Pierce et al v. Wyndham Vacation Resorts, Inc. et al

Filing 367

MEMORANDUM AND ORDER denying 236 Motion for Summary Judgment as to Certain Highly Compensated Employees. Signed by Magistrate Judge C Clifford Shirley, Jr on 10/6/17. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JESSEE PIERCE and MICHAEL PIERCE, on
behalf of themselves and all others similarly
situated,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
WYNDHAM VACATION RESORTS, INC., et al., )
)
Defendants.
)

No. 3:13-CV-641-CCS

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the
Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings,
including entry of judgment [Doc. 193].
Now before the Court is the Defendants’ Motion for Summary Judgment as to Certain
Highly Compensated Employees [Doc. 236]. Specifically, the Defendants request that the Court
dismiss the claims of Jesse Pierce; Michael Pierce, Sr.; R. Craig Thrift; and Thomas Garrett
(hereinafter, “Plaintiffs”). The Plaintiffs have responded in opposition to the Motion [Doc. 265],
and the Defendants have filed a Reply [Doc. 269]. During a status conference with the parties on
August 7, 2017, the parties stated that a hearing was not necessary. The Motion is now ripe for
adjudication. Accordingly, for the reasons explained below, the Court finds that the Defendants’
Motion [Doc. 236] is not well-taken, and it is DENIED.
I.

BACKGROUND
This case involves allegations that certain Sales Representatives who worked at the

Defendants’ offices worked off-the-clock and were not paid for working in excess of 40 hours in

a work week. [Doc. 1 at ¶ 2]. The Complaint alleges that the Defendants willfully violated the
Fair Labor Standards Act (“FLSA”). [Id. at ¶ 3].
The parties agree on the following facts, unless otherwise noted. Dduring the relevant
recovery period, October 21, 2010, through October 31, 2013, the Plaintiffs earned greater than
$100,000.00 and were employed as commissioned sales representatives. [Doc. 266 at ¶¶ 2-6]. The
total earnings for each year are as follows:

Jessee Pierce
Michael Pierce, Sr.
Craig Thrift
Thomas Garrett

2010
$906,457.34
$299.208.43
NA
$243,856.11

2011
$739,805.80
$241,373.97
$299,658.55
$194,259.36

2012
$753,436.67
$281,731.77
$852,234.99
$280,575.92

2013
$671,945.03
$255,035.53
$447,727.10
$474,288.62

The Defendants assert, and the Plaintiffs disagree, that each Plaintiff customarily and
regularly performed one or more executive duties during the recovery period. For instance, the
Defendants assert that the Plaintiffs managed a team of sales representatives, conducted sales
training, and directed the actions of two or more employees. [Doc. 239 at ¶¶ 9, 20, 31, and 35].
The Plaintiffs disagree with the Defendants’ characterizations. [Doc. 266 at ¶¶ 9, 20, 31, and 35].
II.

POSITIONS OF THE PARTIES
The Defendants argue that the Plaintiffs’ claims are exempt from the overtime provisions

of the FLSA during the relevant recovery period pursuant to the highly compensated employee
exception, 29 C.F.R. § 541.601, which was in effect during the relevant time period. The
Defendants assert that the Plaintiffs fall within the highly compensated employee exemption
because they earned more than $100,000.00 annually and they customarily and regularly
performed one or more executive or administrative duties. 1

The Court observes that in the Defendants’ brief, they assert that the Plaintiffs customarily
and regularly performed one or more executive or administrative duties. In analyzing the
1

2

The Plaintiffs respond [Doc. 265] that the Defendants cannot establish their burden of
proving that the Plaintiffs are exempt from the FLSA’s overtime compensation requirements. The
Plaintiffs state that the Defendants cannot claim the exemption pursuant to 29 C.F.R. § 541.601
because no portion of the compensation that the Plaintiffs received from the Defendants was paid
on a salary basis as is required in order for the employer to claim that an employee is an exempt
executive. The Plaintiffs argue that even if the Defendants were permitted to pay executive
employees on a fee basis, the Defendants cannot establish that they paid the Plaintiffs on a fee
basis because commissions do not constitute payment on a fee basis.

Further, the Plaintiffs

contend that even if the Defendants could establish the compensation requirements,

the

Defendants cannot satisfy the streamlined duties test by which highly compensated employees’
exempt status may be determined.
The Defendants reply [Doc. 269] that the regulation expressly refutes the Plaintiffs’
argument that highly compensated employees, whose exempt duty is executive in nature, must be
paid on a salary basis versus a fee basis. In addition, the Defendants state that the only court that
has addressed whether commissions can constitute payment on a fee basis has rejected the
Plaintiffs’ view. Finally, the Defendants reply that proving exempt status under the highly
compensated variant of the executive exemption does not require or involve an inquiry into an
employee’s primary duty.
III.

STANDARD OF REVIEW
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of

Plaintiffs’ duties, however, the Defendants do not argue or provide evidence of any administrative
duties.
3

establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317,
330 n. 2 (1986); Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and
all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett
v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).
“Once the moving party presents evidence sufficient to support a motion under Rule 56,
the nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis v. Universal
Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). To
establish a genuine issue as to the existence of a particular element, the non-moving party must
point to evidence in the record upon which a reasonable finder of fact could find in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be
material; that is, it must involve facts that might affect the outcome of the suit under the governing
law. Id.
The Court’s function at the point of summary judgment is limited to determining whether
sufficient evidence has been presented to make the issue of fact a proper question for the finder of
fact. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or determine the truth of
the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989). Thus, “the inquiry performed is the threshold inquiry of determining whether there is a
need for a trial—whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250.

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IV.

ANALYSIS
The Court has considered the parties’ positions and finds that the Defendants’ position is

not well-taken. The Court observes, however, that there are two matters that need to be addressed
before analyzing the merits of Defendants’ Motion.
First, the Defendants state, in a footnote, that many other opt-in plaintiffs had the threshold
income to qualify for the highly compensated employee exemption but that they (Defendants) have
not been allowed to take the depositions of all of the opt-ins to develop proof necessary to support
a motion for summary judgment. The Defendants continue that they should be allowed to develop
proof necessary to support a motion for summary judgment as to those opt-in plaintiffs and that
they reserve the right to move for summary judgment following the opportunity to take the
remaining depositions and develop the necessary proof to establish the highly compensated
employee exemption. It is unclear to the Court what other proof is needed since the Defendants
presumably possess records showing Plaintiffs’ (Defendants’ employees) earnings 2 and are
presumably aware of the Plaintiffs’ job functions, as their employer. In any event, even if the
Defendants “needed” such depositions, they could have requested such from the Court. They
chose, however, not to request such depositions and instead chose to raise this matter in a footnote
in their Motion for Summary Judgment.

Given that this is an already seasoned cased (i.e.,

approximately four years old), the Court will not consider additional dispositive motions.
Second, the Plaintiffs assert that the Defendants have not revealed to the Court or to the
Plaintiffs that they (Defendants) were asserting this affirmative defense, except to the extent that
the fifteenth affirmative defense of the Answer can be considered such a revelation. [Doc. 265 at
2]. The Plaintiffs do not argue that the Defendants waived such defense, and they proceed to argue
2

In fact, the Defendants included with their filings a chart listing several other Plaintiffs
who had substantial incomes during the relevant time period. [Doc. 238-1].
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the merits of the Defendants’ arguments. Thus, the Court will not find that the Defendants waived
this issue.
As mentioned above, the Defendants assert that the Plaintiffs are exempted from overtime
requirements pursuant to 29 C.F.R. § 541.601 because the Plaintiffs earned more than $100,000.00
annually and they customarily and regularly performed one or more executive duties. The Court
will address the parties’ arguments with respect to the compensation requirements and then turn
to the parties’ arguments with respect to the Plaintiffs’ duties, if necessary.
A. Total Annual Compensation
The Plaintiffs assert that it is undisputed that they were paid on a commission basis. The
Plaintiffs assert that because the Defendants are claiming the executive duty exemption, they must
have been paid a salary and not a fee basis in order to be exempt. The Plaintiffs continue that even
if the Defendants were allowed to pay the Plaintiffs on a fee basis, their commissions do not
constitute payment on a fee basis. The Defendants state that the regulation refutes the Plaintiffs’
argument and that commissions constitute a payment made on a fee basis.
The Court observes that there are two issues that the parties have raised: (1) whether the
Plaintiffs were required to be paid a salary in order for the Defendants to rely on the executive
duty exemption, and (2) if no, do the commissions in this case constitute payment made on a fee
basis. The Court will begin with the first issue.
The FLSA states that “no employer shall employ any of his employees . . . for a workweek
longer than forty hours unless such employee receives compensation for his employment in excess
of the hours above specified at a rate not less than one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). Certain employees, however, are exempt from overtime
requirements. An employer who claims an exemption from the FLSA has the burden of showing

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that the exemption applies. Webster v. Pub. Sch. Employees of Washington, Inc., 247 F.3d 910,
914 (9th Cir. 2001). Here, the Defendants assert that the highly compensated employee exemption
pursuant to 29 C.F.R. § 541.601 (“Regulation”) applies.
Specifically, 29 C.F.R. § 541.601 provides, in relevant part, as follows:
(a) An employee with total annual compensation of at least
$100,000 is deemed exempt under section 13(a)(1) of the Act if the
employee customarily and regularly performs any one or more of
the exempt duties or responsibilities of an executive, administrative
or professional employee identified in subparts B, C or D of this
part.
(b) (1) “Total annual compensation” must include at least $455 per
week paid on a salary or fee basis. Total annual compensation may
also include commissions, nondiscretionary bonuses and other
nondiscretionary compensation earned during a 52–week period.

29 C.F.R. § 541.601. The Defendants are correct that the Regulation simply states that total annual
compensation must be paid on a salary or fee basis and does not expressly limit executives to being
paid only salaries. Other regulations, however, provide context and aid this Court’s interpretation.
Specifically, 29 C.F.R. § 541.600 states:
To qualify as an exempt executive, administrative or
professional employee under section 13(a)(1) of the Act, an
employee must be compensated on a salary basis at a rate of not
less than $455 per week (or $380 per week, if employed in
American Samoa by employers other than the Federal
Government), exclusive of board, lodging or other facilities.
Administrative and professional employees may also be paid
on a fee basis, as defined in § 541.605.
29 C.F.R. § 541.600(a) (Emphasis added). Further, 29 C.F.R. § 541.100, the general rule for
executive employees, defines “employee employed in a bona fide executive capacity” as “any
employee [c]ompensated on a salary basis at a rate of not less than $455 per week” and who
performs certain duties. In addition, 29 C.F.R. § 541.605 provides guidance on “fee basis” and
states as follows:
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(a) Administrative and professional employees may be paid on a
fee basis, rather than on a salary basis. An employee will be
considered to be paid on a “fee basis” within the meaning of these
regulations if the employee is paid an agreed sum for a single job
regardless of the time required for its completion. These payments
resemble piecework payments with the important distinction that
generally a “fee” is paid for the kind of job that is unique rather than
for a series of jobs repeated an indefinite number of times and for
which payment on an identical basis is made over and over again.
Payments based on the number of hours or days worked and not on
the accomplishment of a given single task are not considered
payments on a fee basis.
(b) To determine whether the fee payment meets the minimum
amount of salary required for exemption under these regulations, the
amount paid to the employee will be tested by determining the time
worked on the job and whether the fee payment is at a rate that
would amount to at least $455 per week if the employee worked 40
hours. Thus, an artist paid $250 for a picture that took 20 hours to
complete meets the minimum salary requirement for exemption
since earnings at this rate would yield the artist $500 if 40 hours
were worked.
29 C.F.R. § 541.605 (Emphasis added).
Thus, while 29 C.F.R. § 541.601 states that the total annual compensation must include a
“salary or fee basis,” it appears that the other regulations in the same section limit executive
employees to being paid on a salary basis, while administrative and professional employees may
be paid by either a salary or a fee basis. See 29 C.F.R. §§ 541.100, .600(a), and .605. It appears
to the Court that the highly compensated exemption did not change how executive employees were
paid (i.e., salaried) but simply made it easier to show the duty requirement. See 29 C.F.R. §
541.601(c) (“A high level of compensation is a strong indicator of an employee’s status, thus
eliminating the need for a detailed analysis of the employee’s job duties.”).

Because the

Defendants rely on the executive duty exemption, the Court finds that the Defendants have not
carried their burden of establishing the compensation requirements (i.e., payment on a salary basis
of $455 per week) to claim the exemption.
8

Further, even if the Defendants were permitted to pay the Plaintiffs on a fee basis while
relying on the executive exemption, the Court finds that the commissions paid herein do not
constitute a fee basis. As mentioned above, the Defendants acknowledge that the Plaintiffs were
not paid a salary, but they assert that the Plaintiffs’ commissions constitute a “fee basis” under the
Regulation. The Defendants’ interpretation, however, is illogical. If “commissions” constituted a
“fee basis” under the Regulation, there would be no need for the Department of Labor to include
the word “commissions” in the second sentence of section (b) in 29 C.F.R. § 541.601. Specifically,
the Regulation states that the total annual compensation must include at least $455 per week paid
on a salary or fee basis and that it may also include commissions. 29 C.F.R. § 541.601(b)(1). In
addition, it appears to the Court that the requirement of $455 per week paid on a salary or fee basis
simply means that at least $23,600.00 ($455 x 52 weeks) of the $100,000.00 per year is guaranteed.
See Anani v. CVS RX Serv., Inc., 730 F.3d 146, 148 (2d Cir. 2013) (“Subsection 601(b) adds
refinements, inter alia: (i) under (b)(1), to be exempt, the employee’s ‘[t]otal annual
compensation’ must include $455 weekly ‘on a salary or fee basis,’ i.e., guaranteed”) (Emphasis
added). The Defendants vigorously dispute such interpretation, arguing, “There is no explicit
requirement in the regulations that employees paid on a fee basis be guaranteed since it cannot be
known whether the $455 per week requirement has been met until after the job has been completed
and the number of work hours required for completion is known.” [Doc. 237 at 9]. The Court’s
interpretation, however, is consistent with the definitions of “salary basis” which is defined as a
“predetermined amount,” see 29 C.F.R. § 541.602, and “fee basis,” which is defined as “an agreed
sum for a single job.” 29 C.F.R. § 541.605.
To be sure, the Defendants argue that the commissions paid to the Plaintiffs constitute a
“fee basis” because the Plaintiffs were “paid on an agreed sum for a single job regardless of the

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time required for its completion.” [Doc. 237 at 6]. The Defendants rely on 29 C.F.R. § 541.605
in support of their argument, which provides as follows:
(a) Administrative and professional employees may be paid on a fee
basis, rather than on a salary basis. An employee will be
considered to be paid on a “fee basis” within the meaning of
these regulations if the employee is paid an agreed sum for a
single job regardless of the time required for its completion.
These payments resemble piecework payments with the
important distinction that generally a “fee” is paid for the kind
of job that is unique rather than for a series of jobs repeated an
indefinite number of times and for which payment on an
identical basis is made over and over again. Payments based on
the number of hours or days worked and not on the
accomplishment of a given single task are not considered
payments on a fee basis.
(b) To determine whether the fee payment meets the minimum
amount of salary required for exemption under these regulations,
the amount paid to the employee will be tested by determining
the time worked on the job and whether the fee payment is at a
rate that would amount to at least $455 per week if the employee
worked 40 hours. Thus, an artist paid $250 for a picture that took
20 hours to complete meets the minimum salary requirement for
exemption since earnings at this rate would yield the artist $500
if 40 hours were worked.
29 C.F.R. § 541.605. 3 The Defendants argue that their method of paying commissions is similar
to the example used in the Regulation. The Defendants explain that a typical commission is 6%
of the sale price. The Defendants state that if their sales representatives can achieve certain sale
thresholds, they can be entitled to receive a bonus of an additional 1% to 9% on all sales for the
month. See [Doc. 238-2] (Deposition of Jesse Pierce) (“It was 100 percent commission. So if you
were not good at selling, you didn’t last very long.”). The Defendants continue that commissions
vary based on the number of points sold and can range from a few hundred dollars to thousands of
3

As noted above, 29 C.F.R. § 541.605’s language limits fee basis compensation to
administrative and professional employees, not executive employees on which the Defendants’
argument relies.
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dollars. Further, the Defendants state that a commission could be earned in a few hours or the
sales representative may work many hours before making a sale and earning a commission.
The Court disagrees. The Defendants do not offer any evidentiary support regarding how
commissions are structured, nor do they explain what constitutes a “typical” commission. In any
event, even if Sales Representatives earned 6% commission on the sales price, the Court agrees
with the Plaintiffs that the commissions paid herein are different than the example used in the
above Regulation. As the Plaintiffs have emphasized, the artists gets the agreed-upon fee payment
regardless of the result of the job—here, the Plaintiffs were paid commissions only when they
produced a sale. See [Doc. 238-2] (Deposition of Jesse Pierce) (“It was 100 percent commission.
So if you were not good at selling, you didn’t last very long.”)
In addition, the Defendants rely on Herr v. McCormick Grain-Heiman Co., Inc., No. 921321, 1994 WL 544513 (D. Kan. Sept. 13, 1994) in support of their argument that commissions
are fees. One of the issues before the court in Herr was whether the plaintiff was exempted under
the administrative exemption.

Id. at *3.

The court addressed whether the plaintiff was

compensated on either a salary or a fee basis. Id. The court explained that the plaintiff’s source
of compensation was a commission derived from the profits of the grain merchandising
transaction. Id. The court opined that the plaintiff’s “compensation was not a salary because it
was not predetermined and was subject to the reduction based upon the quantity or quality of his
work.” Id. Ultimately, the court deemed the plaintiff’s compensation as a fee. Id. The court
explained:
A fee is an agreed upon sum for a single job, regardless of the time
expended, and not for a series of jobs. See 29 C.F.R. §§ 541.213,
541.313(b) (1993). Again, this is a legal interpretation, not a
question for a jury. Here, the plaintiff, as a grain merchandiser,
conducted a series of sales that were repeated an indefinite number
of times during the year. By the same token, however, he was paid
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an agreed upon sum—20% commission of the profits earned—for a
single job—each sale. The Code of Federal Regulations (Code) does
not address commission as a form of compensation. Nonetheless,
based upon how the merchandiser carries out each assignment and
how the merchandiser is paid on the strength of each sale, this court
is satisfied the definition of fee encompasses commissions. For the
purpose of this case, the court finds the plaintiff's compensation on
a commission basis fits squarely within the definition of fee found
at § 541.313(b).

Id.
While the Court observes that the issue is similar as the issue presented in Herr, the Court
finds Herr inapplicable and unpersuasive. First, the Tenth Circuit Court of Appeals vacated the
court’s rulings. Herr v. Heiman, 75, F3d 1509 (10th Cir. 1996). While the Tenth Circuit did not
directly opine on whether the plaintiff’s commissions constituted a fee basis, the court explicitly
vacated the ruling because the district court ruled that the plaintiff was an employee, instead of an
independent contractor, which was a question for the jury. Id. at 1513. The Tenth Circuit reasoned,
“[T]he district court’s finding that Mr. Herr was an exempt employee under the Fair Labor
Standards Act necessitates the finding that he was an employee. This finding is thus vacated as
premature and the issue is remanded.” Id.

Second, the Court finds the district court’s ruling

inapplicable here because it addressed the administrative exemption, and not the executive
exemption.
Finally, in their Reply, the Defendants assert that the Department of Labor “is comfortable
with commissions satisfying the salary or fee basis compensation requirements so long as they
otherwise meet the pertinent definitions of salary or fee basis compensation.” [Doc. 269 at 7].
The Defendants cite to an Opinion Letter by the Department of Labor. In the Opinion Letter, the
Department of Labor states that “[i]t is immaterial what specific terms (i.e., draw against
commissions, draw plus extra compensation, offset method) an employer uses when compensating
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employees on a fee or commission basis.” Opinion Letter Fair Labor Standards Act (FLSA), 2006
WL 3832994, at *7 (Nov. 27, 2006). The Department of Labor, however, was addressing
registered representatives who received “a guaranteed minimum predetermined payment that
meets or exceeds the $455 per week minimum salary requirement for the administrative
exemption.” Id. at *6. The Department of Labor explained that the “registered representatives
may earn compensation above the guaranteed minimum amount from either commissions or fees
or a combination of both.” Id. Further, the Department of Labor stated:
The regulations allow payments in addition to the minimum salary
amount to exempt employees without losing the exemption or
violating the salary basis requirement.
An employer may provide an exempt employee with additional
compensation without losing the exemption or violating the salary
basis requirement, if the employment arrangement also includes a
guarantee of at least the minimum weekly-required amount paid on
a salary basis. Thus, for example, an exempt employee guaranteed
at least $455 each week paid on a salary basis may also receive
additional compensation of a one percent commission on sales. An
exempt employee also may receive a percentage of the sales or
profits of the employer if the employment arrangement also includes
a guarantee of at least $455 each week paid on a salary basis.

Id. The compensation plan discussed by the Department of Labor in its Opinion Letter is different
than the commissions herein because the registered representatives “at all times [was] guaranteed
and regularly receive[ed] no less than the predetermined amount equal to the minimum salary
requirement set forth in 29 C.F.R. § 541.600, and often also receive[d] significant additional
compensation from commission or fees.” Id. at *3
Accordingly, the Courts finds that the Defendants have not shown that the Plaintiffs were
paid a “total annual compensation,” as that term is defined in 29 C.F.R. § 541.601(b)(1).

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B.

Duties Test

Because the Court has determined that the Defendants have not shown that the Plaintiffs
were paid a total annual compensation, it is unnecessary to address whether the Defendants have
established the executive exemption duties test. In any event, the Court will briefly address this
issue.
Specifically, 29 C.F.R. § 541.100 provides that the term “employee employed in a bona
fide executive capacity” shall mean:
(1) Compensated on a salary basis at a rate of not less than
$455 per week (or $380 per week, if employed in American
Samoa by employers other than the Federal Government),
exclusive of board, lodging or other facilities;
(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, promotion or any other change of status
of other employees are given particular weight.

29 C.F.R. § 541.100. Pursuant to the highly compensated employee exemption, upon which the
Defendants base their arguments, the Defendants only need to show that the employee
“customarily and regularly performs any one or more of the exempt duties or responsibilities.” 29
C.F.R. § 601(a); see also 29 C.F.R. § 541.601(c) (“A high level of compensation is a strong
indicator of an employee’s exempt status, thus eliminating the need for a detailed analysis of the
employee’s job duties.”).
In the present matter, the Defendants have not established that there is no genuine issue of
material fact to entitle them to summary judgment on this issue. To the contrary, it appears to the
14

Court that the Defendants did not provide a guaranteed salary and that these Sales Representatives
were just that—Sales Representatives whose primary duty was sales, not management. Further,
the Court finds that the Defendants have not established that the Plaintiffs had the authority to hire
or fire or that they “customarily and regularly” directed the work of other employees. To the extent
the Defendants have such proof and evidence of such facts, in light of the Plaintiffs’ denials of the
same, these simply constitute questions of fact to be determined at trial. As such, summary
judgment is inappropriate at this stage.
V.

CONCLUSION
Accordingly, for the reasons stated herein, the Court finds the Defendants’ Motion for

Summary Judgment as to Certain Highly Compensated Employees [Doc. 236] is DENIED.
IT IS SO ORDERED.
ENTER:

s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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