Pulver v. Dolgencorp, Inc. et al
Filing
32
MEMORANDUM-DECISION and ORDER - That Dollar General's 27 Motion for Summary Judgment is DENIED. Signed by Judge Gary L. Sharpe on 5/6/2011. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
JANET ANDERSON,
Plaintiff,
1:09-cv-360
(GLS\RFT)
v.
DOLGENCORP OF NEW YORK, INC.,
Defendant.
_________________________________
BETTY PULVER,
Plaintiff,
1:09-cv-363
(GLS\RFT)
v.
DOLGENCORP OF NEW YORK, INC.,
Defendant.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Beasley, Allen Law Firm
P.O. Box 4160
218 Commerce Street
Montgomery, AL 36103-4160
FOR THE DEFENDANT:
Hinman, Howard Law Firm
P.O. Box 5250
80 Exchange Street
700 Security Mutual Building
Binghamton, NY 13902-5250
ROMAN A. SHAUL, ESQ.
ELIZABETH A. CORDELLO,
ESQ.
JAMES S. GLEASON, ESQ.
DAWN J. LANOUETTE, ESQ.
Morgan, Lewis Law Firm
1717 Main Street, Suite 3200
Dallas, TX 75201
JOEL S. ALLEN, ESQ.
RONALD. E. MANTHEY, ESQ.
Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
In this consolidated action, plaintiffs Janet Anderson and Betty Pulver
allege that their former employer, defendant Dolgencorp of New York, Inc.
(Dollar General) deprived them of lawful overtime wages in violation of the
Fair Labor Standards Act (FLSA).1 (See No. 09-cv-360, 2d Am. Compl.,
Dkt. No. 4; No. 09-cv-363, 2d Am. Compl., Dkt. No. 4.) Pending are Dollar
General’s motions for summary judgment as against each plaintiff and to
strike certain evidence offered by plaintiffs in opposition to the summary
judgment motions. (See No. 09-cv-360, Dkt. Nos. 38, 50; No. 09-cv-363,
Dkt. No. 27.) For the reasons that follow, the motions are denied.
1
29 U.S.C. § 201, et seq.
2
II. Background2
A.
Dollar General
2
Unless otherwise noted, the facts are derived directly from Dollar
General’s various Statements of Material Facts (SMF) and plaintiffs’
responses thereto. (See No. 09-cv-360, Def. SMF (Anderson), Dkt. No.
38:1; No. 09-cv-360, Def. Common SMF, Dkt. No. 39; No. 09-cv-360, Pls.
Common SMF Resp., Dkt. No. 44:1; No. 09-cv-360, Anderson SMF
Response, Dkt. No. 46:1; No. 09-cv-363, Pulver SMF Resp., Dkt. No.
27:1; No. 09-cv-363, Def SMF (Pulver), Dkt. No. 29:1.) In that regard, the
court notes that plaintiffs have failed in most instances to specifically admit
or deny Dollar General’s factual assertions as required by Local Rule
7.1(a)(3), instead choosing—in a somewhat boilerplate fashion—to
“object” to the “implications” of those assertions or to assert additional
facts that do not directly or necessarily contradict them. (See generally,
e.g., Anderson SMF Resp., Dkt. No. 46:1; see also N.D.N.Y. L.R. 7.1(a)(3)
(requiring a “non-movant’s response [to] mirror the movant’s Statement of
Material Facts by admitting and/or denying each of the movant’s
assertions in matching numbered paragraphs”(emphasis added)).) As
plaintiffs’ counsel is likely aware, however, the purpose of the Rule
7.1(a)(3) response requirement is not to highlight and broadly contradict
intended “implications” of a movant’s factual assertions, or to imply the
inaccuracy of those assertions; it is to aid the court in isolating the relevant
facts so that it may discern whether and to what extent disputes relating to
those facts exist. Thus, a non-movant’s failure to tailor her responsive
SMFs in accordance with the Local Rules significantly impedes the court’s
ability to effectively and efficiently resolve these critical inquiries.
Accordingly, to the extent plaintiffs have failed to properly respond to
Dollar General’s statements of fact, the court will, where it deems
appropriate, treat those statements as admitted for purposes of this
motion. Id. (“The Court shall deem admitted any facts set forth in the
Statement of Material Facts that the opposing party does not specifically
controvert.”).
3
Defendant Dollar General is a retailer of basic consumable goods,
such as cleaning supplies, health and beauty aids, foods and snacks,
housewares, toys, and basic apparel. (See No. 09-cv-360, Def. Common
SMF ¶ 1, Dkt. No. 39.) As of 2005, Dollar General operated approximately
7,500 stand-alone Dollar General Stores in thirty states, with an average
sales volume of over $1 million per store. (See id. at ¶ 2.)
Each Dollar General store is staffed by a Store Manager, an Assistant
Manager (ASM), a Lead Clerk, and multiple store clerks. (See id. at ¶ 3.)
Of these employees, Store Managers occupy the highest level of
supervisory authority and are the only employees paid on a salaried basis.
(See id.) Each Store Manager reports to a District Manager (DM), each of
whom oversees from fifteen to twenty-five stores. (See id. at ¶ 4.)
During the relevant times, Dollar General described a Store
Manager’s general responsibilities as “the management of all employees in
the effective planning and implementation of all store processes, including
ordering, receiving, stocking, presentation, selling, staffing and support.”
(No. 09-cv-360, Shaul Aff., Ex. 11, Store Manager Job Description, Dkt.
No. 45:11 (filed under seal).) Encompassed within these broadly-defined
responsibilities are the specific, “essential” duties to:
4
•
Recruit, select and retain qualified employees according
to federal and state labor laws and company policies;
ensure store is properly staffed;
•
Provide proper training for employees; conduct
performance evaluations; identify gaps for appropriate
solutions and/or counseling, up to and including
termination;
•
Make recommendations regarding employee pay rate and
advancement;
•
Communicate performance, conduct and safety
expectations regularly; coordinate meetings and events to
encourage safety, security and policies;
•
Ensure that the store is appropriately staffed and
effectively opened and closed each day;
•
Evaluate operating statements to identify business trends
(including sales, profitability, and turn), expense control
opportunities, potential shrink, and errors;
•
Ensure that all merchandise is presented according to
established practices; utilize merchandise fixtures
properly including presentation, product pricing and
signage;
•
Maintain accurate inventory levels by controlling
damages, markdowns, scanning, paperwork, and facility
controls;
•
Ensure the financial integrity of the store through strict
cashier accountability, key control, and adherence to
stated company security practices and cash control
procedures;
5
•
Provide superior customer service leadership;
•
Maintain a clean, well-organized store; facilitate a safe
and secure working and shopping environment;
•
Ensure that store is adequately equipped with tools necessary
to perform required tasks; and
•
Complete all paperwork and documentation according to
guidelines and deadlines.
(Id.)
The job description further outlines certain “Working Conditions and
Physical Requirements” associated with the Store Manager position. (See
id.) These include: “[f]requent walking and standing”; “[f]requent bending,
stooping and kneeling to run check out station, stock merchandise, and
unload trucks”; “occasional climbing”; and “frequent and proper lifting of up
to 40 pounds[, and] occasional lifting of up to 65 pounds.” (Id.)
With respect to compensation, in addition to their weekly salaries,
Store Managers are generally eligible for certain bonuses, such as annual
“Teamshare” bonuses and quarterly “in stock” bonuses. (See No. 09-cv360, Def. Common SMF ¶ 13, Dkt. No. 39.) Teamshare bonuses are tied
to the financial performance of the Store Manager’s individual store and the
manager’s individual performance as a manager. (See id.) To the extent
6
that Assistant Managers have also been eligible for Teamshare bonuses, it
appears that their eligibility never exceeded 30% of what a Store Manager
could earn. (See id. at ¶ 14.) As to in-stock bonuses, they were awarded
in the amount of $250 per quarter if certain in-stock goals were met, and
only to Store Managers. (See id. at ¶¶ 13, 14.)
In assessing the financial performance of a Store Manager’s
individual store, Dollar General considers whether and to what extent the
store is meeting its quarterly and annual sales goals, minimizing inventory
shrink and controllable expense, and maximizing profit. (See No. 09-cv360, Allen Aff., Ex. 3, Store Manager Performance Evaluation Form, Dkt.
No. 41:3 (filed under seal). Relatedly, in evaluating a Store Manger’s
managerial and leadership skills, Dollar General examines the manager’s
performance in seven focus areas: sales volume, controllable expense,
inventory shrink, merchandising/in stock, training and development,
customer satisfaction, and safety awareness. (See id.)
B.
Janet Anderson
In February 2002, plaintiff Janet Anderson was hired by Dollar
General as an ASM for Store No. 8576 in Burnt Hills, New York. (See No.
09-cv-360, Def. SMF (Anderson) ¶ 1, Dkt. No. 38:1.) In April 2002,
7
Anderson was promoted to the position of Store Manager, which she held
until her resignation in November 2002. (See id. at ¶ 2.) According to
Anderson, other than the on-the-job training she received as an ASM, she
did not receive any training when she was promoted to Store Manager.
(See No. 09-cv-360, Anderson SMF Resp., Additional Facts ¶ 20, Dkt. No.
46:1.)
As a Store Manager, Anderson was paid a fixed weekly salary of
$425.00, was eligible for the performance-based bonuses discussed
above, and worked an average of fifty hours per week. (See No. 09-cv360, Def. SMF (Anderson) ¶¶ 6, 8, 25, Dkt. No. 38:1.) According to
Anderson, she understood when she took the Store Manager position that
she would be working more than forty hours per week, and that her salary
was to compensate her for all hours worked since she would not be paid
for overtime. (See id. at ¶¶ 6, 7; No. 09-cv-360, Anderson SMF Resp. ¶ 7,
Dkt. No. 46:1.) During Anderson’s tenure as Store Manager, the next
highest paid employee, an ASM, earned $7.00 per hour and worked an
average of thirty-one hours per week. (See id.)
With respect to her job functions, Anderson acknowledged in
deposition that she performed all of the duties outlined in the Store
8
Manager job description, and agreed that the description provides an
accurate general summary of her position as Store Manager. (See No. 09cv-360, Def. SMF (Anderson) ¶ 15, Dkt. No. 38:1.) In line with that
testimony, Anderson explained that she was responsible for supervising
the other store employees, including an ASM, a “Third-Key” or Lead Clerk,
and the other store clerks, and for performing other managerial duties.
(See id. at ¶ 3.)
As part of her supervisory duties, Anderson testified that she trained
employees on store policy and other related issues; directed, supervised,
and evaluated employees’ work; coached, disciplined, and counseled
employees where necessary; recommended employee pay raises and
promotions to her DM (recommendations that were always accepted); and
scheduled employees’ hours. (See id. at ¶¶ 14, 16.) With respect to
scheduling, Anderson managed approximately 168 to 212 labor hours per
week, meaning that she allocated Dollar General’s labor hour allotment
amongst the employees she supervised. (See id. at ¶ 4.)
In addition to these supervisory tasks, Anderson also performed other
duties, including interviewing and hiring employees; monitoring and
evaluating weekly sales reports and store operating reports; ensuring that
9
cash registers “balanced”; completing daily paperwork, such as payroll and
bank deposits; managing inventory levels; ensuring that merchandise was
properly staged and stocked, largely in accordance with Dollar General
“Plan-O-Grams”3; leading team meetings; and ensuring that the store was
properly open and closed. (See id. at ¶¶ 14, 16.)
Anderson also performed non-managerial tasks in her role as Store
Manager. Specifically, she testified to running the cash register, stocking
shelves, facing products on the shelves, helping unload delivery trucks,
and cleaning the store.4 (See No. 09-cv-360, Anderson SMF Resp.,
Additional Facts ¶¶ 4, 6, 7, Dkt. No. 46:1.) With respect to the division of
her time, Anderson testified to spending at least half of her time on
managerial duties. (See No. 09-cv-360, Def. SMF (Anderson) ¶ 26, Dkt.
No. 38:1.) Anderson agreed, however, that when she was performing non-
3
“Plan-O-Grams” are store diagrams that direct the placement of
products in a store. (See No. 09-cv-360, Def. SMF (Anderson) ¶ 23, Dkt.
No. 38:1.) According to Anderson, however, because her store did not
comport with the standard Plan-O-Gram layout, she relied largely on her
own discretion to merchandise approximately fifteen of the store shelves.
(See id.)
4
In addition to her routine duties, Anderson was also sent to two
other Dollar General stores for two days each to set up the stores by
setting up shelving and stocking merchandise. (See No. 09-cv-360,
Anderson SMF Resp., Additional Facts ¶ 19, Dkt. No. 46:1.)
10
managerial tasks, she would continue to monitor and manage the operation
of the store. (See No. 09-cv-360, Def. SMF (Anderson) ¶ 27, Dkt. No.
38:1.) Anderson further testified that if Dollar General would have allotted
larger labor hour budgets, she would have been able to focus more time on
her managerial duties and less on non-managerial tasks. (See No. 09-cv360, Anderson Dep. at 237:11-16, Dkt. No. 38:4.) According to Anderson,
the labor budget was allocated such that only two employees, including
herself, could typically be working at one time. (See No. 09-cv-360,
Anderson SMF Resp., Additional Facts ¶¶ 5-7, Dkt. No. 46:1.) Often, then,
as Anderson testified, she would stock the shelves, unload a delivery truck,
or clean the store while the only other employee working would run the
cash register. (See id.)
In performing her duties as Store Manager, managerial or otherwise,
Anderson was expected to act in accordance with Dollar General’s
standard policies and procedures. (See No. 09-cv-360, Def. SMF
(Anderson) ¶ 19, Dkt. No. 38:1.) Those policies and procedures, which
were contained in the company’s Standard Operating Procedures Manual
(SOP), provided direction in how to perform certain store operations. (See
id.) According to Anderson, however, while the SOP provided general
11
guidance and direction, it did not cover every issue that would arise in the
store on a daily basis. (See id.)
During her tenure as Store Manager, Anderson reported to DM Bob
Seaman. (See id. at ¶ 12.) Mr. Seaman, unlike Anderson, did not have an
office in or a key to Anderson’s store, but would visit the store on a periodic
basis. (See id.) According to Anderson, Mr. Seaman visited her store
approximately once every five to six weeks. (See id.) During those visits,
which typically lasted one hour, Mr. Seaman would walk through the store
with Anderson and provide her with ideas and recommendations for
improving the store. (See id.) Anderson testified that implementation of
these ideas and recommendations was not mandatory, explaining that she
used some of Mr. Seaman’s suggestions but not others. (See id.) Apart
from these store visits, it appears from Anderson’s testimony that her
communications with Mr. Seaman were relatively infrequent. According to
Anderson, she spoke with Mr. Seaman on the telephone approximately six
times—about once per month—and received a voice mail message from
him every four or five weeks. (See id.) And with respect to those voice
mail messages, Anderson testified that they were typically “district wide”
and not specific to Anderson or her store. (See id.) Overall, despite Mr.
12
Seaman’s oversight, Anderson felt that she was “in charge” of her store,
and further testified that Mr. Seaman did not interfere with the performance
of her managerial duties. (See id. at ¶¶ 13, 17. )
Ultimately, as noted above, Anderson resigned from her employment
with Dollar General in November 2002. (See id. at ¶ 2.)
C.
Betty Pulver
Plaintiff Betty Pulver was hired as a Store Manager for Dollar General
in April 2002. (See No. 09-cv-363, Def SMF (Pulver) ¶ 1, Dkt. No. 27:1.)
At the time of her hiring, Pulver understood that she would be responsible
for opening and managing a new store in Hudson, New York. (See id.; No.
09-cv-363, Pulver Dep. at 45-46, Dkt. No. 27:4.) Prior to opening the
Hudson store, however, and for approximately one month after being hired,
Pulver worked at the Broadway store in Schenectady, New York,
apparently for training purposes. (See No. 09-cv-363, Def SMF (Pulver) ¶
2, Dkt. No. 29:1.) Pulver testified, however, that while at the Broadway
Store, the only training she received related to loading and unloading
delivery trucks and stocking shelves. (See No. 09-cv-363, Pulver SMF
Resp., Additional Facts ¶ 10, Dkt. No. 29:1.) According to Pulver, she
received no instruction with respect to following Plan-O-Grams or
13
completing paperwork, and was given no experience running a cash
register, making a schedule, or opening or closing the store. (See id.)
Pulver testified that the Store Manager who was supposed to train her went
on vacation a week after she started, leaving no training instructions with
the ASM who was left in charge of the store. (See No. 09-cv-363, Pulver
Dep. at 50-51, Dkt. No. 27:4.)
In May 2002, with the opening of the Hudson store behind schedule,
Pulver was transferred to open a different store, the State Street store.
(See No. 09-cv-363, Def SMF (Pulver) ¶ 2, Dkt. No. 27:1.) According to
Pulver, it wasn’t until this transfer that she received training on completing
paperwork, scheduling, Plan-O-Grams, etc. (See No. 09-cv-363, Pulver
Dep. at 53-54, Dkt. No. 27:4.) Anderson testified that this training, which
was conducted over the telephone, occurred over the course of one month,
but did not specify the frequency or duration of each session. (See id.)
Ultimately, in July 2002, Pulver was transferred to open the Hudson store,
where she remained as Store Manager until her resignation in July 2003.
(See No. 09-cv-363, Def SMF (Pulver) ¶ 2, Dkt. No. 27:1.)
In “opening” the Hudson and State Street stores, Pulver
supervised crews of twenty-five employees hired on a temporary basis to
14
assist in setting up the stores. (See id. at ¶ 3.) Once the Hudson store
was set up and ready to be opened, Pulver made recommendations as to
which of the temporary employees should be hired on a permanent basis to
staff the store’s ASM and “Third Key Clerk” positions. (See id.) After the
necessary hiring decisions were made and the Hudson Store was opened,
Pulver began performing the duties and responsibilities associated with the
day-to-day operations of the store. (See, e.g., id. at ¶¶ 4, 5, 12.)
Like Anderson, Pulver agreed in deposition that the duties she
regularly performed as Store Manager matched those recited in Dollar
General’s description of the Store Manager position. (See id. at ¶ 14.)
Those duties, as with Anderson, included managing the Hudson store’s
labor budget of 160 to 240 labor hours per week; directing and supervising
the work of the ASM, Third Key Clerk, and store clerks Pulver supervised;
ordering store merchandise; ensuring that merchandise was properly
staged and stocked; interviewing and hiring employees; scheduling
employees; ensuring the store was appropriately staffed and properly
opened and closed each day; ensuring the safety and security of the store
and employees; ensuring that all store paperwork was properly completed
and forwarded to the Dollar General corporate office; recommending
15
employees for promotion (recommendations that were always accepted);
implementing Dollar General directives regarding, among other things, new
store policies and procedures, product recalls, and compliance with state
and local laws; and training, disciplining, counseling, and, under certain
circumstances, firing employees.5 (See id. at ¶¶ 4, 5, 12, 13, 15, 21.)
In addition to these and similar duties, Pulver testified to also
performing non-managerial duties, such as stocking shelves, running the
cash register, cleaning the store, and unloading delivery trucks. (See No.
09-cv-363, Pulver SMF Resp., Additional Facts ¶ 2, Dkt. No. 29:1.)
Like Anderson, Pulver testified to spending at least half of her time on
managerial duties. (See No. 09-cv-363, Def SMF (Pulver) ¶ 26, Dkt. No.
27:1.) She further agreed in deposition that when she was performing nonmanagerial tasks, she was simultaneously managing the store, evaluating
employees, and ensuring proper customer service. (See id.) And like
5
Pulver had the authority to terminate employees for certain types of
misconduct, such as failing to report to work or cash register shortages,
without District Manager approval. (See No. 09-cv-363, Def SMF (Pulver)
¶ 13, Dkt. No. 29:1.) In other situations, however, such as those involving
employee performance issues, Pulver was required to seek her District
Manager’s approval before she could terminate an employee. (See id.)
According to Pulver, her termination recommendations were always
followed. (See id.)
16
Anderson, Pulver agreed that Dollar General’s limited labor hour budget
required her to spend more time on non-managerial tasks than she
otherwise would have. (See No. 09-cv-363, Pulver Dep. at 287:12-16, Dkt.
No. 27:4.)
Also like Anderson, Pulver was required to comply with Dollar
General SOP, and to follow Dollar General Plan-O-Grams in
merchandising her store. (See id. at ¶¶ 22, 23.) But also similar to
Anderson, Pulver testified that the SOP did not address every situation that
could arise in the store on a daily basis, requiring her to exercise discretion
in those situations. (See id. at ¶ 22.) As to Plan-O-Grams, Pulver testified
that because her store did not always comport with the Plan-O-Gram
layout, she would exercise discretion in deciding what products to place on
approximately ten to twenty percent of the store shelves. (See id. at ¶ 23.)
As with all Dollar General Store Managers, Pulver reported to a DM.
(See id. at ¶ 10.) Similar to Anderson’s experience in that regard, Pulver’s
DM would visit the Hudson store for between one and two hours to review
store paperwork and discuss employee performance and ways to improve
the store’s overall performance. (See id.) Pulver recalls only five of these
17
visits occurring during her tenure as Store Manager of the Hudson store,
and testified that she rarely spoke to her DM on the telephone and that she
could not recall receiving any voice mail messages from him. (See id.)
Rather, Pulver was responsible for leaving weekly voicemail reports for her
DM regarding her store’s sales performance. (See id.) Like Anderson,
Pulver testified that her DM did not interfere with the performance of her
managerial duties. (See id. at ¶ 16.)
With respect to compensation, Pulver was hired at a salary of
$423.00 per week. (See id. at ¶ 6.) Beginning in July 2002, however, and
continuing until the end of her employment in July 2003, Pulver’s weekly
salary was $480.00. (See id.) Like Anderson, Pulver testified that she
understood when she was hired that this weekly salary was to compensate
her for all hours worked since she would not be paid for overtime. (See id.
at ¶ 7.) Pulver testified to working between sixty and seventy hours per
week as Store Manager of the Hudson store. (See No. 09-cv-363, Pulver
SMF Response, Additional Facts, ¶ 1, Dkt. No. 29:1.) During that time, the
next highest paid employee in the Hudson store, an ASM, earned $7.00
per hour and worked an average of thirty to thirty-five hours per week.
(See No. 09-cv-363, Def SMF (Pulver) ¶ 8, Dkt. No. 27:1.) In Pulver’s view,
18
she was “worth more” than the other store employees because she had
more responsibilities, including hiring, firing, interviewing, scheduling,
assigning, disciplining, and training employees in her store. (See id. at ¶
9.) According to Pulver, she was “in charge” of her store. (See id. at ¶ 11.)
D.
Procedural Background
On March 21 and 29, 2004, Pulver and Anderson consented to join
numerous other plaintiffs in this collective FLSA action against Dollar
General, alleging that Dollar General improperly classified them as exempt
from the FLSA’s overtime compensation requirement. (See No. 09-cv-363,
Ex. B, Pulver Consent, Dkt. No. 27:11; No. 09-cv-360, Ex. B, Anderson
Consent, Dkt. No. 38:10; No. 09-cv-363, 2d Am. Compl., Dkt. No. 4; No.
09-cv-360, 2d Am. Compl., Dkt. No. 4.) While the collective action was
originally filed in the Northern District of Alabama, Pulver and Anderson’s
claims, among others, were transferred to this court, where jurisdiction and
venue is proper. (See No. 09-cv-360, Dkt. No. 1; No 09-cv-363, Dkt. No.
1.)
On May 11, 2009, Magistrate Judge Randolph F. Treece
consolidated Anderson and Pulver’s cases for discovery, pretrial
19
proceedings, and the filing of common summary judgment briefing. In
addition, Judge Treece designated Anderson’s case, No. 09-cv-360, as the
lead case, directing all filings to be made to that docket. (No. 09-cv-363,
Dkt. No. 25.)
Now pending are Dollar General’s motions for summary judgment as
against each plaintiff and to strike certain evidence offered by plaintiffs in
opposition to the summary judgment motions. (See No. 09-cv-360, Dkt.
Nos. 38, 50; No. 09-cv-363, Dkt. No. 27.)
III. Standard of Review
The standard for the grant of summary judgment is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its previous opinion in Bain v. Town of Argyle,
499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).
IV. Discussion
A.
Motion to Strike
Defendants have moved to strike certain evidence offered by
plaintiffs in opposition to the current motions. (See No. 1:09-cv-360, Dkt.
No. 50.) That evidence includes documents relating to a 2004 Dollar
General Survey, articles about Dollar General, Dollar General Story
20
Newsletters, and numerous other Dollar General internal documents.
Because the court has not relied on this evidence in rendering its decision,
Dollar General’s motion to strike is denied as moot. And to the extent the
motion seeks to preclude this evidence at trial, it is denied as premature.
B.
The FLSA Overtime Compensation Requirement
As noted above, plaintiffs allege that Dollar General deprived them of
overtime wages in violation of FLSA’s overtime compensation requirement.
Dollar General responds that plaintiffs, as Store Managers, were properly
classified as “executive” employees and are therefore exempt from the
FLSA overtime requirement.
Under the FLSA, an employer must pay overtime to employees
working more than forty hours per week. 29 U.S.C. § 207(a)(1). However,
individuals “employed in a bona fide executive ... capacity” are exempt from
the FLSA’ s overtime requirements. 29 U.S.C. § 213(a)(1). Congress has
not defined what it means to be a “bona fide executive employee,” instead
delegating that responsibility to the Department of Labor (DOL), which has
promulgated a body of clarifying regulations. See 29 U.S.C. § 213(a)(7);
21
29 C.F.R. § 541, et seq. Under the pre-2004 regulations,6 whether an
employee qualifies for the executive exemption is a question of law, and is
determined based on “different legal tests according to salary level.”
Donovan v. Burger King Corp., 675 F.2d 516, 518 (2d Cir. 1982) (citation
omitted). Salaried employees earning more than $250 per week, like
plaintiffs here, must satisfy the so-called “short test” to qualify for the
exemption. Id. (citing 29 C.F.R. § 541.1(f)). To satisfy this test, the
employee must be one who regularly directs the work of two or more other
employees, and whose “primary duty” is management. Id.
In this case, there is no dispute that Anderson and Pulver regularly
directed the work of two or more employees. (See No. 09-cv-360, Allen
Aff., Ex. 1, Joint Stipulations of Fact ¶ 4, Dkt. No. 41:1; No. 09-cv-360, Pls.
6
Effective August 23, 2004, the DOL regulations defining the
executive exemption were amended. See 69 Fed. Reg. 22,122 (Apr. 23,
2004). Because the relevant employment of each plaintiff in this case
terminated before the effective date of these amendments, the court
agrees with Dollar General—and plaintiffs do not appear to dispute—that
the pre-2004 regulations should be applied to plaintiffs’ claims. See, e.g.,
Clougher v. Home Depot U.S.A., Inc., 696 F. Supp. 2d 285, 290 n.6
(E.D.N.Y. 2010) (applying pre-2004 regulations to pay periods predating
amendment and amended regulations to pay periods postdating
amendment); Baden-Winterwood v. Life Time Fitness, Inc. 566 F.3d 618,
629 (6th Cir. 2009) (same); Slusser v. Vantage Builders, Inc., 576 F. Supp.
2d 1207, 1215 n.4 (D.N.M. 2008) (“The revised FLSA regulations adopted
... in August of 2004 do not apply retroactively.”).
22
Common Response Br., Dkt. No. 44 (focusing solely on issue of primary
duty).) Rather, the only issue in dispute is whether Anderson and Pulver’s
primary duty as Dollar General Store Managers was management.
Whether an employee’s primary duty is management under the
regulations is determined based on the following five factors:
(1) time spent in the performance of managerial duties; (2)
relative importance of managerial and non-managerial duties;
(3) the frequency with which the employee exercises
discretionary powers; (4) the employee’s relative freedom from
supervision; and (5) the relationship between the employee’s
salary and the wages paid employees doing similar non-exempt
work.
Donovan, 675 F.2d at 521 (citing 29 C.F.R. § 541.103). Thus, the primary
duty inquiry is “necessarily fact-intensive.” Rodriguez v. Farm Stores
Grocery, Inc., 518 F.3d 1259, 1264 (11th Cir. 2008); see 29 C.F.R. §
541.103 (2002) (“[The] determination of whether an employee has
management as his primary duty must be based on all the facts in a
particular case.”). And given this “deeply factual ... inquiry ... courts are
often reluctant to grant summary judgment based on the executive
exemption.” Indergit v. Rite Aid Corp., Nos. 08 Civ. 9361 & 08 Civ. 11364,
2010 WL 1327242, at *7 (S.D.N.Y. Mar. 31, 2010). Further, in examining
the primary duty factors, courts must be mindful that “[the executive]
23
exemption must be narrowly construed,” and that “[t]he employer has the
burden of proving that the employee clearly falls within [its] terms.” Young
v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir. 2009) (citations and
internal quotation marks omitted).
1.
Time Spent on Managerial Activities
As to the first factor, the court must consider the amount of time
Anderson and Pulver spent on managerial duties. “‘In the ordinary case[,]
it may be taken as a good rule of thumb that ... an employee who spends
over 50 percent of [her] time in management would have management as
[her] primary duty.’” Donovan, 675 F.2d. at 520 n.5 (quoting 29 C.F.R. §
541.03). “‘Time alone, however, is not the sole test.’” Id. (quoting 29
C.F.R. § 541.03). Where an employee “‘does not spend over 50 percent of
[her] time in managerial duties, [she] might nevertheless have management
as [her] primary duty if the other pertinent [factors] support such a
conclusion.’” Id. (quoting 29 C.F.R. § 541.03). In general, however, how
an employee spends her time working is a question of fact for a jury. Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986).
Here, Dollar General argues that plaintiffs’ deposition testimony
should “end the legal analysis in its favor” because it conclusively
24
demonstrates that plaintiffs’ spent more than half of their time on
managerial activities. The court disagrees. As to Anderson, Dollar
General points to the following exchange:
Q: .... When you’re just performing management type
duties, would you say that would be half of the time?
A:
At least.
Q: Okay. So over half?
A:
Yes
(No. 09-cv-360, Anderson Dep. at 211:7-12, Dkt. No. 38:4.) However,
when later asked how much time she spent on non-managerial duties,
Anderson responded, “[e]asily half the day,” arguably implying that she
may have spent more than half the day on those duties. (Id. at 242:5-12.)
Following this response, the following exchange ensued:
Q: You’re not changing your testimony that you spent more
time performing managerial duties than you did nonmanagerial duties, are you?
A: No, I don’t think so.
(Id. at 242:22-25.) Pointing to this latter exchange, Dollar General
dismisses Anderson’s contention that she spent “half of her day” on
managerial duties, arguing that Anderson’s “testimony is unequivocal that
she spent more time performing managerial duties than non-managerial
25
duties.” (No. 09-cv-360, Def. Resp. (Anderson), at 4-5; Dkt. No. 52.)
Having reviewed the deposition transcript, and construing all
reasonable inferences in Anderson’s favor, the court is not persuaded that
Anderson’s testimony compels summary judgment. Specifically, given
Anderson’s arguably inconsistent responses, her less than definitive
“clarification” of those responses, and the fact that her testimony was
based upon what appear to be rough estimations of the time she spent on
certain duties, the court is not satisfied that Anderson’s testimony is
conclusively unequivocal.
The same is true with respect to Pulver. As to her testimony, Dollar
General points to the following exchange as unequivocal proof that she
spent more than half her time on managerial activities:
Q: ... So you spent more than 50 percent of your time on
managerial work before you even think about what you
did when you were doing the nonmanagerial work and you
were still supervising and operating the store, but just out
and out managerial work, you spent more than have your
time on it didn’t you?
A: Sitting down and thinking about it all, yes, maybe at the
time I didn’t feel like I was doing, you know. But sitting
down here and talking and thinking about it, yes.
(No. 09-cv-363, Pulver Dep. at 252:24-25, 253:2-10, Dkt. No. 27:4.) As
with Anderson’s testimony, however, additional portions of Pulver’s
26
testimony weigh against characterizing this exchange as an unequivocal
admission. For example, when the “time spent” issue first arose, Pulver
testified as follows:
Q: And if we were trying to get a handle on how much time
you spent on the non-managerial duties, stocking,
cleaning, waiting on customers, running a cash register,
cleaning up, those would be less than half of the time?
A: I wanna say no because a lot of paperwork I took home
and did on my own time. The scheduling did home, on my
own time. I did a lot of stocking and –
Q: I’m not saying you didn’t do a lot of stocking.
A: But I spent as much time – I want to say as much time
doing both. I mean, I was constantly on the floor helping
and stocking.
Q: So you would say about 50/50 doing
management/nonmanagement?
A: Yes.
(Id. at 247:13-25, 248:2-5.) Again, having construed all reasonable
inferences in Pulver’s favor in light of this arguably inconsistent testimony,
the court disagrees with Dollar General that it is entitled to summary
judgment on the time spent issue with respect to Pulver. Accordingly,
Dollar General’s motions for summary judgement as to both Anderson and
Pulver are denied insofar as they seek dismissal based on the time spent
27
issue.
2.
Relative Importance of Managerial and Non-Managerial Duties
This finding, however, does not end the primary duty inquiry. As
noted above, “time alone is not the sole test,” and the court must proceed
to an examination of the second factor—the relative importance of
managerial and non-managerial duties. This factor evaluates which of
plaintiffs’ duties—managerial or non-managerial—were more important to
the employer. See Donovan, 675 F.2d at 521. In gauging this relative
importance, “many courts look to[, among other things,] a manager’s
training, evaluation, and factors affecting eligibility for bonuses and pay
raises.” Mayne-Harrison v. Dolgencorp, Inc., No. 1:09-CV-42, 2010 WL
3717604, at *20 (N.D.W.Va. Sept. 17, 2010) (citing examples). As many
courts have recognized, however, resolving this “difficult and intensive
factual inquiry” is generally “inappropriate at summary judgment.” Indergit,
2010 WL 1327242, at *6 (collecting cases).
Here, in arguing that plaintiffs’ managerial duties were most important
to it, Dollar General points primarily to the Store Manager job description,
which lists the variety of essential job functions that are managerial in
nature; plaintiffs’ compensation structure, which provides for higher weekly
28
earnings and store-performance-based bonuses; and the fact that Store
Managers were evaluated on the basis of management-focused criteria.
In response, plaintiffs point to, among other things, the fact that the
Store Manager job description explicitly contemplates the frequent
performance of manual labor; that plaintiffs’ received very little training in
preparation for their role as Store Manager; that plaintiffs’ weekly pay,
when accounting for the number of hours worked, was comparable to other
employees; and that Dollar General’s restrictive labor budget forced
plaintiffs to perform more non-managerial tasks than they otherwise would
have. Based primarily on these facts, plaintiffs argue that a reasonable jury
could find that their non-managerial duties were more important to Dollar
General than their managerial duties.
Undoubtedly, each of the facts cited by Dollar General offers support
for the conclusion that it placed significant value on the plaintiffs’
performance of managerial duties. Moreover, the court is not persuaded
based on plaintiffs’ submissions that the second factor should conclusively
weigh in their favor. Nonetheless, the court does agree with plaintiffs that
summary judgment on this issue, as in most cases, is not warranted here.
As to training, for example, plaintiffs’ testimony calls into question the
29
nature and amount of critical management training plaintiffs actually
received. As other courts have recognized, the extent to which an
employer trains its managers is relevant in determining the value that
employer places on managerial duties. See, e.g., In re Dollar General
Stores FLSA Litigation, Nos. 5:09-MD-1500-JG, 4:09-CV-57-BR,
4:09-CV-58-BR, 2011 WL 197804, at *10 (E.D.N.C. Jan. 19, 2011) (finding
that plaintiff’s “value to Dollar General [was] shown by the fact that, unlike
the other employees in her store, she went through four weeks of training
before she was assigned her own store”). In this case, Anderson testified
to receiving no additional training when promoted to Store Manager, and
Pulver testified that the brunt of her managerial training occurred over the
phone. When viewed in a light most favorable to plaintiffs, these facts cut
against a finding in favor of Dollar General.
Similarly, with respect to the Store Manager job description, while
Dollar General is correct that it lists numerous managerial functions as
“essential,” the accuracy of that label is at least somewhat lessened in light
of both the limited managerial training plaintiffs appear to have received
and the fact that the job description also explicitly contemplates the
frequent performance of manual labor.
30
And most significantly in the court’s view is the restrictiveness with
which Dollar General appears to allot its labor budget. As noted above,
both plaintiffs testified that Dollar General’s limited labor budget forced
them to spend more time on non-managerial duties than they otherwise
would have. (See No. 09-cv-360, Anderson Dep. at 237:11-16, Dkt. No.
38:4; No. 09-cv-363, Pulver Dep. at 287:12-16, Dkt. No. 27:4.) As
Anderson explained, the labor budget operated such that she could
typically only schedule herself and one additional employee to be in the
store at one time, often requiring her to perform non-managerial tasks such
as stocking and cleaning. (No. 09-cv-360, Anderson Dep. at 236-37, 23840, Dkt. No. 38:4.) Pulver testified to operating under similar constraints,
explaining that “[w]e all complained about not getting enough hours, every
store manager did.” (No. 09-cv-363, Pulver Dep. at 161, Dkt. No. 27:4.)
Pulver further testified that she “wasn’t getting the help she needed” with,
among other things, “[h]iring certain employees for key positions,” which
“put more pressure on [her] to open and close stores everyday, rearrange
[her] schedule to open and leave and then come back and leave.” (Id. at
160-61.) Given this testimony, the court is unable to definitively conclude,
especially in light of other record evidence, that no reasonable jury could
31
find that Dollar General more highly valued plaintiffs’ non-managerial
duties. See, e.g., Pierce v. Dolgencorp, Inc., Nos. 3:09cv079 & 4:09cv097,
2011 WL 398366, at *9 (M.D.Pa. Feb. 3, 2011) (denying summary
judgment and holding that a reasonable jury could plausibly conclude that
plaintiff’s managerial duties were less highly valued where employer limited
employee’s ability to perform managerial tasks by failing to allot more labor
hours); Plaunt v. Dolgencorp, Inc., Nos. 3:09cv079 &1:09cv084, 2010 WL
5158620, at *8 (M.D.Pa. Dec. 14, 2010) (same).
On balance, then, having considered the parties’ competing
arguments and reviewed the record evidence in a light most favorable to
plaintiffs, the court is not convinced that Dollar General has conclusively
demonstrated an entitlement to summary judgement with respect to the
second factor.
3.
Relationship Between Salary and Other Employee Wages7
7
Ordinarily, the court would next turn to an examination of the third
and fourth factors—the frequency with which discretion was exercised and
freedom from supervision. In this case, however, because the court
discerns questions of fact with respect to the fifth factor—the relationship
between plaintiffs’ salary and other employees’ wages—the court need not
do so, for even if the third and fourth factors were found to decidedly
weigh in Dollar General’s favor, Dollar General’s failure to conclusively
establish the fifth, in light of the court’s findings above, weighs heavily
against summary judgment.
32
The fifth factor in the primary duty analysis compares an employee’s
salary to the wages of non-exempt employees performing similar work. In
this case, the parties agree that the relevant comparison is between
plaintiffs and their respective ASMs, each of whom, at all relevant times,
earned $7.00 per hour.
Dollar General argues that this factor weighs conclusively in its favor
because plaintiffs earned significantly more than their ASMs. In drawing
that conclusion, Dollar General compares plaintiffs’ weekly salaries with the
weekly earning potential of their respective ASMs. With respect to
Anderson, for example, Dollar General compares her $425.00 weekly
salary to her ASM’s potential weekly earnings of $280.00, and concludes
that “Anderson’s weekly salary was at least 151% of the weekly earnings of
her next highest paid employee.” (No. 1:09-cv-360, Def. Mem. of Law
(Anderson) at 14, Dkt. No. 38:2.) Dollar General also highlights the fact
that “Anderson was eligible for up to $10,000 per year in bonuses based
upon her store’s performance, where her ASM was eligible only for up to
$3,000 in bonuses.” (Id.)
As to Pulver, Dollar General relies on the same calculation,
comparing Pulver’s weekly salary—which ranged from $423.00 to
33
$480.00—to her ASM’s potential weekly earnings of $280.00, and finding
Pulver’s salary to be 151% to 171% of those earnings. (No. 1:09-cv-363,
Def. Mem. of Law (Pulver) at 13, Dkt. No. 27:2.)
Plaintiffs counter that their salaries were not significantly higher than
their ASMs’ potential wages when considering the amount of hours they
worked. As to Anderson, for instance, she testified to working an average
of fifty hours per week as a Store Manager. When dividing her $425.00
weekly salary, she contends, her effective hourly rate would have been
$8.50 an hour, only $1.50 more per hour than her ASM. (See No. 1:09-cv360, Anderson Mem. of Law at 11, Dkt. No. 46.)
Converting Pulver’s weekly salary to an hourly rate produces similar
results. As noted above, Pulver earned $425.00 per week in the beginning
of her employment, and later earned $480.00 per week. Thus, when
considering Pulver’s testimony that she worked an average of sixty to
sixty-five hours a week, her effective hourly rate was between $6.51 and
$7.08 initially, and between $7.38 and $8.00 once her salary increased.
(See No. 1:09-cv-363, Pulver Mem. of Law at 11, Dkt. No. 29.) Based on
these figures, Pulver argues, the gap in earnings between her and her
ASM is not so significant as to compel summary judgment on this issue.
34
(Id. at 11-12.)
As the parties’ submissions reflect, there is some divergence of
opinion with respect to which of these methods of calculation and
comparison is the “correct” one. Compare, e.g., Moore v. Tractor Supply
Co., 352 F. Supp. 2d 1268, 1279 (S.D.Fla. 2004) (declining to reduce
salary to hourly rate), with Johnson v. Big Lots Stores, Inc.,
604 F. Supp. 2d 903, 918 (E.D.La. 2009) (finding hourly rate analysis both
relevant and appropriate to proper executive exemption determination). To
the limited extent that courts in this Circuit have addressed the issue,
however, they have not foreclosed use of the method espoused by
plaintiffs, suggesting that the hours worked by an employee can be taken
into account. See Donovan, 675 F.2d at 522 (finding that “[a]ssistant
[m]anagers earning $250 or more were paid substantially higher wages
even taking their longer hours into account”(emphasis added)); Clougher v.
Home Depot U.S.A., Inc., 696 F. Supp. 2d 285, 293 (E.D.N.Y. 2010) (2010)
(“[T]here is nothing in the record to render [plaintiff’s] counter-argument
implausible; namely, that his hourly pay rate, where properly calculated, is
substantially less than comparable hourly-wage supervisors .... Given the
potential import of an hourly-wage analysis, this Court is compelled to
35
reject [defendant’s] all too pat concern for the burdens of engaging in such
‘mathematical gymnastics.’” (citations omitted)).
This court likewise declines to reject plaintiffs’ hourly rate conversion.
In the court’s view, converting plainitffs’ weekly salary into an approximate
hourly wage is an appropriate way of finding a common basis with which to
compare the wages paid to others. As one court reasoned, “[t]o ignore the
fact that [a plaintiff] worked more than forty hours per week would largely
frustrate the purpose of this inquiry: to determine whether the employer
sought to subvert the FLSA by attaching an overtime exemption to an
employee who otherwise performs the same non-exempt tasks as hourly
employees.” Plaunt, 2010 WL 5158620, at *13 (“Without some standard
unit, there can be no useful comparison in this already-amorphous
inquiry.”). The persuasiveness of this reasoning is enhanced, in the
court’s view, when considering the overarching principle that “[e]xemptions
from the FLSA are to be narrowly construed against the employer, and [it
is] the employer [that] has the burden of establishing an exemption.”
Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010);
Young, 586 F.3d at 204.
Thus, in viewing the wage and salary evidence in a light most
36
favorable to plaintiffs—i.e., in accordance with the hourly-rate
conversion—the court finds that the question of whether the difference in
plaintiffs’ salary was so significant as to justify their exemption is one more
properly left to a jury. See Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1271 (11th Cir. 2008) (finding that “[g]iven the relatively small
difference between the store managers’ and assistant managers’ hourly
rates[—two or three dollars—]it was within the jury’s province to conclude
that this factor either did not weigh in [defendant’s] favor or at least did not
outweigh the other factors in Plaintiffs’ favor”).
And finally, with respect to Anderson, while having considered that
she was, in addition to her salary, eligible for a larger bonus than was her
ASM, the court is not convinced that that fact compels a contrary result.
While a jury could find that this eligibility differential, in light of Anderson’s
higher salary, renders her compensation significant enough to justify the
exemption, it could similarly find that her compensation, including the
bonus eligibility, fails to meet that threshold. See Clougher, 696 F. Supp.
2d at 293 (“[D]isparate compensation, even where it includes performance
bonuses, stock options, and other tokens of executive employment, has
never been held strictly dispositive.” (citing, inter alia, Johnson, 604 F.
37
Supp. 2d at 904 (finding fact that bonuses paid to exempt workers is not
strictly dispositve)).) Thus, Anderson’s bonus eligibility, while relevant,
does not, in the court’s view, conclusively tip the scales in favor of
summary judgment.
Accordingly, having failed to demonstrate that the fifth factor weighs
definitively in its favor, and in light of the court’s findings with respect to the
first and second factors, Dollar General’s motions for summary judgment
as to the primary duty issue are denied.
C.
Liquidated Damages
Finally, Dollar General claims it is entitled to summary judgment on
plaintiffs’ claims for liquidated damages because it acted in good faith in
classifying plaintiffs as exempt employees. (See No. 09-cv-360, Def.
Common Br., at 26, Dkt. No. 40.) At this juncture, the court declines to rule
on this issue and denies Dollar General’s motion with leave to renew at a
later stage of the litigation.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Dollar General’s motion to strike certain evidence
(No. 09-cv-360, Dkt. No. 50) is DENIED; and it is further
38
ORDERED that Dollar General’s motions for summary judgment as
against Janet Anderson (No. 09-cv-360, Dkt. No. 38) and Betty Pulver (No.
09-cv-363, Dkt. No. 27) are DENIED; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
May 6, 2011
Albany, New York
39
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