*

The Honorable Kathleen McDonald O’Malley, United States District Judge for the Northern District of Ohio,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0267p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

KURT RENFRO; WILLIAM SOUTHWORTH; RICHARD

PETERSON; JAMES FITCHUK, individually and as

Class Representatives on behalf of other persons

similarly situated,

Plaintiffs-Appellees,

v.

INDIANA MICHIGAN POWER COMPANY, d/b/a

American Electric Power,

Defendant-Appellant.

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No. 06-1935

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 99-00877—Wendell A. Miles, District Judge.

Argued: April 17, 2007

Decided and Filed: July 18, 2007 

Before: ROGERS and COOK, Circuit Judges; and O’MALLEY, District Judge.*

_________________

COUNSEL

ARGUED: Joseph J. Vogan, VARNUM, RIDDERING, SCHMIDT & HOWLETT, Grand Rapids,

Michigan, for Appellant. Stephen D. Turner, CLARK HILL, Grand Rapids, Michigan, for

Appellees. ON BRIEF: Joseph J. Vogan, Peter A. Smit, Elizabeth Wells Skaggs, VARNUM,

RIDDERING, SCHMIDT & HOWLETT, Grand Rapids, Michigan, for Appellant. Stephen D.

Turner, Gregory N. Longworth, CLARK HILL, Grand Rapids, Michigan, for Appellees.

COOK, J., delivered the opinion of the court, in which ROGERS, J., joined. O’MALLEY,

D. J. (p. 6), delivered a separate dissenting opinion. 

_________________

OPINION _________________

1
No. 06-1935 Renfro, et al. v. Indiana Michigan Power Co. Page 2

COOK, Circuit Judge. This case requires us to consider for the second time whether certain

American Electric Power (AEP) employees are exempt from the Fair Labor Standards Act’s (FLSA)

overtime regulations. In Renfro v. Ind. Mich. Power Co. (Renfro I), 370 F.3d 512 (6th Cir. 2004),

we held that the regulations did not apply to AEP planners. Applying the same analysis to AEP’s

technical writers, we conclude that they too are exempt from overtime regulations. We reverse and

remand with instructions to enter summary judgment in favor of AEP.

I

AEP operates several nuclear power plants, including the Cook Plant in Bridgman, Michigan,

where the plaintiffs are employed. Technical writers support the plant’s maintenance department

by developing written procedures on how to maintain equipment. They create new procedures,

change existing procedures as needed, and review plant documents for their impact on established

procedures. In these and other responsibilities, the technical writers work without constant

supervision, and their assignments are not doled out step-by-step by their supervisors.

Prior to drafting a procedure—a technical writer’s primary role—she first consults numerous

sources, including vendor manuals, technical specifications, EPRI guides, INPO operating

experiences, NCR bulletins, industry standards, and colleagues in other departments (mainly

engineering), to determine how to maintain a particular piece of equipment. The writer compares

different ways to address a problem and chooses one based upon her assessment of the available

information. When confronted with a novel maintenance obstacle, a writer determines how best to

remove that obstacle and memorializes her proposed solution into a draft procedure, which is peer

reviewed by another department.

The writer then writes a procedure incorporating her solution and has wide latitude to

determine how to do so. If someone from another department within the plant believes a procedure

is needed, or believes changes are needed to an existing procedure, that person addresses the

technical writer directly. Should the writer determine that the change is appropriate, she may

implement it into the existing procedures without approval from her supervisor.

The technical writers also work without direct supervision in drafting a new procedure. AEP

has, however, developed a manual on procedure writing. It explains the purpose of the different

types of procedures, provides definitions and abbreviations for various technical terms, outlines and

explains the structure of each type of procedure, prescribes format and style, and dictates the

sequence of certain sections. Attached to the manual is a writing guide that provides basic grammar

instruction and explains AEP’s standard template for page layout and numbering. The manual does

not, though, restrict a technical writer’s discretion to determine the level of detail a procedure needs.

The technical writers were once paid for overtime (as a bonus) despite being classified as

exempt. After the Cook Plant went through a restructuring and a shutdown, AEP stopped paying

the writers overtime, and the writers brought this suit. AEP and the writers cross-moved for

summary judgment on the issue of whether the writers were properly classified as exempt. The

district court denied AEP’s motion and granted the writers’ motion, holding that the writers do not

exercise sufficient discretion and independent judgment to qualify as exempt under FLSA

regulations. After a bench trial, the district court further ruled that AEP was not entitled to the goodfaith defense and awarded the writers liquidated damages. AEP appealed the denial of summary

judgment and the trial court’s judgment on the good-faith defense.
No. 06-1935 Renfro, et al. v. Indiana Michigan Power Co. Page 3

1

Administrative employees are exempt from the FLSA’s overtime requirements. See 29 U.S.C. § 213(a)(1).

An administrative employee must (1) be salaried “at a rate of not less than $455 per week,” (2) primarily perform “office

or non-manual work directly related to the management or general business operations of the employer or the employer’s

customers,” and (3) “exercise . . . discretion and independent judgment with respect to matters of significance.” 29

C.F.R. § 541.200(a). 

2

The current regulations, which went into effect on August 23, 2004, require employers to pay exempt

employees at least $455 per week. 29 C.F.R. § 541.200. The parties do not dispute that the writers’ salaries, generally

between $1200 and $1700 per week, exceed the regulatory minimum. Furthermore, we need not decide whether to apply

the current set of regulations or the pre-2004 regulations. Our decision would be the same under either set.

II

A

We review de novo a district court’s disposition of a motion for summary judgment. See,

e.g., Stephenson v. Allstate Ins. Co., 328 F.3d 822, 826 (6th Cir. 2003). “Summary judgment is

appropriate if, after examining the record and drawing all inferences in the light most favorable to

the non-moving party, there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” Martin v. Ind. Mich. Power Co., 381 F.3d 574, 578 (6th

Cir. 2004) (citing Fed. R. Civ. P. 56(c)).

We narrowly construe against AEP the administrative employee exemption1

 as applied to

the technical writers. See Renfro I, 370 F.3d at 515 (citing Arnold v. Ben Kanowsky, Inc., 361 U.S.

388, 392 (1960)). In Renfro I, we required AEP to “establish each element of the exemption by a

preponderance of the clear and affirmative evidence.” Id. (citing Ale v. TVA, 269 F.3d 680, 691 n.4

(6th Cir. 2001)). Two panels of this court have questioned the meaning of the phrase “clear and

affirmative evidence.” See Acs v. Detroit Edison Co., 444 F.3d 763, 767 (6th Cir. 2006); Martin, 381 F.3d at 578 n.1. The phrase appears to have its genesis in the Tenth Circuit, though even there

it went unexplained save a general citation to Walling v. General Industries Co., 330 U.S. 545,

547-48 (1947). See, e.g., Donovan v. United Video, Inc., 725 F.2d 577, 580-81 (10th Cir. 1984)

(citing Walling). Walling, however, does not raise the evidentiary burden; it merely clarifies that

the applicability of an FLSA exemption is an affirmative defense. 330 U.S. at 547-48; see also

Clark v. J. M. Benson, Co., 789 F.2d 282, 286 (4th Cir. 1986). The Walling Court also noted that

the district court was not “clearly wrong,” citing Fed. R. Civ. P. 52(a)’s requirement that a district

court’s finding of fact after a bench trial be upheld unless clearly erroneous. Walling, 330 U.S. at

550 & n.8 (emphasis added).

We clarify here that the phrase “clear and affirmative evidence” does not heighten AEP’s

evidentiary burden when moving for summary judgment. The word “clear,” as used in this phrase,

traces to the “clearly erroneous” Rule 52(a) standard, but that standard is inapposite to our current

review of a motion for summary judgment. And because establishing the applicability of an FLSA

exemption is an affirmative defense, AEP has the burden to establish the following elements by a

preponderance of the evidence: “(1) that it pays the [technical writers] at least $250 per week on

a salary or fee basis; (2) that the [technical writers’] primary duty consists of office or nonmanual

work directly related to AEP’s management policies or general business operations; and (3) that the

[technical writers’] primary duty requires them to exercise discretion and independent judgment.”

Renfro I, 370 F.3d at 516.2

The district court held that AEP had satisfied the first two elements of the test but not the

third. Neither party disputes that the first element is met. The employees perfunctorily claim that

the district court also erred in finding for AEP on the second element, but make no attempt to

develop this argument. We will not consider this argument. See Meridia Prods. Liab. Litig. v.

Abbott Labs., 447 F.3d 861, 868 (6th Cir. 2006) (“Issues adverted to in a perfunctory manner,
No. 06-1935 Renfro, et al. v. Indiana Michigan Power Co. Page 4

3

We agree with the technical writers’ contention that this is their primary duty.

unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient

for a party to mention a possible argument in the most skeletal way, leaving the court to put flesh

on its bones.” (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997))). All that

remains for us to decide then is whether the technical writers’ primary duty—writing

procedures3—requires that they exercise sufficient discretion and independent judgment to exempt

them from the FLSA’s overtime requirements.

B

Essentially, the technical writers contend that because AEP has rigid procedures for how to

craft maintenance procedures, the writers are simply applying skills rather than exercising discretion

and independent judgment. In Renfro I, however, we rejected the planners’ similar argument “that

the heavily-regulated nature of their primary job duty prohibits their exercise of discretion and

independent judgment.” 370 F.3d at 519. Despite the procedure-driven nature of the planners’

work, “[t]he process of generating repair work packages is neither wholly mechanical nor restricted

to ‘merely applying knowledge in following prescribed procedures.’” Id. (quoting 29 C.F.R.

§ 541.207(c)(1)).

We apply the same reasoning to the technical writers. They do not work under constant

supervision and, when preparing a procedure, select the best method to maintain the plant’s

equipment. Their job requires them to create a clear and understandable set of highly technical

instructions for maintaining the electrical and mechanical systems of a particular piece of equipment.

Looking to various source materials for some of the technical information and using a computer to

aid research and recommendations does not detract from the import of the discretion and

independent judgment exercised. Channeling discretion through a manual on procedure writing does

not eliminate the existence of that discretion.

To determine whether an employee, constrained by guidelines and procedures, actually

exercises any discretion or independent judgment, see id.; see also Reich v. John Alden Life Ins. Co., 126 F.3d 1, 14 (1st Cir. 1997); Haywood v. N. Am. Van Lines, 121 F.3d 1066, 1073 (7th Cir. 1997),

we consider whether those guidelines and procedures contemplate independent judgment calls or

allow for deviations, Schaefer v. Ind. Mich. Power Co., 358 F.3d 394, 404 (6th Cir. 2004). Neither

the technical writers’ manual nor the daily realities of their work environment eliminates their use

of considerable discretion or independent judgment.

The manual provides a guideline on how to develop a procedure, not an encyclopedia of

strict requirements. It does not answer substantive questions that might arise during the research,

analysis, and development of a procedure; nor does it restrict the technical content of the instructions

that are formatted by the general template. Rather, it outlines various items for the writer to consider

when researching and drafting a procedure and recommends certain checks to ensure the feasibility

of a procedure once written. The writer is free to judge whether, based on her experience, she needs

to perform these checks. The manual ensures uniformity of the style and format of the technical

writers’ procedures, but not their content.

The approach taken by one technical writer to create a complex procedure often differs from

that of another technical writer creating a similar procedure. As Plaintiffs’ own witness testified in

his deposition, two different writers may solve the same problem two different ways, even though

both solutions are equally effective. AEP could assign two different writers to create the same

procedure and receive differing documents—both in level of detail and in approach—that

sufficiently instruct the users of the procedure on how to properly complete the task. It is apparent
No. 06-1935 Renfro, et al. v. Indiana Michigan Power Co. Page 5

to us that any reasonable juror would conclude that the technical writers “actually exercise discretion

and independent judgment.” Renfro I, 370 F.3d at 519.

III

Because we hold that AEP was entitled to summary judgment on its claim that the writers

were properly classified as exempt from the FLSA overtime regulations, we do not reach the issue

of whether AEP is entitled to a good-faith defense.

IV

We reverse the district court’s grant of summary judgment in favor of the writers and its

denial of summary judgment in favor of AEP, vacate the judgment awarding the plaintiffs liquidated

damages, and remand the case to the district court with instructions to enter summary judgment in

favor of AEP.
No. 06-1935 Renfro, et al. v. Indiana Michigan Power Co. Page 6

_________________

DISSENT _________________

KATHLEEN M. O’MALLEY, District Judge, dissenting. I respectfully dissent. The

underlying litigation actually involves three classes of plaintiffs employed by AEP at the Cook

power plant: technical writers, planners, and nuclear specialists. Guided by this Court’s prior

decisions on this precise issue, the district court did a very careful job of analyzing and

differentiating between the three job classifications - each of which AEP considered to be exempt

from the FLSA’s overtime provisions. In determining that, for purposes of the cross-motions

involved in this appeal, the technical writers were non-exempt employees, Senior Judge Wendell

A. Miles had a thorough and well-developed record before him detailing the day-to-day job duties

involved in all three positions. He also had a specialized familiarity with the parties, their counsel,

and the issues involved in this case, having been assigned to similar FLSA litigation involving AEP

and other employees at its nuclear power plants. While Judge Miles ultimately concluded the

technical writers were entitled to overtime wages, he carefully drew distinctions between the writers

and the two classifications of employees he concluded were not entitled to overtime wages - i.e., the

planners and nuclear specialists. Given the district court judge’s detailed familiarity with the

respective job duties, the full record that was developed, and the careful procedure the court

employed, I would defer to the district court’s determination.