           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Martin v. Indiana Mich. Power Co.         No. 02-2343
        ELECTRONIC CITATION: 2004 FED App. 0277P (6th Cir.)
                    File Name: 04a0277p.06                                                  _________________
                                                                                                COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: Stephen D. Turner, LAW, WEATHERS &
                  FOR THE SIXTH CIRCUIT                                  RICHARDSON, Grand Rapids, Michigan, for Appellant.
                    _________________                                    Joseph J. Vogan, VARNUM, RIDDERING, SCHMIDT &
                                                                         HOWLETT, Grand Rapids, Michigan, for Appellee.
 ANTHONY MART IN ,                X                                      ON BRIEF: Stephen D. Turner, Gregory N. Longworth,
         Plaintiff-Appellant,      -                                     LAW, WEATHERS & RICHARDSON, Grand Rapids,
                                   -                                     Michigan, for Appellant. Joseph J. Vogan, Peter A. Smit,
                                   -   No. 02-2343                       VARNUM, RIDDERING, SCHMIDT & HOWLETT, Grand
            v.                     -                                     Rapids, Michigan, for Appellee.
                                    >
                                   ,                                       COLE, J., delivered the opinion of the court, in which
 INDIANA MICHIGAN POWER            -
 COMPANY , d/b/a American                                                ECONOMUS, D. J., joined. NORRIS, J. (p. 21), delivered a
                                   -                                     separate opinion concurring in part and dissenting in part.
 Electric Power,                   -
           Defendant-Appellee. -                                                            _________________
                                   -
                                  N                                                             OPINION
        Appeal from the United States District Court                                        _________________
   for the Western District of Michigan at Grand Rapids.
     No. 00-00218—Wendell A. Miles, District Judge.                        R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant
                                                                         Anthony Martin claims that his employer, Indiana Michigan
                    Argued: March 17, 2004                               Power Company, d/b/a American Electric Power (“AEP”),
                                                                         violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
             Decided and Filed: August 23, 2004                          §§ 201-19, by failing to pay him time-and-a-half for hours
                                                                         worked in a given week in excess of forty hours. AEP
          Before: NORRIS and COLE, Circuit Judges;                       counters that Martin is a bona fide administrative or
                 ECONOMUS, District Judge.*                              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
    *
     The Honorable Peter C. Economus, United States District Judge for   for calculation of damages, including liquidated damages.
the Northern District of Ohio, sitting by designation.

                                  1
No. 02-2343        Martin v. Indiana Mich. Power Co.         3    4    Martin v. Indiana Mich. Power Co.            No. 02-2343

                    I. BACKGROUND                                 decide whether to request service from the manufacturer or
                                                                  order a replacement part or unit. Martin, however, does not
  Prior to AEP’s reorganization of its Information                decide or make recommendations as to whether a piece of
Technology (“IT”) department, Martin held the position of         equipment must be serviced or replaced. Nor has he written
“Computer Security/Standards Technician,” which AEP               reports on his troubleshooting or repair activities. He has not
classified as nonexempt. On November 1, 1998, when the            recommended the purchase of any equipment, hardware, or
department was reorganized, Martin’s title was changed to         software, although Thornburg considers Martin’s comments
“IT Support Specialist,” which AEP classified as an exempt        on printers and problems “valuable” in his own decision
position.     According to AEP, the purpose of the                making process.
reorganization was to “push down responsibilities to
workers,” “to delegate more authority,” and to “flatten the         In addition to processing help desk tickets, Thornburg has
organization.”                                                    directed Martin to complete a variety of other tasks. First, for
                                                                  a period of time while the nuclear reactors were shut down
  Mike Thornburg, Martin’s supervisor, describes the              between November 1998 and May 2000, Martin relocated
function of his IT Support team as follows: “Maintaining the      workstations to trailers and temporary buildings. Sometime
computer workstation software, troubleshooting and                in 2000, Cook brought in contractors to move workstations.
repairing, network documentation, that is our primary job.        Thornburg testified that, prior to that, everyone in IT Support
We were a maintenance organization that takes care of             – including Thornburg and Martin – was spending so much
computer systems.” The computers that Martin works on are         time moving workstations that they were not able to carry out
workstations (or “PCs”) at individual desks connected to a        their primary job as a maintenance organization.
local area network (“LAN”); Martin does not work on the
plant process computer – “which deals with the plant, what’s        Second, Martin was assigned to install hardware and cable
going on as far as the reactor operators”– which is a different   for the network, including network components such as hubs,
system.                                                           switches, and routers, when Cook was physically expanding
                                                                  the LAN to trailers and new buildings. Martin worked in the
   When people at the plant have problems with their              wiring closets: terminating the cables (that is, putting
computers, they call the help desk where the help desk            connectors on the ends of the cables), plugging them into the
employees put the problems into a database as “help desk          hubs, and verifying that they were connected by phoning the
tickets,” which Martin prints out. Martin responds to these       system administrator to confirm that the hubs had appeared
help desk tickets. He goes to the location indicated where he     on the network. Martin was not involved in designing the
attempts to determine the nature of the problem, to               configuration of either the cables or the hardware he installed,
“troubleshoot” it to determine how to proceed, and to repair      nor does he install any programs onto the network. Third, on
the problem if possible. Martin installs software, such as        January 2, 2001, Thornburg assigned Martin to clean up the
Microsoft’s Office 97, on individual workstations. He             wiring closets, to make sure the master network diagram
troubleshoots Windows 95 problems and installs provided           accurately reflected what was physically in the closets and
software patches.                                                 update it if necessary, and to get the locks changed, if
                                                                  possible, so that one key would open all the closets.
  If Martin cannot fix a problem, he will report the problem
and how he tried to fix it to Thornburg. Thornburg will
No. 02-2343        Martin v. Indiana Mich. Power Co.        5    6       Martin v. Indiana Mich. Power Co.                 No. 02-2343

  Shortly before Thornburg’s February 28, 2001, deposition,        The FLSA requires employers to pay their employees time-
Martin received another assignment.             According to     and-a-half for work performed in excess of forty hours per
Thornburg, he assigned Martin “to review a Windows 2000          week, 29 U.S.C. § 207(a)(1), but exempts employers from
operating system that we have just developed.” At the time       this requirement with respect to individuals “employed in a
of the deposition, Thornburg explained that Martin was in the    bona fide executive, administrative, or professional capacity.”
“process” of “preparing” to do the review. For the               29 U.S.C. § 213(a)(1). To avoid paying overtime to Martin,
assignment, Martin was supposed to “review the desktop           AEP must prove that he falls within one of these exempt
operating system in our applications to make sure they work      categories. AEP argues that Martin is exempt as both an
as he uses them in the field. And if not, I expect him to make   “administrative” employee and a “computer professional,”
recommendations for corrections.” This assignment –              which is a subclass of “professional” employees.
apparently made after the litigation commenced – is the first
of this type for Martin. As Thornburg put it, Martin’s duties      The exemptions to the FLSA’s overtime provisions are “to
were “evolving.”                                                 be ‘narrowly construed against the employers seeking to
                                                                 assert [them],’” Douglas v. Argo-Tech Corp., 113 F.3d 67, 70
  Martin has no computer certifications and no degree            (6th Cir. 1997) (quoting Arnold v. Ben Kanowsky, Inc., 361
beyond high school.        He has taken one course in            U.S. 388, 392 (1960)), and the employer bears not only the
microcomputing, a class in using Windows 2000, and four,         burden of proof, but also the burden on each element of the
week-long hands-on computer training classes. Martin has a       claimed exemption. Id. Because the burden of proof is
work bench located in a common work area – also referred to      shifted, Martin is entitled to summary judgment unless the
as a “workshop” in the depositions. Martin does not have his     defendant can come forward with evidence at least creating a
own phone line; everyone in the area shares a “shop phone.”      genuine issue of material fact as to whether Martin meets
He wears a blue short-sleeved work shirt with two pockets on     each and every element of the exemption. If AEP fails to
the front, a name badge that says “Tony,” and a badge that       proffer such evidence, not only must its motion for summary
says “D.C. Cook, CSS Section”; blue work pants; and work         judgment be denied, but summary judgment for Martin must
boots.                                                           be granted. See Schaefer v. Ind. Mich. Power Co., 358 F.3d
                                                                 394, 407 (6th Cir. 2004) (Suhrheinrich, J. concurring)
                      II. ANALYSIS                               (asserting that Schaefer was entitled to summary judgment
                                                                 because “[i]n my view, AEP has, at a minimum, failed to
   This Court reviews de novo a district court’s grant of        create a genuine issue of fact on the question of whether
summary judgment. Stephenson v. Allstate Ins. Co., 328 F.3d      Schaefer's primary duty ‘includes work requiring exercise of
822, 826 (6th Cir. 2003). Summary judgment is appropriate        discretion and independent judgment.’”).1
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        1
                                                                       In additional to this shifting of the burden of proof, Martin argues
entitled to judgment as a matter of law. FED .R.CIV .P. 56(c);   that the employer has to prove each element to a higher burden of proof
Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.   than to a preponderance of the evidence, citing Ale v. Tennessee Valley
1992).                                                           Auth., 269 F.3d 6 80, 69 1 n.4 (6th C ir. 2001) (“The d efendant must
                                                                 establish through ‘clear and affirm ative evidenc e’ that the employee
                                                                 meets every re quirement of an exemp tion.”). Ale and the other circuits
                                                                 that have articulated this “clear and affirmative evidence” langua ge, see
No. 02-2343            Martin v. Indiana Mich. Power Co.               7    8    Martin v. Indiana Mich. Power Co.            No. 02-2343

   For purposes of this analysis, we view the facts in the light            requiring the consistent exercise of discretion and judgment.”
most favorable to AEP. The facts regarding Martin’s                         29 C.F.R. §§ 541.3(a)(4), 541.3(e).
workplace tasks are largely undisputed. The parties do
disagree, however, about how much time Martin spends on                        First, AEP must establish that Martin is payed on a salary
hardware versus software tasks and how much time Martin                     or fee basis at a rate of not less than $250 per week or that he
spent moving work stations with or without the help of                      is compensated on an hourly basis at a rate in excess of 6 1/2
contractors. These disputes, however, are ultimately                        times the minimum wage. 29 C.F.R. § 541.3(e). The
irrelevant because neither Martin’s hardware nor software                   evidence establishes that Martin is paid a salary. It does not
work exempts him, and, regardless of how much time Martin                   matter that Martin must make up partial-day absences or that
spent moving computers, his others tasks are no more exempt.                Martin’s hours are prescribed and he must obtain approval
                                                                            from his supervisor to vary his hours. See Renfro v. Ind.
A. Computer Professional Exemption                                          Mich. Power Co., 370 F.3d 512, 516 (6th Cir. 2004);
                                                                            Schaefer, 358 F.3d at 400. Martin argues in his reply brief
   To establish that Martin is a “computer professional” under              that he is not a salaried employee because AEP pays him
the regulations and therefore not entitled to overtime, AEP                 straight overtime for some overtime hours, based on Kennedy
must demonstrate that (1) the employee “is compensated on                   v. Commonwealth Edison Co., 242 F.Supp.2d 542 (C.D.Ill.
a salary or fee basis at a rate of not less than $250 per week”             2003), which subsequently has been vacated and reconsidered
or that the employee “is compensated on an hourly basis at a                at Kennedy v. Commonwealth Edison Co., 252 F.Supp.2d 737
rate in excess of 6 1/2 times the minimum wage”; (2) the                    (C.D.Ill. 2003). We need not consider this novel (and only
employee’s “primary duty consists of the performance of . . .               partially briefed) argument, however, because we can decide
[w]ork that requires theoretical and practical application of               Martin’s status on the ground below.
highly-specialized knowledge in computer systems analysis,
programming, and software engineering, and [the employee                       AEP must raise a genuine issue of fact regarding whether
is] employed and engaged in these activities as a computer                  Martin’s “primary duty consists of the performance of . . .
systems analyst, computer programmer, software engineer, or                 [w]ork that requires theoretical and practical application of
other similarly skilled worker in the computer software field               highly-specialized knowledge in computer systems analysis,
. . . ”; and (3) the employee’s primary duty “includes work                 programming, and software engineering, and [whether he is]
                                                                            employed and engaged in these activities as a computer
                                                                            systems analyst, computer programmer, software engineer, or
Klinedin st v. Swift Investments, Inc., 260 F.3d 12 51, 1254 (11th Cir.     other similarly skilled worker in the computer software field.”
2001); Donovan v. United Video, Inc., 725 F.2d 57 7, 581 (10th Cir.         29 C.F.R. §§ 541.3(a)(4). Thus, although Martin is not a
1984), have d one so witho ut explanation of what the phrase means.         systems analyst, programmer, or software engineer, he could
Martin, perhaps drawing from the similarity to the phrase “clear and        still be exempt from overtime if his work “requires theoretical
convincing evidence” urges us to ho ld that Ale sets a heightened
evidentiary standard. Alternatively, “clear and affirmative evidence” may
                                                                            and practical application of highly-specialized knowledge in
simply be a way of restating what we have said above: the employer          computer systems analysis, programming, and software
bears the burden of pro ving each and every element of the exemptio n in    engineering.”
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,     The district court concluded that Martin was a computer
any exposition by us on the intentions of the Ale court would be mere       professional: “Martin falls within the exemption for a
dicta.
No. 02-2343        Martin v. Indiana Mich. Power Co.       9    10   Martin v. Indiana Mich. Power Co.           No. 02-2343

professional employed in a computer-related occupation:           To be considered for exemption under § 541.3(a)(4), an
there is no genuine dispute that his work requires highly-        employee's primary duty must consist of one or more of
specialized knowledge of computers and software, and the          the following:
evidence shows that he customarily and regularly exercises
discretion and independent judgment in his work.” (emphasis       (1) The application of systems analysis techniques and
added). The district court made an understandable mistake,        procedures, including consulting with users, to determine
one that arises from the common perception that all jobs          hardware, software, or system functional specifications;
involving computers are necessarily highly complex and
require exceptional expertise. However, the regulations           (2) The design, development, documentation, analysis,
provide that an employee’s primary duty must require              creation, testing, or modification of computer systems or
“theoretical and practical application of highly-specialized      programs, including prototypes, based on and related to
knowledge in computer systems analysis, programming, and          user or system design specifications;
software engineering” not merely “highly-specialized
knowledge of computers and software.” This is an important        (3) The design, documentation, testing, creation or
difference. The former is a narrower class of jobs that           modification of computer programs related to machine
requires a different level of knowledge and training than the     operating systems; or
latter. Further, it is a distinction which will only become
more relevant as the range of computer-related jobs continues     (4) a combination of the aforementioned duties, the
to broaden.                                                       performance of which requires the same level of skills.

   Martin does not do computer programming or software          AEP selectively identifies certain words from this regulation
engineering; nor does he perform systems analysis, which        – particularly “consulting with users” and “testing” – and
involves making actual, analytical decisions about how          applies them out of context. There is simply no evidence that
Cook’s computer network should function. Rather, Martin’s       Martin “consults with users, to determine hardware, software,
tasks – installing and upgrading hardware and software on       or system functional specifications.” Martin “consults with
workstations, configuring desktops, checking cables,            users” for purposes of repair and user support, not to
replacing parts, and troubleshooting Windows problems – are     determine what “hardware, software, or system functional
all performed to predetermined specifications in the system     specifications” the Cook facility will employ, as a systems
design created by others. As Martin testified, he is provided   analyst might. Likewise, when Martin does “testing,” he is
the standard “desktop” for installation on the computers he     testing things to figure out what is wrong with a workstation,
configures, but he is not involved in determining what the      printer, or piece of cable so that he can restore it to working
desktop should look like. Thornburg explained, as we noted      order. He is not doing the type of testing that is involved in
above, that IT Support is “a maintenance organization that      creating a system, determining the desired settings for a
takes care of computer systems.”                                system, or otherwise substantively affecting the system.
                                                                Indeed, he is merely ensuring that the particular machine is
  29 C.F.R. § 541.303(b) further clarifies the work involved    working properly according to the specifications designed and
in systems analysis, programming, and software engineering      tested by other Cook employees. Maintaining the computer
that falls under the exemption:                                 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    12   Martin v. Indiana Mich. Power Co.            No. 02-2343

knowledge in computer systems analysis, programming, and            B. Administrative Exemption
software engineering.”
                                                                       To establish that Martin is a bona fide administrative
   Martin has one project that might fall under the category of     employee under the applicable Department of Labor (“DOL”)
systems analysis: the Windows 2000 review. This project             regulations, AEP must demonstrate that: (1) the employee is
was apparently assigned after the instant lawsuit commenced,        “compensated on a salary or fee basis at a rate of not less than
and, according to Thornburg, Martin was only “in the process        $250 per week”; (2) the employee’s “primary duty consists of
right now of preparing to review a Windows 2000 operating           . . . [t]he performance of office or nonmanual work directly
system,” as of the date of Thornburg’s deposition. Even were        related to management policies or general business operations
we to conclude that this project is systems analysis,               of his employer or his employer’s customers”; and (3) the
Thornburg was unable to provide any estimate of the amount          employee’s primary duty “includes work requiring the
of time that he expected Martin would spend on the project          exercise of discretion and independent judgment.” 29 C.F.R.
but did indicate elsewhere that Martin had various other            §§ 541.2, 541.214.
assignments. This single project does not make systems
analysis Martin’s primary duty.                                       Martin is entitled to summary judgment because AEP has
                                                                    neither established that, nor raised a genuine issue of material
   Finally, the dissent suggests that there is a dispute of         fact regarding whether, Martin’s primary duty is “directly
material fact regarding whether Martin took training courses        related to management policies or general business operations
teaching him to develop standards. Even if such a factual           of his employer or his employer’s customers.” 29 C.F.R.
dispute exists, it is not material because it is the job that one   §§ 541.2(a)(1), 541.214(a). This provision, in addition to
does, not the job that one is trained to do, that determines        describing the types of activities performed by an exempt
exempt status. We are required to analyze how the employee          employee, “limits the exemption to persons who perform
is actually spending his time, see 29 C.F.R. § 541.3(e); Ale v.     work of substantial importance to the management or
Tennessee Valley Auth., 269 F.3d 680, 689-90 (6th Cir. 2001),       operation of the business of his employer or his employer’s
not what he is trained to do (but is not doing as his primary       customers.” 29 C.F.R. § 541.205(a).
duty) or what he is training to do in the future. Nor are
trainees bona fide computer professionals. 29 C.F.R.                   AEP’s only argument that Martin’s work is “directly related
§ 541.303(c). Only at such a time that systems analysis             to management policies or general business operations of the
becomes Martin’s primary duty can AEP classify him as a             employer” is that Martin’s work is not production work. That
bona fide computer professional.                                    is, he is not producing electricity because he is not an
                                                                    “operator” running the nuclear power equipment – and
  Since AEP has only presented one task – the Windows               therefore his work is administrative and thus “directly related
2000 project – that might fall under the “computer                  to management policies or general business operations of the
professional” exemption and since, even viewing the facts in        employer.” Under AEP’s theory, shippers of radioactive
the light most favorable to AEP, that task is not Martin’s          waste, the individuals who don radiation suits and perform
primary duty, AEP has failed to raise a genuine issue of            maintenance work on the reactors, the janitorial staff, the
material fact regarding whether Martin is a bona fide               security guards, the cooks in the company cafeteria, and
computer professional. AEP has not met its burden under the         various other workers including Martin are all doing work
computer professional exemption.                                    “relating to the administrative operations of the business”
No. 02-2343        Martin v. Indiana Mich. Power Co.        13    14    Martin v. Indiana Mich. Power Co.            No. 02-2343

purely because they do not operate the nuclear reactors. See      517 (AEP’s “planners” were bona fide administrative
Schaefer, 358 F.3d at 402 (holding that a shipper of              employees where their primary duty fell within this definition
radioactive material was not doing administrative work). We       of “servicing” the business). Martin’s job, instead, is to assist
have rejected the argument that all work that is not production   in keeping the computers and network running to the
work is automatically “directly related to management             specifications and designs of others.
policies or general business operations of the employer.” Id.
at 402-403. Indeed, AEP made and we rejected this very               Nor is Martin’s work “of substantial importance to the
argument in Schaefer. AEP attempts to distinguish Schaefer        management or operation of the business of his employer.”
by arguing that the waste that was being shipped in Schaefer      29 C.F.R. § 541.205(a). Work that is of substantial
was a direct by-product of the production of electricity. But     importance “is not limited to persons who participate in the
such an argument misses the point. AEP’s error is in              formulation of management policies or in the operation of the
concluding that all work is either related to “the                business as a whole,” but includes employees whose work
administrative operations of the business” or production          “affects policy or whose responsibility it is to execute or carry
work. The regulations do not set up an absolute dichotomy         it out.” 29 C.F.R. § 541.205(c). And an employee’s work
under which all work must either be classified as production      need not affect operation of the business as a whole to meet
or administrative. Rather, the regulations distinguish            this criterion: it is enough that the employee’s “work affects
production work from the administrative operations of the         business operations to a substantial degree, even though their
business at 29 C.F.R. § 541.205(a) – thus production work         assignments are tasks related to the operation of a particular
cannot be administrative – and then go on to define the           segment of the business.” Id.
administrative operations of the business at 29 C.F.R.
§ 541.205(b). To accept AEP’s alternate reading of 29 C.F.R.         AEP never presents an argument that Martin’s work itself
§ 541.205(a) as setting up an absolute dichotomy would            is “of substantial importance to the management or operation
render the further definition of “the administrative operations   of the business of his employer.” Indeed, AEP could not
of the business” in 29 C.F.R. § 541.205(b) utterly                successfully argue that Martin’s work itself is “of substantial
superfluous.                                                      importance to the management or operation of the business of
                                                                  his employer” because Martin makes no decisions that affect
  Martin’s primary job duty does not “relat[e] to the             even the small segment of the company’s operations in which
administrative operations” at Cook. “The administrative           his work is performed. He does not determine what types of
operations of the business include the work performed by so-      workstations, network, hardware, or software AEP employs;
called white-collar employees engaged in ‘servicing’ a            he is not involved in the design or development of AEP’s
business as, for example, advising the management, planning,      network; he does not decide what software will be available
negotiating, representing the company, purchasing, promoting      to AEP’s computer users or determine how that software will
sales, and business research and control.” 29 C.F.R.              be configured; and he does not decide or recommend when
§ 541.205(b). As we have noted, Thornburg described his           equipment must be serviced or replaced. Rather, he sets up
team as a “maintenance organization that takes care of            and repairs parts of a system wholly designed and approved
computer systems.” Martin is in no way involved in                by others. There is no evidence that he has any input into the
“advising the management, planning, negotiating,                  nature of the computer resources available to AEP employees.
representing the company, purchasing, promoting sales, and
business research and control.” See also Renfro, 370 F.3d at
No. 02-2343        Martin v. Indiana Mich. Power Co.       15    16   Martin v. Indiana Mich. Power Co.           No. 02-2343

   AEP argues that Martin’s work is “complex,” not “routine”     (table). While the fact that an employee works independently
or “clerical,” and thus of substantial importance. AEP derives   might shore-up a conclusion that a worker is doing work of
this requirement from a portion of the regulation that states:   “substantial importance,” that fact standing alone has little
“An employee performing routine clerical duties obviously is     relevance to the inquiry. Night janitorial workers, for
not performing work of substantial importance . . . .” 29        example, often work independently and without direct
C.F.R. § 541.205(c)(2). AEP attempts to derive the negative      supervision, as do any number of skilled tradesmen such as
from this proposition and say that duties that are complex       nonexempt electricians and plumbers.
rather than “routine clerical work” are of substantial
importance. This argument is the logical equivalent of saying      Finally, AEP suggests we should consider Martin’s salary
that because a chihuahua is obviously not a cat, then every      as evidence that his work is of substantial importance since he
animal that is not a chihuahua is a cat. Without addressing      makes more than “the average blue-collar worker.” This
the issue of whether Martin’s work is actually “complex,” it     argument is an attempt to draw attention away from the fact
is sufficient to say that mere complexity would not make his     that Martin’s work itself is not substantially important under
work substantially important under the regulations.              the regulations. Salary may be used to determine the primary
                                                                 duty of an employee who performs both exempt and
  AEP next argues that Martin’s work is of “substantial          nonexempt tasks by comparing his salary to the salary of
importance” because of the value of the systems he works on      employees who are just doing the nonexempt tasks, see 29
and the consequences of mistakes. The regulations, however,      C.F.R § 541.103, not to determine the nature of those tasks
explain that it is the work itself that must be of substantial   themselves. Salary differential does not answer the
importance – not the size of the consequences or loss that may   substantial importance question. The fact that a nonexempt,
result from improper performance of the employee’s duties.       unionized, skilled plumber may earn more than an exempt
As the regulations note, an employee operating a very            public school teacher does not change the nature of the
expensive piece of equipment, a messenger boy entrusted          plumber’s work.
with carrying large sums of money, and an inspector for an
insurance company can all cause their employers serious loss        In sum, the evidence viewed in the light most favorable to
by failure to perform their jobs properly, but “such             AEP neither establishes that nor raises a genuine issue of
employees, obviously, are not performing work of such            material fact regarding whether Martin’s work is “directly
substantial importance to the management or operation of the     related to management policies or general business operations
business that it can be said to be ‘directly related to          of his employer or his employer’s customers.” Thus, not only
management policies or general business operations’ as that      is AEP not entitled to summary judgment, but Martin is
phrase is used in § 541.2.” 29 C.F.R. § 541.205(c)(2) (giving    entitled to summary judgment.
the examples of the messenger boy, the equipment operator,
and the insurance inspector).                                    C. Liquidated Damages

  AEP also argues that the level of supervision is relevant to      An employer who violates the FLSA’s overtime provisions
the inquiry, citing an unpublished case, affirmed without        is liable to the employee in the amount of the unpaid overtime
comment by the Eleventh Circuit. Easter v. Florida Power &       compensation “and in an additional equal amount as
Light Co., Case No. 97-153-CIV-OC-19 (M.D. Fla. June 7,          liquidated damages.” 29 U.S.C. § 216(b). Liquidated
1999), slip op. at 9, aff’d 229 F.3d 1168 (11th Cir. 2000)       damages under the FLSA “are compensation, not a penalty or
No. 02-2343        Martin v. Indiana Mich. Power Co.        17    18   Martin v. Indiana Mich. Power Co.            No. 02-2343

punishment.” Elwell v. Univ. Hosp. Home Care Serv., 276             First, AEP cannot claim reliance on Martin’s choice of
F.3d 832, 840 (6th Cir. 2002) (internal quotes omitted).          position when AEP itself instructed Martin to choose the IT
Although liquidated damages are the norm and have even            Support job family, all of which positions are exempt. Martin
been referred to as “mandatory,” see, e.g., Martin v. Cooper      testified at deposition that he chose the IT Support Specialist
Elec. Supply Co., 940 F.2d 896, 907 (3rd Cir. 1991)               group rather than the technician group because he was
(emphasis in original), Congress has provided the courts with     instructed to do so by Thornburg. AEP has not disputed this
some discretion to limit or deny liquidated damages. See 29       proposition.
U.S.C. § 260; Martin, 940 F.2d at 907. Under this exception,
if an employer demonstrates both good faith and reasonable           Second, even if AEP could rely in good faith on Martin’s
grounds for the incorrect classification, then a court may        choice of IT Support Specialist I, it could not, in good faith,
exercise its discretion to limit or deny liquidated damages.      classify any employee in that position as exempt without
Elwell, 276 F.3d at 840; Martin, 940 F.2d at 907. But “[t]his     further information because that position description includes
burden on the employer is substantial,” Elwell, 276 F.3d at       both nonexempt and (likely) exempt tasks. The first of the six
840, and if the employer fails to carry it, the court may not     tasks listed in the IT Job Family Skills Matrix for IT Support
limit or deny liquidated damages. Elwell, 276 F.3d at 840;        Specialist I roughly describes the nonexempt user support
Martin, 940 F.2d at 907.                                          work that Martin actually performs. The second task listed –
                                                                  “[p]articipate in the review, evaluation, analysis, and
   To prove that it acted in good faith, an employer “must        recommendation of information systems and procedures” –
show that [it] took affirmative steps to ascertain the Act’s      may well be exempt. The third task, which requires the
requirements, but nonetheless violated its provisions.”           employee to “[m]aintain records, documentation, manuals,
Martin, 940 F.2d at 908. “Good faith” means more than             and prepare status reports,” is amorphous and appears in the
merely not willfully misclassifying the employee. Elwell,         vast majority of the IT position descriptions, including the
276 F.3d at 841 n.5. The employer has an affirmative duty to      nonexempt technician positions. The remaining items are not
ascertain and meet the FLSA’s requirements, and an employer       job tasks per se but merely require the employee to maintain
who negligently misclassifies an employee as exempt is not        certain skills. But, of course, the exempt work must be the
acting in good faith. Id. Thus, the violation of the FLSA         employee’s primary duty, and the job description provides no
does not have to be intentional for Martin to recover             indication the second of the task listed is the primary duty. If
liquidated damages, and AEP has the burden of establishing        anything, the order of the tasks, the name of the job family
that it acted in good faith when affirmatively determining that   (IT Support), the “typical job tracks” in the job family
Martin was exempt. See Martin, 940 F.2d at 908.                   description, and the mapping instructions (“Support
                                                                  staff/Technicians to maintain [hardware and software] and
   AEP argues that it acted in good faith because it relied on    help customers use them”), all suggest that the first,
a form that Martin filled out during the reorganization of the    nonexempt task is primary. Thus, to classify any employee
IT department – an“employee mapping form” – on which              who chose IT Support Specialist I as exempt, AEP would
Martin specified his job level under the new organization as      need more information, and the FLSA’s good-faith
“IT Support Specialist I.” Reliance on this mapping does not,     requirement requires AEP to seek it out.
however, establish good faith for a variety of reasons.
                                                                    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    20    Martin v. Indiana Mich. Power Co.            No. 02-2343

entire IT Support job family as exempt, even though positions        that are no longer at this facility for that three year
II through IV do not include any exempt tasks. Thus, AEP             period. . . . [W]e were all busy doing whatever we had to
would have incorrectly classified Martin as exempt regardless        do to restart the facilities. . . . [W]e were all doing
of what level within the job family he chose.                        unusual things. We weren’t in normal configuration.
  Third, even if Martin had incorrectly picked an actual           Changing an employees nonexempt status – just as the
exempt position in the mapping, AEP cannot claim to have           employer is altering his duties – based solely upon a mapping
relied on it in good faith when it affirmatively knew that         based on duties performed before the change is not in good
Martin was doing nonexempt work. In addition to                    faith.
Thornburg’s knowledge of Martin’s actual tasks, two
documents labeled “job descriptions” which list all the IT           Fifth, when AEP was done with its reorganization, no
employees’ job descriptions demonstrate that AEP knew what         employees in the IT department worked in positions classified
kind of work Martin was doing. These documents – dated             as nonexempt. AEP has an affirmative obligation under the
August 2000 and December 2001 – list Martin’s job                  act not to misclassify employees as exempt, and an
description as follows: “Workstations, Network Printers,           affirmative obligation to inquire into classification, Martin,
Wiring Closet Hardware, Pagers, Radio Controlled Cranes,           940 F.2d at 908-09, obligations which it failed. AEP was not
Fiber Optics.” AEP cannot claim – in the face of this job          acting in good faith when it implemented this reorganization
description – that it actually thought that Martin’s primary job   which classified all IT workers as exempt. Finally, even if
duty was “participat[ing] in the review, evaluation, analysis,     AEP actually believed that it had made the correct
and recommendation of information systems and procedures.”         classification (which alone is not sufficient to avoid liquidated
The FLSA requires the employer to make FLSA exemption              damages), Martin immediately complained about his
decisions based on the employee’s actual job duties, not the       classification as exempt, putting AEP on notice of the
employee’s job title, Ale, 269 F.3d at 689-90, and the good        problem.
faith requirement imposes an affirmative burden. AEP may
not rely on incorrect information in the face of its actual          Some of this evidence suggests willfulness and some
knowledge of Martin’s job activities.                              merely suggests negligence, but none of it establishes good
                                                                   faith. Because AEP has not established that it acted in good
  Fourth, the date of reclassification provides additional         faith when it classified Martin as exempt, this Court and the
evidence that AEP was not acting in good faith. AEP actually       district court are without discretion to limit or deny liquidated
classified Martin as exempt on November 1, 1998, just as the       damages. We need not reach the question of the objective
Cook nuclear reactors were being taken offline for an              reasonableness of AEP’s classification of Martin as exempt.
eighteen-month shutdown, plunging the plant into a period of
non-standard activity and hours. As Thornburg explained:                               III. CONCLUSION

  The last three years at this facility have been very non-          For the reasons stated above, we REVERSE the decisions
  standard. What I mean by that is we have been in a               of the district court and REMAND for entry of summary
  shutdown outage for three years. We all did non-                 judgment in favor of plaintiff, and for calculation of damages,
  standard tasks during that three year period of time to          including liquidated damages.
  install complexes, we install trailers, we install buildings
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.
