[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12904 SEPT 3, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-21573-CV-UUB
ARMANDO DIAZ,
and all others similarly
situated under 29 U.S.C. § 216(b),
Plaintiff-Appellant,
versus
TEAM ONEY, INC.,
WADE S. ONEY,
ELIZABETH A. ONEY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 3, 2008)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Armando Diaz appeals the district court’s entry of summary judgment in
favor of his former employer, Team Oney, Inc., and individual defendants Wade S.
Oney and Elizabeth A. Oney, (collectively, “Oney”), on his claim for violation of
the overtime pay requirements of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201 et seq. On appeal, Diaz argues that the district court erred in
holding that Oney had satisfied as a matter of law the “executive exemption” to the
FLSA’s overtime pay requirements because there are disputed facts as to two
prongs of the “executive exemption” test: (1) whether Diaz’s “primary duty”
consisted of management; and (2) whether Diaz customarily and regularly directed
the work of two or more other employees. Upon thorough review of the record and
careful consideration of the parties’ briefs, we find no reversible error and affirm.
We conduct a de novo review of a district court’s order granting summary
judgment, “applying the same legal standards as the district court.” Chapman v. AI
Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). “Summary judgment is
appropriate if the evidence before the court shows ‘that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter
of law.’ In making this determination, the court must view all evidence and make
all reasonable inferences in favor of the party opposing summary judgment.”
Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citations omitted). The
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summary judgment movant bears the initial burden of showing the court, by
reference to the record, that no genuine issues of material fact exist to be
determined at trial. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991). The movant meets this burden by showing that there is an “absence of
evidence to support the non-moving party’s case.” Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593 (11th Cir. 1995). Once this initial burden is met, the other
party must “go beyond the pleadings, and by its own affidavits, or by depositions,
answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.” Id. at 593-94 (citations and quotations
omitted).
As a general rule, the FLSA provides that employees are entitled to receive
overtime pay at one and one-half times their regular rate for all hours worked in
excess of forty per week. See 29 U.S.C. § 207(a)(1). The FLSA exempts from its
overtime pay requirements “any employee employed in a bona fide executive,
administrative, or professional capacity.” See 29 U.S.C. § 213(a)(1); see also
Avery v. City of Talladega, 24 F.3d 1337, 1340 (11th Cir. 1994). The employer
has the burden of showing entitlement to an exemption. Jeffery v. Sarasota White
Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995).
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The Code of Federal Regulations defines executive employees as those (1)
who receive compensation “of not less than $455 per week”; (2) whose “primary
duty” is the management of the enterprise in which the employee is employee or a
customarily recognized department or subdivision thereof; (3) who customarily
and regularly direct the work of two or more other employees; and (4) who have
the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring, firing, advancement, promotion, or any other
change of status of other employees are given particular weight. 29 C.F.R. §
541.100(a). The Code of Federal Regulations further defines “primary duty” as
“the principal, main, major or most important duty that the employee performs” but
explains that the “[d]etermination of an employee’s primary duty must be based on
all the facts in a particular case, with the major emphasis on the character of the
employee’s job as a whole.” 29 C.F.R. § 541.700(a). The factors to consider in
this analysis include: (1) the relative importance of the management duties as
compared with other types of duties; (2) the amount of time spent performing
management duties; (3) the employee’s relative freedom from direct supervision;
(4) and the relationship between the employee’s salary and the wages paid to other
employees for the kind of non-management work performed by the employee. Id.
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Bearing these definitions in mind, we agree that Oney met its burden to
show that Diaz, as assistant manager at two of Oney’s Papa Johns Pizza
restaurants, was covered by the exemption for executives. On appeal, as before the
district court, Diaz does not dispute that the first and fourth factors of the executive
exemption test are met.1 We therefore address the second and third factors here.
As for the second factor, Diaz’s main contention is that according to his
deposition testimony, his “prime responsibility” was to service customers by
making and cutting pizzas, routing deliveries of pizzas, greeting customers and
cleaning the store, and that according to deposition testimony of his supervisor,
Diaz’s primary duties were customer care and ensuring product standard. Yet the
record is clear that while Diaz did perform these kind of tasks, his managerial
duties -- as the highest ranking employee on duty during the majority of his shifts,
in which he supervised the drivers, counterpersons, and cooks, apportioned work,
made deposits, filled out required forms, interviewed prospective employees, and
1
Diaz makes passing reference to the fact that he did not make the ultimate hiring and
firing decisions -- which presumably would bear on the fourth factor of the executive exemption
test. However, Diaz did not squarely dispute this issue before the district court, and we therefore
will not address it here. See In re Pan American World Airways, Inc., 905 F.2d 1457, 1462
(11th Cir. 1990) (“if a party hopes to preserve a claim, argument, theory, or defense for appeal,
she must first clearly present it to the district court, that is, in such a way as to afford the district
court an opportunity to recognize and rule on it”). Nor does Diaz squarely raise the issue on
appeal. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)
(noting that issues not argued on appeal are deemed waived, and a passing reference in an
appellate brief is insufficient to raise an issue).
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engaged in local restaurant marketing -- were significantly more important to the
operation of the restaurant than his non-managerial tasks. See 29 C.F.R. § 541.700
(b), (c) (“Time alone . . . is not the sole test, and nothing in this section requires
that exempt employees spend more than 50 percent of their time performing
exempt work. . . . Thus, for example, assistant managers in a retail establishment
who perform exempt executive work such as supervising and directing the work of
other employees, ordering merchandise, managing the budget and authorizing
payment of bills may have management as their primary duty even if the assistant
managers spend more than 50 percent of the time performing nonexempt work
such as running the cash register.”). Moreover, the supervisor’s deposition
testimony to which Diaz cites actually shows that the supervisor refused to name
customer sales as Diaz’s most important duty, testifying instead that Diaz had a
“series of important responsibilities” and that he could not say “which one comes
ahead of the other” because “[t]hey are all important.”
Diaz also claims that according to his supervisor’s testimony, Diaz did not
make the final decisions regarding hiring and termination, marketing and billing,
but that the store manager did. However, Diaz admitted in his deposition that he
would make recommendations to the store manager as to hiring and firing
decisions, and would conduct the first interview of applicants. In addition, Diaz
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admitted that he was “in charge” of the restaurant for the majority of his shifts,
except for the few hours that the store manager was present per day. We thus find
no merit to Diaz’s arguments, and for the reasons stated by the district court, hold
that Oney established as a matter of law the second factor of the executive
exemption test -- that is, that Diaz’s “primary duty” was the management of the
restaurants where he worked.
As for the third factor, Diaz asserts that the defendants have not established
that he customarily directed the work of two or more employees, because
“directing” delivery drivers is not a managerial task. But Diaz cites nothing in
support of this assertion, and moreover, admitted in his deposition that in addition
to the drivers, there were often other employees working in the restaurant under his
supervision. Diaz also claims that Oney failed to give a clear breakdown of the
hours worked by Diaz and other overlapping employees for purposes of the
Department of Labor’s “80-hour rule” -- which provides that supervising two full-
time employees is the equivalent of 80 hours of direction of subordinate work per
week. See 29 C.F.R. § 541.104(a); Wage & Hour Div., U.S. Dep’t of Labor, Field
Operations Handbook ¶ 22c00. Yet Oney submitted on summary judgment a
detailed affidavit providing the number of cumulative hours of work by other
employees that Diaz supervised without a store manager being present, showing
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that Diaz met or exceeded 80 hours of supervisory work per week in at least 45 of
the 52 applicable weeks (or 86%) -- which is more than sufficient to show that
Diaz customarily and regularly directed the supervision of two or more employees.
See 29 C.F.R. § 541.701 (“The phrase ‘customarily and regularly’ means a
frequency that must be greater than occasional but which, of course, may be less
than constant.”). Diaz does not in any way specify how this submission was
insufficient. We are therefore unpersuaded by these arguments, and for the reasons
stated by the district court, hold that Oney established as a matter of law the third
factor of the executive exemption test -- that is, that Diaz customarily and regularly
directed the work of two or more other employees.
On this record, we discern no error in the district court’s conclusion that
Oney met as a matter of law the four prongs of the “executive exemption” test.
Based on the district court’s well-reasoned order, in which the district court applied
controlling Circuit precedent and federal law, and addressed every argument raised
by Diaz in this appeal, we affirm the order of summary judgment in favor of
Oney.2
AFFIRMED.
2
Diaz does not challenge on appeal the district court’s conclusion that defendant
Elizabeth A. Oney is not an “employer” under the FLSA, and we therefore do not review this
issue on appeal. See Greenbriar, 881 F.2d at 1573 n.6.
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