                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 12 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    HEATHER HAGADORN,

                Plaintiff-Appellant,

    v.                                                   No. 97-1446
                                                      (D.C. No. 96-B-655)
    M.F. SMITH & ASSOCIATES, INC.,                         (D. Colo.)
    a New Jersey corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Heather Hagadorn brought this action against her former employer, M.F.

Smith & Associates, Inc. (M.F. Smith or defendant), alleging violation of the Fair

Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, and asserting state law claims

for breach of contract and promissory estoppel. On cross-motions for summary

judgment, the district court granted judgment in favor of M.F. Smith on all

claims. Hagadorn appeals only the court’s grant of summary judgment on her

FLSA claim.

      We review the district court’s grant of summary judgment de novo,

applying the same legal standard the district court used pursuant to Fed. R. Civ. P.

56(c). See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Rule 56(c). “When applying this

standard, we examine the factual record and reasonable inferences therefrom in

the light most favorable to the party opposing summary judgment.”        Wolf , 50 F.3d

at 796 (quotation omitted). Summary judgment “necessarily implicates the

substantive evidentiary standard of proof that would apply at the trial on the

merits.” Anderson v. Liberty Lobby, Inc.   , 477 U.S. 242, 252 (1986).

Consequently, summary judgment in favor of a party is not appropriate where the


                                           -2-
evidence presented is insufficient “to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of

proof at trial.”   Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Applying

these rules to the matter before us, we reverse and remand for further

proceedings.

       M.F. Smith provides on-site computer consulting services to its clients. It

hired Hagadorn in August 1994, and from that time until September 15, 1995, she

worked on an M.F. Smith project at US West in Denver. On completion of the

US West project, M.F. Smith did not have additional work for Hagadorn, and it

furloughed her effective October 16, 1995, indicating that she would be rehired if

new work for her became available before December 31, 1995. Shortly after

Hagadorn was furloughed, M.F. Smith claimed it learned she had removed a

computer from US West’s premises and had contacted US West about

employment, which was in violation of her employment contract. M.F. Smith

terminated her effective October 24, 1995.

       In her FLSA claim, Hagadorn contends that she was an hourly employee

and seeks overtime compensation for 522.5 hours she worked for which she was

paid straight time. M.F. Smith claims that she was a salaried administrative

employee exempt from the FLSA and not entitled to overtime pay.




                                           -3-
       Generally under the FLSA, an employer must pay an employee overtime

pay at one and one-half times the employee’s regular rate of pay for all hours

worked in a given week in excess of forty hours.      See 29 U.S.C. § 207(a)(1). The

FLSA exempts from its overtime pay requirements “any employee employed in a

bona fide executive, administrative, or professional capacity.”     Id. § 213(a)(1).

The FLSA does not define the “administrative” exemption, but regulations issued

by the Department of Labor do. Generally, these regulations “are entitled to

judicial deference, and are the primary source of guidance for determining the

scope and extent of exemptions to the FLSA.”        Spradling v. City of Tulsa , 95 F.3d

1492, 1495 (10th Cir. 1996) (citation omitted). Exemptions to the FLSA are to be

narrowly construed, and the burden of proving an exemption is on the employer.

See id.; Aaron v. City of Wichita , 54 F.3d 652, 657 (10th Cir. 1995). Moreover,

the employer’s burden is heightened beyond the usual preponderance standard,

such that the employer must show that the employee fits “plainly and

unmistakably” within the exemption’s terms.        Arnold v. Ben Kanowsky, Inc. , 361

U.S. 388, 392 (1960); see also Aaron , 54 F.3d at 657 (“An employer must prove

that the employee is exempt by ‘clear and affirmative’ evidence.”) (quotation

omitted).

       The FLSA provides both a “long” and a “short” test for determining

whether an employee falls within the administrative exemption.        See 29 C.F.R.


                                            -4-
§ 541.2; see generally Shaw v. Prentice Hall Computer Publ’g, Inc.          , 151 F.3d

640, 642 (7th Cir. 1998);   Reich v. John Alden Life Ins. Co.    , 126 F.3d 1, 8 (1st Cir.

1997); Douglas v. Argo-Tech Corp. , 113 F.3d 67, 70 (6th Cir. 1997). Because it

is undisputed that Hagadorn was paid more than $250 a week, the short test

applies here. See, e.g. , John Alden , 126 F.3d at 8; Douglas , 113 F.3d at 70.

Under the short test, the employer must prove (1) that the employee’s primary

duty consists of the “performance of office or nonmanual work directly related to

management policies or general business operations of his employer or his

employer’s customers,” 29 C.F.R. § 541.2(a)(1); (2) that the employee

“customarily and regularly exercises discretion and independent judgment,”           id.

§ 541.2(b); and (3) that it paid the employee on a “salary or fee basis,”      id.

§ 541.2(e)(1).   See also Shaw , 151 F.3d at 642-43; Douglas , 113 F.3d at 70-71.

Dividing the short test further, the first two requirements are generally referred to

as the “duties” test, and the third as the “salary” test. Hagadorn challenges the

district court’s conclusion that M.F. Smith met its burden of proof on both tests.

We turn to the duties test first.

       While at US West, Hagadorn worked primarily on a project designed to

reuse computer hardware and software as part of an effort by US West to

consolidate its facilities. She worked with US West teams to locate hardware at

various facilities, identify its capabilities, and propose plans for reconfiguring,


                                             -5-
moving, and reusing the hardware at other locations. She also identified the

client’s needs and requirements for software inventory. Additionally, she helped

develop the overall project plan for the US West consolidation project and

prepared reports and conducted weekly conferences on its progress. The district

court noted that her description of her duties was almost identical to an example

provided in the regulations of an exempt administrative consultant whose duties

were directly related to the employer’s business operations, as required by the

duties test:

       The particular employee is employed by a firm of consultants and
       performs work in which he customarily and regularly exercises
       discretion and independent judgment. The work consists primarily of
       analyzing, and recommending changes in, the business operations of
       his employer’s client. This work falls in the category of exempt
       work described in § 541.2.

29 C.F.R. § 541.208(b)(1).

       On appeal, Hagadorn does not attempt to explain how her work differed

from the example above on which the district court relied. Instead, she contends

only that M.F. Smith’s evidence failed to show that her   primary duties were

administrative. We find her contention unpersuasive. She admitted that the

duties in connection with reusing hardware described above were the “main

functions of my job. I probably did other things, but I don’t know how significant

they were.” Appellant’s App. at 76 (Hagadorn dep. at 29). Thus, we agree with

the district court that her administrative duties were clearly her primary duties,

                                           -6-
see 29 C.F.R. §§ 541.206, 541.103, and that M.F. Smith met its burden under the

duties test.

       To meet its burden under the salary test, an employer is required to

demonstrate that the employee “‘regularly receives each pay period . . . a

predetermined amount constituting all or part of his compensation, which amount

is not subject to reduction because of variations in the quality or quantity of the

work performed.’” Aaron , 54 F.3d at 658 (quoting 29 C.F.R. § 541.118(a)).

Hagadorn contends that she was an hourly employee who received no

predetermined amount each pay period. M.F. Smith contends, and the district

court found, that she was a salaried employee paid a predetermined amount each

pay period, although that amount was permissibly exceeded by paying her straight

time on an hourly basis for time she worked exceeding the minimum 37.5 hours

required each pay period. We conclude that the evidence falls short of “plainly

and unmistakably” showing that M.F. Smith paid her a predetermined amount

each pay period.

       The only evidence M.F. Smith submitted directly indicating that it paid

Hagadorn a predetermined amount was (1) an affidavit stating that it paid her an

initial base salary of $45,000 a year that was later increased to $48,500, and (2) a

memorandum indicating the same annual salary information. The memorandum

contained the handwritten notation “$24.88/hr.” Defendant explains that it


                                          -7-
computed this hourly amount by dividing the $48,500 salary by 52 weeks and then

by 37.5 hours to determine Hagadorn’s regular salary rate on an hourly basis. It

then used this hourly amount to pay Hagadorn on a straight time basis for hours

worked (or billed to the client) that exceeded the standard 37.5 hour work week.

(The corresponding hourly rate when her salary was $45,000 was $23.08.)

Hagadorn counters, through her testimony and affidavit, that she was not paid on

a salary basis, but only on an hourly basis for only the hours she worked.

      Both sides point to Hagadorn’s pay statements, time sheets and related

documents to support their positions, but these documents are confusing and

ambiguous. Critically, the pay statements fail to indicate that Hagadorn was paid

any predetermined amount for each pay period. The pay statements simply show

the number of work and holiday hours for which Hagadorn is being paid and the

corresponding gross and net pay amounts--based on the appropriate hourly rates--

along with various deductions. The statements do not separate the regular,

minimum required hours for which M.F. Smith contends Hagadorn was being

paid, i.e., 37.5 hours per week, from any overtime hours. All hours are lumped

together and multiplied by the hourly rate to arrive at her gross pay. Moreover,

considering time worked and holiday pay, Hagadorn was never paid for fewer




                                         -8-
than what apparently was the regular, minimum required hours per pay period.   1



Had she been, and had she then been paid the predetermined amount, the pay

statements would support M.F. Smith’s position. In short, the only thing the pay

statements necessarily show is that Hagadorn’s gross pay each period was based

on her compensable hours times her hourly rate. They do not show that her

regular pay was a “predetermined amount . . . not subject to reduction because of

variations in the . . . quantity of the work performed.” 29 C.F.R. § 541.118(a).




1
       We say “apparently” here because the pay statements and time sheets
account for Hagadorn’s time on a basis different from the 37.5 hours per week
standard. The pay statements and time sheets reflect her time on a semi-monthly
basis, covering the first through the fifteenth and then the remainder of each
month. This semi-monthly accounting does not directly correlate to the 37.5
hours per week or even 75 hours per two weeks standard. On a semi-monthly
basis, the regular number of hours per pay period would appear to be either 81.25
(on a 37.5 hour per week basis) or 86.67 (on a 40 hour per week basis). The only
time the record shows that she was paid for fewer than 92.25 hours in a semi-
monthly pay period was for the period ending August 15, 1994, for which she was
paid 81.75 hours. Her gross pay for this period, as for all other periods, was
based on her hourly rate ($23.08) times the number of hours (81.75).    See
Appellant’s App. at 230.

        Referring to this same exhibit, M.F. Smith argues that “during those pay
periods in which plaintiff’s billings were   below defendant’s standard seventy-five
hours for a two week period, (e.g. week of 11/30/94 reflecting 72.5 hours,)
plaintiff still received compensation exceeding the aforestated minimum level.”
Appellee’s Br. at 14. We note, however, that the 72.5 hours represent    billable
hours, which is not necessarily the same as time worked, and that Hagadorn was
paid for 96 hours during this period, which included the Thanksgiving holiday.
Her gross salary for this period was based on the 96 hours at her hourly rate.


                                          -9-
       Relying on our decisions in      Aaron and Spradling , M.F. Smith argues that

the fact that it paid Hagadorn on an hourly basis when she worked more than the

required minimum does not mean that it did not pay her on a salary basis. That is

true, but irrelevant. As we stated in     Aaron , “[s]ince overtime is not inherently

inconsistent with one’s status as a salaried employee, the fact that the

[employees’] paystubs indicated the number of hours covered is also not

inconsistent with salaried status. Such an accounting of hours is necessary to

compute overtime compensation.” 54 F.3d at 658;         see also Spradling , 95 F.3d at

1500. But neither Aaron nor Spradling help M.F. Smith show that it paid

Hagadorn on a salary basis in the first place. The fact that the employees

received a predetermined base amount of salary was not disputed in either case.

See Aaron , 54 F.3d at 658 (“The City claims, and the firefighters do not dispute,

that the chiefs and captains were paid a predetermined amount constituting at

least part of their compensation.”);     Spradling , 95 F.3d at 1500 (“Plaintiffs each

received a predetermined amount of pay based upon where each fell in the City’s

applicable classification and pay schedule.”). The question in each case was the

effect of the hourly-based payments above the predetermined amounts. In




                                             -10-
contrast, M.F. Smith has failed to demonstrate the preliminary fact that Hagadorn

received a regular, predetermined base amount.   2



      In sum, there is evidence showing that M.F. Smith paid Hagadorn a

predetermined salary and, permissibly for FLSA purposes, supplemented that

salary by paying her overtime on a straight time basis. However, the evidence can

also reasonably be viewed as demonstrating that M.F. Smith paid Hagadorn on a



2
       Defendant also argues that “in the absence of plaintiff pointing to a pay
period in which she received less than her fixed salary, she cannot effectively
argue that her compensation basis failed to meet the criteria of the salary test.”
Appellee’s Br. at 14. Again, defendant incorrectly presupposes that it has proven,
sufficient for summary judgment purposes, that it paid Hagadorn a “fixed salary.”
Furthermore, the fact that it never paid Hagadorn less than what it contends would
have been her “fixed salary” does not support its contention that it necessarily
paid her a regular, predetermined amount per pay period. That amount must not
be “subject to reduction” due to the quantity of work performed.    See 29 C.F.R. §
541.118(a). Defendant’s evidence does not show that, had she worked less than
the standard requirement, she would not have received a reduction in pay.

       We do agree with defendant, and the district court, that the fact that
defendant did not pay Hagadorn for the weeks in which she was furloughed due to
its lack of work does not mean that she was not paid on a salary basis, as she
contends. Her argument is based on 29 C.F.R. § 541.118(a)(1), which states in
part: “An employee will not be considered to be ‘on a salary basis’ if deductions
from his predetermined compensation are made for absences occasioned by the
employer or by the operating requirements of the business.” Hagadorn, however,
did not perform any work during the weeks in which she was furloughed, and the
district court correctly found this situation governed by § 541.118(a). That
section provides that, to be considered on a salary basis, “the employee must
receive his full salary for any week   in which he performs any work without regard
to the number of days or hours worked. This policy is also subject to the general
rule that an employee need not be paid for any workweek in which he performs no
work.” (Emphasis added.)

                                         -11-
straight hourly basis without regard to any regular, predetermined amount per pay

period. As a result, M.F. Smith failed to meet its burden of showing “plainly and

unmistakably” that it paid Hagadorn on a salary basis and therefore qualified for

the administrative exemption. The district court erred in granting summary

judgment in defendant’s favor.

      Hagadorn contends that not only was the district court’s award of summary

judgment in defendant’s favor unwarranted, but that the court actually should

have granted summary judgment in her favor. There are disputed facts regarding

whether defendant paid her on a salary basis as the exemption to the FLSA

requires, and we cannot say on this record that defendant cannot meet its burden.

We therefore decline to order judgment in her favor.

      The summary judgment entered in favor of M.F. Smith on Hagadorn’s

FLSA claim is REVERSED, and the case is REMANDED for further proceedings

consistent with this order and judgment.

                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




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