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disregarding declaration that contradicted plaintiffs deposition testimony because it had not been subject to cross-examination and ran afoul of rule that party may not create material issue of fact on summary judgment by submitting contradictory declarations
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10 Civ. 6271 (RMB)
06-16-2011
LUIS RAMOS, et al., Plaintiffs, v. BALDOR SPECIALTY FOODS, INC., et al., Defendants.
DECISION & ORDER
I. Background
On August 20, 2010, Luis Ramos, Herber Martinez, Leobardo Moreno, Wilner Dubon, Sergio Calderon, Jose Barranco, Oswaldo Erazo, and Mariano Castro (collectively, "Plaintiffs") filed a complaint ("Complaint") "on behalf of themselves and others similarly situated" against Baldor Specialty Foods, Inc. ("Baldor") and Baldor's Chairman and Chief Executive Officer, Kevin Murphy (collectively, "Defendants"). (Compl., dated Aug. 20, 2010, at 1.) Plaintiffs, who are current or former night shift "Captains" employed by Baldor, allege, among other things, that Defendants "fail[ed] to pay Plaintiffs overtime compensation," in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), and the New York State Labor Law, N.Y. Lab. L. § 190 et seq. ("NYLL"). (Compl. ¶¶ 52, 59; see Defs.' Local R. 56.1 Statement, dated Apr. 1, 2011 ("Defs. 56.1"), ¶¶ 1, 3; Pls.' Local R. 56.1 Statement, dated Apr. 29, 2011 ("Pls. 56.1"), ¶¶ 1, 3.)
At a conference held on January 31, 2011, United States Magistrate Judge Andrew J. Peck, to whom the matter had been referred for general pretrial purposes, suggested that the parties, "to save money," "stipulate that if [Defendants] take X of the eight [Plaintiffs' depositions] instead of all eight, that . . . [P]laintiffs will not call the ones [Defendants] don't depose to in any way contradict anything that the [deposed] co-[P]laintiffs have said." (Tr. of Proceedings before Judge Peck, dated Jan. 31, 2011 ("Hr'g Tr."), at 23:19-23, 24:3-4 (PLS.' COUNSEL: "I think that's a great way to do it just because [Plaintiffs a]re all working in the same task.").) Accordingly, at the deposition of Plaintiff Jose Barranco ("Barranco") on February 11, 2011 - which is the only deposition conducted in this matter - the parties entered into a stipulation ("Stipulation"), agreeing that, "if [D]efendants take less than all eight of the named [P]laintiffs' depositions, . . . [P]laintiffs will not call any of the [other P]laintiffs [whom D]efendants do not depose to in any way contradict anything that the deposed co[-P]laintiffs have said." (Defs.' Mem. of Law in Supp. of Mot. for Summ. J., dated Apr. 1, 2011 ("Defs. Mem."), at 8; see Pls.' Mem. of Law in Opp'n to Defs.' Mot., filed Apr. 29, 2011 ("Pls. Opp'n"), at 8 n.1.) Although Plaintiffs indicated at the conference before Judge Peck that they were "probably going to take two" depositions of Defendants (Hr'g Tr. at 24:16-18), "Plaintiffs failed to take even a single deposition in this action" (Defs. Mem. at 9 n.2).
On April 1, 2011, Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), arguing that "[t]he sole issue in this action is whether Plaintiffs are exempt from the overtime provisions of the FLSA and [NYLL]," and that Barranco's testimony and the sworn declarations, dated March 29 and 31, 2011, of nine other non-party Baldor Captains - "confirm beyond all doubt that . . . Baldor Captains meet the FLSA requirements for 'executive' employees exempt from the FLSA's [and NYLL's] overtime provisions." (Defs. Mem. at 2, 8.)
These declarations were executed, according to Defendants, by "remaining Baldor Captains [who] refused to join Plaintiffs in this baseless lawsuit." (Defs. Mem. at 3.)
On April 29, 2011, Plaintiffs filed an opposition, arguing that Plaintiffs' evidence - consisting of nearly identical sworn declarations, dated April 27 and 28, 2011, from all eight Plaintiffs, including Barranco - "is sufficient to create a dispute with regard to many material facts relevant to the determination of whether [Baldor Captains] were bona fide executives." (Pls. Opp'n at 2.) And, although Plaintiffs indicated at a conference before the Court on March 3, 2011 that they would cross-move for summary judgment, "[o]n further reflection" Plaintiffs now argue that "there are too many genuine issues of material fact to warrant the granting of summary judgment." (Pls. Opp'n at 16 n.2; see Tr. of Proceedings, dated Mar. 3, 2011.)
On May 13, 2011, Defendants filed a reply, arguing, among other things, that "Plaintiffs cannot, as a matter of law, create issues of 'material' fact by improperly contradicting Barranco's sworn testimony and violating the parties' [S]tipulation expressly prohibiting Plaintiffs from doing so." (Defs.' Reply Mem. of Law, dated May 13, 2011 ("Defs. Reply"), at 1.)
The parties waived oral argument.
The following facts are not in dispute:
(i) Baldor employs 20 Captains on its warehouse night shift, each of whom "perform[s] the same job responsibilities," which includes ensuring and directing that products ordered by Baldor's customers are properly loaded by Baldor's "Pickers" on to delivery trucks and "shipped out of the warehouse." (Defs. 56.1 ¶¶ 8, 33, 37; Pls. 56.1 ¶¶ 8, 32; see also infra ¶ iv.) Captains are compensated "on a salary basis at a rate of more than $455 per week" (Defs. 56.1 ¶¶ 3, 11; Pls. 56.1 ¶¶ 3, 11);
(ii) Captains report to Baldor's night warehouse manager, Edwin Rodriguez ("Rodriguez"), who "conducts frequent meetings with the Captains to discuss productivity and performance issues concerning the warehouse department" (Defs. 56.1 ¶¶ 40, 44; Pls. 56.1 ¶¶ 40, 44);
(iii) Baldor also employs approximately 67 Pickers on the warehouse night shift, who are responsible for "picking[] products from Baldor's warehouse shelves and moving them to Baldor's trucks for loading and delivery" (Defs. 56.1 ¶ 9; Pls. 56.1 ¶ 9); and
(iv) each Captain "is responsible to make sure the Pickers on his team [usually between 3 and 6 people] arrive to work on time." (Defs. 56.1 ¶¶ 13, 17; Pls. 56.1 ¶¶ 13, 17.) Captains are also responsible for supervising and directing the Pickers on their respective teams "who work too slowly or make too many mistakes to try to get them to do their jobs better" (Defs. 56.1 ¶ 48; Pls. 56.1 ¶ 48).
The following additional facts were adduced during Barranco's deposition:
(v) each Captain is "in charge of a team" of Pickers and the "main part" of a Captain's job is "to make sure his [P]ickers are doing their job correctly" (Dep. Tr. of Barranco, dated Feb. 11, 2011 ("Barranco Dep."), attached as Ex. A to Decl. of Marc B. Zimmerman, dated Apr. 1, 2011 ("Zimmerman Decl."), at 54:25-55:4, 80:11-17, 103:3-5);
(vi) Captains "make sure that the [P]ickers on [their] team are at an acceptable productivity level," and "give certain orders to certain [P]ickers if they trust[] that [P]icker to get the right product" (Barranco Dep. at 66:23-25, 102:23-103:2, 133:17-20);
(vii) Captains "sign out" and "inspect" the equipment used by the Pickers and are "responsible for completing [a] . . . Picker[] Production Report[] for every [P]icker on his team every single night" (Barranco Dep. at 85:20-24, 117:18-119:19);
(viii) on several occasions, Rodriguez "would ask [C]aptains . . . if a [P]icker should be promoted to [C]aptain" and "if a [C]aptain . . . said yes, . . . [Rodriguez] promoted him to [C]aptain" (Barranco Dep. at 101:13-21);
(ix) because "[t]here's too many" Pickers for Rodriguez to watch on a given night at the warehouse, Rodriguez "relies on the [C]aptains to let him know if their [P]ickers are performing well or not." (Barranco Dep. at 136:13-21.) A Captain participates in "every performance evaluation of a [P]icker" on his team, and may request that a poor performing member of his team be transferred to "another team" (Barranco Dep. at 125:8-25, 137:10-138:7);
(x) "[i]f, despite his efforts, a Captain cannot get a Picker to improve [his or her performance], a Captain will ask [Rodriguez] to transfer [the] Picker . . . to another team," and Rodriguez "do[es] not recall ever refusing a Captain's request that a Picker be transferred." (Decl. of Rodriguez, dated Mar. 29, 2011 ("Rodriguez Decl."), ¶ 36.) Rodriguez also "nearly always grant[s] a Picker a pay raise based upon his Captain's recommendation" (Rodriguez Decl. ¶ 37; see Barranco Dep. at 103:6-105:15); and
(xi) Rodriguez told Barranco "more than 25 times" that Barranco, as a Captain, could "fire" Pickers or "issue a warning to a [P]icker if he wasn't doing a good job" (Barranco Dep. at 135:11-136:8; see also Decl. of Juan Almonte, dated Mar. 29, 2011; Decls. of Pedro Alejo, Arturo Amador, Djibril Camara, David Cruz, Victor DeJesus, Armando Hernandez, Eduardo Perez, and Wilson Zepeda, dated Mar. 31, 2011 (collectively "Non-Plaintiff Captain Decls.")).
For the following reasons, Defendants' motion for summary judgment is granted.
II. Legal Standard
"Summary judgment is proper where there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law." Kelly v. City of Mount Vernon, 162 F.3d 765, 768 (2d Cir. 1998) (citing Fed. R. Civ. P. 56(c)). "On a motion for summary judgment, the court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor." Clarke v. JPMorgan Chase Bank, N.A., No. 08 Civ. 2400, 2010 WL 1379778, at *8 (S.D.N.Y. Mar. 26, 2010) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
"[A]n employer who claims an exemption under the [FLSA] has the burden of showing that it applies." Savage v. UNITE HERE, No. 05 Civ. 10812, 2008 WL 1790402, at *5 (S.D.N.Y. Apr. 17, 2008) (internal quotation marks omitted). "However, in the Second Circuit, employers bear the burden of proof to establish an exemption only by a preponderance of the evidence." Golden v. Merrill Lynch & Co., No. 06 Civ. 2970, 2007 WL 4299443, at *17 (S.D.N.Y. Dec. 6, 2007).
"It is beyond cavil that 'a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that contradicts the affiant's previous deposition testimony.'" Bickerstaff v. Vassar Coll., 196 F.3d 435, 455 (2d Cir. 1999) (quoting Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (internal alterations omitted)).
III. Analysis
Preliminarily, "Plaintiffs fail to cite a single word of [Barranco's February 11, 2011] deposition testimony in opposition to Defendants' motion." (Defs. Reply at 4.) They rely instead exclusively upon Barranco's later-sworn declaration, dated April 28, 2011 (along with substantially identical declarations, dated April 27 and 28, 2011, from the seven other Plaintiffs). All of these declarations appear materially to conflict with Barranco's deposition testimony and clearly to violate the parties' Stipulation to "not . . . in any way contradict anything that [a] deposed co[-P]laintiff[] ha[s] said." (Defs. Mem. at 8; see Pls. Opp'n at 8 n.1; see also Defs. Reply at 4 ("Relying on that [S]tipulation, Defendants did not conduct additional depositions after deposing Barranco.").) Barranco confirmed his supervisory role at his deposition, stating that that the "main part of [his] job" is "to make sure his [P]ickers are doing their job correctly"; that Captains "give certain orders to certain [P]ickers if they trust[] that [P]icker to get the right product"; and that Barranco "ha[s] to inspect" certain warehouse equipment every night "to make sure" it "work[s]," is "not damaged," and is "clean." (Barranco Dep. at 54:25-55:4, 66:23-67:1, 80:11-17, 118:13-119:19.) By contrast, in his subsequent written declaration, Barranco contended that his "main role is to verify that the correct items . . . are picked from the warehouse and placed on the trucks"; that he "cannot assign specific [orders] to specific [P]ickers"; and that he has "no role with respect to the safety, maintenance and repair of warehouse machinery." (Decl. of Barranco, dated Apr. 28, 2011 ("Barranco Decl."), ¶¶ 8, 20, 28; Decls. of Plaintiffs, dated Apr. 27 and 28, 2011 ("Pls. Decls."), ¶¶ 8, 20, 28.)
The (contradictory) declarations of Barranco and the other Plaintiffs were not subject to cross examination and run afoul of the rulings of courts in this Circuit which "have rejected such attempts to rely on declarations that contradict the witness's prior deposition testimony and have granted summary judgment even where the purported new evidence would otherwise create a triable issue of fact." Golden, 2007 WL 4299443, at *9 (collecting cases); see Bickerstaff, 196 F.3d at 455; Hayes, 84 F.3d at 619. "Based on the[se] authorities . . . , the portions of [Plaintiffs' declarations] which conflict with [Barranco's] deposition will be disregarded." Golden, 2007 WL 4299443, at *9.
It should be noted that the parties agree that "[a]ll Baldor Captains perform the same job responsibilities." (Defs. 56.1 ¶ 8; see Pls. 56.1 ¶ 8.)
The overtime compensation requirements set forth in the FLSA "shall not apply with respect to . . . any employee employed in a bona fide executive . . . capacity." 29 U.S.C. § 213(a)(1). This "executive exemption" applies to any employee
(1) [c]ompensated on a salary basis at a rate of not less than $455 per week . . . ;29 C.F.R. § 541.100(a).
(2) [w]hose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
(3) [w]ho customarily and regularly directs the work of two or more other employees; and
(4) [w]ho has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.
Because the "New York Labor Law 'applies the same exemptions as the FLSA,'" Henderson v. Transp. Grp., Ltd., No. 09 Civ. 7328, 2010 WL 2629568, at *1 n.1 (S.D.N.Y. July 1, 2010) (quoting Reiseck v. Universal Commc'ns of Miami, Inc., 591 F.3d 101, 105 (2d Cir. 2010)); see 12 N.Y.C.R.R. § 142-2.2, "the ensuing analysis . . . applies equally" to Plaintiffs' NYLL claims, Bennett v. Progressive Corp., 225 F. Supp. 2d 190, 215 (N.D.N.Y. 2002) (internal quotation marks omitted).
Defendants argue persuasively that the undisputed facts, including Barranco's deposition, "demonstrate that Plaintiffs, like all Baldor Captains, squarely meet all these requirements" in that (1) "Plaintiffs are compensated on a weekly salary of at least $455"; (2) the "primary duty" or "main job" of a Baldor Captain "is to supervise his team of Pickers to make sure they are working efficiently and productively"; (3) "Plaintiffs customarily and regularly direct the work of set teams of three to six" Pickers; and (4) "Plaintiffs participate[] in employee evaluations of their Pickers, [and] recommend[] hiring, pay raises, promotions and disciplinary transfers." (Defs. Mem. at 10, 14, 18, 21.)
Plaintiffs do not dispute requirements (1) and (3) above, i.e., that Captains are "[c]ompensated on a salary basis at a rate of not less than $455 per week" and "customarily and regularly direct[] the work of two or more other employees." 29 C.F.R. § 541.100(a)(1), (3); (see Defs. Reply at 7, 9.) They contend that "Plaintiffs (who report[] to . . . Rodriguez) ha[ve] little or no real management responsibilities" over their teams, which do not constitute "subdivision[s]" under the FLSA; and "Plaintiffs do not believe that their suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees carry any more weight than that of a [P]icker." (Pls. Opp'n at 13, 16, 19.)
"Captains[] are paid a weekly salary of $700 or more for every week they work." (Rodriguez Decl. ¶ 13.)
A thorough analysis of the facts in this case establishes that there is no issue of material fact as to the applicability of the FLSA's executive exemption. Based on Barranco's own description at his deposition of his duties and responsibilities as a Baldor Captain - which, as noted, Plaintiffs concede are the same as those of all Baldor Captains - "Defendant[s are] entitled, as a matter of law, to judgment dismissing Plaintiff[s'] FLSA claim." Savage, 2008 WL 1970402, at *11; (see Pls. 56.1 ¶ 8; Defs. 56.1 ¶ 8.) Captains are exempt from the FLSA's overtime compensation requirements. See 29 U.S.C. § 213(a)(1).
Plaintiffs' Management Duties
Barranco's deposition testimony, which is supported by the nine sworn declarations of Baldor Captains (who are not Plaintiffs in this case), along with the March 29, 2011 declaration of Rodriguez, demonstrate that each Captain's "primary duty is management of . . . a customarily recognized [Baldor] department or subdivision." 29. C.F.R. § 541.100(a)(2). Each Captain clearly "manage[s]" and supervises a team of Pickers. Id. Indeed, such "management" is the Captain's "primary duty," and each team of Pickers constitutes a customarily recognized "department or subdivision" of Baldor, id., as follows.
First, the evidence unequivocally establishes that each Captain is "in charge of" his own team of Pickers, "make[s] sure the Pickers on his team arrive to work on time," "make[s] sure [those] Pickers are doing their job correctly," "make[s] sure that the [P]ickers . . . are at an acceptable productivity level," speaks to the Pickers on his team "who work too slowly or make too many mistakes to try to get them to do their jobs better," "give[s] certain orders to certain [P]ickers if [he] trust[s] that [P]icker to get the right product," participates in "every performance evaluation of a [P]icker" on his team and is "responsible for telling . . . Rodriguez . . . how the Picker is doing his job and how he can improve," requests that Rodriguez transfer poor performing Pickers to "another team," has authority to "issue a warning to a [P]icker if he [i]sn't doing a good job," "complet[es] . . . a Picker[] Production Report[] for every [P]icker on his team every single night," and "sign[s] out" and "inspect[s]" the equipment used by the Pickers "every night." (Barranco Dep. at 54:25-55:4, 66:23-25, 80:11-14, 85:20-24, 102:23-103:5, 117:18-119:19, 125:8-25, 128:4-5, 133:17-20, 135:24-136:3,137:10-138:7; Defs. 56.1 ¶¶ 17, 48; Pls. 56.1 ¶¶ 17, 48; see also Non-Plaintiff Captain Decls. ¶ 46; Rodriguez Decl.).)
These Captain tasks are clearly managerial. See Smith v. First Union Nat'l Bank, 202 F.3d 234, 251 (4th Cir. 2000); Golden, 2007 WL 4299443, at *13-14; Wilbur v. Silgan Containers Corp., No. 06 Civ. 2181, 2008 WL 3863700, at *8 (E.D. Cal. Aug. 19, 2008); Baudin v. Courtesy Litho Arts, Inc., 24 F. Supp. 2d 887, 892 (N.D. Ill. 1998); see also 29 C.F.R. § 541.102 ("'[M]anagement' includes but is not limited to . . . directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; . . . disciplining employees; planning the work; . . . apportioning the work among the employees; . . . controlling the flow and distribution of materials or merchandise and supplies; [and] providing for the safety and security of the employees . . . .").
Plaintiffs' claim that Captains "exercise[] little, if any, independent judgment with respect to matters of significance" (Pls. Opp'n at 13) is unpersuasive, see Beauchamp v. Flex-N-Gate LLC, 357 F. Supp. 2d 1010, 1018 (E.D. Mich. 2005). It may be "applicable to the FLSA's administrative exemption, [but] not the executive exemption present here." (Defs. Reply at 9 n.6 (citing 29 C.F.R. § 541.200(a))); see Beauchamp, 357 F. Supp. 2d at 1018 ("[T]here is no analogous requirement that ['executive' management] duties entail the exercise of . . . independent judgment."). The executive exemption "does not demand complete freedom from supervision, such that [Plaintiffs are] answerable to no one, as this would disqualify all but the chief executive officer from satisfying [the exemption]." Scott v. SSP Am., Inc., No. 09 Civ. 4399, 2011 WL 1204406, at *12 (E.D.N.Y. Mar. 29, 2011) (quoting Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 507 (6th Cir. 2007)).
Second, Captains' "primary duty" at Baldor is to perform these management tasks. 29 C.F.R. § 541.100(a)(2). As Barranco pointed out during his deposition, the "main part" of a Captain's job is to manage his team, e.g., by "mak[ing] sure his [P]ickers are doing their job correctly." (Barranco Dep. at 80:11-17 (DEFS.' COUNSEL: "It's pretty important for a captain to make sure his pickers are doing their job correctly; is that correct?" BARRANCO: "Yes." DEFS.' COUNSEL: "Is that the main part of your job as a [C]aptain?" BARRANCO: "Yes.").) And, Captains "spend more than seven hours of [their] nightly shift performing [their] supervisory responsibilities" and "no more than thirty minutes to one hour each shift [performing non-exempt tasks]." (Non-Plaintiff Captain Decls. ¶ 35); see 29 C.F.R. § 541.700(b) ("[E]mployees who spend more than 50 percent of their time performing exempt [management] work will generally satisfy the primary duty requirement."); Burson v. Viking Forge Corp., 661 F. Supp. 2d 794, 803 (N.D. Ohio 2009) ("While [plaintiffs'] discretion was by no means unfettered and abounding, [they] exercised discretion over important managerial functions on a sufficiently frequent basis to support a finding that management was [their] primary duty." (quoting Thomas, 506 F.3d at 507)); Scott, 2011 WL 1204406, at *8 ("[C]rediting [p]laintiff's testimony . . . , it is clear that [p]laintiff's management duties were more important to the success of [d]efendant's business than her other duties."); Beauchamp, 357 F. Supp. 2d at 1018-19; Wilbur, 2008 WL 3863700, at *7-8 (citing Donovan v. Burger King Corp., 675 F.2d 516 (2d Cir. 1982)); see also Smith, 202 F.3d at 251; Golden, 2007 WL 4299443, at *13-15.
Third, each team of (3 to 6) Pickers constitutes "a customarily recognized [Baldor] department or subdivision." 29 C.F.R. § 541.100(a)(2). "Crews" or "shifts" within the structure of a larger organization or department constitute "customarily recognized subdivisions" for purposes of the executive exemption. See Burson, 661 F. Supp. 2d at 800 ("Plaintiff supervised the D Shift, which was one of the four subdivisions of the [larger] department. The four shifts were ongoing units with a permanent status and a continuing function. . . . [E]mployees generally stayed on one shift and worked under one supervisor. As such, each shift constituted a separate subdivision of the [larger] department." (internal citation omitted)); Baudin, 24 F. Supp. 2d at 893 ("[Plaintiff] clearly supervised the six or seven employees who worked in [his] department . . . ."); Wilbur, 2008 WL 3863700, at *2 ("[Plaintiff] provide[d] front-line day-to-day management and supervision" to a "crew[] of twelve or thirteen" people, and there were "four different crews"); Beauchamp, 357 F. Supp. 2d at 1018-19. Plaintiffs do not appear to dispute that each team of Pickers has a "permanent status and continuing function" within the Baldor night shift. (Defs. Reply at 7); Burson, 661 F. Supp. 2d at 800; 29 C.F.R. § 103(a) ("The phrase 'a customarily recognized department or subdivision' is intended to distinguish between a mere collection of employees assigned from time to time to a specific job or series of jobs and a unit with permanent status and function.").
Plaintiffs' Authority to Fire
The evidence also establishes unequivocally that Captains "ha[ve] the authority to . . . fire" the Pickers on their team. 29 C.F.R. § 541.100(a)(4). Barranco testified that Rodriguez told him "more than 25 times" that he could fire a Picker on his team. (Barranco Dep. at 135:11-23; see also Non-Plaintiff Captain Decls. ¶ 39 ("Rodriguez told me that I could write up, or even fire one of my Pickers if he was not doing a good job."); Rodriguez Decl. ¶ 34 ("[T]he Captain is responsible for speaking to, counseling, disciplining or even terminating [an unsatisfactory] Picker, at his discretion.").)
Plaintiffs' attempt to rebut the strong evidence of Captains' firing authority is unpersuasive. (See Pls. Decls. ¶ 10.) At Barranco's deposition on February 11, 2011, Barranco answered "I don't remember" when asked whether he was informed by Rodriguez of his authority to fire Pickers "between July 2, 2006 and [February 11, 2011]." (Barranco Dep. at 138:8-14.) In his declaration, dated April 28, 2011, he states: "I was never told I could hire or fire anybody until after the Complaint in this case was filed [in August 2010]." (Barranco Decl. ¶ 10.) "To the extent that [Barranco's] earlier deposition testimony is at odds with his declaration, we follow the rule that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1995) (where witness testified in his declaration as to facts that, "[i]n his deposition eleven months earlier, . . . he could not remember"); see Golden, 2007 WL 4299443, at *9 ("[C]ourts in the Second Circuit are particularly reluctant to credit affidavit testimony that alleges critical, obviously material facts that were not mentioned at deposition, noting that such circumstances strongly suggest a sham affidavit." (citing Bunting v. Nagy, 452 F. Supp. 2d 447, 460 (S.D.N.Y. 2006))).
Even if, arguendo, Captains did not have firing authority - which reliable evidence establishes that they do - "courts uniformly reject arguments that an employee cannot be an exempt executive if he cannot make hiring or firing decisions or is [otherwise] subject to rigid supervision," Pollard v. GPM Invs., LLC, No. 10 Civ. 115, 2011 WL 864329, at *8 (E.D. Va. Mar. 10, 2011) (collecting cases); see Burson, 661 F. Supp. 2d at 802-03 (collecting cases), because an employee "whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight," will also qualify for the executive exemption. 29 C.F.R. § 541.100(a)(4); see Mullins v. City of N.Y., No. 04 Civ. 2979, 2008 WL 4620709, at *3 (S.D.N.Y. Oct. 17, 2008); Rozenblum v. Ocean Beach Properties, 436 F. Supp. 2d 1351, 1364 (S.D. Fla. 2006).
"To determine whether an employee's suggestions and recommendations are given 'particular weight,' factors to be considered include, but are not limited to, whether it is part of the employee's job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee's suggestions and recommendations are relied upon." 29 C.F.R. § 541.105. Here, Captains' suggestions and recommendations were clearly accorded such weight. See page 13-14.
In sum, the evidence overwhelmingly establishes that Captains manage Pickers and participate in "every performance evaluation of a [P]icker" on his team, take underperforming Pickers "to the office" to speak to Rodriguez, and are authorized to "issue a warning to a [P]icker who [i]sn't doing a good job." (Barranco Dep. at 129:15-18, 133:13-16, 135:24-136:8, 137:10-13; see Non-Plaintiff Captain Decls. ¶ 43 ("After [Rodriguez and I] discussed [a] problem [regarding a Picker], . . . Rodriguez would ask me how I thought the problem should be handled and he followed my recommendation.").) Rodriguez "relies on the [C]aptains to let him know if their Pickers are performing well or not." (Barranco Dep. at 136:13-21; see Rodriguez Decl. ¶ 12.) If "a Captain cannot get a Picker to improve [his or her performance], a Captain will ask [Rodriguez] to transfer [the] Picker . . . to another team," and Rodriguez "do[es] not recall ever refusing a Captain's request that a Picker be transferred." (Rodriguez Decl. ¶ 36.) And, Rodriguez "nearly always grant[s] a Picker a pay raise based upon his Captain's recommendation." (Rodriguez Decl. ¶ 37; see Barranco Dep. at 103:6-105:15.) Each of the nine non-Plaintiff Captain declarants testified that he was promoted from Picker to Captain only after his supervising Captain recommended him for promotion during a performance evaluation. (Non-Plaintiff Captain Decls. ¶ 16; see Rodriguez Decl. ¶ 37 ("[W]hen a Captain recommends that one of his Pickers be promoted to Captain, I nearly always will promote that Picker as soon as there is a need for a new Captain to supervise an existing team or a newly created team of Pickers."); see also Non-Plaintiff Captain Decls. ¶ 47 ("Rodriguez followed my recommendations concerning pay raises and promotions.")); see Pollard, 2011 WL 864329, at *10 ("[Each plaintiff] recommended employees and at least one person . . . recommended [by each plaintiff] was hired. Thus, the Court finds that each [p]laintiff had sufficient input in the hiring, firing, and promotions process to justify their [executive] exemptions.").
In light of Barranco's repeated admissions at his deposition and the other evidence in the record, no reasonable jury could conclude that Plaintiffs were not managers. See Kahn v. Superior Chicken & Ribs, Inc., 331 F. Supp. 2d 115, 120 (E.D.N.Y. 2004).
IV. Conclusion and Order
For the foregoing reasons, Defendants' motion for summary judgment [#21] is granted. The Clerk of the Court is respectfully requested to close this case. Dated: New York, New York
June 16, 2011
/s/ _________
RICHARD M. BERMAN, U.S.D.J.