United States District Court, S.D. Texas, Houston Division
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
S. HANEN, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Academy, Ltd.'s Motion for
Summary Judgment against Plaintiff Dustin Trainer (Doc. No.
66), and Motion for Summary Judgment against Plaintiff Rusty
Robbins (Doc. No. 72); the various responses and replies
associates with both motions (Doc. Nos. 109, 111, 116, and
117); Magistrate Judge Stacy's Memorandum and
Recommendation that the Court grant summary judgment as to
Trainer, but to deny it as to Robbins (Doc. No. 121);
Trainer's and Defendant's Objections to the
Memorandum and Recommendation (Doc. Nos. 123, 124); and
Defendant's and Robbins' Responses to the Objections
(Doc. Nos. 126, 127). After reviewing, de novo, the
case, the Magistrate Judge's Memorandum and
Recommendation, and the issues raised by both parties'
objections, the Court hereby ADOPTS the
Memorandum and Recommendation.
recounting in detail, the evidence which the Magistrate Judge
painstakingly reviewed, the Court writes to emphasize the
evidence supporting summary judgment on the primary duty
requirement of the executive exemption's second prong.
See 29 C.F.R. § 541.100(a)(2). It states:
"The term 'employee employed in a bona fide
executive capacity' ... shall mean any employee ... (2)
Whose primary duty is management of the enterprise in which
the employee is employed or of a customarily recognized
department or subdivision thereof... ." Id.
Trainer admitted he was the "closing manager" for
his store 60% of the time (Doc. No. 66, Ex. A at 55-56;
see also Doc. No. Ill. Ex. A at 60). When he was the
closing manager, he was the only manager on the premises
(Doc. No. 66, Ex. A at 55). Trainer also testified that
"at least 25 percent of the time that [he] was not
closing" he was the manager on duty (Doc. No. 66, Ex. A
at 56; Doc No. 111, Ex. A at 60).Thus, for at least 70% of his
time at work Trainer "was responsible for everything
that happens in the store as the manager on duty ... ."
(Doc. No. 66, Ex. A at 56). Indeed, the Magistrate Judge
accurately identified eight managerial tasks that Trainer was
responsible for as the manager on duty (Doc. No. 121 at 14
n.l; see also Doc. No. 66, Ex. A at 56-57).
objects to the Memorandum and Recommendation and argues,
among other things, that a fact issue exists on the primary
duty element (Doc. No. 123 at 9-16). In particular, he points
to his deposition where he said, "85 to 90 percent of my
day was spent doing customer service, various tasks
throughout the store." (Doc. No. Ill. Ex. A at 27).
Trainer also stated "[m]ost of the workday [he] was
doing customer service or other nonmanagement tasks, "
such as being a cashier, folding clothes, sweeping the floor,
assisting customers, unloading the freight truck, and setting
up planograms. Id. at 28, 45, 59.
all inferences in Trainer's favor, as is necessary at the
summary judgment stage, the Court does not find that he
raised a genuine issue of material fact as to the primary
duty element. First of all, the uncontroverted evidence
establishes that performing customer service duties at a
retail establishment, like Academy, is of extreme importace
and that all of the employees were working toward that
goal. Even assuming that Trainer spent up to 90%
of his day performing non-managerial tasks, the evidence
shows that he was simultaneously executing his management
duties. Concurrent performance of exempt and nonexempt work
does not disqualify an employee under the executive
exemption. 29 C.F.R. § 541.106(a). This is because
"exempt executives make the decision regarding when to
perform nonexempt duties and remain responsible for the
success or failure of business operations under their
management while performing the nonexempt work."
Id. The regulations even specify that
"assistant manager[s] in a retail establishment may
perform work such as serving customers . . . stocking shelves
and cleaning the establishment, " and have his or her
primary duty be management. Id. § 541.106(b).
To be sure, an "assistant manager can supervise
employees and serve customers at the same time without losing
the exemption. An exempt employee can also simultaneously
direct the work of other employees and stock shelves."
concurrent duties regulations accurately describe
Trainer's job as described by the evidence. As discussed,
during the times he was manager on duty he was
"responsible for everything that happens in the
store." (Doc. No. 66, Ex. A at 56). Thus, even
when he was assisting customers, cleaning, and stocking
shelves, Trainer was also tasked with ensuring the function
and operation of the store (Doc. No. 66, Ex. A at 56-57, 64),
supervising employees (id. at 51), and fostering a
safe environment (id. at 43, 50, 52, 65). Further,
Trainer chose to perform the nonexempt tasks. Id. at
59; see also Doc. No. Ill. Ex. A at 48. So even if
Trainer spent 90% of his time doing non-exempt work, it was
his decision to not exercise his undisputed discretion to
delegate to other employees. See C.F.R. §
541.106(a) ("[E]xempt executives make the decision
regarding when to perform nonexempt duties....");
see also Stein v. J.C. Penney Co., 557 F.Supp. 398,
405 (W.D. Tenn. 1983).
even though "a good rule of thumb [is] that primary duty
means the major part, or over 50 percent of the
employee's time[, ]" other factors must be
considered. Vela v. City of Hous., 276 F.3d 659, 677
(5th Cir. 2001). Specifically, the additional factors are:
(1) the relative importance of the exempt duties as compared
with other types of duties; (2) the employee's relative
freedom from direct supervision; and (3) the relationship
between the employee's salary and the wages paid to other
employees for the kind of nonexempt work performed by the
employee. 29C.F.R. § 541.700(a); see also Saunders
v. Lincoln Mfg., Inc., No. H-18-1746, 2019 WL 1601875,
at *9 (S.D. Tex. Apr. 15, 2019). Trainer failed to raise a
factual issue that his nonexempt work was more important than
the 70% of the time he was responsible for the overall
management of the store. In addition, even if he "was
micromanaged from the top down" by the store director
and his policies (Doc. No. Ill. Ex. A at 56), Trainer could
not be directly or closely supervised because he was the only
manager in the store approximately 60% of the time.
Trainer's compensation significantly exceeded that of
nonexempt employees. Trainer worked for Defendant from June
12, 2015 to December 11, 2015 (Doc. No. Ill. Ex. A at 3). His
annual salary was $50, 000. Id. at 9. Before the
store opened around November 13, 2015 (see Doc. No.
66, Ex. A at 39), Trainer worked approximately 40 hours each
week. Id. at 59. After the store opened, Trainer
says his weekly hours were closer to 60. Id. at 60.
Thus, his effective hourly rate exceeded $22. That is $4 more
than the highest paid hourly employee in the Logistics
Department (Doc. No. 66, Ex. B at 2-3). Trainer has not
established a genuine issue of material fact as to whether
his primary duty was management.
Court also finds no error with respect to the Magistrate
Judge's Order recommending that Defendant's Motion
against Robbins be denied. The Court can not say as a matter
of law that no fact issues exists as to him.
the Court hereby ORDERS that Trainer's
Objections (Doc. No. 123) and Defendant's Objections
(Doc. No. 124) are OVERRULED; the Memorandum
and Recommendation (Doc. No. 121) is
ADOPTED; Defendant's Motion for Summary
Judgment against Plaintiff Dustin Trainer (Doc. No. 66) is
GRANTED, and Defendant's Motion for
Summary Judgment against Plaintiff Rusty Robbins (Doc. No.
72) is DENIED.
 Trainer was also the manager on duty
when he was the closing manager (Doc. No. Ill. Ex. A at
 The 70% figure assumes that when
Trainer said he was the closing manager 25% of the time he
was not closing, he meant 25% of the 40% he was not the
closing manager. If he meant 25% of his entire time at work,