                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 11, 2009
                             No. 08-16940                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 08-60159-CV-DLG

JULIO BARRETO,


                                                           Plaintiff-Appellant,

                                  versus

DAVIE MARKETPLACE, LLC,
a Florida limited liability
company d.b.a. Foodtown,
ESMAIL MOBARAK,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (June 11, 2009)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:

      Julio Barreto appeals the district court’s entry of summary judgment in favor

of his former employer, Davie Marketplace, LLC d/b/a Foodtown, on his claim for

violation of the overtime pay requirements of the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. §§ 201 et seq. On appeal, Barreto argues that the district

court erred in holding that Davie Marketplace had satisfied as a matter of law the

“executive exemption” to the FLSA’s overtime pay requirements because there are

disputed facts as to three of the four prongs of the “executive exemption” test: (1)

whether Barreto’s “primary duty” as “manager” of the produce department

consisted of management; (2) whether Barreto customarily and regularly directed

the work of two or more other employees; and (3) whether Barreto’s

recommendations with respect to hiring and firing employees were given

“particular weight” by management. Upon thorough review of the record and

careful consideration of the parties’ briefs, we conclude that the evidence creates a

genuine issue of material fact as to all three of these elements. Accordingly, we

reverse the entry of summary judgment and remand this case to the district court.

      We conduct a de novo review of a district court’s order granting summary

judgment, “applying the same legal standards as the district court.” Chapman v. AI

Transp., 229 F.3d 1012, 1023 (11th Cir. 2000). “Summary judgment is appropriate



                                           2
if the evidence before the court shows ‘that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.’

In making this determination, the court must view all evidence and make all

reasonable inferences in favor of the party opposing summary judgment.” Haves

v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citations omitted). The

summary judgment movant bears the initial burden of showing the court, by

reference to the record, that no genuine issues of material fact exist to be

determined at trial. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.

1991). The movant meets this burden by showing that there is an “absence of

evidence to support the non-moving party’s case.” Jeffery v. Sarasota White Sox,

Inc., 64 F.3d 590, 593 (11th Cir. 1995). Once this initial burden is met, the other

party must “go beyond the pleadings, and by its own affidavits, or by depositions,

answers to interrogatories, and admissions on file, designate specific facts showing

that there is a genuine issue for trial.” Id. at 593-94 (citations and quotations

omitted).

      The FLSA provides that employees are generally entitled to receive overtime

pay at one and one-half times their regular rate for all hours worked in excess of

forty per week. See 29 U.S.C. § 207(a)(1). The FLSA exempts from its overtime

pay requirements “any employee employed in a bona fide executive,



                                           3
administrative, or professional capacity.” See 29 U.S.C. § 213(a)(1); see also

Avery v. City of Talladega, 24 F.3d 1337, 1340 (11th Cir. 1994). The employer

has the burden of showing entitlement to an exemption, Jeffery v. Sarasota White

Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995), and we construe overtime exemptions

narrowly, against the employer. Avery, 24 F.3d at 1340 (citing Brennan v. Sugar

Cane Growers Co-Op, 486 F.2d 1006 (5th Cir. 1973)). This court has recognized

the “Supreme Court’s admonition that courts closely circumscribe the FLSA’s

exceptions.” Nicholson v. World Bus. Network, Inc., 105 F.3d 1361, 1364 (11th

Cir. 1997). The executive exemption “is to be applied only to those clearly and

unmistakably within the terms and spirit of the exemption.” Morgan v. Family

Dollar Stores, Inc., 551 F.3d 1233, 1269 (11th Cir. 2008).

      The Code of Federal Regulations defines executive employees as those (1)

who receive compensation “of not less than $455 per week”; (2) whose “primary

duty” is the management of the enterprise in which the employee is employed or of

a customarily recognized department thereof; (3) who customarily and regularly

direct the work of two or more other employees; and (4) who have the authority to

hire or fire other employees or whose suggestions and recommendations as to the

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

employees are given “particular weight.” 29 C.F.R. § 541.100(a). As evidence



                                         4
that Barreto met all four prongs on this test, Davie Marketplace submitted only the

deposition of Barreto, with attached exhibits, and the three-page affidavit of store

supervisor Ajay Dhawan. In responding, Barreto relied solely on his deposition.

Thereafter, based only on this evidence, the district court granted summary

judgment, finding that Davie Marketplace was entitled to the executive exemption

defense as a matter of law.

      On appeal, it is uncontested that Barreto was paid a flat rate of $500.00 per

week, thereby satisfying the first element of the executive employee definition.

The parties, however, dispute the applicability of the remaining three elements.

Accordingly, we first consider whether the evidence submitted by the parties

creates a genuine issue of fact regarding whether management was Barreto’s

“primary duty” in his employment as manager of the produce department at Davie

Marketplace.

      The Code of Federal Regulations defines “primary duty” as “the principal,

main, major or most important duty that the employee performs” but explains that

the “[d]etermination of an employee’s primary duty must be based on all the facts

in a particular case, with the major emphasis on the character of the employee’s job

as a whole.” 29 C.F.R. § 541.700(a). The factors to consider in this analysis

include: (1) the amount of time spent performing management duties; (2) the



                                           5
relative importance of the management duties as compared with other types of

duties; (3) the frequency with which an employee may exercise discretionary

powers; (4) the employee’s relative freedom from direct supervision; and (5) the

relationship between the employee’s salary and the wages paid to other employees

for the kind of non-management work performed by the employee. Rodriguez v.

Farm Stores Grocery, Inc., 518 F.3d 1259, 1264 (11th Cir. 2008) (citing 29 C.F.R.

§ 541.103). This analysis specifically requires an examination beyond an

employee’s title to the specific duties performed by the employee.

      The district court, relying on Barreto’s deposition and Dhawan’s affidavit,

found as a matter of law that Barreto’s duties were primarily managerial. Barreto

stated in his deposition that Davie Marketplace hired Barreto as the Manager of the

Produce Department, paying him a flat rate of $500.00 per week for all hours

worked. In this position, Barreto admitted to performing certain managerial tasks,

namely, ordering and pricing produce as needed to meet proscribed profits and

providing direction and work schedules to the other three employees in the

department. Store supervisor Ajay Dhawan’s affidavit asserted that (1) Barreto

was given wide latitude to run the produce department and received little

supervision from upper management, (2) Barreto was responsible for reaching a

certain level of productivity for the department and for using his judgment to



                                          6
accomplish that important business objective, and (3) Barreto earned more that two

times the compensation earned by other employees in the produce department.

The district court found that Barreto’s deposition testimony did not directly dispute

the assertions in Dhawan’s affidavit and therefore deemed these assertions to be

admitted. Accordingly, after acknowledging that Barreto’s deposition also asserted

that he spent the majority of his time performing non-managerial tasks and that his

discretion was somewhat limited by the store’s policies, the district court found

that the evidence nonetheless required a finding that Barreto’s primary duties were

managerial.

      Barreto claims that although his title was that of “manager” and he

admittedly performed some managerial-type tasks, his deposition testimony,

considered in the light most favorable to him, creates a genuine dispute as to

whether management was his primary duty. We agree. The parties agree that

Barreto performed the managerial tasks of ordering produce, pricing produce, and

scheduling and directing produce department employees; however, it is also

undisputed that Barreto spent more than 50% of his time performing tasks identical

to those performed by the hourly, non-exempt employees. Indeed, Barreto testified

that, due to management’s under-staffing of the department, he was required to

perform non-exempt work for such a large percentage of his time that he had no



                                          7
time to fulfill some of the managerial responsibilities he had been nominally given,

i.e., to supervise other employees and to purchase the least expensive produce. He

also testified that the four other non-exempt employees did not require his

supervision, as they already “knew what the job was.” This evidence suggests that

Barreto’s non-management responsibilities were more important to the operation

of the store than his few managerial duties.1 Cf. Diaz v. Team Oney, Inc., 291 Fed.

Appx. 947 (11th Cir. 2008) (rejecting plaintiff’s claim that management was not

his “prime responsibility” where the record was clear that “his managerial duties –

as the highest ranking employee on duty during the majority of his shifts, in which

he supervised the drivers, counterpersons, and cooks, apportioned work, made

deposits, filled out required forms, interviewed prospective employees, and

engaged in local restaurant marketing – were significantly more important to the

operation of the restaurant than his non-managerial tasks”).

       1
         The district court correctly noted that “employees who do not spend more than 50
percent of their time performing exempt duties may nonetheless meet the primary duty
requirement if the other factors support such a conclusion.” See 29 C.F.R. § 541.700(b), (c)
(“Time alone . . . is not the sole test, and nothing in this section requires that exempt employees
spend more than 50 percent of their time performing exempt work. Thus, for example, assistant
managers in a retail establishment who perform exempt executive work such as supervising and
directing the work of other employees, ordering merchandise, managing the budget and
authorizing payment of bills may have management as their primary duty even if the assistant
managers spend more than 50 percent of the time performing nonexempt work such as running
the cash register.”). However, where an employee spends the majority of his time on non-
exempt work and has admittedly few managerial-type obligations, there is at least a factual
question as to whether the non-exempt duties are comparatively more important than the exempt
duties. Such determinations of fact in the face of conflicting evidence are within the exclusive
province of a jury. See e.g., Morgan, 551 F.3d at 1269.

                                                 8
      Barreto also presented evidence that his discretion in performing his

managerial tasks was limited and his work was subject to supervision.

Specifically, Barreto testified that he was required to order the cheapest produce

available from a list of vendors pre-selected by management, to fix the pricing of

the produce by increasing the wholesale prices according to a set scale given to

him by management, and to order produce only as needed to restock preexisting

supplies. He testified that he was told at the managers’ meeting how many

employees he needed to schedule for each shift and how many hours the

employees would work. Barreto also testified that when he asked management to

hire one or two more employees for his understaffed department, management

denied his request and instructed him to cut the hours of the remaining hourly

employees from 40 to 30 hours per week. This testimony, considered in the light

most favorable to Barreto, contradicts Dhawan’s conclusory affidavit statements

that Barreto was given “wide latitude” in managing his department and that he was

responsible for using “his judgment” to accomplish certain business goals. As

such, Barreto’s testimony creates a genuine issue of fact regarding the extent of

Barreto’s discretionary powers and relative freedom from direct supervision while

performing his identified managerial tasks, i.e., ordering produce, setting prices,

and setting the work schedule for non-exempt employees.



                                           9
      In summary, Barreto’s sworn testimony suggests that Barreto spent the

majority of his time performing non-management duties; the management duties he

did perform were less important to his position than the other types of duties he

performed; and Barreto infrequently exercised his discretion and was subject to

direct supervision. Accordingly, even though the evidence suggests that Barreto’s

wages were significantly greater than the wages paid to the non-exempt employees

in the produce department, we conclude that a reasonable factfinder could find that

Barreto’s managerial tasks did not constitute his “primary duties” under the

balancing test set forth in the Regulations. See Morgan, 551 F.3d at 1280-81

(holding that store managers were not exempt executives where evidence showed

that they “spent most of their time performing manual, not managerial, tasks, that

corporate manuals micro-managed store managers’ performance of those tasks,

that the 380 district managers closely supervised their store managers, and that

store managers had little discretion or freedom from supervision”).

      Based solely on Barreto’s deposition, the district court also found that the

evidence established that Barreto “customarily and regularly directed the work of

two or more employees” and that his recommendations in hiring, firing or the

advancement of employees were given “particular weight.” Accordingly, the court

found Davie Marketplace met the third and fourth prongs of the executive



                                         10
exemption test as a matter of law. Specifically, the district court noted that Barreto

admitted that “he told employees who worked in the produce department their

schedules and place[d] them on either the morning shift or afternoon shift,” that

“he would assign jobs to the employees to take merchandise outside, and had them

rotate bad produce and refill missing produce,” and that “none of [the other

employees] were experienced.” The district court also noted that Barreto admitted

that he had recommended that an employee be terminated for eating “very

expensive fruit” and that the employee had subsequently been fired. Furthermore,

although Barreto made no recommendations regarding hiring or advancement of

employees, the district court found that “it is unlikely that evaluations and

recommendations of advancement of employees would be made” in the five

months Barreto worked for Davie Marketplace. Therefore, although Dhawan’s

affidavit did not comment upon Barreto’s authority to direct other employees or

upon the weight given to his hiring or firing recommendations, the district court

found that Barreto’s deposition testimony alone established that the third and

fourth prongs of the executive exemption had been met as a matter of law.

      We conclude, however, that Barreto’s deposition testimony, when read in its

entirety, does not support the district court’s conclusion. First, regarding the third

prong, the Regulations define “two or more other employees” as either two full-



                                           11
time workers or their equivalent. 29 C.F.R. § 541.104(a). As to equivalency,

“[o]ne full-time and two half-time employees, for example, are equivalent to two

full-time employees. Four half-time employees are also equivalent.” Id.; Morgan,

551 F.3d at 1274. In his deposition, Barreto testified that the produce department

consisted of five employees, including himself, during his first week of

employment, but that after the first week, “two of them were reduced” and that

ultimately, there were “three less” employees in the department. Barreto also

testified that after the first week, there were “three [employees in the produce

department] in the morning and one in the afternoon.” Considering this testimony

in the light most favorable to Barreto, after his first week on the job, Barreto

supervised two half-time employees in the morning and was by himself in the

department in the afternoon. Davie Marketplace offers no evidence refuting this

testimony. Accordingly, we conclude that Davie Marketplace has not satisfied its

burden of proving that Barreto regularly directed the work of two or more full-time

employees.

      Regarding the fourth prong, we disagree that evidence of one employment

recommendation that was followed is sufficient to establish as a matter of law that

Barreto’s recommendations regarding hiring and firing were given a “particular

weight.” The Regulations explain that “[t]o determine whether an employee’s



                                           12
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.” 29

C.F.R. § 541.105. Here, Barreto’s testimony established that, in one instance, his

recommendation to fire an employee for a serious infraction – stealing – was

followed; however, his testimony also showed that in another instance, he

recommended hiring additional employees and this advice was not heeded.

Indeed, after he recommended that additional employees be hired, Barreto was

directed instead to cut the hours of his remaining employees. Furthermore, Barreto

stated that he did not evaluate the employees in his department and it is

uncontested that he did not interview candidates or make any decisions regarding

the hiring or advancement of other employees. As such, the evidence in the record

creates a genuine issue of fact as to whether Barreto’s employment

recommendations were given “particular weight.”

      Viewing the evidence in the light most favorable to Barreto, there are

questions of fact as to whether his “primary duty” consisted of management,

whether he regularly directed the work of two or more full-time employees, and



                                          13
whether his recommendations in hiring, firing, or advancement of employees were

given particular weight. Summary judgment based on the executive exemption is

appropriate only where the four prongs of the “executive exemption” test are met

as a matter of law; it is not the appropriate disposition where, as here, there remain

issues of fact regarding three of the four elements. Accordingly, we vacate the

entry of summary judgment and remand this matter to the district court.

      VACATED AND REMANDED.




                                          14
