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Walker v. B&B Print Source, Inc.

United States District Court, D. Oregon, Portland Division

April 9, 2019

ARTHUR WAYNE WALKER, an individual, Plaintiff,
v.
B & B PRINT SOURCE, INC. a/b/n of PRINT SOURCE, INC. an Oregon Domestic business corporation, Defendant.

          OPINION AND ORDER

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE

         Plaintiff Arthur Wayne Walker ("Walker") filed this lawsuit against his former employer, B & B Print Source, Inc. ("B & B Print"). Walker brings two claims for wage and hour violations: overtime compensation and failure to timely pay wages due and owing upon termination of employment violations, under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 207, 216(b) et al, and state law under Oregon Revised Statute ("ORS") §§ 652.140, 652.150, 653.261. Currently before the court is B & B Print's motion for summary judgment. The court finds B & B Print has failed to establish the absence of a genuine issue of material fact that Walker qualified for the executive employee exemption under the FLSA. Therefore, B & B Print's motion for summary judgment is DENIED.

         Background

         B & B Print, a printing company, hired Walker as a bindery operator in their bindery department on April 2, 2007.[1](Def. Mot. Summ. J. ECF No. 32 ("Def Mot."), at 3.) When Walker was hired he was paid on an hourly basis at a rate of $24 per hour. (Narus Decl., ECF No. 33, Ex. 4, at 5.) In March of 2009, Walker was promoted from stitcher operator to bindery manager. (Def. Answer and Affirmative Defenses, ECF No. 14 ("Def. Answer"), ¶ 5.) In April of 2009, B & B Print changed Walker's compensation from an hourly rate to salary. (Def. Answer ¶ 5.) By 2015, Walker earned $91, 332.50 annually. (Henderson Decl, ECF No. 34, Ex. 3.) Walker remained a salaried employee until he ended his employment with B & B Print in 2016. (Compl., ECF No. 1, ¶7.)

         The bindery department contains various machines to assist in "doing prep work and finishing work," but the bindery department does not conduct the actual printing for the company. (Walker Dep. 18:21-23.) As a bindery operator, Walker's duties included running the bindery machines, as well as helping other employees when they struggled to a keep a machine running. (Walker Dep. 75:9-25.) During Walker's employment, the bindery department consisted of five or six employees. (Walker Dep. 21:2-3.) Of the employees in the bindery department, Walker had the most experience in bindery work, and he was the only employee in the department during that time paid on a salary basis. (Walker Dep. 76:4-7.) The second most experienced employee at B & B Print was Steve Wilson, who earned $22.50 per hour. (Henderson Decl. ¶ 7); (Walker Dep. 76:4-7.)

         Every morning, Michelle Lazoff, B & B Print's production manager provided the bindery department with a list of jobs to be completed over a series of days. (Def. Answer ¶ 6.) The parties dispute whether Walker then assigned the other employees in the department work according to the list, or whether the employees worked out amongst themselves who would run each machine.

         In his role as bindery manager, Walker did not directly hire or fire any employees. Though Walker did not directly hire any employees on his own, Walker did recommend B & B Print hire approximately nine people, all of whom were subsequently hired. (G. Lazoff Decl., ECF No. 41, ¶ 3.) Additionally, on one occasion, Walker assisted with an employee interview. (Walker Dep. 24:12-13.) Finally, Walker's duties included signing vacation requests for bindery employees. (Henderson Decl. Ex. 4.)

         Legal Standard

         Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016). However, a mere "scintilla" of evidence will not overcome summary judgment. Anderson v. Liberty Lobby, Lnc, 477 U.S. 242, 251 (1986). Rather, to defeat summary judgment, the non-moving party must identify facts beyond the allegations in the complaint, that show a genuine issue for trial. Celotex, 477 U.S. at 324. If a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial and summary judgment should be granted. See Liberty Lobby, 411 U.S. at 248.

         Discussion

         B & B Print moves for summary judgment on Walker's claims for overtime compensation under federal and state law. B & B Print contends that Walker is not entitled to overtime compensation because he worked in an "executive" capacity under the FLSA. Walker opposes the motion arguing that his job duties did not meet the executive exemption test of the FLSA. For the reasons set forth below, the court denies B & B Print's motion for summary judgment. I. FLSA The FLSA creates a private cause of action for an employee to recover unpaid overtime wages and back pay against his employer, if the employee is not paid the statutory wage. Flores v. City of San Gabriel 824 F.3d 890, 895 (9th Cir. 2016). The FLSA requires that employers pay their employees time and one-half for any work exceeding 40 hours per week. 29 U.S.C. § 207(a)(1). However, employees who are employed in executive, administrative, or professional capacities are exempt from overtime pay. See 29 U.S.C. § 213(a)(1).

         The FLSA does not define the term "executive" for purposes of the exemption, but the statute directs the Department of Labor ("DOL") to do so by regulation. See 29 U.S.C. § 213(a)(1). DOL regulations provide a four-prong test to determine whether an employee is "employed in a bona fide executive capacity." 29 C.F.R. § 541.100. To qualify for the executive employee exemption, an employee: (1) must be compensated on a salary basis at a rate no less than $455 per week; (2) must be in a role where their primary duty is managing the enterprise, or managing a customarily recognized department or subdivisions of the enterprise; (3) must customarily and regularly direct the work of at least two or more other full-time employees; and (4) must have the authority to hire or fire other employees, or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. 29 C.F.R. § 541.100(a). The employer bears the burden of proving that the employee "plainly and unmistakably" fits within the claimed exemption. Serv. Employees Int'l Union, Local 102 v. Cty. of San Diego, 60 F.3d 1346, 1350 (9th Cir. 1994). Thus, the court examines whether Walker satisfies all four prongs of the executive exemption test.

         A. Walker Satisfies the Salary Basis Test

         The parties do not dispute that Walker was paid on a salary basis and in 2015, earned an annual salary of $91, 332.50. (Henderson Decl. Ex. 3.) Walker's salary satisfies the compensation prong of the exemption.

         B. Primary Duty

         B & B Print argues that Walker's primary duty was management. DOL Regulations describe "management" to include ...


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