UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 98-60558
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Melissa Lott
Plaintiff-Appellant-Cross-Appellee,
v.
Howard Wilson Chrysler-Plymouth, Inc.,
Defendant-Appellee-Cross-Appellant.
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Appeals from the United States District Court
for the Southern District of Mississippi
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February 2, 2000
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
BACKGROUND
On August 19, 1997, Melissa Lott filed suit in the Circuit Court of the First Judicial
District of Hinds County, Mississippi, against Howard Wilson Chrysler-Plymouth, Inc. (“Howard
Wilson”), seeking overtime compensation under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201-219, as amended, for hours worked in excess of the 40 hour regular workweek
during her three-year employment as Office Manager at Howard Wilson. On September 29,
1997, Howard Wilson removed this action to the United States District Court for the Southern
District of Mississippi and filed a Motion for Summary Judgment, arguing that Ms. Lott was an
exempt employee under 29 U.S.C. § 213(a)(1). Howard Wilson asserted that Ms. Lott was, at all
times, employed in a bona fide executive, administrative and/or professional capacity, and as such
was not entitled to recover overtime under the FLSA. Ms. Lott filed a Cross Motion for Partial
Summary Judgment, responding that she did not work at Howard Wilson in a bona fide executive,
administrative or professional capacity, and thus was not exempt from the overtime provisions of
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the FLSA.
The district court granted Ms. Lott’s Cross Motion for Partial Summary Judgment, finding
Ms. Lott ineligible for the FLSA’s overtime exemptions under 29 U.S.C. § 213 (a)(1) for
employees working in a bona fide executive or professional capacity, as defined by the Secretary
of Labor at 29 C.F.R. § 541, et. seq. However, the district court granted Howard Wilson’s
Motion for Summary Judgment, holding that Ms. Lott was employed in an administrative
capacity1 and thus exempt from 29 U.S.C. § 207(a)(1)’s requirement of overtime compensation
for employment in excess of 40 hours. The district court thus dismissed Ms. Lott’s claims for
overtime compensation as a matter of law. This appeal followed.
In July of 1993, Ms. Lott interviewed with Alan Wilson, the owner, President and General
Manager of Howard Wilson for a position as the Office Manager at Howard Wilson. Ms. Lott
lacked prior work experience in the field of accounting particular to an automobile dealership, yet
she graduated from a four-year college with a degree in business administration, obtained a
Certified Public Accountancy certificate and worked in the field of auditing and accounting. Ms.
Lott notes that, although she was a certified public accountant, the nature of her duties never rose
to the level of skill, education and training required for an actual accountant.2 Alan Wilson hired
Ms. Lott as Office Manager on August 1, 1993, with the understanding that she would be
required to work on Saturdays and that she would receive an annual salary of $2,500.00/month or
$30,000/year, regardless of the hours worked in excess of the typical 40 hour workweek. In
addition to benefits provided to all Howard Wilson employees, Ms. Lott also received health
insurance, life insurance in an amount equivalent to her annual salary and a fully maintained
company vehicle.
As part of her employment, Ms. Lott exercised autonomy and independent judgment. She
1
Id.
2
Ms. Lott observes that neither her predecessor nor her successor were accountants and that
Howard Wilson employed a firm of outside accountants to oversee the bookkeeping work
performed by Ms. Lott.
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had discretion over her work schedule in that her arrival time in the morning, her lunch break in
the afternoon, and her departure time in the evening were her choice. She could take an
additional fifteen minutes beyond the typical one hour lunch or leave for the day early if, for
example she had a doctor’s appointment or some other personal reasons, without ever receiving a
reduction in salary to compensate for any time missed out of the regular 40-hour workweek.
Similarly, Ms. Lott was allowed one full week’s vacation, which she could take in whatever
intervals and at whatever time she chose to do so depending upon her work schedule.
As Office Manager, Ms. Lott was charged with several responsibilities. These duties
included preparing state tax returns, monthly workman’s compensation returns, monthly state
withholding returns, weekly payroll tax deposits, quarterly payroll tax returns, quarterly tax
estimates (state and federal), monthly 401k reports to administrator, updates of employee
information relative to processing payrolls, and monthly financial statements. She also prepared
monthly bank reconciliations for Chrysler Financial Corp., Deposit Guaranty National Bank,
Trustmark National Bank and Union Planters Bank.
Ms. Lott also exercised discretion as supervisor of four other employees who worked with
her and had the authority to reprimand the employees, evaluate their job performance and conduct
each employee’s annual evaluation. Although Ms. Lott, like all other Howard Wilson managers,
could not hire new employees, fire existing employees or increase employees’ salaries without
first obtaining Mr. Wilson’s approval, Mr. Wilson, in making decisions, relied on Ms. Lott’s
suggestions and recommendations as to hiring and firing, as to advancement and promotion, or
any other change of status of the employees whom she supervised. Ms. Lott asserts that her role
as supervisor was minor and that her work primarily revolved around other duties.
After taking an extended leave from Howard Wilson pursuant to the Family Medical
Leave Act, Ms. Lott terminated her employment as Office Manager at Howard Wilson. When she
terminated her employment, her annual salary was $44,000.00 per year or $1850.00 bi-weekly.
Soon after the end of her employment, Ms. Lott initiated the instant suit for overtime that she
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alleges Howard Wilson owes to her under the FLSA.
ANALYSIS
A. Standard of Review
The district court below decided the instant case on cross-motions for summary judgment.
Courts of Appeals review summary judgments de novo, applying the same standard as the district
court. Duffy v. Leading Edge Prods. Inc., 44 F.3d 308, 312 (5th Cir. 1995); Fed.R.Civ.P. 56.
This Court reviews the record independently, makes any factual inferences in favor of the
nonmovant, and then asks whether the movant is entitled to judgment as a matter of law. Degan
v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir. 1989).
The decision whether an employee is exempt from the FLSA’s overtime compensation
provisions under 29 U.S.C. § 213(a)(1), is primarily a question of fact which must be reviewed
under the clearly erroneous standard. Smith v. City of Jackson, Mississippi, 954 F.2d 296, 298
(5th Cir. 1992) (citing Blackmon v. Brookshire Grocery Co., 835 F.2d 1135, 1137 (5th Cir. 1988)
(quoting Cobb v. Finest Foods, Inc., 755 F.2d 1148 (5th Cir. 1985))). However, the ultimate
decision whether the employee is exempt from the FLSA’s overtime compensation provisions is a
questions of law. Dalheim v. KDFW-TV, 918 F.2d 1220 (5th Cir. 1990).
B. Administrative Exemption
The FLSA requires employers to pay overtime compensation to employees who work
more than 40 hours per regular workweek. 29 U.S.C. § 207 (Supp. 1995). However, the FLSA
excludes from this requirement those employees working in a bona fide executive, administrative
or professional capacity. 29 U.S.C. § 213 (a)(1); Dalheim, 918 F.2d at 1224; Copper v. Drexel
Chemical Company, 949 F.Supp. 1275, 1280 (N.D.Miss. 1996). In deciding whether an
employee is exempt under 29 U.S.C. § 213 (a)(1), this Court first asserts findings of historical
fact, which include such findings as whether the employer controlled the number of hours the
employee worked. Dalheim, at 1226. Second, this Court must make inferences from the facts in
applying the regulations and interpretations promulgated under 29 U.S.C. § 213 (a)(1). Lastly,
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the district court must make the ultimate determination of whether an employee was exempt. Id.
Under 29 C.F.R. § 541.0, et seq., the Secretary of Labor has defined the terms executive,
administrative, and professional, by setting out “long” tests for employees earning more than $155
per week but less than $250 per week, and “short” tests for employees earning more than $250
per week. Dalheim at 1224. An administrative employee is an employee whose primary duty
consists of office or nonmanual work directly related to management policies or general business
operations for the employer or the employer’s customers, which includes work requiring the
exercise of discretion and independent judgment. 29 C.F.R. §§ 541.2 (e)(2), 541.2 (e)(1).
The exercise of discretion and independent judgment necessitates consideration and
evaluation of alternative courses of conduct and taking action or making a decision after the
various possibilities have been considered. 29 C.F.R. § 541.207 (a). This exercise of discretion
and independent judgment must relate to matters of consequence. 29 C.F.R. § 541.207 (b)-(c)(1).
Final decision making authority over matters of consequence is unnecessary. See Reich v. John
Alden Life Ins. Co., 126 F.3d 1, 13 (1st Cir. 1997); see also Dymond v. United States Postal
Serv., 670 F.2d 93, 96 (8th Cir. 1982).
As a general rule, an employee’s “primary duty” involves over 50% of the employee’s
work time. And yet, flexibility is appropriate when applying this rule, depending on the
importance of the managerial duties as compared with other duties, frequency of exercise of
discretionary power, freedom from supervision, and comparative wages. Smith v. City of
Jackson, 954 F.2d 296, 299 (5th Cir. 1992) (citing 29 C.F.R. 541.103).
Ms. Lott’s primary responsibilities consisted of office work directly related to the general
business operations of Howard Wilson and requiring the exercise of discretion and independent
judgment. Ms. Lott was responsible for the preparation of all payrolls, monthly sales tax returns,
monthly workers’ compensation returns, monthly state withholding returns, quarterly payroll tax
returns, quarterly state and federal tax estimates, state unemployment returns, the reconciliation of
several bank statements and month-end financial statements. Ms. Lott exercised discretion and
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independent judgment with regard to when such returns, reports and other statements were
generated. Ms. Lott concedes that she was allowed to exercise discretion with respect to
scheduling tasks so as to complete them by a given deadline.
Ms. Lott’s duties also included the supervision of four office employees. Plaintiff’s
supervisory duties included the coordination of the work of the other employees within the office,
the discipline of employees, evaluation of the employees’ job performance, conducting of
employees’ annual performance reviews, making recommendations to Mr. Wilson regarding the
hiring of new employees and discharge of present employees, as well as supervising the
orientation and training of new office employees. These responsibilities constitute “nonmanual
work directly related to management policies” of Howard Wilson, which require the exercise of
discretion and independent judgment.
Ms. Lott argues that making non-binding recommendations concerning personnel matters,
only constituted a minimal part of her duties. However, even assuming that the majority of Ms.
Lott’s time was not spent on the management of her employees, such a finding does not preclude
the determination that Ms. Lott’s primary duties consisted of the administration of the general
business operations of Howard Wilson, such that the administrative and supervisory duties
performed by Ms. Lott were of principal importance to Howard Wilson, as opposed to those
collateral tasks which may have taken more than fifty percent of her time. Spinden v. GS Roofing
Products Company, Inc., 94 F.3d 421, 427 (8th Cir. 1996) (quoting Reich v. Wyoming, 993 F.2d
739, 742 (10th Cir. 1993)).
The mere discretion of when to perform clerical tasks is not the “discretion and
independent judgment” contemplated under 29 C.F.R. § 541.1(f). See 29 C.F.R. § 541.207(b)-
(c)(1). However, the facts establish that, notwithstanding the amount of time Ms. Lott performed
bookkeeping and clerical work, her primary duties directly related to and were important to both
Howard Wilson’s management policies and its general business operations, and required the
exercise of discretion and independent judgment. Therefore, based on the evidence of Ms. Lott’s
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administrative duties, the district court’s ultimate legal conclusion that Ms. Lott qualifies for the
administrative exemption was correct.
C. Executive Exemption
On appeal, Howard Wilson challenges the district court’s finding that Ms. Lott does not
satisfy the executive exemption to the FSLA’s overtime provisions. The short test for the
executive exemption, consistently applied by the Fifth Circuit, requires the employer to prove (1)
that the employee was compensated on a salary basis of not less than $250 per week, (2) that the
employee was primarily responsible for the management of a customarily recognized department
or subdivision thereof, and (3) that the employee customarily and regularly directed the work of
two more employees, 29 C.F.R. § 541.1(f); Cooper, supra; York v. City of Wichita Falls, Texas,
944 F.2d 236 241-242 (5th Cir. 1991) (citing Abshire v. County of Kern, 908 F.2d 483 (9th Cir.
1990), cert. denied, 111 S.Ct. 785, 112 L.Ed.2d 848 (1991)); Dalheim, 918 F.2d at 1224-1225.
The district court correctly determined that Ms. Lott does not qualify for the executive
exemption to the FSLA’s overtime provision. The facts indicate that Ms. Lott was compensated
on a salary basis and that Howard Wilson did not control the number of hours she worked.
However, it is unclear that Ms. Lott’s “primary duty” was management of the office. Although
Howard Wilson provides evidence of Ms. Lott’s administrative and supervisory duties that, when
considered together, are sufficient to make her eligible for the administrative exemption, she is not
covered by the executive exemption. Howard Wilson has failed to show that Ms. Lott’s primary
responsibilities were training, supervising, disciplining, and evaluating employees. See §
541.102(b). Even though Ms. Lott customarily and regularly directed the work of two more
employees, and exercised substantial supervisory functions, managing employees in the sense
contemplated by the statute did not constitute Ms. Lott’s prime job duty. Therefore, the district
court properly found that the executive exemption does not apply to Ms. Lott.
CONCLUSION
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Accordingly, we AFFIRM the district court’s granting of Ms. Lott’s Cross Motion for
Partial Summary Judgment to the extent it found Ms. Lott ineligible for the FLSA’s overtime
exemptions under 29 U.S.C. § 213 (a)(1) for employees working in a bona fide executive
capacity, as defined by the Secretary of Labor at 29 C.F.R. § 541, et. seq. We further AFFIRM
the district court’s granting of Howard Wilson’s Motion for Summary Judgment on the grounds
that Ms. Lott was employed in an administrative capacity and thus exempt from 29 U.S.C. §
207(a)(1)’s requirement of overtime compensation for employment in excess of 40 hours. Ms.
Lott’s claims are dismissed with prejudice