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Trimmer v. Barnes & Noble, Inc.

United States District Court, S.D. New York

July 18, 2014

Steven Trimmer et al., Plaintiffs,
v.
Barnes & Noble, Inc. et al., Defendants

Page 619

For Steven Trimmer, On behalf of himself and all others similarly situated, Plaintiff: Brian Scott Schaffer, Frank Joseph Mazzaferro, Fitapelli & Schaffer LLP, New York, NY; Joseph A. Fitapelli, Fitapelli & Schaffer, New York, NY.

For Eileen Philbin, Plaintiff: Frank Joseph Mazzaferro, Fitapelli & Schaffer LLP, New York, NY.

Craig Meyer, Plaintiff, Pro se.

For Barnes & Noble, Inc., Barnes & Noble Booksellers, Inc., Defendants: Cheryl Marie Stanton, Brian Jeffrey Gershengorn, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York, NY.

Page 620

MEMORANDUM OPINION AND ORDER

John G. Koeltl, United States District Judge.

The plaintiffs, Steven Trimmer, Eileen Philbin, and Craig Meyers[1] brought this purported class action against the defendants, Barnes & Noble, Inc. and Barnes & Noble Booksellers, Inc. (collectively, " B& N" ), alleging violations of the Fair Labor Standards Act (FLSA). The plaintiffs allege that they worked for B& N but were erroneously classified as being exempt from the overtime requirements of the FLSA and that they were not compensated for the overtime hours they worked. The plaintiffs further allege that the defendants' violation of the FLSA was willful. Plaintiff Trimmer also brings a claim under the overtime provisions of the New York Labor Law (NYLL). This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 216(b) over the FLSA claim and under 28 U.S.C. § 1367 over the NYLL claim. The defendants now move for summary judgment dismissing the Complaint in its entirety under Federal Rule of Civil Procedure 56.

I.

The standard for granting summary judgment is well established. " The [C]ourt shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). " [T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of " informing the district court of the basis for its motion" and identifying the matter that " it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record

Page 621

and " may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . ." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).

II.

The following facts are undisputed for purposes of this motion, unless otherwise indicated.

A.

Plaintiff Trimmer worked as an Assistant Store Manager (" ASM" ) for B& N at its Tribeca store in Manhattan, New York City, from October 2007 to January 2013. (Cerasia Decl. Ex. E, Schaffer Decl. Ex. A (collectively, Trimmer Dep.) at 9-10.) Plaintiff Philbin worked as an ASM for B& N at its store in Virginia Beach, Virginia from 1995 to June 1996 and at the store in Chesapeake, Virginia since June 1996. (Cerasia Decl. Ex. F, Schaffer Decl. Ex. B (collectively, Philbin Dep.) at 17-18.) The plaintiffs assert that they frequently worked more than forty hours per week as ASMs. (Trimmer Dep. at 210; Philbin Dep. at 82-83.)

The parties dispute the precise job duties of the plaintiffs. The defendants rely on the official Job Description of the ASMs. (Cerasia Decl. Ex. I.) The Job Description provided that an ASM " is responsible for the daily operation of the store" and " is also responsible for the entire store and staff when fulfilling the role of manager on duty (MOD)." (Cerasia Decl. Ex. I at 1.) The Job Description provided that an ASM " manages the daily operation of the store," " plans and appropriates work," " selects, interviews[,] and recommends the hiring of new booksellers," " oversees and monitors the new hire orientation and training process," " coaches and counsels all booksellers on performance issues," " prepares and delivers performance reviews to booksellers and develops performance plans," and " resolves customer complaints." (Cerasia Decl. Ex. I at 1.)

The plaintiffs admit that they performed some of the functions in the Job Description. For example, Trimmer interviewed, coached, assigned work to, recommended termination of, and completed performance reviews of employees of the store, (Trimmer Dep. at 82, 86, 96, 102-03, 147); he also dealt with customer complaints and may have had some discretion in handling refunds and discounts, (Trimmer Dep. at 66, 108, 110). Philbin also performed similar functions. (E.g. Philbin Dep. at 59-60, 76, 94-95.)

However, the plaintiffs assert that the Job Description did not accurately reflect the reality of their job duties and that the functions listed in the Job Description took up only a small part of their time at work. Trimmer testified that he spent about eighty percent of the time at work performing the same routine tasks as hourly employees, such as serving customers, running the cash registers, assisting in the café , or stocking the shelves. (Trimmer Decl. ¶ 11; Trimmer Dep. at 223.) For example, Trimmer stated that " the cafe was pretty much a disaster, so we were over there all the time." (Trimmer Dep. at 35.) Philbin also states in a declaration that she spent the great majority of her time performing such routine tasks. (Philbin Decl. ¶ 13; Philbin Dep. at 71-72, 87-88.) In addition, the plaintiffs testified that certain nonexempt employees, such as the Merchandise Managers, performed the same tasks that the defendants contend to be supervisory or managerial, such as carrying a key to the stores, assisting in recruitment and training, and preparing performance reviews in the same way that ASMs did. (Trimmer Dep. at 53, 95, 103-104; Schaffer Decl. Ex. D (Smith Dep.) at 37-41, 43-44.)

Page 622

Moreover, the plaintiffs dispute the amount of authority and discretion they had even when performing whet the defendants contend to be supervisory or managerial tasks. For example, Trimmer stated that at least one of his superiors was present at the store approximately eighty-two percent of the time. (Trimmer Dep. at 64.) Trimmer testified that he assigned work to hourly employees only by reference to a Daily Assignment Sheet and to " e-Planner," a corporate program that provided employees tasks to complete. (Trimmer Dep. at 146-47, 180-81.) Trimmer further testified that his discretion in handling refunds and returns was limited and that he was required to check with the Store Manager for exercising the discretion. (Trimmer Dep. at 109-10.) Trimmer also testified that his involvement in the interview process was " very little." (Trimmer Dep. at 82.) Philbin testified that her discretion in various supervisory roles was similarly limited by corporate directives and guidelines. (E.g. Philbin Dep. at 75.)

B.

Prior to 2005, B& N classified ASMs in every state as employees exempt from the overtime provisions of the FLSA. (Smith Dep. at 70-71.) In 2005, B& N was sued in state court in California by ASMs who claimed that B& N had violated provisions of the California Labor Code relating to the payment of overtime. As a result of that lawsuit, B& N reclassified the ASMs in California as nonexempt employees. (Smith Dep. at 73-74). However, at that time, B& N did not reclassify the ASMs in other states. In May 2010, B& N reclassified all ASMs as nonexempt, effective July 1, 2010. (Pls.' 56.1 Statement ¶ 36.) Consequently, from about 2005 to July 1, 2010, B& N classified ASMs in every state other than California as exempt employees. (Smith Dep. at 70-71.) Accordingly, plaintiffs Trimmer and Philbin were both classified as exempt employees and were not paid overtime wages prior to July 1, 2010. (Trimmer Dep. at 16; Philbin Dep. at 139, 147.)

Michelle Smith, Vice President of Human Resources, was a major participant in the decision-making with respect to the classification of ASMs. Smith testified that she had been a long-time member of the Society of Human Resource Management (SHRM) and had understandings of the FLSA from reading the statute and SHRM's FLSA overviews. (Smith Dep. at 11, 63-64.) Smith also testified that she made frequent visits to stores and observed the work of the ASMs. (Smith Dep. at 75, 77.) Smith acknowledged that ASMs completed non-managerial duties such as running a cash register or making book recommendations to customers. (Smith Dep. at 79-80, 196.)

In addition, Trimmer testified that he complained to his superiors about his job duties not matching up with the Job Description. He complained that he " had to do too much of everything else, like cafe and cashiering." (Trimmer Dep. at 34.) He stated to the Store Manager that he " did not see [his job duties] matching up to that of an assistant manager" and that " being in the cafe all day long is not an assistant manager." (Trimmer Dep. at 35.) ...


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