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Amash v. Home Depot U.S.A., Inc.

United States District Court, N.D. New York

September 23, 2014

ARTHUR A. AMASH, et al., Plaintiffs,
HOME DEPOT U.S.A., INC., Defendant.


THOMAS J. McAVOY, Senior District Judge.


Plaintiffs commenced this action asserting claims for unpaid overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and New York Labor Law ("NYLL"), Article 19, § 650 et seq. See 2nd Am. Compl., dkt. # 43. Defendant Home Depot U.S.A., Inc. ("Home Depot" or "Defendant") moves for summary judgment dismissing the claims brought by Plaintiff Arthur A. Amash ("Amash" or "Plaintiff"). See Mot. dkt. # 153. For the reasons that follow, the motion is granted.


a. Procedural

Amash is a former Merchandising Assistant Store Manager ("MASM") for Home Depot who had joined a FLSA conditional certified collective action entitled Aquilino v. Home Depot, Inc., Civil Action No. 04-cv-4100, filed against Home Depot in the United States District Court for the District of New Jersey in 2006 ("Aquilino action"). See Defendant's Statement of Material Facts Not in Dispute in Support of its Motion for Summary Judgment ("DSOF"), at ¶¶ 7-8. The Aquilino plaintiffs, including Amash, alleged that they were misclassified as exempt employees by Home Depot under the overtime requirements of the FLSA, and sought overtime compensation. See DSOF at ¶¶ 8-9.

On February 15, 2011, the District Court of New Jersey granted Home Depot's motion to decertify the nationwide FLSA collective action. Aquilino, 2011 WL 564039, at *11 (ECF Nos. 341 and 347 in D.N.J. 04-cv-4100); DSOF at ¶10. After decertification of the collective action, by Order dated May 2, 2011, the District of New Jersey dismissed the opt-in plaintiffs without prejudice. Aquilino, 2011 WL 564039, at *1, (ECF No. 353 in D.N.J. 04-cv-4100); see Aquilino v. Home Depot. U.S.A., Inc., No. 06-cv-4100 (PGS) (D.N.J. May 2, 2011) (ECF No. 353 in D.N.J. 04-cv-4100); DSOF at ¶ 11.

In June 2011, Amash joined with other opt-in plaintiffs in an action in the United States District Court for the District of Connecticut alleging violation of the FLSA and various state laws. See Costello v. Home Depot U.S.A., Inc. , 888 F.Supp.2d 258, 262 (D. Conn. 2012). The Costello plaintiffs alleged violations of the FLSA and the wage and hour laws of New Hampshire, New York, and Vermont. Id. at 261. On January 10, 2012, Home Depot filed a motion in the Costello action pursuant to Fed.R.Civ.P. 21 and 28 U.S.C. § 1404(a) to sever the plaintiffs' claims into seven separate actions and to transfer six of those actions to districts in other states, including New York. See id. (ECF No. 55 in D. Conn. 11-cv-0953). On April 10, 2012, the Costello Court granted Home Depot's motion. Id. at 271 (ECF No. 72 in D. Conn. 11-cv-0953).

In April and May 2012, the claims of Amash and other New York plaintiffs were transferred to the District Court for the Northern District of New York. See Order of Transfer, filed April 30, 2012, (ECF No. 77 in D. Conn. 11-cv-0953), and Amended Order of Transfer, filed May 2, 2012 (ECF No. 79 in D. Conn. 11-cv-0953). Discovery in this action closed on December 20, 2013. See ECF No. 95; DSOF at ¶ 22.

b. Factual[1]

Home Depot operates large warehouse-style retail stores that sell home improvement products and services. DSOF at ¶ 23. Each store is managed by a Store Manager and up to seven Assistant Store Managers ("ASMs"), including MASM and Speciality Assistant Store Managers ("SASMs"), who are the second highest ranking employees, subordinate only to the store manager. Id. at ¶¶ 24-25. MASM and SASMs both supervise merchandising departments, but Amash testified that SASMs are held more accountable, specifically because they "concentrate on the sale and installation of high value projects." Id. at ¶¶ 27-28

Home Depots are composed of eleven merchandising departments, to wit: Lumber, Building Materials, Flooring, Paint, Hardware, Plumbing, Electrical, Garden, Kitchen & Bath, Millwork, and Decor. DSOF at ¶26. MASMs supervise those departments not being supervised by SASMs. Id. at ¶ 27. Each merchandising department is staffed by hourly sales associates and a department supervisor. Id. at ¶ 29. MASMs/SASMs supervise the department supervisors and associates assigned to the merchandising departments for which they are responsible. Id.

According to the Sales Assistant Store Manager Job Description that applies to MASM(s) and SASM(s), it is Home Depot's expectation that, inter alia, Assistant Store Managers:

work with the Store Manager to develop strategies and objectives to drive sales and profitability. They provide leadership to Associates so that these strategies and objectives are executed successfully. Sales ASMs must analyze trends, solve problems, and develop themselves and their Associates in order to maximize contribution to store success.

Id. at ¶ 57.

In 2012, Home Depot released a job description specifically designed for the SASM position. Id. at ¶ 59. The description identifies, explains and assigns percentages to, inter alia, three major tasks/responsibilities: Ensuring Excellent Customer Service (40%), Manage Areas of Responsibility (30%), and Staffing & Development (30%). Id. at 60-62. Other responsibilities Amash testified about include: "preparing for all store events that occur in conjunction with major holidays such as Presidents' Day, Memorial Day, Labor Day, Thanksgiving and Christmas, " "exercise discretion and judgment alone, and in conjunction with, the Store Manager [and others], " "maintain department profitability through analysis, trend identification and responding to identified problems[, ]" and "[make[] recommendations in the selection process by assisting with recruitment, interviews, and make decisions on qualified candidates to hire[]... [e]valuate performance and make recommendations for personnel action, which include... discipline and terminations." Id. at ¶¶ 58-62. According to Amash, he not only had responsibility for his speciality departments, but "store-wide responsibility as a manager." DSOF at ¶ 67; see also Tambone Decl. at ¶¶ 11, 20; Branham Decl. at ¶¶ 11, 32; Raymond Decl. at ¶¶ 12, 24; Gray Decl. at ¶¶ 9, 22.

Amash was first promoted to a salaried ASM position in March 2003 and underwent a three-to-four month training program, which "consisted of classroom instruction and on-thejob training at Home Depot's Canton, Massachusetts training facility and several Home Depot stores." DSOF at ¶¶ 30-31. Upon completion of ASM training, Amash was assigned as a SASM at store 1259 in Latham New York ("Latham store or Store 1259"), where he worked for approximately six months.[2] Id. at ¶ 32.

In November, 2003, Amash was assigned as SASM to Store 1241, located on Washington Avenue in Albany, New York ("Washington Avenue store" or "Store 1241"), where he worked for over two years. Id. at ¶¶ 33, 35. The Washington Avenue store was staffed with a store manager, three ASMs, including Amash, and over 100 "exempt and nonexempt employees, collectively known as associates.'" Id. at ¶¶ 35, 36. As a SASM in the Washington Avenue store, Amash supervised eight merchandising departments, to wit: Wall and Floor, Plumbing, Kitchen and Bath, Millwork, Pro Sales, Decor, and Tool Rental. Id. at ¶ 37. Amash directly supervised five department supervisors and approximately 45 associates assigned to the eight departments which he oversaw. Id. at ¶ 38.

In January 2006, Amash transferred to Store 1262 located on Central Avenue in Albany, New York ("Central Avenue Store" or "Store 1262"), because, Amash testified, the store needed "experienced managers." Id. at ¶¶ 40, 42. The Central Avenue Store was staffed by a store manager, three ASMs, including Amash and other hourly, non-exempt employees. Id. at ¶ 43. At the Central Avenue Store, Amash, as SASM, supervised: Wall and Floor, Plumbing, Kitchen and Bath, Millwork, Pro Sales, Decor, Appliances, and ...

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