Fairchild v. All American Check Cashing, Inc.

Filing 115

MEMORANDUM OPINION AND ORDER granting in part and denying in part 61 Motion to Strike. Signed by District Judge Keith Starrett on 7/16/2014 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
AMBREA FAIRCHILD
V.

PLAINTIFF
CIVIL ACTION NO. 2:13-CV-92-KS-MTP

ALL-AMERICAN CHECK CASHING, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants in part and denies in part
Plaintiff’s Motion to Strike [61] Defendant’s designation of Brian T. Farrington.
I. BACKGROUND
This case involves claims under Title VII1 and the Fair Labor Standards Act
(“FLSA”).2 Plaintiff was the manager of a branch of Defendant All-American Check
Cashing, Inc. in Hattiesburg, Mississippi. She claims that Defendant routinely
required her to work more than forty hours per week without overtime compensation
as required by the FLSA. She also claims that Defendant fired her because she was
pregnant, violating Title VII.
Defendant designated Brian T. Farrington as an expert in wage and hour
matters, and Plaintiff filed a motion to strike [61] the designation. The motion is ripe
for review.
II. DISCUSSION

1

42 U.S.C. § 2000e, et seq.

2

29 U.S.C. § 201, et seq.

Plaintiff argues that Farrington’s testimony constitutes inadmissible legal
opinions concerning the application of the FLSA’s administrative exemption. The FLSA
requires employers to pay overtime compensation to employees who work more than
forty hours a week. 29 U.S.C. § 207(a)(1). But it “excludes from the requirement those
employees working in [a] bona fide . . . administrative capacit[y].” Cheatham v. Allstate
Ins. Co., 465 F.3d 578, 584 (5th Cir. 2006); see also 29 U.S.C. § 213(a)(1). The Secretary
of Labor promulgated regulations which define the contours of the “administrative
capacity” exemption. 28 U.S.C. § 213(a)(1); see e.g. 29 C.F.R. §§ 541.200-541.204,
541.700-541.704.
Different types of findings are required when determining an employee’s
exemption status under the regulations. The Court “first asserts findings of historical
fact, which include such findings as whether the employer controlled the number of
hours the employee worked.” Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203 F.3d
326, 331 (5th Cir. 2000); see also Mando v. C.A.L. Realty Group, Inc., No. 1:06-CV-698LG-RHW, 2007 U.S. Dist. LEXIS 42361, at *4 (S.D. Miss. June 11, 2007). Second, the
Court “must make inferences from the facts in applying the regulations and
interpretations . . . .” Lott, 203 F.3d at 331. “Lastly, the district court must make the
ultimate determination of whether an employee was exempt.” Id.; see also Cheatham,
465 F.3d at 584. While the ultimate question of whether the employee is exempt from
the FLSA’s overtime compensation provisions is a question of law, subsidiary questions
regarding her employment history and factual inferences therefrom are questions of
fact. Cheatham, 465 F.3d at 584-86; Tyler v. Union Oil Co., 304 F.3d 379, 402-03 (5th
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Cir. 2002); Lott, 203 F.3d at 330-31; Smith v. Jackson, 954 F.2d 296, 298 (5th Cir.
1992); Mando, 2007 U.S. Dist. LEXIS 42361 at *4.3
According to Farrington’s expert report [72-3], he was retained to “provide a
professional opinion on whether Plaintiff’s work contained some of the elements of the
administrative exemption as applied by the U.S. Department of Labor, Wage and Hour
Division.” He provided the following opinion: “Plaintiff’s job duties met certain of the
elements of the administrative exemption, as enforced by the USDOL/WH. Her work
was administrative in nature, and some of her work involved the exercise of discretion
and independent judgment with regard to matters of significance.” In other words,
Farrington intends to express his opinion that Plaintiff is exempt from the FLSA’s
overtime compensation provisions under the administrative exemption – a question of
law to be determined by the Court.
Rule 702 provides that an expert witness may provide opinion testimony if “the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue . . . .” FED. R. EVID. 702(a).
Proposed expert testimony which offers a legal opinion is inadmissible, Estate of Sowell

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See also Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S. Ct.
1527, 89 L. Ed. 2d 739 (1986) (question of how employee spent time was one of fact,
while question of whether the activity was excluded from FLSA overtime coverage
was one of law); Henry v. Quicken Loans, Inc., 698 F.3d 897, 901 (6th Cir. 2012) (the
jury resolves disputes of underlying facts, credibility of witnesses, while the court
makes the ultimate legal determination as to the administrative exemption); Jarrett
v. ERC Props., 211 F.3d 1078, 1081 (8th Cir. 2000) (“Disputes regarding the nature
of an employee’s duties are questions of fact, but the ultimate question whether an
employee is exempt under the FLSA is an issue of law.”).
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v. United States, 198 F.3d 169, 171 (5th Cir. 1999), as such testimony does not “help
the trier of fact to understand the evidence or determine a fact in issue . . . .” FED. R.
EVID. 702(a). “[I]t is for the court to determine if a set of facts gives rise to liability; it
is for the jury to determine if those facts exist.” Dade County v. Alvarez, 124 F.3d 1380,
1383 (11th Cir. 1997) (FLSA case involving question of whether activity was “work” as
defined in the statute). Farrington’s proposed opinion testimony concerns one of the
ultimate legal determinations in the case, and it is not admissible.
III. CONCLUSION
For all the reasons stated above, the Court grants Plaintiff’s Motion to Strike
[61] Farrington’s designation insofar as he intends to express an opinion concerning
the application of the labor regulations to Plaintiff’s job duties and whether those
duties fall within the administrative exemption. The Court denies the Motion to
Strike [61] insofar as Farrington’s testimony does not run afoul of this opinion or
otherwise address the legal question of whether Plaintiff’s job duties fell within the
scope of the administrative exemption. The Court declines, however, to sift through
Farrington’s report and determine which statements, if any, are admissible and which
are not.
SO ORDERED AND ADJUDGED this 16th day of July, 2014.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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