IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MISSISSIPPI DIVISION , PLAINTIFFVS. CIVIL ACTION NO. , DEFENDANT MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTCOMES Defendant, and submits this its Memorandum in Support of Motion for
Summary Judgment filed him/herein and would state in support of hereof the following: INTRODUCTION This case involves the application of the overtime provisions of the Fair Labor Standards
Act, "FLSA", to a City Clerk. The Clerk involved in this case contends that he/she is entitled to
overtime pay from to when his/her appointment as Town Clerk ended when an
entire new Board and Mayor took office. The Town contends that the Clerk's position is
exempt from the overtime provisions of the FLSA.The has had only two (2) Mayors since its incorporation in . Mayor
retired in and a new Mayor was elected and took office . , Plaintiff, was employed at Town Hall from until . In , the
former Town Clerk, , resigned and was appointed by the Board of Aldermen to take
his/him/her place.The Town Hall Administrative Department was composed of the Mayor, Clerk and office
personnel. Some of the office personnel employed at Town Hall which will be mentioned
throughout this Memorandum during the time was Town Clerk were the following: (1)
555 Receptionist and Water Bill Clerk ( to ), (2) , In-house Bookkeeper and
Accountant Clerk ( to ), (3) , Computer Operator, ( to ), (4)
555, Secretary to ( to ), and (5) , Permit Clerk ( to ).
Other employees employed at various times during the time was Town Clerk were ,
water bill clerk, to , , receptionist and water bill clerk, to ,
, daughter of and part-time employee, , daughter of and part-time employee,
, to and , water clerk, to . Some of the cites herein are subject to a separately bound record of portions of
depositions, documents and other material submitted in support of Plaintiff's Motion. Each
page is "bates numbered" and cites are subject to the relevant bates number. The relevant
portions of the record cited are highlighted in yellow. FACTS was appointed as Town Clerk of by Mayor and the Board of
Aldermen on or about . Minutes of . 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 from the date of his/her
appointment until him/her appointment ended. He/She claims hours "at work" overtime
and hours "at home" overtime. (S)he 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 his/her overtime and an Order
was entered providing that , and be paid for overtime. See Complaint, page
4. 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 ,
Lns. . Subsequent to the meeting Mayor and the Board were advised by
their attorney and accountant that overtime pay to and would be improper because
these employees were exempt from FLSA and therefore payment of overtime would be an
unlawful gift. See letter from ; Letter from , , who was secretary to ,
received his/her overtime pay. Based upon the advice given, Mayor 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 Town of contends that is exempt from the FLSA as an executive or
administrative employee and that the position of Town Clerk is a position established by statute
as an elective office which became appointive by in accordance with state law 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. 's duties as Town Clerk primarily consisted of managing the administrative
department of the Town.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 personnel and employee time records.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 bona fide 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). contends that is exempt under the executive and administrative
exemption.
A.EXECUTIVE EXEMPTION The 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 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 20 percent... of his 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 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. EXECUTIVE SHORT TEST FACTORS (i) SALARY BASISUnder 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 employment agreement he regularly receives each
pay period on a weekly, or less frequent bases, a predetermined amount
constituting all or part of his 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 full
salary for any week in which he 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 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. , was paid on a salary basis by his/her own admission. Deposition, page
555, Lns. . R. . See also Deposition, page , Ln. . R..
received $ semi-monthly when she was appointed as Town Clerk on and received a
salary increase to $ semi-monthly on , fourteen (14) days after his/her appointment.
Deposition, page . Minutes of Board, . R.. On he/she received an
" % salary increase". Minutes of Board, . R.. On he/she was increased to
$ monthly. Deposition, page . (ii) CUSTOMARILY RECOGNIZED DEPARTMENT OR SUBDIVISION
THIM/HEREOF [T]he phrase "a customarily recognized department or subdivision" is intended to
distinguish between a mere collection of 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 Department of Town Hall
which includes employees who work in Town Hall. 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). It
is undisputed that worked in the Administrative Department of the Town. Thus, the
question is where was in charge of that department, not whether that department existed.(iii) MANAGEMENT OF DEPARTMENTBeing "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 men and the property.29 C.F.R. § 541.102. was in charge of the employees at Town Hall 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, planned and directed
their work, maintained employee records, and handled complaints. testified that he/she performed the duties listed on a document entitled "Job
Description, Town Clerk", which was produced by his/her at his/her deposition.
deposition, Exhibit "A" R. This Exhibit consists of many duties of the Clerk and provides, in
part, that he/she prepared Tax Collector and Town Clerk related journal entries, reviewed
account payable invoices, received and reviewed payroll time sheets, coordinated bond payments
to banks, calculated building permits, attended to all financial matters, answered correspondence
as needed, worked on special projects, maintained Town and office records, public relations,
prepared budget, maintained Voter Registration Rolls, etc. Defendant refers the Court to the
Exhibit for the complete list. R... performed all these duties by his/her own admission.
deposition, page , Lns. . R.. It is important to note that 's salary was paid percent ( %) from the
water department account and percent ( %) from the general fund. Affidavit of
5. R. The reason for this was because the duties of the Clerk included management of some
water department employees and he/she was in charge of water bills and payments. This is
clearly illustrated in the chain of command for the water department enacted by the Board.
Minutes of Board . R.According to the testimony of , Secretary to , the following facts are true:1. was interviewed, selected and trained by as his/her secretary.
5 Deposition, page .R.. See also Minutes of . R..2. reported directly to . Deposition, page , Lns.
.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 (s)he desired. Deposition, page . R. .4. Prices of items to be purchased for the Town would be obtained by and
555 would review them with . would instruct him/her where to buy the item and
would sign a purchase order for the item. Deposition, p , Lns. 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 , Lns. . R..
7. 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.Proof reports of 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 Mayor. recommended
5555 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 and directed
his/her work. Deposition, page , Lns. R..14.Mr./Ms. set up the budgets for each department of the Town.
Deposition, page , Lns. . R..15.The employee records and time sheets were kept by in his/her office.
55 Deposition, page , Lns. 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. a Deposition, page , Lns. ,
page , Lns. . 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 , Lns. . R..19.Employees with disputes would go to the Mayor or or if to the Mayor
he/she would send them to for him/her to handle the dispute. Deposition, page
555, Lns. . R.. made the decisions regarding disputes between employees.
Deposition, page 62. R..20.The Town's CPA and Engineers consulted with and primarily dealt with
555 to solve problems. Deposition, page and . R..
21. , receptionist and water bill clerk reported directly to .
Deposition, page , Lns. . R..22. and Mayor would conduct office meetings. a Deposition,
page , Lns. . , Mayor of the Town of during the entire employment of , testified
regarding the following matters.1. was next in command to the Mayor. Deposition, page . 2. 's 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 , Lns.
55. 3. Mayor 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 , Lns. page , Lns. . R..4. would interview prospective employees, introduce them to the Mayor and
recommend to the Mayor what person he/she felt was best for the job. deposition, page
, Lns. , page , Lns. _.5. was responsible for building permits, deposition, page , Lns.
5555, financial records of the Town, deposition, page , Lns. , claims docket,
5555 deposition, page , Lns. , page , Lns. , maintaining tax rolls,
conducting tax sales and investing the Town's money, deposition, page , Lns.
. See also Minutes of authorizing to invest money of the Town. R..6. was in charge of water payments. deposition, page , Lns.
5. 7. , accountant, was under 's supervision. p .8. had authority to sign purchase orders and did so without consulting the
Mayor on every order. deposition, page , Lns. , page , Lns. .9. was authorized to access the Town safe deposit box. deposition,
page , Lns. .10. 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
Town's money. deposition, page , Lns. .
11. would make the decision on a day-to-day basis of how much money to put
into the operating accounts of the Town and how much to leave in Certificates. p .12. The majority of 's time was spent supervising his/her employees of the
Town and directing the details of their work to see that they were doing it to please him/her. p
555.13.Mayor checked with Attorney, who he/she considered to be an
expert in the field of the FLSA and received advice and a letter that would be exempt
form the act. deposition, page , Lns. , pages .14. The Mayor and Board went along with anyone that recommended for
employment. deposition, page , Lns. , page , Lns. .15. was recommended by . deposition, Lns. .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 provided in the Minutes. 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. . The statutes of the State of Mississippi also establish duties and responsibilities of City
Clerks:1. The officers of all Municipalities by statute include the "City or Town Clerk".
Miss. Code Ann. § 21-3-3 (1985). 2. The City Clerk office may become appointive by action of the Mayor and
Board of Aldermen. Miss. Code Ann. § 21-3-3 (1985). 3. The compensation of appointive officers including the City Clerk is fixed by the
Mayor and Board. Miss. Code Ann. § 21-3-5 (1988).4.The City Clerk has the duty to keep Municipal minutes as well as an Ordinance
Book. Miss. Code Ann. § 21-15-17 (1966).5. The City Clerk is the custodian of the Municipal Seal. Miss. Code Ann. § 21-
15-17 (1966).6. The City Clerk also has a statutory duty to keep a claims docket in a Municipal
Docket Book and to enter all claims and accounts to be acted upon by the governing authorities.
The Clerk also has the duty to examine the statutes of the state and ordinance of the Municipality
to ascertain the subjects requiring or proper to be acted upon at the following meeting and shall
docket all such matters. All books and records as may be provided for by ordinance of the
Board shall be on file in the Clerk's office and the Clerk has the duty to preserve all such records.
Miss. Code Ann. § 21-15-19 (Miss. 1950).
7. The City Clerk is the auditor of the Municipality. As auditor, the City Clerk has
the duty to keep a well-bound book and to enter an preserve all accounts and funds of the City.
The Treasurer or depository of the Town shall not receive any money from any source until it
has been reported to the Clerk and audited and a receipt warrant issued. Miss. Code Ann. § 21-
15-21 (1950).(iv) DIRECTS WORK OF TWO OR MORE EMPLOYEES directed the work of more than two people. The discussion above clearly
demonstrates that he/she supervised and directed the work of the following people:1. receptionist and water bill clerk. See Deposition, page , Lns.
2. secretary to .3. , permit Clerk.4. , computer operator.5. , accountant.The other people who worked at Town Hall also reported to . was
employed at Town Hall from until . He/She was the receptionist and received
water bill payments. In his/her resignation letter to he/she stated: .R. was employed as permit clerk from to . This position was filled by
555. In a letter written by , he/she admitted that he/she was 's supervisor when
he/she stated "I was his/her immediate supervisor and then after myself is our accountant,
55". R. (V) CONCLUSIONBased upon the facts above, clearly meets the short test for establishing the
executive exemption. He/She also meets the long test based upon the same facts. C. ADMINISTRATIVE EXEMPTION The relevant portion of the code provides in regard to the administrative exemption the
following: The term "employee employed in a bona fide 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 employer or
his 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 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 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. E. ADMINISTRATIVE SHORT TEST EXEMPTION (i) SALARY BASISThis is the same requirement as under the executive exemption which clearly
meets.(ii) DISCRETIONARY DUTIES
The employee must have as his or him/her primary duty the performance of office or
non-manual work directly related to management policies or general business operations of his
or him/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 rater 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
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 time in administrative
duties would satisfy the requirement if "other pertinent factors" support a conclusion that
administrative matters constitute his 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 relative freedom from
supervision; and (4) the relationship between his 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 it 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 time in management would have management
as his primary duty. Time alone, however, is not the sole test, and in situations
whim/here the employee does not spend over 50 percent of his time in managerial
duties, he might nevertheless have management as his 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
relative freedom from supervision, and the relationship between his salary and the
wages paid other employees for the kind of nonexempt work performed by the
supervisor.29 C.F.R. § 541.103. Based upon the same discussion under the executive exemption, is clearly exempt
under the administrative exemption. , secretary to , testified that spent the largest portion of him/her day
dealing with other people in the office. Deposition, page , Lns. , page
55, Lns. . F. STATUE OF LIMITATIONS The relevant statute provides that causes of action under the Federal Labor Standards Act
must be commenced within two (2) years after the cause of action accrued unless the cause of
action arises out of a willful violation which may be commenced within three (3) years after the
cause of action accrued. 29 U.S.C.§ 255. In the case at hand, seeks compensation for
overtime back to . 's Complaint was filed . Thherefore, his/her action for
overtime prior to is barred pursuant to the statute cited. F. CONCLUSION Plaintiff clearly falls within the executive and administrative exemptions to the FLSA and
therefore he/she has no cause of action against pursuant to the act. No genuine issues as
to any material facts exist and summary judgment is proper. RESPECTFULLY SUBMITTED,
________________________________________ ATTORNEY FOR DEFENDANT CERTIFICATE OF MAILING I, , do hereby certify that I have mailed this day by U.S. Mail, postage prepaid, a
true and correct copy of the above and foregoing Motion for Summary Judgment to
Attorney at Law, Dated this the day of , 20 . __________________________
