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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION LISA WAGNER, an individual, Plaintiff, v. LEE COUNTY, FLORIDA BOARD OF COUNTY COMMISSIONERS, a political subdivision of the State of Florida, and GLEN SALYER, an individual, JAMES MOORE, an individual, JENNIFER BERG, an individual, CHRISTINE BRADY, an individual, Defendants.

CIVIL ACTION

Case No. 2:14-cv-029 Judge: Sheri Polster Chappell Mag. Judge: Carol Mirando DISPOSITIVE MOTION

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED

MEMORANDUM OF LAW NOW COMES, the Plaintiff, LISA WAGNER (“Wagner”), by and through her undersigned

attorney, pursuant to Rule 56 of the Federal Rules of Civil Procedure and the Local Rules for the

United States District Court, Middle District of Florida, and hereby files Plaintiff's Motion for

Summary Judgment and Incorporated Memorandum of Law, and in support states as follows:

INTRODUCTION AND SUMMARY OF THE ARGUMENT

As the evidence before this Honorable Court plainly reveals, summary judgment is due to be

granted as to Ms. Wagner’s whistleblower claim. Ms. Wagner became aware of the Defendant’s

extensive improper use of grant and loan programs through the EDO and after receiving several

complaints, an internal audit was launched (the "audit"). Ms. Wagner, along with five other employees,

voluntarily participated in the audit, which included providing written statements and taking part in

interviews. Ms. Wagner disclosed numerous instances of the Defendant allegedly misappropriating

grant monies and loans, and also reported these matters to her supervisor. After Ms. Wagner

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cooperated with the audit and provided extensive information, the EDO’s director explicitly stated that

those who cooperated with the audit would be fired. After the audit, and despite fantastic performance

reviews, the Defendant retaliated against Ms. Wagner for disclosing alleged malfeasance. Ms.

Wagner’s supervisor, Mr. Glen Salyer, has confirmed that he knew of the audit, that he assumed Ms.

Wagner participated and that the audit played a significant role in his decision to separate four of the

five EDO employees who cooperated with the audit of the EDO. For the reasons stated in more detail

infra, Ms. Wagner’s Motion for Summary Judgment is due to be granted.

Furthermore, Ms. Wagner was nothing more than a secretary couched as an “administrative

specialist” in order to try to have her classified as an overtime-exempt employee under the Fair Labor

Standards Act (FLSA). The evidence is clear: Ms. Wagner’s primary duty was the performance of

office or non-manual work directly related to the management or general business operations of the

employer or the employer's customers and whether her primary duty included the exercise of

discretion and independent judgment with respect to matters of significance." 29 C.F.R. §

541.200(a)(emphasis added). Under no interpretation of the record before the Court, and particularly

given that reasonable inferences must be drawn in favor of Ms. Wagner as the Defendant has the

burden of proof, can it be concluded that a reasonable jury could find that the administrative exemption

applies to Ms. Wagner, who presents ample evidence that she was not involved in the management or

business operations of the Lee County Economic Development Office (EDO) and that she certainly did

not exercise discretion or independent judgment on matters of importance. Ms. Wagner was little more

than a secretary engaged in common secretarial work and she did not possess any kind of discretion or

independent decision-making at all, let alone that would rise to the level of affecting the EDO’s

operations. As will be discussed infra, the Defendant has not presented, and cannot present, any set of

facts that would entitle it to apply the administrative exemption to Ms. Wagner, and as a result,

summary judgment is due to be granted in favor of Ms. Wagner.

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STATEMENT OF UNDISPUTED FACTS1

1. The Defendant hired Ms. Wagner as an “administrative specialist” in the Economic Development Office (EDO) on or about January 12, 2012. (See Exhibit 1, Defendant’s Response to Interrogatory No. 2).

2. The Defendant admits that Ms. Wagner was compensated only on a salary basis, and that it did

not pay Ms. Wagner an hourly wage. (See Exhibit 2, Defendant’s Answer at ¶67).

3. Ms. Wagner’s supervisor was Ms. Susan Noe. (See Exhibit 1, Defendant’s Response to Interrogatory No. 2; Exhibit 3, Depo. of Salyer at 147:11-13; Exhibit 5, Affidavit of Noe at ¶3; Exhibit 6, Affidavit of Wagner at ¶5).

4. Ms. Noe was employed by the Defendant as the Manager of Business Assistance within the Lee County Economic Development Office (EDO). She had been employed with the Defendant for twenty-two (22) years and had been in her position as Manager of Business Assistance for two (2) years. During that time, she was Ms. Lisa Wagner’s only direct supervisor. As such, she has personal and intimate knowledge of her job description, the job duties she actually performed, her job performance and her skill set. (Exhibit 5, Aff. of Noe at ¶3).

5. Ms. Noe made the decision to hire Ms. Wagner as an Administrative Specialist. (Exhibit 5, Aff. of Noe at ¶6).

6. The Defendant claims only that Ms. Wagner had decision-making authority on the following matters of importance: “monthly reports, website updates and maintenance, quarterly and annual enterprise zone reports, training of brokers and administrative staff re: real estate databases, coordination of GIS staff and software developers regarding issues, improvements and upgrades and IDA program planning.” (Exhibit 1, Defendant’s Response to Interrogatory No. 4).

7. Ms. Wagner’s overwhelming job duties were providing administrative support, which duties are most analogous to what a secretary typically does. The title of “administrative specialist” is nothing more than a fancy term for a secretary as that’s the function that Ms. Wagner performed. All of Ms. Wagner’s performance reviews confirm that her primary job functions were those of a secretary. Nowhere in any job expectations or performance reviews is Ms. Wagner required to, or recognized for, any exercise of independent decision making that in any way, shape or form was on a matter of significance for the EDO as the key action verbs properly convey what Ms. Wagner did: provide support, send out notices, book travel as directed by management, maintain files, assist with directory and plan updates, assist with web updates, assist management with meetings, take minutes and work as a receptionist at the front desk. (Exhibit 5, Aff. of Noe at ¶7).

8. Ms. Wagner possessed no independent decision making authority whatsoever, and certainly did not possess any independent decision making authority on matters that had any significance. (Exhibit 5, Aff. of Noe at ¶8).

1 Citations to deposition transcripts shall be “Depo. of [Deponent] at [page:line(s)].” Multiple citations within the same citation are separated by a semicolon. Citations to other documents shall be “(See Exhibit __, [description of document(s)].” Citations to the Statement of Undisputed Facts shall be “SUF at ¶__.”

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9. The EDO used a database system called “Goldmine,” which Ms. Wagner was not responsible for developing, altering or maintaining. Such was the province of the County’s IT Department. (Exhibit 5, Aff. of Noe at ¶9).

10. Ms. Wagner’s responsibility was to use data that someone else entered into Goldmine and put it into an Excel spreadsheet that someone else had developed, for review by Noe and two (2) Business Specialists. Ms. Wagner had no ability, nor authority, to alter the data in any way; her job was simply to transcribe the data from one format and put it into another. (Exhibit 5, Aff. of Noe at ¶10).

11. Ms. Wagner did not set up Goldmine, nor the Excel spreadsheet format, as the spreadsheet was set up by an employee named Nancy who had been supervised by James Moore. (Exhibit 5, Aff. of Noe at ¶11).

12. Ms. Wagner’s role was to plug the extracted information into the Excel spreadsheet and print it off for submission to her supervisor, Ms. Noe, and the Business Specialists. Essentially, Ms. Wagner was to just run the reports. Ms. Wagner had no control or authority over the data entered into Goldmine, as this was done by other EDO staff. (Exhibit 5, Aff. of Noe at ¶12).

13. Moreover, if any discrepancies were found, Ms. Wagner was required to take such problems directly to Ms. Noe or the Business Specialists for them to make the necessary corrections; she had no authority to alter this data in any way, even if discrepancies were found. Moreover, Ms. Wagner was never tasked with interpreting the data or forming an opinion based on the data. (Exhibit 5, Aff. of Noe at ¶13).

14. As Ms. Noe confirms, there was no opportunity for Ms. Wagner to exercise any independent decision making in performing these tasks. (Exhibit 5, Aff. of Noe at ¶14).

15. Additionally, Ms. Noe was the initial author of the Hurricane Plan and Ms. Wagner had nothing to do with its contents. For the annual update, other EDO staff members would be assigned a section to review and update. Ms. Wagner’s responsibility was only to verify/update telephone numbers/contact information, by checking/verifying information via the internet, as necessary. She had no authority whatsoever to alter the Plan and any discrepancies that were found were reported directly to Ms. Noe for approval. It was Ms. Noe who performed the overwhelming majority of updates to the annual Hurricane Plan, with mere clerical assistance from Wagner. (Exhibit 5, Aff. of Noe at ¶¶16-18).

16. One of Ms. Noe’s job duties was the Property/Real Estate Database on the EDO website, including the Business Directory. Ms. Wagner had no access or authority to make any changes to the EDO website. Ms. Wagner was tasked only with verifying/checking that “links and hyperlinks” were working properly. If Ms. Wagner found any anomalies, or hardware or software issues, she was required to take the information directly to Noe, before approval was granted for Wagner to take the information to the marketing company (Chisano). If Ms. Noe did not agree with Ms. Wagner, Ms. Wagner could not (and did not) take any of her suggestions or recommendations to the marketing company, without exception. (Exhibit 5, Aff. of Noe at ¶¶20-21).

17. Furthermore, the training of real estate brokers was Ms. Noe’s responsibility and it was Ms. Noe who administered the training on the Property Database, and assistance was provided by Ms. Wagner who only:

a. Input data she was provided with;

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b. Ran property searches upon request by Noe, and c. Obtained information from the Brokers before the information was overlaid into the

Property Database. (Exhibit 5, Aff. of Noe at ¶23).

18. Ms. Wagner’s role was strictly routine secretarial functions, and she merely assisted Ms. Noe with the Broker training; no part of the training was done solely by Ms. Wagner at all. No different than a secretary, Ms. Wagner merely provided some telephone assistance to Brokers who called in with routine questions regarding the entry of data into the database. (Exhibit 5, Aff. of Noe at ¶¶24-25).

19. In regard to Ms. Wagner’s role in the GIS maps, Ms. Wagner was given the parameters of the type of property, and the geographic area she was to conduct a database search in, by either Ms. Noe or the Recruitment Manager. She had no independent decision making authority and Ms. Wagner had no independence in these database searches as others made the decision as to the type of property and the geographical area; she was merely the mechanism by which this information was received by management. The database system generated the final product according to the parameters that Ms. Wagner was directed to enter. Ms. Wagner’s actions had no impact on the results. (Exhibit 5, Aff. of Noe at ¶¶27-28).

20. Like any member of staff, when Ms. Wagner would encounter software issues that affected her work, she would try to fix them as best she could. Ms. Wagner was not hired because she was an IT specialist. When any any computer issues arose, Ms. Wagner and Ms. Noe would discuss the issue and Noe would then call in the Lee County GIS Coordinator, or Ms. Wagner would do so, strictly at Noe’s direction. Any assistance with software issues that Ms. Wagner may have lent to coworkers was nothing more than one employee helping another and was not because Ms. Wagner’s job required it at all. Ms. Wagner’s assistance to others was not a core job responsibility; she just did it because she knew about it, and she was so good at it. It was not in her job description. Ms. Wagner just liked to help people. (Exhibit 5, Aff. of Noe at ¶¶29-31).

21. Ms. Noe set all of Ms. Wagner’s tasks and Ms. Noe supervised her and set out her priorities for the day/week; all tasks that she was working on were tasks set by Ms. Noe and were purely secretarial in nature. Ms. Wagner could not exercise any independent judgment and if she were to do so, it was Ms. Noe’s problem and fell on my shoulders, not on Ms. Wagner. The exercise of independent judgment was Noe’s responsibility, which Noe never delegated to Ms. Wagner. (Exhibit 5, Aff. of Noe at ¶33).

22. Ms. Wagner did a tremendous amount of overtime on a regular basis – at least two (2) to three (3) hours every week, but many times more than that as the amount of overtime depended upon the project or assignment, such as after-hours meetings, which were regular and frequent. (Exhibit 5, Aff. of Noe at ¶¶34-35).

23. Ms. Wagner possessed no independent decision making authority on any matters of significance to the operations of the EDO; any such decisions were made by her supervisor. (Exhibit 5, Aff. of Noe at ¶38).

24. Ms. Wagner also had no authority to formulate, affect, interpret, or implement management policies or operating practices. (Exhibit 5, Aff. of Noe at ¶43).

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25. Ms. Wagner did not carry out major EDO assignments and Ms. Wagner’s secretarial work did not affect the EDO’s business operations to a substantial degree and when she was out sick or on vacation, her absence did not substantially affect the operations of the EDO. (Exhibit 5, Aff. of Noe at ¶¶44-45).

26. In fact, Ms. Wagner had absolutely no authority to commit the EDO in matters that had any significant financial impact whatsoever. For example, even if the office was running low on supplies, she did not possess the requisite authority to order replacements unless approved by Ms. Noe. (Exhibit 5, Aff. of Noe at ¶46).

27. Under no circumstances whatsoever did Ms. Wagner have any authority to waive or deviate from established policies and procedures of the EDO without explicit prior approval and Ms. Noe cannot recall even one occasion where such approval was ever requested, nor was necessary. Ms. Wagner never had any authority to negotiate and bind the EDO on any matters, let alone significant matters. Ms. Wagner did not provide consultation or expert advice to management at all. Ms. Wagner was not involved in planning long or short-term business objectives of the EDO beyond performing secretarial work in furtherance thereof, and at the complete direction of Ms. Noe or other management. At no time did Ms. Wagner ever investigate and resolve matters of significance on behalf of the EDO’s management. She was a secretary, and such was outside of her authority. (Exhibit 5, Aff. of Noe at ¶¶47-51; Exhibit 3, Depo. of Salyer at 164:23-166:9).

28. Ms. Wagner’s job duties consisted of assisting her supervisor, Ms. Noe. (Exhibit 3, Depo. of Salyer at 150:12-23).

29. Ms. Wagner did not possess any human resources functions (Exhibit 5, Aff. of Noe at ¶¶52) and Salyer admits that many of her job duties were secretarial. (Exhibit 3, Depo. of Salyer at 153:18-19).

30. Mr. Glen Salyer became interim director of the EDO in September 2013. (Exhibit 2, Defendant’s Answer at ¶51).

31. However, the Defendant admits that neither Mr. James Moore (prior director of the EDO) or Mr. Salyer were Ms. Wagner’s direct supervisor and thus have no direct knowledge of the job duties that Ms. Wagner performed or the number of hours Ms. Wagner worked. (Exhibit 2, Defendant’s Answer at ¶63; Exhibit 3, Depo. of Salyer at 148:15-16).

32. Additionally, Salyer confirms that “the primary function of her [Wagner’s] position… was outsourced to a software application.” (Exhibit 3, Depo. of Salyer at 114:4-6).

33. Furthermore, during Ms. Wagner’s employment, she learned of corrupt, improper and illegal practices within the EDO. (Exhibit 9, July 2013 Audit).

34. As such, she participated in an audit conducted by the Lee County Clerk of Courts in April and May 2013. (Exhibit 2, Defendant’s Answer at ¶¶18-19).

35. Then-director of the EDO, Jim Moore, placed Ms. Noe in the position of monitoring which employees participated in the audit. (Exhibit 4, Depo. of Noe at 140:12-15 and 141:14-17).

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36. In July 2013, the Defendant provided Ms. Wagner with an excellent performance review. (Exhibit 7, July 2013 Performance Review).

37. On July 26, 2013, Ms. Wagner was instructed to audio-record an EDO meeting. During that meeting, the EDO director was questioned as to the audit, replying “there are legs on this,” and further stating in response to being asked what that means: “someone’s gonna get fired for this [talking to these auditors].” (See Ex. 8, Audio Recording at 1:48:38 to 1:49:22).

38. On August 7, 2013, the results of the audit were released, which corroborated the complaints made by Ms. Wagner. (Exhibit 9, 2013 Audit).

39. In August 2013, Mr. Salyer conducted employee interviews with EDO employees, testifying that he discovered “morale issues.” (Exhibit 3, Depo of Salyer at 87:22-25).

40. On October 31, 2013, Mr. Salyer terminated Ms. Wagner. (Exhibit 3, Depo of Salyer at 107:21-25).

41. According to Salyer, these issues were directly tied to the audit that Ms. Wagner had participated in. (Exhibit 3, Depo of Salyer at 88:1-5 and 88:8-11). Salyer also “assumed everybody spoke to the auditors.” (Exhibit 3, Depo. of Salyer at 101:15).

42. Salyer clearly testified that he took the findings of the audit into account when making personnel decisions, like the decision to terminate Ms. Wagner, after “investigat[ing] everything in there [the audit].” (Exhibit 3, Depo of Salyer at 89:7-10 and 90:4-5).

43. Salyer unambiguously stated that as a result of the audit, he assembled a “team,” whose mandate was “to right the ship if there were problems over there, which, you know, by all accounts it appeared there were.” (Exhibit 3, Depo of Salyer at 90:13-16).

44. Further confirming his desire to terminate those that participated in the audit, Salyer testified that “there wasn't any doubt in our minds that there were things that needed to be, quote, unquote, fixed.” (Exhibit 3, Depo of Salyer at 90:20-22).

45. However, while testifying that his “team” must have “kept written notes” about their investigation, the Defendant has proffered none whatsoever. (Exhibit 3, Depo of Salyer at 91:18). Furthermore, Salyer identified only one issue that concerned him after he allegedly assessed the EDO, which issue was “the administration of the marketing contract,” something that Ms. Wagner has nothing to do with. (Exhibit 3, Depo of Salyer at 93:7).

46. Salyer was very clear that his mandate was “to try to bring everybody together as a more cohesive team and try to bring anybody into the fold that was ready, willing, and able to be a productive team member.” (Exhibit 3, Depo. of Salyer at 94:10-13). Salyer quickly identified Ms. Wagner and her supervisor, Ms. Noe, as people “that were not ready, willing, and able to be productive team members.” (Exhibit 3, Depo. of Salyer at 94:14-19).

47. While Salyer claimed that Ms. Wagner exhibited a bad attitude and that there are ample notes and records to confirm the same (Exhibit 3, Depo. of Salyer at 95:6-96:8), the Defendant has been

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unable to proffer any documents reflecting the same at all. This is despite the fact that Salyer testified that his “team” would have such notes and records. (Exhibit 3, Depo. of Salyer at 96:5-8).

48. Further confirming the falsity of Salyer’s claims is the fact that he never issued any discipline to Ms. Wagner and cannot recall any discipline ever being issued to Ms. Wagner. (Exhibit 3, Depo. of Salyer at 96:25-97:4).

49. Backtracking from his claims of terminating Ms. Wagner for her attitude, Salyer was clear that the real reason for her termination was simply just a layoff. (Exhibit 3, Depo. of Salyer at 107:17).

50. However, while citing “budgetary constraints” as the reason for Ms. Wagner being laid off, claiming that there would be documents reflecting the same and claiming extensive communications with Human Resources (Exhibit 3, Depo. of Salyer at 109), the Defendant cannot proffer any documents reflecting that there was an investigation done with a “team,” or that the Defendant was actually reducing its workforce. In fact, the Defendant’s fiscal year begins in October and the 2013/14 budget (Resolution No. 13-09-29) had been approved by the Defendant on September 18, 2013. (Exhibit 15, Minutes Adopting 2013/14 Budget). The Defendant actually increased the EDO budget for 2013/14. (Exhibit 15, Minutes Adopting 2013/14 Budget, pp. 38, 77). Thus, no budget cuts were necessary or authorized in the EDO in October 2013.

51. The Defendant has an explicit policy for reducing the workforce. (Exhibit 10, Reduction in Force Policy). In that policy, the Defendant states that the criteria for determining lay-offs would be based upon: a) performance for the past five years; b) conduct and corrective actions for the past five years, and; c) record of unexcused absence or abuse of leave for the past five years.

52. Ms. Wagner was not the least senior (Exhibit 3, Depo. of Salyer at 111:19-21), had terrific performance reviews (Exhibit 7 and Exhibit 11) and has absolutely no record of discipline.

53. Furthermore, the Defendant’s claim that Ms. Wagner was laid off is patently false as the Defendant failed to follow or even attempt to follow its own stated RIF policy (Exhibit 10), which requires:

Department and/or Division Directors [Salyer] shall present a proposed list of affected employees and corresponding positions with all supporting documentation to a Reduction in Force (RIF) Committee. The RIF Committee shall consist of the Director of Human Resources, Budget Director, a representative from County Administration and the County Attorney (or assigned designees). The Department and/or Division Directors of the affected departments will be consulted as appropriate. The Director of Human Resources or designee shall be responsible for the dissemination of appropriate information regarding the RIF process. The Committee will provide recommendations on the final list to the County Manager along with documented reasons for the decisions. 54. Despite Salyer’s testimony that there were many discussions and meetings regarding a

“reorganization,” Ms. Wagner’s employment status was discussed by the Defendant on only two occasions, the latest of which was January 2013. (Exhibit 12, Defendant’s Amended Response to Interrogatory No. 3). This was despite Salyer again claiming that there would be clear records of documents relating to an EDO reorganization. (Exhibit 3, Depo. of Salyer at 112:12-17).

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55. Ms. Wagner’s position was not actually eliminated and remained open on the Defendant’s organizational chart long after her separation. (Exhibit 13, Defendant’s Organizational Chart).

56. The Defendant has stated that there are no documents related to Ms. Wagner’s separation, which response was further to a request by the Plaintiff for the Defendant to identify each meeting, telephone call, or email correspondence where Ms. Wagner’s employment status or job performance were discussed. (Exhibit 12, Defendant’s Response to Interrogatory No. 3).

57. Of the five employees who cooperated with the audit, Salyer terminated four of them (and one resigned). As Mr. Salyer testified, “it [the audit] played a role.” (Exhibit 3, Depo. of Salyer at 173:17).

58. While Mr. Salyer claimed that upon taking office he and a committee conducted a review and decided who to lay off, the Defendant cannot produce even one document to support such a claim.

MEMORANDUM OF LAW

I. SUMMARY JUDGMENT STANDARD.

An award of summary judgment is proper "if the movant shows 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).

To that end, "[o]nly disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Such a dispute is genuine only "if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether

summary judgment is appropriate, the Court evaluates the evidence in the record, "including

depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials . . . ." Fed. R. Civ. P. 56(c)(1)(A). All evidence,

and factual inferences reasonable drawn from that evidence, must be viewed in the light most favorable

to the nonmoving party. Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008) (citations

omitted). The Court’s role is to "determine whether there is a genuine issue for trial." Anderson, 477

U.S. at 249. A genuine issue of material fact exists if there is sufficient evidence favoring the

nonmoving party for a reasonable jury to return a verdict in its favor. Lujan v. Nat'l Wildlife Fed'n, 497

U.S. 871, 884 (U.S. 1990).

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The burden of proof on a FLSA-exemption affirmative defense squarely rests upon the Defendant.

Adams v. BSI Mgmt. Sys. Am., 523 Fed. Appx. 658, 660 (11th Cir. Ga. 2013). The Eleventh Circuit has

made clear that FLSA exemptions are to be narrowly construed against the employer. Abel v. S. Shuttle

Servs., Inc., 631 F.3d 1210, 1212 (11th Cir. 2011). Likewise, the FLSA’s provisions are to be

interpreted liberally in the employee's favor. See Birdwell v. City of Gadsden, 970 F.2d 802, 805 (11th

Cir. 1992). Based upon the record put before the Court, there is no evidence on the record to allow a

jury to arrive at ruling in the Defendant’s favor for the reasons discussed infra.

II. SUMMARY JUDGMENT IS APPROPRIATE AS MS. WAGNER PRESENTS BOTH DIRECT AND CIRCUMSTANTIAL EVIDENCE THAT THE DEFENDANT CANNOT OVERCOME.

A. Legal Standard.

Florida's Public Whistleblower Act (PWA) was enacted, among other reasons, to prevent public

employers from taking retaliatory action against employees who report — to an appropriate agency —

the mismanagement, misfeasance, or malfeasance of public funds on the part of their employer. §

112.3187(1). When evaluating claims under this Act, the Court must do so in the same manner as

claims brought under Title VII of the Civil Rights Act of 1964. Sierminski v. Transouth Fin. Corp.,

216 F.3d 945, 950 (11th Cir. 2000). Therefore, to establish a prima facie claim under the PWA, a

plaintiff must illustrate that 1) she engaged in a statutory protected activity; 2) she suffered an adverse

employment action; and 3) there was a causal connection between the two events. Castro v. Sch. Bd. of

Manatee Cnty., Fla., 903 F.Supp.2d 1290, 1302 (M.D. Fla. 2012) (citing Fla. Dept. of Children and

Families v. Shapiro, 68 So. 3d 298 (Fla. 4th DCA 2011)).

B. Ms. Wagner Proves Her Prima Facie Case With Circumstantial and Direct Evidence.

The Court must first determine whether Ms. Wagner engaged in a statutory protected activity. To

engage in such an activity, Ms. Wagner must have disclosed information about an act of

mismanagement, malfeasance, or misfeasance of public funds to a chief executive officer, which, in

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the school district context, is the school district's superintendent. § 112.3187(5)-(7). Here, there is no

question that Ms. Wagner engaged in a statutory protected activity when she fully cooperated with the

audit of the EDO, which the Defendant does not dispute. (SUF ¶34). The Defendant further does not

dispute that Ms. Wagner was terminated from her employment. (SUF ¶ 40). As such, the first two

prongs are not at issue here. As such, the inquiry turns to the causal connection, and a plaintiff need

only demonstrate that her protected activity was a “motivating factor” in the employer’s decision.

Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir. 1999).

i. Ms. Wagner Presents Clear and Unequivocal Direct Evidence of Retaliation.

It is well-settled that a plaintiff may establish a prima facie case of discrimination through direct

evidence. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999);

Williamson v. Adventist Health Sys./Sunbelt, Inc., 372 Fed. App'x 936, 940 (11th Cir. 2010). The

Eleventh Circuit has defined direct evidence "as evidence which reflects a discriminatory or retaliatory

attitude correlating to the discrimination or retaliation complained of by the employee." Damon, 196

F.3d at 1359. Blatant remarks, whose intent could be nothing other than to discriminate, constitute

direct evidence of discrimination. Van Voorhis v. Hillsborough County Bd. of County Comm'rs, 512

F.3d 1296,1300 (11th Cir. 2008) (citing Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)

(alterations omitted)). The Eleventh Circuit has made clear that statements such as "[I don't] want to

hire any old pilots," "Fire Early-he is too old," or "when the position open[s] up, the company [will] be

looking for a person younger than Lindsey to fill it" constitute direct evidence of age discrimination.2

Id.; Earley v. Champion Ml Corp., 907 F.2d 1077, 1081 (11th Cir. 1990); Lindsey v. American Cast

Iron Pipe Co., 772 F.2d 799, 801-02 (11th Cir. 1985). Direct evidence of discrimination is a statement

such that no inference is necessary to conclude that the bias necessarily motivated the decision.

Damon, 196 F.3d at 1359.

2 Citing examples of direct evidence of age discrimination.

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Here, Ms. Wagner presents direct evidence, which negates the need for the typical McDonnell-

Douglas burden-shifting framework. See Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008).3

After Ms. Wagner cooperated with the audit and provided extensive information, the EDO’s director

explicitly stated that those who cooperated with the audit would be fired.4 (SUF ¶37). Such a threat is

not one that is open to different interpretations: Ms. Wagner, and three others who participated in the

audit, were all terminated, as threatened- no reasonable jury could conclude that Ms. Wagner’s

termination was not related thereto. As such, Ms. Wagner has presented precisely the kind of direct

evidence of discrimination that proves the existence of the discrimination without any inference or

presumption. Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 854 (11th Cir. 2010) (finding that

a reasonable jury could find that, "You're fired, too. You're too religious" was direct evidence of

discrimination). As such, summary judgment is due to be granted in Ms. Wagner’s favor.

ii. Ms. Wagner Presents Irrefutable Circumstantial Evidence of Retaliation.

Furthermore, even applying McDonnell-Douglas, Ms. Wagner establishes a prima facie case and

unequivocally disproves the Defendant’s proffer that the legitimate business reason for Ms. Wagner’s

separation was that she was laid-off, presenting overwhelming, irrefutable circumstantial evidence. To

establish pretext, a plaintiff must show that Defendant's "'explanation is unworthy of credence.'"

Jackson v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005). This requires showing

"both that the reason was false, and that discrimination was the real reason" for the adverse action. St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) (internal

quotation marks omitted). Here, the Defendant’s proffered “legitimate reasons” were not what actually

3 See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000) ("Disparate treatment claims require proof of discriminatory intent either through direct or circumstantial evidence. . . . Absent direct evidence, a plaintiff may prove intentional discrimination through the familiar McDonnell Douglas paradigm for circumstantial evidence claims.") (citations omitted); accord Harris v. Sec'y of the Army, 119 F.3d 1313, 1320 (8th Cir. 1997) ("Because she has no direct evidence of discrimination, Harris' sex discrimination claim is governed by the burden shifting analysis first articulated in McDonnell Douglas v. Green."). 4 Mr. Salyer was present at this meeting. Moreover, such a statement is part of a regularly kept business record and is a statement of a party opponent, thus being admissible evidence.

13

motivated its conduct.' Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (quoting

Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994) (citation omitted)).

Mr. Salyer, the decision-maker, clearly testified that he knew of the audit, that he assumed Ms.

Wagner participated and that the audit played a significant role in his decision to separate four of the

five EDO employees who cooperated with the audit of the EDO. (SUF ¶¶38-46, 57). He further

testified that those employees, including Ms. Wagner, who he identified as being “not on board,” who

also are the exact same employees who participated in the audit, were terminated. (SUF ¶¶38-46, 57).

Furthermore, any claim by the Defendant that Ms. Wagner’s separation was simply a lay-off is belied

by the stark absence of any evidence to remotely support that Salyer or his “team” conducted a review

of the EDO, exchanged written communications with Human Resources or other staff, and followed

any of the Defendant’s own reduction in force policy. (SUF ¶¶45-54). In fact, the 2013/14 Budget had

been approved by the Defendant in September 2013, and thus no budget cuts were necessary or

authorized in the EDO in October 2013. (SUF ¶50). Furthermore, the Defendant did not eliminate Ms.

Wagner’s position as evidenced by the fact that the Defendant kept Ms. Wagner’s position open and

publicly disclosed the same on their organizational chart. (SUF ¶55). Simply put, given the

Defendant’s complete lack of evidence to support that Ms. Wagner was “laid-off,” no reasonable jury

could find that the Defendant’s stated reason for terminating Ms. Wagner is worthy of credence or was

done for legitimate business purposes, particularly where the decision-maker himself has testified as to

Ms. Wagner’s perceived role in the audit, which audit formed the basis for his employment decisions

to terminate four of the five members of staff who cooperated with the audit, including Ms. Wagner-

this in addition to the EDO director’s clear threats that those who testified in the audit would be fired.

Based on the overwhelming, uncontroverted evidence in this matter, Ms. Wagner has

unequivocally demonstrated that the Defendant’s stated reason for terminating her is nothing more

than a pretext for prohibited, retaliatory conduct. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460

14

(11th Cir. 1998)(citations omitted). As such, no reasonable jury could find the Defendant’s claims of a

lay-off to be worthy of credence, and thus summary judgment is appropriately entered in favor of Ms.

Wagner. Id. (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996)

(citation and internal quotation marks omitted)).

III. SUMMARY JUDGMENT IS APPROPRIATE AS THE DEFENDANT CANNOT MEET ITS BURDEN IN PROVING ENTITLEMENT TO CLASSIFY MS. WAGNER AS EXEMPT UNDER THE FLSA. A. Burden of Proof & Necessary Elements in FLSA Administrative Exemption Cases.

The FLSA requires employers to pay covered employees at an overtime rate if they work more

than 40 hours in a workweek. 29 U.S.C. § 207(a)(1). But employees who are "employed in a bona fide

. . . administrative . . . capacity" are exempt from the overtime-pay requirement. Id. § 213(a)(1). An

employee employed in a bona fide administrative capacity is one: (1) who is paid a salary of at least

$455 per week; (2) "[w]hose primary duty is the performance of office or non-manual work directly

related to the management or general business operations of the employer or the employer's

customers;" and (3) "[w]hose primary duty includes the exercise of discretion and independent

judgment with respect to matters of significance." 29 C.F.R. § 541.200(a)(emphasis added). The term

"primary duty" is further defined as follows:

To qualify for exemption under this part, an employee's "primary duty" must be the performance of exempt work. The term "primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.

29 C.F.R. § 541.700(a). "'Primary duty' does not mean the most time-consuming duty; it instead

connotes the 'principal' or 'chief' — meaning the most important — duty performed by the employee."

15

Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 504 (6th Cir. Ohio 2007) (quoting Donovan v.

Burger King Corp., 672 F.2d 221, 226 (1st Cir. 1982)).

The most important consideration is a Plaintiff's actual activity rather than her title. "[C]ourts must

focus on the actual activities of the employee in order determine whether or not he is exempt from the

FLSA's overtime regulations." Ale v. Tenn. Valley Auth., 269 F.3d 680, 688-89 (6th Cir. 2001); see

also 29 C.F.R. § 541.103 (providing that the "determination of whether an employee has management

as his primary duty must be based on all the facts in a particular case."). Here, the parties agree that the

first requirement of the administrative-employee exemption is satisfied as Wagner was paid a salary of

in excess of $455.00/week. See 29 C.F.R. § 541.200(a)(1).

B. Ms. Wagner’s Secretarial Duties are Generally Non-Exempt Under the FLSA and Her Actual Duties are Specifically Non-Exempt.

"[T]he exercise of discretion and independent judgment involves the comparison and the evaluation

of possible courses of conduct and acting or making a decision after the various possibilities have been

considered." 29 C.F.R. § 541.207(a) (2002). The exercise of discretion and independent judgment

"implies that the person has the authority or power to make an independent choice, free from

immediate direction or supervision and with respect to matters of significance." Id. However,

employees can exercise discretion and independent judgment "despite the fact that their decisions or

recommendations are reviewed at a higher level." Id. at § 207(e)(2).

However, several courts have held that the specific job duties such as those that Ms. Wagner

exercised were non-exempt. For example, collecting information from prospective tenants, verifying

references and other information, contacting potential applicants regarding apartment availability,

preparing "reports," writing receipts, performing minor repairs and getting help for repairs she could

not do and forwarding invoices for payment were tasks all held to resemble the work of non-exempt

"bookkeepers, secretaries, and clerks of various kinds [who] hold the run-of-the-mine positions in any

ordinary business." Jarrett v. ERC Props., 211 F.3d 1078, 1082 (8th Cir. Ark. 2000)(citing 29 C.F.R. §

16

541.205(c)(1)). There, the Eighth Circuit found most of these were nothing more than "routine clerical

duties," 29 C.F.R. § 541.205(c)(2), and the rest were manual labor. In fact, this Court followed Jarrett

in Cusumano v. Maquipan Int'l, Inc., 2005 U.S. Dist. LEXIS 30257 (M.D. Fla. Nov. 30, 2005).

As discussed supra, in Cusumano, this Court followed that employee with title of "site manager"

was not exempt as an administrative employee where her duties included collecting applications,

verifying references, contacting potential applicants, preparing reports, verifying payments and writing

receipts, performing minor repairs, cleaning, and forwarding invoices for payment were duties that did

not require exercise of discretion or independent judgment, and were thus non-exempt. Cusumano at

*20. This Court further clarified that the administrative exemption does not merely apply just because

an employee works within an employer’s administration, but rather that an employee was not exempt

under the administrative exemption where their primary job did not relate to employer's administrative

operations, in that s/he did not advise management, plan, negotiate, represent the business, make

purchases, promote sales, or engage in research or control; employee did not perform work of

substantial importance, in that s/he did not make significant input into decisions affecting company.

Id., citing Martin v. Ind. Mich. Power Co., 381 F.3d 574, 582-83 (6th Cir. 2004).

The exercise of discretion and independent judgment requires more than "work along standardized

lines involving well-established techniques and procedures which may have been cataloged and

described in manuals or other sources." 29 C.F.R. § 541.207(c)(2). Types of work that do not require

the exercise of discretion and independent judgment include clerical or secretarial work, highly

technical and mechanical operations, and other routine work. Id. at §§ 207(c)(5), (c)(7), (d)(2); see also

Templet v. Hard Rock Constr. Co., 2003 U.S. Dist. LEXIS 20681 (E.D. La. Nov. 17, 2003)(awarding

liquidated damages as receptionist duties clearly non-exempt under the FLSA); Black v. Settlepou,

P.C., 732 F.3d 492 (5th Cir. Tex. 2013)(finding legal secretary to be non-exempt under the FLSA).

17

In Cusumano, this Court compared several other cases where the administrative exemption was

applicable and distinguishable. For example, in Hogan v. Allstate Ins. Co., 361 F.3d 621, 627 (11th

Cir. 2004), the Eleventh Circuit held that plaintiffs were exempt as administrative employees where

they spent majority of time servicing customers, and their duties, which were of substantial importance

to employer, included promoting sales, advising customers, adapting policies to customer's needs,

deciding on advertising budget and techniques, hiring and training staff, determining staff's pay,

and delegating routine matters and sales to said staff; and given nature of duties, plaintiffs exercised

discretion. These were the kind of duties that rose to the level of “matters of significance.”

In Cowart v. Ingalls Shipbuilding, Inc., 213 F.3d 261, 267 (5th Cir. 2000), the Fifth Circuit held

that an employee worked in a bona fide administrative capacity where their work was primarily

intellectual and involved little or no manual labor or mechanical work. Similarly, in Reyes v.

Hollywood Woodwork, Inc., 360 F. Supp. 2d 1288, 1292-93 (S.D. Fla. 2005), the District Court held

that an employee was exempt as an administrative employee where he prepared bids that were an

important part of employer's general business operations and necessary for the employer to obtain

production work and sell products, and the employee used discretion and judgment in pricing portions

of bids.

Conversely, and much more akin to the instant matter, the Cusumano plaintiff also did not

supervise two or more people on a daily basis, and did not have the authority to hire or fire anyone.

Moreover, there is no evidence that the Plaintiff here or in Cusumano, inter alia: had the ability to

formulate and implement managerial policies or operating procedures; had the ability to commit the

Defendant in matters with a significant financial impact; was able to deviate from policies and

procedures without approval; was involved in long term planning; or performed work having a

significant impact on the Defendant's business. Consequently, this Court declined to extend the

18

administrative exemption to cover the Cusumano plaintiff, and the Court should do the same in regard

to Ms. Wagner.

C. Prong Two: Plaintiff Did Not Perform Office Work Related to Management or General Business Operations.

The Defendant cannot establish that, nor raise a genuine issue of material fact regarding whether,

Ms. Wagner's primary duty is "directly related to management policies or general business operations

of his employer or his employer's customers." 29 C.F.R. §§ 541.2(a)(1), 541.214(a). This provision, in

addition to describing the types of activities performed by an exempt employee, "limits the exemption

to persons who perform work of substantial importance to the management or operation of the

business of his employer or his employer's customers." 29 C.F.R. § 541.205(a)(emphasis added).

1. The Plaintiff Did Not Exercise Independent Discretion Within Her Job, and Any Discretion Was Certainly Not Her “Primary Duty.”

As this Court made clear in Cusumano v. Maquipan Int'l, Inc., 2005 U.S. Dist. LEXIS 30257

(M.D. Fla. Nov. 30, 2005), n. 6., "[t]he term 'primary duty' means the principal, main, major or most

important duty that the employee performs." 29 C.F.R. § 541.700(a). "Factors to consider when

determining the primary duty of an employee include, but are not limited to, the relative importance of

the exempt duties as compared with other types of duties; the amount of time spent performing exempt

work; the employee's relative freedom from direct supervision; and the relationship between the

employee's salary and the wages paid to other employees for the kind of nonexempt work performed

by the employee." Id. This Court in Cusumano (n.6) further quoted the Regulations in highlighting

that:

"The amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty of an employee. Thus, employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement. Time alone, however, is not the sole test, and nothing in this section requires that exempt employees spend more than 50 percent of their time performing exempt work. Employees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirement if the other factors support such a conclusion."

19

29 C.F.R. § 541.700(b).

Based upon all of the evidence in this matter, it is evident that Ms. Wagner possessed no

independent decision-making authority and that even if she did somehow possess some limited

decision-making authority, it certainly was not at all part of her primary duties. (SUF ¶¶7-29). The

Defendant can only present conclusory statements that Ms. Wagner's work is directly related to

management policies or general business operations of the employer, which is nothing more than a

conclusory statement. (SUF ¶6). Previously, the Defendant essentially argued that because Ms.

Wagner’s work was related to the general business mission of the Defendant, this alone satisfies the

second prong. (See Doc. 41, p. 6). However, this is wholly insufficient, both factually and legally, and

the Defendant simply concludes that Wagner’s duties must qualify under the second prong of the test.

As discussed infra, they do not.

Courts have rejected the argument that all work that is not production work is automatically

"directly related to management policies or general business operations of the employer." Schaefer v.

Ind. Mich. Power Co., 358 F.3d 394, 402-403 (6th Cir. Mich. 2004). Ms. Wagner’s primary job duty

does not "relate to the administrative operations" at the EDO. "The administrative operations of the

business include the work performed by so-called white-collar employees engaged in 'servicing' a

business as, for example, advising the management, planning, negotiating, representing the

company, purchasing, promoting sales, and business research and control." 29 C.F.R. §

541.205(b)(emphasis added). The evidence is clear: Ms. Wagner was in no way involved in "advising

the management, planning, negotiating, representing the company, purchasing, promoting sales, and

business research and control." See also Renfro v. Ind. Mich. Power Co., 370 F.3d 512, 517 (6th Cir.

Mich. 2004) ("planners" were bona fide administrative employees where their primary duty fell within

this definition of "servicing" the business). Wagner's job, instead, was purely secretarial and thus non-

exempt under the FLSA. (SUF ¶¶7-29).

20

Nor is Ms. Wagner's work "of substantial importance to the management or operation of the

business of h[er] employer." 29 C.F.R. § 541.205(a). Work that is of substantial importance "is not

limited to persons who participate in the formulation of management policies or in the operation of the

business as a whole," but includes employees whose work "affects policy or whose responsibility it is

to execute or carry it out." 29 C.F.R. § 541.205(c)(emphasis added). This is simply not applicable to

Ms. Wagner’s duties at the EDO, as her supervisor confirms.

Interestingly, the Defendant cannot present any argument that Ms. Wagner's work itself is "of

substantial importance to the management or operation of the business of the employer." Indeed, the

Defendant cannot successfully argue that Ms. Wagner's secretarial work itself is "of substantial

importance to the management or operation of the business of [the] employer" because Ms. Wagner

made absolutely no decisions that affect even a small segment of the EDO’s operations in which her

work is performed- while her absence from work might mean that work would pile up, her absence

would not affect any decision-making that needed to be done and thus the operations of the EDO

would be unaffected. (SUF ¶¶7-29). To that point, Mr. Salyer confirms that Ms. Wagner was allegedly

replaced by computer software. (SUF ¶32). Ms. Wagner did not determine what types of workstations,

network, hardware, or software the EDO employs; she was not involved in the design or development

of EDO's network; she did not decide what software will be available to the EDO's computer users or

determine how that software will be configured; and she did not decide or recommend when

equipment must be serviced or replaced. (SUF ¶¶7-29). Rather, all she did was use a system wholly

designed and approved by others. There is no evidence that she has any input into the nature of the

computer resources available to the EDO’s employees, nor any evidence that she affected any policy

changes or implementation while employed with the Defendant. She was a simply secretary with a

different title.

21

Through Glen Salyer, and without any factual basis (particularly given that he was not her

supervisor and had only been in his position for eight weeks prior to terminating Ms. Wagner)(SUF

¶30), the Defendant previously tried to argue that Ms. Wagner's work is complex or unique, rather

than what it really is: routine, clerical, secretarial work. Apparently lost on the Defendant is the

requirement from a portion of the regulation that states: "[a]n employee performing routine clerical

duties obviously is not performing work of substantial importance . . . ." 29 C.F.R. § 541.205(c)(2).

The fact that the Defendant does not even attempt to derive the negative from this proposition and say

that the duties of Ms. Wagner’s work were complex rather than "routine clerical work" is of

substantial importance. Mere complexity would not make her work substantially important under the

regulations.

Importantly, Ms. Wagner’s work was not of "substantial importance" just because of the value of

the systems she works on or because some of the information is “confidential.” The Regulations,

explain that it is the work itself that must be of substantial importance and not the size of the

consequences or loss that may result from improper performance of the employee's duties. As the

Regulations note, an employee operating a very expensive piece of equipment, a messenger boy

entrusted with carrying large sums of money, and an inspector for an insurance company can all cause

their employers serious loss by failure to perform their jobs properly, but "such employees, obviously,

are not performing work of such substantial importance to the management or operation of the

business that it can be said to be 'directly related to management policies or general business

operations' as that phrase is used in § 541.2." 29 C.F.R. § 541.205(c)(2) (giving the examples of the

messenger boy, the equipment operator, and the insurance inspector).5

5 To the extent that the Defendant may argue that the level of supervision is relevant to the inquiry, such an argument is misplaced. While the fact that an employee works independently might be argued to shore-up a conclusion that a worker is doing work of "substantial importance," that fact standing alone has little relevance to the inquiry. Night janitorial workers, for example, often work independently and without direct supervision, as do any number of skilled tradesmen such as plainly non-exempt electricians and plumbers.

22

Ms. Wagner's salary is simply not evidence that her work is of substantial importance since she

makes more than other non-exempt persons occupying the position of an administrative assistant.

(SUF ¶1-2). Salary may be used to determine the primary duty of an employee who performs both

exempt and non-exempt tasks by comparing his/her salary to the salary of employees who are just

doing the nonexempt tasks, see 29 C.F.R § 541.103, not to determine the nature of those tasks

themselves. Salary differential does not answer the substantial importance question. The fact that a

non-exempt, unionized, skilled plumber may earn more than an exempt public school teacher does not

change the nature of the plumber's work.

In sum, the evidence in this case utterly fails to establish that Ms. Wagner’s work is "directly

related to management policies or general business operations of his employer or her employer.”

(SUF ¶¶7-29). Where, like Ms. Wagner, a plaintiff's primary duties consist of mailing form letters,

fielding customer complaints, or developing a filing system, such are merely clerical in nature and are

not related to management policy or general business operations of the employers as required under

the second prong of the administrative exemption. See, e.g, Cusumano v. Maquipan Intern., Inc., 2005

U.S. Dist. LEXIS 30257 (M.D. Fla. 2005)(employee was non-exempt where his primary duties

involved working with customers, demonstrating products, and repairing products). Consequently, the

Plaintiff’s Motion is due to be granted as the Defendant cannot present any evidence sufficient to

present a genuine issue of material fact as to the second prong of the administrative exemption test.

D. Prong Three: Ms. Wagner’s Primary Duties Simply Did Not Involve the Exercise of Discretion and Independent Judgment on Matters of Significance.

The administrative exemption test requires that an employee's primary duties involve "the exercise

of discretion and independent judgment with respect to matters of significance." 29 C.F.R. §

541.202(a). "The phrase 'discretion and independent judgment' must be applied in the light of all the

facts involved in the particular employment situation in which the question arises." Id. at § 541.202(b).

23

The Department of Labor regulations provide a non-exhaustive list of factors that may be considered

when determining whether an employee exercises discretion:

[W]hether the employee has authority to formulate affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee's assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long-or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.

Id.

Based on the evidence in this case, Ms. Wagner's primary duties at the EDO utterly failed to

involve the exercise of discretion and independent judgment with respect to matters of significance.

(SUF ¶¶7-29). The proffered evidence shows that Ms. Wagner’s duties did not at all call for her to

exercise even limited discretion, let alone discretion on matters of significance to the EDO. (SUF ¶¶7-

29). Ms. Wagner’s own supervisor confirms that Ms. Wagner received all directions from her

supervisor and that Ms. Wagner simply executed the duties of a secretary according to the instructions

of her superior. (SUF ¶¶20, 27-28). Ms. Wagner's discretion was so limited that even reordering office

supplies had to be cleared with her supervisor, Ms. Noe. (SUF ¶26). Ms. Wagner had no specialized

training and simply performed the secretarial duties she was assigned by Ms. Noe, such as getting

water for meetings and similar tasks. (SUF ¶¶7, 18, 21, 25, 27, 29). Ms. Wagner’s duties were routine

and did not require the exercise of significant discretion or independent judgment. (SUF ¶7-8, 14, 19,

21, 23). Nowhere in Ms. Wagner’s Job Description, particularly in the “Skills/Physical Requirements”

section, is there any duty that could be said to be an exercise of independent discretion on maters of

significance. (Exhibit N, Job Description).

24

Upon due consideration of the record evidence regarding Ms. Wagner's work activities, the Court

should properly conclude that her primary duties at the EDO did not involve the exercise of discretion

and independent judgment with respect to matters of significance. As previously discussed, cases

considering employees with very similar duties to Ms. Wagner’s have declined to apply the

administrative exemption. For example, the employee in Gottlieb v. Constr. Servs. & Consultants, Inc.,

2006 U.S. Dist. LEXIS 97446, 2006 WL 5503644 (S.D. Fla. July 20, 2006) was employed as a project

supervisor in a construction company and his responsibilities included scheduling subcontractors,

ordering supplies, billing on the construction site, and inspecting to make sure the subcontractors' work

complied with the "blue prints, truss prints, and start up sheets." Gottlieb at *2. Although the Gottlieb

plaintiff could make certain decisions on his own without consultation with his area manager, the

district court found that "all 'matters of significance' were determined by Plaintiff's superiors." 2006

U.S. Dist. LEXIS 97446, [WL] at *7. For example, the plaintiff could not hire a subcontractor that was

not on his area manager's approved list. Id. The decision to back-charge a subcontractor for work left

unfinished was also made by the plaintiff's area manager. Id. There, way more so than in the instant

case, the Gottlieb plaintiff had significant decision making authority on matters of some importance

but the court was crystal clear in holding that for those decisions that the plaintiff did make on his own,

they were "based on his skill and experience in the construction industry." Id. Under the FLSA

regulations, "[t]he exercise of discretion and independent judgment must be more than the use of skill

in applying well-established techniques, procedures or specific standards described in manuals or other

sources." Id.; 29 C.F.R. 541.202(e). Thus, the court found that the third prong of the administrative

exemption test was not met. Gottlieb, 2006 U.S. Dist. LEXIS 97446, 2006 WL 5503644, at *7.

In this case, the overwhelming majority of Ms. Wagner's work performance was proscribed for her

by her supervisor, Ms. Noe. After careful consideration of Ms. Wagner's activities and responsibilities

during her employment at the EDO and after an analysis of her work under both the provisions of

25

FLSA and the implementing regulations thereto, the Court should properly find that Ms. Wagner is not

exempt under the third prong of the administration exemption test. Consequently, the Plaintiff's Motion

for Summary Judgment as to the third prong of the administrative exemption test is due to be granted.

The Defendant simply cannot present sufficient evidence such that a reasonable jury could find

Ms. Wagner was employed in a bona fide administrative capacity. Furthermore, the clear evidence

here supports but one conclusion: Ms. Wagner’s job did not relate to the EDO's administrative

operations in that she did not advise management, did not plan, did not negotiate, did not represent the

EDO, did not make purchases, did not promote sales and did not engage in research or control. The

evidence is clear that Ms. Wagner did not perform work of any substantial importance, nor did she

engage in independent decision-making, in that she did not make significant input into decisions

affecting the EDO. The Defendant has proffered no evidence whatsoever to rebut this conclusion

despite having the burden to do so and, as a result, the Plaintiff’s Motion for Summary Judgment as to

Count X is due to be granted.

CONCLUSION

In light of the foregoing undisputed facts and applicable law, the Plaintiff respectfully requests that

this Court grant the Plaintiff’s Motion for Summary Judgment as to Counts IX and X, respectively, and

award all other relief deemed just.

Respectfully submitted,

Dated: August 21, 2015 /s/ Benjamin H. Yormak Benjamin H. Yormak Florida Bar Number 71272 Trial Counsel for Plaintiff Yormak Employment & Disability Law 9990 Coconut Road Bonita Springs, Florida 34135 Telephone: (239) 985-9691 Fax: (239) 288-2534

Email: byormak@yormaklaw.com

26

CERTIFICATE OF SERVICE

I hereby certify that on August 21, 2015, I electronically filed the foregoing (and exhibits) with

the Clerk of Court by using the CM/ECF system. I further certify that I mailed the foregoing document

and the notice of electronic filing by first-class mail to the following non-CM/ECF participants: None.

/s/ Benjamin H. Yormak Benjamin H. Yormak Florida Bar Number 71272 Trial Counsel for Plaintiff Yormak Employment & Disability Law 9990 Coconut Road Bonita Springs, Florida 34135 Telephone: (239) 985-9691 Fax: (239) 288-2534

Email: byormak@yormaklaw.com