Leonard v. Dolgencorp, Inc. et al
Filing
53
MEMORANDUM OPINION signed by Judge John G. Heyburn, II on 5/23/2011 re Defendant's motions for summary judgment. The Court will enter an order consistent with this Memorandum Opinion. cc: Counsel (AEP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 4:10-CV-57-H
PENNY LEONARD
PLAINTIFF
V.
DOLGENCORP INC., et al.
DEFENDANTS
MEMORANDUM OPINION
Plaintiff, Penny Leonard, alleges that Defendant, Dolgencorp, Inc. (the “Company” or
“Dollar General”) violated the Fair Labor Standards Act (“FLSA”) by not paying her for
overtime hours. After completion of discovery, Dollar General has now moved for summary
judgment on the grounds that Leonard was exempt from FLSA’s overtime pay requirements
under its “execution exemption.” Plaintiff vigorously opposes the motion. To exempt Leonard,
Dollar General must show that Leonard’s primary duty is management.
Recently, in Thomas v. Speedway SuperAmerica, 506 F.3d 496 (6th Cir. 2007), the Sixth
Circuit set out a clear roadmap for determining this very question. The Court will follow this
roadmap, noting that the facts in Speedway SuperAmerica are quite similar to those here.
I.
The Court finds no significant dispute about the relevant facts, only about the legal
conclusions which a court might draw from them. The Court will describe the facts in a light
favorable to Leonard.
The Company is a retailer of basic low priced consumer goods. By 2010, the Company
operated approximately 8,800 stand-alone Dollar General stores in 30 states, with an average
annual sales volume over $1 million per store. Much of the merchandise is priced at less that
$10 per item.
The Company operates on a lean staffing model. Each store has a Store Manager, whom
Dollar General designates as the only exempt, salaried employee in the store. Ordinarily, each
store is staffed with an assistant store manager (“ASM”), a Lead Clerk, and multiple store clerks,
all of whom are hourly employees. Thus, the average store has about 7-8 employees, 4-5 of
whom were clerks. Each Store Manager reports to a District Manager. According to Dollar
General, District Managers oversee approximately 15 to 25 stores.
Dollar General operates its stores according to its own specific Standard Operating
Procedures (“SOP”). Store Managers are responsible for implementing the SOP at each store.
They receive directives through store mail. Generally, they are responsible for recruiting, hiring,
training, and evaluating regular employees; making recommendations regarding employee status
such as pay, promotions and termination; scheduling employees; assigning work; evaluating
operations statements; ordering merchandise; maintaining proper stock levels; stocking and
storing merchandise; maintaining inventory levels by managing markdowns and damages;
completing daily paperwork; monitoring the store’s financial integrity; providing customer
service leadership; and implementing and enforcing company policies.
As a general matter, Store Managers carry out many of their responsibilities strictly
according to the SOP and they receive varying degrees of oversight from District Managers.
Store Managers do not have authority to terminate employees, unilaterally hire employees, set
starting pay rates, give pay raises, promote or demote employees, change store hours, change
store locks or independently order store merchandise.
2
Dollar General hired Leonard as a clerk in October 1996. She left the company in 2000
and returned in 2001 as an ASM. She was promoted to Store Manager approximately six months
later at Store No. 7660 in Nortonville, Kentucky. In June, 2005, she transferred to Store No.
7794 in Madisonville, Kentucky and a year later transferred again to Store No. 10567 in Crofton,
Kentucky. Thus, Leonard remained employed continuously as a Store Manager from 2001 to
March 2007, except for the six-month period when she voluntarily stepped down to an ASM
role.
Leonard has confirmed that while serving as the Store Manager, she was in charge on a
day-to-day basis, stating that “I made sure everything was done. It was down to me. I’m the one
that had the responsibility[.]” She was responsible for enforcing the SOP in her store. She
ordinarily prepared the store’s schedule, but sometimes delegated this task to ASMs. As Store
Manager, Leonard spent approximately one hour each week performing personnel scheduling.
She was also responsible for verifying and submitting the store’s payroll.
When Leonard went on vacation, an ASM would run the store. Even when on vacation,
Leonard would still receive phone calls from store employees with questions when they “didn’t
know exactly how they were supposed to do” something and were looking for instructions.
Leonard said that, although her ASM was expected to run the store in her absence, when that
actually happened, the ASM was not as effective as her.
Leonard worked between 60 and 80 hours per week. She spent only about 30% of her
time performing functions that were strictly “managerial” in nature. Consequently, she spent a
majority of her time performing non-managerial and non-supervisory functions. A significant
amount of every employee’s time, including the Store Manager, involves unloading and stocking
3
merchandise. Consequently, the job of Store Manager requires frequent bending, stooping, and
lifting. Leonard’s other manual labor activities included cleaning bathrooms and mopping
floors. However, whenever Leonard worked at the store, she was always supervising at least one
other person, and sometimes many others.
Leonard assigned the work among her employees in her store each day, though the tight
store labor budget limited her discretion to apportion employee hours. Leonard’s labor budget
was typically 150-200 hours per week, not including her own time. She was responsible for
apportioning these hours among the employees. The payroll limitation has many effects:
necessary work is late; tasks are not performed well; customer service suffers; and Store
Managers work longer hours. Dollar General’s rules appear to have prohibited the Store
Manager from allowing employee overtime.
Leonard spent approximately five percent of a typical workweek hiring new employees.
Between 2001 and 2007, Leonard made about 50 hiring decisions. The hiring process involved
first reviewing applications, evaluating them and deciding on call backs, conducting interviews,
and finally making a hiring recommendation. Leonard’s District Managers did not interview
clerks, but would interview applicants for “key carrier” positions – ASM and lead clerk. She
communicated job offers and ordered background checks. She also completed legally-required
tax and immigration forms for employees hired at her store and inspected documents showing
that the employees were authorized to work in the United States. The only limitation on her
discretion to hire clerks was the background check and the District Manager’s final approval.
Leonard was responsible for proper cash handling procedures at her store and would
monitor daily reports showing cashier shortages, voids and refunds. Part of her responsibility
4
was to monitor theft risks by perpetually “watching the store, watching the employees [and],
watching the customers.” Leonard agrees that if the store was losing money, she would attempt
to determine how to stop it. Leonard also called the police to make an arrest when a customer
was seen putting merchandise in her purse.
Leonard was paid a weekly salary. She was also eligible for certain quarterly and annual
bonuses. These bonuses are tied to the financial and operational performance her own store and
individual performance. She was evaluated annually on store performance and leadership skills.
The evaluation criteria include: sales volume, inventory shrink, safety awareness, training and
development, controllable expenses, customer satisfaction and merchandising. These ratings
impacted both raises and bonuses.
In 2001 Leonard earned $470 per week; in 2002, $484.10; in 2003, $503.46; in 2004,
$540.38; in 2005, $584.48; in 2006, $607.86. On an annualized basis, this translated to a salary
that increased from $24,440 to $31,608.72. She earned bonuses each year under performance
criteria which included the store’s sales profitability, store ratings, shrink level, controllable
expenses, and management of inventory. Those bonuses were $4,839 and $518 in 2002; $10,000
in 2003; $5,000 and $250 in 2004; $1,125 and $1,627 in 2006; and $791 in 2007. Thus,
Leonard’s average annualized Store Manager compensation, including salary and bonuses,
reached over $32,000 in 2005 and 2006.
At various times, Carol Woodard, Debbie Browning and Nancy Payne served as ASMs
working for Leonard. They earned $7.25 per hour in 2001 and 2002; $7.54 in 2003; $7.84 in
2004; $7.50 in 2005 and 2006. Clerks, the largest component of the store’s roster, generally
earned an amount close to the minimum wage, usually between $5.35 and $5.50 per hour
5
between 2001 and 2006. ASMs generally worked no more than 40 hours per week and Leonard
agrees that she would not have wanted her ASM working more than 40 hours for expense control
reasons. Thus, on an annualized full-time basis, ASMs could have earned as much as $16,000
per year plus a limited bonus potential.
The evidence of District Manager supervision is not in great dispute, though the
implications of it are. From 2004 through 2007, Leonard’s District Manager was Kathy
Tinkham (“Tinkham”). Tinkham’s visits to Leonard’s store varied in frequency and duration.
At times, Tinkham visited the store once a week for about an “hour at the most” each time.
Some of Tinkham’s visits were not to supervise Leonard, but to conduct a district meeting or to
interview other Store Manager applicants or candidates. The most common purpose of
Tinkham’s visits was to discuss merchandising. Joy Garcia, the District Manager prior to
Tinkham, visited Leonard’s store about once a month for an hour or two.
Every District Manager sent Leonard a daily voice mail which focused on company
merchandising plans for the stores in the district. Leonard attended monthly meetings with the
District Manager and her district’s other Store Managers, which the ASMs and other hourly
employees did not attend. The District Managers did not observe Leonard’s work for any period
greater than 20 to 30 minutes per week and did not possess a key to her store.
Leonard exercised discretion in many areas of employee relations. Leonard performed
some employee training as time permitted. She would correct an employee working in an unsafe
manner and instructed store employees how to deal with hazardous conditions in the store. She
trained her employees to “look at everybody that comes through the door so they know who is in
the store with them” in order to prevent shoplifting and for their own safety awareness. She
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performed limited discipline. She would rarely write up employees. Typically, she gave
employees undocumented verbal counseling several times before documenting performance
issues in writing. For the most part, she maintained a “good group of employees” who did not
require frequent written discipline.
Leonard said that “manual labor” was the most important part of her job. She performed
the purportedly more labor-intensive “opening” shift, while the ASM handled the easier
“closing.” This scheduling decision – made exclusively by Leonard – was based on her opinion
that an ASM was not paid enough. Leonard was the leader of her store, had responsibility for
everything in it, and was the person “in charge” of the store on a day-to-day basis.
II.
The Company has moved for summary judgment and it is an interesting question
precisely how the Court should handle it. Before the Court are issues of fact and law. This
Court has thoroughly reviewed how many other courts have dealt with these distinctions.
Sometimes the parties in other cases have disputed how much time a Store Manager devotes to
management tasks. Here, the parties agree–it is about 30%. Balancing this with other factors
and determining whether an employee’s particular activities exclude her from overtime benefits
of the FLSA is a question of law. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714
(1986); see also Nielsen v. DeVry, Inc., 302 F.Supp.2d 747, 752 (W.D.Mich. 2003) (“the
question of how an employee spends his time is a question of fact, while the question of whether
his activities fall within an exemption is a question of law”).
Dollar General does not dispute Leonard’s stipulations concerning either her
responsibilities as Store Manager or her claim that she worked overtime without compensation.
7
Rather, it asserts the affirmative defense that Leonard was exempt from overtime pay under the
FLSA because she was an executive employee under the same regulations. Consequently, the
issue for this Court to decide is whether Leonard is properly classified as an executive-employee
under the FLSA. The overtime exemption is an affirmative defense on which the employer has
the burden of proof. Speedway SuperAmerica, 506 F.3d at 501. That burden requires Dollar
General to prove its defense by a preponderance of the evidence. Id. at 502.1
Summary judgment is proper if “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ. P. 56(c). In reviewing a motion for summary judgment, we view the evidence, all
facts and any inferences in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “To withstand summary judgment,
the non-movant must show sufficient evidence to create a genuine issue of material fact.”
Prebilich-Holland v. Gaylord Entm’t Co., 297 F.3d 438, 442 (6th Cir. 2002).
III.
The Secretary of Labor has adopted regulations defining a bona fide executive
employees. See 29 U.S.C. § 213(a)(1). Those regulations say that an employee qualifies as a
bona fide executive if: (1) she is “[c]ompensated on a salary basis at a rate of not less than $455
per week”; (2) her “primary duty is management of the enterprise in which [she] is employed or
of a customarily recognized department or subdivision thereof”; (3) she “customarily and
1
Of course, were Defendant to fail in its burden to prove the exemption as a matter of law, a jury would
determine the question of the number of overtime hours for which Leonard was entitled to compensation.
8
regularly directs the work of two or more other employees”; and (4) she “has the authority to
hire or fire other employees,” or her “suggestions and recommendations as to the hiring, firing,
advancement, promotion [,] or any other change of status of other employees are given particular
weight.” 29 C.F.R. § 541.100(a) (2007). Here, only the second element is disputed; the other
three are clearly established. The issue before this Court, then, is whether Leonard had
management as her primary duty while she was employed as an individual store manager.
The Sixth Circuit has said that the Secretary of Labor’s regulations provided “detailed
guidance” for interpreting the terms “management” and “primary duty.” Speedway
SuperAmerica, 506 F.3d at 503. Although the Speedway court considered the 2003 regulations;
the 2007 regulations, which govern here, are quite similar. Id.
The current regulations define “management” as generally including but not limited to:
activities 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 (2007).
The current regulations also define the term “primary duty” as
the principal, main, major or most important duty that the
employee performs. Determination of an employee’s primary duty
9
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.
The amount of time spent performing exempt work can be a useful
guide in determining whether exempt work is the primary duty of
an employee. Thus, employees who spend more than 50 percent of
their time performing exempt work will generally satisfy the
primary duty requirement. Time alone, however, is not the sole
test, and nothing in this section requires that exempt employees
spend more than 50 percent of their time performing exempt work.
Employees who do not spend more than 50 percent of their time
performing exempt duties may nonetheless meet the primary duty
requirement if the other factors support such a conclusion.
29 C.F.R. § 541.700(a-b).
The regulations also identify the four factors which determine the primary duty of an
employee: (1) “the relative importance of the exempt duties as compared with other types of
duties;” (2) “the amount of time spent performing exempt work;” (3) “the employee’s relative
freedom from direct supervision;” and (4) “the relationship between the employee’s salary and
the wages paid to other employees for the kind of nonexempt work performed by the employee.”
Id. If anything, the revised regulations place less emphasis on the time spent on non-exempt
work and the degree of indirect supervision, and place more emphasis on the actual importance
of an employee’s exempt work. The Court will consider each factor in turn and then summarize
its conclusion in Section IV.
A.
The first factor considers the “relative importance of the exempt duties as compared with
other types of duties.” 29 C.F.R. § 541.700(a). Under this factor, the Court must compare the
importance of Leonard’s managerial duties with that of her non-managerial duties, keeping in
mind the end goal of achieving the overall success of the company. See Donovan v. Burger King
10
Corp. (Burger King II), 675 F.2d 516, 521 (2nd Cir. 1982) (noting that this factor requires a
consideration of which responsibilities are more “important or critical to the success of the
[business]”). See Speedway SuperAmerica, 506 F.3d at 505.
Leonard spends about 70% of her time on manual labor or non-management issues. She
argues strenuously that this amount of time is so significant here that it overwhelms all other
factors. On a day-to-day basis, Leonard performs many of the same jobs as clerks at the store
because each store operates on a strict payroll budget, she must perform many regular duties
along side the other employees. At the very least, she argues, a jury must be given an
opportunity to decide whether her management duties are really that important in these
circumstances.
Dollar General makes a strong case, however, that even a small store could not function
without one person actually taking responsibility for essential tasks. These responsibilities
include, hiring clerks, managing and scheduling employees and accounting for receipts. Some of
these tasks take place in close consultation with District Managers, such as disciplining and
terminating employees, ordering and tracking merchandise and taking direct responsibility to
tasks assigned by the District Manager. However, the District Managers are present only
infrequently.
The facts are relatively undisputed; the weighing of their importance is for the Court.
The Court concludes that the Dollar General store could not effectively operate without Leonard
functioning as the Store Manager. Her management duties are absolutely critical to day-to-day
store operation. Without her, no one else had the ongoing responsibility to direct on-site actions.
Anyone can do the manual labor, but someone must be responsible for overall operations and
11
that someone is not the District Manager. Even though she may have performed non-managerial
work a majority of the time, successful management of Leonard’s store depended totally on her
own decision-making and judgment. Accordingly, the Court finds that the relative importance of
Leonard’s management responsibility exceeds those of her more time-consuming nonmanagement activities.
B.
The second factor examines the “amount of time spent performing exempt work.” 29
C.F.R. § 541.700(a-b). The same arguments which Leonard makes on the first factor reappear
here in similar form. The argument is more direct: a good rule of thumb is that the primary duty
is determined by how an employee spends a majority of her time. However, the regulation is
similarly direct: “[t]ime alone ... is not the sole test, and nothing in this section requires that
exempt employees spend more than 50 percent of their time performing exempt work.” Id.; see
Burger King II, 675 F.2d at 521. In particular, the FLSA, recognizing the nature of the retail
business, exempts retail executives from the requirement that the majority of their hours be spent
on executive functions. 29 U.S.C. § 213(a)(1). See Speedway SuperAmerica, 506 F.3d at 504.
Leonard argues that only 30% of her time was spent on managerial acts, with the rest
spent on the same work done by hourly employees. However, in Murray v. Stuckey’s Inc.
(Murray I), 939 F.2d 614, 618 (8th Cir. 1991), the court held a “district court’s finding that the
managers spent 65-90 percent of their time on non-managerial duties ... is not a controlling factor
under the regulations”. Additionally, this breakdown of time might be “somewhat misleading”,
where “the employee’s management and non-management functions are [not] clearly severable.”
Donovan v. Burger King Corp. (Burger King I), 672 F.2d 221, 226 (1st Cir. 1982).
12
This Court agrees with this assessment. As the person in charge on a regular basis,
Leonard exercised daily discretion over many small matters. What has been said elsewhere
remains true here: she is always supervising and always in charge. See Speedway SuperAmerica,
506 F.3d at 506-507. Further, the Department of Labor’s regulations explicitly recognize her
multi-tasking – performing management and nonexempt work simultaneously – as a managerial
duty. Those regulations recognize the significance of a retail manager performing concurrent
management duties:
For example, an assistant manager in a retail establishment may
perform work such as serving customers, cooking food, stocking
shelves and cleaning the establishment, but performance of such
nonexempt work does not preclude the exemption if the assistant
manager's primary duty is management. An assistant manager can
supervise employees and serve customers at the same time without
losing the exemption. An exempt employee can also simultaneously
direct the work of other employees and stock shelves.
29 C.F.R. § 541.106.
Leonard exercised discretion on a sufficiently frequent basis to support a finding that
management was a constant responsibility.
C.
The third factor concerns the employee’s “relative freedom from direct supervision.” 29
C.F.R. § 541.700(a); Speedway SuperAmerica, 506 F.3d at 507. Assuming that the District
Manager did monitor Leonard’s performance by calling daily and visiting even once a week,
Leonard remained free of direct supervision for most of her time on the job. Leonard was the
most senior employee at her station; no other on-site employee was her equal. Thus, on a dayto-day basis, she generally operated without a supervisor looking over her shoulder or
monitoring her every move.
13
A “local store manager’s job is [no] less managerial for FLSA purposes simply because..
. she has an active [district manager].” Murray I, 939 F.2d at 619. None of the District
Manager’s various forms of oversight or assistance – weekly visits, frequent calls and emails, or
constant availability – demonstrate that Leonard did not have “relative freedom from direct
supervision.” A District Manager’s periodic visits do not negate a finding that the store manager
operates free from supervision when the District Manager is absent. See Horne v. Crown Cent.
Petroleum, Inc., 775 F.Supp. 189, 191 (D.S.C. 1991) (finding that a store manager “was
relatively free from direct supervision” where her “supervisor came by her store only a few times
a week”); Murray I, 939 F.2d at 619 (“The mere fact that a [District] supervisor comes in for a
one- or two-day visit does not destroy the [store manager’s] sole charge status . . . during the
intervals when the superior is absent”). Neither does a store manager’s frequent, even daily,
exchange of email and phone communications with her District Manager suggest that Leonard
was subject to “exacting supervision.” See Moore v. Tractor Supply Co., 352 F.Supp.2d 1268,
1277-78 (S.D.Fla. 2004) (finding that a store manager was not “subject to exacting supervision”
where his “District managers visited the store approximately once a week for a ‘walk thru,’” and
where “any other communication [p]laintiff had with his District managers was via telephone or
email”). See Speedway SuperAmerica, 506 F.3d at 507-08.
Furthermore, the level of supervision here differs significantly from those in cases in
which courts have found that retail store managers were not exempt executives under the FLSA.
Compare Smith v. Heartland Auto. Servs., Inc., 418 F.Supp.2d 1129, 1137 (D.Minn. 2006)
(denying defendant’s motion for summary judgment regarding executive exemption for Jiffy
Lube store managers where the company’s District Managers “were at the stores almost every
14
day of the week for hours at a time”) and Cowan v. Treetop Enters., Inc., 120 F.Supp.2d 672,
675 (M.D.Tenn. 1999) (granting plaintiffs’ motion for summary judgment and finding that
plaintiffs were not exempt executives where Waffle House restaurant unit managers “report[ed]
directly to a District manager who usually has responsibility for three restaurant units in a
defined geographical area”) (emphasis added) with Posely v. Eckerd Corp., 433 F.Supp.2d 1287,
1304 (S.D.Fla. 2006) (distinguishing Cowan and granting summary judgment to defendant, a
retail pharmacy chain, where its District managers “supervised over 15 stores at any given time”)
and Light v. MAPCO Petroleum, Inc., No. 3:04-0460, 2005 WL 1868766, at *9 (M.D.Tenn.
Aug. 4, 2005) (granting summary judgment to defendant where plaintiff managed a gas station
and the District manager “supervised an average of twelve different stores at a time”). See
Speedway SuperAmerica, 506 F.3d at 508.
Despite the involvement and monitoring of the District Manger, Leonard operated free
from direct over-the-shoulder oversight on a day-to-day basis. The Court concludes that this
relative freedom from supervision strongly supports a finding that her primary duty was
management.
D.
The final factor contemplates the “relationship between the employee’s salary and the
wages paid other employees for the kind of nonexempt work performed by the employee”. 29
C.F.R. § 541.700(a); Speedway SuperAmerica, 506 F.3d at 508.
The facts are known. In 2006, Leonard’s weekly salary was about $607, which equates
to an annual salary of $27,583. She received an annual bonus of $4,583 and several “stock”
bonuses of $500. Therefore, her total compensation for the year equaled $32,666. The evidence
15
is that an ASM working full-time for that year would earn about $16,000. ASMs usually do not
work more than 40 hours per week; Leonard did. Thus, it appears as though Leonard earned
about twice the salary of an ASM. This analysis suggests that Leonard’s responsibilities were
more important to store performance and extended significantly beyond those of an ASM, who
also performed some managerial duties.
Leonard argues that if one figured her actual hourly rate of pay, it may not be
significantly different from an ASM. Certainly, the pay comparison between the two would be
more even on an hourly basis. However, Leonard’s hours reflect her greater responsibility and
provide her the opportunity to earn more. The structure of her compensation – that is, the
substantial bonus opportunity – further reflects her central role in the store as a profit center. All
of the discretion, authority and leadership she exercised was viewed as contributing to store
performance. As such, she was paid accordingly.
This evidence establishes that Dollar General paid Leonard a significant amount more
than its non-exempt employees based upon her additional management responsibilities. This is
strong evidence that her primary and overarching responsibilities were management.
IV.
Many courts have considered the question of whether Dollar General Store Managers and
other convenient type store managers are exempt from the FLSA’s overtime pay requirements.
A significant majority of these courts seem to have come down in favor of the exemption. Those
results, however, are immaterial here. All that matters is the evidence and testimony in this case
compared to the required legal standard.
As the preceding discussion suggests, all the factors taken together quite overwhelmingly
16
suggest that Leonard’s primary duty is management as the FLSA defines it. First, her exercise of
actual management responsibilities is far more important than a time comparison. Indeed, but
for the exercise of those duties, the store could not function day to day. Even though she spent
less than 50% of her time on management activities, the constant exercise of her responsibilities
was essential to the success of the store. Second, the evidence clearly established that Leonard is
relatively free from direct supervision as to her day-to-day management functions. The guidance
and consultation which the District Manager may provide does not amount to active supervision
under our cases. Finally, Leonard’s pay scale suggests that she has responsibilities far more
significant than those with whom she may share common chores.
The sole factor which might weigh against Leonard’s exempt status is that she spends
only 30% of her time specifically on management duties. However, many courts and the
applicable FLSA regulations have said that the actual time split between managerial and nonmanagerial duties is not determinative. Moreover, the actual time is misleading. When on the
job, Leonard is always the leader, always in charge and always responsible to higher
management.
17
The Court concludes, therefore, that Defendant has met its burden of establishing as a
matter of law that Leonard’s primary duties are management. The Court will enter an order
consistent with this Memorandum Opinion.
May 23, 2011
cc: Counsel of Record
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