17-1219 

Sydney v. Time Warner Entm’t-Advance/Newhouse P’ship 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New 

York, on the 4th day of October, two thousand eighteen. 

 

PRESENT: GERARD E. LYNCH, 

 CHRISTOPHER F. DRONEY, 

 Circuit Judges, 

 WILLIAM K. SESSIONS III, 

District Judge.

*

________________________________________________ 

JEFFREY SYDNEY AND STEPHEN CAPOUSIS, ON 

BEHALF OF THEMSELVES AND OTHERS 

SIMILARLY SITUATED, 

Plaintiffs-Appellants, 

v. No. 17-1219 

TIME WARNER ENTERTAINMENTADVANCE/NEWHOUSE PARTNERSHIP, 

Defendant-Appellee, 

TIME WARNER CABLE, INC., 

 Defendant.**

 

*

 Judge William K. Sessions III, of the United States District Court for the District of Vermont, sitting by 

designation. 

** The clerk of court is directed to amend the caption as set forth above.
2

________________________________________________ 

FOR PLAINTIFFS-APPELLANTS: MATTHEW J. BLIT, Levine & Blit, PLLC, New 

York, NY. 

FOR DEFENDANT-APPELLEE: MICHAEL KABAT (J. Scott Carr, on the brief),

Kabat Chapman & Ozmer LLP, Atlanta, GA.

Appeal from a March 28, 2017, judgment of the United States District Court for the 

Northern District of New York (Scullin, J.). 

 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is VACATED, and the case is 

REMANDED for proceedings consistent with this order. 

 Plaintiffs-Appellants Jeffrey Sydney and Stephen Capousis appeal from an order of 

the United States District Court for the Northern District of New York (Scullin, J.) entered 

March 28, 2017, granting summary judgment in favor of Defendant-Appellee Time Warner 

Entertainment-Advance/Newhouse Partnership (“TWEAN”) on all of plaintiffs’ claims. 

We assume the parties’ familiarity with the underlying facts, the procedural history of the 

case, and the issues on appeal. 

Sydney and Capousis were formerly employed by TWEAN as Territory Sales 

Representatives (“TSRs”). TWEAN—now dissolved—was a subsidiary of Time Warner 

Cable, Inc. TWEAN provided cable television, internet, and telephone services in the 

Syracuse, New York area. On appeal, Plaintiffs challenge only the grant of summary 

judgment with respect to their claims for unpaid overtime arising under the Fair Labor 

Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).1 Specifically, Plaintiffs 

argue that the district court erred in concluding on summary judgment that they were 

exempt from the FLSA and NYLL’s overtime provisions because they were “outside 

salesm[e]n.” See 29 U.S.C. § 207(a)(1); 12 N.Y. Comp. Codes R. & Regs. § 142-2.2. We 

agree. 

 We review de novo the district court’s grant of summary judgment. Kuebel v. Black 

& Decker Inc., 643 F.3d 352, 358 (2d Cir. 2011). Summary judgment is warranted “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it 

“might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). 

 

1

 Accordingly, they have abandoned any challenges to the district court’s grant of summary judgment with 

respect to their other claims. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995). 
3

In ruling on a motion for summary judgment, the court “construes the evidence in 

the light most favorable to the non-moving party, and draw[s] all reasonable inferences in 

its favor.” Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 

2003). “[T]he judge must ask . . . not whether . . . the evidence unmistakably favors one[] 

side or the other but whether a fair-minded jury could return a verdict for the plaintiff on 

the evidence presented.” Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) 

(first, second, and third alterations in original) (quoting Anderson, 477 U.S. at 252). 

“Assessments of credibility and choices between conflicting versions of the events are 

matters for the jury, not for the court on summary judgment.” Rule v. Brine, Inc., 85 F.3d 

1002, 1011 (2d Cir. 1996). 

 Subject to certain exemptions, the FLSA and NYLL require employers to pay 

overtime to employees who work more than 40 hours per week. See 29 U.S.C. § 207(a)(1); 

12 N.Y. Comp. Codes R. & Regs. § 142-2.2. Relevant here is the provision that “any 

employee employed . . . in the capacity of outside salesman” is exempt from FLSA and 

NYLL overtime rules.2

 See 29 U.S.C. 213(a)(1) (FLSA outside salesman exemption); 12 

N.Y. C.R.R. § 142-2.2 (adopting most FLSA exemption categories, including outside 

salesman). An outside salesperson is defined as an employee 

(1) Whose primary duty is: (i) making sales within the meaning of section 

3(k) of the Act, or (ii) obtaining orders or contracts for services or for the use 

of facilities for which a consideration will be paid by the client or customer; 

and 

(2) Who is customarily and regularly engaged away from the employer’s 

place or places of business in performing such primary duty. 

29 C.F.R. § 541.500(a)(1)–(2).3

 The term “primary duty” means “the principal, main, major or most important duty 

that the employee performs.” 29 C.F.R. § 541.700(a). “Determination of an employee’s 

primary duty must be based on all the facts in a particular case, with the major emphasis 

on the character of the employee’s job as a whole.” Id. To determine an employee’s 

primary duty, courts consider the following non-exhaustive list of factors: 

 

2

 In the district court, TWEAN argued that Sydney and Capousis were also exempt as employees of retail 

or service establishments. See 29 U.S.C. § 207(i); 12 N.Y. Comp. Codes R. & Regs. § 142-2.2. The district 

court did not address this argument, and TWEAN does not raise it as an alternate ground for affirmance on 

this appeal. We express no opinion as to the merits of this argument. 

3

 “‘Sale’ or ‘sell’ includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or 

other disposition.” 29 U.S.C. § 203(k). 
4

[1] the relative importance of the exempt duties as compared with other types 

of duties; [2] the amount of time spent performing exempt work; [3] the 

employee’s relative freedom from direct supervision; and [4] the relationship 

between the employee’s salary and the wages paid to other employees for the 

kind of nonexempt work performed by the employee. 

Id.; see also Gold v. N.Y. Life Ins. Co., 730 F.3d 137, 14546 (2d Cir. 2013) (applying 29 

C.F.R. § 541.700 to analyze employee’s claim for overtime wages). 

The second factor—the amount of time spent performing exempt work—“can be a 

useful guide in determining whether exempt work is the primary duty of an employee.” 29 

C.F.R. § 541.700(b). Generally, an employee who spends the majority of his or her time 

performing exempt work is exempted, although “time alone . . . is not the sole test.” Id. 

When evaluating “primary duty” in the “outside sales” context, 

work performed incidental to and in conjunction with the employee’s own 

outside sales or solicitations, including incidental deliveries and collections, 

shall be regarded as exempt outside sales work. Other work that furthers the 

employee’s sales efforts also shall be regarded as exempt work including, for 

example, writing sales reports, updating or revising the employee’s sales or 

display catalogue, planning itineraries and attending sales conferences. 

Id. § 541.500(b). 

Whether an employee is exempt is “a mixed question of law and fact.” Myers v. 

Hertz Corp., 624 F.3d 537, 548 (2d Cir. 2010). “The question of how the [employees] 

spent their working time . . . is a question of fact.” Icicle Seafoods, Inc. v. Worthington, 

475 U.S. 709, 714 (1986). “The question whether their particular activities excluded them 

from the overtime benefits of the FLSA is a question of law . . . .” Id. Accordingly, in 

deciding whether to grant a defendant-employer’s motion for summary judgment on the 

ground that the plaintiff-employee is exempt from the FLSA’s overtime provision, the 

court must first construe the evidence regarding how the employee spent his or her time in 

the light most favorable to the employee (the non-moving party). The court must then 

determine, as a matter of law, whether—for purposes of deciding the motion for summary 

judgment—the exemption applies on those facts. 

We conclude that the district court erred in holding on summary judgment that 

Plaintiffs’ primary duties were exempt sales, as opposed to non-exempt installations, and 

accordingly in its ultimate conclusion that the outside sales exemption applied.4

 

 

4

 We emphasize that our conclusion is applicable only to TWEAN’s motion for summary judgment. We 

express no view whether, after fact-finding by a jury regarding Plaintiffs’ job duties, Plaintiffs may 

ultimately be determined to be exempt employees. 
5

According to Sydney and Capousis, their duties as TSRs “were primarily the 

physical installation of cable, internet, and telephone equipment at Multiple Dwelling Units 

(‘MDU[s]’),” App. 847, 854. MDUs are typically apartment complexes. TSRs were 

assigned to, and were responsible for, inter alia, developing and maintaining positive 

relationships with the leasing agents and management at the MDUs to which they were 

assigned. At the first meeting with building management, TSRs explained to management 

what services TWEAN could provide to the tenants. TSRs provided their contact 

information to MDU managers, along with business cards and promotional materials, and 

asked the managers to have their tenants call them to place orders for TWEAN services. 

In order to maintain good relationships, the TSRs would meet with managers at their MDUs 

about once per week for a few minutes. TSRs also occasionally hosted events such as pizza 

parties for MDU tenants in order to ensure that tenants were having a positive experience 

with their TWEAN products, although such events were rare. 

Tenants at MDUs could contact TSRs directly, via telephone, to order TWEAN 

services. During the calls, TSRs would attempt to have customers sign up for as many 

services and “bundles” of television programming and internet service as possible. If a 

customer agreed to purchase TWEAN services, the installation of the service could proceed 

in one of three ways: (1) the tenant would receive a self-installation kit; (2) the TSR would 

deliver the equipment and perform the installation; or (3) the TSR would have a technician 

perform the installation. If the installation involved complicated wiring issues or required 

climbing a poll or ladder to activate service, TSRs were unable to perform the installation, 

and would have to call a technician. 

 According to Sydney, he worked between 50 and 70 hours per week, working 

Monday through Saturday. On a typical day, he would go into TWEAN’s office between 

8:30 and 9:00 am, catch up on paperwork and check phone messages. At approximately 

10:00 am, he would go to the warehouse, pick up the equipment he needed for the day’s 

installations, and then go out to perform the installations. He typically performed five to 

ten installations per day, depending on the time of year. Installations could take from 30 

minutes to several hours, and would usually take at least an hour. Additionally, Sydney 

would typically receive two to three calls per week from MDU managers asking for him to 

troubleshoot customer issues at individual apartments; troubleshooting those issues would 

typically take between 30 and 90 minutes. 

Similarly, Capousis would arrive at TWEAN’s office between 8:00 and 8:30 am. 

The first “few” hours of his day were spent attending sales meetings, responding to emails, 

and returning phone calls. Afterwards, he would go to the warehouse, pick up the 

equipment needed for that day’s installations, and perform installations at his MDUs. Like 

Sydney, he performed five to ten installations per day (lasting 30 minutes to several hours), 

in addition to troubleshooting tenant problems. Capousis worked between 55 and 70 hours 

per week. 
6

Accordingly, drawing all reasonable inferences in favor of Sydney and Capousis, a 

reasonable factfinder could conclude that they spent the majority of their time at work 

performing non-exempt work, i.e., installations. Although “[t]ime alone . . . is not the sole 

test” for resolving the “primary duty” inquiry, the amount of time that an employee spends 

performing exempt work “can be a useful guide in determining whether exempt work is 

the primary duty of an employee.” 29 C.F.R. § 541.700(b). “Thus, employees who spend 

more than 50 percent of their time performing exempt work will generally satisfy the 

primary duty requirement.” Id. The inverse must also be true: employees who spend most 

of their time performing non-exempt work generally do not satisfy the primary duty 

requirement. 

 Although it is generally the case that when an employee spends more time 

performing non-exempt work as opposed to sales, his “primary duty” is not sales, it is not 

always the case; accordingly, we must examine whether factors other than “time spent” 

warrant a finding that Plaintiffs are exempt salespersons. Turning to other factors 

enumerated in 29 C.F.R. § 541.700(a), the evidence, construed in Plaintiffs’ favor, does 

not support a conclusion that Plaintiffs’ sales duties were more important than their 

installation duties. Of course, growing their customer base and convincing existing 

customers to purchase additional services is undoubtedly paramount to TWEAN; however, 

their installation duties were also consequential. We do not find the direct supervision 

factor helpful, as one would expect both salespersons and installation technicians to be 

relatively free from direct supervision while out of the office. Finally, installation 

technicians performing similar work to TSRs’ non-exempt work—i.e., installation work—

were paid hourly wages and received overtime, which weighs in favor of Plaintiffs’ 

position that they are non-exempt. 

Our analysis does not end here, for the factors enumerated in 29 C.F.R. § 541.700(a) 

are illustrative, not exhaustive. Indeed, “[d]etermination of an employee’s primary duty 

must be based on all the facts in a particular case, with the major emphasis on the character 

of the employee’s job as a whole.” Id. 

Plaintiffs provided additional information (not considered by the district court) 

about the labor required to complete the installations which, when construed in Plaintiffs’ 

favor, is more consistent with the work of an installer than that of a salesperson. Prior to 

beginning employment in the position, TSRs received a week of safety, equipment, and 

installation training. Oftentimes when performing installations, TSRs had to clear snow or 

go through crawl spaces or cubby holes in order to access the main cable box in the 

building. In older units, TSRs had to run coaxial wires through different rooms in an 

apartment unit, including up flights of stairs. Additionally, the equipment they were 

required to carry could be quite heavy. TSRs typically brought the following tools with 

them to perform installations: wrenches, wire cutters, wire, tuners, screwdrivers, pliers, 

claw hammers, tools to strip wires, cable toners, tools to crimp wires, utility knives, 
7

flashlights, a terminator tool, and safety equipment. Moreover, during installations, they 

had to wear a hard hat and safety glasses, and use a voltage detector. 

The district court also failed to consider evidence regarding TWEAN’s “Direct 

Sales Representatives” (“DSRs”). DSRs were tasked with making door-to-door sales to 

potential TWEAN customers, as well as encouraging existing TWEAN customers to 

purchase additional services. Significantly, DSRs conducted door-to-door sales activity in 

MDUs assigned to TSRs. DSRs did not perform installations. By contrast, according to 

Plaintiffs, the TSRs did not directly solicit customers or make door-to-door sales. Drawing 

all inferences in favor of Plaintiffs, the presence of DSRs at the MDUs assigned to TSRs 

undercuts TWEAN’s argument that TSRs’ primary duty at MDUs was sales. 

 It is true that the majority of Plaintiffs’ income came from commissions, which is 

an income structure more typical for a salesperson than someone primarily performing 

installations. However, a significant portion of their commission payments were actually 

payments for installations that they performed. For example, they received $5.00 for 

installing a customer’s cable and $10.00 for installing a modem. There is a dispute 

regarding whether Plaintiffs would be credited with the sale for purposes of calculating 

their commission if they did not personally perform the installation. Plaintiffs’ position 

that they would not be credited with a sale if they did not perform the installation is 

arguably supported by an August 2, 2011, email detailing an incident in which Capousis 

claimed to have made a sale, but was not credited with the sale. Instead, the employee who 

performed the installation received credit for the sale. Since this case is before us on 

TWEAN’s motion for summary judgment, we must assume that the jury will resolve this 

factual dispute in Plaintiffs’ favor. 

In arguing that notwithstanding the above-referenced evidence, Plaintiffs’ primary 

duty were sales, TWEAN, citing 29 C.F.R. § 541.500(b), argues that Plaintiffs’ installation 

work was merely incidental to their sales work, and therefore also exempt work. However, 

drawing all reasonable inferences in favor of Plaintiffs and in light of the evidence 

described above, we cannot conclude, as a matter of law, that the installations conducted 

by the TSRs were merely incidental to their sales efforts. 

In sum, construing the evidence in the light most favorable to Plaintiffs—as we must 

for purposes of summary judgment only—their primary duties were installations, not sales. 
8

Accordingly, the judgment of the district court is VACATED, and the case is 

REMANDED for proceedings consistent with this order, as there are genuine disputes of 

material facts regarding Plaintiffs’ job duties.5

 FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court 

 

5

 We need not address Plaintiffs’ argument that their sales work was carried out over the telephone and that 

accordingly, they were not “customarily and regularly engaged away from the employer’s place or places 

of business in performing such primary [sales] dut[ies].” 29 C.F.R. § 541.500(a)(2). We leave that for 

resolution in the district court.