United States District Court, S.D. Ohio, Eastern Division
Jolson, Magistrate Judge
OPINION AND ORDER
C. SMITH, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court upon Defendant Central Ohio Gaming
Ventures, LLC's (“Defendant” or
“COGV”) Motion for Summary Judgment (Doc. 20)
(the “Motion”). Bobbi Jo Given
(“Plaintiff” or “Given”) filed a
Response (Doc. 27) and COGV filed a Reply (Doc. 32). The
Motion is ripe for review. For the following reasons, the
Motion is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
owns and operates the Hollywood Casino in Columbus, Ohio.
(Doc. 1, Compl. at ¶ 5). COGV has employed Given since
June 25, 2013. (Doc. 22, Given Dep. at PAGEDID #254).
Given's initial position was as a Table Games Supervisor.
(Id. at PAGEID #335). After working as a Table Games
Supervisor, she worked as a Table Games Trainer and then
moved into her role as a Revenue Audit Supervisor in February
of 2016. (Id. at PAGEID #336-38). In her role as a
Revenue Audit Supervisor, Given earned $48, 000 per year and
COGV initially classified her as exempt from the minimum wage
and overtime requirements that are found in the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§
201, et seq. (Doc. 20-2, Meeks Decl. at ¶ 4).
In her role as Revenue Audit Supervisor, Given reported
directly to Jennifer Rivera (“Rivera”), who is
the Revenue Audit Manager at the Hollywood Casino. (Doc.
20-3, Rivera Decl. at ¶¶ 3-4).
November 28, 2016, COGV reclassified several of its
employees' positions from exempt status to non-exempt
status. (Id. at ¶¶ 5-13). This change was
driven by new regulations issued by the United States
Department of Labor. (Id. at ¶ 7). These new
regulations raised the minimum salary threshold to $913 per
week to qualify for the executive exemption to the FLSA
minimum wage and overtime requirements and were set to take
effect December 1, 2016. (Id.).
anticipation of these new regulations, COGV conducted an
evaluation of its employees' positions to determine if
they should be reclassified from exempt to non-exempt.
(Id. at ¶ 8). During these evaluations, COGV
conducted interviews with employees and asked them seven
questions pertaining to their job responsibilities.
(Id. at ¶ 9). The employees' responses were
recorded on a Confidential Fair Labor Standards Act Audit
Questionnaire (hereinafter, “FLSA
Questionnaire”). (Id. at ¶¶ 10-11).
interviewed Given and recorded her answers on a FLSA
Questionnaire. (Id. at ¶ 11). As a result of
this interview, Given's position was reclassified from
exempt status to non-exempt. (Id. at ¶ 12).
Although a federal court has enjoined the new FLSA
regulations and they have yet to take effect, COGV has
maintained their new classifications of employees, including
Given. (Id. at ¶ 18). Thus, as of November 28,
2016, Given has been entitled to overtime pay for hours
worked over 40 hours per week. (Id. at ¶ 15).
October 23, 2017, Given brought the present action against
COGV alleging that COGV violated the FLSA, the Ohio Minimum
Fair Wage Standards Act, Ohio Revised Code Chapter 4111,
et seq. (“OMWA”), and the Ohio Prompt
Pay Act, Ohio Revised Code Section 4113.15
“OPPA”). The crux of Given's complaint is
that she is owed overtime pay for the time period she worked
as a Revenue Audit Supervisor but was classified as an exempt
employee (February 6, 2016-November 28, 2016).
STANDARD OF REVIEW
moves for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Summary judgment is appropriate
when “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); Berryman v. SuperValu
Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012).
The Court's purpose in considering a summary judgment
motion is not “to weigh the evidence and determine the
truth of the matter” but to “determine whether
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine
issue for trial exists if the Court finds a jury could return
a verdict, based on “sufficient evidence, ” in
favor of the nonmoving party; evidence that is “merely
colorable” or “not significantly probative,
” however, is not enough to defeat summary judgment.
Id. at 249-50.
party seeking summary judgment shoulders the initial burden
of presenting the Court with law and argument in support of
its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed.R.Civ.P. 56). If this initial burden is
satisfied, the burden then shifts to the nonmoving party to
set forth specific facts showing that there is a genuine
issue for trial. See Fed. R. Civ. P. 56(e); see
also Cox v. Kentucky Dep't of Transp., 53 F.3d 146,
150 (6th Cir. 1995) (after burden shifts, nonmovant must
“produce evidence that results in a conflict of
material fact to be resolved by a jury”).
considering the factual allegations and evidence presented in
a motion for summary judgment, the Court “views factual
evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in that party's
favor.” Barrett v. Whirlpool Corp., 556 F.3d
502, 511 (6th Cir. 2009). But self-serving affidavits alone
are not enough to create an issue of fact sufficient to
survive summary judgment. Johnson v. Washington Cty.
Career Ctr., 982 F.Supp.2d 779, 788 (S.D. Ohio 2013)
(Marbley, J.). “The mere existence of a scintilla of
evidence to support [the non-moving party's] position
will be insufficient; there must be evidence on which the
jury could reasonably find for the [non-moving party].”
Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.
1995); see also Anderson, 477 U.S. at 251.
stated above, Plaintiff's claims all stem from COGV's
alleged misclassification of Plaintiff as exempt from the
protections afforded under the FLSA while she worked as a
Revenue Audit Supervisor from February 6, 2016 through
November 28, 2016. COGV advances three main arguments in
defense of Plaintiff's claims. First, it argues that
Given has forfeited her right to oppose the Motion because
she filed her Response late. (Doc. 32, Reply at 2-3). Second,
COGV argues that Given was properly classified as exempt, and
thus her FLSA claims fail. (Doc. 20, Motion at 14). Third, it
argues that Given's state law claims are subject to the
same set of operative facts and law as her FLSA claims, and
because her FLSA claim fails, her Ohio claims must fail as
well. (Id. at 23). This Court turns to those
Plaintiff's Late Response
argues that Given was tardy in filing her Response to the
Motion, and thus this Court should disregard Given's
opposition to the Motion. (Doc. 32, Reply at 2-3). Given
filed her Response to the Motion on May 16, 2019 at 12:03 AM.
(See Doc. 27, Response). Her Response to the Motion
was due at 11:59 PM on May 15, 2019. (See Doc. 26,
Order Granting Extension of Time to File Response).
Judge Jolson has already addressed this issue. (See
Doc. 38, Jolson Order). Given filed a motion to retroactively
deem her May 16, 2019 Response as timely filed, and
Magistrate Judge Jolson granted that motion. (Id.).
She ordered that the May 16, 2019 filing be “deemed as
having been filed by the May 15, 2019 deadline.”
(Id. at 2). Therefore, COGV's argument is moot
and lacks merit.
There is a Genuine Dispute of Material Fact Regarding Whether
Given Falls Under the Executive Exemption to the
the FLSA, an employee who works more than 40 hours a week is
entitled to overtime pay unless they meet one of the
statutory exemptions. See 29 U.S.C. §
207(a)(1). If the employee is a “bona fide
executive” as defined in the regulations, then they are
exempt from overtime pay. Mosquera v. MTI Retreading
Co., 745 Fed.Appx. 568, 570 (6th Cir. 2018) (citing 29
U.S.C. § 213(a)(1)). The executive exemption covers
(1) who are compensated on a salary basis of not less than
$455 per week, and (2) whose primary duty is management of
the enterprise in which the employee is employed or of a
customarily recognized department or subdivision thereof; (3)
who customarily and regularly directs the work of two or more
other employees; and (4) who has the authority to hire or
fire other employees or whose suggestions and recommendations
as to the hiring, firing, advancement, promotion or any other
change of status of other employees are given particular
Ganci v. MBF Inspection Servs., Inc., 323 F.R.D.
249, 257 (S.D. Ohio 2017) (Smith, J.) (citing 29 C.F.R.
should also be noted that claiming an exemption under the
FLSA is an affirmative defense for which the COGV carries the
burden of proof. Thomas v. Speedway SuperAmerica,
LLC, 506 F.3d 496, 501 (6th Cir. 2007) (“FLSA
overtime exemptions are ‘affirmative defense[s] on
which the employer has the burden of proof. . . [t]he
defendant must establish through ‘clear and
affirmative' evidence that the employee meets every
requirement of an exemption.”). Thus, COGV must prove
the affirmative defense by a preponderance of the evidence.
Id. at 502.
Court will now examine whether COGV properly classified Given
as an executive by looking at those four requirements.
Given was Paid More than $455 Per Week
parties do not dispute that COGV paid Given a salary of $48,
000 per year ($923 per week) in her role as a Revenue Audit
Supervisor. (See Meeks Decl. at ¶ 4).
Therefore, the requirement that Given make more than $455 per
week is satisfied.
Given's Primary Duty was Management
requirement of the FLSA is composed of two items: first, the
duties performed by the plaintiff must be of a managerial
nature, and second, those duties must be the plaintiffs
“primary” duty. The regulations define
“management” duties at the following,
• interviewing, selecting, and training of employees;
• setting and adjusting their rates of pay and hours ...