cord on a narrower set of claims than it was before in the district court originally in this action it's an employment action that arises out of my client's employment with the coroner's office and geog county there were five causes of action in the original complaint two arose out of the f m l a and there were two state laws employment claims that all arose out of a wrongful discharge there was also an f l s a over time case the district court below on cross motions for summary judgment granted summary judgment on all of the federal claims and dispose of the state but claims by the climbing to assert supplemental jurisdiction over the state law claims we did not appeal from the f m l a claim so before this court the only claim is the f l s say overtime claim you did you have an essentially agreed upon stipulated factual record in order to present a competing simultaneously competing summary judgment motions know the were i think there was probably a different emphasis put on different facts i would say with respect to the f l s a claim there was not a great deal of disagreement in the facts presented by the two sides as to what the duties and responsibilities of my clients were it was more a legal analysis of how those duties and responsibilities fit into the administrative and executive exemptions we have not agreed on stipulated set of facts but i think if you look at the facts the deposition testimony of the coroner mr sharp tr and the testimony of my clients presented through deposition affidavit there's a fundamental agreement as to what their job duties and responsibilities are they were both describe them very similarly you  you want us to rules a matter of law although you thought summary judgment was appropriate no one was saying this should go to a jury as i understand it or that it was a tribal issue fact  you tell me i think i think towards that and there are a number of alternatives i believe that you could determine based on the evidence before  you in either the plaintiffs or the defendant's favor on in the context of the summary judgment however i think it is also possible if you looked at those facts with respect to how the the principal issue with respect to one of the administrative exemption applies deals with not what their functions are but whether their functions are part of the primary responsibility of the coroner's office when you i'm sorry i just saw it clear i thought issue really comes down to what the disputed issue is what are the primary duties primary duties of these investigators and your argument as i understood it was that their primary duty was to be investigators and they go on investigate d write reports and do things of that nature and then they from time to time and gauge and some office work but that's not their primary duty and rocked and the coroner's position is no the there are more administrative workers who also do investigations and so i guess what i thought both of you arguing is that there is a dispute or that you don't maybe disagree that much of what they do generally but the disagreement is over what their primary duties are and that's what i was getting at i think it would be possible looking at that these facts and say ok we agree as to what everything that they do here but there's a question of fact a to whether the primary duties relate to the underlying primary functions of the coroner's office one of the issues here one difference between the parties as to the  the time implications of the various kinds of responsibilities rather the issues is that there was never any real substantial discovery done on those issues which goes to our first assignment of this i thought as i practice these if this isn't set up that way this is set up as a summary judgment which requires the district court to grant every reasonable construction to the contrary to both of you right and i think that's probably because when the case management order was set up we weren't necessarily contemplating that this would be done as prost motions the judge had set a dispositive motion deadline and i think we each independently with respect to the plaintiffs we have not moved for summary judgment on all  costs of action one of the the primary grounds and this goes to the factual record on how much time was spent with respect to the various duties is the administrative exemptions had not been raised as an affirmative defense in the answer and as we went through the discovery the only other case out there dealing with these type of coroners assistants dealt with them in the context of nonexempt employee these and didn't even address the issue similarly similar sort of analogous cases dealing with police officers and criminal investigators where you know when in a police officer situation the function of the police department is to investigate crime the function of a coroner's office is to investigate das that's what they were doing there wasn't any discovery done on the samina straight of exemption because it hadn't been raised until after the summary judgment had been been admitted mild have a pretty good idea as i read the discovery  that the coroner was claiming that there was some sort of an administrative exemption here just maybe did not raise it in the affirmative the defense most timely matter but you didn't have that idea from the questioning during the deposition and in fact when i had taken dr sharp trends deposition i had specifically asked him did you undertake any investigation to determine whether these employees were individuals who were entitled to overtime or not and he did that he said no i never even looked into the issue had he at that point raised well you know i always believed they were exempt employees it would have put me on on notice to do that for most of the discovery focused more on the wrongful discharge aspects of the claim as opposed to the the overtime issues of the claim you know grossly removed for summary judgment on the grounds they haven't raised any type of exemptions and the evidence is clear that they worked more than  forty hours per week were entitled to would judge me that fellow say was violated the only issue is we need to have a trial on what those damages work but as i have for both of you on this tribal issue fact point you know the idea judge clearly and raised of how you might normally get around this problem but if we say there's a tribal issue of fact in this case just doesn't that mean all corner cases under the f o say it will always be a tribal issue and it's always a jury question so how it's it's really problematic for the employer in terms of what to do because you know naturally the employee would prefer over time and i doubt very would argue that just the nature of it just like police officers that i think you can rule as a matter of law that they are we saw officer i mean are you looking at two one three a one exemptions this one b one the talks that uses the word investigators that you know in foster the court you know i guess you could argue was dichter but foster they they suggested that was really about first responders and i don't think about coroner employees as first responders that they're going to come to the scene and not you get the fire department there you don't bring the corners but i think what foster talked about was the fact that with respect to an insurance because i was against nationwide insurance nationwide insurance their primary function is not to do investigations it's to provide people for insurance as i think your best point is not this right your best point is this production a investigators or more analogous to an investigator an insurance claim they're clearly more it's more analogous to the police department the police department what it produces is criminal investigations what a coroner's office produces is death investigations and the cause of death and that is their function their primary function was to determine what those causes death were they were working in a didn't ministre to function they were doing the actual production what does the record reveal as to it as to the come the investigative component of the field investigator in a coroner his medical findings and so forth and perhaps the circumstances of a body were way in the field but maybe if we see it that that is part of it but there's also that's that's the medical component of it but much of what the coroner's determining is just the factual this person was in a car accident they were shot they were they were things that are what i'm hearing judge cloud saying why isn't that law enforcement investigators that investigate the criminality of the situation if you look if you look at the high revised code chapter three thirteen it sets forth what the coroner's responsibilities are and it's far more than that that autopsy it is thirty three thirty you know weight custodian of dead bodies three thirteen zero eight identification of bodies three thirteen zero nine maintain records of identification of bodies three thirteen and twelve and thirteen conducting on top cities three thirteen fourteen notifying relatives relatives and disposing of the seasons property production ministry of dichotomy works correct if you're going to go down that road you know for produce a car you don't ask about all the things that happened in the process of making the car you ask with the end product is the end product here a coroner report nine vesta gaiters report there what they think of that i think that did the core but they're producing is all of these things outlined in three thirteen twelve and thirteen and i think this goes back to the first cause of action i mean the first assignment of there is had they raised this affirmative defense exactly the type of sort of detailed analysis you're talking about discovery depositions the record on all of those things of what the coroner good morning your owner's name is james on behalf of defendant dr kevin church and listening to counsel listening to to the panel it's clear that you have a  good grasp of the issues or the in this case i would note as you look through the record of proceedings you will find that mr selby did come into these proceedings somewhat to mr selby coming in at those status conferences they were approximately twenty and thirty minutes long as is the record does reflect in judge nugent did ask both both parties again what's this case about and we told them both right the record states that you know a status conference held thirty minutes what about this way of thinking about the case you know completely forfeit this exemption argument did that discovery a little bit and it is it is just clear that the points it's so strange to me to have i realize quicken loans shows you can have jury trial or bench trial issues but it seems so problematic in an area where there must be hundreds if not thousands of these employees across the six circuit and we're going to announce potentially say this is a tribal issue of fact which is for your client is a real problem with the it's real problem you either are going to just say forget it we're going to treat them as not exactly get over time or i don't know what you're going to do but yet i will say there's something to be said for this point that the record before us is a little messed up given the way i'm not blaming anyone but just happenstance maybe maybe we say nothing and let you guys just do more discovery and then tee it up the way judge cleveland suggested would that work this is an alternative out of the asli you know you're the court of appeals you have to make make the final decision  er prior to this action of course there were there were two of their actions referred to by judge nugent one of course was the state law claim when we talked about the classified versus unclassified status under one  chapter one twenty four and again when the parties went down the columbus there were a lot actually lots of discussions about what what the what the parties did what the two plaintiffs did and whether they would be a classified employee under state law which is normally an hourly type of designation or an unclassified unclassified by douche area employee you have the decisions of the person of the state personnel board of review finding the unclassified thus they could not have make was it over four fifty five per week yes we talked about how much discretion an independent discretion do you have both of the plaintiffs we use all kinds of independence question thus we agreed that that is not an issue in the case you rather lose as honor and that's why the red state you look at duties and it gives examples it gave the examples of course of the investigator type duties and whether in the production  production line we do not create widgets we do not create cars yes he creates he creates vertex the corner has to be a member nocked are of course and of course neither of the plaintiffs are you know are medical doctors they do not make medical findings as is judge cleveland i believe no noted in his statements but the point is it's an analogy and it's trying to help us get around the fact that the word primary is very elusive but if you're trying it doesn't dictate an answer i agree with you but i guess i'm not sure i understand why you're resisting it as a way to think about the case well it was again reading their brief it was clear that you know they were just i believe your the record shows that they are administrative employees yes they did it ministry of investigations the the did the interviews of various in the individuals they did a number of administrative office activities they kept both of them secured the office mr hopkins kept complex kind of coding situations again that is all administrative actions much like human resources actions which the regs specifically state that is an administrative function and hence that would fall under that that exemption are employees such good responsibilities no i think we would still be here because again as is you know your honor you don't look at the dept of you don't look at the at the name of the title at the name of the classification get a look at what what is the employee doing that's the test for law enforcement officers and first responders you know that's that's what we're not we're not talking about that we're certainly talking about the again the other administrative  notation and again looking at the rules that you know the they did talk about you know they review factual information they investigate not my position and position of the coroner is that those are useful aids in trying to reach a determination as to what the employees duties are rather than just looking to the name of the title that's why the court  in in my estimation as you look through the the the granting of summary judgment the court made detail findings as to what the employees did went boom boom boom boom this is what they did court said there no no dispute they make the four hundred fifty five dollars there's no dispute about independent discretion independent judgment is a primary duty for those investigators and the court did state you have to look at their primary duties then after reviewing what they did he said he finds this close very analogous to the investigators in the administrative regulations and he puts it all together as in a nice and analytical framework and states looking at this as a about seven because mr hopkins was charging you have these two and what with the other people they had some part time clerks and part time investigators just to help out every now and then though the plaintiffs were the only dr no no none of the plaintiffs are doctors you're saying the deputy in charge trainer doctors then you have the two plaintiffs and they're part time people right i'm just making that point is it not a little counterintuitive to call the plaintiff administrators when they're they're not really overseeing anyone but themselves and some people that show up on tuesdays i don't technically understand the question it's a counterpart you have to give a classification title for each position and that's what geog a county did in their discretion that's how they designated that  that classification as a clerk investigator actually mr hopkins is the record reflects he was the chief investigator because he did some supervisory activities and mr boyles was the clerk investigator clearly with respect to your point that the function is to produce these reports on the cause of death to fifty nine and to sixty dr sharp trainees talking about during his deposition what our clients do and he talks about them being the first responders to the death scene but then it goes on to say in a collaborative where we were decide what the cause of death was so so this wasn't a situation where d should trend was making that decision the clients were participating directly in that decision with them and they were part of making that that call so so they were after motions for summary judgment had already been filed i think one of the remedies available to you would be to say we will allow that amendment but we're remanding the matter to give the pot parties an opportunity could submit agreed upon facts and then let the judge make the call probably did i would probably have to see what the deposition testimony was but i would say that that is that it's a possibility i don't know what i don't know is what the respective parties would say as to the amount of time and responsibility spent on all of those particular matters but it would be at least a possibility i think based on the record and based on dr short trains testimony here that they work together in putting these together there's enough on the record that you could find in our client's favor but if the panel was uncomfortable doing that and setting a precedent for all corners in essentially four states under these circumstances i think that's a remedy that would be available to you as an alternative as opposed to to simply upholding the judgment in this case just name a little problem problematic to be able to rule at this point in your client's favor i'm not sure you know that there are undisputed facts that would be sufficient for us to rule  your class would like for us to know maybe your time is out but do you have about a fifteen second response to the extent that this court in looking at this believes there are still questions of fact the appropriate remedy is to to grant summary judgment to either