                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 12 2014

                                                                          MOLLY C. DWYER, CLERK
MICHAEL L. TAYLOR, DILAWAR                       No. 12-15378               U.S. COURT OF APPEALS

KHAN, VOLENA GLOVER-HALE AND
MANUEL MONTOYA, on behalf of                     D.C. Nos. 3:10-cv-08125-FJM &
themselves and other persons similarly           3:10-cv-01828-PHX-FJM
situated,                                        (consolidated cases)

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

AUTOZONE, INC. AND
AUTOZONERS, LLC,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Frederick J. Martone, District Judge, Presiding

                     Argued and Submitted November 8, 2013
                            San Francisco, California

Before: NOONAN and WATFORD, Circuit Judges, and LYNN, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.
      Michael L. Taylor, Dilawar Khan, Volena Glover-Hale, and Manuel

Montoya (collectively “Appellants”), on behalf of themselves and other persons

similarly situated, appeal the district court’s grant of summary judgment in favor of

Appellants’ former employer, AutoZoners, LLC, and its parent company,

AutoZone, Inc. (collectively “AutoZone”, or “Appellees”), on Appellants’ claim

that AutoZone’s store managers (“SMs”) were improperly classified as “bona fide

executives”, thereby exempting them from the overtime provisions of the Fair

Labor Standards Act (the “FLSA”). We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review a district court’s grant of summary judgment de novo.

Christopher v. SmithKline Beecham Corp., 635 F.3d 383, 389 (9th Cir. 2011) aff’d,

132 S. Ct. 2156, 183 L. Ed. 2d 153 (2012). Having done so, we reverse the ruling

of the lower court, and remand for further determination.

      To qualify under the “bona fide executive” exemption to the FLSA, an

employee’s “primary duty” must be performing exempt activities–i.e., activities

related to the “management of the enterprise . . . or of a customarily recognized

department or subdivision thereof . . . .” 29 C.F.R. § 541.100(a)(2). As the district

court noted, AutoZone does not dispute that the SMs spend less than fifty percent

of their time performing exempt work. However, the SMs might nevertheless be

primarily involved in management activities if other pertinent factors support such


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a conclusion, such as: (1) the relative importance of SMs’ managerial duties as

compared with other types of duties; (2) whether the SMs have relative freedom

from supervision; and (3) the relationship between the SMs’ salaries and the wages

paid to other employees for the same kind of non-managerial work performed by

those employees. 29 C.F.R. § 541.700(a); Baldwin v. Trailer Inns, Inc., 266 F.3d

1104, 1114 (9th Cir. 2001). We find that, in light of conflicting evidence

concerning the importance of SMs’ management duties as compared to their

nonexempt duties, the extent to which SMs are supervised, and the difference in

pay between SMs and nonexempt employees, there are genuine issues of material

fact as to whether the primary duty of AutoZone SMs is management.

      Additionally, to qualify for the executive exemption from the overtime

requirements under the FLSA, an employee must have “the authority to hire or fire

other employees or [their] suggestions and recommendations as to the hiring,

firing, advancement, promotion or any other change of status of other employees

[must be] given particular weight.” 29 C.F.R. § 541.100(a)(4). We find that, in

light of conflicting evidence as to the frequency with which SMs make hiring,

firing, and promotion-related recommendations, and the extent to which their

supervisors rely upon these recommendations, there are genuine issues of material




                                         3
fact as to whether such suggestions and recommendations are given particular

weight.

      Given that factual disputes remain as to whether the primary duty of SMs is

management, and whether their employment recommendations are given particular

weight, we reverse the ruling of the lower court and remand for further

determination of these issues.

      REVERSED AND REMANDED.




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