[Cite as Clark v. Brantell, 2016-Ohio-718.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

April L. Clark, R.N., : 

 Plantiff-Appellant, : 

Sarah M. Brantell, L.P.N., : 

 Plaintiff-Appellee, : No. 15AP-597 

 (Ct. of Cl. No. 2014-00584)

v. : 

 (ACCELERATED CALENDAR) 

Ohio Department of : 

Rehabilitation and Correction, 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on February 25, 2016 

 

On brief: Marshall and Morrow, LLC, Edward R. Forman, 

Samuel M. Schlein, and John S. Marshall, for appellant. 

Argued: Edward R. Forman 

On brief: Michael DeWine, Attorney General, Randall 

Knutti, Emily Simmons Tapocsi, Christopher L. Bagi, Sloan 

Spalding, and Robert Fekete, for Ohio Department of 

Rehabilitation and Correction. Argued: Sloan T. Spalding 

 

APPEAL from the Court of Claims of Ohio 

LUPER SCHUSTER, J. 

{¶ 1} Plaintiff-appellant, April L. Clark, R.N., appeals from a judgment of the 

Court of Claims of Ohio granting partial summary judgment in favor of defendantappellee, the Ohio Department of Rehabilitation and Correction ("ODRC"). For the 

following reasons, we affirm.

 
No. 15AP-597 2 

I. Facts and Procedural History 

{¶ 2} The two named plaintiffs in this case are Clark, a registered nurse ("RN"), 

and Sarah M. Brantell, a licensed practical nurse ("LPN"). Both are employed by ODRC to 

provide inmate and staff medical care. They began this action on behalf of themselves 

and similarly situated individuals with a collective action complaint alleging a willful 

failure to compensate hourly employees with overtime pay, a violation of the Fair Labor 

Standards Act of 1938 ("FLSA"), 29 U.S.C. 201 et seq. The complaint alleges ODRC 

"directed, suffered and/or permitted" nurses to arrive ten minutes before the start of their 

eight-hour shifts while providing no pay for the extra time. (Complaint, ¶ 6, 8.) Clark 

asserts that ODRC work rules impose this "transitional time" to allow incoming nurses to 

consult with departing nurses on the previous shift, jointly count medication and needles, 

and otherwise ensure continuity of care for patients. 

{¶ 3} ODRC filed a motion for partial summary judgment addressing only the 

claims of Clark and similarly situated RNs. ODRC argued that these employees were 

"learned professionals" paid on a salary basis, thereby falling under an overtime 

exemption in the FLSA. Clark responded by asserting that there remained a genuine issue 

of material fact on the question of whether her employee category is paid on a salary basis 

and therefore eligible for the overtime exemption for learned professionals. The Court of 

Claims agreed with ODRC and granted partial summary judgment as to Clark's claims. 

Clark filed a premature notice of appeal, then requested that the Court of Claims amend 

its judgment nunc pro tunc to make it immediately appealable through the addition of 

Civ.R. 54(B) language. The appeal is now properly before this court. 

II. Assignments of Error 

{¶ 4} Clark raises the following assignments of error for our review: 

1. In granting summary judgment, the court of claims erred by 

shunting to the merits unrebutted evidence that hours — up to 

10 minutes before and 10 minutes after each scheduled shift 

registered nurses spent on performing required duties during 

their continuous work day — were omitted from their salary 

and thus precluded the department from satisfying the 

requirement in the Fair Labor Standards Act exception for 

learned professionals that they be paid a "predetermined 

amount" on a "salary basis" which is not reduced due to 

variation in the quality or quantity of work. 
No. 15AP-597 3 

2. In granting summary judgment, the court of claims erred 

by disregarding the functional equivalence of reducing a 

salary due to variation in the quality or quantity of work to the 

department's practice of avoiding overtime for up to 10 

minutes before and 10 minutes after each scheduled shift even 

though that practice omitted from salary the time actually 

expended in the performance of required duties based on the 

department's implicit perception that brief transitional work 

between shifts lacked the requisite quality or quantity to 

deserve to be paid. 

III. Standard of Review and Applicable Law 

{¶ 5} An appellate court reviews summary judgment under a de novo standard. 

Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio 

Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is 

appropriate only when the moving party demonstrates (1) no genuine issue of material 

fact exists, (2) the moving party is entitled to judgment as a matter of law, and 

(3) reasonable minds could come to but one conclusion and that conclusion is adverse to 

the party against whom the motion for summary judgment is made, that party being 

entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex 

rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).

{¶ 6} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of 

informing the trial court of the basis for the motion and identifying those portions of the 

record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280, 

293 (1996). However, the moving party cannot discharge its initial burden under this rule 

with a conclusory assertion that the nonmoving party has no evidence to prove its case; 

the moving party must specifically point to evidence of the type listed in Civ.R. 56(C) 

affirmatively demonstrating that the nonmoving party has no evidence to support the 

nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the 

moving party discharges its initial burden, summary judgment is appropriate if the 

nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, 

with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 

430; Civ.R. 56(E).
No. 15AP-597 4 

{¶ 7} All parties to the case agree that the FLSA and accompanying federal 

regulations provide the governing law. The FLSA requires employers to pay overtime 

compensation for work performed in excess of 40 hours per week. 29 U.S.C. 207(a)(1); 

Johnson v. Ohio Dept. of Youth Servs., 96 Ohio St.3d 161, 2002-Ohio-4010, ¶ 7. Ohio 

defers to federal regulations and applicable federal case law for determination of eligibility 

for overtime compensation. Briscoe v. Columbus Metro. Area Community Action Org., 

10th Dist. No. 81AP-887 (Mar. 9, 1982). An employee bringing an action under the FLSA 

for unpaid overtime bears the burden of demonstrating that he or she performed 

uncompensated work. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 

(1946). To prove the FLSA claim, the plaintiff must produce sufficient evidence to show 

the amount and extent of the work and resulting unpaid compensation. Id. at 687-88. 

{¶ 8} Here, the evidentiary burden shifted for summary judgment purposes to the 

defendant employer because ODRC claims an exemption to the general FLSA overtime 

requirement: procedurally, these exemptions are raised by the employer as an affirmative 

defense. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974). Such exemptions 

will be narrowly construed against the employer, who must demonstrate by clear and 

affirmative evidence that the employee is covered by the exemption. White v. Murtis M. 

Taylor Multi-Serv. Ctr., 188 Ohio App.3d 409, 2010-Ohio-2602, ¶ 12 (8th Dist.). "The 

manner in which an employee spends his time is a question of fact, while the 

determination whether his duties fall within an exemption is a question of law." Id., citing 

Jastremski v. Safeco Ins. Cos., 243 F.Supp.2d 743, 747 (N.D.Ohio 2003). The apparent 

heightened burden imposed on the employer by the above "clear and affirmative" 

language, however, does not bring with it any heightened evidentiary burden when 

considering a motion for summary judgment. Thomas v. Speedway SuperAmerica, LLC, 

506 F.3d 496 (6th Cir.2007). 

{¶ 9} The FLSA provides an overtime exemption for "bona fide executive, 

administrative, or professional" positions. 29 U.S.C. 213(a)(1); Johnson at ¶ 11. The act 

itself does not define these terms, but the applicable regulations explain each category. 

Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558-59 (2d Cir .2012). Specifically, 

ODRC here invokes the "learned professional" exemption applicable to employees with 

specialized skills and training. To qualify, an employee must satisfy a two-prong test. 
No. 15AP-597 5 

Powell v. Am. Red Cross, 518 F.Supp.2d 24, 38 (D.D.C.Cir.2007). First, the employee 

must be compensated "on a salary or fee basis at a rate of not less than $455 per week." 

29 C.F.R. 541.300(a)(1). Second, the employee's primary duties must require 

performance of work demanding knowledge of an advanced type in a field of science or 

learning "customarily acquired by a prolonged course of specialized intellectual 

instruction." 29 C.F.R. 541.301 (a)(3). 

{¶ 10} These federal regulations expressly anticipate that "[r]egistered nurses who 

are registered by the appropriate State examining board generally [will] meet the duties 

requirements for the learned professional exemption." 29 C.F.R. 541.301(e)(2). The 

parties accordingly agree that Clark and similarly situated RNs employed with ODRC 

satisfy the "primary duty" prong of the above test by virtue of their advanced education 

and specialized knowledge. The dispute lies in whether Clark is a "salaried" employee in 

order to meet the remaining prong of the test. 

IV. Discussion 

{¶ 11} Because Clark did not provide separate arguments for each assignment of 

error and because both assignments relate to whether Clark was a salaried employee 

under the learned professional exemption under the FLSA, we will address them together. 

{¶ 12} "An employee will be considered to be paid on a 'salary basis' within the 

meaning of these regulations if the employee regularly receives each pay period on a 

weekly, or less frequent basis, a predetermined amount constituting all or part of the 

employee's compensation, which amount is not subject to reduction because of variations 

in the quality or quantity of the work performed." 29 C.F.R. 541.602(a). The term 

"predetermined" means that the employee is guaranteed a certain amount of hours to 

work and the corresponding salary paid on a regular basis. Any variation or reduction 

from such a predetermined amount must be caused by the actions of the employee, not 

the employer; i.e., the employer may not deny the regular salary on the simple basis of 

lack of work to offer the employee. 29 C.F.R. 541.602(a); Douglas v. Argo-Tech Corp., 113 

F.3d 67, 71 (6th Cir.1997). Earnings "may be computed on an hourly, a daily or a shift 

basis, without losing the exemption or violating the salary basis requirement." 29 C.F.R. 

541.604(b); Acs v. Detroit Edison Co., 444 F.3d 763, 768-69 (6th Cir.2006) (Salary test 

may be satisfied even where employer uses an hourly payroll system based on a 
No. 15AP-597 6 

guaranteed 40-hour work week.); Martinez v. Hilton Hotels Corp., 930 F.Supp.2d 508, 

523 (S.D.N.Y.2013). The purpose of the salary basis test is to distinguish "true" executive, 

administrative, or professional employees from non-exempt employees, i.e., employees 

who may be disciplined "by piecemeal deductions from * * * pay." Yourman v. Giuliani, 

229 F.3d 124, 130 (2d Cir.2000), quoting Aur v. Robbins, 519 U.S. 452, 456 (1997). 

{¶ 13} The salary basis test does not deprive employers of all flexibility in adjusting 

pay either upward or downward: "[T]he exemption is not lost if an exempt employee who 

is guaranteed at least $455 each week paid on a salary basis also receives additional 

compensation based on hours worked for work beyond the normal work week. Such 

additional compensation may be paid on any basis (e.g., flat sum, bonus payment, 

straight-time hourly amount, time and one-half or any other basis), and may include paid 

time off." 29 C.F.R. 541.604(a); see generally Anani v. CVS Rx Servs., Inc., 788 F.Supp.2d 

55, 61-62 (E.D.N.Y.2011), aff'd 730 F.3d 146 (2d Cir.2013). Conversely, a public employer 

that follows "principles of public accountability" may reduce pay on an hourly basis for 

absences of less than a full day. 29 C.F.R. 541.710(a). "Public accountability is the notion 

that 'governmental employees should not be paid for time not worked due to the need to 

be accountable to the taxpayers for expenditure of public funds.' " Serv. Emps. Internatl. 

Union, Local 102 v. Cty. of San Diego, 60 F.3d 1346, 1352 (9th Cir.1994), fn. 2, quoting 

Hilbert v. Dist. of Columbia, 23 F.3d 429, 435 (D.C.Cir.1994); see also Worley v. 

Cincinnati, 1st Dist. No. C-990506 (Aug. 25, 2000). Under the public accountability 

principle, an employee who does not work all or part of a scheduled shift and does not 

take corresponding leave time for such an absence is responsible for the resulting 

reduction in wages without compromising his or her salaried status. Cooney v. Chicago, 

644 F.Supp.2d 1061 (N.D.Ill. 2009). 

{¶ 14} For purposes of summary judgment, the facts to which we apply these 

standards are straightforward. ODRC employs Clark in a position classified as "Nurse I" 

under the terms of a Collective Bargaining Agreement ("CBA") governing multiple state 

agencies and employee categories. The Nurse I position requires licensure and 

registration as a professional nurse and a two-year education in the field. Nurse I is 

classified as a full-time employee under the CBA, working 40 hours per week and 2,080 
No. 15AP-597 7 

hours per calendar year. The full-time rate of pay for any pay step in the position 

substantially exceeds $455 per week. 

{¶ 15} Under the CBA, "[t]he standard work week for full-time employees shall be 

forty (40) hours exclusive of time allotted for unpaid meal periods." (Defendant exhibit C, 

CBA, Section 24.01.) Section 43.07 of the CBA provides that "[e]mployees who report to 

work as scheduled and are then informed that they are not needed or who are called at 

home by the Employer and told not to report to their regularly scheduled work day shall 

receive their full day's pay at regular rate." (Defendant exhibit C, CBA, Section 43.07.) A 

CBA memorandum addition covering ODRC personnel addresses overtime allocation and 

bidding, but does not specifically define overtime or address the transitional time that 

gives rise to Clark's claims. This memorandum does state that "overtime procedures for 

nurses will be established at the local institutional level by the Employer." (Defendant 

exhibit C, CBA, 238.) ODRC supplements the CBA with a "Payroll and Timekeeping 

Policy" promulgated pursuant to the department director's authority granted by R.C. 

5120.01. This policy does not explicitly address transitional time for nurses. The 

timekeeping policy prohibits "bargaining unit and FLSA overtime eligible employees" 

from clocking in more than ten minutes before the start of a scheduled shift, or clocking 

out more than ten minutes after the end of a scheduled shift, without supervisor 

authorization. (Defendant exhibit E, Timekeeping Policy VI(C)(1)(b).) The policy also 

explains the department's public accountability practices: "An employee's pay shall be 

reduced, or such employee shall be placed on leave without pay for absences for personal 

reasons or because of illness or injury of less than one work-day when accrued leave is not 

used by the employee." (Defendant exhibit E, Timekeeping Policy VI(F)(2).) 

{¶ 16} Neither of these documents establishes ODRC's practice of requiring nurses 

to clock in early to cover transitional time. Clark introduced evidence of the transitional 

arrival-time policy through her own affidavit, stating that she was "required * * * to arrive 

approximately ten minutes prior to the start of each scheduled shift [and] typically not 

paid for this time." (Nov. 14, 2015 Clark Affidavit, ¶ 4, 7.) Neither her affidavit nor any 

other evidence in the record reflects a comparable compulsory requirement to hold over 

for transitional time after a shift. 
No. 15AP-597 8 

{¶ 17} In practice, the undisputed pay records submitted by Clark establish that 

when she worked a full shift as scheduled, Clark clocked in between ten and zero minutes 

before the shift start time. Holdovers after the shift-end time also occurred but were less 

common. Consistent with her assertions, the records generally (but not always) reflect 

that she received no pay for the ten minutes preceding or following her regular shift. 

Under no circumstances, however, was Clark docked pay if she failed to appear the 

required ten minutes in advance of her shift; on most days, in fact, she seems to have 

clocked in and out within a minute or two of her shift times with no impact on pay. 

{¶ 18} Clark asserts two bases for finding that she was not a salaried employee. 

First, Clark argues that her pay varied from pay period to pay period because the hours 

she worked varied considerably, thereby reducing or increasing her pay well above or 

below her nominal weekly wage based on a 40-hour week. For some pay periods, her 

weekly pay even fell below the $455-per-week minimum for the FLSA salaried employee 

test. This volatility, she argues, is not typical of salaried employment. Second, Clark 

argues that ODRC, by avoiding overtime for up to ten minutes before and ten minutes 

after each scheduled shift, created the functional equivalent of a variation in pay based on 

quality or quantity of work and removed her from salaried status. 

 A. Wide Variety of Weekly Pay 

{¶ 19} With respect to the fluctuations in Clark's gross pay from paycheck to 

paycheck, ODRC does not dispute that such variations were substantial and that her pay 

sometimes fell below the $455-per-week threshold. However, as ODRC explains, and the 

evidence supports, these variations were due either to unpaid absences voluntarily 

undertaken by Clark, or authorized overtime that caused her to receive a considerable 

amount over her base salary. We agree with the Court of Claims that these fluctuations 

were not caused by "variations in the quality or quantity of the work performed." 29 

C.F.R. 541.602(a). They were, rather, the result of proper application of ODRC's right to 

invoke the "public accountability" principle to avoid compensating employees for time not 

worked on the employee's initiative and to in turn pay an otherwise-exempt employee 

discretionary overtime pursuant to the CBA. There is no evidence that ODRC denied 

Clark any part of her regular salary on the simple basis of lack of work to offer her. 

Douglas. The payroll records indicate that ODRC complied with its obligation under the 
No. 15AP-597 9 

CBA to pay Clark for a scheduled shift when she was present and ready to work. In sum, 

we agree with the Court of Claims that these variations in weekly pay did not of 

themselves remove Clark from salaried status and we overrule Clark's first assignment of 

error. 

 B. Overtime Policy 

{¶ 20} We now address Clark's argument that the overtime policy operated to 

reduce her compensation based on quantity or quality thereby removing Clark from 

salaried status. The essence of salaried employment is the presence of fixed pay for a 

variable duration of work. The variations complained of in relation to the overtime policy 

are not variations in pay based on the quantity or quality of work, but, to the contrary, 

variations in work (within a narrow range) resulting in no variation in pay. Salaried 

employees and employers are not limited to a uniform 40-hour work week in exchange for 

their stated salary. Ellis v. J.R.'s Country Stores, Inc., 779 F.3d 1184, 1189 (10th Cir.2015) 

(50-hour baseline work week was consistent with FLSA salaried employment, and 

employer had no history of making improper deductions for shorter work weeks). Once a 

salaried employee is guaranteed pay for her scheduled shifts on a full-time basis, variation 

of the standard work week above the minimum requirement does not affect salaried 

status. Id. The most important factor remains the presence of a nondeductible minimum 

salary. Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir.2004). 

{¶ 21} In the present case, the working conditions spelled out in ODRC's timekeeping policy amount to a full-time work day comprised of a shift of between 8 hours 

and 8 hours and 20 minutes. Any time worked at or above 40 hours satisfied ODRC's 

obligation to offer its salaried staff full-time pay when such employees were willing and 

able to appear for scheduled shifts. The fact that outside of the maximum 20-minute 

range Clark either lost pay or gained overtime benefits does not affect the baseline 

premise that as a salaried employee she was not guaranteed pay that varied directly with 

her time on the job. The FLSA and attendant regulations permitted the deductions under 

the public accountability policy and, under the CBA, ODRC had agreed to partially waive 

the overtime exemption to which it was otherwise entitled for RNs. The fact that ODRC as 

an employer had bargained away much of the overtime exemption does not mean that it 
No. 15AP-597 10 

lost the right to retain some residue of it in practice. We therefore overrule Clark's second 

assignment of error. 

{¶ 22} We find Clark and similarly situated RNs were learned professionals and 

remained both professionally qualified and salaried employees under these conditions. 

Therefore, the Court of Claims correctly concluded that there remains no genuine issue of 

material fact regarding the applicability of the FLSA learned professional overtime 

exemption. 

V. Conclusion 

{¶ 23} Based on the foregoing reasons, the Court of Claims did not err in granting 

ODRC's motion for summary judgment. Having overruled Clark's two assignments of 

error, we affirm the judgment of the Court of Claims of Ohio. 

Judgment affirmed. 

SADLER and BRUNNER, JJ., concur. 

BRUNNER, J., concurring. 

{¶ 24} I concur with the decision of the majority affirming the judgment of the 

Court of Claims granting summary judgment to the Ohio Department of Rehabilitation 

and Correction ("ODRC") with regard to plaintiff-appellant Clark's claims under the Fair 

Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. 201 et seq. There is no genuine issue of 

material fact that Clark was subject to the FLSA learned professional overtime 

exemption. 

{¶ 25} I believe it is important to acknowledge, however, that the record indicates 

that ODRC failed to compensate Clark for the time she performed primary duties of her 

job after she clocked in but before her shift started, and before she clocked out but after 

her shift had ended, and this violated the Collective Bargaining Agreement ("CBA"). 

{¶ 26} Section 24.02 of the CBA, "Rate of Overtime Pay," provides that 

"[e]mployees shall receive compensatory time or overtime pay for authorized work 

performed in excess of forty (40) hours per week." 

 
No. 15AP-597 11 

{¶ 27} Division (A) of Section 24.04, "Overtime and Compensatory Time," sets 

forth how overtime work shall be compensated, as follows: 

Hours in an active pay status in excess of forty (40) hours in 

any calendar week shall be compensated at the rate of one and 

one-half (1 1/2) times the total rate of pay, as defined by 

Section 43.01, for each hour of such time. Total rate of pay 

includes the base rate plus longevity, all applicable 

supplements, and shift differential where applicable. 

{¶ 28} Because Clark did not plead or argue a violation of the CBA, we are unable 

to review the Court of Claims' decision on this matter through that lens. Accordingly, I 

concur with the decision of the majority.