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Courtroom of Appeals of North Carolina.
Arlene KING, Plaintiff, v. WINDSOR CAPITAL GROUP, INC. Defendant.

No. COA05-1354.
Determined: August 01, 2006

Arlene King (“plaintiff”) appeals an order granting summary judgment in favor of Windsor Capital Group, Inc. (“defendant”).

From June 1999 through March 2004, the Renaissance Hotel in Asheville, North Carolina employed plaintiff as Director of Services. In plaintiff’s complaint, she alleged that she is entitled to overtime wages for hours worked throughout her employment.

Plaintiff testified in her deposition that she was hired as a supervisor within the housekeeping companies department.   Plaintiff was considered one of eight managers working for the final hotel supervisor.   As Director of Companies, plaintiff managed approximately twenty-five employees, including three supervisors.   Plaintiff regularly worked as the manager on responsibility, supervising the complete resort.   Plaintiff worked approximately forty to fifty hours per week with out being paid overtime wages.   In addition, she testified that it was not her understanding that she would earn overtime when she was employed.   Plaintiff maintained no report of the hours that she actually worked.   She by no means had a conversation with any of the opposite managers about time beyond regulation wages.

As Director of Services, plaintiff managed the housekeeping, laundry, public area, and turndown service for the resort.   Plaintiff had the authority to fireplace employees, approve go away time, resolve company’ complaints, and handle staff’ disciplinary issues.   She did not, nevertheless, have the authority to hire housekeepers, though she made hiring suggestions.   Plaintiff supplied the final hotel supervisor with info concerning her division’s funds wants.   As well as, plaintiff, as supervisor, was offered an workplace with computer tools with which to perform her duties.   She made a weekly schedule for her supervised workers, and posted the schedule with out receiving prior approval from the lodge basic supervisor.   Plaintiff did not schedule herself for guide labor or housekeeping work.   Moreover, she didn’t have to punch a time clock when she arrived or departed from work, although the employees she managed were required to do so.   Furthermore, plaintiff supplied efficiency opinions for her workers.   As well as, plaintiff accomplished each day time sheets for the staff she supervised, then compiled the every day oil refinery shutdown jobs sydney time sheets into weekly time sheets.

Every day, she arrived at work around 7:00 a.m. Plaintiff attended a daily assembly of her division, although her supervisors led the meeting.   Sometimes, she inspected rooms after supervisors cleaned the rooms, she sent laundry personnel to wash the rooms, or she helped clear the rooms.   As well as, she additionally performed manual labor such as making beds, inspecting and cleansing rooms, doing laundry, and completing seamstress work on an as wanted foundation.   Plaintiff testified that until 2001, she spent approximately fifty percent of her time performing handbook labor, and between 2001 and 2004, she spent approximately eighty p.c of her time performing handbook labor.   Defendant terminated plaintiff in March 2004.

On 30 August 2004, plaintiff filed a complaint against defendant alleging violation of payday and overtime wages underneath “state and/or federal additional time wage laws” and breach of contract.   Defendant filed a timely reply.   On 21 June 2005, defendant filed a movement for summary judgment.   On 29 June 2005, after a hearing on the movement, the Honorable Charles P. Ginn entered an order granting abstract judgment in favor of defendant.   Plaintiff appeals to this Courtroom.

On appeal, plaintiff argues solely that the trial court docket erred in granting summary judgment in favor of defendant as a result of genuine points of fabric reality exist concerning whether the Honest Labor Standards Act requires that defendant pay plaintiff additional time wages.   We disagree.

Summary judgment is acceptable “if the pleadings, depositions, solutions to interrogatories, and admissions on file, together with the affidavits, if any, show that there isn’t any real challenge as to any materials truth and that any occasion is entitled to judgment as a matter of regulation.”  N.C. Gen.Stat.   The transferring celebration bears the burden of displaying that no triable situation of fact exists.  Pembee Mfg. Corp. v. Cape Worry Constr. Co. 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985).   This burden might be met by proving:  (1) that a vital ingredient of the non-moving get together’s claim is nonexistent;  (2) that discovery signifies the non-shifting celebration can not produce proof to assist an essential component of his declare;  or (three) that the non-shifting get together can not surmount an affirmative protection which might bar the declare.   Collingwood v. G.E. Real Estate Equities, Inc. 324 N.C. 63, sixty six, 376 S.E.2d 425, 427 (1989).   Once the transferring occasion has met its burden, the non-transferring occasion should forecast proof that demonstrates the existence of a prima facie case.  Id.

In deciding a motion for summary judgment, a trial court docket should consider the evidence in the sunshine most favorable to the non-moving party.   See Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003).   If there is any proof of a real concern of fabric reality, a movement for abstract judgment must be denied.  Howerton v. Arai Helmet, Ltd. 358 N.C. 440, 471, 597 S.E.2d 674, 694 (2004).  “On attraction, an order allowing abstract judgment is reviewed de novo.”  Id. at 470, 597 S.E.2d at 693.

The Fair Labor Standards Act (“FLSA”) requires employers to pay their workers time and a half for work over forty hours per week until they are “employed in a bona fide executive, administrative, or skilled capability.”  29 U.S.C. §§ 207(a)(1), 213(a)(1) (2005).   In figuring out whether an employee is a bona fide government, employees should fulfill both the “long test” or the “short test.”   See Donovan v. Burger King Corp. 675 F.2d 516, 517-18 (2d Cir.1982).

 On attraction, the events agree that the United States Department of Labor’s “short test” applies in determining whether or not plaintiff was exempt from overtime pay under the Honest Labor Requirements Act (“FLSA”) as an “executive worker.”   As the Fourth Circuit has explained:

An worker shall be exempt below the government exemption’s short test if:  (1) the employee’s primary obligation consists of the administration of the enterprise or of a customarily recognized department or subdivision thereof;  and (2) includes the customary and regular route of the work of two or more other employees therein.

Smith v. First Union Nat’l Financial institution, 202 F.3d 234, 250 (4th Cir.2000).   See additionally 29 C.F.R. § 541.1(f) (2003) (setting out the “short test”).1  In this case, there isn’t any dispute that plaintiff engages within the customary and regular course of the work of two or extra different workers in a customarily acknowledged department or subdivision of the Renaissance Lodge.

Additional, the document establishes-and plaintiff doesn’t seriously dispute-that she carried out management features.   The Division of Labor states that whether or not a selected type of work constitutes managerial and supervisory features is usually “easily recognized.”  29 C.F.R. § 541.102(a) (2003).   Falling squarely within the Department’s listing of types of work constituting exempt management work, 29 C.F.R. § 541.102(b) (2003), are (1) plaintiff’s supervision of 25 employees and the firing, evaluating, and disciplining of these staff;  (2) her work as a supervisor on duty for all the hotel;  (3) her interviewing and advice of potential employees;  and (4) her scheduling of labor in her division.

 The sole dispute on attraction relates to the existence of a genuine situation of material fact relating to whether plaintiff’s major duty as an worker consisted of carrying out these managerial tasks.   The Department of Labor’s laws specify that “[a] dedication of whether an employee has administration as his primary obligation must be primarily based on all of the information in a selected case.”  29 C.F.R. § 541.103 (2003).   We’re, subsequently, required to use a “totality of the circumstances” check.   See Counts v. S.C. Elec. & Gasoline Co. 317 F.3d 453, 456 (4th Cir.2003) (“It is obvious from this language [in 29 C.F.R. §§ 541.103, 541.206 (2003)] that primary responsibility is supposed to be assessed by the totality of the circumstances.”).

The regulations set forth 5 factors for determining whether management is a major obligation, although these elements seem like non-exclusive:  (1) the amount of time spent within the efficiency of managerial duties;  (2) the relative significance of the managerial duties as compared with different kinds of duties;  (three) the frequency with which the worker exercises discretionary powers;  (four) the worker’s relative freedom from supervision;  and (5) the connection between the employee’s salary and the wages paid different staff for the type of nonexempt work performed by the manager.  29 C.F.R. § 541.103 (2003).   See also Jones v. Va. Oil Co. 69 Fed.Appx. 633, 636-37 (4th Cir.2003) (per curiam) (setting forth and making use of the “primary duty” test to a convenience retailer supervisor who spent seventy-five to eighty percent of her time serving to employees when quick-staffed); 2  Donovan v. Burger King Corp. 675 F.2d 516, 520-21 (2d Cir.1982) (Donovan I ) (noting that 29 C.F.R. § 541.103 (2003) “lists 5 factors to be weighed in determining an worker’s major duty”).

 In arguing that administration was not her “primary obligation,” plaintiff relies nearly completely on the first issue:  the time spent on managerial duties.   In doing so, she overlooks the truth that the Division of Labor’s regulations stress that “[t]ime alone ․ will not be the only real check, and in situations the place the worker doesn’t spend over 50 % of his time in managerial duties, he may however have administration as his main obligation if the other pertinent elements support such a conclusion.”  29 C.F.R. § 541.103 (2003).   As the Fourth Circuit has defined:

Thus, the period of time spent on nonmanagement tasks just isn’t dispositive, “particularly when nonmanagement duties are carried out simultaneous to the supervision of employees or other management duties and different components assist a finding that the worker’s major responsibility is managerial.”  Horne v. Crown Central Petroleum, Inc. 775 F.Supp. 189, 190 (D.S.C.1991).   In different words, an worker could have administration as her main responsibility if while engaged in nonexempt work, the employee additionally “ supervises different workers, directs the work of warehouse and delivery males, ․ handles customer complaints, authorizes cost of payments, or performs other management duties as the day-to-day operations require.”  29 C.F.R. § 541.103.

Jones, sixty nine Fed.Appx. at 637,.
Equally, in main selections in this area, each the primary Circuit and Second Circuit have held that a strict time division isn’t essentially a sound check.   As the primary Circuit explained “a strict time division is somewhat misleading right here:  one can nonetheless be ‘managing’ if one is in cost, even while bodily doing something else.”  Donovan v. Burger King Corp. 672 F.2d 221, 226 (1st Cir.1982) (Donovan II ).   In line with the first Circuit, a concentrate on the share of time “seems better directed at conditions where the employee’s administration and non-management functions are extra clearly severable than they’re here.”  Id. The Second Circuit similarly has held that an allocation of time spent on management and non-administration duties is just not dispositive when “much of the oversight of the operation can be carried out concurrently with the efficiency of non-exempt work.”  Donovan I, 675 F.2d at 521.   See also Scherer v. Compass Group USA, Inc. 340 F.Supp.2d 942, 953 (W.D.Wis.2004) (holding that despite the fact that the plaintiff spent seventy-5 % of his day preparing meals and only twenty-5 p.c engaged in managerial duties, administration still was his major responsibility since “it is undisputed that plaintiff monitored the performance of different workers working within the kitchen in the course of the time he spent making ready food”).

Right here, plaintiff’s affidavit stated that she spent fifty p.c to eighty % of her time on “manual” tasks as a result of she was brief-handed.   Her deposition, nevertheless, indicates that this work was not performed independently of her managerial oversight, but fairly was finished in conjunction along with her managerial work, as was true in Jones, the 2 Donovan selections, and Scherer.   She didn’t schedule herself for handbook labor, however slightly pitched in whenever and nevertheless she deemed crucial in order to make sure that the hotel continued functioning.   Courts have declined to view a manager as non-exempt simply because he or she crammed in for common workers whereas short-staffed, even when the lack of staffing was a chronic scenario.   See, e.g. Jones, sixty nine Fed.Appx. at 635, (noting that the plaintiff spent seventy-five to eighty p.c of her time doing primary line-worker duties, when, due to frequent quick-staffing, the store otherwise wouldn’t have been able to serve its clients);  Moore, 352 F.Supp.2d at 1276 (noting that the plaintiff had to perform many non-exempt functions as a result of payroll constraints kept him from hiring more workers).

Thus, a bald assertion that fifty to eighty percent of her time was spent in “manual” duties with out taking into consideration simultaneously carried out management features doesn’t accurately handle the time issue.   See Jones, 69 Fed.Appx. at 637, (“[E]ven assuming that Jones spent the bulk of her time performing such line-worker duties as cooking, cleaning the store, and manning the money register, the file reflects that Jones could concurrently carry out many of her administration tasks.   That is, whereas Jones was doing line-worker tasks, she also engaged within the supervision of staff, handled buyer complaints, handled distributors, and completed daily paperwork.”);   Donovan II, 672 F.2d at 226 (“[A]n worker can manage whereas performing other work, and ․ this other work does not negate the conclusion that his main duty is administration.”).   Accordingly, plaintiff’s assertion regarding the division of her labor-disputed by defendant-shouldn’t be sufficient to defeat abstract judgment in light of the other components specified by the Department of Labor, as quite a few courts, addressing comparable proof, have held. See, e.g. Smith, 202 F.3d at 251 (worker claimed that eighty to ninety percent of her time was spent on non-management duties);  Moore, 352 F.Supp.2d at 1274 (surveying circumstances holding that although an worker spent the vast majority of his or her time performing non-exempt work, administration was nonetheless his or her primary duty).

 Instead of applying a easy clock commonplace, we should, taking a look at all the circumstances, decide whether a problem of truth exists as to what was plaintiff’s “principal” or “chief” accountability, Donovan II, 672 F.2d at 226 (holding that “the more pure studying of ‘primary’ is ‘principal’ or ‘chief,’ not ‘over one-half’ [the worker’s time]”).   Alternatively, as one federal district court docket has held, “[u]nder the ‘short take a look at,’ the worker’s main duty will normally be what he does that is of principal worth to the employer, not the collateral tasks that he can also perform, even if they eat more than half his time.”  Kastor v. Sam’s Wholesale Club, 131 F.Supp.2d 862, 866 (N.D.Tex.2001).

After the time factor, the second issue is the relative importance of an worker’s managerial tasks as in comparison with her non-managerial work.   With respect to this issue, courts have typically checked oil refinery shutdown jobs sydney out the importance of the managerial duties to the success of the enterprise.  Jones, sixty nine Fed.Appx. at 637-38,.  See also Donovan I, 675 F.2d at 521 (stating, as to the second factor, that “it is clear that the restaurants couldn’t operate successfully except the managerial functions of Assistant Managers ․ were performed”).

Whereas plaintiff talks in her affidavit about the need to keep rooms cleaned and laundry done in order that friends might use the rooms, a evaluate of her deposition results in just one conclusion:  the lodge could not perform with out plaintiff’s performing her managerial duties.   She testified that she supervised twenty-five employees, together with three mid-level supervisors, and was “in charge of the back of the house:  housekeeping, public space, turndown service.”   She was solely liable for scheduling the workers performing those services, for doing efficiency critiques of those workers, and for firing those employees when mandatory.   Plaintiff reported directly to the final Manager for the resort and sometimes the controller and recognized nobody else who performed any aspect of her job as Director of Providers.   Compare Meyer v. Worsley Cos. Inc. 881 F.Supp. 1014, 1020 (E.D.N.C.1994) (noting that the plaintiff had recognized different people who were the “real” managers of the store).   With out plaintiff, the “back of the house” would have had no oversight or, phrased in a different way, there would have been no one steering the ship.   See Shockley v. City of Newport Information, 997 F.2d 18, 26 (4th Cir.1993) (distinguishing “between a supervisor of a acknowledged subdivision and a mere supervisor of subordinate employees”).   Additional, plaintiff was considered one of a restricted number of managers who repeatedly served as a supervisor on responsibility, on which events she supervised the complete resort.

One can not reasonably learn this file without concluding that the hotel could not perform without plaintiff’s managerial function.   See Jones, sixty nine Fed.Appx. at 638, (holding that a quick-meals restaurant manager’s managerial duties have been more important than her nonmanagerial work, though it took up as much as seventy-five to eighty p.c of her time, when “the Dairy Queen could not have operated efficiently except Jones carried out her managerial features, akin to ordering stock, hiring, coaching, and scheduling workers, and finishing the every day paperwork”).   Plaintiff’s principal worth to the lodge and, indeed, the very purpose of her employment was to handle the “back of the home.”   It was not to make beds.   See Kastor, 131 F.Supp.2d at 866-67 (“Although [plaintiff] contends that he spent [ninety] percent of his time performing non-managerial duties, that was not the purpose of his employment.  [Plaintiff] was hired by [the employer] to manage the bakery division.”).

The third and fourth elements-frequency of use of discretionary powers and relative freedom from supervision-are associated issues.   There could be no critical dispute regarding plaintiff’s exercise of discretionary powers.   She testified:  “I was the one that did the firing.”   See 29 C.F.R. §§ 541.1, 541.One hundred and one (2003) (offering that an govt has the authority to hire or fire employees or can be someone whose strategies and proposals as to the hiring or firing will likely be given particular weight).   Discretion also was used by plaintiff in, amongst other areas, scheduling, efficiency opinions, and resolving complaints.   See Jones, 69 Fed.Appx. at 638, (holding that the third and fourth components supported exemption when the worker “had the discretion to rent, practice, schedule, self-discipline, and hearth employees” and had the discretion to handle customer complaints);  Donovan I, 675 F.2d at 521 (holding that staff exercised discretionary powers after they scheduled work time for subordinate staff and oversaw whether the workers have been performing their jobs).   With respect to supervision, plaintiff has pointed to nothing more than the supervision acquired by any mid-degree supervisor from the highest-ranking manager.   To view that level of supervision as enough to render a supervisor non-exempt would eviscerate the executive exemption.

When all the factors on which proof exists are thought-about,3 no genuine concern of material truth exists regarding whether plaintiff’s major responsibility was administration.   See Jones, 69 Fed.Appx. at 639, (holding that employer had offered evidence adequate as a matter of legislation to prove that plaintiff was a “bona fide” govt beneath the FLSA even though she testified that she spent as much as seventy-five to eighty p.c of her time performing basic line-worker tasks at a restaurant).   Though plaintiff factors to evidence that she did guide labor when she was brief-handed, she nonetheless was functioning as a manager.   When an worker is the exclusive manager of a major department of hotel-including twenty-two full-time employees and three full-time supervisors-and exercises such discretion as full firing and scheduling authority, then the employee qualifies as someone whose primary responsibility consists of the administration of her department.   Accordingly, the trial courtroom correctly granted defendant’s movement for abstract judgment.

 Because we affirm summary judgment, and plaintiff didn’t assign error to abstract judgment on her breach of contract claim, her contract declare is deemed abandoned.   See N.C. R.App. P. Rule 28(a) (2006) ( “Questions raised by assignments of error in appeals from trial tribunals but not then introduced and mentioned in a party’s temporary, are deemed abandoned”).   See additionally State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976).


1.  Effective 23 August 2004, the regulations concerning exemptions from additional time pay were modified.   Since these amendments apply only prospectively, the prior version of the regulations is applicable.   Moore v. Tractor Provide Co. 352 F.Supp.2d 1268, 1273 n.