IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BILLY BROWN,

Plaintiff,

v.

ALERIS SPECIFICATION ALLOYS, 

INC. and WABASH ALLOYS, LLC,

Defendant.

Case No. 3:14-cv-00041-PPS-CAN

DEFENDANT’S REPLY IN SUPPORT OF ITS

MOTION FOR SUMMARY JUDGMENT

Defendant Aleris Specification Alloys, Inc. (“Aleris”)

1 respectfully submits this Reply in 

Support of its Motion for Summary Judgment. Plaintiff Billy Brown (“Brown”) earned nearly 

$100,000 per year – a regular salary significantly higher than the $455.00 per week required to 

classify him as an executive employee exempt from the overtime provisions of the Fair Labor 

Standards Act (“FLSA”). Aleris did not reduce Brown’s salary based on the number of hours he 

recorded; it only increased his compensation if he worked more than 80 hours in a pay period. 

Brown concedes he “customarily and regularly direct[ed] the work of two or more other 

employees.” Brown’s primary responsibility as a Production Supervisor was management of the 

ingot metal production line, a recognized subdivision within the Wabash facility. Within the 

facility’s union environment, Brown’s personnel recommendations also received significant 

weight. For these reasons, in addition to the arguments included in Aleris’ Brief in Support of its 

 1 Wabash Alloys, LLC, formerly a subsidiary of Aleris International, Inc., was liquidated as part 

of Aleris International, Inc.’s emergence from bankruptcy effective June 1, 2010. Thus, Wabash 

Alloys, LLC no longer exists as a legal entity. In addition, effective February 2015, Aleris 

Specification Alloys, Inc. became known as Real Alloy Specification, Inc. For the purposes of 

this motion, we will refer to the Defendant as “Aleris.”

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 1 of 10
2

Motion for Summary Judgment (Dkt. #31), Aleris properly qualified Brown as an executive 

employee exempt from the overtime provisions of the FLSA and Brown is not entitled to any 

additional compensation. There are no outstanding material factual disputes and Aleris is entitled 

to summary judgment. 

I. ARGUMENT

A. Brown’s responsibilities meet the regulatory definition of management.

Contrary to Brown’s argument, management-level production-line employees are 

expressly identified in the relevant regulation as employees who may properly be classified as 

exempt executives. See 29 C.F.R. § 541.3(a) (“[N]on-management production-line employees . . 

. are entitled to minimum wage and overtime premium pay under the Fair Labor Standards Act.”) 

(emphasis added). Thus, only non-managerial production employees are entitled to hourly and 

overtime compensation. Id. 

Brown’s primary duties were managerial. See 29 C.F.R. § 541.102; Dkt. #31, pp. 12-19; 

Dkt. #33, pp. 3-4. 2 His concurrent performance of manual labor does not affect his exempt 

status, because manual tasks were not his primary responsibility. (Brown Dep. at 123:6-9, Exs. 

E, G; Russell Dep. 20:16-18). He performed physical tasks as a function of his primary 

responsibility, to supervise and ensure the continuing function of the ingot production line. 

(Brown Dep. at 117:13-14, 118:16-119:6; Russell Dep. 19:24-20:3). As a management-level 

Production Supervisor, Brown is expressly excluded from the class of “blue collar” workers

 2 To the extent Brown argues now that his job description is not a reliable record of the duties he 

performed (Dkt. #35, p. 9), his testimony proves otherwise. He confirmed after reviewing his job 

description that it accurately represented the work he performed as a Production Supervisor. 

(Brown Dep. at 50:7-20) (Q: “And is it accurate that the responsibilities included are those 

responsibilities that you performed as a production supervisor?” A: “Yes.”). 

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 2 of 10
3

ineligible for the executive exemption, as described in 29 C.F.R. Section 541.3(a) and Brown’s 

repeated argument to the contrary is unavailing.

B. Brown earned a regular salary well above $455 per week.

An exempt executive employee must receive a salary of at least $455.00 per week 

(approximately $23,000.00 per year). 29 C.F.R. § 541.100(a)(1). An employee is paid on a salary 

basis if “he regularly receives each pay period . . . a predetermined amount constituting all or 

part of his compensation, which amount is not subject to reduction because of variations in the 

quality or quantity of work performed.” Kennedy v. Commonwealth Edison Co., 410 F.3d 365, 

370 (7th Cir. 2005) (emphasis added).

The Kennedy plaintiffs, salaried workers in a nuclear power plant, argued unsuccessfully 

that because the defendant “tracked employee time and sometimes paid the plaintiffs more than 

their listed salaries, the resulting upward fluctuations must mean that they were hourly workers.” 

Id. The court dismissed this argument, holding that additional compensation did not disqualify an 

employee from an exempt status. Rather, consistent with the language in the regulation, only 

reductions from a salary could cause an exemption to be lost. Id. at 370-371. The Kennedy court 

specifically noted “For obvious reasons, the DOL is concerned more with reductions in a salaried 

employee's wages that are correlated with the number of hours worked than it is with increases.” 

Id. at 370-371 (citing Wage-Hour Op. Ltr. No. 1738 (April 6, 1995) (“Extra compensation may 

be paid for overtime to an exempt employee on any basis. The overtime payment need not be at 

time and one-half, but may be at straight time, or at one-half time, or flat sum, or any other 

basis.”).

In Mich. Ass’n of Gov’t Employees v. Mich. Dept. of Corrs., 992 F.2d 82, 84 (6th Cir. 

1993), the Sixth Circuit likewise observed that receiving additional compensation for work in 

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 3 of 10
4

excess of eighty hours in a two-week period “does not jeopardize salaried status as defined by 

the regulations.” 992 F.2d at 84 n.3 (citing Brock v. The Claridge Hotel and Casino, 846 F.2d 

180 (3rd Cir. 1988).

3 The Michigan court noted:

The principal regulation requires that the predetermined amount constitute "all or 

part" of the compensation and specifically prohibits "reduction because of 

variations in the quality or quantity of [the] work performed." 29 C.F.R. § 

541.118(a)(2) (emphasis added). Increases in compensation because of variations 

in quantity of work are not prohibited. Moreover, additional pay at an hourly rate 

for each hour worked beyond an employee's regular schedule is expressly 

permitted by 29 C.F.R. § 541.118(b). 

Id. (emphasis original) (citing York v. City of Wichita Falls, Texas, 944 F.2d 236, 242 (5th Cir. 

1991); Hartman v. Arlington County, Virginia, 720 F. Supp. 1227, 1228 (E.D. Va. 1989), aff'd

on reasoning of lower court, 903 F.2d 290 (4th Cir. 1990)).

Brown’s compensation structure was similar to the unsuccessful plaintiffs’ compensation 

structures in Kennedy and Michigan. As in Kennedy and Michigan, Brown’s salary was not 

calculated on an hourly basis. Instead, the opposite was true: Brown received a set bi-weekly 

salary and his straight hourly rate for time worked over 80 hours in a two week period was 

calculated based on his base salary. (Parson Decl. ¶8). Also as in Kennedy and Michigan, Aleris 

never reduced Brown’s compensation below his regular salary. (Parson Decl. Ex. A). During 

Parson’s deposition, Brown’s counsel presented Parson with one of Brown’s earning statements

from 2008 and asked her to speculate about the relationship between the hours worked and the 

compensation earned on the statement. (Deposition of Joy Parson (“Parson Dep.”) at 11:3-14:2). 

 3 In Brock, the Third Circuit addressed the “reduction” issue discussed in 29 C.F.R. § 

541.100(a)(1). There, plaintiff hotel and casino supervisors were guaranteed a certain number of 

hours at a specific hourly rate to ensure they received the precise amount of wages required to 

qualify for the executive exemption. 846 F.2d at 187. The court determined this method did not 

meet the FLSA’s salary requirement because it was still based on the hourly work the employees 

performed and could be subject to reduction if the employee did not work the minimum number 

of hours. Id. Thus, the minimum hours/wages guarantee’s “status as a salary was illusory.” Id.

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 4 of 10
5

Based on this exchange, Brown attempts to extrapolate that his salary was docked if he did not 

complete a full work week. (Dkt. #36, p. 2).

Brown insists on his position despite Parson’s clarifying testimony and undisputed record 

evidence to the contrary. Parson clarified her testimony during her deposition:

Q: If an exempt employee worked less than 40 hours, would they still be paid their 

salaried amount?

A. Yes.

Q: All right. So I want to clear up, earlier you testified that if somebody worked 

fewer than 40, they would not receive their normal pay. Do you remember that?

A: Yes.

Q: And you were referring then to nonexempt employees?

A: Nonexempt.

(Parson Dep. at 14:17-15:5). Parson’s testimony does not create an issue of material fact; she 

simply misspoke and then clarified the error. Brown’s salary was not reduced based on the 

number of hours he worked. (Parson Decl. Ex. A). Indeed, Brown’s authenticated earning 

statements – which Brown does not refute – provide conclusive evidence Brown never earned 

less than his regular salary during the relevant time period from 2011 through his termination. 

(Id.). Brown earned a regular salary significantly higher than the required $455.00 per week.

Brown’s continued insistence that he did not earn a “true” salary because he regularly earned 

more than his base salary is incorrect as a matter of law.

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 5 of 10
6

C. The ingot line is a customarily recognized department or subdivision.

An exempt executive also must “Have the primary duty of management of the enterprise 

in which the employee is employed or of a customarily recognized department or subdivision 

thereof.” 29 C.F.R. § 541.100(a)(2). 

A customarily recognized department or subdivision is intended to distinguish 

between a mere collection of employees assigned from time to time to a specific 

job or series of jobs and a unit with permanent status and function. A customarily 

recognized department or subdivision must have a permanent status and a 

continuing function.

29 C.F.R. § 541.103(a). A work shift can constitute a department or subdivision. West v. Anne 

Arundel County, Md., 137 F.3d 752 (4th Cir. 1998); Molina v. Sea Land Services Inc., 2 

F.Supp.2d 185 (D. P.R. 1998). In addition, “groupings” or “teams” of employees may constitute 

a department or subdivision. 69 Fed. Reg. 22134 (Aug. 23, 2004) (citing Gorman v. Continental 

Can Co., 1985 WL 5208, at *6 (N.D. Ill. 1985)); Preamble to 29 C.F.R. § 541. 

The ingot line of Aleris’s Wabash facility is a customarily recognized department or 

subdivision as a matter of law. (Dkt. #31, p. 11-12). The ingot line is one of two primary 

production functions – ingot and molten metal – at the facility (Brown Dep. at 22:22-23:24). The 

ingot line is distinct from the molten line. Id. Brown performed the same supervisory role over 

ingot line shifts for more than 30 years. (Brown Dep. 12:13-15; 23:19-24:23). Neither the job nor 

the department changed during that period. Each time he supervised a particular shift, Brown 

supervised a distinct subdivision of the ingot line. See West, 137 F.3d 752; Molina, 2 F.Supp.2d 

185.

Brown asserts the ingot line is not a customarily recognized department or subdivision of 

Aleris because it “was connected to other parts of the facility,” affected other departments within 

the facility, and shared a class of employees with other areas of the facility. (Dkt. #36, p. 3). The 

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 6 of 10
7

regulations explicitly state none of these scenarios affects whether the ingot line is a recognized 

department or subdivision. First, the regulations specifically provide “An otherwise exempt 

employee will not lose the exemption merely because the employee draws and supervises 

workers from a pool or supervises a team of workers drawn from other recognized units...” 29 

C.F.R. § 541.103(d). Brown shared supervision of the UTOs only the extent he and other 

supervisors determined whether Brown or another supervisor had more need for a UTO at a 

specific period. (Brown Dep. 30:8-20, 46:15-18). When the UTO worked in Brown’s department 

on Brown’s shift, Brown supervised the employee. Likewise, when the UTO worked elsewhere, 

a different supervisor managed that employee. Second, a department may affect work in other 

parts of a facility without losing its designation. 69 Fed. Reg. 22134 (Aug. 23, 2004) (citing

Gorman, 1985 WL 5208, at *6 (department or subdivision can ‘‘include small groups of 

employees working on a related project within a larger department, such as a group leader of 

four draftsmen in the gauge section of a much larger department’’)). Accordingly, there are no 

disputed material facts regarding whether the ingot line is a customarily recognized department 

or subdivision of the Wabash facility.

D. Brown had significant influence over personnel decisions.

Finally, an exempt executive must either have “the authority to hire or fire other 

employees” or his “suggestions and recommendations as to the hiring, firing, advancement, 

promotion or any other change of status of other employees must be given particular weight.” 29 

C.F.R. § 541.100(a)(4). An employee’s suggestions and recommendations may be deemed to 

have “particular weight” in workplaces where a higher level manager’s recommendation has 

more importance, where the employee does not have authority to make the ultimate decision as 

to the employee’s change in status, and where hiring and firing is controlled by a separate 

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 7 of 10
8

institution, such as a staffing agency or a union. Schreckenbach v. Tenaris Coiled Tubes, L.L.C., 

2013 U.S. LEXIS 6744 at *19 (S.D. Tex. 2013); Haas v. Behr Dayton Thermal Prods., LLC, 

2008 U.S.LEXIS 122184 at *82 (S.D. Ohio 2008); Beauchamp v. Flex-n-Gate, LLC, 357 F.Supp. 

2d 1010, 1016 (E.D. Mich. 2005).

There can be no genuine dispute that, within Aleris’s union environment, Brown’s 

personnel recommendations were given significant weight. (Dkt. #31, pp. 19-21). The union 

structure at Aleris is explained in detail in Defendant’s Motion for Summary Judgment. (Id.)

Plant Manager Tony Whitt testified regarding the very limited role executives play in personnel 

decisions at Aleris as a result of the Collective Bargaining Agreement (“CBA”). In his Response, 

Brown deduces from Whitt’s deposition testimony, “Brown played no role in establishing 

employees’ pay rate or determining whether employees would receive a raise.” (Dkt. #36, p. 5). 

However, the cited testimony actually states Brown’s role was only limited because pay rates 

and raises were set pursuant to the CBA and not by any executive at any level. (Deposition of 

Tony Whitt (“Whitt Dep.”) at 15:3-10). Likewise, Brown cites Whitt’s deposition for the 

proposition Brown “played no role in determining if employees were promoted.” (Dkt. #36, p. 

5). Again, the cited testimony states Brown did not play this role because promotions were 

determined pursuant to the terms of the CBA and not because Brown was not a managerial 

employee. (Whitt Dep. at 13:15-23). 

Despite executives’ limited control over most personnel decisions, Brown exercised 

authority which ultimately had significant impact on personnel decisions. As noted in 

Defendant’s Motion for Summary Judgment, Brown had authority to request additional 

manpower for his line (Brown Dep., Ex. E; Whitt Decl. ¶8); train new employees (Brown Dep. 

25:11-26:1, 124:3-13, Ex. G); independently resolve employee complaints (Brown Dep. 49:15-

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 8 of 10
9

22, Exs. E, G); validate new employees’ skills confirmation sheet to management (Whitt Dep. 

14:6-12); provide feedback regarding employee performance (Brown Dep. 110:18-22, Exs. E, 

G); administer progressive discipline (Brown Dep. 49:23-50:1, Exs. E, G); and suspend 

employees while the organization considered termination (Id.). In the context of Aleris’s union 

environment, Brown had significant influence over personnel decisions. 

III. CONCLUSION

Aleris is entitled to summary judgment. Brown is an exempt employee under the FLSA 

not entitled to any additional compensation. For these reasons, Aleris respectfully requests that 

the Court grant Defendant’s Motion for Summary Judgment. 

Respectfully submitted,

/ s / Alan L. McLaughlin

Alan L. McLaughlin (#10182-49)

Emily L. Connor (#27402-49)

LITTLER MENDELSON, P.C.

111 Monument Circle, Suite 702

Indianapolis, IN 46204

Telephone: 317.287.3600

Facsimile: 317.636.0712

E-mail: amclaughlin@littler.com

 econnor@littler.com

Attorneys for Defendant Aleris specification 

Alloys, Inc. and Wabash Alloys, LLC

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 9 of 10
10

CERTIFICATE OF SERVICE

I hereby certify that I have this 10th day of November, 2015, filed a copy of the foregoing 

Defendant’s Reply in Support of Motion for Summary Judgment electronically. Notice of this

filing will be sent to the following parties by operation of the Court’s electronic filing system. 

Parties may access this filing through the Court’s system.

William A. Ramsey

Barrett McNagny

215 East Berry Street

Fort Wayne, Indiana 46802

war@barrettlaw.com

/ s / Alan L. McLaughlin

Alan L. McLaughlin

Firmwide:136618986.4 062136.1057

USDC IN/ND case 3:14-cv-00041-PPS document 37 filed 11/10/15 page 10 of 10