Martinez v. Wild Oats Markets

Filed 10/15/08 Martinez v. Wild Oats Markets CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald M. Sohigian, Judge. Affirmed.

Law Offices of Stephen Glick and Stephen Glick; Daniels, Fine, Israel, Schonbuch & Lebovits, Paul R. Fine, Scott A. Brooks; Law Offices of Ian Herzog and Ian Herzog for Plaintiff and Respondent Mary Martinez.

Jackson Lewis, Frank M. Liberatore, Nicole G. Minkow and Sherry L. Swieca for Defendant and Appellant.

__________________________________

Defendant Wild Oats Markets, Inc. (Wild Oats) appeals a trial court judgment in favor of plaintiff Mary Martinez in her action for nonpayment of overtime wages. The parties agreed that Martinez spent the majority of her time engaged in nonexempt activities, but disagreed on whether engaging in such activities was a realistic requirement of her job. We affirm the trial courts judgment.[1]

FACTUAL AND PROCEDURAL BACKGROUND

Between 2001 and 2004, Martinez worked in a series of nonexempt hourly positions at a Wild Oats store in Santa Monica. In 2004, Wild Oats promoted Martinez to the position of the food service manager. Unlike Martinezs previous positions, food service manager was a salaried, exempt position. The food service manager oversaw the stores deli department, the cheese department, the juice bar, the salad bar, and the bakery. A formal job description identified the food service managers responsibilities as: providing leadership and direction for the food service department; supervising staff members and monitoring customer service; managing and adhering to the departments financial plan and budgets; improving sales, profit, labor and inventory levels; and monitoring promotions and special events. But in practice, Martinez spent the bulk of her time preparing food, setting up food displays, serving customers, stacking or rearranging inventory, and cleaning. Martinez held the food service manager position for 10 months, during which time she generally worked more than eight hours each day, six days a week.

In 2004, a former Wild Oats employee, Tim Auchterlonie, filed a wage and hour class action against Wild Oats. In 2005, the plaintiffs amended their complaint, and added five additional named plaintiffs, including Martinez. By the first day of trial in 2006, all plaintiffs except Martinez had settled their cases, and the parties agreed to a bench trial on Martinezs overtime compensation claim.

The court heard testimony from Martinez, members of Wild Oatss management, and another former food service manager. We summarize the relevant testimony below.

I. Martinez

Martinez never received a formal job description for the food service manager position, her supervisor did not explicitly explain what the job required, and Wild Oats never trained her for the position. According to Martinez, due to a shortage of staff, she had no choice but to spend the majority of her time helping her subordinates and serving customers, rather than engaging in managerial activities. Martinez admitted that she was in charge of creating a work schedule for her subordinates, she had the discretion to change their schedules to meet the varying needs of the department, and she had the authority to initiate discipline for poorly performing employees. She also admitted that she had the ability to call other stores to ask for reinforcements if she was short on help, or to transfer employees within her subdepartments. However, Martinez maintained that in practice, her options were limited by tight budget constraints and the availability of personnel.

For example, Martinezs supervisor, Bruce Pack, told her that the stores labor budget did not allow her to schedule more employees in her department. Martinez also understood that she had to limit her departments overtime to stay within the budget. Because of high customer traffic in the food service department, particularly during the daily lunch rush, Martinez found it necessary to work on the store floor with her subordinates to maintain a high level of customer service. In addition, when one of Martinezs hourly workers was absent, she usually had to work in the place of the missing employee. At one point, Cindy Chikahisa, the director of operations, helped Martinez rearrange the food service department work schedule. Chikahisa assigned some evening employees to work during the lunch rush period instead of the closing shift. However, Martinez soon discovered that the new schedule left the remaining evening employees with more work than they could complete with a reduced staff.

Martinez eventually resigned after Chikahisa informed her that she would receive a written warning because the food service department was below Wild Oatss standards. Martinez was frustrated because she felt that she had been working very long hours to do a good job, and the stores budget prevented her from scheduling the number of hourly workers she needed.

II. Wild Oats Management

A. Bruce Pack

For nearly all of Martinezs tenure as food service manager she reported to Bruce Pack, the store director and the highest level in-store manager. Martinezs performance met Packs expectations for the food service manager position. Pack never reviewed Martinezs written job description, but he observed Martinez much of the day, knew what she was doing, and understood her responsibilities to include helping customers and preparing food. Pack also corroborated Martinezs testimony regarding the stores labor budget. According to Pack, Wild Oats did not give the store a labor budget sufficient to run the food service department, and as a result, Martinez had no choice but to help with customer service.

Pack gave Martinez the only performance review she received while working as the food service manager. In the review, Pack generally gave Martinez scores of 2 (meets expectations) and 3 (exceeds expectations). Pack later awarded Martinez two merit-based salary increases. However, Pack commented in the written evaluation that Martinez needed to delegate more, actively look through applications for new employees, communicate better with her staff and hold them accountable, set a high standard for her employees, motivate them to do more, and stop letting [her] crew get away with not doing their job. Pack testified that Chikahisa would have reviewed the final score on Martinezs review, although not necessarily the accompanying comments. Pack also indicated that he would have discussed Martinezs raise with Chikahisa.

Pack resigned from Wild Oats after Chikahisa placed him on a performance improvement plan because of problems in the food service department. Pack also admitted that he had filed suit against Wild Oats and was represented by Martinezs counsel.

B. Cindy Chikahisa

Chikahisa was the area director of operations for Wild Oats in Southern California and Nevada. She visited Martinezs store at least every two weeks. Chikahisa testified that on several occasions she counseled Martinez against spending too much time on nonmanagerial duties, although Chikahisa stated that she would not refer to her comments to Martinez as criticism, it was more of a helpful, Mary, lets get you out of that role and get you into the managerial role. It was a support. It wasnt criticism. Chikahisa could not remember the dates of any of the counseling conversations she had with Martinez, nor did she have any written records of counseling Martinez. Chikahisa admitted that Martinez told her that there were labor shortage issues in the food service department, specifically that it was difficult to get staff hired and to keep staff. Moreover, while Chikahisa represented that Wild Oats did not penalize any employee for overtime, she conceded that the Wild Oats employee handbook stated that Wild Oats actively discourage[s] overtime.

In retrospect, Chikahisa believed the scores on Martinezs performance review should have been lower, given the accompanying comments, but she admitted that she did not formally review Martinezs performance because that was not her job; rather it was the store directors responsibility. Chikahisa also testified that she believed the food service department did not suffer from an insufficient labor budget; Martinez should have been able to devote herself to managerial activities; and the food service manager who replaced Martinez was performing well with the same number of hourly employees and budget.[2]

C. Jan K. Graca

Jan K. Graca was a regional food service manager and oversaw Wild Oats stores in multiple states, including California, while Martinez was an in-store food service manager. Graca visited Martinezs store on a monthly basis between July 2004 and the end of 2004. Graca observed that Martinez took on nonmanagerial tasks rather than delegating to hourly workers, and that the employees in her department had fixed, rather than flexible schedules, which may have made it more difficult to reassign them as needed. Yet, Graca testified that he had never reviewed Martinezs job description, and there was no evidence that Graca ever counseled or criticized Martinez for spending too much time on nonmanagerial tasks, or that he mentioned the issue to Chikahisa or Pack.

III. Former Food Service Manager

Ana Marie Hoeppner was the food service manager at the store prior to Martinez. According to Hoeppner, the volume of work in the food service department made it necessary for her to take on many of the same tasks as her subordinates, and she understood that some nonmanagerial tasks, such as setting up food displays, were simply part of the food service manager job.

However, Hoeppner admitted that Graca, Chikahisa, and the store director before Pack, had all counseled her to be less of an employee and more of a manager, and that she received a negative performance review in which her supervisor gave her numerous below expectations ratings. Wild Oats terminated Hoeppner after giving her the negative review, and after the food service department received a B rating from the health department. Finally, Hoeppner admitted that she was also suing Wild Oats and was represented by Martinezs counsel.

IV. Statement of Decision

The trial court found that the reasonable, anticipated, and actual demands of Ms. Martinezs job required her to perform non-exempt line food preparation work for the vast bulk of her work time rather than exempt executive or supervisory work. The court adopted an inference that Wild Oats did not give Martinezs job description much weight based on the testimony that Wild Oats never gave Martinez a copy of the job description, and neither Pack nor Graca had ever reviewed it. The court also found that Pack knew that Martinez was spending far less than half of her work time on exempt tasks, approved of her doing so, gave her a generally satisfactory job performance report with that knowledge and approval in mind . . . and never counseled her orally or in writing to spend more than 50% of her time in executive functions. Wild Oats gave Ms. Martinez compensation raises with full knowledge of what tasks she was doing and how she was doing those tasks.

The court found that [t]he grades Mr. Pack gave Ms. Martinez (predominantly 2 and 3 grades showing satisfactory and above-satisfactory performance) are documented, actual, reasonable, and realistic indications of defendants expectations. The performance report shows that Ms. Martinez was doing what Wild Oats wanted, that Wild Oats knew what she was doing, and that Wild Oats wanted her to do what she was doing.

While the trial court acknowledged that Chikahisa had instructed Martinez to give the hourly employees more work, it indicated that this did not change its overall analysis for two reasons: First, Ms. Chikahisas instructions were a counsels of perfection -- the making of goals that were essentially unattainable under the actual circumstances of Ms. Martinezs demonstrated limitations and the demands of the department. Second, taking Ms. Chikahisas instructions at their maximum possible weight, those instructions were basically contradicted in language and in practices by communications from and observations by Mr. Pack, who was, of course, the store director. The court determined that Mr. Packs and not Ms. Chikahisas expectations were the employers realistic expectations. The court concluded that the amount of time Ms. Martinez devoted to non-exempt services vastly outweighs the amount of time she was expected to and required to devote to exempt services . . . this was known to Wild Oats and, after a very brief period of time, was what Wild Oats wanted and intended under the analysis of Ramirez vs. Yosemite Water Co. [(1999) 20 Cal.4th 785 (Ramirez)].

DISCUSSION

I. Standard of Review

Wild Oatss sole argument on appeal is that the courts judgment was not supported by sufficient evidence. We therefore employ the substantial evidence standard of review. Under this standard,  the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. [Citation.] We must therefore review the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court. [Citation.] The substantial evidence standard applies to both express and implied findings of fact made by the superior court in its statement of decision rendered after a nonjury trial. [Citations.] (Escamilla v. California Department of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 514 (Escamilla).)

Substantial evidence is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citations.] Substantial evidence ... is not synonymous with any evidence. . . . [Citations.] The focus is on the quality, rather than the quantity, of the evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651; DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.)  It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. . . .  [W]e do not evaluate the credibility of the witnesses or otherwise reweigh the evidence. [Citation.] Rather, we defer to the trier of fact on issues of credibility. [Citation.] (Escamilla, supra, 141 Cal.App.4th at pp. 514-515, citing Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968 (Lenk).) Indeed, testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 (Beck).) When the record as a whole shows a reasonable trier of fact could have found in favor of the respondent, we must affirm. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)

II. Wild Oatss Presentation of the Evidence

As an initial matter, Martinez argues that Wild Oats waived its right to challenge the trial courts judgment by failing to present all of the material evidence in its opening brief. This argument is not without merit. When challenging a trial courts factual findings based on insufficient evidence, the appellant has the burden of setting forth all material evidence on point, including evidence both favorable and unfavorable to the appellants position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman); Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658 (Boeken).) The appellant must also show how the evidence fails to sustain the trial courts finding. (Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 951 (Garlock).) If the appellant fails to provide a fair statement of the evidence in its brief, it waives any error. (Foreman, supra, 3 Cal.3d at p. 881; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

In this case, Packs testimony was clearly material evidence. Yet, Wild Oatss opening brief neither refers to Packs testimony, nor mentions Pack in any context. Further, while Wild Oats relies in part on Martinezs performance review to demonstrate its dissatisfaction with Martinez, it fails to mention the numerical portion of the review, or the overall score, which indicated that Martinez was meeting expectations. These are significant omissions. Moreover, Wild Oatss suggestion that the reviewing courts task of considering the entire record in conducting a review for substantial evidence eliminates the need for an appellant to present a fair summary of the evidence is entirely incorrect and is not supported by any of the authorities Wild Oats cites. (Garlock, supra, 148 Cal.App.4th at p. 951; Walton v. Bank of California (1963) 218 Cal.App.2d 527, 540-541.)

Wild Oatss failure to fairly summarize all of the material evidence relevant to the trial courts judgment would permit us to find that Wild Oats waived its arguments regarding insufficiency of the evidence. (Boeken, supra, 127 Cal.App.4th at p. 1658.) However, we have elected to review the entire record and conclude that substantial evidence supports the trial courts judgment in favor of Martinez, as discussed below.[3]

III. The Ramirez Factors

While the primary issue in this case was whether Wild Oats had properly classified Martinez as exempt, by closing arguments the defense had conceded that Martinez did not spend the majority of her time on managerial or executive duties. However, Wild Oats argued it did not intend Martinez to spend her time on nonexempt activities, and that she did illustrated her incompetence and poor job performance. The parties therefore agreed that Ramirez was on point.[4]Ramirez analyzed the outside sales exemption to overtime requirements, and addressed whether a court should determine the applicability of the exemption based on how the employee should be spending his or her working hours, or on what the employee actually does on a daily basis. The court noted that if trial courts were to rely solely on the employers job description, the employer could make an employee exempt from overtime laws solely by fashioning an idealized job description that had little basis in reality. (Ramirez, supra, 20 Cal.4th at p. 802.)

But the court also acknowledged that an employee who spent less than 50 percent of his or her time on sales activity due to his own substandard performance should not thereby be able to evade a valid exemption. (Ramirez, supra, 20 Cal.4th at p. 802.) The Ramirez court therefore directed trial courts to inquire into the realistic requirements of the job. In so doing, the court should consider, first and foremost, how the employee actually spends his or her time. But the trial court should also consider whether the employees practice diverges from the employers realistic expectations, whether there was any concrete expression of employer displeasure over an employees substandard performance, and whether these expressions were themselves realistic given the actual overall requirements of the job. (Ibid.) Here, the trial court applied these factors.[5]

A. Substantial Evidence Supported the Trial Courts Finding That

Martinezs Work Habits Did Not Diverge From Wild Oatss

Realistic Expectations.

Substantial evidence supported the trial courts finding that Martinezs practice of spending the majority of her time on nonmanagerial duties did not diverge from Wild Oatss realistic expectations for the food service manager position. According to Martinez, Wild Oats did not tell her exactly what the food service manager responsibilities were or train her, and the realities of the positionspecifically the volume of work and the limited labor budgetmeant that Martinez had to engage in nonmanagerial tasks in order to keep the department running.

Packs testimony further supported the trial courts finding. Pack was Martinezs direct and daily supervisor. Pack never reviewed Martinezs formal job description, but he believed that the position required her to spend significant amounts of time working on the store floor. Pack also corroborated Martinezs testimony that the food service department suffered from too few workers and an insufficient labor budget, all of which resulted in Martinez spending more of her time on nonmanagerial duties, with his at least tacit approval.

Wild Oats argues that Martinezs formal job description established that Wild Oats expected her to primarily perform the tasks set forth in the description. However, the trial court inferred that Wild Oats did not give Martinezs formal job description great weight. This inference was supported by substantial evidence: Martinezs testimony that she had never seen the job description until her deposition; Packs testimony that he had never reviewed the job description; and Gracas testimony that he also had never reviewed the job description.

Wild Oats contends that the trial courts inference was unreasonable because Martinez admitted that her job included the responsibilities listed in the job description. We disagree with Wild Oatss contention in light of Martinezs additional testimony that the job description was incomplete and did not include her many other responsibilities as the food service manager. Although Wild Oats now also argues that Pack should have reviewed the job description had he properly carried out his store director responsibilities, this contention is not supported by any evidence, and does not change the reasonableness of the trial courts inference. We conclude that the trial court made a sound inference, supported by substantial evidence, that the job description was not entitled to great weight in determining Wild Oatss realistic expectations. Indeed, the trial court faithfully applied Ramirez, which specifically cautioned against looking only to a job description when determining whether an exemption is applicable.

Chikahisas testimony also introduced an alternative view of Wild Oatss expectations of the food service manager. But the trial court did not believe that Chikahisas critiques of Martinez represented ascertainable goals in light of the realities of the jobin other words that Chikahisas comments did not represent Wild Oatss realistic expectations. Wild Oats contends that the evidence demonstrated that it was possible for Martinez to spend most of her time on non-managerial tasks. To support the contention, Wild Oats points to evidence such as Martinezs testimony on cross-examination that she controlled her workers schedules but she chose to handle nonmanagerial duties herself rather than rearranging the hourly workers schedules, and Hoeppners testimony that Wild Oats criticized her for spending too much time on nonmanagerial tasks. Yet, this evidence was subject to more than one interpretation when taken in context with the entire record. For example, Martinez testified that her ability to choose to engage in nonmanagerial duties, or to secure extra hourly help, was largely illusory due to the significant amount of work and too few hourly employees. Similarly, Hoeppners testimony revealed that her performance problems extended beyond spending time on nonexempt activities.

Further, to the extent the above was conflicting evidence, it does not render the substantial evidence supporting the trial courts judgment improbable or legally insignificant. The substantial evidence test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. If this substantial evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld. [Citations.] (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 369.)

The trial court also determined that Pack represented Wild Oatss expectations more accurately than Chikahisas critiques of Martinezs performance. At oral argument, counsel for Wild Oats suggested that because Pack and Wild Oatss expectations for Martinez were not the same, it was improper for the trial court to ascribe Packs expectations to Wild Oats. However, there is scant evidence that while Martinez was working at the store, there were actually two different sets of expectations regarding how she was to spend her time as food service manager. Wild Oats invested Pack with the highest level of authority within the store on a day-to-day basis.[6] Wild Oats also authorized Pack to draft and issue Martinezs performance review, thus giving him the ability to determine what Wild Oatss expectations were and to evaluate whether Martinez was meeting them. Chikahisa testified that she would have given Martinez lower scores on the performance review, but she admitted that reviewing the food service managers performance was not her job, and she apparently chose not to review or revise Packs evaluation of Martinez. This suggests that Wild Oats accepted Packs expectations of how Martinez should spend her working hours. Wild Oats also gave Martinez two merit-based salary increases, at Packs recommendation. Moreover, as it concerned Martinez, there was no evidence that Wild Oats ever indicated that Packs expectations or authority were somehow illegitimate while Martinez worked at the store. Thus, the trial court had sufficient evidence to conclude that Packs expectations best represented Wild Oatss realistic expectations.

B. Substantial Evidence Supported the Trial Courts Finding that Wild Oats Did Not Make Any Concrete Expression of Displeasure About Martinezs Performance.

Martinezs performance review was generally positive and was Wild Oatss only formal evaluation of her during her tenure as food service manager. Wild Oats also awarded Martinez two merit-based salary increases.[7] In addition, Pack testified that Martinez met his expectations, and Martinez testified that Pack told her she was doing a great job in the position. Graca had the opportunity to observe Martinez, but there was no evidence that he expressed any displeasure to her, or anyone else, about her spending too much time on nonexempt tasks.[8] All of this evidence supported the trial courts finding that Wild Oats did not make concrete expressions of displeasure about Martinezs performance.

Wild Oats again points to conflicting evidence. For example, Martinez admitted that Chikahisa told her that she needed to make the hourly employees work more rather than taking on nonmanagerial tasks herself. In addition, the comments contained in the performance review could be interpreted as an expression of displeasure with Martinezs performance. Assuming for the sake of argument that this evidence is irreconcilable with the evidence supporting the trial courts ruling,[9]our role is not to supplant the trial courts judgment in weighing and interpreting the performance review or Chikahisas comments in the context of other testimony. We do not reweigh the evidence presented at trial. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) The conflicting evidence in the record does not negate the existence of the substantial evidence that supports the trial courts finding. Because the trial court found that Wild Oats did not concretely express displeasure with Martinezs performance, it did not need to consider whether any expressions of displeasure were realistic, nor do we.

C. The Trial Court Reasonably Considered Packs Testimony and Evidence of His Actions As Store Director.

Much of the trial courts analysis relied on Packs actions and testimony. Wild Oats declined to address Pack at all in its opening brief, but in its reply Wild Oats attempted to distance itself from Pack by claiming that he was inexperienced, had performance problems, and that his testimony was not credible because he had his own legal proceeding against Wild Oats. Wild Oatss late attempts to disavow Packs actions while he was the store director are not compelling. Wild Oats gave Pack the responsibility to direct the store and allowed him to serve as store director while Martinez was food service manager. Wild Oats also authorized Pack to review Martinezs performance, and neither intervened to insist that her review clearly indicate that she was not meeting Wild Oatss expectations, nor refused to award Martinez merit-based salary increases. Instead, Wild Oats ratified Packs judgment and decisions. The trial court therefore could reasonably consider Packs actions in determining Wild Oatss realistic expectations and whether Wild Oats concretely expressed displeasure about Martinezs performance. Although Wild Oats identified Packs potential bias at trial, his testimony was not inherently improbable. (Beck, supra, 44 Cal.App.4th at p. 1204.)

In short, Wild Oatss arguments about Pack relate to his credibility and how much weight the trial court would choose to give the evidence of Packs actions.  [N]either conflicts in the evidence nor  testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.  [Citations.] (Lenk, supra, 89 Cal.App.4th at p. 968.) We therefore reject Wild Oatss argument that the trial court erred by finding that Packs expectations and actions were attributable to Wild Oats.[10]

Because substantial evidence supported the trial courts finding that the realistic requirements of Martinezs job mandated that she spend more than 50 percent of her time on nonexempt duties, and that Wild Oats made no concrete expressions of displeasure about how she was spending her time, we conclude that the trial court did not err in ruling that Martinez was entitled to overtime compensation. [11]

DISPOSITION

The judgment of the trial court is affirmed. Respondent is to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

BIGELOW, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] Wild Oats filed both a motion to augment the record with four trial exhibits, and an application requesting permission to transmit original trial exhibits. We granted the motion to augment the record on March 12, 2008. The application requesting permission to transmit original trial exhibits is therefore moot.

[2] The new food service manager was not a witness at the trial, and there was no detailed testimony regarding how he was spending his working hours.

[3] Martinez contends that Wild Oatss failure to fairly present the evidence warrants sanctions. However, Martinez has not filed a motion for sanctions pursuant to California Rules of Court, rule 8.276(b). We therefore decline to entertain Martinezs request.

[4] In 2001, the Industrial Wage Commission incorporated the Ramirez factors into wage order No. 7-2001. (Cal. Code Regs. Tit. 8, 11070, subd. 1(A)(1)(e).) Wage order No. 7-2001 applies to the mercantile industry and defines the executive exemption, among others.

[5] This case involves an executive exemption, rather than the outside sales exemption. Although our Supreme Court has noted that the Ramirez analysis may not necessarily apply, or apply with the same force in every exemption context, it was appropriate here, where, as in Ramirez, the central issue was whether Martinez had evaded a valid exemption by engaging in substandard performance. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 336.)

[6] Indeed, Pack observed and supervised Martinez every day, while Chikahisa was only a periodic visitor. Further, according to Martinez, Chikahisa usually spent only a few minutes with Martinez during her visits to the store.

[7] Wild Oats attempts to minimize the importance of these merit-based raises by suggesting that the first came only six months after Martinez accepted the food service manager position. However, Martinez only held the position for ten months, thus Wild Oats gave her the first merit increase more than halfway through her tenure in the position.

[8] Graca and Martinez testified that Graca sent her e-mails about problems in the store, but according to Gracas testimony, the e-mails dealt with issues such as the need for the departments to comply with national organics program standards, how certain wrap sandwiches were to be made, and the standards in the cheese department, not Martinezs practice of spending time on nonmanagerial tasks.

[9] The record indicates that the trial court could reasonably find these pieces of evidence constituted less-than-concrete expressions of displeasure. Chikahisa herself was equivocal about whether her comments were criticisms. In addition, the performance evaluations written comments were complicated by the numerical scores indicating that Martinez was generally meeting expectations.

[10] Packs inexperience and performance problems are also more nuanced than Wild Oats would have us believe. For example, although Pack had only worked at Wild Oats approximately six months before he reviewed Martinezs performance, he had worked in the retail grocery business since 1978. In addition, although Pack admitted that Chikahisa had placed him on a performance improvement plan, the record does not include evidence regarding the dates of that plan, or the exact areas in which his performance was purportedly poor.

[11] Wild Oats also contends in its reply brief that it did not know Martinez was working the long hours she did, and that it did not intend for her to work the hours she claimed to work. It is unclear how this contention relates to Wild Oatss asserted basis for challenging the trial courts judgment. In any event, the evidence at trial demonstrated that Pack knew the hours Martinez was working, and that Packs predecessor also knew the hours Martinez was working as food service manager.