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Parrish v. The Roosevelt County Board of County Commissioners

United States District Court, D. New Mexico

December 31, 2017

KEITH PARRISH, Plaintiff,
v.
THE ROOSEVELT COUNTY BOARD OF COUNTY COMMISSIONERS, a political sub-division existing under the law of the State of New Mexico, Defendant.

          Eric D. Dixon Attorney for the Plaintiff

          Grace Philips and Peter S. Auh and Andrew Lambert Johnson Keleher & McLeod, Attorneys for the Defendant

          MEMORANDUM OPINION [1]

         THIS MATTER comes before the Court on (i) Defendant The Roosevelt County Board of County Commissioners Motion for Summary Judgment, filed April 27, 2016 (Doc. 35)(“MSJ”); and (ii) Plaintiff Keith Parrish's Motion to Strike Summary Judgment Affidavit of Amber Hamilton, filed May 11, 2016 (Doc. 36)(“Motion to Strike”). The Court held a hearing on July 6, 2016. The primary issues are: (i) whether the Court should strike the Affidavit of Amber Hamilton (executed April 27, 2016), filed April 27, 2016 (Doc. 35- 6)(“Hamilton Aff.”); and (ii) whether Defendant The Roosevelt County Board of County Commissioners (“Roosevelt County”) is entitled to summary judgment on the Plaintiff's Civil Complaint and Demand for Jury Trial, filed August 11, 2015 (Doc. 1)(“Complaint”), specifically, its federal claim under the Fair labor Standards Act, 29 U.S.C. §§ 201-19 (“FLSA”), and its state-law claim for breach of contract. First, the Court will not strike the Hamilton Aff., because it is based on personal knowledge. Second, the Court concludes, that there is no genuine dispute as to any material fact such that Roosevelt County is entitled to summary judgment as a matter of law on Parrish's FLSA claim. Parrish qualifies for the FLSA's administrative and executive exceptions. His salary exceeded $455.00 per month, his duties entailed supervising others, and he manages aspects of Roosevelt County Detention Center. The Court declines, however, to exercise supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(c), over Parrish's state-law breach-of-contract claim. Accordingly, the Court grants the MSJ as to Parrish's FLSA claim and dismisses the breach-of-contract claim without prejudice.

         FACTUAL BACKGROUND

         The Court provides two factual background sections below. First, the Court provides a factual summary based on the Complaint's allegations to give context for the MSJ. Second, the Court provides the undisputed facts, which it derives from Roosevelt County's assertions of material fact in the MSJ, Plaintiff Keith Parrish's Response to “Defendant the Roosevelt County Board of County Commissioners Motion for Summary Judgment, ” filed May 11, 2016 (Doc. 37)(“MSJ Response”), and Defendant the Roosevelt County Board of County Commissioners' Reply in Support of Motion for Summary Judgment, [2] filed May 31, 2016 (Doc. 40)(“MSJ Reply”), for purposes of deciding the MSJ under rule 56(a) of the Federal Rules of Civil Procedure.

         1. The Complaint's Factual Allegations.

         Parrish is a former employee of Roosevelt County, which is a political subdivision operating under the laws of the State of New Mexico. See Complaint ¶¶ 2, 7 at 1, 3. Roosevelt County operates Roosevelt Detention in Portales, New Mexico. See Complaint ¶ 6, at 2. Sometime in 2015, Roosevelt County informed Parrish that he would have to work “at least fifty hours a week.” Complaint ¶ 8, at 3. Parrish proceeded to “generally work[] in excess of forty hours a week, ” which included “holidays, vacation, snow days, ” and on-call duty after his regular hours, to comply with Roosevelt County's command. Complaint ¶¶ 8-9, 14, at 3-4. Parrish also contends that “he never received a regular lunch break [because he] was expected to be working.” Complaint ¶ 15, at 4.

         2. The Undisputed Facts.

         Parrish was paid more than $455.00 per week on a salaried basis while employed as a lieutenant at Roosevelt Detention. See MSJ ¶ 1, at 3 (setting forth this fact, citing Roosevelt County Detention Center Letter to Parish at 1, dated April 9, 2013, filed April 27, 2016 (Doc. 35-2)(“Offer Letter”) (offering Parrish a “modified salary of $35, 238.00/year”)).[3] As a lieutenant, “Parrish was in charge of developing, directing and improving the inmate programs at RCDC.” MSJ ¶ 2, at 3 (setting forth this fact, citing Parrish Dep. at 82:21-83:20; id. at 87:3-10; id. at 100:15-24).[4] Additionally, Parrish was in charge of the Roosevelt Detention when Administrator Casanova was away from the facility. See MSJ ¶ 3, at 3 (asserting this fact, citing Parrish Dep. at 98:22-99:2; id. at 99:12-16).[5]

         Parrish's duties as a lieutenant entailed “supervis[ing] the subordinate officers (sergeants, corporals and floor officers) in the facility.” MSJ ¶ 4, at 3 (setting forth this fact, citing Parrish Depo. at 109:23-110:4; Hierarchy Chart, dated March 2, 2016, filed April 27, 2016 (Doc. 35-7)(“Hierarchy Chart”)).[6] Parrish participated in the interview process for floor officers hired at Roosevelt Detention and made recommendations as to who should or should not be hired. See MSJ ¶ 5, at 3 (asserting this fact, citing Parrish Depo. at 113:18-114:10).[7] Additionally, Parrish -- in his capacity as lieutenant -- participated in discussions regarding firing employees and was involved in the discipline process at Roosevelt Detention. See MSJ ¶ 6, at 3 (setting forth this fact, citing Parrish Depo. at 114:10-115:8).[8]

         At some point while he was a lieutenant, Parrish was told that “he had to work at least fifty hours a week including holidays and ‘snow days' without additional compensation.” MSJ Response ¶ 3(B), at 4 (setting forth this fact, citing Parrish Depo. 138:1-25).[9] Parrish was also “on-call twenty-four hours a day, seven days a week between at least March and June, 2016.” MSJ Response ¶ 3(C), at 4 (setting forth this fact, citing Parrish Depo. at 145:16-25; id. at 146:9-25; id. at 148:1-19; id. at 150:7-25; id. at 151:11-14; id. at 153:17-25; id. at 160:5-161:11); MSJ Reply at 6 (not disputing this fact).[10] Between March and June, 2015, Roosevelt Detention was understaffed and sometimes had only two people on duty making the environment dangerous for both officers and detainees. See MSJ Response ¶ 3(D), at 5 (setting forth this fact, citing Hamilton Depo. at 18:4-10; id. at 26:15-25).[11]

         Roosevelt Detention's policy for employee lunch breaks allows all full-time employees a one hour, unpaid lunch break, except for departments with established thirty-minute lunch breaks, and full time employees are eligible for two additional fifteen-minute breaks per day. See MSJ Response ¶ 3(G), at 5 (setting forth this fact, citing Hamilton Depo. at 23:1-24:21).[12]Parrish was, under Roosevelt County's policies, a full-time employee, see MSJ Response ¶ 3(F), at 5 (setting for this fact, citing Hamilton Depo. at 21:1-12; id. at 21:23-22:18)), [13] and rarely, if ever, received a meal break or the two fifteen minute breaks to which he was entitled, see MSJ Response ¶ 3(E), at 5 (setting forth this fact, citing Hamilton depo. at 27:6-28:2; id. at 29:11-12; id. at 30:2-24; id. at 31:1-13; id. at 35:17-23; Compensation and Benefit Program at 1, filed May 11, 2016 (Doc. 37-5)(“Comp. Program”); Email from Becky White to Roosevelt County Employees, dated May 15, 2015, filed May 11, 2016 (Doc. 37-6)(“Becky White Email)).[14] All non-exempt employees are entitled to overtime, see MSJ Response ¶ 3(H), at 6 (setting forth this fact, citing Hamilton Depo. at 25:16-25), [15] and sergeants at Roosevelt Detention were entitled to overtime compensation, see MSJ Response ¶ 3(I), at 6 (setting forth this fact, citing Hamilton Depo. at 27:1; id. at 41:24-25).[16]

         PROCECURAL BACKGROUND

         On August 11, 2015, Parrish commenced this action in the United States District Court for the District of New Mexico. See Complaint at 1. In the Complaint, Parrish asserts two claims against Roosevelt County: (i) Count I asserts a claim for violations of the FLSA's overtime requirements, see Complaint ¶¶ 16-21, at 4-5; and (ii) Count II asserts breach of contract for failing to pay Parrish for overtime or for regularly scheduled lunch breaks, see Complaint ¶¶ 22-26, at 5.

         1. Roosevelt County's MSJ.

         In the MSJ, Roosevelt County advances two primary arguments: (i) that, at all relevant times, Parrish was exempt from the FLSA's overtime requirements, pursuant to 29 U.S.C. §213(a)(1); and (ii) Roosevelt County did not breach any contract. See MSJ at 1. Initially, Roosevelt County restates a series of facts pertaining to Parrish's employment history at Roosevelt Detention. See MSJ at 2-3.[17] Roosevelt County then argues that Parrish, as lieutenant, was exempt from the FLSA's overtime pay requirements under the FLSA's administrative and executive exemptions. See MSJ at 4-5. According to Roosevelt County, “[a] court's inquiry into the exempt status of an employee is fact bound and case specific, ” MSJ at 5 (quoting Archuleta v. Wal-Mart Stores, Inc., 543 F.3d 1226, 1233 (10th Cir. 2008))(alteration added), and, “to establish exempt status, ” Roosevelt County argues, “the employer must show that the employee meets both the FLSA's ‘salary' test and the appropriate ‘duties' test for the exemption which purportedly applies, ”' MSJ at 5 (quoting Monroe Firefighters Ass'n v. City of Monroe, 600 F.Supp.2d 790, 794 (W.D. La. 2009)(James, J.)).

         Turning first to the administrative exception, Roosevelt County notes that the following factors determine whether an employee qualifies for it: (i) “an employee must be compensated on a salary basis at a rate of not less than $455 per week”; (ii) the employee's primary duty must be “‘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 (iii) the employee's primary duty must include “‘the exercise of discretion and independent judgment with respect to matters of significance.'” MSJ at 5 (quoting Bernard v. Grp. Pub., Inc., 970 F.Supp.2d at 1222 (citing 29 C.F.R. § 541.200(a)). Roosevelt County explains that an administrative employee's primary duty must be “to perform work directly related to assisting with the running or servicing or the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.” MSJ at 5 (quotations omitted).

         Roosevelt County then argues that Parrish was exempt under the FLSA's administrative standard. See MSJ at 6. First, Roosevelt County contends that Parrish meets the first factor, because Parrish was compensated at more than $455 per week. See MSJ at 6 (citing MSJ ¶ 1, at 3). Second, Roosevelt County contends that Parrish meets the second factor, because his primary responsibilities included “directing the inmate programs at RCDC, ” MSJ at 6 (citing MSJ ¶ 2, at 3 (undisputed fact)), “acting as the officer in charge of the facility while Administrator Dave Casanova was away from the facility, ” MSJ at 6, (citing MSJ ¶ 3, at 3 (undisputed fact)), and supervising subordinate officers, see MSJ at 6 (citing MSJ ¶ 4, at 3 (undisputed fact)). Third, Roosevelt County asserts that Parrish meets the third factor, because Parrish directed all of the Roosevelt Detention inmate programs. See MSJ at 6 (citing MSJ ¶ 2, at 3).

         Roosevelt County also contends that Parrish also qualified for the FLSA's executive exemption. See MSJ at 6. To meet the executive exemption, Roosevelt County argues:

First the employer must show that the employee was compensated on a salary basis of not less than $455 per week. 29 C.F.R. § 541.100(a)(1). Second, to be an “executive employee” the employee's primary duty must have been management of the enterprise or of a customarily recognized department or subdivision. 29 C.F.R. § 541.100(a)(2). Third, the employer must show that the “executive employee” regularly directed the work of two or more employees. 29 C.F.R. § 541.100(a)(3). Finally, the “executive employee” has “authority to hire or fire other employees, or the employee's suggestions and recommendations on “hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.” Maestas v. Day & Zimmerman, LLC, 972 F.Supp.2d 1232, 1236-37 (D.N.M. 2013) quoting 29 C.F.R. § 541.100(a)(4).

MSJ at 6-7. Roosevelt County again asserts that it paid Parrish a salary of more than $455.00 per week. See MSJ at 7 (citing MSJ ¶ 1, at 3). Roosevelt County also argues that Parrish's “role as director of programs for RCDC was directly related to the overall successful management of the detention center, ” so Parrish meets the second factor. MSJ at 7 (citing MSJ ¶ 2, at 3). Next, Roosevelt County contends that Parrish directed the work of two or more employees when “Administrator Casanova was away from RCDC.” Finally, Roosevelt County contends:

Roosevelt County departments are in a unique situation compared to private sector employers when it comes to hiring and firing individuals. (Hamilton Aff.)[18]. Although Mr. Parrish did not have unilateral authority to hire or fire individuals at RCDC, while he was a Lieutenant he was part of the hiring panel that made hiring or firing recommendations (Statement of Material Facts No. 5)[19]. Mr. Parrish's recommendations as part of the hiring panel were given particular weight as to the ultimate hiring decision. (Exhibit F)[20]. Mr. Parrish also participated in discussions on whether individuals should be fired from RCDC (Statement of Material Facts No. 6).[21]

MSJ at 7-8.

         Roosevelt County also asserts that it did not breach a contract with Parrish, because there was no contract. See MSJ at 8 (citing Tapia v. City of Albuquerque, 10 F.Supp.3d 1207, 1271 (D.N.M. 2014)(Browning, J)). Roosevelt County postulates that, even if there was a contract, Roosevelt County did not breach it, because under the purported contract's terms, Parrish was not entitled to overtime pay. See MSJ at 8. Roosevelt County also asserts that it could not have breached the purported contract regarding Parrish's lunch break allegations, because Roosevelt County did not prevent Parrish from taking his lunch. See MSJ at 8. Roosevelt County concludes that, because Parrish was exempt from overtime pay and free to take lunch breaks of his own volition, Roosevelt County is not liable for the allegation of breach of contract, and summary judgment is appropriate. See MSJ at 9.

         2. The MSJ Response.

         Parrish responded to the MSJ on May 11, 2016. See MSJ Response at 1. In his response, Parrish advances that he was “stripped of any and all supervisory powers between March, and June, 2015 when he was forced to resign.” See MSJ Response at 1. Parrish then contends that between March and June, 2015, “[t]he Administrator was out on sick leave and the other Lieutenant had quit.” MSJ Response at 1. Parrish avers that he “was required to work fifty hours per week and was not paid on holidays, ” whereas “[he] had previously worked 40 hours per week, ” presumably during his tenure as floor officer. MSJ Response at 2. He continues to object generally that he “was not an exempt employee” and that Roosevelt County “breached its contract with [Parrish] by not paying him for meal and break times as its own written policies required.” MSJ Response at 2. Parrish then concedes that he was in charge of Roosevelt Detention programs, but he qualifies that concession by arguing that he “did not have any independent authority to hire anybody” or “discipline anyone for work rule infractions” at Roosevelt Detention. MSJ Response at 2. Parrish then asserts that he performed floor officer duties, presumably during his stint as lieutenant, “[b]ecause of severe short staffing.” MSJ Response at 2. Concerning his lunch-break breach-of-contract claim, Parrish avers that he “worked through lunch breaks and other breaks during his shift.” MSJ Response at 3.

         Parrish advances four primary arguments in opposition to Roosevelt County's MSJ. See MSJ Response at 7-11. First, Parrish contends that his “primary dut[ies]” were not 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.” MSJ Response at 8 (quoting 29 C.F.R. § 541.200(a)(2)). He argues that the factors considered when determining an employee's primary duty include

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.

         MSJ Response at 8 (citing 29 C.F.R. § 541.700(a)). Parrish concludes that his primary duties changed when his duties were rescinded in March, 2015, and that therefore he does not qualify for the exception. See MSJ at 9. Second, Parrish argues that he was not exempt under the FLSA's executive exemption. See MSJ Response at 9. He contends that an employer bears the burden of proving the executive exception. See MSJ Response at 9 (citing Archuleta v. Wal-Mart Stores, Inc., 543 F.3d 1226, 1233 (10th Cir. 2008)). Parrish asserts that an employee's primary duty is management if it is the “principal, main, major or most important duty that the employee performs.” MSJ Response at 10 (quoting 29 C.F.R. § 541.700(a)). To determine whether an employee's primary duty is management, Parrish directs the court to look at four non-exclusive factors: “[T]he amount of time spent performing non-managerial tasks, (2) the relative importance of non-managerial duties as compared to other duties, (3) the employee's relative freedom from direct supervision, and (4) the relationship between the employee's salary and the wages paid to other employees performing nonexempt work.” MSJ Response at 10 (quoting 29 C.F.R. § 541.700(a)). Parrish contends that he cannot meet this standard, because he “spent the majority of his time as a floor officer.” MSJ Response at 10.[22] Regarding the freedom-from-direct-supervision factor, Parrish avers that two consultants supervised him, see MSJ Response at 10, grounded upon Parrish's statement that, “basically, I had [the two consultants], both, actually telling me everything to do basically, and they weren't even full-time employees of the County, ” Parrish Depo. At 135:1-6.[23]

         Turning to his breach-of-contract claim, Parrish asserts that, under Roosevelt Detention's written policies, he was entitled to a lunch break and two additional fifteen-minute breaks per shift. See MSJ Response at 10 (citations omitted). He contends that “[g]overnment employees can rely on the terms of employment contracts with their governmental employers, including implied-in-fact employment contracts based on provisions in personnel manuals and on other representations and conduct of the parties.” MSJ Response at 11 (quoting Garcia v. Middle Rio Grande Conservancy Dist., 1996-NMSC-029, ¶ 11, 918 P.2d 7, 10-11)(citation omitted). Parrish then asserts that he received neither the lunch breaks nor the additional fifteen-minute breaks to which he was entitled. See MSJ Response at 11. Finally, Parrish argues that Roosevelt County does not address Parrish's “uncompensated on-call time” in the MSJ, and he stresses that, between “at least March and June, 2015, [Parrish] was on call twenty-four hours a day, seven days a week.” MSJ Response at 11.

         3. The MSJ Reply.

         On May 31, 2016, Roosevelt County replied to the MSJ Response. See MSJ Reply at 1. Roosevelt County contends, broadly, that the assertions in Parrish's responsive pleading are conclusory, so do not “rebut the fact that [Parrish's] claims are barred because he was an FLSA exempt employee.” MSJ Reply at 2-3 (alterations added)(citations omitted). Roosevelt County also reiterates that Parrish qualifies for the FLSA's administrative and executive exemptions. See MSJ Reply at 2. First, Roosevelt County reasserts that the wages, which Parrish received, exceeded $455.00 per week and adds that Parrish's salary did not vary based on the hours he worked. See MSJ at 3. Second, Roosevelt County argues that Parrish's responsibilities over inmate programing “is critical to the safe and secure operation of a detention facility, ” adding that the “safety and health is a functional area specifically recognized by the Department of Labor exemption rule as being directly related to management or general business operations.” MSJ Reply at 4 (citing 29 C.F.R. § 201(b)). Additionally, Roosevelt County asserts that Parrish's role is equally critical for quality control, personnel management, and handling of grievances. See MSJ Reply at 4 (citing 29 C.F.R. § 201(b); C.F.R. § 541.202(b)). Roosevelt County contends that employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level. See MSJ Reply at 4 (citing 29 C.F.R. § 541.202(c)). Roosevelt County also argues that the FLSA administrative exemption does not require Parrish's duties to be exclusively administrative, citing 29 C.F.R. § 541.700(b), which requires only that exempt employees spend more than fifty percent of their time on exempt duties. See MSJ Reply at 4. Roosevelt County notes that the administrative duties' relative importance -- compared to other duties -- is a factor to be considered, as is the relationship between the employee's salary and the wages paid to other employees for the same nonexempt work performed. See MSJ Reply at 4 (citing 29 C.F.R. § 541.700(b)). Third, contends that Parrish's primary duty was special program director, a position in which Parrish exercised discretion and independent judgment. See MSJ Reply at 5.

         Roosevelt County also refutes Parrish's contention that his duties and responsibilities were stripped, because, according to Roosevelt County, Parrish did not present evidence that he stopped performing his typical duties or fulfilling his program director role. See MSJ at 6. Finally, Roosevelt County asserts that Parrish's contention that he had no independent authority to hire or fire anyone is immaterial, because the operative question is whether Parrish's recommendations and suggestions regarding hiring and firing is given particular weight. See MSJ at 7. It concludes that Parrish's recommendations had the requisite gravitas for the executive exemption to apply. See MSJ at 7.

         4. The Motion to Strike.

         On May 11, 2016, Parrish filed the Motion to Strike the Hamilton Aff., which Roosevelt County submitted in support of its MSJ. See Motion to Strike, filed May 11, 2016 (Doc. 36). Parrish argues that Hamilton's proffered opinions in her affidavit are not based on personal knowledge, so lack the requisite foundation. See Motion to Strike at 1-5. Parrish primarily objects to Hamilton's statement that “[t]he Lieutenant position held by Keith Parrish was an exempt position for which he received a salary and he was not entitled to overtime pay” under the Fair Labor Standards Act, 29 U.S.C. §§ 201-19, Motion to Strike ¶ 3, at 2 (quoting Hamilton Aff. ¶ 12, at 2), because this statement “contradicts her prior deposition testimony and impermissibly offers opinions about Mr. Parrish's status at the County, ” Motion to Strike at 4-5. Parrish also contends that the statements in the Hamilton Aff. ¶¶ 9, 10, 11, 12, 13, 14 and 15, at 1-2, are made without Hamilton's personal knowledge, based on her deposition testimony that “she claimed not to know about activities taking place before she became County Manager.” Motion to Strike at 4.[24] Parrish also objects to Hamilton's statement that non-exempt employees are entitled to overtime pay under the FLSA, because it is a legal opinion which lacks foundation or personal knowledge. See Motion to Strike at 4 (citing Hamilton Aff. ¶ 8, at 2).

         5. The Motion to Strike Response.

         On May 31, 2016, Roosevelt County responded to the Motion to Strike. See Defendant Roosevelt County Board of County Commissioners Response to Plaintiff's Motion to Strike Summary Judgment Affidavit of Amber Hamilton at 1, filed May 31, 2016 (Doc. 42)(“Motion to Strike Response”). In rejoinder, Roosevelt County maintains, first, that the Hamilton's Aff. satisfies all formal requirements for a summary judgment affidavit, because it: (i) is based on personal knowledge; (ii) sets forth facts which are admissible as evidence, and (iii) is based on matters to which Hamilton is competent to testify. See Motion to Strike Response at 1-2 (citing Giles v. Univ. of Toledo, 241 F.R.D. 466, 469 (N.D. Ohio 2007)(Zouhary, J.)(establishing the three formal requirements for a summary judgment affidavit). Second, Roosevelt County contends that the Hamilton Aff. does not contradict Hamilton's deposition testimony. See Motion to Strike Response at 1.

         Roosevelt County argues that Hamilton's statements are based on personal knowledge, because all are either statements about how Roosevelt County operates or are statements taken from Parrish's personnel file. See Motion to Strike Response at 2. According to Roosevelt County, Hamilton would have personal knowledge of both, because she is the County Manager. See Motion to Strike Response at 2. Roosevelt County also argues that Hamilton Aff. facts are admissible evidence, because the testimony is based on personal knowledge or admissible documents, and the statements are not otherwise hearsay. See Motion to Strike Response at 2.

         Roosevelt County concludes that the Hamilton Aff. does not contradict Hamilton's prior deposition testimony. See Motion to Strike Response at 2-3. It contends that Parrish's highlighted testimony from the Hamilton deposition dealt with issues before Hamilton became County Manager, so do not pertain to anything from the Hamilton Aff., because the Hamilton Aff. discusses Roosevelt County's current operations or facts from Parrish's personnel file. See Motion to Strike Response at 4.

         6. The Motion to Strike Reply.

         On June 7, 2016, Parrish replied to the Motion to Strike Response. See Plaintiff K[ei]th Parrish's Reply to “Defendant Roosevelt County Board of County Commissioners Response to Plaintiff's Motion to Strike Summary Judgment Affidavit of Amber Hamilton” at 1, filed June 7, 2016 (Doc. 44)(“Motion to Strike Reply”). Parrish reiterates that the Hamilton Aff. is not based on personal knowledge and materially conflicts with Hamilton's deposition testimony. See Motion to Strike Reply at 2. Parrish contends that the Hamilton Aff. does not demonstrate that Hamilton is acquainted with Roosevelt County's operations and Parrish's employee file. See Motion to Strike Reply at 2-3. He also maintains that the Hamilton Aff. conflicts with Hamilton's deposition testimony, because, in her deposition, she testified that she could not confirm or deny for what Parrish was initially hired, but, in her affidavit, she declares that Parrish held an exempt lieutenant position for which he received a salary and was not eligible for overtime pay. See Motion to Strike Reply at 4. Parrish concludes that the Hamilton Aff. also contains legal opinions that the Court must therefore strike. See Motion to Strike Reply at 5 (citing Hamilton Aff. ¶ 8, 12, at 2).

         7. The Hearing.

         The Court held a hearing on July 6, 2016. See Draft Transcript of Motion Hearing (taken July 6, 2016)(“Tr.”).[25] Roosevelt County demurred on rearguing the briefing, see Tr. at 5:5-7 (Auh), and the Court inquired whether, for the “period of time [when] the facility got very shorthanded, ” if Mr. Parrish “function[ed] in many ways as a nonexempt employee, ” or whether “his work[] day to day during that period of time looked a lot like the line guards there at the facility, ” Tr. at 5:8-14 (Court). Roosevelt County noted that “there may have [been a] period of a couple of months when that may be said to be true, ” but nevertheless asserted that, “the job descriptions” included in their MSJ contemplate “that as a lieutenant there are going to be times when he is going to have to permit duties of, well, the entire facility basically.” Tr. at 5:15-22 (Auh).[26] Roosevelt County then argued that, although Parrish may have done some non-lieutenant tasks for a period, Roosevelt Detention is a small, understaffed facility, and that, as a lieutenant, “he has to do whatever it takes to get [the job] done.” Tr. at 6:16-7:3 (Auh).

         The Court then inquired into the circumstances of Parrish's resignation, and Roosevelt County acknowledged that Parrish clashed with consultants who were brought in to the facility. See Tr. at 7:22-8:20 (Auh, Court). Roosevelt County also acknowledged that Parrish worked more often once the consultants were retained. See Tr. at 9:7-10 (Auh); id. at 9:22-10:6 (Auh). Turning to whether Parrish qualified for the FSLA's exemptions, Roosevelt County contended that Parrish's deposition demonstrates that, once Parrish became lieutenant, “a lot of people reported to him, ” Tr. at 11:21-22 (Auh), and that Parrish “was responsible for maintaining schedules and payroll, ” Tr. at 11:24-25 (Auh). Roosevelt County also avers that, although Parrish testifies in his deposition that the consultants were telling Parrish what to do, that statement does not mean Parrish was no longer a supervisor; a supervisor's supervisor can tell supervisors what to do. See Tr. at 12:14-21 (Auh).

         Parrish responded first by arguing that Roosevelt Detention was a dangerous facility, and that Parrish was “basically stuck there with nobody to supervise and a whole bunch of angry inmates that were escaping.” Tr. at 15:10-12 (Dixon). Parrish contends that, although his position title was lieutenant, that did not mean he was an exempt employee. See Tr. at 16:16-19 (Dixon). He also asserts that, even before the consultants arrived, he never was a manager or a supervisor. See Tr. at 17:14 (Dixon); id. at 17:18-19 (Dixon). Parrish concedes, however that he worked with inmates on the rehabilitation program and that the program was important. See Tr. at 18:4-10 (Dixon); id. at 18:14 (Dixon). Nevertheless, Parrish maintains that he does not qualify for the FSLA's exemptions, because his inmate program duties were not his primary duties. See Tr. at 18:17-18 (Dixon). Parrish asserts that summary judgment is inappropriate, because a jury may decide whether his duties were administrative or executive or what his primary duty was. See Tr. at 20:7-10 (Dixon); id. at 20:18-23 (Dixon). He concludes that he's entitled to overtime pay for the entirety of his lieutenant employment period. See Tr. at 24:3 (Dixon).

         Roosevelt County countered that Parrish was second-in-command at Roosevelt County for many years and many times he ran the facility when the first-in-command, Casanova, was sick. See Tr. at 25:14-26:11 (Auh). Roosevelt County reasserted that summary judgment was appropriate here, because the facts were undisputed, so the Court can make a determination as a matter of law. See Tr. at 27:25-28:11 (Auh). The Court concluded by noting that it was inclined to grant summary judgment on the FSLA claim in Roosevelt County's favor and to remand the breach-of-contract claim to state court. See Tr. at 30:5-10 (Court).

         LAW REGARDING ...


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