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Schmidt v. Eagle Waste & Recycling

March 22, 2010


Appeal from the United States District Court for the Western District of Wisconsin. No. 3:08-cv-00230-bbc-Barbara B. Crabb, Chief Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.


Before POSNER, FLAUM, and SYKES, Circuit Judges.

The plaintiff, Tammy Schmidt, brought this action for monetary relief under the Fair Labor Standards Act ("FLSA"), alleging that she was not paid overtime due under the Act. The defendant, Eagle Waste and Recycling, Inc. ("Eagle"), moved for summary judgment, arguing that Schmidt was exempt from the act because she was either an "outside salesperson" or a combination of an "outside salesperson" and an "administrative employee." Taking Eagle's proposed findings of fact as true because Schmidt failed to contest them in the manner prescribed by the local rules, the district court granted summary judgment for the defendant. Schmidt appeals, arguing that the district court erroneously denied her an opportunity to cure the defects in her response brief, failed to "liberally construe" the FLSA, and incorrectly applied the "outside salesperson" and "combi-nation" exemptions to the FLSA. We affirm.

I. Background*fn1

Eagle, a corporation located in Eagle River, Wisconsin, is in the business of waste removal from residential and commercial properties. Alan Albee is the president of Eagle and has been since its founding on July 1, 2005. Albee hired Schmidt on September 12, 2005. According to Eagle, Schmidt was hired as a sales representative and adopted the title of "account representative" with Albee's permission. Schmidt reported to Albee, her sole supervisor.

Schmidt's duties included contacting potential commercial customers at their places of business and convincing them to use Eagle's waste disposal and recycling services. She was responsible for bringing in new customers, and maintaining and increasing the business of existing customers. Schmidt spent some time in the office on approximately half of her workdays. On those days, she was in the office between one and four hours. Schmidt spent four to eight hours a day outside the office making sales calls to current and potential customers. Schmidt would schedule in-person sales calls in the mornings and afternoons so that she could meet with these customers on the way to and from the office. She controlled the amount of time she spent on these calls. She was also authorized to negotiate prices with customers. For her efforts, she was paid a commission on sales in addition to her base salary.

Schmidt also had promotional and marketing duties. She conferred frequently with Albee to determine new locations and businesses to target. Schmidt would then develop a marketing campaign that Albee would review. Schmidt spent time in and out of the office promoting Eagle. For example, she attended weekly chamber of commerce meetings and social functions, where she distributed business cards and flyers, talked to area business people, and sold services Eagle offered. Schmidt spent approximately five or six hours a week promoting Eagle outside the office, including two to four hours a week at chamber of commerce meetings. She spent another ten hours a week working on promotional and marketing efforts at the office.

Finally, Schmidt was responsible for customer service and maintaining the customer database. She made in-person visits to resolve any service problems her customers had, ranging from confusion with neighbors' containers to billing and accounting. Her database tracked current customers, prospects, and lost customers. She used the database to collect money owed by her customers, sometimes adjusting bills if a customer had a complaint or concern. These collections formed the basis of her commission payments.

Occasionally, other employees consulted Schmidt when Albee was out of the office. For example, if a customer complained about service, Schmidt would decide whether to give the customer a credit on the next bill. If a vehicle needed to be repaired, Schmidt would sometimes authorize the ordering of replacement parts without consulting Albee.

When she was hired in September 2005, Schmidt's base salary was $384.62 a week plus commission. Beginning January 1, 2006, she received a base salary of $461.54 a week plus commission. She received $26,319.75 in commissions during her time as an employee of Eagle, which ended on December 31, 2007.

Schmidt brought this action in state court on April 4, 2008. Eagle removed the case to federal court and answered the complaint on April 23, 2008. On May 15, 2008, Magistrate Judge Stephen Crocker held a pretrial conference in which he set deadlines for discovery and a trial date. Notice of these deadlines was sent to both parties along with a copy of the procedures for briefing sum-mary judgment motions. Following depositions of Schmidt and Albee, Eagle filed its motion for summary judgment on November 13, 2008. Schmidt filed her brief in opposition to Eagle's motion on December 4, 2008, before the deadline of December 15, 2008. That same day, she filed a sworn affidavit making various statements in support of her response. Eagle filed its reply on December 12, 2008, raising Schmidt's failure to respond to its proposed findings of fact in accordance with the local rule and asking that Schmidt's affidavit be stricken because it contradicted her deposition testimony. On December 26, 2008, Schmidt filed a motion for leave to file a sur-reply brief and to modify her responses to Eagle's proposed findings of fact. The brief and proposed findings of fact she sought to file were not included with the motion.

On February 25, 2009, the district court entered an order denying Schmidt's motion for leave to file a sur-reply brief and correct her proposed findings of facts. The same order granted ...

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