Walker v. B&B Print Source, INC

Filing 54

OPINION and ORDER - For the reasons stated, B&B Print's Motion for Summary Judgment 32 is DENIED. IT IS SO ORDERED. DATED this 8th day of April, 2019, by United States Magistrate Judge John V. Acosta. (peg)

Case 3:17-cv-01159-AC

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UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

ARTHUR WAYNE WALKER, an individual,
Plaintiff,

Case No. 3: 17-cv-0 1159-AC
OPINION AND ORDER

V.

B & B PRINT SOURCE, INC. a/b/n of PRINT
SOURCE, INC. an Oregon Domestic business
corporation,
Defendant.

ACOSTA, Magistrate Judge:
Plaintiff Arthur Wayne Walker ("Walker") filed this lawsuit against his former employer,
B & B Print Source, Inc. ("B & B Print").
violations:

Walker brings two claims for wage and hour

overtime compensation and failure to timely pay wages due and owing upon

termination of employment violations, under the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
§§ 207, 216(b) et al, and state law under Oregon Revised Statute ("ORS")§§ 652.140, 652.150,
653.261. Currently before the court is B & B Print's motion for summary judgment. The court
finds B & B Print has failed to establish the absence of a genuine issue of material fact that
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Walker qualified for the executive employee exemption under the FLSA. Therefore, B & B
Print's motion for summary judgment is DENIED.

Background
B & B Print, a printing company, hired Walker as a bindery operator in their bindery
department on April 2, 2007.

1

(Def. Mot. Summ. J., ECF No. 32 ("Def. Mot."), at 3.) When

Walker was hired he was paid on an hourly basis at a rate of $24 per hour. (Narus Deel., ECF
No. 33, Ex. 4, at 5.) In March of 2009, Walker was promoted from stitcher operator to bindery
manager. (Def. Answer and Affirmative Defenses, ECF No. 14 ("Def. Answer"),

,r 5.)

In April

of 2009, B & B Print changed Walker's compensation from an hourly rate to salary. (Def.
Answer ,r 5.) By 2015, Walker earned $91,332.50 annually. (Henderson Deel., ECF No. 34, Ex.
3.) Walker remained a salaried employee until he ended his employment with B & B Print in
2016. (Compl., ECF No. 1, ,r 7.)
The bindery department contains various machines to assist in "doing prep work and
finishing work," but the bindery department does not conduct the actual printing for the
company. (Walker Dep. 18:21-23.) As a bindery operator, Walker's duties included running the
bindery machines, as well as helping other employees when they struggled to a keep a machine
running.

(Walker Dep. 75:9-25.)

During Walker's employment, the bindery department

consisted of five or six employees. (Walker Dep. 21 :2-3.) Of the employees in the bindery
department, Walker had the most experience in bindery work, and he was the only employee in
the department during that time paid on a salary basis. (Walker Dep. 76:4-7.) The second most
1

In its Reply in Support of Summary Judgment, B & B Print objected to numerous
portions of Arthur Walker and Marcy Walker's depositions. B & B Print asserted that the
deposition excerpts referenced in Walker's Response to the Motion for Summary Judgment were
not accompanied by excerpts from the official deposition transcript. The court granted Walker's
motion to amend, and Walker cured this defect.

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experienced employee at B & B Print was Steve Wilson, who earned $22.50 per hour.
(Henderson Deel.

,r 7); (Walker Dep. 76:4-7.)

Every morning, Michelle Lazoff, B & B Print's production manager provided the bindery
department with a list of jobs to be completed over a series of days. (Def. Answer

,r 6.)

The

parties dispute whether Walker then assigned the other employees in the department work
according to the list, or whether the employees worked out amongst themselves who would run
each machine.
In his role as bindery manager, Walker did not directly hire or fire any employees.
Though Walker did not directly hire any employees on his own, Walker did recommend B & B
Print hire approximately nine people, all of whom were subsequently hired. (G. Lazoff Deel.,
ECF No. 41,

,r 3.)

Additionally, on one occasion, Walker assisted with an employee interview.

(Walker Dep. 24: 12-13.) Finally, Walker's duties included signing vacation requests for bindery
employees. (Henderson Deel. Ex. 4.)

Legal Standard
Summary judgment is appropriate when there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. FED. R. C1v. P. 56(a). The moving
party bears the burden of establishing the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving
party. Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016). However, a mere
"scintilla" of evidence will not overcome summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251 (1986). Rather, to defeat summary judgment, the non-moving party must
identify facts beyond the allegations in the complaint, that show a genuine issue for trial.

Celotex, 477 U.S. at 324. If a rational trier of fact, considering the record as a whole, could not
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find for the non-moving party, there is no genuine issue for trial and summary judgment should
be granted. See Liberty Lobby, 477 U.S. at 248.

Discussion
B & B Print moves for summary judgment on Walker's claims for overtime
compensation under federal and state law. B & B Print contends that Walker is not entitled to
overtime compensation because he worked in an "executive" capacity under the FLSA. Walker
opposes the motion arguing that his job duties did not meet the executive exemption test of the
FLSA. For the reasons set forth below, the court denies B & B Print's motion for summary
judgment.
I.

FLSA
The FLSA creates a private cause of action for an employee to recover unpaid overtime

wages and back pay against his employer, if the employee is not paid the statutory wage. Flores

v. City of San Gabriel, 824 F.3d 890, 895 (9th Cir. 2016). The FLSA requires that employers
pay their employees time and one-half for any work exceeding 40 hours per week. 29 U.S.C. §
207(a)(l). However, employees who are employed in executive, administrative, or professional
capacities are exempt from overtime pay. See 29 U.S.C. § 213(a)(l).
The FLSA does not define the term "executive" for purposes of the exemption, but the
statute directs the Department of Labor ("DOL") to do so by regulation.
213(a)(l).

See 29 U.S.C. §

DOL regulations provide a four-prong test to determine whether an employee is

"employed in a bona fide executive capacity."

29 C.F.R. § 541.100.

To qualify for the

executive employee exemption, an employee: (1) must be compensated on a salary basis at a
rate no less than $455 per week; (2) must be in a role where their primary duty is managing the
enterprise, or managing a customarily recognized department or subdivisions of the enterprise;
(3) must customarily and regularly direct the work of at least two or more other full-time
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employees; and (4) must have the authority to hire or fire other employees, or the employee's
suggestions and recommendations as to the hiring, firing, advancement, promotion or any other
change of status of other employees must be given particular weight. 29 C.F.R. § 541.l00(a).
The employer bears the burden of proving that the employee "plainly and unmistakably" fits
within the claimed exemption. Serv. Employees Int 'l Union, Local I 02 v. Cty. of San Diego, 60
F.3d 1346, 1350 (9th Cir. 1994). Thus, the court examines whether Walker satisfies all four
prongs of the executive exemption test.

A.

Walker Satisfies the Salary Basis Test

The parties do not dispute that Walker was paid on a salary basis and in 2015, earned an
annual salary of $91,332.50.

(Henderson Deel. Ex. 3.)

Walker's salary satisfies the

compensation prong of the exemption.

B.

Primary Duty

B & B Print argues that Walker's primary duty was management. DOL Regulations
describe "management" to include the following activities:
(1) Interviewing, selecting, and training of employees; (2) setting and adjusting
their rates of pay and hours of work; (3) directing the work of employees; (4)
maintaining production of sales records for use in supervision or control; (5)
appraising employee's productivity and efficiency for the purpose of
recommending promotions or other changes in status; (6) handling employee
complaints and grievances; (7) disciplining employees; (8) planning the work; (9)
determining the techniques to be used; (10) apportioning the work among the
employees; (11) determining the type of materials, supplies, machinery,
equipment or tools to be used or merchandise to be bought, stocked and sold; (12)
controlling the flow and distribution of materials or merchandise and supplies;
(13) providing for the safety and security of the employees or the property; (14)
planning and controlling the budget; and (15) monitoring or implementing legal
compliance measures.
29 C.F.R. § 541.102.

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An employee's "primary duty" is defined as the "principal, mam, maJor or most
important duty that the employee performs." 29 C.F.R. § 541.700(a). The court considers the
following factors to determine whether management is an employee's primary duty:
[T]he relative importance of the exempt duties as compared with other types of
duties; the amount of time spent performing exempt work; the employee's relative
freedom from direct supervision; and the relationship between the employee's
salary and the wages paid to other employees for the kind of nonexempt work
performed by the employee.

Id.
1.

relative importance of the exempt duties compared with other duties

To measure the relative importance of an employee's exempt duties as compared to their
other duties, courts focus on the employee's "principal value" to the company. See Baldwin v.

Trailer Inns, Inc., 266 F.3d 1104, 1115 (9th Cir. 2001) (applying the pre-2004 amended
regulations test for "relative importance of exempt duties"); see also Blake v. Classic Alaska

Trading/Big Ray's Alaska, Inc., No. 4:16-cv-00005-SLG, 4:16-cv-00014-SLG, 2018 WL
4095727, at *10 (D. Alaska Aug., 27, 2018) (analyzing "relative importance of exempt duties"
under cunent regulations by focusing on the employees "principal value"; test remained
unchanged in new regulations). Here, the court considers whether the evidence suggests "that
the performance of plaintiffs management duties was relatively more important than his
performance of non-exempt duties." Boyce v. Indep. Brewers United Corp., No. 15-cv-02263YGR, 2017 WL 2377107, at *14 (N.D. Cal. June 1, 2017).
B & B Print contends that the bindery department would not have operated successfully
without Walker's performance of managerial tasks. B & B Print argues "that bindery employees
would seek [Walker] out for instructions in operating their equipment." (Reply Supp. Def. Mot.
Summ. J., ECF No. 38, at 8.) Additionally, B & B Print highlights that Walker participated in at
least one employee interview, and "personally brought in and hired at least nine employees at B
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& B without assistance of any other management personnel." (G. Lazoff Decl., ,r 3.) Further, B
& B Print maintains that Walker signed vacation request forms for the other employees in the
bindery department, an activity that can be classified as management. (Henderson Deel. Ex. 4.)
However, the record reveals that the nature and extent of Walker's authority is disputed.
Walker participated in only one employee interview. (Walker Dep. 24:10-13.) And, Walker
recommended several people be hired, who were subsequently hired, but Walker contends that
he did not have the final say on whether an employee was hired. (Walker Dep. 24:8-9); (PL
Resp. to Def. Mot. Summ. J., ECF No. 36 ("PL Resp"), at 16) (stating that although Walker
provided "positive recommendations, he had no other involvement in the hiring process")
Moreover, contrary to B & B Print's contention, Walker was not the only person in the
department who could sign vacation requests; Steve Wilson also periodically signed employee
vacation requests. (Walker Dep. 59:1-3.)
Regardless of the existing disputes surrounding Walker's hiring recommendations,
participation in an employee interview, or signing of vacation requests, the court is not
convinced these managerial tasks were "of principal value" to the operation of the bindery
department in comparison to Walker's other non-exempt duties. The record shows that the few
undisputed managerial duties Walker performed could be, and occasionally were, handled by
other employees. Walker's main asset to B & B Print was not his performance of managerial
duties, but his experience and skills in operating bindery machinery.

When asked why he

thought he was paid more than other bindery employees, Walker responded, "I probably had the
most experience. I've been doing this stuff for 35 years." (Walker Dep. 83:5-6.) The minimal
value of Walker's managerial duties compared to his non-exempt duties is further evidenced by
the fact that despite receiving a pay raise and having his title changed to "manager," Walker's

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job duties remained the same and he never received any additional managerial responsibilities.
(Walker Dep. 18:5-9.)
2.

amount of time spent performing exempt work

In determining whether an employee's primary duty was management, the court may
consider the amount of time an employee spends performing management activities versus nonexempt activities. See Gonzales v. City of Albuquerque, 849 F. Supp. 2d 1123, 1187 (D.N.M.
2011) (stating that "[t]he amount of time the employee spends performing exempt work can be a
useful guide in determining whether exempt work is the primary duty of an employee"). Under
the regulations, "employees who spend more than 50 percent of their time performing exempt
work will generally satisfy the primary duty requirement," but there is no requirement that
"exempt employees [must] spend more than 50 percent of their time performing exempt work."
29 C.F.R. § 541.700(b). Time alone is not a determinative factor. See Blake v. Classic Alaska

Trading/Big Ray's Alaska, Inc., No. 4:16-cv-00005-SLG, 4:16-CV-00014-SLG, 2018 WL
4095727, at *1 (D. Alaska Aug. 27, 2018) (upholding exempt classification for an employee
whose non-exempt tasks made up 90 percent of her time). In fact, most courts give little weight
to the percentage of time spent between the two types of work, as long as there are sufficient
facts demonstrating that the employee's primary duty was management. See Baldwin v. Trailer

Inns, Inc., 266 F.3d 1104, 1114 (9th Cir. 2001) (noting that "although the percentage of time
spent on nonexempt tasks is relevant, it is not alone dispositive"); see also Marzuq v. Cadete

Enter's Inc., 807 F.3d 431,436 (1st Cir. 2015) (stating "that an employee's 'primary' duty is not
determined solely by the amount of time he or she devotes to the different categories of tasks i.e., exempt vs. nonexempt - but on the overall character of his or her position").
B & B Print argues that because Walker spent 50 percent of his time on exempt activities
and 50 percent of his time performing non-exempt activities, he satisfies the primary duty prong.
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B & B Print contends that courts in this district have found an employee can satisfy the primary
duty prong where he spent as little as 10 percent of his time on management duties. Branstetter
v. Gen. Parts Distribution, LLC, No. 3:12-CV-02328-KI, 2013 WL 6780672 (D. Or. Dec. 19,

2013). In Branstetter, the plaintiff ("Branstetter") worked as a warehouse supervisor for General

Parts. Id. at *2. Even though Branstetter only spent about 10 percent of his time performing
management duties, and the other 90 percent performing the same non-exempt work as the
"employees he supervised, such as picking parts," the court still found General Parts met their
burden of establishing that Branstetter qualified for the executive exemption. Id. at *10.

The

court found that the Branstetter' s primary duty was management in part because of the types of
management activities he performed, namely "apportioning the work of employees, providing
for the safety and security of employees and the property, controlling the flow of materials, and
attending management meetings." Id.

The court noted the "most important factors [were]

Branstetter' s apportionment of work duties each morning, the number of employees he routinely
supervised, the salary differential, and the fact that the employees with problems came to him
first." Id. at *11.
Unlike Branstetter, the parties in this case dispute whether Walker was the one who
apportioned work to employees each morning.

Walker contends that production manager,

Michelle Lazoff, created a list of jobs to be completed each day.

(Walker Dep. 27:1-14.)

Walker also contests whether he supervised other bindery employees, and likewise contends that
other employees also regularly went to Steve Wilson when problems arose. (Pl. Resp. at 5.)
Although Walker admitted in his deposition that he spends about half his time running a machine
and half assisting others with their machines, he argues that "[m]erely assisting other lessexperienced employees does not necessarily equate to managerial work." (Pl. Resp. at 10);

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(Walker Dep., Vol. 2, 20:24.) Without a copy of Walker's job description or other evidence to
suggest that the manner in which Walker helped other employees, constituted supervising or
directing work, the court concludes there is a genuine dispute of material fact as to whether
Walker's duties satisfy this prong of the executive exemption.
3.

the employee's relative freedom from direct supervision

Genuine issues of material fact exist as to whether Walker satisfies the third factor,
relative freedom from direct supervision. In Blake v. Classic Alaska Trading, the court assessed
this factor by looking at whether the plaintiff "was accorded a substantial amount of discretion in
discharging her managerial duties." No. 4:16-cv-00005-SLG, No. 4:16-cv-00014-SLG, 2018 WL
4095727, at *11 (D. Alaska Aug. 27, 2018). The court determined that because her "decisions to
hire and fire employees did not require the approval of any other managers or the company's
owners," the plaintiff "enjoyed relative freedom from supervision." Id.
Here, the parties disagree on whether Walker was afforded significant discretion and was
free from direct supervision. Walker claims that he and the "other bindery employees worked
under Michelle Lazoffs direct supervision." (Pl. Resp. at 15.) As the production manager,
Lazoff was in charge of creating a list of jobs to be completed and giving that list to the bindery
employees. (Pl. Resp. at 15.) Walker reports that she was "constantly in contact" with him and
other employees like Steve Wilson and John Wilson, to make sure jobs were getting completed.
(Pl. Resp. at 15); (Walker Dep. Vol. 2, 20:6-11.) Additionally, Walker contends that apart from
small purchases, Walker did not have the authority to buy supplies or materials and had to
request them through the general manager. (Pl. Resp. at 16.) Finally, Walker argues he did not
have the authority to hire or fire employees on his own. (Pl. Resp. at 21.)
Although B & B Print acknowledges that Lazoff "provid[ed] Walker with a list of jobs
that needed to be accomplished over the coming days," it denies that Lazoff determined how the
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work was to be performed or that she told Walker in what order to complete the jobs. (Def.
Answer

,r

6.) B & B Print maintains that "Walker exercise[ed] independent judgment about

which order to complete the jobs," and that it "was one of Walker's responsibilities to assign the
different tasks" to the bindery employees. (Def. Answer

,r 6.)

Given the material fact disputes,

the court cannot conclude that this factor weighs in favor of the executive exemption.
4.

relationship between the employee's salary and the wages paid to other
employees

Finally, the court considers the relationship between Walker's salary and the wages paid
to other employees. It is undisputed that B & B Print paid Walker significantly more than any of
his bindery department counterparts, thus satisfying this factor. Among the bindery employees,
Walker was the only employee paid on a salary basis and he earned $91,332.50 in 2015
(Henderson Deel. Ex. 3), far more than Steve Wilson, whose job duties were most comparable to
Walker and who earned an hourly wage of $22.50 per hour. (Henderson Deel.

,r 7.)

Factual

disputes remain on the other three factors of the primary duties test.
Weighing all four factors in the light most favorable to Walker, the court finds there is a
genuine issue of material fact as to whether Walker's primary duty was management.
C.

Customarily and Regularly Direct the Work of Two or More Employees

A factual dispute exists as to whether Walker customarily and regularly supervised the
work of two or more employees. According to the regulations, "' [c]ustomarily and regularly'
means a frequency that must be greater than occasional but ... , may be less than constant." 29
C.F.R. § 541.701.

And, "[t]he phrase 'two or more other employees' means two full-time

employees or their equivalent." 29 C.F.R. § 541.104(a).
Walker does not dispute that there were at least two full-time employees in the bindery
department.

Rather, Walker disputes that he customarily and regularly directed their work.

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Walker agrees that he regularly assisted employees in running their machines but disagrees that
helping them amounted to directing their work.
B & B Print counters that Walker routinely directed the work of other employees. First,
B & B Print points to Walker's deposition testimony in which he admitted to instructing
employees in other departments to bring any problems within the bindery department to him.
(Reply Supp. Def. Mot. Summ. J. at 6.) (citing Walker Dep. 69:16-70:6.) Second, B & B Print
argues that Walker's own characterization of the bindery department is telling of his role within
the department. Walker stated, "I always said [the bindery department is] ours. Steve and I
always were - we were always running that bindery. We were always making sure it was
running smoothly or tying to make it run smoothly." (Reply Supp. Def. Mot. Summ. J. at 7)
(quoting Walker Dep. 39:22-25.) Finally, B & B Print also supplied a declaration from Steve
Wilson stating that if "Wayne Walker was at work, no one but Wayne Walker told bindery
department employees what to do." (Wilson Deel., ECF No. 40, ,i 6.) Given, the differences in
the parties' articulation of Walker's supervisory relationship with the other employees, the court
finds a disputed issue of fact as to whether Walker customarily and regularly directed the work
of two or more employees.

D.

Authority to Hire and Fire or Recommend

The parties dispute whether Walker's hiring or firing recommendations were given
"particular weight." To determine whether recommendations are given "particular weight," the
court considers factors such as: "whether it is part of the employee's job duties to make such
suggestions and recommendations; the frequency with which such suggestions and
recommendations are made or requested; and the frequency with which the employee's
suggestions and recommendations are relied upon." 29 C.F.R. § 541.105. Furthermore, "[a]n
employee's suggestions and recommendations may still be deemed to have 'particular weight'
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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. Id.
There is no evidence that making hiring or firing recommendations was part of Walker's
job duties. Nonetheless, it is undisputed that Walker recommended four family members, and
five other people for employment at B & B Print, and that all were hired. (Lazoff Decl. at ,i 3.)
However, when it came to recommendations for termination, B & B Print agrees that only one of
Walker's termination recommendations was ever followed. (Reply Supp. Def. Mot. Summ. J. at
10.) Fact disputes exist on this factor, and summary judgment is not appropriate.
II.

State Law Claims
The court reaches the same conclusion with respect to Walker's overtime pay claims

under Oregon law, "which in relevant respects [are] modeled on the FLSA." Dinicola v. State,

Dept. of Revenue, 246 Or. App. 526, 544, 268 P.3d 632, 642 (2011); see also Whitlock v. Am.
Family Mut. Ins. Co., No. 3:14-cv-01189-ST, 2016 WL 199420, at *3 (D. Or. Jan. 15, 2016).
Therefore, viewing the record in the light most favorable to Walker, a reasonable
factfinder could conclude that B & B Print failed to meet their burden of showing that Walker
falls within the executive exemption of the FLSA's overtime pay requirement. Accordingly, the
court concludes that B & B Print' s motion for summary judgment on Walker's parallel state law
claims also must be denied.

Ill/
Ill/
/Ill
/Ill
/Ill
/Ill
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Conclusion
For th~sons explained above, B & B Print's motion for summary judgment

~'d~t

(ECF No.)-0) is DENIED.
IT IS SO ORDERED.
DATED this

efiry

of April, 2019.

HNV. ACOSTA
Unit~d States Magistrate Judge
1

\.J

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