compare Conn. Agencies Regs. § 31-6014(a), with 29 C.F.R. § 541.1 (2003). The federal long test, like the Connecticut long
test, included a requirement that an employee “customarily and regularly exercise[]
discretion.” Id. § 541.1(d). Despite this requirement, the federal regulation defining
“primary duty” included a separate factor permitting the consideration of “the frequency
with which the employee exercises discretionary power.” 29 C.F.R § 541.103 (2003).
8

Defendant’s Response is that the “purported fact is im m aterial to the resolution of Defendant’s
m otion.” Def’s Reply to L.R.56(a)(2) Stm t. ¶ 47-49. Under the rules, failure to adm it or deny a factual
statem ent is deem ed an adm ission. Fed. R. Civ. P. 56(e)(2); L.R.56(a)(3) (D.Conn). Therefore, the court
deem s these paragraphs adm itted.

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The court does not view this as so incredible a result. It appears entirely
consistent, on the one hand, to require evidence that an employee “customarily and
regularly exercise discretion” under the long test, and, on the other hand, to permit a
court to consider the frequency of any discretion under that test’s “primary duty”
requirement. See Thomas, 506 F.3d at 506 & n.7 (discussing difference between the
two inquiries and referring to the long test’s factor as a “heightened standard”). The
discretion prong is only rendered superfluous if, in every instance where an employee
does not “customarily and regularly exercise discretion,” she necessarily does not have
management as her primary duty. Class plaintiffs have not argued for this result, nor is
it necessary for their argument.
Therefore, in light of the fact that, as SNET appears to admit, there remain
material issues of fact “as to whether and to what degree Plaintiffs exercised discretion
in the course of their work,” Def.’s Mem. 2, it is clear that summary judgment, even
under Connecticut’s short test, is inappropriate.
V.

CONCLUSION
For the foregoing reasons, the court denies defendant’s Motion for Partial

Summary Judgment (Doc. No. 307). In light of this Ruling, the court terminates
plaintiffs’ Motion to Strike (Doc. No. 338) as moot.
SO ORDERED.
Dated at Bridgeport, Connecticut this 1st day of June, 2011.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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