Jackson v. Go-Tane Services, Inc.
Jackson v. Go-Tane Services, Inc.
Opinion of the Court
ORDER
On August 30, 1999, Plaintiff Everett D. Jackson (“Jackson”) sued his employer,
I. Facts
During the relevant time period, from August 30, 1997 to July 8, 1998,
Although Jackson was the “manager” of the Car Wash, in title, Don Adamcyk, the General Manager of all of Go-Tane’s facilities, testified that he (Adamcyk) actually “overs[aw] everything” at the Car Wash. Tr.
Jackson testified that, in spite of the fact that he held the title of “manager,” he nonetheless performed a significant
Paige was one of a number of attendants hired by Go-Tane to assist Jackson at the Car Wash. At any one time, there were around three to five attendants on the work schedule. Id. at 130. The attendants were assigned a total of 138 hours per week in the off-season and 200 hours per week during peak season; however, they did not always work a full schedule.
II. Procedural Background
On August 30, 1999, Jackson filed this action in the district court, seeking money damages in connection with Go-Tane’s alleged violation of FLSA’s overtime requirements.
In light of the evidence presented at the hearing on the damages phase, on February 20, 2000, the trial court ruled that Jackson was entitled to liquidated damages, based on its finding that Go-Tane had not met the burden of demonstrating that its violation was done in “good faith.” Go-Tane’s Ex. C, Tr. at 2. Accordingly, the
III. Analysis
A. “Bona fide executive” determination
FLSA’s overtime regulations require employers to compensate an employee who works more than forty hours per week “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a). Such “time and a half” compensation requirement does not apply, however, to “any employee in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). In claiming the “bona fide executive” exemption as an affirmative defense, an employer bears the burden of establishing that the employee in question is properly classified under such exception. Coming Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974). Such exemptions are narrowly construed by the courts, Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. 207, 211, 79 S.Ct. 260, 264, 3 L.Ed.2d 243 (1959), and are applied only where it “plainly and unmistakably comes within the statute’s terms and spirit” to deny the employee overtime. Arnold v. Ben Kanowsky Inc., 361 U.S. 388, 390, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). Following a bench trial, we review the district court’s findings of fact for clear error. Donais v. United States, 232 F.3d 595, 598 (7th Cir. 2000).
Under FLSA, an employer may demonstrate that the “executive” exemption applies by satisfying either a six-part test (“long test”) specified in 29 C.F.R. § 541.1, or a three-part test (“short test”) detailed in 29 C.F.R. § 541.1(f). Where, as here, it is undisputed that the employee in question earns more than $250 per week, the short test applies. See 29 C.F.R. § 541.1(f). Under the short test, Go-Tane must prove that: (1) plaintiff is paid on a salary basis, (2) plaintiffs primary duty consists of the management of the employer’s enterprise, and (3) plaintiffs job duties require him to customarily and regularly direct the work of two or more other full-time employees. Id.
After considering the evidence presented during the trial, the court found that Go-Tane had failed to prove that Jackson was a “bona fide executive” under FLSA, because it had not demonstrated by a preponderance of the evidence that Jackson’s “primary duties” also consisted of the management of the Car Wash. See GoTane’s Ex. A, Tr. at 4.
In this case, there was a wealth of evidence presented at trial that, although Go-Tane conferred upon Jackson the title of Car Wash “manager,” Go-Tane, in practice, entrusted Jackson with very few responsibilities and had him operate as a glorified Car Wash attendant. As a Car Wash attendant, Edward Paige, testified at trial, aside from time spent doing scheduling and handling money at the end of the day, Jackson “did basically the same duties [as a Car Wash attendant].” Tr. at 143. Paige noted that Jackson regularly: (1) swept the Car Wash premises, (2) emptied garbage cans, (3) cleaned the Car Wash booth’s windows, (4) did landscaping work, (5) shoveled snow, (6) worked the cashier register, and (7) guided cars into the car wash. Tr. at 138-40. Paige further testified that he and Jackson “worked ... together” doing these Car Wash attendant-type tasks. Tr. at 141.
Moreover, there was unrefuted evidence that such mundane janitorial duties and non-managerial tasks comprised well over 50% of Jackson’s work hours. Jackson himself testified that he spent 95% of his time at work performing the same tasks as the Car Wash attendants. See Tr. at 150. Adamcyk, for his part, was unable to estimate the amount of time that Jackson spent doing attendant-type tasks versus the time spent doing managerial work, Tr. at 91, and further testified that he knew of no documents that would help determine such time allocation. Tr. at 92. Thus, according to Jackson’s unrefuted testimony at trial, the amount of time that Jackson generally spent on managerial duties fell well below the 50% benchmark set forth under 29 C.F.R. § 541.103.
To the extent that Jackson performed any managerial responsibilities, no evidence was presented establishing that such duties were overwhelmingly important as compared to the regular Car Wash attendant tasks that Jackson performed 95% of the time. Jackson was not compensated for such “managerial” tasks over and above what the regular Car Wash attendants were paid, given that, as the trial judge found, Jackson’s “salary work[ed] out to $6.66 per hour,” and was thus “only slightly higher than Paige’s wage rate of $6.00 an hour, as a[ Car Wash] attendant.” Go-Tane’s Ex. A, Tr. at 4.
And, as far as the extent of Jackson’s discretionary power was concerned, the district court expressly found that, “[w]hile Adamcyk tried to give the impression that Jackson had great independent authority,” the documents and other testimony “concerning hiring and firing, and granting raises clearly show[] that Jackson had to clear any such action with Adamcyk.” Go-Tane’s Ex. A, Tr. at 5 (emphasis added). Given that we have
Because the record supports the court’s conclusion that Jackson’s primary duty at the Car Wash was not management, and that Go-Tane thus failed to establish a necessary requirement under 29 C.F.R. § 541.1(f),
Under FLSA, liquidated damages are mandatory, unless the trial court determines that the employer, while acting in good faith, reasonably believed that its conduct was consistent with the law. See 29 U.S.C. § 260. An employer seeking to avoid imposition of liquidated damages under FLSA “bears a substantial burden in showing that it acted reasonably and with good faith.” Bankston v. State of Ill., 60 F.3d 1249, 1254 (7th Cir. 1995) (emphasis added). We review the district court’s factual determinations regarding the liquidated damages issue for clear error, and its application of the law de novo. Id.
In this case, the district court noted that plaintiff was an “unskilled worker whose main dut[y] was washing cars.” Go-Tane’s Ex. C, Tr. at 2. As the trial judge went on to state, Jackson had only “minor clerical duties that did not approach that of a manager.” Id. On the basis of such facts, the trial judge concluded that “defendant ... failed to prove by a preponderance of the evidence that it acted in good faith.” Id. at 2.
In urging us to reverse the district court’s award of liquidated damages, Go-Tane argues that “[a]t no time did the district court find, nor did Jackson even attempt to prove, that Go-Tane’s action in this case was a deliberate violation of the FLSA.” Go-Tane’s Br. at 24. In so arguing, Go-Tane fails to recognize that the burden in this instance was on Defendant-Appellant Go-Tane to convince the Court that its actions were reasonable and in good faith — not on Jackson. And, as the trial court correctly found, Go-Tane failed to meet its burden in this case.
Given that the record establishes that Jackson spent the overwhelming majority of his time — 95% of his workday — performing the duties of a Car Wash attendant, and that he was vested with little to no independent authority in the performance of his limited managerial duties, it is difficult to ascertain how Go-Tane could have believed that Jackson qualified as a “bona fide executive” under FLSA. Moreover, in light of the extremely limited nature of Jackson’s management responsibilities, even if Go-Tane did believe that Jackson was exempt from FLSA’s overtime requirements, such belief was unreasonable under the ruling case law and the circumstances set forth in this record. Accordingly, we affirm the district court’s award of liquidated damages.
The judgment of the district court is AFFIRMED.
. The instant suit was filed on August 30, 1999. Because the district court found that Go-Tane’s violation of FLSA was not "willful,” Jackson’s FLSA claim was subject to a two-year statute of limitations. 29 U.S.C. § 255(a). Therefore, the relevant time period begins on August 30, 1997, and ends on July 8, 1998, when Jackson ceased to be a Car Wash “manager” for Go-Tane.
. The status of the managers at Go-Tane’s gasoline service stations is not at issue in this case.
. Throughout this order, references to the trial transcript are denoted "Tr.” References to the district court’s rulings from the bench, namely, its December 12, 2001 ruling as to liability, its January 29, 2002 ruling as to willfulness, and its February 20, 2001 ruling as to liquidated damages, are denoted Go-Tane's Ex. A, Go-Tane's Ex. B, and Go-Tane’s Ex. C, respectively (with references to page numbers within the hearing transcripts denoted as "Tr.").
. During the period Jackson was employed by Go-Tane, under Adamcyk’s supervision, Adamcyk remembered the name of only one employee whom Jackson had fired without his prior consultation. See Tr. at 96.
. The attendants did not work a full shift of hours if business was slow (inclement weather), or if they were sick or on vacation. Tr. at 54, 128.
. Jackson filed the instant action on behalf of himself and "other Plaintiffs similarly situated.” Complaint H 1. Because Go-Tane made a Rule 68 Offer of Judgment to the party-plaintiffs, and because they accepted this offer, the district court entered judgment in favor of the plaintiffs, and thus their claims did not proceed to trial. See Jackson v. Go-Tane Services, Inc., No. 99-C-5686 (N.D. 111. Sept. 24, 2001) (entry of judgment in favor of the party-plaintiffs). Their claims are therefore not at issue in this appeal.
. The district court also found that Go-Tane had not met its burden of demonstrating the exemption on the additional basis that Go-Tane had “failed to establish that Jackson customarily managed two or more full time equivalent employees.” Appellant’s Exhibit A, Tr. at 4-5. For this Court’s discussion of such holding, see infra note 6.
. According to the trial court, Go-Tane also failed to demonstrate that Jackson regularly and customarily directed the work of two or more full-time employees, as required under the second prong of the "short test.” 29 C.F.R. § 241.1(f). We need not reach this issue, because, as we have previously stated, Go-Tane failed to establish the first necessary requisite under the short test. Nonetheless, if we were to reach the issue, we would affirm the district court's finding on the basis that, as established by Go-Tane's own work records, Go-Tane Ex. 4, the Car Wash attendants that Jackson supervised worked the requisite "full-time” schedule (i.e., a total of 80 hours a week) only 67% of the time that they were under Jackson’s supervision. See Go-Tane's Ex. A, Tr. at 5. Moreover, according to Jackson’s testimony, Adamcyk instructed him to keep the attendants’ hours down, Tr. at 156, presumably to minimize labor costs. We agree with the reasoning in Secretary of Labor v. Daylight Dairy Products, Inc., 779 F.2d 784, 788 (7th Cir. 1985), that, where the supervised employees work “full time” only 67% of the time over the relevant time period, such amount of supervision falls short of the "regular and customary” supervision of two full-time employees that is required under Section 241.1(f).
. Jackson also argues that the "sole charge” exception, set forth under 29 C.F.R. § 541.113, does not apply in the instant case, on the basis that Go-Tane has "waived” the sole charge "defense” under 29 C.F.R. § 541.113. Jackson’s Br. at 14-15. The trial judge ruled that Go-Tane could not avail itself of Section 541.113's sole charge exemption, because it never raised the exemption in its pre-trial order. Appellant’s Ex. A, Tr. at 5. It is indeed well-settled that the pre-trial order controls the course of the action at trial. Fed. R.Civ.P. 16. See also Clark v. Martinez, 295 F.3d 809, 815 (8th Cir. 2002) (" 'a party may be barred from advancing theories that are not identified in the pretrial order.’ ”). But we also note that Go-Tane could not have benefitted from the "sole charge” exemption in any case, because the "sole charge” exemption, 29 C.F.R. § 541.113, merely provides an exception to one of the requirements set forth under the so-called "long test,” 29 C.F.R. § 541.1(e), which, as discussed above, does not apply in the instant case. Moreover, by
. Jackson claims that, if we were to reverse the liquidated damages award, he would be entitled to pre-judgment interest. See Jackson’s Br. at 22. Because we affirm the district court's decision to award liquidated damages, we need not consider Jackson’s argument regarding pre-judgment interest.
Reference
- Full Case Name
- Everett D. JACKSON v. GO-TANE SERVICES, INC.
- Cited By
- 21 cases
- Status
- Published