Maestas v. Day & Zimmerman, LLC

• Decision Date: 04 January 2012
• Docket Number: No. 10–2280.,10–2280.
• Citation: 664 F.3d 822,161 Lab.Cas. P 35979,18 Wage & Hour Cas.2d (BNA) 865
• Parties: Michael MAESTAS; Thomas May; Juanito Marquez; Jahmaal Gregory, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants, v. DAY & ZIMMERMAN, LLC; SOC, LLC, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

161 Lab.Cas. P 35,979

18 Wage & Hour Cas.2d (BNA) 865

664 F.3d 822

Michael MAESTAS; Thomas May; Juanito Marquez; Jahmaal Gregory, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants,

v.DAY & ZIMMERMAN, LLC; SOC, LLC, Defendants–Appellees.

No. 10–2280.

United States Court of Appeals, Tenth Circuit.

Jan. 4, 2012.

Darrell M. Allen (Hannah B. Best, Hannah Best & Associates, with him on the briefs), Albuquerque, NM, for the Plaintiffs–Appellants.

Whitney Warner (Christopher M. Moody with her on the brief), Moody & Warner, P.C., Albuquerque, NM, for the Defendants–Appellees.

Before KELLY, LUCERO, and GILMAN,^* Circuit Judges.LUCERO, Circuit Judge.

Plaintiffs, officers in a private security force that protects Los Alamos National Laboratory, contend that their employer Day and Zimmerman, LLC, and SOC, LLC, (collectively “SOC”) improperly classified them as exempt employees under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Ruling on their contentions, the district court concluded that all plaintiffs were exempt executive employees and granted summary judgment to SOC.

The parties disagree over which of plaintiffs' job duties is “primary,” a determination essential to the classification of their positions under FLSA. We hold that such a dispute presents a question of fact rather than an issue of law. We further hold that an employee who supervises subordinates while also conducting front-line law-enforcement work performs a non-managerial task. Because there remains a genuine dispute as to whether three of the plaintiffs had this task as their primary duty, summary judgment was proper only against plaintiff Thomas May and improper as to the other plaintiffs. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.

I

SOC's private security force provides crucial, around-the-clock protection to the Los Alamos National Laboratory. The force has a hierarchical, military-style structure. At the lowest level of the hierarchy are security officers (“SOs”) and security police officers (“SPOs”). SOs and SPOs, who are unionized and non-exempt employees, are supervised by three ranks of field supervisors: lieutenants, captains, and majors, in ascending order. All field supervisors maintain the same certifications as SOs and SPOs, including first responder training, respirator training, and hazardous materials training. In addition, all field supervisors must have some supervisory experience and must complete a basic supervisory course on leadership, management, and administration. Field supervisors, like all members of the force, wear uniforms and work in shifts. In addition to the field supervisors, SOC employs higher-level managers. Unlike field supervisors, these managers do not work in shifts, do not wear uniforms, and do not work in the field.

Plaintiff Michael Maestas is a Field Operations Department (“FOD”) lieutenant. During a shift, lieutenants like Maestas check every post in their assigned zone to ensure that the post is appropriately staffed. If the post is not adequately staffed, Maestas is expected to fill in at the post until it can be appropriately filled. During daily formation, Maestas conducts visual examinations of his subordinates to ensure their fitness for duty. If Maestas suspects that a subordinate is not fit for duty, he notifies his major. At that point, Maestas or his major must complete an incident report, and either supervisor may recommend disciplinary action. At least twice a day, Maestas is required to conduct “On Shift Performance Assessments” of subordinates, which test their knowledge and abilities. When Maestas was promoted from SPO to lieutenant, he received a ten percent pay raise.

As a lieutenant, Maestas also conducts and supervises alarm maneuvers. When an alarm sounds, he is responsible for responding. Maestas may order an SPO to investigate the alarm or investigate it himself. In the event of an emergency, Maestas is expected to direct the response and coordinate with outside emergency personnel. Although he retains the ability to personally respond to any type of emergency, he is expected to remain in charge of the situation whenever possible.

Plaintiff Juanito Marquez is also a lieutenant, but his position combines the duties of a FOD lieutenant and a Shift Administration and Systems Supervisor (“SASS”) lieutenant. He spends approximately 50 to 60 percent of his time in the field as an FOD lieutenant, filling a similar role to that of Maestas. Marquez testified that, as an FOD lieutenant, he spends 5 to 10 percent of his time checking on his subordinates and the rest of his time patrolling his zone. When he is not working as a FOD lieutenant, Marquez works in the office as a SASS lieutenant. As a SASS lieutenant, Marquez is a “scheduling specialist.” He is responsible for ensuring that an appropriate SPO or SO is assigned to every post, handling requests for time off, and ensuring compliance with the collective bargaining agreement. Marquez also received a 10 percent pay raise when he was promoted to lieutenant.

Plaintiff Jahmaal Gregory is a captain. As a captain, Gregory oversees fifteen SPOs and three lieutenants. He is the highest commanding officer in his zone of the facility during his shifts. Gregory is responsible for supervising the daily work of his subordinates, implementing policies handed down by upper management, reporting on personnel incidents in the field, and recommending discipline or changes in SOC policies. In an emergency, Gregory is expected to command the response of his subordinates from a remote location. He would not personally address any emergency unless it occurred in his immediate vicinity.

Plaintiff Thomas May is one of SOC's six majors. As a major, May reports directly to upper management and is the highest-ranking person in the field during his shift. May spends the first few hours of his shift distributing weapons to incoming employees and collecting weapons from outgoing employees. He is also responsible for briefing his subordinates at the beginning of their shift. May spends the majority of his shift at headquarters, overseeing all of the employees in the field. When a problem with a subordinate arises, May investigates the incident and reviews any disciplinary recommendations made by lower-level supervisors before referring the situation to upper management. In an emergency, he is expected to coordinate the employees' response rather than personally attending to the situation.

The plaintiffs argue that they are non-exempt employees because they are “first responders” under 29 C.F.R. § 541.3(b),¹ and are thus owed overtime pay. On a motion for summary judgment, SOC argued that the plaintiffs were not first responders and instead fell under either the executive, administrative, or combination exemptions. See 29 C.F.R. § 541.100 (executive exemption); § 541.200 (administrative exemption); § 541.708 (combination exemption). The district court determined that plaintiffs were executive employees, and not first responders, and granted summary judgment to SOC.

II

We review the district court's summary judgment grant de novo. Bohn v. Park City Group, 94 F.3d 1457, 1460 (10th Cir.1996). SOC is entitled to summary judgment if there is no dispute of material fact and it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). It is the employer's burden to prove that an employee falls “plainly and unmistakably” within a FLSA exemption. Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1184 (10th Cir.2004).

A

The dispute over plaintiffs' primary duties is decisive in this case. In order to fall under the executive, administrative, or combination exemptions to FLSA's overtime protections, an employee's primary duty must be managerial or administrative, or a combination of the two.² See 29 C.F.R. § 541.100(a)(2) (executive employees' primary duty must be “management of the enterprise”); § 541.200(a)(2) (administrative employees' primary duty must be “office or other non-manual work directly related to ... management or general business operations”); § 541.708 (“[A]n employee whose primary duty involves a combination of exempt administrative and exempt executive work may qualify for an exemption.”). However, if an employee's primary duty is related to emergency response or law enforcement, the employee is entitled to FLSA's protections. 29 C.F.R. § 541.3(b).

In FLSA cases, a court must first determine the employee's primary duty, and then determine whether that primary duty disqualifies the employee from FLSA's protections. See Foxworthy v. Hiland Dairy Co., 997 F.2d 670, 672 (10th Cir.1993) (“In determining whether an employee falls within an exemption to FLSA, the district court must first make findings as to certain factors, and then apply a legal standard.”). Time spent performing each duty is a “useful guide” in examining which duty is primary, but there is no requirement that an exempt executive employee spend more than half her time on managerial tasks. 29 C.F.R. § 541.700(b). The regulations also require consideration of “the relative importance of the exempt duties as compared with other types of duties; ... 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). Thus, for example, if an employee spends 40 percent of her time performing managerial work and 60 percent on non-managerial work, the employee's managerial work may still be considered her “primary duty” if she enjoys a significant degree of independence and is paid a substantial premium for her non-managerial work.

The first responder regulation does not alter the primary duty test. See Wage & Hour Division, Dep't of Labor, Opinion Letter Dated Oct. 4, 2005, 2005 WL 3308611 at *2–3. Thus, high-level employees who perform some...