Grace et al v. Family Dollar Stores, Inc.
Filing
99
ORDER granting 212 Motion for Summary Judgment (motion on lead docket 3:08md1932), dismissing Plaintiff Catherine Dawson, directing entry of judgment. Signed by Senior Judge Graham Mullen on 8/11/11. (bsw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:08 MD 1932-GCM
3:06 CV 306-GCM
IRENE GRACE,
)
)
Plaintiff,
)
)
v.
)
)
FAMILY DOLLAR STORES, INC.,
)
)
Defendant.
)
__________________________________________)
ORDER
THIS MATTER is before the court on Defendant's Motion for Summary Judgment
(Doc. No. 212) and Memorandum in Support (Doc. No. 213); Plaintiff, Catherine Dawson's
(Dawson) Response in Opposition (Doc. No. 369); and Defendant's Reply (Doc. No. 414).1 For
the reasons set forth below, the motion is GRANTED.
FACTS 2
Plaintiff Dawson worked at Family Dollar Stores as a Store Manager from February 2005
until June 2006. (Dawson Deposition, June 24 2009.) Dawson was initially hired to work at the
Cleveland Store in Gainesville, GA as a cashier, (Dawson Deposition at 23-24), and was first
promoted to work as a manager for the Thompson Bridge Store in February 2005. (Id. at 29-30).
1
Plaintiff Catherine Dawson’s case comes before this Court as part of a proposed collective action. On
September 6, 2007, this Court granted Defendant’s Motion to Strike Collective Action Allegations. (3:06cv306,
Doc. No. 78). On July 9, 2009, this Court granted Defendant’s Motion for Summary Judgment as to the named
Plaintiff in this case, Irene Grace, and dismissed Ms. Grace from this action. (3:08md1932, Doc. No. 172). Ms.
Grace appealed both orders to the Fourth Circuit Court of Appeals. The Court of Appeals held that Ms. Grace was a
manger, and therefore affirmed this Court’s judgment in favor of Family Dollar Stores, Inc. See Grace v. Family
Dollar Stores, Inc., 637 F.3d 508 (4th Cir. 2011).
2
To the extent that Plaintiff includes in her facts section arguments based on the Morgan case, the Court
will disregard such “facts.” The Court will also disregard exhibits based on the Morgan case. This Court has clearly
stated that this case is not Morgan and therefore would not be following the Morgan Court. (Doc. No. 104 at 3)
1
Dawson states that the Thompson Bridge store schedule allocated two cashiers and one Assistant
Store Manager. (Id. at 38:15-17.) She was then chosen to conduct the Grand Opening and
manage another Family Dollar store in Gainesville on Cleveland Highway in the summer of
2005. (Id. at 52:21-22). She testified that she managed 10-15 employees when opening the
Cleveland Highway store. (Id. at 57:20-21.) According to Dawson, the set up crew was
eventually cut down to three cashiers and one Assistant Store Manager. (Dawson Deposition at
57:15-16.) Upon promotion to store manager, Family Dollar paid Dawson a salary of $500 per
week. (Id. at 49.) Dawson later received a raise to $550 per week and another raise to $624 per
week. (Id. at 49:23-50:20.) Dawson also received bonuses as Store Manager which were tied to
the store’s profitability. (Id. At 53:24-55:25).
In her capacity as manager Dawson screened, conducted initial interviews and made
offers of employment to various potential employees. (Id. at 66:4-10, 62:10-17.) This included
the regular screening, interviewing and hiring of cashiers. (Dawson Dep. at 66:4-10, 45:21-23,
45:4-8.) Dawson's District Manager, partly responsible for hiring, followed Dawson's
recommendations most of the time. (Id. at 69:14-20.) Dawson was responsible for conducting
and signing off on drug tests for potential employees as well as other legal and company forms.
(Id. at 63, 73:18-74:15.) Dawson was also responsible for maintaining the petty cash, deposit
and sales logs. (Id. at 141:6-12, 142:6:13.) Additionally Dawson trained employees, scheduled
employees, assigned and delegated work, handled customer complaints and accounted for
customer safety. (Id. at 103:5-12, 120:2-4, 131:12-132:5, 79:24-80:7, 124:16-125:4,
147:17-148:2.) As Store Manager, Dawson was responsible for the overall performance of the
store. (Id. at 81:15-18).
Dawson testified that she worked well over 52 hours a week and that she spent 90-95%
2
of her time unloading the truck, stocking shelves, running the cash register and cleaning
bathrooms. (Id. at 150:7-12.) Family Dollar maintains that Dawson was free from supervision as
her District Manager was in charge of a large territory and was not a micro-manager. However,
Dawson alleges pervasive corporate micro-management in her declaration. (Dawson Declaration
¶ 16.)3 Dawson's declaration further alleges that she was not in charge of the store and not
responsible for supervising employees. (Id. at 17.)
It is undisputed that Dawson did not have the ultimate decision-making authority to hire
or change every employee's status. Family Dollar alleges that Dawson made recommendations
regarding hiring, firing or change of status to her district manager and that these
recommendations were followed. Dawson admits she had the ability to hire cashiers on the spot.
(Dawson Deposition at 45:4-8.) While Dawson did not have the same ability to hire assistant
store managers and other employees without approval; she did recommend candidates and those
recommendations were followed. (Id. at 69:16-20.) Dawson also testified that Family Dollar
gave her the authority to decide whether an employee should be disciplined and what type of
discipline an employee should receive. (Id. at 121:5-10, 124:24-125:1.)
STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to
3
The Court notes that Plaintiff’s declaration was prepared after Plaintiff’s deposition and on many
occasions directly contradicts her sworn testimony. Plaintiff cannot create a dispute about an fact contained in
deposition testimony by referring to subsequent affidavit of the deponent contradicting the prior sworn testimony.
Indeed, “it is well established that a genuine issue of fact is not created where the only issue of fact is to determine
which of the two conflicting versions of a party’s testimony is correct. Erwin v. United States, 591 F.3d 313, 325
n.7 (4 th Cir. 2010) (internal quotation marks and alterations omitted) (quoting Halperin v. Abacus Tec. Corp., 128
F.3d 191, 198 (4 th Cir. 1997); see also W aste Mgmt. Holdings, Inc. V. Gilmore, 252 F.3d 316, 341 (4 th Cir. 2001);
Rohrbough v. W yeth Labs., 916 F.2d 970, 975-76 (4 th Cir. 1990); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4 th
Cir. 1984). To the extent that Plaintiff’s deposition testimony and later affidavit are inconsistent, the Court will
disregard the affidavit and rely on the testimony she gave in her deposition, where she was examined at length about
her responsibilities as a manager of a Family Dollar Store. See Grace, 637 F.3d at 513.
3
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Bouchat v. Balt.
Ravens Football Club, 346 F.3d 514 (4th Cir. 2003). The Supreme Court has observed that, "this
standard provides that the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). A dispute over a material fact is genuine, "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id. at 248. As to materiality, the
substantive law will identify which facts are material. Id.
When reviewing summary judgment motions courts are required to view the facts and
draw reasonable inferences "in the light most favorable to the party opposing the [summary
judgment] motion." United States v. Diebold, Inc., 369 U.S. 654, 655, (1962). This means
adopting the Plaintiff's version of the facts. The party moving for summary judgment bears the
burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325.
"Once the moving party has met that burden, the nonmoving party must come forward and
demonstrate that such an issue does, in fact, exist." Bouchat, 346 F.3d at 522. (Relying on
Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) Finally,
Summary Judgment "may not rest upon the mere allegations or denials of his pleading, but his
response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial." Matsushita, 475 U.S. at 586.
DISCUSSION
4
The Fair Labor Standards Act ("FLSA") requires that an employee receive overtime pay
if they work more than forty hours a week. 29 U.S.C. § 207(a)(1). However, the statute exempts
from this requirement "any employee employed in a bona fide executive . . . capacity." 29
U.S.C. § 213(a)(1). The Department of Labor ("DOL") has promulgated regulations, which
further describe and interpret the scope of this exemption. The current regulations went into
effect on August 23, 2004 and should be applied to this analysis as Ms. Dawson began work as a
manager in February 2005. (Declaration of Penny Sundberg at ¶ 4) The current regulations
provide that an employee qualifies as an executive if: (1) she is compensated on a salary basis at
a rate of at least $455 per week: (2) her primary duty is management of the enterprise; (3) she
customarily and regularly directs the work of two or more other employees; and (4) she has the
authority to hire or fire other employees or whose suggestions and recommendations as to the
hiring, firing, advancement, promotion or any other change of status of other employees are
given particular weight. 29 C.F.R. § 541.100(a).
1. Family Dollar Satisfies the Salary Basis Test
Family Dollar satisfies the salary basis test under the current regulations, which require a
weekly salary of not less than $455 per week. 29 C.F.R. § 541.100(a)(1). Beginning in February
2005, Family Dollar paid Dawson a salary of $500 per week. (Dawson Dep. at 49.) Dawson
received a raise to $550 per week and another raise to $624 per week. (Id. at 49:23-50:20.) Due
to her salary rising above the minimum amount promulgated by the current regulation Dawson
satisfies the salary basis test.
2. Family Dollar Satisfies the Primary Duty Test
Family Dollar has demonstrated Dawson's primary duty is the management of the store
5
and has therefore satisfied the primary duty test. The regulations provide guidance as to how an
employee's primary duty may be determined and instruct that the determination should be "based
on all the facts in a particular case." 29 C.F.R. § 541.700(a). The regulations provide additional
insight that primary duty "means the principal, main, major or most important duty that the
employee performs" and that the "major emphasis" should be on the character of the employee's
job as a whole. Id. To determine whether something is a "primary duty", four factors are
considered: (1) the amount of time spent in the performance of managerial duties; (2) the relative
importance of the managerial duties as compared with other types of duties; (3) the employee's
relative freedom from supervision; and (4) the relationship between the employee's salary and
the wages paid other employees for the kind of nonexempt work performed by the supervisor.
Id.
a. The Amount of Time Spent in the Performance of Managerial Duties
The current regulations provide a list of "management" activities, which include but are
not limited to:
Interviewing, selecting, and training of employees; setting and adjusting their rates of pay
and hours of work; directing the work of employees; maintaining production or sales
records for use in supervision or control; appraising employees' productivity and
efficiency for the purpose of recommending promotions or other changes in status;
handling employee complaints and grievances; disciplining employees; planning the
work; determining the techniques to be used; apportioning the work among the
employees; determining the type of materials, supplies, machinery, equipment or tools to
be used or merchandise to be bought, stocked and sold; controlling the flow and
distribution of materials or merchandise and supplies; providing for the safety and
security of the employees or the property; planning and controlling the budget; and
monitoring or implementing legal compliance measures.
29 CFR § 541.102. Dawson cannot defeat the exemption by claiming that she spent the majority
of her time performing non-managerial duties. The regulations set forth a general rule of thumb
that an employee who spends more than fifty percent of his or her time performing managerial
6
work will typically satisfy the primary duty requirement. 29 C.F.R. § 541.700(b). However, the
regulations emphasize that "time alone . . . is not the sole test" and that exempt executives are
not required to spend more than fifty percent of their time performing exempt work if other
factors support the conclusion that management is their primary duty. Id; see also Grace, 637
F.3d at 517 (“it is misleading simply to add up the time she spent unloading trucks, stocking
inventory, running cash registers, or sweeping floors and conclude thereby she was merely a
clerk and not a manager.”)
Furthermore, the regulations specifically address the concept of concurrent duties. 29
C.F.R. § 541.106. This section instructs that "[c]oncurrent performance of exempt and
nonexempt work does not disqualify an employee from the executive exemption if the
requirements of § 541.100 are otherwise met." Id. Dawson performed her work concurrently
with her exempt managerial work.
The Fourth Circuit recognized that "[w]hile [plaintiff] catalogs the non-managerial jobs
that she had to do, claiming that they occupied most of her time, she does so without recognizing
that during 100% of the time, even while doing those jobs, she was also the person responsible
for running the store." Grace v. Family Dollar Store, Inc., (In re Family Dollar FLSA Litig.), 637
F.3d 508 (4th Cir. 2011)
Similarly as Store Manager, Dawson admits she was ultimately responsible for and
expected to run the store. (Dawson Dep. at 56:18-21.) Dawson performed her non-managerial
work concurrently with her exempt managerial work. For example, Dawson trained and
supervised employees while doing other work. (Id. at 100:3-6.) Dawson would also make sure
employees were not standing idle while she cleaned or stocked shelves. (Id. at 134:13-25.) Like
Grace, Dawson "performed these tasks in the context of her overall responsibility to see that the
7
store operated successfully and profitably, and they were important to fulfilling her goals and
responsibilities." Grace, 637 F.3d 508, 517
b. The Relative Importance of the Managerial Duties as Compared with Other Types of
Duties
Dawson's managerial duties are more important than the other duties she performed.
Court's evaluate the relative importance of an employee's managerial duties by measuring "the
significance of the managerial tasks to the success of the facility." Jones v. Virginia Oil Co., 69
F. App'x 633, 637 (4th Cir. 2003). The Fourth Circuit recognized that one of the critical factors
of importance was determined by the "overall responsibility to see that the store operated
successfully and profitably", and that non-managerial duties "were important to fulfilling her
goals and responsibilities". Grace at 516. Dawson admits that she was ultimately responsible for
the store. (Dawson Dep. at 56:18-21.) Dawson was responsible for recovery, shrink, stock,
monthly planner and the door to shelf program. (Id. at 84:15-85:11.) Dawson was also
responsible for deposits, daily cash and sales logs, security log and daily supervision of
employees. (Id. at 141:6-12, 142:6-13, 93:4-5, 99:21-100:2.) In the end, Dawson's primary
responsibility was for the overall performance of the store. (Id. at 81:15-18.) Dawson's
performance evaluation, salary and bonus depended directly on her handling of these
responsibilities. (Id. at 53:24-55:25.) According to Dawson, even when she delegated tasks she
was ultimately responsible. (Id. at 56:18-21.) Dawson, like Grace, was "performing
management duties whenever she was in the store, even though she also devoted most of her
time to doing the mundane physical activities necessary for its successful operation." Grace at
517. These actions are among those that the Fourth Circuit finds "critical to the success" of the
facility. Jones, 69 Fed. App'x at 638. Thus, Family Dollar could not have operated successfully
8
without the functions performed by Dawson, and her managerial duties, as compared with other
types of duties, were very important to ensuring the store’s success.
c. Dawson's Relative Freedom from Supervision
Dawson was relatively free from supervision in managing her store. Courts have held
that store managers were still considered managers, even when a district manager supervised
them. See Thomas v. Speedway Superamerica, L.L.C., 506 F.3d 496, 507 (6th Cir. 2007)
(quoting Murray v. Stuckey’s Inc. (Murray I), 939 F.2d 614, 619 (8th Cir. 1991)) (“A ‘local store
manager’s job is [no] less managerial for FLSA purposes simply because ... she has an active
[district manager].”). Therefore, the fact that Dawson had a district manager does not preclude
her from being considered a manager herself.
The amount of time Dawson’s District Manager supervised her demonstrates she was
relatively free from his supervision. Dawson testified that Penny Sundberg, who was Dawson's
District Manager, typically only came into the store once every three months. (Dawson Dep. at
108:9-12.) Though she was in contact with Dawson by telephone and email, Dawson does not
allege that Sundberg was constantly looking over her shoulder telling her what to do next. On
the contrary, Dawson testified that the District Manager was not in the store and that she was the
one "on the ground" actually observing employees. (Id. at 109:7-11.)
Courts have found that employees were relatively free from supervision in circumstances
where the exempt executive was subject to substantially greater oversight than Dawson. In
Thomas, the district manager visited each store once or twice per week and communicated
frequently by phone and email. 506 F.3d at 499, 507; see also Jones, 69 F. App’x. 633, 635–38
(holding employee was sufficiently free from supervision when the District Manager visited one
9
to four times each week). Nevertheless, the Sixth Circuit, in Thomas, found that the plaintiff
was relatively free from supervision, recognizing that the factor “does not demand complete
freedom from supervision,” and noting that the plaintiff operated on a day-to-day basis without a
supervisor looking over her shoulder and that “frequent, even daily exchange of e-mail and
phone communications with her district manager” did not equate to exacting supervision. 506
F.3d at 508. The court also noted that “[i]n addition to stringent managerial oversight,
Speedway has also adopted detailed company policies and standardized operating procedures, as
an additional means of fostering consistency through its multi-store organization.” Id. Even
though there were standard operating procedures, the court found the manager was free from
direct supervision. Similarly, because Dawson had fairly limited supervision from her District
Manager and because that supervision was less than that which courts have found to be
sufficient, Dawson was relatively free from supervision.
d. The Relationship Between Dawson's Salary and the Wages Paid Other Employees for
the Kind of Nonexempt Work Performed by the Supervisor
When seeking to compare the wages earned by employees and managers the Fourth
Circuit has looked for "two items, first, whether the manager earned more, in absolute terms,
than non-managerial employees, and second, whether the manager was a "profit center," namely,
whether the manager had the ability to influence the amount of her compensation." Grace at 517.
The plaintiff in Grace objectively earned more than her employees and was a "profit center"
because "her performance evaluation, salary, and bonus depended on her store's profitability."
Id.
Dawson earned significantly more than non-exempt store employees. Starting in
February 2005, Family Dollar paid Dawson a salary of $500 per week. (Dawson Dep. at 49.)
10
Dawson received a raise to $550 per week and another raise to $624 per week. (Id. at
49:23-50:20.) Dawson explained that her salary increases were directly tied to inventory, sales,
appearance of the store, employee turnover, shrinkage and profit of the store. (Id. at 51:1052:20). Dawson was also the only employee eligible for bonuses during her tenure as Store
Manager. (Id. at 53:24-55:25.) Bonuses were tied to “passing inventory” which meant that the
store made a profit. (Id. at 51:1-14). It was Dawson’s ultimate responsibility, as Store Manager,
to “pass inventory” or make a profit. (Id. at 55:24-56:21). As a Store Manager, Dawson also
became eligible for benefits and insurance. (Id. at 50:5-8.) According to Dawson she worked an
average of 52 to 65 hours per week. (Id. at 35:18-22.) Setting aside any bonus payments, this
results in an average hourly wage of between $9.62 per hour (52 hour week) and $7.69 per hour
(65 hour week). After both raises, Dawson made $12.00 per hour (52 hour week) and $9.60 per
hour (65 hour week). In comparison Dawson admits that other employees were making $5.50 to
$6.00 per hour. (Id. at 75:1-7.) Dawson would also be considered a "profit center" because her
raises and bonuses were directly tied to her performance via sales, and various factors measuring
the quality of her management. (Dawson Dep. at 51:10-21; 53:24-55:25). In addition to
Plaintiff’s sworn deposition testimony on this issue, Family Dollar has submitted the declaration
of Penny Sundberg, Plaintiff’s District Manager, which supports Plaintiff’s testimony that she
earned a higher salary than the nonexempt employees who worked at the store. (Doc. No. 213-2,
¶ 7: Sundberg Declaration).4 The evidence establishes that Dawson’s salary, therefore, was
4
The Court is aware that Plaintiff objects to the admissibility of Sundberg’s declaration.
However, by Order dated August 10, 2011, the undersigned concluded that the declarations of
Family Dollar employees regarding the “two full time employees or their equivalent” and
“significant salary difference” prongs of the executive exemption were admissible.
Significantly, Plaintiffs failed to file a response to Family Dollar’s supplemental briefing on this
issue despite being given 30 days to do so by the Court. (Doc. No. 590).
11
significantly higher than that paid to other employees performing the same type of nonexempt
work.
3. Dawson Customarily and Regularly Directed the Work of Two or More Employees
The regulations require that an employee customarily and regularly direct the work of
two or more other employees to qualify as an executive. 29 C.F.R. § 541.100(a)(3). The
regulations state that the phrase "means a frequency that must be greater than occasional but
which, of course, may be less than constant." 29 C.F.R. § 541.701. As a general rule of thumb,
the DOL has adopted an "80-hour rule" which generally requires an exempt executive to direct a
total of eighty employee-hours of work each week. See 69 Fed. Reg. 22135; see also Grace, 637
F.3d at 513 (holding that 89.23% of each week was enough to not be substantially in dispute).
Dawson testified that she managed 10-15 employees when opening the Cleveland store.
(Dawson Dep. at 57:20-21.) According to Dawson, the set up crew was eventually cut down to
three cashiers and one Assistant Store Manager. (Id. at 57:15-16.) In addition Dawson admits
that the Thompson Bridge store schedule called for two cashiers and one Assistant Store
Manager. (Id. at 38:15-17.) Furthermore, Family Dollar’s records establish that during her
tenure as store manager, Dawson directed at least 80 employee hours of work 97.06% of the
time.5 (Doc. No. 213-2 ¶ 5: Sundberg Declaration.). The evidence, including Dawson's
testimony and Family Dollar’s records on this issue, makes it apparent that Plaintiff customarily
and regularly directed at least two employees.
4. Dawson Had Authority and Discretion with Regard to Interviewing and Hiring and Her
Recommendations Were Closely Followed
5
The undersigned concludes that this declaration is admissible. (See Doc. No. 590).
12
Dawson's deposition testimony establishes that she meets the additional prong of the
executive exemption test contained in the current regulations, namely that her suggestions as to
the hiring, firing, and change of status of other employees were given particular weight. 29
C.F.R. § 541.100(a)(4). Dawson was actively involved in the hiring process by interviewing,
recommending, and hiring employees. Dawson interviewed various employees and signed off
on drug and alcohol screening for potential employees. (Dawson Dep. at 45:21-23, 63,
73:18-74:15.)
Dawson made recommendations regarding hiring, firing or change of status to
her district manager and these recommendations were followed. Dawson admits she had the
ability to hire cashiers on the spot. (Id. at 45:4-8.) While Dawson did not have the same ability
to hire assistant store managers and other employees without approval; she did recommend
candidates and those recommendations were followed. (Id. at 69:16-20.)
With respect to termination, Dawson admits to having the ability to discipline employees
with discretion. (Id. at 121:5-10, 100:10-12.) While Dawson could not terminate employees,
she was responsible for identifying problem employees and recommending termination to the
District Manager. (Id. at 120:17-121:8.) Even though Dawson could not directly fire an
employee, she played an important role in the firing process. Dawson decided when to make the
call to the District Manager about a termination; according to Dawson, she did not have time to
retrain employees, she would make the call and they would be terminated. (Id. at 100:10-12.)
Overall while Dawson did not have the ultimate decision-making authority with respect to
hiring, firing, and change of status of every employee, she made frequent recommendations as to
those matters and her recommendations were almost always followed, thereby satisfying the
requirement.
13
CONCLUSION
Family Dollar has satisfied the Department of Labor regulations establishing that
Dawson qualifies as an exempt executive under the FLSA. Therefore, Family Dollar is entitled
to judgment as a matter of law.
ORDER
IT IS ORDERED that:
(1)
Defendant's Motion for Summary Judgment (Doc. No. 212) is GRANTED and
Plaintiff Dawson is dismissed;
(2)
The Court finds that there is no just reason to delay finding of final judgment for
Family Dollar with regard to Plaintiff Catherine Dawson's claim against Family
Dollar;6
(3)
The Clerk is directed to enter final judgment, pursuant to Rule 54(b), for Family
Dollar with regard to Plaintiff Catherine Dawson.
SO ORDERED.
Signed: August 11, 2011
6
Indeed, this is one of approximately fifty ripe motions for summary judgment filed in
this case. The Court anticipates that at least fifty more motions for summary judgement will be
filed.
14
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