               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   File Name: 14a0802n.06


                                      Case No.     13-2699

                          UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

                                                                  N           RLED
JOSEPH LITTLE,                                        )
                                                      )
                                                                  I        Oct 23, 2014
                                                                      DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                           )
                                                      )         ON APPEAL FROM THE
v.                                                    )         UNITED STATES DISTRICT
                                                      )         COURT FOR THE EASTERN
BELLE TIRE DISTRIBUTORS, iNC.,                        )         DISTRICT OF MICHIGAN
                                                      )
       Defendant-Appellee.                            )
                                                      )
                                                      )                            OPINION


BEFORE: MOORE and McKEAGUE, Circuit Judges; STAFFORD District Judge.*


       PER CURIAM. Plaintiff Joseph Little appeals the district court’s grant of summary

judgment in favor of his employer, Defendant Belle Tire Distributors, Inc. Little brings this

action under the Fair Labor Standards Act, 29 U.S.C.      § 201, et seq., seeking unpaid overtime
compensation. For the reasons that follow, we vacate the order granting summary judgment and

remand for further proceedings.

                                              I.

       Belle Tire hired Little in June 2006 as a tire technician. Little was promoted to First

Assistant Manager in February 2009. Little has been First Assistant Manager at several Belle

Tire stores in Michigan. As First Assistant Manager, Little is on salary and currently makes


*
 The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern
District of Florida, sitting by designation.
Case No. 13-2699
Little v. Belle Tire

$1,100 semimonthly after a raise in 2011. Little is also eligible for monthly and yearly bonuses

based on store performance.

        Belle Tire’s job description states that a First Assistant Manager must show proficiency

in “Professional Selling Skills,” “inventory control and pricing,” as well as “knowledge of

location payroll control.” The job description further states that a First Assistant Manager should

have “necessary supervisory skills” and “managerial skills” and be “fully knowledgeable” of

“hiring and termination procedures.”

        The key evidence in support of Belle Tire’s motion for summary judgment was Little’s

deposition.   Though Belle Tire provided deposition testimony and sworn declarations from

Jeffrey Kruse, a Belle Tire corporate vice-president, Kruse was a member of corporate

management and did not work directly with Little. His statements appear to shed light on what

First Assistant Managers do generally but not on what Little did in practice. Belle Tire also

provided the sworn declarations of two Store Managers, Joseph Prior and Ryan Scaglione.

These declarations speak generally about Little’s responsibilities and collectively refer to two

interviews and a handful of training sessions involving Little. In his deposition, Little testified

that the two interviews were brief, minute-long exchanges and that the training sessions were on

topics selected by the company using videos and forms also prepared by the company. On a

single occasion Little gathered technicians for a five-minute refresher on teamwork.

       Ultimately, Belle Tire seeks to paint Little as influential in hiring and as actively leading

employee training and other management tasks. Little, on the other hand, seeks to characterize

himself as a salesman who provides clerical-type assistance to his store manager.




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Little v. Belle Tire

                                                 II.

        Little appeals the district court’s grant of summary judgment in favor of Belle Tire. Little

claims that the district court erred in granting summary judgment because there were genuine

issues of material fact regarding whether Little was an executive or administrator exempt from

overtime compensation.

        We review the district court’s grant of summary judgment de novo. Staunch v. Cont ‘1

Airlines, Inc., 511 F.3d 625, 628 (6th Cir. 2008). “In reviewing a motion for summary judgment,

we view the evidence, all facts, and any inferences that may be drawn from the facts in the light

most favorable to the nonmoving party.” Prebilich-Holland v. Gaylord Entm ‘t Co., 297 F.3d

438, 442 (6th Cir. 2002). In order for a nonmoving party to survive summary judgment, the

party must present specific facts showing a triable issue. Staunch, 511 F.3d at 628.

        Some employees are not eligible for overtime compensation under the FLSA because

they fall within certain exemptions to the FLSA. 29 U.S.C.     § 213. The district court found that
Little fell within the executive exemption and, alternatively, the administrative exemption. Id.

§ 213(a)(1). Exemptions “are to be narrowly construed against the employers seeking to assert
them.” Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007) (quoting

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). Although the defendant must prove

by “clear and affirmative evidence” that an employee falls within an exemption, the evidentiary

burden of summary judgment remains unchanged. Thomas, 506 F.3d at 502 (quoting Renfro v.

Indiana Michigan Power Co., 497 F.3d 573, 576 (6th Cir. 2007)).




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Little v. Belle Tire

                                                    III.

        Section 207 of the FLSA requires overtime compensation, but “section 207        ...   shall not

apply with respect to   ...   any employee employed in a bona fide executive, administrative, or

professional capacity.” 29 U.S.C.    § 213(a)(1).
        “Executive” is defined as an employee: (1) “Compensated on a salary basis at a
        rate of not less than $455 per week;” (2) “Whose primary duty is management of
        the enterprise in which the employee is employed or of a customarily recognized
        department or subdivision thereof;” (3) “Who customarily and regularly directs
        the work of two or more other employees;” and (4) “Who has the authority to hire
        or fire other employees or whose suggestions and recommendations as to the
        hiring, firing, advancement, promotion or any other change of status of other
        employees are given particular weight.” 29 C.F.R. § 541.100.

        There is no dispute that Little meets the first statutory factor because he makes a salary of

more than $455 per week. However, genuine disputes do exist regarding the other factors.

Though it is clear Little played some role in interviewing job candidates, preparing work

schedules, and conducting training, questions remain concerning the exact nature of the work

Little performed and the level of discretion that Little exercised. Such questions are suitable for

a factfinder’s determination. See Henry v. Quicken Loans, Inc., 698 F.3d 897, 901 (6th Cir.

2012) (citing Maestas v. Day & Zimmerman, LLC, 664 F.3d 822, 829 (10th Cir. 2012)

(concluding that the primary-duty determination is a factual one suitable for factfinder)). For

example, though Prior averred that Little “was often responsible for running the work order

board,” Little testified that every salesperson who worked at the counter had equal responsibility

for placing jobs on the work order board. Further, transcribing customer requests and placing

them on a work board does not necessarily involve an act of discretion or any supervision of the

technician fulfilling a request. As a second example, though Little did prepare the weekly work

schedule, Little also testified that preparing the schedule was a clerical, nondiscretionary task—

inputting requested time-off into a default schedule and submitting that schedule to a Store

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Little v. Belle Tire

Manager for approval. Because Little introduced testimony suggesting his job functions were

clerical or otherwise highly circumscribed by his supervisor, we cannot say the record clearly

and affirmatively establishes that Little fell within the executive exemption.

                                                  Iv.

        The administrative exemption applies when an employee meets the following factors:

        (1) Compensated on a salary or fee basis at a rate of not less than $455 per week
            (2) Whose primary duty is the performance of office or non-manual work
        directly related to the management or general business operations of the employer
        or the employer’s customers; and (3) Whose primary duty includes the exercise of
        discretion and independent judgment with respect to matters of significance.
        29 C.F.R. § 541.2009(a)(2).

        The salary factor is undisputed; however, genuine disputes exist over the other factors.

The FLSA regulations explicitly provide that “selling a product in a retail or service

establishment” is not “work directly related to the management or general business operations of

the employer.” Id.     § 541.201(a).   Although Little engages in office and non-manual tasks such

as typing up the schedule and preparing purchase orders, Little testified that he spends eighty to

ninety percent of his time engaged in sales duties.         Time spent on a task is not the sole

determinant of a primary duty, but the fact that Little spent the vast majority of his time on tasks

he could not do concurrently with administrative tasks creates a genuine dispute as to whether

his administrative responsibilities were his “primary duty.” Additionally, Little’s deposition—

the most detailed account of his day-to-day activities—suggests that Little’s discretion was

highly constrained. For example, Little testified that he submitted purchase orders but that the

vendors were chosen by Belle Tire and that quantities were based on stock levels in the store or

were decided by corporate management.




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Little v. Belle Tire

                                            V.

        Accordingly, we VACATE the judgment of the district court and REMAND the case for

further proceedings.




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