Denied.
JOHNSON, J., would grant.
e manner, and looking for ways to develop her employees, which she testified was
an ongoing process. (Id.
See also Mayne-Harrison 2010 Depo [Doc. 57-2] at 68; 195, 197).
91. Mayne-Harrison's ASMs did not have authority to hire employees, discipline other employees, evaluate other employees, recommend terminations, submit payroll, or other functions associated with employee retention. (Mayne-Harrison 2010 Depo [Doc. 57-2] at 44; 76; 144; 159 (Mayne-Harrison admits that to the extent her ASM performed any managerial tasks, she did so at Mayne-Harrison's direction and based on the training Mayne-Harrison had given the ASM); see also Mayne-Harrison 2005 Depo [Doc. 57-1] at 19 (when Mayne-Harrison was an ASM, she performed managerial tasks, such as payroll and scheduling, only at her Store Manager's direction)).
92. The assistant store manager issued a progressive counseling when Mayne-Harrison was on vacation. (Mayne-Harrison 2005 Depo [Doc. 57-1] at 161:6-11, 2005.) The assistant manager did not speak with Harrison before issuing the progressive counseling, but did contact the district manager. (Mayne-Harrison 2005 Depo [Doc. 57-1] at 161).
93. In addition, when Mayne-Harrison was an ASM she never interviewed, hired, disciplined or terminated anyone. (Mayne-Harrison 2010 Depo [Doc. 57-2] at 41-42; see also Mayne-Harrison 2005 Depo [Doc. 57-1] at 19-20 (as an ASM, Mayne-Harrison never interviewed applicants and did not have the authority to discipline other employees)).
94. Mayne-Harrison consented to bringing an FLSA claim against Defendant in March of 2004. (Mayne-Harrison 2010 Depo [Doc. 57-2] at 24-25; see also Consent to Become Party Plaintiff [Doc. 57-8]).
IV. DISCUSSION
A. DEFENDANT'S MOTION TO STRIKE
1. Standard of Review
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.R. 12(f). "[M]otions under 12(f) are viewed with disfavor by the federal courts and are infrequently granted," and are only granted with the challenged pleading has "no possible relation or logical connection to the subject matter of the controversy" or "cause some form of significant prejudice to one or more parties to the action. 5C Charles A. Wright Arthur Miller, FEDERAL PRACTICE PROCEDURES §§ 1380, 1382 (West 2009); see also Waste Mgmt. Holdings, Inc. v. Gilmore , 252 F.3d 316, 347 (4th Cir. 2001).
2. Motion to Strike Improper Evidence
On June 25, 2010, defendant filed a Motion to Strike and Objections to Evidence Offered in Support of Plaintiff's Common Response in Opposition to Defendant's Individual Motion for Summary Judgment [Doc. 78]. In the Motion, defendant argues that Plaintiff's Common Exhibits 1, 2, 7-20, 42, and 46, the "Store Survey" are improper because they lack foundation. (Id. at 3). Additionally, defendant moved to strike Plaintiff's common Exhibits 4, and 47 which are articles about Dollar General. Defendants object to the Court's consideration of these articles because one was published after Mayne-Harrison left Dollar General, and both articles include hearsay and other inadmissable information. Finally, defendant objects to Plaintiff's Common Exhibits, 3, 22, 24, 25, 27-29, "Dollar General Story Newsletters". Defendant objects to these on the grounds that they lack foundation with regard to the specifics in the above-styled case. Defendant notes that the newsletters summarize information from other locations, and other employees of Dollar General and that this Court's inquiry should be into the specific facts and circumstances surrounding plaintiff's employment. The Court will address each group of documents in turn.
First, the Court finds that the Store Survey documents (Plaintiff's Common Exhibits 1, 2, 7-20, 42, and 46) are admissible. Defendant argues that they lack foundation because the Store Survey did not include plaintiff's store, and because the hours spent performing manual labor tasks are not broken down by position within the store (clerk, manager, assistant manager, etc.). While defendant's objections are correct, defendant is also assuming the purpose for which plaintiff submitted the documents. The documents may lack foundation to show the specific hours worked by plaintiff Mayne-Harrison, but are relevant to show the knowledge of Dolgencorp with regard to any good faith claims. Additionally, the Store Surveys can be used as a tool to better understand the nature of the operations of the Dollar General stores in general. Accordingly, defendant's Motion to Strike Plaintiff's Common Exhibits 1, 2, 7-20, 42, and 46 is DENIED.
Second, defendant moved to strike Plaintiff's common Exhibits 4, and 47 which are articles written about Dollar General. The Court finds that the articles are irrelevant and should be struck from the record. Plaintiff argues that the articles are not offered for the truth of the matter asserted, but instead are being offered to show the company's "state of mind" and what Dollar General "truly valued." ([Doc. 80] at 6). The Court cannot find that academic articles written by non-employees of the defendant can go to show the state of mind of the defendant, nor what the company `truly valued.' Accordingly, the Court finds that defendant's Motion to Strike Plaintiff's Common Exhibits 4, and 47 should be GRANTED and that Plaintiff's Common Exhibits 4, and 47 should be, and hereby are, STRUCK from the record.
Finally, defendant objects to the "Dollar General Story Newsletters" which are monthly newsletters Dollar General sent to its employees. Defendant argues that these letters should not be considered by this Court as they do not address the specifics of plaintiff's store. In response, however, plaintiff notes that the letters fit within the business records exception. Fed.R.Civ.P. 803(6). The Court agrees, and finds pursuant to Rule 803(6) that the letters fit within an exception to the hearsay rule. Additionally, plaintiff argues that the letters are not merely submitted for the truth of the matter asserted but also go to show the `state of mind' of Dollar General and its awareness of the conditions in its stores. The Court also agrees with this reasoning, and accordingly finds that defendant's Motion to Strike Plaintiff's Common Exhibits, 3, 22, 24, 25, 27-29, should be, and hereby is DENIED.
B. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
1. Standard of Review
The moving party is entitled to summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.Pro. 56(c). See Charbonnages de France v. Smith , 597 F.2d 406, 414 (4th Cir. 1979). A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).
In considering a motion for summary judgment, the court is required to draw all reasonable inferences in favor of the nonmoving party and to view the facts in the light most favorable to the nonmoving party. Anderson , 477 U.S. at 255. The moving party has the burden to show an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986). The party opposing summary judgment must then demonstrate that a triable issue of fact exists; he may not rest upon mere allegations or denials. Anderson , 477 U.S. at 248. A mere scintilla of evidence supporting the case is insufficient. Id. at 252.
2. Fair Labor Standards Act
The Fair Labor Standards Act ("FLSA") requires employers to pay overtime to employees who work more than forty hours per week. 29 U.S.C. § 207(2). Employees working in a "bona fide executive, administrative, or professional capacity" as defined by regulations promulgated by the Secretary of Labor are exempt from the FLSA overtime requirements. 29 U.S.C. § 213(a)(1). FLSA exemptions should be "narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakable within [the exemptions'] terms and spirit." Arnold v. Ben Kanowsky, Inc. , 361 U.S. 388, 392 (1960).
The regulations accompanying the FLSA provide for a "long test" and a "short test." See 29 C.F.R. § 541.1. The short test applies when an employee is paid more than $250.00 per week. Id; see also Jones v. Virginia Oil Co., 69 Fed.Appx. 663, 636 (4th Cir. 2003). Here, the parties and this Court all agree that the short test is the applicable standard. ( See UMF 8-10).
The pre-2004 regulations set forth both a "short" and "long" test for determination whether an employee qualifies as an exempt executive. See 29 C.F.R. § 541.1 (pre-2004). The short test is used for employees who are compensated on a salary basis at a rate of at least $250 per week. 29 C.F.R § 541.1(f) (pre-2004). It is undisputed that Mayne-Harrison earned a salary of more than $250 per week during the relevant time period. Accordingly, the short test is appropriate method for determining whether Mayne-Harrison was properly classified as exempt. The current regulations provide that an employee qualifies as an executive if: (1) she is compensated on a salary basis at a rate of at least $455 per week; (2) her primary duty is management of the enterprise; (3) she customarily and regularly directs the work of two or more other employees; and (4) she 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).
3. Exemption Under the FLSA "Short Test"
"An employee is exempt under the executive exemption's short test if: (1) the employee's primary duty consists of the management of the enterprise or of a customarily recognized department or subdivision thereof, and (2) the employee customarily and regularly directs the work of two or more other employees." Jones , 69 Fed.Appx. at 636 (Citing 29 C.F.R. § 541.119(a); Smith v. First Union Nat'l Bank , 202 F.3d 234, 250 (4th Cir. 2000)). Here, the parties agree that Mayne-Harrison supervised more than two employees and engaged in managerial work. (UMF 1, 6, 35). Thus, the only issue before the Court is whether Mayne-Harrison's "primary duty" was management of the Kingwood store.
Pursuant to 29 C.F.R. § 541.102(b), management includes the following:
activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.
The regulations accompanying the FLSA set forth five factors for determining whether management is an employee's primary duty: (1) the amount of time spent in the performance of managerial duties; (2) the relative importance of the managerial duties as compared with other types of duties; (3) the frequency with which the employee exercises discretionary powers; (4) the employee's relative freedom from supervision; and (5) the relationship between the employee's salary and the wages paid other employees for nonexempt work. 29 C.F.R. § 541.103; Shockley v. City of Newport News , 997 F.2d 18, 21 (4th Cir. 1993). The Court will address each factor in turn.
a. Time Spent on Managerial Duties
The regulations state that the Court should consider the amount of time spent in the performance of managerial duties in determining whether an employee's "primary duty" is management. 29 C.F.R. § 541.103. Specifically, the regulations state that as a "rule of thumb," an employee who spends over 50 percent of her time in management has management as her primary duty. Id. "Time alone [, however,] . . . is not the sole test, and in situations where the employee does not spend over 50 percent of [her] time in managerial duties, [she] might nevertheless have management as [her] primary duty if the other pertinent factors support such a conclusion." Id. Thus, the amount of time spent on non-managerial tasks is not dispositive, "particularly when non-management duties are performed simultaneous to the supervision of employees or other management tasks and other factors support a finding that the employee's primary duty is managerial." Horne v. Crown Central Petroleum, Inc. , 775 F.Supp. 189, 190 (D.S.C. 1991). See also [Doc. 6020] Noble v. Dolgencorp, Inc. , No. 5:09-cv-49 (S.D. Miss. May 11, 2010) (stating "[a]n employee's `primary duty' cannot be ascertained by applying a simple `clock' standard that contrasts the amount of time each day an employee spends on exempt and nonexempt work."); [Doc. 60-11] Grace v. Family Dollar Stores, Inc. , 2009 U.S. Dist. LEXIS 59154, at *10 (W.D.N.C. July 9, 2009) (granting defendant's motion for summary judgment where store manager testified that 99% of her time was spent on "putting out freight, running a cash register, doing schematics, and doing janitorial work."); [Doc. 60-8] Fipp v. Family Dollar Stores , No. 2:03-721-18BG, at 9 (D.S.C. Sept. 27, 2004) (granting defendant summary judgement based in part on finding that concurrent performance of exempt and non-exempt duties does not preclude the application of executive exemption).
"How an employee spends her time working is a question of fact, while the question of whether the employee's particular activities exclude her from the overtime benefits of the FLSA is a question of law." Icicle Seafoods, Inc. v. Worthington , 475 U.S. 709, 714 (1986). An employee will have management as her primary duty if while engaged in nonexempt work, the employee also "supervises other employees, directs the work of warehouse and delivery men, . . . handles customer complaints, authorizes payment of bills, or performs other management duties as the day-to-day operations require." 29 C.F.R. § 541.103. See also Smith , 202 F.3d at 250-51. In fact, "a number of federal courts have disregarded the time factor of the short test where the manager is in charge of a separate facility such as a convenience store or restaurant chain." Haines v. S. Retailers, Inc. , 939 F.Supp. 441, 449 (E.D.Va. 1996) (internal quotation marks and citation omitted). See, e.g., Murray v. Stuckey's, Inc. , 939 F.2d 614, 618-20 (8th Cir. 1991) (Stuckey's manager met the "primary duty" test even though 65-90 percent of the manager's time was spent on nonmanagerial duties); Donovan v. Burger King Corp. , 675 F.2d 516, 521-22 (2d Cir. 1982) (relying on § 541.103 to hold that Burger King assistant managers had "primary duty" of management despite over 50 percent of their time was spent on routine matters); Donovan v. Burger King Corp. , 672 F.2d 221, 226-27 (1st Cir. 1982) (same). But see Cowan v. Treetop Enters., Inc. , 120 F.Supp.2d 672, 690-91 (M.D.Tenn. 1999) (noting foregoing line of cases but holding that unit managers at franchise restaurant were not bona fide executives).
Viewing the facts in the light most favorable to Mayne-Harrison, the record demonstrates that she spent over half of her time performing non-managerial work. Mayne-Harrison testified that she spent as much as 95 percent of her time performing non-managerial tasks. (UMF 62-63, 77-78, 83-84). However, even assuming that Mayne-Harrison spent the bulk of her time performing non-managerial tasks such as stocking the shelves, unloading the shipment truck, cleaning the store, and manning the cash register, the record reflects that Mayne-Harrison could simultaneously perform many of her management tasks. (UMF 88-90). That is, while Mayne-Harrison was doing nonmanagerial tasks, she also engaged in the supervision of employees, handled customer complaints, dealt with vendors, and completed daily paperwork. Thus, time spent performing managerial duties is not determinative in Mayne-Harrison's case, and the Court must consider the other factors in the "primary duty" test. See 29 C.F.R. § 541.103
Mayne-Harrison testified she worked on average of 70 hours per week, and spent about 4 hours a week completing paperwork. (4/70= 0.05)
b. The Importance of Mayne-Harrison's Managerial Duties
In order to determine an employee's primary duty, the Court must also consider the relative importance of an employee's managerial tasks to her non-managerial work. 29 C.F.R. § 541.103. "[C]ourts frame [] this query as a measure of the significance of the managerial tasks to the success of the facility." Haines , 939 F.Supp. at 450. The Court in Grace defined primary duty this way: "the principal, main, major or most important duty that the employee performs and the major emphasis should be on the character of the employee's job as a whole." [Doc. 60-11] Grace , 2009 U.S. Dist. LEXIS 59154, at *10.
For example, the Court should consider whether the business in question could have operated as successfully without the managerial tasks carried out by the `exempt' employee. See Donovan , 675 F.2d at 521 (noting the assistant managers determined the amount of food to be prepared, ran cash checks, scheduled and supervised employees, and checked inventory, and that the restaurant could not have operated successfully in the absence of those tasks). In a recent district court opinion, the court framed the matter this way: "[i]f [the] plaintiff did not perform her nonmanagerial duties, her Dollar General store may not have functioned well; but if she did not perform her managerial duties, the store would have been incapable of doing business." King v. Dolgencorp, Inc. , No. 3:09-cv-00146, at 20 (M.D. Pa. May 6, 2010).
Additionally, many courts look to a manager's training, evaluation, and factors affecting eligibility for bonuses and pay raises. See Addison v. Ashland Inc. , 2006 U.S. Dist. LEXIS 59154, at *21 (W.D.N.C. July 9, 2009) (noting plaintiff's performance evaluation, her salary, and her bonus depended on her handing of customers and also on her store's profitability, and finding those factors relevant to the "importance" of her managerial duties); Moore v. Tractor Supply Co. , 325 F.Supp.2d 1268, 1275 (S.D.Fla. 2004), aff'd 2005 U.S. App. LEXIS 14191 (11th Cir. July 12, 2005) (noting that the employer placed a high value on the employee's management activities because: "the better the store performed, the higher plaintiff's year end-bonus," and the plaintiff "alone was responsible for increasing margins and profits and for devising ways to increase foot traffic and, in turn, sales."); Horne v. Crown Central Petroleum , 775 F.Supp. 189, 191 (D.S.C. 1991) (finding the importance of plaintiff's managerial activities indicated by that store manager's eligibility for "bonuses tied to [the plaintiff's] store's profitability").
Here, Mayne-Harrison was responsible for a number of managerial tasks, including hiring, scheduling, training, and disciplining employees, checking inventory and ordering supplies, handling customer complaints, counting daily receipts, and making bank deposits. (UMF 35, 47, 60). Mayne-Harrison also acknowledged that she was "the one in charge" at the store, and that she never stopped managing her store even when performing nonmanagerial tasks. (UMF 88-89). Further, when Mayne-Harrison was not in the store she still directed the employees and called to make sure that tasks were being performed. (UMF 74-76). Additionally, plaintiff Mayne-Harrison's salary and bonuses were tied to the store's performance. Specifically, bonuses were based on the store meeting its quarterly and annual sales goals, minimizing inventory shrink and controllable expenses, and maximizing profits. (See [Doc. 64-33], "Teamshare" Bonus Plan; [Doc. 59-30], Bass Depo at 55). It is also important to note that while Mayne-Harrison might receive a bonus for the performance of the Kingwood store, the District Manager-who oversaw several stores-might not receive a bonus for store performance. (See [Doc. 60-6], Pryor Declaration ¶ 3).
Based on a review of the facts in the light most favorable to plaintiff, therefore, this Court finds that "the [regular employees] merely rowed the boat; [and Mayne-Harrison] charted and steered its course." Horne , 775 F.Supp. at 191; see also, e.g., Murray , 939 F.2d at 619-20, Donovan , 675 F.2d at 521; Haines , 939 F.Supp. at 450; Stricker v. E. Off Road Equip. , 935 F.Supp. 650, 654 (D.Md. 1996) ("Store managers are frequently held to be exempt under the executive category"). If Mayne-Harrison had not performed her nonmanagerial tasks her store may not have performed well; but if she had not performed her managerial functions (e.g. hiring, scheduling, training, and disciplining employees, checking inventory and ordering supplies, handling customer complaints, counting daily receipts, and making bank deposits) the store would not have operated at all. Thus, the undisputed facts in the record demonstrate that Mayne-Harrison's managerial functions were critical to the success of the Kingwood Dollar General Store.
c. The Frequency With Which Mayne-Harrison Exercised Discretion and Her Freedom from Supervision
Next, the Court will consider the third and fourth primary duty factors: the frequency with which Mayne-Harrison exercised discretionary power; and her relative freedom from supervision. See Haines , 939 F.Supp. at 450 (noting overlap of these two factors). The exercise of "discretionary powers" is displayed by "the employee who normally and recurrently is called upon to exercise and does exercise discretionary powers in the day-to-day performance of his duties." 29 C.F.R. § 541.107(b).
Here, defendant has presented the Court with Mayne-Harrison's own testimony that she regularly exercised discretionary powers. For example, Mayne-Harrison had the discretion to hire, train, schedule, and discipline employees. (UMF 35). Mayne-Harrison also had the discretion to handle customer complaints, and mark down damaged merchandise. (UMF 60). The record also reflects that Mayne-Harrison's discretion in running the day-to-day operations of the store was not constrained by supervisors. (UMF 52, 20-24). The only favorable evidence cited by Mayne-Harrison is that the district managers had the ultimate authority in regard to firing employees, and setting the labor hour budget. (UMF 25, 27, 31, 34, 42). Mayne-Harrison admits, however, that her recommendations with regard to hiring and firing employees were almost always followed. (UMF 41, 44, 45).
The record also does not reflect that upper management heavily supervised Mayne-Harrison's work. (UMF 52, 20-24). Rather, Mayne-Harrison was typically the senior-most person on the job site. (Id.) Mayne-Harrison testified that she saw the District Manager about once every three months for about two hours, and that most of the time the District Manager was in the store he was on the phone. (UMF 20-21). Further, Mayne-Harrison performed many management duties with little to no oversight from the District Manager. (UMF 35) (interviewed and recommended employees for hire; trained employees; monitored and implemented legal compliance measures; appraised employee's job performance; provided for security of the property; provided for the safety of the employees; controlled budgets; directed the work of employees; and scheduled her employees).
Thus, Mayne-Harrison was "vested with enough discretionary power and freedom from supervision to qualify for the executive exception." Haines , 939 F.Supp. at 450. See also Meyer v. Worsley Cos., Inc. , 881 F.Supp. 1014, 1020-21 (E.D.N.C. 1994); Horne , 775 F.Supp. at 191 (Finding exercise of discretion where supervisor "came by the store only a few times a week" and it was "up to [the plaintiff] to solve problems and make decisions when they arose." Also noting that the fact that "[d]efendant's store managers do have detailed policies and procedures to follow concerning store operations," does not "negate the significance of [the plaintiff's] exercise of discretion as the person solely in charge of the store."); Murray , 939 F.2d at 619 ("Like other courts that have considered the question, we believe that the manager of a local store in a modern multi-store organization has management as his or her primary duty even though the discretion usually associated with management may be limited by the company's desire for standardization and uniformity."); Thomas v. Speedway SuperAmerica , 506 F.3d 496, 507 (6th Cir. 2007) (noting that despite the constant availability of the district manager to the store managers, the fact that the district manager was in the store once or twice a week, and was frequently in touch via phone and email, that plaintiff was relatively free from supervision); Kastor v. Sam's Wholesale Club , 131 F. Supp.2d 862, 868 (N.D.Tex. 2001) (court granted summary judgment in favor of defendant where bakery manager exercised discretion in scheduling employees, communicating direction to his employees, delegated tasks, recommended disciplinary action, and determined when to order products and supplies); Bosch v. Title Max , 2005 U.S. Dist. LEXIS 5034, at *28-29 (N.D. Ala. Feb. 4, 2005) (stating "it is virtually impossible to conceive of a free standing business location without a `manager.' Title Max, could not, and did not, manage by remote control."); Jackson v. Advance Auto Parts, Inc. , 362 F.Supp.2d 1323, 1335 (N.D.Ga. 2005) (finding that even though store managers were in store daily and available by phone, this did not render assistant store managers non-exempt).
d. Mayne-Harrison's Salary as Compared to Other Employees
Finally, the Court must consider the relationship between the employee's salary and the wages paid other employees for non-exempt work. 29 C.F.R. § 541.103. During her tenure as Store Manager Mayne-Harrison was paid significantly more than the hourly employees, including the Assistant Store Manger. In 2001, Mayne-Harrison was initially paid a salary of $370 per week. (UMF 8). Mayne-Harrison received raises from her starting salary, and in 2002, was paid a salary of $423 per week. (UMF 9). At the time of her resignation in 2004, Mayne-Harrison was paid $598 per week, or an annual salary of $31,096. (UMF 10). Additionally, Mayne-Harrison also was eligible for, and received, a bonus based on the performance of her store. (UMF 12). In 2001, Mayne-Harrison received a $13,000 bonus, which was approximately forty-percent of her total compensation for the year. (UMF 13-14). In 2002 and in 2003, Mayne-Harrison received a $10,000 bonus. (UMF 15). In 2004, the last year Mayne-Harrison worked for Dollar General, she received a $5,681 bonus. (UMF 16).
During Mayne-Harrison's employment as Store Manager, the ASM in her store, who was an hourly employee, earned about $7.00 per hour, which was approximately $280 per 40-hour workweek. (UMF 17). The ASM was not eligible for the same type or amount of bonuses as the Store Manager, and, during Mayne-Harrison's employment as Store Manager, the ASM in her store never received a bonus of more than $500.20. (UMF 18).
Using the $7.00 per hour figure, if an hourly employee worked 40 hours per week, her pay would be $280.00 per week. If an hourly employee worked 70 hours per week (what Mayne-Harrison states she typically worked), her pay would be $595.00 per week. Based on salary alone, when accounting for all hours that Mayne-Harrison states she worked, it appears she did not earn significantly more than her ASM.
The Court must also consider, however, that salary was not the totality of Mayne-Harrison's compensation. See e.g. Donovan v. Waffle House , 1983 U.S. Dist. LEXIS 13420 at *11 (N.D. Ga. Sept., 26, 1983) ("[t]here must be some reason other than an intent to subvert the Fair Labor Standards Act for the employer to pay them that much or give them the opportunity to earn that much.") Mayne-Harrison was also eligible for — and received bonuses based on her performance and the performance of her store. (UMF 1216). Between 2001 and 2004, Mayne-Harrison's bonuses ranged from about $5,600.00-$13,000 (between $107.00-$250.00 per week). (Id.) The only other person who was eligible for a significant bonus was the ASM. The largest bonus received by the ASM was $500.20-or an additional $9.62 per week. (UMF 18). Thus, in order for the ASM to have a salary comparable to Mayne-Harrison's the ASM would have to work 70 hours per week every week and receive the highest bonus ($500.00) for a total weekly salary of $604.62 (in 2001, the year that Mayne-Harrison had the lowest salary ($370.00 per week) she received a $13,000 bonus for a total weekly salary of $620.00 per week). Thus, the undisputed evidence shows that Mayne-Harrison was making more, or at least the same, in her management positions as nonexempt employees. See Haines , 939 F.Supp. at 451; Horne, 775 F.Supp. at 191 ("The difference in pay brings this factor in line with finding that [the plaintiff] is within the executive exemption."); see also Grace v. Family Dollar Stores, Inc. , 2009 WL 2045784 *1, *6 (W.D.N.C. July 9, 2009) (calculating hourly wage based salary and comparing to hourly wage paid to non-exempt employees).
CONCLUSION
After review of the undisputed material facts and the relevant law, this Court finds that defendant Dolgencorp has shown by a preponderance of the evidence that plaintiff Mayne-Harrison qualifies as an exempt employee under the FLSA. Accordingly, the Court finds that defendant Dolgencorp's Motion for Summary Judgment [Doc. 57] should be, and hereby is, GRANTED as defendant is entitled to judgment as a matter of law.
It is so ORDERED.
The Clerk is hereby directed to transmit copies of this Order to counsel of record herein.
DATED: September 17, 2010