Fill and Sign the Motion Summary Judgment Mississippi 497314749 Form

IN THE UNITED STATES DISTRICT COURT FOR THE       DIVISION       PLAINTIFF VS. CIVIL ACTION NO.             DEFENDANT MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT COMES Defendant,       , and submits this its Memorandum in Support of Motion for Summary Judgment filed herein and would state in support thereof the following: FACTS       was appointed as       by       and Board of Aldermen on or about       ,       . He/She served in that position until the new Mayor and Board of Aldermen were elected in       ,       and took office on       ,       .       alleges in his/her Complaint that he/she is entitled to overtime compensation since the date of his/her appointment until his/her appointment ended. He/She claims       hours "at work" overtime and       hours "at home" overtime. He/She maintained no records for the "at home" overtime and the records maintained "at work" were incomplete. On       ,       the outgoing Mayor and Board of Aldermen met in its final meeting. At that meeting       requested that the outgoing Mayor and Board pay him/her overtime and an Order was entered providing that       ,       and       be paid for overtime. There is no mention in the record of the amount of overtime to be paid and the tape recording of the meeting has been destroyed by       . See       Deposition, page       . Via Deposition, page       . R.       . Subsequent to the       meeting       and the Board were advised by their attorney and accountant that overtime pay to       and       would be improper because these employees were exempt from       and because same would be an unlawful gift.       , who was secretary to       , received his/her overtime pay. Based upon the advise given,       refused to sign a check that was presented to him/her by       in the amount of $       and no payment was made to       . On       ,       instituted suit against       in this Court alleging that he/she was entitled to the following relief: (A) Judgment for       hours of overtime at $       per hour for a total of $       . (B) Liquidated damages of $       . (C) Overtime pay for hours worked at home. (D) Judgment for       hours of regular time at $       per hour for $       . (E) Attorney's fees, costs and pre-judgment interest. The       contends that       is exempt from the FLSA as an executive or administrative employee and that the position of       is a position established by statute as an elective office which became appointive by action of the Mayor and Board. The Defendant also contends that Plaintiff's action is partially barred by the applicable statute of limitations.       supports its contention that       is exempt from the FLSA by the following facts: 1.       was paid on a salary basis. 2.       duties as       primarily consisted of managing the administrative department of       . 3.       customarily and regularly directed the work of two or more employees under his/her department. 4.       hired employees and made recommendations concerning hiring, advancement and salaries of other employees. 5.       received compensation on a salary basis at not less than $       per week. 6.       received the same amount of pay each pay period without reduction because of variations in the quality or quantity of his/her work. 7.       received his/her full salary each week regardless of the days or hours worked. 8.       trained other employees and planned and directed the work of employees. 9.       maintained the employee records and time. 10.       handled complaints from employees. 11. Other facts stated below. ARGUMENT The relevant portion of the Fair Labor Standards Act which applies to this case provides: The provisions of...Section 207 of this title shall not apply with respect to - (1) any employee employed in a bonafide executive, administrative, or professional capacity... 29 U.S.C.A. Section 213(A)(1). The Courts apply this exemption narrowly, and the burden of proof to demonstrate that the exemption applies is on the Defendant. Hodgson v. Colonnades, Inc. , 472 F.2d 42, 47 (5th Cir. 1973); Wallen v. General Industries Co. , 330 US 545, 547-48, 67 S.Ct. 883, 884, 91 L.Ed. 108 (1947). A. EXECUTIVE EXEMPTION This relevant section of the Code of Federal Regulations provides in regard to the executive exemption that: The term "employee employed in a bona fide executive       capacity" in section 13(a)(1) of the Act shall mean any employee: (a) Whose primary duty consists of the management of the enterprise in which he/she is employed or of a customarily recognized department of subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretionary powers; and (e) Who does not devote more than       percent... of his/her hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section... and (f) Who is compensated for his/her service on a salary basis at a rate of not less than $       per week: Provided, That an employee who is compensated on a salary basis at a rate of not less than $       per week... and whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all the requirements of this section. 29 C.F.R. § 541.1 (1986) The above regulations establish a long and short test for establishing the executive exemption. The short test has four requirements that must be met before an employee is deemed an "executive." These requirements are that (1) The employee must be paid "on a salary basis"; (2) The employee's primary duty consists of the management of the enterprise in which he/she is employed or of a customarily recognized department thereof; (3) The employee customarily and regularly directs the work of two or more other employees therein; and (4) The employee is paid not less than $       per week. B. ADMINISTRATIVE EXEMPTION The relevant portion of the code provides in regard to the administrative exemption the following: The term "employee employed in a bonafide       administrative       capacity" in section 13(a)(1) of the act shall mean any employee: (a) Whose primary duty consists of either: (1) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or he/she employer's customers, or (2) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or supervision thereof, in work directly related to the academic instruction or training carried on therein: and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) (1) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined in the regulations of this subpart), or (2) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or (3) Who executed under only general supervision special assignments and tasks; and (d) Who does not devote more than       percent... of his/her hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (c) of this section; and (e) (1) Who is compensated for his/her services on a salary or fee basis at a rate of not less than $       per week... exclusive or board, lodging, or other facilities, or (2) ... Provided, Than an employee who is compensated on a salary or fee basis at a rate of not less that $       per week... exclusive of board, lodging, or other facilities, and whose primary duty consists of the performance of work described in paragraph (a) of this section, which includes work requiring the exercise of discretion and independent judgment, shall be deemed to meet all the requirements of this section. 29 C.F.R. § 541.2 Under this regulation there is also a long and short test for determining exemption status. In order to fall under the short test the employee must (1) be paid a salary of $       per week and (2) have as his or her primary duty the performance of office or non-manual work directly related to management policies or general business operations of his or her employer which includes work requiring the exercise of discretion and independent judgment. If the employee "qualifies for exemption under this proviso, it is not necessary to test that employee's qualifications in detail under paragraphs (a) through (f) of § 541.1 of this Part." 29 C.F.R. § 541.119. C. EXECUTIVE SHORT TEST FACTORS (i) SALARY BASIS Under both the Executive and administrative exemption the employee must be paid on a salary basis. The relevant code provision provides in this regard the following: An employee will be considered to be paid "on a salary basis" within the meaning of the regulations if under his/her employment agreement he/she regularly receives each pay period on a weekly, or less frequent bases, a predetermined amount constituting all or part of his/her compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his/her full salary for any week in which he/she performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid for any workweek in which he/she performs no work. 29 C.F.R. § 541.118(a) 1986. The salary must be $       per week or more for the short test to apply.       , since his/her employment as       , had earned in excess of $       per week. He/She was paid on a salary basis by his/her own admission. See also       Deposition, page       .       received $       semi-monthly when he/she was appointed as       on       ,       and received a salary increase to $       semi-monthly on       ,       ,       (       ) days after his/her appointment.       Deposition, page       . Minutes of Board,             . On       ,       , he/she was increases to $       monthly.       Deposition, page       . (ii) CUSTOMARILY RECOGNIZED DEPARTMENT OR SUBDIVISION THEREOF [t]he phrase "a customarily recognized department or subdivision" is intended to distinguish between a mere collection of (wo)men assigned from time to time to a specific job or series of jobs and a unit with permanent status and function... [The employee] must be in charge of and have as his primary duty the management of a recognized unit which has a continuing function. 29 C.F.R. § 541.104(a)       contends that       was in charge of the Administrative employees of       who all worked in       and the Administrative department of       is a recognized department of       . Thus, the customarily recognized department requirement is met. The regulations recognize that the customarily recognized department is generally an easy question and that the difficulty arises when the employee works outside their employer's establishment. 29 C.F.R. §541.104(b). Thus, the question is whether       was in charge of that department, not whether that department existed. (iii) MANAGEMENT OF DEPARTMENT Being "in charge" of a department is determined by the employee's management of that department. The following relevant activities are considered to be managerial duties: (1) The training of employees; (2) The planning and directing of the work of employees; (3) Maintaining records for use in supervision and control; (4) Appraising worker productivity and efficiency for the purpose of recommending promotions or other changes in worker status; and (5) The handling of complaints. 29 C.F.R. § 541.102(b) (1986) The code section provides in part that management consists of the following: Interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing their work; maintaining their production or sales records for use in supervision or control; appraising their productivity and efficiency for the purpose of recommending promotions or other changes in their status; handling their complaints and grievances and disciplining them when necessary; planning the work; determining the techniques to be used; apportioning the work among the workers; determining the type of materials, supplies, machinery of tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety of the (wo)men and the property. 29 C.F.R. § 541.102.       was in charge of the employees at       who worked in the administrative department of the Town. His/Her primary duty consisted of managing these office personnel. These people consisted of a receptionist, secretary to       , accountant, permit clerk and other office personnel. All of these people reported to       . He/She trained employees, planed and directed their work, maintained employee records, and handled complaints. According to the testimony of       , Secretary to       , the following facts are true: 1.       was interviewed, selected and trained by       as his/her secretary.       Deposition, page 5. R.       . See also Minutes of       . R.       . 2.       reported directly to       .       Deposition, page       . R.       . 3.       prepared board minutes from tape recordings and notes and was instructed on how to do same by       .       would review the minutes prior to approval by the Board and make changes he/she desired.       Deposition, page       . R.       . 4. Prices of items to be purchased for the Town would be obtained by       and       would review them with       .       would instruct him/her where to buy the item and sign a purchase order for the item.       Deposition, page       . R.       . 5.       was in charge of all purchasing for the Town, including the Police, fire and public works department. The purchase orders were approved by       .       Deposition, page       . R.       . 6.       did not consult with the Mayor on all purchase orders but sometimes the police, public works and fire departments would go directly to the Mayor.       Deposition, page       . R.       . 7.       had authority over       , Public works director, including the power to approve or disapprove his/her purchase orders.       Deposition, page       . R.       . See Interdepartmental Memo to       from       . R.       . 8.       was in charge of all books for the departments and personnel would come to him/her to determine how much money was in their budget.       Deposition, page       . R.       . 9. Water bills were generated by computer and reviewed and corrected at the direction of       .       Deposition, page       . R.       . 10. Cut-off lists for delinquent water customers were reviewed by       and he/she determined who to cut-off.       Deposition, page       . R.       . See also, Interdepartmental Memo from       to       R.       . 11.       was the key punch operator who generated the water bills. He/She was under the supervision of       and was hired by       and the       .       recommended       to the Board.       Deposition, page       . R.       . 12.       was the building permit clerk and was under the supervision of       and reported to       .       Deposition, page       . R.       . 13.       , internal accountant for the Town, reported to       as well as       , outside accountant and auditor for the Town.       Deposition, page       . R.       . 14.       set up the budgets for each department of the Town.       Deposition, page       . R.       . 15. The employee records and time sheets were kept by       in his/her] office.       Deposition, page       . R.       . 16.       would allow employees who needed to take time off to work extra time (i.e. through lunch) to build up time to take off.       Deposition, page       . R.       . 17.       approved time off for the employees at Town Hall.       Deposition, page       Lines       . R.       . 18.       , receptionist,       and       would obtain approval for overtime work from       .       Deposition, page       . R.       . 19. Employees with disputes would go to the       or       or if to the       he/she would send them to       for him/her to handle the dispute.       Deposition, page       . R.       . The       would allow       to make the decision regarding a dispute between employees.       Deposition, page       . R.       . 20. The Town accountant and Engineers consulted with       and primarily dealt with       to solve problems.       Deposition, page       . R.       . 21.       , receptionist and water bill clerk reported directly to       .       Deposition, page       . R.       . 20.       and       would conduct office meetings.       Deposition, page       .       , Mayor of the Town of       during the entire employment of       , testified regarding the following matters. 1.       was next in command only to the       .       Deposition, page       . 2.       duties were to supervise work of other employees and designate what tasks other employees would perform.       Deposition, page       .       was the immediate supervisor of all employees of Town Hall.       Deposition, page       . 3.       never instructed       to keep up with his/her time or extra time that he/she worked and never told him/her that he/she would be paid for time over and above his/her salary.       Deposition, page       . 4.       would interview prospective employees, introduce them to the       and recommend to the       what person he/she felt was best for the job. p.       . 5.       was responsible for building permits, p       , financial records of the Town, p       , claims docket, p       , maintaining tax rolls, conducting tax sales and investing the Towns money. p       . See also Minutes of       authorizing       to invest money of the town. R.       . 6.       was in charge of water payments. P       . 7.       , accountant, was under       supervision. P       . 8.       had authority to sign purchase orders and did so without consulting the       on every order. P       . 9.       was in charge of the Certificates of Deposit of the Town and would shop around for the best interest rates upon renewal and make the decision of where to place the towns money. p       . 10.       would make the decision on a day-to-day basis of how much money to put into the operating account of the Town and how much to leave in Certificates. p       . 11. The majority of       time was spent supervising other employees of the Town and directing the details of their work to see that they were doing it to please him/her . p       . 12.       checked with       who he/she considered to be an expert in the field of the FLSA and received advise and a letter the       would be exempt form the act. p       . 13. The Mayor and Board would go along with anyone that       recommended for employment. p       . 14. After the       ,       meeting       asked       their opinion on the application of the FLSA to       and the others. p.       . 15.       was recommended by       . P       . 16.       17.       18.       19.       20.       21.       The minutes of the Board clearly demonstrate that       recommended a salary increase for       , the accountant, on             . R.       . On       ,       ,       was appointed as office manager of the Town as providing in the Minutes. Minutes of Board       . R.       . The personnel Policies and Procedures Manual of the Town of       provides that "these rules shall be administered by the City Clerk with the approval of the Mayor and under the direction of the Mayor and Board". R.       . It also provides that "the City Clerk shall be responsible for the recruitment examination, and record keeping for all applicants for positions with the Town". R.       . It also provides that the Clerk shall "publicize vacancies", R.       , and that he/she is "charged with maintenance of the position classification plan so that it will reflect the duties performed by each employee" and that "it is his/her duty to examine the nature of the positions as they are created and to make such changes as necessary in the classification plan, with approval of the Mayor and Board." R.       . It also provides that "The City Clerk shall establish and maintain a system of employee performance appraisals, with the approval of the Mayor and Board of Aldermen. R.       . Information regarding employee insurance and retirement was maintained and available from the Clerk. R.       . The Clerk also recorded, processed and maintained all personnel records and transactions involving employees, positions and dates of pay of employees. R       . It is the Clerk's duty to document all employee data and keep the records up to date. R.       . (iv) DIRECTS WORK OF TWO OR MORE EMPLOYEES       directed the work of more than two people. He/She supervised and directed the work of the following people: 1.       , receptionist and water bill clerk. 2.       , secretary to       . 3.       , permit Clerk. 4.       , computer operator. 5.       , accountant. 6.       ,       , hired       ,       . D. ADMINISTRATIVE SHORT TEST EXEMPTION (i) SALARY BASIS This is the same requirement as under the executive exemption which       clearly meets. (ii) DISCRETIONARY DUTIES The employee must have as his or her primary duty the performance of office or non- manual work directly related to management policies or general business operations of his or her employer which includes work requiring the exercise of discretion and independent judgment. According to 29 C.F.R. 541.207(e)(1): . . . decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather that the actual taking of action. The fact that an employee's decision are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment within the meaning of the regulations in Subpart A of this part. 29 C.F.R. § 541.207(e)(1) Section 541.103 states that this determination depends "on all the facts in a particular case," but that a "good rule of thumb" is that an employee who spends over fifty percent of his/her time in administrative duties would satisfy the requirement. However, "time alone . . . is not the sole test." An employee who spends less than fifty per cent of his/her time in administrative duties would satisfy the requirement if "other pertinent factors" support a conclusion that administrative matters constitute his/her primary duty. These other factors include: (1) the relative importance of the administrative duties as compared with other types of duties; (2) the frequency with which the employee exercises discretionary powers; (3) his/her relative freedom from supervision; and (4) the relationship between his/her salary and the wages paid other employees for the same type of non-exempt work. This guide is stated in the regulations as follows: The amount of time spent in the performance of the managerial duties is a useful guide in determining whether management is the primary duty of an employee, in the ordinary case id may be taken as a good rule of thumb that primary duty means the major part, or over 50 percent, of the employee's time. Thus, and employee who spends over 50 percent of his/her time in management would have management as his/her primary duty. Time alone, however, is not the sole test, and in situations where the employee does not spend over 50 percent of his/her time in managerial duties, he/she might nevertheless have management as his/her primary duty if the other pertinent factors support such a conclusion. Some of these pertinent factors are the relative importance of the managerial duties as compared with other types of duties, the frequency with which the employee exercises discretionary powers, his/her relative freedom from supervision, and the relationship between his/her salary and the wages paid other employees for the kind of nonexempt work performed by the supervisor. 29 C.F.R. § 541.103. In the case at hand,       meets both the long and short tests which make him/her exempt from the FLSA as an executive or administrative employee. E. STATUE OF LIMITATIONS F. CONCLUSION Respectfully submitted, _______________________________________       Attorney for       Of Counsel:                         Telephone:       MSB #       Attorney for       CERTIFICATE OF MAILING