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Grage v. Northern States Power Co.

United States District Court, D. Minnesota

September 16, 2014


Page 845

Matthew H. Morgan and Timothy C. Selander, NICHOLS KASTER, PLLP, Minneapolis, MN, for plaintiff.

Marilyn J. Clark, Melissa Raphan, and Ryan E. Mick, DORSEY & WHITNEY LLP, Minneapolis, MN, for defendant.

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JOHN R. TUNHEIM, United States District Judge.

Plaintiff Veronica Grage brings this claim against her employer, Northern States Power Company -- Minnesota (" NSP" ) for failure to pay her overtime in violation of the Fair Labor Standards Act (" FLSA" ). Both parties move for summary judgment. NSP argues that there is no genuine dispute of material fact that Grage is exempt from overtime under the FLSA because her position as a " Supervisor I" falls under either the " administrative" or the " combination" exemption of the FLSA. Grage moves for partial summary judgment, arguing that there is no genuine dispute of material fact that one of the three requirements for the administrative exemption is not met. The Court concludes that undisputed facts indicate that Grage does not fall within the administrative exemption because her primary duty does not directly relate to the management or general business operations of NSP. The Court also concludes that she does not fall within the combination exemption. The Court will therefore deny NSP's motion for summary judgment and grant Grage's, but only in part, because it concludes that fact issues remain with regard to the question of liquidated damages.


Grage was hired by NSP in 1978. She first worked as an account clerk and has also worked as a job closer, senior associate, and damage prevention coordinator before becoming a " Supervisor I." (Third Decl. of Matthew H. Morgan, Ex. 3 (Dep. of Veronica Grage (" Grage Dep." ) 31-32), Nov. 20, 2013, Docket No. 72.) She became a Supervisor I in June of 2007, and in that role has worked exclusively at NSP's Chestnut Service Center, which covers a geographic area including all of Minneapolis, Golden Valley, Crystal, Fridley, and Columbia Heights. ( Id. 32-33.) Jeffrey Custer was her manager for her first eight to nine months as a Supervisor I and she has reported to Steve Smieja ever since. ( Id. 32.)


As a Supervisor I at the Chestnut Service Center, Grage is primarily responsible for compiling service work orders and assigning them to work crews to be completed. There are twenty-six men who work at the Chestnut Service Center available to be assigned to work crews. Grage receives work orders from other employees called " designers," and creates a schedule based on the work that needs to be done,

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creating work crews based on the number of people and hours necessary for each task, and ensuring that there is equipment available for each project.

A. Grage's Account of Her Job Duties

In her deposition, Grage explained her job duties as follows:

I give [the work crews] their job duties. I hand out their work packet to them every day. And if they need extra help with another crew or if they have to dig a hole and there's a ton of underground facilities in the ground, . . . it's my responsibility to have what they call a vac truck. It's an outside contractor that I have to set up to schedule with them. I set that up to make sure that this job gets done safely.

( Grage Dep. 45.) She further explained that she has " 26 employees . . . to fill my roster with," and that this can involve arranging them into crews of various sizes, which are assigned a variety of projects with a variety of equipment. ( Id. 56.) She testified that this kind of arranging is necessary because " you have to have a certain type of work to give to a certain crew, because of the trucks and the work that -- any crew can do anything if they have the right equipment and truck to do it." ( Id. ) She receives and discusses the work orders delineating each job at meetings with the designers, who generate the work orders. ( Id. 199-201.) Each designer submits jobs that need to be done, which are included in a report which lists the job, an " in-service" date, and the designer submitting the work order. ( Id. 202.) After the meetings, Grage assigns work crews to the various work orders. ( Id. 202-03.)

According to Grage, her determination of the number of crews working on a given day depends on her assessment and evaluation " of what jobs need to be done and how to get [them] done." ( Id. 57.) She also determines the composition of each crew:

every guy cannot work with every guy. We have foreman, we have journeymen, we have apprentices, and now we have a helper. Two apprentices cannot consist of a crew. You have to make sure you have the right crew complement. You have to make sure that you have the right vehicle. You have to make sure you have the right equipment to do the jobs.

( Id. 86-87.) Grage explained that she has to try to plan in advance so that the same equipment is not needed for two different tasks on a given day. ( Id. 59.) If it happens that the same piece of equipment is needed on a given day, she looks at the job and " work[s] with the designer of the job. And I have to work with the designers to see which one is a priority." ( Id. )

Grage is also responsible for adjusting the schedule to accommodate emergencies or other situations requiring a change in the schedule. She decides what jobs the crews will start with and, if a situation arises in the middle of the day, she is responsible for reassigning crews to different locations or jobs and allocating equipment based on the jobs. ( Id. 58.)

When designers give her work orders, she has to accept the work orders. This part of her job is called " work acceptance process" -- the handoff of a work order packet from the designer to the Supervisor I. (Second Decl. of Matthew H. Morgan, Ex. 6 (Dep. of Jeffrey Custer (" Custer Dep." ) 88), Oct. 31, 2013, Docket No. 66.) This responsibility requires her " to understand, know and be able to figure out [] the materials," to see if they are correct and, if not, to give them back to the designer to be fixed. ( Id. ) To accomplish all of this, she is required to log on to an

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application at the start of the workday that includes several bullet points of what a Supervisor I is required to do, including " [c]heck calendar for vacation, meetings, et cetera," and " [c]heck PPWR's for referrals from TRBL screen print to process," " [c]omplete crew roster by 6:50," " [p]rocess incoming work orders, work acceptance process, RFO's, material locates, permits, equipment, etc." (Third Morgan Decl. Ex. 4 (Dep. of Stephen Smieja (" Smieja Dep." ) 37-39).)

Grage estimates that fifty percent of her job is office work, the other part is scheduling, and she acknowledges that her work is " office or non-manual" work. (Grage Dep. 245-48.) At one point in her deposition she was asked about how she describes her job to others in social situations:

Q: What do you tell people--how do you describe your job when people ask you what you do, whether you're meeting them for the first time or whatever the circumstances might be?
A: I tell them that I work with the underground crews in Minneapolis. I schedule the work for approximately 26 guys.
Q: Okay. That's pretty much the description you give if somebody asks you what you do?
A: If they sounded more interested I would say more. But that's about it. 'Cause sometime they don't sound interested. So most of the time.
Q: I'm extremely interested. So one of those people who is interested, how do you expound upon your responsibilities?
A: Actually I tell them that I get to go to work and I get to tell 26 guys what they have to do today.
Q: A dream come true for my wife if she could have it. Okay.
A: So I dispatch work to various guys, you know, various crews for the day. I said, " And there's a lot to it." I said, " You have to be organized and you have to be able to multi-task. And you have to be able to change directions in the snap of a finger."

( Id. 120-21.)

B. NSP and Grage's Supervisors' Accounts of Her Duties

According to Grage's supervisor Smieja,

[Grage] manages the process from finding out that the job is going to working with the designer to making sure that packet is correct and we have the right accounting and the right material to, to coordinating other entities, whether it be contractors that need to work with us to complete the project or the city or state or county officials that will be working on their property to actually the proper skillsets, if you will, of the crew members to complete the project, to getting them the equipment and the trucks they need to complete it and basically write down the [sic], going in in the morning and handing it to them and go, okay, this is what we're doing on this job . . . .

( Smieja Dep. 61.) He considers her the " [h]ub to success of the organization," or " a crucial cog." ( Id. 74.)

NSP Director of Design and Construction Jeffrey Custer describes the Supervisor I position as having " a primary job function of[] scheduling work . . . . They work with our design department . . ., that works with customers to create designs." (Custer Dep. 8, 26.) He explained that " Supervisor I's would negotiate with those designers on dates for the work to be accomplished. They would also once they get that work agree to the dates, they

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would need to prioritize what work gets done when." ( Id. 26.) According to Custer, Supervisor Is must figure out which equipment is required, make sure that permits are in place, make sure any pre-work is done, and reprioritize on a day-to-day basis and throughout the day based on emergencies that arise. ( Id. 26-27.) NSP classifies Grage's job, Supervisor I, in the " production operations" job family at NSP because " it is part of supplying energy to our customers," which is NSP's business function. (Second Morgan Decl., Ex. 7 (Dep. of Mollie Kelman (" Kelman Dep." ) 63).)

C. History of the Position at NSP

Supervisor Is were previously referred to as schedulers, even though the responsibilities largely remained the same after the position's title change. (Custer Dep. 42-44.) They were also called coordinators, which were salaried, and had largely the same responsibilities. ( Id. ) In describing the transition to Supervisor Is, a former NSP Human Resources employee stated, " Well, we already had a coordinator position that was in place so we used that as a baseline, but the team had a desire to create a career path, and so one of our responsibilities was to compose the job description to include the new responsibilities which would be managing, directing, prioritizing, re-prioritizing work for those incumbents" [meaning the people transitioning from the coordinator to the Supervisor I position]. (Aff. of Ryan E. Mick, Ex. D (Dep. of Kathryn Gade) 20, Nov. 20, 2013, Docket No. 75.)

The Manager of Compensation who is in charge of FLSA classifications agreed that it was accurate that when that change was made, " there was no independent review of the Supervisor I position regarding classification because the Coordinator position had been an exempt position, and then there was the creation of the Supervisor I and II positions, and it just continued to remain as an exempt position." (Kelman Dep. 10, 83-84.)


The record includes details of several specific aspects of Grage's duties and expectations in her role as a Supervisor I. The Court will recite those that are relevant to the instant motions.

A. Prioritization of Work Orders

Part of Grage's job is to prioritize different work orders to maximize the work of the crews and the use of equipment. Sometimes this requires adjusting the schedule. In discussing her responsibility regarding daily plan adjustments, Grage explained that this is important because " you want to give work to the crews to make sure that you're utilizing them to the best of their ability. You don't want to give them a job with a truck they cannot get the work done in." (Grage Dep. 86.)

Some of the considerations that go into prioritizing and scheduling work include employee absences, the amount of pre-work required for a specific order, and the in-service date. ( Id. 86-87, 133.) Sometimes jobs need pre-work, such as boring or approval to dig, so she has to take into account how much lead time certain types of projects might require. ( Id. 133.) Grage testified that it can be a challenge to do this work because of employee absences, so " [j]ust trying to put all that together can be a challenge." ( Id. at 94.) The " in-service date" is a major piece of how a job is prioritized. ( Id. 203.) She explained that " [e]ach job has an in-service date. So in the morning if I come in and we had a crew work last night and a certain job had to be pushed out, a lot of it depends on the in-service date of each job.

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I look at the . . . job, you know, how long we've had it, if I've had a crew on it. Many things go into that." ( Id. 86.) She sometimes determines when an in-service date can feasibly be achieved, but she estimated that she is overruled by Smieja approximately twenty percent of the time. ( Id. 206-07.) According to Grage, the designers ...

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