Summary
finding it significant that this part specifically refers to claims agents
Summary of this case from Harris v. Superior CourtOpinion
Case No. 2:04-CR-539.
September 27, 2005
OPINION AND ORDER
This matter is before the Court on the Defendants' Motion for Summary Judgment as to Plaintiff Carol Murray's claims. (Doc. #56). For the reasons that follow, the motion is granted. In addition, the Plaintiff's Corrected Motion for Leave to Amend her Complaint (Doc. #48) is denied, the Defendants' Motion to Strike the Expert Report of Monica Gallagher (Doc. #66) is granted, and three remaining motions (Doc. #70, #79 and #82) are denied as moot.
I.
Plaintiff Carol Murray, ["Plaintiff Murray"], brings this action on behalf of herself and a purported class of employees of the Defendant Ohio Casualty Insurance Corporation ["Ohio Casualty"], claiming alleged violations of the Fair Labor Standards Act ["FLSA"], 29 U.S.C. § 201, et seq. This action was originally filed in the United States District Court for the District of Columbia, and was later transferred to this Court. Plaintiff Murray is a resident of the State of Maryland. Defendant Ohio Casualty is an insurance holding company organized under the laws of the State of Ohio. Defendant Ohio Casualty Insurance Company ["OCIC"] is a wholly-owned subsidiary of the Defendant Ohio Casualty. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
As discussed infra, various other Defendants were named in the original complaint but are withdrawn by Plaintiff.
Plaintiff Murray was employed by Defendant Ohio Casualty until August 2002. ( Complaint at ¶ 6). Plaintiff worked as a Claims Specialist on automobile property damage claims from June 2000 to August 2002. ( Id. at ¶ 7). Plaintiff Murray alleges that Defendants improperly classified her and others who work as Claims Representatives, Claims Specialists and Claims Adjusters as administratively exempt from the overtime wage requirements of the FLSA. ( Id. at ¶ 20).
Count One of the Complaint alleges a violation of the FLSA because Plaintiff's position and the worked performed by similarly situated claims personnel "was neither executive, administrative nor professional in nature." ( Complaint at ¶ 32). As a result, Plaintiff Murray and the purported class claim entitlement to overtime compensation under the FLSA "in an amount equal to one and one-half times their rate of pay for any work in excess of forty hours in a workweek." ( Id.). Count Two of the Complaint seeks declaratory relief for the alleged FLSA violation.
The Defendants move for summary judgment on Plaintiff Murray's claims under the FLSA, arguing that Defendant Ohio Casualty properly classified her as an exempt administrative employee for purposes of 29 U.S.C. § 213(a)(1). The Plaintiff opposes the motion.
The Court notes that, on December 28, 2004, one day after the Defendants filed a Motion for Summary Judgment, Plaintiff Murray filed a Corrected Motion for Leave to Amend her Complaint, to add additional named Plaintiffs as well as various state law claims. The Defendants oppose amendment of the Complaint, except to the extent that certain defendants are omitted from the proposed Amendment. The Court addresses the merits of this motion after discussing the merits of the motion for summary judgment.
Specifically, Defendants Avomark Insurance Co. ["AIC"], Ohio Security Insurance Co. ["OSIC"], West American Insurance Co. ["WAIC"], American Fire Casualty Co. ["AFCC"] and Ohio Casualty of New Jersey, Inc. ["OCNJ"], who are named in the Original Complaint. Since there is no disagreement as to the dismissal of these parties, the Court treats them as dismissed.
II.
The procedure for considering whether summary judgment is appropriate, is found in Fed.R.Civ.P. 56(c); this section provides:
The judgment sought shall be rendered forthwith 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 judgment as a matter of law.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. Kress Co., 398 U.S. 144, 158-59 (1970). Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also, Matsushita Electronic Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The United States Court of Appeals for the Sixth Circuit has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identifies a number of important principles in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.
In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a mere scintilla of evidence in order to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "`show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the Court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
III.
Defendants move for summary judgment on the basis that there is no genuine issue of material fact that Plaintiff Murray's job of Claims Specialist satisfies all of the requirements of the FLSA's administrative exemption to the overtime wage requirement. Plaintiff Murray disagrees and contends that genuine issues of material fact exist as to Defendants' classification.
Before addressing the legal arguments which pertain to this issue, the Court addresses the Defendants' Motion to Strike the Expert Report of Monica Gallagher, offered by Plaintiff in opposition to the Defendants' Motion for Summary Judgment. Ms. Gallagher is a former Associate Solicitor for the Fair Labor Standards Division of the Office of the Solicitor of Labor, United States Department of Labor. Gallagher opines, after a review of the record in this case, that Plaintiff does not meet the administrative exemption to the overtime wage requirement. Defendants move to strike Gallagher's report as untimely since Plaintiff failed to disclose the identity of Ms. Gallagher until the filing of her Memorandum contra Defendants' Motion for Summary Judgment, on March 21, 2005. Defendants argue that, pursuant to the Orders of the Magistrate Judge in this case, Ms. Gallagher's identity should have been disclosed by November 4, 2004, the date established for the designation of primary experts relevant to any motion for summary judgment or relevant to a motion for conditional class certification. Plaintiff argues that this disclosure deadline does not apply because Gallagher's report is not offered in connection with a motion but with a memorandum contra a motion.
In the Court's view, Plaintiff's position violates the prior Order of this Court. Plaintiff should have anticipated a dispositive motion as to her FLSA claim and should have timely disclosed any expert proposed to rebut the motion within the time allotted by the Magistrate Judge. Thus, the Court finds merit in Defendants' Motion to Strike. More fundamentally, however, the Court concludes that the expert opinion of Monica Gallagher must be excluded because it offers a legal conclusion. Whether or not Plaintiff is properly designated as an administrative exempt employee is a decision within the sole province of this Court to make. "It is well-settled that testimony which offers a legal conclusion `[i]nvades the province of the court to determine the applicable law. . . .'" United States, et al. v. Ohio Edison Co., No. 99-1181, 2003 WL 723269 at *1 (S.D. Ohio Feb. 25, 2003), quoting Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985). For these reasons, the Defendants' Motion to Strike is granted.
With this evidentiary issue resolved, the Court proceeds to consider Defendants' Motion for Summary Judgment on the issue of whether Plaintiff was properly classified as exempt from the overtime wage requirements of the FLSA.
Claims Specialist
As a Claims Specialist, Plaintiff's primary duty was to handle automobile physical damage claims. Defendant Ohio Casualty insures against various types of automobile physical damage loss, including: property damage, collision, and comprehensive losses. ( Deposition of Richard Talach, "Talach Depo." at 184-89). The Claims Department employs certain individuals, including Claims Specialists, to handle or "adjust" claims. ( Id. at 170-71). This process involves structuring and conducting an investigation as to the facts of the claim; evaluating whether the claim is payable under the policy; and determining the value of settling the claim. ( Id. at 272-74; 278-80). Defendant Ohio Casualty also participates in an inter-company arbitration program to resolve subrogation demands. ( Affidavit of Kurt Krueger at ¶ 12). In these proceedings, the company is represented by Claims Specialists. ( Plaintiff's Depo. at 220-25).
Plaintiff Murray worked from her home office as a Claims Specialist. With the exception of making occasional trips to the post office, she worked from approximately 7:30 a.m. until 5:30 p.m. and again from approximately 7:00 p.m. to 10:00 p.m. ( Pl. Depo. at 244-45, 251). Plaintiff spent 60-70% of her time on the telephone "working claims." ( Id. at 245-48). Plaintiff documented her daily work activities in the Defendants' Ace Notes computer system. Plaintiff's job functions included investigation of claims, taking statements from witnesses, evaluating facts and applying the standards of negligence to the facts to determine fault, negotiating settlements and other matters and representing Defendant Ohio Casualty in arbitration. The specifics of these duties are discussed infra, in applying the facts to the legal standard for the administrative exemption.
Legal Standard
Section 213 of Title 29 of the United States Code sets forth Exemptions under the FLSA.
The statute states, in pertinent part:
(a) Minimum wage and maximum hour requirements
The provisions of section 206 (except subsection (d) in the case of paragraph (1) of this subsection) and section 207 of this title shall not apply with respect to —
(1) any employee employed in a bona fide executive, administrative, or professional capacity. . . .29 U.S.C. § 213(a)(1).
Section 206 establishes a minimum wage and section 207 establishes a maximum hour limitation of not 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 one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1).
The burden is on the employer to establish each element of the FLSA exemption by a preponderance of the clear and affirmative evidence. Renfro v. Indiana Michigan Power Co., 370 F.3d 512, 515 (6th Cir. 2004), citing Ale v. Tennessee Valley Auth., 269 F.3d 680, 691 n. 4 (6th Cir. 2001). In addition, under the FLSA, an exemption is narrowly construed against the employer. Id., citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960).
With respect to the administrative employee exemption, the Department of Labor has promulgated a regulation, known as the "short test," for determining whether an employee is covered by the exemption contained at § 213(a)(1). In this regard, the Defendant must show: (1) that it pays Plaintiff at least $250 per week on a salary or fee basis; (2) that the Plaintiff's primary duty consists of office or nonmanual work directly related to Defendant's management policies or general business operations; and (3) that the Plaintiff's primary duty requires her to exercise discretion and independent judgment. 29 C.F.R. §§ 541.2(a)(1), 541.2(e)(2). The Court considers the evidence with respect to each of these elements.
Application
1. Salary Basis
With respect to salary, the evidence in this case is undisputed that Plaintiff Murray was paid more than $250.00 per week on a salary basis. ( See Plaintiff's Corrected Memorandum contra at 42 n. 27). Thus, the Defendants satisfy the first prong of the short test.
2. Nonmanual Work Directly Related to General Business Operations
The second prong of the short test requires that the employee's primary duty consist of: (a) office or nonmanual work; (b) that is directly related to management policies or general business operations; (c) that is of "substantial importance" to the management or operation of the Defendant's business. 29 C.F.R. §§ 541.2(a)(1), 541.205(a). The Court considers the evidence as to each of these elements, in turn.
a. Office or Nonmanual Work
It is undisputed that Plaintiff Murray's work as a Claims Specialist consisted of nonmanual office work. ( Plaintiff's Corrected Memorandum contra at 42 n. 27). Plaintiff worked in her home office and performed claims handling functions using a telephone, computer, and fax machine. ( Plaintiff's Depo. at 245-48, 251, 267-68). Clearly, these are non-manual work tasks.
b. Directly Related to Management Policies or General Business Operations
Defendant contends that Plaintiff Murray's handling of automobile physical damage claims consisted of work directly related to Ohio Casualty's general business operations. Plaintiff disputes this assertion, arguing that genuine issues of material fact exist as to whether the evidence satisfies the "directly related" test.
Under the regulations, work "directly related to management policies or general business operations," must involve "the administrative operations of a business as distinguished from `production.'" 29 C.F.R. § 541.205(a). Work that involves the "administrative operations" of a business includes "work performed by so-called white-collar employees engaged in `servicing' a business, as for example, advising the management, planning, negotiating, representing the company, purchasing, promoting sales, and business research and control." 29 C.F.R. § 541.205(b). Employees whose work is "directly related" to management policies or to general business operations include those whose work "affects policy or whose responsibility it is to execute or carry it out." 29 C.F.R. § 541.205(c). The regulations further state:
The test of "directly related to management policies or general business operations" is also met by many persons employed as advisory specialists and consultants of various kinds, credit managers, safety directors, claim agents and adjusters, wage-rate analysts, tax experts, account executives of advertising agencies, customers' brokers in stock exchange firms, promotion men, and many others.
29 C.F.R. § 541.205(c)(5) (emphasis added).
Defendants contend that Plaintiff Murray's work is a quintessential example of the administrative operation of Defendants' business. Defendants rely on the following facts to support their argument: (1) Plaintiff Murray made fault recommendations to her supervisor which were approved 90% of the time ( Pl. Depo. at 66-67, 227; Talach Depo. at 194); (2) She made settlement recommendations on claims above her authority level, which were also approved 90% of the time ( Talach Depo. at 194, 196-97); (3) She evaluated subrogation claims for the Defendants' company ( Pl. Depo. at 216-17); (4) She investigated claims and entered the findings in Ace Notes ( Pl. Depo. at 148, 238-39); (5) She summarized witness statements in Ace Notes ( Talach Depo. at 256-57); (6) Plaintiff's fault recommendations and summaries were relied on by Talach ( Talach Depo. at 271-72); and (7) Plaintiff represented the company in negotiations and witness interviews.
In contrast, Plaintiff argues that she was simply a "rank and file" employee. ( Pl. Corrected Memorandum contra at 43). Plaintiff states that, although she spent 60-70% of her time "working claims," such work involved significant clerical and secretarial tasks. On deposition, Plaintiff Murray testified that she spent an average of 6.7 hours per day engaged in "mundane" activities such as reviewing estimates, matching mail to files, creating file jackets, filing, faxing information to appraisers, traveling to and from the post office and photocopying. ( Pl. Depo. at 240-41). In addition, because she worked from home, Plaintiff also spent time maintaining her office, paying bills and obtaining supplies. ( Id. at 55, 232-34, 273). From the foregoing, Plaintiff argues that genuine issues of material fact exist as to whether Plaintiff's work was directly related to management policies or general business operations. The Court disagrees.
The Court notes that, in opposing the Defendants' Motion for Summary Judgment, Plaintiff tenders a declaration which Defendants argue contradicts her earlier deposition testimony. Plaintiff disagrees, arguing that the declaration merely supplements the testimony. The Court tends to agree with Plaintiff's position. Nevertheless, to the extent Plaintiff comes to conclusory statements regarding the nature of her job duties, the Court disregards the same as it is for this Court to determine the nature of such duties for purposes of the administrative exemption.
The fact that Plaintiff's job included the performance of various so-called "secretarial" tasks does not create a genuine issue of material fact as to the evidence of her primary job duties. It is undisputed that Plaintiff's primary function was to handle automobile physical damage claims. During her time as a Claims Specialist, Plaintiff Murray served as the "primary adjuster" on 815 claims. ( Affidavit of Deborah Klinzing at ¶ 4). Plaintiff's day-to-day tasks involved structuring and conducting claims investigations, taking statements from witnesses, evaluating the facts of a claim and allocating fault for car accidents, negotiating and settling claims and representing Defendant Ohio Casualty in arbitrations. In the Court's view, the fact that Plaintiff had to perform various secretarial-type tasks to accomplish her primary duties does not diminish or create a genuine issue of material fact as to what her primary duties in fact were.
The relevant time period is February 1, 2001 to August 31, 2002.
A similar fact situation was addressed in Palacio v. Progressive Insurance Company, 244 F.Supp.2d 1040 (C.D. Cal. 2002). There, the court held that a former insurance claims agent, who performed duties virtually identical to the Plaintiff herein, was engaged in work directly related to the management policies or general business operations of the insurance company. As the court noted, the duties performed by a claims agent, "[t]aken together, . . . are the types of activities contemplated as servicing a business, and thus meet the `directly related' test." Id. at 1047 (citations omitted). Furthermore, it is significant that 29 C.F.R. § 541.205(c)(5) specifically references claims agents and adjusters as an example of those engaged in work directly related to the servicing of a business.
In sum, the Court concludes there is no genuine issue of material fact as to whether Plaintiff Murray's work was directly related to Ohio Casualty's general business operations.
c. Substantial Importance
The Defendants must next show that Plaintiff Murray's work was of "substantial importance" to the management or operation of the Defendants' business. Employees whose work is of "substantial importance" include those whose work "affects business operations to a substantial degree, even though their assignments are tasks related to the operation of a particular segment of the business." 29 C.F.R. § 541.205(c)(5).
Defendant contends that Plaintiff's work was of substantial importance based on the following facts: (1) Plaintiff received approximately 60 new automobile physical damage claims per month ( Pl. Depo. at 57); (2) She had authority to settle claims up to the amount of $7500.00 and her recommendations above that level were approved 90% of the time ( Pl. Depo. at 283; Talach Depo. at 193-94, 196-97); (3) She had responsibility for determining whether a claim should be paid ( Talach Depo. at 170-71); (4) She investigated the facts of claims and made determinations as to fault, which determinations were also approved 90% of the time ( Pl. Depo. at 66-67, 227, 238, 246-47; Talach Depo. at 194, 271-72); (5) She negotiated on behalf of the Defendants ( Pl. Depo. Exhibits 25, 26, 28; Hunter Affidavit at ¶ 5); and (5) She represented the company in arbitration proceedings ( Pl. Depo. at 220-25). Defendant submits that these duties affected, on an annual basis, hundreds of thousands of dollars of company expenditures and also played an important role in determining policyholders', claimants' and the company's legal rights.
While not necessarily contesting the foregoing, Plaintiff argues that her "primary job was to gather facts for her supervisor, who made all material decisions on the claims [Plaintiff] worked on." ( Pl. Corrected Memorandum contra at 57). According to Plaintiff, because ultimate authority as to claims rested with her supervisor and because she was bound by estimates produced by computer software, her duties were not of substantial importance.
The Court concludes that there are no genuine issues of material fact on the issue of whether Plaintiff's work was of substantial importance to the operation of the Defendants' business. The undisputed evidence shows that Plaintiff's duties were indeed of substantial importance. As Defendants point out, the fact that Plaintiff used a computer program in the analysis of claims does not mean that Plaintiff's duties were not substantially important. Further, the undisputed evidence shows that Plaintiff spent a significant amount of time analyzing facts, making credibility determinations and resolving conflicts. Again, it is significant to note that 29 C.F.R. § 541.205(c)(5) specifically references claims agents and adjusters as an example of those engaged in work of substantial importance.
The Court concludes that there is no genuine issue of material fact as to whether Plaintiff Murray's work was of substantial importance to the operation of Defendants' business.
3. Exercise of Discretion and Independent Judgment
The third prong of the "short test" for the administrative exemption requires that the Defendants show that Plaintiff Murray's primary duties involved "the exercise of discretion and independent judgment." 29 C.F.R. § 541.2(e)(2). This 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. § 541.207(a). The term implies that the employee "has the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance." Id. The regulations further provide that the exercise of discretion and independent judgment must occur "customarily and regularly." 29 C.F.R. § 541.207(g). This means "a frequency which must be greater than occasional but which, of course, may be less than constant. The requirement will be met by the employee who normally and recurrently is called upon to exercise and does exercise independent judgment in the day-to-day performance of his duties. The requirement is not met by the occasional exercise of discretion and independent judgment." Id; see also Renfro v. Indiana Michigan Power Company, 370 F.3d 512, 518-19 (6th Cir. 2004).
Nevertheless, the exercise of discretion and independent judgment does not mean that an employee's decision must have "a finality that goes with unlimited authority and a complete absence of review." 29 C.F.R. § 541.207(e).
The decisions 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. The fact that an employee's decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment within the meaning of the regulations in subpart A of this part.Id.
Defendants argue that Plaintiff Murray's work involved the exercise of discretion and independent judgment. In support of this position, Defendants point out that Plaintiff spent approximately 90% of her day investigating claims. ( Pl. Depo. at 238-39). As part of her investigation, Plaintiff obtained statements from automobile drivers and witnesses. She also decided the extent of questions to ask in obtaining statements ( Pl. Depo. Exhibits 23, 26; Talach Depo. at 256), and determined what other information, such as site photos and police reports, might be necessary for the investigation. ( Pl. Depo. Exhibit 24; Pl. Depo. at 156-58, 166-67, 176-77). In addition, Plaintiff determined the level of fault on approximately 57% of claims on which she served as primary adjuster. ( Krueger Affidavit at ¶¶ 3-4, 6-11; Hunter Affidavit at ¶ 3). Plaintiff's role in this regard was to apply the law of either contributory or comparative negligence to the facts of the case and determine fault based on the evidence she compiled. ( Pl. Depo. at 227; Hunter Affidavit at ¶ 5). According to Defendants, Plaintiff's determinations as to fault were highly important to the business as they played a vital role in determining whether and what percentage of claims were paid. ( Talach Depo. at 170-71, 251-53). Plaintiffs supervisor, Mr. Talach, approved Plaintiff's recommendations 90% of the time. ( Id. at 194).
Plaintiff Murray also had sole authority to handle settlement negotiations involving amounts within her authority level of $7500.00. ( Id. at 298). Plaintiffs notes in the Ace Notes system reflect her authority in this regard. ( Pl. Depo. Exhibits 25, 26, 28; Hunter Affidavit at ¶ 5, Exhibits 1(a), (e), (f), (j), (k), (l)). With respect to matters in arbitration, Plaintiff Murray prepared and filed statements of contention as to the company's position together with references to evidence. ( Pl. Depo. at 220-22, 224-25). Plaintiffs responses in arbitration were done without the involvement of her supervisor. ( Id. at 225, Talach Depo. at 301-04, 307). Plaintiff made responses to arbitration matters approximately once every six weeks. ( Pl. Depo. at 221).
Plaintiff contends that genuine issues of material fact exist as to whether her duties involved the exercise of discretion and independent judgment sufficient to satisfy the administrative exemption. Plaintiff disagrees with Defendants that her notes made in the Ace Notes system demonstrate that she had the ability to exercise discretion. Plaintiff argues that the notes reflect the contrary, i.e., that Defendants had constant supervisory control over her and other Claims Associates. Plaintiff contends that she acted as merely a "fact gatherer" and could not engage in significant business decisions without the prior approval of Mr. Talach. In addition, Plaintiff points out that she was bound by the computer software estimating programs used by Defendants. Plaintiff argues that the duties she performed are like those in the cases of In re Farmers Ins. Exchange Claims Representatives Overtime Pay Litigation, 336 F.Supp.2d 1077 (D. Or. 2004) and Robinson-Smith v. Gov't Employees Ins. Co., 323 F.Supp.2d 12 (D.D.C. 2004), where the courts held that the administrative exemption did not apply.
The Court finds these cases distinguishable from the instant action. In Robinson-Smith, the court concluded that automobile insurance adjusters working for GEICO did not exercise discretion and independent judgment for purposes of the administrative exemption to the FLSA because they spent the majority of their time inspecting vehicles, writing estimates and traveling to and from inspection sites. They did not interview witnesses, or make recommendations regarding coverage of claims or determine liability. In In re Farmers Insurance, the district court recognized that there are differences in the type of work performed by insurance claims adjusters and, thus, the administrative exemption can only be considered in light of the specific duties undertaken by the adjuster. With regard to adjusters who make recommendations as to liability, the court found that the exemption applied. With regard to adjusters who performed less skilled duties within a prescribed set of procedures, the court found the exemption did not apply.
The district court in Robinson-Smith used the August 2004 Department of Labor regulations as to the exercise of discretion and independent judgment. These regulations are not applicable to the instant action. It is, however, interesting to note that the new regulations include "insurance claims adjuster" as an example of an employee who could meet the administrative exemption, depending on the level of discretion and judgment vested in the employee. According to the regulations, an adjuster who interviews witnesses, inspects property damage, reviews facts, makes estimates, evaluates coverage and liability, negotiates settlements and makes recommendations on litigation, satisfies the standard. 323 F.Supp.2d at 21, citing August 2004 Regs. at 22,263.
The district court considered various levels of claims representatives. As the court recognized, whether the administrative exemption applies must be considered in light of the specific facts of the case. Therefore, while the decision in In re Farmers Insurance is helpful, it is not dispositive of the instant action.
This Court concludes that there are no genuine issues of material fact as to the level of discretion and independent judgment exercised by Plaintiff Murray for purposes of the administrative exemption. The record is clear that, while she was subject to supervisory authority, Plaintiff Murray carried out various duties important to the company on an independent basis and using her discretion. Plaintiff identified cases where coverage issues existed; she took witness statements; she determined the scope of the investigation, e.g., by determining whether other evidence such as police reports and site evaluations was necessary to an investigation; she evaluated the level of fault using either contributory or comparative negligence standards; she negotiated settlements which were generally approved by her supervisor; she presented the company's position in arbitration and made arguments to support her findings as to liability. While it is true that Plaintiff did not have ultimate authority and she was bound by certain internal procedures and computer programs as to the determination of loss value, the record clearly shows that Plaintiff's duties involved the level of discretion and independent judgment contemplated by the regulations. Thus, the Court concludes that Defendants have successfully established the third prong of the short test for application of the administrative exemption.
In sum, the Court concludes that the Defendants correctly categorized Plaintiff Murray's position as within the administrative exemption of the FLSA The Defendants are entitled to summary judgment on Plaintiff's claims.
In light of this conclusion, the Court finds no reason to address the parties' arguments as to whether the doctrine of equitable tolling applies to Plaintiff Murray's FLSA claim.
As stated supra, there is a pending Motion for Leave to Amend the Complaint to add additional named Plaintiffs as well as additional claims under the FLSA and state law. Since Plaintiff Murray's FLSA claim has failed to survive summary judgment, she cannot purport to assert claims on behalf of others. In addition, Plaintiff Murray's proposal to expand the class definition, to add additional named parties, who could be purported class members, and to assert general state law claims, comes too late in the action. For these reasons, the Motion for Leave to Amend the Complaint is denied.
Plaintiff proposes to assert a claim under the Ohio Minimum Fair Standards Act, R.C. § 4111.01, et seq., but fails to articulate which additional state overtime wage laws may be at issue.
The Court's ruling on summary judgment renders other pending motions moot; specifically, Defendants' Motion to Strike new evidence as to the issue of court-supervised notice to the purported class (Doc. #70), Plaintiff's Corrected Motion for court-supervised notice (Doc. #79), and Plaintiff's Motion for Equitable Tolling (Doc. #82).
IV.
Defendants' Motion for Summary Judgment as to Plaintiff Carol Murray's claims ( Doc. #56) is GRANTED. The Plaintiff's Corrected Motion for Leave to Amend her Complaint ( Doc. #48) is DENIED. The Defendants' Motion to Strike the Expert Report of Monica Gallagher ( Doc. #66) is GRANTED. The following motions are DENIED as MOOT: Doc. #70, #79 and #82.
The Clerk is DIRECTED to close this case and to enter Judgment in favor of the Defendants. The Clerk shall also remove the foregoing motions from the Court's pending motions list.
IT IS SO ORDERED.