United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
before this Court are motions for summary judgment by both
sides in this FLSA collective action. Defendant The Scotts
Company, LLC ("Scotts") seeks an order that the
administrative exemption from FLSA coverage applies to the
plaintiff sales managers. Plaintiffs seek an order that the
executive and administrative exemptions do not apply to the
plaintiff sales managers. For the reasons explained herein, I
will deny both parties' motions for summary judgment on
the FLSA employee-exemption issues. Scotts also seeks a
ruling that the FWW methodology is appropriate for the
calculation of damages. That portion of its motion,
considered as a motion in limine, is granted.
has proffered a statement of some 1500 material facts, some
of them many paragraphs or even pages long. (DSOF (asserting
776 alleged material facts); DR, pp. 98-270 (asserting 766
additional, allegedly material facts)). Plaintiffs have
asserted some 60 material facts. (PSOF; DE
187). These submissions pose dozens of disputes
of fact, some material and some clearly not. I provide a
broad background and highlight just a few of the material
disputes that stand in the way of summary judgment for either
is a multi-national lawn and garden supply company
headquartered in Marysville, Ohio. (DSOF, PR ¶ 40).
Scotts sells its products to retailers throughout the United
States. (DSOF, PR ¶ 44). Those retailer-customers range
from large home centers, such as Lowe's, Home Depot, and
Wal-Mart, to independent and local hardware stores, such as
Ace Hardware. [Id.). Scotts' business
development team negotiates and executes the sale of Scotts
products to the various retailers. (Id.).
field sales organization is divided into regions, which are
divided into districts, which are further divided into
territories. (PSOF, DR ¶ 12; see also DSOF, PR
¶ 45-48). Before 2016, there were five regions; in
2016-17 there were four. (DSOF, PR ¶¶ 46-47). Each
district has its own District Market Manager
("DMM"). (DSOF, PR ¶¶ 48-49). Scotts
currently has 27 districts in the United States. (DSOF, PR
district is divided into from 8 to 12 territories. (DSOF, PR
¶¶ 51, 52) Each contains, e.g., Lowe's
and Home Depot stores. (DSOF, PR ¶ 53). The number of
retail stores in each territory ranges from 7 to 26. (DSOF,
PR ¶ 54).
territory are Sales Managers, a category that includes the
plaintiffs to this action. (DSOF, PR ¶ 57, 58; see
also PSOF, DR ¶ 13). The parties dispute whether
the Sales Managers actually perform managerial functions
within their assigned territories. [See e.g., id.).
Each Sales Manager reports to a DMM. (DSOF, PR ¶ 68).
Plaintiffs assert that Sales Managers spend the majority of
their time doing merchandising work, which Scotts disputes.
(PSOF, DR ¶ 17). The parties also dispute the amount of
discretion granted to Sales Managers. [See, e.g.,
PSOF, DR ¶¶ 23-27 (disputing Sales Managers'
control over product placement in stores); PSOF, DR ¶ 21
(disputing whether Sales Managers choose merchandise or have
are the employees beneath Sales Managers. (DSOF, PR ¶
59). M&Cs are responsible for merchandising Scotts'
products in retail stores by placing them on designated
shelves, building and constructing product displays, and
maintaining, organizing, cleaning, and replenishing shelf
space. (DSOF, PR ¶ 40). The parties dispute whether the
M&Cs' responsibility for merchandising is shared with
Sales Managers. [Id.).
characterizes M&Cs as seasonal and part-time employees;
Scotts asserts that some M&Cs work full-time. (PSOF, DR
¶ 2). The parties dispute whether M&Cs log most of
their hours during a busy spring season. (PSOF, DR ¶ 3).
It remains unclear how many how many M&Cs work for the
company during and after the purported peak season. (PSOF, DR
parties dispute how much time Sales Managers spent
supervising M&Cs. (DSOF, PR ¶ 59). Plaintiffs rely
on spreadsheets allegedly containing the names and hours of
every M&C who worked with each Plaintiff. (PSOF ¶
6). Using the spreadsheets and payroll data provided by
Scotts [see Lesser Decl. DE 181 ¶¶ 18-20),
Plaintiffs have created a summary chart of the time
Plaintiffs spent supervising two or more M&Cs.
[Id.; Summary Chart, Ex. 16, DE 181-16; see
also PSOF, DR ¶¶ 7-9). Plaintiffs'
counsel, Seth R. Lesser, has provided a declaration in
support of the summary chart, explaining it as follows:
[The chart] [s]ummarize[es] Plaintiffs' review of the
M&C hour and payroll data produced by the defendant . . .
Plaintiffs studied the data across a full six-year period
from 2011-2016. Plaintiff identified the total number of
two-week pay periods worked by any of the Discovery Opt-ins
(as well as the pre-notice plaintiffs), plus all the hours by
any co-working M&C recorded during those same pay
periods. Plaintiffs found that, on average across the full
six years, the 25 SMs included in the review directed the
work of two-or-more employees only 44% of the time (i.e., in
only 44% of the over 2500 two-week pay periods that the SMs
worked did the M&Cs under their direction collectively
log 160 or more hours). As well, across the six years, no
individual SM directed the work of two-or-more employees more
than 65% of the time, and the majority of SMs directed the
work of two-or-more other employees less than 50% of the
(DE 181 ¶ 20) (referring to Chart, Ex. 16, DE 181-16)).
takes issue with the Plaintiffs' use of the summary
charts and Lesser Declaration. (See e.g., PSOF, DR
¶¶ 7-9). In Section Il.b.i.l.a, infra, 1
conclude that Plaintiffs may rely on summary charts.
Nevertheless, the amount of time Plaintiff Sale Managers
spent directing the work of two or more employees remains a
disputed issue of fact. (PSOF, DR ¶¶8-9).
for the parties and therefore assume familiarity with the
procedural history, including my (DE 66, 120, 217) and Judge
Dickson's (DE 107) previous opinions.
December 20, 2013, Plaintiffs Depalma and Leszczynski,
through their counsel, filed a "Class Action Complaint
and Demand for a Jury Trial." (DE 1). On February 4,
2014, Depalma and Leszczynski filed their "First Amended
Collective Action Complaint and Demand for Jury Trial."
April 2014, after the retirement of Judge Cavanaugh, this
case was reassigned to me. (DE 25). Although Magistrate Judge
Hammer originally had the case, it was soon reassigned to
Magistrate Judge Dickson. (DE 31).
March 31, 2016, I granted Plaintiffs' motion for
conditional certification. (DE 66, 67). About two weeks
later, I approved the form of the parties' proposed FLSA
notice. (DE 70). By July 22, 2016, approximately 100 opt-ins
had filed their consent forms. (See DE
August 4, 2016, Judge Dickson granted Plaintiffs'
equitable tolling motion and ordered that the statute of
limitations for the collective action opt-ins to be tolled
from March 20, 2015 to April 11, 2016. (DE 109). Scotts
appealed (DE 110), and I affirmed Judge Dickson's order.
(DE 120, 121).
November 12, 2018, Plaintiffs filed the motions that are now
before me. Scotts filed a motion for summary judgment as to
all plaintiffs (DE 174); Plaintiffs filed their own motion
for summary judgment. (DE 177).
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "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); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204
(3d Cir. 2000). In deciding a motion for summary judgment, a
court must construe all facts and inferences in the light
most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d
Cir. 1998). The moving party bears the burden of establishing
that no genuine issue of material fact remains. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[W]ith respect to an
issue on which the nonmoving party bears the burden of proof
... the burden on the moving party may be discharged by
'showing'-that is, pointing out to the district
court-that there is an absence of evidence to support the
nonmoving party's case." Celotex, 477 U.S.
the moving party has met that threshold burden, the
non-moving party "must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial.
Anderson, 477 U.S. at 248; see also Fed. R.
Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that
genuine issues of material fact exist). "[Unsupported
allegations ... and pleadings are insufficient to repel
summary judgment." Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990);
see also Gleason v. Norwest Mortg., Inc., 243 F.3d
130, 138 (3d Cir. 2001) ("A nonmoving party has created
a genuine issue of material fact if it has provided
sufficient evidence to allow a jury to find in its favor at
trial."). If the nonmoving party has failed "to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial, ... there can
be 'no genuine issue of material fact,' since a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial." Katz v. Aetna Cas. &
Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting
Celotex, 411 U.S. at 322-23).
deciding a motion for summary judgment, the court's role
is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for
trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Credibility
determinations are the province of the fact finder. Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,
1363 (3d Cir. 1992).
summary judgment standard, however, does not operate in a
vacuum. "[I]n ruling on a motion for summary judgment,
the judge must view the evidence presented through the prism
of the substantive evidentiary burden." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505,
2513, 91 L.Ed.2d 202 (1986). That "evidentiary
burden" is discussed in the following section.
the parties file cross-motions for summary judgment, the
governing standard "does not change." Clevenger
v. First Option Health Plan of N.J., 208 F.Supp.2d 463,
468-69 (D.N.J. 2002) (citing Weissman v. U.S.P.S.,
19 F.Supp.2d 254 (D.N.J. 1998)). The court must consider the
motions independently, in accordance with the principles
outlined above. Coldwell of N.J., Inc. v. KPSS,
Inc., 622 F.Supp.2d 168, 184 (D.N.J. 2009); Williams
v. Philadelphia Housing Auth., 834 F.Supp. 794, 797
(E.D. Pa. 1993), affd, 27 F.3d 560 (3d Cir. 1994).
That one of the cross-motions is denied does not imply that
the other must be granted. For each motion, "the court
construes facts and draws inferences in favor of the party
against whom the motion under consideration is made" but
does not "weigh the evidence or make credibility
determinations" because "these tasks are left for
the fact-finder." Pichler v. UNITE, 542 F.3d
380, 386 (3d Cir. 2008) (internal quotation and citations
presented with both sides' motions for summary judgment
on the issue of whether the plaintiffs to this action
("Sales Managers" or "SMs") were exempt
employees under the FLSA. Plaintiffs move for summary
judgment, arguing that neither the executive nor
administrative exemption applies. (DE 177-1). Defendant moves
for summary judgment, arguing that the administrative
exemption applies. (DE 174-1 pp. 14-27). Defendant argues in
the alternative that, even if no exemption applies,
Plaintiffs' damages should be calculated under a
fluctuating-work-week method. (Id. pp. 27-30).
"The FLSA establishes federal minimum-wage,
maximum-hour, and overtime guarantees that cannot be modified
by contract." Davis v. Abington Mem'lHosp.,
765 F.3d 236, 241 (3d Cir. 2014) (quoting Genesis
Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2013)).
Generally, an employer must pay its employees at least a
minimum hourly wage for work performed and must pay one and
one-half times the employee's regular wage for hours
worked in excess of forty hours per week. 29 U.S.C.
§§ 206, 207. Exempt from the coverage of FLSA,
however, are white-collar salaried employees, meaning
"any person employed in a bona fide executive,
administrative, or professional capacity." 29 U.S.C.
§ 213(a)(1). See also 29 C.F.R. §
exemptions are to be given a fair (as opposed to narrow)
interpretation. Encino Motorcars, LLC v. Navarro,
138 S.Ct. 1134, 1142 (2018) (quoting A. Scalia 8s B. Garner,
Reading Law 363 (2012)). Employers bear the burden to prove
that an employee qualifies for an FLSA exemption.
Mazzarella v. Fast Rig Support, LLC, 823 F.3d 786,
790-91 (3d Cir. 2016); Martin v. Cooper Elec. Supply
Co., 940 F.2d 896, 900 (3d Cir. 1991).
Plaintiffs move for summary judgment on the executive
exemption, arguing that Sales Managers did not
"customarily and regularly" supervise two or more
employees, as required by 29 C.F.R. § 541.100(a)(3). In
opposition, Defendant counters that there is at least an
issue of fact as to whether the Sales Managers are subject to