# Kuehn v. Kristina Reed, P.A.

> District Court, S.D. Florida · January 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10117259

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** January 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10117259

## How later opinions describe it (automated extraction)

- explaining that independent contractors are exempt from the FLSA’s requirements
- stating that a new ground for summary judgment raised for the first time in a reply memorandum will not be considered

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 9:19-cv-80607-ROSENBERG/REINHART

JOAN C. KUEHN,

Plaintiff,

v.

KRISTINA REED, P.A., doing business
as REED GRIFFITH AND MORAN, et al.,

Defendants.
_______________________________/

ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendants’ Motion for Summary Judgment
[DE 60]. The Court has carefully considered the Motion, Plaintiff’s Response thereto [DE 64],
Defendants’ Reply [DE 68], and the record, and is otherwise fully advised in the premises. For
the reasons set forth below, Defendants’ Motion for Summary Judgment is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendants are Reed Griffith and Moran, a law firm, and Attorneys James J. Moran and
Kristina Reed, partners at the law firm. Plaintiff Joan C. Kuehn worked for Defendants from
January 2012 until October 2018 and performed work associated with real estate closings. Her
job duties included requesting and collecting information and documents, preparing documents,
examining chains of title, producing title commitments, attending closings, and wiring funds. It is
undisputed that Kuehn examined chains of title and produced title commitments only until
mid-2016, after which time a third party performed those duties. DE 65 at 7 ¶¶ 61, 62; DE 69 at 7
¶¶ 61, 62.
Kuehn’s Complaint raises one count of failure to pay overtime pay in violation of the Fair
Labor Standards Act, as amended, 29 U.S.C. § 201 et seq. (“FLSA”). DE 1. Kuehn seeks overtime
pay in the amount of $82,555.97 for hours that she allegedly worked between 2016 and 2018, as
well as liquidated damages, fees, and costs. DE 21. Defendants maintain that Kuehn is exempt

from the FLSA’s overtime pay provision and that she received all monies due to her. DE 23;
DE 26.
In their Motion for Summary Judgment, Defendants contend that the undisputed material
facts establish that Kuehn is exempt from the FLSA’s overtime pay provision because she was
employed in a bona fide administrative capacity. Defendants alternatively contend that Kuehn has
not established that the overtime pay provision applies to her.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where “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). “A factual dispute is ‘material’ if it would affect the outcome of the suit

under the governing law, and ‘genuine’ if a reasonable trier of fact could return judgment for the
non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243
(11th Cir. 2008). When deciding a summary judgment motion, a court views the evidence in the
light most favorable to the non-moving party and draws all reasonable inferences in that party’s
favor. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1304 (11th Cir. 2016). The court does
not weigh conflicting evidence or make credibility determinations. Id. Upon the discovery of a
genuine dispute of material fact, the court must deny summary judgment and proceed to trial.
Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012).

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If the movant shows that there is no genuine dispute as to a material fact, the burden shifts
to the non-moving party to come forward with specific facts showing that there is a genuine issue
for trial. Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018). The non-moving party
does not satisfy this burden “if the rebuttal evidence is merely colorable, or is not significantly

probative of a disputed fact.” Jones, 683 F.3d at 1292 (quotation marks omitted). The non-moving
party must “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.” Id. (quotation marks
omitted). A non-conclusory affidavit based on personal knowledge, even if uncorroborated and
self-serving, can create a genuine dispute of material fact that defeats summary judgment. United
States v. Stein, 881 F.3d 853, 857-59 (11th Cir. 2018).
III. ANALYSIS
A. The Administrative Employee Exemption
The FLSA’s minimum wage and overtime provisions do not apply to an employee
employed in a bona fide administrative capacity. 29 U.S.C. § 213(a)(1); see generally id. §§ 206,

207. The phrase “employee employed in a bona fide administrative capacity” means an employee
(1) compensated at a particular minimum salary, (2) “[w]hose 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) “[w]hose primary duty includes the exercise
of discretion and independent judgment with respect to matters of significance.” 29 C.F.R.
§ 541.200(a). Kuehn does not dispute that she met the first two elements of this administrative
employee exemption, and, thus, the Court turns to consideration of the exemption’s third element.
See DE 64 at 12 n.64.

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The exercise of discretion and independent judgment generally involves “the comparison
and the evaluation of possible courses of conduct, and acting or making a decision after the various
possibilities have been considered.” 29 C.F.R. § 541.202(a). Determination of whether a duty
includes the exercise of discretion and independent judgment is based on all of the facts of a

particular employment situation. Id. § 541.202(b). Factors to consider when making such a
determination include, but are not limited to,
whether the employee has authority to formulate, affect, interpret, or implement
management policies or operating practices; whether the employee carries out
major assignments in conducting the operations of the business; whether the
employee performs work that affects business operations to a substantial degree,
even if the employee's assignments are related to operation of a particular segment
of the business; whether the employee has authority to commit the employer in
matters that have significant financial impact; whether the employee has authority
to waive or deviate from established policies and procedures without prior
approval; whether the employee has authority to negotiate and bind the company
on significant matters; whether the employee provides consultation or expert advice
to management; whether the employee is involved in planning long- or short-term
business objectives; whether the employee investigates and resolves matters of
significance on behalf of management; and whether the employee represents the
company in handling complaints, arbitrating disputes or resolving grievances.
Id.
“The exercise of discretion and independent judgment must be more than the use of skill
in applying well-established techniques, procedures or specific standards described in manuals or
other sources.” Id. § 541.202(e). The exercise of discretion and independent judgment “does not
include clerical or secretarial work, recording or tabulating data, or performing other mechanical,
repetitive, recurrent or routine work.” Id.
“The exercise of discretion and independent judgment implies that the employee has
authority to make an independent choice, free from immediate direction or supervision.” Id.
§ 541.202(c). “However, employees can exercise discretion and independent judgment even if
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their decisions or recommendations are reviewed at a higher level.” Id. (explaining that discretion
and independent judgment does not require the employee’s decisions to have finality or a complete
absence of review).
The phrase “matters of significance” refers to “the level of importance or consequence of

the work performed.” Id. § 541.202(a). The phrase “primary duty” means “the principal, main,
major or most important duty that the employee performs.” Id. § 541.700(a). Determination of
an employee’s primary duty is based on all of the facts of the particular case, and the amount of
time spent performing particular work is “a useful guide” but “not the sole test.” Id. § 541.700(a),
(b) (providing a nonexclusive list of factors to consider when determining an employee’s primary
duty).
An employer has the burden to show that an exemption to the FLSA applies, and FLSA
exemptions are narrowly construed against employers. Abel v. S. Shuttle Servs., Inc., 631 F.3d
1210, 1212 (11th Cir. 2011). The employer must prove the applicability of the FLSA exemption
“by clear and affirmative evidence.” Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir.

2001) (quotation marks omitted). An exemption should be “applied only to those clearly and
unmistakably within the terms and spirit of the exemption.” Morgan v. Family Dollar Stores, Inc.,
551 F.3d 1233, 1269 (11th Cir. 2008) (quotation marks omitted).
In their Motion for Summary Judgment, Defendants point to four categories of job duties
to support their argument that Kuehn’s primary duty included the exercise of discretion and
independent judgment with respect to matters of significance. See DE 60 at 7-8. First, Defendants
assert that Kuehn’s examinations of chains of title required her to use “her experience and
knowledge to analyze the relevant information and determine who held title, how title was held

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and whether the seller had marketable title.” Id. at 7. Second, Defendants assert that Kuehn would
then “produce the title insurance commitment from scratch by using the relevant information from
the chain of title, which included the requirements that needed to be fulfilled to vest marketable
title and the exceptions to coverage.” Id. As to these first two categories, the Court need not

determine whether the undisputed facts establish that examining chains of title and producing title
commitments included the exercise of discretion and independent judgment because, as stated
above, it is undisputed that Kuehn performed these duties only until mid-2016. See DE 65 at 7
¶¶ 61, 62; DE 69 at 7 ¶¶ 61, 62. Thus, she performed these duties for only a portion of the time
for which she seeks overtime pay. See DE 21-1. Defendants have not sought partial summary
judgment for that portion of time.
Third, Defendants assert that Kuehn “had the ability to bind the company as to matters of
financial significance” because she “had authority to wire funds from the firm’s trust account,
including net proceeds and to pay off mortgages involving hundreds of thousands of dollars, and
was the person responsible for executing wire transfers for most closings.” DE 60 at 7-8. Whether

the employee had “authority to commit the employer in matters that have significant financial
impact” is one of several factors that may be considered in determining whether a primary duty
included the exercise of discretion and independent judgment. See 29 C.F.R. § 541.202(b)
(providing a nonexclusive list of ten factors). However, Defendants do not explain how wiring
funds included the exercise of discretion and independent judgment. Kuehn has pointed to record
evidence reflecting that the amount of funds to be wired for a closing was determined by parties
other than Kuehn and that, before funds were wired, the predetermined amount was verified by
Kuehn and other employees. See DE 61-1 at 68; DE 61-2 at 73; DE 61-3 at 59-60; DE 65-12 at 7.

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This evidence indicates that wiring funds did not involve a comparison and evaluation of possible
courses of conduct. See 29 C.F.R. § 541.202(a) (“In general, the exercise of discretion and
independent judgment involves the comparison and the evaluation of possible courses of conduct,
and acting or making a decision after the various possibilities have been considered.”); see also id.

§ 541.202(b) (providing a nonexclusive list of factors to consider when determining whether a
duty includes the exercise of discretion and independent judgment).
Fourth, Defendants assert that Kuehn “attended the closings, conducted closings when
necessary, signed or initialed closing documents and documents to confirm that loan instructions
were being followed on behalf of the firm, exchanged loan documents, and communicated directly
with various third parties including the firm’s clients and banks.” DE 60 at 8. Defendants do not
make clear how Kuehn’s duties when she “conducted” closings may have differed from her duties
when she merely “attended” closings. In any event, it is undisputed that it was “rare” for Kuehn
to attend a closing without either Moran or Reed present. DE 65 at 9 ¶ 93; DE 69 at 10 ¶ 93;
see also DE 61-1 at 67. To the extent that “conduct[ing] closings when necessary” required the

exercise of discretion and independent judgment, the evidence indicates that conducting closings
was not one of Kuehn’s primary duties. See 29 C.F.R. § 541.700(a) (defining the phrase “primary
duty” as “the principal, main, major or most important duty that the employee performs”).
As to attending closings, signing or initialing documents, and exchanging documents,
Defendants do not explain how these duties included the exercise of discretion and independent
judgment. Kuehn has pointed to record evidence reflecting that her duty during closings was to
sign or initial documents to confirm that they were properly completed and contained the correct
information and that “the loan instructions were being followed.” See DE 61-2 at 81-82; DE 65-12

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at 7. Defendants also do not explain how “communicat[ing] directly with various third parties”
included the exercise of discretion and independent judgment. Kuehn has pointed to record
evidence reflecting that her communications with third parties involved requesting and providing
information and documents that were standard to real estate closings. See DE 61-2 at 79-81, 92;

DE 65-12 at 3, 5-7. This evidence indicates that these duties did not involve a comparison and
evaluation of possible courses of conduct. See 29 C.F.R. § 541.202(a), (b).
Defendants, in their Reply, more generally argue that the exercise of discretion and
independent judgment was required for Kuehn to determine which closing documents were needed
for any particular closing and to create documents using the relevant language and information.
See DE 68 at 3. Kuehn has pointed to record evidence reflecting that which documents she
compiled and created for a particular closing were, for the most part, standard for all closings and
that she created documents using pre-established templates that had blanks to impute specific
information in the appropriate locations. See DE 61-1 at 49-50, 70-72; DE 61-2 at 68, 78; DE 61-3
at 39-45, 56; DE 65-12 at 2-3, 5-8. Record evidence further reflects that, if a particular closing

involved something abnormal or unique to that closing, Kuehn would discuss with Moran or Reed
how to handle the matter. See DE 61-1 at 71; DE 61-2 at 69-70; DE 65-12 at 5. This evidence
creates a genuine issue of material fact as to whether these duties included the exercise of discretion
and independent judgment. See 29 C.F.R. § 541.202(a)-(c), (e) (explaining that the exercise of
discretion and independent judgment generally involves “the comparison and the evaluation of
possible courses of conduct” and “an independent choice” and “must be more than the use of skill
in applying well-established techniques, procedures or specific standards” and the performance of
“mechanical, repetitive, recurrent or routine work”).

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Finally, Defendants argue that Kuehn’s designation as an independent contractor at her
current job, together with her deposition testimony that she “did exactly the same work” for
Defendants as she does at her current job, supports a conclusion that her primary duty while
working for Defendants included the exercise of discretion and independent judgment. DE 60 at

9-10; see DE 61-2 at 170. This argument is unavailing. The inquiry into whether an individual
qualifies as an independent contractor is not identical to the inquiry into whether an individual’s
primary duty includes the exercise of discretion and independent judgment. Compare Scantland
v. Jeffry Knight, Inc., 721 F.3d 1308, 1311-12 (11th Cir. 2013) (providing factors by which to
evaluate whether an individual is an employee or an independent contractor), with 29 C.F.R.
§ 541.202 (providing guidance to determining when an employee’s primary duty includes the
exercise of discretion and independent judgment with respect to matters of significance).
Moreover, Defendants acknowledge that their argument is based on the presumption that Kuehn’s
designation as an independent contractor at her current job is correct. DE 68 at 9. Defendants,
however, fail to point to sufficient evidence to permit the Court evaluate whether her designation

as an independent contractor at her current job is correct. Cf. Scantland, 721 F.3d at 1311-19
(evaluating the relevant factors to determine whether FLSA plaintiffs were employees or
independent contractors).1

1 Defendants also assert, in their Reply in support of their Motion for Summary Judgment, that if Kuehn “is properly
classified as an independent contractor at her current job where she purportedly has the same title and duties as she
did with Defendants, then she is FLSA exempt and not entitled to overtime pay.” DE 68 at 9; see Scantland, 721 F.3d
at 1311 (explaining that independent contractors are exempt from the FLSA’s requirements). To the extent that
Defendants may contend that Kuehn was an exempt independent contractor while she worked for them, they did not
raise such a contention in their Motion for Summary Judgment and may not do so for the first time in their Reply.
See St. Breux v. U.S. Bank, Nat’l Ass’n, 919 F. Supp. 2d 1371, 1379 (S.D. Fla. 2013) (stating that a new ground for
summary judgment raised for the first time in a reply memorandum will not be considered).
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In sum, genuine issues of material fact exist that prevent the Court from concluding that
Kuehn is exempt from the FLSA’s overtime pay provision under the administrative employee
exemption.
B. Applicability of the FLSA Overtime Pay Provision

The FLSA’s overtime pay provision applies to employees “who in any workweek [are]
engaged in commerce or in the production of goods for commerce” or who are “employed in an
enterprise engaged in commerce or in the production of goods for commerce.” 29 U.S.C.
§ 207(a)(1). Thus, the overtime pay provision applies either if the employee regularly and directly
participates in the actual movement of persons or things in interstate commerce (called “individual
coverage”) or if the employer is an enterprise engaged in commerce or in the production of goods
for commerce (called “enterprise coverage”). Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1298-99 (11th Cir. 2011). Individual coverage exists if the employee “regularly
us[es] the instrumentalities of interstate commerce in his work, e.g., regular and recurrent use of
interstate telephone, telegraph, mails, or travel.” Thorne v. All Restoration Servs., Inc., 448 F.3d

1264, 1266 (11th Cir. 2006); see also 29 C.F.R. § 776.23(d)(2) (stating that “employees who
regularly use instrumentalities of commerce, such as the telephone, telegraph and mails for
interstate communication are within the scope of the Act”).
Here, a genuine issue of material fact exists as to whether Kuehn regularly and directly
participated in interstate commerce by using instrumentalities of interstate commerce in her work.
According to statements in her affidavit, which is based on her personal knowledge, her regular
job duties included communicating via telephone and email with, and sending documents to,
out-of-state lenders. DE 65-12 at 1, 8-9. Her regular job duties also included wiring funds, and

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seven out of ten wires that she sent were sent interstate. Jd. at 7,9. This evidence creates a genuine
issue as to whether the FLSA’s overtime pay provision applies to Kuehn.” See 29 U.S.C.
§ 207(a)(1); Brooks v. White, No. 8:07-cv-603, 2008 WL 345522, *1 (M.D. Fla. 2008) (denying
summary judgment in an FLSA suit where a reasonable factfinder could infer individual coverage
from evidence that the plaintiff's “job duties included using the telephone, mail, facsimile
machine, and e-mail with in-state as well as out-of-state individuals and businesses on a regular
basis” and that she “performed business tasks using these instrumentalities attendant with a real
estate practice by conducting title searches, preparing paperwork associated with real estate
transactions, and facilitating closings including the wiring of money to and from out-of-state
lenders’).
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment [DE 60] is
DENIED.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 9th day of January,
2020. 7).
( sh. A. Hee abeay,
ROBIN L. ROSENBERG U
UNITED STATES DISTRICT JUD
Copies furnished to: Counsel of Record

Because a genuine issue exists as to whether the overtime pay provision applies to Kuehn based on individual
coverage, the Court need not address whether record evidence also creates a genuine issue as to the existence of
enterprise coverage.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10117259. Public record. Not legal advice.