United States District Court, E.D. Tennessee, Knoxville
JESSEE PIERCE and MICHAEL PIERCE, on behalf of themselves and all others similarly situated, Plaintiffs,
WYNDHAM VACATION RESORTS, INC., et al., Defendants.
MEMORANDUM AND ORDER
CLIFFORD SHIRLEY, JR. UNITED STATES MAGISTRATE JUDGE
case is before the undersigned pursuant to 28 U.S.C. §
636(c), Rule 73(b) of the Federal Rules of Civil Procedure,
and the consent of the parties, for all further proceedings,
including entry of judgment [Doc. 193].
before the Court is the Defendants' Motion for Summary
Judgment as to Certain Highly Compensated Employees [Doc.
236]. Specifically, the Defendants request that the Court
dismiss the claims of Jesse Pierce; Michael Pierce, Sr.; R.
Craig Thrift; and Thomas Garrett (hereinafter,
“Plaintiffs”). The Plaintiffs have responded in
opposition to the Motion [Doc. 265], and the Defendants have
filed a Reply [Doc. 269]. During a status conference with the
parties on August 7, 2017, the parties stated that a hearing
was not necessary. The Motion is now ripe for adjudication.
Accordingly, for the reasons explained below, the Court finds
that the Defendants' Motion [Doc. 236]
is not well-taken, and it is DENIED.
case involves allegations that certain Sales Representatives
who worked at the Defendants' offices worked
off-the-clock and were not paid for working in excess of 40
hours in a work week. [Doc. 1 at ¶ 2]. The Complaint
alleges that the Defendants willfully violated the Fair Labor
Standards Act (“FLSA”). [Id. at ¶
parties agree on the following facts, unless otherwise noted.
Dduring the relevant recovery period, October 21, 2010,
through October 31, 2013, the Plaintiffs earned greater than
$100, 000.00 and were employed as commissioned sales
representatives. [Doc. 266 at ¶¶ 2-6]. The total
earnings for each year are as follows:
Michael Pierce, Sr.
Defendants assert, and the Plaintiffs disagree, that each
Plaintiff customarily and regularly performed one or more
executive duties during the recovery period. For instance,
the Defendants assert that the Plaintiffs managed a team of
sales representatives, conducted sales training, and directed
the actions of two or more employees. [Doc. 239 at
¶¶ 9, 20, 31, and 35]. The Plaintiffs disagree with
the Defendants' characterizations. [Doc. 266 at
¶¶ 9, 20, 31, and 35].
POSITIONS OF THE PARTIES
Defendants argue that the Plaintiffs' claims are exempt
from the overtime provisions of the FLSA during the relevant
recovery period pursuant to the highly compensated employee
exception, 29 C.F.R. § 541.601, which was in effect
during the relevant time period. The Defendants assert that
the Plaintiffs fall within the highly compensated employee
exemption because they earned more than $100, 000.00 annually
and they customarily and regularly performed one or more
executive or administrative duties.
Plaintiffs respond [Doc. 265] that the Defendants cannot
establish their burden of proving that the Plaintiffs are
exempt from the FLSA's overtime compensation
requirements. The Plaintiffs state that the Defendants cannot
claim the exemption pursuant to 29 C.F.R. § 541.601
because no portion of the compensation that the Plaintiffs
received from the Defendants was paid on a salary basis as is
required in order for the employer to claim that an employee
is an exempt executive. The Plaintiffs argue that even if the
Defendants were permitted to pay executive employees on a fee
basis, the Defendants cannot establish that they paid the
Plaintiffs on a fee basis because commissions do not
constitute payment on a fee basis. Further, the Plaintiffs
contend that even if the Defendants could establish the
compensation requirements, the Defendants cannot satisfy the
streamlined duties test by which highly compensated
employees' exempt status may be determined.
Defendants reply [Doc. 269] that the regulation expressly
refutes the Plaintiffs' argument that highly compensated
employees, whose exempt duty is executive in nature, must be
paid on a salary basis versus a fee basis. In addition, the
Defendants state that the only court that has addressed
whether commissions can constitute payment on a fee basis has
rejected the Plaintiffs' view. Finally, the Defendants
reply that proving exempt status under the highly compensated
variant of the executive exemption does not require or
involve an inquiry into an employee's primary duty.
STANDARD OF REVIEW
judgment under Rule 56 of the Federal Rules of Civil
Procedure is proper “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). The moving party bears the burden of establishing that
no genuine issues of material fact exist. Celotex Corp.
v. Catrett, 477 U.S. 317, 330 n. 2 (1986); Moore v.
Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir.
1993). All facts and all inferences to be drawn therefrom
must be viewed in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Burchett v.
Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).
the moving party presents evidence sufficient to support a
motion under Rule 56, the nonmoving party is not entitled to
a trial merely on the basis of allegations.” Curtis
v. Universal Match Corp., 778 F.Supp. 1421, 1423 (E.D.
Tenn. 1991) (citing Celotex, 477 U.S. at 317). To
establish a genuine issue as to the existence of a particular
element, the non-moving party must point to evidence in the
record upon which a reasonable finder of fact could find in
its favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The genuine issue must also be material;
that is, it must involve facts that might affect the outcome
of the suit under the governing law. Id.
Court's function at the point of summary judgment is
limited to determining whether sufficient evidence has been
presented to make the issue of fact a proper question for the
finder of fact. Anderson, 477 U.S. at 250. The Court
does not weigh the evidence or determine the truth of the
matter. Id. at 249. Nor does the Court search the
record “to establish that it is bereft of a genuine
issue of material fact.” Street v. J.C. Bradford
& Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus,
“the inquiry performed is the threshold inquiry of
determining whether there is a need for a trial-whether, in
other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250.
Court has considered the parties' positions and finds
that the Defendants' position is not well-taken. The
Court observes, however, that there are two matters that need
to be addressed before analyzing the merits of
the Defendants state, in a footnote, that many other opt-in
plaintiffs had the threshold income to qualify for the highly
compensated employee exemption but that they (Defendants)
have not been allowed to take the depositions of all of the
opt-ins to develop proof necessary to support a motion for
summary judgment. The Defendants continue that they should be
allowed to develop proof necessary to support a motion for
summary judgment as to those opt-in plaintiffs and that they
reserve the right to move for summary judgment following the
opportunity to take the remaining depositions and develop the
necessary proof to establish the highly compensated employee
exemption. It is unclear to the Court what other proof is
needed since the Defendants presumably possess records
showing Plaintiffs' (Defendants' employees)
are presumably aware of the Plaintiffs' job functions, as
their employer. In any event, even if the Defendants
“needed” such depositions, they could have
requested such from the Court. They chose, however, not to
request such depositions and instead chose to raise this
matter in a footnote in their Motion for Summary Judgment.
Given that this is an already seasoned cased (i.e.,
approximately four years old), the Court will not consider
additional dispositive motions.
the Plaintiffs assert that the Defendants have not revealed
to the Court or to the Plaintiffs that they (Defendants) were
asserting this affirmative defense, except to the extent that
the fifteenth affirmative defense of the Answer can be
considered such a revelation. [Doc. 265 at 2]. The Plaintiffs
do not argue that the Defendants waived such defense, and
they proceed to argue the ...