Greko v. Diesel U.S.A., Inc.

277 F.R.D. 419, 2011 U.S. Dist. LEXIS 131971, 2011 WL 5529849
CourtDistrict Court, N.D. California
DecidedOctober 26, 2011
DocketNo. C 10-02576 RS
StatusPublished
Cited by6 cases

This text of 277 F.R.D. 419 (Greko v. Diesel U.S.A., Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greko v. Diesel U.S.A., Inc., 277 F.R.D. 419, 2011 U.S. Dist. LEXIS 131971, 2011 WL 5529849 (N.D. Cal. 2011).

Opinion

ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND GRANTING MOTION FOR CLASS CERTIFICATION

RICHARD SEEBORG, District Judge.

I. INTRODUCTION

Plaintiff Ryan Greko brings this putative class action against defendant Diesel U.S.A., Inc. (Diesel) for failure to pay overtime and minimum wages and for related claims under California law. Greko contends that the company misclassified him as an exempt employee during the time he worked as an assistant store manager (ASM) for the company.1 Diesel now moves for summary judgment on the grounds that it properly classified Greko as an exempt employee under California law. Greko opposes the motion and instead moves for certification under Federal Rule of Civil Procedure 23(b)(3) for a class consisting of all California ASMs during the relevant period. For the reasons stated below, Diesel’s motion for summary judgment is denied and Greko’s motion for class certification is granted.

II. BACKGROUND

Diesel is part of an Italian company with its United States corporate office in New York. The U.S. subsidiary operates a number of retail clothing stores in California. In November 2007, the company hired Greko as one of two ASMs for its “flagship” store on Post Street in San Francisco. Greko was classified as an exempt employee and received a starting salary of $40,000. In the summer of 2009, Diesel moved the San Francisco store to Market Street. Greko transferred to the new location and retained his position as ASM. According to Diesel’s description of the position, the responsibilities of an ASM include “working] with the Store Manager to achieve store sales and maximise profitability through effective management of store team and implementation of company programmes, policies and procedures.” An ASM is required to take a “proactive approach to the business trends and needs” and to “act as a positive role model to store personnel.” An ASM is also “responsible for continuously improving and developing specific management skills by taking ownership of the responsibilities assigned (i.e. Visual/Merchandising/Operations) by the Store Manager and assuming all Store Manager responsibilities in her/his absence.” During his deposition, Greko testified that the job description was “accurate” with respect to the duties listed. He also indicated that the description was incomplete, as it did not include “selling” and other tasks he performed.

In September 2009, after Greko had been employed for almost two years, store manager Emily Socwell conducted a performance review. Socwell stated that she could count on Greko to “make decisions that have to do with employee performance issues and reviews and customer issues.”2 She commented that Greko “has shown he can manage a large staff by ensuring the daily focus [an employee assignment roster] is filled out effectively as well as making sure all staff is tasking or selling.” Greko “had an active role in staffing the Post St. store ... and paid close attention to their performance to see who had the potential to move to the new location.” Socwell also stated that Greko trained “all new hires in customer service,” managed “most of the window installations [422]*422and floor moves,” and “enforce[d] all loss prevention policies and procedures.” Greko indicated his agreement with Socwell’s review at that time.

In January 2010, Socwell left her position as store manager. Until Diesel replaced the store manager, for approximately two months, Greko and his fellow ASM ran the store. During this period, Greko completed an “assistant management questionnaire” that his district manager requested. In that document, Greko listed his weekly responsibilities: “Payroll, Sales Results, Month End paperwork, Manage all Installs, Hiring Manager (New Hire Training, Interviews and Paperwork) and Mail Packs.” He indicated that supervisors, sales, stock, cashier, and visuals reported to him.

After Greko’s employment with Diesel was terminated in the spring of 2010, he posted a resume on the Internet site “monster.com.” In the document, Greko describes his duties as ASM:

Oversee all store operations in all departments from HR to Finance and Visual Merchandising, Monitor product flow and stock levels, LP audits, Analyze all store performance reports, React daily with merchandising directives, Payroll and store finances, Hiring, Terminations, and Reviews, Issue all documentation, Schedules, Plan and organize all product and training meetings, Supervise all new collection installations, Store merchandising and visual walkthroughs, Manage Inventory, Lead by example with a team of 30 in a flagship environment.

Greko testified that he honestly represented his skills and experience in resumes he prepared. He also testified that he spent the majority of his time “selling and trying to make money for the store.” He estimated that he spent twenty to twenty-five percent of his time on managerial tasks during the time Socwell was his store manager.

III. DISCUSSION

A. Diesel’s Motion for Summary Judgment

Under the Federal Rules of Civil Procedure, a court shall grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The nonmoving party must identify factual disputes that “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Irrelevant or unnecessary factual disputes do not raise any genuine issue for trial. Id. To preclude entry of summary judgment, the nonmoving party must present sufficient evidence such that a jury could return a verdict in his or her favor. Id.

In California, an employee generally is entitled to receive overtime wages of one and one-half times his or her regular rate of pay for time worked in excess of forty hours per week or eight hours per day. See Cal. Labor Code § 510(a). Certain categories of employees are exempt from these provisions, including persons employed in an executive, administrative, or professional capacity. Id. at 515(a). In particular, the “executive exemption” applies to an employee:

(a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and
(b) Who customarily and regularly directs the work of two or more other employees therein; and

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Cite This Page — Counsel Stack

Bluebook (online)
277 F.R.D. 419, 2011 U.S. Dist. LEXIS 131971, 2011 WL 5529849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greko-v-diesel-usa-inc-cand-2011.