Thomas v. Speedway

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0436p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

MABEL KAY THOMAS,

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No. 06-3768

v.

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SPEEDWAY SUPERAMERICA, LLC, Agent of RB -

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Defendant-Appellee. -

Williams,

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Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 04-00147—S. Arthur Spiegel, District Judge.

Argued: March 6, 2007

Decided and Filed: October 30, 2007

Before: BATCHELDER and MOORE, Circuit Judges; MILLS, District Judge.*

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COUNSEL

ARGUED: Tod J. Thompson, FREKING & BETZ, Cincinnati, Ohio, for Appellant. David A.

Owen, GREENEBAUM, DOLL & McDONALD, Lexington, Kentucky, for Appellee. ON BRIEF:

Tod J. Thompson, Randolph H. Freking, FREKING & BETZ, Cincinnati, Ohio, for Appellant.

David A. Owen, Anne A. Chestnut, GREENEBAUM, DOLL & McDONALD, Lexington,

Kentucky, Craig P. Siegenthaler, GREENEBAUM, DOLL & McDONALD, Louisville, Kentucky,

for Appellee.

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. Plaintiff Mabel Kay Thomas (“Thomas”)

appeals the district court’s grant of summary judgment in favor of Speedway SuperAmerica LLC

(“Speedway”), which denied her claims for unpaid overtime wages under both federal and state law.

The district court held that Thomas was a bona fide executive employee under 29 U.S.C. § 213(a)(1)

and thus not entitled to overtime wages. The narrow issue on appeal is whether Thomas’s primary

*

The Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by

designation.

1

No. 06-3768 Thomas v. Speedway SuperAmerica Page 2

duty consisted of management, which is a requirement of the executive-employee exemption. We

find that Speedway has satisfied its burden on this issue and AFFIRM the district court’s judgment.

I.

Speedway operates a chain of more than six hundred gas station/convenience stores.

Speedway’s organization is arranged as a corporate hierarchy, with multiple layers of managerial

oversight. Each individual station is run and operated by a store manager who is supervised by a

district manager. The district managers typically visit each of their stations once or twice a week,

but, during busy periods, two weeks might lapse between a district manager’s in-person visits. In

addition to stringent managerial oversight, Speedway has also adopted detailed company policies

and standardized operating procedures, as an additional means of fostering consistency throughout

its multi-store organization.

In July 1998, Thomas began working as a store manager for Speedway. Her position as store

manager made her the most senior on-site employee and, according to her own testimony, “the

person ultimately in charge of [her] store.” Speedway expected Thomas to work at least fifty hours

per week, but she often worked much more than that, and always remained on call — “24 hours a

day, seven days a week.” In return for these long hours, Thomas earned a base salary of $522 per

week and additional compensation under the store manager bonus program, which paid her up to

five percent of the gross profit margin on the sale of certain products in her store (up to a maximum

of $2,500 each month).

Thomas spent approximately sixty percent of her work time performing non-managerial

tasks, such as stocking merchandise, sweeping floors, cleaning bathrooms, operating the register,

and performing routine clerical duties. Even though Thomas devoted a majority of her time to non-

managerial activities, she testified that her “primary duty was to manage [her] store,” which required

her to perform many management functions. She supervised, interviewed, hired, trained, and

disciplined employees; she prepared weekly work schedule for her employees; she resolved

employee complaints; she monitored her employees’ performance with formal evaluations; she

recommended salary or merit increases for her employees (most of which were accepted by her

district manager); she frequently recommended employee terminations to her district manager; and

she even terminated some employees without prior approval from her district manager (although she

would later notify her district manager of these unilateral termination decisions).

In August 2003, Speedway terminated Thomas, and six months later, she filed suit against

Speedway, asserting (1) failure to pay overtime wages under the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. § 207, (2) failure to pay overtime wages under Ohio Rev. Code § 4111.03, (3)

age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621

et seq., and (4) wrongful discharge in violation of Ohio public policy. Thomas brought the FLSA

overtime claim as a “collective action” pursuant to 29 U.S.C. § 216(b) and the state overtime claim

as a “class action” pursuant to Fed. R. Civ. P. 23. More than a year after filing suit, Thomas moved

the court for an order designating the FLSA claim as a collective action and certifying the state

overtime claim as a class action. The district court conditionally certified the class/collective action,

defining the class to include: “Any and all present and former employees classified by [Speedway]

as “Store Managers” who worked at Speedway . . . at any time from February 19, 2001[,] to the

present who worked hours in excess of forty per week and were not compensated appropriately.”

In the meantime, Speedway filed a motion for summary judgment on the overtime claims

and a separate motion for summary judgment on Thomas’s ADEA and wrongful discharge claims.

While waiting for the district court to rule on Speedway’s summary judgment motions, Thomas filed

a motion for leave to file an amended complaint, seeking to add twenty-eight representative

plaintiffs to the overtime claim, all of whom were store managers at various Speedway stations

No. 06-3768 Thomas v. Speedway SuperAmerica Page 3

during the relevant time period. The district court did not rule on Thomas’s motion for leave to file

an amended complaint but, instead, granted both of Speedway’s motions for summary judgment and

dismissed all of Thomas’s claims.

On appeal, Thomas asserts that the district court erred in granting summary judgment to

Speedway on the federal and state overtime claims.1 She does not, however, challenge the court’s

dismissal of her age discrimination or wrongful discharge claims; thus we do not consider them.

II.

“We review a grant of summary judgment de novo, applying the same test as used by the

district court.” Tate v. Boeing Helicopters, 55 F.3d 1150, 1153 (6th Cir. 1995). Summary judgment

is proper if “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 any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In reviewing a

motion for summary judgment, we view the evidence, all facts, and any inferences in the light most

favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). “To withstand summary judgment, the non-movant must show sufficient evidence to

create a genuine issue of material fact.” Prebilich-Holland v. Gaylord Entm’t Co., 297 F.3d 438,

442 (6th Cir. 2002). A mere scintilla of evidence is insufficient; “there must be evidence on which

the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986).

At the outset, we acknowledge that the district court conditionally certified Thomas’s federal

overtime claim as a collective action under 29 U.S.C. § 216(b) and her state overtime claim as a

class action under Fed. R. Civ. P. 23. “FLSA collective actions require potential class members to

notify the court of their desire to opt in to the action”; in contrast, class actions governed by Fed. R.

Civ. P. 23 require “potential class members . . . to opt out of the action.” Anderson v. Cagle’s, Inc.,

488 F.3d 945, 950 n.3 (11th Cir. 2007); see also Hunter v. Sprint Corp., 346 F. Supp 2d 113, 117

(D. D.C. 2004). The district court dismissed Thomas’s claims prior to issuing notice to the

conditionally certified class members or presenting them with the opportunity to opt-in (pursuant

to 29 U.S.C. § 216(b)) or opt-out (pursuant to Fed. R. Civ. P. 23). We thus conclude that our

resolution of this appeal binds only Thomas and does not have a directly preclusive effect on any

of the members of the conditionally certified class.

Even though Thomas asserts an overtime claim under both federal and state law, we need

consider only federal law on this issue, as the Ohio statute expressly incorporates the standards and

principles found in the FLSA. See Ohio Rev. Code § 4111.03(A) (“An employer shall pay an

employee for overtime at a wage rate of one and one-half times the employee’s wage rate for hours

worked in excess of forty hours in one workweek, in the manner and methods provided in and

1

In addition to her challenge to the district court’s grant of summary judgment, Thomas presents a one-

paragraph argument contesting the district court’s failure to rule on her motion for leave to file an amended complaint.

The argument is short, vague, and unsupported by legal authority; it is the epitome of a perfunctory argument, and we

need not address it. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“Issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are deemed waived.”) (quotation omitted). In any

event, we question what Thomas sought to accomplish by challenging the district court’s failure to rule on her motion

to amend. Thomas’s proposed amended complaint sought merely to add twenty-eight more representative plaintiffs to

her conditionally certified class/collective action overtime claim. When the district court granted summary judgment,

it dismissed the entire proceeding, including the conditionally certified class/collective action claim. Thus, regardless

of whether the district court had granted Thomas’s motion for leave to file an amended complaint and allowed her to add

more representative plaintiffs, the court’s grant of summary judgment still would have dismissed that claim in its entirety.

Unless Thomas can establish grounds upon which to reverse the district court’s grant of summary judgment — an issue

addressed in the body of this opinion — her challenge to the court’s failure to rule on her motion to amend, even if

successful, would not change the disposition of this action.

No. 06-3768 Thomas v. Speedway SuperAmerica Page 4

subject to the exemptions of . . . the ‘Fair Labor Standards Act of 1938’”). The FLSA requires an

employer to compensate its employees “at a rate not less than one and one-half times the regular

rate” for each hour worked in excess of forty during a workweek. 29 U.S.C. § 207(a)(1). Speedway

does not deny that it failed to pay overtime wages to Thomas but, instead, asserts that Thomas was

exempt from the overtime pay requirements because she qualified as a “bona fide executive” under

29 U.S.C. § 213(a)(1).

FLSA overtime exemptions are “affirmative defense[s] on which the employer has the

burden of proof,” Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974), see also Douglas

v. Argo-Tech Corp., 113 F.3d 67, 70 (6th Cir. 1997), and those exemptions “are to be narrowly

construed against the employers seeking to assert them,” Arnold v. Ben Kanowsky, Inc., 361 U.S.

388, 392 (1960). In Ale v. Tennessee Valley Authority, 269 F.3d 680, 691 n.4 (6th Cir. 2001), we

stated that “[t]he defendant must establish through ‘clear and affirmative evidence’ that the

employee meets every requirement of an exemption.” Id. (quoting Roney v. United States, 790 F.

Supp. 23, 26 (D. D.C. 1992)). Although Thomas contends that Speedway must establish every

element of the executive exemption “beyond an issue of material fact,”2 we have now made it clear

that the employer claiming an FLSA exemption does not bear any heightened evidentiary burden.

In Renfro v. Indiana Michigan Power Co., 497 F.3d 573, 576 (6th Cir. 2007), we said:

We clarify here that the phrase “clear and affirmative evidence” does not heighten

[the defendant’s] evidentiary burden when moving for summary judgment. The

word “clear,” as used in this phrase, traces to the “clearly erroneous” Rule 52(a)

standard, but that standard is inapposite to our current review of a motion for

summary judgment. And because establishing the applicability of an FLSA

exemption is an affirmative defense, [the defendant] has the burden to establish the

. . . elements by a preponderance of the evidence.

The Secretary of Labor, as directed by statute, has adopted regulations defining a bona fide

executive employee. See 29 U.S.C. § 213(a)(1) (noting that the term “bona fide executive” will be

“defined and delimited from time to time by regulations of the Secretary”). The Secretary amended

her regulations in 2004, but Speedway discharged Thomas in August 2003, prior to the adoption of

the amended regulations. We therefore apply the former regulations, which were in force while

Thomas still worked for Speedway. The former regulations included a “long test,” which applied

to all employees earning at least $155 per week, and a less stringent “short test,” which applied only

to employees earning at least $250 per week. Because Thomas earned a base salary of $522 per

week, we will apply the short test to determine whether she was a bona fide executive employee.

An employee qualifies for the executive exemption under the short test if: (1) her “primary duty

consists of the management of the enterprise” and (2) her primary duty “includes the customary and

regular direction of the work of two or more other employees.” 29 C.F.R. § 541.119(a) (2003);

29 C.F.R. § 541.1(f) (2003); see also Ale, 269 F.3d at 683-84.3 Thomas testified that, as a store

2

Thomas is apparently attempting to transform Fed. R. Civ. P. 56(c)’s summary judgment requirement that there

be “no genuine issue as to any material fact” into a heightened burden on Speedway. We do not know what proof

“beyond an issue of material fact” means, but this heightened burden has no foundation in law. Speedway’s burden is

that which we impose on all defendants attempting to establish an affirmative defense on summary judgment: it must

demonstrate “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). The material facts are undisputed; therefore whether Speedway is entitled to summary

judgment depends upon whether the undisputed facts demonstrate that Speedway is entitled to judgment as a matter of

law.

3

The current regulations, which were enacted in 2004, have eliminated the distinction between the short and

long test. The lone test in the current regulations mirrors the short test in the former regulations, albeit with a higher

weekly salary and an additional element. The current regulations provide that an employee qualifies as a bona fide

executive if: (1) she is “[c]ompensated on a salary basis at a rate of not less than $455 per week”; (2) her “primary duty

No. 06-3768 Thomas v. Speedway SuperAmerica Page 5

manager, she regularly supervised two or more employees; she thus satisfies one prong of the short

test. Whether she qualifies for the executive exemption depends entirely upon our assessment of

the other prong.

The issue before this court, then, is whether Thomas — an individual store manager in a

chain retail operation — had management as her primary duty. Numerous courts have addressed

this issue in factually similar cases, and all have held that the plaintiff’s primary duty consisted of

management. See, e.g., Donovan v. Burger King Corp. (Burger King I), 672 F.2d 221, 226-27 (1st

Cir. 1982) (holding that “Burger King assistant managers have management as their primary duty”);

Donovan v. Burger King Corp. (Burger King II), 675 F.2d 516, 520-22 (2d Cir. 1982) (holding that

Burger King assistant managers “have, as their ‘primary duty,’ managerial responsibilities”);

Murray v. Stuckey’s Inc. (Murray I), 939 F.2d 614, 617-20 (8th Cir. 1991) (holding that the store

manager of “an isolated gasoline station, convenience store[,] and restaurant[] had management as

his or her primary duty”); Sturm v. TOC Retail, Inc., 864 F. Supp. 1346, 1352-53 (M.D. Ga. 1994)

(finding that the managers of a convenience store had management as their primary duty); Horne

v. Crown Cent. Petroleum, Inc., 775 F. Supp. 189, 190-91 (D. S.C. 1991) (finding that a manager

of a convenience store had “management of her store” as her “primary duty”); Moore v. Tractor

Supply Co., 352 F. Supp 2d 1268, 1279 (S.D. Fla. 2004) (finding that a manager of a retail store had

management as his primary duty). We find these cases to be persuasive and rely upon much of their

reasoning throughout our analysis.

Thomas cautions that these cases, beginning with Burger King I, 672 F.2d at 226-27, are in

tension with our circuit’s precedent. She argues that these cases rely upon the proposition that “the

person ‘in charge’ of a store has management as [her] primary duty,” id. at 227; see also Sturm, 864

F. Supp. at 1353 (noting that “in most cases” the primary duty inquiry can be resolved “by simply

deciding if the employee was ‘in charge’”), and that our circuit has implicitly rejected and explicitly

distinguished the “in charge test.” Assuming, without deciding, that these cases in fact rely upon

this “in charge” reasoning, we find that such analysis is not at odds with our case law. In Ale, 269

F.3d at 691, we stated that “[t]he words ‘in charge’ are not a magical incantation that render an

employee a bona fide executive regardless of [her] actual duties.” Id. We stressed that courts cannot

rely upon the plaintiff’s or the employer’s description of the plaintiff’s position or authority; instead

we must “look at the plaintiff’s actual duties” to determine whether she qualifies for the executive

exemption. Id. at 692 (emphasis added). Our discussion in Ale thus left open the possibility that

an employee whose actual duties demonstrate that she is “in charge” of a store could be said to have

management as her primary duty. Accordingly, we find no conflict between the line of cases

beginning with Burger King I and our decision in Ale, and we will rely upon these cases throughout

our analysis.4 Ale instructs us, however, that in deciding whether Thomas’s primary duty consisted

of management, we cannot rely solely upon Thomas’s statements that she was “the person ultimately

in charge of [her] store” and that her “primary duty was to manage,” id.; we must instead evaluate

her actual job duties.

is management of the enterprise in which [she] is employed or of a customarily recognized department or subdivision

thereof”; (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, firing, advancement,

promotion[,] or any other change of status of other employees are given particular weight.” 29 C.F.R. § 541.100(a)

(2007).

4

We do not adopt a rule that any employee who is in charge of a store has management as her primary duty;

we merely conclude that other cases stating as much do not conflict with our precedent. When a court is asked to

consider whether an employee’s primary duty consists of management, the proper analytical approach is to scrutinize

the factors in the Secretary’s regulations, not simply to determine whether the employee was “in charge.”

No. 06-3768 Thomas v. Speedway SuperAmerica Page 6

The Secretary’s former regulations provide detailed guidance to aid in our interpretation of

the terms “management” and “primary duty.”5 “Management” includes:

Interviewing, selecting, and training of employees; setting and adjusting their rates

of pay and hours of work; directing their work; maintaining their production or sales

records for use in supervision or control; appraising their productivity and efficiency

for the purpose of recommending promotions or other changes in their status;

handling their complaints and grievances and disciplining them when necessary;

planning the work; determining the techniques to be used; apportioning the work

among the workers; determining the type of materials, supplies, machinery 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 of the

men and the property.

29 C.F.R. § 541.102(b) (2003). “A determination of whether an employee has management as [her]

primary duty must be based on all the facts in a particular case.” 29 C.F.R. § 541.103 (2003).

“Primary duty” does not mean the most time-consuming duty; it instead connotes the “principal”

or “chief” — meaning the most important — duty performed by the employee. Burger King I, 672

F.2d at 226. Compare 29 C.F.R. § 541.103 (2003) (“[P]rimary duty means the major part, or over

50 percent, of the employee’s time”), with 29 C.F.R. § 541.700(a) (2007) (“‘[P]rimary duty’ means

the principal, main, major[,] or most important duty that the employee performs”).

Nevertheless, “[t]he amount of time spent in performance of . . . managerial duties is a useful

guide in determining whether management is the primary duty of an employee.” 29 C.F.R.

§ 541.103 (2003). Thomas argues that her primary duty does not consist of management because

she spent just forty percent of her time engaged in management-related activities. We first

recognize, as emphasized in the Secretary’s regulations, that “[t]ime alone . . . is not the sole test.”

29 C.F.R. § 541.103 (2003); see 29 C.F.R. § 541.700(b) (2007); Burger King II, 675 F.2d at 521;

Murray I, 939 F.2d at 618 (stating that “[t]he district court’s finding that the managers spent 65-90

percent of their time on non-managerial duties . . . is not a controlling factor under the regulations”);

Moore, 352 F. Supp 2d at 1274-75 (collecting cases). More importantly, however, the time factor

is less momentous, and might even be “somewhat misleading,” where “the employee’s management

and non-management functions are [not] . . . clearly severable.” Burger King I, 672 F.2d at 226; see

Horne, 775 F. Supp. at 190. Thomas testified that her non-managerial duties, such as operating the

cash register and stocking the shelves, often overlapped with her managerial duties. Under these

circumstances — where an employee “manage[s] while at the same time performing non-exempt

tasks normally assigned to [subordinate employees],” see Sturm, 864 F. Supp. at 1352 — we refuse

to give undue weight to the time factor of the “primary duty” inquiry, see 29 C.F.R. § 541.103

(2003) (stating that an employee whose work requires her to simultaneously engage in managerial

and non-managerial duties “will be considered to have management as [her] primary duty” even

though she “generally spends more than 50 percent of [her] time in production . . . work”).

“[I]n 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

5

The current regulations also offer guidance to courts construing the terms “management,” see 29 C.F.R.

§ 541.102 (2007), and “primary duty,” see 29 C.F.R. § 541.700 (2007). The new regulations defining these terms are

similar, although not entirely identical, to the former regulations. Compare 29 C.F.R. § 541.102 (2003) (former

regulation discussing “management”), and 29 C.F.R. § 541.103 (2003) (former regulation discussing “primary duty”),

with 29 C.F.R. § 541.102 (2007) (new regulation discussing “management”), and 29 C.F.R. § 541.700 (2007) (new

regulation discussing “primary duty”). Because the current and former regulations are so similar, our resolution of this

case under the former regulations provides guidance to courts performing the “primary duty” analysis under the current

regulations.

No. 06-3768 Thomas v. Speedway SuperAmerica Page 7

pertinent [factors] support such a conclusion.” 29 C.F.R. § 541.103 (2003). These factors include:

(1) “the relative importance of the managerial duties as compared with other types of duties”;

(2) “the frequency with which the employee exercises discretionary powers”; (3) “[the employee’s]

relative freedom from supervision”; and (4) “the relationship between [the employee’s] salary and

the wages paid other employees for the kind of nonexempt work performed by [her].” Id. The

district court proceeded through a methodical analysis of these four “primary duty” factors and

found that each factor weighed in favor of a finding that Thomas’s primary duty consisted of

management. On appeal, Thomas challenges the district court’s conclusions on each of these

factors.6

The first factor considers “the relative importance of the managerial duties as compared with

other types of duties.” Under this factor, courts must compare the importance of the plaintiff’s

managerial duties with the importance of her non-managerial duties, keeping in mind the end goal

of achieving the overall success of the company. See Burger King II, 675 F.2d at 521 (noting that

this factor requires a consideration of which responsibilities are more “important or critical to the

success of the [business]”). Thomas completely misunderstands this factor, arguing at one point that

the subordinate, nonexempt employees were more critical to Speedway’s success than the store

managers. This assertion, even if it were true, completely misses the focus of the first factor by

improperly considering who is more important, rather than which category of job duties is more

important. Under a proper analysis of this factor, we consider Thomas’s non-managerial duties on

the one hand, which include stocking merchandise, sweeping floors, and cleaning bathrooms. And,

on the other hand, we consider Thomas’s managerial duties, which include hiring employees,

training employees, and assigning the weekly work schedule. If Thomas failed to perform her non-

managerial duties, her Speedway station would still function, albeit much less effectively. After all,

most of us — even if unwillingly— have visited and spent our money at filthy gas stations with

sparsely stocked shelves. If, however, Thomas failed to perform her managerial duties, her

Speedway station would not function at all because no one else would perform these essential tasks.

Surely, a gas station cannot operate if it has not hired any employees, has not scheduled any

employees to work, or has not trained its employees on rudimentary procedures such as operating

the register. We therefore conclude that Thomas’s managerial duties were much more important to

Speedway’s success than her non-managerial duties. See Baldwin v. Trailer Inns, Inc., 266 F.3d

1104, 1114-15 (9th Cir. 2001) (holding that managers of recreational-vehicle park were executive

employees exempt from the FLSA and noting that the plaintiffs’ “principal value to Trailer Inns was

directing the day-to-day operations of the park even though they performed a substantial amount of

manual labor”). Accordingly, we find that the first factor strongly indicates that Thomas’s primary

duty consisted of management.

The second factor examines “the frequency with which the employee exercises discretionary

powers.”7 The plain language of this factor instructs courts to focus merely on the prevalence or

regularity of the plaintiff’s discretionary decisions, but we note that the employee’s exercise of

discretion over matters of importance strengthens the employer’s showing under the second factor.

6

Thomas repeatedly asserts that Speedway has the burden of establishing each element of the executive

exemption. See Renfro v. Ind. Mich. Power Co., 370 F.3d 512, 515 (6th Cir. 2004). Even though this is a correct

statement of law, we stress that this burden applies to every element of the exemption, not every factor under every

element. At issue in this case is the primary duty element and Speedway needs to carry its burden only on the primary-

duty element as a whole, not on each individual factor relevant to that inquiry.

7

Thomas incorrectly asserts that this second factor requires that the employee “exercise discretion frequently

and regularly.” Thomas mistakenly incorporates the standard required under the “long test” of the former regulations,

which states that an employee qualifies for the executive exemption only if she “customarily and regularly exercises

discretionary power.” 29 C.F.R. § 541.1(d) (2003). Because we are construing the four “primary duty” factors in the

context of the “short test,” and not applying the “long test” of the former regulations, we need not impose the heightened

standard proffered by Thomas.

No. 06-3768 Thomas v. Speedway SuperAmerica Page 8

Cf. 29 C.F.R. § 541.207(a) (2003) (discussing the meaning of “discretion and independent

judgment” as used in the administrative exemption, and stating that this phrase “implies that the

person has the authority or power to make an independent choice, free from immediate direction or

supervision and with respect to matters of significance”) (emphasis added); 29 C.F.R. § 541.202(a)

(2007). Thomas argues that she did not frequently exercise discretion because her district manager,

Tony Beatty, “visited her store at least twice every week” and maintained constant “supervisory

authority over [her] store [twenty-four] hours a day, every day, via telephone and e-mail.” Even

viewing the facts in the light most favorable to Thomas, we find that she misrepresents the extent

of Beatty’s supervision. Beatty first testified regarding the consistency and frequency of his in-

person visits, stating that he “tr[ied] to get in all [his] stores at least twice a week,” but candidly

acknowledging that “[m]aybe [he would] . . . miss a store for two weeks.” Contrary to her argument

on appeal, Thomas testified that Beatty visited only once a week and that he generally adopted a

hands-off approach to supervising her station so long as it was returning profitable sales figures and

operating without incident. Beatty also testified concerning his telephone and email

communications with his store managers, noting that store managers could “pick up the phone and

call [him] 24 hours a day, seven days a week,” and stating that he received “40 to 60 e-mails a day,”

some of which were from his store managers. This testimony indicates that Beatty remained

constantly available to his store managers, but in no way implies that he maintained constant contact

with or supervision over his store managers via telecommunications. And nothing in Thomas’s

testimony is to the contrary. Accordingly, we need not accept, even under our mandate to view the

facts in the light most favorable to the plaintiff, Thomas’s depiction of an omnipresent and

omnipotent district manager. See Moore, 352 F. Supp 2d at 1277-78 (“The record dispels

[p]laintiff’s argument that he was subject to exacting supervision. Plaintiff’s district managers

visited the store approximately once a week for a ‘walk thru,’ and any other communication

[p]laintiff had with his district managers was via telephone or email”).

In addition to rejecting Thomas’s characterization of the facts, we acknowledge, as a matter

of law, that “active supervision and periodic visits by a [district] manager do not eliminate the day-

to-day discretion of the on-site store manager.” Murray v. Stuckey’s Inc. (Murray II), 50 F.3d 564,

570 (8th Cir. 1995). Even though Thomas’s discretion was somewhat circumscribed by her district

manager’s supervision and Speedway’s standardized operating procedures, she daily exercised

discretion over matters vital to the success of her station. See Murray I, 939 F.2d at 619 (“[T]he

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”); Murray II, 50 F.3d at 570 (recognizing that

“standardized procedures and policies” “may circumscribe but [they do] not eliminate the discretion

of the on-site manager of an isolated store who is responsible for day-to-day operations”); Burger

King II, 675 F.2d at 521-22 (noting that the employee “exercise[d] . . . discretion . . . even where

circumscribed by prior instruction”). Thomas interviewed and hired employees, delegated work

among her employees, resolved employee complaints, determined the weekly work schedule,

decided whether to grant vacation requests submitted by her employees, evaluated her employees’

performance, decided whether to order additional inventory during periods of high demand, and

periodically resolved safety issues at her station. While her discretion was by no means unfettered

and abounding, she exercised discretion over important managerial functions on a sufficiently

frequent basis to support a finding that management was her primary duty.

The third factor considers the employee’s “relative freedom from supervision.” Thomas was

the most senior employee at her station; no other on-site employee was her equal. Thus, on a day-to-

day basis, she generally operated without a supervisor looking over her shoulder, monitoring her

every move. In an attempt to undermine the obvious degree of autonomy inherently associated with

being the most senior on-site employee, Thomas argues that she was not free from supervision

because her district manager constantly monitored her job performance, both in person and by means

of telecommunications. We have already rejected Thomas’s attempt to characterize Beatty’s

No. 06-3768 Thomas v. Speedway SuperAmerica Page 9

oversight as consistent, meticulous, and overbearing. The record indicates that Beatty visited

Thomas’s store approximately once or twice a week, communicated with Thomas frequently via

phone and email, and remained constantly available to address her concerns. While these facts

establish that Thomas was not completely free from oversight, we reiterate that the third factor

considers only the “relative freedom from supervision”; it does not demand complete freedom from

supervision, such that she is answerable to no one, as this would disqualify all but the chief

executive officer from satisfying this factor of the primary duty inquiry.

A “local store manager’s job is [no] less managerial for FLSA purposes simply because . . .

she has an active [district manager].” Murray I, 939 F.2d at 619. None of Beatty’s various forms

of oversight or assistance — weekly visits, frequent calls and emails, or constant availability —

demonstrate that Thomas did not have “relative freedom from supervision.” A district manager’s

periodic visits, as often as a few days each week, do not negate a finding that the store manager

operates free from supervision when the district manager is absent. See Horne, 775 F. Supp. at 191

(finding that a store manager “was relatively free from direct supervision” where her “supervisor

came by her store only a few times a week”); Murray I, 939 F.2d at 619 (“The mere fact that a

[district] supervisor comes in for a one- or two-day visit does not destroy the [store manager’s] sole

charge status . . . during the intervals when the superior is absent”). Neither does a store manager’s

frequent, even daily, exchange of email and phone communications with her district manager

compel a finding that the store manager is subject to “exacting supervision.” See Moore, 352 F.

Supp 2d at 1277-78 (finding that a store manager was not “subject to exacting supervision” where

his “district managers visited the store approximately once a week for a ‘walk thru,’” and where

“any other communication [p]laintiff had with his district managers was via telephone or email”).

Furthermore, the level of supervision by Thomas’s district manager in this case differs

significantly from that in cases in which courts have found that retail store managers were not

exempt executives under the FLSA. Compare Smith v. Heartland Auto. Servs., Inc., 418 F. Supp.

2d 1129, 1137 (D. Minn. 2006) (denying defendant’s motion for summary judgment regarding

executive exemption for Jiffy Lube store managers where the company’s District Managers “were

at the stores almost every day of the week for hours at a time”) and Cowan v. Treetop Enters., Inc.,

120 F. Supp. 2d 672, 675 (M.D. Tenn 1999) (granting plaintiffs’ motion for summary judgment and

finding that plaintiffs were not exempt executives where Waffle House restaurant unit managers

“report[ed] directly to a district manager who usually has responsibility for three restaurant units

in a defined geographical area”) (emphasis added) with Posely v. Eckerd Corp., 433 F. Supp. 2d

1287, 1304 (S.D. Fla. 2006) (distinguishing Cowan and granting summary judgment to defendant,

a retail pharmacy chain, where its district managers “supervised over 25 stores at any given time”)

and Light v. MAPCO Petroleum, Inc., No. 3:04-0460, 2005 WL 1868766, at *9 (M.D. Tenn. Aug

4, 2005) (granting summary judgment to defendant where plaintiff managed a gas station and the

district manager “supervised an average of twelve different stores at a time”). Given that Thomas

herself testified in her deposition that her district manager supervised ten to twelve stores, the weight

of the case law confirms that she was relatively free from supervision in her management of her

store. Finally, the district manager’s availability “by phone does not detract in any substantial way”

from a finding that the store manager was relatively free from supervision. Burger King II, 675 F.2d

at 522. “Being available for advice is in no sense the exercise of supervision.” Id. In short, despite

Beatty’s involvement and monitoring as district manager, Thomas operated free from direct over-

the-shoulder oversight on a day-to-day basis, and we conclude that this relative freedom from

supervision was sufficient enough to support a finding that her primary duty was management.

The fourth factor contemplates “the relationship between [the employee’s] salary and the

wages paid other employees for the kind of nonexempt work performed by [her].” At the time of

her termination, Thomas earned $522 per week, and, assuming she worked an average of fifty hours

per week, her weekly salary equaled $10.44 per hour. There are many variables that might affect

this estimated hourly rate. For example, Thomas testified that she often worked much more than

No. 06-3768 Thomas v. Speedway SuperAmerica Page 10

fifty hours per week, which would decrease her hourly earnings. On the other hand, Thomas was

eligible to participate in the store manager bonus program, which enabled her to earn a percentage

of the gross profit margin from certain products sold in her store, up to a maximum of $2500 each

month, which roughly equals a maximum of $600 each week. This money earned under the store

manager bonus program would significantly increase her hourly earnings. Due to these

indeterminate variables, and in the absence of evidence to support some different estimate, we will

assume that our initial figure was the best estimate, i.e., that Thomas’s hourly earning was

approximately $10.44. Surprisingly, neither party has established the hourly wage paid to the

subordinate employees, although Thomas alleges, and we will assume, that it was around $7.00 per

hour. Given these figures, we conclude that Thomas’s salary equated to a significant amount —

approximately thirty percent — more than the hourly wages paid to other employees for the kind

of nonexempt work performed by her. See Moore, 352 F. Supp 2d at 1278 (stating that the fourth

factor has been found to weigh in favor of the employer where the plaintiff’s “salary was 42 percent

higher than the weekly salary of the highest paid associate”).

Thomas argues that the relevant inquiry under the fourth factor is to compare the amount

Speedway paid to her for her overtime hours versus the amount Speedway paid to her subordinates

for their overtime hours. She reasons that because she was a salaried employee, she was not paid

anything for her overtime, whereas her employees were paid upwards of $10.00 per hours for theirs.

Putting aside Thomas’s questionable calculation of her overtime earnings, we think that she

seriously misapprehends the inquiry demanded by the fourth element. That element inquires into

“the relationship between [the plaintiff’s] salary and the wages paid other employees for the kind

of nonexempt work performed by [her]”; it does not confine its inquiry to, or otherwise mention,

overtime earnings or wages, and Thomas’s argument — by focusing as it does entirely on overtime

earnings — is unpersuasive. Indeed, the record in this case discloses that Thomas grossed

approximately $21,947 in her final seven-month period of employment and that the next highest

grossing employee at that location earned approximately $13,943 during the same period. We

conclude that the fourth factor, like the other three, weighs in favor of a finding that management

was Thomas’s primary duty.

Speedway, in particular, has established that each of the four factors supports its position

and, in general, has produced abundant evidence indicating that Thomas’s primary duty was

management. We thus conclude that Speedway has satisfied its burden on summary judgment of

demonstrating that Thomas qualified as a bona fide executive employee under the FLSA.

III.

We accordingly AFFIRM the district court’s grant of summary judgment in favor of

Speedway.