* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10321

Summary Calendar

MONICA YVETTE MCKEE

Plaintiff – Appellant

v.

CBF CORPORATION

Defendant – Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:06-CV-1629-G

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Before the court is an appeal by Plaintiff Monica Yvette McKee of the

district court’s entry of summary judgment in favor of Defendant CBF

Corporation. For the reasons stated below, the judgment of the district court is

AFFIRMED.

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2008

Charles R. Fulbruge III

Clerk
No. 08-10321

2

I. BACKGROUND

Defendant CBF operates nightclubs in Dallas and the surrounding area.

Plaintiff McKee served as a “secretary and assistant” to CBF’s management

team. CBF employed McKee for approximately sixteen years, paying McKee a

weekly salary of $750. Following her termination from CBF, McKee filed this

lawsuit under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq.

(“FLSA”), seeking overtime compensation for which CBF allegedly failed to

properly compensate her. CBF asserts that McKee is an exempt administrative

employee not subject to the overtime requirements of the FLSA. CBF also

asserts that McKee and CBF were not engaged in interstate commerce, a

requirement for FLSA coverage. 

McKee also brought a claim under the common law of Texas for wrongful

discharge. McKee maintains that CBF requested that she sign false documents

in violation ofthe Immigration and Nationality Act(“INA”) and the Immigration

Reform and Control Act (“IRCA”). McKee refused to sign the documents and

reported the incident to CBF’s in-house counsel. McKee alleges that CBF

retaliated for her refusalto sign the documents by terminating her employment.

CBF contends that McKee quit her job after a dispute with her supervisor over

a matter wholly unrelated to her alleged refusal to sign a false document. 

The district court granted summary judgment on McKee’s claims under

the FLSA because (1) McKee was an exempt administrative employee; and (2)

McKee was not engaged in “interstate commerce” as required by the FLSA. The

district court granted summary judgment on McKee’s common law wrongful

discharge claim because there was no evidence that McKee was terminated

solely for failing to comply with CBF’s request to sign the documents McKee

contends were false. 
No. 08-10321

3

II. ANALYSIS

A. Standard of Review

This court reviews a district court’s grant of summary judgment de novo.

Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir. 1995) (en banc).

“Summary judgment is appropriate [if the summary judgment evidence shows]

‘that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.’” Mello v. Sara Lee Corp., 431 F.3d

440, 443 (5th Cir. 2005) (quoting FED. R. CIV. PROC. 56). “[W]e ‘review the

evidence and inferences to be drawn therefrom in the light most favorable to the

non-moving party.’” FDIC v. Laguarta, 939 F.2d 1231, 1236 (5th Cir. 1991)

(quoting Baton Rouge Bldg. & Constr. Council AFL-CIO v. Jacobs Constructors

Inc., 804 F.2d 879, 881 (5th Cir. 1986)). 

If the moving party will bear the burden of persuasion at trial, that party

must support its motion with credible evidence that would entitle itto a directed

verdict if not controverted at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 331

(1986). If the burden of proof at trial lies with the nonmoving party, the movant

may either (1) submit credible evidence that negates the existence of some

material element of the opponent’s claim or defense, or (2) demonstrate that the

evidence in the record insufficiently supports an essential element or claim. Id.

Ifthe moving party meets its initial burden,the nonmoving party “must setforth

specific facts showing that there is a genuine issue for trial.” Warfield v. Byron,

436 F.3d 551, 557 (5th Cir. 2006). “The nonmoving party, however, ‘cannot

satisfy this burden with conclusory allegations, unsubstantiated assertions, or

only a scintilla of evidence.’” Id. (quoting Freeman v. Tex. Dep’t of Crim. Justice,

369 F.3d 854, 860 (5th Cir. 2004)).
No. 08-10321

4

B. Violation of the FLSA

The FLSA requires employers to pay overtime compensation to employees

who work more than forty hours per regular workweek. 29 U.S.C. § 207(a)(1)

(2004). Exempt from the FLSA, however, are individuals “employed in a bona

fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1)

(2004). “The decision whether an employee is exempt from the FLSA’s overtime

compensation provisions under 29 U.S.C. § 213(a)(1), is primarily a question of

fact . . . . However, the ultimate decision whether the employee is exempt from

the FLSA’s overtime compensation provisions is a question of law.” Lott v.

Howard Wilson Chrysler-Plymouth, Inc., 203 F.3d 326, 330-31 (5th Cir. 2000).

The employer has the burden to prove that an employee is exempt under

the FLSA, and that exemption is construed narrowly against the employer.

Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 402 (5th Cir. 2002) (citing Dalheim

v. KDFW-TV, 918 F.2d 1220, 1224 (5th Cir. 1990)). “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 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 (2004). The salary and duties of a

person employed in a bona fide administrative capacity under the FLSA are:

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

$455 per week . . . ;

(2) Whose primary duty is the performance of office or non-manual

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.

29 C.F.R. § 541.200(a) (2004). The parties agree that McKee satisfies the first

two requirements. The only issue on appeal is whether McKee exercised

discretion and independent judgment. 
No. 08-10321

5

The Department of Labor has identified several factors that courts should

consider to determine whether an employee exercises discretion and independent

judgment. See 29 C.F.R. § 541.202(b) (2006). In addition, the Department of

Labor has provided guidance concerning a number of specific situations relevant

to the present case. “An employee who leads a team of other employees assigned

to complete major projects for the employer . . . generally meets the duties

requirements for the administrative exception, even if the employee does not

have direct supervisory responsibility over the other employees on the team.”

29 C.F.R. § 541.203(c). “An executive assistant or administrative assistant to a

business owner or senior executive of a large business generally meets the duties

requirements for the administrative exemption if such employee, without specific

instructions or prescribed procedures, has been delegated authority regarding

matters of significance.” 29 C.F.R. § 541.203(d). “Purchasing agents with

authority to bind the company on significant purchases generally meet the

duties requirements for the administrative exemption even if they must consult

with top management officials when making a purchase commitment for raw

materials in excess of the contemplated plant needs.” 29 C.F.R. § 541.203(f)

(2006). 

CBF contends that McKee’s job title was “property manager.” McKee

denies being a manager, and for purposes of summary judgment, we assume that

McKee is correct. But McKee’s job title does not establish whether or not she

was exempt from the overtime requirements of the FLSA. 29 C.F.R. § 541.2.

Rather, the relevant inquiry is this: did McKee’s primary job duty include the

exercise of discretion and independent judgment with respect to matters of

significance? 29 C.F.R. § 541.200(a)(3). Viewing the evidence in the light most

favorable to McKee, we conclude that it did. 

CBF offered undisputed evidence establishing that McKee was charged

with ensuring that CBF’s venues were properly maintained, an issue of great
No. 08-10321

1 McKee’s supervisor, Kim Brown, stated in her affidavit McKee supervised at least

seven other employees in the telemarketing department. McKee stated in her affidavit that

she was not the supervisor ofthe “telemarketing girls.” McKee, however, did not deny that she

approved telemarketing employees’ schedules and vacation time and established telemarketing

policies and procedures, as was stated in Brown’s affidavit. The failure to deny these

particular job duties is telling because McKee denied several other specific statements

concerning the telemarketing department made in Brown’s affidavit. Because we conclude

that McKee was an exempt employee without regard to her duties concerning the

telemarketing department, we need not decide the extentto which McKee has raised questions

of fact concerning those duties.

2 McKee stated in her affidavit that she often was not asked her opinion concerning

applicants for telemarketing jobs, but she does not deny that she screened applicants for the

maintenance positions she supervised, as was stated in Kim Brown’s affidavit. In addition,

Mckee admits that she was requested to give her opinion concerning some telemarketing

applicants. 

6

significance to CBF. She supervised five maintenance employees and was

responsible for approving their schedules and vacation time.1 She screened

potential employees and provided recommendations to McKee’s supervisors.2

Individual club managers gave McKee a list of issues to be addressed on a daily

basis. McKee was then responsible for deciding which tasks would be handled

by outside contractors and tasking her employees to individual assignments.

McKee was also responsible for ordering beer and liquor, binding CBF and CBF’s

clients to more than $500,000 in transactions each year. She was one of seven

CBF employees with unrestricted access to CBF’s corporate offices and its

various clubs. 

In Lott, this court held that an employee with duties similar to McKee’s

exercised independent discretion and judgment. 203 F.3d at 332. Like McKee,

“Ms. Lott . . . exercised discretion as supervisor of four other employees who

worked with her.” Id. at 330. “Although Ms. Lott, like all other managers, could

not hire new employees, fire existing employees or increase employees’ salaries

without first obtaining [her supervisor’s] approval, [her supervisor], in making

decisions, relied on Ms. Lott’s suggestions and recommendations.” Id. McKee

makes no attempt to distinguish the present case from Lott.
No. 08-10321

7

By way of contrast, the present case is easily distinguished from Wirtz v.

C & P Shoe Corp., 336 F.2d 21 (5th Cir. 1964), and Heidtman v. County of El

Paso, 171 F.3d 1038 (5th Cir. 1999), the two cases principally relied on by

McKee. In Wirtz, this court held that two warehouse managers did not qualify

for the executive exemption to the FLSA. 336 F.2d at 27-28. Central to the

court’s analysis was the fact that the two plaintiffs performed essentially the

same work as the employees they supervised in the defendant’s warehouse. Id.

at 28. In the present case, McKee’s job was to assign maintenance tasks to other

employees under her supervision. There is no evidence that she was required

to perform similar work herself.

In Heidtman, this court held that employees with the principal duty of

initiating sales contacts were not exemptfrom FLSA coverage. 171 F.3d at 1042.

The employees in Heidtman did not have any supervisory duties. Id. Rather,

most of their time was spent “simply compiling names of prospects to complete

their databases, calling prospects in these databases, and sending them

brochures.” Id. The defendants in Heidtman were unable to pointto any specific

instance in which any of their employees exercised discretion or independent

judgment. Id. at 1041. In the present case, McKee supervised at least five

employees and CBF has identified several specific instances when McKee

exercised discretion and independent judgment. 

McKee insists that she was merely a conduit between upper level

managers and lower employees. That some of McKee’s decisions were subject

to review does not mean she exercised no discretion. This court has held that

“decision[s] made as a result of the exercise of discretion and independent

judgment may consist of recommendations for action rather than the actual

taking of action.” Cheatham v. Allstate Ins. Co., 465 F.3d 578, 585 (5th Cir.

2006) (citations omitted); see also 29 C.F.R. § 541.202(c) (2006) (“employees can

exercise discretion and independent judgment even if their decisions or
No. 08-10321

3 McKee also asserts that the district court should have stricken several statements

contained in affidavits by CBF employees that McKee was a “manager” or a “supervisor”

because she asserts that those statements were conclusory. McKee did not identify the

allegedly conclusory statements in her motion filed with the district court. The statements she

has identified on appeal describe McKee’s job duties and contain specific examples of how

McKee performed those duties. The district court did not abuse its discretion by considering

the affidavits. See Smith v. Liberty Life Ins. Co., 535 F.3d 308, 314 (5th Cir. 2008) (“We review

the district court’s admission of evidence in support of a motion for summary judgment for

abuse of discretion.”). 

8

recommendations are reviewed at a higher level”). Affidavits of employees

supervised by McKee identified several instances that required McKee to

exercise discretion and independent judgment. McKee asserts that the

statements contained in affidavits of employees she supervised are untrue, but

she only denies one specific example relating to a raise given to an employee

under her supervision.3 Her assertion that several affidavits of employees she

supervised contain untrue statements, without anything more, is merely a

conclusory denial that does not create a question of material fact. See Warfield,

436 F.3d at 557.

In addition, nothing in the record suggests that the district court applied

the incorrect standard in deciding the motion for summary judgment. In its

Memorandum Opinion and Order, the district court stated that it viewed the

evidence in the light most favorable to McKee and then outlined the undisputed

evidence in the record. Having identified the undisputed historical facts, the

ultimate decision of whether the McKee was exempt from the FLSA’s overtime

compensation provisions was a question of law. See Lott, 203 F.3d at 331. 

The district court correctly held that McKee was an exempt employee.

Because we hold that McKee was an exempt employee under the FLSA, we need

not decide whether she was engaged in interstate commerce while performing

her job duties or whether CBF was an enterprise that was engaged in interstate

commerce.
No. 08-10321

4 For this reason, the discovery issues raised by McKee on appeal are not pertinent.

9

C. Wrongful Discharge

McKee maintains that she was fired for refusing to participate in illegal

activity under federal law. In Texas, the employment-at-will doctrine recognizes

the right of an employer to terminate at will and without cause the employment

of any individual who is employed for an indefinite term. E. Line & Red River

R.R. Co. v. Scott, 10 S.W. 99, 102 (Tex. 1888). The single exception under Texas

common law, articulated in Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733

(Tex. 1985), provides than an employer may not terminate an employee if the

sole reason for the discharge is that the employee refused to perform an illegal

act. Id. at 735.

Even if it is assumed arguendo that CBF did ask McKee to sign employee

documentation in violation of the INA and the IRCA, McKee has not

demonstrated that her refusal was the sole reason for her discharge. Rather,

McKee admits in her affidavit that “[m]y termination by Dario came about

because he throught [sic] I had made a decision myself not to follow instructions

given [to] me by the company’s general contractor” concerning work to be

performed by a subcontractor. In her brief to this court, McKee states that “the

very reason Dorio [sic] Ferdows flew into such a rage and terminated her was

because he thought (erroneously) that she had exercised discretion and made a

decision about the scheduling of a crew.” Thus, McKee admits that her

termination was the result of an incident entirely unrelated to her refusalto sign

any documents in violation of the INA and the IRCA. There is no evidence to

support McKee’s subjective belief that she was terminated solely for refusing to

perform an illegal act.4

III. CONCLUSION

For the reasons stated, the judgment of the district court is AFFIRMED.