Harris et al v. Swissport SA, LLC

Filing 68

ORDER granting #46 Motion for Summary Judgment. Closing Case. Motions Terminated: #46 MOTION for Summary Judgment And Supporting Memorandum of Law filed by Swissport SA, LLC., Swissport Cargo Services, LP, #58 MOTION in Limine to exclude evidence at trial filed by Swissport SA, LLC., Swissport Cargo Services, LP. Signed by Judge Robert N. Scola, Jr on 4/7/2017. (yha) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69. Modified text on 4/10/2017 (vp).

United States District Court
for the
Southern District of Florida
George Kirsham Harris, Luxon
Luborieux, Arturo Lacayo, and Eric
Gamarra, Plaintiffs,
v.
Swissport SA, LLC, and Swissport
Cargo Services, LP, Defendants.

)
)
)
) Civil Action No. 16-21273-Civ-Scola
)
)
)
)

Order Granting Defendants’ Motion for Summary Judgment
Plaintiffs Luxon Laborieux,1 Arturo Lacayo, and Eric Gamarra2 all
worked at the Miami International Airport. Laborieux and Lacayo were involved
with fueling operations for Defendant Swissport SA; and Gamarra dealt with
cargo operations for Defendant Swissport Cargo. The Plaintiffs claim the
Defendants failed to properly compensate them under the Fair Labor
Standards Act for all of the overtime hours they worked.
In their motion for summary judgment, the Defendants claim that none
of the Plaintiffs qualify for overtime coverage because they are exempt
employees under the FLSA. The Court finds the Defendants have demonstrated
the absence of a genuine issue of material fact regarding the FLSA’s executive
exemption and the Plaintiffs have failed to make a showing sufficient to permit
a jury to reasonably find on their behalf. The Court therefore grants the
Defendants’ motion (ECF No. 46.)
1. Legal Standard
Summary judgment is proper if following discovery, the pleadings,
depositions, answers to interrogatories, affidavits and admissions on file show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the
applicable substantive law, it might affect the outcome of the case.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir.2004). “An issue of
1 Plaintiff Luxon Laborieux’s last name is spelled in the complaint and listed on the coversheet
as Luborieux. It appears, however, that his last name is actually Laborieux. (E.g., Laborieux
Dep. 8:2, ECF No. 43-1, 2.) The Court will therefore refer to him as Laborieux
2 Plaintiff George Kirsham Harris was dismissed from this suit when the Court determined that
he had abandoned his prosecution of the case. (ECF No. 31.)

fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact
to find for the nonmoving party.” Id. at 1260. All the evidence and factual
inferences reasonably drawn from the evidence must be viewed in the light
most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th
Cir. 2004).
Once a party properly makes a summary judgment motion by
demonstrating the absence of a genuine issue of material fact, whether or not
accompanied by affidavits, the nonmoving party must go beyond the pleadings
through the use of affidavits, depositions, answers to interrogatories and
admissions on file, and designate specific facts showing that there is a genuine
issue for trial. Celotex, 477 U.S. at 323–24. The nonmovant’s evidence must be
significantly probative to support the claims. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make
findings of fact. Anderson, 477 U.S. at 249; Morrison v. Amway Corp., 323 F.3d
920, 924 (11th Cir. 2003). Rather, the Court’s role is limited to deciding
whether there is sufficient evidence upon which a reasonable juror could find
for the nonmoving party. Id. “If more than one inference could be construed
from the facts by a reasonable fact finder, and that inference introduces a
genuine issue of material fact, then the district court should not grant
summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989,
996 (11th Cir. 1990)
2. The Plaintiffs have not established a genuine issue for trial
regarding the Plaintiffs’ qualifications as exempt executives under
the FLSA.
Under the FLSA, an employer must compensate an employee who works
more than forty hours a week at one and one-half times his regular rate. 29
U.S.C. § 207(a)(1). However, any worker who is employed as a “bona fide
executive” is considered to be exempt from this requirement. 29 U.S.C. §
206(a)(1). The regulations relating to the FLSA set forth the criteria required to
establish that an “employee [is] employed in a bona fide executive capacity”: (1)
the employee must be compensated on a salary basis at a rate of not less than
$455 per week; (2) the employee’s primary duty must be management; (3)
either (a) the employee must have hiring and firing authority; or (b) his
suggestions and recommendations as to changes in the status of other
employees must be “given particular weight”; and (4) the employee must
“customarily and regularly” direct the work of two or more other employees. 29
C.F.R. § 541.100(a).

A. Compensation
The parties acknowledge there is no dispute that the Plaintiffs all
received at least $455 a week.
B. Managerial Duties
The Department of Labor’s regulations provide a long list of nonexclusive
activities that it deems managerial in nature. 29 C.F.R. § 541.102. These tasks
include: training employees; directing the work of employees; appraising
employees’ productivity and efficiency for the purpose recommending changes
in status; disciplining employees; apportioning work among employees;
determining the type of materials, supplies, machinery, equipment or tools to
be used; controlling the flow and distribution of materials; providing for the
safety and security of the employees or the property; and monitoring or
implementing legal compliance measures. Id. The “[d]etermination of an
employee’s primary duty must be based on all the facts in a particular case,
with the major emphasis on the character of the employee’s job as a whole.”
Diaz v. Team Oney, Inc., 291 Fed. App’x 947, 949 (11th Cir. 2008) (citing 29
C.F.R. § 541.700(a)). The Defendants have demonstrated the absence of a
genuine issue of material fact by submitting evidence, affidavits, and
depositions that demonstrate that the Plaintiffs all performed many of the
managerial activities listed in the regulations and that these were in fact their
primary duties.
Defendant Swissport SA provides fueling services to airlines at Miami
International Airport. Both Laborieux and Lacayo were initially hired as fuelers
but later accepted promotions to duty manager with Swissport SA. Regarding
Laborieux, the Defendants have set forth evidence that shows that as duty
manager he was responsible for:
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“the supervision and operations for the Fuel[]ing Division at the Miami
International Airport” (Defs.’ Stmt. of Mat. Facts ¶ 4, ECF No. 45, 2;
Laborieux Resume, ECF No. 39-1);
“supervis[ing] approximately one hundred employees” (id.);
“command[ing] and deploy[ing] subordinate personnel, apparatus and
equipment within the division” (id.);
“actively work[ing] toward resolving personnel issues and challenges by
understanding company policy and procedures related to the issues, and
by utilizing good fact finding and supervisory techniques” (id.)
“establishing and maintaining professional relationships with various
department heads, division leaders and liaisons” (id.);

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“corporate compliance with all federal, state and local laws, policies and
procedures with respect to fuel[]ing operations at the Miami International
Airport” (id.; Laborieux Dep. 58:24–59:3, ECF No. 43-1);
“evaluat[ing]
employee
performance
annually
and
continually
monitor[ing] performance and mak[ing] evaluations” (Defs.’ SOF ¶ 4;
Laborieux Resume);
“ensur[ing] that departmental goals are met to track departmental
progress” (id.);
training Lacayo when Lacayo was promoted to duty manager (Defs.’ SOF
¶ 7; Lacayo Dep. 135:7–10, ECF No. 44-1);
providing operational reports at the end of every shift (Defs.’ SOF ¶ 13;
Laborieux Dep. at 68:17–69:3);
conducting safety briefings and performing regular safety and quality
assurance audits (Defs.’ SOF ¶ 14; Laborieux Dep. 77:13–17);
enforcing company and airline safety and health policies and procedures
(Defs.’ SOF ¶ 14; Laborieux Dep. 58:19–22); and
fielding telephone calls from Swissport SA customers to resolve issues
related to anything from malfunctioning equipment and gate mix-ups to
delays and staffing problems to fuel spills (Defs.’ SOF ¶¶ 11, 23;
Laborieux Dep. 57:5–58:18, 128:10–21).

With respect to Lacayo, the evidence presented by the Defendants
establishes that he handled many of the same duties. Specifically, Lacayo was
responsible for:
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“running an effective and safe operation” (Defs.’ SOF ¶ 29; Lacayo
Resume, ECF No. 38-1);
“supervision of crews” (id.);
inspecting fueling equipment to ensure that it is safe to use (id.);
reporting problems with equipment (id.; Defs.’ SOF ¶ 25; Lacayo Dep.
110:7–9);
complying with “rules and regulations of the federal, state, and local
government” (Defs.’ SOF ¶ 29; Lacayo Resume, ECF No. 38-1);
overseeing thirty to thirty-eight employees per shift (Defs.’ SOF ¶ 6;
Lacayo Dep. 42:8–16);
“manag[ing] and direct[ing] staff in the effective execution of their duties
and the assistance in solution of problems” (Defs.’ SOF ¶ 10; Lacayo Dep.
67:12–17);
“enforc[ing] company and airline safety, health policies and procedures”
(Defs.’ SOF ¶ 10; Lacayo Dep. 67:19–21);

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ensuring compliance with airport authority rules and U.S. Customs
(Defs.’ SOF ¶ 10; Lacayo Dep. 67:22–68:1);
“[a]ctively ensur[ing] that proper fuel inventories were controlled and that
[certain] standards were met” (Defs.’ SOF ¶ 10; Lacayo Dep. 68:3–7);
“ensur[ing] the safe and efficient use of fueling equipment, including
computer systems and radios” and maintaining same (Defs.’ SOF ¶ 10;
Lacayo Dep. 68:9–13);
ensuring the daily completion of operational reports, including gathering
information from other duty managers regarding late flights, scheduling,
staffing levels, and equipment availability (Defs.’ SOF ¶¶ 10, 25; Lacayo
Dep. 68:24–69:3, 105:7–17, 107:5–14);
timely completing company accident reports (Defs.’ SOF ¶ 10; Lacayo
Dep. 69:5–8);
auditing fuelers which entails checking for proper connections, making
sure fuelers were wearing safety equipment and ensuring they were
doing their paperwork correctly (Defs.’ SOF ¶ 10; Lacayo Dep. 69:22–
70:2);
notifying the company when a fueler failed to appear for a shift (Defs.’
SOF ¶ 10; Lacayo Dep. 70:21–24);
counseling fuelers when they missed shifts or were late (Defs.’ SOF ¶ 10;
Lacayo Dep. 70:20–23);
managing staff (Defs.’ SOF ¶ 10; Lacayo Dep. 72:22–25);
liaising with the fire department in the event of a fuel spill or improper
grounding (Defs.’ SOF ¶ 10; Lacayo Dep. 75:16–76:20); and
“follow[ing] up on all customer requests and establish[ing] ongoing . . .
communication with them” (Defs.’ SOF ¶¶ 10, 24, 25; Lacayo Dep. 78:6–
8, 92:23–93:14, 108:11–19, 158:25 – 159:5).

Swissport SA also presented evidence that its duty managers, including
Laborieux and Lacayo, generally:
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spent about ninety percent of their time troubleshooting (Defs.’ SOF ¶ 7;
Lacayo Dep. 122:5–7);
were responsible for “direct[ing] the work force” (SOF ¶ 8; N. Cabrera
Dep. 53:5);
were accountable for “the day to day safe and efficient operation of plane
fueling activities” (Defs.’ SOF ¶ 10; Lacayo Dep. 67:2–6);
were responsible for “ensuring that customer and contractual services
were met” (Defs.’ SOF ¶ 10; Lacayo Dep. 67:8–11);

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were required to notify Swissport SA of any client issues and how they
arose (Defs.’ SOF ¶ 13; Lacayo Dep. 63:3–6);
had to ensure adequate staffing levels and equipment coverage (Defs.’
SOF ¶ 20; N. Cabrera Dep. 29:11–24);
were expected to make sure flights got assigned (Defs.’ SOF ¶ 25;
Laborieux Dep. 85:22–86:5);
were responsible for resolving client issues (SOF ¶ 11; Laborieux. Dep.
57:5–25);
were responsible for making sure that overtime amounts did not go over
budget (Defs.’ SOF ¶ 27; N. Cabrera Dep. 83:1–14);
could approve overtime without authorization (Defs.’ SOF ¶ 27; N.
Cabrera Dep. 70:24 – 71:13); and
verified and signed the workers’ checklist where employees kept track of
their shift hours (Defs.’ SOF ¶ 28; Lacayo Dep.84:25–85:7).

Defendant Swissport Cargo provides cargo- and mail-handling services to
airlines at Miami International Airport. Plaintiff Gamarra was a cargo
supervisor the entire time he worked for Swissport Cargo. As the cargo
supervisor working the night shift, Gamarra was the highest ranking employee
on site. (Defs.’ SOF ¶ 32; Gamarra Dep. 196:9–17.) Gamarra was responsible
for:
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completing a daily shift report for the general manager in which he had
to relay what had happened on his shift and advise as to any faulty
equipment or understaffing issues (Defs.’ SOF ¶ 33; Gamarra Dep. 68:8–
69:12);
reporting any irregularities, service failures, incidents, and accidents that
occurred during his shift (Defs.’ SOF ¶ 33; Gamarra Dep. 102:25–103:7);
communicating with company customers (Defs.’ SOF ¶ 34; Gamarra Dep.
100:25–101:3);
approving overtime (Email Ex. 12, ECF No. 42-1, 85);
initiating discipline with respect to the employees who reported to him
for violation of Swissport Cargo’s policies (J. Cabrera Decl. ¶ 7; ECF No.
35-1, 2);
sending employees home if necessary and assigning overtime when
needed (J. Cabrera Decl. ¶ 7; ECF No. 35-1, 2);
“controlling of staff assignments” and managing compensation (Defs.’
SOF ¶ 30; Gamarra Resume, ECF No. 37-1);
updating “customer manuals, training and documentation” (id.);
“maintain[ing] safety, security and quality standards” (id.);



“[m]aintain[ing] good relations with [company] customer[s] and airport
authorities” (id.)

The factors considered when determining an employee’s primary duty
include: (1) “the relative importance of the exempt duties as compared with
other types of duties;” (2) “the amount of time spent performing exempt work;”
(3) “the employee’s relative freedom from direct supervision;” and (4) “the
relationship between the employee’s salary and the wages paid to other
employees for the kind of nonexempt work performed by the employee.” 29
C.F.R. § 541.700(a).
In the face of the evidence submitted by the Defendants, the Plaintiffs
respond by listing a number of managerial responsibilities the Plaintiffs did not
have. They also focus on managerial responsibilities that other Swissport
employees had. These issues are neither here nor there as they do not help in
evaluating the tasks the Plaintiffs themselves actually did perform.
Additionally, the Plaintiffs appear to imply that Laborieux and Lacayo’s
resumes are inaccurate. (Pls.’ SOF ¶¶ 4, 29.) However, they cite no particular
part of the record to support this claim as required by Federal Rule of Civil
Procedure 56. Instead, they merely say, in conclusory fashion, that what is
conveyed in their resumes “is not reflective of the actual work” that the
Plaintiffs performed. (Id.) At the same time, they readily acknowledge that the
resumes “speak for [them]sel[ves].” (Id.) No specific objections appear to have
been raised with respect to Gamarra’s resume. The Court thus finds that the
information conveyed in the Plaintiffs’ three resumes is undisputed.
Regarding the relative importance of the exempt duties that the Plaintiffs
performed as compared with other types of duties and the amount of time
spent performing exempt work, the Plaintiffs do not directly dispute the
majority of the numerous above-listed managerial undertakings. Rather they
recharacterize these activities in light of additional facts. The Plaintiffs insist
that much of their work involved doing physical and manual tasks as opposed
to office tasks. But in making this allegation, the Plaintiffs rely on affidavit
testimony from both Lacayo and Laborieux wherein they both acknowledge
engaging in manual fueling activities while simultaneously participating in
managerial-type tasks. (Laborieux Aff. ¶ 20, ECF No. 50-1, 4; Lacayo Aff. ¶ 21,
ECF No. 51-1, 4.) While Gamarra’s affidavit testimony does not make this same
acknowledgment, his only direct quarrel with the above-listed facts is that he
could not actually approve overtime. While this appears to be more of a
disagreement about what it means to “approve” overtime, even if the Court
finds the overtime issue disputed, which it does for present purposes, this does
not diminish the overwhelmingly managerial nature of the tasks listed above.

Notably, none of the Plaintiffs contend that their non-managerial
activities prevented them from completing their managerial responsibilities.
This differentiates this case from that of Barreto v. Davie Marketplace, LLC,
cited by the Plaintiffs. 331 F. App’x 672 (11th Cir. 2009). In that case the
Eleventh Circuit found compelling that, because of management’s
understaffing of the plaintiff’s department, the plaintiff there had no time to
fulfill his few, “nominally given,” managerial responsibilities. Id. at 675. Here,
there is no such allegation.
Thus, even viewing the evidence presented in the light most favorable to
the Plaintiff—that is, that the Plaintiffs performed manual labor in addition to
the mostly unconverted list of managerial tasks—the Court does not conclude
that a reasonable jury could find in the Plaintiffs’ favor as to the importance of
the exempt duties as compared to the other duties. There is no genuine issue of
material fact that the Plaintiffs’ managerial tasks were significantly more
important to the operation of the Swissport companies than their nonmanagerial tasks. This is so even accepting the amount of time the Plaintiffs
claim to have spent on these additional, non-managerial activities. See, e.g.,
Moore v. Tractor Supply Co., 352 F. Supp. 2d 1268, 1273–74 (S.D. Fla. 2004)
(Ryskamp, J.) (finding store manager exempt from FLSA overtime even though
he spent ninety-five percent of his time performing non-exempt tasks and
citing several cases with similar holdings), aff'd, 140 F. App’x 168 (11th Cir.
2005); see also Donovan v. Burger King Corp., 672 F.2d 221, 226 (1st Cir. 1982)
(“one can still be ‘managing’ if one is in charge, even while physically doing
something else”).
Further, the Plaintiffs do not dispute that the Plaintiffs’ salaries
significantly exceeded the wages paid to other employees for performing the
nonexempt work they claim to have performed. (Defs.’ Mot. at 14.) Lacayo and
Laborieux, as duty managers, and Gamarra, as a cargo supervisor, all earned
in excess of $40,000 per year. (Defs.’ SOF ¶¶ 3, 6, 31.) By comparison, fuelers
earned only $14.27 per hour and cargo leads only $15.10 per hour. (Id. at ¶¶ 5,
32.) Nor does the fact that the Plaintiffs themselves had to report to a
supervisor diminish the managerial nature of the many uncontested tasks
listed above. See Moore, 352 F. Supp. 2d 1278 (finding store manager exempt
from FLSA overtime even though he worked under the close supervision of his
manager). Taken together, the Defendants have carried their burden of
establishing that the Plaintiffs’ primary duties were managerial and the
Plaintiffs have failed to come forward with sufficient evidence based upon
which a reasonable juror could find in their favor.

C. Status of Other Employees
The next criterion requires that either (a) the employee must have hiring
and firing authority; or (b) his suggestions and recommendations as to changes
in the status of other employees must be “given particular weight.” 29 C.F.R. §
541.100(a). It is undisputed that the Plaintiffs did not have hiring and firing
authority. The record is clear, however, that the Plaintiffs had the authority to
initiate the disciplinary process against hourly employees and that when they
exercised this authority, their reports and submissions were given particular
weight.
For example, Laborieux himself testified that, as duty manager, he would
inform his manager when an employee did something wrong. (Defs.’ SOF ¶ 11;
Laborieux Dep. 58:8–11.) He also testified that if he recognized that a fueler
was doing something wrong, he would stop them. (Defs.’ SOF ¶ 16; Laborieux
Dep. 174:12–15.) When there was a spill, Laborieux was responsible for
gathering information and writing up the fueler’s involvement in an incident
report. (Defs.’ SOF ¶ 18; Laborieux Dep. 89:3–14.) Both Laborieux and Lacayo
admitted during their depositions that duty managers were responsible for
disciplining employees. (Defs.’ SOF ¶ 19; e.g. Laborieux Dep. 93:20–94:1;
Lacayo Dep. 78:14–79:9.) Their supervisor testified that the duty managers
were responsible for disciplining employees because they are the ones actually
on site, witnessing the violation. (Defs.’ SOF ¶ 19; N. Cabrera Dep. 101:25–
102:13.) These disciplinary actions would then be used to determine whether
or not to terminate an employee. (Defs.’ SOF ¶ 19; N. Cabrera Dep. 102:14–17.)
Moreover, Laborieux’s own resume recites that he personally “[e]valuate[d]
employee performance.” (Defs.’ SOF ¶ 4; Laborieux’s Resume, ECF No. 39-1.)
Similarly, Lacayo testified that he was responsible for counseling fuelers when
they missed shifts or were late. (Defs.’ SOF ¶ 10; Lacayo Dep. 70:20–23.)
Lacayo further explained that his supervisor would fill out the employeediscipline forms “based on what [the duty manager] told him.” (Defs.’ SOF ¶ 19;
Lacayo Dep. 175:1–14.) Laborieux’s supervisor testified that Laborieux would
discipline employees all the way through to suspension. (Defs.’ SOF ¶ 19; N.
Cabrera Dep. 43:9–12.) And Laborieux himself acknowledged, without
reservation, that once the duty managers informed the supervisor of an issue,
the supervisor “would give [them] the instructions to discipline the employee.”
(Defs.’ SOF ¶ 19; Laborieux Dep. 93:20–24.)
Similarly, Gamarra admitted he was responsible for reporting any
incidents or accidents that occurred during his shift and that he would inform
the operations manager of any disciplinary issues. (Defs.’ and Pls.’ SOF ¶ 33;
Gamarra Dep. 114:22–115:1.) He also had the authority to send home an

employee who complained of dizziness. (Defs.’ SOF ¶ 33; Ex. 14, Gamarra Dep.,
ECF No. 42-1, 87.) In his resume, Gamarra listed “controlling of staff
assignments and compensation management” as part of his responsibilities as
cargo supervisor. Furthermore, his supervisor also testified that Gamarra had
“the authority to initiate discipline with respect to the employees who reported
to him for violation of Swissport Cargo’s policies.” (J. Cabrera Decl. ¶ 7; ECF
No. 35-1, 2.) That he did not have unilateral authority to take final disciplinary
action himself, as he testified, does not undermine the fact that his initiation of
disciplinary action was given particular weight. Further, in the Plaintiffs’
statement of facts, no citation is provided to support Gamarra’s claim that he
“did not discipline the employees himself.” (Pls.’ SOF ¶ 33.) This factually
unsupported allegation is therefore, in and of itself, insufficient to raise a
genuine issue of material fact.
Under
the
regulations,
“[a]n
employee’s
suggestions
and
recommendations may still be deemed to have ‘particular weight’ even if a
higher level manager's recommendation has more importance and even if the
employee does not have authority to make the ultimate decision as to the
employee’s change in status.” 29 C.F.R. § 541.105; see Garrison v. ConAgra
Foods Packaged Foods, LLC, 833 F.3d 881, 886 (8th Cir. 2016) (finding
probative that the plaintiffs testified that when they recommended discipline,
management followed the recommendations most of the time). Thus the
Plaintiffs’ argument that they did not have the final say on what actions were
ultimately taken against the disciplined employee is unavailing. Additionally,
the Plaintiffs failed to cite to a single instance of a supervisor ever disregarding
their reporting of an employee’s wrongdoing.
The Defendants have thus carried their burden of establishing that the
Plaintiffs’ suggestions or recommendations carried particular weight as to
changes in hourly employees’ statuses. In response, the Plaintiffs have failed to
come forward with sufficient evidence based upon which a reasonable juror
could find in their favor.
D. Direction of Other Employees
A bona fide executive must customarily and regularly direct the work of
two or more other employees. 29 C.F.R. § 541.100(a)(3). “The phrase
‘customarily and regularly’ means a frequency that must be greater than
occasional but which, of course, may be less than constant.” 29 C.F.R. §
541.701. So long as the direction occurs on a normal basis and recurrently
every workweek, it is considered “customarily and regularly” performed. Id.
Direction that occurs only on an “isolated or one-time” basis does not qualify.
Id.

Lacayo and Laborieux, as duty managers, had many employees directly
reporting to them during their shifts: twenty fuelers; one lead fueler; and one
dispatcher. (Defs.’ SOF ¶ 12.) Laborieux’s own resume recounts that he
“[s]upervise[d] approximately one hundred (100) employees” and that he
“[c]ommand[ed] and deploy[ed] subordinate personnel.” (Defs.’ SOF ¶ 4;
Laborieux’s Resume, ECF No. 39-1.) Similarly, Lacayo’s resume lists
“supervision of crews” as one of his duties as duty manager. (Lacayo Resume,
ECF No. 38-1.) Lacayo also testified that on a typical shift, he oversaw thirty to
thirty-eight other employees. (Defs.’ SOF ¶ 6; Lacayo Dep. 42:8–16.) He also
acknowledged “manag[ing] and direct[ing] staff in the effective execution of
their duties and the assistance in solution of problems.” (Defs.’ SOF ¶ 10;
Lacayo Dep. 67:12–17).
The Plaintiffs respond that, although the numbers may be correct, the
other employees did not actually report to the duty managers. In support of
their denial that there was any direct reporting to the duty managers, the
Plaintiffs cite to various paragraphs in their statement of facts, spread across
six different pages. But the Court need consider only material that is cited with
particularity. Fed R. Civ. P. 56; Evers v. Gen. Motors Corp., 770 F.2d 984, 986
(11th Cir. 1985) (“conclusory allegations without specific supporting facts have
no probative value”). Additionally, upon a cursory review, most of the cited-to
information does not actually contradict the evidence that shows that the duty
managers indeed directed the work of many of other employees. For example,
the Plaintiffs attempt to refute the Defendants’ claims by establishing that
dispatchers made the job assignments and that the “directed” employees had
already been trained and therefore did not require instruction. But these facts,
even accepted as true, do not undermine the record evidence showing that the
duty managers were also supervising the employees and directing their work.
With respect to Gamarra, even reading his evidence in the light most
favorable to him, his testimony regarding the number of employees he directed
does not raise a disputed issue of material fact. He stated that there were
times, “more often than not,” when he was supervising only one employee.
(Gamarra Dep. 242:25–243:18.) He also specified that “on the night shift” he
supervised one or two employees. In contrast, his immediate supervisor
explained that “Gamarra regularly supervised at least 2 employees on the night
shift and approximately 10 to 12 employees on day shifts.” (Defs.’ SOF ¶ 32; J.
Cabrera Aff. ¶ 4, ECF No. 35-1, 2.) Moreover, Gamarra sent his supervisor a
number of emails or reports indicating that there were regularly at least two
employees under his direction. For example, in one report to his supervisor,
Gamarra complains that he was “short staffed” because he “[h]ad only 1
employee,” indicating that this was an unusual situation. (Ex. 11, Gamarra

Dep, ECF No. 42-1, 83–84.) In another shift report, Gamarra listed two
employees as requiring overtime and listed another as a “THS agent.” (Ex. 10,
Gamarra Dep, ECF No. 42-1, 81–82.) Gamarra described this as “adequate
staffing” during an “[o]verall [] noneventful night” shift, revealing, again, that at
least three was a typical number of subordinate employees. (Id.) In an email
from another date, Gamarra explained to a supervisor that, during his shift, he
had to send an employee home because he was not complying with directions
from a lead. (Ex. 14, Gamarra Dep, ECF No. 42-1, 87.) This too reinforces the
other record evidence that Gamarra regularly directed at least two employees
during his shifts. Without more, Gamarra’s testimony that he frequently only
worked with one employee is not enough to raise a genuine issue of material
fact. Even assuming that Gamarra indeed frequently worked with only one
employee, the evidence submitted by the Defendant, showing that Gamarra
regularly and customarily directed the work of two or more employees, is
undisputed. Gamarra’s direction of at least two other employees during his
shifts, even by his own testimony did not occur only on an “isolated or onetime” basis.
The Defendants have thus carried their burden of establishing this final
element of the executive exception and the Plaintiffs have failed to come
forward with sufficient evidence based upon which a reasonable juror could
find in their favor.
3. The Court declines to address whether the Plaintiffs are exempt
under the administrative exemption of the FLSA.
The Defendants also claim that the Plaintiffs all qualify for the
administrative exemption as well. Because the Court finds that there is no
genuine issue of material fact regarding whether the Plaintiffs qualify for the
FLSA’s executive exemption, it declines to opine on whether they also, or
alternatively, satisfy the requirements under the administrative exemption.
4. Conclusion
In conclusion, “the pleadings, affidavits, depositions, admissions, and the
like ‘show that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Urquilla-Diaz, 780 F.3d at
1050 (quoting Fed. R. Civ. P. 56(a)). The Plaintiffs have failed to make a
showing sufficient for a reasonable jury to find on their behalf on their FLSA
claims. The Court therefore grants the Defendants’ motion for final summary
judgment (ECF No. 46).

The Clerk shall close this matter. Any other pending motions are denied
as moot. Both the calendar call, set for April 11, 2017, and the trial date, April
17, 2017, are canceled.
Done and ordered, at Miami, Florida, on April 7, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge