Martin v. IN MI Power Co

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Martin v. Indiana Mich. Power Co. No. 02-2343 ELECTRONIC CITATION: 2004 FED App. 0277P (6th Cir.) File Name: 04a0277p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Stephen D. Turner, LAW, WEATHERS & FOR THE SIXTH CIRCUIT RICHARDSON, Grand Rapids, Michigan, for Appellant. _________________ Joseph J. Vogan, VARNUM, RIDDERING, SCHMIDT & HOWLETT, Grand Rapids, Michigan, for Appellee. ANTHONY MART IN , X ON BRIEF: Stephen D. Turner, Gregory N. Longworth, Plaintiff-Appellant, - LAW, WEATHERS & RICHARDSON, Grand Rapids, - Michigan, for Appellant. Joseph J. Vogan, Peter A. Smit, - No. 02-2343 VARNUM, RIDDERING, SCHMIDT & HOWLETT, Grand v. - Rapids, Michigan, for Appellee. > , COLE, J., delivered the opinion of the court, in which INDIANA MICHIGAN POWER - COMPANY , d/b/a American ECONOMUS, D. J., joined. NORRIS, J. (p. 21), delivered a - separate opinion concurring in part and dissenting in part. Electric Power, - Defendant-Appellee. - _________________ - N OPINION Appeal from the United States District Court _________________ for the Western District of Michigan at Grand Rapids. No. 00-00218—Wendell A. Miles, District Judge. R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Anthony Martin claims that his employer, Indiana Michigan Argued: March 17, 2004 Power Company, d/b/a American Electric Power (“AEP”), violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. Decided and Filed: August 23, 2004 §§ 201-19, by failing to pay him time-and-a-half for hours worked in a given week in excess of forty hours. AEP Before: NORRIS and COLE, Circuit Judges; counters that Martin is a bona fide administrative or ECONOMUS, District Judge.* professional employee, exempt from the FLSA’s overtime requirements. The parties filed cross-motions for summary judgment, and the district court granted summary judgment for AEP, holding that Martin was exempt from overtime pay requirements because he was both an administrative employee and a computer professional. For the reasons below, we REVERSE the judgment of the district court and REMAND for entry of summary judgment in favor of the plaintiff, and * The Honorable Peter C. Economus, United States District Judge for for calculation of damages, including liquidated damages. the Northern District of Ohio, sitting by designation.

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I. BACKGROUND decide whether to request service from the manufacturer or order a replacement part or unit. Martin, however, does not Prior to AEP’s reorganization of its Information decide or make recommendations as to whether a piece of Technology (“IT”) department, Martin held the position of equipment must be serviced or replaced. Nor has he written “Computer Security/Standards Technician,” which AEP reports on his troubleshooting or repair activities. He has not classified as nonexempt. On November 1, 1998, when the recommended the purchase of any equipment, hardware, or department was reorganized, Martin’s title was changed to software, although Thornburg considers Martin’s comments “IT Support Specialist,” which AEP classified as an exempt on printers and problems “valuable” in his own decision position. According to AEP, the purpose of the making process. reorganization was to “push down responsibilities to workers,” “to delegate more authority,” and to “flatten the In addition to processing help desk tickets, Thornburg has organization.” directed Martin to complete a variety of other tasks. First, for a period of time while the nuclear reactors were shut down Mike Thornburg, Martin’s supervisor, describes the between November 1998 and May 2000, Martin relocated function of his IT Support team as follows: “Maintaining the workstations to trailers and temporary buildings. Sometime computer workstation software, troubleshooting and in 2000, Cook brought in contractors to move workstations. repairing, network documentation, that is our primary job. Thornburg testified that, prior to that, everyone in IT Support We were a maintenance organization that takes care of – including Thornburg and Martin – was spending so much computer systems.” The computers that Martin works on are time moving workstations that they were not able to carry out workstations (or “PCs”) at individual desks connected to a their primary job as a maintenance organization. local area network (“LAN”); Martin does not work on the plant process computer – “which deals with the plant, what’s Second, Martin was assigned to install hardware and cable going on as far as the reactor operators”– which is a different for the network, including network components such as hubs, system. switches, and routers, when Cook was physically expanding the LAN to trailers and new buildings. Martin worked in the When people at the plant have problems with their wiring closets: terminating the cables (that is, putting computers, they call the help desk where the help desk connectors on the ends of the cables), plugging them into the employees put the problems into a database as “help desk hubs, and verifying that they were connected by phoning the tickets,” which Martin prints out. Martin responds to these system administrator to confirm that the hubs had appeared help desk tickets. He goes to the location indicated where he on the network. Martin was not involved in designing the attempts to determine the nature of the problem, to configuration of either the cables or the hardware he installed, “troubleshoot” it to determine how to proceed, and to repair nor does he install any programs onto the network. Third, on the problem if possible. Martin installs software, such as January 2, 2001, Thornburg assigned Martin to clean up the Microsoft’s Office 97, on individual workstations. He wiring closets, to make sure the master network diagram troubleshoots Windows 95 problems and installs provided accurately reflected what was physically in the closets and software patches. update it if necessary, and to get the locks changed, if possible, so that one key would open all the closets. If Martin cannot fix a problem, he will report the problem and how he tried to fix it to Thornburg. Thornburg will

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Shortly before Thornburg’s February 28, 2001, deposition, The FLSA requires employers to pay their employees time- Martin received another assignment. According to and-a-half for work performed in excess of forty hours per Thornburg, he assigned Martin “to review a Windows 2000 week, 29 U.S.C. § 207(a)(1), but exempts employers from operating system that we have just developed.” At the time this requirement with respect to individuals “employed in a of the deposition, Thornburg explained that Martin was in the bona fide executive, administrative, or professional capacity.” “process” of “preparing” to do the review. For the 29 U.S.C. § 213(a)(1). To avoid paying overtime to Martin, assignment, Martin was supposed to “review the desktop AEP must prove that he falls within one of these exempt operating system in our applications to make sure they work categories. AEP argues that Martin is exempt as both an as he uses them in the field. And if not, I expect him to make “administrative” employee and a “computer professional,” recommendations for corrections.” This assignment – which is a subclass of “professional” employees. apparently made after the litigation commenced – is the first of this type for Martin. As Thornburg put it, Martin’s duties The exemptions to the FLSA’s overtime provisions are “to were “evolving.” be ‘narrowly construed against the employers seeking to assert [them],’” Douglas v. Argo-Tech Corp., 113 F.3d 67, 70 Martin has no computer certifications and no degree (6th Cir. 1997) (quoting Arnold v. Ben Kanowsky, Inc., 361 beyond high school. He has taken one course in U.S. 388, 392 (1960)), and the employer bears not only the microcomputing, a class in using Windows 2000, and four, burden of proof, but also the burden on each element of the week-long hands-on computer training classes. Martin has a claimed exemption. Id. Because the burden of proof is work bench located in a common work area – also referred to shifted, Martin is entitled to summary judgment unless the as a “workshop” in the depositions. Martin does not have his defendant can come forward with evidence at least creating a own phone line; everyone in the area shares a “shop phone.” genuine issue of material fact as to whether Martin meets He wears a blue short-sleeved work shirt with two pockets on each and every element of the exemption. If AEP fails to the front, a name badge that says “Tony,” and a badge that proffer such evidence, not only must its motion for summary says “D.C. Cook, CSS Section”; blue work pants; and work judgment be denied, but summary judgment for Martin must boots. be granted. See Schaefer v. Ind. Mich. Power Co., 358 F.3d 394, 407 (6th Cir. 2004) (Suhrheinrich, J. concurring) II. ANALYSIS (asserting that Schaefer was entitled to summary judgment because “[i]n my view, AEP has, at a minimum, failed to This Court reviews de novo a district court’s grant of create a genuine issue of fact on the question of whether summary judgment. Stephenson v. Allstate Ins. Co., 328 F.3d Schaefer's primary duty ‘includes work requiring exercise of 822, 826 (6th Cir. 2003). Summary judgment is appropriate discretion and independent judgment.’”).1 if, after examining the record and drawing all inferences in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is 1 In additional to this shifting of the burden of proof, Martin argues entitled to judgment as a matter of law. FED .R.CIV .P. 56(c); that the employer has to prove each element to a higher burden of proof Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. than to a preponderance of the evidence, citing Ale v. Tennessee Valley 1992). Auth., 269 F.3d 6 80, 69 1 n.4 (6th C ir. 2001) (“The d efendant must establish through ‘clear and affirm ative evidenc e’ that the employee meets every re quirement of an exemp tion.”). Ale and the other circuits that have articulated this “clear and affirmative evidence” langua ge, see

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For purposes of this analysis, we view the facts in the light requiring the consistent exercise of discretion and judgment.” most favorable to AEP. The facts regarding Martin’s 29 C.F.R. §§ 541.3(a)(4), 541.3(e). workplace tasks are largely undisputed. The parties do disagree, however, about how much time Martin spends on First, AEP must establish that Martin is payed on a salary hardware versus software tasks and how much time Martin or fee basis at a rate of not less than $250 per week or that he spent moving work stations with or without the help of is compensated on an hourly basis at a rate in excess of 6 1/2 contractors. These disputes, however, are ultimately times the minimum wage. 29 C.F.R. § 541.3(e). The irrelevant because neither Martin’s hardware nor software evidence establishes that Martin is paid a salary. It does not work exempts him, and, regardless of how much time Martin matter that Martin must make up partial-day absences or that spent moving computers, his others tasks are no more exempt. Martin’s hours are prescribed and he must obtain approval from his supervisor to vary his hours. See Renfro v. Ind. A. Computer Professional Exemption Mich. Power Co., 370 F.3d 512, 516 (6th Cir. 2004); Schaefer, 358 F.3d at 400. Martin argues in his reply brief To establish that Martin is a “computer professional” under that he is not a salaried employee because AEP pays him the regulations and therefore not entitled to overtime, AEP straight overtime for some overtime hours, based on Kennedy must demonstrate that (1) the employee “is compensated on v. Commonwealth Edison Co., 242 F.Supp.2d 542 (C.D.Ill. a salary or fee basis at a rate of not less than $250 per week” 2003), which subsequently has been vacated and reconsidered or that the employee “is compensated on an hourly basis at a at Kennedy v. Commonwealth Edison Co., 252 F.Supp.2d 737 rate in excess of 6 1/2 times the minimum wage”; (2) the (C.D.Ill. 2003). We need not consider this novel (and only employee’s “primary duty consists of the performance of . . . partially briefed) argument, however, because we can decide [w]ork that requires theoretical and practical application of Martin’s status on the ground below. highly-specialized knowledge in computer systems analysis, programming, and software engineering, and [the employee AEP must raise a genuine issue of fact regarding whether is] employed and engaged in these activities as a computer Martin’s “primary duty consists of the performance of . . . systems analyst, computer programmer, software engineer, or [w]ork that requires theoretical and practical application of other similarly skilled worker in the computer software field highly-specialized knowledge in computer systems analysis, . . . ”; and (3) the employee’s primary duty “includes work programming, and software engineering, and [whether he is] employed and engaged in these activities as a computer systems analyst, computer programmer, software engineer, or Klinedin st v. Swift Investments, Inc., 260 F.3d 12 51, 1254 (11th Cir. other similarly skilled worker in the computer software field.” 2001); Donovan v. United Video, Inc., 725 F.2d 57 7, 581 (10th Cir. 29 C.F.R. §§ 541.3(a)(4). Thus, although Martin is not a 1984), have d one so witho ut explanation of what the phrase means. systems analyst, programmer, or software engineer, he could Martin, perhaps drawing from the similarity to the phrase “clear and still be exempt from overtime if his work “requires theoretical convincing evidence” urges us to ho ld that Ale sets a heightened evidentiary standard. Alternatively, “clear and affirmative evidence” may and practical application of highly-specialized knowledge in simply be a way of restating what we have said above: the employer computer systems analysis, programming, and software bears the burden of pro ving each and every element of the exemptio n in engineering.” a remedial statute that is to be narrowly construed against the employer. Since the meaning of the phrase would not change the result in this case, The district court concluded that Martin was a computer any exposition by us on the intentions of the Ale court would be mere professional: “Martin falls within the exemption for a dicta.

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professional employed in a computer-related occupation: To be considered for exemption under § 541.3(a)(4), an there is no genuine dispute that his work requires highly- employee's primary duty must consist of one or more of specialized knowledge of computers and software, and the the following: evidence shows that he customarily and regularly exercises discretion and independent judgment in his work.” (emphasis (1) The application of systems analysis techniques and added). The district court made an understandable mistake, procedures, including consulting with users, to determine one that arises from the common perception that all jobs hardware, software, or system functional specifications; involving computers are necessarily highly complex and require exceptional expertise. However, the regulations (2) The design, development, documentation, analysis, provide that an employee’s primary duty must require creation, testing, or modification of computer systems or “theoretical and practical application of highly-specialized programs, including prototypes, based on and related to knowledge in computer systems analysis, programming, and user or system design specifications; software engineering” not merely “highly-specialized knowledge of computers and software.” This is an important (3) The design, documentation, testing, creation or difference. The former is a narrower class of jobs that modification of computer programs related to machine requires a different level of knowledge and training than the operating systems; or latter. Further, it is a distinction which will only become more relevant as the range of computer-related jobs continues (4) a combination of the aforementioned duties, the to broaden. performance of which requires the same level of skills.

Martin does not do computer programming or software AEP selectively identifies certain words from this regulation engineering; nor does he perform systems analysis, which – particularly “consulting with users” and “testing” – and involves making actual, analytical decisions about how applies them out of context. There is simply no evidence that Cook’s computer network should function. Rather, Martin’s Martin “consults with users, to determine hardware, software, tasks – installing and upgrading hardware and software on or system functional specifications.” Martin “consults with workstations, configuring desktops, checking cables, users” for purposes of repair and user support, not to replacing parts, and troubleshooting Windows problems – are determine what “hardware, software, or system functional all performed to predetermined specifications in the system specifications” the Cook facility will employ, as a systems design created by others. As Martin testified, he is provided analyst might. Likewise, when Martin does “testing,” he is the standard “desktop” for installation on the computers he testing things to figure out what is wrong with a workstation, configures, but he is not involved in determining what the printer, or piece of cable so that he can restore it to working desktop should look like. Thornburg explained, as we noted order. He is not doing the type of testing that is involved in above, that IT Support is “a maintenance organization that creating a system, determining the desired settings for a takes care of computer systems.” system, or otherwise substantively affecting the system. Indeed, he is merely ensuring that the particular machine is 29 C.F.R. § 541.303(b) further clarifies the work involved working properly according to the specifications designed and in systems analysis, programming, and software engineering tested by other Cook employees. Maintaining the computer that falls under the exemption: system within the predetermined parameters does not require “theoretical and practical application of highly-specialized

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knowledge in computer systems analysis, programming, and B. Administrative Exemption software engineering.” To establish that Martin is a bona fide administrative Martin has one project that might fall under the category of employee under the applicable Department of Labor (“DOL”) systems analysis: the Windows 2000 review. This project regulations, AEP must demonstrate that: (1) the employee is was apparently assigned after the instant lawsuit commenced, “compensated on a salary or fee basis at a rate of not less than and, according to Thornburg, Martin was only “in the process $250 per week”; (2) the employee’s “primary duty consists of right now of preparing to review a Windows 2000 operating . . . [t]he performance of office or nonmanual work directly system,” as of the date of Thornburg’s deposition. Even were related to management policies or general business operations we to conclude that this project is systems analysis, of his employer or his employer’s customers”; and (3) the Thornburg was unable to provide any estimate of the amount employee’s primary duty “includes work requiring the of time that he expected Martin would spend on the project exercise of discretion and independent judgment.” 29 C.F.R. but did indicate elsewhere that Martin had various other §§ 541.2, 541.214. assignments. This single project does not make systems analysis Martin’s primary duty. Martin is entitled to summary judgment because AEP has neither established that, nor raised a genuine issue of material Finally, the dissent suggests that there is a dispute of fact regarding whether, Martin’s primary duty is “directly material fact regarding whether Martin took training courses related to management policies or general business operations teaching him to develop standards. Even if such a factual of his employer or his employer’s customers.” 29 C.F.R. dispute exists, it is not material because it is the job that one §§ 541.2(a)(1), 541.214(a). This provision, in addition to does, not the job that one is trained to do, that determines describing the types of activities performed by an exempt exempt status. We are required to analyze how the employee employee, “limits the exemption to persons who perform is actually spending his time, see 29 C.F.R. § 541.3(e); Ale v. work of substantial importance to the management or Tennessee Valley Auth., 269 F.3d 680, 689-90 (6th Cir. 2001), operation of the business of his employer or his employer’s not what he is trained to do (but is not doing as his primary customers.” 29 C.F.R. § 541.205(a). duty) or what he is training to do in the future. Nor are trainees bona fide computer professionals. 29 C.F.R. AEP’s only argument that Martin’s work is “directly related § 541.303(c). Only at such a time that systems analysis to management policies or general business operations of the becomes Martin’s primary duty can AEP classify him as a employer” is that Martin’s work is not production work. That bona fide computer professional. is, he is not producing electricity because he is not an “operator” running the nuclear power equipment – and Since AEP has only presented one task – the Windows therefore his work is administrative and thus “directly related 2000 project – that might fall under the “computer to management policies or general business operations of the professional” exemption and since, even viewing the facts in employer.” Under AEP’s theory, shippers of radioactive the light most favorable to AEP, that task is not Martin’s waste, the individuals who don radiation suits and perform primary duty, AEP has failed to raise a genuine issue of maintenance work on the reactors, the janitorial staff, the material fact regarding whether Martin is a bona fide security guards, the cooks in the company cafeteria, and computer professional. AEP has not met its burden under the various other workers including Martin are all doing work computer professional exemption. “relating to the administrative operations of the business”

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purely because they do not operate the nuclear reactors. See 517 (AEP’s “planners” were bona fide administrative Schaefer, 358 F.3d at 402 (holding that a shipper of employees where their primary duty fell within this definition radioactive material was not doing administrative work). We of “servicing” the business). Martin’s job, instead, is to assist have rejected the argument that all work that is not production in keeping the computers and network running to the work is automatically “directly related to management specifications and designs of others. policies or general business operations of the employer.” Id. at 402-403. Indeed, AEP made and we rejected this very Nor is Martin’s work “of substantial importance to the argument in Schaefer. AEP attempts to distinguish Schaefer management or operation of the business of his employer.” by arguing that the waste that was being shipped in Schaefer 29 C.F.R. § 541.205(a). Work that is of substantial was a direct by-product of the production of electricity. But importance “is not limited to persons who participate in the such an argument misses the point. AEP’s error is in formulation of management policies or in the operation of the concluding that all work is either related to “the business as a whole,” but includes employees whose work administrative operations of the business” or production “affects policy or whose responsibility it is to execute or carry work. The regulations do not set up an absolute dichotomy it out.” 29 C.F.R. § 541.205(c). And an employee’s work under which all work must either be classified as production need not affect operation of the business as a whole to meet or administrative. Rather, the regulations distinguish this criterion: it is enough that the employee’s “work affects production work from the administrative operations of the business operations to a substantial degree, even though their business at 29 C.F.R. § 541.205(a) – thus production work assignments are tasks related to the operation of a particular cannot be administrative – and then go on to define the segment of the business.” Id. administrative operations of the business at 29 C.F.R. § 541.205(b). To accept AEP’s alternate reading of 29 C.F.R. AEP never presents an argument that Martin’s work itself § 541.205(a) as setting up an absolute dichotomy would is “of substantial importance to the management or operation render the further definition of “the administrative operations of the business of his employer.” Indeed, AEP could not of the business” in 29 C.F.R. § 541.205(b) utterly successfully argue that Martin’s work itself is “of substantial superfluous. importance to the management or operation of the business of his employer” because Martin makes no decisions that affect Martin’s primary job duty does not “relat[e] to the even the small segment of the company’s operations in which administrative operations” at Cook. “The administrative his work is performed. He does not determine what types of operations of the business include the work performed by so- workstations, network, hardware, or software AEP employs; called white-collar employees engaged in ‘servicing’ a he is not involved in the design or development of AEP’s business as, for example, advising the management, planning, network; he does not decide what software will be available negotiating, representing the company, purchasing, promoting to AEP’s computer users or determine how that software will sales, and business research and control.” 29 C.F.R. be configured; and he does not decide or recommend when § 541.205(b). As we have noted, Thornburg described his equipment must be serviced or replaced. Rather, he sets up team as a “maintenance organization that takes care of and repairs parts of a system wholly designed and approved computer systems.” Martin is in no way involved in by others. There is no evidence that he has any input into the “advising the management, planning, negotiating, nature of the computer resources available to AEP employees. representing the company, purchasing, promoting sales, and business research and control.” See also Renfro, 370 F.3d at

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AEP argues that Martin’s work is “complex,” not “routine” (table). While the fact that an employee works independently or “clerical,” and thus of substantial importance. AEP derives might shore-up a conclusion that a worker is doing work of this requirement from a portion of the regulation that states: “substantial importance,” that fact standing alone has little “An employee performing routine clerical duties obviously is relevance to the inquiry. Night janitorial workers, for not performing work of substantial importance . . . .” 29 example, often work independently and without direct C.F.R. § 541.205(c)(2). AEP attempts to derive the negative supervision, as do any number of skilled tradesmen such as from this proposition and say that duties that are complex nonexempt electricians and plumbers. rather than “routine clerical work” are of substantial importance. This argument is the logical equivalent of saying Finally, AEP suggests we should consider Martin’s salary that because a chihuahua is obviously not a cat, then every as evidence that his work is of substantial importance since he animal that is not a chihuahua is a cat. Without addressing makes more than “the average blue-collar worker.” This the issue of whether Martin’s work is actually “complex,” it argument is an attempt to draw attention away from the fact is sufficient to say that mere complexity would not make his that Martin’s work itself is not substantially important under work substantially important under the regulations. the regulations. Salary may be used to determine the primary duty of an employee who performs both exempt and AEP next argues that Martin’s work is of “substantial nonexempt tasks by comparing his salary to the salary of importance” because of the value of the systems he works on employees who are just doing the nonexempt tasks, see 29 and the consequences of mistakes. The regulations, however, C.F.R § 541.103, not to determine the nature of those tasks explain that it is the work itself that must be of substantial themselves. Salary differential does not answer the importance – not the size of the consequences or loss that may substantial importance question. The fact that a nonexempt, result from improper performance of the employee’s duties. unionized, skilled plumber may earn more than an exempt As the regulations note, an employee operating a very public school teacher does not change the nature of the expensive piece of equipment, a messenger boy entrusted plumber’s work. with carrying large sums of money, and an inspector for an insurance company can all cause their employers serious loss In sum, the evidence viewed in the light most favorable to by failure to perform their jobs properly, but “such AEP neither establishes that nor raises a genuine issue of employees, obviously, are not performing work of such material fact regarding whether Martin’s work is “directly substantial importance to the management or operation of the related to management policies or general business operations business that it can be said to be ‘directly related to of his employer or his employer’s customers.” Thus, not only management policies or general business operations’ as that is AEP not entitled to summary judgment, but Martin is phrase is used in § 541.2.” 29 C.F.R. § 541.205(c)(2) (giving entitled to summary judgment. the examples of the messenger boy, the equipment operator, and the insurance inspector). C. Liquidated Damages

AEP also argues that the level of supervision is relevant to An employer who violates the FLSA’s overtime provisions the inquiry, citing an unpublished case, affirmed without is liable to the employee in the amount of the unpaid overtime comment by the Eleventh Circuit. Easter v. Florida Power & compensation “and in an additional equal amount as Light Co., Case No. 97-153-CIV-OC-19 (M.D. Fla. June 7, liquidated damages.” 29 U.S.C. § 216(b). Liquidated 1999), slip op. at 9, aff’d 229 F.3d 1168 (11th Cir. 2000) damages under the FLSA “are compensation, not a penalty or

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punishment.” Elwell v. Univ. Hosp. Home Care Serv., 276 First, AEP cannot claim reliance on Martin’s choice of F.3d 832, 840 (6th Cir. 2002) (internal quotes omitted). position when AEP itself instructed Martin to choose the IT Although liquidated damages are the norm and have even Support job family, all of which positions are exempt. Martin been referred to as “mandatory,” see, e.g., Martin v. Cooper testified at deposition that he chose the IT Support Specialist Elec. Supply Co., 940 F.2d 896, 907 (3rd Cir. 1991) group rather than the technician group because he was (emphasis in original), Congress has provided the courts with instructed to do so by Thornburg. AEP has not disputed this some discretion to limit or deny liquidated damages. See 29 proposition. U.S.C. § 260; Martin, 940 F.2d at 907. Under this exception, if an employer demonstrates both good faith and reasonable Second, even if AEP could rely in good faith on Martin’s grounds for the incorrect classification, then a court may choice of IT Support Specialist I, it could not, in good faith, exercise its discretion to limit or deny liquidated damages. classify any employee in that position as exempt without Elwell, 276 F.3d at 840; Martin, 940 F.2d at 907. But “[t]his further information because that position description includes burden on the employer is substantial,” Elwell, 276 F.3d at both nonexempt and (likely) exempt tasks. The first of the six 840, and if the employer fails to carry it, the court may not tasks listed in the IT Job Family Skills Matrix for IT Support limit or deny liquidated damages. Elwell, 276 F.3d at 840; Specialist I roughly describes the nonexempt user support Martin, 940 F.2d at 907. work that Martin actually performs. The second task listed – “[p]articipate in the review, evaluation, analysis, and To prove that it acted in good faith, an employer “must recommendation of information systems and procedures” – show that [it] took affirmative steps to ascertain the Act’s may well be exempt. The third task, which requires the requirements, but nonetheless violated its provisions.” employee to “[m]aintain records, documentation, manuals, Martin, 940 F.2d at 908. “Good faith” means more than and prepare status reports,” is amorphous and appears in the merely not willfully misclassifying the employee. Elwell, vast majority of the IT position descriptions, including the 276 F.3d at 841 n.5. The employer has an affirmative duty to nonexempt technician positions. The remaining items are not ascertain and meet the FLSA’s requirements, and an employer job tasks per se but merely require the employee to maintain who negligently misclassifies an employee as exempt is not certain skills. But, of course, the exempt work must be the acting in good faith. Id. Thus, the violation of the FLSA employee’s primary duty, and the job description provides no does not have to be intentional for Martin to recover indication the second of the task listed is the primary duty. If liquidated damages, and AEP has the burden of establishing anything, the order of the tasks, the name of the job family that it acted in good faith when affirmatively determining that (IT Support), the “typical job tracks” in the job family Martin was exempt. See Martin, 940 F.2d at 908. description, and the mapping instructions (“Support staff/Technicians to maintain [hardware and software] and AEP argues that it acted in good faith because it relied on help customers use them”), all suggest that the first, a form that Martin filled out during the reorganization of the nonexempt task is primary. Thus, to classify any employee IT department – an“employee mapping form” – on which who chose IT Support Specialist I as exempt, AEP would Martin specified his job level under the new organization as need more information, and the FLSA’s good-faith “IT Support Specialist I.” Reliance on this mapping does not, requirement requires AEP to seek it out. however, establish good faith for a variety of reasons. But AEP’s misclassification of Martin was not, in fact, based on this lack of information. AEP actually classifies the

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entire IT Support job family as exempt, even though positions that are no longer at this facility for that three year II through IV do not include any exempt tasks. Thus, AEP period. . . . [W]e were all busy doing whatever we had to would have incorrectly classified Martin as exempt regardless do to restart the facilities. . . . [W]e were all doing of what level within the job family he chose. unusual things. We weren’t in normal configuration. Third, even if Martin had incorrectly picked an actual Changing an employees nonexempt status – just as the exempt position in the mapping, AEP cannot claim to have employer is altering his duties – based solely upon a mapping relied on it in good faith when it affirmatively knew that based on duties performed before the change is not in good Martin was doing nonexempt work. In addition to faith. Thornburg’s knowledge of Martin’s actual tasks, two documents labeled “job descriptions” which list all the IT Fifth, when AEP was done with its reorganization, no employees’ job descriptions demonstrate that AEP knew what employees in the IT department worked in positions classified kind of work Martin was doing. These documents – dated as nonexempt. AEP has an affirmative obligation under the August 2000 and December 2001 – list Martin’s job act not to misclassify employees as exempt, and an description as follows: “Workstations, Network Printers, affirmative obligation to inquire into classification, Martin, Wiring Closet Hardware, Pagers, Radio Controlled Cranes, 940 F.2d at 908-09, obligations which it failed. AEP was not Fiber Optics.” AEP cannot claim – in the face of this job acting in good faith when it implemented this reorganization description – that it actually thought that Martin’s primary job which classified all IT workers as exempt. Finally, even if duty was “participat[ing] in the review, evaluation, analysis, AEP actually believed that it had made the correct and recommendation of information systems and procedures.” classification (which alone is not sufficient to avoid liquidated The FLSA requires the employer to make FLSA exemption damages), Martin immediately complained about his decisions based on the employee’s actual job duties, not the classification as exempt, putting AEP on notice of the employee’s job title, Ale, 269 F.3d at 689-90, and the good problem. faith requirement imposes an affirmative burden. AEP may not rely on incorrect information in the face of its actual Some of this evidence suggests willfulness and some knowledge of Martin’s job activities. merely suggests negligence, but none of it establishes good faith. Because AEP has not established that it acted in good Fourth, the date of reclassification provides additional faith when it classified Martin as exempt, this Court and the evidence that AEP was not acting in good faith. AEP actually district court are without discretion to limit or deny liquidated classified Martin as exempt on November 1, 1998, just as the damages. We need not reach the question of the objective Cook nuclear reactors were being taken offline for an reasonableness of AEP’s classification of Martin as exempt. eighteen-month shutdown, plunging the plant into a period of non-standard activity and hours. As Thornburg explained: III. CONCLUSION

The last three years at this facility have been very non- For the reasons stated above, we REVERSE the decisions standard. What I mean by that is we have been in a of the district court and REMAND for entry of summary shutdown outage for three years. We all did non- judgment in favor of plaintiff, and for calculation of damages, standard tasks during that three year period of time to including liquidated damages. install complexes, we install trailers, we install buildings

No. 02-2343 Martin v. Indiana Mich. Power Co. 21 _____________________________________________

CONCURRING IN PART, DISSENTING IN PART _____________________________________________

ALAN E. NORRIS, Circuit Judge, concurring-in-part and dissenting-in-part. I concur in the majority’s ruling insofar as it concludes that the grant of summary judgment in favor of defendant was in error. However, I disagree with the majority’s conclusion that there is insufficient evidence in the record for defendant to avoid summary judgment. Genuine issues of material fact exist regarding whether plaintiff was properly categorized as a “computer professional.” In particular, deposition testimony reveals that plaintiff had not only been assigned “the Windows 2000 project,” but had been sent to training courses aimed at teaching him how to “develop standards that [are] use[d] on [defendant’s] operating systems.” As plaintiff attended these courses, his duties “evolv[ed].” This testimony demonstrates that plaintiff’s primary duties might well have classified him as a “computer professional.” Accordingly, I would remand the case for trial.