Morrison v. Ocean State Job Lot Inc et al

Filing 267

ORDER: Defendant's Omnibus Motion for Summary Judgment (Doc. No. 239 ) is hereby GRANTED in part and DENIED in part. It is so ordered. Signed by Judge Alvin W. Thompson on 09/28/2015. (Koehler, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------OMAR MORRISON, CARLI GALASSO,
AND MANUEL TOPPINS, INDIVIDUALLY
and on behalf of other similarly
situated ASSISTANT STORE
MANAGERS,

x
:
:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
OCEAN STATE JOBBERS, INC.,
:
:
:
Defendant.
:
-------------------------------- x

Civil No. 3:09-cv-1285(AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiffs, Omar Morrison, Carli Galasso, Manuel
Toppins and 22 opt-in plaintiffs, bring this action against the
defendant, Ocean State Jobbers, Inc. (“Ocean State”), claiming
that Ocean State misclassified them

as exempt under federal and

state overtime laws and failed to pay them overtime pay for
hours above 40 in a workweek, in violation of the Fair Labor
Standards Act, 29 U.S.C.§§ 216(b) (“FLSA”), the Connecticut
Minimum Wage Act, Conn. Gen. Stat. § 31-58, et seq. (“CMWA”),
and the Massachusetts Minimum Fair Wage Law, Mass. Gen. Laws,
ch. 151, §§ 1-22 (“MFWL”).
For the reasons set forth below, the defendant’s motion for
summary judgment is being granted in part and denied in part.

The motion is being granted with respect to the MFWL claims of
two plaintiffs.
I.

BACKGROUND
Ocean State is a retailer that “offer[s] a wide range of

closeout and overstock merchandise.”

(Declaration of Richard

Portno (Doc. No. 240) (“Portno Declaration”) ¶ 3.)

As of

November 2014, it operated 116 stores in the Northeast United
States.

Ocean State “make[s] money by putting [its] best items

in prime locations, building powerful visual presentations, and
signing them properly.”

(Plaintiff’s Memorandum of Law in

Opposition to Defendant’s Motion for Summary Judgment (Doc. No.
248) (“Plaintiffs’ Opposition”) at 4.)

“The steady, sizable

flow of new goods into [a] store requires constant planning and
attention to freight flow . . . . Under normal circumstances,
the company freight flow turnaround goal - from shipping truck
to sales floor - is 24-hours.”

(Id.)

Ocean State’s stores are organized into regions, and
districts within those regions.

Each region and district has a

Regional Manager and a District Manager with overall
accountability for the stores in their areas.

At the store

level, Ocean State employs a store management team consisting of
a Store Manager and one or more Assistant Store Managers
(“ASMs”).

Ocean State classifies its Store Manager and

Assistant Store Managers as exempt employees, and classifies

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other employees at the stores, such as Department Heads and
Sales Associates, as non-exempt.
The Sixth Amended Collective and Class Action Complaint
((Doc. No. 229) (the “Complaint”)) includes a claim by all the
plaintiffs for violation of the FLSA (Count One), a claim for
violation of the CMWA brought by plaintiffs Morrison, Donna
Dmochowski, Paula Krafft, Jeremy Mason, Normand Langevin, Linda
Dodge, James Bethune, Sandra Carnelli, Stephen Dynder, Kristen
Maturo, Wendy Hapgood, Mohammed Rashid, Eric Curtiss, Debra
Hermans, and Peter Vella (Count Two); and a claim for violation
of the MFWL brought by plaintiffs Carli Galasso, Manuel Toppins,
Selma Cherry, Virginia Bisson and Richard Main (Count Three).
Ocean State has moved for summary judgment on all of the
plaintiffs’ claims.
II.

LEGAL STANDARD
A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.
Fed. R. Civ. P. 56(a).

See Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1223 (2d Cir. 1994).

When ruling on a motion for

summary judgment, the court may not try issues of fact, but must
leave those issues to the jury.

See, e.g., Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks
Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987).

Thus, the

trial court’s task is “carefully limited to discerning whether
there are any genuine issues of material fact to be tried, not
to deciding them.

Its duty, in short, is confined . . . to

issue-finding; it does not extend to issue-resolution.”

Gallo,

22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.

An issue is “genuine . .

. if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

Anderson, 477 U.S. at 248

(internal quotation marks omitted).

A material fact is one that

would “affect the outcome of the suit under the governing law.”
Anderson, 477 U.S. at 248.

Only those facts that must be

decided in order to resolve a claim or defense will prevent
summary judgment from being granted.
will not prevent summary judgment.

Immaterial or minor facts

See Howard v. Gleason Corp.,

901 F.2d 1154, 1159 (2d Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable

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inferences in its favor.”

Weinstock v. Columbia Univ., 224 F.3d

33, 41 (2d Cir. 2000)(quoting Delaware & Hudson Ry. Co. v.
Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).
However, the inferences drawn in favor of the nonmovant must be
supported by evidence.
III. DISCUSSION
Ocean State contends that summary judgment in its favor is
appropriate because each of the elements of the executive
exemption to the overtime pay rule has been satisfied with
respect to each of the plaintiffs.

It also contends that the

FLSA’s two-year statute of limitations applies (rather than a
three-year period) because the plaintiffs cannot show that Ocean
State has acted willfully; thus the claims of certain plaintiffs
must be dismissed because they are time barred if the statute of
limitations is two years.

Ocean State also contends that

liquidated damages under the FLSA are not appropriate because
Ocean State took reasonable affirmative steps, in good faith, to
comply with the FLSA.
A.

Executive Exemption

Section 7(a)(1) of the FLSA provides that, except as
otherwise provided, an employee who works more than 40 hours per
week must “receive[] compensation for his employment in excess
of the hours above specified at a rate not less than one and
one-half times the regular rate at which he is employed.”

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29

U.S.C. § 207(a)(1).

One exception is that the overtime pay rule

“shall not apply with respect to . . . any employee employed in
a bona fide executive, administrative, or professional capacity
. . . .”

29 U.S.C. § 213(a)(1).

The FLSA does not define

employment in a “bona fide executive, administrative, or
professional capacity”, and instead directs the Secretary of
Labor to “define[] and delimit[]” those terms “from time to time
by regulations.” Id.
The Department of Labor’s regulations defining the terms of
the FLSA executive exemption provides the following four-part
test for the FLSA executive exemption:
The term “employee employed in a bona fide executive
capacity” . . . shall mean any employee:
(1) Compensated on a salary basis at a rate of
not less than $455 per week . . . 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
work of two or more other employees; and

the

(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).

“[T]he Department of Labor’s 2004

regulations defining the terms of the FLSA executive exemption

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have the force of law, and are to be given controlling weight
unless they are found to be arbitrary, capricious, or manifestly
contrary to the statute.”

Ramos v. Baldor Specialty Foods,

Inc., 687 F.3d 554, 559 (2d Cir. 2012) (internal quotation marks
omitted).
“Because the FLSA is a remedial act, its exemptions, such
as the bona fide executive exemption claimed in this case, are
to be narrowly construed.

To extend an exemption to other than

those plainly and unmistakably within its terms and spirit is to
abuse the interpretative process and to frustrate the announced
will of the people.”

Ramos, 687 F.3d at 558.

Additionally, “an

employer bears the burden of proving that its employees fall
within an exempted category of the Act.”

Id.

“The basic overtime provision of the Massachusetts
[overtime] statute is essentially identical to the FLSA.”
Valerio v. Putnam Associates Inc., 173 F.3d 35, 40 (1st Cir.
1999).

Like the FLSA, the MFWL exempts employees who are

employed “as a bona fide executive, administrative or
professional person” from its requirement that employees who
work in excess of 40 hours be compensated at a rate of not less
than one and one-half times their regular rate.
151, § 1A(3).

Mass. Gen. Laws

In interpreting the terms “bona fide executive,

administrative or professional person”, Massachusetts expressly
adopts the DOL regulations defining terms in the FLSA: “[t]he

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terms ‘bona fide executive, or administrative or professional
person’ in [Mass. Gen. Laws 151, § 1A(3)] . . . shall have the
same meaning as set forth in 29 CFR Part 541.”
Mass. Reg. § 2.02(3).

455 Code of

Thus, “[t]he resolution of [the

plaintiffs’] FLSA claim is equally applicable to [their]
Massachusetts statutory claim.”

Drexler v. Tel Nexx, Inc., No.

13-CV-13009-DPW, 2015 WL 5096466, at *7 (D. Mass. Aug. 28,
2015).
The Connecticut Minimum Wage Act contains provisions that
“parallel the federal overtime pay requirements of the FLSA.”
Hendricks v. J.P. Morgan Chase Bank, N.A., 677 F. Supp. 2d 544,
559 (D. Conn. 2009).

Like the FLSA, the CMWA requires employers

to compensate non-exempt employees for any work over 40 hours a
week “at a rate not less than one and one-half times the regular
rate at which he is employed.”

Conn. Gen. Stat. § 31-76c.

“[A]n individual employed in a bona fide executive,
administrative or professional capacity as defined in the
regulations of the Labor Commissioner” is excluded from coverage
by this rule.

Conn. Gen. Stat. § 31-58(f).

“In order to be

qualified for exclusion, an employee must meet all of the
requirements of the exemption.

The burden rests on the employer

to establish that the employee comes within the statutory
exemption.”

Butler v. Hartford Technical Inst., Inc., 243 Conn.

454, 465-66 (1997) (internal citations and quotation marks

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omitted).

“The prime factor in the determination whether a

person is employed in an executive capacity is the nature of his
duties.”

Shell Oil Co. v. Ricciuti, 147 Conn. 277, 285, 160

A.2d 257, 261 (1960). Accord Hendricks v. J.P. Morgan Chase
Bank, N.A., 677 F. Supp. 2d 544, 559 (D. Conn. 2009).

The

Connecticut Department of Labor regulations provide the
following “short test” for determining if an employee qualifies
as an employee employed in a bona fide executive capacity
pursuant to Section 31-58(f):
An employee who [(1)] is compensated on a salary basis
at a rate of not less than four hundred seventy-five
dollars per week, exclusive of board, lodging, or
other facilities, and [(2)] 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 [(3)] includes
the customary and regular direction of the work of two
or more other employees therein, shall be deemed to
meet all of the requirements of this section.
Conn. Agencies Regs. 31-60-14(a).

As discussed below, the only

executive exemption test requirement that is at issue in this
case is the ASM’s primary duty.

“[T]he Connecticut Supreme

Court has indicated that federal precedent can be used to
interpret Connecticut laws that are analogous to provisions
contained in the FLSA.”

Hendricks v. J.P. Morgan Chase Bank,

N.A., 677 F. Supp. 2d 544, 560 (D. Conn. 2009) (citing Roto–
Rooter Services Co. v. Dep’t of Labor, 219 Conn. 520, 528 n. 8,
593 A.2d 1386 (Conn. 1991) (“Because the phrase “commissions on

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goods or services” in General Statutes § 31–76i(g)(2) tracks the
language of 29 U.S.C. § 207(i), which exempts certain employers
from the overtime provisions of the Fair Labor Standards Act,
our interpretation of the Connecticut exemption is aided by
federal precedent respecting the meaning and scope of the
analogous federal exemption.”)). Because the formulation of the
primary duty requirement for FLSA claims is essentially
identical to the formulation for CMWA claims, the resolution of
the plaintiffs’ FLSA claim is equally applicable to their CMWA
claim.
1.

Salary Basis, Customarily and Regularly Direct
Work of Others, and Authority to Make Hiring and
Firing Decisions

The parties agree that the first, third and fourth
requirements of the executive exemption test are satisfied here.
The plaintiffs do not dispute that they “customarily and
regularly direct the work of two full time employees, that they
are paid at least $455 per week and that their recommendations
as to hiring or firing are given particular weight.”1
(Plaintiffs’ Opposition at 17 n3.)

1

As to the plaintiffs’ CMWA claims, the plaintiffs concede that
they are paid at least $475 per week, which Ocean State must
establish to satisfy the Connecticut short test. The short test
excludes the fourth element of the FLSA executive exemption
test.
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2.

Whether the Plaintiffs’ Primary Duty is
Management

The second requirement of the executive exemption test is
that the employee be one “[w]hose primary duty is management of
the enterprise in which the employee is employed or of a
customarily recognized department or subdivision thereof.”
C.F.R. § 541.100(a) (emphasis added).

29

Ocean State contends that

the second requirement is satisfied because the plaintiffs
“performed management-related responsibilities as ASMs in their
stores, and those management functions were and always have been
considered by Ocean State to be the most important role of the
ASMs.”

(Defendant’s Memorandum of Law in Support of Omnibus

Motion for Summary Judgment (Doc. No. 241) (“Defendant’s
Memorandum”) at 9.)
“To determine whether an employee’s primary duty is
management, a court must analyze all the facts in a particular
case, looking to the principal, main, major or most important
duty that the employee performs.”

Myers v. Hertz Corp., 624

F.3d 537, 548 (2d Cir. 2010) (internal quotation marks and
citations omitted).

The Department of Labor’s regulations

defining “primary duty” provide that:
(a) To qualify for exemption under this part, an
employee’s “primary duty” must be the performance of
exempt work. The term “primary duty” means the
principal, main, major or most important duty that the
employee performs. Determination of an employee’s
primary duty must be based on all the facts in a

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particular case, with the major emphasis on the
character of the employee’s job as a whole. Factors to
consider when determining the primary duty of an
employee include, but are not limited to, the relative
importance of the exempt duties as compared with other
types of duties; the amount of time spent performing
exempt work; the employee’s relative freedom from
direct supervision; and the relationship between the
employee’s salary and the wages paid to other
employees for the kind of nonexempt work performed by
the employee.
(b) The amount of time spent performing exempt work
can be a useful guide in determining whether exempt
work is the primary duty of an employee. Thus,
employees who spend more than 50 percent of their time
performing exempt work will generally satisfy the
primary duty requirement. Time alone, however, is not
the sole test, and nothing in this section requires
that exempt employees spend more than 50 percent of
their time performing exempt work. Employees who do
not spend more than 50 percent of their time
performing exempt duties may nonetheless meet the
primary duty requirement if the other factors support
such a conclusion.
(c) Thus, for example, assistant managers in a retail
establishment who perform exempt executive work such
as supervising and directing the work of other
employees, ordering merchandise, managing the budget
and authorizing payment of bills may have management
as their primary duty even if the assistant managers
spend more than 50 percent of the time performing
nonexempt work such as running the cash register.
However, if such assistant managers are closely
supervised and earn little more than the nonexempt
employees, the assistant managers generally would not
satisfy the primary duty requirement.
29 C.F.R. § 541.700 (emphasis added).

“The regulations further

provide a non-exclusive list of characteristic management
activities to which a court may look to determine whether an
employee’s primary duty is management.”

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Myers v. Hertz Corp.,

624 F.3d 537, 548 (2d Cir. 2010) (internal quotation marks and
citations omitted).

The regulations define “management” as

follows:
Generally, “management” includes, but is not limited
to, activities such as interviewing, selecting, and
training of employees; setting and adjusting their
rates of pay and hours of work; directing the work of
employees; maintaining production or sales records for
use in supervision or control; appraising employees’
productivity and efficiency for the purpose of
recommending promotions or other changes in status;
handling
employee
complaints
and
grievances;
disciplining employees; planning the work; determining
the techniques to be used; apportioning the work among
the employees; determining the type of materials,
supplies, machinery, equipment or tools to be used or
merchandise
to
be
bought,
stocked
and
sold;
controlling the flow and distribution of materials or
merchandise and supplies; providing for the safety and
security of the employees or the property; planning
and
controlling
the
budget;
and
monitoring
or
implementing legal compliance measures.
29 C.F.R. § 541.102.
Here, Ocean State has failed to demonstrate the absence of
genuine issues of material fact as to whether the management
work that ASMs perform is their primary duty, not simply with
respect to the character of the plaintiffs’ jobs as a whole, but
also with respect to each of the non-exclusive enumerated
factors in 29 C.F.R. § 541.700.

See Ramos v. Baldor Specialty

Foods, Inc., 687 F.3d 554, 558 (2d Cir. 2012) (“[A]n employer
bears the burden of proving that its employees fall within an
exempted category of the Act.”).

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As an initial matter, the plaintiffs contend that the court
should disregard much of the Declaration of Richard Portno,
which Ocean State filed with its motion, because it is not based
on Portno’s personal knowledge and therefore it is not
admissible as an affidavit or declaration pursuant to Fed. R.
Civ. P. 56(c)(4).
Rule 56(c)(4) provides that “[a]n affidavit or declaration
used to support or oppose a motion [for summary judgment] must
be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.”
56.

Fed. R. Civ. P.

“The Rule’s requirement that affidavits be made on personal

knowledge is not satisfied by assertions made ‘on information
and belief.’”

Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206,

219 (2d Cir. 2004).

The requirement “that the affiant have

personal knowledge and be competent to testify to the matters
asserted in the affidavit also means that an affidavit’s hearsay
assertion that would not be admissible at trial if testified to
by the affiant is insufficient to create a genuine issue for
trial.”

Id.

Portno testified at his deposition that he had “very
limited” personal knowledge of the duties performed by ASMs:
[Plaintiffs’ counsel]: Describe for me, if you can,
the extent to which you have personal knowledge of the
duties that are actually performed on a day-to-day

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basis by assistant managers in your 85 to 100 stores
during that period of time. . . .
[Portno]: Very limited personal knowledge described in
that factor. My knowledge is talking to people who
talked to the assistants.
(Deposition of Richard Portno (Doc. No. 248-9) (“Portno
Deposition”) at 66.)
Although Portno testified that he has very limited personal
knowledge about some of the items in his declaration, he does
have personal about other items, such as the nature of Ocean
State’s business and his personal efforts to stay informed about
federal wage laws.
entire declaration.

Thus, the court should not disregard his
Instead, in ruling on the instant motion,

the court “simply decline[s] to consider those aspects” of the
Portno Declaration that “do not appear to be based on personal
knowledge or are otherwise inadmissible.”

Smeraldo v. City of

Jamestown, 512 F. App’x 32, 34 (2d Cir. 2013) (quoting Doe v.
Nat’l Bd. of Podiatric Med. Examiners, No. 03 CIV. 4034 (RWS),
2004 WL 912599, at *4 (S.D.N.Y. Apr. 29, 2004)).
Also, the plaintiffs have produced evidence that Ocean
State has detailed, uniform corporate policies and procedures
that cover many aspects of an ASM’s employment.

Thus, although

Ocean State has moved for summary judgment as to each plaintiff
on an individualized basis and identified evidence specific to
each plaintiff, there is a genuine issue as to the extent to

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which Ocean State’s corporate policies and procedures, and the
way in which they have been applied as to other plaintiffs, is
material evidence with respect to each plaintiff.
The parties do not dispute that the ASMs performed both
management and non-management duties.

The non-management duty

to which ASMs devoted most of their time was “pushing freight”
or “working out freight”, which consisted of “get[ting]
merchandise off of the delivery trailer, into the backroom, onto
the shelves, and maintain[ing] the shelves according to [Ocean
State’s] precise standards.”

(Plaintiffs’ Opposition at 3.)

Plaintiff Morrison, for example, testified at his deposition
that he devoted most of his workday to such work.

Other

examples of non-management duties performed by plaintiffs are
“customer service . . . making sure the store was safe, neat,
clean, assisting wherever I could”, “making signs, answering
customer questions, getting carts if I needed to . . . ringing
on the register . . . cleaning the bathroom”, and “collecting
carriages from the parking lot . . . cleaning the bathroom,
washing windows, cleaning out the break room . . . .”
(Deposition of Selma Cherry (Doc. No. 248-12) at 96; Deposition
of Peter Vella (Doc. No. 248-14) at 98; Deposition of Debra
Hermans (Doc. No. 248-6) at 79-80.)
ASMs also performed management duties at Ocean State, such
as supervising employees, assigning and delegating work to

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employees, conducting prescreen interviews of applicants,
evaluating employee performance, issuing warnings to and
disciplining employees, and acting as manager of the store when
the Store Manager is not there.
Although the parties agree that the ASMs performed both
management and non-management duties, they produce conflicting
evidence as to whether management duties were the plaintiffs’
primary duty.
Ocean State produces evidence that it considered management
and supervision of subordinates to be the most important
function of the ASM position.

Indeed, several of the plaintiffs

have acknowledged that Ocean State told them during performance
evaluations to focus more of their efforts on managerial work,
and less on manual work.

The plaintiffs, on the other hand,

produce evidence that they were told by Ocean State, or they
learned through their work experience at Ocean State, that their
most important duty was to push freight from the back room to
the store floor.

Other evidence, such as Ocean State’s Annual

Evaluation Form for Assistant Managers, reflects that both
management and non-management functions are important parts of
the ASM position.

The form includes the following criteria for

scoring ASMs performance:
Does your [ASM] properly Supervise and
their assigned portion of the sales floor?

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Merchandise

. . . .
Does your [ASM] maintain control of their topstock and
backstock?
. . . .
Does your [ASM] achieve a 24-hour freight flow for all
merchandise?
. . . .
Does your [ASM] provide direction to
effectively and listen to their concerns?

their

staff

(Annual Evaluation Form - Assistant Managers (Doc. No. 241-14 at
4).)
As to the amount of time the ASMs spent performing exempt
work, plaintiffs produce evidence in the form of deposition
testimony that the amount of time they actually spent performing
managerial duties was substantially outweighed by the time they
spent doing non-managerial duties.

For example, plaintiffs

Rashid, Vella, Toppins, Main, Gaylord, Dmochowski, Maturo,
Hapgood, Bethune, Curtiss, Galasso, Ryan and Mason testified
that they spent more than 75% of their time performing nonmanagerial tasks.

Plaintiff Curtiss testified that he spent 90%

of his day pushing freight.

Although the amount of time a

plaintiff spent doing non-managerial tasks could weigh in his or
her favor, it is not dispositive because “[e]mployees who do not
spend more than 50 percent of their time performing exempt
duties may nonetheless meet the primary duty requirement if the

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other factors support such a conclusion.”

29 C.F.R. §

541.700(b).
As to the ASMs’ freedom from direct supervision, as
discussed above, certain plaintiffs acknowledged during their
depositions that they were given autonomy to make business
decisions for Ocean State, such as prescreening job applicants,
and disciplining and training employees.

Ocean State also

produces evidence that ASMs managed store departments and, as
the “Manager on Duty”, were responsible for resolving issues
that arose when the Store Managers were not present; certain
plaintiffs also testified that there were occasions when they
were the Manager on Duty even when the Store Manager was
working, such as when the Store Manager was participating in a
conference call.

The plaintiffs, on the other hand, produce

evidence that they had limited discretionary authority as ASMs.
Some plaintiffs testified at their depositions, that their
actions were closely supervised and directed by their Store
Managers, and they were required to follow detailed corporate
policies that limited their ability to make independent
judgments.
The parties also produce conflicting evidence about the
difference between the ASMs’ salary and the wages paid to other
Ocean State employees for the kind of nonexempt work performed
by the ASMs.

Ocean State points to a comparison between the

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salary of the average ASM, converted to an hourly rate based on
certain assumptions, and the wage earned by Department Heads and
Sales Associates -- and also to the fact that ASMs were eligible
for benefits and an annual bonus.

The plaintiffs produce

evidence calling into question the accuracy of Ocean State’s
assumptions, and evidence that the appropriate position for
comparison is the Area Supervisor, all of which weighs against a
finding that the primary duty of the ASMs is management.
Thus, because there are genuine issues of material fact as
to whether each the plaintiff’s primary duty is management,
Ocean State’s motion for summary judgment on the grounds that
the requirements for the executive exemption are satisfied is
being denied.
B.

Statute of Limitations

Ocean State argues that it is entitled to summary judgment
on the FLSA claims brought by plaintiffs Cherry, Curtiss,
Hapgood, Hermans and Rashid in Count One, and the Massachusetts
MFWL claims brought by plaintiffs Cherry and Main in Count Three
because their claims are barred by a two-year statute of
limitations.
1.

FLSA Claims

FLSA actions for unpaid overtime compensation or liquidated
damages are subject to a two-tiered statute of limitations.
Such actions “may be commenced within two years after the cause

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of action accrued, and every such action shall be forever barred
unless commenced within two years after the cause of action
accrued, except that a cause of action arising out of a willful
violation may be commenced within three years after the cause of
action accrued.”

29 U.S.C. § 255(a).

The DOL regulations define “willful” violations of the FLSA
as follows:
(1) An employer’s violation of section 6 or section 7
of the Act shall be deemed to be “willful” for
purposes of this section where the employer knew that
its conduct was prohibited by the Act or showed
reckless disregard for the requirements of the Act.
All of the facts and circumstances surrounding the
violation shall be taken into account in determining
whether a violation was willful.
(2) For purposes of this section, an employer’s
conduct
shall
be
deemed
knowing,
among
other
situations, if the employer received advice from a
responsible official of the Wage and Hour Division to
the effect that the conduct in question is not lawful.
(3) For purposes of this section, an employer’s
conduct shall be deemed to be in reckless disregard of
the requirements of the Act, among other situations,
if the employer should have inquired further into
whether its conduct was in compliance with the Act,
and failed to make adequate further inquiry.
29 C.F.R. § 578.3(c).

Thus, to prove a “willful” violation of

the FLSA within the meaning of Section 255(a) “it must be
established that the employer either knew or showed reckless
disregard for the matter of whether its conduct was prohibited
by the statute.

If an employer acts unreasonably, but not

recklessly, in determining its legal obligation, its action

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should not be considered willful.”

Parada v. Banco Indus. De

Venezuela, C.A., 753 F.3d 62, 71 (2d Cir. 2014) (internal
citations and quotation marks omitted).

“The plaintiff bears

the burden of proof on the issue of willfulness for statute of
limitations purposes.”

Id. (internal quotation marks omitted).

Here, the record shows the following.
“always . . .

Ocean State has

classified [ASMs] as exempt from federal overtime

regulations . . . .”

(Deposition of Raymond Conforti (Doc. No.

248-2) (“Conforti Deposition”) at 25.)

In 2004, the Department

of Labor audited Ocean State and found that another position at
Ocean State -- the District Merchandizer position -- should be
classified as nonexempt.

The parties do not know whether the

DOL also audited the classification of ASMs.

Ocean State then

“[had] HR professionals within [the company] monitor and remain
updated on the appropriateness of [the company’s] exemption
classification for all positions, including . . . ASMs.” (Portno
Declaration ¶ 44-45.)

Raymond Conforti, a human resources

professional at Ocean State, conducted an internal review of the
ASM position, and concluded that ASMs were properly categorized
as exempt.

However, his review consisted solely of “reviewing

the job descriptions.”

(Conforti Deposition at 26.)

Regarding

the review of the ASM position, Portno testified “I won’t say
that we did exhaustive studies. We didn’t. We talked to people
about – people were talked to about the job descriptions and

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what they did and that’s how we determined that they were exempt
. . . .”

(Plaintiffs’ Opposition at 38.)

Conforti then made an

oral report of his findings at an operations meeting, where the
classification of ASMs was “one among many things we discussed .
. . . we didn’t sit down and here’s the formal review.”
Deposition at 56.)

(Portno

Thus, there was a limited review, for which

no documentation exists.

Portno is “95% sure” that he followed

up on Conforti’s report with a 15-minute conversation with
outside counsel to “verify . . . that [Ocean State was] okay or
not okay.”
58, 59.)

(Deposition of Richard T. Portno (Doc. No. 248-9) at

Ocean State did not ask outside counsel for a detailed

analysis because the company “purposely tell[s] . . . outside
counsel don’t confirm this.

Don’t write us letters because that

costs too much money. . . . I want to know specifically yes or
no.”

(Id. at 59.)

Although Ocean State did not reclassify the

ASMs as a result of this review, it continued to monitor the
classification of all positions.

Ocean State’s Director of

Recruitment and Training, Donna McLeod, who is responsible for
“ensur[ing] compliance with the [FLSA] [and] any other state
wage and hour law[s] with regard to assistant store managers”,
visits Ocean State stores “once to twice a week, at least” to
interview management candidates and “walk the store with
management, [] observe the behavior . . . in the store, [and]
get feedback from the staff in the field . . . .”

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(Deposition

of Donna McLeod (Doc. No. 241-46) (“McLeod Deposition”) at 10,
33, 45.)

Ocean State employs “field trainers” in each region

who review the duties of ASMs.
(Doc. No. 241-47) at 137.)

(Deposition of Royal Greene, Jr.

Ocean State has communicated to

Store Managers and ASMs that “[Ocean State’s] expectation [is]
that ASMs are part of the store management team and should
primarily perform the management-related responsibilities with
which they are entrusted.”

(Portno Declaration ¶ 47.)

As a

result of its continuing reviews, Ocean State has reclassified
its store auditor and IT personnel as nonexempt employees.
Ocean State has not, however, produced evidence that it ever
systematically collected information about work actually
performed by ASMs and analyzed the classification of ASMs based
on the factors to be considered when determining whether the
primary duty of an employee is management based on to 29 C.F.R.
§ 541.700(a).
The court concludes that genuine issues of material fact
exist as to whether Ocean State acted with reckless disregard to
the possibility that its classification decision violated the
FLSA.2

A reasonable jury could conclude that, particularly in

light of the 2004 DOL audit in which the DOL found that Ocean
State had incorrectly classified another position as nonexempt,

2

The plaintiffs do not contend that Ocean State violated the
FLSA with respect to the classification of ASMs as exempt
executives with actual knowledge.
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Ocean State classified ASMs as exempt without taking steps that
were reasonably calculated to provide Ocean State with an
understanding of the character of the ASM job as a whole.
Ocean State does not identify any claims that are barred by
the three-year statute of limitations for willful violations of
the FLSA.

Thus, Ocean State’s motion for summary judgment based

on the statute of limitations is being denied as to the FLSA
claims brought by plaintiffs Cherry, Curtiss, Hapgood, Hermans
and Rashid in Count One.
2.

MFWL Claims

Ocean State argues that the MFWL claims brought by
plaintiffs Cherry and Main are barred by the Massachusetts
statute of limitations.

The plaintiffs do not respond to Ocean

State’s arguments, and therefore they have abandoned Cherry’s
and Main’s MFWL claims.

See Paul v. Bank of Am., N.A., No.

3:11-CV-0081 JCH, 2011 WL 5570789, at *2 (D. Conn. Nov. 16,
2011) (finding a claim abandoned where the plaintiff failed to
address the claim in its motion for summary judgment); Molinari
v. Bloomberg, 564 F.3d 587, 609 n.15 (2d Cir. 2009) (“When a
party ‘offer[s] no response’ to its opponent’s motion to dismiss
a claim, that claim is abandoned.”).

Therefore, Ocean State’s

motion for summary judgment on the MFWL claims brought by
plaintiffs Cherry and Main in Count Three is being granted.

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C.

Liquidated Damages

Ocean State argues that the court should exercise its
discretion not to award liquidated damages because its acts or
omissions giving rise to this action were in good faith and it
had reasonable grounds for believing that it was in compliance
with the FLSA.
29 U.S.C. § 260 provides in FLSA actions to recover unpaid
overtime compensation that:
if the employer shows to the satisfaction of the court
that the act or omission giving rise to such action
was in good faith and that he had reasonable grounds
for believing that his act or omission was not a
violation of the [FLSA], the court may, in its sound
discretion, award no liquidated damages or award any
amount thereof not to exceed the amount specified in
section 216 of this title.
29 U.S.C. § 260.

“The employer bears the burden of proving good

faith and reasonableness, but the burden is a difficult one,
with double damages being the norm and single damages the
exception.”

Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142

(2d Cir. 1999).

“To establish good faith, the employer must

take active steps to ascertain the dictates of the FLSA and then
act to comply with them.”

Id.

Here, the court has found that there are genuine issues of
material fact as to whether Ocean State acted with reckless
disregard to the possibility that its classification decision
violated the FLSA.

In light of that conclusion, the court finds

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that there are also genuine issues of material fact as to
whether Ocean State acted in good faith in classifying the ASMs
as exempt executives.

Therefore, Ocean State’s motion for

summary judgment on the issue of liquidated damages is being
denied.
IV.

CONCLUSION
For the reasons set forth above, Defendant’s Omnibus Motion

for Summary Judgment (Doc. No. 239) is hereby GRANTED in part
and DENIED in part.

The motion is granted as to the MFWL claims

brought by plaintiffs Cherry and Main in Count Three and denied
in all other respects.
It is so ordered.
Dated this 28th day of September 2015, at Hartford,
Connecticut.

/s/
Alvin W. Thompson
United States District Judge

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