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Guinup v. Petr-All Petroleum Corp.

August 23, 2010


The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge


Currently before the Court in this employment action filed by Susan Guinup ("Plaintiff") is a motion for summary judgment filed by Petr-All Petroleum Corporation, doing business as Express Mart, and Petr-All Petroleum Consulting Corp. ("Defendants"). (Dkt. No. 27.) For the reasons set forth below, Defendants' motion is granted.


A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Complaint alleges that Defendants violated the Fair Labor Standard Act, 29 U.S.C. § 201 et seq. ("FLSA"), and related New York state labor laws, by failing to pay overtime wages to all non-exempt employees for work in excess of forty (40) hours per week. (See generally Dkt. No. 1 [Plf.'s Compl.].) In support of her claims, Plaintiff alleges that, despite Defendants designating her (and other Express Mart daytime retail outlet managers similarly situated to her) as exempt employees, they are non-exempt employees because, among other things, "starting more than three years ago and continuing to present," she (and other Express Mart daytime retail outlet managers similarly situated) "devoted less than 20% of their work week hours to activities directly or closely related to executive or administrative activities." (Id.) Familiarity with the remaining factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

B. Defendants' Motion

On December 28, 2007, Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(c) and 23(d)(4). (Dkt. No. 7.) On October 15, 2008, prior to that motion being decided, the parties entered into a stipulation whereby Defendants agreed to voluntarily withdraw, without prejudice, their pending motion to dismiss, and Plaintiff agreed to voluntary strike her state law class claims, so that the parties could engage in discovery limited to Plaintiff's individual claims. (Dkt. No. 17.) On that same day, the Court issued a Decision and Order approving the parties' stipulation. (Dkt. No. 18.) Upon the conclusion of discovery related to Plaintiff's claims, Defendants filed a motion for summary judgment. (Dkt. No. 27.)

Generally, in support of their motion for summary judgment, Defendants argue as follows: (1) Plaintiff's claims should be dismissed because she satisfied the executive exemption to the FLSA and related New York law; (2) Plaintiff's New York State spread-of-hours claim should be dismissed because she was paid far more than the minimum wage rate; and (3) Plaintiff's New York State meal period claim should be dismissed because she lacks a private right of action. (See generally Dkt. No. 28 [Defs.' Memo. of Law].)

In Plaintiff's response to Defendants' motion for summary judgment, she argues that it is inappropriate to conclude that she was an exempt employee as a matter of law because (despite her job title and managerial duties) there is a genuine issue of material fact regarding whether her primary duty consisted of management. (See generally Dkt. No. 44 [Plf.'s Response Memo. of Law].)

In their reply, Defendants reiterate previously asserted arguments, highlighting Plaintiff's failure to distinguish a number of the controlling cases cited by Defendants in their memorandum of law, and emphasizing that an analysis of the "primary duty" factors in the Secretary of Labor's promulgated regulations establishes that Plaintiff's primary duty was to manage Store 360. (See generally Dkt. No. 46 [Defs.' Reply Memo. of Law].)

C. Undisputed Material Facts

The following is a general summary of material facts that are undisputed by the parties.(Compare Dkt. No. 28 [Defs.' Memo. of Law containing Defs.' Rule 7.1 Statement] with Dkt. No. 44, Attach. 3 [Plf.'s Rule 7.1 Response].)

On June 18, 2000, Petr-All hired Plaintiff as the Store Manager of Store 360, a combination convenience store and gas station, located in Cato, New York. (Prior to joining Petr-All, Plaintiff had eight to ten years of experience managing convenience stores.) From June 2000 to January 2001, and July 2001 to July 2004, Plaintiff reported to an Area Supervisor named George Tartick. From January 2001 to July 2001, and June 2004 to June 2007, Plaintiff reported to an Area Supervisor named Steven Nucci. Throughout her employment with Defendant, Plaintiff's supervisor only visited her store, on average, once per week for between one hour and half the day.

Sales Associates, Store Co-Managers (also known as Assistant Managers), and Store Manager Trainees, who also worked at Store 360 at various times, all reported to Plaintiff. However, as Store Manager, Plaintiff was the only exempt, salaried employee at her store. All of the other employees were non-exempt employees who were paid on an hourly basis.

Throughout Plaintiff's employment with Petr-All, she was paid a fixed weekly salary of $565.00 to $834.30, regardless of the number of hours she worked or the quality of her work, with the exception of a single week during her seven years of employment, in which she received less than a full week's salary because she was suspended from work for several days. Plaintiff also received incentive compensation under Petr-All's Corporate Incentive Program ("Incentive Program"). Because the "objective" of the Incentive Program was to "continually increase sales to achieve more profitability for the company and a larger incentive," for Plaintiff to be eligible for an incentive award, her store's sales had to "exceed the merchandise sales compared to the same quarter last year." The incentive award was a percentage of store sales, subject to reductions based on four profitability criteria. As the Store Manager, Plaintiff received a higher incentive payment than all other store employees. Specifically, the Incentive Program allocated 65 percent of the award to the Store Manager, 25 percent to any Assistant Manager, and the remaining 10 percent to the Sales Associates and Store Manager Trainees.

Plaintiff's job description required her to perform many managerial duties. Plaintiff's duties did not change during her employment. Plaintiff performed the job duties required of a Store Manager, and listed in her job description, to the "best of [her] abilities." In each of her appraisals, Plaintiff's supervisors rated her job knowledge, which means "demonstrates understanding of objectives, duties and responsibilities in accordance with the job description," as "highly commendable." Similarly, each of Plaintiff's performance appraisals concluded that she met or exceeded all the job requirements of the Store Manager position. (Comments by both Plaintiff and her supervisors in Plaintiff's performance appraisals further confirmed her managerial role.)

As store manager, Plaintiff spent hours each week preparing the schedule for Store 360. Plaintiff decided which employees worked which days during which hours, provided that the total hours each week did not exceed a budget. Plaintiff was also required to generate and review a report of her employees' reported work hours on a weekly basis.

The labor hours available for Store 360 averaged about 350 hours per week--the equivalent of more than eight full-time employees. (Plaintiff typically had six to eight employees on the payroll at Store 360, all of whom reported to her.) Plaintiff was personally present at the store to supervise more than 80 employee hours per week. These labor hours show that sales associates, stock clerks, and maintenance employees together worked, on average, in excess of 80 hours during the same shifts as Plaintiff. Although Plaintiff testified that there were times when she worked alone, or had only one other person working in the store with her during a shift, there were also times where Plaintiff had two to three employees working with her in the store.

Plaintiff wrote performance evaluations for her employees, which included giving ratings, providing comments, and recommending pay adjustments. With respect to those evaluations, the only thing that Plaintiff's supervisor may have changed at times was her recommendations as to pay increases.

In addition to handling employee scheduling, Plaintiff interviewed and hired employees, and recommended initial pay rates for new hires. (Her Supervisors participated in the hiring process by signing paperwork related to the new hire's pay, and ultimately deciding what pay rate to set.) Plaintiff also trained new employees. For example, Plaintiff ensured that employees completed alcohol and tobacco sales training, which Petr-All required for compliance with state law. (Plaintiff testified that "Co-managers," "Managers -In-Training," and experienced cashiers/sales associates also trained employees.) Although Plaintiff had no authority to promote sales associates/cashiers to co-managers or managers, she did train potential new managers for future management positions. In addition to more formal training, Plaintiff assisted her employees and answered their questions on a daily basis. Her employees even called her at home with questions.

Plaintiff also recommended termination decisions, and discipline for her employees. When there were other employees in the store, Plaintiff watched them do their jobs. Plaintiff also corrected an employee performance problems. (In addition, a co-manager could correct an employee performance problem.)

Plaintiff reported employee and customer injuries that occurred at Store 360 to her supervisors, and recommended certain security measures to them. Plaintiff checked the gas sticks for compliance purposes to ensure that the tanks matched what the register indicated was sold. If the tanks ...

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