In Re Family Dollar FLSA Litigation

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: FAMILY DOLLAR FLSA 

LITIGATION.

IRENE GRACE; SHARRON

DAUGHERTY; JOHN A. GERTKEN;

DUSTY G. HYLTON; LASANDRA B.

ROSE; PHILLIS FANCHER; JODI HARE;

ANGELA J. COOPER; MELVIN

CATHEY; MARK CLARK; JOHN E.

GERSCH; MARGIE A. LITTLE; VICKI

BROWN GUY; BRENDA KAY

RUSSELL, a/k/a BRENDA K.

RUSSELL-STAIN; BARBARA G.

BROWN; MARCELLA SAN GIORGIO;

BRIAN K. BACKLUND; JAMES  No. 09-2029

MANOS; ARLENE ATKINS; TRACY

KLOPPE; SANDRA CARNEY;

CATHERINE M. DAWSON; ALFRED

BLAIR; ETHEL BRASWELL; SHARON

CANTRELL; JUDY CARVER; ERICA L.

LEWIS; MICHAEL M. MCCOY;

BRENDA ENDLSEY ROMINES; EDDIE

MAE SMITH; KHIALLAH SOLOMON;

IVA VANETTA TATE; WILLIAM K.

TEDDER; NATASHA LEDYARD;

DONNA GAIL DAVIS; VERONICA

TAYLOR; NANNIE SUE DANIELS;

TANYA LAKITSHA WARREN, a/k/a

Tanya Warren-Thomas; SANDRA

DIANE RHINEHART;



2 In Re: FAMILY DOLLAR FLSA LITIGATION

MONICA JENNIFER DANCE; JENNIFER 

K. LEONARD; BETTY J. DEARMON;

JIMMY EARL GILBERT; SUSAN

BROWN; MARY DEFOOR; TODD

HARGROVE; JEWEL RAY BELFORD;

GWEN SINNS; ROBBY QUINTON;

TARA Y. JAHATEH; TAMMIE

BRUNSON; BRENDA LOUISE BILBREY;

TAMMY ASHER; NANCY BURNETTE;

SHARON PHILLIPS BELL; AMANDA

ECHOLS; CLAIR W. TROST, SR.; 

AUSTIN S. MUDENDA; NANCY

SMITH; JOHN MORRISON; DOROTHY

L. EVANS; JOANNE K.

MULLINS-SWAIN; DONNA SANCHEZ,

Plaintiffs-Appellants,

v.

FAMILY DOLLAR STORES,

INCORPORATED,

Defendant-Appellee.



Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Senior District Judge.

(3:08-md-01932-GCM; 3:06-cv-00306-GCM)

Argued: December 10, 2010

Decided: March 22, 2011

Before NIEMEYER and KING, Circuit Judges,

and Patrick Michael DUFFY, Senior United States District

Judge for the District of South Carolina,

sitting by designation.

In Re: FAMILY DOLLAR FLSA LITIGATION 3

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge King and Senior Judge Duffy joined.

COUNSEL

ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS,

QUINN & PANTAZIS, PC, Birmingham, Alabama, for

Appellants. Robert Allen Long, Jr., COVINGTON & BURL-

ING, LLP, Washington, D.C., for Appellee. ON BRIEF:

Gregory O. Wiggins, WIGGINS, CHILDS, QUINN & PAN-

TAZIS, PC, Birmingham, Alabama; Robert E. DeRose, Kath-

erine A. Stone, BARKAN NEFF HANDELMAN

MEIZLISH, LLP, Columbus, Ohio; Gregory L. Jones, GREG

JONES & ASSOCIATES, PA, Wilmington, North Carolina,

for Appellants. Mark W. Mosier, COVINGTON & BURL-

ING, LLP, Washington, D.C., for Appellee.

OPINION

NIEMEYER, Circuit Judge:

Irene Grace, a former store manager for Family Dollar

Stores, Inc., who worked 50-65 hours per week and was paid

a fixed salary plus bonus, commenced this action against

Family Dollar under the Fair Labor Standards Act for over-

time wages. While Family Dollar treated Grace as an execu-

tive exempt from overtime pay requirements under 29 U.S.C.

§ 213(a)(1), Grace argues that she was not subject to this

exemption because she devoted the vast majority of her time

to nonexecutive tasks and therefore should be paid wages on

the basis of a 40-hour work week plus overtime, as required

by 29 U.S.C. § 207(a)(1). She seeks relief on behalf of herself

and other employees similarly situated.

Even though the record shows that as a store manager,

Grace was required to perform the full range of tasks neces-

4 In Re: FAMILY DOLLAR FLSA LITIGATION

sary for the successful operation of a store, including nonex-

ecutive tasks, she nonetheless remained the highest level

Family Dollar employee at the store, and her income

depended on the success of her performance and the profits of

the store. After applying the statutory and regulatory factors

under 29 U.S.C. § 213(a)(1) to determine whether Grace was

exempt as an executive, we conclude that she was exempt and

therefore not entitled to overtime pay. Accordingly, we affirm

the judgment of the district court.

Because Grace’s claim was properly dismissed on sum-

mary judgment, we do not decide whether the district court

abused its discretion in declining to permit Grace to pursue

her claim on behalf of other similarly situated employees.

I

Family Dollar Stores, Inc. is a national discount retail

chain, operating over 6,000 stores in 44 States. It has divided

its operations into 95 regions, each run by a vice president,

and then into districts, each run by a district manager. A dis-

trict, which can vary in size from a single city to an area

within multiple States, includes 10 to 30 retail stores, each run

by a salaried store manager. The store manager supervises one

or more hourly assistant managers and multiple hourly

employees, who work as clerks. Each store manager sets his

or her own hours of employment and is authorized to make

decisions that affect the profitability of the store. Each store,

which can vary in size from 3,700 square feet to 12,300

square feet, is a profit center, and the store manager receives

a bonus that is directly related to the profitability of the store.

Family Dollar’s store managers open and close stores;

train, supervise, discipline, and evaluate employees; order

inventory; handle relations with customers, both to assure

their satisfaction and also to monitor their conduct to prevent

theft; operate the stores against a quarterly budget; handle the

money received by the store, make deposits, and complete the

In Re: FAMILY DOLLAR FLSA LITIGATION 5

paperwork related to sales and receipts. The store managers

also devote a large percentage of their time to nonexecutive

tasks, such as unloading freight, stocking shelves, running

cash registers, and cleaning up.

While store managers make numerous decisions that can

affect the profitability of a store, they are also subject to com-

pany policies related to the appearance of the stores and their

inventory, the layout of the stores, the stores’ hours of opera-

tion, and the wages that employees are paid. To this end, the

district managers supervise store managers and visit each

store on a regular basis.

Over the years, Family Dollar has considered its store man-

agers to be executives who are exempt from overtime pay

requirements.

Irene Grace began working at Family Dollar in 1996 and

shortly thereafter, because of her prior managerial experience,

became a store manager. She remained at Family Dollar until

October 2004, when she resigned to take a job less demanding

of her time. While at Family Dollar, Grace worked from 50-

65 hours per week, depending on the store’s particular needs

at any given time. Her salary was initially $400 a week and

increased during the eight years she worked as a store man-

ager to $655. She also received a bonus each year, depending

on her performance and the performance of her store.

Grace reported to a district manager, who was responsible

for 17 stores and who, she stated, visited her store once every

two to three weeks. In operating her store, Grace regularly

performed all the tasks necessary for the operation of her

store. In addition, she supervised all operations. She handled

disputes among employees; handled customer complaints;

marked down inventory; established employee schedules;

trained and disciplined employees; made personnel recom-

mendations to the district manager, who followed those rec-

ommendations 95% of the time; and took care of deposits and

6 In Re: FAMILY DOLLAR FLSA LITIGATION

paperwork for the store. She explained that her job required

that she "multi-task," such that while she performed nonman-

agerial tasks, she was also functioning as a manager, which

required that she watch out for possible theft by customers,

train other employees, and perform other managerial tasks.

In May 2004, Grace commenced this action on behalf of

herself and other employees similarly situated, filing her

action in the Middle District of Georgia. Family Dollar moved

to strike the collective-action allegations and also to transfer

the case to the Western District of North Carolina, where

Family Dollar was headquartered and where similar cases

were pending. The district court in the Middle District of

Georgia transferred Grace’s action to the Western District of

North Carolina where it became part of the "Family Dollar

FLSA Multidistrict Litigation."

The district court, in a ruling dated September 6, 2007,

denied Grace’s motion for preliminary certification as a col-

lective action to facilitate notice to potential plaintiffs. None-

theless, 74 plaintiffs opted to join Grace’s collective action,

pursuant to 29 U.S.C. § 216(b). In denying a preliminary cer-

tification in Grace’s case, the court concluded that any nonex-

ecutive duties performed by store managers were not the

result of Family Dollar policy but rather the decisions of indi-

vidual store managers. It concluded, "This Court cannot

assume that every store manager at Family Dollar spent a

majority of their time doing non-managerial tasks. Such a

declaration would require an individualized evaluation of

each plaintiff." The court concluded that "[g]iven the varia-

tion in duties among managers in different stores, the plead-

ings do not meet the standard of commonality needed for this

Court to find that Plaintiffs are similarly situated."

On Family Dollar’s subsequent motion, the district court

entered summary judgment in favor of Family Dollar based

on Grace’s deposition testimony, which the court summarized

as follows:

In Re: FAMILY DOLLAR FLSA LITIGATION 7

Grace testified in the deposition that she regularly

interviewed and provided recommendations as to the

hiring of employees, trained employees, assigned

employees to a schedule and set their hours of work,

and directed and supervised her employees’ work.

She also maintained sales records and was responsi-

ble for financial records, conducted performance

reviews of her employees, handled employees’ com-

plaints and disputes between employees, disciplined

employees, planned and apportioned work among

her employees, was responsible for ordering mer-

chandise, controlled the flow and distribution of

merchandise, was responsible for the safety of her

employees at the store, and was responsible for han-

dling customer complaints and controlling theft.

Defendant also alleges that she was free from super-

vision as her District Manager was only in her store

2-3 times per month. However, Grace also testified

in her deposition, that her primary duty was freight

and that she spent 95% of the time doing freight

(doing it herself, not supervising other people doing

it). Plaintiff also alleges that she spent 99% of the

time during a week putting out freight, running a

cash register, doing the schematics and doing the

janitorial work.

(Internal citations omitted). The court concluded that Grace’s

job as store manager met the Department of Labor’s require-

ments for establishing that she was an executive employee,

even though she spent many hours on nonexecutive tasks. The

court concluded that while Grace performed nonexecutive

tasks, she was concurrently managing the store and that her

primary duties were managerial. The court noted that Grace

had relative freedom from supervision, that her salary was

higher than nonexempt employees, and that she regularly

exerted authority over other employees. For these reasons, the

court entered an order, dated July 9, 2009, granting Family

Dollar’s motion for summary judgment.

8 In Re: FAMILY DOLLAR FLSA LITIGATION

In denying the motion of Grace and the other plaintiffs for

reconsideration, the district court found no just reason to

delay the entry of final judgment with respect to (1) its inter-

locutory rulings denying Grace the right to pursue her claim

on behalf of other employees similarly situated (dated Sep-

tember 6, 2007) and (2) its order granting Family Dollar’s

motion for summary judgment (dated July 9, 2009). Accord-

ingly, it entered final judgment under Rule 54(b) on August

12, 2009.

Both Grace and the other employees whom she sought to

represent filed this appeal.

II

We review orders granting summary judgment de novo,

applying the same standard that the district court was required

to apply. See Detrick v. Panalpina, Inc., 108 F.3d 529, 536

(4th Cir. 1997). Of course, summary judgment is appropriate

only if the moving party shows that "there is no genuine dis-

pute as to any material fact and [that] the movant is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(a). A

movant may defeat a motion for summary judgment by dem-

onstrating that a genuine issue of material fact exists by refer-

encing matters in the record, including depositions and

affidavits. Fed. R. Civ. P. 56(c). But it cannot create a dispute

about a fact that is contained in deposition testimony by refer-

ring to a subsequent affidavit of the deponent contradicting

the deponent’s prior testimony, for "it is well established that

a genuine issue of fact is not created where the only issue of

fact is to determine which of the two conflicting versions of

a party’s testimony is correct." Erwin v. United States, 591

F.3d 313, 325 n.7 (4th Cir. 2010) (internal quotation marks

and alterations omitted) (quoting Halperin v. Abacus Tec.

Corp., 128 F.3d 191, 198 (4th Cir. 1997)); see also Waste

Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 341 (4th Cir.

2001); Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975-76

In Re: FAMILY DOLLAR FLSA LITIGATION 9

(4th Cir. 1990); Barwick v. Celotex Corp., 736 F.2d 946, 960

(4th Cir. 1984). As we explained in Barwick,

If a party who has been examined at length on depo-

sition could raise an issue of fact simply by submit-

ting an affidavit contradicting his own prior

testimony, this would greatly diminish the utility of

summary judgment as a procedure for screening out

sham issues of fact.

736 F.2d at 960.

Thus, while Grace did rely on her affidavit numerous times

in her brief to suggest that deposition facts were disputed,

when Grace’s deposition testimony and later affidavit are

inconsistent, we will disregard her affidavit and rely on the

testimony she gave in her deposition, where she was exam-

ined at length about her responsibilities as a manager of a

Family Dollar store.

III

The Fair Labor Standards Act requires that an employee

receive overtime pay if she works more than 40 hours in any

workweek. 29 U.S.C. § 207(a). The statute, however, exempts

from this requirement "any employee employed in a bona fide

executive . . . capacity." 29 U.S.C. § 213(a)(1). The Depart-

ment of Labor has, for the relevant period, promulgated two

sets of regulations interpreting the scope of the executive

exemption, one of which applied before August 2004, and the

other, after August 2004. Because Grace’s claim covers the

period from 1996 to October 2004, it is governed, in differing

degrees, by both pre-2004 and post-2004 regulations. But the

application of the different regulations is not material to the

outcome of this case.

Under the pre-2004 regulations, an employee who earns

more than $250 per week qualifies as an executive if (1) her

10 In Re: FAMILY DOLLAR FLSA LITIGATION

primary duty consists of the management of the enterprise and

(2) includes the customary and regular direction of two or

more other employees. 29 C.F.R. § 541.119(a) (pre-2004).

The post-2004 regulations provide that an employee is an

executive if: (1) she is compensated at a rate of at least $455;

(2) her primary duty is management; (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 her suggestions and recommendations as to the hiring, fir-

ing, advancement, promotion, or any other change of status of

other employees are given particular weight. 29 C.F.R.

§ 541.100(a) (2004). Thus, the 2004 regulations include the

pre-2004 factors and add factor (4).

Factors (1), (3), and (4) are not substantially disputed in

this case. As to factor (1), during the period when the regula-

tion required that Grace earn $250 per week, she earned at

least $400 per week, and when the regulation required that

she earn $455 per week, she earned over $600 per week.

As to factor (3), Grace did in fact customarily and regularly

direct the work of two or more other employees. An employee

directs the work of two or more employees if her subordinates

work 80 hours or more per week, and she directs the work of

those employees "customarily and regularly" if the "frequency

[is] greater than occasional but . . . may be less than constant."

29 C.F.R. § 541.701 (2004). Grace testified that the number

of employees at her store ranged from three to five and that

she always had at least two cashiers. An employee for Family

Dollar testified that Grace’s subordinates worked 80 or more

hours per week during 89.23% of the weeks that she was a

store manager. And Grace testified that she directed the work

of these employees, stating that one of her "primary tasks and

functions as a successful store manager" was to "train

[employees] and manage them." When employees did not per-

form a required task, they would have to answer to Grace,

who also engaged the employees in counseling and coaching

to ensure that they performed their tasks as necessary.

In Re: FAMILY DOLLAR FLSA LITIGATION 11

Explaining why she had low turnover in her store, Grace testi-

fied, "I tried to teach the people what I knew to make the store

run smoothly. I always took pride in the store, and I wanted

them to take pride in the store."

And as to factor (4), Grace testified that her district man-

ager followed her employee recommendations and evalua-

tions at least 95% of the time, and thus her suggestions

regarding the hiring of employees were given significant

weight. She also testified that she could fire employees and

did so on at least one occasion. As she explained, she had a

"stock guy that was constantly late to work, didn’t show up.

So one day I just met him at the door and told him we didn’t

need him any more after he had just not come to work."

Grace rests her case primarily on disputing factor (2),

which requires that her primary duty be management. See 29

C.F.R. § 541.119(a) (pre-2004); 29 C.F.R. § 541.100(a)

(2004).

Grace contends that because 99% of her time was devoted

to nonexecutive duties, at least a genuine issue of material

fact exists about whether she was an executive, precluding the

entry of summary judgment against her. She asserts that most

of her time involved "putting out freight, running a cash regis-

ter, doing the schematics and doing janitorial work." She

argues that the district court erred in not giving her an infer-

ence that "spending 99% of her time on non-managerial duties

precluded her managing the store." She claims that "there

comes a point when the degree of manual labor approaches

80-90% of the plaintiff’s time that a genuine issue of material

fact as to her ‘primary duty’ is created by that fact alone." In

response to the district court’s conclusion that she performed

managerial tasks and nonmanagerial tasks concurrently, she

argues that "she performed few concurrent managerial duties

because she had none to begin with."

Family Dollar contends that Grace’s argument essentially

ignores the fact that she performed exempt and nonexempt

12 In Re: FAMILY DOLLAR FLSA LITIGATION

work concurrently. While Family Dollar acknowledges that

Grace devoted extensive time to nonexecutive tasks, the fed-

eral regulations governing whether Grace’s primary duty was

management direct that the court look at all relevant factors.

In this case Family Dollar argues that Grace "exercised dis-

cretion and judgment on a daily basis," relating to every

aspect of management in the store. It pointed out that Grace

had to adopt employee schedules to fit the needs of her store,

including the staffing of different shifts. Ultimately, Grace

considered her most important task to be "serving customers

and trying to make the store profitable," quintessentially a

management task. Family Dollar notes that Grace accom-

plished her goals by creating loyal, repeat customers; training

employees; and focusing on inventory and payroll.

To determine whether an employee’s primary duty is man-

agement, we look to the character of the employee’s job as a

whole, focusing on five factors outlined by the pre-2004 regu-

lations: (1) the amount of time spent performing managerial

duties; (2) the relative importance of these managerial duties;

(3) the frequency with which the employee exercised these

duties; (4) the relative freedom from supervision; and (5) the

relationship between the employee’s salary and nonexempt

employees. 29 C.F.R. § 541.103 (pre-2004).

First, with respect to the amount of time spent performing

managerial duties, Grace claims that because she spent such

a large portion of her time doing nonmanagerial work, this

factor cannot be satisfied. But the regulation explains that

time alone "is not the sole test, and in situations where the

employee does not spend over 50 per cent of his time in man-

agerial duties, he might nevertheless have management as his

primary duty if the other pertinent factors support such a con-

clusion." 29 C.F.R. § 541.103 (pre-2004). More particularly,

the Fair Labor Standards Act, recognizing the nature of retail

business, exempts retail executives from the requirement that

the majority of their hours be spent on executive functions. 29

U.S.C. § 213(a)(1) ("[A]n employee of a retail or service

In Re: FAMILY DOLLAR FLSA LITIGATION 13

establishment shall not be excluded from the definition of

employee employed in a bona fide executive or administrative

capacity because of the number of hours in his workweek

which he devotes to activities not directly or closely related

to the performance of executive or administrative activities").

There is no per se rule that once the amount of time spent on

manual labor approaches a certain percentage, satisfaction of

this factor is precluded as a matter of law. See Thomas v.

Speedway SuperAmerica, LLC, 506 F.3d 496, 504 (4th Cir.

2007) ("[T]he time factor . . . might even be somewhat mis-

leading where the employee’s management and non-

management functions are [not] . . . clearly severable") (inter-

nal quotation marks omitted) (second bracket and ellipses in

original) (quoting Donovan v. Burger King Corp., 672 F.2d

221, 226 (1st Cir. 1982)); see also Haines v. Southern Retail-

ers, Inc., 939 F. Supp. 441, 449 (E.D. Va. 1996) ("[A] number

of federal courts have ‘disregarded the time factor . . . where

the manager is in charge of a separate facility such as a conve-

nience store or restaurant chain’") (quoting Meyer v. Worsley

Co., Inc., 881 F. Supp. 1014, 1020 (E.D.N.C. 1994)).

In this case, Grace was in charge of a separate retail store,

seeking to make it profitable. While she catalogs the nonman-

agerial jobs that she had to do, claiming that they occupied

most of her time, she does so without recognizing that during

100% of the time, even while doing those jobs, she was also

the person responsible for running the store. Indeed, there was

no one else to do so, and it cannot be rationally assumed, nor

does the record support a claim, that the store went without

management 99% of the time. Grace also fails to acknowl-

edge the importance of performing nonmanagerial tasks in a

manner that could make the store profitable, the goal of her

managerial responsibility.

We accept Grace’s deposition testimony to determine the

nature of her work for Family Dollar. She testified that she

had the responsibility for making a profit and that she made

a profit by "controlling inventory, controlling payroll, control-

14 In Re: FAMILY DOLLAR FLSA LITIGATION

ling the things that you ordered, like your store supplies and

—because all of that came off—off of the top"; "controlling,

you know, anything in the store, damages, make sure there

was no accidents—accident loss or—safety." Grace recog-

nized that her exercise of judgment and decisions on a day-to-

day basis affected customer loyalty and satisfaction, as well

as profits. She concluded, "I always took pride in the store,

and I wanted them [the employees] to take pride in the store.

. . . I treated people the way I wanted to be treated, with

respect. . . . I think a manager is a team leader, and if they’re

not leading that team, you’re not going to have—you know,

if the people come to work and they’re not proud in your store

and they’re not proud in themselves or in their job, they’re not

going to do a good job." She explained that if they were not

doing a good job and the store did not look good, the store

would not have good profits.

Thus, while Grace performed nonmanagerial tasks around

the store as she determined necessary, she concurrently per-

formed the managerial duties of running the store. As she

explained, "whether or not [she] happened to be putting up

stock at a given moment or running a register or talking to a

customer, at the same time [she was] responsible for making

sure the whole store ran successfully." Similarly, she stated,

"When [she was] running a cash register, [she was] at the

same time looking at the condition of the front end and keep

an eye out for theft, etc." She explained, "When [she was]

doing [her] paperwork for [her] cash registers and [her]

money, [she was] thinking about what had to be done later

with regard to that money and all that paperwork for that and

store deliveries." This multi-tasking—doing management jobs

while doing nonexempt work—is explicitly recognized as a

managerial duty by the Department of Labor’s regulations,

which describe the situation where a retail manager performs

concurrent nonmanagement duties:

For example, an assistant manager in a retail estab-

lishment may perform work such as serving custom-

In Re: FAMILY DOLLAR FLSA LITIGATION 15

ers, cooking food, stocking shelves and cleaning the

establishment, but performance of such nonexempt

work does not preclude the exemption if the assistant

manager’s primary duty is management. An assistant

manager can supervise employees and serve custom-

ers at the same time without losing the exemption.

An exempt employee can also simultaneously direct

the work of other employees and stock shelves.

29 C.F.R. § 541.106 (2004).

Grace apparently had a good handle on what was necessary

to run her store and make it a success, and she expressed pride

in believing that she did it better than other store managers in

the Family Dollar chain. She spoke of having a good and

well-presented inventory, an attractive and clean store, a well-

trained staff, and a respectful attitude towards customers.

Since profit margins were small, she pointed out that good

management of such a retail operation also required her spe-

cial attention in dealing with shrinkage, waste, and breakage

of inventory, as well as customer complaints. Finally, she

acknowledged that she exercised judgment in scheduling a

small staff to cover multiple shifts.

Regardless of the template and budget that were given to

her by Family Dollar for the operation of her store as part of

a chain, the successful management of her store within those

parameters depended totally on her own decisionmaking and

judgment, even as she was also required to do nonmanagerial

work a majority of the time. Thus, while Grace unloaded

freight or swept the floors, she was also the manager, and no

one else was directly supervising her work.

In short, whether Grace was simply standing around or

stocking shelves, she remained responsible for addressing any

problem that could arise and did arise during the course of the

daily retail operations. As she testified at length, she alone

had the responsibility for addressing complaints by employ-

16 In Re: FAMILY DOLLAR FLSA LITIGATION

ees, complaints by customers, damaged goods, nonreporting

employees, customer theft, adequate staffing of cash registers

—and the list continued extensively. In this context, it is mis-

leading simply to add up the time that she spent unloading

trucks, stocking inventory, running cash registers, or sweep-

ing floors and conclude thereby that she was merely a clerk

and not a manager. To be sure, each of these tasks was non-

managerial, but she performed these tasks in the context of

her overall responsibility to see that the store operated suc-

cessfully and profitably, and they were important to fulfilling

her goals and responsibilities. At bottom, Grace had the ulti-

mate responsibility for operating the store profitably, and she

did so successfully. As she testified plainly, "I ran the store

when I was in the building," and, according to her, she was

in the building most of the time, as she spent between 50 and

65 hours per week at the store.

We conclude that Grace was performing management

duties whenever she was in the store, even though she also

devoted most of her time to doing the mundane physical

activities necessary for its successful operation.

With respect to the second, third, and fourth factors for

determining whether management was Grace’s primary duty,

the facts discussed with respect to the first factor satisfy these

factors also. When focusing particularly on the relative impor-

tance of managerial duties as compared to other types of

duties, all of Grace’s performance was aimed at running the

store in a manner that met her criteria for a well-run store.

Whether she was collecting cash, filling out paperwork,

sweeping the floor, stocking shelves, hearing the complaint of

a customer, working with employees on their schedules, or

running a cash register, she was fulfilling her task of running

the store. There was no one else at the site to direct these

actions. While Grace does argue that she was under the direct

supervision of the district manager, she nonetheless stated that

he came to the store only once every two to three weeks.

In Re: FAMILY DOLLAR FLSA LITIGATION 17

Again with respect to the frequency with which Grace exer-

cised discretion, it is apparent that she exercised discretion

virtually every day and all day long. Every one of the day-to-

day tasks involved judgment and discretion. How to handle a

customer complaint or an employee complaint, how to adjust

a schedule, how to arrange the stock in a manner that was

pleasing, what task to address first, how to keep a mindful eye

on shrinkage and breakage while at the same time satisfying

customers—all involved discretionary acts inherent in being

responsible for the successful operation of a retail store.

With respect to whether she was relatively free from super-

vision, she testified that she was subject to company policies

and the company template for a store in the Family Dollar

chain. She also stated that the district manager provided her

with a quarterly budget and expected her to meet the budget,

and that he visited her once every two to three weeks. On the

other hand, apart from this supervision, which was not

uncharacteristic for any retail operation, the district manager

was not, as the district court observed, "a micro-manager who

constantly was looking over her shoulder." Indeed the district

manager had 17 stores to supervise, which would hardly per-

mit him to micro-manage all 17.

Finally, considering the fifth factor, we look to the relation-

ship between the store manager’s salary and nonexempt

employees’ wages. Here, we consider two items, first,

whether the manager earned more, in absolute terms, than

nonmanagerial employees, and second, whether the manager

was a "profit center," namely, whether the manager had the

ability to influence the amount of her compensation. As to the

first item, Grace earned significantly higher amounts on an

hourly basis than nonexempt workers. The record shows that

while hourly employees at Family Dollar earned an average

wage of $5.81 per hour, during the same period Grace earned

compensation which, when computed on an hourly basis,

averaged between $9.62 and $12.02 per hour. In addition,

Grace received annual bonuses of $1,000 or more, whereas

18 In Re: FAMILY DOLLAR FLSA LITIGATION

none of the nonexempt Family Dollar employees received

bonuses. As to the second item, Grace’s store was also a

"profit center," and her performance evaluation, salary, and

bonus depended on her store’s profitability. She maintained a

profitable store, as she testified, because she took care of her

store so that she had "loyal, repeat customers." She explained

at some length that for the store to be profitable, she had to

be a team leader; her employees had to be proud of the store;

the store had to look good; and generally, the team had to do

a good job.

Thus, upon consideration of the five factors identified for

determining whether Grace’s primary duty was management,

we conclude that the factors were readily satisfied. Indeed,

she was the store’s only manager, and in the absence of her

management, her store could not have functioned.

Grace also argues that summary judgment in this case was

inappropriate because of the decision in Morgan v. Family

Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008). In that

case, a group of Family Dollar managers brought suit under

the Fair Labor Standards Act for Family Dollar’s refusal to

pay overtime wages to store managers, and, as here, Family

Dollar asserted that the store managers were executive

employees not subject to the requirement to pay overtime.

The Eleventh Circuit, reviewing the district court’s decision

to certify a collective action, looked for the commonalities of

the store managers’ situations and concluded that the certifi-

cation of a class by the district court fell within the district

court’s discretion. The court also concluded that the evidence

in that case was sufficient to support the jury’s verdict award-

ing overtime wages to store managers.

While Grace argues that the facts in Morgan and in the cur-

rent case are the same, there is no basis to support that claim.

We do not have the Morgan record in front of us, and we can-

not assume that the facts in the two cases are identical.

Indeed, there is extensive testimony by Grace as to how she

In Re: FAMILY DOLLAR FLSA LITIGATION 19

could make a profit and distinguish herself from other store

managers. Moreover, Family Dollar has indicated that even

though all of the stores were part of a chain, they also varied

significantly both in size and, to some extent, the nature of

their inventory, which depended on store location. Moreover,

while Family Dollar may have had the same policies through-

out its system, the individual responsibilities of managers

could well have differed. As the Morgan court explained:

Just because a business classifies all employees in a

particular job category as exempt does not mean that

those employees are necessarily "similarly situated"

for purposes of a 29 U.S.C. § 216(b) collective

action. Rather, it is necessary to review the actual

job duties of those in that job category to determine

whether they are similarly situated and whether the

exemption defense can be collectively litigated.

Id. at 1264 n.46.

It is also important to note that in Morgan the district court

found that the plaintiffs did not perform exempt and nonex-

empt duties concurrently and that they were managed by

highly involved district managers. Id. at 1272. Both of those

findings would not be supported by the record in this case.

At bottom, we affirm the district court’s order granting

summary judgment, concluding that Grace was an executive

and therefore not entitled to overtime pay.

IV

Grace and the class members on whose behalf she filed her

complaint under 29 U.S.C. § 216(b) also contend on appeal

that the district court abused its discretion in not preliminarily

certifying a collective action to facilitate notice to the other

potential class members.

20 In Re: FAMILY DOLLAR FLSA LITIGATION

Because we have affirmed summary judgment dismissing

Grace’s complaint on the merits, we need not address whether

the district court properly refused to certify her action as a

collective action. Without a viable claim, Grace cannot repre-

sent others whom she alleged were similarly situated.

For the reasons given, the judgment of the district court is

AFFIRMED.