*

The Honorable Peter C. Economus, United States District Judge for

the Northern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0277P (6th Cir.)

File Name: 04a0277p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ANTHONY MARTIN,

Plaintiff-Appellant,

v.

INDIANA MICHIGAN POWER

COMPANY, d/b/a American

Electric Power,

Defendant-Appellee.

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No. 02-2343

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 00-00218—Wendell A. Miles, District Judge.

Argued: March 17, 2004

Decided and Filed: August 23, 2004 

Before: NORRIS and COLE, Circuit Judges;

ECONOMUS, District Judge.*

2 Martin v. Indiana Mich. Power Co. No. 02-2343

_________________

COUNSEL

ARGUED: Stephen D. Turner, LAW, WEATHERS &

RICHARDSON, Grand Rapids, Michigan, for Appellant.

Joseph J. Vogan, VARNUM, RIDDERING, SCHMIDT &

HOWLETT, Grand Rapids, Michigan, for Appellee.

ON BRIEF: Stephen D. Turner, Gregory N. Longworth,

LAW, WEATHERS & RICHARDSON, Grand Rapids,

Michigan, for Appellant. Joseph J. Vogan, Peter A. Smit,

VARNUM, RIDDERING, SCHMIDT & HOWLETT, Grand

Rapids, Michigan, for Appellee.

COLE, J., delivered the opinion of the court, in which

ECONOMUS, D. J., joined. NORRIS, J. (p. 21), delivered a

separate opinion concurring in part and dissenting in part.

_________________

OPINION

_________________

R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant

Anthony Martin claims that his employer, Indiana Michigan

Power Company, d/b/a American Electric Power (“AEP”),

violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§§ 201-19, by failing to pay him time-and-a-half for hours

worked in a given week in excess of forty hours. AEP

counters that Martin is a bona fide administrative or

professional employee, exempt from the FLSA’s overtime

requirements. The parties filed cross-motions for summary

judgment, and the district court granted summary judgment

for AEP, holding that Martin was exempt from overtime pay

requirements because he was both an administrative employee

and a computer professional. For the reasons below, we

REVERSE the judgment of the district court and REMAND

for entry of summary judgment in favor of the plaintiff, and

for calculation of damages, including liquidated damages.
No. 02-2343 Martin v. Indiana Mich. Power Co. 3

I. BACKGROUND

Prior to AEP’s reorganization of its Information

Technology (“IT”) department, Martin held the position of

“Computer Security/Standards Technician,” which AEP

classified as nonexempt. On November 1, 1998, when the

department was reorganized, Martin’s title was changed to

“IT Support Specialist,” which AEP classified as an exempt

position. According to AEP, the purpose of the

reorganization was to “push down responsibilities to

workers,” “to delegate more authority,” and to “flatten the

organization.”

Mike Thornburg, Martin’s supervisor, describes the

function of his IT Support team as follows: “Maintaining the

computer workstation software, troubleshooting and

repairing, network documentation, that is our primary job.

We were a maintenance organization that takes care of

computer systems.” The computers that Martin works on are

workstations (or “PCs”) at individual desks connected to a

local area network (“LAN”); Martin does not work on the

plant process computer – “which deals with the plant, what’s

going on as far as the reactor operators”– which is a different

system. 

When people at the plant have problems with their

computers, they call the help desk where the help desk

employees put the problems into a database as “help desk

tickets,” which Martin prints out. Martin responds to these

help desk tickets. He goes to the location indicated where he

attempts to determine the nature of the problem, to

“troubleshoot” it to determine how to proceed, and to repair

the problem if possible. Martin installs software, such as

Microsoft’s Office 97, on individual workstations. He

troubleshoots Windows 95 problems and installs provided

software patches.

If Martin cannot fix a problem, he will report the problem

and how he tried to fix it to Thornburg. Thornburg will

4 Martin v. Indiana Mich. Power Co. No. 02-2343

decide whether to request service from the manufacturer or

order a replacement part or unit. Martin, however, does not

decide or make recommendations as to whether a piece of

equipment must be serviced or replaced. Nor has he written

reports on his troubleshooting or repair activities. He has not

recommended the purchase of any equipment, hardware, or

software, although Thornburg considers Martin’s comments

on printers and problems “valuable” in his own decision

making process.

In addition to processing help desk tickets, Thornburg has

directed Martin to complete a variety of other tasks. First, for

a period of time while the nuclear reactors were shut down

between November 1998 and May 2000, Martin relocated

workstations to trailers and temporary buildings. Sometime

in 2000, Cook brought in contractors to move workstations.

Thornburg testified that, prior to that, everyone in IT Support

– including Thornburg and Martin – was spending so much

time moving workstations that they were not able to carry out

their primary job as a maintenance organization. 

Second, Martin was assigned to install hardware and cable

for the network, including network components such as hubs,

switches, and routers, when Cook was physically expanding

the LAN to trailers and new buildings. Martin worked in the

wiring closets: terminating the cables (that is, putting

connectors on the ends of the cables), plugging them into the

hubs, and verifying that they were connected by phoning the

system administrator to confirm that the hubs had appeared

on the network. Martin was not involved in designing the

configuration of either the cables or the hardware he installed,

nor does he install any programs onto the network. Third, on

January 2, 2001, Thornburg assigned Martin to clean up the

wiring closets, to make sure the master network diagram

accurately reflected what was physically in the closets and

update it if necessary, and to get the locks changed, if

possible, so that one key would open all the closets. 
No. 02-2343 Martin v. Indiana Mich. Power Co. 5

Shortly before Thornburg’s February 28, 2001, deposition,

Martin received another assignment. According to

Thornburg, he assigned Martin “to review a Windows 2000

operating system that we have just developed.” At the time

of the deposition, Thornburg explained that Martin was in the

“process” of “preparing” to do the review. For the

assignment, Martin was supposed to “review the desktop

operating system in our applications to make sure they work

as he uses them in the field. And if not, I expect him to make

recommendations for corrections.” This assignment –

apparently made after the litigation commenced – is the first

of this type for Martin. As Thornburg put it, Martin’s duties

were “evolving.” 

Martin has no computer certifications and no degree

beyond high school. He has taken one course in

microcomputing, a class in using Windows 2000, and four,

week-long hands-on computer training classes. Martin has a

work bench located in a common work area – also referred to

as a “workshop” in the depositions. Martin does not have his

own phone line; everyone in the area shares a “shop phone.”

He wears a blue short-sleeved work shirt with two pockets on

the front, a name badge that says “Tony,” and a badge that

says “D.C. Cook, CSS Section”; blue work pants; and work

boots.

II. ANALYSIS

This Court reviews de novo a district court’s grant of

summary judgment. 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. FED.R.CIV.P. 56(c);

Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.

1992). 

6 Martin v. Indiana Mich. Power Co. No. 02-2343

1

In additional to this shifting of the burden of proof, Martin argues

that the employer has to prove each element to a higher burden of proof

than to a preponderance of the evidence, citing Ale v. Tennessee Valley

Auth., 269 F.3d 680, 691 n.4 (6th Cir. 2001) (“The defendant must

establish through ‘clear and affirmative evidence’ that the employee

meets every requirement of an exemption.”). Ale and the other circuits

that have articulated this “clear and affirmative evidence” language, see

The FLSA requires employers to pay their employees timeand-a-half for work performed in excess of forty hours per

week, 29 U.S.C. § 207(a)(1), but exempts employers from

this requirement with respect to individuals “employed in a

bona fide executive, administrative, or professional capacity.”

29 U.S.C. § 213(a)(1). To avoid paying overtime to Martin,

AEP must prove that he falls within one of these exempt

categories. AEP argues that Martin is exempt as both an

“administrative” employee and a “computer professional,”

which is a subclass of “professional” employees. 

The exemptions to the FLSA’s overtime provisions are “to

be ‘narrowly construed against the employers seeking to

assert [them],’” Douglas v. Argo-Tech Corp., 113 F.3d 67, 70

(6th Cir. 1997) (quoting Arnold v. Ben Kanowsky, Inc., 361

U.S. 388, 392 (1960)), and the employer bears not only the

burden of proof, but also the burden on each element of the

claimed exemption. Id. Because the burden of proof is

shifted, Martin is entitled to summary judgment unless the

defendant can come forward with evidence at least creating a

genuine issue of material fact as to whether Martin meets

each and every element of the exemption. If AEP fails to

proffer such evidence, not only must its motion for summary

judgment be denied, but summary judgment for Martin must

be granted. See Schaefer v. Ind. Mich. Power Co., 358 F.3d

394, 407 (6th Cir. 2004) (Suhrheinrich, J. concurring)

(asserting that Schaefer was entitled to summary judgment

because “[i]n my view, AEP has, at a minimum, failed to

create a genuine issue of fact on the question of whether

Schaefer's primary duty ‘includes work requiring exercise of

discretion and independent judgment.’”).1
No. 02-2343 Martin v. Indiana Mich. Power Co. 7

Klinedinst v. Swift Investments, Inc., 260 F.3d 1251, 1254 (11th Cir.

2001); Donovan v. United Video, Inc., 725 F.2d 577, 581 (10th Cir.

1984), have done so without explanation of what the phrase means.

Martin, perhaps drawing from the similarity to the phrase “clear and

convincing evidence” urges us to hold that Ale sets a heightened

evidentiary standard. Alternatively, “clear and affirmative evidence” may

simply be a way of restating what we have said above: the employer

bears the burden of proving each and every element of the exemption in

a remedial statute that is to be narrowly construed against the employer.

Since the meaning of the phrase would not change the result in this case,

any exposition by us on the intentions of the Ale court would be mere

dicta.

For purposes of this analysis, we view the facts in the light

most favorable to AEP. The facts regarding Martin’s

workplace tasks are largely undisputed. The parties do

disagree, however, about how much time Martin spends on

hardware versus software tasks and how much time Martin

spent moving work stations with or without the help of

contractors. These disputes, however, are ultimately

irrelevant because neither Martin’s hardware nor software

work exempts him, and, regardless of how much time Martin

spent moving computers, his others tasks are no more exempt.

A. Computer Professional Exemption

To establish that Martin is a “computer professional” under

the regulations and therefore not entitled to overtime, AEP

must demonstrate that (1) the employee “is compensated on

a salary or fee basis at a rate of not less than $250 per week”

or that the employee “is compensated on an hourly basis at a

rate in excess of 6 1/2 times the minimum wage”; (2) the

employee’s “primary duty consists of the performance of . . .

[w]ork that requires theoretical and practical application of

highly-specialized knowledge in computer systems analysis,

programming, and software engineering, and [the employee

is] employed and engaged in these activities as a computer

systems analyst, computer programmer, software engineer, or

other similarly skilled worker in the computer software field

. . . ”; and (3) the employee’s primary duty “includes work

8 Martin v. Indiana Mich. Power Co. No. 02-2343

requiring the consistent exercise of discretion and judgment.”

29 C.F.R. §§ 541.3(a)(4), 541.3(e). 

First, AEP must establish that Martin is payed on a salary

or fee basis at a rate of not less than $250 per week or that he

is compensated on an hourly basis at a rate in excess of 6 1/2

times the minimum wage. 29 C.F.R. § 541.3(e). The

evidence establishes that Martin is paid a salary. It does not

matter that Martin must make up partial-day absences or that

Martin’s hours are prescribed and he must obtain approval

from his supervisor to vary his hours. See Renfro v. Ind.

Mich. Power Co., 370 F.3d 512, 516 (6th Cir. 2004);

Schaefer, 358 F.3d at 400. Martin argues in his reply brief

that he is not a salaried employee because AEP pays him

straight overtime for some overtime hours, based on Kennedy

v. Commonwealth Edison Co., 242 F.Supp.2d 542 (C.D.Ill.

2003), which subsequently has been vacated and reconsidered

atKennedy v. Commonwealth Edison Co., 252 F.Supp.2d 737

(C.D.Ill. 2003). We need not consider this novel (and only

partially briefed) argument, however, because we can decide

Martin’s status on the ground below.

AEP must raise a genuine issue of fact regarding whether

Martin’s “primary duty consists of the performance of . . .

[w]ork that requires theoretical and practical application of

highly-specialized knowledge in computer systems analysis,

programming, and software engineering, and [whether he is]

employed and engaged in these activities as a computer

systems analyst, computer programmer, software engineer, or

other similarly skilled worker in the computer software field.”

29 C.F.R. §§ 541.3(a)(4). Thus, although Martin is not a

systems analyst, programmer, or software engineer, he could

still be exempt from overtime if his work “requires theoretical

and practical application of highly-specialized knowledge in

computer systems analysis, programming, and software

engineering.”

The district court concluded that Martin was a computer

professional: “Martin falls within the exemption for a
No. 02-2343 Martin v. Indiana Mich. Power Co. 9

professional employed in a computer-related occupation:

there is no genuine dispute that his work requires highlyspecialized knowledge of computers and software, and the

evidence shows that he customarily and regularly exercises

discretion and independent judgment in his work.” (emphasis

added). The district court made an understandable mistake,

one that arises from the common perception that all jobs

involving computers are necessarily highly complex and

require exceptional expertise. However, the regulations

provide that an employee’s primary duty must require

“theoretical and practical application of highly-specialized

knowledge in computer systems analysis, programming, and

software engineering” not merely “highly-specialized

knowledge of computers and software.” This is an important

difference. The former is a narrower class of jobs that

requires a different level of knowledge and training than the

latter. Further, it is a distinction which will only become

more relevant as the range of computer-related jobs continues

to broaden.

Martin does not do computer programming or software

engineering; nor does he perform systems analysis, which

involves making actual, analytical decisions about how

Cook’s computer network should function. Rather, Martin’s

tasks – installing and upgrading hardware and software on

workstations, configuring desktops, checking cables,

replacing parts, and troubleshooting Windows problems – are

all performed to predetermined specifications in the system

design created by others. As Martin testified, he is provided

the standard “desktop” for installation on the computers he

configures, but he is not involved in determining what the

desktop should look like. Thornburg explained, as we noted

above, that IT Support is “a maintenance organization that

takes care of computer systems.”

29 C.F.R. § 541.303(b) further clarifies the work involved

in systems analysis, programming, and software engineering

that falls under the exemption:

10 Martin v. Indiana Mich. Power Co. No. 02-2343

To be considered for exemption under § 541.3(a)(4), an

employee's primary duty must consist of one or more of

the following:

(1) The application of systems analysis techniques and

procedures, including consultingwith users, to determine

hardware, software, or system functional specifications;

(2) The design, development, documentation, analysis,

creation, testing, or modification of computer systems or

programs, including prototypes, based on and related to

user or system design specifications;

(3) The design, documentation, testing, creation or

modification of computer programs related to machine

operating systems; or

(4) a combination of the aforementioned duties, the

performance of which requires the same level of skills.

AEP selectively identifies certain words from this regulation

– particularly “consulting with users” and “testing” – and

applies them out of context. There is simply no evidence that

Martin “consults with users, to determine hardware, software,

or system functional specifications.” Martin “consults with

users” for purposes of repair and user support, not to

determine what “hardware, software, or system functional

specifications” the Cook facility will employ, as a systems

analyst might. Likewise, when Martin does “testing,” he is

testing things to figure out what is wrong with a workstation,

printer, or piece of cable so that he can restore it to working

order. He is not doing the type of testing that is involved in

creating a system, determining the desired settings for a

system, or otherwise substantively affecting the system.

Indeed, he is merely ensuring that the particular machine is

working properlyaccording to the specifications designed and

tested by other Cook employees. Maintaining the computer

system within the predetermined parameters does not require

“theoretical and practical application of highly-specialized
No. 02-2343 Martin v. Indiana Mich. Power Co. 11

knowledge in computer systems analysis, programming, and

software engineering.”

Martin has one project that might fall under the category of

systems analysis: the Windows 2000 review. This project

was apparently assigned after the instant lawsuit commenced,

and, according to Thornburg, Martin was only “in the process

right now of preparing to review a Windows 2000 operating

system,” as of the date of Thornburg’s deposition. Even were

we to conclude that this project is systems analysis,

Thornburg was unable to provide any estimate of the amount

of time that he expected Martin would spend on the project

but did indicate elsewhere that Martin had various other

assignments. This single project does not make systems

analysis Martin’s primary duty. 

Finally, the dissent suggests that there is a dispute of

material fact regarding whether Martin took training courses

teaching him to develop standards. Even if such a factual

dispute exists, it is not material because it is the job that one

does, not the job that one is trained to do, that determines

exempt status. We are required to analyze how the employee

is actually spending his time, see 29 C.F.R. § 541.3(e); Ale v.

Tennessee Valley Auth., 269 F.3d 680, 689-90 (6th Cir. 2001),

not what he is trained to do (but is not doing as his primary

duty) or what he is training to do in the future. Nor are

trainees bona fide computer professionals. 29 C.F.R.

§ 541.303(c). Only at such a time that systems analysis

becomes Martin’s primary duty can AEP classify him as a

bona fide computer professional.

Since AEP has only presented one task – the Windows

2000 project – that might fall under the “computer

professional” exemption and since, even viewing the facts in

the light most favorable to AEP, that task is not Martin’s

primary duty, AEP has failed to raise a genuine issue of

material fact regarding whether Martin is a bona fide

computer professional. AEP has not met its burden under the

computer professional exemption.

12 Martin v. Indiana Mich. Power Co. No. 02-2343

B. Administrative Exemption

To establish that Martin is a bona fide administrative

employee under the applicable Department of Labor (“DOL”)

regulations, AEP must demonstrate that: (1) the employee is

“compensated on a salary or fee basis at a rate of not less than

$250 per week”; (2) the employee’s “primary duty consists of

. . . [t]he performance of office or nonmanual work directly

related tomanagement policies or general business operations

of his employer or his employer’s customers”; and (3) the

employee’s primary duty “includes work requiring the

exercise of discretion and independent judgment.” 29 C.F.R.

§§ 541.2, 541.214.

Martin is entitled to summary judgment because AEP has

neither established that, nor raised a genuine issue of material

fact regarding whether, Martin’s primary duty is “directly

related to management policies or general business operations

of his employer or his employer’s customers.” 29 C.F.R.

§§ 541.2(a)(1), 541.214(a). This provision, in addition to

describing the types of activities performed by an exempt

employee, “limits the exemption to persons who perform

work of substantial importance to the management or

operation of the business of his employer or his employer’s

customers.” 29 C.F.R. § 541.205(a).

AEP’s only argument that Martin’swork is “directly related

to management policies or general business operations of the

employer” is that Martin’s work is not production work. That

is, he is not producing electricity because he is not an

“operator” running the nuclear power equipment – and

therefore his work is administrative and thus “directly related

to management policies or general business operations of the

employer.” Under AEP’s theory, shippers of radioactive

waste, the individuals who don radiation suits and perform

maintenance work on the reactors, the janitorial staff, the

security guards, the cooks in the company cafeteria, and

various other workers including Martin are all doing work

“relating to the administrative operations of the business”
No. 02-2343 Martin v. Indiana Mich. Power Co. 13

purely because they do not operate the nuclear reactors. See

Schaefer, 358 F.3d at 402 (holding that a shipper of

radioactive material was not doing administrative work). We

have rejected the argument that all work that is not production

work is automatically “directly related to management

policies or general business operations of the employer.” Id.

at 402-403. Indeed, AEP made and we rejected this very

argument in Schaefer. AEP attempts to distinguish Schaefer

by arguing that the waste that was being shipped in Schaefer

was a direct by-product of the production of electricity. But

such an argument misses the point. AEP’s error is in

concluding that all work is either related to “the

administrative operations of the business” or production

work. The regulations do not set up an absolute dichotomy

under which all work must either be classified as production

or administrative. Rather, the regulations distinguish

production work from the administrative operations of the

business at 29 C.F.R. § 541.205(a) – thus production work

cannot be administrative – and then go on to define the

administrative operations of the business at 29 C.F.R.

§ 541.205(b). To accept AEP’s alternate reading of 29 C.F.R.

§ 541.205(a) as setting up an absolute dichotomy would

render the further definition of “the administrative operations

of the business” in 29 C.F.R. § 541.205(b) utterly

superfluous. 

Martin’s primary job duty does not “relat[e] to the

administrative operations” at Cook. “The administrative

operations of the business include the work performed by socalled white-collar employees engaged in ‘servicing’ a

business as, for example, advising the management, planning,

negotiating, representing the company, purchasing, promoting

sales, and business research and control.” 29 C.F.R.

§ 541.205(b). As we have noted, Thornburg described his

team as a “maintenance organization that takes care of

computer systems.” Martin is in no way involved in

“advising the management, planning, negotiating,

representing the company, purchasing, promoting sales, and

business research and control.” See also Renfro, 370 F.3d at

14 Martin v. Indiana Mich. Power Co. No. 02-2343

517 (AEP’s “planners” were bona fide administrative

employees where their primary duty fell within this definition

of “servicing” the business). Martin’s job, instead, is to assist

in keeping the computers and network running to the

specifications and designs of others. 

Nor is Martin’s work “of substantial importance to the

management or operation of the business of his employer.”

29 C.F.R. § 541.205(a). Work that is of substantial

importance “is not limited to persons who participate in the

formulation of management policies or in the operation of the

business as a whole,” but includes employees whose work

“affects policy or whose responsibility it is to execute or carry

it out.” 29 C.F.R. § 541.205(c). And an employee’s work

need not affect operation of the business as a whole to meet

this criterion: it is enough that the employee’s “work affects

business operations to a substantial degree, even though their

assignments are tasks related to the operation of a particular

segment of the business.” Id.

AEP never presents an argument that Martin’s work itself

is “of substantial importance to the management or operation

of the business of his employer.” Indeed, AEP could not

successfully argue that Martin’s work itself is “of substantial

importance to the management or operation of the business of

his employer” because Martin makes no decisions that affect

even the small segment of the company’s operations in which

his work is performed. He does not determine what types of

workstations, network, hardware, or software AEP employs;

he is not involved in the design or development of AEP’s

network; he does not decide what software will be available

to AEP’s computer users or determine how that software will

be configured; and he does not decide or recommend when

equipment must be serviced or replaced. Rather, he sets up

and repairs parts of a system wholly designed and approved

by others. There is no evidence that he has any input into the

nature of the computer resourcesavailable to AEP employees.
No. 02-2343 Martin v. Indiana Mich. Power Co. 15

AEP argues that Martin’s work is “complex,” not “routine”

or “clerical,” and thus of substantial importance. AEP derives

this requirement from a portion of the regulation that states:

“An employee performing routine clerical duties obviously is

not performing work of substantial importance . . . .” 29

C.F.R. § 541.205(c)(2). AEP attempts to derive the negative

from this proposition and say that duties that are complex

rather than “routine clerical work” are of substantial

importance. This argument is the logical equivalent of saying

that because a chihuahua is obviously not a cat, then every

animal that is not a chihuahua is a cat. Without addressing

the issue of whether Martin’s work is actually “complex,” it

is sufficient to say that mere complexity would not make his

work substantially important under the regulations.

AEP next argues that Martin’s work is of “substantial

importance” because of the value of the systems he works on

and the consequences of mistakes. The regulations, however,

explain that it is the work itself that must be of substantial

importance – not the size of the consequences or loss that may

result from improper performance of the employee’s duties.

As the regulations note, an employee operating a very

expensive piece of equipment, a messenger boy entrusted

with carrying large sums of money, and an inspector for an

insurance company can all cause their employers serious loss

by failure to perform their jobs properly, but “such

employees, obviously, are not performing work of such

substantial importance to the management or operation of the

business that it can be said to be ‘directly related to

management policies or general business operations’ as that

phrase is used in § 541.2.” 29 C.F.R. § 541.205(c)(2) (giving

the examples of the messenger boy, the equipment operator,

and the insurance inspector). 

AEP also argues that the level of supervision is relevant to

the inquiry, citing an unpublished case, affirmed without

comment by the Eleventh Circuit. Easter v. Florida Power &

Light Co., Case No. 97-153-CIV-OC-19 (M.D. Fla. June 7,

1999), slip op. at 9, aff’d 229 F.3d 1168 (11th Cir. 2000)

16 Martin v. Indiana Mich. Power Co. No. 02-2343

(table). While the fact that an employee works independently

might shore-up a conclusion that a worker is doing work of

“substantial importance,” that fact standing alone has little

relevance to the inquiry. Night janitorial workers, for

example, often work independently and without direct

supervision, as do any number of skilled tradesmen such as

nonexempt electricians and plumbers.

Finally, AEP suggests we should consider Martin’s salary

as evidence that his work is of substantial importance since he

makes more than “the average blue-collar worker.” This

argument is an attempt to draw attention away from the fact

that Martin’s work itself is not substantially important under

the regulations. Salary may be used to determine the primary

duty of an employee who performs both exempt and

nonexempt tasks by comparing his salary to the salary of

employees who are just doing the nonexempt tasks, see 29

C.F.R § 541.103, not to determine the nature of those tasks

themselves. Salary differential does not answer the

substantial importance question. The fact that a nonexempt,

unionized, skilled plumber may earn more than an exempt

public school teacher does not change the nature of the

plumber’s work.

In sum, the evidence viewed in the light most favorable to

AEP neither establishes that nor raises a genuine issue of

material fact regarding whether Martin’s work is “directly

related to management policies or general business operations

of his employer or his employer’s customers.” Thus, not only

is AEP not entitled to summary judgment, but Martin is

entitled to summary judgment.

C. Liquidated Damages

An employer who violates the FLSA’s overtime provisions

is liable to the employee in the amount of the unpaid overtime

compensation “and in an additional equal amount as

liquidated damages.” 29 U.S.C. § 216(b). Liquidated

damages under the FLSA “are compensation, not a penalty or
No. 02-2343 Martin v. Indiana Mich. Power Co. 17

punishment.” Elwell v. Univ. Hosp. Home Care Serv., 276

F.3d 832, 840 (6th Cir. 2002) (internal quotes omitted).

Although liquidated damages are the norm and have even

been referred to as “mandatory,” see, e.g., Martin v. Cooper

Elec. Supply Co., 940 F.2d 896, 907 (3rd Cir. 1991)

(emphasis in original), Congress has provided the courts with

some discretion to limit or deny liquidated damages. See 29

U.S.C. § 260; Martin, 940 F.2d at 907. Under this exception,

if an employer demonstrates both good faith and reasonable

grounds for the incorrect classification, then a court may

exercise its discretion to limit or deny liquidated damages.

Elwell, 276 F.3d at 840; Martin, 940 F.2d at 907. But “[t]his

burden on the employer is substantial,” Elwell, 276 F.3d at

840, and if the employer fails to carry it, the court may not

limit or deny liquidated damages. Elwell, 276 F.3d at 840;

Martin, 940 F.2d at 907. 

To prove that it acted in good faith, an employer “must

show that [it] took affirmative steps to ascertain the Act’s

requirements, but nonetheless violated its provisions.”

Martin, 940 F.2d at 908. “Good faith” means more than

merely not willfully misclassifying the employee. Elwell,

276 F.3d at 841 n.5. The employer has an affirmative duty to

ascertain and meet the FLSA’s requirements, and an employer

who negligently misclassifies an employee as exempt is not

acting in good faith. Id. Thus, the violation of the FLSA

does not have to be intentional for Martin to recover

liquidated damages, and AEP has the burden of establishing

that it acted in good faith when affirmatively determining that

Martin was exempt. See Martin, 940 F.2d at 908. 

AEP argues that it acted in good faith because it relied on

a form that Martin filled out during the reorganization of the

IT department – an“employee mapping form” – on which

Martin specified his job level under the new organization as

“IT Support Specialist I.” Reliance on this mapping does not,

however, establish good faith for a variety of reasons.

18 Martin v. Indiana Mich. Power Co. No. 02-2343

First, AEP cannot claim reliance on Martin’s choice of

position when AEP itself instructed Martin to choose the IT

Support job family, all of which positions are exempt. Martin

testified at deposition that he chose the IT Support Specialist

group rather than the technician group because he was

instructed to do so by Thornburg. AEP has not disputed this

proposition. 

Second, even if AEP could rely in good faith on Martin’s

choice of IT Support Specialist I, it could not, in good faith,

classify any employee in that position as exempt without

further information because that position description includes

both nonexempt and (likely) exempt tasks. The first of the six

tasks listed in the IT Job Family Skills Matrix for IT Support

Specialist I roughly describes the nonexempt user support

work that Martin actually performs. The second task listed –

“[p]articipate in the review, evaluation, analysis, and

recommendation of information systems and procedures” –

may well be exempt. The third task, which requires the

employee to “[m]aintain records, documentation, manuals,

and prepare status reports,” is amorphous and appears in the

vast majority of the IT position descriptions, including the

nonexempt technician positions. The remaining items are not

job tasks per se but merely require the employee to maintain

certain skills. But, of course, the exempt work must be the

employee’s primary duty, and the job description provides no

indication the second of the task listed is the primary duty. If

anything, the order of the tasks, the name of the job family

(IT Support), the “typical job tracks” in the job family

description, and the mapping instructions (“Support

staff/Technicians to maintain [hardware and software] and

help customers use them”), all suggest that the first,

nonexempt task is primary. Thus, to classify any employee

who chose IT Support Specialist I as exempt, AEP would

need more information, and the FLSA’s good-faith

requirement requires AEP to seek it out.

But AEP’s misclassification of Martin was not, in fact,

based on this lack of information. AEP actually classifies the
No. 02-2343 Martin v. Indiana Mich. Power Co. 19

entire IT Support job family as exempt, even though positions

II through IV do not include any exempt tasks. Thus, AEP

would have incorrectly classified Martin as exempt regardless

of what level within the job family he chose.

Third, even if Martin had incorrectly picked an actual

exempt position in the mapping, AEP cannot claim to have

relied on it in good faith when it affirmatively knew that

Martin was doing nonexempt work. In addition to

Thornburg’s knowledge of Martin’s actual tasks, two

documents labeled “job descriptions” which list all the IT

employees’ job descriptions demonstrate that AEP knew what

kind of work Martin was doing. These documents – dated

August 2000 and December 2001 – list Martin’s job

description as follows: “Workstations, Network Printers,

Wiring Closet Hardware, Pagers, Radio Controlled Cranes,

Fiber Optics.” AEP cannot claim – in the face of this job

description – that it actually thought that Martin’s primary job

duty was “participat[ing] in the review, evaluation, analysis,

and recommendation of information systems and procedures.”

The FLSA requires the employer to make FLSA exemption

decisions based on the employee’s actual job duties, not the

employee’s job title, Ale, 269 F.3d at 689-90, and the good

faith requirement imposes an affirmative burden. AEP may

not rely on incorrect information in the face of its actual

knowledge of Martin’s job activities.

Fourth, the date of reclassification provides additional

evidence that AEP was not acting in good faith. AEP actually

classified Martin as exempt on November 1, 1998, just as the

Cook nuclear reactors were being taken offline for an

eighteen-month shutdown, plunging the plant into a period of

non-standard activity and hours. As Thornburg explained:

The last three years at this facility have been very nonstandard. What I mean by that is we have been in a

shutdown outage for three years. We all did nonstandard tasks during that three year period of time to

install complexes, we install trailers, we install buildings

20 Martin v. Indiana Mich. Power Co. No. 02-2343

that are no longer at this facility for that three year

period. . . . [W]e were all busy doing whatever we had to

do to restart the facilities. . . . [W]e were all doing

unusual things. We weren’t in normal configuration.

Changing an employees nonexempt status – just as the

employer is altering his duties – based solely upon a mapping

based on duties performed before the change is not in good

faith.

Fifth, when AEP was done with its reorganization, no

employees in the IT department worked in positions classified

as nonexempt. AEP has an affirmative obligation under the

act not to misclassify employees as exempt, and an

affirmative obligation to inquire into classification, Martin,

940 F.2d at 908-09, obligations which it failed. AEP was not

acting in good faith when it implemented this reorganization

which classified all IT workers as exempt. Finally, even if

AEP actually believed that it had made the correct

classification (which alone is not sufficient to avoidliquidated

damages), Martin immediately complained about his

classification as exempt, putting AEP on notice of the

problem.

Some of this evidence suggests willfulness and some

merely suggests negligence, but none of it establishes good

faith. Because AEP has not established that it acted in good

faith when it classified Martin as exempt, this Court and the

district court are without discretion to limit or deny liquidated

damages. We need not reach the question of the objective

reasonableness of AEP’s classification of Martin as exempt.

III. CONCLUSION

For the reasons stated above, we REVERSE the decisions

of the district court and REMAND for entry of summary

judgment in favor of plaintiff, and for calculation of damages,

including liquidated damages.
No. 02-2343 Martin v. Indiana Mich. Power Co. 21

_____________________________________________

CONCURRING IN PART, DISSENTING IN PART

_____________________________________________

ALAN E. NORRIS, Circuit Judge, concurring-in-part and

dissenting-in-part. I concur in the majority’s ruling insofar as

it concludes that the grant of summary judgment in favor of

defendant was in error. However, I disagree with the

majority’s conclusion that there is insufficient evidence in the

record for defendant to avoid summary judgment. Genuine

issues of material fact exist regarding whether plaintiff was

properly categorized as a “computer professional.” In

particular, deposition testimony reveals that plaintiff had not

only been assigned “the Windows 2000 project,” but had been

sent to training courses aimed at teaching him how to

“develop standards that [are] use[d] on [defendant’s]

operating systems.” As plaintiff attended these courses, his

duties “evolv[ed].” This testimony demonstrates that

plaintiff’s primary duties might well have classified him as a

“computer professional.” Accordingly, I would remand the

case for trial.