IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

PATSY WACHENSCHWANZ : 

 : 

 Plaintiff, : Case No. 2:12-CV-1037 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

DOLGENCORP, LLC, : Magistrate Mark R. Abel 

 : 

 Defendant. : 

OPINION AND ORDER 

I. INTRODUCTION 

 This matter is before the Court on Defendant’s Motion for Summary Judgment as to 

Patsy Wachenschwanz (“Motion for Summary Judgment”) (Doc. 30), and Defendant’s 

Objections and Motion to Strike the Declaration of Patsy Wachenschwanz Offered by Plaintiff in 

Support of Her Opposition to Defendant’s Motion for Summary Judgment (“Motion to Strike”).1 

(Doc. 58). For the reasons stated below, Defendant’s Motion to Strike is GRANTED in part and 

DENIED in part, and Defendant’s Motion for Summary Judgment is GRANTED. 

II. BACKGROUND 

A. Factual Background 

 Plaintiff, Patsy Wachenschwanz, (“Plaintiff” or “Wachenschwanz”) was employed by 

Dollar General (“Defendant” or “Dollar General”) from August 2002 through May 2011. She 

                                                            

1

 Defendant’s Motion to Strike deals directly with evidence found in Plaintiff’s Declaration (Doc. 34), which was 

used in support of Plaintiff Patsy Wachenschwanz’s Memorandum in Opposition to Defendant Dolgencorp, LLC’s 

Motion for Summary Judgment. (Doc. 49). Because this Court’s order on Defendant’s Motion to Strike has a direct 

impact on the evidence this Court may consider in deciding Defendant’s Motion for Summary Judgment, the Court’s 

Order on the Motion to Strike precedes the Court’s Order on the Motion for Summary Judgment. See infra, Section 

IV.A. 

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started as a Sales Associate at the Dollar General in The Plains, Ohio, where she was eventually 

promoted to Assistant Store Manager. Wachenschwanz was promoted to Store Manager for the 

Dollar General located in Athens, Ohio in July 2003. She worked as the Store Manager for the 

Dollar General in Nelsonville, Ohio for six months in 2006, but spent the rest of her employment 

with Dollar General as the Store Manager for the Athens, Ohio location (“the Store” or “Dollar 

General”). Wachenschwanz voluntarily resigned in May 2011. 

 Dollar General is a retailer of basic consumable goods, seasonal items, home products, 

and apparel. Dollar General maintains approximately 9,811 stores throughout 38 states. Each 

store operates under the same job hierarchy, led by the Store Manager, who is the highest level 

supervisory personnel. Dollar General stores typically are also staffed with an Assistant Store 

Manager (“ASM”), a Lead Sales Associate (“LSA” or “third key”), and various Sales Associates. 

Of those employees, the Store Manager is the only salaried employee. Store Managers report to 

a District Manager (“DM”), who is usually responsible for overseeing 15 to 25 stores. There 

were six employees who worked below Wachenschwanz at her Dollar General location, two fulltime employees, and four part-time employees. During her time as a Store Manager, 

Wachenschwanz reported to two different DMs. 

 The first DM, Rich McCulley, made thirty-minute visits to the Store every three to four 

months. Plaintiff and McCulley spoke on the phone every three to four months. McCulley 

occasionally sent district-wide voicemails to all of the managers for whom he was responsible. 

Conversely, Terry Grierson, Wachenschwanz’s DM from 2007 through 2011, visited the Store 

once a week, often staying for three to four hours. During his visits, Grierson inspected the store 

and talked to Wachenschwanz about the Store’s performance. Grierson called Plaintiff for brief 

conversations a few times per week. Additionally, Grierson communicated with his Store 

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Managers through weekly conference calls and district-wide emails addressing common issues 

for the group of Store Managers. Grierson often left a list or document for Wachenschwanz, in 

which he answered questions she had asked him, left instructions for complying with Dollar 

General policies, and suggestions for store presentation and merchandising. Wachenschwanz 

was responsible for implementing those practices in the Store. 

 Dollar General prescribes numerous duties to its Store Managers, which Wachenschwanz 

regularly preformed. Those duties included, but were not limited to: recruiting, selecting, and 

retaining qualified employees; ensuring the store was properly staffed; training employees and 

conducting performance evaluations; identifying areas for appropriate solutions or counseling, 

up to and including termination; making recommendations for employee promotions; ensuring 

the financial integrity of the store through strict cashier accountability, key control, and 

adherence to stated company security practices and cash control procedures; and communicating 

performance, conduct, and safety expectations regularly. Wachenschwanz handled the Store’s 

inventory, making sure that the store had the proper quantities of merchandise every week, 

handling the invoice billing, and telling vendors to change the mix of merchandise if she thought 

it was in the Store’s best interest. 

 Wachenschwanz was responsible for ensuring that the store was properly opened and 

closed each day. She was also in charge of managing the Store’s controllable expenses, 

including its labor budget. Wachenschwanz reviewed store reports and prepared store 

paperwork on a frequent basis. She was responsible for trying to control “shrink,”2 which she did 

by monitoring cashiers, reviewing store reports, ensuring the store was properly stocked and 

items pulled forward, watching customers and the store’s closed circuit television, and training 

                                                            

2

 Shrink is the term used for unaccounted for losses, often the result of shoplifting. 

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her employees to protect the store’s assets with a similar level of care. Wachenschwanz was the 

only store employee with a key to the back door, which also helped protect against shrink. 

 Wachenschwanz estimates that she worked an average of 50 hours per week. As Store 

Manager, Wachenschwanz earned a salary of approximately $680.00 per week, and was eligble 

for bonuses based on the Store’s performance in particular areas. No other employees were 

eligble to earn bonuses. The ASM, the employee immediately under Wachenschwanz, earned 

$8.85 to $9.15 per hour. The LSA, who ranked below both Wachenschwanz and the ASM, 

earned $8.30 per hour. Wachenschwanz’s LSA regularly worked 40 hours per week. 

 

B. Procedural Background 

 Plaintiff filed her Complaint on November 8, 2012. (Doc. 2). On November 15, 2012, 

Plaintiff filed an Amended Complaint, alleging that Defendant violated Ohio Revised Code § 

4111.03 by failing to pay Plaintiff the proper overtime wage for hours worked in excess of 40 

hours per week. (Doc. 8). Defendant filed its Motion for Summary Judgment on July 30, 2013. 

(Doc. 30). On October 15, 2013, Defendant filed its Objections and Motion to Strike the 

Declaration of Patsy Wachenschwanz Offered by Plaintiff in Support of Her Opposition to 

Defendant’s Motion for Summary Judgment. (Doc. 58). 

 This matter has been fully briefed, and is, therefore, ripe for review. 

III. STANDARD OF REVIEW 

 Summary judgment is proper if there is no genuine issue of material fact and the movant 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of 

that fact would establish one of the elements of a claim and would affect the application of 

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governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 

1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)). 

 A movant for summary judgment meets its initial burden “by ‘showing’ – that is, 

pointing out to the district court – that there is an absence of evidence to support the nonmoving 

party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir. 1991) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific facts 

showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to 

“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess 

the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 

230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n. 5 (6th Cir. 

1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and 

reasonable inferences must be viewed in the light most favorable to the party opposing the 

motion. Pucci, 628 F.3d at 759 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986)). 

IV. LAW & ANALYSIS 

A. Defendant’s Motion to Strike 

 As an initial matter, Defendant moves the Court to strike portions of Plaintiff’s 

Declaration that was offered by Plaintiff in support of her Opposition to Defendant’s Motion for 

Summary Judgment. (Defendant’s Motion to Strike, Doc. 58; Plaintiff’s Declaration, Doc. 34). 

Defendant argues that all or part of Plaintiff’s Declaration should be struck from the record 

because it directly contradicts her sworn deposition and testimony, as well as because it is 

inadmissible under Federal Rules of Evidence 602 and 802, and thereby violates Federal Rule of 

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Civil Procedure 56(c) (“An affidavit or declaration used to support or oppose a motion must be 

made on personal knowledge, set out facts that would be admissible in evidence, and show that 

the affiant or declarant is competent to testify on the matters stated.”). 

 Defendant primarily argues that significant portions of Plaintiff’s Declaration conflicts 

with her earlier sworn testimony, and thus should be struck. In such situations, “[t]he rule...is 

that a party opposing summary judgment with an affidavit that contradicts her earlier deposition 

must explain why she disagrees with herself.” Powell-Pickett v. A.K. Steel Corp., 12-CV-4424, 

2013 WL 6231743, at *4 (6th Cir. Dec. 2, 2013). Furthermore, the party who has submitted the 

contradictory testimony must provide a convincing explanation of the conflicting evidence. Id. 

In other words, “a party cannot create a genuine issue of fact sufficient to survive summary 

judgment simply by contradicting his or her own previous sworn statement...without explaining 

the contradiction or attempting to resolve the disparity.” Phillips v. Tradesmen Int'l, Inc., 

1:05CV485, 2006 WL 2849779 (S.D. Ohio Sept. 29, 2006) (quoting Aerel, S.R.L. v. PCC 

Airfoils, L.L.C., 448 F.3d 899, 907-08 (6th Cir. 2006) (internal citations omitted)). 

 The Sixth Circuit has set forth a test for a district court to determine whether a postdeposition affidavit is admissible. First, the court must “determine whether the affidavit directly 

contradicts the nonmoving party’s prior sworn testimony.” Aerel, 448 F.3d at 908-09. If the 

affidavit is directly contradictory, it “should be stricken unless the party opposing summary 

judgment provides a persuasive justification for the contradiction.” Id. Conversely, if the 

affidavit is not directly contradictory, the court “should not strike or disregard that affidavit 

unless the court determines that the affidavit ‘constitutes an attempt to create a sham fact issue.’” 

Id. (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)). The Sixth Circuit has 

approved a list of nonexhaustive factors, originally set forth in Franks, that the court may 

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consider when determining whether a party attempted to create a sham issue of fact. See Giles v. 

University of Toledo, 241 F.R.D. 466, 473 (N.D. Ohio 2007). Those factors include, but are not 

limited to: 

whether the affiant was cross-examined during his earlier 

testimony, whether the affiant had access to the pertinent evidence 

at the time of his earlier testimony or whether the affidavit was 

based on newly discovered evidence, and whether the earlier 

testimony reflects confusion [that] the affidavit attempts to explain. 

Id. at 909 (quoting Franks, 796 F.2d at 1237). 

 Defendants specifically object to eleven assertions in Plaintiff’s Declaration. None of the 

Plaintiff’s Declaration assertions is directly contradictory to her prior sworn testimony; some of 

the statements at issue, however, while not directly contradictory, do rise to the level of creating 

a sham issue of fact. 

 Assertions 6 and 7 concern Plaintiff’s day-to-day operation of the Store. 

Wachenschwanz indicates that she did not have discretion to make her own decisions about the 

Store, and states that the DM provided her with specific directives, from which she was not 

permitted to stray. (Doc. 34, ¶ 6, ¶ 7). During her deposition, however, Plaintiff agreed that she 

was the person in charge of the Store, which included making most of the key decisions for 

making her store profitable: 

Defendant’s Attorney: Okay. And would you agree under both 

[District Managers] you were the person running the store? 

Wachenschwanz: Yes. 

Defendant’s Attorney: And that’s not to say that your supervisor 

didn’t have input into the running of your store, but for the most 

part on the key decisions that you needed to make the store 

profitable you were the one making those decisions; would you 

agree? 

Wachenschwanz: Yes. 

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(Deposition of Patsy Wachenschwanz, Doc. 30-3 at 143). Plaintiff has offered no evidence to 

indicate that the differences between her deposition testimony and the statements in her 

Declaration stem from a lack of access to pertinent information during her deposition. 

(Plaintiff’s Brief in Opposition, Doc. 67 at 8; see Franks, 796 F.2d at 1237). Furthermore, 

Plaintiff did not demonstrate that her Declaration attempts to explain away confusion regarding 

this testimony. (Doc. 67 at 8; see Franks, 796 F.2d at 1237). Assertions 6 and 7, therefore, 

create a sham issue of fact. 

 Next, in assertion 10, Plaintiff states that she generally could not hire or terminate 

employees without approval from her DM. (Doc. 34, ¶ 10). That statement, however, does not 

align with her deposition testimony, in which she discussed her experience with terminating prior 

employees, as well as hiring employees. (Doc. 30-3 at 163-65, 201-204, 223-24). Though the 

Court does not find that all of assertion 10 rises to the necessary level, the phrase, “I generally 

could not hire or terminate without my district manager’s approval,” creates a sham fact issue. 

(Doc. 34, ¶ 10). Again, Plaintiff has offered no argument as to why her deposition testimony 

differs from the statements in her Declaration, thereby failing to offer any justification for the 

conflicting claims. (Doc. 67 at 9; see Franks, 796 F.2d at 1237). As such, assertion 10, in part, 

creates a sham issue of fact. 

 The final statement at issue, assertion 14, concerns Plaintiff’s performance of managerial 

versus non-managerial duties. Plaintiff states: “While I was performing non-managerial duties, I 

would not perform managerial duties at the same time.” (Doc. 34, ¶ 14). That statement gives a 

distinctly different impression of Plaintiff’s duties than Plaintiff communicated during her 

deposition testimony. (Doc. 30-3 at 208-12). Like the statements reviewed above, Plaintiff has 

failed to demonstrate that she did not have access to pertinent information during her deposition, 

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nor that Declaration attempts to explain away confusion present in her deposition testimony. 

(Doc. 67 at 9-10; see Franks, 796 F.2d at 1237). Though assertions 6, 7, 10, and 14 are not 

directly contradictory of Plaintiff’s deposition testimony, an application of the Franks factors 

indicates that each assertion creates sham fact issues. The Court, therefore, will strike assertions 

6, 7, and 14 in whole, and assertion 10 in part. 

 The remaining contradictory statements at issue, assertions 9, and 12, will not be struck. 

These statements, while in tension with Plaintiff’s earlier deposition testimony, do not rise to the 

level of creating a sham issue of fact that requires that they be struck. Nevertheless, at the 

summary judgment stage, affidavits which are entirely self-serving cannot, alone, create an issue 

of fact sufficient to survive summary judgment. Wolfe v. Vill. of Brice, Ohio, 37 F.Supp.2d 

1021, 1026 (S.D. Ohio 1999). The Court will consider these assertions, therefore, in conjunction 

with other permissible evidence. 

 Finally, Defendant suggests that several passages of Plaintiff’s Declaration violate 

Federal Rules of Evidence 602 and 802, which require that testimony be based on personal 

knowledge, and prohibit the introduction of hearsay statements. While in certain cases, 

declarations containing arguably speculative statements, intermixed with admissible evidence, 

must be struck, Cardiovascular and Thoracic Surgeons, Inc. v. St. Elizabeth Medical Center, 

Inc., 10-CV-846, 2012 WL 3962791, at *2-4, Plaintiff’s Declaration here does not rise to the 

level necessary to demand that the offending document be excised. The statements at issue are 

based on Plaintiff’s personal knowledge, which cannot, under Fed. R. Civ. P. 56, simply be 

presumed to be inadequate. See e.g., Reddy v. Good Samaritan Hosp. & Health Ctr., 137 F. 

Supp. 2d 948, 956 (S.D. Ohio 2000) (stating that personal knowledge may be inferred from 

documents such as affidavits). Rather, the Court is empowered to review those portions of 

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Plaintiff’s Declaration that have been retained, and base its judgments only upon evidence that is 

properly considered under Fed. R. Civ. P. 56. Accordingly, remaining assertions 4, 5, 8, 10 in 

part, 13, and 15 will not be struck. 

 For the reasons set forth above, Defendant’s Objections and Motion to Strike the 

Declaration of Patsy Wachenschwanz Offered by Plaintiff in Support of Her Opposition to 

Defendant’s Motion for Summary Judgment is GRANTED in part, and DENIED in part. 

B. Defendant’s Motion for Summary Judgment 

Turning now to Defendant’s Motion for Summary Judgment, Defendants argue that 

Wachenschwanz’s case should be dismissed because she was exempt from overtime under the 

“executive exemption” of the Fair Labor Standards Act (“FLSA”), and is, in turn, exempt from 

overtime under Ohio state law and the FLSA. (Doc. 30). 

 Plaintiff brings her claim under O.R.C. § 4111.03. Though she does not raise a claim 

under federal law, O.R.C. § 4111.03 expressly incorporates the FLSA: “An employer shall pay 

an employee for overtime at a wage rate of one and one-half times the employee's wage rate for 

hours worked in excess of forty hours in one workweek, in the manner and methods provided in 

and subject to the exemptions of ... the ‘Fair Labor Standards Act of 1938.’” O.R.C. § 

4111.03(A); see also 29 U.S.C. § 207(a)(1). An employer may assert a plaintiff’s exempt status 

under the FLSA, but it is “an affirmative defense on which the employer has the burden of 

proof.” Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007) (citing 

Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974)). The exemptions “‘are to be 

narrowly construed against the employers seeking to assert them.’” Orton v. Johnny's Lunch 

Franchise, LLC, 668 F.3d 843, 846-47 (6th Cir. 2012). The employer has the burden of 

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establishing the affirmative defense by a preponderance of the evidence, which is only satisfied 

if the employer provides “clear and affirmative evidence that the employee meets every 

requirement of the exemption.” Id. (citing Speedway, 506 F.3d at 501). The employer claiming 

the FLSA exemption, however, “does not bear any heightened evidentiary standard.” Speedway, 

506 F.3d at 501; see also Renfro v. Indiana Michigan Power Co., 497 F.3d 573, 576 (6th Cir. 

2007). 

Under the FLSA, employees who work in a “bona fide executive, administrative, or 

professional capacity” are exempt from the overtime rate applicable to other classifications of 

employees. 29 U.S.C. § 213(a)(1). There are four requirements that an employee must meet in 

order to be considered an executive employee, and thereby subject to the executive exemption: 

The term “employee employed in a bona fide executive 

capacity”...shall mean any employee: 1) compensated on a salary 

basis at a rate not less than $455 per week; 2) whose primary duty 

is management of the enterprise in which the employee is 

employed or of a customarily recognized department or 

subdivision thereof; 3) who customarily and regularly directs the 

work of two or more other employees; and 4) who 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). Defendant bears the burden of establishing each element of the 

executive exemption. Speedway, 506 F.3d at 505, n. 6 (citing Renfro v. Ind. Mich. Power Co., 

370 F.3d 512, 515 (6th Cir. 2004)). 

Prior to the August 2004 amendment of the FLSA, an employer raising the affirmative 

defense of an executive exemption against an employee needed to show: 1) the employee earned 

at least $250 per week; 2) the employee’s primary duty consisted of the management of the 

enterprise; and 3) the employee customarily and regularly directed the work or two or more 

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employees. See Mitchell v. Abercrombie & Fitch, Co., 428 F. Supp. 2d, 725, 739 (S.D. Ohio 

2006) (citing 29 C.F.R. § 541.1 (2003)). The pre-2004 executive exemption test is known as the 

“short test.” Id. For cases concerning claims that span a timeline prior to August 2004 and 

beyond August 2004, the Sixth Circuit has decided that both the “short test” and the current test 

must be applied. 

In Baden-Winterwood v. Life Time Fitness, the Court held that the proper application of 

the differing tests, rather than improperly applying the current test retroactively, was to apply the 

“short test” to claims arising before August 24, 2004, and the current test to claims arising after 

August 24, 2004. 566 F. 3d 618, 628-29 (6th Cir. 2009); see also In re Family Dollar FLSA 

Litigation 637 F.3d 508, 513 (4th Cir. 2011) (though plaintiff’s claims covered the period from 

1996 to October 2004, and were therefore governed by both the pre-2004 and post-2004 

regulations, the application of the different regulations was “not material to the outcome of the 

case.”). The “short test” is encapsulated in the requirements of the current test, and therefore, 

this Court will address the primary duty requirement and direction of employee requirement 

concurrently under the “short test” and the current test. 

Defendant argues, and Plaintiff concedes, that there is no dispute that Plaintiff met the salary 

threshold required under the executive exemption. The remaining three elements, however, are 

contested, and will be addressed individually below. 

1. Primary Duty Test 

An employee qualifies as exempt when her primary duty is the performance of exempt work. 

29 C.F.R. § 541.700(a). For the employees work to be considered her primary duty, it must be 

“the principal, main, major, or most important duty that the employee performs.” Id. 

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Furthermore, “determination of a primary duty must be based on all the facts in a particular case, 

with major emphasis on the character of the employee’s job as a whole.” Id. Various factors 

may be considered, including, but 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. 

Id. Time spent performing exempt work can be useful in determining whether exempt work is 

the primary duty of the employee, and employees who spend more than 50 percent of their time 

performing exempt work will likely satisfy the primary duty requirement. 29 C.F.R. § 

541.700(b). Time, however, is not the sole measure under this requirement, and an employee 

who spends less than 50 percent of her time performing exempt duties may meet the primary 

duty requirement if other factors lend themselves to that conclusion. Id.; see also Speedway, 506 

F.3d at 504-05. 

In order to establish that Plaintiff was an executive based on the primary duty test, 

Defendant “needs to carry its burden only on the primary duty element as a whole, not on each 

individual factor relevant to that inquiry.” Id. at 505, n. 6. To consider properly both parties’ 

arguments on the primary duty requirement, the Court must address each factor individually. 

a. Mangerial Duties verus Non-Managerial Duties 

 Defendant argues that Wachenschwanz’s managerial duties were more important than her 

non-managerial duties. It points to Wachenschwanz’s statement that the Store would not have 

been able to run without someone performing managerial duties, and she was the person 

performing those duties. Defendant claims that it would be impossible to find that 

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Wachenschwanz’s managerial duties were less important than her non-mangerial duties, 

especially when considering her managerial duties in the aggregate. According to Defendant, 

Plaintiff was responsible for ensuring that the Store ran smoothly, which included assigning tasks 

to her employees. Defendant argues that Wachenschwanz’s choice to perform certain nonmanagerial tasks, simply because she believed doing so was in the Store’s best interest, does not 

take away from her duties as manager. Finally, Defendant states that the Court should consider 

the importance of Wachenschwanz’s managerial duties from Dollar General’s perspective. 

 Plaintiff claims that Defendant’s argument is disproven by her belief that there were three 

duties most important to the Store’s operation, only one of which was managerial. Furthermore, 

that managerial duty was not one, according to Plaintiff, that she had the discretion to change. 

Plaintiff argues that Defendant’s business model, in which Plaintiff’s bonuses were tied directly 

to the performance of the Store, essentially forced her into performing non-managerial duties 

under the guise of acting as the manager. Plaintiff proffers that she was unable to get the 

assistance she needed from hourly employees to protect against Store failure, so she performed 

the non-managerial work herself. 

 In Thomas v. Speedway SuperAmerica, LLC, the Court considered whether a Speedway 

gas station manager was exempt under the executive exemption. Id. Ultimately finding that the 

gas station manager was exempt, the Court analyzed Thomas’s status under each factor. Id. at 

505-09. When considering the managerial duties versus non-managerial duties prong under the 

primary duty requirement, the Court noted that Thomas regularly performed non-managerial 

duties such as sweeping floors, stocking merchandise, and cleaning bathrooms, but also had 

managerial duties like assigning the weekly work schedule, hiring employees, and training 

employees. Id. at 505-06. The Court stated that Thomas’s managerial duties were “much more 

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important to Speedway’s success than her non-managerial duties,” because her Speedway would 

have failed to function without Thomas’s performance of those essential managerial tasks. Id.

 When weighing Plaintiff’s managerial duties against her non-managerial duties, “courts 

must compare the importance of the plaintiff’s managerial duties with the importance of her nonmanagerial duties, keeping in mind the end goal of achieving the overall success of the 

company.” Speedway, 506 F.3d at 505. Defendant points to Plaintiff’s overall duties, arguing 

that, though Plaintiff chose to perform some non-managerial duties, doing so does not lessen the 

importance of her various managerial duties. Conversely, Plaintiff argues that, out of what she 

believed to be the three most important duties, two were non-managerial and one was 

managerial, thereby indicating what was more important. Similar to Speedway, Plaintiff’s store 

would not have functioned without her performance of certain fundamental managerial tasks. As 

such, Plaintiff’s managerial duties, though often coupled with non-managerial duties, are 

markedly more important than her non-managerial duties. Therefore, Defendant has established 

primary duty under this part of the requirement. 

b. Time Spent Performing Exempt Work 

 Defendant argues that Wachenschwanz, in admitting that she spent the majority of her 

time managing, confirmed that she spent the majority of her time performing exempt work. 

Defendant proffers that Wachenschwanz regularly performed concurrent duties. For example, 

even if she was engaged in some form of manual labor in the Store, she was simultaneously 

monitoring for theft, and keeping an eye on her employees’ performance and interaction with 

customers. Specifically, Defendant points to Plaintiff’s acknowledgment that she was in charge 

of the Store 100 percent of the time. Defendant states that Plaintiff regularly performed 

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managerial duties, even if she was also performing a non-managerial duty. Furthermore, 

Defendant notes that Plaintiff conceded that she spent 40 percent of her time in the Store 

performing exclusively managerial functions. That 40 percent, however, is simply a base 

number, predicated on Plaintiff’s performance of concurrent duties. 

 Plaintiff fails to address this element outright, but frequently discusses the amount of time 

she spent performing non-managerial duties. Plaintiff argues that she was responsible for 

opening the Store, as frequently as six days per week, during which time she performed almost 

entirely non-exempt work. Furthermore, when she opened the Store, she was the only employee 

present, so she had no choice but to perform non-exempt work. Plaintiff continually argues that 

her admission of concurrently performing managerial and non-managerial work does not weigh 

in favor of time spent performing exempt duties, but rather, demonstrates the exact opposite. 

 A plaintiff need not spend 50 percent of her time performing managerial duties to meet 

this element of the primary duty test. See McKinney v. United Stor-All Centers, LLC, 656 F. 

Supp. 2d 114, 124-25 (D.D.C. 2009). Furthermore, in situations where the plaintiff spends less 

than 50 percent of her time carrying out managerial duties, management may still be her primary 

duty “if the other pertinent [factors] support such a conclusion.” Gonzalez v. Dolgencorp, Inc., 

10-CV-392, 2011 WL 6009860, at *5 (citing 29 C.F.R. § 541.103 (2003)). Here, Defendant 

suggests that the common overlap between Plaintiff’s non-managerial and managerial duties is 

sufficient to demonstrate that she spent most of her time performing exempt work. Plaintiff, 

however, argues that her activities indicate that she actually spent more time performing nonexempt activities. Defendant has demonstrated that Plaintiff spent at least 40 percent of her time 

in the Store performing managerial duties. Therefore, this factor does not conclusively weigh in 

favor of Defendant. Time spent, however, should not be given “undue weight,” Speedway, 506 

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F.3d at 504, and, read together with the other factors, see supra, Section IV.B(1)(b), and infra 

Section IV.B(1)(c) and IV.B(1)(d), the Court finds that her primary duty was managerial. 

c. Relative Freedom from Direct Supervision 

 Defendant states that Wachenschwanz was relatively free from direct supervision. 

Wachenschwanz testified that her DM contacted her throughout the week, totaling around five to 

six hours, which included weekly visits lasting three to four hours, short phone calls, districtwide phone calls, and emails. Defendant argues that the frequency and quantity with which the 

DM contacted Wachenschwanz does not demonstrate any significant amount of direct 

supervision in her day-to-day operations of the Store. Additionally, Defendant notes that 

Wachenschwanz admitted that she was not required to seek the permission of her DM before 

taking action in the Store, the DM did not interfere with day-to-day managerial duties, which 

allowed Wachenschwanz to make the key decisions in her Store on a daily basis. 

 Plaintiff argues that she received an undue amount of supervision from her DM, with a 

frequency she found to be excessive. Plaintiff alleges that she was stripped of much of her nonpertinent discretion, based on various mandates from the DM. According to Plaintiff, the DM 

did not simply visit the store, or check-in through his phone calls; rather, he contacted her as a 

means of providing sets of instructions that Plaintiff was to follow. 

 A plaintiff need not be absolutely free from supervision in order for a defendant to 

demonstrate that she was relatively free from supervision. Speedway, 506 F.3d at 507. In 

Speedway, the Court found that biweekly store visits, frequent phone calls and emails, and 

constantly availability did not detract from the plaintiff’s daily freedom from “over-the-shoulder 

oversight on a day-to-day basis.” Id. at 507-08. Plaintiff offers no evidence in support of her 

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argument that her DM prevented her from being relatively free from supervision. As this Court 

noted supra, Section IV.A., Plaintiff’s evidentiary support for this argument relies almost 

entirely on the relevant statements in her Declaration, particularly assertions 6 and 7, both of 

which have been struck. Viewing the remaining evidence in the light most favorable to the 

Plaintiff, there are not issues of material fact that remain as to whether Plaintiff was relatively 

free from supervision, a finding that is further supported by Plaintiff’s various admissions that 

she was in charge of the day-to-day operations of her Store. Therefore, Defendant has 

established that Plaintiff has met this prong under the primary duty requirement. 

d. Wachenschwanz’s Salary versus Other Employees’ Salaries Received for Non-Exempt Work 

 Defendant states that Wachenschwanz earned significantly more than her non-salaried 

co-workers. According to Defendants, Dollar General paid its Store Managers significantly more 

than the other, hourly store employees. Defendants claim that Wachenschwanz was paid more 

not only in absolute terms, but also through Wachenschwanz’s ability to enhance her 

compensation through store profitability. Wachenschwanz earned a weekly salary of $680.88, 

while her immediate subordinate, the ASM, earned $8.85 to $9.15 per hour,3

 which is a 

difference of approximately 47 percent. Defendant also points to Plaintiff’s potential bonus 

earnings as further evidence of the vast salary difference between Plaintiff and the other Store 

employees. Defendant argues that Wachenschwanz was a “profit center,”4

 because her 

evaluations and bonus criteria were directly dependent on the Store’s success and profitability. 

Moreover, Defendant states that Wachenschwanz influenced the Store’s profitability through 

                                                            

3

 At a rate of 40 hours per week, that would amount to between $354 and $366 each week. 

4

 A manager may be considered a profit center if she “had the ability to influence the amount of her compensation.” 

In re Family Dollar, 637 F.3d at 517. 

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various management decisions, adding that the potential Store profits’ impact on Plaintiff’s 

compensation weighs in favor of granting this element for Defendant. 

 Plaintiff argues that Defendant has failed to demonstrate properly why it paid Plaintiff 

more than the Store’s hourly associates. Plaintiff questions Defendant’s motive behind her 

salary, citing Wachenschwanz’s responsibility for opening and closing the Store on numerous 

occasions throughout her employment as an example of Plaintiff being made to do a nonmanagerial task while being paid a manager’s salary. Plaintiff seems to claim that Defendant 

could not have decided to compensate Wachenschwanz on a salary basis for performing nonexempt work, given its emphasis on the importance of managerial duties over non-managerial 

duties. 

 In evaluating this element of the primary duty test, courts have considered whether the 

manager earned more than non-managerial employees, and whether the manager had the ability 

to influence the amount of compensation she earned. In re Family Dollar, 637 F.3d at 517-18; 

see also Gonzalez, 10-CV-392, 2011 WL 6009860, at *8 (finding that plaintiff’s salary and 

potential bonus earnings, among other factors, weighed in favor of establishing the fourth 

element under primary duty for an executive exemption). As to the first part, the parties have 

agreed that Plaintiff earned more than the hourly employees in the Store. Regarding the second 

element, Defendant has demonstrated by a preponderance of the evidence that Wachenschwanz 

had the ability to influence the amount of compensation she earned. Since there are no issues of 

material fact under this element, it weighs in favor of Defendant. As such, Defendant has 

established, by a preponderance of the evidence, that Plaintiff’s primary duty was management. 

 

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2. Plaintiff Customarily and Regularly Directs the Work of Two or More Other Employees 

The third element under the executive exemption is whether the plaintiff customarily and 

regularly directed the work of two or more employees. Customarily and regularly means, “a 

frequency that must be greater than occasional but which, of course, may be less than constant.” 

29 C.F.R. § 541.701. Two or more employees means “two full-time employees, or their 

equivalent...[which could be] [o]ne full time and two half-time employees...[or] four half-time 

employees.” 29 C.F.R. § 541.104(a). 

Defendant states that one of Plaintiff’s primary employment duties was to supervise all Store 

employees. Wachenschwanz was responsible for supervising two full-time employees and four 

part-time employees. Plaintiff fails to address this in any substantive manner, only citing it as 

something she considers to be an issue of material fact. There is no issue of material fact as to 

this element of the executive exemption, and this element of the executive exemption, therefore, 

weighs in Defendant’s favor. 

3. Plaintiff’s Authority to Hire, Fire, or Make Suggestions as to the Status of Other 

Employees 

 The final element at issue under the executive exemption is Plaintiff’s authority with 

regard to the hiring and firing of other employees, as well as the ability for Plaintiff to make 

decisions that affect another employee’s status level. In deciding whether an employee’s 

suggestions and recommendations hold a particular weight, the Court considers factors such as: 

“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 suggestions and recommendations are relied upon.” 29 C.F.R. § 541.105. 

The suggestions must pertain to an employee whom the manager regularly directs. Id. 

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Furthermore, those recommendations and suggestions may still be considered to hold a 

“‘particular weight’ even if a higher level manager’s recommendation has more importance and 

even if the employee does not have the authority to make the ultimate decision as to the 

employee’s change in status.” Id.

 Defendant argues that Plaintiff fits squarely within this element. Defendant points to 

admissions by Plaintiff that she could hire Sales Associates, make recommendations to her DM 

regarding promotions to ASM and LSA positions. Plaintiff, however, disagrees, citing this 

element as another issue of material fact.5 Construing the facts in favor of Plaintiff, this Court 

finds that there is no issue of material fact as to this element of the executive exemption. This 

element, therefore, weighs in favor of Defendant. 

V. CONCLUSION

 Defendant established properly each out of the four elements necessary under the 

executive exemption. Defendants’ Motion for Summary Judgment, is, therefore, GRANTED. 

This case is hereby DISMISSED. 

IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

UNITED STATES DISTRICT JUDGE

Dated: March 7, 2014

                                                            

5

 This Court previously determined that Plaintiff stated that she had hired and terminated employees, and the 

specific testimony found in her Declaration, in which she claims that never happened, was struck. See supra,

Section IV.A. 

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