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Given v. Central Ohio Gaming Ventures, LLC

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

December 12, 2019

BOBBI JO GIVEN, Plaintiff,

          Jolson, Magistrate Judge



         This 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.


         COGV 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).

         As of 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.).

         In 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).

         COGV 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).

         On 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).


         Defendant 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.

         The 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”).

         In 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.


         As 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 arguments now.

         A. Plaintiff's Late Response

         COGV 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).

         Magistrate 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.

         B. There is a Genuine Dispute of Material Fact Regarding Whether Given Falls Under the Executive Exemption to the FLSA

         Under 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 those employees

(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 weight.

Ganci v. MBF Inspection Servs., Inc., 323 F.R.D. 249, 257 (S.D. Ohio 2017) (Smith, J.) (citing 29 C.F.R. § 541.100(a)).

         It 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.

         This Court will now examine whether COGV properly classified Given as an executive by looking at those four requirements.

         1. Given was Paid More than $455 Per Week

         The 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.

         2. Given's Primary Duty was Management

         This 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, non-exhaustive, duties:

• interviewing, selecting, and training of employees;
• setting and adjusting their rates of pay and hours ...

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