Mullins v. Target Corporation

Filing 82

MEMORANDUM Opinion and Order Signed by the Honorable John F. Grady on 4/13/2011. Mailed notice(cdh, )

09-7573.111-JCD

April 13, 2011

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHRISTINE L. MULLINS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
TARGET CORPORATION,
Defendant.

No. 09 C 7573

MEMORANDUM OPINION
Before the court are three motions: defendant’s motion for
summary

judgment;

plaintiff’s

motion

for

entry

of

an

order

conditionally certifying a FLSA collective action and for notice to
issue; and defendant’s motion to strike declarations submitted in
support of plaintiff’s motion.

For the reasons explained below,

defendant’s motion for summary judgment is granted; plaintiff’s
motion for conditional certification is denied; and defendant’s
motion to strike is denied.
BACKGROUND
Plaintiff Christine L. Mullins was employed by defendant
Target Corporation (“Target”) from July 28, 2002 to November 3,
2009.

She sues Target for unpaid overtime wages under the Fair

Labor Standards Act (the “FLSA”), 29 U.S.C. § 201 et seq., and the
Illinois Minimum Wage Law, 820 ILCS 105/1 et seq.

Mullins brings

the action individually and on behalf of all others who were

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employed

by

Target

as

“Investigators.”

Mullins

moves

for

conditional approval of a collective action under section 16(b) of
the FLSA, 29 U.S.C. § 216(b), which allows employees to act
together

against

compensation.

an

employer

to

recover

unpaid

overtime

“The conditional approval process is a mechanism

used by district courts to establish whether potential plaintiffs
in the FLSA collective action should be sent a notice of their
eligibility to participate and given the opportunity to opt in to
the collective action.”

Ervin v. OS Rest. Servs., Inc., 632 F.3d

971, 974 (7th Cir. 2011).
Target moves for summary judgment on both of plaintiff’s
claims.

At

issue

is

whether

overtime

under

the
the

FLSA

exempts

eligibility

for

provision.1

Mullins

“administrative

from

employee”

We will discuss Target’s motion first.
DISCUSSION

A.

Summary Judgment Standards
“The court shall grant summary judgment 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.”
P. 56(a).

Fed. R. Civ.

In considering such a motion, the court construes the

evidence and all inferences that reasonably can be drawn therefrom

1/

“The overtime provision of the Illinois Minimum Wage Law, 820 ILCS
105/4a(1), is parallel to that of the FLSA, and Illinois courts apply the same
principles . . . to the state provision.” Urnikis-Negro v. American Family Prop.
Servs., 616 F.3d 665, 672 n.3 (7th Cir. 2010).

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in the light most favorable to the nonmoving party.

See Pitasi v.

Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999).

“The court

need consider only the cited materials, but it may consider other
materials in the record.”

Fed. R. Civ. P. 56(c)(3).

“Summary

judgment should be denied if the dispute is ‘genuine’:

‘if the

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

Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d

1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court will enter summary

judgment against a party who does not “come forward with evidence
that would reasonably permit the finder of fact to find in [its]
favor on a material question.”

McGrath v. Gillis, 44 F.3d 567, 569

(7th Cir. 1995).
“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by citing to particular parts
of materials in the record or by showing that the materials cited
do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support
the fact.

Fed. R. Civ. P. 56(c)(1).

“If a party fails to properly

support an assertion of fact or fails to properly address another
party’s assertion of fact as required,” we may give an opportunity
to

properly

support

or

address

the

fact,

consider

the

fact

undisputed for purposes of the motion, grant summary judgment if
the motion

and

supporting

materials

show

that

the

movant

is

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entitled to it, or issue any other appropriate order.

Fed. R. Civ.

P. 56(e).
B.

Relevant Facts
Before discussing the facts of this case, we will address

Target’s contention that many of plaintiff’s responses to Target’s
Local Rule 56.1 Statement of Facts do not comply with the local
rule because they (1) are argumentative; (2) do not fairly dispute
the substance of the facts asserted; and (3) include additional
information that is unrelated to the fact asserted.
“The purpose of the 56.1 statement is to identify for the
Court the evidence supporting a party’s factual assertions in an
organized manner: it is not intended as a forum for factual or
legal argument.”

Malec v. Sanford, 191 F.R.D. 581, 585 (N.D. Ill.

2000).

56.1

A

Rule

response

is

not

the

place

for

“purely

argumentative denials,” id. at 584, or “evasive denials that do not
fairly meet the substance of the material facts asserted,” Bordelon
v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir.
2000). “[D]istrict courts are entitled to expect strict compliance
with Local Rule 56.1 . . . .”

Raymond v. Ameritech Corp., 442 F.3d

600, 604 (7th Cir. 2006).
We

will

not

discuss

each

of

plaintiff’s

responses

individually, but we agree with Target that the responses to
Statements 8, 11-24, 26, 27, 34, 35, and 44-46 are evasive,
argumentative, and needlessly prolix.

In some instances, as

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discussed below, plaintiff denies the substance of statements that
she admitted in her deposition.

To the extent warranted, we have

disregarded the non-compliant portions of plaintiff’s responses to
defendant’s Rule 56.1 statements.
The following facts are undisputed (or not properly disputed).
Target is a national retailer of consumer goods.

To protect

against the theft of assets and to minimize lost revenue from
theft, Target has an Assets Protection division.

The mission of

the Assets Protection team is to “enhance profitability, the
[customer] experience and [Target’s] reputation by minimizing loss
and

business

disruptions

and

providing

safe

and

secure

environments.” (Pl.’s Resp. to Def.’s Rule 56.1 Statement of Facts
(“SOF”) ¶ 6; Dep. of Christine L. Mullins, Ex. 10, Investigator Job
Description.)
On July 28, 2002, Mullins began working for Target as an
Assets Protection Team Leader, a position that was treated as
exempt from overtime pay. On October 3, 2004, Mullins was promoted
to Investigator, the position at issue in this litigation.
Investigators

receive

extensive

training,

including

Target
“Assets

Protection Basic Academy Training,” which includes a learning plan
consisting of lessons designed to address Investigators’ roles. As
part of the plan, Investigators are instructed on (among other
things)

apprehending

conducting surveillance.

suspects,

conducting

interviews,

and

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As

an

Investigator,

Mullins

identified

and

conducted

investigations of fraud and theft related to Target’s business at
several

stores

in

southern

Chicagoland

(Mullins Dep. at 86-87, 89-91, 273.)

and

northern

Indiana.

Her job entailed several

duties, as Mullins described in her deposition:
I was not responsible for just one particular store. I
was responsible for an area. So I was responsible for
gathering all of the information [relating to theft and
fraud], all of the data, that was put in[to the Target
database] by other stores.
So if all the stores were putting in information, I
would go through and kind of analyze all of the data that
was in there and kind of pull things out that I believe
could be a case or that [sic] tips that came in on a
particular shoplifter or a location or information that
a shoplifter gave, then I would pull that information off
of the database and kind of analyze it and see if there
was a case to be made.
. . .
Q. [W]hat training did you . . . need [to move into the
Investigator position]?
A. Well, on how to run an investigation. . . .
Q. What’s entailed with running an investigation?
A. Analyzing data, pulling information, reviewing it.
Q. Is that it?
A.
No.
After you have the data and you’ve maybe
developed a case, then it’s brought to your supervisor
for him to approve.
And then if he approves it as a
case, then you go back and you start running background
checks, you run any information on it. If it’s a fencing
location, you run a background check on the owner, you do
surveillance, all of which needs to be approved before
you do it. So if, if I pull enough information saying
that we have five reports on this one fencing location,
then I’d bring it to my supervisor and say, “You know,
there’s five reports on this location. I’m recommending
that I go out and do a drive-by of the location and check
on the address and verify it.” And then he then [sic]
approves it.
So from that point then you come back and you move
to the next case--step in your case, whether it’s pulling
more background checks, reviewing any video from stores,
see if there’s anybody else involved. And then once you

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have that, then get it approved by your supervisor and
then conduct, like, a stationary surveillance on the
store. If your boss--if your supervisor approves that,
then you go out and do surveillance on it.
Then you
bring back your findings.
If they feel that it’s
significant, yes, or they--you did see something that
shows that it created a loss for your company, the
Target, then he would approve you to go out and do more
surveillance or then at that point then bring it to law
enforcement.
And then if you bring it to law enforcement and they
approve it, then you go out with them--once again, it’s
approved by your supervisor to go out with law
enforcement--to either do controlled sales or just make-or do a buy bust and then make the arrest.
(Mullins Dep. at 86-87, 89-91.)
Mullins agreed that it was her job in the first instance to
“analyze all of the information” she had before her, “evaluate
potential strategies for approaching the investigation,” and “come
up

with

a

recommendation”

that

she

then

supervisor, the Investigations Team Leader.

presented

to

her

(Mullins Dep. at 69.)

She prepared her recommended approach in a case plan, which was
documented in Target’s computerized case management system, and
then used the system to document her investigative progress.

When

investigating, in addition to analyzing data from stores and
conducting surveillance, Mullins also relied on tactics such as
using

informants,

controlled sales.

performing

“trash

pulls,”

and

setting

up

She also interviewed informants and suspects.

Mullins oversaw two to four cases at one time; some were simple and
others were more complex.

In certain investigations that Mullins

conducted (working with other employees of the asset protection

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division and with law enforcement), Target recovered thousands of
dollars (or more) of lost revenue.

(Mullins Dep. at 153.)

For

example, Mullins was the lead investigator in the so-called “1812”
case, in which approximately $1.2 million in merchandise was
recovered and a criminal warehouse operation that had operated for
more than five years was shut down.
C.

(Mullins Dep. at 201-02.)

Administrative Employee Exemption
The FLSA exempts from overtime pay coverage those employed in

a “bona fide executive, administrative, or professional capacity.”
29 U.S.C. § 213(a)(1).

The burden is on the employer to prove by

a preponderance of the evidence that an employee is exempt under
the FLSA.

Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626,

631 (7th Cir. 2010).
The relevant regulation sets forth a three-part test for
determining whether an employee falls under the “administrative
employee” exemption.

Target is entitled to summary judgment only

if it establishes that there is no genuine issue that plaintiff
meets each element of the test.

The first element is that the

employee must be compensated on a salary or fee basis at a rate of
not less than $455 per week.

29 C.F.R. § 541.200(a)(1).

This

requirement is not in dispute; Mullins’s earnings exceeded the
threshold amount.
in dispute.

The second and third requirements, however, are

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The second requirement is that the employee’s primary duty
must be 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.”

29 C.F.R. § 541.200(a)(2).

To meet this test, “an employee must perform work directly related
to assisting with the running or servicing of the business, as
distinguished,

for

example,

from

working

on

a

manufacturing

production line or selling a product in a retail or service
establishment.”

29 C.F.R. § 541.201(a).

In Target’s view, Mullins’s primary duty was “to analyze data
and store trends to identify and investigate meaningful threats to
Target’s retail business, and implement a strategy to effectively
reduce shrinkage, theft, and organized retail crime to protect
Target’s assets and provide a safe retail environment.”
Mem. in Supp. of Mot. at 6.)

(Def.’s

Target contends that this was non-

manual work directly related to assisting with the servicing of its
retail business, considering that plaintiff was not producing or
selling its goods.
Plaintiff makes several arguments about what her primary
duties did not include, but fails to expressly define her primary
duty or duties.

She does assert that her job “at its core” was “to

report unvarnished facts as they are gathered throughout the course
of the investigation to law enforcement, and to Investigation Team
Leaders

(“ITLs”)

who

alone,

or

in

conjunction

with

[their

- 10 -

supervisors] make all significant decisions on the files.”

(Pl.’s

Mem. in Opp’n to Mot. at 2.)

Similarly, plaintiff contends that

Investigators

about

the

theft

of

approval

of

their

ITLs,

merchandise,

“gather
and

facts

with

the

Defendant’s
give

the

unvarnished facts to law enforcement, all in connection with
Defendant’s goal that the thieves will be prosecuted.” (Pl.’s Mem.
at 12.)

In another section of plaintiff’s brief, she lists the

“primary duties of an investigation” as “initial case review and
plan,” reporting, interviews, surveillance, and referral to law
enforcement.

(Pl.’s Mem. at 5.)

Plaintiff also argues in a

conclusory fashion that Investigators “do not service the retailerDefendant in the sale of merchandise.”

(Pl.’s Mem. at 12.)

Given the description of her job duties that Mullins provided
at

her

deposition,

quoted

above,

we

believe

that

Target’s

definition of her primary duties is accurate, albeit wordy.2

It is

clear from Mullins’s admissions that she did not merely “gather
facts” and present them to law enforcement.

She analyzed data

submitted by stores, identified possible investigations of theft,

2/

We do not, however, agree with Target that Juback v. Radioshack Corp.,
No. 8:08-cv-768-T-24TBM, 2009 WL 1259990 (M.D. Fla. May 6, 2009) and U.S. Dep’t
of Labor Wage & Hour Div. Op. Ltr., No. FLSA 2006-30 (Sept. 8, 2006) are
“squarely on point,” Def.’s Mem. at 5. The employees’ primary duties in Juback
and in the DOL Letter are distinguishable. Although Juback investigated theft
and fraud, he was a Loss Prevention Manager in charge of 263 Radio Shack stores
and managed seven other managers. Juback had a higher-level position and broader
responsibilities than Mullins. The employee at issue in the DOL Letter also had
different responsibilities.
He was a Loss Prevention Manager (“LPM”) whose
primary function was “the effective implementation of a loss prevention and
shortage control program for the store where the LPM [was] employed.” (Def.’s
Mem., Ex. A, Op. Ltr. at 1.) The employee’s duties related more to management,
accounting, and auditing than to investigation.

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and conducted investigations.3

There is no dispute that this work

was non-manual.

question is whether plaintiff’s

The

next

primary duties were directly related to assisting with the general
business operations of Target or the running or servicing of its
business. The relevant Department of Labor regulation explains that
this type of work
includes, but is not limited to, work in functional areas
such as tax; finance; accounting; budgeting; auditing;
insurance; quality control; purchasing; procurement;
advertising; marketing; research; safety and health;
personnel management; human resources; employee benefits;
labor relations; public relations, government relations;
computer network, internet and database administration;
legal and regulatory compliance; and similar activities.
29 C.F.R. § 541.201(b).

Mullins’s work did involve, in part,

safety and governmental relations.

Although asset protection and

recovery is not included, the list is non-exclusive, and we think
that this type of work is in a “functional area” similar to those
listed.

It is undisputed that Mullins did not participate in

rendering the service that Target offers to the public, which is
the sale of retail goods.

Instead, she assisted in “servicing”

3/
In addition to her investigative work, plaintiff (along with
co-workers) developed the content for and taught a class on organized retail
crime to law enforcement officers at the Northern Indiana Law Enforcement
Academy.
(Mullins Dep. at 199, 219.)
Mullins also helped to train other
Investigators, and during a portion of her employment as an Investigator (from
roughly 2004 to 2008), Mullins supervised three Investigations Specialists.
Mullins directed their activities, evaluated their performance, and made
recommendations concerning hiring, discipline, and termination. (Mullins Dep.
at 137-139, 189, 205-06.) We do not consider this work in our analysis, however,
because neither party contends for purposes of this motion that it should be
considered part of plaintiff’s primary job duties.

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Target’s retail operations by investigating and preventing theft
and fraud.
Plaintiff fails to develop her conclusory argument that her
duties were not related to the “servicing” of Target’s business.
She cites, without discussion, a provision of the regulations that
excludes certain workers from the administrative exemption:
The section 13(a)(1) exemptions and the regulations in
this part [] do not apply to police officers,
detectives, deputy sheriffs, state troopers, highway
patrol officers, investigators, inspectors, correctional
officers, parole or probation officers, park rangers,
fire
fighters,
paramedics,
emergency
medical
technicians, ambulance personnel, rescue workers,
hazardous materials workers and similar employees,
regardless of rank or pay level, who perform work such
as preventing, controlling or extinguishing fires of any
type; rescuing fire, crime or accident victims;
preventing
or
detecting
crimes;
conducting
investigations or inspections for violations of law;
performing surveillance; pursuing, restraining and
apprehending
suspects;
detaining
or
supervising
suspected and convicted criminals, including those on
probation
or
parole;
interviewing
witnesses;
interrogating and fingerprinting suspects; preparing
investigative reports; or other similar work.
29 C.F.R. § 541.3(b)(1).

This regulation does not apply to

plaintiff, who was a private-sector investigator.

We agree with

the court in Foster v. Nationwide Mutual Insurance Co., 695 F.
Supp. 2d 748, 757-58 (S.D. Ohio 2010), that “[w]hen this reference
to ‘investigators’ is read in the context of the entire regulation,
it is clear that the regulation pertains to law enforcement and
safety personnel--not those who perform investigative duties in the
private sector.”

The Foster court explained that the exemptions

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are inapplicable to employees in law-enforcement roles because
their agencies are in the business of conducting investigations, so
their work falls “squarely on the production side of the line.”
Id. at 758 (citing Reich v. New York, 3 F.3d 581, 587 (2d Cir.
1993)).4

Because plaintiff’s primary duties were directly related

to Target’s general business operations, the second requirement of
the administrative employee exemption is satisfied.
The third requirement of the exemption is that the employee’s
primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.
541.200(a)(3).

Generally,

“the

exercise

of

29 C.F.R. §

discretion

and

independent judgment involves the comparison and the evaluation of
possible courses of conduct, and acting or making a decision after
the various possibilities have been considered.”
541.202(a).

29 C.F.R. §

Multiple factors are relevant to this consideration,

including
whether the employee has authority to formulate, affect,
interpret, or implement management policies or operating
practices; whether the employee carries out major
assignments in conducting the operations of the
business; whether the employee performs work that
affects business operations to a substantial degree,
4/

For this reason, a number of the cases and DOL opinion letters cited
by plaintiff or attached to her brief are inapposite. In U.S. Dep’t of Labor
Wage & Hour Div. Op. Ltr., 2005 WL 3308592 (Aug. 19, 2005); U.S. Dep’t of Labor
Wage & Hour Div. Op. Ltr., 1998 WL 852783 (Apr. 17, 1998); U.S. Dep't of Labor
Wage & Hour Div. Op. Ltr., 1998 WL 852752 (Jan. 23, 1998); U.S. Dep’t of Labor
Wage & Hour Div. Op. Ltr., 1997 WL 971811 (Sept. 12, 1997); Ahle v. Veracity
Research Co., 738 F. Supp. 2d 896 (D. Minn. 2010); and Gusdonovich v. Business
Information Co., 705 F.Supp. 262 (W.D. Pa. 1985), the employers were engaged in
the business of conducting investigations, so the employee-investigators were
performing the day-to-day “production” functions of the business.

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even if the employee’s assignments are related to
operation of a particular segment of the business;
whether the employee has authority to commit the
employer in matters that have significant financial
impact; whether the employee has authority to waive or
deviate from established policies and procedures without
prior approval; whether the employee has authority to
negotiate and bind the company on significant matters;
whether the employee provides consultation or expert
advice to management; whether the employee is involved
in planning long- or short-term business objectives;
whether the employee investigates and resolves matters
of significance on behalf of management; and whether the
employee represents the company in handling complaints,
arbitrating disputes or resolving grievances.
29 C.F.R. § 541.202(b) (emphasis added).
Target maintains that Mullins exercised independent judgment
and discretion in identifying and selecting strategies and tactics
for investigations. Plaintiff submits that she worked only “within
the strict confines of Defendant’s training programs, the Assets
Protection and Investigations Directives and their [sic] Achieving
Excellence reviews” and that her work was reviewed by supervisors
every step of the way.

(Pl.’s Mem. at 13.)

Plaintiff notes that

Investigators must report on investigations on a regular basis in
Target’s electronic reporting system and that the Assets Protection
Directives preclude Investigators from including their subjective
opinions and conclusions in their reports.

She also contends that

Investigators use “scripted approaches” in interviewing suspects
and informants.

According to plaintiff, Target’s Directives and

the “extensive training” Investigators receive in “standard, finite

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tactics”
exercise.
The

leave

no

“residual

discretion”

for

Investigators

to

(Pl.’s Mem. at 22.)
extent

to

which

plaintiff

now

downplays her

use

of

judgment and discretion is at odds with her deposition testimony.
In her deposition, plaintiff acknowledged that when she initially
reviewed and analyzed data from the stores in her area, she made a
judgment about whether particular data or a pattern in the data
warranted further investigation.

(Mullins Dep. at 92.)

She

conceded that Target’s guidelines permit Investigators to make
choices

about

using

particular

courses

of

conduct

investigative tactics, such as mobile surveillance.
at 145, 159.)

and/or

(Mullins Dep.

Notwithstanding that there are only so many tactics

to choose from, Investigators use their judgment to decide which
ones to employ.
assigned

cases,

Plaintiff also testified that while she was often
she

sometimes

had

the

discretion

to

keep

a

particular case and work on it herself or to “pass it on to
somebody else.”

She made this decision based on the location of

the events in the case and/or the type of case; she typically
favored fencing cases over “eBay cases” and check-fraud cases.
(Mullins Dep. at 192-195.)
Mullins exercised independent judgment and discretion not only
in selecting cases and in planning out strategies and tactics for
investigations, but in carrying out those investigations.

She

admitted that during mobile surveillance, she used judgment in

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deciding

whether

a

particular

(Mullins Dep. at 106-07.)

vehicle

was

“worth

following.”

As for interviews, she testified that

there was a script of questions that she had memorized and used
when

conducting

interviews

of

suspects

or

witnesses,

but

acknowledged that she asked follow-up questions that were not
scripted and that she decided which follow-up questions to ask.
(Mullins Dep. at 207-08.)5

One interview that Mullins participated

in lasted for over seven hours.
Although
including

Target’s

their

(Mullins Dep. at 41.)

Directives

subjective

prohibit

assessments

Investigators
in

case

from

reports,

Investigators are not prohibited from otherwise sharing their views
and opinions.

Mullins testified that she presented her subjective

views to her supervisor, Mullins Dep. at 60, 92, 173-74, and that
during
express

weekly

group

opinions

Mullins Dep.

at

on

meetings,
whether

272-73.

Investigators

investigations

When

wrapping

up

were
should
an

expected
be

to

opened,

investigation,

plaintiff made an initial determination concerning whether a case
was ready to present to law enforcement and where (to which agency)
to take the case.

5/

(Mullins Dep. at 117-18.)

She also used her

Plaintiff’s brief refers to a “script provided by Defendant,” Pl.’s
Mem. at 7, and a “scripted approach,” Pl.’s Mem. at 18, but plaintiff has not
submitted any actual script.
Included in Target’s Instructor Guide for the
Internal Interviewing course for Investigators, Pl.’s Rule 56.1 SOF, Ex. K, are
sample interview questions for a role-playing exercise, but the document does not
demonstrate a rigid, scripted approach to interviews.
Rather, a general
interviewing structure and suggested questions are presented. Target does admit
that Investigators’ Internal Interviewing training “includes what questions to
ask” store employees who are suspected of theft, Def.’s Resp. to Pl.’s Rule 56.1
SOF ¶ 11.

- 17 -

judgment in deciding on whether to close investigations.

(Mullins

Dep. at 177.)
Plaintiff repeatedly emphasizes that in most instances, she
simply made recommendations to her supervisor, who occasionally did
not follow those recommendations, and that she lacked the authority
to make final decisions.

The regulations, however, provide that

the standard does not require that an employee have unlimited
authority:
The exercise of discretion and independent judgment
implies that the employee has authority to make an
independent choice, free from immediate direction or
supervision. However, employees can exercise discretion
and independent judgment even if their decisions or
recommendations are reviewed at a higher level. Thus, the
term “discretion and independent judgment” does not
require that the decisions made by an employee have a
finality that goes with unlimited authority and a
complete absence of review.
The decisions made as a
result of the exercise of discretion and independent
judgment may consist of recommendations for action rather
than the actual taking of action.
The fact that an
employee’s decision may be subject to review and that
upon occasion the decisions are revised or reversed after
review does not mean that the employee is not exercising
discretion and independent judgment.
29 C.F.R. § 541.202(c).

It is not disputed that plaintiff was

required to obtain her supervisor’s approval at a number of steps
in an investigation, but, as she testified, she also made choices
and

decisions

direction.

that

were

free

from

immediate

supervision

and

Plaintiff also complains that she was “micromanaged”

and that her choices were “scrutinized more” than those of other

- 18 -

Investigators, Mullins Dep. at 144, but admitted to several ways in
which she used independent judgment and discretion nonetheless.
Likewise,

plaintiff’s

extensive

training and use of the

directives that Investigators were expected to follow does not
imply

a

lack

of

discretion

or

judgment.

The

training

and

directives, as well as performance reviews, guided plaintiff’s
conduct, but the evidence is that she and other Investigators did
more than merely apply established procedures and techniques.

By

plaintiff’s own admissions, she was much more than a fact-gatherer;
rather, she compared and evaluated possible courses of conduct and
made decisions after considering the possibilities.

Her primary

duties thus involved the exercise of discretion and independent
judgment.
Furthermore, we conclude that there is no genuine issue that
Mullins exercised this discretion and judgment with regard to
matters of significance.

“The term ‘matters of significance’

refers to the level of importance or consequence of the work
performed.”

29 C.F.R. § 541.202(a).

assets-protection

employees

is

The mission of Target’s

to “enhance

profitability, the

[customer] experience and Target’s reputation.”
Def.’s Rule 56.1 SOF ¶ 6.)

(Pl.’s Resp. to

“Target has a substantial interest in

protecting its merchandise from theft, fraud, and other business
threats that can impair Target’s ability to sell merchandise to its
customers.”

(Def.’s Rule 56.1 SOF, Ex. A, Decl. of Mark Krause ¶

- 19 -

4.)

The investigations that Mullins conducted and sometimes led

had

the

potential

to,

and

in

significant assets for Target.

some

instances

did,

recover

In her interrogatory answers,

Mullins disclaims responsibility for the recovery of thousands of
dollars of infant formula in the “1812” case, yet described closing
the case and recovering the assets as a “top accomplishment” at her
deposition when discussing one of her performance reviews:
Q.

Is there anything in the narrative that your
supervisor wrote that you thought was unfair?
Yes.
What?

A.
Q.
. . .
A. [M]y overall rating--he gives me a 75, but [if] you
look at the top accomplishment, closing out 1812 and
recovering $1.2 million in merchandise probably warrants
more than a 75, because if you look at the year before,
I got an 82, and I hadn’t even closed that case yet.
Q. Well, but, haven’t you told us today that well, you
closed the 1812 case, the only way you closed it was
because your boss told you everything you needed to do?
A. Well, he made--yes. He did-Q. So why should you get credit for it?
A. Because I was the Lead Investigator on the case.
Q. Right, but haven’t you spent much of today tell[ing]
us that you didn’t really lead the investigation, your
boss just told you what to do, and you just executed it?
A.
No.
I le[]d the investigation.
I made my
recommendations. He gave his recommendations.
(Mullins

Dep.

at

210,

212-13

(discussing

Ex.

8).)

The

uncontradicted evidence is that the plaintiff exercised discretion
and independent judgment with respect to matters of significance.
Because plaintiff was compensated on a salary or fee basis at
a rate of not less than $455 per week, her primary duty was the
performance of non-manual work directly related to Target’s general

- 20 -

business operations, and her primary duty included the exercise of
discretion and independent judgment with respect to matters of
significance, we hold that there is no genuine issue that she was
an exempt administrative employee.
In light of our ruling granting summary judgment in favor of
Target, plaintiff’s motion for conditional certification of a FLSA
collective action and for notice to issue is denied as moot, and
defendant’s related motion to strike declarations is denied as
well.
CONCLUSION
For
summary

the

reasons

judgment

explained

[43]

is

above,

granted;

defendant’s
plaintiff’s

motion

for

motion

for

conditional certification of a FLSA collective action and for
notice to issue [20] is denied; and defendant’s motion to strike
declarations submitted in support of plaintiff’s motion [41] is
denied.

DATE:

April 13, 2011

ENTER:

___________________________________________
John F. Grady, United States District Judge