           IN THE UNITED STATES COURT OF APPEALS of Appeals
                                           United States Court
                    FOR THE FIFTH CIRCUIT           Fifth Circuit

                                                                            FILED
                                                                        December 23, 2008

                                                                      Charles R. Fulbruge III
                                     No. 08-10662
                                                                              Clerk
                                   Summary Calendar


CATHERINE LOVELADY; DIANA F. SCHUMACHER; MARGIE LEWIS,

                                                  Plaintiffs–Appellants,

DAWN HILL,

                                                  Appellant,
v.

ALLSUP’S CONVENIENCE STORES, INC., a New Mexico Corporation;
LONNIE D. ALLSUP, an Individual; BARBARA J. ALLSUP, an Individual,

                                                  Defendants–Appellees.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:07-CV-130


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Catherine Lovelady, Diana Schumacher, Margie Lewis, and Dawn Hill
appeal the grant of summary judgment in favor of Allsup’s Convenience Stores,


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 08-10662

Inc., Lonnie Allsup, and Barbara Allsup (collectively Allsup’s). The district court
ruled that Lovelady’s claims were barred by the applicable statute of limitations
and that Lovelady, Schumacher, and Lewis were exempt employees under the
Fair Labor Standards Act (FLSA).1 We affirm.
                                        I
      Lovelady, Schumacher, and Lewis sued Allsup’s for unpaid overtime
allegedly due under the FLSA. Appellant Hill “opted in” to this matter by filing
a Consent to Sue form with the district court. Appellants alleged that Allsup’s
misclassified all of its store managers as exempt under the Act.
      Allsup’s is a privately held corporation that operates over 300 convenience
stores in various locations, including Texas and New Mexico. Each appellant is
a store manager at a different Allsup’s convenience store location. Allsup’s
classifies its store managers as exempt, salaried employees.
      Allsup’s maintains a written job description that lists the duties and
responsibilities of its store managers. Those duties and responsibilities include:
1) preparation, analysis, and evaluation of store paperwork; 2) management and
supervision of store clerks and assistant managers, including scheduling,
training and counseling; 3) ordering all of the store’s merchandise, ensuring
accurate inventory counts, and monitoring delivery of the store’s goods and
products; 4) management of store operations, such as ensuring that the store
meets high standards of general cleanliness, controlling expenses for supplies,
and maintaining customer relationships; and 5) maintaining store security by
ensuring compliance with cash control procedures, investigating inventory
discrepancies, and training employees on security policies and procedures.
      Schumacher and Lewis testified that they received a predetermined,
weekly salary of at least $455 per week regardless of the number of hours they



      1
          29 U.S.C. § 201.

                                        2
                                        No. 08-10662

worked, were ultimately responsible for the day-to-day operation of their
respective stores, supervised between four and eight employees, and made
recommendations on hiring and firing, which were generally followed by
management.
       The district court granted summary judgment in favor of Allsup’s, holding
that the appellants were exempt employees under the FLSA. The district court
also ruled that Lovelady’s claims were barred by the applicable statute of
limitations.2 Lovelady does not appeal this ruling. Accordingly, and because
Hill only “opted in” to this matter, we need only consider whether Schumacher
and Lewis were exempt employees under the FLSA.
                                              II
       This court reviews a grant or denial of summary judgment de novo,
applying the same standard as the district court.3 Summary judgment is
appropriate if “the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”4 “Any reasonable
inferences are to be drawn in favor of the non-moving party.”5
                                              III
       The FLSA overtime pay requirements do not apply to those employees who
work in a “bona fide executive, administrative, or professional capacity” as
defined by the Department of Labor (DOL).6 An “employee employed in a bona



       2
           29 U.S.C. § 255(a).
       3
         Robinson v. Orient Marine Co. Ltd., 505 F.3d 364, 365 (5th Cir. 2007) (citing Gowesky
v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003)).
       4
           FED. R. CIV. P. 56(c).
       5
           Robinson, 505 F.3d at 366 (citing Gowesky, 321 F.3d at 507).
       6
           See 29 U.S.C. § 213(a)(1).

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                                      No. 08-10662

fide executive capacity” is an employee: 1) compensated on a salary basis, not
less than $455 per week; 2) whose primary duty is management of the enterprise
in which the employee is employed or of a customarily recognized department
or subdivision thereof; 3) who customarily and regularly directs the work of two
or more other employees; and 4) who either has 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 are
given particular weight.7
                                             A
        There is no dispute that Lewis and Schumacher were each compensated
on a salary basis in excess of $455 per week. Lewis and Schumacher also
testified that their salaries were never reduced for any reason. Nevertheless,
Lewis and Schumacher argue that the reduction-of-bonus provisions within
Allsup’s’ store managers bonus plan constitutes an impermissible docking of pay
and destroys the exempt status of store managers. We disagree.
        Deductions or reductions from bonus payments do not affect an employee’s
status as an exempt employee so long as the requisite minimum $455 salary is
paid.       “An employer may provide an exempt employee with additional
compensation without losing the exemption or violating the salary basis
requirement, if the employment arrangement also includes a guarantee of at
least the minimum weekly-required amount paid on a salary basis.”8 “The
prohibition against improper deductions from the guaranteed salary under 29
C.F.R. § 541.602(b) does not extend to such additional compensation provided to
exempt employees.”9 Therefore, Allsup’s’ management bonus policy does not

        7
            29 C.F.R. § 541.100(a).
        8
            29 C.F.R. § 541.604(a).
        9
         Dept. of Labor, Wage and Hour Div. Op. Letter, FLSA2006-24 (July 6, 2006) available
at http://www.dol.gov/esa/whd/opinion/FLSA/2006/2006_07_06_24_FLSA.htm.

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result in impermissible deductions that destroy Lewis’s and Schumacher’s
exempt status.
                                        B
      Allsup’s also demonstrated that Lewis’s and Schumacher’s primary duty
was the management of the enterprise in which they were employed. Generally,
“management” activities include:
   interviewing, selecting, and training of employees; setting and adjusting
   their rates of pay and hours of work; directing the work of employees;
   maintaining production or sales records for use in supervision or control;
   appraising employees’ productivity and efficiency for the purpose of
   recommending promotions or other changes in status; handling employee
   complaints and grievances; disciplining employees; planning the work;
   determining the techniques to be used; apportioning the work among the
   employees; determining the type of materials, supplies, machinery,
   equipment or tools to be used or merchandise to be bought, stocked and
   sold; controlling the flow and distribution of materials or merchandise and
   supplies; providing for the safety and security of the employees or the
   property; planning and controlling the budget; and monitoring or
   implementing legal compliance measures.10
      Lewis and Schumacher argue that they are not exempt because they were
required to perform both exempt and non-exempt work. But “[c]oncurrent
performance of exempt and nonexempt work does not disqualify an employee
from the executive exemption if the requirements of § 541.100 are otherwise
met.”11 In fact, “[e]xempt work may be an employee’s primary duty even though
such work occupies less than half her time ‘if the other pertinent factors support




      10
           29 C.F.R. § 541.102.
      11
           29 C.F.R. § 541.106.

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such a conclusion.’”12 We have directed lower courts that “the essence of the test
is to determine the employee’s chief or principal duty.”13
       Lewis and Schumacher testified that, in addition to the authority to make
hiring and firing recommendations, their job duties included training employees,
dealing with vendors, disciplining employees, creating work schedules, handling
employee grievances, ordering the inventory for their stores, ensuring
compliance with Allsup’s’ policies and procedures, ensuring the accuracy of
employee time records, controlling and minimizing expenses, and recommending
promotions of clerks to assistant managers. While they performed some of the
same tasks as non-exempt store clerks, Lewis’s and Schumacher’s principal duty
was to manage the day-to-day operations of their respective stores. Therefore,
we agree with the district court that management was their primary duty.
                                              C
       Allsup’s has also shown that Lewis and Schumacher customarily and
regularly directed the work of two or more other employees. Specifically,
Schumacher testified that she supervised four to eight employees, and Lewis
testified that she usually supervised at least five employees. They further
testified that their stores were allocated enough hours that they regularly
supervised at least two full-time employees during the relevant time periods.
                                              D
       Finally, Allsup’s has shown that Lewis and Schumacher had the authority
to hire and fire other employees or that their suggestions and recommendations




       12
          Dalheim v. KDFW-TV, 918 F.2d 1220, 1227 (5th Cir. 1990); see Vela v. City of
Houston, 276 F.3d 659, 677 (5th Cir. 2001) (explaining that the relevant factors include: 1) the
relative importance of managerial duties; 2) frequency of discretionary powers; 3) relative
freedom from supervision; and 4) the relationship between exempt employees’ salary and non-
exempt employees’ wages).
       13
            Dalheim, 918 F.2d at 1227.

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as to the hiring, firing, advancement, promotion or any other change of status
of other employees were given particular weight.
   To determine whether an employee’s suggestions and recommendations
   are given “particular weight,” factors to be considered include, but are not
   limited to, whether it is part of the employee’s job duties to make such
   suggestions and recommendations; the frequency with which such
   suggestions and recommendations are made or requested; and the
   frequency with which the employee’s suggestions and recommendations
   are relied upon.14
      Schumacher and Lewis argue that they did not have the authority to make
employment decisions because they had to first obtain permission from their
supervisor. However, “[a]n employee’s suggestions and recommendations may
still be deemed to have ‘particular weight’ even if a higher level manager’s
recommendation has more importance and even if the employee does not have
authority to make the ultimate decision as to the employee’s change in status.”15
      With respect to hiring, Lewis and Schumacher each testified that while
they had to obtain final approval from their supervisor or the home office, their
hiring recommendations were almost always followed. The only noted exception
was when a background check on a recommended employee disclosed a criminal
record. As to firing, Lewis testified that there were no employees that she was
not allowed to fire, and Schumacher testified that she fired an employee without
seeking authorization from a higher manager.           In addition, Lewis and
Schumacher testified that their recommendations were followed with respect to
other personnel matters, such as promotions and raises. We conclude that Lewis
and Schumacher had the authority to hire and fire other employees or, at the
very least, their suggestions and recommendations were given particular weight.
      Because the evidence in the record established that Lewis and



      14
           29 C.F.R. § 541.105.
      15
           Id.

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Schumacher met the FLSA requirements for exempt employees, the decision of
the district court is AFFIRMED.




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