Bragg v. Organic Millins

Filed 8/29/07 Bragg v. Organic Millins CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Los Angeles County, John Shook, Judge. Judgment is affirmed.

Irving Mayer for Plaintiff and Appellant.

Gordon & Rees, Jennifer Sarkozy Branch, Eric M. Volkert and Shauna L. Durrant for Defendant and Respondent.

_______________________________________

In this appeal, plaintiff Ronnie Bragg (plaintiff) challenges a summary judgment granted to defendant Organic Milling Co. (defendant). As noted in footnote 1, infra, plaintiff sued defendant on several causes of action. However this appeal concerns only one of themplaintiffs claim that defendant improperly failed to pay him overtime wages.

Defendant contends plaintiff was an exempt employee, that is, exempt from state and federal overtime laws, and plaintiff contends the nature of his position at defendant company rendered him a nonexempt employee. The trial court found that plaintiffs job duties placed him in the exempt category and our review of the record convinces us the trial court was correct. We will therefore affirm the summary judgment.

BACKGROUND OF THE CASE

1. Procedural Background

Plaintiff filed this suit on May 20, 2005, and filed a first amended complaint (complaint) on June 8, 2005. Also named as a defendant was Harish Chopra, defendants owner, however he was dismissed from the case with prejudice on September 20, 2005.

Defendants motion for summary judgment was filed on May 19, 2006, and granted on August 2, 2006. On that same day, August 2, 2006, plaintiff filed a motion for new trial and on August 14, he filed a motion to amend the complaint. The motions were heard on September 7, the court took the motions under submission, and the following day the court denied them.

Plaintiff filed a premature notice of appeal on September 26, 2006. The judgment was signed and filed on October 19, 2006.

2. The Complaint

Plaintiff sued defendant for damages, restitution, penalties and attorneys fees for defendants failure to pay overtime wages to him. According to plaintiffs complaint, defendant improperly classified him as an exempt salaried employee when he was in fact a non-exempt employee under California law.

Plaintiff alleged he worked for defendant in a salaried clerical and/or warehouse position from March 31, 1980 to May 6, 2005, and did so in excess of 40 hours per work week without receiving straight time or overtime compensation for the overtime hours he worked, in violation of the Labor Code and applicable California Industrial Welfare Commission wage orders.^[1]

DISCUSSION

1. Our Standard of Review

We review, on a de novo basis, the order granting defendants motion for summary judgment. (Price v.Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.) In doing so, we apply the same rules the trial court was required to apply in deciding the motion. When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiffs causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc.,  437c, subd. (p)(2).)

If a defendants presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action, or on a defense thereto, the burden shifts to the plaintiff to present evidence showing that contrary to the defendants presentation, a triable issue of material fact actually exists as to those elements or the defense. (Code Civ. Proc.,  437c, subd. (p)(2).) That is, the plaintiff must present evidence that has the effect of disputing the evidence proffered by the defendant on some material fact. Thus, section 437c, subdivision (c), states that summary judgment is properly granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Because a summary judgment denies the adversary party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865.) Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Id. at pp. 865‑866.) If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court, or first addressed on appeal. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) If, on the other hand, we find that one or more triable issues of material fact exist, we must reverse the summary judgment.

2. Relevant Statutory, Case and Regulatory Law

Under the Fair Labor Standards Act of 1938 (29 U.S.C. 201-219, FLSA), and under Californias Labor Code sections 510 (computation of overtime pay) and 515 (exemptions from payment of overtime), a plaintiff is entitled to overtime pay for his work for a defendant unless the defendant demonstrates that plaintiffs work is subject to an exemption from payment of overtime under both federal and state law. (Conley v. Pacific Gas & Electric Co. (2005) 131 Cal.App.4th 260, 266.) Because the California wage and hour laws are modeled to some extent on federal laws, federal cases may provide persuasive guidance. (Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 562.)

[T]he assertion of an exemption from the overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the employees exemption. [Citations.] (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794-795.)

Because the statutory provisions regarding payment for overtime work are remedial in nature and were enacted for the benefit and protection of employees, they are to be liberally construed with an eye to promoting such protection. [Citation.] Thus, under California law, exemptions from statutory mandatory overtime provisions are narrowly construed. [Citations.] (Ramirez v. Yosemite Water Co., supra, 20 Cal.4th at p. 794.) Application of exemptions is limited to those employees plainly and unmistakably within their terms. (Nordquist v. McGraw-Hill Broadcasting Co., supra, 32 Cal.App.4th at p. 562.)

Labor Code section 515 provides that Californias Industrial Welfare Commission (IWC) may establish exemptions from the requirement [of Section 510] that an overtime rate of compensation be paid . . . for executive, administrative, and professional employees, provided that the employee is primarily engaged in the duties that meet the test of the exemption, [and that the employee] customarily and regularly exercises discretion and independent judgment in performing those duties, . . . (Lab. Code,  515, subd. (a), italics added.) As used in section 515,  primarily means more than one-half of the employees worktime. ( 515, subd. (e).)

The IWC establishes such exemptions from payment of overtime wages by means of wage orders. The IWCs wage orders are compiled in the California Code of Regulations, title 8, chapter 5. The IWCs wage orders, although at times patterned after federal regulations, also sometimes provide greater protection than is provided under federal law in the Fair Labor Standards Act (FLSA) and accompanying federal regulations. (Ramirez v. Yosemite Water Co., supra, 20 Cal.4th at p.795.)

Wage order 1-2001 is an order regulating wages, hours, and working conditions in the manufacturing industry. (Cal. Code Regs., tit. 8, 11010.)^[2] Provisions for payment of overtime wages are found in section 3 (A) of wage order 1‑2001. Section 1 (A) of that wage order states that the provisions in [s]ections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. Section 1 of wage order 1-2001 sets out the requirements for determining whether an employees job duties make him an exempt employee.

In their papers filed for the summary judgment motion, plaintiff and defendant presented evidence going to the question whether the various duties which plaintiff performed in carrying out his job support classifying him as an exempt employee. In Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 330, the Court stated: We previously have recognized in an overtime exemption case that task classification is a mixed question of law and fact appropriate for a court to address separately from calculating the amount of time specific employees actually spend on specific tasks. The Sav-On cited Ramirez v. Yosemite Water Co., supra, 20 Cal.4th at p. 803, fn. 5, noting that in Ramirez, which involved a salesperson employee, it sent the case back to the trial court with a directive for the trial court to itemize the types of activities that it considers to be sales related, which the Ramirez court stated would enable an appellate court to review whether the trial courts legal classifications are correct. (Ibid.)

3. The Parties Presentations on the Issue of Job Duty/Task Classification
and the Trial Courts Analysis of That Issue

In the instant case, to support its summary judgment position that the executive exemption to payment of overtime wages applies to plaintiff and therefore plaintiff is not entitled to such wages, defendant relied extensively on statements made by plaintiff at his deposition concerning his job duties when he was employed by defendant. In support of his opposition to the summary judgment motion, plaintiff submitted his own lengthy declaration in which he set out a description of his job duties.

Defendant filed 19 evidentiary objections to plaintiffs declaration, 10 of which asserted that evidence should not be considered by the trial court because it contradicts portions of plaintiffs deposition testimony and therefore cannot be used to defeat the summary judgment motion. The trial court sustained eight of those 10 objections on the basis of the case authority cited by defendant, including the often-cited DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22. Properly applied, DAmico is limited to instances where credible [discovery] admissions . . . [are] contradicted only by self-serving declarations of a party. [Citations.] In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-1522, italics omitted.) We have examined the courts rulings and do not find that it abused its discretion in sustaining the evidentiary objections that were based on DAmico.

Addressing the cause of action for overtime pay, the trial court ruled that [p]laintiffs deposition testimony shows that his duties are largely managerial, such testimony prevails over plaintiffs contrary assertions in his declaration, and [p]laintiff has failed to raise a triable issue of fact as to his classification as an exempt employee.

On appeal, plaintiff contends defendant did not present evidence to support an executive exemption defense.

4. Defendants Summary Judgment Moving Papers

a. Declaration of Chris Wadden^[3]

Chris Wadden, defendants president, submitted a declaration in support of the summary judgment motion. He stated the defendant manufactures cereals and snack bars. In March 2001, ownership of the company changed hands. A new management team was assembled, with Wadden being brought in to be the general manager in November 2001. Later he was promoted to president.

In his capacity as warehouse manager, plaintiff was responsible for maintaining inventory in the warehouse and arranging shipment of the product to defendants customers.

At the time plaintiff was terminated, Wadden was not aware that plaintiff had complained to anyone that he was misclassified as an exempt employee. Wadden did not instruct plaintiff to perform manual labor as part of his job of warehouse manager, and is not aware that anyone else instructed plaintiff to do manual labor.

b. Deposition of Yolanda Magallanes

Yolanda Magallanes, who was defendants human relations manager for approximately 14 years, stated at her deposition that she told Chris Wadden that plaintiff was making less money than people in plaintiffs department even though plaintiff was supposed to be the leader, or he wasyou know, they were putting him up there as a leader. She stated that plaintiff was supposed to be the supervisor. She asked Wadden to increase plaintiffs salary because how could they justify the overtime [plaintiff] was doing at the warehouse. She specifically recalled speaking to Wadden in 2002 and 2004 about getting more money to plaintiff. However, in between those times in 2002 and 2004, she could see that plaintiff was not getting paid for any of these long hours he was working. And as an H.R. manager, I needed to let my supervisor know, you know . . . that was not right. In 2004, Wadden responded that something was already in the works, which Magallanes understood that to mean plaintiff would receive an increase in his salary.

c. Plaintiffs Deposition Testimony

Plaintiff testified at his deposition that he was hired by defendant in March 1980 as a warehouse worker and worked in the warehouse for approximately 25 years. His job duty was to fill customers orders. He did that by gathering from various shelves in the warehouse the products ordered by the customer, wrapping the products together, and loading the order onto a truck. He worked with three other people.

After his supervisor left in 1982, plaintiff became the supervisor/warehouse manager and he supervised the warehouse workers. He was overseeing five warehouse workers by the time he was fired. He would give customers orders to the warehouse employees who would then fill the orders, following the priority that plaintiff gave to the orders. The method plaintiff chose to prioritize orders was to fill them strictly by their dates. Plaintiff also checked time cards and saw to repairs of equipment. Those tasks continued to be his job duties until he was fired. Additionally, in 2004, four or five of defendants production employees began working in the warehouse and plaintiff also had the responsibility of overseeing them. He also supervised three office employeeshelping to schedule their work hours, seeing that they kept their hours and did their work, and reporting to management any related problems along with a recommendation for discipline.

Plaintiff also supervised two truck drivers. He stated his role in hiring them was to check their DMV status and their references. He set up pick up and delivery appointments for them, that is, delivery dates for the companys customers and pick up dates from the companys suppliers. He checked the drivers time cards, and determined whether to approve requested time off. When a truck driver quit working for defendant, plaintiff was the person with the responsibility for hiring a replacement driver because [he] was there in the warehouse and [he] knew the operations. He was also responsible for contacting human resources if a trucker needed discipline and making a recommendation on such discipline.

Plaintiff was also in charge of arranging for outside trucking companies to deliver the companys products to customers who were not local. That included negotiating rates and deciding which trucking company to use. And he was in charge of overseeing defendants tractors and trailers. It was part of his job to see that they were properly maintained. He negotiated with outside mechanics as to the type of maintenance, and the cost of the maintenance, that would be done on that equipment. When equipment was at the mechanics for maintenance, he adjusted his workers work schedules to fit that situation.

By the time he left defendants employ, he was supervising around 13 people. He could remember just one time when he had to give a formal written performance evaluation for all of the people he supervised. He was not involved in setting compensation for the people he supervised, although twice he did recommend raises for employees and one raise was approved.

Asked about his duties during the workday, plaintiff stated he spent most of the day meeting with the truck drivers, checking bills of lading and comparing them with purchase orders and picking sheets, and coordinating where trucks should go; he spent 30 minutes to two hours a day arranging pickups from suppliers; he spent two to three hours a day arranging delivery appointments; and he spent two to three hours a day scheduling truck drivers. He also spent several hours a week reviewing employees time cards and attending managerial meetings.

During the month, plaintiff would also attend to the condition of the premises and repair machinery. He worked on forklifts about an hour a week; he spent one to three hours a week mopping floors; he spent 10 minutes changing paper towels; about 10 to 30 minutes vacuuming; and ten to 30 minutes a week emptying trash cans. On a monthly basis, he spent about 15 minutes cleaning windows and about 20 minutes changing toilet paper. He cleaned bathrooms once or twice a month and each time it took 30 to 45 minutes. He had never been specifically instructed that these manual labor tasks were part of his job.

Plaintiff delegated to the warehouse workers the task of training new warehouse workers. He was responsible for having his workers take inventory on a monthly basis, although sometimes he and his assistant, Tony Estrella, would do the inventory. He was also responsible for approving overtime for the employees he supervised and scheduling their break times. He was responsible for devising ways to make the warehouse operate more efficiently for the benefit of other components of the defendant company and he did that by having discussions with others.

He was responsible for seeing to a safe working environment for the people that were working underneath [him]. The two times that there were accidents, he and human resources investigated the cause. When there were spills in the warehouse, he was responsible for having them cleaned up.

Plaintiff was earning $790 per week when he was fired in May 2005. On December 24, 2004, he signed a vacation, sick pay acknowledgement form which stated that at the closing of 2004, he had 90 hours of vacation and 80 capped hours of sick pay. When he was fired, he was provided with his final pay check and it included his unpaid vacation time.

Plaintiff stated at his deposition he did not know the difference between an exempt and a nonexempt employee. He stated he was not paid overtime and does not know why. The employees he supervised were paid overtime. He asked Keith Mathess, who was his supervisor before Chris Wadden, why he did not receive overtime pay but Mathess did not give him an answer.

Plaintiff asked Chris Wadden the same question. Specifically, towards the end of 2004 he mentioned to Wadden that the people he (plaintiff) was supervising were receiving overtime and he (plaintiff) wanted to be compensated, either in overtime or by means of a raise, for the time he was putting in. Plaintiff did not specifically phrase it in the terminology of being improperly classified as an exempt employee. Wadden told plaintiff he would get back to him but plaintiff did not receive an answer from Wadden. On several occasions plaintiff also spoke with Panee Sulowski in the accounting department concerning receiving overtime payments, and he spoke with Yolanda Magallanes in the human resources department a few times about it. She never told him why he was not receiving overtime pay. He also spoke with the former owner of the company, Song Tan, about overtime payment. He did that when he was being transferred from being on the time clock to being salary. He asked if he could still receive overtime payment but he never received an answer from Song Tan.

3. Plaintiffs Opposition Papers

As noted above, in support of his opposition to the summary judgment motion, plaintiff submitted his own declaration. He set out his daily duties for the last four years he worked for defendant, which coincided with the years he worked under the new owners of the company, who took over in March 2001.^[4]

Plaintiff stated his daily duties as warehouse manager consisted of coordinating deliveries to the company warehouse and coordinating pickups from the warehouse. This involved attention to purchase order paperwork, timing deliveries and pickups, and determining which door in the warehouse the trucker would use. It also involved six to seven hours a day of telephone work, including answering 35 to 40 calls each day for pickups and deliveries, and getting quotes from trucking companies for delivery of defendants products. (He was instructed to always choose the company that had the lowest rate for a particular date and delivery location.) He also presented the warehouse workers with purchase orders so they would know what was being delivered, and with customers orders so the workers would know which of defendants products to pull from inventory and present to the trucker picking up the goods. He also typed six or seven bills of lading each day for the pickups.

Two to seven times a day he would pull customers orders himself, and four or five times a day he would check the orders pulled by warehouse workers to make sure the orders were correct. Each of those activities would take five to 15 minutes to accomplish. All of the warehouse workers have been there 18 to 20 years.

Four or five times a day he would use a forklift to load customers orders onto a truck, and that would take five to 30 minutes per order. Additionally once a week he would load a truck by hand, which would take two to three hours.

Every two weeks he checked the warehouse employees time cards to verify that the workers had clocked their work time, and if someone had time missing he would check with that person and determine what the missing time was. Working with the time cards took one to two hours a week.

Chris Wadden gave him the authority to allow the warehouse workers six to seven hours of overtime a week but additional overtime would have to be authorized by Wadden. Plaintiff never hired anyone, including an additional driver 

If machinery broke down, plaintiff would get a quote from the mechanic and if Wadden authorized the repair work, plaintiff would call the mechanic back and have the repair work done.

There were two administrative staff members in the warehouse that had worked for defendant three to ten years and they knew their job so plaintiff did not have to tell them anything other than to ask them to type up a bill of lading, or something like that, and once or twice he told them to end their personal phone calls.

Plaintiff performed maintenance on the forklifts from time to time and spent from four to 15 hours a year on those tasks. He did various maintenance tasks during the year, some of them weekly and others every few months, and the yearly time spent was approximately as follows: 30 minutes a year changing light bulbs in the warehouse, 12 hours a year mopping the floor, four hours a year washing windows, an hour a year washing walls, an hour a year cleaning toilets, two hours a year vacuuming floors, and ten hours a year emptying trash cans. Chris Wadden was aware that he was doing this manual labor because Wadden saw him doing it nearly every day; Wadden never said anything about it except to ask when plaintiff would be finished loading or unloading a truck.

Plaintiff challenged the statement in Chris Waddens declaration that in plaintiffs capacity as the manager of the warehouse, [p]laintiff was responsible for maintaining the inventory of [defendants] products in the warehouse and arranging for the shipment of products to customers. Plaintiff stated that with regard to maintaining the inventory, he had no input as to how much inventory would be sent to the warehouse. (We observe that Waddens use of the term maintaining could simply mean taking care of the inventory.) Concerning the shipping of defendants products to customers, plaintiff stated that after he was instructed by sales which product was to be shipped and on what date, he simply called the customer to say the order was ready for pickup, or called a trucking company to arrange for pickup and delivery to the customer.

4. Analysis of Defendants Claim of an Executive Exemption
from Paying Plaintiff Overtime Wages

a. Requirements for Determining Executive Capacity Employment

As noted above, wage order 1-2001, which was made effective January 1, 2001, sets out requirements for determining whether an employee can be said to be working in an executive, administrative, or professional capacity and is thus an exempt employee who is not entitled to overtime wages.^[5] Regarding executive employee exemption, section 1 (A) (1) of the wage order states:

A person employed in an executive capacity means any employee:

(a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and

(b) Who customarily and regularly directs the work of two or more other employees herein; and

(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and

(d) Who customarily and regularly exercises discretion and independent judgment; and

(e) Who is primarily engaged in duties which meet the test of the exemption.[^[6]] The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. Sections 541.102, 541.104-111, and 541.115-116.[^[7]] Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the work week must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employers realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement.

(f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week.^[8]

b. Analysis of the Evidence in Light of Wage Order 1-2001
and the Code of Federal Regulations

The evidence in the record demonstrates that in his activities as a supervisor, plaintiff functioned in an executive capacity and was thus an exempt employee.

The evidence shows that plaintiff managed a customarily recognized department or subdivision [of the enterprise in which he was employed]. (Wage order 1‑2001,  1 (A) (1) (a).) The warehouse was not a mere collection of men assigned from time to time to a specific job or series of jobs; it was a unit with permanent status and function. (29 C.F.R. 541.104.) And plaintiff was in charge of and ha[d] as his primary duty the management of [that] recognized unit which has a continuing function. (Ibid.) Plaintiff testified that when he first began working for defendant, he was a warehouse workerone of the people who pulled defendants products from shelves to fill a customers order and then loaded the products onto a truck. After his supervisor left, plaintiff became the warehouse manager and he supervised the warehouse workers.

The evidence also shows that plaintiff customarily and regularly direct[ed] the work of two or more other employees. (Wage order 1-2001, 1 (A) (1) (b).) 29 C.F.R. section 541.105 describes the requirement as customarily and regularly supervises at least two full-time employees or the equivalent. Plaintiffs deposition testimony is sufficient to bring him within both descriptions. Plaintiff testified he supervised five warehouse employees as well as several production employees, three office employees and two truck drivers.

Plaintiffs testimony also brings him within section 1 (A) (1) (c) of wage order 1‑2001 and 29 C.F.R. section 541.106s similar provisions. Plaintiff stated it was he who would determine whether defendant should hire truck drivers because [he] was there in the warehouse and [he] knew the operations. He was responsible for contacting human relations if a trucker needed discipline and making a recommendation on discipline. He was also responsible for reporting to management on problems with the three office employees he supervised, along with a recommendation for discipline. On one occasion he was required to give a formal written performance evaluation for all of the employees he supervised. While he was not involved in setting compensation for the people he supervised, twice he did recommend raises for employees and, as already noted, one of the raises was approved.

Likewise, the evidence brings plaintiff within the provisions of section 1(A)(1)(d) of wage order 1-2001. 29 C.F.R. section 541.107 describes this requirement as exercising discretion with a frequency which must be greater than occasional but which, of course, may be less than constant [and t]he requirement will be met by the employee who normally and recurrently is called upon to exercise and does exercise discretionary powers in the day-to-day performance of his duties. Plaintiffs deposition demonstrates he exercised discretion and independent judgment in carrying out his duties as warehouse manager, as does evidence from Chris Waddens declaration and even plaintiffs own declaration. Plaintiff stated in his declaration he had authority to authorize the warehouse workers to have up to seven hours of overtime a week. Wadden implicitly stated plaintiff had authority to administer the drivers overtime by hiring another driver or altering work hours. (Wadden stated plaintiff failed to properly administer the drivers overtime by hiring another driver or altering work hours.) Plaintiff stated at his deposition that he prioritized the orders that the warehouse workers filled. He was given discretion to approve time off requested by the drivers and it was he who set up their pickup and delivery appointments. He negotiated rates for outside truckers, and negotiated with outside mechanics as to the type and cost of maintenance for defendants tractors and trailers. When equipment was unavailable for use, he adjusted his workers schedules. He delegated to the warehouse workers the task of training new workers. He had discretion in scheduling his employees breaks. He conferred with others so that he could devise ways of making the warehouse operate more efficiently for the benefit of the other components of the defendant company.

There is considerable evidence that far more than one-half of plaintiffs work time was devoted to duties which meet the test of the exemption. (Wage order 1‑2001,  1 (A) (1) (e).) 29 C.F.R. sections 541.102 and 541.108-541.111 are useful in analyzing whether duties can be classified as exempt. Plaintiff set out in his declaration, and he testified at his deposition concerning, the portion of his day spent in exempt work and spent in work that is included as exempt work, to wit, work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. (Wage order 1-2001, 1 (A) (1) (e).) We need not recite in detail the many and various tasks he did that took more than one‑half of his work time and that fall into the categories of exempt work and work that is considered exempt work. Speaking in a general way, among other things, those tasks consisted of his various coordination activities for pickups and deliveries; his prioritizing and checking of the warehouse workers work; his attention to workers time cards, overtime and break times; his lining up mechanical repair work for broken machinery and adjusting workers schedules at such times; his assistance in scheduling work hours for the office employees he supervised; and his attention to necessary discipline and safety issues.

Lastly, the evidence shows that plaintiff earned a monthly salary of no less than two times Californias minimum wage for full-time employment. (Fn. 8, ante.)

Conclusion

The trial court was correct in holding that the evidence demonstrates plaintiffs duties were largely managerial and does not raise a triable issue of material fact concerning whether the executive exemption applies here. Although it clearly appears that people, in addition to plaintiff, believed plaintiff was not being sufficiently compensated in his base salary for the time and effort he devoted to defendants business, the law does not support plaintiffs contention that he is owed overtime pay.

DISPOSITION

The summary judgment is affirmed. Costs on appeal to defendant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] Plaintiff also alleged causes of action for wrongful termination based on his age (he was 54 years old when his employment was terminated); age discrimination in violation of the Fair Employment and Housing Act (FEHA); and retaliation in violation of the FEHA for his having complained about not receiving proper wages.

In his opposition to defendants motion for summary judgment, plaintiff stated he had already dismissed the cause of action for age discrimination. The trial court addressed the other causes of action and adjudicated them in defendants favor. On appeal now, plaintiff states in his opening brief that he is only challenging the trial courts determination of his claim for overtime wages.

^[2] Plaintiff alleged, and defendant agrees, that defendant is a manufacturing company.

^[3] Chris Waddens declaration includes information relating both to the issue of plaintiffs entitlement to overtime pay and to the question why plaintiff was fired. Because plaintiffs appeal addresses only the former issue, we have not set out the portions of Waddens declaration relating to the latter. The same treatment is given to plaintiffs own declaration that he submitted in support of his opposition to the summary judgment motion.

^[4] Plaintiff also relied on portions of the deposition of former human relations manager Yolanda Magallanes to support his opposition to the summary judgment motion. However, he presented neither the original transcript nor a certified copy, but rather an e-mail version of the transcript, and defendants evidentiary objection to that evidence was sustained by the trial court.

^[5] In their appellate briefs, both plaintiff and defendant cited authorities that address persons working in an administrative capacity. Defendant cited to 29 C.F.R. section 541.202, and plaintiff cited to Eicher v. Advanced Business Integrators, Inc. (2007) 151 Cal.App.4th 1363. However, defendant claims, and the trial court so found, that plaintiff worked in an executive capacity.

^[6] Section 2 (K) of the wage order states that the term primarily means more than one-half the employees work time.

^[7] We have obtained copies of those C.F.R. sections that were in effect the date of wage order 1-2001 (January 1, 2001), and have applied such sections in our analysis of the evidence presented by the parties respecting the question whether plaintiff was employed in an executive capacity.

^[8] As noted, plaintiff testified he was earning $790 per week at the time he was terminated from employment in May 2005. Based on a 40-hour workweek and assuming $790 was prior to deductions, plaintiff was earning $19.75 per hour. The minimum wage on and after March 1998 was $5.75 per hour and stayed at that amount until it was raised to $7.50 effective January 1, 2007. (Lab. Code, 1182.11 & 1182.12.)