Bailey v. Innovative Contracting Solutions, Inc. et al

Filing 40

OPINION and ORDER denying 35 Motion to Strike or Exclude Declaration of Brian Williams and granting in part and denying in part 28 Motion for Summary Judgment. Signed by Judge Leigh Martin May on 12/4/2014. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHRISTOPHER BAILEY,
Plaintiff[s],
v.
INNOVATIVE CONTRACTING
SOLUTIONS, INC., et al.,
Defendants.

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CIVIL ACTION NO.
1:13-CV-4114-LMM

OPINION AND ORDER
This is an action for unpaid overtime under the Fair Labor Standards Act
(the “FLSA”). It is before the Court on the Defendants’ Motion for Summary
Judgment [Doc. 28] and the Defendants’ Motion to Strike or Exclude the
Declaration of Brian Williams [Doc. 35]. For the reasons stated below, the
Defendants’ Motion for Summary Judgment is GRANTED in part and DENIED
in part. The Defendants’ Motion to Strike or Exclude is DENIED.
I. Background
On July 11, 2011, Defendant Innovative Contracting Solutions, Inc. (“ICS”)
hired the Plaintiff, Christopher Bailey, as a project superintendent at a salary of
$49,000 per year.1 Mr. Bailey remained in that position until July 12, 2012.2 ICS
1

Defs.’ Statement of Facts ¶¶ 2, 4.

2

Id. ¶ 4.

is a commercial general contractor that renovates offices, medical facilities,
industrial buildings, and restaurants throughout the southeast.3 Defendant
Matthew Hubbard is the President and sole shareholder of ICS.4
The parties dispute exactly what Mr. Bailey’s duties as a project
superintendent entailed. They agree that on a typical day, Mr. Bailey was the
most senior ICS employee on the job site.5 The Plaintiff contends, however, that
usually he was the only ICS employee at a given job site.6 The Defendants claim
that Mr. Bailey was rarely supervised, but Mr. Bailey claims that he reported to or
checked in with his supervisor on a regular basis.7 The parties further dispute
whether Mr. Bailey was responsible for hiring subcontractors. The Defendants
claim that Mr. Bailey exercised “sole discretion” in selecting project labor,
determining the amount of labor needed, assessing the skills of laborers, and
recommending pay rates for laborers.8 Mr. Bailey asserts that laborers were used
3

Pl.’s Statement of Facts ¶¶ 1-2.

4

Id. ¶ 4.

5

Pl.’s Resp. to Defs.’ Statement of Facts ¶ 10.

6

Id.

7

Id. ¶ 11; Defs.’ Statement of Facts ¶ 11.

8

Defs.’ Statement of Facts ¶¶ 18-20.

2

only ten to fifteen percent of the time, but admits that on those occasions, he
consulted with his supervisors to determine the amount of labor needed and then
made recommendations regarding which people to hire.9 Mr. Bailey denies that
he ever set the pay rate for laborers.10 He further denies that he had “sole
discretion” in selecting laborers – he needed approval from his superiors.11 Mr.
Bailey admits that his recommendations for which laborers to hire were never
rejected.12 Additionally, when laborers were used, Mr. Bailey recorded and
submitted their time to ICS management.13
In regard to supervision of subcontractors, Mr. Bailey admits that he was
responsible for overlooking the work of the subcontractors on site, but asserts
that he had little to no control over their actions.14 Additionally, Mr. Bailey stated
that the subcontractors already knew what their jobs were without any
9

Pl.’s Resp. to Defs.’ Statement of Facts ¶¶ 18-19.

10

Id. ¶ 19.

11

Id. ¶ 20.

12

Id. ¶¶ 21-22.

13

Id. ¶ 30.

14

Id. ¶¶ 23-24.

3

direction.15 Mr. Bailey did not keep track of the subcontractors’ time, but would
report if subcontractors were absent, late, or left early.16 About ninety percent of
the time, subcontractors were scheduled by someone other than Mr. Bailey, but
on occasion, he coordinated subcontractors’ presence on job sites.17
Most significantly, the parties dispute the hierarchy of employees at ICS
and the basic duties of project superintendents like Mr. Bailey. Mr. Bailey
contends that as a project superintendent, he was supervised by project
managers.18 ICS, on the other hand, states that project superintendents and
project managers worked together to ensure the successful completion of
projects.19 Mr. Bailey testified that he spent seventy-five to eighty percent of his
day performing manual labor, which was the majority of his responsibility.20 ICS
stated that two-thirds of Mr. Bailey’s work was non-manual labor, that any
manual labor performed was limited to items after the completion of
15

Id. ¶ 24.

16

Pl.’s Resp. to Defs.’ Statement of Facts ¶ 26.

17

Id. ¶ 34.

18

Pl.’s Statement of Facts ¶¶ 6, 13.

19

Defs.’ Resp. to Pl.’s Statement of Facts ¶¶ 6, 13.

20

Pl.’s Statement of Facts ¶¶ 16-22, 24.

4

construction, and that temporary laborers performed manual labor.21 It is not
disputed that on occasion, Mr. Bailey would purchase supplies and pick up
building permits.22
Mr. Bailey claims that ICS failed to pay him time-and-a-half pay for hours
over forty per week. The Defendants now move for summary judgment, claiming
that Mr. Hubbard does not qualify as an employer, that Mr. Bailey was an exempt
employee, or at the very least, that some of Mr. Bailey’s claims are barred by the
statute of limitations.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions,
and affidavits submitted by the parties show no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law.23 The court
should view the evidence and any inferences that may be drawn in the light most
favorable to the nonmovant.24 The party seeking summary judgment must first
identify grounds to show the absence of a genuine issue of material fact.25 The
21

Defs.’ Resp. to Pl.’s Statement of Facts ¶¶ 16-22, 24.

22

Pl.’s Resp. to Defs.’ Statement of Facts ¶¶ 41, 43.

23 FED. R. CIV. P.

56(a).

24

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).

25

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

5

burden then shifts to the nonmovant, who must go beyond the pleadings and
present affirmative evidence to show that a genuine issue of material fact does
exist.26 “A mere ‘scintilla’ of evidence supporting the opposing party’s position
will not suffice; there must be a sufficient showing that the jury could reasonably
find for that party.”27
III. Discussion
A. Motion to Strike or Exclude
In opposition to the Defendants’ Motion for Summary Judgment, the
Plaintiff offers the Declaration of Brian Williams. The Defendants move to strike
or exclude that declaration. They claim that Mr. Williams was disclosed too late
in the discovery process for his testimony to be considered.28 Pursuant to the
2010 Amendments to the Federal Rules of Civil Procedure, motions to strike are
not a preferred method for challenging the admissibility of evidence on summary
judgment.29 The Court will therefore consider the motion only as a motion to
exclude.
26

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

27

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).

28

Br. in Supp. of Defs.’ Mot. to Strike or Exclude, at 2-3.

29

FED. R. CIV. P. 56 advisory committee’s note of 2010 subdivision (c)(2).

6

Here, the Plaintiff became aware of a new witness late in discovery and
disclosed that witness to the Defendants.30 The Defendants claim prejudice
because they were unable to depose that witness, Mr. Williams, within the
discovery period.31 The Plaintiff offered to consent to an extension of discovery to
allow the Defendants to depose Mr. Williams.32 The Defendants never responded
to that offer.33 Additionally, Mr. Williams is a former employee of the
Defendants.34 This Court refuses to exclude the declaration where the witness is a
former employee of the Defendants and the Defendants could have simply
responded to the Plaintiff’s offer and then deposed Mr. Williams.
B. Motion for Summary Judgment
1. Hubbard as Employer
An individual may only be held liable for violating the overtime provisions
of the FLSA if he qualifies as an “employer.”35 The term “employer” is broadly
30

Pl.’s Br. in Opp’n to Defs.’ Mot. to Strike or Exclude, at 4.

31

Br. in Supp. of Defs.’ Mot. to Strike or Exclude, at 3.

32

Pl.’s Br. in Opp’n to Defs.’ Mot. to Strike or Exclude, at 5.

33

Id.

34

Id. at 6.

35

29 U.S.C. § 207(a)(1); Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d

1150, 1160 (11th Cir. 2008).

7

defined as “any person acting directly or indirectly in the interest of an employer
in relation to an employee.”36 Corporate officers fall within this definition if they
are involved in the day-to-day operations of the business or have some direct
responsibility for supervising the employee.37 Here, while Mr. Hubbard did not
set employee compensation generally, he set the upper end of salary ranges,
made determinations regarding employee benefits, decided employee exempt or
non-exempt status, and had final say over almost every decision.38 Given that Mr.
Hubbard had significant involvement in the day-to-day affairs of ICS, Mr.
Hubbard’s motion for summary judgment on the ground that he is not an
employer should be denied.
2. Exemptions
As a general matter, the FLSA provides that employees are entitled to
overtime pay for all hours worked in excess of forty hours per week.39 But, the
FLSA exempts “any employee employed in a bona fide executive, administrative,
or professional capacity” from its overtime requirements.40 There is no dispute
36

29 U.S.C. § 203(d).

37

Alvarez Perez, 515 F.3d at 1160.

38

Ford Dep. at 71, 74; Hubbard Dep. at 30.

39

29 U.S.C. § 207(a)(1).

40

29 U.S.C. § 213(a)(1).

8

here that Mr. Bailey was not paid overtime. The Defendants, however, contend
that Mr. Bailey qualified as an exempt employee and is therefore not entitled to
overtime pay.
“The employer bears the burden of proving that an employee is exempt
from overtime payments.”41 The employer “must prove applicability of an
exemption by ‘clear and affirmative evidence.’”42 Further, the FLSA “should be
interpreted liberally in the employee's favor” and the Act's exemptions “are to be
narrowly construed” against the employer.43
a. The Administrative Exemption
ICS contends that the Plaintiff was an exempt employee under the
administrative exemption. That exemption removes employees from the overtime
requirements of the FLSA if they are compensated on a salary or fee basis at a
rate of $455 a week or more, have a primary duty of office or non-manual work
directly related to management or operations, and their primary duty includes
the “exercise of discretion and independent judgment with respect to matters of
41

Rock v. Ray Anthony Int'l, 380 Fed. App'x 875, 877 (11th Cir. 2010) (citing Atlanta

Prof ‘l Firefighters Union, Local 134 v. City of Atlanta, 920 F.2d 800, 804 (11th Cir.
1991)).
42

Birdwell v. City of Gadsden, 970 F.2d 802, 805 (11th Cir. 1992).

43

Id.

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significance.”44 The parties agree that Mr. Bailey received a salary of $49,000 per
year, which satisfies the first requirement. The second two requirements are
disputed.
An employee’s primary duty is “the principal, main, major or most
important duty that the employee performs.”45 Factors to consider in
determining an employee’s primary duty are the importance of the exempt work
relative to other work, how much time is spent performing exempt work, whether
the employee is subject to direct supervision, and the relationship between the
employee’s salary and the wages paid to nonexempt workers.46 The amount of
time spent performing exempt work is a guide, but is not the sole consideration.47
Additionally, to qualify as exempt, the employee must perform work “directly
related to assisting with the running or servicing of the business.”48 Examples of
work that would qualify are:
tax; finance; accounting; budgeting; auditing; insurance; quality
control; purchasing; procurement; advertising; marketing; research;
safety and health; personnel management; human resources;
44

29 C.F.R. § 541.200.

45

29 C.F.R. § 541.700(a).

46

Id.

47

29 C.F.R. § 541.700(b).

48

29 C.F.R. § 541.201(a).

10

employee benefits; labor relations; public relations; government
relations; computer network, internet and database administration;
legal and regulatory compliance; and similar activities.49
Mr. Bailey contends that his primary duty was performing manual labor.
Specifically, he claims that he was often the only person performing labor at a job
site. ICS claims that Mr. Bailey’s primary duty was supervising job sites and
subcontractors. While there is certainly evidence in the record that Mr. Bailey
performed some exempt duties, such as reporting laborers’ time and making
purchases, there is also evidence that he spent a significant amount of time
performing manual labor. The Defendants dispute the amount of time Mr. Bailey
spent performing manual labor – specifically, they claim only one-third of Mr.
Bailey’s time was spent on incidental manual tasks, while Mr. Bailey claims he
spent over three-quarters of his time on essential manual labor. Taking the facts
in the light most favorable to Mr. Bailey, it cannot be said that any administrative
tasks were the most important part of his work. Determining Mr. Bailey’s actual
primary duty will therefore require resolving factual disputes between the parties
and assessing the credibility of the witnesses, making resolution of this issue
inappropriate for summary judgment.
Even if Mr. Bailey’s duties could be classified as administrative as a matter
of law, the evidence is not sufficient to say that he exercised discretion and
independent judgment with regard to matters of significance. Where discretion is
49

29 C.F.R. § 541.201(b).

11

limited and does not have a profound effect on the employer’s business, the
exemption is not satisfied.50 Here, the parties dispute the facts regarding Mr.
Bailey’s exercise of discretion. Under the Defendants’ version of the facts, Mr.
Bailey hired employees, set their pay, supervised them on site, and kept track of
their time on a regular basis. Under Mr. Bailey’s version of the facts, he made
recommendations about who to hire, but most times he was simply performing
labor and had no authority to make decisions or even talk to clients. It is a jury
question as to who is the most credible.
b. Executive Exemption
The Defendants also claim that Mr. Bailey fell under the executive
exemption. That exemption excludes from the overtime requirement employees
who are paid not less than $455 per week, have a primary duty of management of
the enterprise in which they are employed, customarily and regularly direct the
work of two or more employees, and have the authority to hire or fire other
employees or can give suggestions regarding hiring, firing, or employee change of
status that are given particular weight.51 Again, the parties agree that Mr. Bailey
satisfied the salary requirements for the executive exemption. The parties
disagree on the other three requirements.
50

Allemani v. Pratt (Corrugated Logistics) LLC, 1:12-cv-00100-RWS, 2014 WL 2574536,

at *11 (N.D. Ga. June 6, 2014).
51

29 C.F.R. § 541.100(a).

12

The Eleventh Circuit has found a genuine dispute of material fact regarding
the management duties prong of the test where the employee performed some
managerial tasks, but spent greater than fifty percent of his time performing
tasks identical to those of hourly employees.52 In Baretto, the employee did not
have time to perform his managerial duties because he spent so much time
performing non-exempt work.53 Additionally, the hourly employees there did not
need supervision because they already understood their jobs.54 Conversely, the
Eleventh Circuit has held that the assistant manager of a pizza restaurant met the
managerial duties requirement despite making pizzas and interacting with
customers, where his managerial tasks, such as supervising delivery drivers,
apportioning work, and marketing the restaurant, were more important to
operation of the enterprise.55
Here, Mr. Bailey performed some managerial tasks, such as making
purchases and reporting day laborers’ time to human resources. But, taking the
facts in the light most favorable to Mr. Bailey, he also performed a substantial
amount of manual labor that was necessary to the completion of the jobs.
52

Barreto v. Davie Marketplace, LLC, 331 F. App’x 672, 675 (11th Cir. 2009).

53

Id.

54

Id.

55

Diaz v. Team Oney, Inc., 291 F. App’x 947, 949 (11th Cir. 2008).

13

Additionally, like in Barreto, the laborers knew what their jobs were and
performed them without supervision. A reasonable jury could find that Mr.
Bailey’s primary duty was not managerial, but rather identical to that of a nonexempt employee.
As to the requirement that the employee regularly and customarily
supervise two or more employees, the facts again do not support application of
this exemption. The regulations require the employee to supervise two or more
full-time employees or their equivalent.56 There is no evidence here that Mr.
Bailey supervised any full-time employees. In fact, Mr. Bailey claims that he was
only supervising day laborers about ten to fifteen percent of the time. Those
laborers were not even considered employees of ICS. The Defendants cite
Armitage v. Dolphin Plumbing & Mechanical, LLC,57 for the proposition that
supervising piece workers and day laborers satisfies the requirement. The
Defendants misstate the holding of Armitage. The employee there admitted that
he regularly supervised at least two hourly employees in addition to piece
workers and day laborers.58 Here, there is no indication that Mr. Bailey
supervised ICS employees.
56

29 C.F.R. § 541.104(a).

57

510 F. Supp. 2d 763, 771 (M.D. Fla. 2007).

58

Id.

14

The facts do indicate that Mr. Bailey made recommendations on which
laborers to hire and that those recommendations were given deference. The
fourth requirement is therefore arguably satisfied. Regardless, because the
Defendants have not met their burden to prove that Mr. Bailey’s primary duty
was managerial and that he supervised two or more employees, the executive
exemption cannot apply at this point.
3. Statute of Limitations
The statute of limitations under the FLSA is two years, unless there is proof
of a willful violation of the statute.59 If a willful violation is shown, the statute of
limitations extends to three years.60 To show a willful violation, a plaintiff must
present evidence “that the employer either knew or showed reckless disregard for
the matter of whether its conduct was prohibited by the statute.”61 Merely
negligent conduct does not rise to the level required to show willfulness.62 A
willful violation would exist where an employer ignores advice from a responsible
official that its conduct is not lawful.63 The Eleventh Circuit has held that an issue
59

29 U.S.C. § 255(a).

60

Id.

61

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).

62

Id.

63

Davila v. Menendez, 717 F.3d 1179, 1185 (11th Cir. 2013).

15

of fact as to willfulness exists where there was evidence that the employer knew of
the hourly wage laws, but failed to investigate whether they had complied with
them.64
Here, the Plaintiff has not produced evidence to show a willful violation of
the FLSA. To the contrary, the evidence shows that the Defendants consulted an
attorney and complied with industry standards regarding classification of
superintendents.65 Although the Plaintiff contends that the Defendants relied on
potentially outdated legal advice, that fact would not indicate a willful violation of
the FLSA. The Court therefore finds that the two-year statute of limitations
applies. This lawsuit was filed on December 12, 2013. Any claims for overtime
worked prior to December 12, 2011, should therefore be dismissed.
IV. Conclusion
For the reasons stated above, the Defendants’ Motion to Strike or Exclude
the Declaration of Brian Williams [Doc. 35] is DENIED, and the Defendants’
Motion for Summary Judgment [Doc. 28] is GRANTED in part and DENIED in
part.
IT IS SO ORDERED this 4th day of December, 2014.

64

Id.

65

Hubbard Dep. at 30, 32; Ford Dep. at 77, 80-81.

16