Biagoiotti et al v. Home Depot USA, Inc.

Filing 187

DECISION AND ORDER: It is ORDERED that the # 140 Motion for Summary Judgment is GRANTED, and Plaintiff Jeffrey A. Repp's claims are DISMISSED. Signed by Senior Judge Thomas J. McAvoy on 6/11/2014. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ARTHUR A. AMASH, et al.,
Plaintiffs,
v.

1:12-cv-837

HOME DEPOT U.S.A., INC.,
Defendant.
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.

INTRODUCTION
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 Jeffrey A. Repp
(“Repp” or “Plaintiff”). See Mot. dkt. # 140. For the reasons that follow, the motion is granted.
II.

BACKGROUND
a.

Procedural

Repp 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 in 2006 (“Aquilino action”). See Defendant’s Statement of Material Facts Not in Dispute
in Support of its Motion for Summary Judgment (“DSOF”), at ¶¶7-8. The Aquilino plaintiffs,
1

including Repp, alleged that they were misclassified as exempt employees by Home Depot under the
overtime requirements of the FLSA, and sought overtime compensation. See DSOF at ¶¶8-9.
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); DSOF at ¶10. 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); DSOF
at ¶11.
In June 2011, Repp 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 Repp 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. 95.
2

Factual1

b.

Home Depot operates large warehouse-style retail stores that sell home improvement products
and services. DSOF at ¶23. 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 ¶24.
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 ¶¶25-26. Each merchandising department is staffed by sales associates and a
department supervisor. Id. at ¶27. 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 ¶40. Other responsibilities include: “[r]ecruiting, interviewing applicants and making
recommendations to the Store Manager about hiring open positions,” as well as “making
recommendations to the Store Manager about terminations, promotions, demotions, new Associates
rate of pay and Associates performance based pay increases.” Id. at ¶64.
Repp was employed by Home Depot from October 2000 until his resignation September 9,

1

Repp’s response to Home Depot’s Statement of Material Facts Not in Dispute admits that all facts
contained therein are true. See Dkt. # 165, at ¶4 (“Plaintiff makes no denials of the several paragraphs of
Home Depot’s Statement of Material Facts Not in Dispute.”).

3

2009. Id. at ¶28. On January 27, 2004 Repp was promoted to MASM, a position he held until his
employment ended in 2009. Id. at ¶29. Repp was assigned as a MASM to Store 6165 located in Ithaca,
New York (“Ithaca store”). Id. at ¶31. The Ithaca store was staffed with a store manager, three ASMs,
including Repp, and approximately 85-120 non-exempt hourly employees depending on the season.
DSOF at ¶32; Store Manager Holes Decl. at ¶¶10, 12. As a MASM in the Ithaca store, Repp
supervised eight merchandising departments: Lumber, Building Materials, Paint, Electrical, Seasonal,
part of Floor and Wall, part of Millwork, and part of Kitchen and bath. DSOF at ¶¶34. According to
Repp, two of those department supervisors reported directly to him. Id. at ¶35. Shortly thereafter, Repp
transferred to Store 6174 in Watertown, New York (“Watertown store”) to work as MASM for a
month, in order to help the store finish preparing for its opening. Id. at ¶¶36, 118. Repp testified that
he “came in and took the reins,” and was sent to that store to “[f]ix it, speed it up and get it open.” Id.
at ¶118. Despite being nearly 3 weeks behind when he arrived, with Repp’s assistance, the store
opened on time. Repp was also responsible for the associates working in him assigned departments.
DSOF at ¶36; see also Tr. At 209-10.
In late February, 2004 Repp was transferred to Store 6173 in Oneonta, New York (“Oneonta
store”), where as MASM, he was part of the management team that opened the Oneonta store. DSOF
at ¶¶37-38. Repp spent approximately 18 months working at the Oneonta store. Id. at 40. The
Oneonta Store was staffed with a store manager, three ASMs, including Repp, and approximately 80100 non-exempt hourly employees. Id. at ¶39. As a MASM in the Oneonta store, Repp supervised six
merchandising departments: Paint, Hardware, Seasonal, Lumber, and Building Materials and
Electrical, and six or seven department supervisors reported directly to him. DSOF at ¶¶40-41.
In late 2005, Repp transferred to Store 1224 in Binghamton, New York (“Binghamton store”),
4

which is considered a high volume store and was staffed by one store manager, five ASMs, including
Repp, and approximately 150-200 hourly non-exempt employees, depending on the season. Id. at
¶¶42-23. At the Binghamton store, Repp managed six departments: Lumber, Building Materials, Paint,
Hardware, Electrical, and Seasonal, and six department supervisors reported directly to him. Id. at ¶44.
In early 2009, Repp transferred back to the Ithaca store, where he remained until the end of his
employment. Id. at ¶¶46, 49. At the Ithaca store, Repp, as MASM, was assigned nine merchandising
departments: Lumber, Building Materials, Paint, Hardware, Electrical, Seasonal, part of Floor and
Wall, part of Millwork, and part of Kitchens and Bath, and nine department supervisors reported
directly to him. Id. at ¶48.
During his years as MASM, Repp testified to performing all of the Major Tasks and
Responsibilities set forth in the Sales Assistant Store Manager Job Description. See Tr. at 77-82;
DSOF at ¶¶51-52. Specifically, Repp acted as the opening manager approximately 1-2 times per week
and closing manager approximately twice a week at the Oneonta, Binghamton, and Ithaca stores.
DSOF at ¶150. As the opening manger, Repp was the only salaried manager in the store from “a few
hours, at minimum” to “half the day.” Id. at ¶151. At the Binghamton store, he was generally the only
salaried manager for a “couple hours.” Id. When opening manger, Repp was responsible for ensuring
that the night crew had performed their own job, specifically in cleaning the store to ensure that it was
ready for the customers as well as safe with “no slips trips, or falls” and “that the store [was] ready to
go.” Id. at ¶152. Repp would also walk the store to ensure the entire store was safe and secure, and
then conducted a safety roll call to confirm the “store was safe and ready for business.” Id. at ¶153.
When acting as the closing manger, he was the only salaried manager in the store for
approximately two hours at the Oneonta, Binghamton and Ithaca stores. Id. at ¶154. Further, Repp, as
5

closing manager, walked the stores with the department supervisors in order to address any safety
issues, “ma[de] sure doors are locked, set the perimeter alarms,” brought “money back to the vault to
verify, deposit,” and “ma[de] sure things [were] ready for the next day.” Id. at ¶¶155-56. Repp also
had the authority to modify the schedule of department supervisors or associates, depending on the
needs of the business, in case he needed any of them to work overnight. Id. at ¶157.
Whether the opening or closing manager, Repp was the only salaried manager in the store and
as a result, Repp was designated as the Manager on Duty (“MOD”). DSOF at ¶158. Store Managers
Schoettler and Holes both viewed the MOD responsibility as one of the ASMs most important
managerial duties, especially because the opening and closing of the stores was among the duties which
could not be performed by hourly non-exempt department supervisors and associates. See Store
Manager Schoettler Decl. at. ¶¶ 32-33; Store Manager Holes Decl. at. ¶¶ 25, 30; DSOF at ¶¶158, 161.
At least a couple of times a month, Repp served as the MOD at all of the stores where he
worked. DSOF at ¶159. Repp testified that when acting as a MOD he had store wide responsibility
which included: taking care of any customer issues; walking the store, making sure store tasks were
being performed properly; checking for store safety issues; adjusting the staffing levels at the cash
registers; ensuring associates were working their schedules; verifying merchandise deliveries; and
essentially being responsible for and running the entire store. Id. at ¶¶164-65. In addition to storewide responsibility, Repp’s responsibilities as MASM included: directing, delegating work to, and
supervising department supervisors and associates; being involved in the hiring of staff by conducting
interviews using a “structured interview guide,” ranking candidates, and then making recommendations
to the store manager about who should be hired; taking part in a round table discussion with other
salaried members of the management team in order to identify candidates for promotion
6

considerations; recommending the termination of associates to the Store Manager; and a list of other
managerial duties and responsibilities. See DSOF at ¶¶51-182. In addition, Repp, along with the other
ASMs were given authority by Store Manager Holes (Binghamton store) to present a job offer if a
candidate really stood out and the Store Manager was not available to conduct the final interview.
DSOF at ¶63; Store Manager Holes Decl. at ¶ 31.
As a major responsibility of the MASM job description, Repp spent a considerable amount of
his time “[c]oaching, training and developing Associates, . . . both informal[ly] (e.g. on-floor coaching)
and formal[ly] (e.g. written evaluations [clinics, workshops, classes]).” See Sales Assistant Store
Manger Job Description; DSOF at ¶¶92-96 (Repp testified to spending 90% of his time on the sales
floor teaching and that he walked his departments “non-stop” in order to “keep [his associates] on their
toes,” and to ensure the assigned tasks were completed). Additionally, Repp was responsible for
preparing performance reviews for his department supervisors and approving performance reviews for
associates prepared by department supervisors. DSOF at ¶¶52, 81, 86. Repp also had the authority to
discipline associates, which he did at all the stores he worked at as a MASM, through oral counseling
and by issuing written disciplinary notices. Id. at ¶¶98-99. Repp was given discretion with regards to
coaching, counseling and disciplining any sales associates or department supervisor in the store for
violating Home Depot’s policies, procedures, and practices, and directed his department supervisors to
“performance track” their own subordinate employees. DSOF at ¶¶101-02; Tr. at 175.
Just as with hiring, the Store Manager gave a certain amount of weight to Repp’s
recommendations when it came to termination. Id. at ¶¶56-59, 72-76. Similarly, Repp testified that he
terminated an associate on the spot for violence in the workplace, without prior approval from the Store
Manager or HR at the Binghamton store, and testified to having fired the department supervisor for
7

performance reasons at the Oneonta store, and that while MASM for the second time at the Ithaca store
his recommendations for the termination of department supervisors were approved by the store
manager. DSOF at ¶¶72-73, 75. In addition, all of Repp’s Store Managers attest to following Repp’s
recommendations concerning hiring, promotions and firings. Id. at ¶¶53-63, 67-71, 76, 103-05. Repp
also performed, inter alia, other duties, including: monitoring the financial performance of the store by
daily reviews and analysis of store reports, inventory management; resolving employee grievances,
ensuring compliance with legal and other policies; and many others duties. Id. at ¶¶126-150.
In September, 2009 Repp’s employment ended following his resignation. Id. at ¶49.
III.

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
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).
IV.

DISCUSSION
Under both the FLSA and NYLL, there are statutory exemptions from overtime compensation
8

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).2
Plaintiff concedes that he 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) his salary payments met the
minimum requirements under both the FLSA and NYLL; (2) he customarily and regularly directed the
work of two or more othis employees; and (3) his recommendations as to an employee’s change of
status were given particular weight by his store managers. Plaintiff solely contends that whether
management was his primary duty should be a question for the jury to decide. Plaintiff’s argument is
without merit.
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

2

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. §
142-2.14(c)(4)(i)(a)-(e).

9

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 his claim that summary judgment where is
inappropriate. See Indergit v. Rite Aid Corp., 2010 U.S. Dist. LEXIS 32322 (S.D.N.Y. Mar. 31, 2010);
Cloughis 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; Cloughis, 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 to 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
appropriate.
1.

Determination of Repp’s Primary Duty
a.

The Importance of Repp’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).
10

Plaintiff testified that he performed numerous managerial duties during his employment as a MASM.
DSOF at ¶¶51-182. For example, he attests that at each store in which he worked he spent time each
week acting as the closing manager, the opening manager, and as the MOD. Id. at ¶¶150-54, 162. In
each of these roles, Repp was for a time the only salaried manager in the store and as such was
responsible for managing the entire store. Id. at ¶¶152, 154, 158, 165. When acting as the MOD, he
had the authority to direct the work of all of the associates within the store and was equally responsible
for any and all customer complaints. Id. at ¶¶164-65. In his capacity as MASM, Repp was also
“constantly” coaching and training both associates and department supervisors on a daily basis. Id. at
¶94. Repp testified to walking his departments “non-stop,” in order to follow up with associates and
“keep them on their toes,” ensuring that assigned tasks were completed. Id. at ¶95. Even while
working with his subordinates, Repp testified to simultaneously supervising and, in addition to the
informal on-the-floor style training, Repp was a forklift trainer, and taught clinics and workshops. Id.
at ¶96. He also monitored the associates in order to provide feedback as well as identifying candidates
for promotions. Id. at ¶¶64-65. According to his discretion, Repp awarded “merit badges,” which
were worth $20.00 each, to associates to reward them for a “job well done.” Id. at ¶89. In addition to
training and supervising, Repp also recommended changes regarding employee status which includes
hiring, firing, and promotions; scheduled and directed the work of other employees; disciplined
employees; managed the inventory; approved inventory orders; and managed the store’s financial
performance. See DSOF at ¶¶51-182
Plaintiff’s brief posits that the sum of the MASM responsibilities combined with what Repp
actually performed demonstrate that his position was misclassified as exempt. Pl. Mol at 3 (dkt. No.
165). Plaintiff asserts that his primary duties consisted of non-managerial functions. However,
11

nowhere in the record is there supporting testimony or evidence for Plaintiff’s assertion, or even a
mention of any specific non-exempt duties Plaintiff performed. Further, as previously mentioned,
Plaintiff’s response to Defendant’s Statement of Material Facts makes no denials whatsoever. Dkt. #
165, ¶4; see also n.1 supra.
Therefore, based on the undisputed record, there is no doubt that Plaintiff’s principle value was
in his managerial duties. Such conclusions are corroborated by two of Repp’s store managers and also
two subordinates as well. According to Store Managers Schoettler and Holes, Repp’s responsibilities
when acting as opening or closing manager were some of his most important duties; especially because
the managerial duties performed by Repp in this capacity could not be done by hourly, non-exempt
department supervisors or associates. DSOF at ¶¶158-59, 161; see also Store Manager Schoettler Decl.
at ¶ 32; Store Manager Holes Decl. at ¶ 30. Moreover, ASMs, like Repp were vital to the operations of
the Binghamton and Ithaca stores because the store manager could not always manage the store alone,
which are open seven days a week, in excess of 100,000 square feet each, employ 80 or more
associates each and services thousands of customers each week. DSOF at ¶¶167-68; Store Manager
Holes Decl. at ¶29. Department Supervisors Patrick Babcock and Melody Herman both confirm that
Repp, while assigned to the Binghamton store, was their direct supervisor and that he coached and
trained associates and department supervisor; duties which were important to the success of the store
and included in the major tasks and responsibilities within the Sales Assistant Manager Job
Description. DSOF at ¶180; see also Babcock Decl. at ¶ 10, 16; Herman Decl. at ¶ 7, 13.
Similarly, based on the undisputed record, there is no doubt that Plaintiff’s value to the
enterprise was a result of his managerial discretion. For example, Store Manager Rob Sexton noted in
Repp’s March, 2007 performance evaluation that Repp had “successfully lead [sic] Lumber, Buidling
12

Materials, Paint, Hardware and Electrical with a combined $1.3M (7.6%) over plan and $1M (6.2%)
growth v. 2005 . . . due to Jeff[‘s] candid leadership style.” Id. at ¶139.
Plaintiff has also failed to specifically contest any of the above assertions concerning his
responsibilities as MASM. Further, he has not identified the amount, frequency, or nature of any nonexempt duties that he performed. Based on the totality of the uncontested facts, a reasonable fact
finder could only conclude that Repp’s most important duties at Home Depot were managerial in
nature.
b.

Repp’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). As a MASM, Repp was
scheduled to work 55 hours each week. Repp testified to spending, at one point, roughly 90% on his
time on the floor where he simultaneously trained, supervised and worked with his subordinates. The
actual number of hours worked were varied by several factors including the seasonal demand. Id. at
¶175. For example, the winter season tended to be a slower period of time. Id. In this regard, Repp
testified to the following division of labor:
- 12-15 hours per week as the MOD or closing/opening Manager;
- 2 hours each week delegating or assigning work;
- 1-2 hours per week attending various types of meetings with his store manager, department
supervisors, and departments;
- Conducting walks of his departments “non stop”;
- “Constantly” on the floor talking to his department supervisors about the operation of the
departments and reviewing departments’ merchandise orders;
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- “Always” supervising, coaching and training his department supervisors and associates on the
sales floor;
- Holding weekly staff meetings where he reviewed department performance, including sales
goals, shrink numbers, in-stock conditions and merchandising. At these meetings, Repp also
directed and helped the department supervisors, and reset the departments for that week’s sales
promotions.
DSOF ¶¶150-69, 177-82. Plaintiff further admits to sometimes spending less that the normal 55 hours
each week at work, and as MASM, sometimes working less than 40 hours per week. Id. at ¶¶173-74.
Repp testified to having a very hands-on management style, where he would instruct associates
and then “show[] them how it’s done.” Id. at ¶122. Therefore, even when working on the floor, Repp
did so in order to supervise, delegate and train. Id. at ¶93. Repp testified to taking those opportunities
to train and that no matter what kind of work he was doing, he felt he was still supervising. Id. at ¶¶9394. Repp’s store managers expected him to delegate as much work as possible to his subordinates, and
assign the more menial labor that needed to be done and then to ensure that the work was completed
correctly. DSOF at ¶123; see also Store Manager Holes Decl. at ¶ 19.
Moreover, Repp has not identified a single nonexempt duty he performed which would require
a fact finder to allocate time spent between exempt and non-exempt activities. Even assuming that
Repp did in fact spend less than 50% of his timing managing, despite the lack of any evidence in the
uncontested record, this would not change his exempt status. See 29 C.F.R. §§ 541.700(a), 541.106(b),
541.703 (Department of Labor regulations recognizing that multi-tasking, or the engaging in of both
exempt and non-exempt duties simultaneously does not alter an employee’s exempt status); see also
Donovan v. Burger King Corp., 675 F.2d 516, 517, 520-21 (2d. Cir 1982) (Second Circuit discussed
14

exempt status of assistant managers who spent considerable amount of time performing same work as
non-exempt hourly employees, but who simultaneously performed key managerial duties such as
assigning tasks to hourly employees, handled customer complaints, ensuring assigned duties were
performed, running cash checks, determining amounts of food to be prepared; all duties which ensured
successful operation of the business).
Therefore, even if Repp had spent more than 50% of his time working on the floor with the
associates, his time was still being spent acting concurrently as a manager to department supervisors,
associates, and on occasion the entire store; it was his managerial duties which were of principle value
to the store’s success and not any purely manual and non-exempt duties Plaintiff performed. Given the
uncontested record, a reasonable fact finder could only conclude that Plaintiff spent the majority of his
time performing managerial functions.
c.

Repp’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 he
performed some managerial tasks, he was not exempt because he could not complete those tasks
without approval from his superiors. Pl. Mol at 6 (dkt. No. 165). For instance, Repp argues that while
he made recommendations to the store manager about hiring, firings and promotions, and that
sometimes his recommendations were accepted by store management, he contends that “if a significant
management decision had to be made, such as when an employee should be hired or fired, [he] needed
approval from his store manager.” Pl. Mol at 6 (dkt. No. 165); DSOF at ¶¶53-63, 67-71, 76, 103-05.
Further, Plaintiff argues that he “reported directly to the store manager, who he was subordinate to.” Pl.
Mol at 6 (dkt. No. 165); see also Hill Decl. at ¶ 6; Schoettler Decl. at ¶ 6; DSOF at ¶¶53-63, 67-71, 76,
15

103-05.
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 when their
exercise of discretion is “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 he 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, this fact carries littleweight 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, his
recommendations regarding employees’ changes of status were given particular weight by his
superiors. See DSOF at ¶¶46-54; 29 C.F.R. § 541.100. In addition, Repp was charged with the
authority to discipline associates, as well as given the authority to give an especially promising
interview candidate a job offer if the store manager was not available to conduct the final interview.
DSOF at ¶63, 97-105. Repp also testified to having terminated Department Supervisor Dan Card for
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performance reasons while working at the Oneonta store and, while working at the Binghamton store,
he also terminated an associate for violence in the workplace without approval from the Store Manager
or Human Resources. Id. at ¶¶72-73. Further, Repp testified that a MASM had the authority to discuss
raise amounts with hourly associates. Id. at ¶88. Simply because Repp did not have final supervisory
authority as to specific management duties, this “‘does not take [his] out of realm of being a manager
in the organization.’” Scott v. SSP Am., Inc., 2011 U.S. Dist. LEXIS 32819, at *13 (E.D.N.Y. Mar.
29, 2011), (quoting Gellhaus v. Wal-Mart Stores, Inc., No. 10–CV–123 (MAC), 2011 U.S. Dist.
LEXIS 25582, at *27 (E.D.Tex. Mar. 10, 2011)); see Scott v. SSP Am., Inc., 2011 U.S. Dist. LEXIS
32819, at *11, 13 (E.D.N.Y. Mar. 29, 2011) (sufficiently free from supervision factor satisfied where
Plaintiff “had to use good judgement regularly” and “had to exercise discretion on a continuing basis
throughout the day . . . .”); see also 29 C.F.R. § 541.105. Repp also used discretion in planning
merchandise, sign placement, display and ensuring his departments were cross-merchandising products
from other departments in order to maximize sales and profitability while making sure that customers
had an easier time finding everything they might need without hunting throughout the entire store.
DSOF at ¶¶130-32; see also Babcock Decl. at ¶ 13; Herman Decl. at ¶ 13 (Repp had discretion to
adjust end-caps and wing-stacks to emphasize certain merchandise to improve sales). Repp also
testified to being responsible for the Pro Desk department and its importance and financial success in
the Ithaca store. DSOF at ¶140-41. Repp’s involvement/leadership was credited by Store Manager
Holes as being “instrumental” in developing the Pro desk, which is aimed at providing services for
professionals who make up a major part of sales at the Ithaca store. Id.
Given the uncontested record in this case, a reasonable fact finder could only conclude that
Repp was relatively free from direct supervision in the performance of the array of his managerial
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duties.
d.

Repp’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 his salary is reduced
to an hourly wage by dividing it by his weekly hours, he was not paid substantially more than his
subordinates. See Pl. Mol at 6-7 (dkt. No. 165). However, and in contravention to Plaintiff’s
assertions, 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 his subordinates.
Moreover, even accepting Plaintiff’s hypothetical hourly pay rate, there is a disparity in
Plaintiff’s compensation compared to his subordinates. As previously mentioned, Repp testified that he
normally worked no more than 55 hours a week, and there were some weeks he worked less than 55
hours. DSOF at ¶¶172-74. In April, 2007 Plaintiff earned $1,081.52 weekly.3 Assuming Plaintiff
worked 55 hours per week, the hourly rate would be approximately $19.66 per hour. According to

3

This calculation is based on Repp’s annual salary of $56,239.00 in 2007. DSOF at ¶193. This same
year, 2007, Repp also earned a bonus of $16,720.21 and received 149 shares of restricted stock. Id. at 19394. In April 2008, Repp’s annual salary was $59,332.00 and he was awarded a bonus of $16,358.82 and
268 shares of restricted stock, and an additional bonus of $6,305.98 in September, 2008. Id. at ¶195-96. In
April, and until his resignation in September, 2009, Repp’s annual salary was $63,541.00 and he was
awarded a bonus of $5,638.78 and 171 shares of restricted stock. Id. at ¶197-98. Repp also received similar
raises, including monetary bonuses and restricted stock awards in 2004, 2005, and 2006 - all the years he
was a MASM. Id. at ¶190-92.

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Defendant’s uncontested Statement of Material Facts, the mid-range hourly rates, between 2007-2009,
for sales associates and department supervisors where Plaintiff worked were $11.48 and $15.98,
respectively. Id. at ¶201. Thus, Plaintiff was paid more than the employees he supervised.
Furthermore, Repp was entitled to stock options and a monetary bonus based upon the financial
success of his store and his own individual performance, both of which he received every year that he
worked as a MASM (see n.3, supra) and which were not available to non-exempt employees. Id. at
¶¶184, 187-88.4 Also, as a MASM, Repp testified to understanding that his salary covered all the work
he performed and he understood he would not receive overtime pay. Id. at ¶186. Based on these
calculations as well as the stock options and possible bonus, a reasonable fact finder could only
conclude that Plaintiff’s wages were greater than those earned by his subordinates.
e.

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 NYLL.

4

For example, as a Department Supervisor, Repp was not eligible for the stock options he
received as a MASM and while he did receive bonuses as a department Supervisor, the amount was
“‘extremely different’” from what he received as a MASM. DSOF at ¶¶187-88; see also Tr. at 5859, 60-61.
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V.

CONCLUSION
For the reasons set forth above, Defendant Home Depot’s motion for summary judgment [Dkt.

# 140] is GRANTED, and Plaintiff Jeffrey A. Repp’s claims are DISMISSED.
IT IS SO ORDERED.
Dated: June 11, 2014

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