* The Honora ble Pete r C. Economus, Unit ed Sta tes Dist ric t Ju dge f

or the Northern District

of Ohio, sitt ing by designati on.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0277P (6th C ir.) File Name: 04a02 77p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

ANTHONY M ART IN ,

Plaintiff- Appellant

,

v.

I NDIANA M ICHI GAN P OWER C OMPANY , d/b/a American Electric Power, Defendant-Appellee. X

- - - -

> , - - - - - N No. 02-2343

Appeal from the United States District Court for the We stern Dis trict of M ichiga n at Gran d Rapids. No. 00-00218—Wendell A. Miles, District Judge.

Argued: March 17, 2004
Decided and Filed: August 23, 2004

Befor e: NORRI S and COL

E, Circuit Judges; ECONOMUS, District Judge. * 2 Martin v. Indiana Mich. Power Co. No. 02-2343

_________________ COUNSEL

ARG UED: Stephen D . Turner , LAW, WEATHERS & R ICH ARDSON, Grand Ra pids, Mich

igan, f or Appel lant. Joseph J. Vogan, VARN UM, RIDDERI NG, SCHMIDT & HOW LE TT, Grand Rapids, Michigan, for Appellee. ON BRIE F: Stephen D. Turner, Gregory N. Longworth, LA W, WEATHERS & RICHARDSON, Grand Rapids, Michigan, for Appellant. Joseph J . Vogan , Peter A . Smit, VARNUM, RIDDERI

NG, SCHMIDT & HOWLETT, Grand Rapids, Michigan, for Appellee.

COLE, J., del iv ered the opinion of the court, in which ECONOMUS, D. J., joined. NORRIS, J. (p. 21), delivered a separa te opinion

concurr ing in pa rt and dis senting

in part.

_________________ OPINION

_________________ R. GUY COLE, JR., Circuit Judge. Plaintiff-Ap pell ant Anthony Martin claims that his employ er, Indiana Michig an Power Company, d/b/a Ame

rican El ectr

ic P ower (“AEP”), violated the Fair L abor Stan

dards Act (“FL SA”), 29 U .S.C. §§ 201-19, by failing

to pay him time-and-a-hal f for hours worked in a given wee k in excess of forty hours. AE P counters that Ma

rtin is a bona fide administrative or professional employ

ee, exemp t from the

FLSA ’s overt

ime require ments. The parties filed cross-motion s for summary judgmen t, and the district court granted summary j udgment for AEP, holding that Martin was exempt from overtime pay req uiremen ts because he was bo th an admi

n istrative em pl oye e and a computer professional. For the reasons be low, we REVERSE

the judgment

of the district court and REMAND for entry of summar

y ju dgment i n favor o f the plaintiff, and for cal culation

of damag es, inclu

ding liqu idated da mages.No. 02-2343 Martin v. Indiana Mich. Power Co. 3

I. BACKGROUND

Prior to AEP’s r

eo rganization of its Information Techno logy

(“IT”) de

partmen t, M artin held the position of “Computer

Security /Standar ds Tec hnician,” which AEP classi f ied as nonexempt. On November 1, 1998, when the department

was reorganized, Martin’s title wa s chan ged to “IT Support

Specialist,” which AEP classified as an exempt position. Accord

ing to AEP, the purp ose of the reorganization

was to “push down re sp onsibilitie s to workers,” “to delegate more autho ri ty,” and to “fla tten the organization.”

Mike Thornburg, Martin’s supervisor, describes the functionof

his IT Support team as follows: “Maintaining the computer wo rkstation

so ftware, troubleshooting and repair ing, network

document

a ti on, that is our primary job. W e were a maintenance org anization that takes care o f computer sys tems.” The compute

rs that Ma rtin works on are workstations (or “PCs”) at individual desks connected to a local area network (“L

AN”) ; Ma rtin does not work on the plant process computer – “which deals with the plant, what’s going on as far as the reactor opera tors”– which

is a different system.

When people at the plant have probl em s with thei r computers, they call the he lp d esk wher e the hel p desk employees

put the problems into a database as “h elp d esk tickets,” which Ma

rtin print s out. Mar

tin responds t o these help desk tick

ets. He g oes to the location indicated where he attemptsto determine the nature of t he proble m, to “trouble shoot”it to determine how to proceed, and to re p air t he problem if possible. Martin installs software, such a s Microsoft’s Office 97, on individual work stations. He troubleshoots Windows 95 problems and installs provided softwar e patche s.

If Martin cannot

fix a problem, he will report the problem and how he tr

ied to fix it to

Thornburg . Thornbu

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

decide whether to request service from the manufa ct u rer or ord er a repla cement p art or un

it. Martin , howeve

r, does no t decide or make recommendations as to whether a pie ce of equipment

must be serviced

or replaced. Nor has he written reports onhis troubleshooting or repair activities. He has not recommended

the purchase of any

equipment, hardware, or softwar e, althou gh Thor nburg c onsiders

Martin’s comments

onprinters

and prob lems “va

luable” in his own d

ecisio n making process.

In a ddition to processi

ng help desk tickets, Thornburg

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

a period of time while the nuclear react ors were shut down between Novembe

r 1998 and May

2000, Mar

tin relo ca ted workstations to trailers and tempora ry building s. Sometime in2000, Cook brought in contractors to move wo rksta tions. Thornburgtestified

that, prior to that, every

one in IT Support

– includ ing 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 hardwar

e and ca ble for the network, including network components such as hubs, switches, and

routers , when Cook was physica lly expanding the LAN to trailers and new building s. Martin worked in the wiring closets: t

ermi nat ing the cables (that is, putting connectors on the ends of the cables), plugging them into the hubs, and verify

ing that they were

connected by

phoning the system administr

at or to confirm that the hubs had appeared

onthe network. Ma rtin was not involved in designing the configuration

of either the cables or the hardware he installed,

nor does he install any

progra ms onto the network. Third, on January 2, 200 1, Thor nburg assigned Martin to clean up the wiring closets, to make s ure the master network diagram

accura tely reflected wha

t wa s physically

in the closets and update it if ne ce ss ar y, and to get th e locks change d, if possible, so that one key would open a ll the closets.No. 02-2343 Martin v. Indiana Mich. Power Co. 5

Shortly before Thornburg’s February 28, 2001, deposition, Martin received another assignment. Ac cordi ng t o Thorn burg, he assigned Martin “to review a W ind ows 2000 operatingsystem that we have just developed. ” At the time of the deposition, Thornburg explained that Martin was in the “proce ss” of “preparing” to do the revi ew . For the assignment, Martin was supposed to “review the desktop operatingsys tem 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 cor recti ons.” This assign m ent – appare ntly made after the litigation

commenc ed – is the

first of this type for Martin. As Thornbur g put it, Martin’s duties were “evolving.”

Martin has no computer certifications and no degr ee be yond high school. He has taken one cour se i n micro compu ting, a clas s in us ing Windows 2000, and four, week-long

hands-on computer training classes . Martin h as a work bench located in a common work area – also referred

to

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

ownphone line; every

one in the area shares a “shop phone.” He wears a

blue shor t-sleeve d work shi

rt with two pocke

ts on the fr ont, a name badge that say s “Tony,” a

nd a badge that

s ays “D .C. Cook, CSS Section”; blue work pants; and work boots.

II. ANALY SIS

This Court reviews de novo a district court’s grant of summary judgmen t. Stephenson v. Allstate Ins. Co. , 328 F.3d 822, 826 (6th Cir. 2003). Sum mary judgmen t is appro priate if, after examining the record and draw ing all inference s i n the light most

favora ble to th e n on -m ov in g p ar ty, there is no genuine issue as to any mater ial fact and the moving pa rty is entitled to judgment

as a matter of law. F ED .R.C IV .P. 56(c); Agristor Fin. Corp. v

. Van Sick le , 967 F.2d 233, 236 (6th Cir. 1992). 6 Martin v. Indiana Mich. Power Co. No. 02-2343

1 In add iti onal to th is s hif tin g of the burden of proof, Marti n argues that the e mploy er ha s t o prove e ach el ement to a h igh er bur den of

proof than to a preponder anc e of the evidence, ci ting Ale v. Tenness ee Valley A ut h.

, 269 F.3d 6 80, 69 1 n.4 (6th C ir. 2001 ) (“The d efendant m ust establish throug h ‘clear a nd affirm ative ev idenc e’ that t he employee

mee ts every re quire men t of an ex emp tion.”). Ale and th e othe r circuits that have art icul ated th is “ clear a nd aff irmat ive evi dence ” langua ge, see The FLSA requires employ ers to pay their employees

timeand-a- half

for w ork p erformed

in exc ess o f forty hours pe r week, 29 U.S.C. § 2 07(a)( 1), but exe mpts emp loy ers from this requirement with respect to individu a ls “employed in a bona fi de executive, a dministrative, 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 categ ories. AEP argu es that Martin is exempt as both an “admi nist rative” employee a nd a “computer professional,” which is a subclass of “professional” employ ees.

The exemptions to the FL SA’s over time provision s are “t

o be ‘narrowly

construe d again st the empl oye rs seeki ng to assert [them],’” Douglas v. Argo-Tech Corp. , 113 F.3d 67, 70 (6th Cir. 1 997) ( quot ing Arnold v. Ben Kanowsky, Inc. , 361 U.S. 388, 392 ( 1960)), a

nd the emp loy er bears n ot on ly the burden of proof, but also the burden on each element of the claimed ex emption. Id. Becau se the bur den of pr oof is sh ifte d, Martin is entitled to summary judgment unless the defendant can come forward with evidence at least c reatinga genuine issue of material fa ct as to whethe r Martin meets each an d e ve ry element of

the exempti on. I f AEP fai ls to proffer such evidence, not

only must its motion for summary judgment be denied, but summary judg ment for Mar tin must be granted. See Schaefer v. Ind. Mich. Power Co. , 358 F.3d 394, 407 (6 th Ci r. 200 4) (Su hrhei nrich , J. c oncur ring) (assert ing t hat Schaefer was entitled to summary judgment because “[i]n my view, AEP h as, at a

minimum, fa

iled to create a genuine issue of fact on the questio n of whether Schae fer's primary

duty ‘includes work r

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

Klinedin st v. Swift Investments, Inc. , 260 F.3d 12 51, 1254 (11th Cir. 2001); Dono van v. U nited Video, Inc. , 725 F.2d 57 7, 581 (10th Cir. 1984), have d one so witho ut e xplana tion of what the phrase means. Martin, perhaps drawi ng fr om the si milar ity to th e p hrase “ clear and convinci ng evid ence ” urge s us to ho ld that Ale sets a heigh tened evidentiarystandar d. Alt ernati vely, “clear and aff irmat ive evi dence” may simply be a w ay of res tating wh at we have sai d above: th e employer bears the bu rden of pro ving ea ch and every e leme nt o f the exe mptio n in

a remedi al s tatute t

hat is t o be narrowly construed against t he employer. Since the meani ng of

the ph rase w ould not ch ange the resu lt in t his ca se, any exposition by us on the inte nti ons of t he Ale court would be mere dicta. For purposes of this analysis, we vie w the facts in the light most favorable to AEP. The facts regarding Martin’s workplace tasks are largely undisputed. The parti es do disagree, however, about how much t ime Ma rtin spends on hardware versus software t asks and how mu ch time Ma

rtin

s pent moving work stations with or without the h elp o f contractors. These d isput es, howe ver, ar e ultimate ly irrelevant because neither Martin’s hardwar e nor software work exempts him, and, regardless of how muc

h time Martin spent moving computers, his other s tasks ar e no more exempt.
A. Computer Professional Exemption

To establish that Martin is a “computer professional” under the regulation s and therefore not entitled to overtime, AEP must demonstrate that (1) the em ploy ee “is compensated on

a salary or fee b asis at a r

ate of no t less than $250 per week”

or that the employ

ee “is c ompensat

ed on an hourly

basis at a ratein ex cess o f 6 1/2 time s the m inim um wage ”; (2) the employee’s

“primary duty

consists of the performance of

. . . [w]orkthat req

uires the oretica

l and pra ctic al a pplication of highly-spe cialized

knowl edge incomputer

sys tems ana

lys is, pr ogram ming, and software engineering , and [the employee is] employ

ed and e ngag ed in thes e activ ities a s a computer sys tems analyst, computer programmer, software

engineer, or other similarly skilled worker

in the com

puter sof tware f ield

. . . ”; an d ( 3) th e e mp lo yee ’s pr im ar y du ty “ inc ludes work 8 Martin v. Indiana Mich. Power Co. No. 02-2343

requiringthe consistent exercise of discretion and judgment.” 29 C.F.R. §§ 541.3(a)(4), 541.3(e).

F irst, AEP must establish that Martin is payed on a s alary
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 mi nimum wa ge. 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 Ma rtin’s hours are prescribed and he must obtain approva l fromh is supervisor to vary his hours. See Renfro v. Ind. Mich. P ower 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 A EP pay s him straight overtime for some overtime hours, based on Kennedy

v. Commonwealth Edison Co. , 2 42 F.Supp .2d 542 (C. D.Il l. 2003), which subsequently has be en vacated an d rec onsidered at Kennedy

v. Commonwealth Edison Co. , 252 F.Supp.2d 737 (C.D.Ill. 2 003). We need not conside r this nove l (and onl

y partiall y briefed) argument, howeve r, because we can

decide Martin’s status on the ground below.

AE P must raise

a genu ine issue of fact regar ding whe th e r Martin’s “primary duty

consists of the performance of . . . [w]orkthat requires theore tica l and practical application of highl y-special ized knowl edge in compute r sy stems ana

lys is, program ming, and so ftware engine ering, and [whether he is] employed and eng aged in

these activities as a computer sys tems analyst, computer pr ogrammer, software

engineer, or other similarly skilled worker in the computer software field.” 29 C.F. R. §§ 541.3 (a)(4) . Thus, al though M artin is no t a sys tems analyst, prog

rammer, or

software engine er, he c ould still be exempt f

rom over time if his work “requires theoretical and practical appli catio n of hi ghly-spec iali zed k nowle dge in computer sys tems ana

lys is, programming, and software engineering.”

The district court concluded that Martin was a computer profess ional: “Ma

rti n falls within the exemption for aNo. 02-2343 Martin v. Indiana Mich. Power Co. 9

profess io nal employed in a computer -related occupation: there is no gen

uine dispu

te that his work requi res highlyspecialized

knowled ge o f compute

rs and softwa re , and the evidence shows that he customarily and r egularly exercises discretionand indep endent ju dgment i nhis work. ” (empha sis added). The district court made an understandable mistake,

one that arises from the common perce ption that all jobs involving computers are ne cessar il y hi g hly complex and require e xcep tional expertise. However, the regulations provide that an e

mploy ee’s pr imary duty must r eq uire “theore ti cal and practical application of highly -specialized knowl edge in computer systems analysis, programming, and software engineering ” not mer ely “hig hly -specialized knowl edge of

compute rs and softwa re .” This is an important d ifference. The former is a narrower cla ss of jobs tha t requires a diffe rent l evel o f know ledge and training than the latter. Furt

her, it is a distinction which

will only

become

more relevant as the range of c omputer-related jobs continues to broaden.

Martin does n ot do computer programming or softwar e engine ering; nor does he pe rform systems ana lysis, which involves making actual, analy tical decisions about how Cook’s computer network should function. Rather, Martin’s tasks – installing and upgrading hardwa re and software on workstat ions, config

uring de sktops, checking cables, replacing parts, and troubleshooting Windows problems – are all perfor med to pre determined speci fic atio ns in the system design create d by

others. As Martin testified, he is provided the standard “desktop” for installation on the computers he

co nfigur es, but he is not involved in determining what the desktop should look like. Thornburg explained, as we noted above, that IT Support is “a m ainten ance organization that takes care of computer sy stems.”

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

lys is, 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 oneor more of the fo llow ing:
(1) The application of syste ms analysis techniques and procedu res, including consul ting with us ers, to determine hardware, software, or

sys tem func tional spe cificat ions;
(2) The desig

n, develo pment, doc

umentation, analy

sis, creation, testi ng, or modification of computer sy stems or programs, including prototy pes, based

on and related

to

user or syst

em desig n specif ications;
(3) The desig

n, docume

ntation, te st in g, creation or modificationof computer programs related to mac hine operating sy stems; or
(4) a combination of the aforementioned duties, the perfor mance of which re quires th e same le vel of ski lls.

AEP selectively identifies certain words fr om this regulation

– particularly “ consulting with user s” and “ testing” – and applies them out of context. There is simply noevidence that Martin “consult s with user s, to determine hardware, software

, or system functional specific ations.” Martin “c o nsults with users” for purposes of re pair and user supp ort, not to determine what “hardware, software , o r system functional specific ations”

the Cook facility will employ, as a sys te ms analy st might. Likewise, when Mar t i n does “te sting,”

he is testing things to figure out what is wrong with a workstation, p rinter, or piece of cable so that he can re store it to work in g order. He is not doing the type of tes ting tha

t is involve d in

c rea ting a system, determining the desired settings for a sys tem, or ot herwi se substa ntively affec ting the

sys tem. Indeed, he is merely e

nsuring that the particu lar mach ine is working properl

y acc ording to the specifications designed and tested by other Cook employees. Ma intaining the computer system within the predetermined parameters does not require “theoretical and pract ic al application of highly-specializedNo. 02-2343 Martin v. Indiana Mich. Power Co. 11

knowl edge in compute

r sy stems ana

lys is, program ming, and software engineering .”

Martin has one project that might fall under the categ ory of sys tems an al ys is: the Windows 2000 review. This project

was apparently a ssigned after the instantlawsuit commenced, and, accord ing to Thorn burg, Martin wa s only “ in the proc ess right now of preparing

to reviewa Windows 2000 operating system,” as of the date of Thornburg’s deposition. Even were

w e to conclude that this project is systems ana l ysi s , Thornburgwas unab le to provide any estimate of the amount of t ime that he expected Martin would spend on the proj ec t butdid in dicat e elsewhere that Martin had various other assignments. This sing le proje ct does no t m a ke sy stems analysis Martin’s primar

y duty

. Fi na ll y, the dis sent suggests that there is a dispute of material fact

regarding whether

Martin took

training courses teachi ng him to deve lop standa rds. Eve n if such a

factu a l 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 a

re requ ired to anal

yz e how the employee is actually spending

his time, see 29 C.F.R. § 541.3(e ); Ale v. TennesseeValley Auth. , 269 F.3d 680, 689-90 (6th Cir. 2001), notwhat he is traine d to do (but is not doing as his primary du ty) or what he is training to do in the future. Nor are trainees bona fide

computer

profess ionals. 29C.F.R. § 5 41. 303(c). Only

at such a

time that syst

ems anal ysi s becomes M a rtin’s pr

imary duty can AEP c lassify

him as a bona fide computer

profess ional.

Since AEP has only presente d one task – the Windows 2000 project

– th at might fall under the “computer profess ional”

exemption and since, even viewing the facts in the light most favorable to AEP, that t ask is not Martin’s primary duty, AEP has failed to ra ise a genuine issue of

ma terial fact regarding w hether Martin is a bona fi d e 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 establi sh that Martin is a bona fide administrative employee under the applica ble Department of Labor

(“DOL”) regula tions, AEP must

demonstr ate that: (1) the e

mploy ee is “compensated

on a sala ry or fee b asis at a rate

of not les s than $250 per wee

k”; (2) the employ

ee’s “primary

duty consists of

. . . [t]he performance of office or nonmanual work d ire ctly related to ma

nagement policies or gener al business operations of his employer or his employ er’s customers”; and (3) the empl oy ee’s primary duty “includes work requiring the exercise of discretion and independent judgment.” 29 C.F.R. §§ 541.2, 541.214.

Martin is entitle d to su

mm ary judg

ment because AEP has neither established that, nor raised a genuine issue of material fact regar ding whe ther, Ma rtin’s pr imary duty is “direc tly related to manag ement pol icies or general business o

pera tions of his employ

er or his employ er’s cu stomers.”

29 C.F.R. §§ 541.2(a)(1), 541.214(a). This provision , i n addition to describingth e t yp es of activities performed by an exempt employee, “limits the

exempti on to persons who perform work of substantial importance to the m anagement or operation of the bus iness of h

is e mployer

or his employer’s customers.” 29 C.F.R. § 541.205(a).

AEP’s only

argume nt that Mar

tin ’s wor k is “directly re lated to management policies or gene ral businessoperations of the employer”

is that Martin’s work is not production work. That is, he is not pr

oducin g electricity be cause he is not an “operator” running the nucl ear p ower equipment – and therefore his work is administrative and thus “directly r elated to manage

ment polic ies or g eneral

businessoperations of the employer .” Under AEP’s theory , shippers of radioactive waste, the individuals who don radiati on suits and perform maintenance work on the reactors, the janitorial staff, t he security guards, the cooks in the company cafeteria, and various other worker s including Martin are all doing work “rel ati ng to the adm

inistrativ e opera

tions of the

business”No. 02-2343 Martin v. Indiana Mich. Power Co. 13

purely bec ause they do not oper ate the nuclear reactors. See Schaefer

, 358 F.3d

at 402 (holding that a shipper of radioactive material was not doing admin istra tive work) . We have rejected the argument that all work that is not production work is automat

ically “direc tly

rela ted to management policies or general bus iness operations of the employe r.” Id

. at 402-4 03. In deed, 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

s uch an a rgumen

t misses the

point. AEP’ s error

is in concludingthat all w ork is eithe r related to “the administrative operat io ns of the business” or production work. The regulations do not set up anabsolute dichotomy under which all work

must either be classified as production

or administrative. Rather, the regul ation s disting uish productionwork from the administrative o perations of the businessat 29 C.F.R. § 541 .205(a ) – thus production work cannot be a dmi nistrative – and then go on to define the admi nistr ative operati ons of the business a

t 29 C.F.R. § 541.205(

b). To ac cept AEP’ s alterna te read ing of 29C.F.R. § 541.205(a) as setting up an absolute dicho tomy would render the further

definition of “the administrative operations of the business” in 29 C.F.R. § 541.205( b) ut terly superfluous.

Martin’ s primary job duty does not “relat[e] to the administr ativ e operations” at Cook. “The administrative operations of the business include the work performed by

socalled white-c ollar emp loy ees e n gaged in ‘servicing ’ a businessas, fo r exam ple, a dvis ing th e manage ment, plann ing, negoti ating, repr esenting the co mp an y, purchas in g, promoting sales, and business research and contro l.” 29 C.F.R. § 541.205(

b). As we

have note d, Thornb

urg de scribed

his te amas a “maintenance orga nization that takes car e o f computer systems.” Martin is in no way involved i n “advising the ma nageme nt, planni ng, neg oti ating

, representing t he company, pur chasing, promoting sales, and businessresearch and control.” See also R enfro , 370 F.3d at 14 Martin v. Indiana Mich. Power Co. No. 02-2343

517 (AEP’s “planners” were bo na fide administrative employees

where their

primary duty fell withi n this definition of “servi cing” the busine ss). Mar tin’s job, i nstead, i s to assist inkeeping the computers and network running to the specifications and designs of others.

Nor is Martin’s work “of substantial import ance to the management

or operation of

the business of his employer.” 29 C.F.R. § 5 41.205(a). Work that is of substantial importance “is not limited to persons who participate in the formulationof

management policies or in the operation of the busines s as a whole,” but includes employees whose work “affe cts policy

or whose responsi bility it is to exec

ute or carry it ou t.” 29 C.F.R. § 541.205(c). And an employ ee’s work need not affect operation of the busines s as a whole to meet this criteri on: it is eno

ugh tha t the employe e’s “work affe cts businessoperati ons to a substantial degre e, even though their assignments are tasks related to the operation of a par ticular segment of the business.” Id

.
AEP never pr

esents a n argument that Martin’s work itself is “of substantial importance to the management or oper ation of the business of his employer.” Indeed, AEP could not

success fully

argue that Martin’s work itse lf is “of substantial importance to the management or operation of the busine ss of his employer” be cause 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 type s of workstat ions, network , hardwa

re, or so ftware

AEP employ

s; he is not involved in the design or devel opment of AEP’s network; he does not decid e what so ftware

will be av ailable to AEP’s computer users or determine how that softwarewill be config ured; an d he does n ot deci de or recommend when equipment

must be serviced or replaced. Rather, he sets up and repair s parts of

a sy stem wholl

y de sig ne d and approved by others. T here isno evidence that he has any input into the nature of the computer re sources ava ilable to A EP employ

ees.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 require

ment from

a portion of the re gulation that sta tes: “An employee

perfor ming rou tine cler ical dutie s obviously

is not pe rforming work of substantial importance . . . .” 2 9 C.F.R. § 541.205(c)(2). AEP attempts to derive the negative fromthis proposition ands ay that duties that are complex rather than “routine clerical work” areof substantial importance. This argument is the logical equivalent of say

ing th at becaus e a chihuahua is obviously not a cat, then every animal tha t is not a chihuahua is a cat. Without addressing the issue of whether

Martin’s work is actually

“complex,” it is sufficie nt to say that mere complexity

would not ma

ke his work subs tantially

important

under the regula tions.

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

the value of the sy stems 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 th e size

of the consequences or loss that may result from impr

oper per formanc e of the e

mploy ee’s dut ies. As the regulations note, an employ ee oper ating a very expensive piece of

eq uipment, a messenger boy entrusted

w ithcarry

ing large sums of money, and an inspect or for a n insurance company

can all c ause the ir

employers

serious lo ss by failure to perform their jobs proper ly, but “such employ ees, obvio us ly, are not per forming work of such substantial importance to the management or operation of the businessthat it can be s aid to be ‘ directly related to manag em ent

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 super vision is re levant to the inquiry, citing an unpublished c ase, affirmed without comment by the Eleventh Circuit. Easter v. Florida Po wer & 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 (11t

h Cir. 2000) 16 Martin v. Indiana Mich. Power Co. No. 02-2343

(table). While the fact that an employe e works independ ently might shore-up a conclusion that a w ork er is doing work of “substantial importanc e, ” that fa ct standin g alone has little rele va nce to the inquiry. Night janitorial wor kers, for example, often work indepe ndently a nd without direct supervision, as do any number of s killed tradesmen such as nonexempt e lectric ians and p lumbers.
Finally, AEPsuggests we should consider Martin’s salary

as evidenc e that his work is of substantial importance since he makes more than “the averag e blue-c ollar wor ker.” T his argument is an a ttempt to draw attention away from the fact that Martin’s work itse lf

is not substa

ntially important under the regulations. Salary

may be used to dete

rmine the primary duty of an emp lo yee w ho performs both exempt and nonexempt tasks by compari ng hi s salary to the sala ry of employees

who are just

doing the nonexempt tasks, see 29 C.F.R § 541.103, not to dete

r mine the nature of those tasks themselve s. Salary diffe rential do es not answer the substantial importance question. The fact that a no nexempt, unionized, skilled plumber may ear n mo re than an exempt public school te acher d

oes no t change the nature of the plumber’s work.

Insum, the e

vidence viewed in

the ligh t most favorable

to AEP neithe r establishes that nor raises a genuine issue of material fact regarding w hether Martin’s work is “direc tly related to management pol icie s or general business operations of his employ

er or his employer’s c

ustomers.” Thus, not only is AEP not ent

itled to sum

m ar y judgmen

t, but Mar

tin is entitled t o summary

judgmen t.
C. Liquidated Damages

Anemployer who

violates t he FL SA’s over

time provisions is liable to

the employee in the

amount of

the unpai d overtime compensa tio n “ and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). L iquida t ed damages under the FLSA “a re compensation, not

a penalty orNo. 02-2343 Martin v. Indiana Mich. Power Co. 17

punishment.” Elwell v. Univ. Hosp. Home Care Ser v. , 276 F.3d 832, 840 (6th Cir. 2002) ( internal quotes omitted). Alth ough liquid ated 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 Ci r. 1991) (emphas is in original), Congre ss has provided the courts wi th

some discretionto limit

or deny liquidated dama

ges. See 29 U.S.C. § 260; Martin , 940 F.2d at 907. Un

der thisexception, if an employ

er demon strates both good fa ith and re aso nabl e grounds for the in

correc t classif icati o n, then a court may exercis e its discreti on to limit or deny liquidate d damag es. Elwell

, 276 F.3d a

t 840; Martin , 940 F.2d at 9 07. But “ [t]his burden on the employer is substantial,” Elwell , 276 F.3d at 840, and if the

employ er fail s to carry it, the court may not limit or deny liquidated dama ges. El well , 276 F.3d at 840; Martin , 940 F.2d at 907.

To prove tha t it acted

in good f

aith, an e mploy er “must show that [it] took affirmative steps to ascertain the Act’s require ments, but nonetheless violated its pr ov isions.” Martin
, 940 F.2d at 908. “Good faith” m eans more than merely no t w il lf ul ly mis classifying

the employee. Elwell

, 276 F.3d at

841 n.5. The employer

has an affi

rmative d uty to ascert ain and meet the FLSA’s re quirements, and an empl oyer who negligently

misclassifies an e mplo yee a s exempt is not actingin good

faith

. Id . Thus, the

violation o f the FL SA does not have t

o be in tentional for Martin to recover liquidated damages, and AEP has theburden of establishing that it acted in good faith when

affirmatively de

termining that Martin was exempt. See Mart in , 940 F.2d at 908.

AEP argue s that it act ed in good faith because it relied on

a form that Martin filled out during the reorga nization of the IT de p artment – an“employ ee mapping form” – on which Martin specifie d his job level under the new organization as “IT SupportSpeciali st

I.” Reliance on this map

ping doe s not, however , establish good f aith for a variety of reas ons. 18 Martin v. Indiana Mich. Power Co. No. 02-2343

First, AEP cannot claim reliance on Ma rtin’s choice of position when AE P i ts elf in st ruc ted Mar ti n t o ch oos e th e IT Supportjob family

, all of wh ich positions are exempt. Mart in testified at deposi tion that he

chose the IT Sup port Spec ialist group rather than the technician group be caus e he was instructed to do so by Thornburg

. AEP has no t disputed this proposition.
Second, even if A

EP could r

ely in good f aith on Ma

rtin’ s choice of IT Support Specialist I , it could not, in good fai t h, classify any employ

ee in tha t position as exempt without further informationbecause 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 Speciali st I roughly

describes the nonexempt user support work that Martin actually pe

rforms. The second task listed – “[p]artic ipate inthe review, evaluation, analysis, and

recommen datio nof information systems and proc edures” – may wel l be exempt. The third task, whic

h requir es th e employee to “[m]ainta

in recor ds, docume

ntation, ma

nuals, and prepare status reports,” is amorphous and appe ars in the vast majority of the I

T pos itio n descriptions, including the nonexempt technician positions. The remaining items are not job tasks per se but merely require the emplo ye e to maintain certain skills. But, of cours e, the exempt work must be the employee’s

primary duty

, and the job description provides no indicationth e se con d of

th e ta sk l is ted is th e pr im ary d ut y. If anything, the orde

r of the ta sks, the nam e of the j ob family ( IT Support) , the “ty

pical job tracks” in the job f

ami l y description, and the mapping instructions (“Support staff/Technicians to maintain [hardware and software] and help customers use them ”), all sugg est that the first, nonexempt task is primar y. Th us, to classify any

employee who choseIT Su

pport Spec ialist I

as exempt, AEP would need more informatio n, an d the FL SA’s goo d-faith require ment req uires AEP to seek it

out.

But AEP’s misclassification of Martin was no t, in fac t, based on this lack of

information. AEP actually cla ssifies theNo. 02-2343 Martin v. Indiana Mich. Power Co. 19

entire IT Support

job family as exempt, even though positions II thro ugh IV do not include any exempt tasks. Thus, AEP would have incor

re ctly classifi ed Martin

as exempt r

egard less of what level within the job family he chose.
Third, even if M artin ha d incorr ectly pi cked an actual exempt position in t he m apping, AEP cannot claim to have relied on it in good faith when it affirmatively knew that Martin was doing

nonexempt work. I

n addition

to Thornburg’s knowledge of Mart in’s actual tasks, two document s la

bel ed “ jo b de scr ip ti ons ” wh ich li st all th e IT employee s’ job descriptions demonstrate that AEP knew w ha t kind of work Martin was doing. These documents – date d August 2000 and Dece mb er 2001 – list Martin’s job desc ription as follows: “Workstations, Network Printer s , Wiring Closet Hardware, Pagers, R adio Controlle d Cranes

, Fiber Optics.” AEP cannot claim – in the face of this job description– that it ac

tually thought that Martin’s primary job duty was “pa rtici pat[ ing] in the re view, ev aluation , analy

sis, and recommendation o f information systems and proc e dures. ” The FLSA requires the e

mployer to make F LSA ex emp tion decisions based on the empl oye e’s a ctual job duties, not the employ e e’s job title, Ale , 269 F.3d at 689-90, and the good faith requirement imposes an affirmative burden. AEP may notrely on incorr

ect info rmati on in the face of its actual knowledg e of Mar

tin’s job a

ctivities

. Fourth, the date of reclassification provides additional evidence that AEP was not acting in good faith. AEP actua lly classified Martin as exempt

on November

1, 1998, just as the Cook nuclear reactors were be ing taken offli ne for an eighte en-month

shutdown, plunging

the plant into a period

of non-standard activity a

nd hours. As Thornburg explained:

The last three ye ars at this facility have been very

nonstandard. What I mean by that is we have been in a shutdown ou t age for three years. We all did nonstandar d tas ks during

that thre e year per

iod of time

to install compl exes , we in stall trail ers, w e inst all bu ildi ngs 20 Martin v. Indiana Mich. Power Co. No. 02-2343

that are no longer a

t this fac ility

for th at th ree ye ar period. . . . [W]e

were a ll busy doing whatever

we had to do to restar

t the fac ili ties. . . . [W]e were all doing unusual things. We weren’t in normal configuration.
Changing an em pl oye es non exempt status – just as the employer is altering his duties – based solely upon a mapping bas ed on duties performed before the chan ge is not in goo d faith.

Fifth, when AEP was done w ith its reo

rganiza ti on, no employees

in the I T depar

tment wor ked in posi

tions clas s i fied

as nonexempt. AEP has an affirmative obligation under the act not t o misc lassify employ ees as exempt, and an affirmative obligation to inquire into classification, Martin
, 940 F.2d at 908-09, obligations which it failed. AEP was not actingin good

faith when it implemented this reorganization whichclassifi ed all IT workers a s exempt. Finally , even if AEP ac tu al ly b elie ved that it had made the correct classification

(which a lone is not sufficie nt to avoid liqui dated damages), Martin imme diately complained about h

is classification

as exempt, put t ing AEP on notice of the problem.

Some of this evidence s u gges t s willfulne ss and some merely suggests neglige

nce, but none of it estab l ishes good faith. Because AEP has not established

that it acted in good faith whe n it classifi ed Martin

as exempt, this Court and the districtcourt are without discretion to limit or deny liquidated dama ges. We need not reach the question of the objective reasonableness of AEP’s classification of Martin as exempt.

III. CONCL USION
For the reasons stated above, we REVERSE the dec isions of the district court and REMAND for entry of sum mar y judgment in favor of plainti ff, and f

or calc ulation of damage s, including liquidate d damag es.No. 02-2343 Martin v. Indiana Mich. Power Co. 21

_____________________________________________ CONCURRING IN PART, DISSENTING IN P ART

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

t. I concur in

the majority’s ruling insofa r as it conclude s that the g

rant of s umma ry judgme nt in favor of defendant was in error. However, I disagree with the majority’sconclusion that there is insufficient evidencein the record for def endan t to av oid s ummar y judgm ent. Genuine issues of ma terial fact exist regarding whethe r plaintiff was properl y cat ego riz ed a s a “ com put er p rof ess io nal .” In particular, deposition testimony reveal s that plaintiff had

not only been assigned “theWindows 2000 project,” but had been sent to trainin

g cour ses aime d at te aching him how to “develop standar

ds that [a re] use[d] on [defenda

nt’s] operatingsys tems.” As

plaintiff attende d these c ourses, h is duties “evolv[ ed] .” This testimony demonstrates that plaintiff’s primary

duties mig

ht well have cla ssified hi

m as a “computer

professional.” Accordingly , I woul d re mand the case for trial.