[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-11746

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D.C. Docket No. 1:13-cv-03808-WSD

REBECCA RAMSEY,

 Plaintiff-Appellant,

versus

WALLACE ELECTRIC COMPANY, LLC, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

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(June 24, 2016)

Before WILLIAM PRYOR, ANDERSON and PARKER,

* Circuit Judges.

PER CURIAM:

 * Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit, sitting 

by designation.

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Plaintiff-Appellant Rebecca Ramsey appeals from the district court's grant 

of summary judgment to Defendants-Appellees Wallace Electric Company, LLC

("Wallace") and Phillip Wallace, Sr., on Ramsey's claim for overtime pay under 

the Fair Labor Standards Act ("FLSA"). 29 U.S.C. §207(a)(1). Wallace does not 

dispute that Ramsey regularly worked more than forty hours a week and that 

Wallace did not pay overtime wages for the hours Ramsey worked in excess of 

forty hours a week. Rather, Wallace maintains that Ramsey is not entitled to 

overtime pay because she was "employed in a bona fide executive, administrative, 

or professional capacity" and thus exempt from the overtime pay requirements 

pursuant to §213(a)(1). The district court granted summary judgment to Wallace, 

holding that there was no genuine question of material fact that Ramsey was 

exempt under the statute and the relevant regulations promulgated by the 

Department of Labor defining and delimiting the scope of the exemption. After 

reviewing the record, reading the parties' briefs, and having the benefit of oral 

argument, we conclude that we must vacate the district court's order and remand 

this case for further proceedings.

FLSA mandates generally that covered employees who work more than 

forty hours in a week must receive overtime pay for those hours worked in excess 

of forty at a rate of one and one-half times their regular wage. §207(a)(1). 

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However, the overtime pay requirement does not apply to employees working in "a 

bona fide executive, administrative or professional capacity." §213(a)(1).

Congress has not defined the statutory terms "executive," "administrative,"

or "professional." Rather, §213(a)(1) provides an express grant of rulemaking 

authority to the Department of Labor to define and delimit the scope of the 

exemptions. These regulations are given controlling weight unless they are found 

to be arbitrary, capricious, or contrary to the statute. See Gregory v. First Title of 

America, Inc., 555 F.3d 1300, 1302 (11th Cir. 2009). 

The Department of Labor's current regulations provide that the "general 

rule" is that an employee is "employed in a bona fide administrative capacity" for 

the purposes of § 213(a)(1), and thus exempt from FLSA's overtime requirements, 

if the employee is:

(1) Compensated on a salary or fee basis at a rate of not less than $455 

per week . . . ;

(2) Whose primary duty is 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; and

(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). On appeal, the parties dispute whether Wallace is entitled 

to summary judgment on the second and third prongs of this test.

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Ramsey argues that the district court erred in determining that there was no 

genuine question of material fact that Ramsey's primary duty was "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." For the reasons 

fully explored at oral argument, we agree with the district court with respect to this 

second prong of the test.

Turning to the third prong of the test, Ramsey argues that the district court 

erred in determining that there was no genuine question of material fact that 

Ramsey's primary duty included "the exercise of discretion and independent 

judgment with respect to matters of significance." The regulations provide several 

pieces of guidance relevant to the determination of whether Ramsey exercised

discretion and independent judgment with respect to matters of significance.

First, the regulations provide a definition of the type of discretion and 

judgment required:

In general, the exercise of discretion and independent judgment 

involves the comparison and the evaluation of possible courses of 

conduct, and acting or making a decision after the various 

possibilities have been considered. The term “matters of 

significance” refers to the level of importance or consequence of the 

work performed.

§541.202(a) (emphasis added). According to this definition, exercising discretion 

with respect to matters of significance generally requires that an employee make 

consequential decisions among available options.

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Second, the regulations provide a long non-exclusive list of factors to be 

considered in determining whether an employee exercises discretion and 

independent judgment: 

The phrase “discretion and independent judgment” must be applied in 

the light of all the facts involved in the particular employment 

situation in which the question arises. Factors to consider when 

determining whether an employee exercises discretion and 

independent judgment with respect to matters of significance include, 

but are not limited to: whether the employee has authority to 

formulate, affect, interpret, or implement management policies or 

operating practices; whether the employee carries out major 

assignments in conducting the operations of the business; whether the 

employee performs work that affects business operations to a 

substantial degree, even if the employee's assignments are related to 

operation of a particular segment of the business; whether the 

employee has authority to commit the employer in matters that have 

significant financial impact; whether the employee has authority to 

waive or deviate from established policies and procedures without 

prior approval; whether the employee has authority to negotiate and 

bind the company on significant matters; whether the employee 

provides consultation or expert advice to management; whether the 

employee is involved in planning long- or short-term business 

objectives; whether the employee investigates and resolves matters of 

significance on behalf of management; and whether the employee 

represents the company in handling complaints, arbitrating disputes or 

resolving grievances.

§541.202(b).

Third, the regulations provide guidance with respect to the degree of 

independence an employee must possess: 

The exercise of discretion and independent judgment implies that the 

employee has authority to make an independent choice, free from 

immediate direction or supervision. However, employees can exercise 

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discretion and independent judgment even if their decisions or 

recommendations are reviewed at a higher level. 

§541.202(c).

Finally, the regulations provide guidance pertaining specifically to clerical 

services and other mechanical or repetitive services:

The exercise of discretion and independent judgment must be more 

than the use of skill in applying well-established techniques, 

procedures or specific standards described in manuals or other 

sources. . . . The exercise of discretion and independent judgment also 

does not include clerical or secretarial work, recording or tabulating 

data, or performing other mechanical, repetitive, recurrent or routine 

work. An employee who simply tabulates data is not exempt, even if 

labeled as a “statistician.”

§541.202(e).

With respect to this third prong of the test – i.e., the exercise of discretion 

and independent judgment with respect to matters of significance – we agree with 

Ramsey and hold that there are genuine issues of fact with respect to many of the 

relevant factors. For example, Phillip Wallace, Sr., the proprietor of Wallace 

Electric, testified that Ramsey was authorized to and frequently did negotiate 

hourly rates for commercial/industrial service jobs and mark up the company’s cost 

of certain materials. He indicated that Ramsey could make the "final call" before 

quoting same to the customer if she was unable to reach a supervisor. However, 

reasonable inferences from Ramsey's deposition and affidavit dispute that Ramsey 

had such discretion or authority. 

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For the foregoing reasons, and for the reasons fully explored at oral 

argument, we conclude that there are genuine issues of fact which preclude 

summary judgment on the third prong of the test – i.e., whether Ramsey’s primary 

duty includes the exercise of discretion and independent judgment with respect to 

matters of significance. 

Although the district court correctly resolved the second prong of the test, 

the court erred with respect to the third prong. Accordingly, the judgment of the 

district court is vacated and the case is remanded for further proceedings not 

inconsistent with this opinion. 

VACATED and REMANDED.

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