The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge.
Siragusa, J. Plaintiffs brought this action claiming that defendant
violated the Fair Labor Standards Act of 1938, as amended, 29 U.S. Code
§ 201, et seq., by improperly classifying their computer networking
administrator jobs as exempt from time-and-a-half overtime pay. The case
is now before the Court on defendant's motion (docket #12) for summary
judgment. For the reasons stated below, the Court denies defendant's
The standard for granting summary judgment is well established. Summary
judgment may not be granted unless "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment
bears the burden of establishing that no genuine issue of material fact
exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
"[T]he movant must make a prima facie showing that the standard for
obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL
PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden
is on the moving party to demonstrate that the evidence creates no
genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d
Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.
1987) (en banc). Where the non-moving party will bear the burden of proof
at trial, the party moving for summary judgment may meet its burden by
showing the evidentiary materials of record, if reduced to admissible
evidence, would be insufficient to carry the non-movant's burden of proof
at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Tests new computer hardware and software.
Network Administrator II job description (attached as Exhibit J to
Defendant's Exhibits Submitted in Support of Motion for Summary
Wood testified during a pretrial deposition that his job included the
following distinguishing features: it is the second-highest position in
the Network Administrator hierarchy; it involves maintaining and
operating a computer network system analyzing hardware and software
problems, conducting workshops, and configuring work stations. Unlike the
next lower position, Wood's position imposes responsibility for
independently administering systems, including problem resolution, and
generally performing assignments with a higher consequence of error. He
declared that he maintains, troubleshoots and repairs personal computers
and the computer network at the defendant's 911 Center, which, he said,
involves analyzing and taking corrective action on computer and data
communications, and hardware and software network problems. In addition,
he stated that he occasionally shows users how to operate the computers.
He also said that he troubleshoots network connections and tests computer
hardware and software. He also maintains the computer-aided dispatch
("CAD") system at the 911 Center and at 103 remote locations. He
testified that the CAD system is a very specialized database and that he
troubleshoots that system to insure it is running properly and he fixes
anything that is wrong with it. In addition, he testified that he has
performed what he terms as "rudimentary data extraction" from files for
Wood dep. at 32. Wood described another type of typical computer problem,
Wood dep. at 33. Wood testified that another of his job duties requires
that he "coordinates and conducts computer workshops for users to provide
up to date information and support." Wood dep. at 34. When asked to
describe what he did for this particular duty, Wood stated,
Wood dep. at 34-35. He indicated that this was informal one-on-one
training and did not take place in a classroom. When asked about the job
duty of, "demonstrates and trains users in the operation and maintenance
of computer hardware and
and if not, how he would write a program to do so. Once he
created the program, he did not have to receive approval or authority to
Wood also stated that although two other IS employees work in the 911
Center with him, he has no role in supervising either one of them. He
also testified that he spent about 50% of his working time at his desk
and the remainder either in the 911 offices, or at any of 104 locations
in the county (fire, police and ambulance stations). He further testified
that when filling in his pay cards, any time he worked over 40 hours per
week, he always requested "premium overtime" pay, meaning time-and-a-half
pay. When he was paid time-and-a-half pay, he was required to pay back the
extra half time pay.
C. Michael Burke
Burke currently holds the position entitled "Network Administrator
III," which was formerly titled "Senior Network Technician." Some of the
distinguishing features of his position are: it is the third level
position in the Network Administrator hierarchy; it involves assisting in
the installation, configuration, maintenance, and management of the user
accounts; it differs from the lower Network Administrator IV position in
that it requires responsibility for independent performance of routine
duties, and in smaller installations, may require general supervision
over a technical staff. Network Administrator III job description
(attached as Exhibit L to Defendant's Exhibits Submitted in Support of
Motion for Summary Judgment). Burke has been employed by Monroe County
for 10 years, having begun as a Network Technician, and having been
promoted after five years to System Support Technician, after which he was
promoted to Senior Network Technician. His current position has
essentially the same job functions as the prior title of Senior Network
Technician. He is also responsible for monitoring success or failure of
the backup on the local area network system. He spends approximately half
of his workday at his desk checking upon the backup equipment, which is
done from a computer with software that informs him if the backup
performed poorly or well. He then troubleshoots the backup, and refers to
manuals and online guides to assist him in this function.
At his pretrial deposition, Burke was asked about his work as a network
technician, a title he held prior to the Network Administrator III
title. He testified that,
[i]f [mainframe connected terminal and printer
equipment] ceased to function I was the person that
was contacted to go out and find out why. There were
checklists that we would go through to try to make a
determination as to why that stopped functioning. . .
. In most cases, the equipment came with a book that
had a list of things that you would go through to
determine whether the vendor needed to be called or
whether there was something else wrong.
Burke dep. at 23. He also testified that although his initial work
concerned terminals and printers connected to the County's mainframe
computer, over time mainframe terminals and printers became fewer and
personal computers with printers became greater; yet, he also testified
that this gradual change in equipment did not change his basic job
functions. He stated that in terms of maintaining the equipment, he
"[b]asically followed the same guidelines." Id. at 35. In addition, Burke
stated that he spent roughly half of his working days at his assigned
desk and the remainder away from it at other job locations.
Defense counsel at Burke's pretrial deposition asked him about the job
functions listed on the Network Administrator III job description paper.
He then asked
Burke to comment on whether the description was accurate
with respect to the work Burke actually did in his job. The first
descriptive function was, "scheduled installation, replacement, movement
and repair of all network communication equipment, in parenthesis
terminals, printers, et cetera." Id. at 55. Burke responded that he did
"installation, replacement[,] but I certainly don't schedule it." Id. He
then described what he did to perform the function of "installation," and
In most cases today that would entail gathering all of
the pieces and parts of whatever it was to be
installed. Checking if off on a check list that Patty
[Hart, his supervisor] would provide of items that
were supposed to be in that particular installation.
Either getting this equipment down to the loading dock
for myself to transport or calling building and
maintenance for assistance in transporting.
Transporting the equipment to the site, wherever it's
going. . . .
Once it's on site, unload it at a loading dock or
whatever was available. Find a means to transport it
to whatever the location it is that it's going to be
installed. . . . Unpack it and basically set it
up. . . .
For example, on a server that would be positioning it
in a rack or on a table or under a table or whatever
the location mandated. In some cases[,] plugging it in
and bringing the particular piece of equipment up. Not
necessarily on line[,] but so that it's base functions
are working. In a lot of cases that would be it. . . .
At times when a supervisor would accompany me[,] we
may [sic.] go ahead and bring whatever we were
installing, bring the installation live. . . .
Putting an actual [sic.] on line on a live system
affects the entire county system. So when you're going
to do that[,] there'[re] a lot of different things
that have to come into play. . . . There would be a
whole list of things that would be different. Those
would be things I would want to get a supervisor or
someone in an administrator position involved in[,]
because there'[re] elements of that that I wouldn't
have intimate knowledge of in terms of addressing what
things should be set as a conflict between devices on
a network and interaction between the different
servers, naming conventions, things like that. . . .
Those are all things that would fall under an
administrator position that I wouldn't be doing.
Burke dep. at 56-58. When asked to describe the difference between
setting up a piece of equipment and replacing equipment, Burke
If it was a situation where the monitor went bad on
the server your basic check list would be plug it in,
see if it works. If it doesn't, replace it. If it has
no affect [sic.] on the rest of the server or on the
network[,] it certainly would be something that you
could more or less do yourself without any interaction
with the rest of the network or other individuals. . . .
Replacing[,] for example[,] a tape driver that would
be part of a server [is an example of something that
would be more complex]. That might require you to take
the server down. It would affect the rest of the
network and users on the network.
Id. at 61.
Defendant's counsel then asked Burke to describe what was involved in
the job function of movement, and he responded that his best guess was
that it was a reference to moving equipment from one place to another.
The next descriptive function was, "customizes, maintains and documents
all microcodes for network controllers." Id. at 63. Burke responded that
he had been involved in checking
microcode levels for servers, and that a
firmware that would be interchangeable on equipment.
. . . If I know a microcode needs to be updated[,] my
supervisor would instruct me to update a microcode on
a server. I would follow the procedure to accomplish
that. . . .
In general that would be most of the time an after hours
activity. The server would be brought down. The C.D. ROM
containing the microcode updates would be brought up.
There's a procedure for loading the new versions at which
point the server is rebooted and brought back up and basic
tests are run on it to ensure that everything went well.
Burke dep. at 63-64. He also stated that he did not customize
microcodes. Id. at 64.
Although the next function in his job description was, "maintains an on
line record of all network hardware at every location," id. at 65, Burke
testified that he did not do so. He also stated that he did not
"evaluate physical environment for installation of computerized
equipment," contrary to the next function in the Network Administrator
III job description. Id. Finally, he was asked if he was "responsible for
everyday operation of personal computer, LANS, local area networks, and
mainframe connectivity," id. at 65, and he responded,
I wouldn't say I'm responsible for everyday operation
of them, no. . . . In my position for the last year[,]
I've been responsible for monitoring success or
failure of the backup on the LANS.
Burke dep. at 65. Burke also testified that when at his desk, he
primarily checked on the backup equipment. To do this, he stated that,
[t]here's a function on the computer where I can
communicate with local and remote servers and pull
back statistics on the [backup] job[-][t]he backup job
completed or did not complete successfully. If it's
completed successfully[,] did it run well[,] or did it
run poorly. . . . The software tells you that.
Burke dep. at 66.
He also testified about troubleshooting and the process he employed for
In my job[,] [troubleshooting] would entail going
through various check lists that we have for
determining success or failure of a given operation or
piece of equipment. . . . Some [checklists] are [in
manuals]. Some are on line. . . .
The checklists primarily are set up almost in a flow
chart fashion where it guides you through whatever
troubleshooting you're doing.
Burke dep. at 67-68. He was asked if he reached points in troubleshooting
where he was given an option to proceed one way or another and
responded, "I don't know whether I would call them options. You're told
to take a direction, yes or no. Did the light come on, yes. Follow that
branch." Id. at 68.
When asked what functions he performed when configuring a piece of
equipment, Burke responded,
If a piece of equipment came in to be set up, I would
have some document that would tell me how it was
supposed to be set up and what functions it was
supposed to have and part of doing configuration would
be to set it up that way. . . . I wouldn't make
choices. I would follow the directions I was given to
set it up in the fashion it was supposed to set up.
Id. at 69-70.
Burke also testified that his job involved manual labor in moving
servers, transporting them and other equipment, picking up older
equipment and transporting it back. He quantified this activity as taking
up a "significant portion" of his time. Id. at 71.
D. Classification of the positions; Terry Vittore
At her deposition, the individual responsible for classifying
plaintiffs' positions, Terry Vittore ("Vittore"), reviewed an October 7,
1997 list produced in her office designating titles that were exempt
under the FLSA. With regard to the position entitled Assistant Network
Administrator, she testified that she classified it as exempt under the
FLSA "professional" exemption category. Id. at 12-13. However, upon
re-reviewing the job description for that position, while at the
deposition, particularly the educational requirements, Ms. Vittore agreed
with plaintiffs' counsel that the position was not exempt under the
professional category. She further testified that upon reviewing the
position for the title change in 2001, described above, she, "felt they
fit better under the administration exemption but the duties were
substantially the same." Id. at 15-16. Vittore was then asked to review
the classification of Network Administrator. Id. at 18. As with the
previous position, she agreed with plaintiffs' counsel that it did not
qualify for the professional exemption. Id. at 20. She also testified
there was no system in place for the County to periodically review job
positions to determine whether they had been properly classified as exempt
or non-exempt under the FLSA. Id. at 20. In approximately December 2001,
Ms. Vittore determined that the positions of Network Administrator I,
II, and III, were all "administratively" exempt from the FLSA. Id. at
E. Defendant's description of the job duties
1. Jeffrey Carlton
Jeffrey Carlton ("Carlton"), Manager of Technical Services for the
County of Monroe, Information Services Department, testified concerning
the procedures used to configure and implement a network server. He
testified that when the server is received from the vendor, it has to be
configured with a network operating system, Novell. Further, when
installing Novell, the operator must choose certain parameters, for
example, the length of a password, the number of attempts a user will
have to type the correct password, and features and functions that a
particular user may access. Carlton stated that the Information Services
Department had standards for servers, which were created by its staff.
Thus, to configure the server, one would generally introduce various
parameters already established by the department's standards. After the
server is configured, it is implemented. To implement a server, an
Information Services Department employee would arrange with the customer
for downtime and introduce the server to the network during the
downtime. Carlton specifically testified that Moyer did not have the
authority to take down a server during working hours without prior
Further, Carlton testified that Information Services Department
employees only performed software maintenance, and that hardware
maintenance was performed by their hardware vendor, IBM. He indicated
that in addition to troubleshooting software problems, plaintiffs also
performed maintenance, which involved installing updated versions of the
software either to correct a known problem, improve performance, or avoid
known problems with the current version of the software. He testified
that from time to time, both Burke and Moyer would actually put a server
together from its separate parts. Moreover, Carlton estimated that in the
previous year, Burke's duties included approximately ten percent of his
time spent performing manual labor, and that in the past few years, Moyer
had spent approximately six hours out of every 40 performing manual
labor. As to
Burke, Carlton indicated that Burke's job involved travel to
the locations of the various servers in order to do troubleshooting. In
addition, Carlton testified that, "Mike Burke doesn't necessarily make
independent judgments. If he did, they would be on minor issues, not
major issues." Carlton dep. at 33. He indicated that Moyer, on the other
hand, "would make independent judgments on major server issues." Id. at
33. He stated that Moyer, for example, might make a decision on replacing
a troublesome server; however, if the problem is of a "critical nature,"
he would defer to one of his supervisors. Critical nature, Carlton
described, would involve a critical server, for example, a police
department server that has to be up and running 24 hours a day.
2. David Whirley
David Whirley ("Whirley"), Customer Services Manager for the
Information Services Department, County of Monroe, is Wood's manager. At
his deposition, he testified that prior to the hiring of a 911 technical
supervisor in 2001, Whirley was Wood's direct supervisor. He testified
that Wood's primary role was to install, support and maintain the
administrative network at the County's 911 Center, which included file
servers and desktop computers. In addition, Whirley testified that Wood
supported the network connectivity between mobile data terminal servers,
the CAD system server and its workstations. He explained that one of
Wood's duties was to load software which consisted of obtaining software
from a vendor and introducing it into the hardware, and that after the
initial loading, he monitored to ensure the equipment was running
properly, the individual customers gained access to their files, and that
response time was appropriate. With regard to connectivity, Whirley
described that, "[i]f you have a workstation it's connected to a card
within the workstation which is connected to a cable which is connected
to a switch router or hub which is then connected to the file server."
Whirley dep. at 13. Whirley testified that Wood was responsible for
investigating and determining which part of that system was causing a
problem, and that a portion of his troubleshooting duties might also
involve swapping out the malfunctioning piece of hardware to resolve
whether there was a hardware failure, and if so, contacting the hardware
vendor to repair the broken hardware. Since hardware for the CAD system
was located at 103 different places around the County, Whirley indicated
that part of Wood's job was to travel to those locations to check on the
systems. Whirley described the process of troubleshooting as, "when
you're investigating or doing any kind of monitoring you're using your
judgments, the best of your knowledge, and in cases where you need
additional, you know you need additional knowledge, then you escalate."
Id. at 16. In addition, Whirley testified that approximately less than
ten percent of Wood's job involved physical or manual work.
A. The Fair Labor Standards Act
Section 7 of the FLSA, 29 U.S. Code § 207, requires an employer to
pay any employee who works over 40 hours in a week at a rate
one-and-one-half times the normal wage rate for any hours over the
initial 40. FLSA section 13, 29 U.S. Code § 213, creates exemptions
to that requirement and reads in pertinent part:
(a) Minimum wage and maximum hour requirements
The provisions of . . . section 207 of this title
shall not apply with respect to —
(1) any employee employed in a bona fide executive,
administrative, or professional capacity. . . .
29 U.S. Code § 213(a)(1). Congress enacted the FLSA as a remedial
act. Thus, its exemptions must be narrowly construed. See Martin v.
Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991). An employer bears
the burden of proving that its employees fall within an exempted category
of the Act. Id.
The Secretary of Labor ("Secretary") has promulgated regulations
interpreting § 213's exemptions. The regulations promulgated by the
Secretary under the FLSA, pursuant to an express grant of authority from
Congress, have the force and effect of law. They are to be given
controlling weight unless they are found to be arbitrary, capricious, or
manifestly contrary to the statute. Freeman v. National Broadcasting
Co., 80 F.3d 78, 82 (2d Cir. 1996) (citations omitted); Reich v. State of
New York, 3 F.3d 581, 587 (2d Cir. 1993). In contrast to the legislative
regulations, the Secretary's interpretive regulations are not binding and
do not have the force and effect of law. Freeman v. National
Broadcasting, 80 F.3d at 83; Reich v. New York, 3 F.3d at 587. The weight
they are to be accorded depends on their persuasiveness. Reich v. New
York, 3 F.3d at 587-88. Generally, however, they are entitled to
considerable weight because they constitute a body of experience and
informed judgment to which courts may properly resort for guidance. Reich
v. New York, 3 F.3d at 588; Reich v. American International Adjustment
Co., 902 F. Supp. 321, 324 (D.Conn. 1994).
One of the Secretary's regulations sets forth a "short test" to
determine an employee's exempt status. In relevant part, that rule
applies to any employee whose weekly wage exceeds $250*fn2 per week and
requires that the employee's primary duty be office or non-manual work,
directly related to management policies or general business operations,
involving the exercise of discretion and independent judgment. 29 C.F.R.
§ 541.2(e)(2). Each of the plaintiffs in the present case has earned
more than $250 per week for the period encompassed by the lawsuit. The
primary dispute revolves around whether their jobs involved "discretion
and independent judgment." The Secretary's regulation interprets
"discretion and independent judgment," at 29 C.F.R. § 541.207(c)(7),
and states, in pertinent part:
(a) In general, the exercise of discretion and
independent judgment involves the comparison and the
evaluation of possible courses of conduct and acting
or making a decision dafter the various possibilities
have been considered. The term . . . implies that the
person has the authority or power to make an
independent choice, free from immediate direction or
supervision and with respect to matters of
29 C.F.R. § 541.207(a). The regulation also addresses the distinction
between exercising "discretion and independent judgment" and the "use of
skill" in various respects, and states in pertinent part:
(c)(1) Perhaps the most frequent cause of
misapplication of the term "discretion and independent
judgment" is the failure to distinguish it from the
use of skill in various respects. An employee who
merely applies his knowledge in following prescribed
procedures or determining which procedure to follow,
or who determines whether specified standards are met
or whether an object falls into one or another of a
number of definite
grades, classes, or other
categories, with or without the use of testing or
measuring devices, is not exercising discretion and
independent judgment within the meaning of §
541.2. This is true even if there is some leeway in
reaching a conclusion, as when an acceptable standard
includes a range or a tolerance above or below a
(c)(7) In the data processing field a systems analyst
is exercising discretion and independent judgment when
he develops methods to process, for example,
accounting, inventory, sales, and other business
information by using electronic computers. He also
exercises discretion and independent judgment when he
determines the exact nature of the data processing
problem, and structures the problem in a logical
manner so that a system to solve the problem and
obtain the desired results can be developed. Whether a
computer programer is exercising discretion and
independent judgment depends on the facts in each
particular case. Every problem processed in a computer
first must be carefully analyzed so that exact and
logical steps for its solution can be worked out. When
this preliminary work is done by a computer programer
he is exercising discretion and independent judgment.
A computer programer would also be using discretion
and independent judgment when he determines exactly
what information must be used to prepare the necessary
documents and by ascertaining the exact form in which
the information is to be presented. Examples of work
not requiring the level of discretion and judgment
contemplated by the regulations are highly technical
and mechanical operations such as the preparation of a
flow chart or diagram showing the order in which the
computer must perform each operation, the preparation
of instructions to the console operator who runs the
computer or the actual running of the computer by the
programmer, and the debugging of a program. It is
clear that the duties of data processing employees
such as tape librarians, keypunch operators, computer
operators, junior programers and programer trainees
are so closely supervised as to preclude the use of
the required discretion and independent judgment.
29 C.F.R. § 541.207(c)(1) and (c)(7).
Other distinguishing features of "discretion and independent judgment"
are that the decisions made by the exempt employee must be "significant,"
need not be final, must be distinguished from loss through neglect, and
must require the exercise of discretion and independent judgment
customarily and regularly. 29 C.F.R. § 541.207(d)(1), (d)(2),
(e)(1), (f) and (g). With regard to those factors, the Secretary's
regulation states in pertinent part:
(d) Decisions in significant matters. (1) The second
type of situation in which some difficulty with this
phrase has been experienced relates to the level or
importance of the matters with respect to which the
employee may make decisions. In one sense almost every
employee is required to use some discretion and
independent judgment. Thus, it is frequently left to a
truckdriver to decide which route to follow in going
from one place to another; the shipping clerk is
normally permitted to decide the method of packing and
the mode of shipment of small orders; and the
bookkeeper may usually decide whether he will post
first to one ledger rather than another. Yet it is
obvious that these decisions do not constitute the
exercise of discretion and independent judgment of the
level contemplated by the regulations in subpart A of
this part. The divisions have consistently taken the
decisions of this nature concerning
relatively unimportant matters are not those intended
by the regulations in subpart A of this part, but that
the discretion and independent judgment exercised must
be real and substantial, that is, they must be
exercised with respect to matters of consequence. This
interpretation has also been followed by courts in
decisions involving the application of the regulations
in this part, to particular cases.
(d)(2) . . . the term "discretion and independent"
judgment . . . does not apply to the kinds of
decisions normally made by clerical and similar types
(e)(1) . . . The decisions made as a result of the
exercise of discretion and independent judgment may
consist of recommendations for action rather than the
actual taking of action.
(f) Distinguished from loss through neglect: A
distinction must also be made between the exercise of
discretion and independent judgment with respect to
matters of consequence and the cases where serious
consequences may result from the negligence of an
employee, the failure to follow instruction or
procedures, the improper application of skills, or the
choice of the wrong techniques. The operator of a very
intricate piece of machinery, for example, may cause
complete stoppage of production or a breakdown of his
very expensive machine merely by pressing the wrong
(g) Customarily and regularly: the work of the exempt
administrative employee must require the exercise of
discretion and independent judgment customarily and
regularly. The phrase "customarily and regularly"
signifies a frequency which must be greater than
occasional but which, of course, may be less than
constant. The requirement will be met by the employee
who normally and recurrently is called upon to
exercise and does exercise discretion and independent
judgment in the day-to-day performance of his duties.
29 C.F.R. § 541.207(d)(1), (d)(2), (e)(1), (f) and (g).
When determining the categorization of an employee's job as either
exempt, or nonexempt, the Court cannot rely on title alone.
29 C.F.R. § 541.201(b); Cook v. General Dynamics Corp.,
993 F. Supp. 56, 60 (D.Conn. 1997). Moreover, contrary to plaintiffs'
contention that the Court cannot rely on written job descriptions and
duties, the regulation and case law support this method of determining
whether a particular job should be exempt or nonexempt. Id.
Any inquiry into exempt status is necessarily fact intensive. The
exemptions from overtime pay requirements are to be narrowly construed,
Martin v. Malcolm Pirnie, 949 F.2d at 614, and the employer bears the
burden of demonstrating that an employee fits plainly and unmistakably
within the exemption's terms. Idaho Sheet Metal Works, Inc. v. Wirtz,
383 U.S. 190, 206 (1966); Reich v. New York, 3 F.3d at 586-87. Viewing
the evidence in the light most favorable to plaintiffs, the Court is not
convinced that defendant has shown its entitlement to judgment as a
matter of law.
Defendant relies on in part on Shaw v. Prentice Hall, 977 F. Supp. 909,
915 (S.D. Ind. 1997) in support of its argument that all three positions
at issue are exempt. However, the Court finds that Shaw is
distinguishable from the case at bar.
There, the district court found
that a production editor at a publishing company fit within the
administrative exemption to the FLSA. In finding that Shaw was an exempt
employee, the district court held that she exercised discretion and
For instance, Shaw exercised discretion and
independent judgment in making editorial choices to
improve the clarity and user-friendliness of the text
and the index, approving or disapproving proofreaders'
and copy editors' edits, making decisions regarding
how to best manage the process in order to meet
deadlines set by her managing editor, making
suggestions to her managing editor regarding
re-prioritizing or changing those ultimate deadlines,
and providing input into the selection of freelance
copy editors and technical editors. These decisions
were made independently and related to matters of
great importance to Macmillan, as the success of
Macmillan's business depends largely on meeting
production deadlines and producing books that are
easily understood by readers.
Id. While it cannot be disputed that the operation of defendant's
computers and computer networks were of substantial importance to the
management or operation of defendant's business, the Court disagrees with
its characterization of plaintiffs' work as involving discretion and
independent judgment, since plaintiffs in the case at bar made no
independent decisions on matters of great importance to the County's
Though any one of these three employees could easily disrupt County
operations almost literally by "merely by pressing the wrong button,"
29 C.F.R. § 541.207(f), they were not, "normally and recurrently . . .
called upon to exercise and [did] exercise discretion and independent
judgment in the day-to-day performance of [their] duties,"
29 C.F.R. § 541.207(g). They did not decide what software was
loaded, or whether to update the software on a particular system. They
performed highly-skilled work when troubleshooting problems, but this is
not evidence of discretion and independent judgment. See
29 C.F.R. § 541.207(c)(1). The evidence before the Court shows that
the majority of their work involved routine duties without the
requirement of discretion and independent judgment called for in an
exempt position under the FLSA.
The Southern District's decision in Massaro v. New York Times, Inc.,
1988 U.S. Dist. LEXIS 5257, 28 Wage & Hour Cas. (BNA) 1449, 1988 WL
59637 (S.D.N.Y., No. 87 Civ. 0957, June 6, 1988) is instructive. There,
the plaintiff, in describing his own job, stated, "`[m]y duties were
basically to develop a computer system for the advertising department. I
was a liaison between the sales staff and the computer systems area.'"
Massaro, 1988 U.S. Dist. LEXIS 5257, *12, 1988 WL 59637, *5 (quoting
plaintiff's deposition). The court held the plaintiff was an exempt
employee under the "administrative" exemption, since,
[the plaintiff's] primary duties involved the
performance of nonmanual work directly related to the
general business operations of The Times. Plaintiff
was a member of a team specifically recruited by The
Times to design, develop and implement an advanced
computerized information system, which supported the
activities of the Times Advertising Department in
making vital decisions regarding advertising sales
efforts and promotions. A newspaper certainly cannot
operate without paid advertisements, and the
plaintiff's work contributed directly toward the
administrative goal of increasing that revenue.
Id. at 1988 U.S. Dist. LEXIS 5257 *10. In contrast, the Court finds that
Moyer, Wood and Burke did not exercise independent discretion to the
contemplated by the Secretary's regulations. Their functions
consisted primarily of following established standards to set-up and
maintain computers and networks, following recommended procedures for
troubleshooting and essentially performing functions more analogous to
key punch operators than programmers. "Exercising discretion and
independent judgment" implies that the person has the authority or power
to make an independent choice, free from immediate direction or
supervision and with respect to matters of significance.
29 C.F.R. § 541.207(a).
After reviewing the evidentiary proof in admissible form, the Court
concludes that defendant has failed to carry its burden of showing
entitlement to judgment as a matter of law. With respect to Moyer,*fn3
the Court concludes that his job duties as a Network Administrator I
primarily consisted of operating computers to install and configure the
Novell and operating system software, and occasionally making
recommendations for the purchase of new software. With regard to Wood,
his position involved much the same as Moyer's, however, none of his work
appears to involve the exercise of discretion and independent judgment.
The only arguable portion of his work that does involve more than rote
application of already-established procedures is the process of
troubleshooting problems. Nevertheless, as he pointed out, that process
involved primarily using established steps to try and eliminate various
possibilities and eventually coming to a conclusion about the cause of a
problem. Much of his troubleshooting duties required the operation of
computers, and the rest involved manual labor checking connections.
Finally, it is clear that Burke does not fit the Secretary's regulations
interpreting the statutory exemptions. Even his supervisor testified
that, "Mike Burke doesn't necessarily make independent judgments. If he
did, they would be on minor issues, not major issues." It should be noted
that, during oral argument, defense counsel conceded that if the Court
found against defendant with respect to Moyer, it must necessarily find
against defendant with respect to the remaining two defendants.
Thus, the Court concludes that defendant has not shown its entitlement to
judgment as a matter of law on the facts presented.
In view of the foregoing, defendant's motion (docket #12) for summary
judgment is denied.