Brooks et al v. Tire Discounters, Inc.

Filing 90

MEMORANDUM signed by District Judge Aleta A. Trauger on 3/8/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KEVIN BROOKS, DAVID GATER,
MATTHEW WARD, CRAIG
WORKMAN, DANIEL EMBRY and
JOSEPH GAMMON,
Plaintiffs,
v.
TIRE DISCOUNTERS, INC.,
Defendant.

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Case No. 3:16-cv-02269
Judge Aleta A. Trauger

MEMORANDUM
Before the court are the defendant’s six separate Motions for Summary Judgment (Doc.
Nos. 49–54), seeking judgment in the defendant’s favor on the six plaintiffs’ claims under the
Fair Labor Standards Act (“FLSA”) and state law for overtime compensation and other damages.
Each motion has been fully briefed and is ripe for review. For the reasons set forth herein, the
motion seeking judgment in the defendant’s favor on the claims brought by plaintiff David Gater
(Doc. No. 49) will be granted, and the other motions (Doc. Nos. 50–54) will be denied insofar as
they pertain to the FLSA claims but granted with respect to the state law claims.
I.

PROCEDURAL BACKGROUND
Plaintiffs Kevin Brooks, Daniel Embry, Joseph Gammon, David Gater, Matthew Ward,

and Craig Workman filed this lawsuit in August 2016 against their former employer, defendant
Tire Discounters, Inc. (“TDI”), asserting that, while employed by TDI, they regularly performed
work in excess of forty hours per week and that TDI willfully failed to pay them overtime wages
as required by the FLSA. Instead, they were misclassified as employees who were “exempt”
from the requirements of the FLSA pertaining to overtime pay and paid a salary that did not vary

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based on the number of hours worked. In addition to their FLSA claims, they assert state law
claims for “Unjust Enrichment/Quantum Meruit/Breach of Contract.” (Compl., Doc. 1, at 3.)
They seek a declaratory judgment that TDI violated the FLSA and that the violation was willful,
an award of damages in the amount of unpaid compensation owed under the FLSA, plus interest
and liquidated damages, attorneys’ fees and costs. (Id. at 4.)
TDI’s Motions for Summary Judgment argue that each plaintiff was properly classified as
exempt under the FLSA and, as such, was not entitled to overtime pay and that their state law
claims are insufficiently pleaded and preempted by the FLSA. With respect to plaintiff Gater,
TDI also argues that his claims are barred by the applicable statute of limitations.
In their joint Response to the defendant’s Motions for Summary Judgment, the plaintiffs
argue that TDI has the burden of proving an exemption under the FLSA and that TDI cannot
establish that any of the plaintiffs qualifies for the exemption for “executive” employees under
29 C.F.R. § 541.100(a). In particular, they argue that there is a material factual dispute as to
whether the plaintiffs had the authority to hire or fire other employees and as to whether the
plaintiffs’ suggestions and recommendations as to hiring, firing and promotions were given
“particular weight.” Id. § 541.100(a)(4). The plaintiffs argue that there is also a question of fact
as to whether the defendant’s violation of the FLSA was “willful” for purposes of application of
the statute of limitations to Gater’s claims. They do not address the defendant’s argument that
their state law claims are preempted by the FLSA.
II.

MATERIAL FACTS 1
Defendant TDI is in the business of selling tires and other car parts, servicing vehicles,

and installing tires. During 2014 and 2015, the general time frame relevant to this lawsuit, TDI
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Unless otherwise indicated, the facts set forth herein are undisputed for purposes of the
defendant’s motions.

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was rapidly expanding and opened several new stores in and around the Nashville area. The
plaintiffs were hired to work in these new stores.
Each TDI store is managed by a general manager (also called a “store manager”), who is
responsible for running the entire store. Each store generally has several sales associates who
work in the front of the store and are primarily responsible for selling tires and other equipment.
The sales associates report directly to the general manager. The back of the store, or service
center, is where service technicians and tire technicians work. Most TDI stores have a service
manager who is responsible for managing the service center. The technicians report directly to
the service manager, who reports to the general manager. The general manager reports to a
regional manager.
Each plaintiff in this lawsuit worked for TDI as a general manager, service manager, or
both during the 2014–2016 time frame. Most of them started as manager trainees. The regional
managers to whom they reported were Rafe Barber and, later, Dan Keim.
It is undisputed for purposes of the defendant’s Motions for Summary Judgment that the
positions of general manager and service manager were at all times salaried positions and that
each plaintiff, at all times during his tenure with TDI, earned more than $455 per week.
Generally, they earned between $600 and $750 per week and were also eligible for monthly
commissions and spiffs, defined as “Bonuses based on Individual Performance.” (Doc. No. 43-3,
at 1.) The plaintiffs also concede, at least for purposes of summary judgment, that, at all times
during their employment, they supervised and managed at least two other employees, that the
primary duty of a general manager consisted of managing or running the particular store to
which he was assigned, and that the primary duty of a service manager consisted of managing or
running the service center of a particular store.

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TDI expected managers to work fifty-two scheduled hours per week and understood that
they generally worked more than that during the time period in question. All of the plaintiffs
maintain that they worked substantially in excess of forty hours per week on a regular basis
during their employment.
Jamie Ward, TDI’s Chief Operating Officer, submitted an Affidavit in which he attests
that “[b]oth the general manager and the service manager have the power, and authority to,
interview, hire, discipline and terminate employees.” (Doc. No. 49-1, at 3, J. Ward Aff. ¶ 22. 2)
He also attests that both general managers and service managers undergo “a full day training
program” “to go over the job responsibilities and make sure there was a uniform understanding
by the managers of their primary duties.” (Id. ¶ 25.) The written Job Description for general
managers states broadly that the “store manager is responsible for recruiting, hiring, training,
developing and evaluating the staff [of] the retail store location.” (Doc. No. 49-1, at 5.) The
Service Manager Job Description states that the service manager has the authority to “[a]ssist in
the hiring, discipline and termination of shop staff.” (Id. at 6.)
A.

Kevin Brooks

Plaintiff Kevin Brooks was hired by TDI in March 2014 as a manager trainee. He became
a general manager in July 2014, was put on a Performance Improvement Plan in October 2014,
and was demoted to service manager in February 2015. He was eventually promoted back to the
position of general manager in November 2015 but quit his job in February 2016.
Brooks testified in his deposition that he does not specifically recall ever having seen a
copy of the general manager Job Description, but he conceded that it was probably in the

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He equivocates somewhat on this point with regard to service managers, stating that
they are “given the authority to assist in hiring employees for the service center including the
service center employees.” (Ward Aff. ¶ 19 (emphasis added).)

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materials given to him when he was hired. (Doc. No. 43, Brooks Dep. 35–36.) He was sent to
Cincinnati for a week of training, which consisted of being placed in stores that were shortstaffed and learning while doing. He sat in on one day of training at the corporate office, but that
training consisted of talk about “breaks and stuff like that.” (Id. at 34.) They did not talk about
“management and things like that.” (Id.) He denies ever seeing the Service Manager Job
Description prior to his deposition. (Id. at 72.)
He denies ever interviewing any prospective employees. (Id. at 47.) Instead, he “talked to
a couple employees while they were waiting to be interviewed by Dan [Keim],” the regional
manager. (Id.) Keim “sometimes” would ask Brooks what he thought about the interviewees, but
Brooks himself “never hired a single soul.” (Id. at 74.) He did have occasion to recommend
technicians for advancement or promotion (see id. at 82–83), but it is unclear how much weight
his recommendations carried.
He never terminated anyone and denies that he had the authority to do so: “That was
Dan’s job, Dan or Rafe’s job.” (Id. at 62.) But Brooks does not recall that anyone was actually
terminated from his store while he was working for TDI. He remembers that he had “one tire
tech” whom he “didn’t want there,” and that tech was moved to a different store. (Id. at 62–63.)
B.

Daniel Embry

Embry started as a sales associate at TDI’s Smyrna store in December 2014 and reported
to Kevin Brooks. (Doc. No. 47, Embry Dep. 16.) He was sent to Cincinnati soon after he was
hired, to receive training as a sales associate. (Id. at 19.) He was promoted to service manager at
the Murfreesboro Medical Center store in June 2015. He was promoted to general manager in
August 2015. (Id. at 27.) He left the company in January or February 2016. (Id. at 32.)

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Embry never saw a job description for general manager prior to preparing for his
deposition. (Id. at 32.) He does not recall if anyone was hired at his store while he was service
manager, but he did not sit in on any interviews. Likewise, he does not recall any terminations
during his tenure. (Id. at 29.) When asked if he understood that his role as manager was to
“manage and direct the operations of a Tire Discounters retail store,” he agreed that that is what
his job “should have been,” but, he maintained, “Dan Keim literally told [him] everything [he]
had to do as a general manager.” (Id. at 34.) He backtracked somewhat regarding the scope of
that statement, explaining that, other than selling tires, “I couldn’t do anything else without
approval . . . . I had to get approval for anything that I needed in that store, to schedule my own
guys I had to get approval.” (Id.) For example, when it came to scheduling, he was required to
fill out schedules each week, but Keim invariably changed them. (Id. at 35.)
He testified unequivocally that he was not allowed to hire or fire employees and “wasn’t
allowed to really even interview.” (Id. at 43–45.) He wanted to fire a particular employee after
the employee cursed at him and walked out of the store, but Keim did not allow it. (Id. at 45.) He
testified that Keim told him specifically that he was not “allowed to even hire a tire tech.” (Id.)
He also tried to get a sales associate promoted to service manager, but his recommendation “fell
on deaf ears.” (Id.) With respect to technicians, if they did their training, they generally got
promoted as a matter of course, once he “sent the training up to corporate.” (Id. at 45–46.) He did
not believe that his recommendation for their promotion entered into the picture.
C.

Joseph Gammon

Plaintiff Joe Gammon began working for TDI in January 2015 and left in March 2016.
He was hired as a manager trainee and was sent for two weeks of training in Cincinnati, which
he found very helpful. (Doc. No. 48, Gammon Dep. at 42.) However, he denied ever seeing the

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written Job Description for the general manager or service manager position prior to his
deposition. (Id. at 104.)
A month after his hire, he was promoted to service manager. He worked as service
manager for three months before becoming general manager in June 2015. He was moved to a
different store that was chronically understaffed, but he was not allowed to hire more staff to
meet the store’s needs. Keim kept telling him, “it’s a new store and we’re trying to find the right
people,” but “it was always the roundabout.” (Id. at 69.) He testified that he trained at least two
employees whom he hoped he would be allowed to keep as employees at his store, but it was not
his “call.” (Id. at 70.) They were sent to other stores instead. (Id. at 86.) He never had a service
manager the entire time he was employed as general manager and was not given the option of
hiring one. (Id. at 91, 146.) Moreover, while he would prepare weekly schedules for his
employees, Keim invariably changed them and, not infrequently, pulled employees from
Gammon’s store to place them at different stores, requiring Gammon to cover as best as he
could. Gammon did not have authority to give an employee a day off—Keim had to approve it.
As an example, Gammon relayed an instance when he had two employees who needed
days off back to back, so the schedule Gammon prepared reflected their requests. The schedule
Keim sent back disregarded the employees’ requests and gave each employee the day off the
other had requested:
One guy had to have a Tuesday off, the other guy had to have a Wednesday off.
And so when I submitted the schedule to Dan [Keim], it was like that. He didn’t
like that. He swapped it, for whatever reason. He swapped it back. So that would
have meant both guys were going to miss whatever appointment they were going
to have.
Id. at 92–93. Gammon had no authority to give the men the days off that they had requested, but
the two employees more or less took matters into their own hands:
And so when the schedule came back, . . . I told the guys, . . . he swapped it back.

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I said, I think that he’s going to expect you guys to work like this. And . . . what
ended up happening was, I believe the first employee on the Tuesday, he just
ended up calling out.
So, therefore, it just meant by default now I had to call the other guy and see if he
could come in and cover it. And so he did. And then the other one . . . , they
had . . . figured out that they could do this and get around it. And so that’s what
they ended up doing.
Id. at 93. Keim was not pleased by the work-around and implicitly threatened Gammon’s job
over the matter:
Well, when Dan found out that they did not follow the schedule that he had set
forth, he told me that, you know, it’s a condition of employment. They’re going to
follow the schedule that I submit to you, not the one you submit to me.
(Id. at 93–94.)
Gammon denies ever sitting in on, or participating in, interviews of prospective
employees. (Id. at 107.) He also denies that he had the ability or discretion to fire employees. He
provided an example of an employee who performed poorly and whom he wanted to fire. He
brought the issue to Keim’s attention, but Keim told him “it wasn’t up to [him] to make that
decision.” (Id. at 129.) He agrees that he could make the recommendation but maintains that he
could not make the decision and that his recommendation was disregarded in that instance. Later,
in the case of two employees who committed a similar but less egregious mistake, Gammon
wanted to give them a written warning instead of firing them. Keim overrode that decision as
well and forced him to fire them:
They’re going to be terminated. You don’t have a choice in this matter. He let me
know that I didn’t have a choice in that matter. . . .
When I asked him, I said . . . , well, what if I say no, I don’t agree with that and
I’m not going to present this [termination notice]? He told me my job would be in
jeopardy. It was a condition of employment. That was—that was something he
used a lot, condition of employment.
(Id. at 135–36.)

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Gammon also testified that, as service manager, he never participated in hiring, formal
discipline, or terminations. (Id. at 140.)
D.

David Gater

Plaintiff David Gater had two stints at TDI, the first in Kentucky, from 2010 to 2013. He
was recruited to work for the company again in 2014 by Rafe Barber and came on board as a
manager trainee at TDI’s Mount Juliet store in March 2014. (Doc. No. 44, Gater Dep. 26.)
He was promoted to service manager at the Smyrna store within three or four weeks. (Id.
at 29.) He held the position from May through August 12, 2014, when he resigned because the
hours were too long. (Id. at 31–32; Resignation Notice, Doc. No. 44-2.) The Complaint in this
case was filed on August 23, 2016. (Doc. No. 1.)
E.

Matthew Ward

Ward was employed as a manager trainee at TDI in June 2014. He trained for a week at
the Mount Juliet store and then was moved to Smyrna, where he stayed for the rest of his tenure
with the company. (Doc. No. 45, Ward Dep. 16–22.) He was promoted to service manager in
November 2014. He was unhappy with that promotion, because he had been led to believe he
would be promoted to a general manager position, where he would have had a better opportunity
to match the salary of the job he left to come to work for TDI. (Id. at 23.) He quit in February
2015, after giving two weeks’ notice. (Id. at 24.)
He never saw the Service Manager Job Description prior to his deposition. (Id. at 25.)
Although several tire technicians and mechanics were hired while he was service manager, he
never participated in any interviews of any candidates and was not asked his opinion of any of
the candidates. (Id. at 28.) He does not recall any terminations during his tenure, though several
people quit. He remembers that “one guy got terminated – well, I wouldn’t call it a termination,

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he turned in a notice, and when he turned in his notice . . . Dan Keim escorted him off the
property.” (Id. at 29.)
Ward also testified that he never “corrected or disciplined anybody at all.” (Id. at 29.)
Instead, he offered general guidance and corrections, “just general safety” precautions. (Id.) He
testified generally that “what’s seen on paper and what they try to get you to believe is not in fact
the realization and the happenings within Tire Discounters.” (Id. at 40–41.)
F.

Craig Workman

Craig Workman began his employment with TDI in November 2014. He believed that he
was hired to be a general manager with the possibility of moving up to regional manager for a
division that was opening up. (Doc. No. 46, Workman Dep. 26, 29–30.) He actually started as a
manager trainee, where, he maintains, he received very little training. (Id. at 34.) He was
promoted to general manager of the Smyrna store in February 2015. (Id. at 38–39, 68.) He quit in
October 2015. (Id. at 37.)
Workman testified specifically that he “was not allowed to hire. Dan [Keim] did all the
hiring.” (Id. at 57.) He stated that Keim also did all the interviewing, although Workman believes
he “might have sat in on one interview with him.” (Id. at 58.) On one occasion, however,
Workman recommended hiring a particular guy and communicated to human resources that he
could use the guy two days a week and that Joe Gammon, who was also short-handed, could use
the guy two days a week. Human resources forwarded the email to Keim, who responded to
Workman’s request by asking: “Will this guy be able to go to the new Brentwood store if
needed? Right now we are fully staffed at Smyrna and all 3 Murfreesboro stores for TTs [entrylevel tire technicians].” (Id. at 60–61; Doc. No. 46-4.) Workman testified that, although he felt
that he was shorthanded, Keim “didn’t think so.” (Workman Dep. 61.) Ultimately, Workman was

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not sure whether the person was hired at all, but he seemed to recall that Keim hired the person
but placed him at a different store, not Workman’s store. (Id. at 61–63.)
Workman also testified that he did not have ultimate authority related to the staffing of
his store: “I also complained [to the regional managers] that we didn’t have employees because
he [Keim] pulled them all out without my permission and [would] bring different employees in.”
(Id. at 71.)
Workman testified that he did issue formal discipline to employees, by going through
human resources and the company’s official policies for doing so. He initially stated that he
never personally fired anyone, but then recalled one instance when he was speaking to an
employee about redoing a job he had done incorrectly. He stated:
The employee started to walk off. You know what, forget it. I quit. You’ve been
pressuring me. You’re too – just started cussing, ranting, and raving. I said, you’re
gone, go, get your tools. I called Dan. I said, hey, this is what happened. He said,
let him go and contact HR.
And that’s the only one I can remember on that.
(Id. at 85.)
Workman does not recall having seen the general manager Job Description but concedes
that it was “probably . . . in the employee handbook,” which was provided to him. (Id. at 69.)
III.

SUMMARY JUDGMENT STANDARD
Rule 56 requires the court to grant a motion for summary judgment 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). To win summary judgment on a particular claim, the
moving defendant must show that, as a matter of undisputed material fact, the plaintiff cannot
establish at least one essential element of that claim. Once the moving party makes its initial
showing, the burden shifts to the plaintiff to provide evidence beyond the pleadings, “set[ting]

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forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren,
578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986). “In evaluating the evidence, the court must draw all inferences in the light most
favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At this stage, “‘the judge’s function is not . . . to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine issue for trial.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and the
party’s proof must be more than “merely colorable.” Anderson, 477 U.S. 242, at 252. An issue of
fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan, 578
F.3d at 374 (citing Anderson, 477 U.S. at 252).
IV.

ANALYSIS
A.

Statute of Limitations

A two-year statute of limitation applies to FLSA claims for unpaid overtime
compensation, “except that a cause of action arising out of a willful violation may be
commenced within three years after the cause of action accrued.” 29 U.S.C. § 255(a). “Willful
violation means a violation in circumstances where the agency knew that its conduct was
prohibited by the Act or showed reckless disregard of the requirements of the Act.” 5 C.F.R. §
551.104. Further, “[a]ll of the facts and circumstances surrounding the violation are taken into
account in determining whether a violation was willful.” Id. The plaintiff bears the burden of
proving willfulness. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
The defendant argues that plaintiff David Gater’s FLSA claims are subject to dismissal in

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their entirety, because Gater’s employment as a service manager with TDI ended more than two
years prior to the filing of the Complaint in this case, and there is no evidence of a willful
violation of the FLSA. It is undisputed that, unless the three-year limitations period for willful
violations applies, Gater’s FLSA claims are time-barred.
The evidence put forward by TDI in support of its argument shows that it consulted with
counsel prior to establishing the service manager position and that the Department of Labor
investigated in 2014 and 2015 and determined that the position was properly classified. (J. Ward
Aff. ¶¶ 18, 26; WHISARD Compliance Action Report, Doc. No. 49-1, at 8–9.) 3
In response, the plaintiffs point out that Gater testified that “the company had changed”
during the time between his first stint with TDI, which ended in 2013, and his second stint,
which began in 2014. (Gater Dep. 44; Doc. No. 71, at 12.) As a result of the changes, he felt he
was no longer able to provide meaningful input in the operations of the store. (Gater Dep. 44.)
The plaintiff argues on this basis that “Defendant knew how to allow Mr. Gater to conduct
business so as to make him exempt; however, that culture changed under the micromanaged
guidance of Mr. Keim and Mr. Barber.” (Doc. No. 71, at 12.)
In other words, the plaintiffs are essentially arguing that, because TDI was aware of the
existence of the FLSA and knew how to operate within its confines in 2013, its failure to do so in
2014 means that its violation of the FLSA was willful. The “knew or showed reckless disregard”
standard established by the regulations, however, does not embrace such a broad construction of
willfulness. Rather, the Supreme Court has held that “a standard that merely requires that an
employer knew that the FLSA ‘was in the picture’ . . . virtually obliterates any distinction
between willful and nonwillful violations.” McLaughlin, 486 U.S. at 132–33. The Court also
3

This Department of Labor investigation began after Gater’s employment ended. (See
Doc. No. 49-1, at 8 (identifying the period of investigation as 09/21/2014 to 01/11/2015).)

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rejected a standard that would require only a showing that the employer, “recognizing that it
might be covered by the FLSA, acted without a reasonable belief for believing that it was
complying with the statute,” noting that such a standard “would apparently make the issue in
most cases turn on whether the employer sought legal advice concerning its pay practices.” Id. at
134. As such, it would permit liability based on nothing more than negligence. Id. at 135.
Based on McLaughlin, courts within the Sixth Circuit have generally found the
willfulness standard met where there is evidence in the record that the employer actually knew
that its conduct violated the FLSA or was placed on notice that its conduct might violate the
statute, whether by prior Department of Labor investigations, by prior complaints or lawsuits
brought by employees, or otherwise. See, e.g., Herman v. Palo Group Foster Home, Inc., 183
F.3d 468 (6th Cir. 1999) (holding that the district court properly found that the defendants’
violations were willful where the company’s owner had been investigated for violations twice in
the past, paid unpaid overtime wages, received explanations of what was required to comply with
the Act, and assured the Department of Labor that he would comply in the future); Dole v. Elliott
Travel & Tours, Inc., 942 F.2d 962, 967 (6th Cir. 1991) (finding willfulness where the employer
had actual notice of FLSA requirements as a result of earlier violations, had agreed to pay unpaid
overtime wages, and had assured future compliance with the FLSA); Byrd v. ABC Prof’l Tree
Serv., Inc., 832 F. Supp. 2d 917, 921 (M.D. Tenn. 2011) (finding that the evidence of past
investigations and agreements to pay back wages constituted evidence of willfulness); Wilson v.
Guardian Angel Nursing, Inc., No. 3:07-0069, 2008 WL 2944661, at *20 (M.D. Tenn. July 31,
2008) (finding willfulness where the defendants purchased fifty percent of a company, with
knowledge that that company had previously been sued by the Department of Labor for overtime
violations and settled the suit by paying backpay to employees around the time of the agreement,

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but failed to ascertain whether violations were ongoing (citing Herman v. RSR Sec. Servs. Ltd.,
172 F.3d 132, 142 (2d Cir.1999) (finding recklessness where defendant company turned a blind
eye toward the FLSA violations of a company that defendants took over)); see also Thomas v.
Doan Const. Co., No. 13-11853, 2014 WL 1405222, at *14 (E.D. Mich. April 11, 2014) (“Courts
have found willfulness in situations where the defendant had previous Department of Labor
investigations regarding overtime violations, prior agreements to pay unpaid overtime wages,
and assurances of future compliance. Courts have also found willfulness in situations in which
the employer deliberately chose to avoid researching the laws’ terms or affirmatively evading
them.” (internal quotation marks and citations omitted)).
Conversely, courts have declined to find willfulness where there is no concrete evidence
that the defendant knew or should have known that its practices violated the FLSA. See, e.g.,
Ouellette v. Ameridial, Inc., No. 5:16-cv-2144, 2017 WL 2972636, at *5 (N.D. Ohio July 12,
2017) (holding that a two-year statute of limitations applied to a collective-action FLSA case,
where the complaint did “not actually allege that defendant knew that its procedures violated the
statute” and did not allege “that defendant has been sued for FLSA violations previously, which
would constitute sufficient notice to establish willfulness”); Lopez-Gomez v. Jim’s Place, LLC,
No. 2:14-CV-02309-JPM, 2015 WL 4209809, at *7–8 (W.D. Tenn. July 10, 2015) (rejecting
plaintiff’s argument that the defendant “willfully violated the FLSA as a matter of law,” where
the plaintiff had “not alleged that Defendants were previously investigated for FLSA violations,”
irrespective of the fact that the “Defendants did not make any attempt to consult with any
professional . . . to ensure the payment (or nonpayment) of overtime complied with the FLSA”).
The court finds that the evidence in this case, even viewed in the light most favorable to
Gater, is insufficient to establish willfulness. The defendant has shown that the written job

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description called for service managers to “assist” in hiring and firing, suggesting that their
recommendations would be taken into consideration, and that it consulted with counsel in
developing the job description for service manager (the only position Gater held). Gater has not
shown that TDI, previous to or during his employment, had been sued for FLSA violations or
investigated by the Department of Labor. He has not presented any evidence suggesting that TDI
knew or recklessly failed to discover that it was violating the statute. Thus, even assuming that
Gater was improperly classified as exempt, the evidence, at worst, suggests negligence on the
part of the company in allowing a few particularly zealous regional managers to exert too much
control over the stores in their region.
The plaintiff has the burden of bringing forth evidence that the defendant’s actions
concerning the FLSA were willful. Because there is no evidence of willfulness, the two-year
statute of limitations applies. As a result, Gater’s FLSA claims are time-barred, and TDI is
entitled to summary judgment in its favor on those claims.
B.

FLSA Claims for Overtime Pay
1.

The Executive Exemption

“Congress enacted the FLSA in 1938 as a remedial statute ‘designed to correct labor
conditions detrimental to the maintenance of the minimum standard of living necessary for
health, efficiency, and general well-being of workers. . . .’” Baden-Winterwood v. Life Time
Fitness, Inc., 566 F.3d 618, 626 (6th Cir. 2009) (quoting Dunlop v. Carriage Carpet Co., 548
F.2d 139, 143 (6th Cir. 1977) (some internal quotation marks omitted)). The FLSA requires
employers to pay their employees overtime for work performed in excess of forty hours per
week. 29 U.S.C. § 207(a)(1).
However, the FLSA contains certain exemptions from the overtime compensation

17

requirement, including exemptions for “any employee employed in a bona fide executive,
administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). FLSA overtime exemptions are
“affirmative defense[s] on which the employer has the burden of proof,” and those exemptions
“are to be narrowly construed against the employers seeking to assert them.” Thomas v.
Speedway SuperAm., LLC, 506 F.3d 496, 501 (6th Cir. 2007) (quoting Corning Glass Works v.
Brennan, 417 U.S. 188, 196–97 (1974), and Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392
(1960)).
In this case, TDI claims that the plaintiffs are exempt under § 213(a)(1) because they
were “employed in a bona fide executive capacity,” as that term is defined by the applicable
regulations. Under those regulations, the “executive exemption” applies to any employee who is
paid a salary “of not less than $455 per week” 4 and:
(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(a). “The employer bears the burden of establishing the affirmative defense
by a preponderance of the evidence, and the employer satisfies this burden only by providing
4

The Department of Labor published a final rule effective December 1, 2016 raising the
$455.00 per week requirement to $913.00 per week. See 29 C.F.R. § 541.600; 81 FR 32391-01,
2016 WL 2943519. The Honorable Judge Amos L. Mazzant, United States District Judge for the
Eastern District of Texas, issued a preliminary injunction on November 22, 2016 enjoining the
Department of Labor from “implementing and enforcing” the new regulation, Nevada v. Dep’t of
Labor, 218 F. Supp. 3d 520, 534 (E.D. Tex. 2016), and ruled on August 31, 2017 that the rule
exceeded the Department of Labor’s authority, see Nevada v. Dep’t of Labor, 275 F. Supp. 3d
795, at *8 (E.D. Tex. 2017). Some of the plaintiffs were employed past December 1, 2016, but
the parties apparently presume that the version of the regulation requiring payment of at least
$455 per week applies.

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‘clear and affirmative evidence that the employee meets every requirement of an exemption.’”
Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 847 (6th Cir. 2012) (quoting Thomas,
506 F.3d at 501).
2.

Section 541.100(a)(4)

There is no dispute that all plaintiffs made more than $455 per week while employed by
TDI. Further, at least for purposes of the defendant’s Motions for Summary Judgment, the
plaintiffs concede that their primary duties consisted of management of a TDI store or
management of the service department of a TDI store and that they all regularly directed the
work of two or more employees. The only question confronting the court is whether TDI has
established that each individual plaintiff had the authority to hire and fire other employees or that
their “recommendations as to the hiring, firing, advancement, promotion or any other change of
status of other employees [were] given particular weight.” 29 C.F.R. § 541.100(a)(4).
The regulations provide that,
[t]o determine whether an employee’s suggestions and recommendations are
given ‘particular weight,’ factors to be considered include, but are not limited to,
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. However, an “employee’s suggestions and recommendations may still be
deemed to have ‘particular weight’ 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.
Whether an employee has the requisite authority under § 541.100(a)(4) depends upon the
unique factual circumstances of each case. In those cases finding that the exemption is met, the
testimony is typically unequivocal regarding the plaintiff’s authority. See, e.g., Lovelady v.

19

Allsup’s Convenience Stores, Inc., 304 F. App’x 301, 306 (5th Cir. 2008) (per curiam) (affirming
the district court’s decision that the defendant satisfied the fourth element because the plaintiffs
testified that their hiring recommendations were almost always followed—the only exception
being when a background check on a recommended employee disclosed a criminal record; they
could fire employees without obtaining authorization from a higher manager; and their
recommendations as to promotions and raises were usually followed); Grace v. Family Dollar
Stores, Inc., 845 F. Supp. 2d 653, 663 (W.D.N.C. 2012) (finding fourth element satisfied based
on the plaintiff-store manager’s own deposition testimony that she selected applicants for
interviews, conducted interviews, recommended employees for promotions and demotions,
“made frequent recommendations as to these matters to her district manager and her
recommendations were almost always followed”); Rainey v. McWane, Inc., 552 F. Supp. 2d 626,
632 (E.D. Tex. 2008) (finding the fourth element satisfied where the “uncontested evidence”
showed that, although the human resources department did the initial hiring, the plaintiffs
completed weekly employee evaluations, which were used to determine whether new employees
became permanent, and recommended employee discipline, which was almost always followed).
To the contrary, in Duffie v. The Michigan Group, Inc., the district court found that the
defendant was not entitled to summary judgment based on a material factual dispute as to
whether the plaintiff had the authority to hire and fire and as to whether her recommendations on
personnel matters were given particular weight. No. 14-cv-14148, 2016 WL 28987, at *13 (E.D.
Mich. Jan. 4, 2016), motion for reconsideration granted in other part, 2016 WL 8259511 (Jan.
15, 2016). There, the defendant showed that it had requested the plaintiff’s input on hiring
decisions four times in three years and had relied in some part on her suggestions twice. Id. The
defendant argued that, because there were so few hirings and firings, the court “must instead

20

look to the relative size of the work force and the total number of times an employee was hired
or fired.” Id. The court disagreed, finding the evidence “insufficient to conclusively establish that
defendant relied on plaintiff’s input often enough that her input was given ‘particular weight.’”
Id.
Likewise, in Ristovski v. Midfield Concession Enterprises, Inc., 2017 WL 3601950 (E.D.
Mich. Aug. 22, 2017), the court found a material factual dispute as to the whether any of the
three plaintiffs had the ability to hire or fire and as to whether their recommendations were given
particular weight. With respect to plaintiff Ristovski, the defendant argued that the undisputed
evidence showed that the company had hired at least one candidate whom Ristovski had
recommended and that Ristovski sat in on interviews with the defendant’s upper management,
asked questions during interviews, provided her opinion at the conclusion of interviews, and
could make hiring recommendations. Id. at *9. The court noted, however, that other evidence in
the record indicated that the defendant’s upper-level management alone made all hiring and
firing decisions; that all employees were offered an incentive to refer candidates for hire; and
that, during the year and a half that Ristovski was employed, the company hired 100 to 150
employees, but Ristovski participated in only three interviews, and her hiring recommendation
was followed only once. Id. The court found that the evidence was not sufficiently conclusive to
warrant summary judgment. Id.; accord Bray v. Dog Star Ranch, Inc., No. 1:08-CV-1005, 2010
WL 889908, at *6 (W.D. Mich. March 10, 2010) (finding that the evidence that the plaintiff
participated in one firing was “too isolated to clearly establish [the plaintiff’s] authority”).
3.

The Plaintiffs’ Authority to Hire and Fire

Turning to the case at bar, the court finds, first, that there is clearly a material factual
dispute as to whether the plaintiffs had the authority to hire and fire. The evidence proffered by

21

the defendant consists of Jamie Ward’s Affidavit and the written job descriptions for general
managers and service managers. Ward attests that general managers had “the power, and
authority to, interview, hire, discipline and terminate employees.” (J. Ward Aff. ¶ 21.) And the
written job description for general manager states that one of the “primary” responsibilities of a
general manager is to “attract, hire, train, develop, evaluate and retain store employees.” (Doc.
No. 49-1, at 5.) Regarding service managers, Ward likewise asserts that they too had the
authority to hire and fire (J. Ward Aff. ¶ 19), but he then states that service managers had only
the authority to “assist” in hiring service center employees (id. ¶ 19), which is consistent with the
written job description for service managers. Ward does not claim to have personal knowledge
regarding the actual practices at the stores at issue here or as to whether the plaintiffs were
actually involved in hiring and firing.
For their part, the plaintiffs uniformly testified that they did not have authority to hire and
fire. (Brooks Dep. 62, 74; Embry Dep. 43–45; Gammon Dep. 129, 140, 146; Workman Dep.
57.) 5 The plaintiffs’ testimony is sufficient to create a material factual dispute as to whether they
had the authority to hire and fire, regardless of what their formal job descriptions stated.
4.

The Weight Given the Plaintiffs’ Recommendations

Ward’s testimony does not address the matter of whether the plaintiffs’ recommendations
as to “the hiring, firing, advancement, promotion or any other change of status of other
employees [were] given particular weight.” 29 C.F.R. § 541.100(a)(4). The defendant, instead,
relies entirely on the plaintiffs’ deposition testimony in support of its argument that this element
of the test is met. The court finds that the available evidence is insufficient to establish that any

5

Plaintiff Ward was not specifically asked whether he had the authority to hire and fire,
but his testimony generally establishes that he did not, since he did not participate in formal
interviews and, as discussed below, his recommendations did not appear to carry great weight.

22

plaintiff’s recommendations were given “particular weight.”
i. Kevin Brooks
As set forth above, Kevin Brooks worked as a general manager for approximately seven
months, as service manager for approximately nine months, and as general manager again for
approximately three months. During that period, according to his deposition testimony, he
occasionally recommended technicians for advancement or promotion, but it is unclear how
often this occurred or how much weight his recommendations were given. It appears generally
from Brooks’ testimony and that of others that the promotion of a technician largely depended on
whether the technician had passed certain tests and met certain objective criteria, such that the
manager’s recommendation carried marginal weight, if any.
Brooks testified that he never interviewed prospective employees or sat in on interviews
with Dan Keim. (Brooks Dep. 47.) Instead, he might talk to candidates informally while they
were waiting to be interviewed, and Keim might ask him what he thought about the interviewees,
but there is no evidence in the record as to whether Keim acted on Brooks’ opinions. Brooks
recalls one instance in which there was a tire tech whom he “didn’t want there, but they moved
him to a different store.” (Id. at 62–63.) He does not actually indicate whether there was a causal
connection between those events. He does not recall that any employees were actually terminated
during his tenure. (Id. at 63.)
This evidence does not clearly establish that Brooks’ recommendations were given any
particular weight. The defendant has not carried its burden on summary judgment on that issue.
ii. Daniel Embry
Embry was a service manager for TDI for approximately three months and a general
manager for approximately six months. He testified that, during that time, not only was he not

23

allowed to hire or fire, he “wasn’t allowed really to interview.” (Embry Dep. 44.) He does not
remember that anyone was hired at or fired from his store while he was at TDI, but he does recall
that he was not permitted to fire an employee who cursed at him and walked out, nor was his
recommendation that a sales associate be promoted to service manager acted upon. (Id. at 45–
46.) Regarding the promotion of tire and service technicians, he understood that the individuals
in these positions were promoted essentially as a matter of course if he “sent the training up to
corporate.” (Id. at 46.) His recommendation did not enter into the picture. (Id. at 45–47.)
Again, the evidence is insufficient to conclusively establish that the defendant relied on
the plaintiff’s input often enough that it was given “particular weight.” The defendant has failed
to meet its burden of establishing that Embry was covered by the FLSA’s executive exemption.
iii. Joseph Gammon
According to Gammon, his store was chronically understaffed during his approximately
nine months as general manager, but he was never permitted to hire a service manager. Regional
manager Dan Keim controlled the staffing schedule for his store, frequently pulling employees
from Gammon’s store to work at other stores. On one occasion, an employee Gammon believed
should be fired or disciplined was not, and Keim specifically told Gammon that the decision to
fire the employee was not his to make. Gammon was later forced to fire two employees who, he
strongly believed, should not have been let go. Generally, he testified that, when he
recommended a person for hire, that person was not hired, and when he offered an opinion to
Keim that someone should not be hired because “they had no business working on cars,” Keim
hired that person. (Id. at 108.)
The evidence viewed in the light most favorable to the plaintiff strongly suggests that
Gammon’s suggestions and recommendations regarding the staffing, hiring, firing, discipline,

24

and promotion of other employees were not given any particular weight. The defendant has
failed to meet its burden on summary judgment of establishing that Embry was covered by the
FLSA’s executive exemption.
iv. Matthew Ward
Ward worked as service manager for TDI for a short three months. While several
technicians were hired during his tenure, he did not participate in the interviews of any of the
candidates and was not asked his opinion about any of them, indicating that his
recommendations in the arena of hiring were not given any weight. He does not recall any
terminations, and he never formally disciplined any of the employees under his supervision.
Once again, the plaintiffs’ evidence establishes at least a material factual dispute as to
whether Ward qualifies for the executive exemption.
v. Craig Workman
Workman was a general manager for eight months. He testified that he did not have the
authority to hire, that Keim did all the hiring, that he “might” have sat in on one interview.
(Workman Dep. 57.) There is no evidence regarding how many employees were hired at
Workman’s store while he was general manager or how many interviews Keim conducted during
that time.
Workman concedes that, on one occasion, he recommended that an employee be hired,
via an email sent to human resources, which was forwarded to Keim. Keim responded by telling
Workman that his store was fully staffed and asking whether the guy would be willing to go to
the new store in Brentwood. Ultimately, the evidence in the record is inconclusive regarding
whether this candidate was hired at all, but it is clear that he was not hired to work in Workman’s
store.

25

Workman denies ever firing anyone, but he described an incident during which he
confronted an employee about a poorly done job. The employee became frustrated, announced
that he quit, and began ranting and raving. Workman told him, “you’re gone, go, get your tools.”
(Workman Dep. 85.) He relayed the incident to Keim, who told him to let the guy go and to
report it to human resources. It is unclear from this evidence whether the employee actually was
fired or whether he quit.
Regardless, even assuming that Workman’s “recommendations” as to hiring and firing
were taken into consideration on two occasions, as in Duffie v. The Michigan Group,
[t]he issue here is that, because there were so few such scenarios, plaintiff’s input
as to the hiring and firing of one employee could be characterized either as an
“occasional suggestion” or as routine participation. . . . At the summary judgment
stage, those two instances are insufficient to conclusively establish that defendant
relied on plaintiff’s input often enough that [his] input was given “particular
weight.”
Duffie, 2016 WL 8259511, at *13. 6
In short, with respect to Workman, too, the defendant has failed to establish that the
FLSA’s executive exemption applies.
4.

Conclusion – Executive Exemption

Because there is a material factual dispute as to whether the plaintiffs had “the authority
to hire or fire other employees” and as to whether their “suggestions and recommendations as to
the hiring, firing, advancement, promotion or any other change of status of other employees
[were] given particular weight,” 29 C.F.R. § 541.100(a)(4), TDI’s Motions for Summary
Judgment on the FLSA claims for overtime pay brought by plaintiffs Brooks, Embry, Gammon,
Ward, and Workman must be denied.

6

The same conclusion applies with equal force to each of the other plaintiffs’ situations.

26

C.

State Law Claims

TDI argues that the plaintiffs’ state law claims are subject to dismissal on the basis that
the Complaint does not incorporate any facts supporting independent claims for “Unjust
enrichment/Quantum Meruit/Breach of Contract” and that, instead, the state law claims appear to
simply mirror the FLSA claims. (See, e.g., Doc. No. 49, at 17–18.) The plaintiffs did not respond
to this argument in their joint Response (see generally Doc. No. 71), nor did they seek to respond
to the defendant’s Reply, which points out that the plaintiffs did “not even address Defendant’s
argument” regarding the state law claims in responding to the Motions for Summary Judgment.
(Doc. No. 88, at 13.)
The court finds that the plaintiffs’ failure to respond to the defendant’s argument
regarding the state law claims constitutes abandonment of those claims. See Hicks v. Concorde
Career Coll., 449 F. App’x 484, 487 (6th Cir. 2011) (“The district court properly declined to
consider the merits of this claim because [the plaintiff] failed to address it in either his response
to the summary judgment motion or his response to [the defendant’s] reply brief); Clark v. City
of Dublin, 178 F. App’x 522, 524–25 (6th Cir. 2006) (affirming trial court’s finding that a party’s
failure to properly respond to arguments raised in a motion for summary judgment constituted an
abandonment of those claims).
Because the plaintiffs have abandoned their state law claims and failed to carry their
burden on summary judgment as to those claims, TDI’s Motions for Summary Judgment will be
granted insofar as they seek judgment in the defendant’s favor on those claims.
V.

CONCLUSION
For the reasons set forth herein, the Motion for Summary Judgment as to David Gater’s

claims—the FLSA claims and the state law claims—will be granted in its entirety. The

27

remaining Motions for Summary Judgment will be denied with respect to the FLSA claims and
granted with respect to the state law claims.
An Order consistent with these findings is filed herewith.
ENTER this 8th day of March 2018.

____________________________________
ALETA A. TRAUGER
United States District Judge