West v. Emeritus Corporation

Filing 37

MEMORANDUM AND ORDER: For the reasons discussed herein, the Motion to Alter or Amend filed by Emeritus is DENIED. Signed by District Judge Aleta A. Trauger on 3/7/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CARA L. WEST,

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Plaintiff,
v.

EMERITUS CORPORATION,
Defendant.

Civil No. 3:15-cv-437
Judge Aleta A. Trauger

MEMORANDUM & ORDER
The defendant, Emeritus Corporation (“Emeritus”), has filed a Motion to Alter or Amend
(Docket No. 30) the court’s Order denying its Motion for Summary Judgment. For the following
reasons, the motion will be denied.
BACKGROUND
This case arises from the plaintiff’s employment as the Resident Care Director of the
Terrace at Bluegrass, a residential living community operated by the defendant, Emeritus. The
plaintiff, Cara L. West, filed this action pursuant to the Fair Labor Standards Act (“FLSA”),
alleging that Emeritus failed to pay her overtime wages for time that she routinely worked over
40 hours per week. (Docket No. 1 ¶¶ 16–19.) On October 7, 2016, Emeritus filed a Motion for
Summary Judgment seeking the dismissal of Ms. West’s claims on the ground that she was
employed in a bona fide executive capacity and, therefore, exempt from the FLSA’s overtime
provisions. (Docket No. 22.) On December 14, 2016, the court entered a Memorandum (the
“Memorandum”) (Docket No. 28) and Order (the “Order”) (Docket No. 29), denying the Motion
for Summary Judgment. Emeritus now requests that the court “correct” certain findings in the
Memorandum and amend the Order to grant summary judgment on Ms. West’s claims. (Docket
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No. 30.)
Of relevance to the pending motion, the court denied Emeritus’s Motion for Summary
Judgment because it found that Emeritus failed to carry its affirmative burden of demonstrating
that Ms. West was employed in a bona fide executive capacity. (Docket No. 28, p. 15.) 1
Specifically, the Memorandum concludes that Emeritus had failed to produce “clear and
affirmative evidence” demonstrating that Ms. West’s “primary duty” was management, a key
element in determining whether an “employee [is] employed in a bona fide executive capacity”
pursuant to regulations promulgated by the Department of Labor. (Id. at pp. 11–12 (quoting Ale
v. Tenn. Valley Auth., 269 F.3d 680, 691 n.4 (6th Cir. 2001); 29 C.F.R. § 541.100(a)).) The
Memorandum reaches this conclusion after examining a number of factors that – pursuant to
Department of Labor regulations – are relevant to determining whether exempt, managerial work
is the primary duty of an employee, including (1) the amount of time spent performing exempt
work, (2) the relative importance of exempt duties as compared with non-exempt duties, (3) the
employee’s relative freedom from supervision, and (4) the relationship between the employee’s
salary and the wages paid to others for the non-exempt work performed by the employee. (Id. at
pp. 13–15 (citing 29 C.F.R. § 541.700).)
Based on these factors and the evidence in the record, which the court was obligated to
construe in the light most favorable to Ms. West, the Memorandum finds that Emeritus had
failed to demonstrate that these factors weighed in favor of a finding that Ms. West’s primary
duty was management. (Id. at p. 15.) It further concludes that “the parties’ evidence boils down
to differing characterizations of Ms. West’s duties, with Emeritus characterizing Ms. West as a
manager who occasionally performed nursing work and Ms. West characterizing herself as more
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The court’s reasoning is fully laid out in the Memorandum (Docket No. 28), familiarity
with which is presumed.
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of an [Licensed Practical Nurse (“LPN”)] than a manager.” (Id. at pp. 15–16.) Based on these
differing characterizations of Ms. West’s day-to-day duties, the Memorandum concludes that it is
appropriate to allow the jury to “weigh the[ir] credibility” and, therefore, denied Emeritus’s
Motion for Summary Judgment. (Id. at p. 16 (quoting Henry v. Quicken Loans, Inc., 698 F.3d
897, 901 (6th Cir. 2012)).)
On December 28, 2016, Emeritus filed a Motion to Alter or Amend the Memorandum
and Order (Docket No. 30), accompanied by a Memorandum of Law (Docket No. 31). In the
motion, Emeritus requests that the court “reconsider its conclusion that [the] [p]laintiff’s
‘primary duty’ was not management and amend its Order to grant [Emeritus’s] Motion for
Summary Judgment.” (Docket No. 30, p. 2.) Specifically, Emeritus seeks to “correct” the
following:
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By focusing on the Executive Director’s physical presence and her own
management authority, the [Memorandum] ignores overwhelming testimony
and controlling well-established legal authority related to [Ms. West]’s
relative freedom from supervision.

•

By focusing solely on [Ms. West]’s LPN-related duties, the [Memorandum]
ignores that [Ms. West] concurrently engaged in managerial and nonmanagerial duties – which the Sixth Circuit has repeatedly endorsed for
exempt executives. Moreover, based on standards within the Sixth Circuit,
[Ms. West]’s managerial duties were necessarily more critical to [Emeritus]
than her non-managerial duties, given the nature and scope of [Emeritus]’s
operations and [Ms. West]’s managerial responsibilities.

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By focusing on the wages of the LPNs [Ms. West] supervised, the
[Memorandum] ignores that, in addition to receiving a higher salary as
compared to the hourly wages of non-exempt associates, [Ms. West] was
eligible for a bonus due to her management status.

(Docket No. 31, pp. 1–2.) “When analyzed under the correct legal standard,” Emeritus argues,
Ms. West’s “sworn testimony provides all of the facts needed to conclude that her primary duty
was management – and to conclude that she qualified as a bona fide executive.” (Docket No. 31,
p. 12.)
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LEGAL STANDARD
While the Federal Rules of Civil Procedure fail to explicitly address motions to
reconsider interlocutory orders, “[d]istrict courts have authority both under common law and
Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of
final judgment.” 2 Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959
(6th Cir. 2004) (citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)); accord In re Life
Investors Ins. Co. of Am., 589 F.3d 319, 326 n. 6 (6th Cir. 2009). Thus, district courts may
“afford such relief from [interlocutory orders] as justice requires,” a standard that “vests
significant discretion in district courts.” Rodriguez, 89 F. App’x at 959. “[C]ourts will find
justification for reconsidering interlocutory orders whe[re] there is (1) an intervening change of
controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent
manifest injustice.” Louisville/Jefferson Cnty., Metro. Gov't v. Hotels.com, L.P., 590 F.3d 381,
389 (6th Cir. 2009) (quoting Rodriguez, 89 F. App’x at 959).
ANALYSIS
Emeritus has not argued that any intervening change in controlling law has occurred, nor
has it attempted to introduce newly available evidence justifying reconsideration of the court’s
denial of summary judgment. The grounds for reconsideration raised in the motion consist
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Emeritus has incorrectly cited Federal Rules of Civil Procedure 59 and 60 as the basis
for its Motion to Alter or Amend. Rule 59 concerns only motions to alter or amend a final
judgment, which has not been entered in this case. See Glass v. Nw. Airlines, Inc., 798 F. Supp.
2d 902, 906 n.1 (W.D. Tenn. 2011). Rule 60, on the other hand, allows the court to “correct a
clerical mistake or a mistake arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record.” The basic purpose of this rule is “to authorize the
court to correct errors that are mechanical in nature,” but it does not authorize the court “to
revisit its legal analysis or otherwise correct an ‘error[] of substantive judgment,’” as Emeritus
requests of the court. In re Walter, 282 F.3d 434, 440 (6th Cir. 2002) (quoting Olle v. Henry &
Wright Corp., 910 F.2d 357, 364 (6th Cir. 1990)).
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primarily of Emeritus’s disagreements with the factual and legal conclusions drawn by the court
in the Memorandum and Order. Reconsideration of an order, however, is not justified by a
party’s mere disagreement with the court’s ultimate decision or its belief that the decision is
based on insufficient legal analysis. See Starlink Logistics, Inc. v. ACC, LLC, No. 1:12–0011,
2013 WL 2177908, at *8 (M.D. Tenn. May 20, 2013) (“While the plaintiff may disagree with the
court’s decision, that disagreement alone is insufficient to warrant reconsideration.”). Rather, to
warrant reconsideration, Emeritus must demonstrate “a need to correct a clear error or prevent
manifest injustice,” which it has failed to do. After reviewing the record and the arguments
made in support of the pending motion, the court finds no error in need of correction or manifest
injustice done to Emeritus.
With regard to the court’s consideration of Ms. West’s relative freedom from supervision,
Emeritus argues that the court committed an error by applying a heightened requirement that has
been expressly rejected by the Sixth Circuit. (Docket No. 31, pp. 3–4.) According to Emeritus,
by considering the fact that Ms. West’s supervisor maintained an office on site and noting that
Ms. West did not have the “autonomy inherently associated with being the most senior on-site
employee,” the court ignored Sixth Circuit precedent stating that an employee need only be
“relatively” free from direct supervision in order to support a finding that her primary duty is
management. (Id. (citing Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 469, 508 (6th Cir.
2007)).) This argument, however, relies on a mischaracterization of the reasoning outlined in the
Memorandum, which includes the on-site presence of Ms. West’s supervisor as only one of
multiple pieces of evidence belying Emeritus’s argument that Ms. West was “almost completely
independent” in her day-to-day management responsibilities. (Docket No. 28, pp. 14–15 (citing
Docket No. 22-1, p. 15).) Moreover, the Memorandum does not “limit the executive exemption

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to the most senior employee on site,” as Emeritus claims it does. (Docket No. 31, p. 4.) Rather,
the Memorandum merely concludes that, based on the on-site presence of Ms. West’s supervisor
and multiple examples of ways in which that supervisor constrained Ms. West’s ability to carry
out her day-to-day duties, it could not “determine the extent to which Ms. West was free from
direct supervision.” (Docket No. 28, pp. 14–15.)
Emeritus also argues that, based on language in this court’s past decision in Roberts v.
Dolgencorp, Inc., No. 2:09-0005, 2010 WL 4806792, at *10 (M.D. Tenn. Nov. 18, 2010)
(Trauger, J.), Ms. West was required to demonstrate that she experienced “considerable, direct
supervision” over her work on a “day-to-day basis” in order to survive summary judgment. (Id.)
It is well-established in the Sixth Circuit, however, that the executive exemption from the
protections of the FLSA is an affirmative defense on which the employer, Emeritus, bears the
burden of proof, and not the employee, Ms. West. (Docket No. 28, p. 11 (quoting Thomas,
506 F.3d at 502).) Upon review of the Roberts decision and the specific facts supporting the
court’s reasoning in that case, the court finds no evidence that the court intended to shift an
evidentiary burden that rightfully falls on the defendant to the plaintiff, nor has Emeritus cited
any additional caselaw supporting such a shift. The Memorandum, therefore, contains no clear
error in its consideration of Ms. West’s freedom from supervision.
With respect to the relative importance of Ms. West’s management duties, Emeritus
argues that the court proceeded based on the “flawed premise that [Ms. West’s] managerial
duties were mutually exclusive to her resident care duties” and failed to recognize Sixth Circuit
precedent emphasizing that “employees may qualify as exempt when concurrently engaged in
managerial and non-managerial job duties.” (Docket No. 31, pp. 7–8.) While it is true that
employees may qualify as exempt, even when they are concurrently engaged in exempt and non-

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exempt tasks, the mere fact that managerial and non-managerial duties are undertaken
concurrently does not – on its own – require a finding that the employee’s primary duty is
management, nor does it necessarily confer exempt status on work that would otherwise be
considered non-exempt. The parties did not agree on how often or to what extent Ms. West’s
provision of nursing care to community residents overlapped with her supervisory duties, and
they each produced evidence supporting their differing characterizations of the nature of her
work. 3 The Memorandum’s conclusion that Emeritus had failed to prove that Ms. West’s
management duties were more important than her nursing care, and its denial of summary
judgment, therefore, was not a clear error, nor did it work a manifest injustice on Emeritus.
With respect to the court’s comparison of Ms. West’s salary to the wages of others
performing exempt nursing work, Emeritus argues the court “ignore[d] that [Ms. West] was
eligible for a bonus due to her status as a manager,” even though “[c]ourts throughout the Sixth
Circuit have consistently included management-related bonuses when analyzing this factor.”
(Docket No. 31, p. 11.) In its Motion for Summary Judgment and Reply in support of that
motion, Emeritus never mentioned Ms. West’s eligibility for a bonus or argued that it supported
a finding that Ms. West had management as her primary duty. (See Dockets No. 22 & 27.) Even
if Emeritus had made that argument, however, the existence of the bonus does not change the
Memorandum’s ultimate conclusion. Emeritus has cited no evidence regarding the amount that
Ms. West received – or was likely to receive – as a bonus and, without that information, the court
can make no meaningful comparison of Ms. West’s salary to the wages of LPNs performing

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To the extent that Emeritus now argues that the provision of nursing care could qualify
as “management” for purposes of the FLSA, the Memorandum already noted that such work did
not appear to “fall within the definition of ‘management’ found in Department of Labor
regulations.” (Docket No. 28, p. 12 n.5 (citing 29 C.F.R. § 541.102).)
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similar nursing work. For example, a yearly bonus of $5,000 makes a substantial difference to
the comparison made in the Memorandum, whereas a yearly bonus of $50 does not. 4 The burden
falls on Emeritus to produce “clear and affirmative evidence” of its claim that Ms. West’s
primary duty was management, and it has – again – failed to provide evidence sufficient to
oblige the court to find in its favor.
In sum, having reviewed Emeritus’s motion, the court finds no basis for reconsideration
of its decision to deny summary judgment. Before rendering a decision, the court considered the
arguments of the parties, the facts as construed in the light most favorable to Ms. West, and the
high burden placed on Emeritus as a defendant seeking summary judgment on an affirmative
defense. Emeritus has failed to demonstrate that the Memorandum contains any clear error of
fact or law or that manifest injustice has been done and, for these reasons, the court will deny
Emeritus’s motion.
CONCLUSION
For the reasons discussed herein, the Motion to Alter or Amend filed by Emeritus is
DENIED.
It is so ORDERED.
Enter this 7th day of March 2017.

___________________________
ALETA A. TRAUGER
United States District Judge

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Assuming 50 weeks of paid work per year, a yearly bonus of $5,000 is equivalent to an
extra $100 of pay per week, whereas a yearly bonus of $50 is equivalent to $1 of pay per week.
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