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Twiddy v. Alfred Nickles Bakery, Inc.

United States District Court, N.D. Ohio, Eastern Division

March 31, 2017

JEFF TWIDDY, SR., ANTHONY BRUNO and ROBERT POMARO, individuals, on behalf of themselves and others similarly situated, Plaintiffs,

          ORDER AND DECISION (RESOLVING DOCS. 104, 119, 122)


         This matter is before the Court on a motion for summary judgment filed by Defendant Alfred Nickles Bakery, Inc. (“Nickles”). Doc. 104. Nickles also filed a motion to strike and/or disregard certain declarations offered in support of Plaintiffs' opposition brief to summary judgment. Doc. 119. Plaintiffs Jeff Twiddy, Sr., Anthony Bruno, and Robert Pomaro[1] then filed their own motion to strike and/or disregard certain declarations and exhibits. Doc. 122. The Court finds that genuine issues of material fact exist as to the claims set forth in Plaintiffs' Complaint. As such, for the following reasons, Nickles' motion for summary judgment is DENIED. Nickles' and Plaintiffs' respective motions to strike are DENIED.


         Plaintiffs are current or former employees of Nickles, and Plaintiffs have alleged that Nickles violated the Fair Labor Standards Act (“FLSA”) by failing to pay overtime. The case centers on whether Plaintiffs are engaged in sales as their primary duty. The parties disagree about the Plaintiffs' responsibilities, but the undisputed facts are as follows:

         Nickles bakes, sells, and distributes bread in various states. It is headquartered in Navarre, Ohio, and has three plants in Navarre and Lima, Ohio and in Martins Ferry, West Virginia. Nickles also operates 22 branch offices in Ohio, Pennsylvania, and West Virginia. Within these branches, Nickles has established routes, and the company then assigns its customers to one of these established routes. Customers include grocery stores, convenience stores, discount retailers, restaurants, drug stores, schools, hospitals, and nursing homes. Nickles employs branch management, sales personnel, drop drivers, transport drivers, and merchandisers.

         The parties agree that the Plaintiffs drive a company truck and deliver and display product to customers, while removing stale product. They coordinate ordering needs and assess existing stock at each customer location. They maintain a handheld device that stores product inventory information, which is downloaded at the company facility at the end of each day. The Plaintiffs work independently and control their own schedule. Thus, they are free to take their lunch or run errands throughout the day. Plaintiffs receive a salary and a commission and are subject to at least one collective bargaining agreement.

         Plaintiffs filed the underlying complaint alleging violations of the Fair Labor Standards Act. Specifically, they argue that they are not engaged in sales and/or do not perform sales activity as a primary duty. Thus, Plaintiffs are seeking overtime pay. Nickles argues that the Plaintiffs' primary duty is sales, and Plaintiffs are subject to the “outside sales exemption.” Nickles also argues that all or some of the Plaintiffs drive or have driven trucks weighing more than 10, 000 pounds, and consequently, the Plaintiffs are subject to the Motor Carrier Act exemption. Nickles filed a motion for summary judgment, which has been fully briefed and is now ripe for decision.


         A party seeking summary judgment must show “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). A fact is material if it is one that might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary burdens. Id. At 252. Further, on summary judgment, the inferences to be drawn from underlying facts must be viewed “in the light most favorable to the party opposing the motion.” U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). The pivotal question in deciding a motion for summary judgment is whether a reasonable fact finder could make a finding in favor of either party. See Anderson 477 U.S. at 250 (“The inquiry performed is the threshold inquiry of determining whether there is the need for a trial - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”).

         The initial burden of showing the absence of any “genuine issue” belongs to the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmoving party. The nonmoving party may not simply rely on its pleadings, but must “produce evidence that results in a conflict of material fact to be resolved by a jury” or other fact-finder at trial. Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995). A party opposing summary judgment must show that there are facts genuinely in dispute, and must do so by citing to the record. Fed.R.Civ.P. 56(c)(1)(a).


         A. The FLSA and the Outside-Sales-Employee Exemption

         1. Law

Congress enacted the FLSA in 1938 with the goal of “protect[ing] all covered workers from substandard wages and oppressive working hours.” Among other requirements, the FLSA obligates employers to compensate employees for hours in excess of 40 per week at a rate of 1 ½ times the employees' regular wages.

Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) (citing 29 U.S.C. §207(a)) [internal citations omitted]. “The overtime compensation requirement does not apply with respect to all employees…the statute exempts workers ‘employed…in the capacity of outside salesman.'” Id. (citing 29 U.S.C. §213(a)(1)).

         In the FLSA, Congress did not define the term “outside salesman, ” but it delegated authority to the Department of Labor to issue regulations to define the term. Id. at 2162. The Supreme Court in Christopher v. Smith Kline Beecham Corp set out the relevant legal background of the outside-sales-employee exemption:

Three of the DOL's [Department of Labor's] regulations are directly relevant to this case: §§ 541.500, 541.501, and 541.503. We refer to these three regulations as the “general regulation, ” the “sales regulation, ” ...

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