Gerard Morrison v. County of Fairfax, VA , 826 F.3d 758 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2308
GERARD MORRISON; CHRISTOPHER THOMPSON; ELTON POLEN, JR.; CALVIN
ALEXANDER; MICHAEL ALLEN; ROCCO ALVARO; THOMAS ARNOLD; WILLIAM
ATWELL; ROBERT BANASIK; TIMOTHY BARB; TODD BARB; MATHEW ARNHART;
MERVIN BARRERA; OSCAR BEASLEY; WILLIAM BEST, JR.; BILL BETZ;
DANIEL BORDEN, JR.; EDWARD BOWMAN; FRED BRANDELL; DONALD
BRASFIELD; CHRISTOPHER BROWN; JON BRULEY; CLYDE BUCHANAN;
CARLTON BURKHAMMER; ROBERT BURLINGAME; MATTHEW BURNS; LEO BURT;
LEROY BUTLER, JR.; KEITH CERZULLO; JOHN CHESEK, JR.; MICHAEL
CIARROCCHI; STEVEN CLARK; BRADFORD COCHRANE, JR.; THOMAS
CONNOLLY; DAVID CONRAD; ARTHUR COX; DUSTIN CRAMER; TRACY
CRAWFORD; KEITH CROSS; ERIC CUNNINGHAM; CHARLES CUNNINGHAM;
DANNY DANIELS, II; MICHAEL DAVIS; TROY DEAN; YOLANDA DEMARK;
SAMUEL DEVERA; KEITH DUBETSKY; BRIAN EDMONSTON; KEVIN EDWARDS;
DEREK EDWARDS; FELECIA EDWARDS; SEAN EVANS; MARK FEASTER;
MICHAEL FISCHER; COLIN FLANIGAN; THOMAS FLINT; MICHAEL FONTANA;
RAMIRO GALVEZ; MICHAEL GARCIA; KENNETH GEFFEN; JARED GOFF;
GEORGE GONZALEZ; TODD GORHAM; SAMUEL GRAY; RAYMOND GRIFFIN;
WESLEY GRIGG; DAVID GRUENDEL; MARK GUDITUS; DAVID HALL; JAMES
HARRISON, III; SHERYL HEMINGWAY; CHARLES HENDERSON; KIT HESSEL;
JOHN HIGGINBOTHAM; JAMES HOBGOOD; KIMBERLY HOOD; TRENTON
HOUGHTON; GREGORY HUNTER; JAMES IACONE; MICHAEL ISTVAN; JAMES
ISTVAN; ANTHONY JACKSON; JAMES JOHNSON; REGINALD JOHNSON; THOMAS
JOHNSON; WALTER JOHNSON; JOSEPH KALEDA; GLENN KAPLAN; PATRICK
KELLY; REBECCA KELLY; WILLIAM KINGDON; JOSPEH KISER; ROBERT
KITCHEN; JOSEPH KNERR; ROBERT KONCZAL; TONY KOSTECKA; RONALD
KULEY; DAVID LANGE; JAMES LEE; JOHN LEETE; JEFFREY LEWIS; ROBERT
LISON; MATTHEW LOPEZ; WILLIAM LYNCH; BARRY MAHAM; MICHAEL MARKS;
CHARLES MARTIN; JAMES MASIELLO; PAUL MASIELLO; GLENN MASON;
COREY MATTHEWS; THOMAS MAYHEW; STEVEN MCFARLAND; ROGER MCGEHEE;
RICHARD MCKINNEY, JR.; KERWIN MCNAMARA; FRANCIS MENSAH; MARK
MENTON; JOSEPH MERRITT, JR.; STEPHEN MILLER; ROBERT MOHLER;
JEFFREY MONGOLD; DONALD MONTAGUE; BRIAN MORAVITZ; JOHN MORRIS;
RICHARD MOXLEY; JOHN NIEMIEC; BRYAN NIX, JR.; STEVEN NORRIS;
STEPHEN O'BRIEN; MILTON PAINTER; JOSPEH PALAU, III; DENNIS
PASSMORE; GARY PEMBERTON; JOHN PETERS; DALLAS PHILLIPS; RALPH
PISANI; CHARLES PULLEN; E. MARTIN RANCK, III; BARRY RATHBONE;
JOHN RICHTER; NATALIE ROBB; RONNIE RODRIGUEZ; MATTHEW RYAN;
WILLIAM SCHELLHAMMER, III; MARK SCHROEDER; DAVID SCHWARZMANN;
MICHAEL SEASE, II; DAVID SELLERS; DANIEL SHAW; RICHARD SMITH;
SCOTT SMITH; MICHAEL SNAPP; JAMES A. SOBOTA; JAMES STICKLEN; REX
STRICKLAND; CHERI STROUP; RONALD SYDNOR; KENDALL THOMPSON;
LORENZO THROWER; CHRISTOPHER TILLES; DAVID TOBIN; JEFFREY TOLLE;
GLENN TSCHANN; WILLIAM VANNOY; DONALD VAUGHT; JACK WALMER, JR.;
JOHN WALSER; THOMAS WEALAND; OSCAR WELLS; WAYNE WENTZEL; MICHAEL
WHETSELL; PAUL WHITE; KENNETH WILDMAN; JEROME WILLIAMS; MARCUS
WILLIAMS; ELTON WRIGHT; RICHARD LANCING,
Plaintiffs – Appellants,
and
GARY DIZE,
Plaintiff,
v.
COUNTY OF FAIRFAX, VA,
Defendant – Appellee.
-------------------------
UNITED STATES DEPARTMENT OF LABOR,
Amicus Curiae.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cv-00005-CMH-JFA)
Argued: January 27, 2016 Decided: June 21, 2016
Before TRAXLER, Chief Judge, and THACKER and HARRIS, Circuit
Judges.
Reversed and remanded by published opinion. Judge Harris wrote
the opinion, in which Chief Judge Traxler and Judge Thacker
joined.
2
ARGUED: Molly A. Elkin, WOODLEY & MCGILLIVARY, LLP, Washington,
D.C., for Appellants. Sona Rewari, HUNTON & WILLIAMS LLP,
McLean, Virginia, for Appellee. Sarah Kay Marcus, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae. ON
BRIEF: Evangeline C. Paschal, HUNTON & WILLIAMS LLP,
Washington, D.C., for Appellee. M. Patricia Smith, Solicitor of
Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden,
Counsel for Appellate Litigation, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus
Curiae.
3
PAMELA HARRIS, Circuit Judge:
Under the Fair Labor Standards Act (“FLSA”), employees who
work overtime generally are entitled to overtime pay. There is
an exception — like all FLSA exceptions, narrowly construed —
for certain “executive” and “administrative” employees whose
primary job duties are management-related. The question in this
case is whether the fire captains of Fairfax County, Virginia,
firefighters who serve as first responders to fires and other
emergencies, fall within that exception so that they are not
entitled to overtime compensation.
The district court held that all of the current and former
Fairfax County fire captains bringing this suit are exempt
executives, and entered summary judgment for Fairfax County. On
appeal, the County takes a different approach, arguing that some
of the Captains are exempt executives while others are exempt
administrators. We conclude that on this record, no reasonable
jury could find by the requisite clear and convincing evidence
that any of the Captains is exempt from the FLSA’s overtime
requirement. Accordingly, we reverse the district court’s
judgment and remand with instructions to enter summary judgment
for the Captains.
4
I.
A.
We begin by setting out the statutory and regulatory scheme
that governs this case. The Fair Labor Standards Act of 1938,
29 U.S.C. §§ 201–219, is “remedial and humanitarian in purpose”
reflecting an intent by Congress to protect broadly the “rights
of those who toil.” Tennessee Coal, Iron & R.R. v. Muscoda
Local No. 123, 321 U.S. 590, 597 (1944); Purdham v. Fairfax Cty.
Sch. Bd., 637 F.3d 421, 427 (4th Cir. 2011). Consistent with
that purpose, courts are to construe the FLSA liberally,
“recognizing that broad coverage is essential” to accomplish the
statute’s goals. Tony & Susan Alamo Found. v. Sec’y of Labor,
471 U.S. 290, 296 (1985); see Purdham, 637 F.3d at 427 (“[T]he
Supreme Court has cautioned that the FLSA ‘must not be
interpreted or applied in a narrow, grudging manner.’” (quoting
Tennessee Coal, 321 U.S. at 597)).
Among the protections the FLSA provides employees is
overtime pay, or the right to be paid at time and a half for
work above the statutory limit, generally 40 hours per week.
See 29 U.S.C. § 207. There are, however, exemptions from this
requirement, including the so-called “white collar” exemption
for workers “employed in a bona fide executive, administrative,
or professional capacity.” 29 U.S.C. § 213(a)(1). As we have
recognized, FLSA exemptions, including this one, “are to be
5
‘narrowly construed against the employers seeking to assert
them,’” and applied only in instances “plainly and unmistakably
within the exemptions’ terms and spirit.” Desmond v. PNGI
Charles Town Gaming, L.L.C., 564 F.3d 688, 692 (4th Cir. 2009)
(alterations omitted) (quoting Arnold v. Ben Kanowsky, Inc., 361
U.S. 388, 392 (1960)).
The Department of Labor (“DOL”) has promulgated regulations
interpreting the FLSA’s exemptions for executive and
administrative employees, the two categories at issue in this
case. Under the DOL regulations, an “employee employed in a
bona fide executive capacity” is one who earns at least $455 per
week, has authority over hiring and firing, 1 routinely supervises
at least two other employees, 2 and — most relevant here — whose
“primary duty is management of the enterprise in which the
employee is employed.” 29 C.F.R. § 541.100. The administrative
exemption similarly turns on a management-related primary duty:
An “employee employed in a bona fide administrative capacity” is
one who, in addition to earning at least $455 per week and
1 “Who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other
employees are given particular weight.” 29 C.F.R.
§ 541.100(a)(4).
2 “Who customarily and regularly directs the work of two or
more other employees.” 29 C.F.R. § 541.100(a)(3).
6
exercising discretion on significant matters, 3 has as a “primary
duty” the “performance of office or non-manual work directly
related to the management or general business operations of the
employer or the employer’s customers.” Id. § 541.200.
In 2004, DOL proposed changes to its “Part 541” regulations
governing the white collar exemptions, generating concerns that
first responders and manual laborers would become exempt
employees and lose their right to overtime pay. See U.S. Dep’t
of Labor, Wage & Hour Div., Defining and Delimiting the
Exemptions for Executive, Administrative, Professional, Outside
Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,129 (Apr.
23, 2004) (the “Preamble”). In response, DOL promulgated a new
regulation, 29 C.F.R. § 541.3, clarifying the scope of the
exemptions as applied to blue collar workers and first
responders. Preamble at 22,128–29.
Subsection (a) of the new regulation provides that the Part
541 exemptions “do not apply to manual laborers or other ‘blue
collar’ workers who perform work involving repetitive operations
with their hands, physical skill and energy.” 29 C.F.R.
§ 541.3(a). Subsection (b) is the “first responder regulation,”
with potential bearing on this case. Subsection (b) provides in
3
“Whose primary duty includes the exercise of discretion
and independent judgment with respect to matters of
significance.” 29 C.F.R. § 541.200(a)(3).
7
its first part that the Part 541 exemptions “do not apply
to . . . fire fighters” and other first responders, “regardless
of rank or pay level.” Id. § 541.3(b)(1). In its second and
third parts, the regulation explains why: “Such employees do
not qualify as exempt executive employees because their primary
duty is not management of the enterprise . . . as required under
§ 541.100,” id. § 541.3(b)(2); and “[s]uch employees do not
qualify as exempt administrative employees because their primary
duty is not the performance of work directly related to the
management or general business operations of the employer . . .
as required under § 541.200,” id. § 541.3(b)(3).
B.
The Fairfax County Fire and Rescue Department is organized
in a straightforward hierarchy. At the top is the Fire Chief,
in charge of the entire Department. Reporting directly to the
Fire Chief are three Assistant Fire Chiefs; beneath them on the
organizational chart are nine Deputy Fire Chiefs, followed by
Battalion Chiefs. Five ranks down from the top are the Captain
positions at issue in this suit, reporting directly to the
Battalion Chiefs. The County treats all of these positions as
exempt from overtime pay requirements under the FLSA.
Directly below the Captains on the organizational chart are
the Department’s Lieutenants, followed by firefighters and
technicians. All positions below the Captain position —
8
Lieutenants, firefighters, and technicians — are treated by the
County as non-exempt under the FLSA and thus entitled to
overtime compensation.
Although the parties disagree about the fundamental
character of the Captains’ jobs, the record reveals certain
undisputed facts about the Captains’ specific responsibilities
and work activities. The Department divides its Captains into
two groups. The “Captain I” group includes Shift Commanders and
Safety Officers, and the “Captain II” group includes Station
Commanders and Emergency Medical Service Supervisors (“EMS
Supervisors”). For every 24-hour shift, a Station Commander or
Shift Commander is responsible for supervising each fire
station; an EMS Supervisor is responsible for the emergency
medical services for each “battalion,” or geographic region; and
a Safety Officer is assigned to one or two stations, providing
advice on any safety issues that arise and serving as the
Department’s primary contact concerning these issues.
Station and Shift Commanders are what are commonly known as
“first responders.” They report to every emergency call that
comes in during their shifts and is assigned to their engines:
A fire engine cannot leave the station without its designated
Station or Shift Commander on board, and these Captains may not
refuse to respond to a call. At the scene, Station and Shift
Commanders work side-by-side with their subordinates, wearing
9
the same protective gear. With their crews, they operate hoses
and ladders, ventilate buildings, and force entry, running into
burning buildings to rescue victims or search for signs that a
fire will spread. Station and Shift Commanders spend the same
amount of time responding to emergencies as their lower-ranked
colleagues assigned to their engines.
EMS Supervisors and Safety Officers also are part of the
first-response team; like Station and Shift Commanders, they
have no discretion as to whether they will respond to calls.
EMS Supervisors transport emergency medical equipment to the
scene of emergencies and render emergency care, such as
controlling bleeding and performing CPR. They also conduct more
technical Advanced Life Support (“ALS”) at the scene of fires,
initiating intravenous drips, checking EKG rhythms, and the
like. Safety Officers transport emergency equipment that allows
them to monitor the safety of fire scenes, including measuring
gas levels and analyzing the structural integrity of buildings
that they and their colleagues will need to enter.
As is to be expected, the Captains spend only a small
portion of their time actually fighting fires. Most of their
time is spent at the station, and of that time, the single
biggest block goes to daily training for their first-response
duties. Like all first responders, the Captains are required to
participate in emergency response training, which takes an
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average of approximately two hours per shift. Held to the same
physical fitness standards as other firefighters, the Captains
also must undergo daily physical fitness training with their
crews to ensure that they are physically able to perform their
first-response functions. That physical fitness training
consumes an additional two hours or so each day.
While at the station, the Captains also spend time — though
significantly less — on tasks that are distinct from their
front-line responsibilities. First, the Station and Shift
Commanders complete annual evaluation reports of the
firefighters in their crews. According to the Captains’
unrebutted deposition testimony, each Commander spends a maximum
of twelve hours per year on this task. EMS Supervisors spend
less; they are responsible only for evaluation addendums for
ALS-certified personnel, assessing ALS abilities exclusively,
which takes approximately four hours per year. Safety Officers
have no responsibility for evaluations.
The Captains have no authority to administer discipline
without the approval of a Battalion or Deputy Chief. But the
Station and Shift Commanders are required to report disciplinary
infractions up the chain of command and then to administer the
discipline decided upon by the higher-ranking officers, tasks
which take no more than three hours per year. The EMS
Supervisors and Safety Officers have less involvement in
11
discipline. EMS Supervisors occasionally take part in inquiries
into medical issues and are infrequently ordered to issue
discipline. Safety Officers occasionally participate in
accident review boards but do not decide the appropriate
outcome.
Similarly, while the Captains do not write or disseminate
station policies, Station Commanders are responsible for
updating station policies on an annual basis so that they
conform to updates in County-wide policies. That task takes
less than five hours per year. Finally, Station Commanders and
EMS Supervisors create “wish lists” of supplies for their
stations, accounting for fewer than four hours per year. The
Captains do not set or control the budget, hire or fire
employees, set minimum staffing levels, change employees’ work
schedules, or approve overtime. 4
4
Our focus is on the factual record as it pertains to the
specific tasks performed by the Captains, rather than general
descriptions of their jobs. That is because “the determination
of whether an employee is exempt is an inquiry that is based on
the particular facts of his employment and not general
descriptions.” Ale v. Tenn. Valley Auth., 269 F.3d 680, 689
(6th Cir. 2001) (holding employees non-exempt under executive
and administrative exemptions). Here, the County’s primary
source of evidence is its own job descriptions of the Captain
positions, as well as descriptions from some of the Captains’
resumes. In this posture, and given record testimony supporting
the accuracy of the County-prepared materials, we assume these
job descriptions are true. But they are framed at a high level
of generality, and thus do not add appreciably to or call into
question the more specific evidentiary submissions of the
12
C.
In January 2014, over a hundred current and former Captains
brought suit against the County for the denial of overtime pay.
After discovery, the parties cross-moved for summary judgment.
The County took the position that the Captains are exempt from
the FLSA’s overtime pay requirements, under the executive
exemption with respect to Station and Shift Commanders and under
the administrative exemption with respect to EMS Supervisors and
Safety Officers. The Captains argued that the undisputed
evidence showed that they do not fall within those exemptions,
particularly in light of the first responder regulation.
parties. For instance, the class specification for Station
Commanders tells us that these Captains “[p]repare[] the budget
for the fire and rescue station.” J.A. 1985. But the parties
do not dispute that what that means in practice — at the level
of day-to-day job tasks on which the exemption inquiry turns —
is that the Captains prepare “wish lists,” or make funding
requests that must be approved by their supervisors. It is
those more specific duties that we recount above, and on which
any finding of exemption must rest. See Vela v. City of
Houston, 276 F.3d 659, 677 (5th Cir. 2001) (city job
descriptions too general to support a finding that employees’
specific job duties qualify as exempt under executive or
administrative exemptions); Ale, 269 F.3d at 688–89 (employer
job descriptions and employee resumes too general and vague to
support a finding that “what [the] employee actually does on a
day-to-day basis” is exempt under executive or administrative
exemptions).
13
The district court awarded summary judgment to the County,
holding that all of the Captains are exempt executives. The
court relied on a series of Fourth Circuit decisions finding
that fire shift commanders, engine captains, and EMS captains in
counties other than Fairfax are exempt executives under the
FLSA. Morrison v. Cty. of Fairfax, Civ. No. 1:14–cv–005, 2014
WL 5591073, at *3 (E.D. Va. Nov. 3, 2014) (citing Hartman v.
Arlington Cty., 903 F.2d 290 (4th Cir. 1990); Int’l Ass’n of
Fire Fighters v. City of Alexandria, 912 F.2d 463 (4th Cir.
1990); West v. Anne Arundel Cty., 137 F.3d 752 (4th Cir. 1998)).
Given those cases, the district court concluded, “the exempt
status of fire captains and EMS captains in the Fourth Circuit
is well-established.” Id.Nor, the district court held, did the first responder
regulation, promulgated after those cases were decided, affect
the analysis. According to the district court, the first
responder regulation, like its companion provision in 29 C.F.R.
§ 541.3, addresses only “blue collar” employees. “Read in
context,” the court explained, “the First Responder Regulation
ensures the Executive Exemption does not apply to ‘blue collar’
firefighters, regardless of rank or pay,” and has no import for
non-blue collar employees like the Captains. Id. at *3–4. The
Captains timely appealed.
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II.
Summary judgment is appropriate if no reasonable jury could
find for the nonmoving party. Moss v. Parks Corp., 985 F.2d
736, 738 (4th Cir. 1993). We review the district court’s grant
of summary judgment de novo. Newport News Holdings Corp. v.
Virtual City Vision, Inc., 650 F.3d 423, 434 (4th Cir. 2011).
In doing so, we are mindful that the FLSA exemptions are to be
“narrowly construed against the employer[],” and that the
employer must prove an exemption’s applicability by clear and
convincing evidence. Desmond, 564 F.3d at 691 & n.3, 692. On
this record, we conclude that no reasonable jury could find by
clear and convincing evidence that the Captains are exempt from
the FLSA’s overtime mandate.
A.
We begin our analysis with the first responder regulation,
which speaks directly to the exempt status of firefighters and
other first responders under the FLSA.
29 C.F.R. § 541.3 states, in relevant part:
(a) The [Part 541] exemptions and the regulations in
this part do not apply to manual laborers or other
“blue collar” workers who perform work involving
repetitive operations with their hands, physical skill
and energy. . . .
(b)(1) The [Part 541] exemptions and the regulations
in this part also do not apply to police
officers, . . . fire fighters, . . . and similar
employees, regardless of rank or pay level, who
perform work such as preventing, controlling or
15
extinguishing fires of any type; rescuing fire, crime
or accident victims; . . . or other similar work.
(2) Such employees do not qualify as exempt
executive employees because their primary duty is not
management of the enterprise in which the employee is
employed or a customarily recognized department or
subdivision thereof as required under § 541.100. Thus,
for example, a police officer or fire fighter whose
primary duty is to investigate crimes or fight fires
is not exempt under [the executive exemption] merely
because the police officer or fire fighter also
directs the work of other employees in the conduct of
an investigation or fighting a fire.
(3) Such employees do not qualify as exempt
administrative employees because their primary duty is
not the performance of work directly related to the
management or general business operations of the
employer or the employer’s customers as required under
§ 541.200.
The County does not dispute that the Captains in this case
qualify under the first paragraph of § 541.3(b) as “fire
fighters” who “perform work such as preventing, controlling or
extinguishing fires.” See 29 C.F.R. § 541.3(b)(1). The
district court nevertheless held the regulation inapplicable to
the Captains, on the ground that it addresses only “blue collar”
firefighters. The Secretary of Labor, joined by the Captains,
disagrees, 5 and the County does not defend the district court’s
decision in this regard.
5 At our request, the Secretary of Labor appeared as amicus
in this case. The Secretary also submitted a letter amicus
brief addressing the scope of the first responder regulation in
the Second Circuit case of Mullins v. City of New York, 653 F.3d
104 (2011).
16
Like the Secretary and the Captains, we believe the
district court erred in conflating the first subsection of the
regulation, addressing “blue collar” and manual laborers, with
the second, covering first responders. Although the blue collar
provision immediately precedes the first responder regulation,
there is no basis for treating the two as overlapping; the
separate subsections are clearly delineated, with the first
providing that the exemptions in question do not apply to blue
collar employees, and the second that the exemptions “also do
not apply” to first responders. Id. § 541.3(b)(1) (emphasis
added). The Preamble to the regulation confirms this reading,
analyzing the two subsections separately and making clear that
they respond to distinct concerns. See Preamble at 22,128–29.
Whether the Captains could be considered “blue collar” employees
under § 541.3(a), in other words, is immaterial to their status
as first responders under § 541.3(b).
Thus, the first responder regulation applies to this case,
and provides in subsection (b)(1) that the executive and
administrative exemptions at issue “do not apply” to the listed
firefighters — a group that concededly includes the Captains —
“regardless of rank or pay level.” 29 C.F.R. § 541.3(b)(1).
That is “because,” the regulation goes on to say, such
firefighters’ “primary duty is not management,” as required for
the executive exemption, id. § 541.3(b)(2), or “the performance
17
of work directly related to the management” of the Department,
as required for the administrative exemption, id. § 541.3(b)(3).
This regulatory language might naturally be read as
establishing a bright-line rule that firefighters and other
first responders covered by § 541.3(b)(1) are non-exempt and
thus entitled to overtime compensation. But that is not a
position advanced by either party to this case, nor by the
Secretary. Instead, the parties agree with the Secretary that
under the first responder regulation, as before, whether
firefighters are exempt executives or administrators is governed
by the “primary duty” standard, under which the Captains are
exempt if (and only if) their primary duty is “management,” id.
§ 541.100, or administrative work “directly related
to . . . management,” id. § 541.200.
To defend that reading, the Secretary points to language in
the regulation referencing the primary duty standard. By
explaining that first responders are not exempt “because their
primary duty is not management” or “the performance of work
directly related to . . . management,” both subsections (b)(2)
and (b)(3), the Secretary argues, demonstrate that subsection
(b)(1)’s rule remains “grounded in first responders’ primary
duty.” DOL Br. at 23. Similarly, the example provided in
subsection (b)(2) — a “fire fighter whose primary duty is
to . . . fight fires is not exempt . . . merely because” he or
18
she also supervises other employees — makes clear that the scope
of subsection (b)(1) is limited to firefighters whose primary
duty is not management or management-related.
The Secretary, joined by the County, also directs us to the
Preamble to the first responder regulation, which clarifies that
the purpose of the regulation is not to “depart[]
from . . . established case law” applying the primary duty test
to hold that first responders — including fire department
captains — are not exempt executives or administrators.
Preamble at 22,129 (describing, inter alia, Dep’t of Labor v.
City of Sapulpa, 30 F.3d 1285 (10th Cir. 1994) (fire department
captains not exempt executives)). The Preamble also endorses
cases holding that certain “high-level police and fire
officials” are exempt because “their primary duty is performing
managerial tasks,” noting as an “important fact” that “exempt
police and fire executives generally are not dispatched to
calls, but rather have discretion to determine whether and where
their assistance is needed.” Id. at 22,130. The upshot, the
Secretary argues, is that the Preamble confirms that the first
responder regulation does not supplant the primary duty test in
determining whether a particular first responder is exempt.
Like the Second Circuit in Mullins v. City of New York, 653
F.3d 104 (2011), we will defer to the Secretary’s interpretation
of his agency’s regulation. Id. at 113–17. In Mullins, finding
19
police sergeants non-exempt under the FLSA, the court carefully
considered the meaning of the first responder regulation, and
concluded that the Secretary’s interpretation “is not plainly
erroneous or inconsistent with [the] regulations,” and warrants
deference under Auer v. Robbins, 519 U.S. 452 (1997). Mullins,
653 F.3d at 114. We agree. Though the regulation might be
subject to a broader reading, the interpretation proposed by the
Secretary (and uncontested by the parties) is not foreclosed by
unambiguous regulatory text. Nor is there anything to suggest
that it “does not reflect the agency’s fair and considered
judgment,” Auer, 519 U.S. at 462; see Mullins, 653 F.3d at 114;
indeed, it is entirely consistent with the interpretation
offered by the Secretary in the Mullins litigation.
Importantly, reading the first responder regulation to
incorporate the well-established primary duty test does not
render the regulation meaningless. Rather, as the Secretary
urges, the regulation clarifies the application of the primary
duty test to first responders like the Captains, primarily
through the example offered in subsection (b)(2): “Thus, for
example, a police officer or fire fighter whose primary duty is
to investigate crimes or fight fires is not [an exempt
executive] merely because the police officer or fire fighter
also directs the work of other employees in the conduct of an
investigation or fighting a fire.” 29 C.F.R. § 541.3(b)(2). As
20
the court explained in Mullins, that example can be read only as
a single illustration of a broader principle, establishing that
management-like tasks undertaken in conjunction with, or
directly related to, primary first responder duties do not turn
a first responder into an exempt executive or administrator.
Mullins, 653 F.3d at 115 (adopting Secretary’s interpretation);
see also id. at 117–18 (tasks that “relate to” or are
“undertaken . . . in the course of performing” first responder
duties are non-exempt under first responder regulation); Barrows
v. City of Chattanooga, 944 F. Supp. 2d 596, 603 (E.D. Tenn.
2013) (relying on Mullins and holding that “management and
supervisory activities performed by the categories of employees
listed in § 541.3(b) . . . undertaken as a part of the
employees’ primary field law enforcement duties” are non-
exempt). 6
6 On this point, it appears that the County takes a
different view, suggesting that § 541.3(b)(2) is limited to its
express terms and clarifies only that a firefighter does not
become exempt by virtue of supervising other employees at the
scene of a fire. But the prefatory language — “[t]hus, for
example” — makes plain that what follows is but one example of a
larger principle, Mullins, 653 F.3d at 115, and that general
principle is not confined to tasks undertaken “in the field,”
id. If, on the other hand, § 541.3(b)(2)’s single example were
understood to be the sum total of the regulation’s contribution
to the law, then the regulation would be rendered toothless:
The executive exemption already requires both that an employee
supervise other workers and that the employee’s primary duty be
management, see 29 C.F.R. § 541.100, so even without § 541.3(b),
21
B.
We must now determine whether there is evidence in the
record from which a reasonable jury could find that the County
has met its burden of showing, by clear and convincing evidence,
that the Captains are covered by the Part 541 exemptions,
construed narrowly and against the employer. See Desmond, 564
F.3d at 691 & n.3, 692 (FLSA exemptions are narrowly construed,
and employer must show their application by clear and convincing
evidence). That is a substantial burden, and the County cannot
meet it here. Accordingly, the Captains are entitled to summary
judgment.
The district court came to a different conclusion, awarding
summary judgment to the County and holding that all of the
Captains are exempt executives — even the EMS Supervisors and
Safety Officers as to whom the County had argued only the
administrative exemption. The court based its holding on
precedent from our court, pre-dating the 2004 first responder
regulation, finding that certain fire captains were exempt
executives. See Morrison, 2014 WL 5591073, at *3 (citing
Hartman, 903 F.2d 290; Int’l Ass’n of Fire Fighters, 912 F.2d
463; and West, 137 F.3d 752). That reliance was misplaced.
supervision at the scene of a fire would not suffice to meet the
primary duty test.
22
First, because those cases were decided before the first
responder regulation was promulgated, they do not reflect the
clarification of the primary duty standard provided by that
regulation. And more fundamentally, the applicability of the
exemptions must be determined based on the individualized facts
and record in each case, not on whether first responders in one
jurisdiction happen to share a title with exempt first
responders in another, who may have entirely different
responsibilities and primary duties. On this point, DOL’s
regulations are very clear, providing that “[a] job title alone
is insufficient to establish the exempt status of an employee.”
29 C.F.R. § 541.2; see also Walton v. Greenbrier Ford, Inc., 370
F.3d 446, 453 (4th Cir. 2004) (to determine an employee’s exempt
status, “courts must focus on the actual activities of the
employee”); Vela v. City of Houston, 276 F.3d 659, 677 (5th Cir.
2001) (“The title of ‘captain’ provides no guidance on whether
[an] exemption applies; rather, a fact-sensitive inquiry is
required.” (internal quotation marks and alteration omitted)).
And indeed, the cases cited by the district court are careful to
focus on the particular duties of the employees involved, as
opposed to the employees’ titles. See Hartman v. Arlington
Cty., 720 F. Supp. 1227, 1229 (E.D. Va. 1989), aff’d, 903 F.2d
290 (4th Cir. 1990); Int’l Ass’n of Fire Fighters, 720 F. Supp.
1230, 1233 (E.D. Va. 1989), aff’d, 912 F.2d 463 (4th Cir. 1990);
23
West, 137 F.3d at 763. The district court’s conclusion that
“the exempt status of fire captains and EMS captains in the
Fourth Circuit is well-established” — and its reliance on this
conclusion to determine that all of the Captains were exempt
executives — was thus unfounded.
We must instead consider the particular record in this
case, and the showing the County has made, against the
regulatory standards for the executive and administrative
exemptions on which the County relies. 7 As noted above,
application of either exemption requires that an employee’s
“primary duty” be management or management-related. For the
County to prove that the Shift and Station Commanders are exempt
executives, it must show by clear and convincing evidence that
their primary duty is “management of the enterprise in which
[they are] employed or of a customarily recognized department or
subdivision thereof.” 29 C.F.R. § 541.100(a)(2). And to prove
that the EMS Supervisors and Safety Officers are exempt
administrators, it must show by clear and convincing evidence
that their primary duty is “the performance of office or non-
manual work directly related to the management or general
business operations of the employer.” Id. § 541.200(a)(2).
7
The County does not defend the district court’s holding
that EMS Supervisors and Safety Officers are exempt executives,
and instead reasserts the administrative exemption.
24
Finally, under the first responder regulation, tasks performed
as part of or in furtherance of the Captains’ first response
duties are not deemed “management” and will not render the
Captains exempt from overtime pay requirements. Id.
§ 541.3(b)(2); see Mullins, 653 F.3d at 116; Barrows, 944 F.
Supp. 2d at 604.
An employee’s “primary duty” is “the principal, main, major
or most important duty that the employee performs,” “based on
all the facts in a particular case, with the major emphasis on
the character of the employee’s job as a whole.” 29 C.F.R.
§ 541.700(a). DOL has listed four non-exhaustive factors to
consider in determining the primary duty of an employee:
(1) “the relative importance of the exempt duties as compared
with other types of duties;” (2) “the amount of time spent
performing exempt work;” (3) “the employee’s relative freedom
from direct supervision;” and (4) “the relationship between the
employee’s salary and the wages paid to other employees for the
kind of nonexempt work performed by the employee.” Id.Applying those factors, and taking full account of the
“character of the employee[s’] job as a whole,” no reasonable
jury could find, by clear and convincing evidence, that the
Captains’ primary job duty is anything other than emergency
response. The first factor, the relative importance of exempt
duties, decidedly falls in the Captains’ favor. Whatever the
25
precise importance of the Captains’ non-firefighting duties —
the evaluations, the disciplinary reports, the annual conforming
changes to station policies — it is clear that fighting fires is
the more important part of the job. When an emergency call
comes in, it takes priority, and the Captains do not have
discretion to decline to respond. And unlike their superiors,
Captains are part of the core group of firefighters who are
required to respond to a typical call; an engine cannot leave
the station without its Captain on board. See Barrows, 944 F.
Supp. 2d at 604–05 (first response is fire captain’s primary
duty where he and subordinates are charged with “interrupting
whatever other task or activity they may have been involved in
to respond to a fire or emergency call”). In this way, the
Captains are quite unlike the “high-level” fire officials
contemplated as exempt by the Preamble, with the “discretion to
determine whether and where their assistance is needed.”
Preamble at 22,130. The Captains’ deposition testimony confirms
that their most important duty is first response, and “making
sure that [they and the rest of the crew] are ready to go when
the . . . 911 call comes in.” J.A. 964–65. And although it
deposed numerous Fire Department employees, the County points to
no testimony or other concrete evidence — and we have found none
— specifically disputing that assessment and identifying some
other job duty as more important than first response.
26
Instead, the County relies most heavily on the second
factor — the amount of time spent on exempt managerial work.
The County repeatedly emphasizes that the Captains spend very
little of their work time actually responding to emergency
calls; it follows, the County argues, that first response cannot
be the Captains’ primary duty. And the district court seems to
have agreed, stressing that “[a]lthough [the Captains]
participate in emergency response, the bulk of their time” is
spent at the station. Morrison, 2014 WL 5591073, at *1. We
think this analysis misapprehends both the nature of the “time”
factor and the nature of firefighting.
First, as the Barrows court explained, that a fire
captain’s direct firefighting duties do not consume the majority
of his or her time is simply the nature of first response work:
“[T]he nature of the job of every front-line fire fighter[] is
generally to wait. Any given day for a fire fighter may consist
of extended periods of boredom, punctuated by periods of urgency
and moments of terror.” Barrows, 944 F. Supp. 2d at 604–05.
And it would be illogical to give much weight to how much time a
Captain devotes to answering emergency calls; that time
presumably would vary from year to year, based on how many
emergencies arise, without changing the “character of the
employee’s job as a whole,” 29 C.F.R. § 541.700.
27
Second, the regulation directs attention not to the amount
of time spent performing non-exempt work like fighting fires,
but specifically to “the amount of time spent performing exempt
work.” Id. § 541.700(a) (emphasis added). And it will not do
simply to assume, as the County seems to on occasion, that the
two are inversely correlated — that any time a Captain is not on
the scene of a fire, he or she is engaged in an exempt
managerial task. On the contrary, some of the things
firefighters do at the station while awaiting emergency calls,
like sleeping and eating, are decidedly non-managerial. The
burden is on the County to come forward with evidence that the
Captains spend some significant portion of their time at the
station — the regulations suggest that “employees who spend more
than 50 percent of their time performing exempt work will
generally satisfy the primary duty requirement,” id.
§ 541.700(b) — on managerial or management-related tasks.
But the County has produced no evidence of how much time
the Captains spend performing exempt management work, and the
evidence that the Captains have produced suggests that it is
very little. The Captains’ unrebutted deposition testimony
shows that they work approximately 2600 hours per year, but
spend less than 25 of those hours on identified management
tasks: twelve hours completing annual evaluations, three hours
reporting disciplinary infractions and administering discipline
28
decided upon by their superiors, five hours updating station
policies to conform to county-wide changes, and four hours
creating station “wish lists” for purchases.
Nor can the gap be filled with the approximately four hours
per day the Captains devote to a combination of emergency
response and physical fitness training. The Captains undergo
the same training as all of the other firefighters at the
station so that they, along with their crews, are able to
fulfill their first responder obligations. That so much time is
devoted to this process only underscores the importance of those
direct response duties. And like other efforts to “assur[e] a
constant state of preparedness,” such training “relate[s]
directly to [a fire captain’s] regular front line firefighting
duties,” and is therefore non-managerial and non-exempt under
the first responder regulation. Barrows, 944 F. Supp. 2d at 604
(citing Mullins and finding fire captains non-exempt under first
responder regulation and primary duty standard).
To the extent the County argues that the Captains have a
role in supervising training that qualifies as managerial, we
disagree. Supervision and management are two different things
under the executive exemption regulation, which requires both
before an employee may be categorized as exempt. See 29 C.F.R.
§ 541.100(a)(2)–(3). And even read narrowly, the example
provided in subsection (b)(2) of the first responder regulation
29
precludes us from classifying as “management” the supervision of
employees in the course of activities directly related to first
response duties. See id. § 541.3(b)(2). 8
The remaining two factors, supervision and salary, are
similarly unavailing for the County. As to the Captains’
“relative freedom from direct supervision,” id. § 541.700, it is
undisputed that the Battalion Chiefs to whom the Captains report
are physically present at the station for some portion of many
shifts and, when they are not, “have daily telephone or email
contact” with the Captains. J.A. 2518. The Captains also
presented evidence that their role is to carry out the orders of
their superiors: One Captain testified, for instance, that
“[a]ny good captain will tell you he doesn’t have an opinion
8 For this reason, as well, references to management-type
duties in County job descriptions or on Captain resumes are not
enough to show that the Captains’ duties qualify as “management”
under the executive exemption and first responder regulations.
It may be, for instance, that certain Captains, as per the
County’s class specifications, have responsibility for “station
management,” with duties that include “direct[ing] the overall
activities” of the station. J.A. 1984. But to the extent such
management or direction takes the form of supervision,
particularly supervision related to first response —
“apportioning work” among subordinates, “determining the
techniques and personnel to be used” in connection with first
response, “reallocating [subordinates’] activities,” and the
like — it is not exempt “management” activity under the
regulatory framework here. Mullins, 653 F.3d at 118. And non-
supervisory duties that relate to ensuring operational readiness
for first response also are non-exempt under the relevant
regulations, even if they might be described colloquially as
“management.” Barrows, 944 F. Supp. 2d at 604.
30
about anything. He has whatever opinion the fire chief tells
him it is.” J.A. 194. The EMS Supervisors were described as
“aide[s] to the battalion chief,” J.A. 662, indicating something
other than freedom from supervision. On the whole, this
evidence — which the County does not dispute — cannot be said to
show clearly and convincingly that the Captains are relatively
free from supervision and therefore exempt executives or
administrators.
As to the “relationship between the [Captains’] salary and
the wages paid to other employees” for the same firefighting
work, 29 C.F.R. § 541.700(a), the County has not presented
evidence of a significant gap in pay. To be sure, the Captains
are assigned a higher pay grade than the non-exempt Lieutenants
just below them in rank. But the high end of the range for the
Lieutenants’ pay grade is higher than the low end of the range
for the Captains’ pay grade. Moreover, because they are
considered non-exempt, Lieutenants make significantly more money
than Captains in overtime; multiple Captains testified that they
waited to ask for promotions because being promoted would lower
their total take-home pay.
Finally, we are mindful that the “primary duty” analysis is
a holistic one, “based on all the facts in a particular case,”
and with the “major emphasis on the character of the employee’s
job as a whole.” Id. And when we step back to employ that
31
broader lens, it confirms what the factor-by-factor analysis
tells us: On the record evidence, these Captains are
firefighters, not managers or administrators.
On the one hand, the County has produced no evidence
showing that the Captains perform the kind of specific high-
level management tasks ordinarily associated with executives or
administrators: planning and controlling a budget, selecting new
employees, setting rates of pay and hours of work, and the like. 9
Instead, the specific duties performed by Captains that are
distinct from first response and claimed as “management” by the
County — like submitting annual evaluations, reporting
infractions, and making conforming changes to station policies —
are largely “ministerial in nature.” Barrows, 944 F. Supp. 2d
at 604 (fire captains non-exempt where purported managerial
tasks are “ministerial” and take up small percentage of
captains’ time). It may be appropriate to think of a fire
official responsible for “high-level direction of operations”
rather than “front-line firefighting” as a manager first and a
firefighter second, see Mullins, 653 F.3d at 115 (quoting
9Budgeting authority, interviewing and selecting employees,
and establishing hours of work and rates of pay all are included
in a DOL regulation enumerating activities that may constitute
“management” for purposes of the executive exemption. See 29
C.F.R. § 541.102.
32
Secretary’s explanation of first responder regulation), but that
description does not fit these Captains.
Front-line firefighting, on the other hand, is at the
center of the Captains’ jobs. “Simply put, [the Captains are]
tasked with the responsibility of interrupting whatever other
task or activity they may have been involved in to respond to a
fire or emergency call.” Barrows, 944 F. Supp. 2d at 605. Like
their subordinates, with whom they work side-by-side at the
scene of a fire, the Captains are part of the minimum staffing
complement for emergency calls. And when they are not
responding to a call, the undisputed evidence shows, then they
are mostly likely to be spending their time preparing to respond
or waiting to respond. “Primary duty” has a common-sense
meaning under the Part 541 regulations — “the principal, main,
major or most important duty that the employee performs,” see 29
C.F.R. § 541.700(a) — and on this record, the County simply
cannot show that fighting fires, rescuing victims and
administering emergency aid is not the principal and most
important job of the Captains. See Barrows, 944 F. Supp. 2d at
605 (“[A]lthough [the captain’s] firefighting duties may not
have been his most time-consuming, they were clearly the most
important duties that he performed.”); see generally Dalheim v.
KDFW-TV, 918 F.2d 1220, 1227 (5th Cir. 1990) (“[T]he employee’s
33
primary duty will usually be what she does that is of principal
value to the employer.”). 10
There is no doubt that application of the executive and
administrative exemptions calls for a fact-intensive inquiry.
See Vela, 276 F.3d at 677; see also Walton, 370 F.3d at 453(application of FLSA exemptions turns on employees’ particular
duties, and how employees actually spend their time is question
of fact). But where the record evidence will not allow an
employer to meet its heavy burden of showing, by clear and
convincing evidence, that an exemption applies, then summary
judgment is appropriate. See Mullins, 653 F.3d at 119(reversing award of summary judgment to city and directing entry
of summary judgment to first responders because city failed to
meet burden of showing that management is first responders’
primary duty); Vela, 276 F.3d at 677 (reversing award of summary
judgment to city and directing entry of judgment for first
responders where record evidence “d[id] not satisfy the City’s
burden of proving” application of executive or administrative
exemptions); see also Walton, 370 F.3d at 453 (affirming award
10
For the reasons already given, we think that the County’s
own job descriptions are framed at a sufficiently high level of
generality that they shed little light on the issue before us.
We do note, however, that to the extent those materials
expressly address the “primary duty” question, it is to clarify
that although an EMS Supervisor “plays a vital role in battalion
planning and management,” his or her “primary responsibility
revolves around EMS activity.” J.A. 3148.
34
of summary judgment to employer where uncontested facts
established application of different FLSA exemption). On the
record here, no reasonable jury could find that the County has
shown by clear and convincing evidence that the Captains’
“primary duty” is management or management-related. The
Captains therefore are entitled to judgment as a matter of law. 11
III.
The County has not submitted evidence that would allow a
reasonable jury to find, under the clear and convincing
standard, that the Captains’ primary duty is anything other than
first response. It follows that the Captains are not exempt
11 Given our conclusion that the County has not met its
burden under the “primary duty” standard, the County cannot
succeed on its alternative argument that the Captains are exempt
under what is known as the “highly compensated employee”
exemption to the FLSA’s overtime pay mandate. Under that
exemption, an employee who earns at least $100,000 per year
“will qualify for exemption if the employee customarily and
regularly performs any one or more of the exempt duties or
responsibilities of an executive, administrative or professional
employee.” 29 C.F.R. § 541.601(c). So, for example, the
executive exemption may apply to a highly compensated employee
if the employee meets the supervision requirement by regularly
directing the work of two or more other employees, “even though
the employee does not meet all of the other requirements for the
executive exemption.” Id. But, importantly, the highly
compensated employee exemption “applies only to employees whose
primary duty includes performing office or non-manual work.”
Id. § 541.601(a). Because the County has not shown that the
Captains’ primary duty is anything other than firefighting and
emergency aid, the County also cannot show that the Captains
fall within the highly compensated employee exemption.
35
executives or administrators, and are instead entitled to
overtime compensation under the FLSA. Accordingly, we reverse
the district court’s judgment and remand with instructions to
enter summary judgment for the Captains on the County’s
liability under the FLSA. The district court has not ruled on
the Captains’ request for liquidated damages, and we express no
opinion on damages or any other issue.
REVERSED AND REMANDED
36