UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Sherry L. Duffie, 

Plaintiff, 

v. 

The Michigan Group, Inc. – 

Livingston d/b/a Re/Max Platinum,

Defendant. 

________________________________/

Case No. 14-cv-14148 

Hon. Judith E. Levy 

Mag. Judge David R. Grand 

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT [18] 

This is a Fair Labor Standards Act (“FLSA”) case in which 

plaintiff Sherry L. Duffie, a former employee of defendant The Michigan 

Group, Inc. (“TMG”), claims that she was improperly denied overtime 

pay. Pending is defendant’s motion for summary judgment. (Dkt. 18.) 

I. Factual Background 

Plaintiff began working for Re/Max All Stars, a real estate 

company, in 1998. Plaintiff began working for defendant in 2008, after 

defendant merged with her then-employer. (Dkt. 1 at 3.) Plaintiff 

alleges that after she began working for defendant, Kandis Thompson, 

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defendant’s “Controller,” classified plaintiff as an hourly employee. 

(Dkt. 22 at 10.) After defendant became her employer, plaintiff was 

paid only “straight time” (her normal hourly pay) for hours worked in 

excess of forty per week. (Id.) In January 2009, Joseph DeKroub, 

defendant’s owner allegedly told Thompson that nobody was to work 

more than forty hours per week. (Id. at 11.) In turn, plaintiff alleges 

that Thompson told her not to record more than forty hours per week, 

and that she would receive compensatory time off in lieu of overtime 

pay. (Id.)1 From 2008 until the end of her employment in March 2014, 

plaintiff received $52,000 a year in pay. (See generally Dkt. 22-6.) At 

all times during that period, she was classified as an hourly employee. 

(Id.; Dkt. 22-5 at 8.) 

Defendant contends that in 2011, plaintiff assumed some or all of 

Thompson’s job duties as Controller. (Dkt. 18 at 9-10.) Defendant 

states that Thompson, in her role as controller, was “responsible for the 

department, oversaw the flow of money into, out of and between bank 

accounts, supervised and approved time off for subordinates, made 

wage/salary recommendations and whether an IT Director position 

 

1 Only public employers are permitted to offer compensatory time in lieu of overtime 

compensation. 29 U.S.C. § 207(o). 

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should be created and helped find the IT director,” as well as 

“recommended a computer program, and set up the books. She made 

recommendations on moving money and if Dekroub was unavailable, 

could move money on her own to avoid overdrafts. She assessed 

whether plaintiff had the ability to perform her job and told Dekroub 

that she did.” (Dkt. 18 at 8-9 n.3.) 

After the 2008 merger, plaintiff was transferred to a department 

in defendant’s Brighton office called “Central.” (Dkt. 22 at 13.) 

Defendant states that in 2011, after assuming Thompson’s job duties, 

plaintiff moved into Thompson’s office and stopped handing in 

timesheets. (Dkt. 18 at 10.) In turn, plaintiff asserts that she only 

assumed some of Thompson’s responsibilities. (Dkt. 22 at 13.) Plaintiff 

argues that she spent seventy to eighty percent of her time on basic 

bookkeeping duties, and the other twenty percent of her time on duties 

she assumed from Thompson along with other tasks. 

On March 17, 2014, defendant terminated plaintiff’s employment. 

Plaintiff filed suit on October 28, 2014, asserting claims against 

defendant for violation of the FLSA and for unjust enrichment. 

Defendant filed a motion for summary judgment on September 8, 2015. 

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(Dkt. 18.) After the motion was fully briefed, oral argument was held 

on November 17, 2015. On December 1, 2015, the Court ordered 

supplemental briefing on the accrual date of plaintiff’s unjust 

enrichment claim. (Dkt. 29.) The supplemental briefing was filed, and 

the motion is now ripe for determination. 

II. Legal Standard 

Summary judgment is proper where “the movant shows that there 

is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may 

not grant summary judgment if “the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248. The Court “views the evidence, 

all facts, and any inferences that may be drawn from the facts in the 

light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. 

Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing 

Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.2002)). 

III. Analysis 

The FLSA provides that “no employer shall employ any of his 

employees...for a workweek longer than forty hours unless such 

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employee receives compensation for his employment in excess of [40 

hours per week] at a rate not less than one and one-half times the 

regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). However, 

the FLSA exempts “bona fide executive, administrative, or professional 

capacity” employees from this requirement. 29 U.S.C. § 213(a)(1). 

Defendant does not dispute that it violated the FLSA with regard 

to its hourly employees during the period at issue in this case by 

offering compensatory time rather than overtime pay. Instead, 

defendant argues that, when plaintiff was given some or all of 

Thompson’s duties in 2011, she became an exempt employee under 

either the executive or administrative exemptions listed in § 213(a)(1). 

“FLSA overtime exemptions are affirmative defenses on which the 

employer has the burden of proof, and those exemptions are to be 

narrowly construed against the employers seeking to assert 

them.” Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 502 

(6th Cir. 2007) (internal quote marks and citations omitted). “The 

defendant must establish through ‘clear and affirmative evidence’ that 

the employee meets every requirement of an exemption.” Ale v. Tenn. 

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Valley Auth., 269 F.3d 680, 691 n.4 (6th Cir. 2001) (quoting Roney v. 

United States, 790 F. Supp. 23, 26 (D.D.C. 1992)). 

A. Executive Exemption 

To show that an employee is a bona fide executive employee, the 

defendant must show that plaintiff was an employee: 

(1) Compensated on a salary basis at a rate of not less than 

$455 per week (or $380 per week, if employed in American 

Samoa by employers other than the Federal Government), 

exclusive of board, lodging or other facilities; 

(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 has 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). 

a. Salary Basis 

“An employee will be considered to be paid on a “salary basis” 

within the meaning of [the FLSA] if the employee regularly receives 

each pay period on a weekly, or less frequent basis, a predetermined 

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amount constituting all or part of the employee's compensation, which 

amount is not subject to reduction because of variations in the quality 

or quantity of the work performed.” 29 C.F.R. § 541.602. It is the 

defendant’s burden to show that the plaintiff received a predetermined 

amount under the salary basis test. Orton v. Johnny’s Lunch 

Franchise, LLC, 668 F.3d 843, 849 (6th Cir. 2012). Defendant has not 

done so here. 

Defendant argues that plaintiff was consistently paid $52,000 a 

year in $2,000 biweekly increments from 2011 until she was terminated 

in 2014. Plaintiff, in turn, argues that she was not salaried at any time 

during her employment. 

Plaintiff was listed as an hourly employee throughout her 

employment, even during the time that she was allegedly being paid a 

salary. (See generally Dkt. 23-10.) From 2008 until 2011, plaintiff 

states that she handed in hourly time sheets, but was illegally 

compensated in straight time pay or compensatory time off that she was 

not allowed to use, rather than overtime wages for those hours worked 

each week over forty. From 2011 on, plaintiff stopped handing in 

timesheets due to the perceived futility of recording her hours for 

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unusable compensatory time off, but continued to track her hours 

worked. (Dkt. 18-25 at 71.) Al Wicke, defendant’s hourly-classified 

maintenance man, also states that he was paid in the same manner 

during the same period for overtime hours worked. (Dkt. 22-8 at 2.) 

Plaintiff has provided paystubs showing that, prior to defendant 

merging with her employer in 2008, she was classified as a non-exempt 

hourly employee who received time-and-a-half overtime. (Dkt. 22-6 at 

2-11.) When defendant merged with plaintiff’s former employer, and 

before defendant claims plaintiff became an exempt employee, 

defendant began paying plaintiff straight-time overtime in lieu of timeand-a-half overtime until January 2009. (Id. at 13-21.) In January 

2009, defendant began offering compensatory time off in lieu of pay. 

(Id. at 22-95.) 

On none of those paystubs did defendant indicate that plaintiff 

was being paid as an exempt salaried employee, nor was there any 

difference in how plaintiff was paid pre- and post-exempt status. In 

January 2012, after plaintiff allegedly became an exempt employee, 

defendant changed its paystubs, and plaintiff was again classified as a 

non-exempt hourly employee. (Id. at 95-135.) Plaintiff’s paystubs 

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indicate that she was paid as a non-exempt hourly employee until she 

was terminated in March 2014. (Id.) 

 To be clear, plaintiff’s paystubs showed that she was paid 

identically both as an hourly employee and as an allegedly “exempt” 

employee, and that for most of the time she was an “exempt” employee, 

defendant stated on every paystub that she was non-exempt and was 

being paid hourly. This evidence alone is sufficient to create a genuine 

issue of material fact as to whether plaintiff was, as defendant argues, a 

salaried employee.2

Despite this evidence, defendant contends that it has established 

that plaintiff was paid a salary because her paycheck was for the same 

amount each week. Defendant argues that the only relevant 

consideration in establishing that plaintiff was paid a salary is “what 

compensation [plaintiff] actually received.” (Dkt. 18 at 31 (citing Orton, 

668 F.3d at 848).) 

 In Orton, the Sixth Circuit addressed the impact of changes made 

in 2004 to the FLSA’s salary-basis test. Under the old test, an employer 

 

2 Employers may pay exempt salaried employees using an hourly payroll system 

while still maintaining the exemption. Acs v. Detroit Edison Co., 444 F.3d 763, 767-

68 (6th Cir. 2006). This does not, however, relieve employers from showing that 

their employees are actually guaranteed a salary. Id. 

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was required to show that an employment agreement established a 

salary. Orton, 668 F.3d at 847 (citing 29 C.F.R. § 541.118(a)). In 2004, 

the regulation changed to the test the Court outlined above: salary 

consists of a predetermined amount, not subject to reduction based on 

quality or quantity of work performed. Id. (citing Baden-Winterwood v. 

Life Time Fitness, Inc., 566 F.3d 618, 627 (6th Cir. 2009)). The Orton

court found that the district court had erroneously granted an 

employer’s motion to dismiss because it used the employmentagreement test rather than the updated subject-to-reduction test, and 

that plaintiff’s allegations that his pay was improperly reduced were 

sufficient to state a claim under Fed. R. Civ. P. 12(b)(6). Id. at 849. 

 Defendant relies on the “actual deduction” test described in 

Baden-Winterwood, 566 F.3d at 630-631, and referenced in Orton, to 

argue that plaintiff must show that actual deductions from her pay 

were made to overcome the fact that she was paid the same amount 

each week. This improperly shifts defendant’s burden in presenting its 

affirmative defense that it paid plaintiff a salary on to plaintiff. See 

Orton, 668 F.3d at 848. 

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 Here, defendant has provided no evidence and no policy 

establishing that plaintiff’s pay was predetermined and not subject to 

reduction based on the quality or quantity of her work performed. 

Defendant does not even argue that it classified plaintiff as salaried. 

See, e.g., Renfro v. Indiana Michigan Power Co., 370 F.3d 512, 516 (6th 

Cir. 2004) (holding that employees classified as salaried by their 

employer were eligible for the administrative exemption even though 

their employer required them to make up for time missed from work in 

order to receive their salary). An employee is not required to show that 

her pay was subject to actual deductions under the salary-basis test 

when her employer has made no argument that her pay was not subject 

to deductions. 

Plaintiff alleges that she always worked more than forty hours 

each week, and that defendant illegally offered compensatory time in 

violation of the FLSA for hours worked beyond forty. Defendant does 

not dispute that it violated the FLSA as to its hourly employees, but 

instead declares without supporting evidence that plaintiff’s capped pay 

constitutes a salary because she stopped receiving pay after she worked 

forty hours each week. 

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Employers are still required to make a showing that an employee’s 

“predetermined” pay was not subject to reduction. Orton, 668 F.3d at 

848; Baden-Winterwood, 566 F.3d at 630-31; see also Acs v. Detroit 

Edison Co., 444 F.3d 763, 767-768 (6th Cir. 2006) (holding that an 

employer met the salary-basis test where it showed that it guaranteed 

1/26th of an employee’s pay every two weeks even if the employee did 

not work forty hours per week). Defendant does not argue that 

plaintiff’s pay was not subject to reduction if she had not worked at 

least forty hours each week. Instead, defendant argues that plaintiff’s 

pay was predetermined and she must therefore show that defendant 

violated a policy it cannot show that it had. 

It is not enough under the salary-basis test for an employer to 

show only that the employee received the same amount of pay each 

week, as doing so would negate the remainder of the test. This is true 

particularly where the employer does not dispute either that it illegally 

offered compensatory time in lieu of overtime pay for its hourly 

employees, capping pay for all employees at forty hours each week, or 

that the employee asserting rights under the FLSA always reached and 

exceeded that cap every pay period. 

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Accordingly, a genuine issue of material fact exists as to whether 

plaintiff was paid a salary and was therefore covered by the FLSA’s 

executive exemption. Summary judgment must be denied. 

b. Primary Duty of Management of the Enterprise or a 

Customarily Recognized Department or 

Subdivision Thereof 

The “primary duty” of an executive employee must be 

“management of the enterprise in which the employee is employed or of 

a customarily recognized department or subdivision thereof.” 29 C.F.R. 

541.100(a). 

The term ‘primary duty’ means the principal, main, major or 

most important duty that the employee performs. 

Determination 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. Factors to 

consider when determining the primary duty of an employee 

include, but are not limited to, the relative importance of the 

exempt duties as compared with other types of duties; the 

amount of time spent performing exempt work; the 

employee's relative freedom from direct supervision; and the 

relationship between the employee's salary and the wages 

paid to other employees for the kind of nonexempt work 

performed by the employee. 

29 C.F.R. 541.700(a). 

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 Defendant argues that plaintiff was the manager of “Central,” one 

of its business units. The unit performed what defendant calls “‘central 

office’ functions: financial, accounting, bookkeeping, payroll, and 

loading listings.” (Dkt. 18 at 11.) Defendant also relies heavily on 

plaintiff’s résumé as evidence of her job duties.3 (See Dkt. 18-10.) 

 As a threshold matter, defendant does not contend that the 

majority of plaintiff’s time was spent on exempt management duties. 

Plaintiff states, and defendant does not dispute, that she spent seventy 

to eighty percent of her performing non-exempt bookkeeping duties. 

See 29 C.F.R. § 541.301(e)(5) (stating that “bookkeepers . . . generally 

will not qualify as exempt professionals.”). 

The amount of time spent performing exempt work can be a 

useful guide in determining whether exempt work is the 

primary duty of an employee. Thus, employees who spend 

more than 50 percent of their time performing exempt work 

will generally satisfy the primary duty requirement. Time 

alone, however, 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. Employees 

who do not spend more than 50 percent of their time 

performing exempt duties may nonetheless meet the 

 

3 However, defendant does not note that plaintiff lists herself as having the same 

job from 2008 until 2014, even though her promotion – and transition to salaried 

status – allegedly occurred in 2011. 

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primary duty requirement if the other factors support such a 

conclusion. 

29 C.F.R. 541.700(b). 

The other factors are, per 29 C.F.R. 541.700(a), the relative 

importance of the exempt duties as compared with other types of duties, 

the employee's relative freedom from direct supervision, and the 

relationship between the employee's salary and the wages paid to other 

employees for the kind of nonexempt work performed by the employee. 

In short, defendant must establish that 1) plaintiff performed 

exempt duties and 2) plaintiff’s exempt work constituted her primary 

duty under the factors listed in 29 C.F.R. 541.700(a). 

1. Plaintiff’s “Exempt Duties” 

Defendant must establish that plaintiff held management duties 

that would have qualified her as an exempt executive employee. 29 

C.F.R. § 541.102 sets forth a variety of activities that constitute 

“management.” 

Generally, “management” includes, but is not limited to, 

activities such as 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 

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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. 

Id. Defendant contends that plaintiff performed at least nine of these 

activities between 2011 and 2014: 1) interviewing and selecting 

employees; 2) training employees; 3) directing the work of employees; 4) 

maintaining sales records for use in supervision or control; 5) planning 

the work; 6) determining the techniques to be used; 7) apportioning the 

work among employees; 8) appraising employees’ productivity and 

efficiency for the purposes of recommending changes in status; and 9) 

monitoring or implementing legal compliance measures. 

First, defendant argues that plaintiff interviewed and selected 

employees. Defendant states that plaintiff interviewed Valery 

Kruczynski and gave feedback regarding her qualifications for a 

bookkeeping job, and that plaintiff reviewed résumés and conducted 

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interviews of replacements when Kruczynski left that job. (Dkt. 18 at 

13.) 

With regard to Kruczynski, plaintiff argues that she considered 

her at the request of Jennie Stuedle, defendant’s real estate sales 

manager, who felt that plaintiff better understood the bookkeeping 

duties necessary for the position. (Dkt. 22 at 24.) Plaintiff also states 

that after she interviewed Kruczynski, DeKroub determined that 

Kruczynski should be hired, and DeKroub determined that it should be 

at the rate of $37,000 a year. (Id.) Plaintiff also testified that she 

conducted three or four interviews in 2014 during another bookkeeper 

search. (Dkt. 18-25 at 39-40.) 

At most, defendant has shown that plaintiff interviewed some 

potential employees. However, DeKroub, defendant’s owner, testified 

that “it would be [his] responsibility to say, ‘Let’s hire this one, if you 

really like them,’ or ‘Forget that one, let’s run with this one.’” (Dkt. 22-

4 at 17.) DeKroub “was the one that was going to decide whether they 

were worth the money that we would have to pay them to hire them.” 

(Id.) Defendant has established that, in the course of three years, 

plaintiff conducted, at most, five interviews of potential bookkeepers, 

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and that she did not make the final decision to select any of them for 

the position. 

Second, defendant contends that plaintiff trained employees. This 

is based on plaintiff calling a staff meeting to “go over [employees’] job 

manuals as a part of a cross training effort.” (Dkt. 18 at 21.) However, 

DeKroub stated Stuedle, rather than plaintiff, was the one who 

initiated the cross training efforts. (Dkt. 22 at 25 (citing Dkt. 22-4 at 

6).) 

 Defendant also states that plaintiff trained another employee, 

Linn Felker, on various processes. (Dkt. 18 at 21; Dkt. 18-25 at 21-22.) 

To the extent defendant has offered evidence to show that plaintiff 

trained employees, defendant has shown that plaintiff participated in 

(but did not conduct) one training session initiated by a superior, and 

conducted sporadic training of one other employee over the course of 

three years. 

 Defendant also argues that plaintiff “directed employees to 

prepare a procedural manual.” (Dkt. 18 at 16.) However, defendant 

states only that plaintiff called a meeting and asked staff to “[p]lease 

bring the job manual you have been creating.” (Id.) Defendant provides 

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no evidence that plaintiff actually initiated or designed the requirement 

to create the job manuals. 

 Third, defendant offers the declarations of three employees who 

state that they considered plaintiff to be their supervisor to show that 

plaintiff directed their work. (Dkts. 18-6, 18-7, 18-8.) Plaintiff, in turn, 

testified that her requests to other employees were sporadic, did not 

constitute direction of their work, and that supervision was not one of 

her primary duties. (Dkt. 22 at 27-28.) 

 Defendant offers instances during which it contends plaintiff 

directed the work of those and other employees. (Dkt. 18 at 22-23.) On 

review of these instances, and in the light most favorable to the 

plaintiff, they could reasonably be construed as a senior employee with 

experience reminding employees of the proper procedures to be followed 

(for instance, reminding employees that the dress code is in effect at all 

times, notifying employees of improper deposits that needed to be 

corrected, and reminding employees of the purpose of certain 

procedures). Even those instances that hewed more toward supervision 

appear to be both sporadic in nature and directed toward a single 

employee, Linn Felker. 

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 Fourth, defendant argues that plaintiff maintained and updated 

contracts for its real estate agents, which allegedly constituted the 

maintenance of sales records for use in supervision or control. (Dkt. 18 

at 17.) Plaintiff argues that she only “entered numbers for agent 

contracts after Steudle provided instructions on how the contract was to 

be structured.” (Dkt. 22 at 29.) Defendant does not state how a 

contract for a real estate agent constitutes a “sales record” for the 

purposes of the FLSA. Maintaining contracts that established the 

“broker fee” for agents (Dkt. 18 at 17) is not clearly a “sales record” for 

the purposes of the FLSA, and defendant has not provided authority to 

establish that they are. 

 Fifth, defendant cites a handful of e-mails and deposition 

testimony that it claims show plaintiff planned the work of other 

employees. (Id. at 19-20.) Again, these instances are sporadic in 

nature, and do not appear to show that the plaintiff engaged in routine 

planning of the work others would be doing. Defendant also relies on 

plaintiff’s desire to have defendant hire other employees to take on 

some of plaintiff’s work as evidence that plaintiff planned the work of 

those new employees. (Id. at 19.) However, an employee asking her 

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employer to hire a new employee and for the employer to give the new 

hire unspecified excess work does not, absent more, show that the 

employee is directing the work of the new hire. 

 Sixth, defendant argues that plaintiff determined a variety of 

techniques to be used in conducting Central’s operations. Defendant 

argues that plaintiff prepared a checklist to follow in processing real 

estate transactions. (Dkt. 18 at 14.) Defendant does not, however, 

establish that plaintiff determined the techniques that the checklist 

enshrined. Instead, defendant only establishes that plaintiff created a 

checklist for employees to use to ensure that they followed the 

technique. 

 Defendant next argues that plaintiff drafted procedures to pay 

brokers and agents with corporations. (Dkt. 18 at 14-15.) Plaintiff 

responds that all she did was add a single word to a computer program 

at DeKrouub’s request to make generating reports easier. (Dkt. 22 at 

33-34.) It is unclear what “technique” or “procedure” defendant is 

arguing plaintiff determined in this instance. 

 Defendant next argues that plaintiff drafted banking procedures 

so that remote offices could make deposits. Plaintiff states that the 

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“procedure” she devised was to deposit the checks in accordance with 

their bank’s availability policies, but differently than she had been 

depositing them, to ensure quicker availability of funds. (Dkt. 22 at 28.) 

To the extent that plaintiff devised a technique, it appears to consist of 

figuring out how bank deposits worked. 

 Defendant next argues that plaintiff “devised procedures to pay 

remote agents at closing.” (Dkt. 18 at 15.) This appears to be 

derivative of the previous agent payment “procedure” that plaintiff 

“devised.” 

 Defendant also argues that plaintiff “generated a daily report that 

would reveal mistakes [in the transfer of escrow funds to defendant’s 

general account], and would contact offices and employees about lapses 

to enforce the process, so checks did not bounce.” (Dkt. 18 at 16.) 

Defendant states that “[defendant’s] procedures dictated” the transfers, 

(Id.), not that plaintiff designed the procedures. Defendant seems to be 

arguing that plaintiff’s efforts to enforce procedures constitute the 

determination of those techniques, which is not what the regulations 

envision. 

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 Defendant further argues that plaintiff established and enforced 

the procedure regarding tax IDs by sending an e-mail stating that 

employees were required to confirm tax ID numbers and correct 

addresses. (Dkt. 18 at 16.) Plaintiff argues that, in effect, what she did 

was to remind employees to check information already required by 

existing procedures before putting that information into the system. 

(Dkt. 22 at 29.) Again, it is unclear how this is a “technique” that 

plaintiff “determined” rather than a reminder to employees of the 

already established procedure. Following defendant’s argument, any 

reminder by one employee to another of the proper method to do 

something is the former employee “determining a technique” for the 

purposes of the FLSA. 

Finally, defendant argues that plaintiff “proposed measures to 

avoid liability for agents’ dues.” (Dkt. 18 at 17.) Defendant states that 

“Steudle asked Plaintiff if [defendant’s] agent contract required 

[defendant] to pay those dues.” (Id.) Plaintiff reviewed the contract, 

and replied that “[i]t would be a good idea to state that this is required 

to be paid by the agent annually to be an agent with our company, 

maybe even . . . state that we are unable to pay them unless dues are 

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current.” (Id.) It is unclear how informing a superior of what a contract 

says constitutes the determination of a technique to be used in the 

business, particularly when the “technique” is something already in the 

contract that plaintiff did not draft and is not responsible for enforcing. 

Again, defendant attempts to convert plaintiff’s numerous efforts to 

remind others of proper procedure into the determination of the 

procedure itself. 

Seventh, with respect to whether plaintiff apportioned work 

among employees, defendant does not specifically state how plaintiff did 

this. Defendant apparently rests on the same declarations and evidence 

used to argue that plaintiff directed the work of employees. At most, 

this seems to show that plaintiff sporadically asked or recommended 

that people do certain tasks, rather than showing plaintiff routinely did 

so as a part of her job duties. 

Eighth, defendant argues that because plaintiff managed human 

resources, she appraised employees’ productivity and efficiency for the 

purposes of recommending changes in status. Her relevant duties, as 

identified by defendant, included keeping the personnel files in her 

office, giving out “hiring packages,” drafting and placing ads for 

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25 

employees, receiving résumés at her e-mail address, and “gather[ing] 

facts about terminations from managers.” (Dkt. 18 at 12.) Defendant 

also refers to an e-mail that plaintiff sent reminding employees that 

company dress code was in effect at all times. (Id. at 19 (citing Dkt. 18-

19).) Notably, Steudle read and approved the e-mail before plaintiff 

sent it out. (Dkt. 22 at 30.) None of this definitively constitutes 

appraising employees’ productivity and efficiency for the purposes of 

recommending changes in status under the FLSA. Instead, it shows a 

human resources employee retaining files, giving out paperwork, and 

serving as the receiver of résumés for jobs inside and outside of her 

department. 

Defendant also argues that because plaintiff gave feedback on 

Kruczynski to Steudle, she “appraised employee productivity for the 

purpose of recommending changes in status.” (Dkt. 18 at 13-14.) 

Defendant cites no case law saying that giving feedback on an 

employee’s performance to superiors, when those supervisors are the 

ones with the power to hire and fire, constitutes the sort of appraisal 

and recommendation process contemplated under this regulation. 

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 Ninth, defendant argues that plaintiff monitored and 

implemented legal compliance measures. Defendant contends that 

plaintiff’s résumé entry stating that she “implemented procedures to 

process real estate transactions and assure all documentation to be . . . 

in compliance with state real estate laws” constitutes “mapping out 

procedures to assure legal compliance.” (Dkt. 18 at 14.) First, the 

Court is loath to use a résumé, in which applicants often use a 

recommended mix of action verbs and even slight puffery, as evidence of 

a plaintiff’s actual job duties. Second, the FLSA is concerned with the 

specific duties plaintiffs actually have in their employment, not the 

bullet-pointed gloss of those duties plaintiffs may provide to other 

employers. 

What defendant actually states plaintiff did is “prepare[] a 

checklist (a process itself) to follow in processing real estate 

transactions.” (Id.) As set forth above, creating a checklist organizing 

the procedures that should be followed does not, by itself, show that the 

creator of the checklist created the procedure outlined. Defendant also 

argues that plaintiff “admits she was responsible for processing 

transactions in compliance with law.” (Id.) Presumably, all of 

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27 

defendant’s employees are responsible for conducting all of their work 

in compliance with the law. That does not make them managers. 

 Defendant also argues that “Plaintiff was responsible for 

‘Maintaining [defendant’s] escrow account in compliance with state 

law.’” (Id.) Her primary duty seems to have been “deal[ing] with the 

auditor and respond[ing] to requests for information or documents.” 

(Id.) Defendant does not establish how responding to an auditor’s 

requests for documents constitutes monitoring or implementing a legal 

compliance measure. 

 Defendant next argues that plaintiff “investigated legal 

requirements and drafted procedures to pay brokers or agents with 

corporations[.]” (Id.) However, plaintiff’s deposition shows that she 

asked defendant’s attorney whether an alteration in the internal 

method of a transaction used to pay brokers was legal. (Dkt. 18-25 at 

66.) Defendant’s attorney, not plaintiff, determined that the plaintiff’s 

proposed method would be legally compliant. Accordingly, defendant’s 

attorney, rather than plaintiff, was the one monitoring a legal 

compliance measure. 

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 Defendant next argues that plaintiff investigated the legal 

requirements for setting up two escrow accounts. (Id. at 15.) With 

DeKroub’s approval, plaintiff changed the procedure. (Id.) To this 

extent this shows that plaintiff “implemented a legal compliance 

measure,” she asked the auditor who happened to be in the office if 

having a second escrow account would be permitted legally. (Dkt. 18-25 

at 65.) Defendant makes no argument that asking a third party if a 

procedure is legal constitutes the monitoring or implementation of a 

legal procedure by the person asking the question. 

 Finally, defendant argues that “Plaintiff was the person 

responsible for assuring that TMG followed the required garnishment 

processes[.]” (Id. at 16.) Plaintiff, however, stated that although she 

was responsible for assuring that the company followed the required 

processes, she “did speak with Bill Russell . . . our in-house Counsel, at 

times when I had things that were questionable on garnishments.” 

(Dkt. 18-25 at 27.) Defendant does not establish that the “garnishment 

processes” at issue were legal compliance measures. At most, this 

creates a genuine issue of material fact as to whether plaintiff or in5:14-cv-14148-JEL-DRG Doc # 36 Filed 01/04/16 Pg 28 of 56 Pg ID 1312
29 

house counsel was truly responsible for monitoring legal compliance 

measures. 

 In summary, defendant has shown that plaintiff may have had the 

following exempt duties: conducting five interviews in three years, 

sporadically training and directing the work of one employee, and 

sporadically directing the work of two other employees. Other allegedly 

exempt duties are either contested, or require more support to warrant 

summary judgment for defendant. 

Defendant also identifies other tasks that it argues constitute 

managerial duties. These include managing insurance policies for nine 

entities, dealing with the IRS over penalties, investigating and pricing 

accounting software, and disputing unemployment claims. (Dkt. 18 at 

17-19.) Defendant argues, without further evidence, that these are 

self-evidently managerial duties. 

With regard to insurance, defendant argues only that plaintiff 

“was the person required to know when policies expired.” (Id. at 18.) 

However, defendant does not show that plaintiff had any authority to 

determine if a policy should be renewed, to change the terms of any 

insurance policy, or make any independent decision about insurance. 

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The requirement that an employee keep track of certain factual 

information, without more, is insufficient to establish that an employee 

was acting in a managerial role. 

 With regard to dealing with the IRS, defendant alleges that 

plaintiff protested a 2013 IRS penalty in a letter she composed, and did 

so without Steudle or DeKroub’s knowledge. (Dkt. 18 at 18.) However, 

the letter itself consists of plaintiff disputing the imposition of a penalty 

for late mailing of W-2 and 1099 forms on the ground that plaintiff 

timely mailed them. This is, at most, an administrative task. Plaintiff 

did not negotiate or bind defendant to any resolution; she only informed 

the IRS that defendant had complied with the agency’s requirements 

and asked it to check its records again. 

 Next, defendant argues that plaintiff investigated alternatives to 

the “Accountmate” software, ultimately recommended QuickBooks, and 

defendant purchased QuickBooks “as a result of her investigation[.]” 

(Dkt. 18 at 18.) Again, defendant has not shown that plaintiff had the 

authority to or actually did make the decision that defendant would 

switch to QuickBooks, nor that she made the purchase of the software. 

An employee who is familiar with software determining what it would 

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cost to change to different software and recommending that her 

superiors do so is not acting as a manager absent some additional 

control over how, when, or to what extent that software change occurs. 

 Finally, defendant argues that plaintiff lowered costs by disputing 

every unemployment claim. (Dkt. 18 at 19.) According to plaintiff, 

Thompson would never respond to unemployment claims, apparently 

under the theory that claimants needed the money. (Dkt. 18-25 at 56; 

Dkt. 18-17.) Plaintiff began “disputing” those claims, which consisted of 

filling out “a form from the State of Michigan asking you on a fact 

finding the hours for a person, why they were dismissed, if they were 

dismissed, if they quit.” (Dkt. 18-25 at 56.) She “just took the time to 

fill them out, and by doing so corrected errors.” (Id.) 

 Defendant asks that the Court look at plaintiff’s use of the word 

“disputed” and determine that she was acting in a managerial role. 

However, based on plaintiff’s uncontroverted description of her own 

work, it appears that her work was more rote and mechanical in nature. 

Plaintiff filled out state forms that Thompson never did. Defendant 

does not argue that plaintiff bound it to any position on the validity of 

unemployment claims, and based on plaintiff’s description of her work, 

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32 

she only provided requested facts to a state agency. Thompson’s 

decision not to complete forms requested by the state of Michigan does 

not make plaintiff’s performance of that formerly abandoned task into a 

managerial duty. 

2. Plaintiff’s Job Title 

Defendant argues that various titles plaintiff used from 2011 on 

show her managerial role. Plaintiff used a variety of titles in her job, 

although it does not appear that defendant assigned her a particular 

title. Plaintiff signed certain documents as “Controller.” (Dkt. 18 at 10; 

Dkt. 18-3 at 3-10.) At other times, plaintiff referred to herself as “Office 

Manager,” “Agent,” and “Administrative Manager.” (Dkt. 18 at 10.) 

Plaintiff’s title is irrelevant. “The FLSA requires the employer to 

make FLSA exemption decisions based on the employee's actual job 

duties, not the employee's job title, and the good faith requirement 

imposes an affirmative burden.” Martin v. Ind. Mich. Power Co., 381 

F.3d 574, 585-86 (6th Cir. 2004) (internal citation omitted). “A job title 

alone is insufficient to establish the exempt status of an employee. The 

exempt or nonexempt status of any particular employee must be 

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33 

determined on the basis of whether the employee's salary and duties 

meet the requirements of the regulations in this part.” 29 C.F.R. 541.2. 

This is doubly so where, as here, plaintiff’s title is not the result of 

her employer’s determination that such a title applied, but instead of 

the plaintiff’s decision to identify herself apparently without guidance 

or input from her employer. 

3. Whether Plaintiff’s “Exempt Duties” Were Her 

“Primary Duties” 

Because defendant has provided evidence that plaintiff arguably 

had some exempt duties, and because those duties constituted less than 

fifty percent of her duties, the Court must analyze those duties under 

the factors listed in 29 C.F.R. 541.700(a) to determine if they were her 

primary duties. Those factors are: 1) the relative importance of the 

exempt duties as compared with other types of duties; 2) the employee's 

relative freedom from direct supervision; and 3) the relationship 

between the employee's salary and the wages paid to other employees 

for the kind of nonexempt work performed by the employee. 

Defendant argues that because plaintiff performed some exempt 

duties, they were the most important duties she performed. (Dkt. 25 at 

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34 

3-4.) This is tautological, and removes the agency the defendant must 

show in its expectations of its employees to meet its burden. 

Defendant has identified very few exempt duties that plaintiff 

held. Defendant relies on a handful of non-binding cases to argue that 

the existence of these exempt duties make them her per se primary 

duties. See, e.g., Slusser v. Vantage Builders, Inc., 576 F. Supp. 2d 

1207, 1220-21 (D.N.M. 2008) (holding that “courts have found 

management duties primary even where managers have spent 90 or 95 

percent of their time performing non-exempt work” and collecting 

cases). 

The parties agree that plaintiff spent at least 70 to 80 percent of 

her time on non-exempt bookkeeping work. Defendant has not made a 

showing that those instances where plaintiff may have conducted 

exempt work constituted her primary duties, because defendant has not 

established that “[p]laintiff’s principal value to [d]efendant was” in the 

performance of her exempt duties. Jackson v. Jean Coutu Group (PJC) 

USA, Inc., Case No. 06-cv-194, 2007 WL 1850710, at *5 (S.D. Ga. June 

26, 2007). This is particularly so where the overwhelming majority of 

duties defendant identifies are not exempt duties, and defendant makes 

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35 

no argument that the small number of exempt duties plaintiff 

performed were her most important duties. 

Defendant does not specifically argue that plaintiff was relatively 

free from direct supervision. Plaintiff notes throughout her brief that 

her decisions were routinely subject to the approval of Steudle and 

DeKroub. Steudle testified that plaintiff had no authority over agent 

contracts (Dkt. 22 at 28-29); that she, rather than plaintiff, handled 

employee discipline over the dress code (Id. at 30); and that the 

company’s attorney, rather than plaintiff, generally handled employee 

discipline and unemployment disputes (Id. at 32-33). Plaintiff also 

contends that she did not have hiring and firing authority, and that the 

one instance of her “hiring” an employee consisted of conveying an offer 

from DeKroub. (Dkt. 22 at 24.) 

Defendant provides no counter to this argument. It appears from 

the record that even in the exercise of plaintiff’s few arguably exempt 

duties, she had little to no freedom from supervision. Plaintiff either 

acted at the directive of Steudle and DeKroub, or requested permission 

from either of them to act. 

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29 C.F.R. 541.202(b) lays out factors to be considered in 

determining whether an employee acts with “discretion and 

independent judgment”: 

[These factors] include, but are not limited to: whether the 

employee has authority to formulate, affect, interpret, or 

implement management policies or operating practices; 

whether the employee carries out major assignments in 

conducting the operations of the business; whether the 

employee performs work that affects business operations to a 

substantial degree, even if the employee's assignments are 

related to operation of a particular segment of the business; 

whether the employee has authority to commit the employer 

in matters that have significant financial impact; whether 

the employee has authority to waive or deviate from 

established policies and procedures without prior approval; 

whether the employee has authority to negotiate and bind 

the company on significant matters; whether the employee 

provides consultation or expert advice to management; 

whether the employee is involved in planning long- or shortterm business objectives; whether the employee investigates 

and resolves matters of significance on behalf of 

management; and whether the employee represents the 

company in handling complaints, arbitrating disputes or 

resolving grievances. 

Id.

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On balance, and for the reasons set forth above, these factors have 

not been met by defendant such that summary judgment would be 

warranted. 

Finally, defendant argues that plaintiff was paid significantly 

more than other bookkeepers at her job – $52,000 a year as opposed to 

$21,840, $29,120, and $35,006 a year for other bookkeepers. (Dkt. 22-7 

at 3-4.) This, defendant argues, shows that plaintiff was paid more 

than other employees for the same kind of non-exempt work plaintiff 

performed. 

Defendant’s argument neglects one critical non-exempt employee, 

however: plaintiff, prior to 2011. Defendant does not contend that 

plaintiff was an exempt salaried employee before she assumed 

Thompson’s duties in 2011. Plaintiff was paid the same amount both as 

a non-exempt bookkeeper and as an allegedly exempt “Controller”. 

(Dkt. 22 at 13.) Plaintiff was also a long-tenured employee; defendant 

does not argue that any other non-exempt bookkeeper had plaintiff’s 

level of experience or longevity. 

Defendant has not met its burden of showing that the potentially 

exempt duties it identified were plaintiff’s primary duties. Accordingly, 

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it has failed to establish that the second prong of the FLSA executive 

exemption applies to plaintiff, and summary judgment must be denied. 

c. Customarily and Regularly Directing the Work of 

Two or More Other Employees 

 

Under 29 C.F.R. 541.104, an exempt executive must direct the 

work of two or more other full-time employees, or their equivalent. 

Defendant, relying on the declarations of three other bookkeepers, 

contends that plaintiff customarily and regularly directs the work of, at 

the least, those bookkeepers. 

Assuming that the bookkeepers are equivalent to full-time 

employees, defendant has not met its burden of establishing that 

plaintiff customarily and regularly directed the work of those 

bookkeepers. Although defendant points to sporadic instances that 

could be construed as plaintiff directing work, and provides declarations 

from employees stating that plaintiff directed their work, plaintiff 

argues that she did not, in fact, customarily and regularly do so, and 

that her “direction” was instead coordination with those employees. 

Plaintiff’s testimony, combined with the seeming infrequency of 

instances during which she actually could be considered to have 

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directed others’ work, creates a genuine issue of material fact that 

precludes summary judgment. 

d. 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. 

Defendant argues that plaintiff interviewed Kruczynski to be a 

bookkeeper, and informed DeKroub that Kruczynski’s “background in 

Quickbooks was what we were looking for[.]” (Dkt. 18 at 24.) 

Defendant also argues that plaintiff later recommended DeKroub and 

Steudle fire Kruczynski. Plaintiff agrees that her recommendations 

were given weight “on two isolated occasions over three years.” (Dkt. 22 

at 36.) Defendant also argues that plaintiff interviewed two other 

people before her termination in 2014. (Dkt. 18 at 25.) However, 

defendant does not argue that those interviews were given weight. 

To show that an employee’s suggestions and recommendations are 

given “particular weight,” the employer must show, among other things, 

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. 

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This “does not include an occasional suggestion with regard to the 

change in status of a co-worker.” Id. 

Defendant has shown that it requested plaintiff give suggestions 

and recommendations four times in three years, and that it relied in 

some part on her suggestions and recommendations twice in those three 

years. Defendant argues that because there were so few hiring and 

firing situations in Central, the Court must instead look to the relative 

size of the workforce and the total number of times an employee was 

hired or fired. 

The issue here is that, because there were so few such scenarios, 

plaintiff’s input as to the hiring and firing of one employee could be 

characterized either as an “occasional suggestion” or as routine 

participation. Defendant has established that, in the four situations 

plaintiff participated in, it relied on her input twice. At the summary 

judgment stage, those two instances are insufficient to conclusively 

establish that defendant relied on plaintiff’s input often enough that her 

input was given “particular weight.” 

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Defendant has failed to meet its burden in establishing that 

plaintiff was subject to the FLSA’s executive exemption. Accordingly, 

the Court must deny summary judgment as to this argument. 

B. Administrative Exemption 

Defendant claims that plaintiff is also exempt under the FLSA’s 

administrative exemption, 29 C.F.R. § 541.200. To show that the 

administrative exemption applies, defendant must show that plaintiff 

was an employee: 

(1) Compensated on a salary or fee basis at a rate of not less 

than $455 per week (or $380 per week, if employed in 

American Samoa by employers other than the Federal 

Government), exclusive of board, lodging or other facilities; 

(2) Whose primary duty is the performance of office or nonmanual work directly related to the management or general 

business operations of the employer or the employer's 

customers; and 

(3) Whose primary duty includes the exercise of discretion 

and independent judgment with respect to matters of 

significance. 

Id. 

 As set forth above, this argument fails on the salary basis alone, 

as defendant has not established that plaintiff was paid a salary. 

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 Under 29 C.F.R. § 541.201, “[w]ork directly related to 

management or general business operations includes, but is not limited 

to, work in functional areas such as tax; finance; accounting; budgeting; 

auditing; insurance; quality control; purchasing; procurement; 

advertising; marketing; research; safety and health; personnel 

management; human resources; employee benefits; labor relations; 

public relations, government relations; computer network, internet and 

database administration; legal and regulatory compliance; and similar 

activities.” 

 Defendant does not specifically argue that plaintiff’s primary duty 

was the performance of office work directly related to the management 

or general business operations of the employer or its customers. As 

mentioned previously, bookkeepers “generally will not qualify as 

exempt professionals.” 29 C.F.R. § 541.301(e)(5). Again, defendant’s 

“primary duty” argument begs the question – there is at a minimum a 

material question of fact as to whether the set of duties defendant has 

set forth were directly related to the management or general business 

operations of defendant, and were plaintiff’s primary duties. 

Defendant has again failed to meet its burden on this factor. 

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 Finally, defendant must show that plaintiff’s primary duty 

includes the exercise of discretion and independent judgment with 

respect to matters of significance. As defined under 29 C.F.R. § 

541.202: 

The phrase “discretion and independent judgment” must be 

applied in the light of all the facts involved in the particular 

employment situation in which the question arises. Factors 

to consider when determining whether an employee 

exercises discretion and independent judgment with respect 

to matters of significance include, but are not limited to: 

whether the employee has authority to formulate, affect, 

interpret, or implement management policies or operating 

practices; whether the employee carries out major 

assignments in conducting the operations of the business; 

whether the employee performs work that affects business 

operations to a substantial degree, even if the employee's 

assignments are related to operation of a particular segment 

of the business; whether the employee has authority to 

commit the employer in matters that have significant 

financial impact; whether the employee has authority to 

waive or deviate from established policies and procedures 

without prior approval; whether the employee has authority 

to negotiate and bind the company on significant matters; 

whether the employee provides consultation or expert advice 

to management; whether the employee is involved in 

planning long- or short-term business objectives; whether 

the employee investigates and resolves matters of 

significance on behalf of management; and whether the 

employee represents the company in handling complaints, 

arbitrating disputes or resolving grievances. 

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§ 541.202(b). The term “‘matters of significance’ refers to the level of 

importance or consequence of the work performed.” § 541.202(a). “The 

exercise of discretion and independent judgment also does not include 

clerical or secretarial work, recording or tabulating data, or performing 

other mechanical, repetitive, recurrent or routine work.” § 541.202(e). 

 Defendant, relying on many of the same activities that were 

allegedly exempt executive activities, argues that plaintiff routinely 

exercised discretion and independent judgment. Defendant argues that 

plaintiff formulated and implemented management policies and 

operating practices by 1) implementing procedures to process real estate 

transactions; 2) drafting procedures to pay brokers and agents with 

corporations; 3) drafting banking procedures; 4) devising procedures to 

pay remote agents at closing; and 5) adopting and enforcing techniques 

to avoid having checks bounce. (Dkt. 18 at 26.) As a threshold matter, 

and as discussed more fully above, defendant fails at each turn to 

demonstrate that plaintiff actually created or implemented these 

“procedures,” rather than either clarifying how existing procedures 

worked, or communicating how procedures external to defendant’s 

business worked to defendant. 

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 Defendant argues that plaintiff carried out major assignments in 

conducting the operation of the business by 1) “switching the accounting 

software;” and 2) “being [defendant’s] designate for the escrow audit.” 

(Dkt. 18 at 26.) Plaintiff investigated and priced out software 

alternatives, and defendant ultimately ended up choosing and 

purchasing plaintiff’s recommended software. It is unclear how this 

constitutes a “major assignment,” particularly when defendant does not 

argue that plaintiff switched the software, but instead that plaintiff 

researched which software defendant might switch to, after which point 

defendant chose to switch to that software. Defendant also states that 

plaintiff’s role was to “deal[] with the auditor and respond to requests 

for information or documents.” (Dkt. 18 at 14.) Defendant provides 

little in the way of explanation how giving requested information and 

documents to a third party constitutes a “major assignment” or an 

“exercise of discretion.” 

 Defendant argues generally that plaintiff performed work that 

affected business operations to a substantial degree, relying on the 

same work used to argue that plaintiff formulated policies. In the light 

most favorable to plaintiff, much of what she did resolved issues of 

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46 

varying levels of importance to defendant, and did not affect business 

operations except to have its procedures run more smoothly. 

 Defendant argues that plaintiff had the authority to negotiate and 

bind the company on significant matters by “[choosing] and obtain[ing] 

Quickbooks and deal[ing] independently with the IRS over penalties.” 

(Id. at 26-27.) Again, defendant does not argue that plaintiff chose or 

obtained QuickBooks. Defendant argues that it chose and obtained 

QuickBooks. (Id. at 18.) 

Plaintiff’s letter to the IRS did not constitute a negotiation or a 

binding of defendant to the IRS on any significant matter, particularly 

as “[t]he issue was still pending when Plaintiff left the position[.]” (Id.) 

Further, the letter was an attempt to resolve the penalty by 

demonstrating that plaintiff had mailed the required documents, and 

thus that defendant had already complied with IRS requirements. 

Accordingly, plaintiff’s letter informed the IRS that defendant did not 

need to take any further action, rather than an effort to bind defendant 

to some other agreement or negotiate an alternative resolution to the 

penalty. (Dkt. 18-16.) 

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47 

 Defendant argues that plaintiff provided consultation and expert 

advice to management by consulting with state auditors and 

“recommend[ing] processes compliant with real estate laws.” (Dkt. 18 

at 27.) This section of the regulation requires the plaintiff to provide 

consultation to defendant, not for the plaintiff to consult with someone 

else and relay that information to defendant. It is also unclear what 

“expert advice” defendant claims to have received from plaintiff’s 

recommendations. 

 Defendant argues that plaintiff investigated and resolved matters 

of significance on behalf of management by 1) investigating a process to 

pay agents’ corporations and 2) investigating how to make deposits and 

pay agents at remote offices. As set forth above, plaintiff argues that 

she made minor changes to coding and figured out which branches to 

make deposits at. This creates a genuine issue of material fact as to 

whether plaintiff’s actions rose to the levels contemplated in FLSA 

regulations. 

 Finally, defendant argues that plaintiff represented the company 

in handling complaints, arbitrating disputes, or resolving grievances by 

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48 

1) writing a letter to the IRS; 2) disputing unemployment claims; and 3) 

signing evictions as “Agent”. (Id. at 27.) 

Even if the Court were to determine that a letter informing the 

IRS of the date tax returns were mailed constituted the handling of a 

complaint, dispute, or grievance, defendant has failed to show that 

plaintiff was actually authorized or expected to do so – particularly as 

neither Steudle nor DeKroub knew about the issue until after plaintiff 

left. Defendant provides no authority that would allow it to convert an 

hourly employee into a salaried employee under the FLSA because the 

employee acted outside the scope of her employment. 

Plaintiff has established that she responded to every request for 

information the state of Michigan sent regarding unemployment claims, 

but that actual hearings were handled by an attorney. Defendant does 

not dispute that contention. Accordingly, defendant’s attorney 

arbitrated those employment disputes. 

Finally, plaintiff was instructed to sign certain eviction forms as 

“Agent,” but actual decisions about eviction were made by DeKroub or 

the property manager. (Dkt. 22 at 40-41.) Defendant’s insistence that 

plaintiff sign eviction forms as an “Agent” does not establish that she 

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actually represented the company in any complaint, dispute, or 

grievance that arose from the eviction. 

Accordingly, defendant has failed to meet its burden in showing 

that plaintiff was covered by the administrative exemption. Coupled 

with defendant’s failure to meet its burden in showing that plaintiff was 

covered by the executive exemption, it is clear that several genuine 

issues of material fact exist that preclude summary judgment on 

plaintiff’s FLSA claim. 

C. Unjust Enrichment 

Plaintiff also asserts a claim in the alternative for unjust 

enrichment under Michigan law for her unpaid wages. At oral 

argument, plaintiff’s counsel clarified that although the claim is for 

“unpaid overtime,” plaintiff is claiming that the unjust enrichment is 

for unpaid straight-time for hours worked over forty, rather than a 

restatement of her claim for time-and-a-half wages under the FLSA. 

The Court requested supplemental briefing on the issue of 

whether this claim might be barred by the applicable six-year statute of 

limitations for unjust enrichment claims from the time they first accrue, 

as set forth at M.C.L. § 600.5813. (Dkt. 29.) Plaintiff timely filed her 

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supplemental brief on December 9, 2015. (Dkt. 30.) She argued that 

the claim first accrued in January 2009, when defendant ceased paying 

her straight-time for her overtime hours. 

Defendant filed a response on December 11, 2015. (Dkt. 34.) 

Defendant argues that plaintiff’s claim accrued on October 16, 2008, 

when defendant stopped paying plaintiff time-and-a-half overtime pay, 

which was twelve days outside the applicable statute of limitations 

period. 

Under Michigan law, to sustain a claim of unjust enrichment a 

plaintiff must establish “(1) the receipt of a benefit by the defendant 

from the plaintiff and (2) an inequity resulting to the plaintiff because 

of the retention of the benefit by the defendant.” Morris Pumps v. 

Centerline Piping, Inc., 273 Mich. App. 187, 195 (2006). Plaintiff alleges 

that the benefit defendant received was the work she performed in 

excess of forty hours each week, and that the inequity is the lack of 

straight-time pay for those hours. Accordingly, plaintiff’s claim accrued 

on January 22, 2009, the first day defendant stopped paying plaintiff 

straight-time overtime. (See Dkt. 30-4.) 

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Defendant argues that this claim should be dismissed on the 

merits because common-law claims are generally preempted by the 

FLSA. 

Defendant cites Anderson v. Sara Lee Corp., 508 F.3d 181 (4th Cir. 

2007), in which the Fourth Circuit Court of Appeals held that state law 

contract, negligence, and fraud claims were preempted under a theory 

of “conflict preemption” by the FLSA. Id. at 192-93. The Anderson

court held that the state claims were both based on FLSA and stood “as 

an obstacle to the accomplishment of the full purposes and objectives of 

the FLSA.” Id. at 193 (internal quotation marks and further citation 

omitted). This was so because the plaintiffs “rel[ied] on the FLSA for 

their rights, and they invoke[d] state law only as the source of the 

remedies for the alleged FLSA violations,” which “the FLSA does not 

explicitly authorize states” to do. Id. 

Defendant also relies on three other cases. In DeSilva v. N. ShoreLong Is. Jewish Health Sys., Inc., 770 F. Supp. 2d 497 (E.D.N.Y. 2011), 

the court held that the FLSA’s remedial scheme precluded a separate 

civil RICO action as a method for vindicating wage and hour rights 

established under the FLSA. Id. at 515. In Barrus v. Dick’s Sporting 

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Goods, Inc., 732 F. Supp. 2d 243 (W.D.N.Y. 2010), the court held that 

“common law claims for overtime pay are preempted by the FLSA.” Id. 

at 255 (citing Lopez v. Flight Servs. & Sys., Inc., Case No. 07-cv-6186, 

2008 WL 203028, at *5, 7 (W.D.N.Y. Jan. 23, 2008). 

In Pacheco v. Boar’s Head Provisions Co., Inc., Case No. 09-cv-298, 

2010 WL 1323785, at *4-5 (W.D. Mich. Mar. 30, 2010), the court held 

that a claim for unjust enrichment resulting from nonpayment of 

overtime wages was barred in a case also asserting an FLSA claim. 

However, the court’s analysis in that case was premised not on 

preemption by the FLSA, but instead on the particular limits of 

Michigan unjust enrichment claims. 

The view that the FLSA can preempt even redundant state law 

claims “is considered . . . to be a minority view.” Monahan v. Smyth 

Automotive, Inc., 2011 WL 379129, at *4 (S.D. Ohio Feb. 2, 2011). 

“[E]ven where state law claims have been identical to FLSA claims, no 

preemption has been found.” Id. (collecting cases). The FLSA contains 

a “savings clause” that expressly permits states to create their own 

wage and hour laws. 29 U.S.C. § 218(a). By extension, the FLSA can 

be read so as not to preempt remedies under state law. That is 

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particularly so where plaintiff’s state law claim is not redundant of the 

FLSA’s claim, but instead states a different legal theory than the FLSA 

claim. 

Despite the fact that the FLSA does not bar plaintiff’s unjust 

enrichment claim, part of her unjust enrichment claim is barred by 

Michigan law. In Michigan, “additional recovery under the theory of 

unjust enrichment is precluded by” the existence of “a legal remedy,” 

because unjust enrichment provides an “equitable remedy.” Kingsley 

Assocs., Inc. v. Moll PlastiCrafters, Inc., 65 F.3d 498, 506 (6th Cir. 1995) 

(citing Kammer Asphalt Paving Co., Inc. v. East China Twp. Schs., 443 

Mich. 176 (1993); City of Detroit v. City of Highland Park, 326 Mich. 78 

(1949)). 

“When a plaintiff has set forth both legal and equitable claims 

seeking identical relief and covering the same subject matter, the 

proper course is generally dismissal of the equitable claim.” Romeo Inv. 

Ltd. v. Mich. Consol. Gas Co., No. 260320, 2007 WL 1264008, at *9 

(Mich. Ct. App. May 1, 2007). “[A]n independent action for equitable 

relief will not lie where there is a full, complete, and adequate remedy 

at law, absent a showing that there is some feature of the case 

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peculiarly within the province of the court of equity.” Id. (citing ECCO, 

Ltd. v. Balimoy Mfg. Co., Inc., 179 Mich. App. 748, 751 (1989); Basinger 

v. Provident Life & Accident Ins. Co., 67 Mich. App. 1, 5-6 n.11 (1976). 

The plaintiff does not have to actually recover under the legal theory for 

the equitable claim to be barred. Instead, the opportunity for plaintiff 

to recover under a legal theory is sufficient to bar the equitable claim. 

Plaintiff’s FLSA claim covers the same subject matter – payment 

for hours worked over forty each week – and would provide a full, 

complete, and adequate remedy that would mirror and exceed the 

remedy plaintiff seeks under her unjust enrichment claim. The statute 

of limitations on FLSA claims is two years after the cause of action 

accrued, or three years for willful violation of the statute. 29 U.S.C. § 

255(a). A new cause of action accrues under the FLSA each time the 

employer fails to pay proper compensation. See 29 C.F.R. § 790.21. 

Plaintiff may proceed with her unjust enrichment claim for unpaid 

straight-time pay for hours worked over forty each week. However, 

plaintiff may not proceed with this claim for the three-year period prior 

to her filing suit, as a full, complete, and adequate remedy exists at law 

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under the FLSA.4 Accordingly, plaintiff may proceed with her unjust 

enrichment claim for the time period between January 22, 2009 and 

October 28, 2011. Plaintiff must seek remedies for payments made to 

her before October 28, 2011 through her unjust enrichment claim, and 

must seek remedies for payments made to her after that date through 

her FLSA claim. 

IV. Conclusion 

For the reasons set forth above, it is hereby ordered that: 

Defendant’s motion for summary judgment (Dkt. 18) is DENIED; 

and 

Plaintiff may proceed with her FLSA claim and her unjust 

enrichment claim, with the time period for her unjust enrichment claim 

limited to pay received between January 22, 2009 and October 18, 2011. 

IT IS SO ORDERED.

Dated: January 4, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

 

 

4 Because Michigan law bars equitable claims where the opportunity for a legal 

remedy exists, and plaintiff still has the opportunity to prevail on a theory of willful 

violation of the FLSA with a three-year statute of limitations, the fact that she may 

only prevail under the two-year statute of limitations (or not at all) does not mean 

she may assert her equitable claim for that period of uncertain recovery. 

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on January 4, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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