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Ronald G. Rowe v. Olthof Funeral Home

October 12, 2011


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff Ronald G. Rowe ("Rowe") brings this action pursuant to the Fair Labor Standards Act ("FLSA") and New York State law against defendants Olthof Funeral Home, Inc., ("Olthof") and Robert L. Olthof claiming that he was not properly paid for overtime hours he worked. Specifically, plaintiff, who was employed as Funeral Director for Olthof, claims that the defendants improperly classified him as an exempt employee not entitled to overtime under the FLSA, and that because of this mis-classification, he was not properly compensated for overtime hours, including on-call hours, he worked.

Defendants now move for summary judgment on grounds that as a matter of law, plaintiff was properly classified as an exempt employee, and therefore was not entitled to overtime compensation under the FLSA. Plaintiff cross moves for summary judgment, contending that he is entitled to overtime payment under the FLSA. For the reasons set forth below, I grant defendants' motion for summary judgment, and deny plaintiff's cross motion for summary judgment.


Plaintiff Ronald G. Rowe was employed as a licensed funeral director by defendant Olthof Funeral Home, Inc., from August 2006 to February, 2010. Prior to his employment as a licensed funeral director, Rowe completed a one-year residency with Olthof as part of his licensing requirements in New York State. While employed with Olthof, Rowe was paid exclusively on a salary basis.

As a Funeral Director, Rowe was generally responsible for removing bodies of deceased persons from the locations of their death, transporting bodies to the Olthof Funeral Home in Elmira, New York, embalming bodies, dressing embalmed bodies and placing them in caskets, and cremating bodies. With respect to cremation, Rowe testified that he spent between 30% and 45% of his time performing cremations, and that he directed two employees to perform work in the crematory. Rowe contends that he spent less than one percent of his work hours making funeral arrangements with families or supervising funerals.

Rowe claims that in addition to working his daily shift of 8:30 a.m to 5:00 p.m., he was required to be on-call five nights a week for the first 3 and a half years of his employment, and four nights a week during the last year and a half of his employment. When on-call, Rowe stated that he was required to pick up deceased bodies and transport them to the funeral home regardless of the time of day.

According to the defendants, in February, 2010, Rowe cremated a body with a piece of jewelry still on it, in violation of Olthof's cremation policies. The defendants claim that Olthof then attempted to conceal his mistake from Robert Olthof. Upon learning of the policy violation, and the alleged attempt to cover it up, Robert Olthof terminated plaintiff's employment.

DISCUSSION I. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought. Scott v. Harris, 550 U.S. 372, 380 (2007). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Scott, 550 U.S. at 380 (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)).


The Fair Labor Standards Act provides in relevant part that subject to certain enumerated exemptions, those employees who work in excess of 40 hours in a workweek are entitled to compensation at a rate of one-and-one-half times their regular rate of pay. 29 U.S.C. § 207. The FLSA, however, exempts from overtime-pay requirements employees who are "employed in a bona fide executive, administrative, or professional capacity . . . ." 29 U.S.C. § 213. Where an employee who is not receiving overtime compensation contends that he is entitled to such compensation under the FLSA, it is incumbent upon the employer to establish by clear and convincing evidence that one of the FLSA's exemptions to the overtime requirements applies, and therefore the employee is not entitled to overtime pay. Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190 (1966); Shockley v. City of Newport News, 997 F.2d 18, (4th Cir. 1993). In doing so, the employer must establish that the employee "fit[s] plainly and unmistakably within [the exemption's] terms." McGrath v. City of Philadelphia, 864 F.Supp. 466, 483-84 (E.D. Pa. 1994)(quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (U.S. 1960).

In the instant case, the defendants contend that plaintiff is a professional employee who is not entitled to overtime compensation. To establish whether an employee is a professional employee exempt from overtime requirements, courts employ a two- part test devised by the Secretary of Labor, and set forth in the Regulations promulgated by the Secretary. The first component of the two-part test is the "salary test" whereby the court determines whether or not the employee is paid on a salary basis. 29 C.F.R. § 541.602(a). The second component is the "duties test" whereby a court determines whether or not the duties performed by the employee are duties typically performed by a bona fide "learned professional. 29 C.F.R. § 541.301. Because I find that defendants have established by clear and convincing evidence that Rowe satisfies the requirements of a professional employee under the salary and duty tests, I find that they have established, as a matter of law, that Rowe is a professional employee not entitled to overtime under the FLSA. See In re Novartis Wage and Hour Litigation, 611 F.3d 141, 150 (2nd Cir., 2010)("Whether the duties of a job qualify an employee for a FLSA exemption is a question of law.")

A. The Salary Test

To be considered exempt from overtime provisions as a "learned professional," the employee must not only be a bona fide learned professional employee, but must also be paid not less than $455.00 per week on a salary or fee basis. 29 C.F.R. ยง 541.300. To determine whether or not an employee is paid on a salary basis, courts ...

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