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Rivera v. McCoy Corp.

United States District Court, D. New Mexico

March 6, 2017

JOE RIVERA, Plaintiff,



         THIS 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:

         I. Findings of Fact

         1. 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, 2014.

         2. 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).

         3. 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 company's profitability.

         4. 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.

         5. 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).

         6. 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 Roswell store.

         7. Both 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.

         8. 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).

         9. 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 the day.

         10. 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.

         11. 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.

         12. Plaintiff performed yard walks and safety inspections, but nonexempt employees performed those duties as well.

         13. Plaintiff participated in two interviews for prospective employees while employed at the Roswell store. Plaintiff expressed reservations regarding both employees, but both were hired.

         14. 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 p.257 l.9).

         15. The 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 them.

         16. For 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 l.14-22).

         17. 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).

         II. Conclusions of Law

         A. Rule Against Double Recovery

         1. 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. ...

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