United States District Court, E.D. Pennsylvania
ROBERT JOSEPH BUGLAK, JR. Individually and on behalf of other employees similarly situated, Plaintiffs,
WELLS FARGO BANK, N.A., Defendant.
Buglak and John Silano sold residential loans for Wells Fargo
Bank. According to Buglak and Silano, Wells Fargo violated
the Fair Labor Standards Act (“FLSA”) by failing
to pay them overtime. Wells Fargo counters by claiming that
Plaintiffs are exempt from the FLSA's overtime
requirements under the “outside sales exemption.”
Wells Fargo filed a motion for partial summary judgment on
April 18, 2017. Plaintiffs filed their response 17 days past
the deadline and Wells Fargo subsequently filed a motion to
strike Plaintiff's untimely response. Because the Court
finds that Buglak and Silano fall within the outside sales
exemption, the Court will grant Wells Fargo's motion for
partial summary judgment, and deny its motion to strike as
and Silano worked as mortgage officers to sell residential
loans in Wells Fargo's Bensalem, Pennsylvania office.
(Def's Mot. Partial Summ. J. Ex. A, [hereinafter
“Buglak Dep.”] at 19:9-12; id. Ex. B,
[hereinafter “Silano Dep.”] at 63:6-10.) Buglak
and Silano did not have fixed work schedules; for example,
Buglak's schedule varied from week to week, and Silano
was generally free to arrive at the office when he wished.
(Buglak Dep. 84:8-23; Silano Dep. 93:3- 16.)
consistently spent time outside of the office at open houses
to meet with realtors and customers. (Buglak Dep. 118:3-9.)
Throughout the course of his employment with Wells Fargo, he
attended an average of three open houses per week, usually on
Sundays, for an average of three hours total. (Buglak Dep.
118:3-9; 125:4-6.) The purpose of attending these open houses
was to generate business. (Buglak Dep. 118:13-16.) Buglak
would follow up one to three times per week with the realtors
who he met at these open houses, and estimated that each
meeting lasted between 25 minutes and three hours. (Buglak
Dep. 120:2-22.) Buglak also attended an average of one
closing per week, which occurred outside of the office, to
ensure that problems did not arise with deals and to solicit
business referrals. (Buglak Dep. 121:8-122:4; Def.'s Mot.
Partial Summ. J. Ex. C, at ¶¶ 4-6.) Buglak also
visited the homes of customers approximately five times per
week to obtain loan documentation. (Buglak Dep. 173:3-21.)
also consistently spent time outside the office. He attended
an average of three to four open houses each Sunday, with the
hope of earning referrals from realtors. (Silano Dep.
190:8-17; 193:21-194:6.) He spent anywhere from fifteen
minutes to an hour and a half at these events. (Silano Dep.
194:20-23.) Silano also attended approximately one closing
per month, which typically took place at a realtor's,
attorney's, or a title company's office. (Silano Dep.
191:8-24.) He also made “cold calls, ” during
which he would show up at a realtor's office and try to
establish a business relationship. (Silano Dep. 189:4-11;
194:24-195:7.) These occurred two to three times per week,
and would last between one minute and an hour. (Silano Dep.
STANDARD OF REVIEW
judgment is appropriate when the record discloses no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). The moving party bears the burden of showing that the
record reveals no genuine issue as to any material fact.
See Fed. R. Civ. P. 56(a); Anderson, 477
U.S. at 247. Once this burden is met, the nonmoving party
must go beyond the pleadings to set forth specific facts in
the record showing that there is a genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 585-86 (1986). In reviewing the record,
“a court must view the facts in the light most
favorable to the nonmoving party and draw all inferences in
that party's favor.” Armbruster v. Unisys
Corp., 32 F.3d 768, 777 (3d Cir. 1994). A court may not
consider the credibility or weight of the evidence in
deciding a motion for summary judgment. See Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000);
Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665
(3d Cir. 2002).
Plaintiffs' Untimely Response to Wells Fargo's Motion
for Partial Summary Judgment
failure to file a timely response to Wells Fargo's motion
for partial summary judgment “does not alter the
traditional summary judgment standard, [but] it [does
require] that the Court account for the lack of a response in
its analysis.” Reynolds v. Rick's Mushroom
Serv., Inc., 246 F.Supp.2d 449, 453 (E.D. Pa.
2003). “By failing to file a response within the time
specified by the local rule, the nonmoving party waives the
right to respond to or to controvert the facts asserted in
the summary judgment motion.” Id. (quoting
Reed v. Nellcor Puritan Bennett, 312 F.3d
1190, 1195 (10th Cir. 2002)). That said, a party's
failure to file a timely response in compliance with local
rules, by itself, does not require summary judgment.
Id.; Fed.R.Civ.P. 56(e)(3). A court must
still determine whether the moving party's alleged facts
warrant summary judgment. Reynolds, 246 F.Supp.2d at
Fargo filed its summary judgment motion on April 18, 2017.
Local rules require a non-moving party to respond to a
summary judgment motion within fourteen days. E.D. Pa. Civ.
R. 7.1(c). Plaintiffs responded on May 19, 2017, seventeen
days late. Due to their non-compliance with local rules, the
Court will not consider Plaintiffs'
response. Pursuant to Rule 56(e)(3), the court will
consider all facts presented by Wells Fargo as undisputed in
analyzing its motion for partial summary judgment.
Wells Fargo's Motion for Partial Summary
FLSA requires increased compensation to employees for any
time worked in excess of forty hours per week. 29 U.S.C.
§ 207(a)(1). However, “outside salesmen” are
exempt from this requirement. 29 U.S.C. § 213(a)(1). ...