United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA UNITED STATES MAGISTRATE JUDGE
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.
B Print, a printing company, hired Walker as a bindery
operator in their bindery department on April 2,
2007.(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.)
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.)
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.
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.)
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.
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).
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.
Walker Satisfies the Salary Basis Test
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 Print argues that Walker's primary duty was management.
DOL Regulations describe "management" to include