Denise Wagner v. Murphy Oil USA, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 27, 2005
No. 04-15026 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00072-CV-JEG-2
DENISE WAGNER,
Plaintiff-Appellant,
versus
MURPHY OIL USA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 27, 2005)
Before ANDERSON, CARNES and GODBOLD, Circuit Judges.
PER CURIAM:
The crux of this case is whether Denise Wagner was entitled to overtime
under the Fair Labor Standards Act (FLSA). A jury decided that her employer,
Murphy Oil USA, Inc., did not have to pay her overtime because as a manager she
fit within the FLSA’s executive exception. The district court correctly refused to
set aside the jury’s verdict.
Murphy Oil, along with its petroleum refining and processing business,
operates a number of stores across the southwest United States where it sells its
petroleum products. Wagner was employed as a site manager with Murphy Oil
from November 2000 through January 2003 working first at a store in Brunswick,
Georgia and later in Madison, Alabama. Her duties as site manager included
overseeing and training store employees, preparing paperwork, and controlling
inventory. Wagner typically supervised at least two employees. Her duties as site
manager often overlapped with those of the hourly employees. For instance, she
might operate a cash register or clean the store restrooms. She initially received a
monthly salary of approximately $2,100 which was ultimately increased to $2,600
per month. She regularly worked over forty hours a week and never received
overtime pay from Murphy Oil because Murphy Oil claimed she was exempt from
the overtime provisions of the FLSA as an executive employee.
The FLSA requires employers to pay covered employees 1.5 times their
2
regular hourly rate for each hour worked in excess of forty per week. 29 U.S.C. §
207. Workers employed in a “bona fide executive capacity” are exempt from the
overtime pay requirement. 29 U.S.C. §213(a)(1). The Department of Labor
regulations set forth two alternatives that can be used to determine whether an
employee is “employed in a bona fide executive capacity.” The first is set forth in
29 C.F.R. § 541.1 subsections (a) through the first part of subsection (f). The latter
part of subsection (f) provides the “short test.” See 29 C.F.R. § 541.1; Brock v.
Norman’s Country Mkt., Inc., 835 F.2d 823, 826 (11th Cir. 1988). The “short
test” is used when the employee is (1) paid on a salary basis (2) of not less than
$250 per week (3) for primary duty of managing a recognized department or
subdivision and (4) regularly directs two or more employees. 29 C.F.R. § 541(f).
The regulations put substance before form. They specifically require an
examination beyond an employee’s title to the specific duties performed by the
employee to determine whether the employee’s primary duty is management. See
29 C.F.R. § 541.103 (defining primary duty); 29 C.F.R § 541.102 (defining
management). The burden of proving that an employee fits within the executive
exception falls on the defendant. Brock, 835 F.2d at 826.
It is undisputed that Wagner received a salary above the $250 per week
threshold. See 29 C.F.R. § 541.118(a) (defining salary as regular payments on a
3
weekly or less frequent basis which are not subject to reduction due to poor
performance). The only real issue was whether she was paid primarily for
managerial responsibilities and supervised at least two employees. The jury heard
testimony that Wagner’s position with Murphy Oil met these two requirements.
After the district court instructed the jury on Murphy Oil’s burden to show that
Wagner fit within the executive exception the jury found that Murphy was not
entitled to overtime pay. The trial court refused Wagner’s motion to set aside the
jury’s finding. Wagner argues on appeal that her performance of non-executive
employee jobs such as stocking shelves and cleaning toilets precluded the jury’s
finding that she was not entitled to overtime. She challenges the district court’s
denial of her partial motion for summary judgment, the jury instruction on
Murphy’s Oil’s burden of proving the executive exception for overtime pay, and
the district court’s refusal to set aside the jury’s verdict.
Wagner’s challenge to the district court’s refusal to grant her motion for
partial summary judgment is a non-starter. We “will not review the pretrial denial
of a motion for summary judgment after a full trial and judgment on the merits.”
Lind v. United Parcel Serv., 254 F.3d. 1281, 1286 (11th Cir. 2001). We also find
no error in either the jury instruction or the district court’s refusal to set aside the
jury’s determination that Wagner fit within the executive exception and was not
4
entitled to overtime wages.
AFFIRMED.
5