                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________
                                                              FILED
                                 No. 11-10349        U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                           SEP 26, 2011
                                                            JOHN LEY
                    D.C. Docket No. 8:09-cv-01980-SDM-AEP CLERK

RONNI VIOLA,
on behalf of herself and those similarly situated,

                                                        Plaintiff-Appellant,

                                       versus

COMPREHENSIVE HEALTH MANAGEMENT, INC.,
a Florida corporation,

                                                        Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (September 26, 2011)

Before MARCUS, WILSON and COX, Circuit Judges.

PER CURIAM:

      Ronni Viola (“Viola”) appeals the district court’s grant of summary judgment

in favor of Comprehensive Health Management, Inc. (“CHMI”). The district court
found that Viola was exempt from overtime pay under the administrative exemption

of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”).1 We affirm.

       CHMI, a wholly-owned subsidiary of WellCare Health Plans, Inc.

(“WellCare”), provides health insurance to Medicaid- and Medicare-eligible

beneficiaries. Viola was employed by CHMI from October 2007 through March

2009, serving first as a Community Event Coordinator earning a salary of $45,000 per

year and later as a Senior Community Outreach Associate earning a salary of $57,000

per year until the termination of her employment. The core duties of Viola’s jobs

were similar and involved the marketing and promoting of WellCare in the local

community (Ocala and Marion County, Florida) through networking with local

organizations, organizing community events, and developing a marketing strategy for

enrollment events. Viola’s primary role at CHMI was to promote WellCare. Viola

had discretion in choosing where and to whom to market, and made such decisions

through research and networking. Viola was the only employee of CHMI who

promoted the Medicare side of WellCare in her area. She had no set hours nor any

time requirement for reporting to or leaving work for the day or keeping track of her

hours. She also had the liberty to take breaks or run personal errands at her


       1
          This action was initially filed as a collective action against CHMI, but the parties executed
a Joint Stipulation for Dismissal of Opt-in Plaintiffs Without Prejudice, which was approved by the
district court. Consequently, Viola is the sole appellant.

                                                  2
convenience throughout the day. Viola consistently worked more than forty hours

per week.

      Viola sued CHMI alleging that she worked more than forty hours per week, but

was not paid overtime, in violation of the FLSA. The FLSA exempts any employee

employed in a bona fide administrative capacity from the general rule that employees

are entitled to overtime compensation for time worked over forty hours in a

workweek. 29 U.S.C. §§ 207(a)(1), 213(a)(1). The parameters of the FLSA’s

administrative exemption are articulated in the United States Department of Labor

(“DOL”) regulations. See General Rule for Administrative Employees, 29 C.F.R. §

541.200 et seq. Under DOL regulations, an employee qualifies for the administrative

exemption if (1) the employee is compensated on a salary or fee basis not less than

$455 per week; (2) the employee’s “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) the employee’s “primary duty

includes the exercise of discretion and independent judgment with respect to matters

of significance.” Id. at 541.200(a). The first prong of the administrative exemption

test–that Viola earned more than $455 per week–is not disputed. Viola argues,

however, that the district court erred in granting summary judgment to CHMI because




                                         3
genuine issues of material fact exist as to the second and third prongs of the test. We

address the second and third prongs in turn.

       Viola attempts to create an issue of fact as to the second prong of the

administrative exemption test: whether her work was related to the management or

general business operations of CHMI. Her attempts fail. Work that is directly related

to “management or general business operations includes, but is not limited to, work

in functional areas such as . . . advertising; marketing; . . . public relations, . . . legal

and regulatory compliance; and similar activities.” 29 C.F.R. § 541.201(b). Viola

stresses the fact that she denied “ever performing all of the factors” in the DOL

regulations. (Appellant Br. at 10.) However, because the regulations merely provide

a non-exclusive list of job functions that fall under the exemption, it is not necessary

that an employee perform all of the functions listed in the regulations to qualify as

exempt. Of the listed job functions, Viola’s position arguably qualifies under four

separate functions–namely, advertising, marketing, public relations, and legal and

regulatory compliance. This determination is consistent with the record evidence

before the district court; Viola testified that she “promoted” the WellCare brand,

sought out new beneficiary prospects, scheduled and hosted promotional events,

advertised the events, identified and met with physicians to promote WellCare, and

was charged with ensuring that these promotional events and physician visits

                                             4
complied with the stringent federal regulations surrounding Medicare plans. (R.1-31-

1, Viola Depo., p. 14 at 54:11-14; p. 14 at 56:11-25; p. 15 at 57:1-6; p. 17 at 65:4-11;

p. 18 at 70:5-25; p. 18 at 71:23-24.)

      A review of the record clearly demonstrates that Viola’s employment directly

related to CHMI’s general business operations. Viola’s own testimony and the job

descriptions for her positions indicate that she was involved in developing, planning,

and implementing strategies designed to promote and advertise the WellCare brand.

Her activities required her to be active in the community and to network with various

community and faith-based organizations in order to raise awareness of WellCare.

As a consequence of her job, Viola was the “face” of WellCare in her market. This

fact is confirmed by Viola’s testimony that people would ask her about WellCare on

her days off because they recognized her from her work. (Id., p. 32 at 126:05-13.)

      Viola argues, without citation to the record, that there is a conflict in the

evidence as to whether she performed these functions for CHMI. (Appellant Br. at

11.) But, the record is replete with evidence that Viola performed marketing,

advertising, public relations, and compliance functions in her job. Consequently,

there is no genuine issue of material fact concerning the second, “primary duty” prong

of the administrative exemption test. The evidence shows that Viola performed




                                           5
qualifying functions while employed at CHMI, which satisfy the second prong of the

test as a matter of law under the plain language of the DOL regulations.

      Viola also argues that there is a genuine issue of material fact as to the third

prong of the administrative exemption test: whether Viola’s primary duties included

the exercise of discretion and independent judgment with respect to matters of

significance. Viola argues that the undisputed facts demonstrate that Viola “had

virtually no ability to exercise discretion or independent judgment in matters of

significance.” (Appellant Br. at 15.) We disagree. Some of the factors to consider

when determining whether an employee exercises discretion and independent

judgment are “whether the employee performs work that affects business operations

to a substantial degree, even if the employee’s assignments are related to operation

of a particular segment of the business” and “whether the employee provides

consultation or expert advice to management.” 29 CFR § 541.202(b). The record

demonstrates that Viola worked alone more than seventy-five percent of the time and

generally without supervision. (R.1-31-1, Viola Depo., p. 24 at 93:07-25.) Viola was

required to analyze her market, looking for organizations and locations where

potential customers would congregate, and to create a strategy to promote the

WellCare brand and image. As a primary function of her employment, Viola chose

which community and faith-based organizations to target, the boards on which to

                                          6
serve as a representative of WellCare, and where to hold marketing and promotional

events. Additionally, Viola testified that she wrote reports and business plans

designed to identify targets and generate ideas on how to grow the business. (Id., p.

23 at 90:02-10.) Viola’s jobs also required her to negotiate the cost of marketing

events, advise management where and how much company money to donate within

the community, and design marketing and promotional events.            (Id., p. 22.)

Additionally, Viola testified that she was entrusted with ensuring that her marketing

strategies complied with the myriad of complex federal regulations surrounding

Medicare, and a violation of these regulations could be detrimental to her employer.

(Id., p. 25 at 100:2-7; p. 35 at 138:3-23; p. 35 at 139:1-5; R.1-35-2, Van Valin Aff.,

at ¶ 18.) Though the record demonstrates that Viola was required to submit most of

her plans to management before they were finalized, review of this kind does not

disqualify an employee from the administrative exemption. See 29 CFR § 541.202(c)

(explaining that “[t]he decisions made as a result of the exercise of discretion and

independent judgment may consist of recommendations for action” and may be

“reviewed at a higher level”). Therefore, we conclude that Viola’s duties show the

use of discretion and independent judgment in matters of significance, satisfying the

third prong of the administrative exemption test.

      AFFIRMED.

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