UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: FOOD LION, INCORPORATED, FAIR

LABOR STANDARDS ACT "EFFECTIVE

SCHEDULING" LITIGATION

JEFFREY L. ROYSTER; DANIEL BAKER;

CLARENCE L. ALSTON; CHARLES V.

STRICKLAND, JR.; RON MURCHISON;

LARRY BRITT; CARL WILLIAMS; TRUMAN

SURLES; TIM LAYDEN; KIM PIPPA;

JEFFREY BARNES; GLENN JOHNSON; STEVE

TWIDDY; LARRY RILEY; WAYNE NEIL

HAND, JR.; MICHAEL ALPHIN;

HARVEY KEITH MATTHEWS; TERRY N.

CONNER; JAMES E. DANIELS; BILLY

MADDOX; RUSSELL THOMAS; JONATHAN

No. 94-2360

ANDERSON; WOODROW BREEDEN; AARON

NORRIS; JAMES GRUBER; REGINALD

ASHFORD; CLINTON E. BLOYER, III;

RICKY COLTREN; BILLY RAY COLLINS;

WILLIAM DALE FITZGERALD;

ROBIN DALE STEWART; STEPHEN A.

WILLIAMS; REGINALD GILL; LESTER

BRITT,

Appellants,

and

TERRY W. MCLAWHON, on behalf of

himself and all others similarly

situated; KEITH LAMONT PERRY, on

behalf of himself and all others

similarly situated; RONALD GRANNIS;
BOSTON D. MCCORNELL; RANDY E.

JONES; TIMOTHY E. PEELE; ANDY

CZUBAI; CHRISTOPHER AYDEN SURLES;

KELLY E. QUINN; JAMES L. ROYAL;

FRANCIS D. CARPENTER; GREGORY TODD

RING; LESTER JEROME MITCHELL;

RODNEY M. RAMSEY; WILLIAM RICHARD

HAMM; BILLY M. PARSON;

WOODROW CARROLL, JR.; BOBBY

GLYMPH; KEVIN CARR; BRAD CLARK;

BILLY WILLIAMS,

Plaintiffs,

v.

FOOD LION, INCORPORATED,

Defendant-Appellee.

In Re: FOOD LION, INCORPORATED, FAIR

LABOR STANDARDS ACT "EFFECTIVE

SCHEDULING" LITIGATION

RICKIE PRINGLE; CARLOS BRYANT;

BRUCE A. CLARK; STEVEN HARVEY,

Plaintiffs-Appellants,

and

No. 97-1443

RICHARD BISHOP; RONNIE HAWKINS;

QUENTIN SMALLS; LARRY BARNER;

RAYMOND BECKHAM; DAVID BENFIELD;

LARRY BLAND; WENDELL BROWN;

RONALD FELDER; KEN GALLMAN;

JONATHAN JOY; HENRY LONG; HOMER

MEANS; MELVIN MONTGOMERY; LARRY

PURVIS; S. JIM ROBISON; ANTHONY

 2
SCOTT; DELORES SNELGROVE; JACK

WEATHERFORD, JR.; CLYDE ASH, III;

HEIDI BLECKLEY; JAMES "JIM" CRIBB;

MAX HERRON; RICCI HOSKINS; KATHLEEN

WEATHERSBY; ROBERT WILLETT, JR.;

ROBERT BECKHAM; JIMMIE BLACKBURN;

BRENDA BYRD; KENNETH CAPPS; LESLIE

CLIFTON, III; HERMAN CURRENCE, III;

DARREN DIEDRICH; DELORES EDWARDS;

ERNEST EVANS; KENNETH GADDIST, JR.;

BARRY HANNA; PATRICK J. KARLE, JR.;

DAVID MCAULEY; DON MCCLARY;

JAMES MCMANUS; ANTHONY MEFFORD;

STUART MOKOWSKI; MICHAEL PRICE;

ROBERT RAND; KENNETH REDMON;

HAROLD RIDGEWAY; EDWARD ROBL;

JAMES SCOTT; MITCHELL SHEPARD;

BOOKER SMITH; CHERYL SMITH;

THURSTON SMITH; DONNA K. SPIVEY;

JOE C. SPIVEY; STEVEN SWANN;

CHARLES TAYLOR; NOEL N. THOMPSON;

BRETT TURNER; JOHN UPDIKE; JACKIE

WELCH; HAROLD H. WILSON, JR.;

HERBERT WRIGHT, JR.; TYRONE WRIGHT;

VICTOR YOUNG, III; JOHN G. RICE;

STEVEN B. SCOTT; JERRY W.

MACKELDON; DORIS JEAN HARRIS;

WILLIE JOE REDMOND; DARREN L.

JONES; JOHNNY R. ADAMS; THOMAS C.

ENGLISH, JR.; LLOYD S. MESSINA;

JAMES ALBERT ASHLEY; BOBBIE RAY

WEED; DAVID L. JOHNSON; WILLIAM J.

GOFF; WILLIAM A. CARTER; RANDY K.

BENTON; MARY B. JORDAN; RONALD E.

CARRIGG; RICHARD ALAN BISHOP;

GATLIN CLIFTON CRIBB; JULIAN M.

RAMSUE; THADDIEUS J. DULEY;

 3
ROBERT JOHN EDWARDS; JAY CORBETT;

GEORGIA LYNCH; JAMES HOGUE,

Plaintiffs,

v.

FOOD LION, INCORPORATED,

Defendant-Appellee.

In Re: FOOD LION, INCORPORATED, FAIR

LABOR STANDARDS ACT "EFFECTIVE

SCHEDULING" LITIGATION

JOHN GORE; WAYNE LOSCO; ALAN

O'NEAL; ALLAN SEIDL,

Plaintiffs-Appellants,

and

KERRY BUSHER; DOROTHY KAELIN;

JAMES HALL; JACOB HENDERON; MERRY

BURDEN; WILLIAM COLLINS; JOSEPH

No. 97-1444

FENDICK; STEPHEN JANOSICK; ARNOLD

LIVERMAN; JOHN O'LOUGHLIN;

RONALD J. ROLLO; HENRY WAYNE

CUMBESS; DAVID LECLAIRE; BRUCE

USERY; JOHN TIMMONS; ERNEST RAY

KING; DWAYNE KING; CHARLIE BOYD;

MARGIE HOLDEN; JOHN CUMBESS;

BARNEY RICK SMITH; KIMBERLY

LANTRIP; RICKY BEARD; ROY AUSTIN;

LOIS M. FOSTER; KELLY FROESE;

STEPHEN LENNON,

Plaintiffs,

 4
v.

FOOD LION, INCORPORATED,

Defendant-Appellee.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, District Judge.

(CA-91-133-4-F, MISC-92-198-5-F, CA-92-827-5-F,

CA-92-717-5-F)

In Re: FOOD LION, INCORPORATED, FAIR

LABOR STANDARDS ACT "EFFECTIVE

SCHEDULING" LITIGATION

DONALD T. LEDFORD; J. MICHAEL

OAKES, MICHAEL CARDOZA; R. CHUCK

VILLARREAL, JR.; ROY SARTER; LARRY

WORLEY; TOMMY ARRINGTON; BILLY

BAKER; CHERYL BORN; DANNY BUCKNER;

ROBERT CALLOWAY; DONA CATLIN; KIM

CAUDILL; JOSEPH COCKERHAM; MICHAEL

No. 94-2645

COFFEY; FELECIA COLEMAN; ROBERT

DALY; JAMES DARROW; CHRISTOPHER

DUNHAM; RHONDA DUPREE; ROBERT

DYER; FRANK EASON; RHONDA ENGLAND;

PAUL ERB; RICHARD FAWLKES; CHRIS

FRENCH; RICHARD P. HENSLEY;

ROGER ALLEN HILL; RICKEY HINSON;

TERRY HORTON; PATRICIA HOYLE;

CHRISTOPHER JOLLY; ALECIA JONES;

WILLIAM JOYCE; WELDON JUNGE; MONTY

LEE; PAUL LUCAS; SCOTT MATTOX;

 5
KEVIN O'BRIANT; GARY O'NEAL; KIM

PAIVA; VICTOR PRONIER; RUSSELL

RAMSEY; JOE REED; ELVA JEAN RILEY;

SAMUEL SHERRIN; MARLIN SHUFORD;

RONALD STURGILL; JOSEPH SULTON; RICK

TRAVIS; LESLIE TUCKER; DEREK WHITE;

WARREN WHITE; TERRY WHITMIRE;

GARY WOODS; BURNELL G. WRIGHT,

Plaintiffs-Appellants,

v.

FOOD LION, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

James C. Fox, District Judge, sitting by designation;

J. Toliver Davis, Magistrate Judge.

(CA-91-184, MISC-92-198-5-F, CA-92-185-5-F)

In Re: FOOD LION, INCORPORATED, FAIR

LABOR STANDARDS ACT "EFFECTIVE

SCHEDULING" LITIGATION

C. MARSHALL HOLLAND, JR.;

CHARLES LEE SMITH;

WALTER CRAWFORD THOMAS, JR.;

No. 95-1274

WILLIAM BRIAN BAREFOOT; TONYA Y.

BROWN; ROSA BOND; EARNEST A.

BRYANT; WAYNE JAY COCHRAN;

WILLIAM A. COOKE; JEFFREY J.

GOERMAN; KEITH HARRIS; CHARLES S.

KNOWLES; FAYE LEE; JOHN M. LYNCH;

VERNON W. MENIFEE; BRUCE E. POPE;

 6
BOBBY A. ROBERTSON; WARREN D.

ROMAN; KEITH W. TINGEN; HASKELL

TURNER,

Plaintiffs-Appellants,

and

DARRYL ELLIS; DEBBIE GARDNER; ERIN

RICE; KENNETH W. COOPER; ALAN E.

ERETT; DANNY LEEANDER PERSON;

JOE WILLIAM BAKER; PETER M. SLOKA,

SR.; JOHNNY ANDREW PUNCH, III;

ESTER M. WOODS; FRED MCMILLAN;

ISSAC RAY PACK; ALEXANDER J. SMITH;

STEVE J. KIRSCH; MARILYN S. WILSON;

VICKI ANN WOOD; PHILLIP LARRY

OLDHAM; TERRY A. YOUNG;

RICHARD W. MCDONALD; MICHAEL

WRENN; STEPHEN G. PARRISH;

RANDALL LEE RIGSBEE; DELORES EARP;

WILLIAM P. HASKINS; W. EDWARD

CAMPBELL; JOHN L. WALLACE;

CRAIG WILSON PRESSLEY; STAN M.

GRIFFIN; MARY PEEPLES; DAVID G.

MYERS; RANDY LAKE;

KENNETH RANDALL COOPER;

WOODROW WILLIAMS, JR.; ERIN RICE

ALBRIGHT; LEISHA BAYNARD; STEPHAN

PARRISH,

Plaintiffs,

v.

FOOD LION, INCORPORATED,

Defendant-Appellee.

 7
Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

N. Carlton Tilley, Jr., District Judge;

James C. Fox, District Judge, sitting by designation.

(MISC-92-198-5-F, CA-92-503-2)

Argued: January 30, 1998

Decided: June 4, 1998

Before WILKINSON, Chief Judge, BUTZNER,

Senior Circuit Judge, and MICHAEL,

Senior United States District Judge for the

Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Senior Judge Butzner

wrote a concurring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey Todd Eddy, NESS, MOTLEY, LOADHOLDT,

RICHARDSON & POOLE, Charleston, South Carolina, for Appellants. William Pinkney Herbert Cary, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North

Carolina, for Appellee. ON BRIEF: John C. Davis, Kent Spriggs,

SPRIGGS & JOHNSON, Tallahassee, Florida, for Appellants. James

T. Williams, Jr., M. Daniel McGinn, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

 8
OPINION

PER CURIAM:

In this case we consider appeals from the district court's grant of

partial summary judgment in favor of an employer and dismissal of

the consolidated Fair Labor Standards Act overtime pay claims of

numerous of the employer's salaried and hourly wage employees. For

the reasons stated herein, we affirm the district court.

I.

In a previous opinion, In re Food Lion, Inc., Fair Labor Standards

Act "Effective Scheduling" Litigation, 73 F.3d 528 (4th Cir. 1996)

(published) (Hall, J.) (Butzner, J., dissenting), we recited the factual

and procedural background of this case. This second narration is

taken, almost verbatim, from our earlier opinion.

Beginning in 1991, several small groups of employees and former

employees of Food Lion, Inc. ("Food Lion"), filed civil actions in

Federal courts in a number of southern States in which Food Lion

owns and operates grocery stores. In each of these actions, the plaintiffs asserted claims for unpaid overtime and penalties under the Fair

Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Hourly

employees alleged that they were forced to work"off the clock" in

order to finish the tasks for which they were responsible under Food

Lion's company-wide scheduling system, and several assistant managers claimed that they were not exempt from FLSA's overtime provisions because the tasks they performed did not qualify as

"managerial."

On June 13, 1992, the Judicial Panel on Multidistrict Litigation

("JPML" or "Panel") issued an order transferring two of these actions,

one from the District of South Carolina (Scott ) and the other from the

Western District of North Carolina (Ledford), to the Eastern District

of North Carolina for "coordinated or consolidated pretrial

proceedings"1 with another action then pending there (McLawhon); all

_________________________________________________________________

1 28 U.S.C. § 1407(a).

 9
of the cases assigned to Judge Fox. The Panel thereafter transferred

six tag-along cases2 over the next five months. Judge Fox eventually

had eleven separate actions before him.3 

In October 1992, court-approved notices were sent to some 60,000

current and former Food Lion employees who had worked in stores

in North Carolina, South Carolina, Florida, Georgia, Virginia, or Tennessee after October 16, 1989.4 Almost one thousand of these

employees (including the named plaintiffs in the eleven separate

actions) opted into the litigation by returning"consent forms," and

each employee returning a consent form was assigned a "court number." A master file was created in a consolidated case denominated In

re: Food Lion, Inc., Fair Labor Standards Act "Effective Scheduling"

Litigation, and each "opt-in" plaintiff was assigned to one of the individual cases.

In a series of pretrial orders, Judge Fox dismissed the claims of

about half of the plaintiffs on summary judgment. On March 22,

1994, a "suggestion of remand"5 was filed by the district court and

forwarded to the Panel. On June 2, 1994, the Panel remanded eight

of the actions to their respective transferor courts.6

After remand, one of the two cases remaining in the Eastern District of North Carolina was completed, and an appeal was taken by a

number of the plaintiffs whose claims had been dismissed by summary judgment during the consolidated pretrial proceedings (the

_________________________________________________________________

2 See R.Proc.J.P.M.L. 1.

3 In addition to two cases filed in his district, Judge Fox had before him

a case from each of the other two districts in North Carolina, three from

South Carolina, one from the Eastern District of Virginia, two from the

Eastern District of Tennessee, and one from the Northern District of

Florida. Although the Virginia case arrived in Judge Fox's court via a

transfer of venue entered by the district court in Virginia pursuant to 28

U.S.C. § 1404(a), it was consolidated with the other transferred cases for

pretrial matters and treated as if it were a § 1407 case.

4 The limitations period for filing overtime claims is three years for

willful violations by an employer. 29 U.S.C. § 255(a).

5 See R.Proc.J.P.M.L. 14(c)(ii).

6 The Virginia case was retransferred by an order entered by Judge Fox.

 10
Royster appeal). At about the same time, some of the plaintiffs who

had met a similar fate in Judge Fox's court, but who were part of

cases from one of the two other districts in North Carolina, asked for

and received Fed.R.Civ.P. 54(b) certifications for immediate appeal

from the respective transferor district courts. These two appeals were

consolidated with the Royster appeal, and we heard oral argument on

October 30, 1995.

In our published opinion thereafter, we declined to reach the merits

reasoning:

Because there are numerous other plaintiffs who have not

yet appealed but who were dismissed by the same district

court on essentially the same grounds as one or more of the

appellants, we believe that 28 U.S.C. § 1407, the multidistrict litigation statute, requires that the other dismissed

plaintiffs have the opportunity to join in the appeals before

us.

In re Food Lion, Inc., Fair Labor Standards Act"Effective Scheduling" Litigation, 73 F.3d at 530. Accordingly, we first held in abeyance

the then-pending appeals from the three North Carolina districts. Second, we directed the Panel to retransfer from the District of South

Carolina, the Northern District of Florida, and the Eastern District of

Tennessee to the Eastern District of North Carolina those claims that

were dismissed by Judge Fox prior to the June 20, 1994 remand by

the Panel. Finally, we ordered the district court for the Eastern District of North Carolina, after retransfer, to enter final judgment as to

all such claims, pursuant to Fed.R.Civ.P. 54(b) and to allow any

appeals taken pursuant to such certifications to be heard in this court.

Id. at 533.

After our remand and the entry of final judgments by the Eastern

District of North Carolina in March 1997, seventy-one plaintiffs from

two cases originally filed in the District of South Carolina and eight

plaintiffs from the case originally filed in the Northern District of

Florida took appeals which were consolidated with the earlier Royster

appellants by Order of this court on April 22, 1997. We now reach

the merits of all appeals.

 11
II. THE FAIR LABOR STANDARDS ACT

Section 7(a)(1) of the FLSA, 29 U.S.C. § 207(a)(1), requires

employers to pay employees time-and-a-half wages for hours worked

over forty (40) hours per week. As the statute reads:

Except as otherwise provided in this section, no employer

shall employ any of his employees who in any workweek is

engaged in commerce or in the production of goods for

commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a

workweek longer than forty hours unless such employee

receives compensation for his employment in excess of the

hours above specified at a rate not less than one and onehalf times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1) (West 1965 & Supp. 1997).

The plaintiffs' class alleged dual claims under the FLSA against

Food Lion. First, certain salaried assistant managers of the employer

charged that they were not exempt from the overtime pay provisions

of the FLSA by virtue either of their salaried or managerial status and,

second, certain hourly employees alleged that they worked "off the

clock" and, thereby, were entitled to overtime compensation under the

statute.

A. The Bona Fide Executive Exemption

The court below entered partial summary judgment against numerous salaried assistant managers at Food Lion by Orders of October 27,

1993 and November 5, 1993.

Under the FLSA, certain categories of employment are exempt

from the statute's otherwise mandatory overtime provision. One such

exemption, the "bona fide executive" exemption, provides:

The provisions of section 206 . . . and section 207 of this

title shall not apply with respect to . . . any employee

employed in a bona fide executive, administrative, or pro-

 12
fessional capacity . . . (as such terms are defined and delimited from time to time by regulations of the Secretary. . . .)

29 U.S.C. § 213(a)(1) (West 1965 & Supp. 1997). Department of

Labor regulations carefully define that which constitutes employment

in an executive or administrative capacity. Two elements are required

for that exemption. First, an employee must be paid"on a salary

basis." 29 C.F.R. §§ 541.1(f), 541.2(e), 541.118(a) (1997). The regulations define payment "on a salary basis" as follows:

An employee will be considered to be paid "on a salary

basis" within the meaning of the regulations if under his

employment agreement he regularly receives each pay

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

amount constituting all or part of his compensation, which

amount is not subject to reduction because of variations in

the quality or quantity of work performed. . . . [T]he

employee must receive his full salary for any week in which

he performs any work without regard to the number of days

or hours worked. This policy is also subject to the general

rule that an employee need not be paid for any workweek

in which he performs no work.

29 C.F.R. § 541.118(a) (1997). Second, an employee's primary duty

must be either management, administration, or a combination of both.

Id. §§ 541.1(f), 541.2(e), 541.600(a) (1997).

The regulations provide a "short test" and a"long test" for determining whether an employee's primary duty is management. See

Shockley v. City of Newport News, 997 F.2d 18, 25 (4th Cir. 1993);

Murray v. Stuckey's, Inc., 939 F.2d 614, 617 (8th Cir. 1991), cert.

denied, 502 U.S. 1073 (1992). The "short test" applies when the

employee in question makes more than $250 per week. 7 Under this

test:

_________________________________________________________________

7 The court below found and the parties agreed that all of the assistant

managers made more than $250 per week. Thus, the"long test" for the

bona fide executive exemption of 29 C.F.R. § 541.1(a)-(e) is inapplicable

here. Rather, the "short test" of § 29 C.F.R. 541.1(f) governs the inquiry.

 13
[A]ny employee . . . [w]ho is compensated for his services

on a salary basis at a rate of not less than . . . $250 per week

. . . and whose primary duty consists of the management of

the enterprise in which the employee is employed or of a

customarily recognized department or subdivision thereof,

and includes the customary and regular direction of the

work of two or more other employees therein, shall be

deemed to meet all the requirements of [the 29 U.S.C.

§ 213(a)(1) exemption].

29 C.F.R. § 541 (1997). As we have instructed previously:

Analysis of whether an employee's primary duty is management begins with determining which of the employee's

duties involve management of a recognized department or

subdivision of the employer. As a "rule of thumb," the

employee must devote more than fifty percent of his time to

these duties. . . . Other pertinent factors, however, may indicate that management is the employee's primary duty.

Among the factors to be considered are: (1) the relative

importance of the managerial duties as compared with other

types of duties, (2) the frequency with which the employee

exercises discretionary powers, (3) the employee's relative

freedom from supervision, and (4) the relationship between

the employee's salary and the wages paid other employees

for the kind of nonexempt work performed by the supervisor.

Shockley, supra, 997 F.2d at 25-26 (citing 29 C.F.R. § 541.103

(1992)).

Whether management duties constitute a primary job duty is determined on a case-by-case basis. 29 C.F.R. § 541.103 (1997). While

"[t]he amount of time spent in the performance of the managerial

duties is a useful guide in determining whether management is the

primary duty of an employee[,] . . .[t]ime alone, however, is not the

sole test, and in situations where the employee does not spend over

50 percent of his time in managerial duties, he might nevertheless

have management as his primary duty if the other pertinent factors

support such a conclusion." Id.; Murray, supra, 939 F.2d at 618

 14
(holding that time alone is not the sole test in determining whether the

primary duties of an employee were "management" and upholding

exemption even where employee spent a majority of time performing

non-exempt8 work). The quantitative fifty percent rule, in other

words, is, as the regulations state, only a "rule of thumb." 29 C.F.R.

§ 541.103 (1997).

Because Food Lion raised the bona fide executive exemption as an

affirmative defense to the assistant managers' FLSA claims, it had the

burden of proof on that issue. Clark v. J.M. Benson Co., 789 F.2d

282, 286 (4th Cir. 1986).9

B. Standards of Review

Whether a job duty qualifies as managerial or not is a legal question "`governed by the pertinent regulations promulgated by the Wage

and Hour Administrator.'" Shockley, supra, 997 F.2d at 26 (quoting

Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)). On

the other hand, "the amount of time devoted to managerial duties, and

the significance of those duties, present factual questions that we

review for clear error." Id. (citing Fed.R.Civ.P. 52(a)) (other citations

omitted).

C. Assistant Managers' Claims

Food Lion moved for summary judgment on the ground that each

of the assistant managers met the bona fide executive exemption. In

support of the summary judgment motion, Food Lion offered the affidavit of the Vice-President of Grocery Operations, Charles C. Buckley, and the store's assistant manager job description from the "Store

Operations Manual."10 In addition, the store offered individual assis-

_________________________________________________________________

8 "Non-exempt work" is work other than that which employees with

management duties perform; it is performed by hourly employees who

are not exempt from the overtime pay provisions of the FLSA. 29 C.F.R.

§ 541.111 (1997).

9 Under the FLSA, an employer must prove that any exemption to the

overtime provision applies. Proving the exemption is an affirmative

defense; the statute assumes that an employee is covered.

10 The Food Lion manual reads, in pertinent part:

JOB DESCRIPTION: ASSISTANT MANAGER

 15
tant managers' depositions which showed that the job tasks they actually performed were consistent with the affidavit and job description.

According to Buckley's affidavit and the manual's job description,

assistant managers in each Food Lion store are primarily responsible

for the operation of the Grocery Department, a division of the store.

The Grocery Department accounts for some sixty-five percent of sales

floor space in the typical store and oversees the sale of all Food Lion

merchandise with the exceptions of produce, dairy, meat, frozen

foods, and delicatessen products. An assistant manager supervises a

Grocery Department manager, one or more full-time shelf "stockers,"

and numerous part-time stockers. A full-time stocker's maximum

weekly pay is eighty percent of an assistant manager's minimum

weekly salary. Among other duties, an assistant manager's duties

include hiring and training stockers, training the Grocery Department

manager, and evaluating the performance of other Grocery Department employees. In the absence of a Food Lion store's manager, the

assistant manager is primarily responsible for overseeing the entire

store. The typical assistant manager works about half of the time

under such circumstances when the manager is absent. From 1986 to

1993, the lowest range for all the Food Lion assistant managers'

weekly salary was $390 per week. In addition to the Buckley affidavit

and job description, Food Lion also adduced evidence from individual

stores' assistant managers to show that their particular job duties were

consistent with those of the assistant manager position so described

in the affidavit and Food Lion manual.

The district court found that Food Lion met its initial burden of

producing evidence that the assistant managers met the managerial

_________________________________________________________________

JOB OBJECTIVE: To assist the Store Manager to see that the

Company customer service standards are met and to manage the

total store in compliance with the policies, standards, security

measures, and regulations of the Company.

AUTHORITY: Responsible for the total store in the absence of

the Store Manager. Directly responsible for supervision and

management of the Grocery Manager, the Scan Analyst, and

HBA Clerk.

 16
exemption to the FLSA. The court also denied the assistant managers'

motion to strike the Buckley affidavit. The crux of these appeals by

the assistant managers, then, is whether in adducing the Buckley affidavit and job description, Food Lion failed to offer proof that each

individual assistant manager primarily performed actual managerial

work consistent with the 29 U.S.C. § 213(a)(1) exemption. Related to

this issue is the question of whether the court abused its discretion

when it refused to strike the Buckley affidavit. We address the issues

in reverse order.

1. Motion to Strike Affidavit

A district court's evidentiary rulings, including whether to strike an

affidavit, are reviewed for abuse of discretion. Evans v. Technologies

Applications & Service Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing

United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993), cert.

denied, 511 U.S. 1006 (1994)). Appellants argue that the affidavit

purports to state job duties of Food Lion assistant managers about

which the affiant lacked "personal knowledge," as required by

Fed.R.Civ.P. 56(e).11

As we stated in Evans, affidavits which accompany a summary

judgment motion must contain "admissible evidence and be based on

personal knowledge." Id. (citing Williams v. Griffin, 952 F.2d 820,

823 (4th Cir. 1991)). They must not be conclusory or based upon

hearsay. Id. (citing Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970,

975 (4th Cir. 1990); Maryland Highways Contractors Ass'n v.

Maryland, 933 F.2d 1246, 1252 (4th Cir.), cert. denied, 502 U.S. 939

(1991)). In Evans, we affirmed the district court's decision to strike

portions of an affidavit filed in opposition to a summary judgment

motion in a sex and age employment discrimination case because:

_________________________________________________________________

11 Rule 56(e) reads, in pertinent part:

Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Fed.R.Civ.P. 56(e) (West 1998).

 17
Several of the portions struck consisted of [the affiant's]

own unsupported assertions of . . . the abilities of her colleagues. Because, again, we generally consider self-serving

opinions without objective corroboration not significantly

probative, the decision to strike . . . was not improper.

Id. We stated further that "[t]he district court determined that [the

affiant], a low-level employee" would not have had access to the corporate information about which she testified and, appropriately, struck

portions of her affidavit. Id. at 262 n.6.

Here, Vice-President Buckley, a high-level Food Lion employee,

had directly supervised the assistant managers for seven years at the

time he testified in specific detail in the affidavit about their job

duties. As well, the information about which he testified was corroborated in the Food Lion manual's assistant manager job description.

The Buckley affidavit met the requirements of Rule 56(e) in that it

was not conclusory, did not contradict the affiant's earlier sworn testimony, and set forth specific facts of which the affiant had personal

knowledge, rather than mere generalities. See, e.g., Barwick v.

Celotex Corp., 736 F.2d 946, 960-61 (4th Cir. 1984). Because we

cannot find that the district court abused its discretion when it found

that the information recited in Buckley's affidavit derived from personal knowledge, we affirm the district court's Order of October 27,

1993 refusing to strike the affidavit.

2. The "Class Exemption"

Appellants assert that with the Buckley affidavit and job description, Food Lion only offered evidence of the job duties of a "hypothetical" assistant manager. The assistant managers maintain that an

employer invoking the exemption from the overtime pay provisions

of the FLSA must come forward with evidence that each employee

actually performs exempt executive or managerial work, as claimed.

In support of the proposition that classwide exemptions12 are not per-

_________________________________________________________________

12 A "classwide exemption" exempts, in blanket-like fashion, an

employee of a particular job classification from the FLSA's overtime pay

provisions because of that employee's job's classification or title, irrespective of the facts of that employee's individual case.

 18
missible under the FLSA, appellants cite Hodgson v. The Klages Coal

and Ice Co., 435 F.2d 377, 382 (6th Cir. 1970) ("An employer seeking an exemption from the overtime requirements of the Act under 29

U.S.C. § 213(a)(1) must prove that each employee is entitled to the

exemption by plain and unmistakable evidence.") (citation omitted),

Mitchell v. Williams, 420 F.2d 67, 69 (8th Cir. 1969) ("[T]he

employer must prove that any particular employee meets every

requirement before the employee will be deprived of the protection of

the Act.") (citation omitted), and Brock v. Norman's Country Market,

Inc., 835 F.2d 823, 826 (11th Cir. 1988). Appellants argue that Food

Lion, by not offering evidence as to every individual assistant manager's actual work duties, effectively sought and received a "class

exemption" for all assistant managers.

On this point, the appellants overlook two critical distinctions

between the valid authority they cite and the instant matter. First, in

addition to the Buckley affidavit and job description, here Food Lion

did offer particularized evidence in the form of numerous assistant

managers' depositions relating to their actual individual job duties, in

support of its summary judgment motions. Second, it must be remembered that here appellants were proceeding collectively under the

FLSA, 29 U.S.C. § 216(b), and, as such, had been determined to be

"similarly situated" factually by the district court. Considering that the

instant matter was an FLSA class action, the authority cited by appellants is distinguishable as no such case involved an FLSA collective

proceeding. By offering the affidavit, the job description, and individual assistant managers' deposition testimony, we hold that Food Lion,

not only met but exceeded its initial burden to come forth with evidence that appellants fell within the bona fide executive exemption.

Such a holding is consistent with FLSA caselaw appellants invoke

concerning non-collective actions. In a case with a fact pattern similar

to the instant case's, an employer was deemed to have met its initial

burden of producing evidence in support of the exemption by adducing only an affidavit from its vice-president articulating the general

duties of its associate managers without a more particularized showing at that early stage. Dole v. Papa Gino's of America, Inc., 712

F.Supp. 1038, 1040 (D.Mass. 1989).13

_________________________________________________________________

13 Additional proof that Food Lion did not seek a classwide exemption

is the fact that it did not move to dismiss every assistant manager claim.

See, e.g., Ronald Rollo, a Florida plaintiff. Rather, it acknowledged that

factual differences existed across the assistant managers' class.

 19
Once Food Lion satisfied its initial burden to present evidence that

the assistant managers met the bona fide executive exemption, the

burden shifted to the assistant managers to offer evidence that they

were not exempt from the act. Similar to Food Lion's evidence, the

assistant managers made a "consolidated response" that included representative affidavits from some, but not all, assistant managers. The

responsive affidavits stated that appellants remained covered under

the act, notwithstanding the exemption, because they performed manual labor and other non-exempt duties and because the store manager

was usually in the store and in charge when they were working.

The district court found that numerous of the post-notice assistant

managers among the appellants had met their burden by presenting at

least some evidence that their actual job duties varied from those

recited in the Buckley affidavit and the manual's job description.14

For this reason, the court denied Food Lion's summary judgment

motion as to those assistant managers. The court, however, entered

summary judgment against the remaining assistant managers because

they did not rebut Food Lion's evidence and, thus, created no triable

issue of fact as to the duties of those assistant managers.

Appellants correctly state that the issue of "[w]hether employees

are exempt from the requirements of the [FLSA] is primarily a question of fact." Klages Coal, supra, 435 F.2d at 382. While this is true,

the assistant who failed to attempt to rebut Buckley's affidavit and the

Food Lion manual's assistant manager job description did not create

a genuine issue of fact to survive summary judgment and send their

claims to a jury. Accordingly, the district court properly granted Food

Lion judgment as a matter of law and dismissed the claims of those

assistant managers who did not adduce any evidence to counter Food

Lion's evidence that appellants met the bona fide executive exemption.

_________________________________________________________________

14 These assistant managers used individual questionnaires, deposition

testimony, and affidavits to counter Food Lion's evidence about the

duties of assistant managers. The district court denied Food Lion's

motion for summary judgment as to these appellants because they came

forward with particularized evidence tending to rebut the Buckley affidavit and job description.

 20
3. The Evidence of Managerial Duties

Assistant managers Rickie Pringle and Allan Seidl, Busher appellants, did file responses to Food Lion's summary judgment motion.

They challenge the district court's grant of judgment as a matter of

law against them. They contend that they did not have primarily managerial responsibilities at Food Lion and, thus, fell outside of the bona

fide executive exemption.

In his deposition, however, Pringle himself testified that he, along

with the store manager, was in charge of Food Lion's"effective

scheduling" program in the grocery department. He testified that during about one-half of his working hours, he was in charge of the store

without the store manager. During those periods, he would handle

customer complaints, supervise the stockers, "keep an eye on the grocery department," and recommend disciplinary actions. While Pringle

also typically performed non-exempt work during these same periods

when he was in charge of the store in the store manager's absence,

he did both the non-exempt work and the managerial work at the

same time.

Assistant manager Seidl also filed a declaration as part of the

appellants' consolidated response to Food Lion's summary judgment

motion. In it, he states that only five percent of his time was devoted

to managerial duties. Looking to the duties themselves, however, he

admits that he listened to employee complaints, verified deposits,

interviewed job candidates, wrote up employees for disciplinary problems, and supervised employees' work. Seidl states, however, that the

grocery manager and customer service manager also would be able to

perform such duties.

The evidence presented in the cases of the Royster appellants was

of a similar nature. When asked how often he worked in the store

without the manager, for example, assistant manager Oakes testified

that "most of the time we were there together." Oakes apparently

worked some fifty-eight hours per week. The store had three shifts,

and the manager came in on the three "truck days" per week at five

to six a.m. On those days, Oakes would close the store at ten p.m. and

work another few hours setting up displays (which itself is nonexempt work). The two employees, then, overlapped only an hour or

 21
two in the middle afternoon. Because one or the other employee had

to cover some 126 hours per week, the two could not have worked

together "most of the time." In any event, when Oakes was at the store

in the absence of the store manager, he clearly was in charge and performing the store's "managerial duties" as that term is defined in the

employer's regulations. Oakes kept an eye on his store's various

departments, made sure people were working, and disciplined

employees from time to time.

In assistant manager Junge's case, for instance, he testified in deposition that his and the store manager's work schedules overlapped

approximately six hours a day, five days a week, from noon until six

pm. In other words, given that Junge worked about sixty-five hours

per week, for about half the work week Junge was in complete

charge. Importantly, in terms of his managerial duties, he testified that

his actual job duties were the same as those of a typical assistant

described in the Food Lion manual. Junge dealt with customer complaints, gave constructive advice to other employees, and, in the

absence of the manager, was in charge of the store.

The evidence as to the other Royster appellants, White, Lucas, Holland, Smith, Erb, and Pronier, was materially similar. Each appellant

was in charge of the store in the absence of the store manager every

working week. Each appellant supervised the work of other employees while on duty. While in charge of the store, each appellant handled complaints and problems in the store as they arose. Each

appellant possessed authority to discipline co-workers and make

employment decisions as to them.

Looking to the depositions of the various assistant managers, while

the individual assistant managers' actual duties differed somewhat

throughout the various stores, all were in charge to varying degrees

and for varying periods when the managers were absent. The appellants were in sole command of the stores in which they worked about

half the time. Although time is not the sole factor, of course, it is relevant to the determination that the appellants meet the managerial

exemption to the FLSA's overtime provisions. Shockley, supra, 997

F.2d at 25-26; 29 C.F.R. § 541.103. The appellants all supervised

stockers and Grocery Department personnel. While appellant Seidl

counters that only five percent of his time was devoted to managerial

 22
duties, he does not dispute that he periodically did supervise stockers

and other personnel. In the seminal FLSA case involving assistant

managers at a fast-food restaurant, the First Circuit stated, "The

supervision of other employees is clearly a management duty."

Donovan v. Burger King Corp. ("Burger King I"), 672 F.2d 221, 226

(1st Cir. 1982). As to Seidl's argument that his time spent in managerial tasks fell short of the "fifty percent" rule, that rule, again, is only

a "rule of thumb." Shockley, supra, 997 F.2d at 26. An employee can

be subject to the bona fide executive exemption "even though he

spends the majority of his time on non-exempt work and makes few

significant decisions. Burger King I at 226-27 (citing Rau v. Darling's

Drug Store, Inc., 388 F.Supp. 877, 881 (W.D.Pa. 1975)) (other citations omitted).

To be sure, the assistant managers periodically performed some

non-exempt duties such as stocking the shelves and unloading grocery

trucks. The fact that an employee executes both managerial and nonexempt work tasks normally undertaken by hourly employees, however, does not preclude his qualifying for the bona fide executive

exemption. Donovan v. Burger King Corp. (Burger King II), 675 F.2d

516 (2d Cir. 1982) (holding that fast-food restaurant's assistant managers were exempt under the bona fide exemption's short test despite

large amount of non-exempt work performed). Conversely, appellants

claim that their managerial responsibilities sometimes were performed by non-exempt hourly employees. This contention is of no

moment because "the regulations do not provide . . . that an employee

whose primary duty is managerial will not qualify for exempt executive status because other, non-supervisory employees are able to and

sometimes do perform his or her managerial duties." Stuckey's, supra,

939 F.2d at 618 n.2. Finally, the assistant managers argue that during

the time that the store manager was absent, the assistant manager in

charge was merely a glorified stocker with the store manager available by telephone to make important decisions that might arise. On

this point, the Second Circuit has held that when the record shows

"that for the great bulk of their working time,[a]ssistant [m]anagers

are solely in charge of their restaurants and are the `boss' in title and

in fact[,] . . . [t]hat the . . . manager is available by phone does not

detract in any substantial way from this conclusion." Burger King II,

supra, 675 F.2d at 522.

 23
For the reasons stated and after careful review of the record and the

applicable law, we conclude that the actual job duties of the appellant

assistant managers were primarily managerial. The district court properly granted summary judgment against them on their FLSA overtime

claims.

III. CASE MANAGEMENT DISMISSALS

The hourly employees of Food Lion appeal certain of the district

court's case management decisions resulting in dismissals of their

claims. In a class action, review of a district court's dismissals for

case management reasons is for abuse of discretion. See, e.g., Central

Wesleyan College v. W.R. Grace & Co., 6 F.3d 177, 185 (4th Cir.

1993) ("Issues of class action manageability are properly committed

to the district court's discretion, because that court `generally has a

greater familiarity and expertise' with the `practical . . . and primarily

. . . factual' problems of administering a lawsuit `than does the court

of appeals.'") (quoting Windham v. American Brands, Inc., 565 F.2d

59, 65 (4th Cir. 1977) (en banc) (other citation omitted). With respect

to multi-district litigation, as here, we have instructed, "a district court

needs to have broad discretion in coordinating and administering

multi-district litigation." In re Showa Denko K.K.L-Tryptophan Products Liability Litig.-II, 953 F.2d 162, 165 (4th Cir. 1992).

A. Late Consents

The district court established a January 4, 1993 cutoff date for persons wishing to opt in to the "Effective Scheduling" litigation. Three

would-be plaintiffs, Royster, Murchinson, and Mattox, missed the

cutoff by several days and were dismissed. Appellants Gore, Losco,

O'Neal, and Seidl also failed to file consents by the appointed deadline.

Appellants' sole argument on appeal on this point is nothing more

than that the FLSA is remedial and should be stretched to allow in as

many such claims as possible. The prerogative of the district court to

manage its docket with timetables and deadlines, however, prevents

even remedial statutes from stretching to the breaking point. It cannot

be gainsaid that the district court was clear about its cut-off deadline.

On October 20, 1992, the district court, when it authorized the opt in

 24
notice, set a cut-off deadline for persons wishing to opt in on December 31, 1992 (later extended to January 4, 1993). The court stated that

late opt-in forms, absent a showing of "exceptional circumstances,"

would not be considered by the court and such persons sending tardy

forms would not be in the class. As the court simply stated, "whoever

gets in by the 31st of December is in. Whoever who's not in is not

in. That's the end of it." Transcript of October 16, 1992 conference

at 37.

Several appellants (Losco, O'Neal, and Seidl) later filed affidavits

attempting to establish "exceptional circumstances" as an excuse for

their untimely filed opt-in forms. Losco claimed that he mailed his

consent form on the appointed date; O'Neal stated that his father was

terminally ill when he received the opt-in form and that he mailed the

consent after his father died; and Seidl asserted that, after a period of

time spent out of town, he completed and mailed the form upon his

return. As far as Losco's having mailed his consent only on--not

before--the deadline, we have stated in another context that the "litigant who decides to rely on the vagaries of the mail must suffer the

consequences." Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d

530, 534 (4th Cir. 1996). With respect to the court's decision declining to find exceptional circumstances accounted for the other tardy

consents, we cannot say that the court abused its discretion. See, e.g.,

Hoffman-LaRouche, Inc. v. Sperling, 493 U.S. 165, 172 (1989) (holding that a district court is empowered to establish"cut off dates to

expedite disposition of the action."). To the extent to which appellants

additionally assert that the district court abused its discretion when it

dismissed, with prejudice, the claims of the tardy consent filers, sanctions in such a circumstance properly may include dismissal. See

Rabb v. Amatex Corp., 769 F.2d 996, 1000 (4th Cir. 1985).

B. Imperfect Questionnaires

In May 1993, the district court sent out questionnaires, approved

by plaintiffs and defendant, that it required each of the almost one

thousand pre-notice and post-notice plaintiffs to complete, notarize,

and mail to plaintiffs' counsel by June 11, 1993. Plaintiffs' counsel

was then required to pass the questionnaires on to Food Lion's attorneys by June 25, 1993. The court had approved use of the questionnaires in order to streamline discovery of post-notice plaintiffs,

 25
provide basic information about each plaintiff's claim, and, thereby,

to spur possible settlement negotiations. The court's order alerted the

plaintiffs that failure to comply with the above deadlines could result

in the dismissal, with prejudice, of the plaintiff's claim.

Many would-be plaintiffs missed the return deadline or sent in

incomplete forms (e.g., forms which lacked proper notarization) or

the wrong forms (e.g., in April 1993, plaintiffs' counsel had their clients fill out questionnaires for counsel's own use and many plaintiffs

wrongly mailed these forms). The district court gave each plaintiff

who failed to return a questionnaire or completed the wrong questionnaire an opportunity to show cause by August 2, 1993 why his form

was untimely or incomplete. Those plaintiffs who did show cause

were not dismissed. The district court found, however, that many

claimants did not proffer viable explanations, if any at all was proffered, and entered dismissal orders against them.

Three appellants, Harvey, Bryant, and Clark, failed to submit notarized questionnaires to plaintiffs' counsel by June 11, 1993, and failed

to complete and forward the questionnaires to Food Lion before the

June 25, 1993 deadline. As well, Bryant and Clark failed to submit

timely, properly sworn and notarized explanations in response to the

court's show cause order as to why they were late in the first instance.

While the three appellants' personal circumstances at the time may

explain the tardiness of their questionnaires and may entitle them to

some degree of sympathy,15 because we review the district court's rulings on this point for abuse of discretion, we do not find that the

appellants are entitled to legal relief. Given that this consolidated

action had almost one thousand claims in the beginning of proceedings, this court will afford the district court significant latitude in its

_________________________________________________________________

15 Harvey asserted that he was traveling at the time he received the

court questionnaire. He stated that although the questionnaire arrived at

his house in South Carolina and was forwarded to him by his wife in a

timely manner, he never received it. Nevertheless, even after he did

receive the questionnaire, he delayed three weeks before submitting it.

Clark stated that he traveled because of his job and was out of town for

seven days at the time the questionnaire arrived. Bryant asserted that he

had moved around the time the questionnaire was sent and that his mail

was not forwarded to him.

 26
handling of pretrial matters and in its case management directives.

The court acted within its discretion when it dismissed the claims of

the non-complying appellants. Rabb, supra, 769 F.2d at 1000 (holding that failure to comply with a discovery order warrants dismissal).

C. Statute of Limitations

The statute of limitations for an FLSA action claiming unpaid overtime compensation is two years, except that a cause of action arising

out of an alleged willful violation may be commenced within three

years after the cause of action accrued. 29 U.S.C.§ 255(a) (West

1985 & Supp. 1998). By Orders of October 18 and October 27, 1993,

the district court applied the three year statute of limitations period.

1. Post-Notice Hourly Employees

Five opt-in hourly employees wrote in their consents to join the

suit that their alleged uncompensated overtime work had occurred

more than three years earlier. The district court dismissed these five

employees' claims entirely on statute of limitations grounds.

Appellant Surles, for example, said in his consent, which he filed

in December 1992, that he last worked "off-the-clock" in February

1989. In his case, however, only his questionnaire--not his initial

consent form, his first "pleading,"--alleged unpaid overtime at any

time three years before the filing of his consent. This allegation in the

questionnaire alone is not enough to avoid the limitations bar when

his consent form alleged no unpaid overtime within the previous three

years. Accordingly, the court did not err in dismissing his claim.

The remaining opt-in plaintiffs were rightly found to have been

time-barred because they did not clearly allege when they worked

overtime without pay.16

_________________________________________________________________

16 Appellant Barnes quit in December 1990 and filed the consent in

December 1992. Appellant Pippa presented no evidence of having

worked overtime within the limitations period. Appellant Ramsey was

assistant manager within the limitations period and, thus, would have had

no viable off-the-clock claims. Appellant Williams' evidence did not

clearly state when he worked off-the-clock.

 27
2. Named Hourly Employee Plaintiffs

Again, causes of action under the FLSA have a three-year statute

of limitations period; claims for overtime cannot extend back past

three years. The district court began counting from the date when

each plaintiff filed his consent to opt in to the litigation. Included in

this ruling were six named plaintiffs in the original suit. Instead of

counting from the date the complaint was filed, the district court also

required them to file a consent within the limitations period. The six

named plaintiffs who failed to file timely consents now argue their

consents relate back pursuant to Fed. R. Civ. P. 15(b) to the date the

complaint was filed or, alternatively, that consents are not required of

named plaintiffs.

The precise wording of two sections of the FLSA indicates otherwise. As section 16(b) of the FLSA states, in relevant portion:

[An] action to recover [unpaid overtime] may be maintained

. . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.

No employee shall be a party plaintiff to any such action

unless he gives his consent in writing to become such a

party and such consent is filed in the court in which such

action is brought.

29 U.S.C. § 216(b) (West 1965) (emphasis added). As section 7 of the

Portal-to-Portal Act of 1947, 29 U.S.C. § 256, additionally states:

In determining when an action is commenced for the purposes of Section 255 of this title, an action . . . shall be considered to be commenced on the date when the complaint is

filed; except that in the case of a collective or class action

instituted under the Fair Labor Standards Act of 1938, as

amended, . . . it shall be considered to be commenced in the

case of any individual claimant--

(a) on the date when the complaint is filed, if he

is specifically named as a party plaintiff in the

complaint and his written consent to become a

 28
party plaintiff is filed on such date in the court in

which the action is brought; or

(b) if such written consent was not so filed or if

his name did not so appear--on the subsequent

date on which such written consent is filed in the

court in which the action was commenced.

29 U.S.C. § 256 (West 1985) (emphasis added).

Case authority has interpreted the statutory sections as requiring all

plaintiffs in a collective action under the FLSA to file written consents for statute of limitations purposes. "Until a plaintiff, even a

named plaintiff, has filed a written consent, []he has not joined in the

class action, at least for statute of limitations purposes." SonguMbriwa v. Davis Memorial Goodwill Indus., 144 F.R.D. 1, 2 (D.D.C.

1992) (citing and quoting 29 U.S.C. § 256(a)) (other citations omitted). Moreover, signed consents filed after the filing of the complaint

do not relate back to the date the complaint was filed. Kuhn v. Philadelphia Elec. Co., 487 F.Supp. 974 (E.D.Pa. 1980), aff'd, 745 F.2d 47

(3rd Cir. 1984). Rather, each claimant's "action is commenced on the

date on which his or her consent is filed with the court." Id. at 976.

Had this action been brought simply as an individual case with several plaintiffs, there would have been no need for any consents to

have been filed. The filing of a collective action under 29 U.S.C.

§ 216(b), however, renders consents necessary, and these claims

below were brought in just such a fashion--they were brought on

behalf of the named individuals and others similarly situated. Redundant though it may seem to require consents from the named plaintiffs

in a class action, the district court did not abuse its discretion in ordering such consents nor in dismissing the appellants' claims which

exceeded the limitations period when no consents were filed within

the applicable three year period.

IV.

For the foregoing reasons, the district court's grant of partial summary judgment in favor of Food Lion on the FLSA claims of numer-

 29
ous assistant managers and its dismissal of various claims of hourly

employees who failed to comply with certain case management deadlines, shall be and hereby are

AFFIRMED.

BUTZNER, Senior Circuit Judge, concurring in part and dissenting

in part:

I join in affirming the district court's case management dismissals.

The district court's task was extremely difficult and cumbersome, and

it acted well within its discretion to strictly enforce the administrative

deadlines.

I dissent, however, from the methodology used by Food Lion to

prove its right to summary judgment. An employer bears the burden

of proving the affirmative defense that employees fall within the

exemptions established by the Fair Labor Standards Act. See Corning

Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974); Idaho Sheet

Metal Works, Inc. v. Wirtz, 383 U.S. 190, 206 (1966). To carry its

burden of proof, Food Lion relies upon an affidavit given by Charles

Buckley, the vice president of grocery operations. Food Lion also

relies upon the assistant manager's job description in its "Store Operations Manual." Neither of these submissions meet the standard of

Federal Rule of Civil Procedure 56(e), which requires the personal

knowledge of the affiant. Buckley had at one time supervised assistant managers in the grocery department, but he does not demonstrate

that he knew the jobs of each of the assistant managers in this case.

He had no personal knowledge of how they spent their time on a dayto-day basis. Similarly, the Store Operations Manual describes only

a hypothetical assistant manager's duties.

The job performed by each assistant manager should have been

considered on a case-by-case basis. 29 C.F.R. § 541.103 (1997). Evaluation of an assistant manager's work is intensely factual. Dalheim v.

KDFW-TV, 918 F.2d 1220, 1226 (5th Cir. 1990) ("[T]he inquiry into

exempt status under [29 U.S.C. § 213(a)(1)] remains intensely factbound and case specific."). I cannot accept Food Lion's claim that the

assistant managers failed to rebut the Buckley affidavit or the Store

Operations Manual job description. The burden is not on the

 30
employee to establish that he is not entitled to a management exemption. On the contrary, the burden remains on the employer to prove

that the employee is exempt. Evans v. McClain of Georgia, Inc., 131

F.3d 957, 965 (11th Cir. 1997). Food Lion's methodology of proof

stands the Fair Labor Standards Act on its head.

Food Lion, however, claims that since this is a class action, all

assistant managers are similarly situated with those who gave depositions.

The assistant managers are similarly situated to the extent that they

bear similar titles and they all work for Food Lion. But whether their

day-to-day jobs are similar depends in large part on the authority and

discretion granted to them by the store managers and by the individual's ability to execute managerial responsibilities."Section 213(a)(1)

does not provide a class exemption . . . ." Hodgson v. Klages Coal &

Ice Co., 435 F.2d 377, 384 (6th Cir. 1970).

Title 29 U.S.C. § 216(b), upon which Food Lion relies, provides

for an employee class action with opt in provisions. The class action

provision and the "similarly situated" requirement in § 216(b), however, are procedural. See Allen v. Marshall Field & Co., 93 F.R.D.

438, 441-42 (N.D.Ill. 1982). The similarly situated requirement is not

meant to change the substantive protections under the FLSA. It does

not alter the employer's burden of proof or the rule that the Act's

exemptions must be narrowly construed against the employers seeking to assert them. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388,

392 (1960). The "similarly situated" requirement of § 216(b) is "considerably less stringent than the requirement of Fed. R. Civ. P.

23(b)(3) that common questions `predominate.'" Heagney v. European American Bank, 122 F.R.D. 125, 127 n.2 (E.D.N.Y. 1988). The

plaintiffs need show only that their positions are similar to that of the

putative class, not identical. Grayson v. K Mart Corp., 79 F.3d 1086,

1096 (11th Cir. 1996). Class treatment is not defeated even if the class

members performed different jobs in different geographical locations.

See Heagney, 122 F.R.D. at 127; Allen, 93 F.R.D. at 443. An

employer should not be allowed to use the similarly situated requirement of § 216(b) to meet its burden of proving a FLSA exemption.

Moreover, a party moving for summary judgment must show that

there are no genuine issues of material fact in dispute and that the

 31
party is entitled to judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317 (1986). The Buckley affidavit does not prove

that each individual assistant manager primarily performed managerial duties as the Act's exemption requires. See 29 U.S.C. § 213(a)(1).

The assistant managers who were deposed and other assistant managers who proceeded on affidavits submitted facts sufficient to disclose

genuine issues of material fact concerning the work that they actually

performed.

Dissenting, I would reverse the grant of summary judgment to

Food Lion for two reasons--the deficiencies in its method of proof

and the presence of genuine issue of material fact. I would remand

these cases for trial in their respective districts. 28 U.S.C. § 1407(a);

see Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 118

S.Ct. 956 (1998).

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