Knight v. Beall's Outlet, Inc.
ORDER granting in part and denying in part 26 Motion for Summary Judgment. Signed by Chief Judge Lisa G. Wood on 1/13/17. (slt)
3n the antteb 'tate Dttrttt Court
for the boutbern 38iotrict of Seoria
BEALL'S OUTLET STORES, INC.,
Pending before the Court is Defendant Beau's Outlet
Stores, Inc.'s ("Defendant") Motion for Summary Judgment. Dkt.
No. 26. The Motion has been fully briefed and is now ripe for
the Court's review. For the reasons set forth below,
Defendant's Motion for Summary Judgment (Dkt. No. 26)
IN PART AND DENIED IN PART.
Defendant is a corporation with multiple retail stores
located throughout Georgia and the United States. Dkt. No. 1 ¶
Plaintiff Sandy Knight ("Plaintiff") was employed by
Defendant from March 2009 through March 2015.
Id. ¶J 4-5.
Plaintiff asserts that she routinely worked over 47 hours a week
and was not paid overtime. Dkt. No. 30-2 ¶ 10. Specifically,
Plaintiff alleges that she "should have been paid the regular
hourly rate for all [overtime] hours plus an overtime premium of
one-half of the hourly rate for each hour worked in excess of
forty hours in any given week." Id. Plaintiff primarily worked
for Defendant in two locations—Jesup, Georgia and Hinesville,
Georgia. Dkt. No. 30 p.3. Plaintiff sometimes worked out of
state as well. Id.
During the last three years of Plaintiff's employment she
was a "manager" and thus was paid on a salary basis. Dkt. No.
P. 2. Part of her lob included interviewing, hiring and
training new sales associates. Id. p. 3. Plaintiff directed,
planned and determined how work was to be done in the store.
Dkt. No. 30.
p. 3. Plaintiff could discipline employees and
apportion work. Id. at 4. However, Plaintiff asserts that 95
percent of her time was spent performing tasks akin to nonmanagerial employees. Dkt. No. 30-2 ¶ 3. These duties included
cleaning, stocking, moving inventory, unloading trucks, and
other physical activities. Id. ¶ 10. Plaintiff asserts that
she spent a total of 242 days away from the stores she
supposedly managed. Id. In contrast, Plaintiff's direct
supervisor testifies that she spent only 22 days away from her
primary stores during her time working for Defendant. Dkt. No.
32-3 ¶ 8. Plaintiff was ultimately terminated and she now
brings this lawsuit. Plaintiff alleges that Defendant's refusal
to pay her overtime wages violates the Fair Labor Standards Act
of 1938 ("FLSA"), 29 U.S.C. § 201
1, 3, 7.
Specifically, Plaintiff contends that she is owed "liquidated
damages [in] an amount equal to the total amount of unpaid wages
and overtime," and that Defendant is responsible for covering
her attorney's fees, as authorized by section 216(b) of the
FLSA. Dkt. No. 1 If 8-10. Second, Plaintiff pleads a breach of
contract claim alleging that Defendant failed "to pay [her] for
all of her hours worked." Id. ¶ 11.
The Court previously granted in part and denied in part
Defendant's Motion to
Dismiss, dismissing Plaintiff's
miscellaneous state law claims but allowing Plaintiff's FLSA and
state law breach of contract claims to move forward. Dkt No. 8.
The Court now turns to Defendant's Motion for Summary Judgment
on Plaintiff's FLSA and Breach of Contract claims.
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
4. at 325.
If the moving party discharges this burden, the burden
shifts to the nonmovant to go beyond the pleadings and present
affirmative evidence to show that a genuine issue of fact does
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
The nonmovant may satisfy this burden in two ways:
First, the nonmovant "may show that the record in fact contains
supporting evidence, sufficient to withstand a directed verdict
motion, which was 'overlooked or ignored' by the moving party,
who has thus failed to meet the initial burden of showing an
absence of evidence." Fitzpatrick v. City of Atlanta, 2 F. 3d
1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at
332 (Brennan, J., dissenting)). Second, the nonmovant "may come
forward with additional evidence sufficient to withstand a
directed verdict motion at trial based on the alleged
evidentiary deficiency." Id. at 1117.
Where the nonmovant instead attempts to carry this burden
with nothing more "than a repetition of his conclusional
allegations, summary judgment for the defendants
proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34
(11th Cir. 1981).
I. Plaintiff's FLSA Claims
Defendant moves for summary judgment on Plaintiff's FLSA
claims. Defendant argues that Plaintiff is properly classified
under multiple exemptions pursuant to the FLSA, and therefore,
Defendants. were not required to pay Plaintiff overtime. Dkt.
No. 28. p. 3.
The FLSA establishes minimum labor standards to eliminate
"labor conditions detrimental to the maintenance of the minimum
standard of living necessary for health, efficiency, and general
well-being of workers." 29 U.S.C. § 202(a). The FLSA is
designed to "aid the unprotected, unorganized, and lowest paid
of the nation's working population; that is, those employees who
lacked sufficient bargaining power to secure for themselves a
minimum subsistence wage." Brooklyn Say. Bank v. O'Neil, 324
U.S. 697, 707 n.18 (1945). The FLSA requires employers to pay
employees "engaged in commerce or in the production of commerce"
overtime when an employee works more than 40 hours in a week.
29 U.S.C. § 207(a) (1). But an exemption from the overtime pay
requirement exists for employees in a "bona fide executive,
administrative, or professional capacity," as defined by
regulations of the Secretary of Labor. 29 U.S.C. § 213(a) (1).
Defendant argues that Plaintiff falls under the executive and
administrative exemptions to the FLSA. Dkt. No. 28
Therefore, the Court considers whether Plaintiff is subject to
In order to meet the executive exemption an employee must:
(1) receive compensation on a salary basis at a rate of at least
$455 per week; (2) manage the enterprise in which the employee
is employed as her primary duty; (3) customarily and regularly
direct the work of two or more other full-time employees; and
(4) have the authority to hire or fire other employees or have
particular weight given to their suggestions and recommendations
as to the change of status of other employees. 29 C.F.R. §
541.100. Here, the dispute between the parties is whether or
not Plaintiff's primary duty was management.
The parties disagree as to whether Plaintiff's primary duty
was management during her time as a manager working for
Defendant. The Eleventh Circuit has rejected the "categorical
approach" in determining whether an employee's primary duty was
management. Morgan v. Family Dollar Stores, Inc. 551 F.3d 1233,
1269, 1272 (11th Cir. 2008) (citing Rodriguez v. Farm Stores
Grocery, Inc., 518 F.3d 1259, 1264 (2008) (declining to hold
that store managers are exempt employees simply because the
employee had some managerial responsibility over a business)).
Instead, "[d]eterminátion 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."
Rodriguez, 518 F.3d at 1264; Morgan, 551 F.3d at 1269, 1272; 29
C.F.R. § 541.700(a). Indeed, the exemption should "be applied
only to those [employees] clearly and unmistakably within the
terms and spirit of the exemption." Morgan, 551 F.3d at 1269
(quoting Brock v. Norman's Country Market, 835 F.2d 823, 826
(11th dr. 1988) (internal quotation omitted)). Under the DOL
regulations implementing the FLSA, "management" generally
includes activities such as:
[I]nterviewing, 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.
A "primary duty" is defined as "the principal, main, major
or most important duty that the employee performs." 29 C.F.R. §
541.700(a). Factors to consider when determining the primary
duty of an employee 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 non-exempt work performed by the
employee.' Id. "This analysis specifically requires an
The Court notes that the record is unclear regarding what the hourly rate
paid to employees performing non-exempt tasks similar to Plaintiff's was.
examination beyond an employee's title to the specific duties
performed by the employee." Barreto v. Davie Marketplace, LLC,
331 F. App'x. 672, 674 (11th Cir. 2009)
The Eleventh Circuit analyzed the "primary duty" issue in
three recent cases and found that the question of whether the
employee is exempt is one for the jury where there is evidence
establishing the following: (1) a store manager spends 80 to 90
percent of her time performing nonexempt, manual labor and only
10 to 20 percent of her time performing managerial work; (2) she
is expected to perform a significant amount of manual labor
unrelated to management; (3) she rarely exercises discretion due
to company guidelines; and (4) she has little freedom due to
oversight from area and district managers. See Morgan, 551 F.3d
at 1233; Rodriguez, 518 F.3d at 1259; Barreto, 331 F. App'x. at
The facts in this case are similar to that in the abovecited cases. First, Plaintiff's sworn testimony indicates that
she spent 95 percent of her time performing non-managerial tasks
and 5 percent performing managerial tasks. Dkt. No. 30-2 ¶ 3.
Defendant has not disputed this in its motion.
Therefore, the Court has no clear basis of comparison to Plaintiff's salary.
Nonetheless, sufficient evidence in the record exists for the court to rule
on this motion using the other factors. Furthermore, at the least, there is
a question of fact regarding what Plaintiff's salary was in comparison to
non-exempt workers performing similar work.
Second, Plaintiff testifies that she performed duties very
similar to those of other, non-exempt employees. Id.
testifies that this was essentially mandatory because she did
not have the necessary non-exempt employees to accomplish the
needs of the store. Id. Further, Plaintiff was previously an
hourly employee for Defendant and asserts that there "was not a
lot more responsibilities" after her promotion to manager. Id.
Third, there is evidence that Plaintiff had little
discretion in the managerial tasks she performed due to company
guidelines. For example, tasks such as training for new hires
merchandise display (Id.
store operation (Id.
for the holiday season (id.
and setting up the stores
were all subject to company
Fourth, many decisions were subject to approval and
deliberation by a supervising District Manager and/or Regional
No. 63:19-25, 64:1-25, 39:7-25.
Plaintiff needed an area or district manager's approval for
disciplining employees (id.
terminating employees (id. 57:7-25), promoting current employees
(Id. at 51:15-19), and dealing with store theft (id.
Furthermore, evidence in the record exists that Plaintiff's
district manager advised her regarding dealing with workplace
harassment (Id. 47:1-6), what to look for in new hires (Id.
48:15-17), setting up new stores (id. 78:18-25), store
performance (id. 79:18-20), store decor (Id. 93:10-14), store
events (id. 106:9-15), and merchandise placement (id. 109:2225). In addition, facts in the record exist establishing that
some of Plaintiff's managerial tasks were supplemented by hourly
employees who were "control[led]" by Plaintiff's district
manager. Id. 50:1-25.
Defendant responds to Plaintiff's testimony by pointing to
the multitude of managerial tasks that Plaintiff had the power
to perform. Dkt. No. 32 P. 3-5. Furthermore, Defendant argues
that the tasks most important to the employer govern whether
Plaintiff is exempt. Id. Finally, Defendant argues that even
if a substantial amount of time was spent on non-managerial
tasks, Plaintiff was still at all times "supervising" non-exempt
employees. Such arguments do not justify summary judgment for
First, the analysis should focus not on the types of tasks
performed, but those she actually
perform. See Morgan, 551 F.3d at 1233; Rodriguez, 518 F.3d at
1259; Barreto, 331 F. App'x. at 672. The record is undisputed
that Plaintiff was at least nominally given many managerial
duties. However, a material fact exists regarding just how
often and for how long Plaintiff actually performed these tasks.
Second, the Court declines to hold that employers may
forego paying their employees overtime simply because the
employer finds an employee's managerial tasks more important.
The Eleventh Circuit has previously rejected the argument that
evidence of rarely performed managerial tasks is dispositive
regarding an employee's primary duty. Barreto, 331 F. App'x at
675-76. Instead, these responsibilities are considered
"nominally given" and are not dispositive in determining a
primary duty. Id.
Finally, whether Plaintiff conducted managerial duties
concurrently with non-managerial duties is
a question for the
jury. See Morgan, 551 F.3d at 1272-73; Chin Hui Hood v. JeJe
Enters., Inc., No. 1:14-CV-2405, 2016 WL 4769737, at *12 (N.D.
Ga. Sept. 12, 2016). The record reveals a fact question
regarding whether Plaintiff was even able to manage her stores
at all, as there is a question whether she was present for 242
days during the three years she worked for Defendant. Id. ¶ 10.
The Court recognizes that Defendant disputes the accuracy of
Plaintiff's testimony on this point and has presented opposing
evidence to counter it. However, this is a question of fact
which cannot be resolved on a motion for summary judgment.
Furthermore, regardless of how much time Plaintiff spent
away from her primary stores, a question of fact still exists
regarding whether Plaintiff was a manager during the times when
she performed non-managerial tasks.
Plaintiff describes a
multitude of non-exempt tasks performed for 95 percent of the
time she worked for Defendant. There is a genuine issue of fact
regarding whether these tasks could be performed concurrently,
considering the extent and variety of the non-exempt tasks
The record does not reflect that Plaintiff is "plainly and
unmistakably" exempt from the FLSA under the executive
exemption. Morgan, 551 F.3d at 1269. In addition, a question
of fact exists under the administrative exemption. 29 C.F.R. §
Thus, summary judgment must be denied as to the
II. Plaintiff's Breach of Contract Claim
Plaintiff also alleges a state law breach of contract for
overtime, unused vacation time, and sick leave stemming from her
termination by Defendant. Dkt. No. 1. Recovery for a breach of
contract under Georgia law requires showing the elements of (1)
the breach and (2) damages caused due to the breach. Kimball v.
Better Bus. Bureau of W. Fla., 613 F. App'x 821, 824 (11th Cir.
2015) (relying on Georgia law). Of course, a contract must
exist to have a breach thereof. Plaintiff's breach of contract
claim in this case must fail. Plaintiff concedes that she has
The administrative exemption also requires the Plaintiff's primary duty to
be management for the exemption to apply.
no written contract with Defendant.
Dkt. No. 26-1:5-10.
Therefore, Plaintiff must rely on a theory of implied contract.
In order for an implied contract to exist the evidence must
plainly show that the surrounding circumstances indicate an
intention to contract between the parties. See Hobby v. Smith,
550 S.E.2d 718,, 719 (Ga. Ct. App. 2001). However, the
circumstances do not indicate that a contract exists here.
Plaintiff has provided no evidence that any such implied
agreement between the parties existed or that Defendant
typically enters into such an agreement with other employees.
Essentially, the Plaintiff petitions the Court to rule on what
her rights would be under a hypothetical contract in
circumstances that would ordinarily not be governed by any
agreement. This cannot be done. Thus, the Court grants summary
judgment regarding Plaintiff's breach of contract claim.
For the reasons stated above, it is hereby ordered that
Defendant Beau's Outlet Stores, Inc.'s Motion for Summary
Judgment (Dkt. No. 26) is GRANTED IN PART AND DENIED IN PART.
SO ORDERED, this 13th day of January, 2017.
L A GODBEY WdOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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