p prevention group finding that plaintiffs were exempt from the fair labor standards act maximum hours provisions under the administrative exemption and stuever st the district court's denial of partial some summary judgment to the plaintiffs as to the same exemption the district court made three fundamental errors in its summary judgment order each of those errors is dispositive of the exemption and each independently demands that its order be reversed and th summary judgment be entered in favor of the plaintiffs the st error is misinterpreted the meaning of general business operations to include work that is entirely production work rather than supporting administrative work  misunderstood the meaning of discretion an independent judgment to be improperly include decisions about the minutiae of an employee's every day job and rd it failed to connect any exercise of discretion and judgment to the required matters of significance within the meaning of the administrative exemption in fact the district court seem to have forgotten that this rd requirement existed at all to recap only the most basic facts of this case my clients were property damage robin rosenbaum i was just wondering i have a couple of questions my st question is is it possible that mr fowler and mr swan mr swan fall into two different categories here i know that i think it was mr  who actually helped prepare the damage investigators now annual growth instructions i don't know if that takes him out of this the same category that mr swan's would be in or maybe maybe it does and the nd question i have is is there a material issue a factor here with respect to whether the matters is significant that they were involved in  war of the type that would fall into the exempted category or not that is whether the majority of what they did was fall into the category of exemption or not your honor there are a lot of contentions allegations at face value then yes there would be a material a material dispute but once you actually look at the record they they sort of disappear  to whether they fall into two separate categories and i would say that it's certainly theoretically possible because every employee's entitled to have their actual job duties evaluated and where two employees have different job duties they can  one can be exempt while the other is not but here there is not enough in the record to demonstrate that the the duties that mr fowler had in assisting with drafting of this manual constituted a primary duty for one thing and nd how extensive his assistance was we simply don't know we know he wasn't in charge of drafting the manual and  the record is simply insufficient to to show that his involvement in that drafting rose to the level of exercising discretion no your honor because the defendants have the burden on summary judgment of proving the applicability of the exemption and they did not elicit facts that created the material issue the silence on that issue means that the summary judgment should have been entered in favor of the plaintiffs on that issue to to go back i do want to focus today primarily on the issue of the general business operations of rather than the discretion an independent judgment and matters of significance issue simply because those other issues are so fact intensive and we have such limited time today each of these issues is dispositive and the general business operations issue is one that this court can decide very easily with undisputed facts on a very clear case on its face the requirement of the phrase general business operations a somewhat ambiguous however reading conjunction with the department of labor's longstanding regulations decades worth of deal while opinion letters and numerous federal appeals court decisions that ambiguity vanishes it is clear that general business operations as applied to the administrative exemption means assisting with the running or servicing of the business and their exemplified by examples given at twenty nine dollars c f r five hundred and forty one dollars such as accounting budgeting purchasing and public relations what each of these functional areas have in common is that they are not revenue generating activities instead they support revenue generating activities and i would point the court to the th circuit's fairly recent decision in color on versus geico where they concluded that private sector investigators primary duty of conducting factual investigations and reporting the results is quote not analogous to the work in the functional areas that the regulations identify they continue to note that however it is directly analogous to the work of public sector investigation work that the regulations identify is not satisfying the directly related element so we have case law from several different circuits and literally literally decades of deal opinion letters as well as a regulation directly on point saying that fact finding and investigative work are not general are not administrative duties when applied to an employer whose whose entire business function is to conduct investigations and  counsel and it doesn't affect your case but except perhaps where the investigators have authority to settle cases yes your honor exactly when investigators have been found to be exempt in a few cases out there and we have problems with some of the reasoning in those cases but two minutes remaining for present purposes the important thing to note is that they had a distinguishes them from our plaintiffs in this case it was those additional duties that made those investigators exempt if they were in fact exempt not their investigative duties themselves it was things like being able to settle cases being able to recommend organ make decisions about terminations of employees or or other decisions that go towards the employers or the employer's customers business organizational decision and something that seems to have been forgotten in the district court was that it's not just an analysis of who the what the employees does it is what the employee does with respect to a specific employer and you have to analyze both parts otherwise you risk mistaking production work for administrative work for example if eight if comcast ha been doing had been pursuing damages in the house that very well could have been administrative work with respect to comcast but that work wasn't done in house it was farmed out to o s p that acted like the collection agency and those investigations were the product that always exists to create and to sell they build our clients out by the hour to the damage invoice them for our clients time they fall squarely on the production side and as as virtually every court to have addressed the issue has concluded of puts the bumpers on the car and somebody else puts the engine and somebody else worries about the windshield painting and all that kind of stuff that they are contributing to the that's what i'm talking about in the last payment says we will charge you x dollars in our car each hour that our investigators spend on it and then we're going to charge you for other amounts but that's part of what we're selling is the service of doing object right and there is a production line of people performing it's a single object with as i understand it thousands of the parts that are worked on by different people on the assembly line in different robots broadband cable companies that allows them to recover or damage cable property so it's very different so in other words the service that o s b is all free is not a damage investigation with service that o the investigator in south and there's another case your honor it's that and look to that was decided by the northern district of georgia and twenty seven t by judge helen by numbers and county public school system and in that case it lead collect evidence review and analyze all the information collected make a determination whether a crime to vent committed so you know what the p d i in this case are doing there are just simply supporting speech general business operations and i would also note that the regulation of the relevant regulation says it doesn't just have to be no s p s business operation that it's that the p d i is supporting it is also  with is determining what your position would mean st of the service industry generally give us an example of a service provider whose employees wouldn't necessarily be administrative employees under your position in a service industry you have to provide service to outside entities and companies well i you know i again i'd i'm not sure that there's a better analogy and exactly what we're talking about and that doesn't work i'm sorry that doesn't work and i'm asking you to give us an example of a service provider whose employees would be would not be administrative employees they have outside the company has outside clients and it sells services to those interviewing people that's a service what kind of service could someone do that wouldn't be administrative employee category under your analysis  well your honor i you know i think that if we look at it simply look at you know claims adjusters for an insurance company you know claims adjusters for an insurance company under the regulations are generally considered to be exempt employees you're you're you're not giving me an example of somebody who wouldn't be an example who wouldn't be provided service who works for a company that is predominantly  service company they don't sell widgets they don't sell cars they provide services to people who sign up and need the services give me an example of somebody who works in providing that service for that service providing they're going to also be people who actually planned events and they're going to be people who make the decisions and exercise discretion necessary to come up with the creative ideas that the underlying  investigators here are perceived to do when at the end of the day they are simply like any other you know part of a company that provides services they are they are supporting the underlying business operations of zero s p i o s p simply provided damage investigations then i would i would agree with you there is an issue there but but that is not that is not the case  you know so you know the i want to also talk about the issue of independent discretion and judgment and in this case the damage investigators performed a  opposing counsel in california case in the minnesota case in cases where they found that people performing investigations damage investigation specifically if you're not me  do not excessive requisite in independent discretion and judgment those investigators did not have the ability to make recommendations so they were simply gathering fa their employer well your honor because the business operations of the manager's employer here are damage administration services which are investigative services subrogation services and recovery services they are simply employees who support the investigative component of the business so i don't think it's you know there are plenty of cases out there that the court can look to that we've cited in our brief where other courts have analyzed this issue and found that people performing employees performing investigative type job activities in the context of a of  damage recovery company are performing you know their reason i have to in a reason i ask is because you know you have conceded that there are certainly at least some aspects of the  that would not fall into the category of administrative services and so it's pretty important here what their primary duties and what category they fall into you know so i think you need look no no further than that simple simple testimony on its face that it doesn't matter it's not you know the the amount of time they spend performing  original question to your colleague with respect to mr fowler who participated in tracking damage investigator's manual what are we to make of that i mean i mean i think what you've just said is that we don't consider that at all no i i don't think i don't think we consider because ultimately the damage investigation manual is simply a guy they were not bound by the guide they were not required to follow the guide they could deviate from the guide the  you know there was a whole lot of cases years ago where that you know originally you know it was helpful in a manufacturing setting but that analysis production administrative analysis has been largely is largely disfavor because it just doesn't it doesn't fit into a service context which courts have noted so it's  them producing a car they would be producing damage investigations in other words that's the only thing that they produce but in this case in my example it would be ten to  these of the the corporation or the company i don't understand why that makes them administrative employees they're still out there taking pictures reading big reports  well but they're also making lot determinations they're not it's different than putting a bomb on a car where it could be done by a robot i mean you know you're you're going think to the discretion part as oppose to whether it's directly related to the general business operations and you read the exercise of discretion is automatically meaning it's part of the administrative employ simply because they work in tandem three different departments work in tandem and would ask if this is really tenable that where you can distinguish different different components of a of an employer's business that all have have input into the final product that no production ever actually occurs i don't think that's te second we really don't need to argue about what type of business zero s p is of what the what kind of services they provide because we have a copy of the contract with with comcast  i'm a district court docket six thousand and forty one dollars page thirty four dollars this is exhibit a to the contract it's called services and it says contractor provides outside plant damage recovery services company central division contractor services include plant damage investigation identification of the damaging property and loss recovery it then goes on to to  all the different things that need to go into investigative reports the investigation includes but is not limited to identifying the responsible party interviews photographs review the locate service documentation goes on and on there's no question that this is the service that they were they were hired to perform for comcast because the section of their contract labeled services describes it in detail the rd point i'd like to make is  counsel's arguments about the being able to deviate from the guide no ability to deviate from the manual was ever identified other than you can change the order you want to do it in you can make superficial and meaningless changes to how you mark up a photograph or you can you can not go pull a dick take it if if it's an aerial damage where a truck pull down a cable from the air of course you're not going to pull a dick take it because there was no digging  their argument one of their arguments was that also supplying arms could recommend that a client be abandoned and that's an exercise and and yes and as we noted in our brief we don't believe that saying i don't know constitutes discretion in believe in deposition the example was given of a hit and run  on the boxes that they called doghouses if the if the police don't know who did it you know they get the police report if there's no one there no one identified as the damaging party it's over they say we don't know we'd to abandon this and that the only time they ever recommend it is the only time that defendants identified as an exercise of that level of of any discretion other than i believe the time that a school or all broke a facility of some sort and i suppose then there was probably a recommendation that they abandon that and not see th admitted multiple times that if a one thousand different property damage investigators were sent out on a case they should all come back with the exact same result and your honor we say respectfully submit that that admission does not allow for any meaningful exercise of discretion an independent judgment even if it weren't production work which it clearly is and i'm happy to take questions but otherwise i'll see the rest of my time