United States District Court, N.D. Ohio, Eastern Division
JEFF TWIDDY, SR., ANTHONY BRUNO and ROBERT POMARO, individuals, on behalf of themselves and others similarly situated, Plaintiffs,
ALFRED NICKLES BAKERY, INC., Defendant.
ORDER AND DECISION (RESOLVING DOCS. 104, 119,
R. ADAMS UNITED STATES DISTRICT JUDGE
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 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.
FACTS AND PROCEDURAL HISTORY
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:
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
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
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.
LEGAL STANDARD OF REVIEW
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
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.
The FLSA and the Outside-Sales-Employee Exemption
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.
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, ” ...