Rowe v. Olthof Funeral Home, Inc. et al
Filing
19
ORDER granting 11 Motion for Summary Judgment; denying 13 Motion for Partial Summary Judgment. Clerk to close case. Signed by Hon. Michael A. Telesca on 10/12/11. (BMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
RONALD G. ROWE,
10-CV-6220T
Plaintiff,
DECISION
and ORDER
v.
OLTHOF FUNERAL HOME, INC., and
ROBERT L. OLTHOF,
Defendant.
________________________________________
INTRODUCTION
Plaintiff Ronald G. Rowe (“Rowe”) brings this action pursuant
to the Fair Labor Standards Act (“FLSA”) and New York State law
against defendants Olthof Funeral Home, Inc., (“Olthof”) and Robert
L. Olthof claiming that he was not properly paid for overtime hours
he worked.
Director
Specifically, plaintiff, who was employed as Funeral
for
Olthof,
claims
that
the
defendants
improperly
classified him as an exempt employee not entitled to overtime under
the FLSA, and that because of this mis-classification, he was not
properly compensated for overtime hours, including on-call hours,
he worked.
Defendants now move for summary judgment on grounds that as a
matter of law, plaintiff was properly classified as an exempt
employee, and therefore was not entitled to overtime compensation
under the FLSA.
Plaintiff cross moves for summary judgment,
contending that he is entitled to overtime payment under the FLSA.
For the reasons set forth below, I grant defendants’ motion for
summary judgment, and deny plaintiff’s cross motion for summary
judgment.
BACKGROUND
Plaintiff Ronald G. Rowe was employed as a licensed funeral
director by defendant Olthof Funeral Home, Inc., from August 2006
to February, 2010.
Prior to his employment as a licensed funeral
director, Rowe completed a one-year residency with Olthof as part
of his licensing requirements in New York State.
While employed
with Olthof, Rowe was paid exclusively on a salary basis.
As a Funeral Director, Rowe was generally responsible for
removing bodies of deceased persons from the locations of their
death, transporting bodies to the Olthof Funeral Home in Elmira,
New York, embalming bodies, dressing embalmed bodies and placing
them in caskets, and cremating bodies.
With respect to cremation,
Rowe testified that he spent between 30% and 45% of his time
performing cremations, and that he directed two employees to
perform work in the crematory.
Rowe contends that he spent less
than one percent of his work hours making funeral arrangements with
families or supervising funerals.
Rowe claims that in addition to working his daily shift of
8:30 a.m to 5:00 p.m., he was required to be on-call five nights a
week for the first 3 and a half years of his employment, and four
nights a week during the last year and a half of his employment.
When on-call, Rowe stated that he was required to pick up deceased
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bodies and transport them to the funeral home regardless of the
time of day.
According to the defendants, in February, 2010, Rowe cremated
a body with a piece of jewelry still on it, in violation of
Olthof’s cremation policies. The defendants claim that Olthof then
attempted to conceal his mistake from Robert Olthof. Upon learning
of the policy violation, and the alleged attempt to cover it up,
Robert Olthof terminated plaintiff’s employment.
DISCUSSION
I.
Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant
is
entitled
to
judgment
as
a
matter
of
law."
When
considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought.
Scott v. Harris, 550 U.S. 372, 380 (2007).
If, after considering the evidence in the light most favorable to
the nonmoving party, the court finds that no rational jury could
find in favor of that party, a grant of summary judgment is
appropriate.
Industrial
Co.
Scott, 550 U.S. at 380 (citing Matsushita Elec.
v.
Zenith
Radio
Corp.,
(1986)).
Page -3-
475
U.S.
574,
586-587
II.
FLSA
The Fair Labor Standards Act provides in relevant part that
subject to certain enumerated exemptions, those employees who work
in excess of 40 hours in a workweek are entitled to compensation at
a rate of one-and-one-half times their regular rate of pay.
U.S.C. §
207.
The
FLSA,
however,
exempts
from
29
overtime-pay
requirements employees who are “employed in a bona fide executive,
administrative, or professional capacity . . . .” 29 U.S.C. § 213.
Where an employee who is not receiving overtime compensation
contends that he is entitled to such compensation under the FLSA,
it is incumbent upon the employer to establish by clear and
convincing evidence that one of the FLSA’s exemptions to the
overtime requirements applies, and therefore the employee is not
entitled to overtime pay.
Idaho Sheet Metal Works, Inc. v. Wirtz,
383 U.S. 190 (1966); Shockley v. City of Newport News, 997 F.2d 18,
(4th Cir. 1993). In doing so, the employer must establish that the
employee “fit[s] plainly and unmistakably within [the exemption’s]
terms.”
McGrath v. City of Philadelphia, 864 F.Supp. 466, 483-84
(E.D. Pa. 1994)(quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388,
392 (U.S. 1960).
In the instant case, the defendants contend that plaintiff is
a
professional
compensation.
employee
who
is
not
entitled
to
overtime
To establish whether an employee is a professional
employee exempt from overtime requirements, courts employ a two-
Page -4-
part test devised by the Secretary of Labor, and set forth in the
Regulations promulgated by the Secretary.
The first component of
the two-part test is the “salary test” whereby the court determines
whether or not the employee is paid on a salary basis.
§ 541.602(a).
29 C.F.R.
The second component is the “duties test” whereby a
court determines
whether
or
not
the
duties
performed
by
the
employee are duties typically performed by a bona fide “learned
professional. 29 C.F.R. § 541.301. Because I find that defendants
have
established
by
clear
and
convincing
evidence
that
Rowe
satisfies the requirements of a professional employee under the
salary and duty tests, I find that they have established, as a
matter of law, that Rowe is a professional employee not entitled to
overtime under the FLSA.
See In re Novartis Wage and Hour
Litigation, 611 F.3d 141, 150 (2nd Cir., 2010)(“Whether the duties
of a job qualify an employee for a FLSA exemption is a question of
law.”)
A.
The Salary Test
To be considered exempt from overtime provisions as a “learned
professional,” the employee must not only be a bona fide learned
professional employee, but must also be paid not less than $455.00
per week on a salary or fee basis. 29 C.F.R. § 541.300.
To
determine whether or not an employee is paid on a salary basis,
courts
apply
541.602(a).
a
“salary
test”
as
Pursuant to the test:
Page -5-
set
forth
in
29
C.F.R.
§
An employee will be considered to be paid "on
a salary basis" within the meaning of these
regulations if the employee regularly receives
each pay period on a weekly, or less frequent
basis, a predetermined amount constituting all
or part of the employee’s compensation, which
amount is not subject to reduction because of
variations in the quality or quantity of the
work performed. Subject to . . . exceptions
provided [in the regulations], an exempt
employee must receive the full salary for any
week in which the employee performs any work
without regard to the number of days or hours
worked. Exempt employees need not be paid for
any workweek in which they perform no work.
An employee is not paid on a salary basis if
deductions from the employee's predetermined
compensation are made for absences occasioned
by
the
employer
or
by
the
operating
requirements of the business. If the employee
is ready, willing and able to work, deductions
may not be made for time when work is not
available.
29 C.F.R. § 541.602(a).
In the instant case, the defendants have demonstrated that
Rowe was paid more than $455.00 per week, and was paid on a salary
basis as that term is defined under 29 C.F.R. § 541.602(a).
Plaintiff has not provided any evidence suggesting that he was not
paid on a salary basis, and therefore I find that the defendants
have established that Rowe was paid on a salary.
B.
To
The “Duties” Test
determine
whether
or
not
an
employee
is
a
“learned
professional” under the duties test, the regulations provide that:
To qualify for the learned professional exemption,
an employee's primary duty must be the performance
of work requiring advanced knowledge in a field of
science or learning customarily acquired by a
Page -6-
prolonged
course of
specialized
intellectual
instruction. This primary duty test includes three
elements:
(1) The employee must
advanced knowledge;
perform
work
requiring
(2) The advanced knowledge must be in a field of
science or learning; and
(3) The advanced knowledge must be customarily
acquired by a prolonged course of specialized
intellectual instruction.
29
C.F.R.
§
541.301(a).
The
term
“work
requiring
advanced
knowledge” is defined as
work which is predominantly intellectual in
character, and which includes work requiring
the consistent exercise of discretion and
judgment, as distinguished from performance of
routine mental, manual, mechanical or physical
work. An employee who performs work requiring
advanced knowledge generally uses the advanced
knowledge to analyze, interpret or make
deductions
from
varying
facts
or
circumstances.
29 C.F.R. § 541.301(b)
In addition to this general test for determining whether or
not
an
employee
regulations
also
qualifies
address
as
the
a
learned
position
of
professional,
“Funeral
Director”
specifically, providing that:
Licensed funeral directors and embalmers who are
licensed by and working in a state that requires
successful completion of four academic years of
pre-professional and professional study, including
graduation from a college of mortuary science
accredited by the American Board of Funeral Service
Education, generally meet the duties requirements
for the learned professional exemption.
29 C.F.R. § 541.301(e)(9)
Page -7-
the
Plaintiff contends that because the State of New York requires
only an associates degree to become a licensed funeral director,
funeral
directors
in
New
York
are
not
exempt
from
overtime
compensation, and must be paid overtime compensation for overtime
hours worked.
I find, however, that the regulations do not mandate such a
result.
While Section 541.301(e)(9) of the regulations provides
that licensed Funeral Directors who are required to have four-year
degrees, will “generally” meet the learned professional exemption,
the regulation does not preclude a finding that a funeral director
with
a
two-year
degree
may
also
be
a
learned
professional,
depending on whether or not the funeral director satisfies the
duties test for learned professionals.1
Accordingly, I find that
to determine whether or not the plaintiff is an exempt or nonexempt employee, the court must consider the duties performed by
the plaintiff in the course of his employment, and determine
whether the duties performed are those of a learned professional.
Such an inquiry comports with the notion that the determination of
whether or not an employee qualifies as a learned professional
under the regulations is “intensely fact bound and case specific”
1
Section 541.301(e)(9) also leaves open the possibility
that a funeral director with a four-year degree could be deemed
non-exempt, depending on his duties. While a funeral director
with a four-year degree will “generally” be considered exempt,
presumably, if the position does not satisfy the duties test, the
director will be considered non-exempt despite holding a fouryear degree.
Page -8-
Bohn v. Park City Group, Inc., 94 F.3d 1457, 1461 (10th Cir.1996),
and
“focus[es]
activities
descriptions
of
on
evidence
regarding
the
employee
contained
in
rather
resumes,
performance evaluations.”
the
actual
than
more
position
day-to-day
general
descriptions,
job
and
Shaefer v. Ind. Mich. Power Co., 358
F.3d 394, 401 (6th Cir.2004);
Birkemose-Hansen v. Zwanenberg Food
Group (USA), Inc., 2010 WL 2854128, *6 (S.D. Ohio, 2010).
1. The Work Performed by Plaintiff Required Advanced Knowledge
In the instant case, the evidence in the record reveals that
Rowe
almost
exclusively
engaged
in
work
that
required
the
consistent exercise of discretion, judgment and higher learning.
It is undisputed that Rowe generally performed body removals by
himself, and used his discretion and judgment when dealing with the
families or loved ones when removing a body.
It is further
uncontested that Rowe performed embalmings, and did not require
permission from any employee or supervisor to perform an embalming,
though he was responsible for obtaining permission to embalm from
the
deceased’s
family.
He
performed
embalmings
without
supervision, instruction or guidance: indeed, Rowe sometimes worked
alone at the funeral home.
In cases when an autopsy or organ
donation occurred, Rowe used his training and knowledge to suture
the body, or use preservatives and other methods to account for
such
conditions
as
skin
donations,
Page -9-
organ
donations,
or
bone
donations, and did so without direction from any other employee or
supervisor.
The process of embalming a body required the exercise of
discretion and judgment, including making the body look as natural
as possible.
This process included using a needle injector to
force a wire into the upper and lower jaws, and deciding whether or
not the body was in rigor mortis, the degree of rigor mortis, and
what steps would be necessary to break the rigor.
Rowe also relied
on his training, skill and judgment to determine the proper mix of
embalming fluids to use, a process which he described as ongoing
and requiring continual assessment.
Preparing the deceased body
also required puncturing certain cavities to release bodily fluids
and gasses.
With
conduct
respect
to
cremations
cremations,
without
plaintiff
permission
was
from
authorized
any
to
employee
or
supervisor, and used his discretion to order supplies when he felt
it necessary to do so.
arrangements
with
On the occasions when Rowe made funeral
families,
including
preparing
contracts for
services, he did so without supervision.
Based upon the duties that the plaintiff was required to
perform, I
find
the
Rowe’s
work
required
advanced learning and knowledge.
Page -10-
the
application
of
2.
The Advanced Knowledge Employed by Plaintiff in his
Position as Funeral Director Pertains to a Field of
Science or Learning.
Under the second prong of the duties test, to be exempt from
FLSA
overtime,
a
learned
professional
must
utilize
advanced
knowledge that relates to a field of science or learning.
The
field of science or learning includes:
various types of physical, chemical and
biological
sciences,
pharmacy
and
other
similar occupations that have a recognized
professional status as distinguished from the
mechanical arts or skilled trades where in
some instances the knowledge is of a fairly
advanced type, but is not in a field of
science or learning.
29 C.F.R. 541.301(c).
I find that the advanced knowledge required of someone in
Rowe’s position relates to a field of science in that the embalming
and
cremation
processes
require
knowledge
and
application
relevant sciences such as anatomy, biology, and chemistry.
of
Rowe
was required to understand the unique problems posed by each body
he embalmed, and how to deal with and compensate for variables such
as body size, removal of organs or bones, and how long the body had
been dead when determining the right mix of chemicals to use to
embalm the body.
He used his understanding of anatomy when
preparing a body for viewing by making the body appear as natural
as possible, and determining how to aspirate the body.
Rowe utilized
advanced
knowledge
that
Page -11-
relates to
a
Because
field of
science, I find that defendant’s have established the second prong
of the duties test.
3.
The advanced knowledge used by Rowe is customarily gained
through a prolonged course of specialized intellectual
instruction.
The third prong of the duties test requires that the employee
use knowledge that is “customarily acquired by a prolonged course
of specialized intellectual instruction.” 29 C.F.R. § 541.301.
Pursuant to regulations promulgated by the Secretary of Labor, the
phrase “customarily acquired by a prolonged course of specialized
intellectual
instruction”
restricts
the
learned
professional
exemption to “professions where specialized academic training is a
standard prerequisite for entrance into the profession.” 29 C.F.R.
§ 541.301(d).
professional
The regulations further provide that: “the learned
exemption
is
not
available
for
occupations
that
customarily may be performed with only the general knowledge
acquired by
acquired
an
through
academic
an
degree
in
apprenticeship,
any field,
or
with
with
knowledge
training
in
the
performance of routine mental, manual, mechanical or physical
processes.”
I find that Rowe’s position as a funeral director meets the
requirement
customarily
of
employment
acquired
by
intellectual instruction.
which
a
utilizes
prolonged
knowledge
course
of
that
is
specialized
It is undisputed that under New York
law, a funeral director may be licensed only after the successful
Page -12-
completion of two years of focused study in an accredited mortuary
science
curriculum.
Following
completion
of
the
academic
requirements, a prospective funeral director must pass an exam, and
then complete a one-year residency program.
Following completion
of the residency program, the candidate must then pass another exam
before he or she can become licensed.
This rigorous licensing
procedure establishes that in New York State, a prolonged course of
specialized instruction is required before a candidate can become
a licensed funeral director.
As mentioned above, plaintiff argues that because a funeral
director in New York State need only obtain a two-year degree, the
defendants have failed to establish that funeral directors acquire
their knowledge through a prolonged course of study. Plaintiff has
cited no case or statute to support this contention, and in fact,
this argument was rejected in Rutlin v. Prime Succession, Inc., 220
F.3d 737, 742 (6th Cir., 2000), one of only two Circuit Court
decisions discovered by this court on the issue of whether or not
a funeral director is exempt under the FLSA.2
Circuit
Court
of
Appeals
concluded
that
In Rutlin, the Sixth
“a
licensed
funeral
director was a ‘learned professional’ despite the absence of a
college degree requirement because licensing required a specific
2
The two Circuits that have considered the issue of whether
or not a funeral director is exempt under the FLSA have both
concluded that such employees are exempt as “learned
professionals.” See Rutlin, 220 F.3d 737, Szarnych v. TheisGorski Funeral Home, Inc., 1998 WL 382891 (7th Cir., 1998).
Page -13-
course of study including completion of one year of mortuary
instruction and two years of college, with classes in chemistry and
psychology
and
a
passing
embalming,
pathology,
grade
anatomy,
on
and
national
board
tests
Solis
cosmetology.”
in
v.
Washington, --- F.3d ----, 2011 WL 3966117, *5 (9th Cir., 2011).
Moreover,
there
is
no
requirement
under
the
FLSA
that
the
“prolonged course of study” set forth in the duties test be limited
to
professions
occupations
in
requiring
which
a
a
four
two-year
year
degree
degree.
Indeed,
is required,
some
such
as
registered nurses, are considered to be exempt from FLSA overtime
requirements. See, e.g., 29 CFR § 541.301 (e)(2)(registered nurses
generally exempt from overtime requirements); Bongat v. Fairview
Nursing Care Center, Inc., 341 F.Supp.2d 181, 187 (E.D.N.Y.,
2004)(registered
nurse
with
two-year
degree
exempt
from
FLSA
overtime).
Because the defendants have established that Rowe meets all
three criteria of the duties test, and satisfies the requirements
of the salary test, I find that defendants have demonstrated that
Rowe is a learned professional exempt from the overtime provisions
of the FLSA.
III. Remaining State Law Claims.
Plaintiff contends that he is entitled to overtime under New
York State Law.
However, because I find that plaintiff is exempt
as a learned professional under the FLSA, he is, by operation of
the New York Labor Law, exempt from overtime under New York State
Page -14-
Law. See 12 N.Y.C.R.R. 142-2.2 (providing that employers shall pay
overtime wages in accordance with the FLSA).
I find plaintiff’s
claim for unjust enrichment to be without merit.
CONCLUSION
For the reasons set forth above, I find that Rowe was a
professional
employee
exempt
from
overtime
compensation
requirements.
Accordingly, I grant defendants’ motion for summary
judgment, deny plaintiff’s motion for summary judgment, and dismiss
plaintiff’s Complaint with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
October 12, 2011
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