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BURCH & CRACCHIOLO, P.A. 702 E. OSBORN ROAD, SUITE 200

PHOENIX, AZ 85014

TELEPHONE 602.274.7611

Susanne E. Ingold, SBA #019143

singold@bcattorneys.com

Attorneys for Defendants

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

John Radford,

Plaintiff,

v.

Berg Homes, LLC dba Berg Group Home, a limited liability company; and Connie

Schwichtenberg, an Arizona resident,

Defendants.

Case No. 2:18-CV-00287-JJT

DEFENDANTS’ RESPONSE IN 

OPPOSITION TO PLAINTIFF’S 

MOTION FOR SUMMARY 

JUDGMENT

Defendants Berg Homes, LLC, dba Berg Group Home, and Connie 

Schwichtenberg (collectively “Berg Group Home” or “Defendants”), by and through 

counsel undersigned, hereby respond to Plaintiff’s Motion for Summary Judgment. 

This response is supported by the following Memorandum of Points and Authorities and 

Controverting and Separate Statement of Facts filed herewith. 

MEMORANDUM OF POINTS AND AUTHORITIES

I. FACTUAL BACKGROUND

Berg Group Home was an assisted living facility that provides services to people

in need, specifically disabled adults. In 2009, Plaintiff was hired as a caregiver, an hourly 

employee, prior to being promoted to Program Manager (“Manager”) in 2013 with 

additional responsibilities, increased wages, and private living quarters during his time 

off during the week. (See Defendants’ Separate Statement of Facts (SSOF) at ¶ 1.) 

Plaintiff was the only Manager, an exempt position, at the only group home that Berg 

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Homes LLC owned and operated and his schedule varied week to week. (Id. at ¶¶3-

4.)

As Manager, Plaintiff was paid a salary for performing principal duties that were 

directly related to management and business operations of Berg Group Home. (Id. at 

¶4.) He was responsible for supervising the delivery of services to children and adults

with developmental disabilities, as well as the elderly and he provided assistance with 

living skills development, health maintenance and medication administration, person 

care and behavioral development. (Id.) As Program Manager, Plaintiff also performed 

the key duties, including but not limited to the following:

Program management – ensuring that the program is operating effectively 

and that required activities are conducted; documenting that the program 

follows states rules and guidelines; maintaining consumer files and 

records; creating teaching and behavior treatment plans; directing the 

spending of program money; reporting facility and vehicle maintenance

issues; responding to consumer and program emergencies.

Staff management – supervising the staff and caregivers and directing their 

activities with consumers; scheduling the staff to meet the needs of the 

program and ensuring that shifts are covered; hiring and firing of staff and 

caregivers; evaluating staff and performing staff evaluations; disciplining

staff members; training on consumer and program activities; collecting, 

entering and auditing staff timesheets.

Health maintenance – providing care and assistance to promote good 

health; helping consumers receive medical care and communicating with 

medical professional; administering medications according to physician 

instructions; recording information regarding health events, condition and 

status.

Operational support – maintaining cleanliness of program; driving

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company vehicle to transport consumers to their activities; completing

tasks that are beyond the consumer’s abilities; following policies and 

procedures for handling money.

(Id. at ¶5.) 

 Plaintiff worked autonomously to create and oversee his own schedule and could 

make any changes to it that he saw fit with full autonomy. (Id. at ¶6.) He created work 

schedules for other staff and caregivers and approved time-off requests. (Id.) He 

interviewed staff candidates for employment and supervised all staff. (Id.) Plaintiff 

also had the ability to bind Berg Homes financially by entering into contracts for 

services, whenever necessary. (Id.)

He also had discretion to discipline or terminate Direct Care Workers (DCW’s)

when necessary. (Id. at ¶7.) He managed Client records and ensure DCW’s were 

documented correctly and met DD policy and guidelines. (Id.) He ensured medication 

were ordered, checked in and stored property, as well as properly documented by 

DCWs Coordinate client health care and Behavioral health needs. (Id.) He maintained

client funds and communicated with Clients’ families and various others. (Id.)

With regard to specific duties, Plaintiff was responsible for the following for 

Berg Group Home:

a) Hiring;

b) Compensation of employees;

c) Control over daily activities of the group home;

d) Management of the group home and its employees;

e) Discipline of employees;

f) Termination of employees1

;

g) Work schedules for employees; and

h) Payroll.

1 Though Plaintiff had authority to terminate other employees, it was not necessary to 

terminate anyone since Berg Group Home had such low turnover. All staff at Berg 

Group Home reported to Plaintiff. (Id. at ¶9.)

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(Id. at ¶8.)

 Plaintiff’s compensation structure was arrived at through discussion, negotiation 

and mutual agreement. (Id. at ¶1.) The position of “manager” and compensation for 

the position was established prior to Plaintiff’s employment and promotion by outlining 

the duties and responsibilities for the position and comparing with the data provided by 

the Department of Labor as to exempt employees and factors required to be exempt, as 

well as the advice of counsel. (Id.)

As Program Manager, Plaintiff was paid a salary for performing principal duties 

that were directly related to management and business operations of Berg Group Home. 

(Id. at ¶13.) He performed these duties and was required to use his own discretion and 

judgment on matters of significance. (Id.) 

As part of their initial appearance and filing in this case, Defendants expressly 

pled the defense of “exemption” their Answer dated March 16, 2018. (Id. at ¶14.) In 

their Answer, Defendants also affirmatively denied Plaintiff’s alleged “primary job 

duties” and also denied that Plaintiff was a “non-exempt employee.” (Id. at ¶15.) Two 

months later, Defendants further pled and identified their exemption defense via the 

parties’ Joint Case Management Report, where Defendants provided the following

“brief statement of the factual and legal basis” for their defenses:

Defendants: Plaintiff was employed with Berg Group Home and was 

paid in full for all hours worked. Plaintiff’s duties included 

management and supervision, as well as exercising discretion and 

independent judgment on matters of significance. Thus, Plaintiff was 

employed in an administrative capacity and the FLSA’s overtime 

requirements do not apply.

(Id. at ¶16.) As such, Plaintiff has been on notice of Defendants’ position that Plaintiff 

was subject to the “administrative exemption” throughout this entire case. 

On June 15, 2018, less than a month after the parties filed the Joint Case 

Management Report, Defendants provided Plaintiff with additional detailed factual 

bases for their exemption defense through verified discovery responses to Plaintiff’s 

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non-uniform interrogatories (NUIs) and requests for production (RFPs). These 

discovery requests included, but were not limited to, responses to Plaintiff’s NUI no. 

13 “describing in detail all evidence and reasons which support any denials or 

affirmative defenses set forth in Defendants’ Answer.” (Id. at ¶17.) Defendants 

responded with detailed explanations of Plaintiff’s position and duties and manager, 

which is also set forth above, including primary duties exercising discretion and 

independent judgment. (Id.) 

Plaintiff issued no other discovery requests and took no depositions at all in this 

case. Defendants, on the other hand, supplemented their Mandatory Initial Discovery 

Reponses and incorporated all pleadings and discovery, and issued supplemental 

discovery responses in November 2018.

2

 In their supplemental responses, Defendants 

produced nearly 400 additional documents, including Plaintiff’s W-2’s showing his 

earnings each year. (Id. at ¶¶18-19.)

As an exempt management employee, Plaintiff was paid the annual salary of 

$41,600.00 at all relevant times. (Id. at ¶20.) In 2015, Plaintiff received $41,600.00

in base salary, plus $100.00 in incentive pay, for a total of $41,700.00. (Id.) In 2016, 

Plaintiff was paid $41,600.00 in base salary, plus $2,665.00 in incentive and bonus pay, 

for a total of $43,765.00. (Id.) In 2017, Plaintiff was paid $41,600.00 in base salary, 

plus $5,822.50 in incentive pay, for a total of $47,422.50. (Id.) Plaintiff’s total 

earnings from Defendants between 2015 and 2017 was $132,887.50. (Id.)

II. LEGAL STANDARD.

Plaintiff bears the burden of demonstrating the absence of a genuine dispute as 

to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where 

the record tells two different stories, “credibility determination, the weighing of 

evidence and the drawing of inference from the facts are the function of the jury . . ..” 

2 Defendants were unable to depose Plaintiff because he refused to appear in Arizona 

for his deposition. Defendants did not have the resources to cover the expenses required

to travel and complete Plaintiff’s deposition in Indiana, where he now lives, and thus 

were unable to depose him prior to trial. 

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must also resolve 

any factual issues of controversy in favor of the nonmoving party where the facts

specifically attested by that party, as in this case, contradict facts specifically attested 

by the moving party. See Manning v. Tacoma Public Schools, 2007 WL 2495138 *6 

(W.D. Wash. 2007). Defendants agree with Plaintiff on one issue, that the Court should 

only grant summary judgment “‘if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that 

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

a judgment as a matter of law’.” (Motion at 2 (quoting Anderson v. Liberty Lobby, 477 

U.S. at 247).)

Here, it is literally without question that Defendants have produced, through 

pleadings, verified discovery responses, more than 1,200 produced documents, and the 

affidavit of Connie Schwichtenberg, sufficient facts and evidence supporting their

defenses in this case, including that Plaintiff was an exempt employee not entitled to 

overtime. Moreover, Defendants have produced sufficient admissible evidence that 

would allow a jury to, if not mandate, a verdict in their favor. Plaintiff’s summary 

judgment motion must be denied.

III. ARGUMENT

The Fair Labor and Standards Act requires that employers pay employees one 

and one half times their regular hourly rate of pay for hours worked in one week in 

excess of 40. See 29 U.S.C. § 207. Bona fide executive, administrative and 

professional employees, however, are exempt from overtime pay. See 29 U.S.C. § 

213(a)(1). Plaintiff worked for Defendants in the position of Program Manager and 

was an exempt administrative employee. 

To be a bona fide administrative employee, the employee must:

1) be compensated on a salary or fee basis at a rate of not less than $455 per 

week;

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2) have as a primary duty the performance of office or non-manual work 

directly related to management policies or general business 

operations of his employer or her employer’s customers; and

3) have a primary duty which includes the exercise of discretion and 

independent judgment. 

See 29 C.F.R. §541.200(a).3

A. PLAINTIFF WAS A MANAGER FOR DEFENDANTS AT ALL

RELEVANT TIMES AND EXEMPT FROM THE OVERTIME 

PROVISIONS OF THE FLSA.

To qualify under the administrative exemption, an employee must meet both the 

salary test and the duties test. Plaintiff does not dispute that he met the salary test, even 

under his theory that he earned a salary of $25,000 per year (Motion at 5), since an 

annual salary of $25,000.00 amounts to $481.00 per week. Plaintiff’s annual salary, 

however, was $41,600.00 per year, which amounts to $800 per week and it is again 

undisputed that Plaintiff meets the salary test.

Defendants will therefore focus on whether Plaintiffs’ primary duties: 1) 

consisted of performing office or non-manual work directly related to management 

policies or general business operations, and 2), included the exercise of discretion and 

independent judgment. This is known as the two prong “duties test.” See In re Allstate 

Ins. Co. Fair Labor Standards Litigation, 2007 WL 2274802 *8 (D. Ariz. 2007.) 

3 The Department of Labor revised the regulations at 29 C.F.R §541 with an effective 

date of January 1, 2020. The 2004 § 541 regulations remain in effect through December 

31, 2019, including the $455 per week standard salary level. 

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First, and most importantly, nowhere in Plaintiff’s Motion does he dispute that,

in his position of Manager, he performed primary duties consisting of non-manual work 

directly related to management policies and general business operations, nor does he 

dispute that his duties included discretion and independent judgment. He simply argues 

that Defendants should not be able to assert their defense. In other words, he does not 

dispute that his position of Manager satisfied the two- prong duties test. Second, even 

if he had attempted to dispute the duties test, which he did not, the overwhelming 

evidence is that the position of Manager, the position he admits that he held (PSOF at 

¶16), satisfies the duties test and is exempt.

As to the first prong, the regulations issued by the Secretary of Labor that 

interpret the administrative exemption explain that:

[t]he phrase ‘directly related to management policies or 

general business operations of his employer or his 

employer’s customers’ describes those types of activities 

relating to the administrative operations of a business as 

distinguished from ‘production’ or in a retail or service 

establishment, ‘sales’ work. In addition, to describing the 

types of activities, the phrase limits the exemption to persons 

who perform work of substantial importance to the 

management or operation of the business of his employer or 

his employer’s customers.

29 C.F.R. §541.205(a). As to the second prong, the exercise of discretion and 

independent judgment generally “involves the comparison and the evaluation of possible 

courses of conduct, and acting or making a decision after the various possibilities have 

been considered.” 29 C.F.R. §541.202(a). 

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As Manager, Plaintiff’s duties and responsibilities were directly related to 

Defendants’ business operations in that it was his responsibility to oversee Berg Group 

Home and its employees, clients, facilities and services provided to clients. His primary 

duties required using discretion and judgment to manage the programs for Defendants’

disabled clients, including ensuring the program is operating effectively and all activities 

and documentation required by state rules and guidelines are conducted and maintained, 

supervising and scheduling all staff to ensure that clients’ needs were met, hiring, 

disciplining and firing of staff, making his own schedule, overseeing the program budget 

and directing the spending of program money, and financially binding the company 

when necessary by entering into contracts for services. His main duties were to 

promote, service and administer Defendants’ business operations. In performing those

critical functions, Plaintiffs was required to and did exercise discretion and independent 

judgment. He received little supervision and was expected to work through and resolve 

problems themselves. As such, he is an exempt administrative employee and not entitled 

to overtime pay. 

B. DEFENDANTS PLED, ALLEGED AND DISCLOSED THEIR

EXEMPTION DEFENSE FROM THE OUTSET OF, AND 

THROUGHOUT, THIS CASE.

Plaintiff’s attempt to preclude Defendants from advancing pled and disclosed 

defenses is not well taken, especially since Plaintiff has been on notice of Defendant’s 

theory that Plaintiff is an exempt employee and thus not entitled to overtime as of 

Defendants’ first filing in this case. From the day they filed their Answer on March 

16, 2018, Defendants expressly pled the defense of “exemption.” In their Answer, 

Defendants affirmatively denied Plaintiff’s alleged “primary job duties” as set forth in 

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his First Amended Complaint and also denied that Plaintiff was a “non-exempt 

employee.” Defendants again pled and identified their defense of “exemption,” and 

specifically “administrative exemption,” in the parties’ Joint Case Management Report,

filed with this Court on May 14, 2018. 

Less than a month after filing the Joint Case Management Report, Defendants 

provided Plaintiff with even more detailed factual bases for the administrative exemption 

defense through verified discovery responses to Plaintiff’s non-uniform interrogatories 

(NUIs) and requests for production (RFPs). Defendants responded with detailed 

explanations of Plaintiff’s position and duties and manager, which are set forth herein,

including primary duties exercising discretion and independent judgment that support 

Defendants’ claim that Plaintiff was administratively exempt. As such, Plaintiff has 

been on notice of Defendants’ defense that Plaintiff’s position as Manager was exempt, 

and subject to the “administrative exemption,” throughout this entire case. There is no 

basis for precluding Defendants from continuing to advance their defense that Plaintiff 

was exempt. 

Plaintiff questionably relies on Magnana v. Commission of the North Mariana 

Islands, 107 F.3d 1436, 1446 (9th Cir. 1997) (Motion at 8) in arguing that Defendants 

should be precluded from continuing to their defense of exemption. In Magnana, the 

court merely held that is was error for the district court to grant summary judgment

without first determining an affirmative defense raised for the first time in a summary 

judgment motion was prejudicial to the plaintiff. Id. at 1446. The facts in the present 

case are nothing like Magnana since more than a year prior to summary judgment 

briefing Defendants had already affirmatively pled, alleged, disclosed and identified 

their defense of exemption and administrative exemption in their Answer, the parties’ 

Joint Case Management Report, and in twenty-one pages of verified responses to NUIs.

Lastly, Plaintiff’s attempt to compare their failure to disclose 17 material 

witnesses until May 2019, two weeks before the discovery cut-off, to Defendant’s 

pleading and identifying their exemption defense since the beginning of this case, is 

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entirely without merit. There is literally nothing remotely comparable between 

Defendant’s pled and disclosed defenses and Plaintiff’s unreasonable and inexplicable 

delay until the close of discovery to disclose 17 “material” witnesses that he planned to 

call at trial. Plaintiff has had since April 2018 to conduct discovery on Defendants’

defenses, including the defense that Plaintiff’s position was exempt, and Plaintiff in fact 

did conduct extensive discovery on the issue through 18 NUIs and 15 RFPs. (See 

Plaintiff’s SOF, Exhibits 1 and 3.) Defendants responded to each of the discovery 

requests issued in June of 2018. Plaintiff has suffered no prejudice of any kind and 

there is no rational comparison between Plaintiff’s unreasonable delays and Defendants’

full, timely and complete disclosure regarding its defenses.

C. PLAINTIFF’S CALCULATION OF UNPAID OVERTIME IS 

WITHOUT SUPPORT AND CONTRADICTED BY OFFICIAL WAGE 

DOCUMENTATION. 

Plaintiff also claims that, based upon his own self-serving spreadsheet and wage 

calculations, he is owed $37,058 in overtime wages. (Motion at 5-6.) As previously 

stated, Plaintiff is not entitled to any overtime because he was exempt as a matter of 

law. Yet even if it were assumed for purposes of this motion that he was entitled to 

overtime, which he was not, he earned and was paid more than he claims he is owed in 

unpaid overtime. Nowhere in Plaintiff’s motion does he cite or even mention what he 

was actually paid as earnings, therefore, his “spreadsheet” of alleged unpaid wages is 

meaningless.

Under Plaintiff’s calculation, he was owed $25,000.00 in annual salary for 2015, 

2016 and 2017. He also claims that he is owed $37,058.44 in unpaid overtime over the 

course of the same three years. The total owed for salary and overtime, under his 

calculation, is therefore $112,058.444

. According to Plaintiff’s official W-@ Form for 

the same time period, Plaintiff actually earned $132,887.50 from 2015-2017. 

Therefore, Plaintiff was paid more than he now claims he is owed between salary and 

4 ($25,000 x 3=$75,000 + $37,058.44= $112,058.44)

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alleged overtime amounts. Plaintiff’s calculations, spreadsheet and tables are not based 

in any facts and are meaningless since he earned more than he is now claiming is owed.

D. PLAINTIFF IS NOT ENTITLED TO LIQUIDATED DAMAGES AND 

FAILS TO DEMONSTRATE THAT ANY FLSA VIOLATION

OCCURRED, MUCH LESS THAT A VIOLATION WAS WILLFUL.

As previously stated, Plaintiff has failed to demonstrate that any violation of the 

FLSA’s overtime requirements occurred. Even if he had, which he has not, or even if 

this Court determines that an issue of fact exists as to Plaintiff’s alleged violation, 

Defendants acted in subjective good faith and worked to adhere to the requirements of 

the FLSA. As such, liquidated damages are inappropriate.

A district court has the discretion to decline to award liquidated damages or to if 

the employer shows that it acted in subjective good faith and had reasonable grounds 

for believing its conduct did not violate the FLSA. See Flores v. City of San Gabriel,

824 F.3d 890, 904-905 (9th Cir. 2016). “Good faith is an honest intention to ascertain 

what the FLSA requires and to act in accordance with it.” Local 246 Utility Workers 

Union of America v. Southern California Edison Co., 83 F.3d 292, 298. Even if 

liquidated damages are the “norm,” an employer can satisfy the “good faith” showing

if it “had secured some objective authority, or at the very least sought advice” for the 

purpose of determining whether overtime is owed.” Chao v. A-One Med. Svcs, Inc.,

346 F.2d 908, 920 (9th Cir. 2003). 

Here, Defendants carefully and thoroughly determined Plaintiff’s classification

as administratively exempt and not entitled to overtime. The position of Manager and 

compensation for the position was established prior to Plaintiff’s employment and 

promotion. Defendants determined that it was exempt by outlining the duties and 

responsibilities for the position and comparing them with the data provided by the 

Department of Labor as to exempt employees and factors required to be exempt. 

Defendants also sought and relied upon the advice of counsel.

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Furthermore, Plaintiff has fallen far short of demonstrating that Defendant’s 

alleged violation was willful, giving rise to a three-year statute of limitations instead of 

two. Unlike double damages, the three years statute of limitations is not the norm. 

The employer's conduct is deemed willful under § 255 only if there is evidence that the 

employer knew its conduct violated the FLSA or recklessly disregarded whether it was

violating the FLSA. Thus, “the party claiming an exception to the normal period bears 

the burden of showing the violation was willful.” Nelson v. Waste Mgmt. of Alameda 

Cnty, Inc., 33 Fed. Appx. 273, 274 (9th Cir. 2002) (citing 29 U.S.C. § 255(a)). Mere 

negligence by the employer in determining its legal obligation is not sufficient. Id. 

Plaintiff admits that (Motion at 7) the determination of willfulness is a mixed 

question of law and fact. See Alvarez v. IBP, Inc., 339 F. 3d 894, 908 (9th Cir. 2003).

Plaintiff is unable to demonstrate willfulness as a matter of law by merely pointing to a 

prior unrelated complaint filed against Defendants alleging violation of the FLSA. The 

complaint was voluntarily dismissed by the plaintiffs and no findings or judgment was 

ever reported, entered or made. Thus, the complaint serves as merely allegations, 

nothing more. 

In addition, the factual allegations in that complaint, that hourly paid 

caregiver/driver employees were not paid overtime, are nothing like the factual 

allegations here where Plaintiff alleges that as a salaried Program Manager, he is entitled 

to overtime. Plaintiff was never paid hourly, and never reported or complained to 

Defendants while employed that he should be or was denied overtime. He made his 

own schedule, which varied week to week, and was paid an annual salary of $41,600.00. 

Plaintiff fails to demonstrate, as a matter of law, that the alleged violation of the FLSA 

was willful.

IV. CONCLUSION

For the foregoing reasons, Defendants respectfully request that this Court deny 

Plaintiff’s motion for summary judgement in its entirety. 

RESPECTFULLY SUBMITTED this 1st day of October, 2019.

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BURCH & CRACCHIOLO, P.A.

By: /s/ Susanne E. Ingold

Susanne E. Ingold

702 E. Osborn Road, Suite 200

Phoenix, AZ 85014

Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on October 1, 2019 I electronically transmitted the attached 

document to the District Court clerk’s office using the CM/ECF System for filing. If 

registered, a transmittal of the attached document was provided to the following 

registrants. A copy was provided to the following: 

Michael Zoldan, Esq.

Jason Barrat, Esq.

Jessica Miller, Esq.

James Weiler, Esq.

Zoldan Law Group, PLLC

14500 N. Northsight Blvd., Suite 133

Scottsdale, AZ 85260

Attorneys for Plaintiff

By: /s/ Holly Hommel

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