     08-5847-cv
     Young v. Cooper Cameron Corp.


 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2009
 6
 7
 8   (Argued: September 9, 2009             Decided: November 12, 2009)
 9
10                              Docket No. 08-5847
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   ANDREW YOUNG,
15
16                     Plaintiff-Appellee,
17
18               - v.-                                    08-5847-cv
19
20   COOPER CAMERON CORPORATION,
21
22                     Defendant-Appellant.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:           JACOBS, Chief Judge, POOLER and PARKER,
27                           Circuit Judges.
28
29         The U.S. District Court for the Southern District of

30   New York (Swain, J.) held on summary judgment that, as a

31   matter of law, plaintiff-appellee Andrew Young (“Young”), a

32   Product Design Specialist, was outside the “professional

33   exemption” to the overtime requirements of the Fair Labor

34   Standards Act.       Following a bench trial, the court (Conti,

35   J.) found that Cameron’s violation of the FLSA was willful.
1    Cameron appeals both the exemption and the willfulness

2    determinations.   We affirm.

 3                                  JENNIFER B. RUBIN, JOHN M.
 4                                  DELEHANTY, and ANDREW NATHANSON,
 5                                  Mintz, Levin, Cohn, Ferris,
 6                                  Glovsky & Popeo, P.C., New York,
 7                                  New York, for Appellant.
 8
 9                                  MICHAEL J.D. SWEENEY, Getman &
10                                  Sweeney PLLC, New Paltz, New
11                                  York; Edward Tuddenham, New
12                                  York, New York, for Appellee.
13
14
15   DENNIS JACOBS, Chief Judge:
16
17       The overtime requirements of the Fair Labor Standards

18   Act (“FLSA” or “the Act”) are subject to an exemption for

19   persons “employed in a bona fide . . . professional

20   capacity,” 29 U.S.C. § 213(a)(1), which is defined by

21   regulation as work in “a field of science or learning

22   customarily acquired by a prolonged course of specialized

23   intellectual instruction and study.”     29 C.F.R.

24   § 541.3(a)(1).1   Andrew Young worked for three years as a

25   “Product Design Specialist II” (“PDS II”) for Cooper Cameron

26   Corporation (“Cameron”).   When hired, Young had



          1
            As both parties and the district court recognized,
     the 2002 version of the Code of Federal Regulations controls
     in this case. Accordingly, the citations in this opinion
     are to the 2002 Regulations.
                                     2
1    approximately 20 years of engineering-type experience, and

2    his work at Cameron involved complicated technical expertise

3    and responsibility.   Like all of the other PDS IIs, however,

4    Young lacked any formal education beyond a high school

5    diploma.

6        Young was not paid overtime because Cameron had

7    classified PDS IIs as exempt professionals under the FLSA.

8    After losing his job in 2004 due to a reduction-in-force,

9    Young sued Cameron under the FLSA, alleging that his

10   classification as an exempt professional willfully violated

11   the Act.

12       The U.S. District Court for the Southern District of

13   New York (Swain, J.) granted summary judgment in Young’s

14   favor on the ground that he was not an exempt professional.

15   Cameron’s violation of the FLSA was found to be willful

16   after a bench trial (Conti, J.).   Cameron appeals both the

17   exemption and the willfulness determinations.

18       We now affirm, concluding that as a matter of law Young

19   is not an exempt professional and that Cameron willfully

20   violated the FLSA.

21

22


                                   3
1                                    I

2        Young is a high school graduate.     He enrolled in some

3    courses at various universities, but did not obtain a

4    degree.   Before he was hired by Cameron, he worked for 20

5    years in the engineering field as a draftsman, detailer, and

6    designer.     He was a member of the American Society of

7    Mechanical Engineers, a membership that required the

8    recommendation of three engineers.    For three of the 20

9    years, Young worked with what are known as hydraulic power

10   units (“HPUs”).

11       In the spring of 2001, Young applied for a job with

12   Cameron, and he was offered the position of Mechanical

13   Designer in the HPU group.    This position paid an hourly

14   wage of $26 and was classified as non-exempt under the FLSA.

15   Young, seeking higher pay, declined.

16       Soon after, Young met again with Cameron.     This time,

17   Cameron offered to hire him as a PDS II--a position that

18   Cameron had determined, through multiple internal and

19   external analyses, was exempt from the FLSA’s overtime

20   provisions.    This job paid an annual salary of $62,000 (an

21   effective hourly wage of $29.81).     Applicants were required

22   to have twelve years of relevant experience; but no


                                     4
1    particular kind or amount of education was required, and no

2    PDS II had a college degree.     Young accepted Cameron’s offer

3    on July 23, 2001, understanding that the position was exempt

4    from the FLSA’s overtime provisions.      For his three-year

5    tenure at Cameron, Young worked as a PDS II in the HPU

6    group.

7        HPUs contain fluid under pressure for use in connection

8    with oil drilling rigs.     They are large and complex, and

9    they are subject to a variety of industry standards, codes,

10   and government specifications.      Young was the principal

11   person in charge of drafting plans for HPUs.      This work

12   required depth of knowledge and experience, and entailed

13   considerable responsibility and discretion.     For example,

14   Young assimilated layers and types of specifications into a

15   safe, functional, and serviceable design that met consumer

16   demands, engineering requirements, and industry standards.

17   Young personally selected various structural components of

18   the HPU and modified certain specifications to account for

19   new technology.   In these ways, Young operated at the center

20   of both the conceptual and physical processes of HPU

21   creation and development.

22       On August 2, 2004, after losing his job in a reduction-


                                     5
1    in-force, Young sued Cameron in federal court, alleging that

2    Cameron had improperly and willfully classified him as an

3    exempt professional.     The district court, adopting a report

4    and recommendation from the magistrate judge (Gorenstein,

5    M.J.), granted partial summary judgment to Young on the

6    exemption issue.   The court held as a matter of law that the

7    work of a PDS II is “not of an advanced type in a field of

8    science or learning customarily acquired by a prolonged

9    course of specialized intellectual instruction and study.”

10       A bench trial followed as to whether Cameron’s FLSA

11   violation was willful.    The district court found that

12   Cameron willfully violated the FLSA by “hir[ing] Young into

13   the exempt PDS II position instead of the non-exempt

14   Mechanical Designer position in order to avoid paying him

15   overtime, even though his responsibilities did not change

16   based on the different titles.”     Because Cameron’s violation

17   was willful, the court applied the three-year limitations

18   period rather than the two-year period applicable to non-

19   willful violations.

20       On appeal, Cameron raises two issues.     First, it argues

21   that the district court erred in granting summary judgment

22   to Young on the professional exemption issue, and asks us


                                     6
1    either to vacate the summary judgment order and remand for

2    trial or, alternatively, to enter summary judgment in its

3    favor.   Second, Cameron argues that any FLSA violation was

4    non-willful.

5

6                                   II

7        We review de novo an order granting summary judgment,

8    and we construe all facts in favor of the non-movant.

9    Pilgrim v. Luther, 571 F.3d 201, 204 (2d Cir. 2009).

10   Summary judgment is appropriate only if “there is no genuine

11   issue as to any material fact” and “the movant is entitled

12   to judgment as a matter of law.”     Fed. R. Civ. P. 56(c).

13       Under the FLSA, employees who work more than 40 hours

14   per week must be compensated for each hour worked over 40

15   “at a rate not less than one and one-half times the regular

16   rate at which he is employed.”      29 U.S.C. § 207(a)(1).

17   However, “employee[s] employed in a bona fide . . .

18   professional capacity” are exempt from the FLSA’s overtime

19   requirements.    Id. § 213(a)(1).   And because the FLSA is a

20   remedial statute, this exemption must be “narrowly

21   construed.”     A.H. Phillips, Inc. v. Walling, 324 U.S. 490,

22   493 (1945); Martin v. Malcolm Pirnie, Inc., 949 F.2d 611,


                                     7
1    614 (2d Cir. 1991).   The employer has the burden of proving

2    that the employee clearly falls within the terms of the

3    exemption.    See Havey v. Homebound Mortgage, Inc., 547 F.3d

4    158, 163 (2d Cir. 2008).

5        The Act itself does not define the term “professional”

6    for purposes of the exemption; it delegates that

7    responsibility to the Secretary of Labor (“Secretary”).     See

8    id. at 160.    As relevant to this appeal, a person is an

9    exempt professional if his

10            primary duty consists of the performance of:
11            [w]ork requiring knowledge of an advance[d] type
12            in a field of science or learning customarily
13            acquired by a prolonged course of specialized
14            intellectual instruction and study, as
15            distinguished from a general academic education
16            and from an apprenticeship, and from training in
17            the performance of routine mental, manual, or
18            physical processes.
19
20   29 C.F.R. § 541.3(a)(1).2

21       “The typical symbol of the professional training and

22   the best prima facie evidence of its possession is, of

23   course, the appropriate academic degree, and in these



          2
            Additionally, the employee’s work must “require[] the
     consistent exercise of discretion and judgment in its
     performance,” id. § 541.3(b), and the employee must receive
     a “salary or fee basis at a rate of not less than $170 per
     week,” id. § 541.3(e). These elements are not at issue in
     this appeal.
                                    8
1    professions an advanced academic degree is a standard (if

2    not universal) prerequisite.”       29 C.F.R. § 541.301(e)(1).

3    So it is not the case that “anyone employed in the field of

4    . . . engineering . . . will qualify for exemption as a

5    professional employee by virtue of such employment.”      Id.

6    § 541.308(a).   At the same time, “the exemption of [an]

7    individual depends upon his duties and other

8    qualifications.”   Id.    “The field of ‘engineering’ has many

9    persons with ‘engineer’ titles, who are not professional

10   engineers, as well as many who are trained in the

11   engineering profession, but are actually working as

12   trainees, junior engineers, or draftsmen.”       Id.

13   § 541.308(b).   Thus “technical specialists must be more than

14   highly skilled technicians” to be eligible for the

15   professional exemption.    Id. § 541.301(e)(2); see also id.

16   (“The professional person . . . attains his status after a

17   prolonged course of specialized intellectual instruction and

18   study.”).

19       As the Secretary interprets the regulations, a three-

20   part test determines whether an employee has the type of

21   knowledge sufficient to qualify as an exempt professional.

22   First, the employee’s “knowledge must be of an advanced type


                                     9
1    . . . generally speaking, it must be knowledge which cannot

2    be attained at the high school level.”      29 C.F.R.

3    § 541.301(b).    Second, the knowledge must be in a field of

4    science or learning.    Id. § 541.301(c).    Third, the

5    knowledge “must be customarily acquired by a prolonged

6    course of specialized intellectual instruction and study.”

7    Id. § 541.301(d).    The word “customarily” is key:

 8               The word ‘customarily’ implies that in the vast
 9               majority of cases the specific academic training
10               is a prerequisite for entrance into the
11               profession. It makes the exemption available to
12               the occasional lawyer who has not gone to law
13               school, or the occasional chemist who is not the
14               possessor of a degree in chemistry, etc., but it
15               does not include the members of such quasi-
16               professions as journalism in which the bulk of the
17               employees have acquired their skill by experience
18               rather than by any formal specialized training.
19
20   Id.

21         It is uncontested that the job of a PDS II requires no

22   formal advanced education.    The issue is whether a position

23   can be exempt notwithstanding the lack of an educational

24   requirement, if the duties actually performed require

25   knowledge of an advanced type in a field of science or

26   learning.    Cameron argues for a stand-alone “duties test”

27   independent from any educational considerations.        Young

28   argues, and the district court held, that if advanced and


                                    10
1    specialized education is not customarily required, the

2    exemption cannot apply, regardless of the employee’s duties.

3        We agree with Young and the district court.       The

4    regulations state that a professional is someone “[w]hose

5    primary duty consists of the performance of [w]ork requiring

6    knowledge of an advance type in a field of science or

7    learning customarily acquired by a prolonged course of

8    specialized intellectual instruction and study.       29 C.F.R.

9    § 541.3(a)(1) (emphasis added).     As noted above,

10   “customarily” in this context makes the exemption applicable

11   to the rare individual who, unlike the vast majority of

12   others in the profession, lacks the formal educational

13   training and degree.    But where most or all employees in a

14   particular job lack advanced education and instruction, the

15   exemption is inapplicable: hence, the Secretary’s

16   interpretation advising that “members of such quasi-

17   professions as journalism in which the bulk of the employees

18   have acquired their skill by experience rather than by any

19   formal specialized training” are not properly considered

20   exempt professionals.    See 29 C.F.R. § 541.301(d).

21       We therefore hold that an employee is not an exempt

22   professional unless his work requires knowledge that is


                                    11
1    customarily acquired after a prolonged course of

2    specialized, intellectual instruction and study.    If a job

3    does not require knowledge customarily acquired by an

4    advanced educational degree--as for example when many

5    employees in the position have no more than a high school

6    diploma--then, regardless of the duties performed, the

7    employee is not an exempt professional under the FLSA.

8        With these principles in mind, it is clear that Young

9    is not exempt.    The undisputed evidence is that the PDS II

10   position required no advanced educational training or

11   instruction and that, in fact, no PDS II had more than a

12   high school education.

13       Two sister courts have issued persuasive opinions on

14   this subject.    In Vela v. City of Houston, 276 F.3d 659, 675

15   (5th Cir. 2001), the only decisive factors were education

16   and discretion (the exercise of professional judgment on the

17   job).   On that basis, the court distinguished emergency

18   medical technicians and paramedics (who are not required to

19   have college degrees) from nurses and athletic trainers (who

20   are so required).    Id. (explaining that EMTs and paramedics

21   are not exempt professionals because they “lack the

22   educational background to satisfy the education prong of the


                                    12
1    Learned Professional exemption”).

2        In Fife v. Harmon, 171 F.3d 1173, 1177 (8th Cir. 1999),

3    the minimum qualifications for the plaintiffs’ position as

4    Airfield Operation Specialists were “a Bachelor’s degree in

5    aviation management or a directly related field, or four

6    years of full-time experience in aviation administration, or

7    an equivalent combination of experience and education.”    The

8    court held the exemption inapplicable: “This is advanced

9    knowledge from a general academic education and from an

10   apprenticeship, not from a prolonged course of specialized

11   intellectual instruction.”   Id. (internal quotation marks

12   omitted).   The court did not separately consider the nature

13   of the plaintiffs’ duties.

14       Other cases similarly tie the exemption analysis to the

15   academic requirements of the position at issue.    See, e.g.,

16   Reich v. Wyoming, 993 F.2d 739, 743 (10th Cir. 1993)

17   (concluding that game wardens are subject to the

18   professional exemption because they must have a degree in

19   wildlife management, biology, or a similar field); Dybach v.

20   Fla. Dep’t of Corr., 942 F.2d 1562, 1566 (11th Cir. 1991)

21   (“Dybach’s position [as a probation officer] did not rise to

22   the level of a section 213(a)(1) [exempt] professional


                                   13
1    because it did not require a college or an advanced degree

2    in any specialized field of knowledge.”).

3        Finally, the case law advanced by Cameron is neither

4    binding on this Court nor inconsistent with our conclusion.

5    Some of these cases either misapply (or ignore altogether)

6    the requirement that the plaintiff’s knowledge be of the

7    type customarily acquired by a prolonged course of advanced

8    intellectual study.   See Debejian v. Atl. Testing Labs.,

9    Ltd., 64 F.Supp.2d 85, 88 (N.D.N.Y. 1999); Stevins v.

10   Provident Constr. Co., No. 04-15189, 137 Fed.Appx. 198, 199

11   (11th Cir. Apr. 18, 2005).   Another case cited by Cameron

12   provides minimal justification for its holding.   See

13   Dingwall v. Friedman Fisher Assocs., P.C., 3 F. Supp. 2d

14   215, 218 (N.D.N.Y. 1998) (holding, without explanation, that

15   designing electrical systems is “clearly an area requiring

16   advanced knowledge in a field of science or learning

17   customarily acquired by a prolonged course of specialized

18   intellectual instruction and study”).

19       On the basis of the foregoing, we conclude that, as a

20   matter of law, Young was not an exempt professional because

21   he did not do work which required knowledge customarily

22   acquired by a prolonged course of advanced intellectual


                                   14
1    study.

2

3                                  III

4           An employer willfully violates the FLSA when it “either

5    knew or showed reckless disregard for the matter of whether

6    its conduct was prohibited by” the Act.     McLaughlin v.

7    Richland Shoe Co., 486 U.S. 128, 133 (1988); see also Herman

8    v. RSR Sec. Svcs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999).

9    Mere negligence is insufficient.    McLaughlin, 486 U.S. at

10   133.    The effect of a willfulness finding is to extend the

11   statute of limitations period from two to three years.       See

12   29 U.S.C. § 255(a).    The burden is on the employee to show

13   willfulness.    Herman, 172 F.3d at 141.

14          We review the district court’s willfulness

15   determination de novo.    Id. at 139; see also Reich v.

16   Waldbaum, Inc., 52 F.3d 35, 39 (2d Cir. 1995).      But we

17   review the district court’s underlying findings of fact for

18   clear error.    Herman, 172 F.3d at 139.   Under this standard,

19   “[i]f the district court’s account of the evidence is

20   plausible in light of the record viewed in its entirety, the

21   court of appeals may not reverse it even though convinced

22   that had it been sitting as the trier of fact, it would have


                                    15
1    weighed the evidence differently.”   Anderson v. City of

2    Bessemer City, N.C., 470 U.S. 564, 573-74 (1985).

3        The district court rejected Cameron’s defense that it

4    had exercised due diligence and good faith in classifying

5    the PDS II position as exempt: “The question here is not

6    whether Cameron acted in good faith when it originally

7    determined that a PDS II should be exempt, or when it

8    reviewed that determination in subsequent years.”   What

9    matters, as the district court framed this issue, is

10   “whether Cameron acted in good faith when it classified

11   Young as exempt.”

12       The district court found that “the only reason [Young]

13   was offered the PDS II position instead of the Mechanical

14   Designer position was because Cameron wanted to avoid paying

15   him overtime,” and that Young--notwithstanding his title of

16   PDS II--did the work of a non-exempt Mechanical Designer.

17       Neither finding is clearly erroneous.    Young was

18   originally considered for employment as a Mechanical

19   Designer.   Only after Young rejected the offer of $26 per

20   hour as a Mechanical Designer did Cameron raise with him the

21   PDS II position.    At that point, there was little discussion

22   of the PDS II’s duties because both Young and Cameron


                                    16
1    understood that his duties would be about the same as those

2    of a Mechanical Designer.   And for the entire time Young

3    worked at Cameron, he did the work of a Mechanical Designer.

4        The district court observed “almost no evidence to

5    contradict Young’s version of the foregoing events.”    The

6    court discounted some of Cameron’s testimony as not credible

7    and found Young’s version of events “more coherent,” “better

8    supported,” and more credible.     Finally, the court noted

9    that Cameron’s own human resources manager admitted that

10   “the FLSA would not permit Cameron to hire Young into an

11   exempt position and have him do the work of a non-exempt

12   employee” and that “hiring Young into the exempt position

13   just to avoid overtime would run afoul of the FLSA.”

14       Cameron submits that the district court committed clear

15   error when it found that Young was functioning as a

16   Mechanical Designer, arguing “that the positions were

17   different in ways that gave Cameron ample reason to conclude

18   that the [PDS II] position was properly classified as exempt

19   even if the [Mechanical Designer position] was not.”    For

20   support, Cameron relies on the testimony of Mac Kennedy, its

21   engineering manager and Young’s supervisor:

22            The main difference is in the level of experience
23            and the amount of interaction that an engineer

                                   17
1             would need to do in order for their work to be
2             completed. A specialist can take a product from a
3             concept to a near complete design with very little
4             interaction, maybe a couple of questions he has to
5             ask for clarification about the specs, whereas a
6             designer needs a lot more interaction and
7             direction as the design progresses.
8
9    This testimony, according to Cameron, addresses “exactly the

10   attributes that justified [it]s decision to classify the PDS

11   II position as exempt.”

12       Cameron’s argument answers the wrong question.    This

13   evidence might help establish that the position of PDS II

14   differs from that of Mechanical Designer; but, as we have

15   already noted, and even conceding that the jobs are

16   different, what matters is whether Young did the work of a

17   non-exempt Mechanical Designer, not whether PDS IIs

18   generally did more advanced work than Mechanical Designers.

19       The district court did not err in determining that

20   Cameron willfully violated the FLSA.

21

22                                  IV

23       Finally, Young asks us to remand this case to the

24   district court for an award of attorney’s fees and costs

25   associated with this appeal.

26       The FLSA provides that a court “shall, in addition to


                                    18
1    any judgment awarded to the plaintiff or plaintiffs, allow a

2    reasonable attorney’s fee to be paid by the defendant, and

3    costs of the action.”   29 U.S.C. § 216(b).   Young’s

4    entitlement to fees and costs extends to this appeal.     See

5    Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 948 (2d

6    Cir. 1959) (“Counsel for plaintiff is allowed an additional

7    $150 for his services on this appeal.”); see also Velez v.

8    Vassallo, 203 F.Supp.2d 312, 315 (S.D.N.Y. 2002)

9    (“[P]revailing plaintiffs in FLSA cases are entitled to

10   attorneys’ fees for prosecuting or defending appeals.”)

11   (citing Caserta).

12       We therefore remand this matter to the district court

13   for the proper determination of appellate fees and costs

14   owed to Young.   See Aaron v. Bay Ridge Operating Co., 162

15   F.2d 665, 670 (2d Cir. 1947).

16

17                            CONCLUSION

18       For the foregoing reasons, we affirm the judgment of

19   the district court, and we remand the case for the sole

20   purpose of allowing the district court to award Young the

21   reasonable fees and costs of this appeal.




                                     19
