United States District Court, D. New Mexico
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court following a bench trial conducted
on December 13 and 14, 2016. (Doc. 109). Plaintiff Joe Rivera
claims Defendant McCoy Corporation violated the Fair Labor
Standards Act of 1938 (“FLSA”), 29 U.S.C. §
201 et seq., and the New Mexico Minimum Wage Act
(“MWA”), N.M. Stat. Ann. § 50-4-19 et
seq., by failing to pay Plaintiff overtime wages. (Doc.
1 at 4-5). The Court has reviewed the parties' Trial
Briefs, (Docs. 115-17, 120), and Proposed Findings
and Conclusions of Law, (Docs. 118-19), all filed
December 5, 2016. Additionally, the Court has reviewed
Plaintiff's Supplemental Brief, (Doc. 129), and
Defendant McCoy's Supplemental Brief Regarding the
Meaning of Supervisor under the MWA, (Doc. 128), both
filed January 31, 2017. Having considered the evidence
presented, the filings, and applicable law, the Court makes
the following Findings of Fact and Conclusions of Law:
Findings of Fact
Defendant employed Plaintiff as an Assistant Store Manager
(“ASM”) at its Roswell, New Mexico, store (the
“Roswell store”) from May 12, 2014, to August 13,
Plaintiff underwent a fourteen week training program prior to
becoming an ASM. The training covered numerous topics,
including Defendant's business practices and procedures.
When Plaintiff was trained, the training program cost $31,
000 per trainee. (Doc. 127 at 30).
Defendant paid Plaintiff an annual salary of $38, 000. This
equates to a weekly salary of $730.77. Plaintiff received a
$1, 500 bonus for completing the training program and was
eligible for end of the year bonuses based on the
Plaintiff regularly worked more than 40 hours a week while
employed at the Roswell store. Defendant did not pay
Plaintiff any overtime because it classified him as an
overtime-exempt “executive” employee.
Defendant did not require Plaintiff to clock in or out at the
beginning or end of the workday. (Doc. 125 at 10, p.37
l.12-15; at 14, p. 52 l. 4-8).
During the time Plaintiff worked as an ASM at the Roswell
store, the store employed between 12 and 14 employees at any
given time. The Roswell store Manager was Marisa Mapp. Ms.
Mapp and Plaintiff were the only management employees at the
Ms. Mapp and Plaintiff worked 5 days a week with two days
off. Plaintiff and Ms. Mapp jointly managed the store four
days a week and each managed alone one day a week. On the
days that Ms. Mapp was not at the store, Plaintiff was the
only manager at the store and oversaw store operations. On
the days both Ms. Mapp and Plaintiff were present, they
shared management responsibilities for the store.
Plaintiff and Ms. Mapp were the only two employees at the
Roswell store with the authority and ability to: direct,
counsel, and discipline employees; approve time off requests;
allow employees to leave early; make time clock adjustments;
sign off on drug tests; open and close the store, including
setting and disarming the alarms; and offer credit accounts
to customers. When Ms. Mapp was not at the store, Plaintiff
was the only employee with the ability and authority to
perform the foregoing tasks. (Doc. 125 at 36, p.141-143).
Plaintiff performed the following managerial tasks while
employed at the Roswell store: directed employees to stop
goofing off and get back to work on at least one occasion;
administered five drug tests; handled an incident in the
store in which a customer collapsed, including filling out
the appropriate paperwork; addressed the cashiers on one
occasion regarding how they greeted customers; approved two
days of time off for an employee; occasionally performed
“yard walks”; and regularly received reports on
inventory, time-sheets, and other store information.
Additionally, Plaintiff regularly armed and disarmed the
Roswell store's alarm and set up the cash registers for
Plaintiff handled two employee-related disputes. First,
Plaintiff handled an argument two employees had at the store,
including filling out the appropriate paperwork. Second,
Plaintiff interviewed an employee accused of giving a
customer too much product and documented the incident.
During his employment at the Roswell store, Plaintiff spent
the vast majority of his time performing the same types of
non-managerial tasks as the non-exempt hourly employees.
These tasks included, for example, stocking shelves,
assisting customers, arranging merchandise (what Defendant
calls “zoning”), loading and unloading vehicles,
sweeping, mopping, and otherwise cleaning the store,
performing yard work, and working the cash register.
Plaintiff performed yard walks and safety inspections, but
nonexempt employees performed those duties as well.
Plaintiff participated in two interviews for prospective
employees while employed at the Roswell store. Plaintiff
expressed reservations regarding both employees, but both
Although Plaintiff's job description outlines numerous
managerial responsibilities, Plaintiff did not actually
perform many of them. (See Doc. 111, Ex. 28). For
instance, Plaintiff did not assist Ms. Mapp in analyzing or
preparing various reports, profit and loss statements,
ordering or managing inventory, or scheduling. Ms. Mapp
testified she showed Plaintiff the scheduling system but did
not transfer scheduling responsibility to him. (Doc. 125 at
69, p.273-75). Other employees at the Roswell store were
primarily responsible for managing inventory, scheduling
deliveries, and creating “bid packages” for
high-volume customers. (Doc. 125 at 8, p.29 l.5-15; at 9,
p.32 l.20-23; at 48, p.186 l.19-24; at 65, p. 256 l.2 to
Roswell store employees were typically long-tenured or
otherwise responsible employees who did not need or receive
direct supervision; they knew their duties and performed
instance, Plaintiff was Toni Sturdevant's supervisor
according to Ms. Mapp. Ms. Sturdevant was the Roswell
store's “Retail Inventory Coordinator, ”
(Doc. 103, Ex. 5), and was responsible for managing the
Roswell store's inventory, (Doc. 125 at 65, p.256
l.2-12). Ms. Sturdevant worked at the Roswell store for ten
years before Plaintiff arrived. (Doc. 125 at 13, p.48
Another employee, Salvador Padilla, testified he could run
the whole Roswell store and that Plaintiff never directed his
work. Mr. Padilla stated he would have listened to Plaintiff,
but Plaintiff simply never supervised him. (Doc. 125 at 52,
p.204 l.8-18). Plaintiff “probably” directed a
cashier to work, but Mr. Padilla did not recall a specific
instance. (Doc. 125 at 53, p.208 at 15 to p.209 at 2).
Conclusions of Law
Rule Against Double Recovery
Double recovery is forbidden “when alternative theories
seeking the same relief are pled and tried together.”
Clappier v. Flynn, 605 F.2d 519, 530 (10th Cir.
1979). When “a federal claim and a state claim arise
from the same operative facts, and seek identical relief, an
award of damages under both theories will constitute double
recovery.” U.S. Indus., Inc. v. Touche Ross &
Co., 854 F.2d 1223, 1259 (10th Cir. ...