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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA


FORT MYERS DIVISION

LISA WAGNER, an individual,

CIVIL ACTION

Plaintiff,
Case No. 2:14-cv-029
v.
Judge: Sheri Polster Chappell
LEE COUNTY, FLORIDA BOARD OF COUNTY
COMMISSIONERS, a political subdivision of the State
of Florida, and GLEN SALYER, an individual, JAMES
MOORE, an individual, JENNIFER BERG, an
individual, CHRISTINE BRADY, an individual,

Mag. Judge: Carol Mirando


DISPOSITIVE MOTION

Defendants.

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED


MEMORANDUM OF LAW
NOW COMES, the Plaintiff, LISA WAGNER (Wagner), by and through her undersigned
attorney, pursuant to Rule 56 of the Federal Rules of Civil Procedure and the Local Rules for the
United States District Court, Middle District of Florida, and hereby files Plaintiff's Motion for
Summary Judgment and Incorporated Memorandum of Law, and in support states as follows:
INTRODUCTION AND SUMMARY OF THE ARGUMENT
As the evidence before this Honorable Court plainly reveals, summary judgment is due to be
granted as to Ms. Wagners whistleblower claim. Ms. Wagner became aware of the Defendants
extensive improper use of grant and loan programs through the EDO and after receiving several
complaints, an internal audit was launched (the "audit"). Ms. Wagner, along with five other employees,
voluntarily participated in the audit, which included providing written statements and taking part in
interviews. Ms. Wagner disclosed numerous instances of the Defendant allegedly misappropriating
grant monies and loans, and also reported these matters to her supervisor. After Ms. Wagner
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cooperated with the audit and provided extensive information, the EDOs director explicitly stated that
those who cooperated with the audit would be fired. After the audit, and despite fantastic performance
reviews, the Defendant retaliated against Ms. Wagner for disclosing alleged malfeasance. Ms.
Wagners supervisor, Mr. Glen Salyer, has confirmed that he knew of the audit, that he assumed Ms.
Wagner participated and that the audit played a significant role in his decision to separate four of the
five EDO employees who cooperated with the audit of the EDO. For the reasons stated in more detail
infra, Ms. Wagners Motion for Summary Judgment is due to be granted.
Furthermore, Ms. Wagner was nothing more than a secretary couched as an administrative
specialist in order to try to have her classified as an overtime-exempt employee under the Fair Labor
Standards Act (FLSA). The evidence is clear: Ms. Wagners primary duty was the performance of
office or non-manual work directly related to the management or general business operations of the
employer or the employer's customers and whether her primary duty included the exercise of
discretion and independent judgment with respect to matters of significance." 29 C.F.R.
541.200(a)(emphasis added). Under no interpretation of the record before the Court, and particularly
given that reasonable inferences must be drawn in favor of Ms. Wagner as the Defendant has the
burden of proof, can it be concluded that a reasonable jury could find that the administrative exemption
applies to Ms. Wagner, who presents ample evidence that she was not involved in the management or
business operations of the Lee County Economic Development Office (EDO) and that she certainly did
not exercise discretion or independent judgment on matters of importance. Ms. Wagner was little more
than a secretary engaged in common secretarial work and she did not possess any kind of discretion or
independent decision-making at all, let alone that would rise to the level of affecting the EDOs
operations. As will be discussed infra, the Defendant has not presented, and cannot present, any set of
facts that would entitle it to apply the administrative exemption to Ms. Wagner, and as a result,
summary judgment is due to be granted in favor of Ms. Wagner.

STATEMENT OF UNDISPUTED FACTS1


1. The Defendant hired Ms. Wagner as an administrative specialist in the Economic
Development Office (EDO) on or about January 12, 2012. (See Exhibit 1, Defendants Response to
Interrogatory No. 2).
2. The Defendant admits that Ms. Wagner was compensated only on a salary basis, and that it did
not pay Ms. Wagner an hourly wage. (See Exhibit 2, Defendants Answer at 67).
3. Ms. Wagners supervisor was Ms. Susan Noe. (See Exhibit 1, Defendants Response to
Interrogatory No. 2; Exhibit 3, Depo. of Salyer at 147:11-13; Exhibit 5, Affidavit of Noe at 3; Exhibit
6, Affidavit of Wagner at 5).
4. Ms. Noe was employed by the Defendant as the Manager of Business Assistance within the Lee
County Economic Development Office (EDO). She had been employed with the Defendant for twentytwo (22) years and had been in her position as Manager of Business Assistance for two (2) years.
During that time, she was Ms. Lisa Wagners only direct supervisor. As such, she has personal and
intimate knowledge of her job description, the job duties she actually performed, her job performance
and her skill set. (Exhibit 5, Aff. of Noe at 3).
5. Ms. Noe made the decision to hire Ms. Wagner as an Administrative Specialist. (Exhibit 5, Aff.
of Noe at 6).
6. The Defendant claims only that Ms. Wagner had decision-making authority on the following
matters of importance: monthly reports, website updates and maintenance, quarterly and annual
enterprise zone reports, training of brokers and administrative staff re: real estate databases,
coordination of GIS staff and software developers regarding issues, improvements and upgrades and
IDA program planning. (Exhibit 1, Defendants Response to Interrogatory No. 4).
7. Ms. Wagners overwhelming job duties were providing administrative support, which duties
are most analogous to what a secretary typically does. The title of administrative specialist is nothing
more than a fancy term for a secretary as thats the function that Ms. Wagner performed. All of Ms.
Wagners performance reviews confirm that her primary job functions were those of a secretary.
Nowhere in any job expectations or performance reviews is Ms. Wagner required to, or recognized for,
any exercise of independent decision making that in any way, shape or form was on a matter of
significance for the EDO as the key action verbs properly convey what Ms. Wagner did: provide
support, send out notices, book travel as directed by management, maintain files, assist with directory
and plan updates, assist with web updates, assist management with meetings, take minutes and work as
a receptionist at the front desk. (Exhibit 5, Aff. of Noe at 7).
8. Ms. Wagner possessed no independent decision making authority whatsoever, and certainly did
not possess any independent decision making authority on matters that had any significance. (Exhibit
5, Aff. of Noe at 8).

Citations to deposition transcripts shall be Depo. of [Deponent] at [page:line(s)]. Multiple citations within the
same citation are separated by a semicolon. Citations to other documents shall be (See Exhibit __, [description of
document(s)]. Citations to the Statement of Undisputed Facts shall be SUF at __.

9. The EDO used a database system called Goldmine, which Ms. Wagner was not responsible
for developing, altering or maintaining. Such was the province of the Countys IT Department.
(Exhibit 5, Aff. of Noe at 9).
10. Ms. Wagners responsibility was to use data that someone else entered into Goldmine and put it
into an Excel spreadsheet that someone else had developed, for review by Noe and two (2) Business
Specialists. Ms. Wagner had no ability, nor authority, to alter the data in any way; her job was simply
to transcribe the data from one format and put it into another. (Exhibit 5, Aff. of Noe at 10).
11. Ms. Wagner did not set up Goldmine, nor the Excel spreadsheet format, as the spreadsheet was
set up by an employee named Nancy who had been supervised by James Moore. (Exhibit 5, Aff. of
Noe at 11).
12. Ms. Wagners role was to plug the extracted information into the Excel spreadsheet and print it
off for submission to her supervisor, Ms. Noe, and the Business Specialists. Essentially, Ms. Wagner
was to just run the reports. Ms. Wagner had no control or authority over the data entered into
Goldmine, as this was done by other EDO staff. (Exhibit 5, Aff. of Noe at 12).
13. Moreover, if any discrepancies were found, Ms. Wagner was required to take such problems
directly to Ms. Noe or the Business Specialists for them to make the necessary corrections; she had no
authority to alter this data in any way, even if discrepancies were found. Moreover, Ms. Wagner was
never tasked with interpreting the data or forming an opinion based on the data. (Exhibit 5, Aff. of Noe
at 13).
14. As Ms. Noe confirms, there was no opportunity for Ms. Wagner to exercise any independent
decision making in performing these tasks. (Exhibit 5, Aff. of Noe at 14).
15. Additionally, Ms. Noe was the initial author of the Hurricane Plan and Ms. Wagner had nothing
to do with its contents. For the annual update, other EDO staff members would be assigned a section to
review and update. Ms. Wagners responsibility was only to verify/update telephone numbers/contact
information, by checking/verifying information via the internet, as necessary. She had no authority
whatsoever to alter the Plan and any discrepancies that were found were reported directly to Ms. Noe
for approval. It was Ms. Noe who performed the overwhelming majority of updates to the annual
Hurricane Plan, with mere clerical assistance from Wagner. (Exhibit 5, Aff. of Noe at 16-18).
16. One of Ms. Noes job duties was the Property/Real Estate Database on the EDO website,
including the Business Directory. Ms. Wagner had no access or authority to make any changes to the
EDO website. Ms. Wagner was tasked only with verifying/checking that links and hyperlinks were
working properly. If Ms. Wagner found any anomalies, or hardware or software issues, she was
required to take the information directly to Noe, before approval was granted for Wagner to take the
information to the marketing company (Chisano). If Ms. Noe did not agree with Ms. Wagner, Ms.
Wagner could not (and did not) take any of her suggestions or recommendations to the marketing
company, without exception. (Exhibit 5, Aff. of Noe at 20-21).
17. Furthermore, the training of real estate brokers was Ms. Noes responsibility and it was Ms.
Noe who administered the training on the Property Database, and assistance was provided by Ms.
Wagner who only:
a. Input data she was provided with;
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b. Ran property searches upon request by Noe, and


c. Obtained information from the Brokers before the information was overlaid into the
Property Database. (Exhibit 5, Aff. of Noe at 23).
18. Ms. Wagners role was strictly routine secretarial functions, and she merely assisted Ms. Noe
with the Broker training; no part of the training was done solely by Ms. Wagner at all. No different
than a secretary, Ms. Wagner merely provided some telephone assistance to Brokers who called in
with routine questions regarding the entry of data into the database. (Exhibit 5, Aff. of Noe at 2425).
19. In regard to Ms. Wagners role in the GIS maps, Ms. Wagner was given the parameters of the
type of property, and the geographic area she was to conduct a database search in, by either Ms. Noe or
the Recruitment Manager. She had no independent decision making authority and Ms. Wagner had no
independence in these database searches as others made the decision as to the type of property and the
geographical area; she was merely the mechanism by which this information was received by
management. The database system generated the final product according to the parameters that Ms.
Wagner was directed to enter. Ms. Wagners actions had no impact on the results. (Exhibit 5, Aff. of
Noe at 27-28).
20. Like any member of staff, when Ms. Wagner would encounter software issues that affected her
work, she would try to fix them as best she could. Ms. Wagner was not hired because she was an IT
specialist. When any any computer issues arose, Ms. Wagner and Ms. Noe would discuss the issue and
Noe would then call in the Lee County GIS Coordinator, or Ms. Wagner would do so, strictly at Noes
direction. Any assistance with software issues that Ms. Wagner may have lent to coworkers was
nothing more than one employee helping another and was not because Ms. Wagners job required it at
all. Ms. Wagners assistance to others was not a core job responsibility; she just did it because she
knew about it, and she was so good at it. It was not in her job description. Ms. Wagner just liked to
help people. (Exhibit 5, Aff. of Noe at 29-31).
21. Ms. Noe set all of Ms. Wagners tasks and Ms. Noe supervised her and set out her priorities for
the day/week; all tasks that she was working on were tasks set by Ms. Noe and were purely secretarial
in nature. Ms. Wagner could not exercise any independent judgment and if she were to do so, it was
Ms. Noes problem and fell on my shoulders, not on Ms. Wagner. The exercise of independent
judgment was Noes responsibility, which Noe never delegated to Ms. Wagner. (Exhibit 5, Aff. of Noe
at 33).
22. Ms. Wagner did a tremendous amount of overtime on a regular basis at least two (2) to three
(3) hours every week, but many times more than that as the amount of overtime depended upon the
project or assignment, such as after-hours meetings, which were regular and frequent. (Exhibit 5, Aff.
of Noe at 34-35).
23. Ms. Wagner possessed no independent decision making authority on any matters of
significance to the operations of the EDO; any such decisions were made by her supervisor. (Exhibit 5,
Aff. of Noe at 38).
24. Ms. Wagner also had no authority to formulate, affect, interpret, or implement management
policies or operating practices. (Exhibit 5, Aff. of Noe at 43).

25. Ms. Wagner did not carry out major EDO assignments and Ms. Wagners secretarial work did
not affect the EDOs business operations to a substantial degree and when she was out sick or on
vacation, her absence did not substantially affect the operations of the EDO. (Exhibit 5, Aff. of Noe at
44-45).
26. In fact, Ms. Wagner had absolutely no authority to commit the EDO in matters that had any
significant financial impact whatsoever. For example, even if the office was running low on supplies,
she did not possess the requisite authority to order replacements unless approved by Ms. Noe. (Exhibit
5, Aff. of Noe at 46).
27. Under no circumstances whatsoever did Ms. Wagner have any authority to waive or deviate
from established policies and procedures of the EDO without explicit prior approval and Ms. Noe
cannot recall even one occasion where such approval was ever requested, nor was necessary. Ms.
Wagner never had any authority to negotiate and bind the EDO on any matters, let alone significant
matters. Ms. Wagner did not provide consultation or expert advice to management at all. Ms. Wagner
was not involved in planning long or short-term business objectives of the EDO beyond performing
secretarial work in furtherance thereof, and at the complete direction of Ms. Noe or other management.
At no time did Ms. Wagner ever investigate and resolve matters of significance on behalf of the EDOs
management. She was a secretary, and such was outside of her authority. (Exhibit 5, Aff. of Noe at
47-51; Exhibit 3, Depo. of Salyer at 164:23-166:9).
28. Ms. Wagners job duties consisted of assisting her supervisor, Ms. Noe. (Exhibit 3, Depo. of
Salyer at 150:12-23).
29. Ms. Wagner did not possess any human resources functions (Exhibit 5, Aff. of Noe at 52)
and Salyer admits that many of her job duties were secretarial. (Exhibit 3, Depo. of Salyer at 153:1819).
30. Mr. Glen Salyer became interim director of the EDO in September 2013. (Exhibit 2,
Defendants Answer at 51).
31. However, the Defendant admits that neither Mr. James Moore (prior director of the EDO) or
Mr. Salyer were Ms. Wagners direct supervisor and thus have no direct knowledge of the job duties
that Ms. Wagner performed or the number of hours Ms. Wagner worked. (Exhibit 2, Defendants
Answer at 63; Exhibit 3, Depo. of Salyer at 148:15-16).
32. Additionally, Salyer confirms that the primary function of her [Wagners] position was
outsourced to a software application. (Exhibit 3, Depo. of Salyer at 114:4-6).
33. Furthermore, during Ms. Wagners employment, she learned of corrupt, improper and illegal
practices within the EDO. (Exhibit 9, July 2013 Audit).
34. As such, she participated in an audit conducted by the Lee County Clerk of Courts in April and
May 2013. (Exhibit 2, Defendants Answer at 18-19).
35. Then-director of the EDO, Jim Moore, placed Ms. Noe in the position of monitoring which
employees participated in the audit. (Exhibit 4, Depo. of Noe at 140:12-15 and 141:14-17).

36. In July 2013, the Defendant provided Ms. Wagner with an excellent performance review.
(Exhibit 7, July 2013 Performance Review).
37. On July 26, 2013, Ms. Wagner was instructed to audio-record an EDO meeting. During that
meeting, the EDO director was questioned as to the audit, replying there are legs on this, and further
stating in response to being asked what that means: someones gonna get fired for this [talking to
these auditors]. (See Ex. 8, Audio Recording at 1:48:38 to 1:49:22).
38. On August 7, 2013, the results of the audit were released, which corroborated the complaints
made by Ms. Wagner. (Exhibit 9, 2013 Audit).
39. In August 2013, Mr. Salyer conducted employee interviews with EDO employees, testifying
that he discovered morale issues. (Exhibit 3, Depo of Salyer at 87:22-25).
40. On October 31, 2013, Mr. Salyer terminated Ms. Wagner. (Exhibit 3, Depo of Salyer at 107:2125).
41. According to Salyer, these issues were directly tied to the audit that Ms. Wagner had
participated in. (Exhibit 3, Depo of Salyer at 88:1-5 and 88:8-11). Salyer also assumed everybody
spoke to the auditors. (Exhibit 3, Depo. of Salyer at 101:15).
42. Salyer clearly testified that he took the findings of the audit into account when making
personnel decisions, like the decision to terminate Ms. Wagner, after investigat[ing] everything in
there [the audit]. (Exhibit 3, Depo of Salyer at 89:7-10 and 90:4-5).
43. Salyer unambiguously stated that as a result of the audit, he assembled a team, whose
mandate was to right the ship if there were problems over there, which, you know, by all accounts it
appeared there were. (Exhibit 3, Depo of Salyer at 90:13-16).
44. Further confirming his desire to terminate those that participated in the audit, Salyer testified
that there wasn't any doubt in our minds that there were things that needed to be, quote, unquote,
fixed. (Exhibit 3, Depo of Salyer at 90:20-22).
45. However, while testifying that his team must have kept written notes about their
investigation, the Defendant has proffered none whatsoever. (Exhibit 3, Depo of Salyer at 91:18).
Furthermore, Salyer identified only one issue that concerned him after he allegedly assessed the EDO,
which issue was the administration of the marketing contract, something that Ms. Wagner has
nothing to do with. (Exhibit 3, Depo of Salyer at 93:7).
46. Salyer was very clear that his mandate was to try to bring everybody together as a more
cohesive team and try to bring anybody into the fold that was ready, willing, and able to be a
productive team member. (Exhibit 3, Depo. of Salyer at 94:10-13). Salyer quickly identified Ms.
Wagner and her supervisor, Ms. Noe, as people that were not ready, willing, and able to be productive
team members. (Exhibit 3, Depo. of Salyer at 94:14-19).
47. While Salyer claimed that Ms. Wagner exhibited a bad attitude and that there are ample notes
and records to confirm the same (Exhibit 3, Depo. of Salyer at 95:6-96:8), the Defendant has been

unable to proffer any documents reflecting the same at all. This is despite the fact that Salyer testified
that his team would have such notes and records. (Exhibit 3, Depo. of Salyer at 96:5-8).
48. Further confirming the falsity of Salyers claims is the fact that he never issued any discipline
to Ms. Wagner and cannot recall any discipline ever being issued to Ms. Wagner. (Exhibit 3, Depo. of
Salyer at 96:25-97:4).
49. Backtracking from his claims of terminating Ms. Wagner for her attitude, Salyer was clear that
the real reason for her termination was simply just a layoff. (Exhibit 3, Depo. of Salyer at 107:17).
50. However, while citing budgetary constraints as the reason for Ms. Wagner being laid off,
claiming that there would be documents reflecting the same and claiming extensive communications
with Human Resources (Exhibit 3, Depo. of Salyer at 109), the Defendant cannot proffer any
documents reflecting that there was an investigation done with a team, or that the Defendant was
actually reducing its workforce. In fact, the Defendants fiscal year begins in October and the 2013/14
budget (Resolution No. 13-09-29) had been approved by the Defendant on September 18, 2013.
(Exhibit 15, Minutes Adopting 2013/14 Budget). The Defendant actually increased the EDO budget
for 2013/14. (Exhibit 15, Minutes Adopting 2013/14 Budget, pp. 38, 77). Thus, no budget cuts were
necessary or authorized in the EDO in October 2013.
51. The Defendant has an explicit policy for reducing the workforce. (Exhibit 10, Reduction in
Force Policy). In that policy, the Defendant states that the criteria for determining lay-offs would be
based upon: a) performance for the past five years; b) conduct and corrective actions for the past five
years, and; c) record of unexcused absence or abuse of leave for the past five years.
52. Ms. Wagner was not the least senior (Exhibit 3, Depo. of Salyer at 111:19-21), had terrific
performance reviews (Exhibit 7 and Exhibit 11) and has absolutely no record of discipline.
53. Furthermore, the Defendants claim that Ms. Wagner was laid off is patently false as the
Defendant failed to follow or even attempt to follow its own stated RIF policy (Exhibit 10), which
requires:
Department and/or Division Directors [Salyer] shall present a proposed list of affected
employees and corresponding positions with all supporting documentation to a
Reduction in Force (RIF) Committee. The RIF Committee shall consist of the Director
of Human Resources, Budget Director, a representative from County Administration and
the County Attorney (or assigned designees). The Department and/or Division Directors
of the affected departments will be consulted as appropriate. The Director of Human
Resources or designee shall be responsible for the dissemination of appropriate
information regarding the RIF process. The Committee will provide recommendations
on the final list to the County Manager along with documented reasons for the decisions.
54. Despite Salyers testimony that there were many discussions and meetings regarding a
reorganization, Ms. Wagners employment status was discussed by the Defendant on only two
occasions, the latest of which was January 2013. (Exhibit 12, Defendants Amended Response to
Interrogatory No. 3). This was despite Salyer again claiming that there would be clear records of
documents relating to an EDO reorganization. (Exhibit 3, Depo. of Salyer at 112:12-17).

55. Ms. Wagners position was not actually eliminated and remained open on the Defendants
organizational chart long after her separation. (Exhibit 13, Defendants Organizational Chart).
56. The Defendant has stated that there are no documents related to Ms. Wagners separation,
which response was further to a request by the Plaintiff for the Defendant to identify each meeting,
telephone call, or email correspondence where Ms. Wagners employment status or job performance
were discussed. (Exhibit 12, Defendants Response to Interrogatory No. 3).
57. Of the five employees who cooperated with the audit, Salyer terminated four of them (and one
resigned). As Mr. Salyer testified, it [the audit] played a role. (Exhibit 3, Depo. of Salyer at 173:17).
58. While Mr. Salyer claimed that upon taking office he and a committee conducted a review and
decided who to lay off, the Defendant cannot produce even one document to support such a claim.
MEMORANDUM OF LAW
I.

SUMMARY JUDGMENT STANDARD.

An award of summary judgment is proper "if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
To that end, "[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Such a dispute is genuine only "if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether
summary judgment is appropriate, the Court evaluates the evidence in the record, "including
depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials . . . ." Fed. R. Civ. P. 56(c)(1)(A). All evidence,
and factual inferences reasonable drawn from that evidence, must be viewed in the light most favorable
to the nonmoving party. Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008) (citations
omitted). The Courts role is to "determine whether there is a genuine issue for trial." Anderson, 477
U.S. at 249. A genuine issue of material fact exists if there is sufficient evidence favoring the
nonmoving party for a reasonable jury to return a verdict in its favor. Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 884 (U.S. 1990).

The burden of proof on a FLSA-exemption affirmative defense squarely rests upon the Defendant.
Adams v. BSI Mgmt. Sys. Am., 523 Fed. Appx. 658, 660 (11th Cir. Ga. 2013). The Eleventh Circuit has
made clear that FLSA exemptions are to be narrowly construed against the employer. Abel v. S. Shuttle
Servs., Inc., 631 F.3d 1210, 1212 (11th Cir. 2011). Likewise, the FLSAs provisions are to be
interpreted liberally in the employee's favor. See Birdwell v. City of Gadsden, 970 F.2d 802, 805 (11th
Cir. 1992). Based upon the record put before the Court, there is no evidence on the record to allow a
jury to arrive at ruling in the Defendants favor for the reasons discussed infra.
II.

SUMMARY JUDGMENT IS APPROPRIATE AS MS. WAGNER PRESENTS BOTH


DIRECT AND CIRCUMSTANTIAL EVIDENCE THAT THE DEFENDANT
CANNOT OVERCOME.
A. Legal Standard.

Florida's Public Whistleblower Act (PWA) was enacted, among other reasons, to prevent public
employers from taking retaliatory action against employees who report to an appropriate agency
the mismanagement, misfeasance, or malfeasance of public funds on the part of their employer.
112.3187(1). When evaluating claims under this Act, the Court must do so in the same manner as
claims brought under Title VII of the Civil Rights Act of 1964. Sierminski v. Transouth Fin. Corp.,
216 F.3d 945, 950 (11th Cir. 2000). Therefore, to establish a prima facie claim under the PWA, a
plaintiff must illustrate that 1) she engaged in a statutory protected activity; 2) she suffered an adverse
employment action; and 3) there was a causal connection between the two events. Castro v. Sch. Bd. of
Manatee Cnty., Fla., 903 F.Supp.2d 1290, 1302 (M.D. Fla. 2012) (citing Fla. Dept. of Children and
Families v. Shapiro, 68 So. 3d 298 (Fla. 4th DCA 2011)).
B. Ms. Wagner Proves Her Prima Facie Case With Circumstantial and Direct
Evidence.
The Court must first determine whether Ms. Wagner engaged in a statutory protected activity. To
engage in such an activity, Ms. Wagner must have disclosed information about an act of
mismanagement, malfeasance, or misfeasance of public funds to a chief executive officer, which, in
10

the school district context, is the school district's superintendent. 112.3187(5)-(7). Here, there is no
question that Ms. Wagner engaged in a statutory protected activity when she fully cooperated with the
audit of the EDO, which the Defendant does not dispute. (SUF 34). The Defendant further does not
dispute that Ms. Wagner was terminated from her employment. (SUF 40). As such, the first two
prongs are not at issue here. As such, the inquiry turns to the causal connection, and a plaintiff need
only demonstrate that her protected activity was a motivating factor in the employers decision.
Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir. 1999).
i. Ms. Wagner Presents Clear and Unequivocal Direct Evidence of
Retaliation.
It is well-settled that a plaintiff may establish a prima facie case of discrimination through direct
evidence. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999);
Williamson v. Adventist Health Sys./Sunbelt, Inc., 372 Fed. App'x 936, 940 (11th Cir. 2010). The
Eleventh Circuit has defined direct evidence "as evidence which reflects a discriminatory or retaliatory
attitude correlating to the discrimination or retaliation complained of by the employee." Damon, 196
F.3d at 1359. Blatant remarks, whose intent could be nothing other than to discriminate, constitute
direct evidence of discrimination. Van Voorhis v. Hillsborough County Bd. of County Comm'rs, 512
F.3d 1296,1300 (11th Cir. 2008) (citing Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)
(alterations omitted)). The Eleventh Circuit has made clear that statements such as "[I don't] want to
hire any old pilots," "Fire Early-he is too old," or "when the position open[s] up, the company [will] be
looking for a person younger than Lindsey to fill it" constitute direct evidence of age discrimination.2
Id.; Earley v. Champion Ml Corp., 907 F.2d 1077, 1081 (11th Cir. 1990); Lindsey v. American Cast
Iron Pipe Co., 772 F.2d 799, 801-02 (11th Cir. 1985). Direct evidence of discrimination is a statement
such that no inference is necessary to conclude that the bias necessarily motivated the decision.
Damon, 196 F.3d at 1359.
2

Citing examples of direct evidence of age discrimination.

11

Here, Ms. Wagner presents direct evidence, which negates the need for the typical McDonnellDouglas burden-shifting framework. See Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008).3
After Ms. Wagner cooperated with the audit and provided extensive information, the EDOs director
explicitly stated that those who cooperated with the audit would be fired.4 (SUF 37). Such a threat is
not one that is open to different interpretations: Ms. Wagner, and three others who participated in the
audit, were all terminated, as threatened- no reasonable jury could conclude that Ms. Wagners
termination was not related thereto. As such, Ms. Wagner has presented precisely the kind of direct
evidence of discrimination that proves the existence of the discrimination without any inference or
presumption. Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 854 (11th Cir. 2010) (finding that
a reasonable jury could find that, "You're fired, too. You're too religious" was direct evidence of
discrimination). As such, summary judgment is due to be granted in Ms. Wagners favor.
ii. Ms. Wagner Presents Irrefutable Circumstantial Evidence of Retaliation.
Furthermore, even applying McDonnell-Douglas, Ms. Wagner establishes a prima facie case and
unequivocally disproves the Defendants proffer that the legitimate business reason for Ms. Wagners
separation was that she was laid-off, presenting overwhelming, irrefutable circumstantial evidence. To
establish pretext, a plaintiff must show that Defendant's "'explanation is unworthy of credence.'"
Jackson v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005). This requires showing
"both that the reason was false, and that discrimination was the real reason" for the adverse action. St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) (internal
quotation marks omitted). Here, the Defendants proffered legitimate reasons were not what actually

See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000) ("Disparate treatment claims
require proof of discriminatory intent either through direct or circumstantial evidence. . . . Absent direct evidence, a
plaintiff may prove intentional discrimination through the familiar McDonnell Douglas paradigm for circumstantial
evidence claims.") (citations omitted); accord Harris v. Sec'y of the Army, 119 F.3d 1313, 1320 (8th Cir. 1997) ("Because
she has no direct evidence of discrimination, Harris' sex discrimination claim is governed by the burden shifting analysis
first articulated in McDonnell Douglas v. Green.").
4
Mr. Salyer was present at this meeting. Moreover, such a statement is part of a regularly kept business record and
is a statement of a party opponent, thus being admissible evidence.

12

motivated its conduct.' Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (quoting
Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994) (citation omitted)).
Mr. Salyer, the decision-maker, clearly testified that he knew of the audit, that he assumed Ms.
Wagner participated and that the audit played a significant role in his decision to separate four of the
five EDO employees who cooperated with the audit of the EDO. (SUF 38-46, 57). He further
testified that those employees, including Ms. Wagner, who he identified as being not on board, who
also are the exact same employees who participated in the audit, were terminated. (SUF 38-46, 57).
Furthermore, any claim by the Defendant that Ms. Wagners separation was simply a lay-off is belied
by the stark absence of any evidence to remotely support that Salyer or his team conducted a review
of the EDO, exchanged written communications with Human Resources or other staff, and followed
any of the Defendants own reduction in force policy. (SUF 45-54). In fact, the 2013/14 Budget had
been approved by the Defendant in September 2013, and thus no budget cuts were necessary or
authorized in the EDO in October 2013. (SUF 50). Furthermore, the Defendant did not eliminate Ms.
Wagners position as evidenced by the fact that the Defendant kept Ms. Wagners position open and
publicly disclosed the same on their organizational chart. (SUF 55). Simply put, given the
Defendants complete lack of evidence to support that Ms. Wagner was laid-off, no reasonable jury
could find that the Defendants stated reason for terminating Ms. Wagner is worthy of credence or was
done for legitimate business purposes, particularly where the decision-maker himself has testified as to
Ms. Wagners perceived role in the audit, which audit formed the basis for his employment decisions
to terminate four of the five members of staff who cooperated with the audit, including Ms. Wagnerthis in addition to the EDO directors clear threats that those who testified in the audit would be fired.
Based on the overwhelming, uncontroverted evidence in this matter, Ms. Wagner has
unequivocally demonstrated that the Defendants stated reason for terminating her is nothing more
than a pretext for prohibited, retaliatory conduct. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460

13

(11th Cir. 1998)(citations omitted). As such, no reasonable jury could find the Defendants claims of a
lay-off to be worthy of credence, and thus summary judgment is appropriately entered in favor of Ms.
Wagner. Id. (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996)
(citation and internal quotation marks omitted)).
III.

SUMMARY JUDGMENT IS APPROPRIATE AS THE DEFENDANT CANNOT


MEET ITS BURDEN IN PROVING ENTITLEMENT TO CLASSIFY MS.
WAGNER AS EXEMPT UNDER THE FLSA.
A. Burden of Proof & Necessary Elements in FLSA Administrative Exemption Cases.

The FLSA requires employers to pay covered employees at an overtime rate if they work more
than 40 hours in a workweek. 29 U.S.C. 207(a)(1). But employees who are "employed in a bona fide
. . . administrative . . . capacity" are exempt from the overtime-pay requirement. Id. 213(a)(1). An
employee employed in a bona fide administrative capacity is one: (1) who is paid a salary of at least
$455 per week; (2) "[w]hose primary duty is the performance of office or non-manual work directly
related to the management or general business operations of the employer or the employer's
customers;" and (3) "[w]hose primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance." 29 C.F.R. 541.200(a)(emphasis added). The term
"primary duty" is further defined as follows:
To qualify for exemption under this part, an employee's "primary duty" must be the
performance of exempt work. The term "primary duty" means the principal, main,
major or most important duty that the employee performs. Determination 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. Factors to consider
when determining the primary duty of an employee include, but are not limited to, the
relative importance of the exempt duties as compared with other types of duties; the
amount of time spent performing exempt work; the employee's relative freedom from
direct supervision; and the relationship between the employee's salary and the wages
paid to other employees for the kind of nonexempt work performed by the employee.
29 C.F.R. 541.700(a). "'Primary duty' does not mean the most time-consuming duty; it instead
connotes the 'principal' or 'chief' meaning the most important duty performed by the employee."

14

Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 504 (6th Cir. Ohio 2007) (quoting Donovan v.
Burger King Corp., 672 F.2d 221, 226 (1st Cir. 1982)).
The most important consideration is a Plaintiff's actual activity rather than her title. "[C]ourts must
focus on the actual activities of the employee in order determine whether or not he is exempt from the
FLSA's overtime regulations." Ale v. Tenn. Valley Auth., 269 F.3d 680, 688-89 (6th Cir. 2001); see
also 29 C.F.R. 541.103 (providing that the "determination of whether an employee has management
as his primary duty must be based on all the facts in a particular case."). Here, the parties agree that the
first requirement of the administrative-employee exemption is satisfied as Wagner was paid a salary of
in excess of $455.00/week. See 29 C.F.R. 541.200(a)(1).
B. Ms. Wagners Secretarial Duties are Generally Non-Exempt Under the FLSA
and Her Actual Duties are Specifically Non-Exempt.
"[T]he exercise of discretion and independent judgment involves the comparison and the evaluation
of possible courses of conduct and acting or making a decision after the various possibilities have been
considered." 29 C.F.R. 541.207(a) (2002). The exercise of discretion and independent judgment
"implies that the person has the authority or power to make an independent choice, free from
immediate direction or supervision and with respect to matters of significance." Id. However,
employees can exercise discretion and independent judgment "despite the fact that their decisions or
recommendations are reviewed at a higher level." Id. at 207(e)(2).
However, several courts have held that the specific job duties such as those that Ms. Wagner
exercised were non-exempt. For example, collecting information from prospective tenants, verifying
references and other information, contacting potential applicants regarding apartment availability,
preparing "reports," writing receipts, performing minor repairs and getting help for repairs she could
not do and forwarding invoices for payment were tasks all held to resemble the work of non-exempt
"bookkeepers, secretaries, and clerks of various kinds [who] hold the run-of-the-mine positions in any
ordinary business." Jarrett v. ERC Props., 211 F.3d 1078, 1082 (8th Cir. Ark. 2000)(citing 29 C.F.R.
15

541.205(c)(1)). There, the Eighth Circuit found most of these were nothing more than "routine clerical
duties," 29 C.F.R. 541.205(c)(2), and the rest were manual labor. In fact, this Court followed Jarrett
in Cusumano v. Maquipan Int'l, Inc., 2005 U.S. Dist. LEXIS 30257 (M.D. Fla. Nov. 30, 2005).
As discussed supra, in Cusumano, this Court followed that employee with title of "site manager"
was not exempt as an administrative employee where her duties included collecting applications,
verifying references, contacting potential applicants, preparing reports, verifying payments and writing
receipts, performing minor repairs, cleaning, and forwarding invoices for payment were duties that did
not require exercise of discretion or independent judgment, and were thus non-exempt. Cusumano at
*20. This Court further clarified that the administrative exemption does not merely apply just because
an employee works within an employers administration, but rather that an employee was not exempt
under the administrative exemption where their primary job did not relate to employer's administrative
operations, in that s/he did not advise management, plan, negotiate, represent the business, make
purchases, promote sales, or engage in research or control; employee did not perform work of
substantial importance, in that s/he did not make significant input into decisions affecting company.
Id., citing Martin v. Ind. Mich. Power Co., 381 F.3d 574, 582-83 (6th Cir. 2004).
The exercise of discretion and independent judgment requires more than "work along standardized
lines involving well-established techniques and procedures which may have been cataloged and
described in manuals or other sources." 29 C.F.R. 541.207(c)(2). Types of work that do not require
the exercise of discretion and independent judgment include clerical or secretarial work, highly
technical and mechanical operations, and other routine work. Id. at 207(c)(5), (c)(7), (d)(2); see also
Templet v. Hard Rock Constr. Co., 2003 U.S. Dist. LEXIS 20681 (E.D. La. Nov. 17, 2003)(awarding
liquidated damages as receptionist duties clearly non-exempt under the FLSA); Black v. Settlepou,
P.C., 732 F.3d 492 (5th Cir. Tex. 2013)(finding legal secretary to be non-exempt under the FLSA).

16

In Cusumano, this Court compared several other cases where the administrative exemption was
applicable and distinguishable. For example, in Hogan v. Allstate Ins. Co., 361 F.3d 621, 627 (11th
Cir. 2004), the Eleventh Circuit held that plaintiffs were exempt as administrative employees where
they spent majority of time servicing customers, and their duties, which were of substantial importance
to employer, included promoting sales, advising customers, adapting policies to customer's needs,
deciding on advertising budget and techniques, hiring and training staff, determining staff's pay,
and delegating routine matters and sales to said staff; and given nature of duties, plaintiffs exercised
discretion. These were the kind of duties that rose to the level of matters of significance.
In Cowart v. Ingalls Shipbuilding, Inc., 213 F.3d 261, 267 (5th Cir. 2000), the Fifth Circuit held
that an employee worked in a bona fide administrative capacity where their work was primarily
intellectual and involved little or no manual labor or mechanical work. Similarly, in Reyes v.
Hollywood Woodwork, Inc., 360 F. Supp. 2d 1288, 1292-93 (S.D. Fla. 2005), the District Court held
that an employee was exempt as an administrative employee where he prepared bids that were an
important part of employer's general business operations and necessary for the employer to obtain
production work and sell products, and the employee used discretion and judgment in pricing portions
of bids.
Conversely, and much more akin to the instant matter, the Cusumano plaintiff also did not
supervise two or more people on a daily basis, and did not have the authority to hire or fire anyone.
Moreover, there is no evidence that the Plaintiff here or in Cusumano, inter alia: had the ability to
formulate and implement managerial policies or operating procedures; had the ability to commit the
Defendant in matters with a significant financial impact; was able to deviate from policies and
procedures without approval; was involved in long term planning; or performed work having a
significant impact on the Defendant's business. Consequently, this Court declined to extend the

17

administrative exemption to cover the Cusumano plaintiff, and the Court should do the same in regard
to Ms. Wagner.
C. Prong Two: Plaintiff Did Not Perform Office Work Related to Management or
General Business Operations.
The Defendant cannot establish that, nor raise a genuine issue of material fact regarding whether,
Ms. Wagner's primary duty is "directly related to management policies or general business operations
of his employer or his employer's customers." 29 C.F.R. 541.2(a)(1), 541.214(a). This provision, in
addition to describing the types of activities performed by an exempt employee, "limits the exemption
to persons who perform work of substantial importance to the management or operation of the
business of his employer or his employer's customers." 29 C.F.R. 541.205(a)(emphasis added).
1. The Plaintiff Did Not Exercise Independent Discretion Within Her Job,
and Any Discretion Was Certainly Not Her Primary Duty.
As this Court made clear in Cusumano v. Maquipan Int'l, Inc., 2005 U.S. Dist. LEXIS 30257
(M.D. Fla. Nov. 30, 2005), n. 6., "[t]he term 'primary duty' means the principal, main, major or most
important duty that the employee performs." 29 C.F.R. 541.700(a). "Factors to consider when
determining the primary duty of an employee include, but are not limited to, the relative importance of
the exempt duties as compared with other types of duties; the amount of time spent performing exempt
work; the employee's relative freedom from direct supervision; and the relationship between the
employee's salary and the wages paid to other employees for the kind of nonexempt work performed
by the employee." Id. This Court in Cusumano (n.6) further quoted the Regulations in highlighting
that:
"The amount of time spent performing exempt work can be a useful guide in
determining whether exempt work is the primary duty of an employee. Thus, employees
who spend more than 50 percent of their time performing exempt work will generally
satisfy the primary duty requirement. Time alone, however, 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. Employees who do not spend more than 50 percent
of their time performing exempt duties may nonetheless meet the primary duty
requirement if the other factors support such a conclusion."
18

29 C.F.R. 541.700(b).
Based upon all of the evidence in this matter, it is evident that Ms. Wagner possessed no
independent decision-making authority and that even if she did somehow possess some limited
decision-making authority, it certainly was not at all part of her primary duties. (SUF 7-29). The
Defendant can only present conclusory statements that Ms. Wagner's work is directly related to
management policies or general business operations of the employer, which is nothing more than a
conclusory statement. (SUF 6). Previously, the Defendant essentially argued that because Ms.
Wagners work was related to the general business mission of the Defendant, this alone satisfies the
second prong. (See Doc. 41, p. 6). However, this is wholly insufficient, both factually and legally, and
the Defendant simply concludes that Wagners duties must qualify under the second prong of the test.
As discussed infra, they do not.
Courts have rejected the argument that all work that is not production work is automatically
"directly related to management policies or general business operations of the employer." Schaefer v.
Ind. Mich. Power Co., 358 F.3d 394, 402-403 (6th Cir. Mich. 2004). Ms. Wagners primary job duty
does not "relate to the administrative operations" at the EDO. "The administrative operations of the
business include the work performed by so-called white-collar employees engaged in 'servicing' a
business as, for example, advising the management, planning, negotiating, representing the
company, purchasing, promoting sales, and business research and control." 29 C.F.R.
541.205(b)(emphasis added). The evidence is clear: Ms. Wagner was in no way involved in "advising
the management, planning, negotiating, representing the company, purchasing, promoting sales, and
business research and control." See also Renfro v. Ind. Mich. Power Co., 370 F.3d 512, 517 (6th Cir.
Mich. 2004) ("planners" were bona fide administrative employees where their primary duty fell within
this definition of "servicing" the business). Wagner's job, instead, was purely secretarial and thus nonexempt under the FLSA. (SUF 7-29).
19

Nor is Ms. Wagner's work "of substantial importance to the management or operation of the
business of h[er] employer." 29 C.F.R. 541.205(a). Work that is of substantial importance "is not
limited to persons who participate in the formulation of management policies or in the operation of the
business as a whole," but includes employees whose work "affects policy or whose responsibility it is
to execute or carry it out." 29 C.F.R. 541.205(c)(emphasis added). This is simply not applicable to
Ms. Wagners duties at the EDO, as her supervisor confirms.
Interestingly, the Defendant cannot present any argument that Ms. Wagner's work itself is "of
substantial importance to the management or operation of the business of the employer." Indeed, the
Defendant cannot successfully argue that Ms. Wagner's secretarial work itself is "of substantial
importance to the management or operation of the business of [the] employer" because Ms. Wagner
made absolutely no decisions that affect even a small segment of the EDOs operations in which her
work is performed- while her absence from work might mean that work would pile up, her absence
would not affect any decision-making that needed to be done and thus the operations of the EDO
would be unaffected. (SUF 7-29). To that point, Mr. Salyer confirms that Ms. Wagner was allegedly
replaced by computer software. (SUF 32). Ms. Wagner did not determine what types of workstations,
network, hardware, or software the EDO employs; she was not involved in the design or development
of EDO's network; she did not decide what software will be available to the EDO's computer users or
determine how that software will be configured; and she did not decide or recommend when
equipment must be serviced or replaced. (SUF 7-29). Rather, all she did was use a system wholly
designed and approved by others. There is no evidence that she has any input into the nature of the
computer resources available to the EDOs employees, nor any evidence that she affected any policy
changes or implementation while employed with the Defendant. She was a simply secretary with a
different title.

20

Through Glen Salyer, and without any factual basis (particularly given that he was not her
supervisor and had only been in his position for eight weeks prior to terminating Ms. Wagner)(SUF
30), the Defendant previously tried to argue that Ms. Wagner's work is complex or unique, rather
than what it really is: routine, clerical, secretarial work. Apparently lost on the Defendant is the
requirement from a portion of the regulation that states: "[a]n employee performing routine clerical
duties obviously is not performing work of substantial importance . . . ." 29 C.F.R. 541.205(c)(2).
The fact that the Defendant does not even attempt to derive the negative from this proposition and say
that the duties of Ms. Wagners work were complex rather than "routine clerical work" is of
substantial importance. Mere complexity would not make her work substantially important under the
regulations.
Importantly, Ms. Wagners work was not of "substantial importance" just because of the value of
the systems she works on or because some of the information is confidential. The Regulations,
explain that it is the work itself that must be of substantial importance and not the size of the
consequences or loss that may result from improper performance of the employee's duties. As the
Regulations note, an employee operating a very expensive piece of equipment, a messenger boy
entrusted with carrying large sums of money, and an inspector for an insurance company can all cause
their employers serious loss by failure to perform their jobs properly, but "such employees, obviously,
are not performing work of such substantial importance to the management or operation of the
business that it can be said to be 'directly related to management policies or general business
operations' as that phrase is used in 541.2." 29 C.F.R. 541.205(c)(2) (giving the examples of the
messenger boy, the equipment operator, and the insurance inspector).5

To the extent that the Defendant may argue that the level of supervision is relevant to the inquiry, such an
argument is misplaced. While the fact that an employee works independently might be argued to shore-up a conclusion that
a worker is doing work of "substantial importance," that fact standing alone has little relevance to the inquiry. Night
janitorial workers, for example, often work independently and without direct supervision, as do any number of skilled
tradesmen such as plainly non-exempt electricians and plumbers.

21

Ms. Wagner's salary is simply not evidence that her work is of substantial importance since she
makes more than other non-exempt persons occupying the position of an administrative assistant.
(SUF 1-2). Salary may be used to determine the primary duty of an employee who performs both
exempt and non-exempt tasks by comparing his/her salary to the salary of employees who are just
doing the nonexempt tasks, see 29 C.F.R 541.103, not to determine the nature of those tasks
themselves. Salary differential does not answer the substantial importance question. The fact that a
non-exempt, unionized, skilled plumber may earn more than an exempt public school teacher does not
change the nature of the plumber's work.
In sum, the evidence in this case utterly fails to establish that Ms. Wagners work is "directly
related to management policies or general business operations of his employer or her employer.
(SUF 7-29). Where, like Ms. Wagner, a plaintiff's primary duties consist of mailing form letters,
fielding customer complaints, or developing a filing system, such are merely clerical in nature and are
not related to management policy or general business operations of the employers as required under
the second prong of the administrative exemption. See, e.g, Cusumano v. Maquipan Intern., Inc., 2005
U.S. Dist. LEXIS 30257 (M.D. Fla. 2005)(employee was non-exempt where his primary duties
involved working with customers, demonstrating products, and repairing products). Consequently, the
Plaintiffs Motion is due to be granted as the Defendant cannot present any evidence sufficient to
present a genuine issue of material fact as to the second prong of the administrative exemption test.
D. Prong Three: Ms. Wagners Primary Duties Simply Did Not Involve the
Exercise of Discretion and Independent Judgment on Matters of Significance.
The administrative exemption test requires that an employee's primary duties involve "the exercise
of discretion and independent judgment with respect to matters of significance." 29 C.F.R.
541.202(a). "The phrase 'discretion and independent judgment' must be applied in the light of all the
facts involved in the particular employment situation in which the question arises." Id. at 541.202(b).

22

The Department of Labor regulations provide a non-exhaustive list of factors that may be considered
when determining whether an employee exercises discretion:
[W]hether the employee has authority to formulate affect, interpret, or implement
management policies or operating practices; whether the employee carries out major
assignments in conducting the operations of the business; whether the employee
performs work that affects business operations to a substantial degree, even if the
employee's assignments are related to operation of a particular segment of the business;
whether the employee has authority to commit the employer in matters that have
significant financial impact; whether the employee has authority to waive or deviate
from established policies and procedures without prior approval; whether the employee
has authority to negotiate and bind the company on significant matters; whether the
employee provides consultation or expert advice to management; whether the employee
is involved in planning long-or short-term business objectives; whether the employee
investigates and resolves matters of significance on behalf of management; and whether
the employee represents the company in handling complaints, arbitrating disputes or
resolving grievances.
Id.
Based on the evidence in this case, Ms. Wagner's primary duties at the EDO utterly failed to
involve the exercise of discretion and independent judgment with respect to matters of significance.
(SUF 7-29). The proffered evidence shows that Ms. Wagners duties did not at all call for her to
exercise even limited discretion, let alone discretion on matters of significance to the EDO. (SUF 729). Ms. Wagners own supervisor confirms that Ms. Wagner received all directions from her
supervisor and that Ms. Wagner simply executed the duties of a secretary according to the instructions
of her superior. (SUF 20, 27-28). Ms. Wagner's discretion was so limited that even reordering office
supplies had to be cleared with her supervisor, Ms. Noe. (SUF 26). Ms. Wagner had no specialized
training and simply performed the secretarial duties she was assigned by Ms. Noe, such as getting
water for meetings and similar tasks. (SUF 7, 18, 21, 25, 27, 29). Ms. Wagners duties were routine
and did not require the exercise of significant discretion or independent judgment. (SUF 7-8, 14, 19,
21, 23). Nowhere in Ms. Wagners Job Description, particularly in the Skills/Physical Requirements
section, is there any duty that could be said to be an exercise of independent discretion on maters of
significance. (Exhibit N, Job Description).
23

Upon due consideration of the record evidence regarding Ms. Wagner's work activities, the Court
should properly conclude that her primary duties at the EDO did not involve the exercise of discretion
and independent judgment with respect to matters of significance. As previously discussed, cases
considering employees with very similar duties to Ms. Wagners have declined to apply the
administrative exemption. For example, the employee in Gottlieb v. Constr. Servs. & Consultants, Inc.,
2006 U.S. Dist. LEXIS 97446, 2006 WL 5503644 (S.D. Fla. July 20, 2006) was employed as a project
supervisor in a construction company and his responsibilities included scheduling subcontractors,
ordering supplies, billing on the construction site, and inspecting to make sure the subcontractors' work
complied with the "blue prints, truss prints, and start up sheets." Gottlieb at *2. Although the Gottlieb
plaintiff could make certain decisions on his own without consultation with his area manager, the
district court found that "all 'matters of significance' were determined by Plaintiff's superiors." 2006
U.S. Dist. LEXIS 97446, [WL] at *7. For example, the plaintiff could not hire a subcontractor that was
not on his area manager's approved list. Id. The decision to back-charge a subcontractor for work left
unfinished was also made by the plaintiff's area manager. Id. There, way more so than in the instant
case, the Gottlieb plaintiff had significant decision making authority on matters of some importance
but the court was crystal clear in holding that for those decisions that the plaintiff did make on his own,
they were "based on his skill and experience in the construction industry." Id. Under the FLSA
regulations, "[t]he exercise of discretion and independent judgment must be more than the use of skill
in applying well-established techniques, procedures or specific standards described in manuals or other
sources." Id.; 29 C.F.R. 541.202(e). Thus, the court found that the third prong of the administrative
exemption test was not met. Gottlieb, 2006 U.S. Dist. LEXIS 97446, 2006 WL 5503644, at *7.
In this case, the overwhelming majority of Ms. Wagner's work performance was proscribed for her
by her supervisor, Ms. Noe. After careful consideration of Ms. Wagner's activities and responsibilities
during her employment at the EDO and after an analysis of her work under both the provisions of

24

FLSA and the implementing regulations thereto, the Court should properly find that Ms. Wagner is not
exempt under the third prong of the administration exemption test. Consequently, the Plaintiff's Motion
for Summary Judgment as to the third prong of the administrative exemption test is due to be granted.
The Defendant simply cannot present sufficient evidence such that a reasonable jury could find
Ms. Wagner was employed in a bona fide administrative capacity. Furthermore, the clear evidence
here supports but one conclusion: Ms. Wagners job did not relate to the EDO's administrative
operations in that she did not advise management, did not plan, did not negotiate, did not represent the
EDO, did not make purchases, did not promote sales and did not engage in research or control. The
evidence is clear that Ms. Wagner did not perform work of any substantial importance, nor did she
engage in independent decision-making, in that she did not make significant input into decisions
affecting the EDO. The Defendant has proffered no evidence whatsoever to rebut this conclusion
despite having the burden to do so and, as a result, the Plaintiffs Motion for Summary Judgment as to
Count X is due to be granted.
CONCLUSION
In light of the foregoing undisputed facts and applicable law, the Plaintiff respectfully requests that
this Court grant the Plaintiffs Motion for Summary Judgment as to Counts IX and X, respectively, and
award all other relief deemed just.
Respectfully submitted,

Dated: August 21, 2015

/s/ Benjamin H. Yormak


Benjamin H. Yormak
Florida Bar Number 71272
Trial Counsel for Plaintiff
Yormak Employment & Disability Law
9990 Coconut Road
Bonita Springs, Florida 34135
Telephone: (239) 985-9691
Fax: (239) 288-2534
Email: byormak@yormaklaw.com
25

CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2015, I electronically filed the foregoing (and exhibits) with
the Clerk of Court by using the CM/ECF system. I further certify that I mailed the foregoing document
and the notice of electronic filing by first-class mail to the following non-CM/ECF participants: None.

/s/ Benjamin H. Yormak


Benjamin H. Yormak
Florida Bar Number 71272
Trial Counsel for Plaintiff
Yormak Employment & Disability Law
9990 Coconut Road
Bonita Springs, Florida 34135
Telephone: (239) 985-9691
Fax: (239) 288-2534
Email: byormak@yormaklaw.com

26

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