Rogers v. Xcel Energy, Inc. et al
Filing
91
MEMORANDUM OPINION AND ORDER denying defendant's 57 Motion for Summary Judgment; granting in part and denying in part plaintiff's 62 Motion for Partial Summary Judgment (Written Opinion). Signed by Judge John R. Tunheim on September 16, 2014. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
VERONICA R. GRAGE,
Civil No. 12-2590 (JRT/JSM)
Plaintiff,
v.
NORTHERN STATES POWER CO. –
MINNESOTA,
MEMORANDUM
OPINION AND ORDER ON
CROSS MOTIONS FOR
SUMMARY JUDGMENT
Defendant.
Matthew H. Morgan and Timothy C. Selander, NICHOLS KASTER,
PLLP, 80 South Eighth Street, Suite 4600, Minneapolis, MN 55402, for
plaintiff.
Marilyn J. Clark, Melissa Raphan, and Ryan E. Mick, DORSEY &
WHITNEY LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN
55402, for defendant.
Plaintiff Veronica Grage brings this claim against her employer, Northern States
Power Company – Minnesota (“NSP”) for failure to pay her overtime in violation of the
Fair Labor Standards Act (“FLSA”). Both parties move for summary judgment. NSP
argues that there is no genuine dispute of material fact that Grage is exempt from
overtime under the FLSA because her position as a “Supervisor I” falls under either the
“administrative” or the “combination” exemption of the FLSA. Grage moves for partial
summary judgment, arguing that there is no genuine dispute of material fact that one of
the three requirements for the administrative exemption is not met. The Court concludes
that undisputed facts indicate that Grage does not fall within the administrative
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exemption because her primary duty does not directly relate to the management or
general business operations of NSP. The Court also concludes that she does not fall
within the combination exemption. The Court will therefore deny NSP’s motion for
summary judgment and grant Grage’s, but only in part, because it concludes that fact
issues remain with regard to the question of liquidated damages.
BACKGROUND
Grage was hired by NSP in 1978. She first worked as an account clerk and has
also worked as a job closer, senior associate, and damage prevention coordinator before
becoming a “Supervisor I.”
(Third Decl. of Matthew H. Morgan, Ex. 3 (Dep. of
Veronica Grage (“Grage Dep.”) 31-32), Nov. 20, 2013, Docket No. 72.) She became a
Supervisor I in June of 2007, and in that role has worked exclusively at NSP’s Chestnut
Service Center, which covers a geographic area including all of Minneapolis, Golden
Valley, Crystal, Fridley, and Columbia Heights. (Id. 32-33.) Jeffrey Custer was her
manager for her first eight to nine months as a Supervisor I and she has reported to Steve
Smieja ever since. (Id. 32.)
I.
BASIC JOB DUTIES OF SUPERVISOR I
As a Supervisor I at the Chestnut Service Center, Grage is primarily responsible
for compiling service work orders and assigning them to work crews to be completed.
There are twenty-six men who work at the Chestnut Service Center available to be
assigned to work crews.
Grage receives work orders from other employees called
“designers,” and creates a schedule based on the work that needs to be done, creating
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work crews based on the number of people and hours necessary for each task, and
ensuring that there is equipment available for each project.
A.
Grage’s Account of Her Job Duties
In her deposition, Grage explained her job duties as follows:
I give [the work crews] their job duties. I hand out their work packet to
them every day. And if they need extra help with another crew or if they
have to dig a hole and there’s a ton of underground facilities in the ground,
. . . it’s my responsibility to have what they call a vac truck. It’s an outside
contractor that I have to set up to schedule with them. I set that up to make
sure that this job gets done safely.
(Grage Dep. 45.) She further explained that she has “26 employees . . . to fill my roster
with,” and that this can involve arranging them into crews of various sizes, which are
assigned a variety of projects with a variety of equipment. (Id. 56.) She testified that this
kind of arranging is necessary because “you have to have a certain type of work to give to
a certain crew, because of the trucks and the work that – any crew can do anything if they
have the right equipment and truck to do it.” (Id.) She receives and discusses the work
orders delineating each job at meetings with the designers, who generate the work orders.
(Id. 199-201.) Each designer submits jobs that need to be done, which are included in a
report which lists the job, an “in-service” date, and the designer submitting the work
order. (Id. 202.) After the meetings, Grage assigns work crews to the various work
orders. (Id. 202-03.)
According to Grage, her determination of the number of crews working on a given
day depends on her assessment and evaluation “of what jobs need to be done and how to
get [them] done.” (Id. 57.) She also determines the composition of each crew:
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every guy cannot work with every guy. We have foreman, we have
journeymen, we have apprentices, and now we have a helper. Two
apprentices cannot consist of a crew. You have to make sure you have the
right crew complement. You have to make sure that you have the right
vehicle. You have to make sure you have the right equipment to do the
jobs.
(Id. 86-87.) Grage explained that she has to try to plan in advance so that the same
equipment is not needed for two different tasks on a given day. (Id. 59.) If it happens
that the same piece of equipment is needed on a given day, she looks at the job and
“work[s] with the designer of the job. And I have to work with the designers to see
which one is a priority.” (Id.)
Grage is also responsible for adjusting the schedule to accommodate emergencies
or other situations requiring a change in the schedule. She decides what jobs the crews
will start with and, if a situation arises in the middle of the day, she is responsible for
reassigning crews to different locations or jobs and allocating equipment based on the
jobs. (Id. 58.)
When designers give her work orders, she has to accept the work orders. This part
of her job is called “work acceptance process” – the handoff of a work order packet from
the designer to the Supervisor I. (Second Decl. of Matthew H. Morgan, Ex. 6 (Dep. of
Jeffrey Custer (“Custer Dep.”) 88), Oct. 31, 2013, Docket No. 66.) This responsibility
requires her “to understand, know and be able to figure out [] the materials,” to see if they
are correct and, if not, to give them back to the designer to be fixed. (Id.) To accomplish
all of this, she is required to log on to an application at the start of the workday that
includes several bullet points of what a Supervisor I is required to do, including “[c]heck
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calendar for vacation, meetings, et cetera,” and “[c]heck PPWR’s for referrals from
TRBL screen print to process,” “[c]omplete crew roster by 6:50,” “[p]rocess incoming
work orders, work acceptance process, RFO’s, material locates, permits, equipment, etc.”
(Third Morgan Decl. Ex. 4 (Dep. of Stephen Smieja (“Smieja Dep.”) 37-39).)
Grage estimates that fifty percent of her job is office work, the other part is
scheduling, and she acknowledges that her work is “office or non-manual” work. (Grage
Dep. 245-48.) At one point in her deposition she was asked about how she describes her
job to others in social situations:
Q: What do you tell people—how do you describe your job when people
ask you what you do, whether you’re meeting them for the first time or
whatever the circumstances might be?
A: I tell them that I work with the underground crews in Minneapolis. I
schedule the work for approximately 26 guys.
Q: Okay. That’s pretty much the description you give if somebody asks
you what you do?
A: If they sounded more interested I would say more. But that’s about it.
‘Cause sometime they don’t sound interested. So most of the time.
Q: I’m extremely interested. So one of those people who is interested,
how do you expound upon your responsibilities?
A: Actually I tell them that I get to go to work and I get to tell 26 guys
what they have to do today.
Q: A dream come true for my wife if she could have it. Okay.
A: So I dispatch work to various guys, you know, various crews for the
day. I said, “And there’s a lot to it.” I said, “You have to be organized
and you have to be able to multi-task. And you have to be able to
change directions in the snap of a finger.”
(Id. 120-21.)
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B.
NSP and Grage’s Supervisors’ Accounts of Her Duties
According to Grage’s supervisor Smieja,
[Grage] manages the process from finding out that the job is going to
working with the designer to making sure that packet is correct and we
have the right accounting and the right material to, to coordinating other
entities, whether it be contractors that need to work with us to complete the
project or the city or state or county officials that will be working on their
property to actually the proper skillsets, if you will, of the crew members to
complete the project, to getting them the equipment and the trucks they
need to complete it and basically write down the [sic], going in in the
morning and handing it to them and go, okay, this is what we’re doing on
this job . . . .
(Smieja Dep. 61.) He considers her the “[h]ub to success of the organization,” or “a
crucial cog.” (Id. 74.)
NSP Director of Design and Construction Jeffrey Custer describes the Supervisor I
position as having “a primary job function of[] scheduling work . . . . They work with our
design department . . . , that works with customers to create designs.” (Custer Dep. 8,
26.) He explained that “Supervisor I’s would negotiate with those designers on dates for
the work to be accomplished. They would also once they get that work agree to the
dates, they would need to prioritize what work gets done when.” (Id. 26.) According to
Custer, Supervisor Is must figure out which equipment is required, make sure that
permits are in place, make sure any pre-work is done, and reprioritize on a day-to-day
basis and throughout the day based on emergencies that arise. (Id. 26-27.) NSP classifies
Grage’s job, Supervisor I, in the “production operations” job family at NSP because “it is
part of supplying energy to our customers,” which is NSP’s business function. (Second
Morgan Decl., Ex. 7 (Dep. of Mollie Kelman (“Kelman Dep.”) 63).)
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C.
History of the Position at NSP
Supervisor Is were previously referred to as schedulers, even though the
responsibilities largely remained the same after the position’s title change. (Custer Dep.
42-44.) They were also called coordinators, which were salaried, and had largely the
same responsibilities. (Id.) In describing the transition to Supervisor Is, a former NSP
Human Resources employee stated, “Well, we already had a coordinator position that
was in place so we used that as a baseline, but the team had a desire to create a career
path, and so one of our responsibilities was to compose the job description to include the
new responsibilities which would be managing, directing, prioritizing, re-prioritizing
work for those incumbents” [meaning the people transitioning from the coordinator to the
Supervisor I position]. (Aff. of Ryan E. Mick, Ex. D (Dep. of Kathryn Gade) 20,
Nov. 20, 2013, Docket No. 75.)
The Manager of Compensation who is in charge of FLSA classifications agreed
that it was accurate that when that change was made, “there was no independent review
of the Supervisor I position regarding classification because the Coordinator position had
been an exempt position, and then there was the creation of the Supervisor I and II
positions, and it just continued to remain as an exempt position.” (Kelman Dep. 10, 8384.)
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II.
SPECIFIC ASPECTS OF GRAGE’S DUTIES
The record includes details of several specific aspects of Grage’s duties and
expectations in her role as a Supervisor I. The Court will recite those that are relevant to
the instant motions.
A.
Prioritization of Work Orders
Part of Grage’s job is to prioritize different work orders to maximize the work of
the crews and the use of equipment. Sometimes this requires adjusting the schedule. In
discussing her responsibility regarding daily plan adjustments, Grage explained that this
is important because “you want to give work to the crews to make sure that you’re
utilizing them to the best of their ability. You don’t want to give them a job with a truck
they cannot get the work done in.” (Grage Dep. 86.)
Some of the considerations that go into prioritizing and scheduling work include
employee absences, the amount of pre-work required for a specific order, and the inservice date.
(Id. 86-87, 133.)
Sometimes jobs need pre-work, such as boring or
approval to dig, so she has to take into account how much lead time certain types of
projects might require. (Id. 133.) Grage testified that it can be a challenge to do this
work because of employee absences, so “[j]ust trying to put all that together can be a
challenge.” (Id. at 94.) The “in-service date” is a major piece of how a job is prioritized.
(Id. 203.) She explained that “[e]ach job has an in-service date. So in the morning if I
come in and we had a crew work last night and a certain job had to be pushed out, a lot of
it depends on the in-service date of each job. I look at the . . . job, you know, how long
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we’ve had it, if I’ve had a crew on it. Many things go into that.” (Id. 86.) She
sometimes determines when an in-service date can feasibly be achieved, but she
estimated that she is overruled by Smieja approximately twenty percent of the time. (Id.
206-07.) According to Grage, the designers are the ones that typically drive any changes
in the in-service date. (Id. 205-07.)
Although Grage frequently suggested in her deposition that it is the designers who
lay out the demands of each job, Smieja claimed that Grage establishes on her own what
type of crew she needs and the equipment, not with the designers. (Smieja Dep. 87-88.)
Similarly, Custer stated that Supervisor Is, not the designers, decide what equipment is
used on the site by the work crew, as the work orders do not contain information about
equipment or how many people should be on a particular work crew for a certain job.
(Custer Dep. 55-56.) However, in the event of a conflict between a designer and a
Supervisor I over the priority of a particular work order, Custer stated that there is no
protocol in place for determining whose opinion supersedes. (Id. 104.)
Some aspects of the work orders are not part of Grage’s job and are left to the
designers. For example, she does not know what type of customer a given assignment is
for – the paperwork she gets from the designers does not say whether it is an apartment
building, a mall, or a single-family residence – she would have to ask the designer.
(Grage Dep. 87-88.)
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B.
Supervision by and Relationship with Smieja
The parties offer somewhat conflicting testimony over how much prioritization
and adjusting for emergencies is left to Grage as opposed to being subject to review by
her supervisor Smieja. When asked if “Smieja defers to [her] judgment and discretion in
setting up [a] daily work plan,” Grage answered “correct.” (Id. 77.) But Smieja testified
that he sits very close to her, such that when she “is on the phone making decisions about
who should go where and what crews should go out where,” Smieja can hear what she is
saying or doing and could redirect or correct her. (Smieja Dep. 45-46.) Furthermore,
Grage disagreed with the statement that Smieja has always been “on board” with her
decisions, explaining that
he can overrule me, and he has. . . . [E]specially because he talks to the
other managers and the other – you know, . . . I work with the
Supervisor I’s, and if it works into my schedule that I can or I can’t send
another body, we’re good. But sometime the managers talk about stuff that
needs to get done and they don’t tell the Supervisor I’s that do the
scheduling, and so we can be overruled.
(Id. 167-68.) She further stated that if she did not make the correct decisions as far as
assigning crews and deciding the make-up of crews, assigning equipment, and assigning
tasks, she “would be reprimanded by my manager.” (Id. 183.) “So as far as major
decisions, I guess depending on [Smieja] and how he’s feeling, I almost feel that I almost
have to ask him about everything sometime. It all depends on the level of comfort that I
have with him on a given day.” (Id. 275.)
But when Smieja has been out for weeks at a time, she takes on more
responsibility. She described a time when Smieja left for a few weeks to assist with
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hurricane Sandy, and she ran the crews on her own, but there was another manager who
helped out with things, including, for example, Request for Outage Forms, with regard to
which she testified that she was not certain how they should be written: “That’s more of a
manager role when it comes to the electricity and what has to be done here and there.”
(Id. 73-74.)
At a different point, Smieja was away from the Chestnut Service Center because
he was helping to cover Maple Grove, but she still consulted with him frequently:
I’m handling most of ‘em. But I have to be careful. Because when
[Smieja] is available to talk to, I talk to him. If I make any wrong decisions
that [Smieja] does not like, I will hear about it. Believe me. I talk to him
on a lot of issues when he is available to talk to.
(Id. 150-51.)
C.
Printed Job Description Materials
Much of counsel for NSP’s questioning of Grage during her deposition centered
around her printed job description and her interpretation of various statements made by
her and her manager in her written annual performance reviews. Upon questioning
regarding a printed job description, Grage agreed that the following are accurate
statements of the competencies required for success as a Supervisor I: “Job/Technical
Expertise, Initiative & Innovation, Adaptability & Change Management, and
Project/Program Management.” (Id. 50.) She testified that she achieves the “Initiative
and Innovation” competency “by prioritizing [her] work and handing it out to the crews
that can do that job and [she] get[s] the work done.”
(Id. 51.)
For example, an
“aggressive goal” that she set for herself included “[m]aking sure that the primary faults
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get done in a very timely manner,” meaning that faulted underground wires get fixed as
soon as possible. (Id. 51-52.) She explained that if they were not fixed in a timely
manner, she “would hear about it from [her] manager. And then he would hear about it
from his manager. And they would want to know why aren’t these getting done.” (Id.
52-53.)
She also testified about the competency description within the Initiative &
Innovation category titled “calculated risk taking.” She explained:
If I have a lot of jobs set up today and I’m expecting – you know, you
expect a certain amount of guys to come in today, I’ve got it all planned
out, and then last night we had a huge outage and four of my guys had to
work that and they’re all on rest today. You know, sometimes [Smieja] and
I talk and, you know, ‘Can you spare to do this, can you spare to do that
today.’ And I say[], ‘It’s real tight today.’ I said, ‘I’ve got a lot of things
scheduled that, you know, the designers were talking to me about and
they’d really like to get them done today.’
(Id. 54-55.) She agreed that she takes risks in her job because it is possible that there will
be an emergency and she may have to take a crew or equipment off a planned job. (Id.
60.) She testified that she does not know about or whether there are potential cost
implications for NSP when she does this. (Id.)
She also agreed that she “[d]ecides and acts without having the picture totally
defined,” and gave an example: she explained that the 24-hour control center calls on
occasion indicating that a crew is needed but without giving much information, which
is an example [of] where I don’t know the total picture, but they are going
to need a crew. So I look at my crews that I have assigned to certain jobs
for the day, and I have to start figuring out which crew I’m going to pull
from which job to get this done. Again, I have to review the different jobs
that I have given out, the trucks, and to my guesstimation I do what I can to
make that get done.
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(Id. 62-63.) It is up to her judgment which crew to pull, but her “boss is sitting right
beside” her and sometimes says, “[n]ope, let’s do it this way.” (Id. 63) She estimates
that she gets overruled ten percent of the time in these situations. (Id.)
In her deposition she was also asked about one of her performance evaluations,
which stated that she “developed materials, managed process, helped develop program to
track issues and identify issues.” (Id. 68.) She explained that this was in the context of a
vault inspection project, through which the crews inspected about 200 vaults. (Id. 68-69.)
She had to make sure that each vault was inspected. (Id. 70.) She explained,
I had a sheet . . . that the engineer developed that the crews had to go down
into each vault on and, you know, go through this sheet. . . . I just had to
make sure that all the vaults were inspected. Each one was inspected. Each
of these sheets were filled out.
(Id. 70-72.) She was asked in her deposition about which materials she developed, to
which she answered “[t]he material thing I’m not sure about.” (Id. 70.) When asked
again about what program she developed to track issues and identify issues, she explained
that it was a “[s]preadsheet.
I helped develop a spreadsheet for that.”
(Id.)
She
explained that “[t]he spreadsheet had columns of all the information that was on this form
that the engineers put. . . . And so the guys went into the vault and gathered the
information, and then all of it was put on this spreadsheet.” (Id. 70-71.)
When asked how she demonstrates leadership as a Supervisor I, she explained:
I listen when somebody comes to my desk and asks me a question. I give
them my full attention. I mean, I can kind of say what is here. I refrain
from judging the person. When I go to a meeting, I’m prepared and I’m on
time. I treat people with respect.
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(Id. 112.)
D.
Management Responsibilities
Grage testified that she does not have responsibility for the formal performance
management process, nor for “coaching,” which has a disciplinary connotation when
used at NSP, but that she does provide guidance to the crews. (Id. 44-45.) She testified
that she does not participate in discussions about disciplinary action for crew members
and Smieja has never asked for her input on a discipline question. (Id. 90.) She has no
employees reporting to her and does not do performance reviews, nor does she make any
suggestions or recommendations as to hiring, firing, advancement, or promotion. (Id.
245-46; see also Custer Dep. 41.) Grage testified that she does answer questions from
the work crews about job assignments, but if they have more technical questions or union
issues, they go to Smieja. (Grage Dep. 46, 177-78.)
Grage is also not involved in compliance matters – she does not know what
“compliance with regulations, PUC rules and company standards” entails. (Id. 106.) She
also does not know what the implications are for NSP if she fails on a permit or
notification and a project gets shut down, rather, “[if] the permit is not in the folder, I
give it back to the designer.” (Id. 110.)
ANALYSIS
I.
STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
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law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
II.
FLSA AND EXEMPTIONS
Grage claims that NSP has failed to pay her overtime in violation of the FLSA,
which requires employers to pay overtime compensation to employees that work more
than forty hours in a workweek. See 29 U.S.C. § 207(a)(1). Some types of employees,
however, are exempt from the FLSA’s overtime requirement. See 29 U.S.C. § 213(a)
(listing exemptions). For example, an employee employed in a “bona fide executive,
administrative, or professional capacity,” is exempt from the overtime requirement. See
29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.708.
The employer bears the burden of
establishing that the exemption applies and excuses it from the overtime requirement.
Mitchell v. Ky. Fin. Co., 359 U.S. 290, 291 (1959); McAllister v. Transamerica
Occidental Life Ins. Co., 325 F.3d 997, 999 (8th Cir. 2003). Given the remedial nature of
the FLSA, exemptions under the Act are to be “narrowly construed in order to further
Congress’ goal of providing broad federal employment protection.”
Spinden v. GS
Roofing Prods. Co., 94 F.3d 421, 426 (8th Cir. 1996) (internal quotations omitted); see
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also Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960) (“[E]xemptions are to be
narrowly construed against the employers seeking to assert them and their application
limited to those establishments plainly and unmistakably within their terms and spirit.”).
“The question of how the [employees] spent their working time . . . is a question of fact.
The question whether their particular activities excluded them from the overtime benefits
of the FLSA is a question of law[.]” Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709,
714 (1986).
III.
ADMINISTRATIVE EXEMPTION
NSP claims that Grage falls within the exemption for employees employed in a
bona fide administrative capacity. Regulations promulgated by the Secretary of Labor in
accordance with the Secretary’s authority under 29 U.S.C. § 213(a)(1) delineate what
constitutes employment in a bona fide administrative capacity. The regulations, which
were most recently revised in 2004, state that
The term “employee employed in a bona fide administrative capacity” in
section 13(a)(1) of the Act shall mean any employee:
(1) Compensated on a salary or fee basis at a rate of not less than $455
per week . . .;
(2) Whose primary duty is the performance of office or non-manual
work directly related to the management or general business operations
of the employer or the employer’s customers; and
(3) Whose primary duty includes the exercise of discretion and
independent judgment with respect to matters of significance.
29 C.F.R. § 541.200. In order for an employee to be exempt under the regulations, all of
these requirements must be met. See Cruz v. Lawson Software, Inc., 764 F. Supp. 2d
1050, 1067 (D. Minn. 2011) (observing that “[f]or the administrative exemption to apply,
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[the employer] must also show that Plaintiffs[]” met the discretion element, in addition to
the second element).
The parties do not dispute that Grage satisfies the first requirement, but dispute
both of the substantive requirements in 29 C.F.R. § 541.200(a). With regard to the
second requirement, whether her primary duties are “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), both parties move for summary judgment, arguing that the facts relevant
to this inquiry are undisputed and that the Court can rule as a matter of law in their
respective favors. On the third requirement, only NSP moves for summary judgment;
Grage argues that there are genuine disputes of material facts based upon which a
reasonable jury could conclude either that her primary duties do or do not involve “the
exercise of discretion and independent judgment with respect to matters of significance.”
See 29 C.F.R. § 541.200(a)(3).
For the purposes of this analysis, regulations define the term primary duty as “the
principal, main, major or most important duty that the employee performs.”
Id.
§ 541.700(a). The regulations explain that a “[d]etermination 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.” Id. In making that determination, courts
may consider, among other things:
the relative importance of the exempt duties as compared with other types
of duties; the amount of time spent performing exempt work; the
employee’s relative freedom from direct supervision; and the relationship
between the employee’s salary and the wages paid to other employees for
the kind of nonexempt work performed by the employee.
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Id. The regulations further explain that “[t]he amount of time spent performing exempt
work can be a useful guide in determining whether exempt work is the primary duty of an
employee,” but that “[t]ime alone . . . is not the sole test.” 29 C.F.R. § 541.700(b).
A.
Relation of Work to the Management or General Business Operations
Both parties move for summary judgment on the second requirement in the test for
administrative exemption, claiming that the facts regarding the activities Grage performs
relevant to this inquiry are not in dispute such that the Court should conclude as a matter
of law whether Grage’s primary duty is “directly related to the management or general
29 C.F.R. § 541.200(a)(2); see also Icicle
business operations of the employer.”
Seafoods, Inc., 475 U.S. at 714 (“The question of how [a plaintiff] spent their working
time . . . is a question of fact. The question whether their particular activities excluded
them from the overtime benefits of the FLSA is a question of law . . . .”).
1.
Regulatory Guidance
Regulations in the subsequent section, 29 C.F.R. § 451.201, offer specific
guidance as to what it means for work to be “directly related to the management or
general business operations”:
The phrase “directly related to the management or general business
operations” refers to the type of work performed by the employee. To meet
this requirement, 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.
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29 C.F.R. § 541.201(a). Guidance accompanying the 2004 version of these regulations
explains that the administrative operations of the business include the work of employees
“servicing” the business, such as, for example, “advising the management, planning,
negotiating, representing the company, purchasing, promoting sales, and business
research and control.”
Defining and Delimiting the Exemptions for Executive,
Administrative, Professional, Outside Sales and Computer Employees (“2004 Final Rule
Guidance”), 69 Fed. Reg. 22122-01, 22138 (April 23, 2004) (internal quotations
omitted). This can include, 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).
The FLSA Employee Exemption Handbook counsels considering this analysis as
one about the “type of work” the employee performs: “Is the employee’s primary duty
the performance of work directly related to management or general business operations?”
FLSA Emp. Exemption Handbook, ¶ 400, 2004 WL 5032709 (Aug. 23, 2004) (emphasis
in original). The handbook also counsels that “[t]he word ‘directly’ is intended to ensure
that the administrative exemption is not applied to employees whose primary duty is only
remotely or tangentially related to exempt work.” Id. ¶ 410, 2004 WL 5032710.
In analyzing this second requirement, courts frequently refer to the distinction
suggested by 29 C.F.R. § 541.201(a) between “work directly related to assisting with the
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running or servicing of the business,” and “working on a manufacturing production line
or selling a product in a retail or service establishment.” Courts have applied this to
suggest a “production versus staff” or a “production/administrative” dichotomy to
determine whether an employee is exempt or not. See Davis v. J.P. Morgan Chase &
Co., 587 F.3d 529, 531-32 (2d Cir. 2009) (“Employment may thus be classified as
belonging in the administrative category, which falls squarely within the administrative
exception, or as production/sales work, which does not.”); Schaefer v. Ind. Mich. Power
Co., 358 F.3d 394, 402 (6th Cir. 2004) (“[A] number of courts have applied an
administrative
versus
production
analysis,
sometimes
referred
to
as
the
administrative/production dichotomy, to the issue.”); Adams v. United States, 78 Fed. Cl.
536, 546 (Fed. Cl. 2007) (“[I]f there is mixed authority regarding the type of work and
the applicability of the administrative exemption, or perhaps if the work is of a unique
nature, the administration/production dichotomy is a useful analytical tool for resolving
the question of the exemption.”).
But courts have also acknowledged that the dichotomy is not helpful in all
circumstances.
See Schaefer, 358 F.3d at 402-03 (“[T]he administrative versus
production analysis does not fit all cases. The analogy – like various other parts of the
interpretive regulations – is only useful to the extent that it is a helpful analogy in the
case at hand, that is, to the extent it elucidates the phrase ‘work directly related to the
management policies or general business operations.’”); In re RBC Dain Rauscher
Overtime Litig., 703 F. Supp. 2d 910, 933 (D. Minn. 2010) (“[T]he production/
administration dichotomy, which is supposed to clarify the phrase ‘work directly related
- 20 -
to the management policies or general business operations’ in the pre–2004 regulations,
is not particularly relevant or helpful to the Court’s understanding of the primary duties
of RBC’s securities brokers under current law.” (internal quotation marks omitted)). The
Department of Labor addressed concerns raised by commenters about the dichotomy
when promulgating the 2004 revisions to the regulations:
Commenters . . . have very different perspectives about how the
Department should approach the “production versus staff” dichotomy and
apply it to the modern workplace. . . . The Department believes that our
proposal struck the proper balance on the “production versus staff”
dichotomy. We do not believe that it is appropriate to eliminate the concept
entirely from the administrative exemption, but neither do we believe that
the dichotomy has ever been or should be a dispositive test for exemption.
The Department believes that the dichotomy is still a relevant and useful
tool in appropriate cases to identify employees who should be excluded
from the exemption. . . . [T]he Department provided in proposed section
541.201(a) that the administrative exemption covers only employees
performing a particular type of work – work related to assisting with the
running or servicing of the business. The examples the Department
provided in proposed section 541.201(b) were intended to identify
departments or subdivisions that generally fit this rule.
2004 Final Rule Guidance, 69 Fed. Reg. at 22141.
The Court will therefore treat the dichotomy as informative but not dispositive,
and will also consider the guidance from the list of examples in 29 C.F.R. § 541.201(b).
Although not an exhaustive list, the list of examples in § 541.201(b) suggest types of
work that generally facilitate the operation of any enterprise, such as keeping track of
finances, managing human resources policies and operations, paying taxes, providing
technology services, and complying with relevant laws and regulations. The Department
of Labor explained, in promulgating the regulation, that:
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Based on these principles, the Department provided in proposed section
541.201(a) that the administrative exemption covers only employees
performing a particular type of work – work related to assisting with the
running or servicing of the business. The examples the Department
provided in proposed section 541.201(b) were intended to identify
departments or subdivisions that generally fit this rule.
2004 Final Rule Guidance, 69 Fed. Reg. at 22141.
This suggests another distinction, reminiscent of production versus staff, but less
tied to an industrial, factory-oriented economy: that between operations that service the
business itself and those that carry out the primary, day-to-day activities that constitute
the business’s primary output.
As the court in Neary v. Metropolitan Property &
Casualty Insurance Co., 517 F. Supp. 2d 606 (D. Conn. 2007), explained,
the examples of employees meeting the “directly related” test provided in
29 C.F.R. § 541.201(b), . . . are all duties clearly related to servicing the
business itself: it could not function properly without employees to
maintain it; a business must pay its taxes and keep up its insurance. . . .
[They] are not activities that involve what the day-to-day business
specifically sells or provides, rather these are tasks that every business must
undertake in order to function.
Id. at 614; see also Bollinger v. Residential Capital, LLC, 863 F. Supp. 2d 1041, 1048
(W.D. Wash. 2012) (“This list [in 29 C.F.R. § 541.201(b)] distinguishes between work
that any employer needs performed – such as accounting, human resources, and
regulatory compliance – and work that is particular to an employer’s industry. The
former is part and parcel of running a business and therefore exempt administrative work.
The latter is not.” (internal citation omitted)).
NSP points to cases in which courts have interpreted “directly related to the
management or general business operations” broadly – extending it to include activities
- 22 -
that are directly related to operations that are essential to the specific business. In Rock v.
Sunbelt Cranes, Construction & Hauling, Inc., 678 F. Supp. 2d 1264 (M.D. Fla. 2009),
the court observed the examples in 29 C.F.R. § 541.201(b) as being “clearly related to the
servicing or running of the Defendant’s business itself,” or, “[i]n other words, the
Defendant’s business could not function properly without its employees that perform
these tasks.” Id. at 1271. The court proceeded to conclude that a dispatcher for a crane
rental company fell into the administrative exemption because,
[s]imilarly Sunbelt’s business could not operate properly without its
dispatch department. While the particular dispatch department referred to
here is unique to crane rental businesses and may not be the sort of
department that every business needs to function properly, it is of the sort
that a crane rental business must have in order to function. . . . Maintenance
of the schedule and Mr. Rock’s other responsibilities combined were
necessary and of the type that every crane rental business must undertake in
order to operate.
Id. (emphases omitted). This analysis expands the guidance from 29 C.F.R. § 541.201 to
activities that are essential to the running of a specific type of business – there, crane
rental – rather than activities that would be essential to any business – the type of
activities that involve servicing the business itself rather than the services the business
provides to its customer.1 On appeal, the Eleventh Circuit affirmed, but shifted its focus
1
Defendant also points to D’Angelo v. J&F Steel Corp., Civ. No. 01-6642, 2003 WL
1888775 (N.D. Ill. Apr. 14, 2003), in support of its position. The court in that case applied an
expansive view of “management or general business operations” similar to the district court in
Rock. The plaintiff there worked for a steel company and her primary responsibilities “involved
coordinating steel delivery.” Id. at *7. Relying on the plaintiff’s statements in her deposition
that her responsibilities were the “heart of the operation” and that she “was the core of the
apple,” the court concluded that the plaintiff was exempt because, without her responsibilities of
coordinating steel delivery, “J&F Steel would have ceased to function.” Id. As with the district
court’s decision in Rock, the Court does not find this reasoning to be persuasive or reflective of
the regulations’ guidance.
- 23 -
from the district court’s reasoning: it acknowledged that Rock did engage in the kind of
activities that the regulations deemed non-exempt (there, sales, which the regulations
describe as falling on the ‘production’ side of the dichotomy suggested in 29 C.F.R.
§ 541.201(a)), but concluded that “the district court properly concluded that Rock met the
second prong of the administrative exemption test” because “his primary duties went
beyond mere sales” and included significant amount of time spent on “managerial
duties,” such that his primary duty was “the management of Sunbelt’s crane rental
division.” Rock v. Ray Anthony Int’l, LLC, 380 F. App’x 875, 878-79 (11th Cir. 2010)
(internal quotations omitted). It continued, observing that “[t]he district court’s finding is
consistent with our decision in Hogan, in which we concluded that even when employees
engage in sales, their duties are administrative if the majority of their time is spent
advising customers, hiring and training staff, determining staff pay, and delegating
matters to staff.” Id. (citing Hogan v. Allstate Ins. Co., 361 F.3d 621, 627 (11th Cir.
2004)). Thus, it seems that the Eleventh Circuit declined to adopt the district court’s
extension of the exemption to activities that are merely essential to the business, rather
than related to the servicing of the business itself.
The guidance accompanying the 2004 promulgation of the regulations suggests
that the administrative exemption was not intended to be applied as expansively as the
district court did in Rock. The commentary accompanying the final 2004 rule explains
that the Department of Labor had proposed a version that omitted the word “directly”
before “directly related,” but that
- 24 -
the final rule reinserts the word “directly” throughout this section. Some
commenters argue that the deletion of the word “directly” from the existing
regulations would allow the exemption for an employee whose duties relate
only indirectly or tangentially to administrative functions. The Department
. . . has reinserted this term to ensure that the administrative duties test is
not interpreted as allowing the exemption to apply to employees whose
primary duty is only remotely or tangentially related to exempt work.
2004 Final Rule Guidance, 69 Fed. Reg. at 22140. The Court will therefore find Grage to
be exempt only if the record indicates that her work is directly related to NSP’s
management or general business operations; it is not enough for her work to be essential
because it is the core of NSP’s business or for her work to be tangentially related to
management or operations that operate to service NSP itself.
See also Bollinger,
863 F. Supp. 2d at 1050 (“Defendants seem to argue Plaintiffs’ work was important
because it was necessary to bring Defendants’ mortgage products to the marketplace.
This view would practically make every worker’s duties administrative. It cannot be
reconciled with the duty to construe FLSA exemptions narrowly.”).
2.
Applied to Grage
Grage’s work is a situation in which this element of the administrative exemption
test is difficult to apply: her work involves tasks that appear similar to tasks that are
performed by exempt administrators, such as scheduling and coordinating, but she does
them in a context that is closely intertwined with a non-exempt sphere of work. The
closest analogy to Grage’s job – in which she coordinates and schedules tasks, crews, and
equipment – is likely that of a dispatcher, and courts have had many occasions to
consider whether dispatchers fall under the administrative exemption. But, as courts have
- 25 -
recognized, courts addressing dispatchers have been divided over whether the job duties
of a dispatcher meet the requirements for the administrative exemption and the
precedential value of any such case depends on the specific facts. See Iaria v. Metro Fuel
Oil Corp., Civ. No. 07-4853, 2009 WL 222373, *2-3 (E.D.N.Y. Jan. 30, 2009)
(collecting cases).
Furthermore, of the dispatcher cases NSP cites, the courts in those cases that have
reached the conclusion that a dispatcher fell under the administrative exemption did so
nearly entirely on the basis of the inquiry related to the third requirement – the amount of
discretion or supervision the given dispatcher exercised – not the extent to which the type
of work directly related to the employers’ general business operations. See, e.g., Puentes
v. Siboney Contracting Co., Civ. No. 11-80964, 2012 WL 5193417, at *5-6 (S.D. Fla.
Oct. 19, 2012) (relying on Rock to find the plaintiff was exempt under the administrative
exemption because of his supervisory role and because he was “entirely responsible for
dispatching of truckers,” where plaintiff “took daily orders from the customers,
coordinated and scheduled the truckers, oversaw the truckers, visited job sites daily, acted
as liaison with the owners and job superintendents, assured that the trucking work was
done correctly to the satisfaction of the customers, and handled any problems or
emergencies that arose in the field,” such that, “[i]n fact, Plaintiff was in charge of all
activities relating to the daily dispatch and running of the trucking services by ST in
Central Florida”); LaPoint v. CRST Int’l, Inc., Civ. No. 02-0180, 2004 WL 3105950, *9
(N.D. Iowa June 16, 2004) (basing its reasoning on plaintiff’s supervisory role and
stating, without explanation that it also found his duties to be directly related to the
- 26 -
general business operations: “the court finds that the fact that he was in charge during his
work hours, at least to the extent conceded, only lends support to a determination that he
exercised discretion and independent judgment” and “customarily and regularly exercised
discretion and judgment as a fleet manager/dispatcher, and was further required to do so,
to the degree necessary for him to appropriately be labeled a bona fide administrative
employee exempted from the overtime regulations”).
Thus, the dispatcher cases, although not particularly clear, suggest that employees
who coordinate and schedule work that is the substantive core of an entity’s business (as
opposed to work that services the business itself) have been found to be exempt only
when they exercise significant discretion or management responsibilities. But exercising
discretion and independent judgment alone is not enough to render an employee exempt
on account of administrative capacity – the regulations require that the employee’s
primary duty both involve the exercise discretion and directly relate to general business
operations. See 29 C.F.R. § 541.200(a). Many of the cases relied upon by NSP seem to
conflate the two requirements or treat them as alternatives: the district court in Rock even
recognized as much: “[s]everal courts have found dispatchers to be exempt under the
administrative exemption, but they have done so only after a finding that the employee
exercised considerable discretion and supervisory authority.” Rock, 678 F. Supp. 2d at
1270. Leaving the amount of discretion for analysis under the third requirement and
instead focusing on the type of work and the extent to which it relates to management or
general business operations, the dispatcher cases generally suggest that coordination and
- 27 -
scheduling of production work is not directly related to the management or general
business operation of the employer.
Although this is not dispositive, the Court finds it instructive here. Grage does not
directly provide the service or product that is NSP’s primary production output, but
rather her work is entirely composed of facilitating that output, in a way that is very close
to and intertwined with the final product. Although her role in doing so mostly involves
office work and involves some activities that, on a larger scale or in different context,
would be exempt – such as scheduling, prioritizing, calling contractors, organizing work
packets, and checking work orders for accuracy – the essence of her work is to be part of
the production of NSP’s business output. This is similar to the plaintiff’s duties in
Alvarez v. Key Transp. Serv. Corp., 541 F. Supp. 2d 1308 (S.D. Fla. 2008), where the
court considered a night dispatch manager for a chauffeur service.
In denying
defendant’s motion for summary judgment, the court concluded that
[d]efendant’s attempt to characterize Alvarez as an “administrative”
employee would render the phrase “directly related to the general business
operations of an employer” so broad that almost any job could be
shoehorned into it. . . . [T]he Court does not see how a dispatcher could
reasonabl[y] fall within any of the listed categories [under § 541.201(b)].
As the Night Dispatch Manager, Alvarez performed duties closer to
“working on a manufacturing production line,” or “selling a product in a
. . . service establishment” because he was working toward fulfilling a
customer’s need for a service . . . .
Id. at 1313; see also Smith v. Frac Tech Servs., LLC, Civ. No. 09-679, 2011 WL 96868,
at *22-23 (E.D. Ark. Jan. 11, 2011) (field engineers, who “were responsible for making
sure that the correct chemicals, sand, and water were onsite at the customer’s well, and
[who] went to each site and participated in the fracturing process,” such that their job was
- 28 -
described as “making sure that the customer’s needs were met before, during, and after
the job” were “directly involved in producing the good or service that is Frac Tech’s
primary output – well stimulation by means of hydraulic fracturing – rather than general
administrative work applicable to the running of any business”); Iaria, 2009 WL 222373,
at *4 (“In this case, plaintiffs’ duties relate more directly to the service and product that
Metro Fuel provides – the delivery of fuel for heating – than they do to servicing the
business. . . .
Here, plaintiffs’ daily tasks ensured that defendant’s product (fuel) was
delivered timely and efficiently. . . .
The tasks performed by plaintiffs were not
administrative tasks of the type every business must undertake, such as those performed
by accountants, personnel officers, and computer programmers.”).
Thus, to the extent that Grage does work that is administrative in form, it is
ultimately not related enough to NSP’s management or general business operations to
satisfy the “directly related” standard that the Department of Labor intentionally retained
in the regulation. NSP points to what it argues are the “broad business implications” of
Grage’s work: the efficient and productive use of equipment, materials, and personnel in
a way that affects budgeting, cost-compliance, customer relations, crew morale, and
regulatory compliance. (Mem. in Opp’n to Pl.’s Mot. for Partial Summ. J. at 10-11,
Nov. 20, 2013, Docket No. 74.)2 NSP also argues that Grage’s duties relate directly to
“management” because she directs the work of the twenty-six-person field crew out of
the Chestnut Service Center, repeatedly highlighting her deposition statement that she
“get[s] to tell 26 guys what they have to do today.” (Grage Dep. 121.)
2
But these
With the exception of depositions, all page numbers refer to the CMECF pagination.
- 29 -
observations do not bring her work into direct relation to the management or general
business operations of NSP. First, her contribution to the company’s success on various
fronts does not render her activities directly related to the general business operations or
management – ostensibly, all employees in a given enterprise contribute to the success of
an enterprise. Under NSP’s theory, such reasoning could extend the administrative
exemption to any employee who contributed – in small or large part – to the success of an
enterprise. This runs counter to the directive that the exemptions are to be construed
narrowly. See Spinden, 94 F.3d at 426 (exemptions are to be “narrowly construed in
order to further Congress’ goal of providing broad federal employment protection”
(internal quotations omitted)). Second, NSP overstates Grage’s role in “managing” the
work crews – she assigns work to them, but does not decide what work should be done,
does not provide input on disciplinary decisions, does not do performance reviews, and
does not make recommendations for hiring, firing, advancement, or promotion. Her
relationship with the work crews does not closely enough resemble “management” to
bring her work within the scope of 29 C.F.R. § 541.200(a)(2).3
The Court concludes that Grage’s work is not “directly related” to NSP’s
“management or general business operations” as contemplated by 29 C.F.R. § 541.201.
It therefore need not reach the third requirement: whether there are genuine disputes of
3
Even if it did, the term “management” in 29 C.F.R. § 541.200(a)(2) is likely best
understood as referring to the management of the employer as an entity, not the management of
other employees, which is better captured in the executive exemption. See 29 C.F.R.
§ 541.100(a) (including in requirements for executive exemption that the employee “customarily
and regularly directs the work of two or more other employees” and “has the authority to hire or
fire other employees or whose suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other employees are given particular
weight.”).
- 30 -
material fact upon which a reasonable jury could find that Grage’s primary duty does not
involve the exercise of discretion or independent judgment, because, in order for an
employee to qualify for the administrative exemption, the employee must both do work
that directly relates to the management or general business operations of the employer
and exercise discretion or independent judgment on matters of significance. See Bratt v.
Cnty. of Los Angeles, 912 F.2d 1066, 1071 (9th Cir. 1990) (“None of the Employees,
therefore, satisfies the first requirement of the regulation’s administrative employee
exception, and we need not address whether the Employees satisfy the remaining
requirements.” (applying an older version of the test in which the first requirement was
substantively the same as the second requirement here and included an exercise of
discretion requirement)).
IV.
COMBINATION EXEMPTION
NSP argues in the alternative that Grage qualifies for the “combination
exemption” under the FLSA, which exempts “[e]mployees who perform a combination of
exempt duties as set forth in the regulations in this part for executive, administrative,
professional, outside sales and computer employees,” such that “work that is exempt
under one section of this part will not defeat the exemption under any other section.” 29
C.F.R. § 541.708 (listing as an example that “an employee whose primary duty involves a
combination of exempt administrative and exempt executive work may qualify for
exemption”).
NSP argues that this exemption applies because, in addition to her
- 31 -
administrative work, Grage performs several types of work that would entitle her to an
“executive” exemption under the FLSA. The executive exemption covers employees:
(1) Compensated on a salary basis . . .;
(2) Whose primary duty is management of the enterprise in which the
employee is employed or of a customarily recognized department or
subdivision thereof;
(3) Who customarily and regularly directs the work of two or more other
employees; and
(4) Who has the authority to hire or fire other employees or whose
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).
The Court concludes that summary judgment for NSP on the basis of this
exemption is not appropriate. At best, Grage performs only one of the duties required for
the executive exemption – that she regularly directs the work of the crew members. But
there is little dispute that she does not manage or discipline the crew members, and the
record indicates that she does not have authority, or even influence, over hiring and firing
decisions. Thus, in light of the sparse showing in support of the executive exemption and
the Court’s determination that she does not perform work exempt under the
administrative exemption, the Court declines to grant NSP’s motion for summary
judgment on this ground.
V.
LIQUIDATED DAMAGES
Grage argues that, if the Court awards summary judgment in her favor, it should
also award her liquidated damages. An employer who violates the overtime provisions of
- 32 -
the FLSA is ordinarily liable for both the unpaid overtime compensation and an equal
amount as liquidated damages.
29 U.S.C. § 216(b).
Liquidated damages are not
punitive, but rather account for the fact that actual damages, such as costs to the
employee arising from the delay in receiving wages, may be difficult to calculate and
prove. Hultgren v. Cnty. of Lancaster, 913 F.2d 498, 508-09 (8th Cir. 1990). While
liquidated damages are the norm, there is a limited, statutory exception for employers
who acted in good faith with “reasonable grounds for believing” that they complied with
the FLSA. 29 U.S.C. § 260. To demonstrate good faith, employers must show an honest
effort to discover and follow the FLSA’s requirements. Chao v. Barbeque Ventures,
LLC, 547 F.3d 938, 942 (8th Cir. 2008).
Grage argues that NSP has not met its burden of demonstrating good faith because
“Defendant’s corporate designee testified the Supervisor I position has not been audited
or reviewed for compliance with the FLSA since its creation in 2007.” (Mem. in Supp.
of Pl.’s Mot. for Summ. J. at 20, Oct. 31, 2013, Docket No. 65.) NSP argues that when it
created the Supervisor I position, it did so by adding responsibilities to a prior position,
which it also understood to be exempt, through a thorough collaborative effort of over a
dozen people, which demonstrates its good faith. (Mem. in Opp’n to Pl.’s Mot. for
Summ. J. at 24.) The Court concludes that, taking these pieces of evidence in a light
most favorable to NSP, a reasonable jury could conclude that NSP acted in good faith in
treating Grage’s Supervisor I position as exempt. The Court will therefore deny Grage’s
motion for summary judgment on the issue of liquidated damages.
- 33 -
The Court will schedule a telephone status conference to determine whether the
case is ready to be placed on a trial calendar.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Defendant’s motion for summary judgment [Docket No. 57] is DENIED.
2.
Plaintiff’s motion for partial summary judgment [Docket No. 62] is
GRANTED in part and DENIED in part as follows:
a.
The motion is GRANTED with regard to whether Grage is exempt
from the overtime requirement of the FLSA; and
b.
The motion is DENIED with regard to whether Grage is entitled to
liquidated damages.
DATED: September 16, 2014
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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