           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 12, 2009

                                     No. 08-40335                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



LONZO RAINEY, JR, on Behalf of Himself and All Others Similarly Situated

                                                   Plaintiff-Appellant
v.

MCWANE INC, doing business as Tyler Pipe

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:06-CV-198


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Lonzo Rainey, Jr. and twenty-three fellow employees (collectively, the
“Plaintiffs”) appeal the dismissal of their claims for overtime pay under the Fair
Labor Standards Act (“FLSA”). The district court granted summary judgment
for employer McWane Inc. (“McWane”) on the ground that the Plaintiffs were
exempt from the FLSA’s overtime-pay requirement. For the following reasons,
we affirm the judgment of the district court.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-40335

      McWane operates a foundry where cast iron products are manufactured.
The Plaintiffs are current and former “production supervisors” at this facility.
A production supervisor is responsible for supervising a team of subordinate
employees in a particular production unit at the foundry. The Plaintiffs filed
suit against McWane for failure to pay overtime wages under the FLSA.
McWane moved for summary judgment, arguing that the Plaintiffs were exempt
from the FLSA’s overtime-pay requirement under the “executive capacity”
exemption. The district court granted McWane’s motion, and the Plaintiffs now
appeal.
      “We review a district court’s grant or denial of summary judgment de novo,
applying the same standard as the district court.” Robinson v. Orient Marine Co.
Ltd., 505 F.3d 364, 365 (5th Cir. 2007). Summary judgment is appropriate “if
the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c). All reasonable
inferences are drawn in favor of the nonmovant. Robinson, 505 F.3d at 366. The
movant “has the initial burden of informing the court of the basis for its motion
and identifying those parts of the record that demonstrate the absence of a
genuine issue of material fact.” U.S. v. $92,203.00 in U.S. Currency, 537 F.3d
504, 507 (5th Cir. 2008). Once this initial burden has been met, the burden
shifts to the nonmovant “to demonstrate the existence of a genuine issue of
material fact.”   Id.   Disputes concerning material facts are “genuine” if a
reasonable jury could find in favor of the nonmovant. Merritt-Campbell, Inc. v.
RxP Products, Inc., 164 F.3d 957, 961 (5th Cir. 1999).
      The FLSA requires employers to pay overtime compensation for
nonexempt employees. 29 U.S.C. § 207(a). However, this requirement does not
extend to employees who are “employed in a bona fide executive, administrative,
or professional capacity.”     29 U.S.C. § 213(a)(1).      Under the controlling

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Department of Labor regulation, this “executive capacity” exemption applies to
any employee who (1) is paid at least $455 a week, (2) has the “primary duty” of
management, (3) regularly directs the work of two or more employees, and (4)
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(a). The district court found that all of these prongs were satisfied and
that McWane was entitled to judgment as a matter of law. Appellants contend
that there are genuine disputes of material fact as to prongs (2) and (4).
      The Appellants first contend that their “primary duty” was not
management. An employee’s primary duty is “the principal, main, major or most
important duty that the employee performs.”        29 C.F.R. § 541.700(a).    In
applying this definition, we look to the aspect of the employee’s job that is “of
principal value to the employer.” Dalheim v. KDFW-TV, 918 F.2d 1220, 1227
(5th Cir. 1990). “Factors to consider when determining the primary duty of an
employee include, but are not limited to, the relative importance of the exempt
duties as compared with other types of duties; the amount of time spent
performing exempt work; the employee’s relative freedom from direct
supervision; and the relationship between the employee’s salary and the wages
paid to other employees for the kind of nonexempt work performed by the
employee.” § 541.700(a).
      Here, McWane presented summary-judgment evidence that the primary
duty of the production-supervisor position was management. The Plaintiffs
themselves testified that they were each responsible for supervising a team of
between ten and thirty employees. For example, lead plaintiff Lonzo Rainey
testified that he spent the majority of his time on the production floor
“[w]atching, making sure [the employees were] working safe and doing, putting
out good work.” This is consistent with McWane’s standard job description for

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the position, which focused on the supervisors’ responsibility for “the planning
and supervision of subordinate supervisors, hourly and incentive personnel.”
McWane further required the supervisors to attend managerial and leadership
programs, and focused its performance reviews exclusively on the supervisors’
leadership and supervisory skills. Finally, the salaried production supervisors
were paid more than double what the regular workers in their units were paid.
This evidence is more than sufficient to establish that McWane principally
valued the production supervisors for their management duties.
      In response, the Plaintiffs attempt to obscure the issue by concentrating
on management tasks that the production supervisors did not perform.
However, the Plaintiffs fail to provide any argument that the supervisors’
primary duty was non-managerial work; in other words, they fail to negate
McWane’s summary-judgment evidence.            The depositions offered by the
Plaintiffs suggest only that the production supervisors engaged in nonexempt
production-line tasks when their units were understaffed. There is no evidence
that any plaintiff regularly spent a majority of his or her time on such tasks. In
fact, the plant’s collective-bargaining agreement forbids supervisors from
performing basic production labor except in narrow circumstances. Accordingly,
the Plaintiffs’ evidence fails to create a genuine dispute of material fact. See
Merritt-Campbell, 164 F.3d at 961.
      The Plaintiffs also challenge the district court’s conclusion that their
“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(a) (emphasis added). An employee’s suggestion
may be deemed to have “particular weight” even if “a higher level manager’s
recommendation has more importance and even if the employee does not have
authority to make the ultimate decision as to the employee's change in status.”
29 C.F.R. § 541.105. Here, McWane presented evidence that the production

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supervisors   exclusively   evaluate       provisional   workers   and   provide
recommendations as to their hiring as regular employees. The Appellants have
not provided any evidence to contradict this practice or indicate that the these
recommendations are not typically followed. Accordingly, the district court did
not err in granting summary judgment on this point.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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