                Case: 15-11746        Date Filed: 06/24/2016       Page: 1 of 7


                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-11746
                               ________________________

                          D.C. Docket No. 1:13-cv-03808-WSD



REBECCA RAMSEY,

                                                                           Plaintiff-Appellant,

                                             versus

WALLACE ELECTRIC COMPANY, LLC, et al.,

                                                                       Defendants-Appellees.

                               ________________________

                       Appeal from the United States District Court
                          for the Northern District of Georgia
                            _________________________

                                       (June 24, 2016)

Before WILLIAM PRYOR, ANDERSON and PARKER, * Circuit Judges.

PER CURIAM:


*
 Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit, sitting
by designation.
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      Plaintiff-Appellant Rebecca Ramsey appeals from the district court's grant

of summary judgment to Defendants-Appellees Wallace Electric Company, LLC

("Wallace") and Phillip Wallace, Sr., on Ramsey's claim for overtime pay under

the Fair Labor Standards Act ("FLSA"). 29 U.S.C. §207(a)(1). Wallace does not

dispute that Ramsey regularly worked more than forty hours a week and that

Wallace did not pay overtime wages for the hours Ramsey worked in excess of

forty hours a week. Rather, Wallace maintains that Ramsey is not entitled to

overtime pay because she was "employed in a bona fide executive, administrative,

or professional capacity" and thus exempt from the overtime pay requirements

pursuant to §213(a)(1). The district court granted summary judgment to Wallace,

holding that there was no genuine question of material fact that Ramsey was

exempt under the statute and the relevant regulations promulgated by the

Department of Labor defining and delimiting the scope of the exemption. After

reviewing the record, reading the parties' briefs, and having the benefit of oral

argument, we conclude that we must vacate the district court's order and remand

this case for further proceedings.

      FLSA mandates generally that covered employees who work more than

forty hours in a week must receive overtime pay for those hours worked in excess

of forty at a rate of one and one-half times their regular wage. §207(a)(1).




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However, the overtime pay requirement does not apply to employees working in "a

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

      Congress has not defined the statutory terms "executive," "administrative,"

or "professional." Rather, §213(a)(1) provides an express grant of rulemaking

authority to the Department of Labor to define and delimit the scope of the

exemptions. These regulations are given controlling weight unless they are found

to be arbitrary, capricious, or contrary to the statute. See Gregory v. First Title of

America, Inc., 555 F.3d 1300, 1302 (11th Cir. 2009).

      The Department of Labor's current regulations provide that the "general

rule" is that an employee is "employed in a bona fide administrative capacity" for

the purposes of § 213(a)(1), and thus exempt from FLSA's overtime requirements,

if the employee is:


      (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. §541.200(a). On appeal, the parties dispute whether Wallace is entitled

to summary judgment on the second and third prongs of this test.




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      Ramsey argues that the district court erred in determining that there was no

genuine question of material fact that Ramsey's primary duty was "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." For the reasons

fully explored at oral argument, we agree with the district court with respect to this

second prong of the test.

      Turning to the third prong of the test, Ramsey argues that the district court

erred in determining that there was no genuine question of material fact that

Ramsey's primary duty included "the exercise of discretion and independent

judgment with respect to matters of significance." The regulations provide several

pieces of guidance relevant to the determination of whether Ramsey exercised

discretion and independent judgment with respect to matters of significance.

      First, the regulations provide a definition of the type of discretion and

judgment required:

      In general, the exercise of discretion and independent judgment
      involves the comparison and the evaluation of possible courses of
      conduct, and acting or making a decision after the various
      possibilities have been considered. The term “matters of
      significance” refers to the level of importance or consequence of the
      work performed.

§541.202(a) (emphasis added). According to this definition, exercising discretion

with respect to matters of significance generally requires that an employee make

consequential decisions among available options.

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      Second, the regulations provide a long non-exclusive list of factors to be

considered in determining whether an employee exercises discretion and

independent judgment:

      The phrase “discretion and independent judgment” must be applied in
      the light of all the facts involved in the particular employment
      situation in which the question arises. Factors to consider when
      determining whether an employee exercises discretion and
      independent judgment with respect to matters of significance include,
      but are not limited to: whether the employee has authority to
      formulate, affect, interpret, or implement management policies or
      operating practices; whether the employee carries out major
      assignments in conducting the operations of the business; 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; whether the
      employee has authority to commit the employer in matters that have
      significant financial impact; whether the employee has authority to
      waive or deviate from established policies and procedures without
      prior approval; whether the employee has authority to negotiate and
      bind the company on significant matters; whether the employee
      provides consultation or expert advice to management; whether the
      employee is involved in planning long- or short-term business
      objectives; whether the employee investigates and resolves matters of
      significance on behalf of management; and whether the employee
      represents the company in handling complaints, arbitrating disputes or
      resolving grievances.

§541.202(b).

      Third, the regulations provide guidance with respect to the degree of

independence an employee must possess:

      The exercise of discretion and independent judgment implies that the
      employee has authority to make an independent choice, free from
      immediate direction or supervision. However, employees can exercise



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      discretion and independent judgment even if their decisions or
      recommendations are reviewed at a higher level.

§541.202(c).

      Finally, the regulations provide guidance pertaining specifically to clerical

services and other mechanical or repetitive services:

      The exercise of discretion and independent judgment must be more
      than the use of skill in applying well-established techniques,
      procedures or specific standards described in manuals or other
      sources. . . . The exercise of discretion and independent judgment also
      does not include clerical or secretarial work, recording or tabulating
      data, or performing other mechanical, repetitive, recurrent or routine
      work. An employee who simply tabulates data is not exempt, even if
      labeled as a “statistician.”

§541.202(e).

      With respect to this third prong of the test – i.e., the exercise of discretion

and independent judgment with respect to matters of significance – we agree with

Ramsey and hold that there are genuine issues of fact with respect to many of the

relevant factors. For example, Phillip Wallace, Sr., the proprietor of Wallace

Electric, testified that Ramsey was authorized to and frequently did negotiate

hourly rates for commercial/industrial service jobs and mark up the company’s cost

of certain materials. He indicated that Ramsey could make the "final call" before

quoting same to the customer if she was unable to reach a supervisor. However,

reasonable inferences from Ramsey's deposition and affidavit dispute that Ramsey

had such discretion or authority.



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      For the foregoing reasons, and for the reasons fully explored at oral

argument, we conclude that there are genuine issues of fact which preclude

summary judgment on the third prong of the test – i.e., whether Ramsey’s primary

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

matters of significance.

      Although the district court correctly resolved the second prong of the test,

the court erred with respect to the third prong. Accordingly, the judgment of the

district court is vacated and the case is remanded for further proceedings not

inconsistent with this opinion.

      VACATED and REMANDED.




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