United States Court of Appeals

For the First Circuit

No. 10-2298

CHRISTINE HINES; MARY A. O’CONNOR;

JESSICA LEPORACCI,

Plaintiffs, Appellants,

v.

STATE ROOM, INC.; LONGWOOD EVENTS, INC.;

BELLE MER, INC.; JAMES APTEKER,

Defendants, Appellees,

VERONIQUE CORPORATION,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Howard, Ripple, and Selya, Circuit Judges. *

John F. Tocci, with whom Cary Gianoulis and Tocci, Goss & Lee,

P.C. were on brief, for appellants.

Colleen C. Cook, with whom Jack I. Siegal and Nystrom Beckman

& Paris LLP were on brief, for appellees.

November 28, 2011

 Of the Seventh Circuit, sitting by designation. *
RIPPLE, Circuit Judge. Christine Hines originally

brought this action in Massachusetts state court against the State

Room, Inc., where she formerly was employed. In the amended 1

complaint, which was before the district court following removal,

Ms. Hines and her coplaintiffs sought unpaid overtime wages that

they claimed were due under the Fair Labor Standards Act (“FLSA”),

29 U.S.C. §§ 201-219, and related state statutes. In addition to

the State Room, Longwood Events, Inc., Belle Mer, Inc. and James

Apteker were named as defendants. After various further

amendments, including the addition of counterclaims, and following

discovery, the defendants sought summary judgment on the wage

claims. The defendants asserted that the plaintiffs were exempt

from the overtime requirement because they were administrative

employees under the FLSA, 29 U.S.C. § 213(a)(1). The plaintiffs

countered that their work did not involve sufficient discretion to

satisfy the exemption. The district court determined that the

duties of the employees did involve substantial discretion and,

under our precedent, the exemption was applicable; accordingly,

partial summary judgment was entered for the defendants. The

plaintiffs now appeal. They continue to contend that their

employers have failed to demonstrate that they acted with any

Ms. Hines’s original complaint also listed Veronique

1

Corporation as a defendant and claimed that it was the State Room’s

corporate parent. Veronique Corporation was dropped as a defendant

in the amended complaint and terminated from the action in 2009.

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meaningful discretion and, therefore, to carry the burden of

demonstrating the applicability of the exemption. Because the

district court correctly applied governing legal principles, we

affirm the judgment of the district court.

I

BACKGROUND

A. Facts

The State Room and Belle Mer are affiliated banquet

facilities that “host high-end wedding receptions and other social

functions” in Boston, Massachusetts, and Newport, Rhode Island,

respectively. R.78 at 2. Individual defendant James Apteker is

the founder and president of the State Room and Belle Mer. 

Longwood Events is an affiliated management company that provides

accounting and record-keeping services for the banquet facilities. 

According to the complaint, Longwood is the corporate parent for

the State Room and Belle Mer, and the companies share common

management.

The plaintiffs are former sales managers at one or both 2

According to their deposition testimony and their resumes, 2

the plaintiffs held different titles at various points in their

tenures with the defendant facilities. See, e.g., R.68-4 at 14-15

(Leporacci Dep. 61-62) (stating that she was given “a few different

titles . . ., but continued to perform the same duties no matter

what the title was” for the majority of her time working for the

defendants). However, the plaintiffs themselves use the more

generic term “sales manager” in structuring their arguments in this

case. The plaintiffs’ titles do not affect our analysis, and,

therefore, for ease of reading, we employ the plaintiffs’

terminology. See Reich v. John Alden Life Ins. Co., 126 F.3d 1, 10

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of the defendant facilities: Ms. Hines was employed from 2006 to

2008 at the State Room; Mary O’Connor, at Belle Mer from 2007 to

2008; and Jessica Leporacci, at Belle Mer for several months in

2006, then at the State Room through 2008. As sales managers, the

plaintiffs were the primary client contacts on behalf of the event

venues. Principally, their role was to secure event business for

the company, either by use of a cold-call list kept by management

or in response to inquiries by potential clients. When given a

cold-call list, the plaintiffs would assess which calls were likely

to generate business and would not make calls they determined would

be unproductive. See R.68-3 at 7 (O’Connor Dep. 34-35) (explaining

that, after researching a list of law firms to cold call, she would

not contact a firm of three attorneys to offer to host a holiday

party and agreeing that the research she did would help her

determine “whether to call or not”). As part of their regular

tasks, plaintiffs spoke by phone and in person with potential

clients; they toured the facility with potential clients to sell

events; and they assisted clients in determining which venue and

time might be appropriate for an event and what minimum charges

would apply. The goal behind this work was to commit a prospective

client to a contract for an event. In addition to the efforts with

individual clients and prospective clients, the plaintiffs engaged

(1st Cir. 1997) (“[T]he particular title given to an employee is

not determinative[ of] an employee’s exempt status . . . .”).

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in broader sales efforts. For example, Ms. O’Connor testified that

she marketed Belle Mer by attending Chamber of Commerce or

Convention and Visitors Bureau events as the company’s

representative, again with the goal of “bring[ing] events to Belle

Mer.” Id. (O’Connor Dep. 36). To bring in business from within

her assigned nonprofit sector, Ms. Hines suggested to her

supervisor that she could develop a lunch presentation on “‘how to

plan a gala fundraiser for [a] non[]profit’” as a marketing tool. 

R.68-20 at 2 (email from Hines to a supervisor).

For the majority of the plaintiffs’ tenure with the

defendant facilities, their duties extended beyond securing the

basic sale and event contracts. They were required to work with

clients to design details and menus that would meet each client’s

expectations; they prepared internal order forms that explained 3

every detail of the event for the operations staff; and from time

to time, they attended events to ensure that the client’s wishes

were carried out. As Ms. O’Connor stated in her deposition, “Soup

to nuts is what I was doing back then. You didn’t have any events

managers. You ran the whole thing.” R.68-3 at 14 (O’Connor Dep.

69); id. at 12 (O’Connor Dep. 59) (confirming that her duties

included “[c]oordinat[ing] the setup, design, [and] execution of

the wedding”); see also R.68-4 at 15 (Leporacci Dep. 63)

See, e.g., R.68-4 at 13 (Leporacci Dep. 55) (explaining 3

that she would make suggestions for an event and “could create a

custom menu with the chef”).

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(describing her work as an events manager as including organizing

“tastings, menu selection, . . . linen selection, design of the

space, [and] everything else that goes into planning an event”);

R.68-2 at 8 (Hines Dep. 44-45) (answering affirmatively when asked

if she “work[ed] closely with nonprofit board committees in

researching, designing and executing events”). The plaintiffs were

responsible for maintaining a relationship with clients and

satisfying client needs in the course of their event planning with

the defendant venues. See R.68-15 (contemporaneous email from

supervisor to sales and events management staff stating, “[I]t is

your responsibility to proactively manage client expectations and

obligations. You are accountable for the ‘life’ of this client

while they book, and then plan and execute their event with us.”);

R.68-2 at 18 (Hines Dep. 123) (agreeing that her job was to “keep

the client happy” from the initial contact through the actual

event).

Indeed, the picture that emerges from the record is one in

which the primary role of sales managers was to secure a steady

stream of business by selling each prospective client on a package

of options--location, timing, atmosphere, design, food and the

like, all within the client’s budget--and by ensuring that each

event so planned was a success. See R.68-3 at 10 (O’Connor Dep.

51-52) (explaining the process of creating an event within a

client’s budget); id. (O’Connor Dep. 50-51) (“[T]his is a one-time

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event, let’s make it the most incredible thing you will ever have

in your life. Even if you have a small budget, let’s still make it

the most breathtaking thing that could ever happen to you, and how

that is going to happen is customer service. You have got to

believe in me.”). In so doing, the sales managers secured clients

one at a time, but also worked to maintain and enhance the

reputation of their venues as a desirable location for custom,

high-end events for private and nonprofit clients. See R. 68-2 at

21 (Hines Dep. 145) (confirming that her tasks included

“develop[ing] relationships with” clients and “encourag[ing] repeat

business”); see also R.72-8 at 8 (Longwood Events Sales Handbook)

(instructing sales staff to “[c]apitalize on re-booking

opportunities immediately” while clients “have positive feelings

about their event”).4

The record also establishes some things that the

plaintiffs did not do in the course of their daily work. 

Specifically, the plaintiffs had virtually no authority to make any

financial decisions. When working with a potential client to

secure an event contract, the sales managers were bound by price

schedules controlled by management that dictated minimum charges

for particular rooms based on the times and dates of the event. 

See also R.68-21 at 2-3 (email chain in which Ms. Hines’s 4

supervisor congratulates her on a successful event in which a

nonprofit raised $200,000 and instructs her to “quote these numbers

when wooing the big non[]profits,” a suggestion with which

Ms. Hines agrees).

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R.68-3 at 5 (O’Connor Dep. 28) (noting that the prices and minimums

“don’t change” and that “[t]here is no wavering unless you want to

marry in the winter”). Beyond the event minimum, each option a

client might select for a particular event carried a price already

fixed by management, the sum of which defined the total cost for

the entire event, and sales managers were not permitted to deviate

or discount in any way without management’s approval. See, e.g.,

R.72-8 at 6 (Longwood Events Sales Handbook) (“Do not provide

discounts or lower [food and beverage] minimums without Sales

Director approval.”); id. at 7 (“[A]ny discounts are with a Sales

Director’s approval only.”). Further, although they signed final

event contracts as representatives of the defendant businesses,

they were permitted to do so only when management had approved the

terms. R.72-9 at 4 (Gullins Aff.). Indeed, they were prohibited

expressly from creating any financial obligations for the

businesses without management approval. R.72-8 at 3-4 (emails from

supervisor forbidding the staff from creating “obligation[s]” for

the company without prior approval); see also R.72-9 at 4 (Gullins

Aff.). They did not generate the form contracts or intake forms

that they used to structure their interactions with clients and to

forward client information to management. Id. at 3. They were not

supervisors and had no direct authority over any other staff. Id. 

They were not policy-makers for their respective businesses. See

id. at 4.

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The plaintiffs were guided by the Longwood’s Events Sales

Handbook, which presents “[t]he Longwood Events Way of Selling.” 

R.72-8 at 6. Some of the instructions provided are specific and

directive, such as “do not hold dates beyond the 7-day timeframe,”

id., or “[n]ever match a deal from last year,” id. at 7. Equally

often, however, the handbook’s instructions are generalized,

strategic or aspirational. See id. at 6 (“Always take the

customer[’s] perspective. Anticipate what they would want and

listen to what they are asking for. Roll up your sleeves and do

whatever it takes to ensure the customer has a great impression of

[Longwood Events] and the venue, enlisting operations and kitchen

where necessary.”); id. at 7 (“Always make a concerted effort to

up[]sell . . . .”); id. (“Make sure the menu fits the event. Are

we selling something requiring a knife and fork for an event which

is intended to have a cocktail feel and light seating?”). In

addition to the directions provided by the handbook, the defendant

businesses provided a scripted response to one specific question

that sales managers sometimes received regarding an affiliated

venue, the development of which the defendants had abandoned. The

vast majority of the plaintiffs’ work as sales managers, however,

involved unscripted conversations with clients and potential

clients.

Ms. Hines earned $77,000 a year in her role, second in

the department only to the director of sales; Ms. O’Connor earned

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$48,000; Ms. Leporacci earned between $28,000 and $36,000. 

Although the plaintiffs claimed to have worked more than forty

hours per week on a consistent basis--indeed, the offer letters

that they received expressly stated that they would work forty-five

to fifty-five hours per week --they did not receive overtime pay 5

during their tenure as sales managers because the defendant

businesses designated them as “exempt” employees for purposes of

overtime laws. Although they were required to punch-in for some

portion of their tenure, they were not required to keep specific

hours.

All of the plaintiffs had left the defendants’ employ by

the time this action was commenced. When Ms. Hines resigned in

2008, she requested a severance, which was denied. Mr. Apteker

claims that, when Ms. Hines was informed that severance was

unavailable, he heard her mumble something that he understood to be

a threat that she would go after the company and “find a way” to

get the denied severance. R.76-8 at 4 (Apteker Dep. 125).

B. District Court Proceedings

After being granted leave by the Massachusetts Attorney

General’s Office, Ms. Hines filed a class action complaint in the

Massachusetts state courts alleging violations of the Massachusetts

and federal overtime laws on behalf of herself and a putative

R.68-2 at 11 (Hines Dep. 84); R.68-4 at 11 (Leporacci Dep. 5

46).

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class. She alleged that the State Room improperly had classified

her as an exempt employee in order to avoid its overtime

obligations. The State Room removed the action to the district

court.

In an amended complaint filed in federal court, Ms. Hines

removed her class action allegations, added Ms. O’Connor and

Ms. Leporacci as plaintiffs and added Belle Mer, Longwood and

Mr. Apteker as defendants. The amended complaint included seven 6

claims under the FLSA and related Massachusetts and Rhode Island

wage and hour laws.

In response, the defendants filed a state tort

counter-claim for abuse of process. They claimed that the overtime

suit was in retaliation for the denial of Ms. Hines’s requested

severance. Ms. Hines, in turn, counter-claimed that the abuse of

process allegation was made in retaliation for filing the initial

suit, relying on the anti-retaliation provision in the FLSA, 29

U.S.C. § 215(a)(3).

Following discovery, the defendants moved for summary

judgment on the original wage claims. Ms. Hines sought summary

judgment on her retaliation claim. The district court granted the

defendants’ motion for summary judgment and denied Ms. Hines’s

motion. The court set forth the relevant portion of the FLSA and

Mr. Apteker was added pursuant to a state statute that

6

deems corporate principals “employers” responsible for wage and

hour violations. See Mass. Gen. Laws ch. 149, § 148.

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the regulations and noted that the central issue in the case was

whether the plaintiffs had exercised sufficient discretion and

independent judgment in their work to be classified properly as

administrative employees exempt from the overtime requirement. The

court acknowledged that the FLSA places the burden on the employer

to establish the applicability of the exemption and that the courts

have required that the exemption be drawn narrowly against the

employer. However, the court found this circuit’s decisions in

Cash v. Cycle Craft Co., 508 F.3d 680 (1st Cir. 2007), and Reich v.

John Alden Life Insurance Co., 126 F.3d 1 (1st Cir. 1997),

instructive and determined that they were strong support for the

defendants’ position in the present case. The court concluded

that, like the plaintiffs in Cash and John Alden, the plaintiffs

here had a primary task of communicating with clients and assessing

client needs. Although a handbook guided these important

interactions, it did not script them; instead, the plaintiffs’ work

required a significant measure of judgment in all of their daily

interactions. The plaintiffs were “the primary conduit between

defendants and their clients,” and their “efforts constituted major

assignments . . . affecting a substantial portion of defendants’

business.” R.78 at 18. Further, although the options that the

plaintiffs presented to clients for various services were prepriced by management, the plaintiffs “determined for themselves how

best to fit those options to the needs of each individual client.” 

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Id. That plaintiffs’ supervisors had the authority to review and

approve, noted the court, was not dispositive under the

regulations. After reviewing the evidence, including the

plaintiffs’ own descriptions of their work for the defendants on

their personal resumes, which the opinion set forth in full, the

court concluded that the employers had established that the

plaintiffs fell properly within the administrative exception.

The court did acknowledge that, with respect to many of

the factors identified in the regulations as relevant to the

application of the administrative exemption, the plaintiffs had

demonstrated questions of fact. The court, moreover, noted that

the plaintiffs had produced evidence that weighed against

determining that they were properly classified within the

administrative exemption: They did not shape (indeed, they were

required to follow) management’s policies, and they did not

negotiate or obligate financially the defendants. Further, the

district court concluded that, in its view, taking the evidence in

the light most favorable to the plaintiffs, they did not have

meaningful discretion regarding the selection of potential clients

to approach. Nevertheless, the court found that the evidence

clearly demonstrated that the plaintiffs “exercised discretion and

independent judgment in determining how to assemble an event to

suit each client’s taste.” Id. at 19. Accordingly, summary

judgment was entered for the defendants on the wage claims.

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The district court further ruled that disputed issues of

fact remained on the abuse of process claim against Ms. Hines, and

therefore denied summary judgment on that counter-claim. The

parties then jointly moved for entry of a separate judgment under

Rule 54(b), which the district court entered upon concluding that

the ruling on the wage claims was final and that there was no

persuasive reason for delay. Proceedings on the counterclaims 7

were stayed pending the outcome of this appeal.

II

DISCUSSION

A. Standard of Review

We review a district court’s grant of summary judgment de

novo. Hunt v. Golden Rule Ins. Co., 638 F.3d 83, 86 (1st Cir.

2011). Summary judgment is proper where there is no genuine

dispute of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). “In the

typical case, we will reverse a grant of summary judgment only if,

making all factual inferences in favor of the non-moving party, a

Consistent with the duties prescribed in Spiegel v. 7

Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir. 1988), and its

progeny, we independently have examined the propriety of a Rule

54(b) certification in the present case and are satisfied that the

district court acted within its sound discretion. Specifically, we

agree that the ruling upon which judgment was entered was final. 

Further, we agree that, given the separate factual bases for the

claims at issue here and those still unadjudicated in the district

court, the court was entitled to conclude that there was “‘no just

reason for delay.’” Id. (quoting Fed. R. Civ. P. 54(b)).

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rational factfinder could resolve the legal issue for either side.” 

D & H Therapy Assocs., LLC v. Boston Mut. Life Ins. Co., 640 F.3d

27, 34 (1st Cir. 2011).8

B. The FLSA and the Department of Labor’s Regulations

The FLSA of 1938, as amended, establishes a federal

minimum wage and restricts youth labor. See 29 U.S.C. §§ 201-219. 

In addition, the Act requires overtime pay--payment at the rate of

one and one-half of the regular rate--for all hours worked in

excess of a forty-hour work week. Id. § 207(a)(1). The statute

also sets forth various exemptions from the overtime requirement. 

Relevant to the present case, the overtime requirement in § 207

does not apply to “any employee employed in a bona fide executive,

administrative, or professional capacity . . . (as such terms are

defined and delimited from time to time by regulations of the

Secretary . . .).” Id. § 213(a)(1).

Pursuant to the statute’s express delegation of

rulemaking authority, the Secretary has issued detailed

regulations, following notice-and-comment procedures, defining each

We note the plaintiffs’ objections to the district court’s 8

factual conclusions at summary judgment and, in particular, to the

use of the plaintiffs’ resumes in determining their job duties. 

The plaintiffs would have us disregard the resumes because, in

their view, it is common practice to include puffery about one’s

own importance or achievements within any given position. We see

no reason to set forth a categorical rule regarding the use of

resumes in FLSA litigation. Our obligation on review of summary

judgment dictates the manner in which we view all of the evidence

of record, including the plaintiffs’ resumes.

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of the exemptions in § 207. See generally 29 C.F.R. Part 541; see

also 29 U.S.C. § 213(a)(1) (providing authority); John Alden, 126

F.3d at 7-8 (discussing the regulations).

The regulations in effect at the time of the plaintiffs’

employment provide a single three-prong test for determining 9

whether an employee qualifies for the administrative exemption:

(a) The term “employee employed in a bona fide

administrative capacity” in section 13(a)(1)

of the Act shall mean any employee:

(1) Compensated on a salary or fee

basis at a rate of not less than

$455 per week (or $380 per week, if

employed in American Samoa by

employers other than the Federal

Government), exclusive of board,

lodging or other facilities;

(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

In 2004, the Department of Labor amended the regulations 9

governing administrative employees. Prior to the amendment, the

regulations allowed employers to demonstrate an employee’s

qualification for the exemption under one of two tests, the “long

test” and the “short test.” The long test covered lower-income

employees; within a certain salary range, an employer was required

to demonstrate that more stringent requirements were satisfied to

establish an exemption. When an employee earned above the range

included in the long test, the exemption could be demonstrated

using the simpler short test. The long test no longer exists; the

short test was modified in the new regulations and is now called

the “standard test.” It applies to all employees that an employer

seeks to designate as exempt administrative staff. See generally

Defining and Delimiting the Exemptions for Executive,

Administrative, Professional, Outside Sales and Computer Employees;

Final Rule, 69 Fed. Reg. 22122 (Apr. 23, 2004).

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(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). The sections that follow provide

substantial further direction regarding the implementation of this

standard test for the administrative exemption, and we shall

address them in significant detail below as we analyze the

application of the regulatory mandate to the case before us. 

At the outset, we note that we are guided by a general

interpretive principle. Because of the remedial nature of the

statute, the Supreme Court has emphasized that the exemptions

should be “narrowly construed” and “limited to those establishments

plainly and unmistakably within their terms and spirit.” Arnold v.

Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960); see also John Alden,

126 F.3d at 7 (quoting Arnold).

The parties concede, and the record is clear, that the

sales managers were compensated on a salary basis at a level in

excess of the required $455 per week. The parties also agree that

the second prong, see 29 C.F.R. § 541.200(a)(2), which requires

that the qualifying employee’s “primary duty [must be] the

performance of . . . work directly related to the management or

general business operations of the employer or the employer’s

customers,” is met. The regulations further provide:

The phrase “directly related to the management

or general business operations” refers to the

type of work performed by the employee. To

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meet this requirement, an employee must

perform work directly related to assisting

with the running or servicing of the business,

as distinguished, for example, from working on

a manufacturing production line or selling a

product in a retail or service establishment.

Id. § 541.201(a). 

We agree with the parties that the second prong is met. 

As our decisions in John Alden, 126 F.3d 1, and Cash, 508 F.3d 680,

make clear, the work performed by Ms. Hines, Ms. Leporacci and

Ms. O’Connor properly is considered administrative. The principal

business of the defendant employers is providing banquets. The

sales aspect of the defendants’ businesses, although necessary to

their success, is clearly ancillary to the principal function of

actually providing the banquet services themselves. The

plaintiffs’ own descriptions of their duties further make clear

that they were focused on more than simple individual sales

transactions. With respect to each individual transaction, the

sales managers’ own testimony indicates that they did not simply

close contracts. Instead, they worked with each client to create

a custom event in all of the particulars. Further, they worked to

establish long-term relationships, to keep clients happy and to

maintain the overall reputation of their employers. Accordingly,

the second prong of the administrative exemption is satisfied.

C. Discretion Regarding Matters of Significance

The parties’ real dispute in this case concerns the third

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prong of the administrative exemption, whether the employees’

“primary duty include[d] the exercise of discretion and independent

judgment with respect to matters of significance.” 29 C.F.R.

§ 541.200(a)(3). The regulation itself provides substantial

further guidance on this point:

(a) To qualify for the administrative

exemption, an employee’s primary duty must

include the exercise of discretion and

independent judgment with respect to matters

of significance. 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.

(b) 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

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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.

(c) 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 discretion and

independent judgment even if their decisions

or recommendations are reviewed at a higher

level. Thus, the term “discretion and

independent judgment” does not require that

the decisions made by an employee have a

finality that goes with unlimited authority

and a complete absence of review. The

decisions made as a result of the exercise of

discretion and independent judgment may

consist of recommendations for action rather

than the actual taking of action. The fact

that an employee’s decision may be subject to

review and that upon occasion the decisions

are revised or reversed after review does not

mean that the employee is not exercising

discretion and independent judgment. . . .

. . . 

(e) 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. . . .

Id. § 541.202.

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The plaintiffs contend that they perform virtually none

of the duties outlined as “[f]actors to consider” in subsection

541.202(b), that they do not have “authority to make an independent

choice, free from immediate direction or supervision,” id.

§ 541.202(c), and that their work, properly characterized, involved

more skill than discretion, see id. § 541.202(e). In particular,

the plaintiffs focus on their lack of any authority to make any

decisions of financial consequence to their employers, their lack

of supervisory authority and their lack of policy-making authority.

Again, we begin with our own precedents in John Alden and

Cash. In John Alden, 126 F.3d 1, we evaluated a claim by marketing

representatives who alleged that John Alden Insurance Co. had

misclassified them as exempt and denied overtime in violation of

the FLSA. The marketing representatives each worked with a list of

independent field agents, not employed by John Alden, who worked

directly with end customers seeking insurance. Those agents, in

turn, would recommend a variety of insurance products to consumers,

including those offered by John Alden’s competitors. The marketing

representatives, who were charged with presenting their employer’s

insurance products to the field of independent agents, did so

primarily through “maintain[ing] constant contact with [the]

agents.” Id. at 3. In an individual sales call, the

representative attempted to engage the agent in an unscripted

conversation about John Alden’s product offerings in the way they

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determined would market most successfully those offerings ahead of

those offered by the competition. Although there were weekly sales

meetings at which the representatives were presented with suggested

points of emphasis, it was left to an individual representative to

determine which particular products to present and discuss in any

given conversation, drawing on his own knowledge of the agent’s

customer base as well as John Alden’s new offerings. Id. at 13. 

Beyond the marketing aspect of representatives’ daily work, they

also continued to follow sales that already had been made. 

Specifically, once an agent’s customer elected to purchase a

John Alden product, the representative would “act[] as a conduit”

between the purchasing party and John Alden’s own underwriting

department. Id. at 4. Their role in actually processing a

transaction, however, was limited. They “d[id] not set or

negotiate prices or terms of insurance, nor d[id] they have any

authority to approve or deny an application, as [that was] done

solely by the underwriting department.” Id. We concluded that, on

those facts, the representatives exercised sufficient discretion to

warrant the exemption and, therefore, affirmed the grant of summary

judgment to the employer.

In Cash, the plaintiff customer service manager was

responsible for ensuring that motorcycles were “outfitted and

delivered . . . according to the particular purchase order.” 508

F.3d at 682. Following delivery, he would “stay in touch with the

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customers and make sure that they were satisfied.” Id. On these

facts, we also concluded that the customer service manager was

required to use discretion and independent judgment in performing

his primary duties of communicating with customers concerning their

orders. Again, we focused on the fact that he was required to

“react[] to the unique needs of [the employer’s] customers.” Id.

at 686.

Even when the record in the present case is evaluated in

a light most favorable to the plaintiffs, as we must on summary

judgment, the work performed by Ms. Hines, Ms. O’Connor and

Ms. Leporacci exhibits a similar level of discretion and

independent judgment to the discretion that we already have

determined to be sufficient for the exemption. Like the plaintiffs

in John Alden and Cash, the plaintiffs here had a primary duty of

engaging potential clients and assisting them in selecting from

various options from the employers’ offerings. Indeed, although

the options from which a client could select in any given category

were finite, the goal of the sales team was to create a truly

custom event for each client. In our view, working with a client

to create a custom product, personalized to individual tastes and

budgets, exhibits at least as much creative freedom as the John

Alden plaintiffs had in marketing insurance plans that they had no

authority to create, modify or repackage to suit an individual

client. In proposing options for an event within a budget, the

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sales managers did not operate within “a prescribed technique or

‘sales pitch.’” See John Alden, 126 F.3d at 14. Instead, they

were guided by the instructions in the Longwood Events Sales

Handbook. That handbook contained certain limited iron rules, but

largely provided guidelines. The rules were not so numerous nor

the guidelines--to upsell where possible, to make sure menus fit

the tone of an event and the like--so specific as to cabin the

judgment that the plaintiffs were required to exercise in engaging

with clients and prospective clients. Such work requires a

significant degree of “invention, imagination and talent,” id. at

7 (internal quotation marks omitted). See id. at 14 (“[T]o the

extent that the marketing representatives receive guidance about

products to emphasize and suggested points to make with agents,

they nonetheless exercise discretion in applying this instruction--

for instance, in determining which agent may have an interest in [a

particular] product, or in fashioning bid proposals that meet the

needs of the agent’s customers.”); Renfro v. Indiana Michigan Power

Co., 497 F.3d 573, 577 (6th Cir. 2007) (noting, in the course of

finding adequate discretion among nuclear power plant employees,

that the technical manual they used “provide[d] a guideline on how

to develop a procedure, not an encyclopedia of strict

requirements”); Kennedy v. Commonwealth Edison Co., 410 F.3d 365,

374 (7th Cir. 2005) (noting that the plaintiffs’ discretion may be

channeled by applicable regulations without defeating the existence

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of sufficient discretion).

The plaintiffs repeatedly have emphasized all of the

matters about which they had no authority and exercised no

discretion, primarily those involving their employers’ finances and

contractual obligations. In both John Alden and Cash, however, the

respective plaintiffs had similar restrictions. “[W]hether the

employee has authority to commit the employer in matters that have

significant financial impact” is a factor that the regulations

instruct us to consider, 29 C.F.R. § 541.202(b); it is not,

however, a requirement that must be satisfied to demonstrate that

an employee exercises independent judgment. The regulations

likewise provide that an employee’s discretionary actions need not

“have a finality that goes with unlimited authority and a complete

absence of review.” Id. § 541.202(c). The fact that, after

engaging a potential client and arriving at a proposed agreement

for a banquet, the sales managers submitted the proposal to

management for approval does not, therefore, detract from the

judgment that was exercised in arriving at the proposal in the

first instance.10

For this reason, we are not persuaded by the plaintiffs’ 10

arguments that the district court failed to consider “powerful,

uncontroverted evidence,” Appellants’ Br. 33, in their favor in the

form of the affidavit of a former supervisor, Jennifer Gullins. As

with much of the plaintiffs’ argument before this court, the

Gullins affidavit tells the court much of what the plaintiffs did

not do, but does not provide substantial assistance in determining

what the plaintiffs daily activities included and whether, in

performing those duties, the plaintiffs exercised discretion.

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The plaintiffs rest their argument in large part on the

recent decision of the Second Circuit in In re Novartis Wage & 

Hour Litigation, 611 F.3d 141 (2d Cir. 2010). According to the

plaintiffs, Novartis establishes that the function of a court

reviewing the discretion prong is to “analyz[e] all ten factors set

forth in 29 C.F.R. § 541.202(b).” Appellants’ Br. 36. We disagree

that Novartis suggests broadly that a simple evaluation of the

regulation’s exemplary list of factors to be considered among “all

the facts involved in the particular employment situation in which

the question arises” provides a determinative answer to the

ultimate question whether an employee exercises discretion. See 29

C.F.R. § 541.202(b); id. (noting that the “[f]actors to consider

. . . include, but are not limited to” the ten listed items). In

our view, Novartis did not suggest a new methodology; it simply

emphasized that, on the facts before it, the employer had not shown

that the employees exercised meaningful discretion. Although it

identified the factors specifically listed in the regulation, the

court went on to evaluate the specific tasks identified by the

employer as discretionary and found none sufficient to warrant the

application of the administrative exemption. Indeed, the preamble

to the current regulations identifies a host of factors, other than

those listed in the regulations themselves, that courts have found

sufficient to demonstrate that employees exercise independent

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judgment. We decline to impose an unnecessary rigidity on the 11

circumstance-specific analysis called for in the regulations.

Finally, we conclude that the record firmly establishes

that the matters about which the sales managers exercised

discretion are matters of significance to the employer. See 29

C.F.R. § 541.200(a)(3). As was the case in John Alden, the sales

and customer service position that each plaintiff occupied is

integral to the functioning of the employers’ businesses. The

sales managers were the face of the businesses to prospective

clients, and the judgment that they exercised concerned how best to

represent the employers and to develop a proposal that would

attract the prospective clients to a contract with the venues. 

In sum, the record in this case reveals that the

plaintiffs exercised adequate discretion to come within the

boundaries of our precedents and the guidance from the Department

of Labor. The district court properly concluded that, under the

law of this circuit, the plaintiffs were exempt administrative

See 69 Fed. Reg. at 22144 (identifying as other relevant 11

considerations an “employee’s freedom from direct supervision,

personnel responsibilities, troubleshooting or problem-solving

activities on behalf of management, use of personalized

communication techniques, authority to handle atypical or unusual

situations, authority to set budgets, responsibility for assessing

customer needs, primary contact to public or customers on behalf of

the employer, the duty to anticipate competitive products or

services and distinguish them from competitor’s products or

services, advertising or promotion work, and coordination of

departments, requirements, or other activities for or on behalf of

employer or employer’s clients or customers”).

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employees.

D. State Causes of Action

The plaintiffs acknowledge that their state law claims

are “dependent upon and derivative of” their FLSA claims. 

Appellants’ Br. 15 n.5. Our disposition of their FLSA claims on

the merits resolves the state claims as well. See Cash, 508 F.3d

at 686-87; Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 40 (1st

Cir. 1999).

Conclusion

We conclude that the plaintiffs appropriately were

classified as exempt administrative employees for the purposes of

the FLSA and relevant state overtime laws. We therefore affirm the

district court’s entry of summary judgment on the wage claims for

the defendant.

AFFIRMED.

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