Warner v. Walgreens, Co.

Filing 87

ORDER granting in part and denying in part 51 Motion for Summary Judgment. Signed by Judge Robin L. Rosenberg on 5/14/2015. (bkd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 9:14-CV-81176-ROSENBERG/BRANNON
RUBY WARNER,
Plaintiff,
v.
WALGREEN CO., d/b/a WALGREENS,
Defendant.
__________________________________/
ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AS TO PLAINTIFF’S CLAIMS IN THE ENTIRETY
This matter is before the Court on Defendant’s Motion for Summary Judgment as to
Plaintiff’s Claims in the Entirety [DE 51]. The Motion has been fully briefed by both sides and the
Court heard oral argument on the Motion on May 1, 2015. The Court has reviewed the documents
in the case file and is fully advised in the premises. For the reasons set forth below, the Motion is
denied as to Walgreens’ executive exemption defense, denied as to Walgreens’ administrative
exemption defense, and granted as to Walgreens’ statute of limitations argument.
I.

DISPUTED AND UNDISPUTED FACTS

This case is about the application of federal labor laws to an assistant manager in a retail
store. Plaintiff, Ms. Ruby Warner, is a former employee of Defendant, the Walgreen Company.
DE 51-1 ¶ 2. Ms. Warner was first hired by Walgreens in 1999. Id. At that time, Ms. Warner was
hired as a Management Trainee. Id. As a Management Trainee, Ms. Warner was paid an hourly
wage and was eligible for overtime pay. Id. Between 1999 and 2006, Ms. Warner sought on at
least three separate occasions to be promoted to the next highest position in the Walgreens
1

hierarchy, Executive Assistant Manager (“EXA”). Id. ¶¶ 3-6. Ms. Warner’s third attempt at
promotion in 2006 was successful and she was promoted to the position of EXA. DE 45-1 at 29.
As an EXA, Ms. Warner was a salaried employee, no longer eligible for overtime, and she
was eligible to receive an annual bonus (that hourly-wage employees were not eligible for). DE
51-1 ¶¶ 7, 25. Ms. Warner’s new position as an EXA required her to take and complete a series of
management training courses. Id. ¶ 8. Her immediate superior was a store manager. Id. ¶ 7. As an
EXA, no employee (other than the store manager or district manager) could delegate or assign
work to Ms. Warner. See id. ¶ 11. Ms. Warner did, however, have the authority to assign and
delegate work to all other store employees (again excepting the store manager or a district
manager). See id. Ms. Warner also conducted three or four second interviews for potential hires.
Id. at ¶ 12. On at least one occasion, Ms. Warner recommended that an applicant not be hired and
this recommendation was ultimately followed.1 Id.
According to Ms. Warner, she spent a considerable amount of time as the highest ranking
employee in her store. Id. ¶ 10. More specifically, Ms. Warner estimates that somewhere between
55% and 65% of the time there was no store manager present during her work shift, and that she
worked an average of 60 hours per week. Id. It is therefore Ms. Warner’s testimony that she was
the highest ranking employee in her store for approximately 36 hours per week. See id. From April
13, 2010 to August 29, 2010, Ms. Warner supervised (although the parties dispute the level of
supervision) approximately ten to fifteen employees during her weekly shifts.2 Id. ¶ 11.

1

Ms. Warner disputes the relevancy of these interviews because they were conducted in 2009. The Court finds any
argument related to relevancy unpersuasive, however, as Ms. Warner’s position at Walgreens in 2009, as an EXA, was
the same as Ms. Warner’s position in the time period at issue in this case—EXA. Nonetheless, this issue is ultimately
moot for the reasons set forth below.
2
This number represents the total number of employees whose shifts overlapped with Ms. Warner’s shift.

2

Ms. Warner’s duties as an EXA included work that non-exempt, hourly-wage employees
under her supervision performed. See id. ¶ 21. For example, Ms. Warner worked the store cash
register and stocked shelves. Id. The amount of non-managerial work that Ms. Warner performed
as an EXA is a hotly contested issue in this case. It is Ms. Warner’s testimony that non-managerial
work comprised over ninety percent of her time. DE 54-2 ¶ 21. More specifically, it is Ms.
Warner’s testimony that over ninety percent of her day was spent unloading freight trucks,
managing inventory in the back of the store, and stocking shelves. Id. While performing this work,
it is also Ms. Warner’s testimony that (i) she was unable to supervise the other employees in the
front of the store and (ii) due to her inability to supervise, the store manager would appoint shift
leaders (from the pool of available hourly-wage employees) who would supervise the front area of
the store. Id. ¶¶ 21, 10-11. Finally, Ms. Warner consistently testified that she was unable to
exercise any significant managerial responsibilities in her stores because (i) she was constrained by
store policies and (ii) any decision of significance required store manager approval. See generally
DE 54-2.
Ms. Warner resigned from Walgreens in 2012. DE 51-1 ¶ 9. In 2013 Ms. Warner joined a
class-action lawsuit against Walgreens styled Teramura, et al. v. Walgreen Co., No. 12-cv-05244,
in the Western District of Arkansas. Id. ¶ 27. Ms. Warner was dismissed from that suit and has
since elected to pursue an independent action—the instant case. Id. ¶¶ 28-29.
II.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for
summary judgment; rather, “the requirement is that there be no genuine issue of material fact.”
3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if “a
reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of
Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S. at
247-48). A fact is material if “it would affect the outcome of the suit under the governing law .” Id.
(citing Anderson, 477 U.S. at 247-48).
In deciding a summary judgment motion, the Court views the facts in the light most
favorable to the non-moving party and draws all reasonable inferences in that party’s favor.
See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting
evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon
discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.
The moving party bears the initial burden of showing the absence of a genuine dispute of
material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the moving party
satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., LLC, 327 F. App’x 819,
825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986)). Instead, “[t]he non-moving party must make a sufficient showing on each
essential element of the case for which he has the burden of proof.” Id. (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving party must produce evidence,
going beyond the pleadings, to show that a reasonable jury could find in favor of that party. See
Shiver, 549 F.3d at 1343.
III.

LEGAL ANALYSIS AND DISCUSSION

Ms. Warner has brought in the instant case a claim for unpaid overtime wages against
Walgreens under the Fair Labor Standards Act. FLSA overtime requirements exempt, however,
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“any employee employed in a bonafide executive, administrative, or professional capacity.” 29
U.S.C. § 213(a)(1). Walgreens argues that it is entitled to judgment as a matter of law because Ms.
Warner qualified for the FLSA overtime exemption as both an executive employee and as an
administrative employee. Each exemption is discussed in turn. Additionally, the Court addresses a
third component of Walgreens’ motion for summary judgment which concerns the statute of
limitations applicable to FLSA claims.
1.

The Executive Exemption.

To qualify for the FLSA executive exemption, an employee must be paid on a salary basis
at a rate of at least $455.00 per week3 and must: (A) have management as his or her primary duty;
(B) customarily and regularly direct the work of two or more employees; and (C) have authority to
hire or fire other employees or have his or her recommendations as to the hiring, firing,
advancement, promotion, or other change in status of employees, considered seriously. See 29
C.F.R. § 541.100(a). Ms. Warner disputes that each of these three requirements are met in this
case.
Ms. Warner disputes that her primary duty was management. Instead, Ms. Warner’s
position is essentially that her primary duty was to move freight and stock inventory. Her position
is supported by evidence in the record through her testimony that she spent ninety percent of her
time unloading freight trucks, managing inventory in the back of the store, and stocking shelves.
DE 52-2 ¶ 21. The most recent published opinion of the Eleventh Circuit Court of Appeals
considering this area of law is Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th Cir.
2008).

3

The parties do not dispute this element of the exemption. DE 51-1 ¶ 33.

5

In Morgan, the Eleventh Circuit considered a class of store managers who oversaw discount
retail stores. The evidence admitted at trial relevant to the FLSA executive exemption included
evidence that the managers exercised very little discretion and that the managers spent 80% to 90%
of their time on manual-labor tasks. Id. at 1249. More specifically, the managers in that case were
required to stock shelves, unload trucks, operate cash registers, clean bathrooms, clean the parking
lot, and clean the store in addition to more typical managerial activities such as making bank
deposits and completing paperwork. Id. The Morgan court considered regulatory guidance as to
the types of activities that are considered to be managerial:
[A]ctivities 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.

Regulations do not define, however, “primary duty” and instead an

employee’s primary duty classification “must be based on all facts in a particular case.” 29 C.F.R.
§ 541.700(a). Regulations do provide factors a court may consider in determining whether an
employee’s primary duty is management:
[T]he 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.

6

Id. Unsurprisingly, the time an employee spends on managerial duties is an important factor under
the regulations, but even an employee who spends less than fifty percent of his or her time on
managerial duties may still qualify under the executive exemption if “other factors support such a
conclusion.” 29 C.F.R. § 541.700(b). Similarly, “[c]oncurrent performance of exempt and
nonexempt work does not disqualify an employee from the executive exemption if [requirements
are otherwise met].” 29 C.F.R. § 541.106(a). Finally, the burden of proving an exemption lies with
a defendant as an affirmative defense and the exemption should only be applied to employees who
are “clearly and unmistakably within the terms and spirit of the exemption.” Morgan, 551 F.3d at
1269 (quoting Brock v. Norman’s Country Market, Inc., 835 F.3d 823, 826 (11th Cir. 1988)).
The Morgan court therefore applied the above-cited regulatory principles to the store
managers in that case. Referencing the time-spent-on-exempt-work factor, the court noted “the
overwhelming evidence at trial showed [the] store managers spent 80 to 90% of their time
performing nonexempt, manual labor, such as stocking shelves, running the cash registers,
unloading trucks, and cleaning the parking lots, floors, and bathrooms. Conversely, Plaintiff store
managers spent only 10 to 20% of their time performing exempt work, a far cry from the DOL's
50% guideline for management tasks.” Id. The court also discussed the relative freedom that store
managers had from direct supervision: “There was overwhelming evidence that store managers
spent only 10 to 20% of their time on exempt (i.e., managerial) work. Plaintiffs presented evidence
that store managers rarely exercised discretion because either the operations manuals or the district
managers’ directives controlled virtually every aspect of a store's day-to-day operations.” Id. at
1270.
Having considered the Eleventh Circuit’s analysis in Morgan, the Court turns its attention
to the instant case. With respect to the amount of time spent on non-managerial duties, it is Ms.
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Warner’s testimony that she spent ninety percent of her time on non-managerial duties—like the
store manager plaintiffs in Morgan—and the Morgan court expressly found that an employee
unloading freight could not concurrently manage employees in the front of a store. See id. at
1272-73. With respect to the relative importance of her managerial duties, it is Ms. Warner’s
testimony that the relative importance of her managerial duties was miniscule because (i) she spent
so little time performing those functions, (ii) other employees were designated “shift leaders” so
she could unload freight, and (iii) manual labor (on behalf of EXAs) was an important part of
Walgreens’ business model—which was also the case in Morgan. With respect to the relative
freedom Ms. Warner enjoyed from supervision, while the record does establish that Ms. Warner
was the highest ranking employee in her store for many hours per week, there is also record
evidence that Ms. Warner’s discretion was restricted through a combination of Walgreens policies
and store manager oversight. See generally DE 54-2. This too is similar to Morgan because in
Morgan the store managers were necessarily the highest ranking employees in the store and they
too had substantial restrictions over their discretion from corporate policies and a higher-ranking
manager, a district manager. Morgan, 551 F.3d at 1271. With respect to the comparison of Ms.
Warner’s compensation with the compensation of non-exempt workers at Walgreens, if Ms.
Warner’s salary is converted to an hourly wage based upon the assumption (via her testimony) that
she worked fifty, and sometimes sixty, hour weeks, Ms. Warner’s hourly wage would compute to
somewhere between $16.09 per hour and $20.36 per hour, depending upon which year of Ms.
Warner’s employment is examined.4 By comparison, a management trainee at Walgreens, an

4

These calculations and the calculations pertaining to management trainees are necessarily subject to variance
depending upon assumptions over the number of hours worked and the amount of any annual bonus. Even so, the
range of Ms. Warner’s hourly wage in the instant case juxtaposed to manager trainees’ wages in the instant case are
comparable (in terms of a percentage difference) with the range of wages discussed in Morgan.

8

hourly-wage employee eligible for overtime, could have received somewhere between $18.27 per
hour and $19.39 per hour. See DE 51-1 ¶¶ 33-34. The effective hourly wages in the instant case are
therefore similar to the effective hourly wages in Morgan where store managers, once their hours
were factored into their salaries, made only two to three dollars per hour more than assistant
managers. Morgan, 551 F.3d at 1271.
Walgreens disputes the testimony of Ms. Warner on a variety of levels. For example,
Walgreens disputes the level of supervision that Ms. Warner had over lower-ranked employees.
Walgreens also disputes the level of discretion Ms. Warner was entitled to exercise in the discharge
of her duties, and Walgreens disputes the relative importance of Ms. Warner’s managerial
responsibilities. The gravamen of Walgreens’ arguments were raised, however, by the defendants
in Morgan. Ultimately, for all of the reasons outlined above the Court finds that Morgan is
analogous to the instant case. To the extent Walgreens disputes the record evidence in favor of Ms.
Warner, Ms. Warner is the non-moving party on the motion for summary judgment before the
Court and all inferences in the record must be construed in her favor. Viewed in this light, and
viewed in the context of the facts at issue in Morgan, the Court finds that there is a question of
material fact as to whether Ms. Warner’s primary duty was management.
Although Walgreens cites to a number of cases that have found assistant managers qualify
for the executive exemption as a matter of law—even when the assistant managers spent far greater
than fifty percent of their time on non-managerial tasks—Walgreens’ authority may be divided into
two concrete categories. The first such category encompasses cases that have been decided outside
of this circuit. The Court finds these cases unpersuasive in light of the binding precedent of

9

Morgan. The second category encompasses cases decided in this circuit prior to Morgan.5 E.g.,
Diaz v. Team Oney, Inc., No. 07-21573-CIV, 2008 WL 9463871 (S.D. Fla. Apr. 29, 2008); Jackson
v. Advance Auto Parts, 362 F. Supp. 2d 1323, 1334 (N.D. Ga. 2005). Although the Court expresses
no opinion whether the Eleventh Circuit’s decision in Morgan would have prompted a different
result in the cases decided in this circuit prior to Morgan, the Court finds nonetheless that Morgan,
as binding authority, is the proper lens with which to view the facts before the Court. The Court’s
own research has revealed no cases in this district that cite and discuss Morgan on the issue of
executive exemption, but the cases that have cited to Morgan outside of this district on the issue of
executive assumption have overwhelmingly declined to find that an executive exemption applied
as a matter of law. E.g., Barreto v. Davie Marketplace, LLC, 331 F. App’x 672 (11th Cir. 2009);
Bond v. Ripa & Assocs., No. 808-CV-2056, 2010 WL 457324 (M.D. Fla. Feb. 4, 2010); Davis v.
Wal-Mart Stores, Inc., No. 10-cv-68, 2010 WL 3718834 (M.D. Ala. Sept. 13, 2010).
In summary, the facts of instant case are highly analogous to the facts in Morgan,
exemptions under the FLSA must be narrowly construed, and the record in this case must be
viewed in the light most favorable to Ms. Warner. As a result, the Court finds that there are
questions of material fact as to whether Ms. Warner’s primary duty was management, and
Walgreens therefore cannot meet its burden to establish as a matter of law the executive exemption
applied to Ms. Warner. The Court’s decision on this matter applies to at least one other element
necessary for the executive exemption as well. For example, if Ms. Warner’s testimony is accepted
5

Walgreens does cite to a few cases in this circuit that were decided subsequent to Morgan and which involved the
application of the executive exemption as a matter of law under the FLSA. For example, Walgreens cites to Calvo v.
B&R Supermarket, Inc., No. 13-cv-24000, 2014 WL 5473565 (S.D. Fla. Oct. 28, 2014) and Brillas v. Bennet Auto
Supply, Inc., 675 F. Supp. 2d 1164 (S.D. Fla. 2009). Neither case cites to Morgan. Upon review of Calvo and Brillas,
it is the Court’s conclusion that the facts in those cases are sufficiently different from the facts in the instant case such
that Morgan is determinative in the instant case. In Calvo there was very significant evidence that the plaintiff
routinely and systemically performed managerial work and in Brillas the plaintiff had actually conceded (to an extent)
that his primary duty was management.

10

as true that she spent ninety percent of her time on tasks that did not allow her to concurrently
supervise employees in the store, it necessarily follows that Ms. Warner spent approximately five
hours per week working as a supervisor. Given that the third element for the executive exemption
requires a supervisor to supervise at least eighty employee-hours per week,6 and given that Ms.
Warner never supervised more than five employees at one time,7 there is a question of material fact
as to whether Ms. Warner supervised eighty-employee hours per week. Accordingly, for all of the
reasons set forth above, summary judgment must be denied as to the executive exemption.
2.

The Administrative Exemption.

Walgreens argues that even if Ms. Warner does not qualify under the executive exemption,
she nonetheless qualifies under the administrative employee exemption. This exemption applies to
an employee:
(1) Compensat[ed] on a salary or fee basis at a rate of not less than $455 per week
(or $380 per week, if employed in American Samoa by employers other than the
Federal Government), exclusive of board, lodging or other facilities;
(2) Whose primary duty is the performance of office or non-manual work directly
related to the management or general business operations of the employer or the
employer's customers; and
(3) Whose primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.
29 C.F.R. § 541.200(a) (emphasis added). As discussed above, however, Ms. Warner has testified
that ninety percent of her work was on manual-labor tasks. DE 54-3 at 4. Ms. Warner further
testified that she never reviewed an employment application and that she never analyzed operating
6

See Morgan, 551 F.3d at 1275.
There is some confusion in the record as to how many employees Ms. Warner supervised at any given time. Even so,
there is no evidence in the record to support the finding that Ms. Warner supervised (at the same time) sixteen separate
employees, which would be the number of employees Ms. Warner would have to simultaneously supervise for her to
satisfy the third element of the executive exemption, provided that Ms. Warner’s five hours of supervisory duties per
week is accepted as true.

7

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statements for her store. DE 45-1 at 37, 52. For the same reasons an issue of fact exists as to the
application of the executive exemption, an issue of material fact exists as to whether Ms. Warner’s
“primary duty [was] . . . office or non-manual work.” Id.
Similarly, Ms. Warner has testified that she was unable to exercise her discretion and
independent judgment as an assistant manager because she was constrained by a combination of
corporate policies and store manager oversight. Ms. Warner further testified that she had no
authority to order staff to come to work (when there was a staff shortage) and that she had no
authority to modify staff schedules without store manager approval.

DE 45-1 at 33, 55.

Accordingly, there is a question of material fact as to whether Ms. Warner’s “primary duty
include[d] the exercise of discretion and independent judgment with respect to matters of
significance.” Id. Particularly in light of the fact that all evidence in the record must be viewed in
the light most favorable to Ms. Warner, only a trier of fact can determine whether Ms. Warner’s job
was to move freight and stock shelves or to perform administrative office work while exercising
her independent discretion.

Accordingly, summary judgment must be denied as to the

administrative exemption.
3.

The FLSA Statute of Limitations.

FLSA actions are subject to a two-year statute of limitations. 29 U.S.C. § 255(a). Because
the instant action was filed on September 12, 2014, at least a portion of Ms. Warner’s FLSA claim
is subject to the statute of limitations. Ms. Warner therefore seeks to invoke the exception which
extends the statute of limitation period to three years from two. This exception allows for such an
extension when a defendant’s violation of the FLSA is willful. Id.
Ms. Warner argues that Walgreens’ failure to pay her overtime compensation was a willful
violation due to the following. First, Walgreens altered its practice of allowing overtime in 2007 in
12

such a way as to try to eliminate overtime pay. DE 46-1 at 26. Second, Ms. Warner argues that,
logically, the elimination of the authorization for overtime did not have the result of eliminating the
need for overtime labor. Third, subsequent to the overtime change Ms. Warner was required to
work additional hours to compensate for the loss of overtime labor by hourly employees. Fourth,
Walgreens was on notice that its use of EXAs (in a manner similar to Ms. Warner’s testimony)
violated the FLSA by virtue of a series of lawsuits. See DE 54 at 19-20. Fifth, despite such notice,
Walgreens did not alter its policies or adjust the responsibilities of the EXA position for many
years, nor did Walgreens perform a study to analyze FLSA exemptions in the context of how EXAs
were actually utilized in Walgreens’ stores. See DE 46-1 at 18-20.
The standard for willfulness under the FLSA is quite high:
[I]f an employer's FLSA violations stem from mere negligence or from actions that
are unreasonable but not ‘reckless,’ the employer's liability for compensatory
damages is limited to no more than two years. Similarly, the mere fact that the
employer knows the FLSA is ‘in the picture’ is not dispositive of willfulness, and a
mere lack of prudence is insufficient to support a finding of willfulness. The
plaintiff has the burden to demonstrate reckless disregard in order to extend the
statute of limitations.
Henderson v. Payless Shoes, No. CV204-70, 2006 WL 346467, at *7 (S.D. Ga. Feb. 14, 2006)
(citation omitted). A case decided by the Eleventh Circuit Court of Appeals, Reich v. Department
of Conservation and Natural Resources, is helpful on this point. 28 F.3d 1076 (1994). In Reich,
the appellate court found that the record showed substantial evidence that the defendant had failed
to enforce its own policies regarding overtime work but, nonetheless, the appellate court refused to
find that the defendant’s behavior was willful. Id. at 1084. Importantly, the appellate court noted
that it took more than two years for the defendant’s behavior and policies to change from “a pattern
of acquiescence” to “a more vigilant attitude.” Id. In summary, the Reich court held “Although the
[defendant] should have done more to ameliorate the problem, it did at least attempt to address it,
13

albeit ineffectively. We cannot say on the basis of the record before us that it showed reckless
disregard for the matter of whether its conduct was prohibited. Its failure to rectify this troublesome
situation can better be described as resulting from negligence rather than from willfulness.” Id.
Even viewing the evidence in the record in the light most favorable to Ms. Warner, the
Court cannot find that Ms. Warner has produced sufficient evidence to survive summary judgment
on the issue of willfulness. The crux of Ms. Warner’s arguments on this point rest upon a series of
lawsuits against Walgreens, but as discussed above in section 1 there was ample authority (in this
district alone) to support Walgreens’ position as recently as 2008. Moreover, just because one jury
may decide a particular EXA did not qualify for an executive exemption, there is nothing to
preclude a separate jury from reaching the opposite result on different facts; questions such as these
are case specific by law. 29 C.F.R. § 541.700(a) (requiring that an employee’s primary duty
classification “must be based on all facts in a particular case”). Finally, Ms. Warner concedes that
Walgreens has recently altered the EXA position to give employees employed in that position
greater managerial authority. DE 54 at 20. Walgreens’ actions in this regard are, at the very least,
exercised in an abundance of caution and are comparable to the actions of the defendant in Reich
that, albeit slowly, altered policies to comply with FLSA requirements.
In summary, there is insufficient evidence in the record to support a finding that Walgreens
willfully violated FLSA requirements. As such, Walgreens is entitled to judgment as a matter of
law as to this issue. Finally, although Walgreens has argued that Ms. Warner’s participation in the
case of Teramura, et al. v. Walgreen Co. should not toll the statute of limitations in this case,
Walgreens’ argument on this point was entirely premised on Ms. Warner’s assertion that
Walgreens willfully violated the FLSA. Because the Court has found that Walgreens did not
willfully violate the FLSA, the Court finds that Walgreens’ opposition to tolling has become moot.
14

The Court therefore sees no reason to estop or otherwise preclude Ms. Warner from the tolling she
is otherwise entitled to due to her participation in the Teramura, et al. v. Walgreen Co. case.
IV.

CONCLUSION

For the foregoing reasons, Walgreens’ Motion for Summary Judgment as to Plaintiff’s
Claims in the Entirety [DE 51] is DENIED as to Walgreens’ executive exemption defense,
DENIED as to Walgreens’ administrative exemption defense, and GRANTED as to Walgreens’
statute of limitations argument on the issue of willfulness.
DONE and ORDERED in Chambers, Fort Pierce, Florida, this 14th day of May, 2015.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to: Counsel of Record

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