Diane Judson v. JM Family Enterprises, Inc. , 212 F. App'x 786 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16433 November 30, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-60904-CV-PAS
DIANE JUDSON,
NIGEL C. SIMPSON,
on behalf of themselves and all
others similarly situated,
Plaintiffs- Appellants,
versus
JM FAMILY ENTERPRISES, INC.,
a Delaware Corporation, and
SOUTHEAST TOYOTA DISTRIBUTORS, LLC,
a Florida Corporation,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 30, 2006)
Before PRYOR, FAY and REAVLEY*, Circuit Judges.
PER CURIAM:
The summary judgment entered in favor of the defendants/appellees is
affirmed for the reasons set forth in the very thorough and scholarly ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT entered by the district
court on October 17, 2005, with one minor exception that does not change the
result. On page 10 of its opinion, the district court stated:
Plaintiffs argue that they were not salaried employees because
Defendants required them “to submit a time report and use personal
or vacation time to be paid” when they were going to be away from
the office. This argument, however, is not supported by the record.
Rather, while the record indicates that Plaintiffs could use personal or
vacation time when they were away from work, neither Ms. Parks nor
Ms. Mangini testified that Defendants required Plaintiffs to use their
personal or vacation time for such absenses.
A review of the record convinces us that this statement is incorrect. The
plaintiffs alleged that they were required to use personal or vacation time if they
were away from work for more than four hours. Ms. Mangini testified in her
deposition that if the plaintiffs were away from work for more than fours hours
they were “required to put it in writing that [they were] using personal time or
vacation time.” Mangini depo at 10:18-19.
* Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
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However, it is clear that plaintiffs were paid on a salary basis. The
Department of Labor regulation requires that the amount of compensation not be
reduced depending on the quality or quantity of work performed. An employee is
considered to be paid on a salary basis if “he regularly receives each pay period on
a weekly, or less frequent basis, a predetermined amount constituting all or part of
his compensation, which amount is not subject to reduction because of variations
in the quality or quantity of the work performed.” 29 C.F.R § 541.118. The
Department of Labor has opined that it is permissible to charge a salaried
employee’s leave bank for partial day absences. “Where an employer has a
benefits plan (e.g., vacation time, sick leave), it is permissible to substitute or
reduce the accrued leave in the plan for the time an employee is absent from work,
whether the absence is a partial day or a full day, without affecting the salary basis
of payment, if the employee nevertheless receives in payment his or her
guaranteed salary.” 2005 WL 330606, FLSA 2005-7. Because there is no dispute
that the plaintiffs were paid a predetermined amount every pay period and that
amount was not subject to variations, they were salaried employees and summary
judgment was proper.
AFFIRMED.
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