Opinion
F073718
12-04-2018
SUSAN PASQUALE, Plaintiff and Appellant, v. FRESNO'S CHAFFEE ZOO CORPORATION, Defendant and Respondent.
Susan Pasquale, in pro. per., for Plaintiff and Appellant. Lebeau Thelen, Daniel K. Klingenberger and Patrick Charles Carrick, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CECG02398)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge. Susan Pasquale, in pro. per., for Plaintiff and Appellant. Lebeau Thelen, Daniel K. Klingenberger and Patrick Charles Carrick, for Defendant and Respondent.
-ooOoo-
Plaintiff Susan Pasquale was employed with the title of business manager by defendant Fresno's Chaffee Zoo Corporation (the zoo) from 2006 until her termination in 2012. She sued the zoo in 2013, alleging she had been misclassified as an exempt employee. She claimed unpaid overtime wages as damages.
The gist of Pasquale's claim was that, although she bore a management title in the accounting department throughout her employment at the zoo, that department was in reality directly managed by her supervisor, the zoo's chief financial officer. She claimed she never had substantial independent or discretionary duties, and her authority over the accounting clerks nominally reporting to her was constantly undermined, so she was really only an accounting clerk herself.
After a bench trial, the trial court entered a defense judgment, finding Pasquale had not been misclassified. On appeal, acting in propia persona, Pasquale maintains the trial court's conclusion was not supported by sufficient evidence. We disagree. She also claims the trial court's inclusion, in its statement of decision, of language drafted by opposing counsel shows the court was biased. She is mistaken.
We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Pasquale's complaint, filed in the superior court on July 30, 2013, alleged that the zoo misclassified her as an exempt employee under the Industrial Welfare Commission's wage order No. 10-2001 (Cal. Code Regs., tit. 8, § 11100), referred to in the record as Wage Order 10. Based on this allegation, Pasquale claimed the zoo failed to pay her for overtime hours worked, failed to make timely payment of a portion of the compensation due at severance (i.e., the overtime pay), and engaged in an unfair business practice under Business and Professions Code section 17200, presumably by not paying overtime. (The complaint itself is not included in the appellate record.) The matter was tried to the court over five days beginning August 31, 2015.
At trial, the evidence established that Pasquale worked at the zoo from July 20, 2006, to May 30, 2012. It is undisputed that, because of the statute of limitations, only the period either three years or four years prior to the filing of the complaint would be relevant for purposes of computing damages. Throughout the trial, however, evidence was admitted of events occurring from Pasquale's hiring onward, for its potential relevance to the nature of her job duties as they were during the limitations period.
A document was admitted at trial that bore a date around the time of Pasquale's hire and that purported to state the terms of her employment. It stated that her title was business manager and her annual salary was $45,000. The position reported to the director of administration and finance, and was "responsible for financial management policies and procedures, including internal control and the accounting systems." Under the heading "General Summary," the job description listed the following tasks: preparing the budget and establishing a budget process; approving all accounting entries; preparing monthly unaudited financial statements for the zoo's board of directors and the Fresno County Tax Authority Board; coordinating audits; performing bank reconciliations; analyzing and reconciling all general ledger accounts; posting journal entries; reviewing the payroll, cash controls, accounts payable and receivable; supervising clerical staff; and performing other duties as assigned. The minimum qualifications for the position were a bachelor's degree in accounting, finance, or business administration, or an associate's degree with equivalent experience, plus five years of management and supervisory experience in accounting.
The resume Pasquale submitted when she applied for the position was also admitted into evidence. It showed she had a bachelor's degree in business administration and a master's degree in organizational behavior. It also showed she had worked in accounting since 1985, including jobs as an accounting supervisor and a senior accountant/analyst. Not shown on the resume, according to her testimony, were periods of work as a temporary assistant controller at two different firms.
Shelly Morrison was the supervisor who hired Pasquale and supervised her work during her first few months on the job. In Morrison's recollection, Pasquale's title was accountant auditor. Morrison did not recall the title business manager being used. Morrison hired Pasquale to do all the bookkeeping, balance the accounts, and to audit those operations in which cash was received. Pasquale also was responsible for designing accounting and auditing procedures. The zoo's bookkeeping was substantially backlogged at the time Pasquale was hired, and Morrison relied on Pasquale to use her independent judgment in bringing it up to date, with Morrison's oversight. But Pasquale had no input into hiring or firing other employees, was not involved in financial planning or budgeting, and was not the one who reviewed and approved accounting records. Morrison left the zoo in September 2006.
Morrison's replacement was Chief Financial Officer Brian Goldman, who supervised Pasquale for the remainder of her tenure at the zoo. The overarching theme of Pasquale's testimony was that, under Goldman, she was never allowed to be what she referred to as a "real [b]usiness [m]anager." She testified that, in her opinion, "[a] real [b]usiness [m]anager is involved with all the business at the zoo, [is kept] abreast of all business information, manages, helps manage the business affairs of the zoo. Just highly involved in, you know, everything." In Pasquale's view, her actual job responsibilities did not live up to this description, so she felt she was not really a manager.
Pasquale described several areas of her work at the zoo. She asserted that she had almost no managerial responsibilities in any of these areas and was "mainly an accounting clerk and/or bookkeeper."
She was responsible for maintaining and reconciling the corporation's computerized general ledger and using it to generate monthly unaudited financial statements. But there were other employees who also prepared journal entries for posting to the general ledger; and to produce the monthly financial statements, Pasquale only had to "press a button," she claimed. A separate set of financial statements was prepared monthly for the zoo's board of directors. But Goldman created these reports and Pasquale only "did the clerical part of it," entering data in a spreadsheet, according to her testimony.
Pasquale had responsibilities related to the corporation's annual outside audit. As she described it, however, her sole duty in handling the audit was to collect and produce information requested by the auditors.
Pasquale also had responsibility for preparing claims for funding from the Fresno County Zoo Authority under Measure Z. Measure Z was a local ballot initiative under which the zoo, then a department of the city government, became a private nonprofit corporation and began to receive dedicated sales tax funding. The Zoo Authority is the public body charged with the duty of disbursing these funds to the zoo. The zoo submits separate claims for operational expenses and capital projects. By the end of her employment, Pasquale was working on the operational expense claims and being trained by Goldman on the capital projects claims. As she described them, however, her tasks on the Measure Z claims were clerical. All she had to do was compile information and use it to fill out a form.
Pasquale was the direct supervisor of three bookkeepers: Mayra Bogenwright, Kha Xiong, and Lisa Escobar. Bogenwright worked under Pasquale full-time, and Xiong and Escobar did so part-time. Pasquale assigned work to her supervisees, trained them, coordinated their cross-training of one another, conducted staff meetings with them, gave them periodic performance evaluations, recommended pay increases for them, and in one instance (Xiong's) recommended her hiring. Pasquale testified that her supervisorial duties occupied little of her time, however. She also felt, for several reasons, that she was not treated as a real supervisor. For example, Goldman and his administrative assistant sometimes assigned work directly to Pasquale's supervisees, changed their schedules, or lent them to other departments without consulting with Pasquale. She testified that this illustrated "the fact that Brian Goldman was the actual supervisor of the zoo administration office and not me." Goldman sometimes told her there were tasks he had to carry out himself, decisions she could not make without his authorization, information she did not need, and work of hers that he would have to review. Pasquale claimed all her supervisees told her Goldman once said they should not worry because he would not allow Pasquale to discipline or fire them. Shortly before Pasquale's termination, after tensions had developed between her and her supervisees, she attempted to arrange closed-door meetings with each of them individually. The human resources manager prevented her from doing this.
Pasquale testified about numerous email exchanges between herself and Goldman that, in her view, showed she was not afforded the authority, discretion, or dignity befitting a manager. For example:
¦ Pasquale was responsible for monitoring the zoo's cash flow, but did not have authority to move money from account to account. In an email message from Goldman to Pasquale, Goldman wrote, "You cannot transfer money from the money market account. So if you run low, you will have to talk to Scott [Barton, the zoo's chief executive officer (CEO)]."
¦ A project manager named John had been communicating directly with the Zoo Authority regarding reimbursements for expenses, instead of going through the zoo's management. Goldman emailed Pasquale to tell her he would resolve the matter with John himself, so she should not take any action. Pasquale testified that she believed a business manager should be allowed to handle such an issue.
¦ Emails between Goldman and Pasquale showed that Goldman gave Lisa Escobar permission to attend a seminar without first discussing it with Pasquale.
¦ Goldman sent an email message to Pasquale directing her to ask Scott Barton, the CEO, to sign an insurance binder. Pasquale felt that, as business manager, she should have been given responsibility for handling insurance policies and should have had authority to sign.
¦ Pasquale missed a deadline. In an email, Goldman wrote, "You, alone, do not get to decide when deadlines are met and when they can be pushed off." Pasquale thought the deadline in question was unreasonable and, as business manager, she should have had discretion to change it.
¦ Pasquale wrote in an email to Goldman that she was not in possession of a certain tax return. She testified that a real business manager would have had it.
¦ Pasquale stated in an email to Goldman that her name had been removed from an email list that was used for communications between the zoo and the Zoo Authority regarding the zoo's Measure Z claims. In her testimony, Pasquale surmised that Goldman had removed it: "So I had to depend on him to spoon feed me information if he felt like."
¦ Pasquale emailed a question to Goldman about whether certain expenditures should be capitalized or expensed. Goldman replied with a request for more information. Pasquale testified that, as business manager, she should have been allowed to make the decision herself, without asking her supervisor.
¦ Pasquale stated in an email that someone had unlocked a bookkeeper's desk with a key and removed a credit card, without going through the proper procedure. She believed someone must have authorized this without consulting with her. Pasquale testified that as "someone who's supposed to be a supervisor," she should have been told who had access to keys.
Pasquale's overall assessment of her job at the zoo was that it was essentially clerical. "I spent most of my day doing data entry, using the calculator, and inputting information into the computer," she testified.
In his testimony, Goldman assessed Pasquale's duties differently.
Goldman testified that Pasquale had oversight responsibility for the general ledger. Her duties included reviewing and approving journal entries before posting them to the general ledger. Ensuring the entries' correctness sometimes involved research and sometimes required obtaining additional documentation from counterparties to transactions. Goldman estimated that Pasquale approved and posted thousands of journal entries during her tenure, and made hundreds of reclassifications of these. She prepared monthly income statements and balance sheets using the general ledger program, as well as a variety of other financial reports for the zoo's board of directors. Annually, Pasquale was responsible for reconciling the general ledger, a task Goldman described as complex and requiring analysis and judgment. Pasquale also had oversight responsibility for accounts payable, accounts receivable, and payroll. Her staff entered the data and Pasquale was accountable for ensuring the work was done correctly. Under her supervision, Pasquale's staff also balanced the cash receipts and prepared the bank deposits. Pasquale monitored the cash flow and alerted Goldman when money needed to be shifted between accounts.
Pasquale also was responsible for preparing Measure Z claims, which involved analyzing invoices to determine which expenses were reimbursable. She sometimes contacted Zoo Authority personnel on her own initiative to get questions answered or resolve difficulties with the Measure Z claims.
In her role as the management contact for the outside auditors, Pasquale was expected to resolve problems that arose during the process and answer the auditors' questions—not just gather documents the auditors requested. She was successful in that role. "We had great audits" and no management letters were issued by the auditors in the years when Pasquale participated, Goldman testified.
Goldman testified that he was primarily responsible for preparing the zoo's budget each year, but Pasquale worked with him and her responsibility gradually increased. She helped ensure that accounts balanced at year-end. Goldman sent staff members from other departments to Pasquale when they needed help gathering the accounting information they needed to prepare their budget request for the coming year.
Goldman testified that he did not supervise Pasquale's work on a day-to-day basis. They had meetings once a week with occasional consultations in between. He felt he could give Pasquale tasks and projects and leave her to complete them on her own. For example, he directed her to make sure the members of her staff were cross-trained on each other's duties. He left it to Pasquale to determine, without any direction from him, who would be cross-trained on what tasks, and how the cross-training would be carried out. Similarly, Goldman directed Pasquale to review and document all internal cash controls used throughout the zoo. She did so, and brought him recommendations for improving the control procedures, most of which he directed to be implemented.
Pasquale carried out independent research to solve accounting and finance problems, according to Goldman. He mentioned as an example the research she did to determine whether the zoo needed to make quarterly use tax payments to the state on purchases for which the vendor did not charge sales tax on the invoice. She recommended a policy on this and he implemented it. Another problem Pasquale solved by means of her own research involved the basis for reporting employees' vacation pay on the Measure Z claims. She determined that, for Measure Z purposes, the zoo should report vacation pay actually paid in the relevant period, rather than vacation pay accrued.
Goldman was away from the office for medical reasons for a substantial portion—about nine or 10 months—of the time that falls within the limitations period in this case. For another eight or nine months, he worked part time as he continued to recover. Pasquale's management responsibilities were greater during those times than during times when Goldman was present.
Goldman explained that the reason Pasquale was not a signer on the bank accounts was that she had authority to write checks, and it is a common business practice to separate the two functions to reduce opportunities for embezzlement. Similarly, Pasquale was not authorized to transfer money between accounts because she was responsible for making general ledger entries. A person who had both powers would be able to transfer money to a non-zoo account and conceal the theft by means of bogus general ledger entries.
Goldman indicated that in the incident in which Pasquale did not talk to John the project manager—which she viewed as a slight to her hierarchical status—she was performing in accordance with his expectations by bringing the problem to his attention so he could solve it. When Pasquale was not allowed to sign an insurance binder, this was because the insurer required the signature of a company officer, which meant either Goldman or Barton. Pasquale did have insurance-related duties, however. She frequently spoke to the zoo's carrier about matters such as workers' compensation insurance, vehicle insurance or insurance for the zoo's 401(k) plan, and had duties related to the administration of those insurance policies.
Pasquale was very thorough with her staff's performance evaluations, Goldman said. He reviewed them and found he generally had little to add. He had nothing to do with her name being removed from the Zoo Authority email list and he caused it to be added back on.
Goldman testified that Pasquale always had a copy or access to a copy of the zoo's capitalization policy, so there was no basis for a claim that this information was kept from her as part of a pattern of keeping her from being a real manager.
After Pasquale told Goldman about the desk being unlocked and a credit card being taken, Goldman asked her to recommend a policy for managing keys. She did so and he followed it.
When asked to estimate how much of Pasquale's time "was spent supervising the employees and engaging in and making decisions that involve independent judgment and discretion," Goldman testified that it was about 70 to 75 percent.
Mayra Bogenwright was the accounts payable bookkeeper. She testified that Pasquale was her supervisor. After another employee trained her on the accounts payable program, "I was left on my own with Susan," Bogenwright testified. When, in addition to her daily accounts payable work, she was given other projects, it was Pasquale who assigned them to her. Pasquale trained Bogenwright on bank reconciliations and payroll. Bogenwright went to Pasquale on a regular basis for help when her work presented problems she could not solve herself. Pasquale assigned to Bogenwright and Xiong the project of compiling a binder on how to use the accounts payable program, and another binder on general zoo information for the telephone receptionist. When the binders were complete, Pasquale reviewed them and suggested changes, which Bogenwright and Xiong made. Pasquale directed Bogenwright to train Xiong on accounts receivable. She assigned Bogenwright the task of preparing the weekly bank deposits. Pasquale checked up on Bogenwright and the other bookkeepers once or twice a day, asking how their work was going. Pasquale evaluated Bogenwright's performance and had authority to grant permission to use vacation time, and it was Pasquale whom she contacted when she had to call in sick.
Bogenwright testified that if she ever went to Goldman with a question, Pasquale would get upset. Pasquale told her there was a "chain of command" and a "proper protocol" that must be followed, which required the bookkeepers to bring all their questions to Pasquale, not Goldman. Similarly, if other zoo personnel took questions directly to the bookkeepers, Pasquale became upset if they answered them, instead of telling them to go through her. Pasquale also directed the bookkeepers to keep the kitchen clean. She explained that things like "cleaning [and] changing water bottles" were their responsibility.
Bogenwright denied that Goldman ever said the bookkeepers did not need to worry about Pasquale.
Xiong also testified. Her testimony was consistent with Bogenwright's: Pasquale trained her, gave her work assignments to her, evaluated her performance, approved her vacation time, checked on her multiple times each day, was her go-to person for questions about her work. Xiong corroborated Bogenwright's testimony that when there was direct communication between the bookkeepers and other zoo personnel, Pasquale became angry, feeling that her managerial prerogatives were being disregarded. She also confirmed that Goldman never told the bookkeepers not to worry about Pasquale disciplining them.
On December 30, 2015, after receiving closing briefs, the trial court issued a tentative statement of decision. The court found that Pasquale was correctly classified as exempt under three separate rationales: She was exempt pursuant to the executive exemption in Wage Order 10; she was exempt pursuant to the administrative exemption in Wage Order 10; and she was exempt under the doctrine that "tacking" of an employee's duties is permitted, so that the employee qualifies as exempt based on a combination of exempt executive and exempt administrative work. Pasquale's exempt status meant the employer was not required to pay overtime, so Pasquale's claims for overtime and additional pay at severance based on unpaid overtime had to be rejected. The court stated that Pasquale presented no evidence or argument in support of the Business and Professions Code section 17200 claim, which it deemed abandoned.
Pasquale filed a "statement of opposition" to the tentative statement of decision, contending that the requirements of none of the forms of exemption were satisfied. The zoo filed a response to Pasquale's statement of opposition.
The trial court filed a final statement of decision, substantially the same as its tentative statement of decision, on February 5, 2016. Judgment was entered on February 26, 2016.
DISCUSSION
I. Standard of review
Pasquale's main contention on appeal (arguments one and three in her opening brief) is that the evidence presented at trial failed to support a finding that she was exempt under Wage Order 10. (We will address Pasquale's argument two later in this opinion.) A core principle of appellate review, often misunderstood by non-lawyers, is that when the sufficiency of the evidence is the basis for an appeal, the scope of the appellate court's power is quite limited. We ask not whether we agree with the trial court's findings or whether we would have made the same findings if we had been the trial court. The question, instead, is whether any reasonable finder of fact could have found what the trial court found based on the evidence. This standard of review may be summarized as follows: When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding under the applicable standard of proof. The evidence must be reasonable, credible, and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
In other words, the question we must answer is not whether the trial court was right, but whether any reasonable person could think it was right, taking the evidence in the light most favorable to the party who won below, and accepting the trial court's implicit determinations of which witnesses were most believable and which items of evidence had the most weight. For these reasons, it is generally difficult for an appellant to prevail in an appeal based on a claim that the evidence was insufficient.
Some other basic appellate principles should be mentioned here. "On appeal, we presume that a judgment or order of the trial court is correct, '"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666.) Further, "[p]ro per litigants are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) II. Analysis
Labor Code section 515 is the statutory basis for exemptions from the requirement to pay overtime pay:
"The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, if the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment." (Lab. Code, § 515, subd. (a).)
Exemption is an affirmative defense to a claim of overtime wages unpaid, and the employer has the burden of proving it. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794-795.)
Wage Order 10, titled "Order Regulating Wages, Hours, and Working Conditions in the Amusement and Recreation Industry," contains a part of the Industrial Welfare Commission's implementing regulations for Labor Code section 515. (Cal. Code Regs., tit. 8, § 11100.) Wage Order 10 provides detailed criteria for the executive and administrative exemptions. (Id., subd. (1)(A)(1), (1)(A)(2).) It also incorporates federal regulations promulgated pursuant to the Fair Labor Standards Act, explaining that exempt and non-exempt activities are to be understood as described in those regulations as they stood on the effective date of Wage Order 10 (i.e., January 1, 2001). (Cal. Code Regs., tit. 8, § 11100, subds. (1)(A)(1)(e), (1)(A)(2)(f).) These regulations are 29 Code of Federal Regulations sections 541.102, 541.104-111, 541.115-116, 541.201-205, 541.207-208, 541.210, and 541.215, as they existed at that time. Since an employee need fall within only one exemption to be exempt, we will confine our discussion to the administrative exemption, as the zoo has done in its appellate brief.
There are five requirements an employee's work must satisfy for the administrative exemption to apply. We will consider each in turn and explain how the evidence was sufficient to find that each was satisfied.
1. Office work directly related to general business operations.
First, the employee's duties must involve either "[t]he performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer's customers," or "[t]he performance of functions in the administration of a school system." (Cal. Code Regs., tit. 8, § 11100, subd. (1)(A)(2)(a).) According to the federal regulations, work is "'directly related to management policies or general business operations'" if it satisfies two criteria: It must relate to "the administrative operations of a business as distinguished from 'production' or, in a retail or service establishment, 'sales' work," and it must be "of substantial importance to the management or operation of the business." (29 C.F.R. § 541.205(a) (2000).)
There is no doubt that Pasquale's work was office work. There also is no doubt that the accounting functions Pasquale performed, even on her own account of them, pertained to the zoo's administrative operations: it was typical "back office" work as opposed to work dealing with customers, and it pertained to the zoo's business as a whole. And, after weighing the evidence and determining the credibility of each witness, the trial court could reasonably find that Pasquale's role was of substantial importance to the management or operation of the business because she had oversight responsibility for most of the zoo's accounting functions and accounting personnel, under Goldman's supervision. It could reasonably find she was not one of those "bookkeepers, secretaries, and clerks of various kinds [who] hold the run-of-the-mine positions in any ordinary business," carrying out only or mostly routine clerical tasks (29 C.F.R. § 541.205(c)(1) (2000)), despite her claim to the contrary.
2. Regular exercise of discretion and independent judgment.
Second, an exempt employee under the administrative exemption is one "[w]ho customarily and regularly exercises discretion and independent judgment." (Cal. Code Regs., tit. 8, § 11100, subd. (1)(A)(1)(d).) Discretion and independent judgment involve "the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered," and doing so while having "the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance." (29 C.F.R. § 541.207(a) (2000).)
As described by Goldman, if not Pasquale herself, Pasquale's duties required her to exercise discretion and independent judgment regularly. She had oversight responsibility for the entire periodic accounting cycle, from journal entries to financial statements, and for the accounting personnel whose skilled labor produced many of the inputs to the accounting cycle. According to Goldman, this involved countless exercises of judgment by Pasquale in every fiscal period, which he could regulate only in a general way.
The fact that Goldman could and did intervene at times, giving Pasquale direct orders or countermanding her decisions, does not show she did not regularly exercise her independent judgment. The requirement of discretion and independent judgment "does not necessarily imply that the decisions made by the employee must have a finality that goes with unlimited authority and a complete absence of review." (29 C.F.R. § 541.207(e)(1) (2000).) In fact, an exempt administrative employee's discretion might be continually subject to the greater discretion of a superior, as in the case of "an administrative assistant to an executive, who without specific instructions or prescribed procedures, arranges interviews and meetings, and handles callers and meetings himself where the executive's personal attention is not required." (29 C.F.R. § 541.207(d)(2) (2000).) Pasquale's job, as Goldman described it, was not unlike that of such an administrative assistant, in that she ran the accounting department for Goldman under general instructions from him, except when Goldman considered that his personal attention was required.
In Pasquale's view, she was really just an accounting clerk or bookkeeper, who used skill but not independent judgment, and whose decisions did not affect matters of significance. (See 29 C.F.R. § 541.207(c)(1)-(2) (2000) [application of skill to determine course of action not an instance of exercising discretion and independent judgment], (d)(1) [bookkeeper's decision "whether he will post first to one ledger rather than another" not a decision about a matter of significance].) But this was not so according to Goldman and also was not supported by the testimony of the bookkeepers. It was the trial judge's province, not ours, to decide which testimony to believe and how much weight to give different witnesses' testimony.
3. Assisting an executive or administrator; specialized work under general supervision; special assignments under general supervision.
Third, an employee exempt under the administrative exemption must be one who meets one of the following descriptions: "regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity" or "performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge" or "executes under only general supervision special assignments and tasks." (Cal. Code Regs., tit. 8, § 11100, subd. (1)(A)(2)(c)-(e).)
Based on the testimony of Goldman and the bookkeepers, the trial court could reasonably find that Pasquale's work met at least the first two of these descriptions. Elaborating on the first of these, the executive or administrative assistant, the federal regulations refer to "persons who assist an executive in the performance of his duties without themselves having executive authority." (29 C.F.R. § 541.201(a)(1) (2000).) The regulations give as examples employees with such titles as executive secretary, administrative assistant, and assistant manager. (Ibid.) Pasquale's title was business manager, but she might as well have been called Goldman's assistant manager for accounting. Goldman had executive authority over several functions in addition to accounting, including human resources, information technology, security, and retail. Based on Goldman's testimony, the trial court could reasonably find that Pasquale was one of multiple assistants to whom he delegated administrative—but not executive—authority over these functions. Pasquale's own testimony seems to indicate she believed she was nonexempt unless she had executive authority—which would make her a "real" manager—but that is not the law.
Elaborating on the second of these descriptions—employees who, under only general supervision, perform specialized work requiring special training or knowledge—the federal regulations refer to "those who can be described as staff rather than line employees, or as functional rather than departmental heads" or "who are in charge of a so-called functional department." Examples given include credit managers and personnel directors. (29 C.F.R. § 541.201(a)(2) (2000).) The trial court could reasonably find Pasquale fit this description as well. Over her three line bookkeepers, as administrative head of the zoo's accounting function, she performed work requiring special training in accounting and special knowledge of the zoo's business.
4. Primary engagement in exempt duties.
Fourth, an exempt employee must be "primarily engaged in duties which meet the test of the exemption." (Cal. Code Regs., tit. 8, § 11100, subd. (1)(A)(2)(f).) "Primarily" in this context is defined by the Labor Code as "more than one-half of the employee's worktime." (Lab. Code, § 515, subd. (e).)
Both the state and the federal regulations provide that exempt work, for purposes of determining an employee's primary duties, includes work that would be nonexempt but for the fact that it relates directly to exempt work as a means to an end. In other words, routine work that could be done by an hourly employee is exempt, for purposes of determining whether the one-half requirement is satisfied, if an employee does it in direct support of his or her exempt work.
The state regulations provide:
"Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement." (Cal. Code Regs., tit. 8, § 11100, subd. (1)(A)(2)(f).)
The federal regulations similarly refer to "routine work which is directly and closely related to the performance of" exempt work. (29 C.F.R. § 541.202(a) (2000).) Those regulations further explain that:
"[This directly and closely related work] consists of work which . . . would appear to be routine, or on a fairly low level, and which does not itself require the exercise of discretion and independent judgment, but which has a direct and close relationship to the performance of the more important duties. The directness and closeness of the relationship may vary depending upon the nature of the job and the size and organization of the establishment in which the work is performed. This 'directly and closely related' work includes routine work which necessarily arises out of the
administrative duties, and the routine work without which the employee's more important work cannot be performed properly. It also includes a variety of routine tasks which may not be essential to the proper performance of the more important duties but which are functionally related to them directly and closely. In this latter category are activities which an administrative employee may reasonably be expected to perform in connection with carrying out his administrative functions including duties which either facilitate or arise incidentally from the performance of such functions and are commonly performed in connection with them." (29 C.F.R. § 541.202(c) (2000).)
The trial court could reasonably find that Pasquale's job satisfied the "primarily engaged" requirement. It could reasonably conclude, based on Goldman's testimony and also on Pasquale's, that Pasquale's job consisted in part of discretionary tasks in the accounting field, in part of discretionary tasks involved in the supervision of the bookkeepers, and in part of routine accounting tasks. It could further reasonably find that the routine accounting work, consisting of necessary inputs to the accounting system, was directly and closely related to the discretionary accounting work. The discretionary accounting and supervisory tasks thus could reasonably be found to constitute tasks that "meet the test of the [administrative] exemption," and the routine accounting tasks to constitute work "directly and closely related to" the exempt administrative work. (Cal. Code Regs., tit. 8, § 11100, subd. (1)(A)(2)(f).) The court also could reasonably find that these three categories combined amounted to more than one half of Pasquale's work hours. Goldman estimated that Pasquale's qualifying work took 70 to 75 percent of her time. Pasquale disputed this estimate, but questions of the credibility of witnesses are not ours to review.
5. Salary equal to double the minimum wage.
Fifth, and finally, an exempt employee must earn "a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment." (Cal. Code Regs., tit. 8, § 11100, subd. (1)(A)(2)(g).) It is undisputed that Pasquale's salary qualified.
For the above reasons, we reject Pasquale's contention that the judgment was not supported by sufficient evidence.
*
In the second argument in her opening brief, Pasquale claims the trial court committed error by repeating in its statement of decision arguments that appeared in the zoo's closing trial brief, even reiterating a factual mistake the zoo made in its brief. Pasquale maintains that this shows the court was not impartial and failed to carry out an independent analysis of the evidence.
It is understandable that a layperson might be surprised by the court's use of the same language as the opposing party, but in reality, nothing improper or even out of the ordinary has happened. At the end of the trial, the court ordered counsel for both sides to submit proposed statements of decision. This is a common practice authorized by the California Rules of Court. (Cal. Rules of Court, rule 3.1590(c)(3).) Pasquale did not cause the parties' proposed statements of decision to be included in the appellate record, but there is no reason to suppose either counsel disobeyed the court's order. In preparing the zoo's proposed statement of decision, counsel for the zoo undoubtedly re-used the reasoning in his closing brief. The court, agreeing with the zoo, then used at least some portions of the zoo's proposed statement of decision when it prepared its tentative and final statements of decision.
When a court agrees with a party's conclusion, it is, of course, not improper for it also to agree with the arguments the party used to support the conclusion. There is no requirement that the court reformulate those arguments in its own words, and the procedures authorized by the Rules of Court mean it is unremarkable when the court uses the very same words as the prevailing party. In sum, the commonalities Pasquale has noticed between the zoo's arguments and the court's order endorsing those arguments are not in any way indicative of malfeasance on the trial court's part.
Pasquale points out that the court's statement of decision reproduces an error that appeared in the zoo's closing trial brief. It attributes to Xiong a remark actually made by Barton in his testimony. The remark had to do with advice Barton once asked of Pasquale relating to the possibility of hiring an outside professional to help ensure the books would be in good order for the annual audit. Pasquale claims the reproduction of this mistake reinforces her contention that the court took the zoo's side due to partiality and bias, because it implies the court did not check the zoo's contentions before adopting them. But this is speculation. The fact that the court did not catch this mistake does not show that it failed to analyze the evidence objectively for itself.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendant Fresno's Chaffee Zoo Corporation.
/s/_________
SMITH, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
DESANTOS, J.