NRLEDJOSEPH LITTLE, II Oct 23, 2014 DEBORAH S. HUNT, Clerk v. United States District Court for the Eastern Belle Tire Distributors, iNC., DISTRICT…

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0802n.06
Case No. 13-2699
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
N RLEDJOSEPH LITTLE, ) II Oct 23, 2014
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
BELLE TIRE DISTRIBUTORS, iNC., ) DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
)
) OPINION
BEFORE: MOORE and McKEAGUE, Circuit Judges; STAFFORD District Judge.*
PER CURIAM. Plaintiff Joseph Little appeals the district court’s grant of summary
judgment in favor of his employer, Defendant Belle Tire Distributors, Inc. Little brings this
action under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., seeking unpaid overtime
compensation. For the reasons that follow, we vacate the order granting summary judgment and
remand for further proceedings.
I.
Belle Tire hired Little in June 2006 as a tire technician. Little was promoted to First
Assistant Manager in February 2009. Little has been First Assistant Manager at several Belle
Tire stores in Michigan. As First Assistant Manager, Little is on salary and currently makes
*
The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern
District of Florida, sitting by designation.

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Case No. 13-2699
Little v. Belle Tire
$1,100 semimonthly after a raise in 2011. Little is also eligible for monthly and yearly bonuses
based on store performance.
Belle Tire’s job description states that a First Assistant Manager must show proficiency
in “Professional Selling Skills,” “inventory control and pricing,” as well as “knowledge of
location payroll control.” The job description further states that a First Assistant Manager should
have “necessary supervisory skills” and “managerial skills” and be “fully knowledgeable” of
“hiring and termination procedures.”
The key evidence in support of Belle Tire’s motion for summary judgment was Little’s
deposition. Though Belle Tire provided deposition testimony and sworn declarations from
Jeffrey Kruse, a Belle Tire corporate vice-president, Kruse was a member of corporate
management and did not work directly with Little. His statements appear to shed light on what
First Assistant Managers do generally but not on what Little did in practice. Belle Tire also
provided the sworn declarations of two Store Managers, Joseph Prior and Ryan Scaglione.
These declarations speak generally about Little’s responsibilities and collectively refer to two
interviews and a handful of training sessions involving Little. In his deposition, Little testified
that the two interviews were brief, minute-long exchanges and that the training sessions were on
topics selected by the company using videos and forms also prepared by the company. On a
single occasion Little gathered technicians for a five-minute refresher on teamwork.
Ultimately, Belle Tire seeks to paint Little as influential in hiring and as actively leading
employee training and other management tasks. Little, on the other hand, seeks to characterize
himself as a salesman who provides clerical-type assistance to his store manager.
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II.
Little appeals the district court’s grant of summary judgment in favor of Belle Tire. Little
claims that the district court erred in granting summary judgment because there were genuine
issues of material fact regarding whether Little was an executive or administrator exempt from
overtime compensation.
We review the district court’s grant of summary judgment de novo. Staunch v. Cont ‘1
Airlines, Inc., 511 F.3d 625, 628 (6th Cir. 2008). “In reviewing a motion for summary judgment,
we view the evidence, all facts, and any inferences that may be drawn from the facts in the light
most favorable to the nonmoving party.” Prebilich-Holland v. Gaylord Entm ‘t Co., 297 F.3d
438, 442 (6th Cir. 2002). In order for a nonmoving party to survive summary judgment, the
party must present specific facts showing a triable issue. Staunch, 511 F.3d at 628.
Some employees are not eligible for overtime compensation under the FLSA because
they fall within certain exemptions to the FLSA. 29 U.S.C.
§ 213. The district court found that
Little fell within the executive exemption and, alternatively, the administrative exemption. Id.
§ 213(a)(1). Exemptions “are to be narrowly construed against the employers seeking to assert
them.” Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007) (quoting
Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). Although the defendant must prove
by “clear and affirmative evidence” that an employee falls within an exemption, the evidentiary
burden of summary judgment remains unchanged. Thomas, 506 F.3d at 502 (quoting Renfro v.
Indiana Michigan Power Co., 497 F.3d 573, 576 (6th Cir. 2007)).
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Case
No.
13-2699
Little
v.
Belle Tire
III.
Section
207
of
the
FLSA requires overtime compensation, but “section
207
...
shall
not
apply
with respect
to
...
any employee employed
in a
bona
fide
executive, administrative,
or
professional capacity.”
29
U.S.C.
§
213(a)(1).
“Executive”
is
defined
as an
employee:
(1)
“Compensated
on a
salary basis
at
a
rate
of
not
less
than
$455
per week;”
(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.
There
is
no
dispute
that
Little meets the first statutory factor because
he
makes
a
salary
of
more than
$455
per
week.
However, genuine disputes
do
exist regarding the
other
factors.
Though
it is
clear Little played
some role
in
interviewing
job
candidates, preparing work
schedules, and
conducting training, questions remain concerning the exact nature
of
the work
Little performed
and the level
of
discretion
that
Little exercised. Such questions
are suitable for
a
factfinder’s determination.
See
Henry
v.
Quicken Loans, Inc., 698
F.3d
897,
901
(6th Cir.
2012) (citing
Maestas
v.
Day
&
Zimmerman,
LLC, 664
F.3d
822, 829
(10th
Cir. 2012)
(concluding that
the
primary-duty determination
is
a
factual one suitable for factfinder)). For
example, though Prior averred that Little “was often
responsible for running the work order
board,” Little testified that every salesperson who worked
at the counter had equal responsibility
for placing jobs
on the work order board. Further, transcribing customer requests and placing
them on a
work board does not necessarily involve an act
of discretion or any supervision of
the
technician fulfilling a request. As a
second example, though Little did prepare the weekly work
schedule, Little also testified that preparing the schedule was a
clerical, nondiscretionary task—
inputting requested time-off into a default schedule and submitting that schedule to a Store
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Case No. 13-2699
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Manager for approval. Because Little introduced testimony suggesting his job functions were
clerical or otherwise highly circumscribed by his supervisor, we cannot say the record clearly
and affirmatively establishes that Little fell within the executive exemption.
Iv.
The administrative exemption applies when an employee meets the following factors:
(1) Compensated on a salary or fee basis at a rate of not less than $455 per week
(2) Whose primary duty is the performance of office or non-manual work
directly related to the management or general business operations of the employer
or the employer’s customers; and (3) Whose primary duty includes the exercise of
discretion and independent judgment with respect to matters of significance.
29 C.F.R.
§ 541.2009(a)(2).
The salary factor is undisputed; however, genuine disputes exist over the other factors.
The FLSA regulations explicitly provide that “selling a product in a retail or service
establishment” is not “work directly related to the management or general business operations of
the employer.” Id.
§ 541.201(a). Although Little engages in office and non-manual tasks such
as typing up the schedule and preparing purchase orders, Little testified that he spends eighty to
ninety percent of his time engaged in sales duties. Time spent on a task is not the sole
determinant of a primary duty, but the fact that Little spent the vast majority of his time on tasks
he could not do concurrently with administrative tasks creates a genuine dispute as to whether
his administrative responsibilities were his “primary duty.” Additionally, Little’s deposition—
the most detailed account of his day-to-day activities—suggests that Little’s discretion was
highly constrained. For example, Little testified that he submitted purchase orders but that the
vendors were chosen by Belle Tire and that quantities were based on stock levels in the store or
were decided by corporate management.
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Case No. 13-2699
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V.
Accordingly, we VACATE the judgment of the district court and REMAND the case for
further proceedings.
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