*3 COLE, AEP, and position. According Before NORRIS Circuit as an ECONOMUS, Judges; Judge.* District purpose reorganization of the was to workers,” responsibilities down “push NORRIS, 586-87), Judge (pp. Circuit authority,” and to “flat- delegate “to more separate opinion concurring delivered organization.” ten the part dissenting part. Thornburg, supervisor, Mike Support the function of his IT describes OPINION “Maintaining comput- team as follows: COLE, Judge. Circuit software, troubleshooting er workstation documentation, Anthony repairing, network Plaintiff-Appellant job. a main- employer, primary claims that his Indiana Michi- that is our We were organization that takes care of gan Company, Power American tenance d/b/a (“AEP”), computer systems.” computers Electric Fair Power violated the (or (“FLSA”), Labor Standards Act Martin works on are workstations U.S.C. * Economus, Ohio, sitting by designation. The Honorable Peter C. United Judge States District for the Northern District “PCs”) that, everyone to a in IT Support including at individual desks connected — (“LAN”); Martin local area network does Thornburg spending and Martin-—was so computer— plant process not work on the moving much they time workstations that plant, going deals with the what’s “which carry out were able their operators” on as far as the reactor job organization. as a maintenance —which system. is a different Second, assigned Martin was to install people plant problems at the have When network, hardware and cable for the in- they help call the computers, with their hubs, cluding components network such as help employees put desk desk where switches, routers, when Cook was problems “help into a database as desk physically expanding the LAN to trailers tickets,” prints which Martin out. Martin *4 buildings. and new Martin in worked the responds help to these desk tickets. He wiring terminating closets: the cables goes the location indicated to where he (that is, putting connectors on the ends of attempts to determine the nature of the cables), plugging hubs, the them into the problem, to “troubleshoot” it to determine verifying they were connected proceed, problem and to the repair how to phoning system administrator to con- software, possible. if Martin installs such firm appeared that the hubs had on the 97, as Microsoft’s Office on individual network. Martin was not involved in de- workstations. He troubleshoots Windows signing configuration ca- either the provided and installs software problems 95 installed, or bles the hardware he nor patches. any programs does he install onto the If fix a problem, Martin cannot he will Third, 2, 2001, January on network. fix report problem and how he tried to Thornburg assigned to up Martin clean Thornburg. Thornburg it to will decide closets, wiring to make sure the mas- manu- request whether to service from the diagram accurately ter reflected network replacement part facturer or order a or physically what was in the closets and Martin, however, unit. does decide or update necessary, get it if and to make recommendations as to whether a changed, key if possible, locks so that one piece equipment must be serviced or open all the closets. would Nor has written replaced. reports he troubleshooting repair activities. Shortly Thornburg’s February before purchase He has not recommended the of 28, 2001, deposition, Martin received an- hardware, software, any equipment, al- assignment. According other to Thorn- though Thornburg considers Martin’s com- burg, assigned Martin he “to review printers problems ments on “valuable” operating system that Windows 2000 making process. in his decision own just developed.” have At the time of the deposition, Thornburg explained that Mar- processing addition to desk tick- help In in “process” “preparing” tin was ets, Thornburg has directed Martin to assignment, do the review. For the Martin First, complete variety of other tasks. supposed desktop oper- to “review the period for a of time while the nuclear ating system applications in our to make reactors were shut down between Novem- they in 2000, sure work as he uses them May ber 1998 and Martin relocated not, expect And if I him to make field. temporary workstations to trailers and 2000, buildings. in recommendations for corrections.” This Sometime Cook made after the lit- brought assignment apparently contractors to move worksta- — that, Thornburg igation tions. of this prior testified commenced—is first 213(a)(1). it, Thornburg put capacity.” Mar- sional 29 U.S.C. As type for Martin. Martin, AEP paying To avoid overtime to “evolving.” tin’s duties were that he falls within one of prove must computer has no certifications argues exempt categories. these high He degree beyond school. and no that Martin is as both “adminis- microcomputing, has taken one course “computer profes- trative” and a 2000, four, using class Windows sional,” “profession- which is a subclass of training week-long hands-on employees. al” work bench located Martin has a classes. in a common work area —also referred exemptions to the FLSA’s depositions. in the Mar- “workshop” as a provisions ‘narrowly are “to be overtime line; phone have his own ev- tin does not against employers seeking construed phone.” eryone “shop in the area shares a ” [them],’ Douglas Argo-Tech to assert He wears a short-sleeved shirt blue (6th Cir.1997) (quot Corp., 113 F.3d front, a name pockets with two on the Inc., ing Kanowsky, Arnold v. Ben says “Tony,” badge and a badge that 388, 392, 453, 4 U.S. 80 S.Ct. L.Ed.2d 393 Cook, Section”; blue work says “D.C. CSS (1960)), only employer and the bears not pants; and work boots. *5 proof, the burden of but also the burden on of exemption. each element the claimed II. ANALYSIS shifted, proof Id. the burden of Because de novo a dis This Court reviews summary Martin is entitled to judgment grant summary judgment. trict of court’s unless the defendant can come forward Co., Stephenson v. Allstate Ins. 328 F.3d creating genuine with evidence at least (6th Cir.2003). 822, Summary judg 826 issue of material fact as to whether Martin if, appropriate examining ment is after every meets each and element of the ex drawing record and all inferences If AEP emption. proffer fails to such light non-moving most favorable to the evidence, only must its motion for sum any to party, genuine there is no issue as denied, mary judgment summary be but moving party material fact and the enti judgment granted. for Martin must be judgment tled to as a matter of law. Fed. Co., See v. Ind. Mich. Power 358 Schaefer 56(c); Agristor Corp. R.Crv.P. Fin. Van (6th Cir.2004) 394, (Suhrheinrich, F.3d 407 (6th Cir.1992). Sickle, 233, 967 F.2d 236 concurring) (asserting J. that Schaefer was requires employers pay summary to entitled to judgment FLSA because view, has, minimum, employees my their time-and-a-half for work AEP at a “[i]n performed forty per of genuine excess hours failed to create a issue of fact on week, 207(a)(1), exempts question 29 but of pri U.S.C. whether Schaefer’s employers requirement mary duty from this with re- requiring ‘includes work exer spect to in a bona “employed independent judgment.’ individuals cise discretion and ”). executive, administrative, profes- fide 1 shifting every requirement exemption.”).
1. In additional to this of the burden of an Ale proof, argues employer Martin that the has and the other circuits that have articulated prove higher to each element to a burden of "clear and affirmative evidence” lan- Investments, proof preponderance guage, than to a of the evi- see Klinedinst v. Swift dence, Auth., Inc., 1251, (11th citing Cir.2001); Valley v.Ale Tennessee 260 F.3d 1254 680, (6th Cir.2001) ("The Video,Inc., 577, 269 F.3d 4 691 n. Donovan v. United 725 F.2d (10th Cir.1984), through defendant must establish ‘clear and 581 have done so without employee explanation phrase affirmative evidence’ that the meets of what the means. Mar-
579
First, AEP
must establish
analysis, we view
of this
purposes
For
paid
salary
on a
or fee basis at a
light most favorable
Martin is
facts in the
work-
regarding
per
rate of not less than
week or
AEP. The facts
$250
undisputed. The
largely
hourly
are
on an
at a
place
compensated
tasks
he is
basis
however,
how
about
disagree,
do
parties
of 6
times the minimum
rate
excess
%
spends
541.3(e).
on hardware
much time Martin
wage. 29 C.F.R.
The evidence
much time
and how
versus software tasks
paid salary.
that Martin is
It
establishes
stations with or
spent moving
Martin
work
up
not matter that Martin must make
does
contractors. These
help
without
that Martin’s
partial-day absences
however,
ultimately irrele-
disputes,
prescribed
hours are
and he must obtain
neither Martin’s hardware
vant because
vary
approval
supervisor
from his
him, and, re-
exempts
nor software
hours. See
v. Ind. Mich. Power
Renfro
spent
(6th
of how much time
gardless
Co.,
Cir.2004);
370 F.3d
516
are no
moving computers, his others tasks
Schaefer,
argues
ployee’s “primary genuine a issue of requires ... that theo- AEP must raise formance of [w]ork “primary highly- regarding of fact whether practical application and retical of ... duty performance consists of the knowledge computer sys- in specialized prac theoretical and requires that analysis, programming, [w]ork and software tems highly-specialized of application em- tical engineering, is] and [the analysis, computer systems in knowledge in engaged and these activities as ployed engineering, and software analyst, computer pro- programming, computer systems engaged and employed and he engineer, [whether is] or other sim- grammer, software computer systems in these activities as computer in the soft- ilarly skilled worker (3) ”; programmer, software analyst, computer ... and ware field similarly skilled worker engineer, or other requiring the primary duty “includes work software field.” C.F.R. judg- computer and in the of discretion consistent exercise 541.3(a)(4). 541.3(e). Thus, 541.3(a)(4), although §§ Martin §§ ment.” 29 C.F.R. tin, exemption in a similarity every element of the drawing each and perhaps from the narrowly con- is to be convincing evidence” remedial statute that phrase "clear and employer. the mean- against Since heightened strued urges Ale sets a us to hold that change phrase the result Alternatively, ing would not evidentiary "clear of standard. case, by any exposition us on the may simply be a in this evidence” and affirmative would be mere of the Ale court restating above: intentions way of what have said proving dicta. employer bears the burden of analyst, programmer, predetermined specifications or formed to in systems not a system design created others. As engineer, he could still be software testified, provided he is the stan- “requires if his work theo- from overtime “desktop” for on the com- dard installation application highly- of practical retical and puters configures, he but he is not involved computer sys- in specialized knowledge determining desktop what the should and software analysis, programming, tems Thornburg explained, look like. as we not- engineering.” above, IT Support ed is “a mainte- The district court concluded that Martin organization nance of com- takes care computer professional: “Martin falls puter systems.” exemption professional for a within the 541.303(b) 29 C.F.R. further clarifies occupa- in a employed computer-related in systems analysis, pro- the work involved genuine dispute tion: there is no that his gramming, engineering and software requires highly-specialized knowl- exemption: falls under the software, and and the edge computers of To exemption be considered for under customarily that he and evidence shows 541.3(a)(4), employee’s primary regularly indepen- discretion and exercises duty must of consist one or more of the (emphasis judgment dent his work.” following: added). The district court made an under- (1) mistake, application systems analysis The
standable one that arises from techniques procedures, including jobs that all involv- perception the common users, consulting with to determine ing computers necessarily highly com- hardware, software, system functional require plex exceptional expertise. specifications; However, regulations provide that an (2) employee’s primary duty require must design, development, documen- tation, practical application creation, “theoretical and analysis, testing, or highly-specialized knowledge computer systems modification of systems analysis, programming, programs, including prototypes, based soft- engineering” merely “highly-spe- system ware on and related to user or design knowledge specifications; cialized computers and soft- *7 important ware.” This is an (3) difference. documentation, design, testing, jobs The former is a narrower of class that creation or modification computer of requires knowledge a different level of and programs related to operating machine Further, training than the latter. it ais systems; or only distinction which will become more (4) a combination of the aforementioned range computer-related relevant as the of duties, performance the of which re- jobs continues broaden. quires the same level of skills. computer program- Martin does not do AEP selectively identifies certain words ming engineering; or software nor does he from this regulation particularly “con- — perform systems analysis, sulting which involves with and “testing” ap- users” —and actual, making analytical plies decisions about them out of context. simply There is how computer Cook’s network should func- no evidence that Martin “consults with Rather, users, tion. installing hardware, software, to determine or tasks— upgrading and hardware and software system specifications.” on functional Martin workstations, configuring desktops, check- “consults purposes with users” for of re- cables, ing replacing parts, pair support, and trouble- and user not to determine shooting “hardware, problems per- software, Windows all system what or func- —are time, see 29 actually spending C.F.R. facility will the Cook specifications” tional Auth., 541.3(e); Valley Ale v. Tennessee analyst might. Like- systems as a employ, (6th Cir.2001), not F.3d 689-90 “testing,” he is wise, does when Martin (but doing not he is trained to do is wrong is what figure out what testing things to duty) training or what he is workstation, piece primary of as his printer, awith future. Nor are trainees bona working to do the restore it to that he can cable so 29 C.F.R. testing computer professionals. fide type -the of doing He is not order. 541.303(c). a time that Only such creating system, de- that is involved pri- systems analysis becomes Martin’s settings sys- for a desired termining the classify him a mary duty can AEP as bona substantively affecting tem, or otherwise Indeed, ensuring computer professional. fide merely he is system. the working is machine particular that the only presented AEP one has Since de- specifications to the according properly project Windows 2000 task —the —that employ- Cook and tested other signed “computer profession- might fall under computer system Maintaining the ees. since, viewing the exemption al” even does parameters predetermined within AEP, light in the most favorable facts ap- practical “theoretical require duty, not Martin’s that task is knowledge highly-specialized of plication genuine issue of AEP has failed to raise systems analysis, programming, computer regarding whether Martin is material fact engineering.” and software computer professional. a bona fide fall has not met its burden under project might that Martin has one analysis: exemption. systems professional category under project This 2000 review. the Windows Exemption B. Administrative after the instant apparently assigned commenced, and, according to lawsuit that Martin a bona To establish only pro- “in the Thornburg, ap Martin was administrative employee under fide (“DOL”) to review right preparing now of Department cess of Labor plicable system,” as of operating that: Windows AEP must regulations, demonstrate Even Thornburg’s deposition. (1) on a date is “compensated project we to conclude at a rate of not less salary were or fee basis (2) analysis, Thornburg week”; was unable systems per than $250 amount of time any per of the ... provide duty [t]he estimate “primary consists spend would expected he Martin nonmanual work di of office or formance indicate elsewhere project management policies but did rectly related to assignments. employ had various other of his operations general business (3) systems customers”; does not make single project This employer’s er or his *8 duty. analysis primary duty Martin’s “includes primary the of discretion requiring the exercise work that there suggests the dissent Finally, judgment.” 29 C.F.R. independent regarding fact of' material dispute is a , 541.2,541.214. §§ . courses training took whether Martin summary judgment entitled Even Martin is develop him standards. teaching that, exists, AEP has neither established it not because dispute if a factual such fact of material genuine issue nor raised job the that one it is material because whether, duty do, Martin’s does, regarding trained to job that one is not the policies management “directly related exempt status. We that determines em- operations of his business general is or analyze how the required to production 29 business” or ployer employer’s regu- or his customers.” work. The 541.214(a). 541.2(a)(1), pro- up dichotomy §§ This lations do not set an absolute C.F.R. vision, describing the types in addition to under which all work must either be classi- of em- performed activities production fied as or administrative. exemption to ployee, persons “limits Rather, the regulations distinguish produc- the perform impor- of substantial who opera- tion work from the administrative management operation or tance to the of tions of at the business 29 C.F.R. employer of his or his em- the business 541.205(a) § production work cannot —thus ployer’s C.F.R. customers.” go be administrative —and then on to de- 541.205(a). § operations fine the administrative of the 541.205(b). § at 29 business C.F.R. To only argument AEP’s Martin’s accept reading AEP’s alternate of 29 “directly management work is related to 541.205(a) § setting up C.F.R. as an abso- policies general operations or business dichotomy lute would render the further employer” the is that Martin’s work is not is, definition of “the production pro operations work. That he is not administrative 541.205(b) ducing electricity because he is not an of the business” in 29 C.F.R. “operator” running the nuclear power utterly superfluous. equipment therefore his work is ad —-and primary job duty Martin’s does not “re- “directly ministrative and thus related to to the operations” latte] administrative management policies general business operations Cook. “The administrative operations employer.” the Under the performed business include the work theory, shippers AEP’s of radioactive by so-called white-collar employees en- waste, the individuals who don radiation gaged as, in ‘servicing’ a business for ex- suits perform maintenance work on ample, advising management, planning, the reactors, staff, janitorial the the the securi negotiating, representing company, ty guards, company the cooks cafe sales, purchasing, promoting and business teria, and various other including workers research control.” 29 C.F.R. doing Martin are all work “relating to the 541.205(b). noted, As we have Thorn- operations administrative of the business” burg described his team as a “maintenance purely they operate because do not organization that takes care of nuclear Schaefer, reactors. See 358 F.3d systems.” way Martin is in no involved in at 402 (holding shipper of radioac “advising management, planning, nego- tive material not doing administrative tiating, representing company, pur- work). rejected We have argument sales, chasing, promoting and business re- production all work that is not work is search Renfro, and control.” See also automatically “directly manage related to (AEP’s F.3d at 517 “planners” were bona policies ment general opera business fide employees administrative where their tions of employer.” Id. at 402-403. primary duty fell within this definition of Indeed, AEP rejected made and we business). “servicing” job,
very argument AEP at Schaefer. instead, is to in keeping assist comput- tempts to distinguish by arguing Schaefer ers and running specifica- network to the that the being waste that was shipped designs tions and of others. was a by-product direct of the Schaefer *9 production of electricity. But such an ar Nor is Martin’s work “of substantial im- gument point. portance misses the management AEP’s error is to the operation or in concluding that all work is either related of the employer.” business of his 541.205(a). to “the operations § administrative of the C.F.R. Work that is of sub- obviously is clerical duties forming routine per- to limited “is not importance stantial impor- of substantial work performing not of formulation in the participate who sons 541.205(c)(2). § 29 C.F.R. tance....” of operation the or in policies management from negative attempts to derive the AEP whole,” em- but includes as a the business that say that duties proposition or this policy work “affects whose ployees “routine clerical than rather complex are or it to execute is responsibility whose This 541.205(c). importance. of substantial are work” 29 C.F.R. out.” it carry say- of logical equivalent is the argument not affect need work employee’s And an obviously is a chihuahua ing that because to as a ivhole business of the operation a that is not cat, every animal then a not enough that it is criterion: meet this addressing Without is cat. chihuahua opera- business affects “work employee’s actu- work is Martin’s of whether the issue though even degree, tions substantial to that say to it is sufficient “complex,” ally to the tasks related are assignments their work make not complexity would the mere of segment of a particular operation regula- substantially important under Id. business.” tions. that argument an presents never AEP is work that Martin’s argues AEP next im- substantial is “of work Martin’s itself of because importance” of “substantial or management operation to
portance on and the he systems works Indeed, of the value employer.” of his of the business regula- of mistakes. consequences that successfully argue not AEP could however, that it is the tions, explain im- is substantial “of work itself Martin’s impor- of substantial that must be itself management operation or to the portance or consequences of the the size tance —not because employer” of his the business of per- improper from result may loss that even that affect decisions makes no theAs duties. of formance opera- company’s of segment the small note, operating employee an regulations He performed. work is which his tions in mes- equipment, a of piece very expensive types of worksta- what determine does not large carrying with boy entrusted senger hardware, AEP or software network, tions, an for inspector and an money, design sums in the is not involved he employs; em- their all cause company can network; insurance he of AEP’s development or perform to failure by serious loss ployers be will what software decide does not employees, but “such jobs properly, their or de- computer users AEP’s to available such work of performing not obviously, config- bewill software how that termine management to importance substantial recom- or not decide ured; and he does can be that it business of the operation or or be serviced must equipment mend when management ‘directly related said be repairs Rather, up he sets replaced. as operations’ business general policies designed and wholly system aof parts 29 C.F.R. §in 541.2.” is used phrase no evidence There by others. approved of the 541.205(c)(2) examples (giving the nature any input into has that he operator, equipment boy, the messenger AEP available resources inspector). insurance and the employees. super- the level argues AEP also “com- work is argues citing inquiry, to the relevant “clerical,” thus vision “routine”
plex,” com- case, without affirmed unpublished AEP derives importance. of substantial Easter Circuit. the Eleventh ment of the a portion from requirement Co., 97- No. Case Light Power & Florida per- “An that states: regulation *10 584 (M.D. 7, 1999), Fla. in employee unpaid June the amount of the
153-CIV-OC-19
(11th
9,
229
slip
F.3d 1168
op. at
compensation
overtime
“and in an addi-
aff'd
Cir.2000) (table).
that an
While the fact
equal
liquidated
tional
amount as
dam-
independently might
employee works
216(b).
§
29
ages.”
Liquidated
U.S.C.
that a worker is
shore-up a conclusion
damages
compensa-
under the
“are
FLSA
“substantial
doing
importance,”
work of
tion,
penalty
or punishment.”
not
Elwell
standing
that fact
alone has little relevance
Serv.,
Hosp.
Home
Univ.
Care
276 F.3d
workers,
Night janitorial
inquiry.
to the
(6th
(internal
832,
Cir.2002)
quotes
840
for
work
example,
independently
often
and
omitted). Although liquidated damages
supervision,
any
without
as
num
direct
do
norm and
have even been referred
ber of skilled tradesmen such as nonex
see,
“mandatory,”
e.g.,
to as
Martin v.
plumbers.
empt electricians
Co.,
Cooper
Supply
896,
Elec.
940 F.2d
907
Finally,
suggests
AEP
consid-
should
(3rd Cir.1991)
(emphasis
original), Con-
salary
er Martin’s
as evidence that his gress
provided
has
the courts with some
importance
of substantial
since he
liquidated
discretion to limit or deny
dam-
average
makes
than “the
more
blue-collar
260;
ages.
Martin,
See 29 U.S.C.
argument
attempt
worker.” This
is an
to
exception,
F.2d at 907. Under this
if an
away
draw attention
from the fact that
employer
good
demonstrates both
faith
substantially
Martin’s work itself is not
grounds
reasonable
for the incorrect
important
regulations. Salary
under the
classification,
may
then a court
exercise its
may
be used to determine the
liquidated
discretion to limit or deny
dam-
duty of an employee
performs
who
both
Elwell,
840;
ages.
Martin,
at
F.3d
exempt
nonexempt
by compar-
tasks
at
F.2d
907. But
burden on
“[t]his
ing
salary
salary
employees
his
to the
Elwell,
employer
substantial,”
276 F.3d
just doing
tasks,
who are
nonexempt
if
it,
and the employer
carry
fails to
541.103,
see
29 C.F.R
not to determine
may
the court
not
deny
limit or
liquidated
the nature of
tasks
those
themselves. Sal-
Elwell,
damages.
840;
276 F.3d at
Mar-
ary differential
not
does
answer the sub-
tin,
were taken offline for eighteen- an court are without discretion limit or shutdown, month plunging plant into a deny liquidated damages. We need not period of activity non-standard and hours. reach the question of objective reason- As Thornburg explained: ableness of AEP’s classification of Martin
The last years three facility this have as exempt. very
been non-standard. I mean What by that is have III. been in a CONCLUSION shutdown outage years. for three all did non- We For the above, reasons stated we RE- standard tasks during year three VERSE the decisions of the district court period of time to install complexes, we entry REMAND for of summary judg- trailers, install we install buildings that ment in favor of plaintiff, and for calcula- are no longer at facility for that tion of damages, including liquidated dam- year three period.... [W]e were all ages. busy doing whatever we had to do to
restart the facilities.... were all [W]e NORRIS, ALAN E. Judge, Circuit ,., doing things, unusual weren’t in We concurring-in-part and dissenting-in-part. configuration. normal I concur in the majority’s ruling insofar - Changing employees nonexempt sta- itas grant concludes that the of summary just as employer altering tus — judgment in favor of defendant was in duties —based solely upon a mapping However, error. I disagree with the ma- based on performed duties before jority’s conclusion that there insufficient change is not in good faith. evidence the record for defendant Fifth, when AEP was done with its re- avoid summary judgment. Genuine issues organization, no employees in the IT de- of material fact exist regarding whether partment worked in positions plaintiff classified as was properly categorized as a nonexempt.' AEP has an affirmative obli- “computer professional.” particular, In gation under the act not misclassify deposition testimony plaintiff reveals that employees exempt, as and an affirmative only had not assigned been “the Windows obligation to inquire classification, into project,” but had been sent to train- Martin, 908-09, F.2d at obligations ing courses aimed at teaching him how to which it failed. AEP was acting “develop standards that [are] use[d] good faith it implemented when this reor- [defendant’s] operating systems.” As ganization which classified ITall plaintiff workers courses, attended these his duties testimony demonstrates “evolv[edj.” This well might duties plaintiffs profes- “computer aas him
have classified remand I Accordingly, would
sional.” trial. for
case *13 JOHNSON,
Gregory Scott
Petitioner-Appellant, Superintendent, McBRIDE,
Daniel Facility, Control
Maximum
Respondent-Appellee. 04-1354.
No. Appeals, Court States
United Circuit.
Seventh 10, 2004. Aug.
Argued 20, 2004. Aug.
Decided 10, 2004. Sept. Denied
Rehearing