thank you good morning your owners may please the court my name is ken the board is i represent mr daniel smith a former employee of the health system you're is the issue in this case are simple really it's whether or not  employer has the obligation to prove all the elements of an affirmative defense beyond period venture as this court has roundly held consistently and still does in the district courts and in this court today is as far as two months ago in a  few district court decisions that were just handed down and secondly where there are disputed facts as there are many in this case whether or not those disputed facts or questions for a jury rather than a judge regardless of the  decision regarding a fair reading that unseen a decision you're on there's a as you well know change the narrow narrow interpretation narrow construction of f l f l s a statute and now makes it a fair reading but that that has no bearing on this case whatsoever where there are just disputed issues of fact moreover your honour's this case has a highly compensation highly compensated exemption that is being applied  with regard to the administrative exemption in that highly compensated exemption osher must prove beyond peer venture st that mr smith's primary duty was that of non manual labor if they're able to prove that which they have not they then have to prove one of two things under the administrative exemption they have to prove that mr smith customarily and regularly did work directly related to the management and business operations of the employer in the procurement in the administration aspect of the budgeting the finance legal compliance he was someone who had no subordinates and plenty of supervisors he was a cargo on the wheel he had to go out get these organs bring them back he disseminated data and provided to decision makers and only did things based on what they told him to do would you say in the district court and a specific argument about needing to show that he was in a modern non manual labor was raised by sort of the organ is made the district court found that this was not an issue before courts so what's your response to when this was injected and  specifically cited to the actual duties the job duties that mr smith had to do which we said and i quote in our opposition i plainly stated defendant provides insufficient and at times directly contradicted evidence that mitt that plaintiff's primary duties were the performance of all sets or not manual work and we cited to those job duties directly in opposition the district court which is a problem with a are i'd say that st off it's their burden to prove beyond a look at the argument how did you present the counter argument to what they had to do with something not in dispute then it's basically conceded so what did you do beyond what you just told specific to the specific duties listed in the job description and that your honor is what the district court in its footnote cited to which are disputed facts where we disputed that specific fact in the contested facts so we had addressed it at to do that as i discussed goes directly to whether they customarily are regularly performed work to the business administration of asha to the to the enterprise of or and so once once we get through the duties which are all disputed which we have disputed for instance your honour's they say that mr smith had something to do with hiring new employees mr smith in seventeen years only twice had anything to do with interviewing anyone that's hardly customary or regularly under the statute under the regulations so the fact that the court use that as evidence of him performing customary and regularly exempt duties contra is contradicted by the evidence that he didn't do that and moreover he didn't do that in the three years of the of the political statutory period that this case involves the same thing with ordering supplies there's contested evidence that mr smith ever ordered supplies in fact fact that should be weighed by a jury yet that the court used that as evidence of finding that heat that mr smith did duties that were exempt an administrative exemption the biggest issue your honour's is in assess is the quality control mr smith was is not a license surgeon he only has a high school degree he had an lpn degree which notably the fair labor standard surgeons then told him what to do the fact that if if the surgeon said that mr smith had any authority to make decisions on who was suitable to receive an organ and who is not they'd be in contravention of a lot of regulations including the u s policies that they're apply but there is some testimony a believe in the record or some evidence in the record about him being the procurement of the donor organs are you defining procurement as as in supplies and things of that sort to transporting of organs is not procurement in the traditional sense as in running a business what's your authority for that to make that distinction north to to define the terms so as to exclude absolutely right or it's it goes right to the heart of the doing case and the who are doing things as a production of services right not as administering the business and the enterprise of the of the actual company is essentially just doing a services right he's going to get those organs for the transplant services in transplant medical services not system that's just one small the part of oftener and that he is essentially doing this work in order to keep selling that product selling that service so that is the requiem point with doing in the production administrative dichotomy that's what the district court in this case says we need to do away with that case and do in the district court saying that it says on the record on appeal  and footnote fifty want to get in the district court says notably doing relied on the sense rejected premise that exemptions are construed narrowly against the employer as opposed to fairly read it goes on to say a fair reading of the phrase any one of more of the exempt duties of responsibility though cannot mean that the employer must prove one of the administrative exemption elements as they were analyzed for purposes of that exemption so judging or with additional court they're saying he doesn't have t and i think that goes too far i think that you still have to prove beyond peradventure one of the elements of the exemption that you're trying to claim because that's an affirmative the sense otherwise we're going to we're going to have companies who have people that make over a one hundred thousand dollars on a highly compensated exemption essentially saying everyone's example all you have to do is interview somebody once a year and we're going to claim you're exempt or we're going to have two people who are making eighty thousand dollars a year in fire one dollar pay one dollar just one hundred and one thousand dollars and say you're now exempt because you're just not we're fair reading comes in a fair reading of that concept involved that would prevent that type of extraordinary application we are i think the fair reading as it's applied by the district court here invites that kind of abuse of the f l us a because there's nothing wrong and and the encino case and the fair reading have nothing to do with the production administration dichotomy nothing at all this is a fact intensive care test of the duties that mr smith performed it's got nothing to do with a fair reading of the statute under the f l s a which is what's in c and i was concerned with in particular encino they were concerned with the conjunctive or within the statute of automobile salesman versus service providers that's a that's a statutory reading here we're dealing with federal regulations but my point your honour's is that if we're dealing with a statute or regulation it doesn't matter we're dealing with disputed facts and we're dealing with the production administrative dichotomy which was completely well the cited in doing in a very detailed opinion that opinion in doing despite  or is it which i don't see that it is or is it is it is a concept you have used several times production versus administrative functions is that what you're drawing from doing absolutely your honor in that it's not a procure political case but there are other cases that deal with people who are investigators who are not exempt under highly compensation exemptions or administrative exe and i guess i'm saying frank i'm concerned with what procurement me you don't have a case that offers some definition of procure know your honour's and what's important and what the dish according to a lot of cases recognizes not the title of the person's job it's actually a description of what they do just put it i guess the best way i'll use the deposition testimony of their corporate deposition i guess what i'm saying is this if you could say this is what procurement is and this is what he'd do if we did not hear me that would be him but you don't have anything like i do not have anything like that your honor it with the exception of generally procurement in companies have to do with maintaining supplies you know going out and making sure that you're stocked full of you know whatever napkins faucet cetera et cetera this is a process by which someone like mr smith gets information from someone else and gives it to a decision maker and through that service of them making money in their business then goes on and says ok go move on to judge engle hearts procurement question regarding the dichotomy of production versus administrative procurement like my opponent just explained is up taming the goods needed to perform the if you look at the dichotomy can never understand well if you look at your and your opinion where you explain the dichotomy of the process of being administrative versus performing the income generated service in that case and in denying summary judgment in affirming that denial the individual side issue were mud engineers and they were physically looking at the drilling mud and adding additives to make sure that that product came out ok so in that opinion you affirmed reversed time or a judgement and found that they were part of the production of the income generating service the actual fluid the oil here what appellant smith did is procure tain the needed part so to speak being insensitive for the income generating service of the business which was you to say transplant surgery it wouldn't be possible to just use a black's law dictionary for the word procure because it seems like we're spending a lot of time talking about what it means in the context of this statute and we haven't really gotten a citation where any this court or the supreme court has ever or even any kind of other guidance that defines it otherwise is that is that a fair way to l it be a fair way and i can supplement that to this court but procurement is only one tiny piece in white's appellant smith did that added to his being exempt under the highly compensated one i hear you have several fronts that you're arguing that qualify as exemptions so i'm not suggesting that procurement is zero is only just seems like we've gotten into that word here in the last few minutes but in looking at the black letter definition of the word in the general sense of the word to take a step back and look at what appellant did ok couple things were really that i will say that one of your better arguments has become it and that's why i'm focused on it at least and secondly even though i doubt it there's case more our other authority dealing with what th southwick regarding the non manual labor issue and i do agree that it wasn't raised and it wasn't briefed below in that there's a potential that my opponent has weighed that argument but regardless i'd like to point out the record evidence on that issue st part of the highly compensated exemption test is that the employee's primary duty included the performance of office or non manual work there's a distinction where it says includes not primary duty is but here there is an absence of anything in the record to suggest that this job had any manual aspect to it my opponent did not point any aspect of the dollars he uses that testimony to say that collecting and transporting organs was the jobs quote primary purpose terence bell said no such thing he said that when doing quote the fly out job transporting and getting the organ to return it was the primary thing he was doing at that point he did not testify that was a primary duty of the job secondly he made no mention of any manual aspect of the job in transporting the the only record evidence regarding the manual aspect of the job comes from testimony of con leboeuf another organ procurement coordinator on record page seventy six he said i want you to know we have been supplied with carts that have wheels on it it's basically up to us if we want to carry it or not i don't think there's anything manual about this job that's the only record evidence on manual versus office work in this case i also want to address make sure i understand the manual xpect of this job without thinking of it in terms of fair labor standards act is whatever you want to call that the driving of the vehicle and in the carrying  organ in some sort of container and and and bringing it back as the manual aspect of this job i believe that is what appellant is referring to he has not said that in any brief but yes office type work taking calls doing computer work and mating with the organ procurement agency to up tain the oregon arguing with the agency over regulations of why honor should get the or over another center correcting mistakes in the record presenting the information in the record to the surgeon and presenting quote what was important here in the record appellant smith it is own testimony which is undisputed talks about what he did in training new organ procurement coordinators and he said we would both be looking at the computers and i would say what do you see here that you think is important and how are you going to present that to the surgeon appellants smith would have you believe all he did was he was reading down a checklist and saying blood pressure x weight x that is not the testimony shows the testimony shows that he was an integral part of a team who received information about in oregon decided whether or not they would accept that organ and once the decision was made he had to handle all of the logistics to go there do they fly do they take a car record evidence is he didn't need any approval for that he had to quote make it happen so in that job he would make all of the arrangements then if you was on quote fly o t b he would travel with the team to go collect the organ from whatever medical center it was he would bring it back he would stay in constant contact with the surgeon reporting on the status of the organ and had the procedure was going he was so much more than a conduit of information as stated in the break when looking at the standard of both of valuating the exemptions and the highly compensated exemption you have kind of two competing themes here one is the supreme court in navarro saying let's look at these exam exemptions with a fair reading not the narrow interpretation that we have been doing over the years and secondly with the highly compensated exemption and you're dealing with even of compensation is a strong indicator of an employee's exempt status thus eliminating the need for a detailed analysis of the employee duties what the d l l is telling us in that regulation and then followed up by their opinion letter where they cite that language insight the dish from court opinion in this case is because this guy is making one hundred and twenty two thousand dollars a year a lot of the water at the exemption is passed by that high level of compensation so then when we are looking at the duty she did not have to do the aggressive analysis as you would it is if he had to meet the stand the load in ministry  exemptions and that's what your honor judge southlake had to do in do in because he was only fitting in the administrative exemption not the highly compensated exemption so here judge asked properly stated that appellant smith only had to meet duty or responsibility that would be exempt under the administrative exemption only one but the court went through and we have record evidence of several one we've talked about before is he was the guy who had to get the most important part for the hospital procedure the organ to the hospital he wasn't part of the production of the procedure he wasn't doing the transplant he is not the medical team he's the guy who had to get the supply there procurement next as quality control he was in charge of making sure that the regulations were being followed that oscar was properly being granted the organs when it was their turn arguing in disputing whether it was our turn and could we please trump somebody because we have a really sick person here he testified that he negotiated those thing in addition to the record even though the district court found that there was a dispute over whether his primary duty was exercising discretion in judgment there is plenty of evidence of his exercising his own discretion in st of all very importantly in turning down an organ without calling a surgeon he testified to doing that in record five  said it was something that evolved it wasn't part of a policy or procedure he knew he could deny the organ by being there for so many years and hearing what they had turned down in knowing that they would never use a kidney like that he had developed discretion he had been there he had worked with these surgeons he knew what they wanted he wasn't just wrote lee reporting information in getting their determination he was part of the decision information and bring it down into a concise story they were calling these surgeons at three in the morning and reading the entire record to them they were giving them what they felt important with they felt the surgeon would want to hear in any follow of information needed smith description of his job in the deposition when i asked him what did he still find challenging about the job even though he had done it for so long and he said i felt like it was an incredible amount of responsibility to make sure that i got the information correct i knew i was in the position of making something bad happen if i wasn't able to stay awake and think clearly enough to actually get the information out there get it right so that was a challenge and that was hard this is not someone without part of discretion in this story he meets both elements of the administrat exemption when he only has to meet one duty of the entire exemption he is important to the business of the job he's not a production employee and secondly he's he's exercising discretion in judgement as part of the team no you others less five minutes i think it's important that i put a little perspective on just how many hours mr smith worked when he complained about not being paid overtime back and two thousand and twelve he was working a one hundred  hours a week in addition to that he was sixty hours on call he was off five hours a week when he complained he was not getting any overtime he was being paid hourly and response w they said ok we're going to change you to a salaried employee and now call you exempt never having given him the overtime that he was and then moving him into an exam for all his duties never changed and what he did as a production line assembly guy getting the thing giving it to them making money for the transplant service a washer never changed council we understand the relevance of that other maybe some basic point of fairness all that predates your current kind correct those dates absolutely wrong and so when he got into the highly compensated area would basically roughly need around a one thousand dollars on a current regulation it's a new ballgame you know tell me why and what you just said should be a factor because it shows that i sure knew that the duties he was performing were not exempt in my opinion and then also that when they changed him and to an r a salaried employee  they said ok we're just going to apply this like changing any of his duties his duties remain the same and paying him more he there know he was he was being paid more as an hourly employee actually reduced his salary to call him salaried an example at that time so he was already mother working so many hours and were not getting overtime for those hours or so but then he agrees to become a salaried employee we're he calculates that the pay is going to be less than what he made as an hourly employee this this wasn't  complaining this is what the response was but what i was going to get say just before your honor's is that their corporate opponent said in her testimony that mr smith is not an administrative employee he's a clinical employee he's a clinical support employee so their own corporate opponent says that mr smith is clinical support staff going to back to the production and ministry of the economy and you understand the procurement issue and especially to the doing case and the application to courts right now there are several cases within the last couple months that have applied doing and applied this production administrative dichotomies finding that summary judgment was improper and one was a very detailed opinion was written by i have it right here yours  the court and hobbs the e t o it's a southern district of texas case where the court said that the main duties of these people were to transport cameras around to put them into little oil or holes and then to get that data and they're not entitled to a highly compensated exemption in that case there are other cases that involve inspectors and examiners including in the code of federal regulations five hundred and forty one point two zero three where it discusses samples of administrative leave exempt employees specifically excluding inspectors data gatherers people like mr smith who as a person counsel just said would be gathering data at three or four in the morning in order to provide to the surgeons the last thing i'll say before taking any questions and finishing is that there is ample testimony that somebody like mr smith could not pick and choose what he gave to his surgeons that's put in the briefs in the reply