NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0802n.06
Case No. 13-2699
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

# N RLED JOSEPH LITTLE, 

### ) 

# II Oct 23, 2014 

### ) DEBORAH S. HUNT, Clerk Plaintiff-Appellant, 

### ) ____________________________



### ) ON APPEAL FROM THE v. 

### ) UNITED STATES DISTRICT 

### ) COURT FOR THE EASTERN BELLETIRE DISTRIBUTORS, iNC., 

### ) DISTRICT OF MICHIGAN 

### ) Defendant-Appellee. 

### ) ) ) OPINION
BEFORE: MOORE and McKEAGUE, Circuit Judges; STAFFORD District Judge.* PER CURIAM. PlaintiffJoseph Little appeals the district court’s grant of summary judgment in favor ofhis employer, Defendant Belle Tire Distributors, Inc. Little brings this action under the Fair Labor Standards Act, 29 U.S.C. 

### § 201, et seq., seeking unpaid overtime compensation. Forthe reasons thatfollow, we vacate the order granting summaryjudgment and remandforfurtherproceedings. I. Belle Tire hired Little in June 2006 as a tire technician. Little was promoted to First Assistant Manager in February 2009. Little has been First Assistant Manager at several Belle Tire stores in Michigan. As First Assistant Manager, Little is on salary and currently makes

* The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern DistrictofFlorida, sitting by designation.CaseNo. 13-2699 Little v. Belle Tire $1,100 semimonthly after a raise in 2011. Little is also eligible for monthly and yearly bonuses basedon storeperformance. Belle Tire’sjob description states that a First Assistant Manager must show proficiency in “Professional Selling Skills,” “inventory control and pricing,” as well as “knowledge of locationpayroll control.” Thejob descriptionfurther states thataFirstAssistantManager should have “necessary supervisory skills” and “managerial skills” and be “fully knowledgeable” of “hiring andterminationprocedures.” The key evidence in support ofBelle Tire’s motion for summaryjudgment was Little’s deposition. Though Belle Tire provided deposition testimony and sworn declarations from Jeffrey Kruse, a Belle Tire corporate vice-president, Kruse was a member of corporate management and did not work directly with Little. His statements appear to shed light on what First Assistant Managers do generally but not on what Little did in practice. Belle Tire also provided the sworn declarations of 

### two Store Managers, Joseph Prior and Ryan Scaglione. These declarations speak generally about Little’s responsibilities and collectively refer to two interviews and a handful oftraining sessions involving Little. In his deposition, Little testified thatthe two interviews were brief, minute-long exchanges and thatthe training sessions were on topics selected by the company using videos and forms also prepared by the company. On a single occasion Little gatheredtechnicians forafive-minute refresheronteamwork. Ultimately, Belle Tire seeks to paint Little as influential in hiring and as actively leading employee training and other managementtasks. Little, on the other hand, seeks to characterize himselfas a salesmanwhoprovides clerical-typeassistanceto his store manager.

-2-CaseNo. 13-2699 Little v. Belle Tire II. Little appealsthe district court’s grantofsummaryjudgmentin favorofBelleTire. Little claims that the district court erred in granting summaryjudgment because there were genuine issues ofmaterial fact regarding whether Little was an executive or administrator exempt from overtime compensation. We review the district court’s grant of summaryjudgment de novo. Staunch v. Cont‘1 Airlines, Inc., 511 F.3d 625, 628 (6th Cir. 2008). “Inreviewing amotion forsummaryjudgment,
we view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Prebilich-Holland v. Gaylord Entm ‘t Co., 297 F.3d 438, 442 (6th Cir. 2002). In order for a nonmoving party to survive summaryjudgment, the party mustpresent specific facts showing atriable issue. Staunch, 511 F.3d at 628. Some employees are not eligible for overtime compensation under the FLSA because they fall within certain exemptions to the FLSA. 29 U.S.C. 

### § 213. The district courtfound that Little fell within the executive exemption and, alternatively, the administrative exemption. Id. 

### § 213(a)(1). Exemptions “are to be narrowly construed against the employers seeking to assert them.” Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007) (quoting Arnoldv. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). Although the defendant must prove by “clear and affirmative evidence” that an employee falls within an exemption, the evidentiary burden ofsummaryjudgmentremains unchanged. Thomas, 506 F.3d at 502 (quoting Renfro v. IndianaMichiganPower Co., 497 F.3d 573, 576 (6th Cir. 2007)).

-3-CaseNo. 13-2699 Little v. Belle Tire III. Section 207 ofthe FLSA requires overtime compensation, but “section 207

... shall not apply with respect to

... any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. 

### § 213(a)(1). “Executive” is defined as an employee: (1) “Compensated on a salary basis at a rate ofnot less than $455 perweek;” (2) “Whose primary duty is management of the enterprise in which the employee is employed or ofa customarily recognized department or subdivision thereof;” (3) “Who customarily and regularly directs the workoftwo ormore otheremployees;” and (4) “Who has the authorityto hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are givenparticularweight.” 29 C.F.R. 

### § 541.100. There is no dispute thatLittle meets the first statutory factorbecause he makes a salary of
more than $455 per week. However, genuine disputes do exist regarding the other factors. Though it is clear Little played some role in interviewing job candidates, preparing work schedules, and conducting training, questions remain concerning the exact nature ofthe work Little performed and the level ofdiscretion thatLittle exercised. Such questions are suitable for
a factfinder’s determination. See Henry v. Quicken Loans, Inc., 698 F.3d 897, 901 (6th Cir. 2012) (citing Maestas v. Day & Zimmerman, LLC, 664 F.3d 822, 829 (10th Cir. 2012) (concluding that the primary-duty determination is a factual one suitable for factfinder)). For example, though Prior averred that Little “was often responsible for running the work order board,” Little testifiedthat every salespersonwho worked atthe counterhad equal responsibility for placingjobs on the work order board. Further, transcribing customer requests and placing them on aworkboard does notnecessarily involve an act ofdiscretion or any supervision ofthe technician fulfilling a request. As a second example, though Little didprepare the weekly work schedule, Little also testified thatpreparing the schedule was a clerical, nondiscretionarytask— inputting requested time-off into a default schedule and submitting that schedule to a Store -4-CaseNo. 13-2699 Little v. Belle Tire Manager for approval. Because Little introduced testimony suggesting his job functions were clerical or otherwise highly circumscribed by his supervisor, we cannot say the record clearly and affirmatively establishesthatLittle fellwithinthe executive exemption. Iv. The administrative exemptionapplies when an employeemeets the followingfactors: (1) Compensated on a salary or fee basis at a rate ofnot less than $455 perweek (2) Whose primary duty is the performance of office or non-manual work directly relatedto the management orgeneral business operations ofthe employer orthe employer’s customers; and (3) Whose primary duty includesthe exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R. 

## § 541.2009(a)(2). The salary factor is undisputed; however, genuine disputes exist over the other factors. The FLSA regulations explicitly provide that “selling a product in a retail or service establishment” is not “work directly related to the managementor general business operations of the employer.” Id. 

## § 541.201(a). Although Little engages in office and non-manual tasks such
as typing up the schedule and preparingpurchase orders, Little testified thathe spends eighty to ninety percent of his time engaged in sales duties. Time spent on a task is not the sole determinant ofaprimary duty, butthe factthatLittle spentthe vastmajority ofhis time on tasks he could not do concurrently with administrative tasks creates a genuine dispute as to whether his administrative responsibilities were his “primary duty.” Additionally, Little’s deposition— the most detailed account of his day-to-day activities—suggests that Little’s discretion was highly constrained. For example, Little testified that he submitted purchase orders but that the vendors were chosen by Belle Tire and that quantities were based on stock levels in the store or
were decidedby corporate management.

-5-CaseNo. 13-2699 Little v. Belle Tire V. Accordingly, we VACATEthejudgment ofthe district court and REMAND the case for furtherproceedings.

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