Royster v. Food Lion Inc ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: FOOD LION, INCORPORATED, FAIR
LABOR STANDARDS ACT "EFFECTIVE
SCHEDULING" LITIGATION
JEFFREY L. ROYSTER; DANIEL BAKER;
CLARENCE L. ALSTON; CHARLES V.
STRICKLAND, JR.; RON MURCHISON;
LARRY BRITT; CARL WILLIAMS; TRUMAN
SURLES; TIM LAYDEN; KIM PIPPA;
JEFFREY BARNES; GLENN JOHNSON; STEVE
TWIDDY; LARRY RILEY; WAYNE NEIL
HAND, JR.; MICHAEL ALPHIN;
HARVEY KEITH MATTHEWS; TERRY N.
CONNER; JAMES E. DANIELS; BILLY
MADDOX; RUSSELL THOMAS; JONATHAN
No. 94-2360
ANDERSON; WOODROW BREEDEN; AARON
NORRIS; JAMES GRUBER; REGINALD
ASHFORD; CLINTON E. BLOYER, III;
RICKY COLTREN; BILLY RAY COLLINS;
WILLIAM DALE FITZGERALD;
ROBIN DALE STEWART; STEPHEN A.
WILLIAMS; REGINALD GILL; LESTER
BRITT,
Appellants,
and
TERRY W. MCLAWHON, on behalf of
himself and all others similarly
situated; KEITH LAMONT PERRY, on
behalf of himself and all others
similarly situated; RONALD GRANNIS;
BOSTON D. MCCORNELL; RANDY E.
JONES; TIMOTHY E. PEELE; ANDY
CZUBAI; CHRISTOPHER AYDEN SURLES;
KELLY E. QUINN; JAMES L. ROYAL;
FRANCIS D. CARPENTER; GREGORY TODD
RING; LESTER JEROME MITCHELL;
RODNEY M. RAMSEY; WILLIAM RICHARD
HAMM; BILLY M. PARSON;
WOODROW CARROLL, JR.; BOBBY
GLYMPH; KEVIN CARR; BRAD CLARK;
BILLY WILLIAMS,
Plaintiffs,
v.
FOOD LION, INCORPORATED,
Defendant-Appellee.
In Re: FOOD LION, INCORPORATED, FAIR
LABOR STANDARDS ACT "EFFECTIVE
SCHEDULING" LITIGATION
RICKIE PRINGLE; CARLOS BRYANT;
BRUCE A. CLARK; STEVEN HARVEY,
Plaintiffs-Appellants,
and
No. 97-1443
RICHARD BISHOP; RONNIE HAWKINS;
QUENTIN SMALLS; LARRY BARNER;
RAYMOND BECKHAM; DAVID BENFIELD;
LARRY BLAND; WENDELL BROWN;
RONALD FELDER; KEN GALLMAN;
JONATHAN JOY; HENRY LONG; HOMER
MEANS; MELVIN MONTGOMERY; LARRY
PURVIS; S. JIM ROBISON; ANTHONY
2
SCOTT; DELORES SNELGROVE; JACK
WEATHERFORD, JR.; CLYDE ASH, III;
HEIDI BLECKLEY; JAMES "JIM" CRIBB;
MAX HERRON; RICCI HOSKINS; KATHLEEN
WEATHERSBY; ROBERT WILLETT, JR.;
ROBERT BECKHAM; JIMMIE BLACKBURN;
BRENDA BYRD; KENNETH CAPPS; LESLIE
CLIFTON, III; HERMAN CURRENCE, III;
DARREN DIEDRICH; DELORES EDWARDS;
ERNEST EVANS; KENNETH GADDIST, JR.;
BARRY HANNA; PATRICK J. KARLE, JR.;
DAVID MCAULEY; DON MCCLARY;
JAMES MCMANUS; ANTHONY MEFFORD;
STUART MOKOWSKI; MICHAEL PRICE;
ROBERT RAND; KENNETH REDMON;
HAROLD RIDGEWAY; EDWARD ROBL;
JAMES SCOTT; MITCHELL SHEPARD;
BOOKER SMITH; CHERYL SMITH;
THURSTON SMITH; DONNA K. SPIVEY;
JOE C. SPIVEY; STEVEN SWANN;
CHARLES TAYLOR; NOEL N. THOMPSON;
BRETT TURNER; JOHN UPDIKE; JACKIE
WELCH; HAROLD H. WILSON, JR.;
HERBERT WRIGHT, JR.; TYRONE WRIGHT;
VICTOR YOUNG, III; JOHN G. RICE;
STEVEN B. SCOTT; JERRY W.
MACKELDON; DORIS JEAN HARRIS;
WILLIE JOE REDMOND; DARREN L.
JONES; JOHNNY R. ADAMS; THOMAS C.
ENGLISH, JR.; LLOYD S. MESSINA;
JAMES ALBERT ASHLEY; BOBBIE RAY
WEED; DAVID L. JOHNSON; WILLIAM J.
GOFF; WILLIAM A. CARTER; RANDY K.
BENTON; MARY B. JORDAN; RONALD E.
CARRIGG; RICHARD ALAN BISHOP;
GATLIN CLIFTON CRIBB; JULIAN M.
RAMSUE; THADDIEUS J. DULEY;
3
ROBERT JOHN EDWARDS; JAY CORBETT;
GEORGIA LYNCH; JAMES HOGUE,
Plaintiffs,
v.
FOOD LION, INCORPORATED,
Defendant-Appellee.
In Re: FOOD LION, INCORPORATED, FAIR
LABOR STANDARDS ACT "EFFECTIVE
SCHEDULING" LITIGATION
JOHN GORE; WAYNE LOSCO; ALAN
O'NEAL; ALLAN SEIDL,
Plaintiffs-Appellants,
and
KERRY BUSHER; DOROTHY KAELIN;
JAMES HALL; JACOB HENDERON; MERRY
BURDEN; WILLIAM COLLINS; JOSEPH
No. 97-1444
FENDICK; STEPHEN JANOSICK; ARNOLD
LIVERMAN; JOHN O'LOUGHLIN;
RONALD J. ROLLO; HENRY WAYNE
CUMBESS; DAVID LECLAIRE; BRUCE
USERY; JOHN TIMMONS; ERNEST RAY
KING; DWAYNE KING; CHARLIE BOYD;
MARGIE HOLDEN; JOHN CUMBESS;
BARNEY RICK SMITH; KIMBERLY
LANTRIP; RICKY BEARD; ROY AUSTIN;
LOIS M. FOSTER; KELLY FROESE;
STEPHEN LENNON,
Plaintiffs,
4
v.
FOOD LION, INCORPORATED,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CA-91-133-4-F, MISC-92-198-5-F, CA-92-827-5-F,
CA-92-717-5-F)
In Re: FOOD LION, INCORPORATED, FAIR
LABOR STANDARDS ACT "EFFECTIVE
SCHEDULING" LITIGATION
DONALD T. LEDFORD; J. MICHAEL
OAKES, MICHAEL CARDOZA; R. CHUCK
VILLARREAL, JR.; ROY SARTER; LARRY
WORLEY; TOMMY ARRINGTON; BILLY
BAKER; CHERYL BORN; DANNY BUCKNER;
ROBERT CALLOWAY; DONA CATLIN; KIM
CAUDILL; JOSEPH COCKERHAM; MICHAEL
No. 94-2645
COFFEY; FELECIA COLEMAN; ROBERT
DALY; JAMES DARROW; CHRISTOPHER
DUNHAM; RHONDA DUPREE; ROBERT
DYER; FRANK EASON; RHONDA ENGLAND;
PAUL ERB; RICHARD FAWLKES; CHRIS
FRENCH; RICHARD P. HENSLEY;
ROGER ALLEN HILL; RICKEY HINSON;
TERRY HORTON; PATRICIA HOYLE;
CHRISTOPHER JOLLY; ALECIA JONES;
WILLIAM JOYCE; WELDON JUNGE; MONTY
LEE; PAUL LUCAS; SCOTT MATTOX;
5
KEVIN O'BRIANT; GARY O'NEAL; KIM
PAIVA; VICTOR PRONIER; RUSSELL
RAMSEY; JOE REED; ELVA JEAN RILEY;
SAMUEL SHERRIN; MARLIN SHUFORD;
RONALD STURGILL; JOSEPH SULTON; RICK
TRAVIS; LESLIE TUCKER; DEREK WHITE;
WARREN WHITE; TERRY WHITMIRE;
GARY WOODS; BURNELL G. WRIGHT,
Plaintiffs-Appellants,
v.
FOOD LION, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
James C. Fox, District Judge, sitting by designation;
J. Toliver Davis, Magistrate Judge.
(CA-91-184, MISC-92-198-5-F, CA-92-185-5-F)
In Re: FOOD LION, INCORPORATED, FAIR
LABOR STANDARDS ACT "EFFECTIVE
SCHEDULING" LITIGATION
C. MARSHALL HOLLAND, JR.;
CHARLES LEE SMITH;
WALTER CRAWFORD THOMAS, JR.;
No. 95-1274
WILLIAM BRIAN BAREFOOT; TONYA Y.
BROWN; ROSA BOND; EARNEST A.
BRYANT; WAYNE JAY COCHRAN;
WILLIAM A. COOKE; JEFFREY J.
GOERMAN; KEITH HARRIS; CHARLES S.
KNOWLES; FAYE LEE; JOHN M. LYNCH;
VERNON W. MENIFEE; BRUCE E. POPE;
6
BOBBY A. ROBERTSON; WARREN D.
ROMAN; KEITH W. TINGEN; HASKELL
TURNER,
Plaintiffs-Appellants,
and
DARRYL ELLIS; DEBBIE GARDNER; ERIN
RICE; KENNETH W. COOPER; ALAN E.
ERETT; DANNY LEEANDER PERSON;
JOE WILLIAM BAKER; PETER M. SLOKA,
SR.; JOHNNY ANDREW PUNCH, III;
ESTER M. WOODS; FRED MCMILLAN;
ISSAC RAY PACK; ALEXANDER J. SMITH;
STEVE J. KIRSCH; MARILYN S. WILSON;
VICKI ANN WOOD; PHILLIP LARRY
OLDHAM; TERRY A. YOUNG;
RICHARD W. MCDONALD; MICHAEL
WRENN; STEPHEN G. PARRISH;
RANDALL LEE RIGSBEE; DELORES EARP;
WILLIAM P. HASKINS; W. EDWARD
CAMPBELL; JOHN L. WALLACE;
CRAIG WILSON PRESSLEY; STAN M.
GRIFFIN; MARY PEEPLES; DAVID G.
MYERS; RANDY LAKE;
KENNETH RANDALL COOPER;
WOODROW WILLIAMS, JR.; ERIN RICE
ALBRIGHT; LEISHA BAYNARD; STEPHAN
PARRISH,
Plaintiffs,
v.
FOOD LION, INCORPORATED,
Defendant-Appellee.
7
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge;
James C. Fox, District Judge, sitting by designation.
(MISC-92-198-5-F, CA-92-503-2)
Argued: January 30, 1998
Decided: June 4, 1998
Before WILKINSON, Chief Judge, BUTZNER,
Senior Circuit Judge, and MICHAEL,
Senior United States District Judge for the
Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion. Senior Judge Butzner
wrote a concurring and dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Jeffrey Todd Eddy, NESS, MOTLEY, LOADHOLDT,
RICHARDSON & POOLE, Charleston, South Carolina, for Appel-
lants. William Pinkney Herbert Cary, BROOKS, PIERCE, MCLEN-
DON, HUMPHREY & LEONARD, L.L.P., Greensboro, North
Carolina, for Appellee. ON BRIEF: John C. Davis, Kent Spriggs,
SPRIGGS & JOHNSON, Tallahassee, Florida, for Appellants. James
T. Williams, Jr., M. Daniel McGinn, BROOKS, PIERCE, MCLEN-
DON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
8
OPINION
PER CURIAM:
In this case we consider appeals from the district court's grant of
partial summary judgment in favor of an employer and dismissal of
the consolidated Fair Labor Standards Act overtime pay claims of
numerous of the employer's salaried and hourly wage employees. For
the reasons stated herein, we affirm the district court.
I.
In a previous opinion, In re Food Lion, Inc., Fair Labor Standards
Act "Effective Scheduling" Litigation, 73 F.3d 528 (4th Cir. 1996)
(published) (Hall, J.) (Butzner, J., dissenting), we recited the factual
and procedural background of this case. This second narration is
taken, almost verbatim, from our earlier opinion.
Beginning in 1991, several small groups of employees and former
employees of Food Lion, Inc. ("Food Lion"), filed civil actions in
Federal courts in a number of southern States in which Food Lion
owns and operates grocery stores. In each of these actions, the plain-
tiffs asserted claims for unpaid overtime and penalties under the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Hourly
employees alleged that they were forced to work"off the clock" in
order to finish the tasks for which they were responsible under Food
Lion's company-wide scheduling system, and several assistant man-
agers claimed that they were not exempt from FLSA's overtime pro-
visions because the tasks they performed did not qualify as
"managerial."
On June 13, 1992, the Judicial Panel on Multidistrict Litigation
("JPML" or "Panel") issued an order transferring two of these actions,
one from the District of South Carolina (Scott ) and the other from the
Western District of North Carolina (Ledford), to the Eastern District
of North Carolina for "coordinated or consolidated pretrial
proceedings"1 with another action then pending there (McLawhon); all
_________________________________________________________________
1 28 U.S.C. § 1407(a).
9
of the cases assigned to Judge Fox. The Panel thereafter transferred
six tag-along cases2 over the next five months. Judge Fox eventually
had eleven separate actions before him.3
In October 1992, court-approved notices were sent to some 60,000
current and former Food Lion employees who had worked in stores
in North Carolina, South Carolina, Florida, Georgia, Virginia, or Ten-
nessee after October 16, 1989.4 Almost one thousand of these
employees (including the named plaintiffs in the eleven separate
actions) opted into the litigation by returning"consent forms," and
each employee returning a consent form was assigned a "court num-
ber." A master file was created in a consolidated case denominated In
re: Food Lion, Inc., Fair Labor Standards Act "Effective Scheduling"
Litigation, and each "opt-in" plaintiff was assigned to one of the indi-
vidual cases.
In a series of pretrial orders, Judge Fox dismissed the claims of
about half of the plaintiffs on summary judgment. On March 22,
1994, a "suggestion of remand"5 was filed by the district court and
forwarded to the Panel. On June 2, 1994, the Panel remanded eight
of the actions to their respective transferor courts.6
After remand, one of the two cases remaining in the Eastern Dis-
trict of North Carolina was completed, and an appeal was taken by a
number of the plaintiffs whose claims had been dismissed by sum-
mary judgment during the consolidated pretrial proceedings (the
_________________________________________________________________
2 See R.Proc.J.P.M.L. 1.
3 In addition to two cases filed in his district, Judge Fox had before him
a case from each of the other two districts in North Carolina, three from
South Carolina, one from the Eastern District of Virginia, two from the
Eastern District of Tennessee, and one from the Northern District of
Florida. Although the Virginia case arrived in Judge Fox's court via a
transfer of venue entered by the district court in Virginia pursuant to 28
U.S.C. § 1404(a), it was consolidated with the other transferred cases for
pretrial matters and treated as if it were a § 1407 case.
4 The limitations period for filing overtime claims is three years for
willful violations by an employer. 29 U.S.C. § 255(a).
5 See R.Proc.J.P.M.L. 14(c)(ii).
6 The Virginia case was retransferred by an order entered by Judge Fox.
10
Royster appeal). At about the same time, some of the plaintiffs who
had met a similar fate in Judge Fox's court, but who were part of
cases from one of the two other districts in North Carolina, asked for
and received Fed.R.Civ.P. 54(b) certifications for immediate appeal
from the respective transferor district courts. These two appeals were
consolidated with the Royster appeal, and we heard oral argument on
October 30, 1995.
In our published opinion thereafter, we declined to reach the merits
reasoning:
Because there are numerous other plaintiffs who have not
yet appealed but who were dismissed by the same district
court on essentially the same grounds as one or more of the
appellants, we believe that 28 U.S.C. § 1407, the multidis-
trict litigation statute, requires that the other dismissed
plaintiffs have the opportunity to join in the appeals before
us.
In re Food Lion, Inc., Fair Labor Standards Act"Effective Schedul-
ing" Litigation, 73 F.3d at 530. Accordingly, we first held in abeyance
the then-pending appeals from the three North Carolina districts. Sec-
ond, we directed the Panel to retransfer from the District of South
Carolina, the Northern District of Florida, and the Eastern District of
Tennessee to the Eastern District of North Carolina those claims that
were dismissed by Judge Fox prior to the June 20, 1994 remand by
the Panel. Finally, we ordered the district court for the Eastern Dis-
trict of North Carolina, after retransfer, to enter final judgment as to
all such claims, pursuant to Fed.R.Civ.P. 54(b) and to allow any
appeals taken pursuant to such certifications to be heard in this court.
Id. at 533.
After our remand and the entry of final judgments by the Eastern
District of North Carolina in March 1997, seventy-one plaintiffs from
two cases originally filed in the District of South Carolina and eight
plaintiffs from the case originally filed in the Northern District of
Florida took appeals which were consolidated with the earlier Royster
appellants by Order of this court on April 22, 1997. We now reach
the merits of all appeals.
11
II. THE FAIR LABOR STANDARDS ACT
Section 7(a)(1) of the FLSA, 29 U.S.C. § 207(a)(1), requires
employers to pay employees time-and-a-half wages for hours worked
over forty (40) hours per week. As the statute reads:
Except as otherwise provided in this section, no employer
shall employ any of his employees who in any workweek is
engaged in commerce or in the production of goods for
commerce, or is employed in an enterprise engaged in com-
merce or in the production of goods for commerce, for a
workweek longer than forty hours unless such employee
receives compensation for his employment in excess of the
hours above specified at a rate not less than one and one-
half times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1) (West 1965 & Supp. 1997).
The plaintiffs' class alleged dual claims under the FLSA against
Food Lion. First, certain salaried assistant managers of the employer
charged that they were not exempt from the overtime pay provisions
of the FLSA by virtue either of their salaried or managerial status and,
second, certain hourly employees alleged that they worked "off the
clock" and, thereby, were entitled to overtime compensation under the
statute.
A. The Bona Fide Executive Exemption
The court below entered partial summary judgment against numer-
ous salaried assistant managers at Food Lion by Orders of October 27,
1993 and November 5, 1993.
Under the FLSA, certain categories of employment are exempt
from the statute's otherwise mandatory overtime provision. One such
exemption, the "bona fide executive" exemption, provides:
The provisions of section 206 . . . and section 207 of this
title shall not apply with respect to . . . any employee
employed in a bona fide executive, administrative, or pro-
12
fessional capacity . . . (as such terms are defined and delim-
ited from time to time by regulations of the Secretary. . . .)
29 U.S.C. § 213(a)(1) (West 1965 & Supp. 1997). Department of
Labor regulations carefully define that which constitutes employment
in an executive or administrative capacity. Two elements are required
for that exemption. First, an employee must be paid"on a salary
basis." 29 C.F.R. §§ 541.1(f), 541.2(e), 541.118(a) (1997). The regu-
lations define payment "on a salary basis" as follows:
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 basis, 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 work performed. . . . [T]he
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) (1997). Second, an employee's primary duty
must be either management, administration, or a combination of both.
Id. §§ 541.1(f), 541.2(e), 541.600(a) (1997).
The regulations provide a "short test" and a"long test" for deter-
mining whether an employee's primary duty is management. See
Shockley v. City of Newport News, 997 F.2d 18, 25 (4th Cir. 1993);
Murray v. Stuckey's, Inc., 939 F.2d 614, 617 (8th Cir. 1991), cert.
denied, 502 U.S. 1073 (1992). The "short test" applies when the
employee in question makes more than $250 per week. 7 Under this
test:
_________________________________________________________________
7 The court below found and the parties agreed that all of the assistant
managers made more than $250 per week. Thus, the"long test" for the
bona fide executive exemption of 29 C.F.R. § 541.1(a)-(e) is inapplicable
here. Rather, the "short test" of § 29 C.F.R. 541.1(f) governs the inquiry.
13
[A]ny employee . . . [w]ho is compensated for his services
on a salary basis at a rate of not less than . . . $250 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 [the 29 U.S.C.
§ 213(a)(1) exemption].
29 C.F.R. § 541 (1997). As we have instructed previously:
Analysis of whether an employee's primary duty is manage-
ment begins with determining which of the employee's
duties involve management of a recognized department or
subdivision of the employer. As a "rule of thumb," the
employee must devote more than fifty percent of his time to
these duties. . . . Other pertinent factors, however, may indi-
cate that management is the employee's primary duty.
Among the factors to be considered are: (1) the relative
importance of the managerial duties as compared with other
types of duties, (2) the frequency with which the employee
exercises discretionary powers, (3) the employee's relative
freedom from supervision, and (4) the relationship between
the employee's salary and the wages paid other employees
for the kind of nonexempt work performed by the supervi-
sor.
Shockley, supra, 997 F.2d at 25-26 (citing 29 C.F.R. § 541.103(1992)).
Whether management duties constitute a primary job duty is deter-
mined on a case-by-case basis. 29 C.F.R. § 541.103 (1997). While
"[t]he 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[,] . . .[t]ime alone, however, is not the
sole test, and in situations where 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." Id.; Murray, supra, 939 F.2d at 618
14
(holding that time alone is not the sole test in determining whether the
primary duties of an employee were "management" and upholding
exemption even where employee spent a majority of time performing
non-exempt8 work). The quantitative fifty percent rule, in other
words, is, as the regulations state, only a "rule of thumb." 29 C.F.R.
§ 541.103 (1997).
Because Food Lion raised the bona fide executive exemption as an
affirmative defense to the assistant managers' FLSA claims, it had the
burden of proof on that issue. Clark v. J.M. Benson Co., 789 F.2d
282, 286 (4th Cir. 1986).9
B. Standards of Review
Whether a job duty qualifies as managerial or not is a legal ques-
tion "``governed by the pertinent regulations promulgated by the Wage
and Hour Administrator.'" Shockley, supra, 997 F.2d at 26 (quoting
Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)). On
the other hand, "the amount of time devoted to managerial duties, and
the significance of those duties, present factual questions that we
review for clear error." Id. (citing Fed.R.Civ.P. 52(a)) (other citations
omitted).
C. Assistant Managers' Claims
Food Lion moved for summary judgment on the ground that each
of the assistant managers met the bona fide executive exemption. In
support of the summary judgment motion, Food Lion offered the affi-
davit of the Vice-President of Grocery Operations, Charles C. Buck-
ley, and the store's assistant manager job description from the "Store
Operations Manual."10 In addition, the store offered individual assis-
_________________________________________________________________
8 "Non-exempt work" is work other than that which employees with
management duties perform; it is performed by hourly employees who
are not exempt from the overtime pay provisions of the FLSA. 29 C.F.R.
§ 541.111 (1997).
9 Under the FLSA, an employer must prove that any exemption to the
overtime provision applies. Proving the exemption is an affirmative
defense; the statute assumes that an employee is covered.
10 The Food Lion manual reads, in pertinent part:
JOB DESCRIPTION: ASSISTANT MANAGER
15
tant managers' depositions which showed that the job tasks they actu-
ally performed were consistent with the affidavit and job description.
According to Buckley's affidavit and the manual's job description,
assistant managers in each Food Lion store are primarily responsible
for the operation of the Grocery Department, a division of the store.
The Grocery Department accounts for some sixty-five percent of sales
floor space in the typical store and oversees the sale of all Food Lion
merchandise with the exceptions of produce, dairy, meat, frozen
foods, and delicatessen products. An assistant manager supervises a
Grocery Department manager, one or more full-time shelf "stockers,"
and numerous part-time stockers. A full-time stocker's maximum
weekly pay is eighty percent of an assistant manager's minimum
weekly salary. Among other duties, an assistant manager's duties
include hiring and training stockers, training the Grocery Department
manager, and evaluating the performance of other Grocery Depart-
ment employees. In the absence of a Food Lion store's manager, the
assistant manager is primarily responsible for overseeing the entire
store. The typical assistant manager works about half of the time
under such circumstances when the manager is absent. From 1986 to
1993, the lowest range for all the Food Lion assistant managers'
weekly salary was $390 per week. In addition to the Buckley affidavit
and job description, Food Lion also adduced evidence from individual
stores' assistant managers to show that their particular job duties were
consistent with those of the assistant manager position so described
in the affidavit and Food Lion manual.
The district court found that Food Lion met its initial burden of
producing evidence that the assistant managers met the managerial
_________________________________________________________________
JOB OBJECTIVE: To assist the Store Manager to see that the
Company customer service standards are met and to manage the
total store in compliance with the policies, standards, security
measures, and regulations of the Company.
AUTHORITY: Responsible for the total store in the absence of
the Store Manager. Directly responsible for supervision and
management of the Grocery Manager, the Scan Analyst, and
HBA Clerk.
16
exemption to the FLSA. The court also denied the assistant managers'
motion to strike the Buckley affidavit. The crux of these appeals by
the assistant managers, then, is whether in adducing the Buckley affi-
davit and job description, Food Lion failed to offer proof that each
individual assistant manager primarily performed actual managerial
work consistent with the 29 U.S.C. § 213(a)(1) exemption. Related to
this issue is the question of whether the court abused its discretion
when it refused to strike the Buckley affidavit. We address the issues
in reverse order.
1. Motion to Strike Affidavit
A district court's evidentiary rulings, including whether to strike an
affidavit, are reviewed for abuse of discretion. Evans v. Technologies
Applications & Service Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing
United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993), cert.
denied, 511 U.S. 1006 (1994)). Appellants argue that the affidavit
purports to state job duties of Food Lion assistant managers about
which the affiant lacked "personal knowledge," as required by
Fed.R.Civ.P. 56(e).11
As we stated in Evans, affidavits which accompany a summary
judgment motion must contain "admissible evidence and be based on
personal knowledge." Id. (citing Williams v. Griffin, 952 F.2d 820,
823 (4th Cir. 1991)). They must not be conclusory or based upon
hearsay. Id. (citing Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970,
975 (4th Cir. 1990); Maryland Highways Contractors Ass'n v.
Maryland, 933 F.2d 1246, 1252 (4th Cir.), cert. denied, 502 U.S. 939(1991)). In Evans, we affirmed the district court's decision to strike
portions of an affidavit filed in opposition to a summary judgment
motion in a sex and age employment discrimination case because:
_________________________________________________________________
11 Rule 56(e) reads, in pertinent part:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is compe-
tent to testify to the matters stated therein.
Fed.R.Civ.P. 56(e) (West 1998).
17
Several of the portions struck consisted of [the affiant's]
own unsupported assertions of . . . the abilities of her col-
leagues. Because, again, we generally consider self-serving
opinions without objective corroboration not significantly
probative, the decision to strike . . . was not improper.
Id. We stated further that "[t]he district court determined that [the
affiant], a low-level employee" would not have had access to the cor-
porate information about which she testified and, appropriately, struck
portions of her affidavit. Id. at 262 n.6.
Here, Vice-President Buckley, a high-level Food Lion employee,
had directly supervised the assistant managers for seven years at the
time he testified in specific detail in the affidavit about their job
duties. As well, the information about which he testified was corrobo-
rated in the Food Lion manual's assistant manager job description.
The Buckley affidavit met the requirements of Rule 56(e) in that it
was not conclusory, did not contradict the affiant's earlier sworn testi-
mony, and set forth specific facts of which the affiant had personal
knowledge, rather than mere generalities. See, e.g., Barwick v.
Celotex Corp., 736 F.2d 946, 960-61 (4th Cir. 1984). Because we
cannot find that the district court abused its discretion when it found
that the information recited in Buckley's affidavit derived from per-
sonal knowledge, we affirm the district court's Order of October 27,
1993 refusing to strike the affidavit.
2. The "Class Exemption"
Appellants assert that with the Buckley affidavit and job descrip-
tion, Food Lion only offered evidence of the job duties of a "hypo-
thetical" assistant manager. The assistant managers maintain that an
employer invoking the exemption from the overtime pay provisions
of the FLSA must come forward with evidence that each employee
actually performs exempt executive or managerial work, as claimed.
In support of the proposition that classwide exemptions12 are not per-
_________________________________________________________________
12 A "classwide exemption" exempts, in blanket-like fashion, an
employee of a particular job classification from the FLSA's overtime pay
provisions because of that employee's job's classification or title, irre-
spective of the facts of that employee's individual case.
18
missible under the FLSA, appellants cite Hodgson v. The Klages Coal
and Ice Co., 435 F.2d 377, 382 (6th Cir. 1970) ("An employer seek-
ing an exemption from the overtime requirements of the Act under 29
U.S.C. § 213(a)(1) must prove that each employee is entitled to the
exemption by plain and unmistakable evidence.") (citation omitted),
Mitchell v. Williams, 420 F.2d 67, 69 (8th Cir. 1969) ("[T]he
employer must prove that any particular employee meets every
requirement before the employee will be deprived of the protection of
the Act.") (citation omitted), and Brock v. Norman's Country Market,
Inc., 835 F.2d 823, 826 (11th Cir. 1988). Appellants argue that Food
Lion, by not offering evidence as to every individual assistant manag-
er's actual work duties, effectively sought and received a "class
exemption" for all assistant managers.
On this point, the appellants overlook two critical distinctions
between the valid authority they cite and the instant matter. First, in
addition to the Buckley affidavit and job description, here Food Lion
did offer particularized evidence in the form of numerous assistant
managers' depositions relating to their actual individual job duties, in
support of its summary judgment motions. Second, it must be remem-
bered that here appellants were proceeding collectively under the
FLSA, 29 U.S.C. § 216(b), and, as such, had been determined to be
"similarly situated" factually by the district court. Considering that the
instant matter was an FLSA class action, the authority cited by appel-
lants is distinguishable as no such case involved an FLSA collective
proceeding. By offering the affidavit, the job description, and individ-
ual assistant managers' deposition testimony, we hold that Food Lion,
not only met but exceeded its initial burden to come forth with evi-
dence that appellants fell within the bona fide executive exemption.
Such a holding is consistent with FLSA caselaw appellants invoke
concerning non-collective actions. In a case with a fact pattern similar
to the instant case's, an employer was deemed to have met its initial
burden of producing evidence in support of the exemption by adduc-
ing only an affidavit from its vice-president articulating the general
duties of its associate managers without a more particularized show-
ing at that early stage. Dole v. Papa Gino's of America, Inc., 712
F.Supp. 1038, 1040 (D.Mass. 1989).13
_________________________________________________________________
13 Additional proof that Food Lion did not seek a classwide exemption
is the fact that it did not move to dismiss every assistant manager claim.
See, e.g., Ronald Rollo, a Florida plaintiff. Rather, it acknowledged that
factual differences existed across the assistant managers' class.
19
Once Food Lion satisfied its initial burden to present evidence that
the assistant managers met the bona fide executive exemption, the
burden shifted to the assistant managers to offer evidence that they
were not exempt from the act. Similar to Food Lion's evidence, the
assistant managers made a "consolidated response" that included rep-
resentative affidavits from some, but not all, assistant managers. The
responsive affidavits stated that appellants remained covered under
the act, notwithstanding the exemption, because they performed man-
ual labor and other non-exempt duties and because the store manager
was usually in the store and in charge when they were working.
The district court found that numerous of the post-notice assistant
managers among the appellants had met their burden by presenting at
least some evidence that their actual job duties varied from those
recited in the Buckley affidavit and the manual's job description.14
For this reason, the court denied Food Lion's summary judgment
motion as to those assistant managers. The court, however, entered
summary judgment against the remaining assistant managers because
they did not rebut Food Lion's evidence and, thus, created no triable
issue of fact as to the duties of those assistant managers.
Appellants correctly state that the issue of "[w]hether employees
are exempt from the requirements of the [FLSA] is primarily a ques-
tion of fact." Klages Coal, supra, 435 F.2d at 382. While this is true,
the assistant who failed to attempt to rebut Buckley's affidavit and the
Food Lion manual's assistant manager job description did not create
a genuine issue of fact to survive summary judgment and send their
claims to a jury. Accordingly, the district court properly granted Food
Lion judgment as a matter of law and dismissed the claims of those
assistant managers who did not adduce any evidence to counter Food
Lion's evidence that appellants met the bona fide executive exemp-
tion.
_________________________________________________________________
14 These assistant managers used individual questionnaires, deposition
testimony, and affidavits to counter Food Lion's evidence about the
duties of assistant managers. The district court denied Food Lion's
motion for summary judgment as to these appellants because they came
forward with particularized evidence tending to rebut the Buckley affida-
vit and job description.
20
3. The Evidence of Managerial Duties
Assistant managers Rickie Pringle and Allan Seidl, Busher appel-
lants, did file responses to Food Lion's summary judgment motion.
They challenge the district court's grant of judgment as a matter of
law against them. They contend that they did not have primarily man-
agerial responsibilities at Food Lion and, thus, fell outside of the bona
fide executive exemption.
In his deposition, however, Pringle himself testified that he, along
with the store manager, was in charge of Food Lion's"effective
scheduling" program in the grocery department. He testified that dur-
ing about one-half of his working hours, he was in charge of the store
without the store manager. During those periods, he would handle
customer complaints, supervise the stockers, "keep an eye on the gro-
cery department," and recommend disciplinary actions. While Pringle
also typically performed non-exempt work during these same periods
when he was in charge of the store in the store manager's absence,
he did both the non-exempt work and the managerial work at the
same time.
Assistant manager Seidl also filed a declaration as part of the
appellants' consolidated response to Food Lion's summary judgment
motion. In it, he states that only five percent of his time was devoted
to managerial duties. Looking to the duties themselves, however, he
admits that he listened to employee complaints, verified deposits,
interviewed job candidates, wrote up employees for disciplinary prob-
lems, and supervised employees' work. Seidl states, however, that the
grocery manager and customer service manager also would be able to
perform such duties.
The evidence presented in the cases of the Royster appellants was
of a similar nature. When asked how often he worked in the store
without the manager, for example, assistant manager Oakes testified
that "most of the time we were there together." Oakes apparently
worked some fifty-eight hours per week. The store had three shifts,
and the manager came in on the three "truck days" per week at five
to six a.m. On those days, Oakes would close the store at ten p.m. and
work another few hours setting up displays (which itself is non-
exempt work). The two employees, then, overlapped only an hour or
21
two in the middle afternoon. Because one or the other employee had
to cover some 126 hours per week, the two could not have worked
together "most of the time." In any event, when Oakes was at the store
in the absence of the store manager, he clearly was in charge and per-
forming the store's "managerial duties" as that term is defined in the
employer's regulations. Oakes kept an eye on his store's various
departments, made sure people were working, and disciplined
employees from time to time.
In assistant manager Junge's case, for instance, he testified in depo-
sition that his and the store manager's work schedules overlapped
approximately six hours a day, five days a week, from noon until six
pm. In other words, given that Junge worked about sixty-five hours
per week, for about half the work week Junge was in complete
charge. Importantly, in terms of his managerial duties, he testified that
his actual job duties were the same as those of a typical assistant
described in the Food Lion manual. Junge dealt with customer com-
plaints, gave constructive advice to other employees, and, in the
absence of the manager, was in charge of the store.
The evidence as to the other Royster appellants, White, Lucas, Hol-
land, Smith, Erb, and Pronier, was materially similar. Each appellant
was in charge of the store in the absence of the store manager every
working week. Each appellant supervised the work of other employ-
ees while on duty. While in charge of the store, each appellant han-
dled complaints and problems in the store as they arose. Each
appellant possessed authority to discipline co-workers and make
employment decisions as to them.
Looking to the depositions of the various assistant managers, while
the individual assistant managers' actual duties differed somewhat
throughout the various stores, all were in charge to varying degrees
and for varying periods when the managers were absent. The appel-
lants were in sole command of the stores in which they worked about
half the time. Although time is not the sole factor, of course, it is rele-
vant to the determination that the appellants meet the managerial
exemption to the FLSA's overtime provisions. Shockley, supra, 997
F.2d at 25-26; 29 C.F.R. § 541.103. The appellants all supervised
stockers and Grocery Department personnel. While appellant Seidl
counters that only five percent of his time was devoted to managerial
22
duties, he does not dispute that he periodically did supervise stockers
and other personnel. In the seminal FLSA case involving assistant
managers at a fast-food restaurant, the First Circuit stated, "The
supervision of other employees is clearly a management duty."
Donovan v. Burger King Corp. ("Burger King I"), 672 F.2d 221, 226
(1st Cir. 1982). As to Seidl's argument that his time spent in manage-
rial tasks fell short of the "fifty percent" rule, that rule, again, is only
a "rule of thumb." Shockley, supra, 997 F.2d at 26. An employee can
be subject to the bona fide executive exemption "even though he
spends the majority of his time on non-exempt work and makes few
significant decisions. Burger King I at 226-27 (citing Rau v. Darling's
Drug Store, Inc., 388 F.Supp. 877, 881 (W.D.Pa. 1975)) (other cita-
tions omitted).
To be sure, the assistant managers periodically performed some
non-exempt duties such as stocking the shelves and unloading grocery
trucks. The fact that an employee executes both managerial and non-
exempt work tasks normally undertaken by hourly employees, how-
ever, does not preclude his qualifying for the bona fide executive
exemption. Donovan v. Burger King Corp. (Burger King II), 675 F.2d
516 (2d Cir. 1982) (holding that fast-food restaurant's assistant man-
agers were exempt under the bona fide exemption's short test despite
large amount of non-exempt work performed). Conversely, appellants
claim that their managerial responsibilities sometimes were per-
formed by non-exempt hourly employees. This contention is of no
moment because "the regulations do not provide . . . that an employee
whose primary duty is managerial will not qualify for exempt execu-
tive status because other, non-supervisory employees are able to and
sometimes do perform his or her managerial duties." Stuckey's, supra,
939 F.2d at 618 n.2. Finally, the assistant managers argue that during
the time that the store manager was absent, the assistant manager in
charge was merely a glorified stocker with the store manager avail-
able by telephone to make important decisions that might arise. On
this point, the Second Circuit has held that when the record shows
"that for the great bulk of their working time,[a]ssistant [m]anagers
are solely in charge of their restaurants and are the ``boss' in title and
in fact[,] . . . [t]hat the . . . manager is available by phone does not
detract in any substantial way from this conclusion." Burger King II,
supra, 675 F.2d at 522.
23
For the reasons stated and after careful review of the record and the
applicable law, we conclude that the actual job duties of the appellant
assistant managers were primarily managerial. The district court prop-
erly granted summary judgment against them on their FLSA overtime
claims.
III. CASE MANAGEMENT DISMISSALS
The hourly employees of Food Lion appeal certain of the district
court's case management decisions resulting in dismissals of their
claims. In a class action, review of a district court's dismissals for
case management reasons is for abuse of discretion. See, e.g., Central
Wesleyan College v. W.R. Grace & Co., 6 F.3d 177, 185 (4th Cir.
1993) ("Issues of class action manageability are properly committed
to the district court's discretion, because that court ``generally has a
greater familiarity and expertise' with the ``practical . . . and primarily
. . . factual' problems of administering a lawsuit ``than does the court
of appeals.'") (quoting Windham v. American Brands, Inc., 565 F.2d
59, 65 (4th Cir. 1977) (en banc) (other citation omitted). With respect
to multi-district litigation, as here, we have instructed, "a district court
needs to have broad discretion in coordinating and administering
multi-district litigation." In re Showa Denko K.K.L-Tryptophan Prod-
ucts Liability Litig.-II, 953 F.2d 162, 165 (4th Cir. 1992).
A. Late Consents
The district court established a January 4, 1993 cutoff date for per-
sons wishing to opt in to the "Effective Scheduling" litigation. Three
would-be plaintiffs, Royster, Murchinson, and Mattox, missed the
cutoff by several days and were dismissed. Appellants Gore, Losco,
O'Neal, and Seidl also failed to file consents by the appointed dead-
line.
Appellants' sole argument on appeal on this point is nothing more
than that the FLSA is remedial and should be stretched to allow in as
many such claims as possible. The prerogative of the district court to
manage its docket with timetables and deadlines, however, prevents
even remedial statutes from stretching to the breaking point. It cannot
be gainsaid that the district court was clear about its cut-off deadline.
On October 20, 1992, the district court, when it authorized the opt in
24
notice, set a cut-off deadline for persons wishing to opt in on Decem-
ber 31, 1992 (later extended to January 4, 1993). The court stated that
late opt-in forms, absent a showing of "exceptional circumstances,"
would not be considered by the court and such persons sending tardy
forms would not be in the class. As the court simply stated, "whoever
gets in by the 31st of December is in. Whoever who's not in is not
in. That's the end of it." Transcript of October 16, 1992 conference
at 37.
Several appellants (Losco, O'Neal, and Seidl) later filed affidavits
attempting to establish "exceptional circumstances" as an excuse for
their untimely filed opt-in forms. Losco claimed that he mailed his
consent form on the appointed date; O'Neal stated that his father was
terminally ill when he received the opt-in form and that he mailed the
consent after his father died; and Seidl asserted that, after a period of
time spent out of town, he completed and mailed the form upon his
return. As far as Losco's having mailed his consent only on--not
before--the deadline, we have stated in another context that the "liti-
gant who decides to rely on the vagaries of the mail must suffer the
consequences." Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d
530, 534 (4th Cir. 1996). With respect to the court's decision declin-
ing to find exceptional circumstances accounted for the other tardy
consents, we cannot say that the court abused its discretion. See, e.g.,
Hoffman-LaRouche, Inc. v. Sperling, 493 U.S. 165, 172 (1989) (hold-
ing that a district court is empowered to establish"cut off dates to
expedite disposition of the action."). To the extent to which appellants
additionally assert that the district court abused its discretion when it
dismissed, with prejudice, the claims of the tardy consent filers, sanc-
tions in such a circumstance properly may include dismissal. See
Rabb v. Amatex Corp., 769 F.2d 996, 1000 (4th Cir. 1985).
B. Imperfect Questionnaires
In May 1993, the district court sent out questionnaires, approved
by plaintiffs and defendant, that it required each of the almost one
thousand pre-notice and post-notice plaintiffs to complete, notarize,
and mail to plaintiffs' counsel by June 11, 1993. Plaintiffs' counsel
was then required to pass the questionnaires on to Food Lion's attor-
neys by June 25, 1993. The court had approved use of the question-
naires in order to streamline discovery of post-notice plaintiffs,
25
provide basic information about each plaintiff's claim, and, thereby,
to spur possible settlement negotiations. The court's order alerted the
plaintiffs that failure to comply with the above deadlines could result
in the dismissal, with prejudice, of the plaintiff's claim.
Many would-be plaintiffs missed the return deadline or sent in
incomplete forms (e.g., forms which lacked proper notarization) or
the wrong forms (e.g., in April 1993, plaintiffs' counsel had their cli-
ents fill out questionnaires for counsel's own use and many plaintiffs
wrongly mailed these forms). The district court gave each plaintiff
who failed to return a questionnaire or completed the wrong question-
naire an opportunity to show cause by August 2, 1993 why his form
was untimely or incomplete. Those plaintiffs who did show cause
were not dismissed. The district court found, however, that many
claimants did not proffer viable explanations, if any at all was prof-
fered, and entered dismissal orders against them.
Three appellants, Harvey, Bryant, and Clark, failed to submit nota-
rized questionnaires to plaintiffs' counsel by June 11, 1993, and failed
to complete and forward the questionnaires to Food Lion before the
June 25, 1993 deadline. As well, Bryant and Clark failed to submit
timely, properly sworn and notarized explanations in response to the
court's show cause order as to why they were late in the first instance.
While the three appellants' personal circumstances at the time may
explain the tardiness of their questionnaires and may entitle them to
some degree of sympathy,15 because we review the district court's rul-
ings on this point for abuse of discretion, we do not find that the
appellants are entitled to legal relief. Given that this consolidated
action had almost one thousand claims in the beginning of proceed-
ings, this court will afford the district court significant latitude in its
_________________________________________________________________
15 Harvey asserted that he was traveling at the time he received the
court questionnaire. He stated that although the questionnaire arrived at
his house in South Carolina and was forwarded to him by his wife in a
timely manner, he never received it. Nevertheless, even after he did
receive the questionnaire, he delayed three weeks before submitting it.
Clark stated that he traveled because of his job and was out of town for
seven days at the time the questionnaire arrived. Bryant asserted that he
had moved around the time the questionnaire was sent and that his mail
was not forwarded to him.
26
handling of pretrial matters and in its case management directives.
The court acted within its discretion when it dismissed the claims of
the non-complying appellants. Rabb, supra, 769 F.2d at 1000 (hold-
ing that failure to comply with a discovery order warrants dismissal).
C. Statute of Limitations
The statute of limitations for an FLSA action claiming unpaid over-
time compensation is two years, except that a cause of action arising
out of an alleged willful violation may be commenced within three
years after the cause of action accrued. 29 U.S.C.§ 255(a) (West
1985 & Supp. 1998). By Orders of October 18 and October 27, 1993,
the district court applied the three year statute of limitations period.
1. Post-Notice Hourly Employees
Five opt-in hourly employees wrote in their consents to join the
suit that their alleged uncompensated overtime work had occurred
more than three years earlier. The district court dismissed these five
employees' claims entirely on statute of limitations grounds.
Appellant Surles, for example, said in his consent, which he filed
in December 1992, that he last worked "off-the-clock" in February
1989. In his case, however, only his questionnaire--not his initial
consent form, his first "pleading,"--alleged unpaid overtime at any
time three years before the filing of his consent. This allegation in the
questionnaire alone is not enough to avoid the limitations bar when
his consent form alleged no unpaid overtime within the previous three
years. Accordingly, the court did not err in dismissing his claim.
The remaining opt-in plaintiffs were rightly found to have been
time-barred because they did not clearly allege when they worked
overtime without pay.16
_________________________________________________________________
16 Appellant Barnes quit in December 1990 and filed the consent in
December 1992. Appellant Pippa presented no evidence of having
worked overtime within the limitations period. Appellant Ramsey was
assistant manager within the limitations period and, thus, would have had
no viable off-the-clock claims. Appellant Williams' evidence did not
clearly state when he worked off-the-clock.
27
2. Named Hourly Employee Plaintiffs
Again, causes of action under the FLSA have a three-year statute
of limitations period; claims for overtime cannot extend back past
three years. The district court began counting from the date when
each plaintiff filed his consent to opt in to the litigation. Included in
this ruling were six named plaintiffs in the original suit. Instead of
counting from the date the complaint was filed, the district court also
required them to file a consent within the limitations period. The six
named plaintiffs who failed to file timely consents now argue their
consents relate back pursuant to Fed. R. Civ. P. 15(b) to the date the
complaint was filed or, alternatively, that consents are not required of
named plaintiffs.
The precise wording of two sections of the FLSA indicates other-
wise. As section 16(b) of the FLSA states, in relevant portion:
[An] action to recover [unpaid overtime] may be maintained
. . . by any one or more employees for and in behalf of him-
self or themselves and other employees similarly situated.
No employee shall be a party plaintiff to any such action
unless he gives his consent in writing to become such a
party and such consent is filed in the court in which such
action is brought.
29 U.S.C. § 216(b) (West 1965) (emphasis added). As section 7 of the
Portal-to-Portal Act of 1947, 29 U.S.C. § 256, additionally states:
In determining when an action is commenced for the pur-
poses of Section 255 of this title, an action . . . shall be con-
sidered to be commenced on the date when the complaint is
filed; except that in the case of a collective or class action
instituted under the Fair Labor Standards Act of 1938, as
amended, . . . it shall be considered to be commenced in the
case of any individual claimant--
(a) on the date when the complaint is filed, if he
is specifically named as a party plaintiff in the
complaint and his written consent to become a
28
party plaintiff is filed on such date in the court in
which the action is brought; or
(b) if such written consent was not so filed or if
his name did not so appear--on the subsequent
date on which such written consent is filed in the
court in which the action was commenced.
29 U.S.C. § 256 (West 1985) (emphasis added).
Case authority has interpreted the statutory sections as requiring all
plaintiffs in a collective action under the FLSA to file written con-
sents for statute of limitations purposes. "Until a plaintiff, even a
named plaintiff, has filed a written consent, []he has not joined in the
class action, at least for statute of limitations purposes." Songu-
Mbriwa v. Davis Memorial Goodwill Indus., 144 F.R.D. 1, 2 (D.D.C.
1992) (citing and quoting 29 U.S.C. § 256(a)) (other citations omit-
ted). Moreover, signed consents filed after the filing of the complaint
do not relate back to the date the complaint was filed. Kuhn v. Phila-
delphia Elec. Co., 487 F.Supp. 974 (E.D.Pa. 1980), aff'd, 745 F.2d 47(3rd Cir. 1984). Rather, each claimant's "action is commenced on the
date on which his or her consent is filed with the court." Id. at 976.
Had this action been brought simply as an individual case with sev-
eral plaintiffs, there would have been no need for any consents to
have been filed. The filing of a collective action under 29 U.S.C.
§ 216(b), however, renders consents necessary, and these claims
below were brought in just such a fashion--they were brought on
behalf of the named individuals and others similarly situated. Redun-
dant though it may seem to require consents from the named plaintiffs
in a class action, the district court did not abuse its discretion in order-
ing such consents nor in dismissing the appellants' claims which
exceeded the limitations period when no consents were filed within
the applicable three year period.
IV.
For the foregoing reasons, the district court's grant of partial sum-
mary judgment in favor of Food Lion on the FLSA claims of numer-
29
ous assistant managers and its dismissal of various claims of hourly
employees who failed to comply with certain case management dead-
lines, shall be and hereby are
AFFIRMED.
BUTZNER, Senior Circuit Judge, concurring in part and dissenting
in part:
I join in affirming the district court's case management dismissals.
The district court's task was extremely difficult and cumbersome, and
it acted well within its discretion to strictly enforce the administrative
deadlines.
I dissent, however, from the methodology used by Food Lion to
prove its right to summary judgment. An employer bears the burden
of proving the affirmative defense that employees fall within the
exemptions established by the Fair Labor Standards Act. See Corning
Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Idaho Sheet
Metal Works, Inc. v. Wirtz, 383 U.S. 190, 206 (1966). To carry its
burden of proof, Food Lion relies upon an affidavit given by Charles
Buckley, the vice president of grocery operations. Food Lion also
relies upon the assistant manager's job description in its "Store Oper-
ations Manual." Neither of these submissions meet the standard of
Federal Rule of Civil Procedure 56(e), which requires the personal
knowledge of the affiant. Buckley had at one time supervised assis-
tant managers in the grocery department, but he does not demonstrate
that he knew the jobs of each of the assistant managers in this case.
He had no personal knowledge of how they spent their time on a day-
to-day basis. Similarly, the Store Operations Manual describes only
a hypothetical assistant manager's duties.
The job performed by each assistant manager should have been
considered on a case-by-case basis. 29 C.F.R. § 541.103 (1997). Eval-
uation of an assistant manager's work is intensely factual. Dalheim v.
KDFW-TV, 918 F.2d 1220, 1226 (5th Cir. 1990) ("[T]he inquiry into
exempt status under [29 U.S.C. § 213(a)(1)] remains intensely fact-
bound and case specific."). I cannot accept Food Lion's claim that the
assistant managers failed to rebut the Buckley affidavit or the Store
Operations Manual job description. The burden is not on the
30
employee to establish that he is not entitled to a management exemp-
tion. On the contrary, the burden remains on the employer to prove
that the employee is exempt. Evans v. McClain of Georgia, Inc., 131
F.3d 957, 965 (11th Cir. 1997). Food Lion's methodology of proof
stands the Fair Labor Standards Act on its head.
Food Lion, however, claims that since this is a class action, all
assistant managers are similarly situated with those who gave deposi-
tions.
The assistant managers are similarly situated to the extent that they
bear similar titles and they all work for Food Lion. But whether their
day-to-day jobs are similar depends in large part on the authority and
discretion granted to them by the store managers and by the individu-
al's ability to execute managerial responsibilities."Section 213(a)(1)
does not provide a class exemption . . . ." Hodgson v. Klages Coal &
Ice Co., 435 F.2d 377, 384 (6th Cir. 1970).
Title 29 U.S.C. § 216(b), upon which Food Lion relies, provides
for an employee class action with opt in provisions. The class action
provision and the "similarly situated" requirement in § 216(b), how-
ever, are procedural. See Allen v. Marshall Field & Co., 93 F.R.D.
438, 441-42 (N.D.Ill. 1982). The similarly situated requirement is not
meant to change the substantive protections under the FLSA. It does
not alter the employer's burden of proof or the rule that the Act's
exemptions must be narrowly construed against the employers seek-
ing to assert them. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388,
392 (1960). The "similarly situated" requirement of § 216(b) is "con-
siderably less stringent than the requirement of Fed. R. Civ. P.
23(b)(3) that common questions ``predominate.'" Heagney v. Euro-
pean American Bank, 122 F.R.D. 125, 127 n.2 (E.D.N.Y. 1988). The
plaintiffs need show only that their positions are similar to that of the
putative class, not identical. Grayson v. K Mart Corp., 79 F.3d 1086,
1096 (11th Cir. 1996). Class treatment is not defeated even if the class
members performed different jobs in different geographical locations.
See Heagney, 122 F.R.D. at 127; Allen, 93 F.R.D. at 443. An
employer should not be allowed to use the similarly situated require-
ment of § 216(b) to meet its burden of proving a FLSA exemption.
Moreover, a party moving for summary judgment must show that
there are no genuine issues of material fact in dispute and that the
31
party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317 (1986). The Buckley affidavit does not prove
that each individual assistant manager primarily performed manage-
rial duties as the Act's exemption requires. See 29 U.S.C. § 213(a)(1).
The assistant managers who were deposed and other assistant manag-
ers who proceeded on affidavits submitted facts sufficient to disclose
genuine issues of material fact concerning the work that they actually
performed.
Dissenting, I would reverse the grant of summary judgment to
Food Lion for two reasons--the deficiencies in its method of proof
and the presence of genuine issue of material fact. I would remand
these cases for trial in their respective districts. 28 U.S.C. § 1407(a);
see Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 118
S.Ct. 956 (1998).
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