Case No.: |
2006AP2918 |
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Complete Title of Case: |
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William Madely and James Borland, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants, v. RadioShack Corporation, Defendant-Respondent. |
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Opinion Filed: |
October 23, 2007 |
Submitted on Briefs: |
August 30, 2007 |
Oral Argument: |
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JUDGES: |
Brown, C.J., Curley, P.J., and Wedemeyer, J. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiffs-appellants,
the cause was submitted on the briefs of Robert K. O’Reilly of Ademi & O’Reilly, LLP, of |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent,
the cause was submitted on the brief of Bernard J. Bobber of Foley & Lardner LLP, of |
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2007 WI App 244
COURT OF APPEALS DECISION DATED AND FILED October 23, 2007 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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William Madely and James Borland, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants, v. RadioShack Corporation, Defendant-Respondent. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Curley, P.J., and Wedemeyer, J.
¶1 CURLEY, P.J. William Madely and James Borland appeal from a judgment dismissing their claims that they were improperly classified as exempt from overtime payments, denying their motion for partial summary judgment, and granting summary judgment to RadioShack. Madely and Borland argue that: (1) the trial court erred by weighing the evidence in RadioShack’s favor where there were disputed questions of material fact; and (2) a trial is required because a jury could find that RadioShack Y[1] store managers do not exercise discretionary power and do not have the requisite authority regarding personnel matters.
¶2 We disagree and conclude that the trial court properly granted
summary judgment pursuant to Wis. Stat. § 802.08(6)
(2003-04) because the class of Y store managers were appropriately designated
as falling within
I. Background.
¶3 Madely
and Borland are former Y store managers for RadioShack. They claim, on behalf of a class consisting
of Y store managers, that RadioShack violated
¶4 Madely
and Borland filed a motion for partial summary judgment, arguing that
RadioShack could not prove two of the six elements required to establish
that the class members were exempt from
Wisconsin’s overtime regulations.
Specifically, they argued that RadioShack could not meet its burden of
showing that Y store managers have the requisite personnel authority to qualify
for the executive exemption, in accordance with Wis. Admin. Code § DWD 274.04(1)(a)3.; or that they
“customarily and regularly exercise[] discretionary powers,” pursuant to Wis. Admin. Code § DWD 274.04(1)(a)4.
¶5 With
respect to Wis. Admin. Code § DWD
274.04(1)(a)3., Madely and Borland provided numerous examples of situations
where Y store managers lack authority to act on personnel issues. For example, Y store managers cannot make
final hiring and firing decisions; rather, they conduct “prescreening reviews”
of prospective employees and make recommendations as to terminations. Madely and Borland assert that the district
sales manager is the person responsible for making personnel decisions, not the
store manager, as the role of a store manager is that of lead salesperson. They argued that “RadioShack sales managers
[i.e., Y store managers] clearly do not have the authority to hire or fire
other employees, and their suggestions and recommendations about the hiring,
firing, advancement or promotion or any other change of status of other
employees are not given particular weight.”
¶6 To
support their position as to Wis. Admin.
Code § DWD 274.04(1)(a)4., Madely and Borland relied, in large part, on
RadioShack’s Store Operations Manual (the Manual), which establishes mandatory
policies. They contend that the
all-encompassing Manual “dictates the policies and procedures down to the
minutia of how their desk is organized, how to change light bulbs, how to
resolve plumbing problems, telephone problems, roof leaks, and landlord issues,
and how a sales manager should schedule his or her own hours.” (Record citations omitted.) According to Madely and Borland, any
discretion that is exercised in following the prescribed procedures is minimal
and distinguishable from the actual exercise of discretion. In addition, Madely and Borland rely upon
RadioShack’s “Assistant Manager Training Program Instructor’s Guide,” which
describes the company’s “SEVEN-ONE-ONE” management method. This method directs store managers to
schedule “7 hours of selling, 1 hour on training, and 1 hour of paperwork each
day.” They argue that this shows that Y
store managers are trained and instructed to spend the majority of their employment
time as salespersons; therefore, they argued that “the most RadioShack can
suggest is that sales managers occasionally
exercise discretionary powers,” which is insufficient to satisfy § DWD
274.04(1)(a)4.
¶7 In
its opposition materials, RadioShack addressed each of the elements of
¶8 The
trial court subsequently denied Madely and Borland’s request for summary
judgment, and concluded that RadioShack was entitled to partial summary
judgment with respect to Wis. Admin.
Code § DWD 274.04(1)(a)2.-6.
The trial court then took the issue of whether RadioShack was
entitled to partial summary judgment pursuant to § DWD 274.04(1)(a)1.
under advisement. It subsequently
determined that RadioShack was entitled to summary judgment as to all of the
elements set forth in § DWD 274.04(1)(a) and dismissed Madely and
Borland’s claims that they were improperly classified as exempt.[4] This appeal follows. Additional facts are provided in the
remainder of the opinion as needed.
II. Analysis.
¶9 “When reviewing a grant of summary judgment, appellate courts
independently apply the same methodology as the trial court. That methodology has been set forth numerous
times, and we need not repeat it here.” Fore
Way Express, Inc. v. Bast, 178
¶10 Madely and Borland filed a motion for partial summary judgment, arguing that RadioShack could not
meet its burden of showing that Y store managers have the requisite personnel
authority to qualify for the executive exemption, in accordance with Wis. Admin. Code § DWD 274.04(1)(a)3.;
or that they exercise discretionary powers, pursuant to Wis. Admin. Code § DWD 274.04(1)(a)4. A motion for summary judgment amounts to an
“‘explicit assertion that the movant is satisfied that the facts are undisputed
and that on those facts he is entitled to judgment as a matter of law.’” Grotelueschen v. American Family Mut. Ins.
Co., 171
¶11 On
appeal, Madely and Borland now contend that “[b]oth parties here have submitted
facts that would allow a jury to decide this action either way, and different
inferences may be drawn from those facts.”
We disagree and conclude that only one reasonable inference can be drawn
as to Wis. Admin. Code § DWD
274.04(1)(a)3. and 4. See generally Burbank Grease Servs., LLC v. Sokolowski, 2005 WI App 28, ¶10,
278 Wis. 2d 698, 693 N.W.2d 89, rev’d in
part on other grounds, 2006 WI 103, 294 Wis. 2d 274, 717 N.W.2d 781
(“Whether an inference is reasonable and whether more than one reasonable
inference may be drawn are questions of law.”).
Thus, as explained below, we reject as waived any challenges
raised by Madely and Borland on appeal concerning what they now allege are
disputed material facts entitling them to a jury trial as to § DWD 274.04(1)(a)3. and 4. By filing their motion for partial summary
judgment, Madely and Borland conceded that the material facts as to §§ DWD
274.04(1)(a)3. and 4. were undisputed.[5] See Grotelueschen, 171
¶12 Notwithstanding the waiver of Madely and Borland’s arguments as
to Wis. Admin.
Code § DWD 274.04(1)(a)3. and 4.,
further analysis is required as to the other elements of
¶13 This state requires employers to pay non-exempt employees “time and one-half the regular rate of pay for all hours worked in excess of 40 hours per week.” Wis. Admin. Code § DWD 274.03. Exemptions to the overtime payment rule, one of which is the executive exemption, are detailed in Wis. Admin. Code § DWD 274.04. Section DWD 274.04 provides in pertinent part:
[E]ach employer subject to ch. DWD 274 shall be exempt from the overtime pay requirements in s. DWD 274.03 and these exemptions shall be interpreted in such a manner as to be consistent with the Federal Fair Labor Standards Act and the Code of Federal Regulations as amended, relating to the application of that act to all issues of overtime in respect to the following employees:
(1) Persons whose primary duty consists of administrative, executive or professional work.
(a) “Executive” means an employee employed in a bona fide executive capacity who meets the following criteria:
1. Whose primary duty consists of the management of the enterprise in which they are employed or of a customarily recognized department of subdivision thereof; and
2. Who customarily and regularly directs the work of 2 or more other employees therein; and
3. 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
4. Who customarily and regularly exercises discretionary powers; and
5. Who does not devote more than 20%, or in the case of an employee of a retail or service establishment who does not devote as much as 40%, of their hours of work in the workweek of activities which are not directly and closely related to the performance of the work described in subds. 1. through 4. provided, that this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20% interest in the enterprise in which he is employed; and
6. Who is compensated for their services on a salary basis at a rate of not less than $700 per month.
Because
A. The
only reasonable inference that can be drawn is that Y store managers
influence hiring, firing, and other personnel matters.
¶14
Sales managers cannot hire employees. Sales managers are limited to conducting a “prescreening review” of potential employees and are instructed to refer potential employees to an employment open house. Sales Managers cannot terminate any employees. They cannot choose which RadioShack employees will work at their stores, even if the sales manager recruited the employee. They cannot determine how many employees they should have at the store. They cannot establish pay rates, give raises, or elect to pay bonuses to associates….
Sales managers cannot approve vacation time. They must hold Saturday morning meetings with the other employees at the store, and use the meeting guides prepared by RadioShack corporate headquarters. A computerized store scheduler (“RSS Scheduler”) establishes the number of employees to be working at a particular time; sales managers cannot change the schedule without permission from their District Manager….
(Record citations omitted; emphasis added.)[7]
¶15 In their effort to emphasize the areas that Y store managers cannot influence or when they have only limited influence, Madely and Borland gloss over the areas where Y store managers have significant input. This is borne out in Madely and Borland’s deposition testimony, which reflects numerous instances where the two recommended personnel changes and the subsequent result was evidence that their recommendations were given weight. For example, Madely testified to making recommendations for the termination of RadioShack employees on approximately five or six occasions, and in all but one instance, the employee in question was terminated. According to Madely, the one instance where his recommendation was not followed was due to a staffing shortage. Borland testified at his deposition:
[Question:] Did you have the same number of sales associates in that store at the time you left it as when you began?
[Borland’s Answer:] No. I think we had one less, as I recall. I cleaned house after I took over, for various reasons.
We had serious personnel issues to deal with when I took over. And I think, of the people that I acquired, none were with me at the end. I acquired a whole new staff.
[Question:] What do you mean when you say you “cleaned house” when you took over?
[Borland’s Answer:] For one reason or another, every employee was not appropriate for my expectations nor the company’s.
[Question:] Do you mean you fired people?
[Borland’s Answer:] I cannot fire them. I can only recommend.
[Question:] And did you recommend that those individuals, when you said you had serious personnel issues, be terminated?
[Borland’s Answer:] In two cases – Let me think about that for a minute. In one case, yes.
¶16 In addition, the record reflects that Borland and Madely also had input as to the advancement and promotion and other status changes of RadioShack employees working under them. See Wis. Admin. Code § DWD 274.04(1)(a)3. Borland testified at his deposition that store managers such as himself would have to recommend people for other positions, such as for entrance in RadioShack’s manager training program. Madely also recommended that employees enter the manager training program, and those individuals subsequently were elevated.
¶17 Madely and Borland now attempt to explain this evidence away by contending that it “suggests mere correlation, not a cause and effect relationship.” We are not persuaded by Madely and Borland’s attempt to chalk these facts up to “anecdotal evidence that sometimes, perhaps even frequently, the ultimate personnel decision reflects the recommendation of the sales manager.”
¶18 Section 541.106 of title 29 of the Code of Federal Regulations describes what is meant by the “authority to hire or fire.” It provides as follows:
Section 541.1 [governing the
federal executive exemption] requires that an exempt executive employee have
the authority to hire or fire other employees or that his suggestions and recommendations as to hiring or firing and
as to advancement and promotion or any other change of status of the employees
who he supervises will be given particular weight. Thus, no employee, whether high or low in the
hierarchy of management, can be considered as employed in a bona fide executive
capacity unless he is directly concerned either with the hiring or the firing
and other change of status of the employees under his supervision, whether by
direct action or by recommendation to
those to who the hiring and firing functions are delegated.
¶19 With this in mind, we conclude that the only reasonable inference from the evidence is that RadioShack Y store managers are individuals “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,” in accordance with Wis. Admin. Code § DWD 274.04(1)(a)3.
B. The only reasonable inference that can be drawn is that Y
store managers
“customarily and regularly exercise[]
discretionary powers.”
¶20 To support their contention that a jury could reasonably find that Y store managers lack the ability to exercise discretionary powers, see Wis. Admin. Code § DWD 274.04(1)(a)4., Madely and Borland argue that RadioShack’s corporate policy, which sets forth prescribed procedures for basically any scenario, dictates virtually all of the Y store managers’ decisions. Specifically, they contend that “[m]inimal discretion in following a prescribed procedure cannot be equated with the exercise of discretionary powers.” However, the fact that RadioShack has “mandatory” procedures in place does not necessarily lead to the conclusion that Y store managers do not routinely exercise discretionary powers. Cf. Donovan v. Burger King Corp., 675 F.2d 516, 519 (2nd Cir. 1982) (Burger King II) (noting with respect to Burger King’s reliance on its express written policy, that “[t]he record supports the finding as to Burger King’s actual practices, in contrast to its public declarations”).
¶21
A person whose work is so completely routinized that he has no discretion does not qualify for exemption.
(b) The phrase “customarily and regularly” signifies a frequency which must be greater than occasional but which, of course, may be less than constant. The 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. The requirement is not met by the occasional exercise of discretionary powers.
29 C.F.R § 541.107.
¶22 According
to Madely and Borland, courts interpreting the executive exemption apply the
definition from the regulations governing the federal administrative
exemption. The federal administrative
exemption requires that the employee “customarily and regularly
exercise[] discretion and independent
judgment,” see 29 C.F.R § 541.2(b) (emphasis added),
whereas the federal executive exemption (like
¶23 Likewise, Madely and Borland’s citation to Secretary of Labor v. Daylight Dairy Prods., Inc., 779 F.2d 784 (1st Cir. 1985), questioned on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988), is of no assistance to their position. They contend that in this case, the court “held that a retail store manager who supervised two full-time employees no more than 76% of the time did not engage in customary and regular supervision, and therefore, the store manager was not exempt.” From this, they extrapolate, “given that RadioShack sales managers spend all or virtually all of their time engaged in personal selling, or performing administrative or managerial tasks pursuant to the Store Operating Manual, the most RadioShack can suggest is that sales managers occasionally exercise discretionary powers”—which they argue is insufficient to satisfy Wis. Admin. Code § DWD 274.04(1)(a)4.
¶24 Our review of Daylight Dairy does not lead to the same conclusion. We fail to see how that court’s discussion pertaining to the federal executive exemption requirement that an employee must customarily and regularly direct the work of two or more other employees, see 29 C.F.R. §§ 541.1(b), 541.105(a)—an element of the executive exemption that is not at issue in this appeal, see Wis. Admin. Code § DWD 274.04(1)(a)2.; supra n.9—is relevant to our determination of whether RadioShack Y store managers “customarily and regularly exercise[] discretionary powers,” pursuant to § DWD 274.04(1)(a)4. See Daylight Dairy, 779 F.2d at 787-88. We agree with RadioShack that the extent of supervision of subordinate employees is not a corollary to the exercise of discretionary powers; Madely and Borland have not presented any legal authority to the contrary.
¶25 Moreover, in providing numerous examples of all the different
situations where RadioShack’s policies and procedures limit their ability to
act, Madely and Borland overlook the fact that discretionary determinations
must be made on a number of fronts in carrying out the mandates of the policies
and procedures. In this regard, we agree
with the trial court’s reasoning that although the Manual was detailed, Y store
managers were still regularly required to exercise their discretion in complying
with it. See Bass v. Ambrosius,
185
If somebody is a minute late, do you take action? Five minutes late, 10 minutes late? When does it become important enough? If you’re two minutes late but you do it day after day, is that important enough? That’s a matter of discretion and there seems to be no question that the manager would have to decide: Is it important enough to do anything about? If it is, what do I do? Do I scold them and see what happens? Do I do a written report? Do I call my supervisor and discuss it with him? When does it become a problem that’s big enough to take certain action? When does it become enough of a problem to ask that the employee be terminated? Those are all discretionary decisions that are of high significance in terms of the running of a store. I don’t think it should be necessary to go on. I think there are just lots of examples.
¶26 The record supports the inference that Y store managers
exercised their discretion on a daily basis.
RadioShack provides a plethora of examples of this exercise, which
include critiquing and commenting on employee performance; taking corrective
measures to address safety issues present in the store; training employees on
sales techniques; providing employees with monthly reviews; delegating tasks; assigning
sales goals; etcetera. Thus, we conclude
that the only reasonable inference from the evidence is that RadioShack Y store
managers are individuals who “customarily and regularly exercise[]
discretionary powers,” in accordance with Wis. Admin. Code § DWD 274.04(1)(a)4.
Accordingly, Madely and Borland waived their right to a jury trial as to
§ DWD 274.04(1)(a)3. and 4. when they filed their motion for partial
summary judgment. See Grotelueschen, 171
¶27 In light of the waiver of Wis. Admin. Code § DWD 274.04(1)(a)3. and 4.; Madely and Borland’s undeveloped argument as to § DWD 274.04(1)(a)5.; and the fact that § DWD 274.04(1)(a)2. and 6. are not disputed on appeal; the only remaining issue for our review is whether there is a genuine issue of material fact as to § DWD 274.04(1)(a)1.[9]
C. A Y store manager’s primary
duty is management.
¶28 Madely and Borland argue that summary judgment is inappropriate because there is an issue of fact as to whether the primary duty of Y store managers was management or whether the primary duty of Y store managers was sales. Specifically, they claim to have provided significant evidence that the primary duty of a Y store manager was sales and that any management tasks that were performed were minor and dictated by the Manual. They emphasize RadioShack’s policies, specifically the 7-1-1 management method, which calls for seven hours out of a Y store manager’s nine-hour day to be spent selling. According to Madely and Borland, “the Store Managers’ primary duty was sales, and any management tasks were incidental, minor and dictated by [the Manual].” We disagree.
¶29 Just as the existence of detailed company policies and
procedures did not necessarily lead to the conclusion that Y store managers do
not regularly exercise discretionary power, in this context, the existence of
detailed company policies and procedures does not automatically result in a
finding that a Y store manager’s primary duty is not management. See Donovan v. Burger King Corp., 672
F.2d 221, 226 (1st Cir. 1982) (Burger King I) (“The fact that
Burger King has well-defined policies, and that tasks are spelled out in great
detail, is insufficient to negate [the] conclusion [that the supervision of
other employees is clearly a management duty].”). Rather, “[a] determination of whether an
employee has management as his primary duty must be based on all the facts in a
particular case.” 29 C.F.R. § 541.103; see Ale
v.
¶30 The primary duty element of
¶31 While courts may consider the overall time the employee spends on managerial tasks in determining whether an employee has management as his primary duty, this is not the sole test. 29 C.F.R. § 541.103. The applicable federal regulation provides:
[I]n situations where the employee does not spend over 50 percent of his time in managerial duties, he might nevertheless have management as his primary duty if the other pertinent factors support such a conclusion. Some of these pertinent factors are the relative importance of the managerial duties as compared with other types of duties, the frequency with which the employee exercises discretionary powers, his relative freedom from supervision, and the relationship between his salary and the wages paid other employees for the kind of nonexempt work performed by the supervisor. For example, in some departments, or subdivisions of an establishment, an employee has broad responsibilities similar to those of the owner or manager of the establishment, but generally spends more than 50 percent of his time in production or sales work. While engaged in such work he supervises other employees, directs the work of warehouse and delivery men, approves advertising, orders merchandise, handles customer complaints, authorizes payment of bills, or performs other management duties as the day-to-day operations require. He will be considered to have management as his primary duty.
¶32 In Burger King I, the court was asked to determine whether Burger
King assistant managers qualified for the executive exemption, such that they
were not entitled to overtime pay under the FLSA.
¶33 The Burger King II court, addressing identical issues as the court in Burger King I, see Burger King II, 675 F.2d at 522 n.6, acknowledged:
We fully recognize that the economic genius of the Burger King enterprise lies in providing uniform products and service economically in many different locations and that adherence by Assistant Managers to a remarkably detailed routine is critical to commercial success. The exercise of discretion, however, even where circumscribed by prior instruction, is as critical to that success as adherence to “the book.” Burger King, of course, seeks to limit likely mistakes in judgment by issuing detailed guidelines, but judgments must still be made. In the competitive, low margin circumstances of this business, the wrong number of employees, too many or too few supplies on hand, delays in service, the preparation of food which must be thrown away, or an underdirected or undersupervised work force all can make the difference between commercial success and failure.
¶34 As previously described in our discussion of Wis. Admin. Code § DWD 274.04(1)(a)4., Y store
managers regularly exercise discretionary powers in carrying out RadioShack’s
prescribed policies and procedures, much like the assistant managers in Burger
King II exercised discretion in carrying out Burger King’s detailed
guidelines.
[Question:] And, as far as the day-to-day management of the store, were you the person in charge?
[Madely’s Answer:] Yes.
[Question:] How often did you interact with your district manager when you were a Y Store manager?
[Madely’s Answer:] Once a month and any time that he called.
[Question:] And how often was that, usually?
[Madely’s Answer:] Maybe once a week.
[Question:] The once-a-month meetings would typically last for how long?
[Madely’s Answer:] Five, six hours.
[Question:] And those would be held at the district office?
[Madely’s Answer:] Correct.
[Question:] And the once-per-week phone calls, how long would those usually last?
[Madely’s Answer:] Maybe five minutes.
[Question:] How often would the district manager visit your store when you were a Y Store manager?
[Question:] Once every couple months.
Similarly, Borland testified at his deposition that although the district manager was supposed to visit his store once a month, often times that was not the case; sometimes the district manager would visit twice in one month and other times there would be a three-month lapse before the district manager would come to the store. His individual telephone calls with the district manager typically lasted two to three minutes. Lastly, it is undisputed that there was a significant salary differential between what Madely and Borland earned in their capacity as Y store managers and what the sales associates earned.[11]
¶35 Thus, similar to the conclusions reached by the courts in Burger King I and Burger King II, we conclude that the primary duty element was satisfied as to RadioShack’s Y store managers. While we acknowledge that selling was a major component of a Y store manager’s responsibilities, this does not negate the conclusion that while he or she is selling, a Y store manager is also managing the store. See Burger King I, 672 F.2d at 226 (an employee’s primary duty can be management even while that employee is performing other work).
¶36 For the foregoing reasons, we affirm the trial court’s grant of summary judgment based on our conclusion that RadioShack’s Y store managers were properly classified as qualifying for Wisconsin’s executive exemption. The trial court did not improperly weigh the evidence, as Madely and Borland contend; rather, it simply decided the issues as a matter of law.
By the Court.—Judgment affirmed.
[1] RadioShack designates its stores as either Y stores or V stores. A Y store typically has annual sales of $500,000 or more in the previous year, and a V store has annual sales of less than $500,000 in the previous year. Y store managers do not receive overtime compensation, while V store managers do.
[2] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
[3] Madely filed his complaint on December 6, 2002, alleging that RadioShack failed to pay he and other similarly situated RadioShack store managers overtime wages. Borland filed a similar complaint on February 10, 2003. The trial court subsequently consolidated the cases.
Borland sought class certification on behalf of two subclasses: Y store managers, on grounds that RadioShack improperly classified them as exempt from overtime payment; and V store managers, on grounds that RadioShack failed to pay overtime for hours worked in excess of forty hours per week. The trial court granted certification for a class of Y store managers with Madely designated as class representative and Borland designated as a class member. The trial court denied certification of a class of V store managers.
All code provisions are current through Wisconsin Administrative Register No. 620, August 2007.
[4] The trial court took under advisement, for determination at a later date, whether Madely and Borland adequately pled a Wis. Stat. § ch. 109 claim separate from the claim that they were improperly classified by RadioShack as exempt from the overtime pay requirements. The parties later stipulated to the entry of summary judgment on the ch. 109 claim; consequently, Madely and Borland’s complaint was dismissed in its entirety. Madely and Borland have not raised issues pertaining to a ch. 109 claim on appeal.
[5] When they filed their motion for partial summary judgment, Madely and Borland represented to the trial court that their submissions in support of their motion “establish[ed] the absence of any genuine dispute regarding the relevant facts.” However, in their appellate brief, they now state: “Genuine disputed issues of material fact exist as to whether ‘Y’ store sales managers customarily and regularly exercise discretionary powers [and] whether Y-store managers have the requisite personnel authority….”
[6]
We agree with RadioShack that Madely and Borland’s argument that the federal decisions employing the short test are inapposite is unsupported and contrary to the express language of Wis. Admin. Code § DWD 274.04, which provides that the executive exemption “shall be interpreted in such a manner as to be consistent with the Federal Fair Labor Standards Act and the Code of Federal Regulations as amended….” We observe that Wisconsin’s administrative regulations do not include the short test (i.e., the federal regulations establish two different legal tests—a short test and a long test—based on salary level, see Donovan v. Burger King Corp., 675 F.2d 516, 518 (2nd Cir. 1982) (Burger King II)); however, in all other regards, Wisconsin’s administrative regulation regarding the executive exemption generally mirrors the executive exemption in the federal regulations. Consequently, federal cases are instructive for purposes of our analysis.
[7] Numerous record citations in Madely and Borland’s brief do not match the record documents referenced, in violation of Wis. Stat. Rule 809.19(1) (2005-06). We remind counsel that we have no duty to scour the record to review arguments unaccompanied by adequate record citations. See Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990).
[8] We
have not been presented with any legal authority that could even arguably
support Madely and Borland’s argument that “courts interpreting the executive
exemption, apply the definition from the regulations governing the
administrative exemption.” Madely and
Borland’s reliance on Kemp v. Montana Bd. of Pers. Appeals,
989 P.2d 317 (
Lastly, we do not follow the logic
of Madely and Borland’s one-sentence statement in their reply brief that
“RadioShack’s misinterpretation of the executive exemption is so common that it
is specifically proscribed in the regulations,” coupled with their citation to
29 C.F.R. § 541.207(c), which elaborates on the administrative exemption’s
“discretion and independent judgment” requirement. No additional analysis is provided. As it stands, this argument is undeveloped,
and we need not consider it. See generally M.C.I., Inc. v. Elbin, 146
[9] Madely and Borland argue that there are questions of material fact that preclude summary judgment on whether Y store managers were in “sole charge” of their stores, pursuant to Wis. Admin. Code § DWD 274.04(1)(a)5., and they take issue with RadioShack’s reliance on Murray v. Stuckey’s Inc., 939 F.2d 614 (8th Cir. 1991). RadioShack responds by asserting that “it is undisputed that Madely, Borland, and the class of Y Store Managers were the highest ranking supervisory employees at their store locations on a day-to-day basis,” and contends that no further showing was required pursuant to 29 C.F.R. § 541.113(d). Madely and Borland neglected to offer any argument in their reply brief on this issue. We deem this omission a concession. See generally Stuart v. Weisflog’s Showroom Gallery, Inc., 2006 WI App 109, ¶4, 293 Wis. 2d 668, 721 N.W.2d 127, review granted, 2007 WI 16, 298 Wis. 2d 94, 727 N.W.2d 34 (concluding that cross-appeal issues were conceded when party failed to respond in their reply brief to the cross-respondent’s argument). We therefore do not address this issue any further.
Madely and Borland have not raised any appellate issues as to the trial court’s conclusion that Wis. Admin. Code § DWD 274.04(1)(a)2. and 6. were satisfied.
[10] In
Donovan
v. Burger King Corp., 672 F.2d 221 (1st Cir. 1982) (Burger
King I), the court analyzed the primary duty element for assistant
managers qualifying for application of the federal short test; however, the
court noted that “[i]n so far as long test personnel must also have management
as a primary duty, our ruling here that that requirement was met applies
equally to them.”
[11] Madely stated at his deposition that he earned between $40,000 and $43,000 per year as a Y store manager during the class period, while full-time sales associates working under him earned approximately $350 every two weeks (i.e., just over $9000 per year). Borland testified that he earned approximately $42,000 in 2001, with the average sales associate below him generally earning from one-third to one-half of what he was making.