                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 97-3427
                                   No. 97-4265
                                   ___________

Harold L. Fife; Judith Prather; Ronald*
Craft; Betsy Murray; James Carter;    *
Anthony Biondo; John Bales; Michael   *
Roper; David Hodge; Vicki Lange,      *
                                      *
      Plaintiffs - Appellees,         * Appeals from the United States
                                      * District Court for the
      v.                              * Eastern District of Missouri.
                                      *
Clarence Harmon; City of St. Louis;   *
William C. Duffie; Leonard Griggs;    *
Larry Williams,                       *
                                      *
      Defendants - Appellants.        *
                                 ___________

                             Submitted: November 12, 1998

                                  Filed: March 26, 1999
                                   ___________

Before BOWMAN, Chief Judge, BRIGHT and LOKEN, Circuit Judges.
                             ___________

LOKEN, Circuit Judge.

       In this Fair Labor Standards Act (“FLSA”) case, plaintiffs are Airfield
Operation Specialists (“AOSs”) at the Lambert-St. Louis International Airport who
claim that the City of St. Louis violated FLSA by failing to pay them at time-and-one-
half rates for hours worked in excess of forty per week. See 29 U.S.C. § 207(a). The
City asserts that the AOSs are executive, administrative, or professional employees
exempt from the overtime compensation requirements of § 207(a). See 29 U.S.C. §
213(a)(1). The district court initially granted summary judgment in favor of
plaintiffs, concluding the City was collaterally estopped to assert this defense by an
earlier decision of the Missouri State Board of Mediation. The City appealed, and we
reversed. See Fife v. Bosley, 100 F.3d 87 (8th Cir. 1996). On remand, the district
court granted plaintiffs’ renewed motion for summary judgment. Defendants1 again
appeal. Concluding the summary judgment record reveals disputed issues of material
fact, we reverse and remand for trial. See Caviness v. Nucor-Yamato Steel Co., 105
F.3d 1216, 1223 (8th Cir. 1997) (standard of review).

       The Lambert Airport operates twenty-four hours a day, seven days a week, with
a work force of 625 City employees and 21,600 airline employees. AOSs staff the
Airport’s Operations and Communications Center, a unit created to be the eyes and
ears of senior management at all times. During the period in question, an AOS who
worked more than forty hours in a particular week had the choice of being paid for
this overtime at his or her regular rate, or “banking” an hour of paid vacation time for
each hour of overtime worked. In 1994, plaintiffs commenced this FLSA damage
action for unpaid overtime, see 29 U.S.C. § 216(b), claiming they should have been
paid for overtime at time-and-one-half rates. The City claims AOSs are “bona fide
executive, administrative, or professional” employees exempt from FLSA’s overtime
requirements under § 213(a)(1). This exemption is an affirmative defense on which
an employer has the burden of proof. See Murray v. Stuckey’s, Inc., 50 F.3d 564, 566
(8th Cir.), cert. denied, 516 U.S. 863 (1995).




      1
      Plaintiffs also joined as defendants four City officials. Although the issue was
not considered by the district court nor raised on appeal, we doubt these City
employees are liable for plaintiffs’ damage claims. See 29 U.S.C. § 203(d).

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      The FLSA grants the Secretary of Labor broad authority to define the terms
“executive, administrative, and professional” employees. See 29 U.S.C. § 213(a)(1);
Auer v. Robbins, 117 S. Ct. 905, 909 (1997). The Secretary has promulgated
extensive regulations delimiting the types of employees who fall within this
exemption. See 29 C.F.R. Part 541. The regulations treat the three exemption
categories separately.

        Salary Basis. A criterion common to all three exemption categories is that the
employee must be compensated on a salary basis. See 29 C.F.R. §§ 541.1(f),
541.2(e), 541.3(e). An employee is paid “on a salary basis” if he or she receives a
predetermined amount of compensation each pay period that is not subject to being
reduced because of the quality or quantity of the work. See 29 C.F.R. § 541.118(a).
It is undisputed that the AOSs received a predetermined amount of pay each period
which was not subject to reduction. The district court nonetheless concluded they
were not paid on a salary basis for purposes of this exemption because, when they
worked more than forty hours in a week, they were paid overtime at an hourly rate,
a form of compensation that is “inherently inconsistent” with being salaried. This
ruling was an error of law. The Secretary “has unequivocally and consistently
declared that additional compensation in the form of hourly overtime payment does
not defeat exempt status under the salary-basis test.” Boykin v. Boeing Co., 128 F.3d
1279, 1281 (9th Cir. 1997); see, e.g., D.O.L. Wage & Hour Division Opinion Letter,
1997 WL 998013 (March 17, 1997). “Because the salary-basis test is a creature of
the Secretary’s own regulations, his interpretation of it is . . . controlling unless
plainly erroneous or inconsistent with the regulation.” Auer, 117 S. Ct. at 911
(quotation omitted). The grant of summary judgment on this ground must be
reversed.

        Other Criteria for the Executive and Administrative Exemption Categories. For
employees who earn more than $250 per week, the regulations provide an abbreviated
list of additional criteria the employer must prove to qualify for the executive and

                                         -3-
administrative exemption categories. See Murray v. Stuckey’s, Inc., 939 F.2d 614,
617 (8th Cir. 1991). It is undisputed the salaries of AOSs were high enough to make
them subject to this “short test.” “Executive” employees under this test are those

      whose primary duty consists of the management of the enterprise in
      which the employee is employed or of a customarily recognized
      department or subdivision thereof, and includes the customary and
      regular direction of the work of two or more other employees therein.

29 C.F.R. § 541.1(f). “Administrative” employees under the short test are those

      whose primary duty consists of the performance of [office or non-
      manual work directly related to management policies or general business
      operations of his employer or his employer’s customers], which includes
      work requiring the exercise of discretion and independent judgment.

29 C.F.R. § 541.2(e)(2), incorporating the bracketed language by reference from
§ 541.2(a)(1). The district court concluded that AOSs do not fall under the executive
exemption as a matter of law because they did not perform managerial functions and
did not customarily direct and supervise two or more employees. The court
concluded that AOSs do not fall under the administrative exemption as a matter of
law because their non-manual work was not directly related to the Airport’s
“management policies or general business operations,” and because they did not
exercise discretion and independent judgment. On this summary judgment record,
we disagree.

       The critical issues are whether the AOSs’ duties included managing the Airport
or one of its subdivisions (both exemption categories), whether such activities were
their “primary duty” (both categories), whether they directed the work activities of
other employees (executive category), and whether they exercised discretion and
independent judgment (administrative catgegory). Both sides submitted voluminous

                                         -4-
evidence addressing these issues. That evidence is conflicting, both as to the nature
of some duties and the relative amount of time AOSs spend performing various
duties. It is clear the duties of AOSs are many and varied; what they do on a daily
basis is very much disputed. A significant problem with these fact questions is that
both sides have taken inconsistent positions on this issue. For example, when seeking
salary increases, the AOSs describe themselves as indispensable management
employees during nights, weekends, and holidays -- “acting airport director” was the
self-descriptive term plaintiffs used in a 1994 letter to the Mayor. On the other hand,
in support of their motion for summary judgment in this case, plaintiffs submitted
conclusory affidavits asserting they “do not customarily or regularly exercise
discretionary powers or independent judgment.” With the parties’ credibility in
doubt, the fact questions must be tried unless one side is clearly entitled to judgment
as a matter of law.

       The only question before us is whether the City introduced evidence which, if
fully credited, would carry the City’s burden of proof that AOSs are exempt executive
or administrative employees. One of the exhibits submitted by the City in opposition
to plaintiffs’ summary judgment motion was a Memorandum by the Airport’s
Personnel Manager, Patrick Martocci, prepared for another purpose. That
Memorandum described the AOSs’ duties in part as follows:

      Incumbents of this position act as the direct management representatives
      for the Airport Director and for the St. Louis Airport Authority on a 24
      hour-a-day, 7 day-a-week basis including holidays, weekends, and non-
      business hours. Personnel are expected to be on-call from November
      through April for inclement winter weather conditions and are required
      to be available for additional overtime throughout the year as needed.

      Personnel of this class . . . are expected to be knowledgeable about all
      phases of airport operations and FAA rules and regulations and are
      required to make immediate concise and accurate decisions on matters
      concerning the Airport Authority with no consultations or with only

                                         -5-
      minimal consultations with upper management personnel. [AOSs] are
      required to take immediate charge of emergency situations until the
      arrival of upper management personnel.

      DUTIES INCLUDE: . . . 9. Take immediate charge of emergency
      situations; aircraft emergencies; accidental injuries, fuel spills,
      radioactive spills, safety violations, etc. until relieved or until
      termination of situation. Make emergency notifications to all concerned
      personnel; Airport Authority and otherwise.

      10. Open and close runways, taxiways and airline ramp areas . . . for
      scheduled maintenance, construction, in response to emergency
      situations, and during snow and ice removal operations. Perform this
      duty with little or no upper management supervision.

      11. Direct Airport Authority and airline maintenance crews to areas
      requiring repairs or corrective actions. Act as facilitator for persons
      with problems attempting to have them corrected. Deal with
      maintenance problems airfield side and terminal side.

Alongside plaintiffs’ assertion in another context that they often function as acting
airport directors, this evidence is sufficient to create triable issues of fact as to
whether AOSs are exempt executive or administrative employees. Compare Reich
v. Avoca Motel Corp., 82 F.2d 238, 240-41 & n.5 (8th Cir. 1996).

       The Professional Exemption Category. The regulations define a professional
employee as one whose work requires “knowledge of an advance type in a field of
science or learning customarily acquired by a prolonged course of specialized
intellectual instruction and study, as distinguished from a general academic education
and from an apprenticeship, and from training in the performance of routine mental,
manual or physical processes.” 29 C.F.R. § 541.3(a)(1); for further explication of this
standard, see 29 C.F.R. § 541.301. Notably, “management” is absent from the
professions listed in the explanatory regulations. See 29 C.F.R. § 541.301(e)(1).


                                         -6-
       The City’s advertised minimum qualifications for the AOS position are a
Bachelor’s degree in aviation management or a directly related field, or four years of
full-time experience in aviation administration, or an equivalent combination of
experience and education. This is advanced knowledge “from a general academic
education and from an apprenticeship,” not from “a prolonged course of specialized
intellectual instruction.” In opposing plaintiffs’ motion for summary judgment in the
district court, the City made no attempt to marshall facts proving the AOSs are
professionals in the sense defined in the regulations. Thus, the issue was essentially
abandoned. In any event, we agree with the district court “it is readily apparent that
AOSs do not fall within the description of a professional as explained by the
regulations.” Summary judgment was properly granted as to this category of the
claimed exemption.

       Having concluded that summary judgment was improperly granted as to the
executive and administrative exemption categories, we reverse the judgments of the
district court dated July 18 and August 18, 1997, and remand the case for further
proceedings not inconsistent with this opinion. In case No. 97-4265, we vacate the
district court’s October 15, 1997, order awarding plaintiffs attorneys’ fees and costs
because there is no longer a judgment in their favor supporting that award under 29
U.S.C. §216(b).

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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