Biagoiotti et al v. Home Depot USA, Inc.
DECISION AND ORDER: It is ORDERED that the # 138 Motion for Summary Judgment is GRANTED and Plaintiff Christin Holloway's claims are DISMISSED. Signed by Senior Judge Thomas J. McAvoy on 5/5/2014. (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ARTHUR A. AMASH, et al.,
HOME DEPOT U.S.A., INC.,
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
Plaintiffs commenced this action asserting claims for unpaid overtime under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”), Article 19, §
650 et seq. See 2nd Am. Compl., dkt. # 43. Defendant Home Depot U.S.A., Inc. (“Home Depot” or
“Defendant”) moves for summary judgment dismissing the claims brought by Plaintiff Christin
Holloway (“Holloway” or “Plaintiff”). See Mot. dkt. # 138. For the reasons that follow, the motion is
Holloway is a former Merchandising Assistant Store Manager (“MASM”) for Home Depot who
had joined a FLSA conditional certified collective action entitled Aquilino v. Home Depot, Inc., Civil
Action No. 04-cv-4100, filed against Home Depot in the United States District Court for the District of
New Jersey on December 21, 2006 (“Aquilino action”). See Defendant’s Statement of Material Facts
Not in Dispute in Support of its Motion for Summary Judgment (“DSOF”), at ¶¶8-9. The Aquilino
plaintiffs, including Holloway, alleged that they were misclassified as exempt employees by Home
Depot under the overtime requirements of the FLSA, and sought overtime compensation. See id.
On February 15, 2011, the District Court of New Jersey granted Home Depot’s motion to
decertify the nationwide FLSA collective action. Aquilino, 2011 WL 564039, at *11 (ECF Nos. 341
and 347 in D.N.J. 04-cv-4100). After decertification of the collective action, by Order dated May 2,
2011, the District of New Jersey dismissed the opt-in plaintiffs without prejudice. Aquilino, 2011 WL
564039, at *1, (ECF No. 353 in D.N.J. 04-cv-4100); see Aquilino v. Home Depot. U.S.A., Inc., No.
06-cv-4100 (PGS) (D.N.J. May 2, 2011) (ECF No. 353 in D.N.J. 04-cv-4100).
In February 2011, Holloway joined with other opt-in plaintiffs, filing an action in the United
States District Court for the District of Connecticut, alleging violation of the FLSA and various state
laws. See Costello v. Home Depot U.S.A., Inc., 888 F. Supp. 2d 258, 262 (D. Conn. 2012). The
Costello plaintiffs alleged violations of the FLSA and the wage and hour laws of New Hampshire, New
York, and Vermont. Id. at 261. On January 10, 2012, Home Depot filed a motion in the Costello
action, pursuant to Fed. R. Civ. P. 21 and 28 U.S.C. § 1404(a), to sever the plaintiffs’ claims into seven
separate actions and to transfer six of those actions to districts in other states, including New York.
See id. (ECF No. 55 in D. Conn. 11-cv-0953). On April 10, 2012, the Costello Court granted Home
Depot’s motion. Id. at 271 (ECF No. 72 in D. Conn. 11-cv-0953).
In April and May 2012, the claims of Holloway and other New York plaintiffs were transferred
to the District Court for the Northern District of New York. See Order of Transfer, filed April 30,
2012, (ECF No. 77 in D. Conn. 11-cv-0953), and Amended Order of Transfer, filed May 2, 2012 (ECF
No. 79 in D. Conn. 11-cv-0953). Discovery in this action closed on December 20, 2013. See ECF No.
Home Depot operates large warehouse-style retail stores that sell home improvement products
and services. DSOF at ¶25. Each store is managed by a Store Manager and up to seven Assistant Store
Managers (“ASMs”), including MASMs, who are the second highest ranking employees, subordinate
only to the store manager. Id. at ¶26.
MASMs supervise from one to eleven merchandising departments, to wit: Lumber, Building
Materials, Flooring, Paint, Hardware, Plumbing, Electrical, Garden, Kitchen & Bath, Millwork, and
Décor. DSOF at ¶¶27-28. Each merchandising department is staffed by sales associates and a
department supervisor. Id. at ¶28. In some instances, a single department supervisor may head two
departments. Id. MASMs supervise the department supervisors and associates assigned to the
merchandising departments for which they are responsible. Id.
According to the Sales Assistant Store Manager Job Description that applies to MASMs, it is
Home Depot’s expectation that, inter alia, Assistant Store Managers:
work with the Store Manager to develop strategies and objectives to drive sales and
profitability. They provide leadership to Associates so that these strategies and objectives are
executed successfully. Sales ASMs must analyze trends, solve problems, and develop
themselves and their Associates in order to maximize contribution to store success.
Id. at ¶29.
Between June 2001 and February 2005, Holloway was assigned as a MASM to Store 1235
located in Cicero, New York (“Cicero store”). Id. at ¶¶34-35. The Cicero store was staffed with a
Holloway’s response to Home Depot’s Statement of Material Facts Not in Dispute admits that all
facts contained therein are true. See Dkt. # 169, at ¶4 (“Plaintiff makes no denials of the several paragraphs
of Home Depot’s Statement of Material Facts Not in Dispute.”).
store manager, four ASMs, including Holloway, and approximately 130 non-exempt hourly employees.
Id. at ¶37; Lawrence Decl. at ¶6; Janaskie Decl. at ¶¶3, 5. As a MASM in the Cicero store, Holloway
supervised five merchandising departments: Paint, Hardware, Décor, Lumber, and Building Materials.
DSOF at ¶¶39-40. The Paint, Hardware, and Décor departments were each headed by an hourly
department supervisor, and the Lumber and Building Materials departments were headed by one hourly
department supervisor. Id. at ¶39.
In February 2005, Holloway transferred to Store 1257 in Camillus, New York (“Camillus
store”), where she supervised the Millwork, Lumber, Building Materials, and Hardware departments.
Id. at ¶¶45-46; Hagan Decl. at ¶11. The Millwork and Hardware departments were each headed by an
hourly department supervisor and the Lumber and Building Materials departments shared one hourly
department supervisor. DSOF at ¶46. The Camillus store was staffed with one store manager, three or
four ASMs, including Holloway, and approximately 140 hourly non-exempt employees. Id. at ¶¶4345.
In or about October/November 2005, Holloway laterally transferred within the Camillus store to
the Operations Assistant Store Manager (“OASM”) position.2 Id. at ¶48. Holloway’s employment
with Home Depot ended in May 2006. Id. at ¶50.
STANDARD OF REVIEW
On a motion for summary judgment the Court must construe the properly disputed facts in the
light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct. 1769, 1776 (2007), and
may grant summary judgment only where “there is no genuine issue as to any material fact and the
Holloway’s claims do not cover the period when she was an OASM (October/November 2005 to May
2006). DSOF at ¶17.
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see O’Hara v. National
Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011).
If the movant is able to establish a prima facie basis for summary judgment, the burden of
production shifts to the party opposing summary judgment who must produce evidence establishing the
existence of a factual dispute that a reasonable jury could resolve in his or her favor. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must show, by
affidavits or other evidence, admissible in form, that there are specific factual issues that can only be
resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Under both the FLSA and NYLL, there are statutory exemptions from overtime compensation
requirements for employees who are classified as bona fide executives. See 29 U.S.C. § 213(a)(1);
NYLL Article 19 § 651(5)(c). An “employee employed in a bona fide executive capacity” is defined
as any employee:
(1) compensated on a salary basis at a rate of not less than $455 per week; (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 or
promotion or any other change of status of other employees are given particular weight.
29 C.F.R. § 541.100(a).3
Plaintiff concedes that she satisfied three of the four prongs of the bone fide executive
exemption contained in 29 C.F.R. § 541.100 by not contesting that: (1) her salary payments met the
With the exception of the required minimum salary, New York’s Codes, Rules and Regulations
mirror the United States Department of Labor’s definition of an “executive” employee. See 12 N.Y.C.R.R. §
minimum requirements under both the FLSA and NYLL; (2) she customarily and regularly directed the
work of two or more other employees; and (3) her recommendations as to an employee’s change of
status were given particular weight by her store managers. Plaintiff’s sole contention is that it is a
question for a jury to decide whether management was her primary duty. Plaintiff’s argument is
In order to qualify as a bona fide executive, inter alia, an employee’s primary duty must be the
“management of the enterprise . . . or of a customarily recognized department or subdivision thereof . .
. .” Id. The term “primary duty” is defined as the “principal, main, major or most important duty that
the employee performs.” 29 C.F.R. § 541.700(a). “Determination of an employee’s primary duty must
be based on all facts in a particular case, with the major emphasis on the character of the employee’s
job as a whole.” Id.; see also Mullins v. City of New York, 653 F.3d 104, 106-07 (2d Cir. 2011).
Certain factors courts consider in determining the primary duty of an employee include, but are not
limited to: (1) the relative importance of exempt duties compared with other types of duties; (2) the
amount of time the employee spends performing exempt work; (3) the employee’s relative freedom
from direct supervision; and (4) the relationship between the employee’s salary and wages paid to
subordinates who performed the same type of nonexempt work. 29 C.F.R. § 541.700(a).
Plaintiff relies on several cases to substantiate her claim that summary judgment here is
inappropriate. See Indergit v. Rite Aid Corp., 2010 U.S. Dist. LEXIS 32322 (S.D.N.Y. Mar. 31, 2010);
Clougher v. Home Depot U.S.A., Inc., 696 F.Supp.2d 285 (E.D.N.Y. 2010); Rubery v. Buth-NaBodhaige, Inc., 470 F.Supp.2d 273 (W.D.N.Y. 2007). However, these cases are distinguishable from
the present case. In each of these cases, the court determined that there were genuine issues of material
fact regarding the employee’s actual duties that precluded summary judgment. See Indergit, 2010 WL
1327242 at *6; Clougher, 696 F.Supp.2d at 291-92; Rubery, 470 F.Supp.2d at 277. Here, by contrast,
there are no genuine issues of material fact as to the duties that Plaintiff performed. As indicated,
Plaintiff has made no denials of Defendant’s statement of material facts. Therefore, the Court may
determine whether, based on the undisputed facts, Plaintiff’s primary duty was management of the
enterprise or a customarily recognized department or subdivision thereof making summary judgment
Determination of Holloway’s Primary Duty
The Importance of Holloway’s Exempt Duties
One of the factors to consider in determining the primary duty of an employee is the relative
importance of exempt duties compared with other types of duties. See 29 C.F.R. § 541.700(a).
Plaintiff testified that she performed numerous management-type duties at each of the stores in which
she worked. DSOF at ¶¶51-192. For example, she admits that she spent “considerable time” coaching
and training both associates and department supervisors, DSOF at ¶199; Dkt. No. 169-2 at 5, examples
of exempt duties. Holloway also testified, inter alia, that she: recommended changes to employee
status which includes hiring, firing, and promotions; scheduled and directed the work of other
employees; disciplined employees; managed the inventory; placed orders for certain products; and
handled employee grievances, see DSOF at ¶¶51-192, more examples of her exempt duties. Further,
the Camillus Store Manager found Plaintiff’s principal value to the enterprise was that she was
responsible for all customers and associates in the store. Dkt. No. 138-8 at ¶31; Dkt. No. 169-2 at 5.
In addition, Plaintiff’s former co-workers testified that she performed a variety of management tasks at
Home Depot.4 See Dkt. No. 138-8, 138-9. 138-10. Still further, Plaintiff has not identified the
amount, frequency, or nature of non-exempt duties that she performed. Based on the totality of the
uncontested facts, a reasonable fact finder could only conclude that Holloway’s most important duties
at Home Depot were managerial in nature.
Holloway’s Time Spent Performing Exempt Work
Another factor to consider when determining the primary duty of an employee is the amount of
time the employee spends performing exempt work. 29 C.F.R. § 541.700(a). Holloway admits to
spending between 64 percent and 84 percent of her time each week performing managerial tasks.
DSOF ¶¶193-201; Def.’s Br. (ECF No. 138-1) at 18. In this regard, Holloway testified to spending
the following time during her scheduled 55 hour workweek:
-Two to three hours per day (10-15 hrs. per week) walking the store with the store manager and
the department supervisors;
-Two hours per week writing work lists;
- One to two hours per week attending or conducting various meetings with the store manager,
department supervisors and associates in her departments;
- Two to three hours per day (10-15 hrs. per week) addressing customer issues;
- Two hours per day (10 hrs. per week) approving merchandise orders;
- Thirty minutes a day reviewing reports (2.5 hrs. per week);
- One or more hours writing or reviewing performance reviews each quarter;
Operations Assistant Store Manager Janaski, who worked with Plaintiff at the Cicero store, provided
in her Declaration: “When Holloway worked for the Cicero store as a MASM, I viewed her responsibilities for
managing her merchandising departments to be critical to the success of the store. If Holloway did not hold
her department supervisors and associates accountable for the tasks that she directed or expected them to
complete on a daily basis . . . her departments and the store as a whole would likely have lost sales.” Dkt.
No. 138-9 at ¶10.
- Considerable time on a daily basis coaching and training department supervisors and
- Part of each day talking to her department supervisors about the operation of the departments.
Plaintiff further admits spending time writing and adjusting work schedules; delegating
assignments; enforcing labor hours; holding department supervisors and associates accountable for
their performance; approving overtime, price changes and shrink plans; disciplining department
supervisors and sales associates; resolving employee grievances and customer complaints; enforcing
legal and safety compliance; verifying deposits; and working alongside sales associates teaching them
how to merchandise products. DSOF ¶¶71-78, 81-82, 86-87, 89, 97, 100-09, 112-13, 124, 129-47,
148-64, 166, 189-90.
Moreover, Holloway has not identified any nonexempt duties she performed which would
require a fact finder to allocate time spent between exempt and non-exempt activities. Given the
uncontested record, a reasonable fact finder could only conclude that Plaintiff spent the majority of her
time performing managerial functions.
Holloway’s Relative Freedom From Direct Supervision
Another factor to consider when determining an employee’s primary duty is the employee’s
relative freedom from direct supervision. 29 C.F.R. § 541.700(a). Plaintiff argues that even though
she performed managerial tasks, she was not exempt because she could not complete those tasks
without approval from her superiors. Dkt. No. 169-2 at 6. For instance, Holloway argues that while
she “definitely recommended to the store manager about terminations, promotions and demotions,”
and that sometimes her recommendations were accepted by store management, DSOF at ¶64, “if a
significant management decision had to be made, such as whether an employee should be hired or
fired, [she] needed approval from her store manager.”
However, even where a manager’s discretion is limited by upper management, the manager may
still be considered an exempt employee. See Donovan v. Burger King Corp., 675 F.2d 516, 521-22 (2d
Cir. 1982) (assistant managers were considered exempt employees under the FLSA even where their
exercise of discretion was “circumscribed by prior instruction . . . .”); Thomas v. Speedway
SuperAmerica, LLC, 506 F.3d 496, 507 (6th Cir. 2007) (stating that an employee’s relative freedom
from supervision “does not demand complete freedom from supervision, such that she is answerable to
no one, as this would disqualify all but the chief executive officer from satisfying this factor of the
primary duty inquiry.”); Yesmin v. Rite Aid of New York, Inc., 2012 U.S. Dist. LEXIS 127655, at *18
(E.D.N.Y. Sept. 6, 2012)(“The fact that plaintiff was also supervised by the store manager, who was
the highest ranked employee in the store, does not diminish [the plaintiff’s] management of the other
employees and the operation of the store.”). Thus, even assuming that Plaintiff did not have final
authority in matters such as hiring and firing, this fact is of no moment because “[a]n employee’s
suggestions and recommendations may still be deemed to have ‘particular weight’ even if a higher
level manager’s recommendation has more importance and even if the employee does not have
authority to make the ultimate decision as to the employee’s change in status.” 29 C.F.R. § 541.105.
Plaintiff’s responsibility here is consistent with being a bona fide executive because, for example, her
recommendations regarding employees’ changes of status were given particular weight by her
superiors. 29 C.F.R. § 541.100. Simply because Holloway did not have final supervisory authority as
to certain management duties, this “does not take [her] out of realm of being a manager in the
organization.” Scott v. SSP Am., Inc., 2011 U.S. Dist. LEXIS 32819, at *44 (E.D.N.Y. Mar. 29,
2011); see also 29 C.F.R. § 541.105. Given the uncontested record in this case, a reasonable fact
finder could only conclude that Holloway was relatively free from direct supervision in the
performance of the array of her managerial duties.
Holloway’s Wages Were Greater Than Wages Earned by Subordinates
The final factor to consider when determining an employee’s primary duty is “the relationship
between the employee’s salary and the wages paid to other employees for the kind of nonexempt work
performed by the employee.” 29 C.F.R. § 541.700(a). Plaintiff contends that if her salary is reduced
to an hourly wage by dividing it by her weekly hours, she was not paid substantially more than her
subordinates. However, courts have rejected engaging in “mathematical gymnastics” by dividing a
manager’s weekly salary by the number of hours worked each week to determine an hourly wage, and
instead compare “the manager’s weekly salary with the highest possible non-exempt weekly wage . . .
.” Moore v. Tractor Supply Co., 352 F. Supp. 2d 1268, 1278-79 (S.D. Fla. 2004). Plaintiff’s weekly
salary is greater than the highest non-exempt weekly wage of her subordinates.
Moreover, even accepting Plaintiff’s hypothetical hourly pay rate, there is a disparity in
Plaintiff’s compensation compared to her subordinates. In April 2005, Plaintiff earned $1,007.92
weekly.5 Assuming Plaintiff worked 60 hours per week, she would have earned approximately $16.80
per hour. If Plaintiff worked 57 hours per week, her hourly rate would be approximately $17.68 per
hour. If she worked 55 hours per week, the hourly rate would be approximately $18.36 per hour.
According to Defendant’s uncontested Statement of Material Facts, the mid-range hourly rates for sales
associates and department supervisors where Plaintiff worked were $10.98 and $15.37, respectively.
This calculation is based on Holloway’s annual salary in April 2005 ($47,300), plus the $5,112 bonus
that was awarded her that year. DSOF at ¶212.
DSOF at ¶215. Thus, Plaintiff was paid more than the employees she supervised. Moreover,
Holloway received stock options that were not available to non-exempt employees. DSOF at ¶204213. Based on these calculations as well as the stock options, a reasonable fact finder could only
conclude that Plaintiff’s wages were greater than those earned by her subordinates.
Conclusion - Primary Duty
Based on the above factors, a reasonable fact finder could only conclude that Plaintiff’s primary
duty was management. See Luksza v. TJX Cos., 2014 U.S. Dist. LEXIS 10813, at *13-14
(D. Nev. Jan. 28, 2014) (finding the plaintiffs’ primary duty was management where their own
description of their job activities indicated the plaintiffs’ responsibilities consisted of directing
the work of employees, handling employee concerns, disciplining employees, planning their
work, and providing for their safety and security). Thus, Plaintiff was properly classified as a bona
fide executive exempt from the overtime compensation requirements of the FLSA and the NYLL.
For the reasons set forth above, Defendant Home Depot’s motion for summary judgment [Dkt.
# 138] is GRANTED, and Plaintiff Christin Holloway’s claims are DISMISSED.
IT IS SO ORDERED.
Dated: May 5, 2014
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