Szabo v. Muncy Industries, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RIC SZABO, No. 4:21-CV-00468

Plaintiff, (Chief Judge Brann)

v.

MUNCY INDUSTRIES, LLC,

Defendant.

MEMORANDUM OPINION

MARCH 10, 2023

Plaintiff Ric Szabo sues his former employer, Muncy Industries, LLC

(hereinafter, “Muncy”), for violating federal and state labor laws by failing to pay

him overtime. Szabo, a salaried calibration technician, alleges that he should have

paid overtime.

Muncy disagrees, arguing that Szabo falls into a narrow category of

employees exempted from overtime pay requirements because their work

necessitates irregular hours. Accordingly, Muncy moves for summary judgment in

its favor. For his part, Szabo also moves for summary judgment, arguing that he is

not an executive or professional employee, two categories of workers exempted from

overtime requirements. For the following reasons, the Court denies Muncy’s motion

and grants Szabo’s motion.

I. BACKGROUND

A. Underlying Facts1

Jason Fetter, one of Muncy’s vice presidents, hired Szabo in December 2017.2

Szabo’s title was “calibration technician.”3 He would be Muncy’s first calibration

technician.4 Muncy hired him after expanding its operations into the calibration

space.5 He would calibrate load cells sent to Muncy’s plant and travel to customers’

places of business to calibrate load cells on site.6

When Szabo was hired, he was essentially Muncy’s entire calibration

department.7 Szabo was already certified to do calibrations by the National Institute

1 The following facts are undisputed unless noted otherwise. Szabo asks this Court to disregard

Muncy’s response to his Szabo Statement of Undisputed Material Facts (“SUMF”) for failure

to comply with the Court’s Local Rules. Local Rule 56.1 provides that “[t]he papers opposing

a motion for summary judgment shall include a separate, short and concise statement of the

material facts, responding to the numbered paragraphs set forth in the statement required in the

foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.”

Muncy’s opposition includes a document with separately numbered documents titled:

“Defendant’s Reply To Statement Of Undisputed Facts Under Local Rule 56.1.” Doc. 42-1.

However, the document in no way corresponds to Szabo’s statement of material facts. Nor

does it deny or admit any of Szabo’s asserted material facts. Accordingly, Szabo asks the Court

to deem all facts in its Statement of Undisputed Facts admitted. See Szabo Reply, Doc. 45 at

1-3; Szabo SUMF, Doc. 39. The Court will grant that request. Therefore, consistent with the

Local Rules and this Court’s prior practice, the Court will deem all facts in Szabo’s statement

of undisputed material facts admitted to the extent that they are supported by the record. See

Farmer v. Decker, 353 F. Supp. 3d 342, 347 n.1 (M.D. Pa. 2018) (Kane, J.) (disregarding non-

movant’s additional statement of facts for non-compliance with Local Rule 56.1); Barber v.

Subway, 131 F. Supp. 3d 321, 322 n.1 (M.D. Pa. 2015) (Conner, then-C.J.) (declining to

consider separate counterstatement of facts that was non-responsive to the movant's statement

because it was “neither contemplated nor permitted by the Local Rules”).

2 Dep. of Jason Fetter, Doc. 39-3 at 16:20-18:8.

3 Id. at 18:9-14.

4 See id. at 18:18-19:17.

5 See id. at 15:17-16:19.

6 Dep. of Megan Delahoussaye, Doc. 39-4 at 21:4-23.

of Standards and Technology.8 While working for Muncy, he created a certification

program.9 Through the program, he taught other Muncy employees, including Fetter,

how to calibrate load cells, ultimately certifying them to calibrate.10

As noted, Szabo’s work often required him to visit Muncy’s customers at their

places of business and service their machines.11 He estimates that he spent eighty

percent of his time on the road calibrating machines.12 But he was not responsible

for hiring, firing, or supervising other Muncy calibration technicians.13 He

considered himself and the other technicians to be on equal footing.14

Fetter offered Szabo a starting annual salary of $37,000, with a $2,000

increase for every set of thirty-four calibrations Szabo completed up to a maximum

of $50,0000, at which point Muncy would provide Szabo a bonus of $500 for every

additional set of twenty calibrations.15 Szabo also received additional miscellaneous

bonuses from time to time.16 Additionally, Muncy purchased Szabo’s car for him,

8 See Szabo Dep., Doc. 39-5 at 54:20-22; id. at 56:9-57:6. The NIST is a federal agency housed

in the United States Department of Commerce charged in part with developing and maintaining

national standards of measurement in industrial and commercial settings. See 15 U.S.C. § 272.

9 Szabo Dep., Doc. 39-5 at 22:24-23:17, 54:23-56:10.

10 Id.

11 See Fetter Dep., Doc. 39-3 at 15:17-16:19; Delahoussaye Dep., Doc. 39-4 at 14:15-24,

421:4-23.

12 Szabo Dep., Doc. 39-5 at 87:15-20.

13 Id. at 24:7-26:22.

14 Id. at 28:1-22.

15 Szabo Dep., Doc. 39-5 at 35:11-36:16; Szabo Offer Letter, Doc. 37-1.

paid some of his moving expenses, and provided him with a company phone and

credit card.17

Szabo understood his arrangement with Muncy to mean that he would

normally work Monday through Friday, 8:00 a.m. to 5:00 p.m., and occasionally on

weekends, but he would always be paid for forty hours of work per week, even if he

worked more.18 If needed, he would work through lunch or past 5:00 p.m.19 Megan

Delahoussaye, one of the employees charged with sending Szabo his assignments,

claimed that Szabo worked an alternating schedule.20 He would spend the first week

at Muncy’s Pennsylvania office and then spend the next week traveling to customer

sites.21 Szabo disputes that he worked a fixed alternating scheduled but

acknowledges that he spent time both in the field and at Muncy facilities.22 As stated

earlier, Szabo estimated that he spend “[eighty] percent” of his time “out on the road

and calibrating machines.”23

Delahoussaye and Kimberly Bunting, another Muncy employee, were

responsible for sending Szabo his itineraries, which Fetter helped prepare and

17 Id. at 39:9-44:18.

18 Szabo Dep., Doc. 39-5 at 7:4-8:4. Despite this arrangement, Szabo still clocked in and out of

work when he was at Muncy facilities. Id. at 31:19-32:14; Szabo Attendance Summary, Doc.

39-6.

19 Szabo Dep., Doc. 39-5 at 19:25-21:22.

20 Delahoussaye Dep., Doc. 39-4 at 31:3-10.

21 Id.

22 Szabo Dep., Doc. 39-5 at 63:7-18.

ultimately approved.24 But Szabo would be responsible for making his own travel

arrangements with his company credit card based on the plan Fetter approved.25

Bunting suggested that a majority of Szabo’s travel weeks involved travelling on

weekdays, but also indicated that if the schedule so required, Szabo would travel

outside of working hours.26

Delahoussaye would send Szabo emails that contained a schedule of his

assigned customer visits and travel estimates, as well as which cities he would spend

his nights in.27 She also suggested that Szabo could choose to travel during work

hours.28 Szabo claims that he sometimes travelled between jobs on weekends.29 At

his deposition, Szabo vaguely recalled instances when Fetter rejected his requests to

travel on weekdays but also later stated he never requested to travel during work

hours because he knew such requests would be futile.30 He also never requested

overtime pay.31

Fetter claims that travel arrangements were entirely up to Szabo.32 But for

substantial changes, Szabo would need to communicate with Bunting, who would

24 Delahoussaye Dep., Doc. 39-4 at 21:24-22:4; Dep. of Kimberly Bunting, Doc. 39-10 at 16:7-

18:22.

25 Id. at 18:23-19:5.

26 See id. at 19:6-21:7, 30:20-31:13.

27 See May 29, 2020 Email from Delahoussaye to Szabo, Doc. 39-9; Delahoussaye Dep., Doc.

39-4 at 24:16-25:6.

28 Delahoussaye Dep., Doc. 39-4 at 25:22-26:8.

29 See id. at 8:11-17.

30 Id.; id. at 18:25-19:24.

31 Id. at 22:7-17.

loop in Fetter if necessary.33 Fetter’s authorization would be necessary if, for

example, Szabo missed a flight or needed additional time to complete a calibration.34

Szabo left his employment with Muncy in July 2020, after working there for

two-and-one-half years.35

B. Procedural History

Szabo alleges that Muncy violated both the Federal Labor Standards Act

(“FLSA”), 29 U.S.C. § 201 et seq. (Count I), and the Pennsylvania Minimum Wage

Act of 1968, 43 P.S. § 333 et seq. (Count II), by failing to compensate him for his

overtime.36 He also claims that Muncy willfully violated the FLSA.37 He seeks

compensatory and punitive damages, as well as attorneys’ fees and costs.38

Muncy now moves for summary judgment on Szabo’s claims, claiming that

Szabo is exempt from overtime requirements because his work necessitates irregular

hours.39 Szabo moves for partial summary judgment, seeking a determination that

he is not exempt from overtime requirements because he is not an executive or

professional employee, which are two categories of exempt workers.40 Both motions

are ripe for disposition.

33 Bunting Dep., Doc. 39-10 at 21:2-22:9.

34 Id. at 24:22-25:18.

35 Muncy Ans. to Szabo Interrogatories, Doc. 39-2 at 3-4.

36 Compl., Doc. 1 ¶¶ 47-58.

37 Id. ¶ 52.

38 Id. at 8-9.

39 Muncy MSJ, Doc. 36.

II. LAW

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

where “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”41 Material facts are those “that

could alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence

exists from which a rational person could conclude that the position of the person

with the burden of proof on the disputed issue is correct.”42 A defendant “meets this

standard when there is an absence of evidence that rationally supports the plaintiff’s

case.”43 Conversely, to survive summary judgment, a plaintiff must “point to

admissible evidence that would be sufficient to show all elements of a prima facie

case under applicable substantive law.”44

The party requesting summary judgment bears the initial burden of supporting

its motion with evidence from the record.45 When the movant properly supports its

motion, the nonmoving party must then show the need for a trial by setting forth

“genuine factual issues that properly can be resolved only by a finder of fact because

they may reasonably be resolved in favor of either party.”46 The United States Court

of Appeals for the Third Circuit explains that the nonmoving party will not withstand

41 Fed. R. Civ. P. 56(a).

42 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern

Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

43 Clark, 9 F.3d at 326.

44 Id.

45 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

summary judgment if all it has are “assertions, conclusory allegations, or mere

suspicions.”47 Instead, it must “identify those facts of record which would contradict

the facts identified by the movant.”48 Indeed, “the party opposing a motion for

summary judgment “must do more than simply show that there is some metaphysical

doubt as to the material facts.’”49 “Rather, that party must point to specific factual

evidence showing that there is a genuine dispute on a material issue requiring

resolution at trial.”50

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”51 a court “must view the facts

and evidence presented on the motion in the light most favorable to the nonmoving

party.”52 Moreover, “[i]f a party fails to properly support an assertion of fact or fails

to properly address another party’s assertion of fact as required by Rule 56(c),” the

court may “consider the fact undisputed for purposes of the motion.”53 Finally,

although “the court need consider only the cited materials, . . . it may consider other

materials in the record.”54

47 Betts v. New Castle Youth Development Center, 621 F.3d 249, 252 (3d Cir. 2010).

48 Port Authority of N.Y. and N.J. v. Affiliated FM Insurance Co., 311 F.3d 226, 233 (3d Cir.

2002) (quoting Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988)).

49 Chavarriaga v. New Jersey Dept. of Corrections, 806 F.3d 210, 218 (3d Cir. 2015) (quoting

Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)).

50 Id.

51 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S.

442, 448 (1871)).

52 Razak v. Uber Technologies, Inc., 951 F.3d 137, 144 (3d Cir. 2020).

53 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d

Cir. 2018).

III. ANALYSIS

Through their respective motions, both parties essentially ask the Court to

determine whether Szabo is exempt from overtime by virtue of three exemptions.

Title 29 U.S.C. § 207 sets forth the FLSA’s overtime rules.55 Under section 207,

unless an exemption applies, an employer must pay any employee who works more

than forty hours during a week at an increased rate. Muncy’s motion asserts that

there is no factual dispute that an exemption for employment necessitating irregular

hours of work (the “Belo” exemption56) applies to Szabo.57 Szabo’s motion asserts

55 The Court’s analysis applies to both Szabo’s FLSA and PMWA claims as both laws are

essentially identical. See Baum v. Astrazeneca LP, 372 Fed. Appx. 246, 248 n.4 (3d Cir. 2010);

Paul v. UPMC Health System, 2009 WL 699943, at *8 (W.D. Pa. Mar. 10, 2009) (citing 29

U.S.C. § 213(a)(1); 43 P.S. § 333.105(a)(5)).

56 The exception is named for Walling v. A. H. Belo Corp., in which the Supreme Court judicially

inferred the exemption. 316 U.S. 624, 634-35 (1942). The exemption was later codified at 29

U.S.C. § 207(f). See Donovan v. Brown Equip. and Serv. Tools, Inc., 666 F.2d 148, 153, 153

n.2 (5th Cir. 1982); Mitchell v. Brandtjen & Kluge, Inc., 228 F.2d 291, 292-96 (1st Cir. 1955)

57 Muncy MSJ Br., Doc. 41 at 11-14. Muncy also appears to argue for application of the

fluctuating workweek (“FWW”) method of calculating for calculating overtime compensation

for salaried employees working fluctuating hours, quoting its description of the method at

length from the Supreme Court of Pennsylvania’s opinion in Chevalier v. General Nutrition

Centers, Inc., 220 A.3d 1038, 1040 (Pa. 2019). See Muncy MSJ Br., Doc. 41 at 11-14. Whether

Muncy intended to argue for the method or not, the Chevalier court squarely rejected the FWW

method for salaried employees who work fluctuating hours. See 220 A.3d at 299 (“[W]e affirm

the Superior Court’s decision rejecting the use of the FWW Method under the PMWA and the

Pennsylvania Regulations”). The Chevalier court noted that the FWW method was permissible

under federal law. Id. Curiously, Muncy does not seek to apply the FWW method to Szabo’s

FLSA claim, instead arguing that it did not violate the PMWA under a statute that does not

exist. See Muncy MSJ Br., Doc. 41 at 19 (“Both [Szabo’s] starting salary of $37,000.00 and

the ending salary of approximately $50,000.00 were payment in excess of the maximum work

week applicable under § 231.47 of the Pennsylvania Minimum Wage Act.”); 34 Pa. Code §§

241.41-241.43. Muncy also quotes section 231.43(d) at length in its opening brief, but fails to

explain in detail how that section applies to Szabo beyond vague and conclusory arguments.

See Muncy MSJ Br., Doc. 41 at 19-20. Muncy states without any support that the rate it and

Szabo agreed upon “is in excess of the maximum workweek applicable under § 231.41.” Id. at

20. But Muncy does not explain what that maximum is and does not provide the Court with

that there is no factual dispute that the executive employee and professional

employee exemptions do not apply to him.58 Courts narrowly construe the FLSA’s

exceptions and exemptions, and as the party invoking the exception, Muncy carries

the burden to prove that Szabo is exempt at trial.59 The Court first addresses Muncy’s

motion asserting that the Belo exception applies, followed by Szabo’s motion and

the executive and professional employee exemptions.

A. The Belo Exception Does Not Apply to Szabo’s Employment

Muncy seeks summary judgment on the grounds that Szabo falls into the

narrow Belo exception for employees whose work necessitates irregular hours. As

the employer, Muncy carries the burden of showing the exemption applies. And as

the movant on this issue, Muncy also carries the burden to establish the absence of

any disputed material facts regarding the exemption’s applicability. The Court takes

all reasonable inferences in favor of Szabo.

1. The Belo Exception

Title 29 U.S.C. § 207(f), in relevant part, excepts from overtime requirements

employees who are employed “pursuant to a bona fide individual contract” to

perform duties that “necessitate irregular hours of work.” The contract must provide

their opposition, but Muncy failed to reply. Therefore, the Court will not consider those

arguments.

58 Szabo MSJ Br., Doc. 40 at 3-14.

59 See Donovan, 666 F.2d at 153 (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960));

Pignataro v. Port Auth. of New York and New Jersey, 593 F.3d 265, 268 (3d Cir. 2010); Davis

for a regular rate of pay that is not less than the applicable minimum rate and

overtime rate that would apply if the employee was not exempted.60

For an employment relationship to qualify for the Belo exception, it must

satisfy four elements:

(1) “[t]he employment must be pursuant to a bona fide contract or

agreement”;

(2) “[t]he duties of the employees must necessitate workweeks which

fluctuate both above and below forty hours per week”;

(3) “[t]he contract or agreement must specify the regular rate of pay,

which is not less than the minimum wage, and compensation at not

less than time and one-half that regular rate for all hours worked

over the maximum workweek”; and

(4) “[t]he contract or agreement must also provide a weekly guaranty

of pay for not more than sixty hours per week.”61

The United States Department of Labor’s regulations further explain the

requirements for the Belo exception.62 The Court now turns to elements of the

exception, all of which Muncy must satisfy to invoke the exception.

2. There Are Genuine Issues of Material Fact as to Whether

Szabo’s Job Necessitated Irregular Hours

The second element in the Belo exception is by far the most important: the

employee’s job must necessitate “irregular” hours. “[W]hether the particular

60 29 U.S.C. § 207(f).

61 Donovan v. Richland Shoe Co., 623 F. Supp. 667, 669 (E.D. Pa. 1985), aff’d in part, vacated

on other grounds sub nom. by Brock v. Richland Shoe Co., 799 F.2d 80 (3d Cir. 1986), aff’d

sub nom. McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988).

employee’s duties do or do not necessitate irregular hours” is “always a question of

fact.”63

The Belo exception “is not designed to apply in a situation where the hours of

work vary from week to week at the discretion of the employer or the employee, nor

to a situation where the employee works an irregular number of hours according to

a predetermined schedule.”64 Instead, “[t]he nature of the employee’s duties must be

such that neither he nor his employer can either control or anticipate with any degree

of certainty the number of hours he must work from week to week.”65 The

employee’s “duties must necessitate significant variations in weekly hours of work

both below and above the statutory weekly limit on non-overtime hours.”66 That

means that the Belo exception does not apply to an employee who regularly works

forty hours a week but then works an irregular and varying number of overtime

hours.67

It is clear that Szabo’s duties sometimes required him to work more than forty

hours.68 Muncy disputes its obligation to compensate Szabo for time worked over

63 § 778.405.

64 § 778.405.

65 Id.

66 Id. The Department provides as examples employees such as “on-call servicemen,” “insurance

adjusters,” “newspaper reporters, and photographers.” Id.

67 Id.

68 Szabo filed a document listing his work history evidence by his clock-ins and clock-outs in

support of his motion. Doc. 39-6. Muncy referred to such a document in its answers to Szabo’s

interrogatories but did not file the same document in support of its motion, in which it seeks

the protection of the Belo exception. The document Szabo filed provides that Szabo worked

4,208.15 hours over 261 days, which is about 52 workweeks. However, the Court is unsure as

forty hours, not the fact that Szabo worked more than forty hours. Fetter described

being a calibration technician as “not a [forty]-hour week kind of job.”69 But nothing

in the record indicates that Muncy ever needed Szabo to work less than forty hours

in a week. The Belo exception requires an arrangement where an employee’s hourly

workload varies above and below the forty-hour mark.70

Additionally, there is insufficient evidence for the Court to conclude as a

matter of law that neither Szabo nor Muncy could control the hours worked. The

evidence before the Court shows that Szabo received detailed itineraries explaining

which customer sites he would visit and how long he had to travel.71 That shows that

Muncy had the ability to control Szabo’s schedule. The record does contain some

suggestion that jobs might take longer than initially anticipated, but not enough for

the Court to conclude that Muncy could not control Szabo’s schedule without any

degree of certainty.72

2019, 23.9 hours on December 31, 2019, and 1,656 hours on January 1, 2020. The full-day

workdays may be plausible, and the January 1 number may be an annual total for 2019. But

without additional information, the Court is left to divine the document’s import, which it will

refrain from doing.

69 Fetter Dep., Doc. 39-3 at 16:4-19.

70 29 C.F.R. § 778.405 (“Consequently, where the fluctuations in an employee’s hours of work

resulting from his duties involve only overtime hours worked in excess of the statutory

maximum hours, the hours are not “irregular” within the purport of section 7(f) and a payment

plan lacking this factor does not qualify for the exemption.” (citing Foremost Dairies, Inc. v.

Wirtz, 381 F.2d 653, 657 (5th Cir. 1967))).

71 See May 29, 2020 Email from Delahoussaye to Szabo, Doc. 39-9; Delahoussaye Dep., Doc.

39-4 at 24:16-25:6.

The case might be different if Szabo was an emergency calibration technician

who responded to issues as they arose.73 In such a situation, an employee would

likely experience significant variations in hours depending on whether emergencies

occurred and how many occurred.74 The facts in the record do not indicate such a

situation. Therefore, the Court cannot apply the Belo exception to Szabo’s

employment as a matter of law and accordingly denies Muncy’s motion.

B. Szabo Is Not an Executive Employee

Szabo’s motion for summary judgment first seeks a determination that he is

not exempt from overtime requirements by virtue of the executive employee

exemption. As the movant, Szabo carries the burden to establish the absence of any

disputed facts and Muncy is entitled to all reasonable inferences.

That said, as it did with the Belo exception, Muncy carries the burden of proof

to show the executive employee exemption applies.75 “At the summary judgment

stage, the absence of evidence on an issue redounds to the detriment of the party who

bears the burden of proof on that issue.”76 When the nonmoving party bears the

burden of persuasion at trial—as is the case here—“the moving party may meet its

burden on summary judgment by showing that the nonmoving party’s evidence is

73 See 29 C.F.R. § 778.405.

74 See id.

75 Pignataro, 593 F.3d at 268.

76 Perez v. Lorraine Enterprises, Inc., 769 F.3d 23, 30 (1st Cir. 2014) (citing McCarthy v. N.W.

insufficient to carry its burden of persuasion at trial.”77 In other words, “to defeat

summary judgment on this issue, [Muncy] had to do more than point to a dearth of

evidence.”78 It must “adduce definite, competent evidence showing that” the

exemption applies.79

Muncy first argues that the FLSA executive employee exemption applies to

Szabo. That exemption applies to an employee (1) who is compensated on a salary

basis at a rate of not less than $684 per week; (2) whose “primary duty is

management of the enterprise in which the employee is employed”; (3) who

customarily and regularly directs the work of two or more other employees”; and

(4) who “as the authority to hire or fire other employees or whose suggestions and

recommendations as to the hiring, firing, advancement, promotion or any other

change of status of other employees are given particular weight.”80 The parties

appear to agree that Szabo was paid in accordance with the first element based on

the lack of any arguments about Szabo’s rate of pay. But the test is conjunctive;

failure to satisfy any of the other elements of the exemption is fatal to the employer’s

claim to the defense.81 As the Court finds that there is no material dispute of fact as

77 Lawrence v. Natl. Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (citing Brewer

v. Quaker State Oil Refining Corp., 72 F.3d 326, 329 (3d Cir.1995)).

78 Perez, 769 F.3d at 30.

79 Id. (citing Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)).

80 29 C.F.R. § 541.100.

to the third element—whether Szabo regularly and customarily directed the work of

two or more employees—the Court will address only that element.

1. Regular and Customary Direction of Other Employee’s

Work

The third element of the executive employee exemption is that the employee

must “customarily and regularly direct the work of two or more other employees.”82

The Department of Labor’s regulations do not define what it means to “direct”

someone, so the Court uses the word’s plain meaning.83 “Direct” means “to control

or be in charge of an activity [or] organization.”84

The Department’s regulations do define “customarily and regularly.” That

phrase means a “frequency that must be greater than occasional but . . . less than

constant.”85 “Tasks or work performed ‘customarily and regularly’ include work

normally and recurrently performed every workweek; it does not include isolated or

one-time tasks.”86 Beyond that, “[c]ourts have declined to set bright-line rules

regarding what constitutes ‘customarily and regularly.’”87 Yet, they “have typically

82 § 541.100(a)(3).

83 See Lawrence v. City of Philadelphia, Pa., 527 F.3d 299, 317 (3d Cir. 2008).

84 DIRECT, Cambridge Dictionary (online ed., 2023). The Court is unable to find cases that

analyze whether an employee directed the work of others. That is likely because most of that

analysis is more germane to the primary-duty element of the executive employee exemption.

See § 541.102 (listing the activities that can show that an employee’s primary duty is

management)

85 § 541.701.

86 Id.

87 McKinney v. United Stor-All Centers LLC, 656 F. Supp. 2d 114, 131 (D.D.C. 2009) (citing

construed the regulation to require an individual to supervise two or more full-time

employees at least seventy-five to eighty percent of the time.”88

Lastly, the third element requires that the executive employee regularly and

customarily direct “two or more employees,” which “means two full-time employees

or their equivalent.”89 Directing four half-time employees or one full-time and two

half-time employees would satisfy that regulation. But “[h]ours worked by an

employee cannot be credited more than once for different executives.”90 “Thus, a

shared responsibility for the supervision of the same two employees in the same

department does not satisfy this requirement.”91

Therefore, the Court discerns three components within the regular-and-

customary-direction element. The first is a qualitative component. An executive

employee’s duties must include “directing” others, which means having some

independent authority to control subordinate employees. Second is a quantitative

component with respect to the employee’s direction of others. The executive

employee’s direction must be regular and customary, as the Department of Labor

88 Id. (citing Morgan, 551 F.3d at 1275 (holding that the trial court did not err in requiring an

eighty percent threshold for the “customarily and regularly” requirement)); accord Perez v.

Radioshack Corp., 552 F. Supp. 2d 731, 741-42 (N.D. Ill. 2005); see Sec’y of Labor v. Daylight

Dairy Products, Inc., 779 F.2d 784, 788 (1st Cir. 1985) (seventy-six percent does not meet

threshold); Murray v. Stuckey’s, Inc., 50 F.3d 564, 568 (8th Cir. 1995) (rejecting the

seventy-six percent threshold in Daylight Dairy and concluding 98.2% satisfies the standard

“by any definition”); Jackson v. Go–Tane Servs., Inc., 56 F. App’x 267, 272 n. 8 (7th Cir.

2003) (sixty-seven percent insufficient).

89 § 541.104(a).

90 § 541.103(d).

defines those terms. The third element is also quantitative, but concerns the number

of employees that the executive employee directs. He or she must have exclusive

supervisory authority over at least two full-time employees or their equivalent in

part-time employees.

2. Szabo Did Not Regularly and Customarily Direct Two or

More Employees

The Court first discusses what Szabo’s job duties were to determine whether

any of them constitute regular and customary direction of two or more employees.

Then the Court will apply the regular-and-customary-direction element to those

tasks by proceeding through three components: (1) whether Szabo’s actions

constituted directing others’ work, (2) whether Szabo’s direction of others was

regular and customary, and (3) whether Szabo regularly and customarily directed the

work of two or more full-time employees or their equivalents.

a. Szabo’s Duties at Muncy

Responding to Szabo’s interrogatories, Muncy states that Szabo had the

following duties:

 Create and lead the calibration program’s technical aspects.

 Write Work Instruction of calibration procedures, even more specific

than the manufacturer’s procedures.

 Calibrate customers’ loadcells, transducers, dynamometers and

measuring devices.

 Support other calibration technicians.

 Help [m]aintain calibration equipment.

 Help source equipment and supplies for calibration equipment.

 Other duties when at the shop to help the shop’s operations.92

Despite the interrogatory requesting that Muncy identify Szabo’s duties and

responsibilities “in full and complete detail,” Fetter—who apparently assisted in

responding to Szabo’s interrogatories—stated at his deposition that there’s “a lot

missing” from the above list and that Szabo did “a lot of other things.”93 He then

added that Szabo trained the new calibration technicians and created and led the

calibration program’s technical aspects and had some involvement in sales.94

When Muncy began its calibration subdivision, Szabo was its only employee.

Accordingly, at that point, he could not have directed any other employee because

there were no additional employees in the calibration subdivision for him to direct.

It therefore appears that the only opportunities Szabo had to possibly direct another

employee’s work were when he trained them and when he travelled to customers’

places of business with them to calibrate customer machines. Therefore, the Court

must determine whether Szabo’s training of other employees constitutes regular and

customary direction and/or whether Szabo regularly and customarily directed other

technicians’ work when he went on jobs with them.

92 Muncy Ans. to Szabo Interrogatories, Doc. 39-2 at 1-2

93 Fetter Dep., Doc. 39-3 at 23:5-23.

b. Szabo Trained Other Employees, But He Did Not

Direct Their Work

The Court begins by assessing whether Szabo “directed” other employees

when he trained them or on work trips with other employees. Courts typically find

that an employee directed other employees when they are responsible for directly

managerial tasks, such as giving out assignments to other employees, monitoring

their work, training them, approving hours and timesheets, excusing absences, and

approving or rejecting vacation requests.95

95 See, e.g., Goff v. Bayada Nurses, Inc., 424 F. Supp. 2d 816, 822 (E.D. Pa. 2006) (concluding

that the plaintiff regularly and customarily directed others’ work as she was responsible for

“assisting in recruitment and retention of nursing staff, supervising and evaluating the staff,

and making performance evaluations,” ensuring compliance with human resources and service

delivery policies, scheduling employees, and assisting in hiring decisions); Giallanzo v. City

of New York, ___ F. Supp. 3d ___, 2022 WL 4386591, at *12 (S.D.N.Y. Sept. 22, 2022)

(concluding that the plaintiff directed other employees because he was responsible “for

assigning, inspecting, and supervising crews a duty which necessarily entailed directing several

employees to take specific actions” and “approved timesheets, monitored the work of

subordinates, approved vacation requests, and determined whether a subordinate’s absence

was excused or not”); Martinez v. Hilton Hotels Corp., 930 F. Supp. 2d 508, 527 (S.D.N.Y.

2013) (concluding that a reasonable jury could find that the plaintiffs had “little meaningful

supervisory authority” over other employees based on their lack of discretion “in determining

how or when work was to be performed, and little opportunity, as a practical matter, to improve

the performance or productivity of the cleaning staff, given their limited disciplinary authority

over such employees”); Bradley v. S.C. Boys, Inc., 2022 WL 3021140, at *10 (M.D. Pa. July

29, 2022) (concluding that plaintiff directed multiple employee’s work when he “designate[d]

work” to others and prepared other employees’ schedules); Farnsworth v. Terra-Petro Dev.,

Inc., 2007 WL 4613036, at *3 (S.D.W. Va. Dec. 31, 2007), vacated on other grounds (Feb.

29, 2008) (concluding that employee directed the work of other employees because she “was

responsible for scheduling employee shifts, assuring the keeping and accuracy of time records,

assuring compliance by employees of company policies and procedures and conducting period

employee evaluations”); Gilchrist v. Schlumberger Tech. Corp., 575 F. Supp. 3d 761, 767

(W.D. Tex. 2021) (concluding, after trial, that “occasional direction” was insufficient to show

the plaintiff directed the work of others); Williamson v. BOPCO, L.P., 2017 WL 5071336, at

*5 (W.D. Tex. Sept. 27, 2017) (concluding that the plaintiff directed other employees by

training them, handling personnel issues, gave them assignments, directing them to stay late);

Rock v. Sunbelt Cranes, Constr. & Hauling, Inc., 678 F. Supp. 2d 1264, 1269 (M.D. Fla. 2009)

(concluding that an employee regularly directed others’ work where he was responsible for

It is undisputed that Szabo could not hire and fire employees, delegate tasks

to them, or discipline them.96 When asked whether Szabo “supervise[d] any other

Muncy employees” or “direct[ed] their work, such as giving them assignments or

saying where they would be traveling,” Delahoussaye responded in the negative.97

Bunting stated she could not recall whether Szabo “supervise[d] any other Muncy

employees and direct[ed] their work” but later agreed that Szabo was “teaching and

supervising” employees when “actively doing a calibration.”98 These statements

certainly establish the fact that Szabo trained other employees, but whether that

training translates to regular and customary direction of other employees’ work is a

question of law that the Court must determine.

The Court finds the following testimony from Szabo’s deposition instructive:

Q: When you would have Shandi Crappell or William Croy with you,

would you supervise them while they were on the customer site?

A: No, sir. I was not given any authority to supervise.

Q: Did you help them perform the calibrations when you were there

with them?

A: Yeah, I would, it was a team effort for sure.

hiring and disciplining employees); Slusser v. Vantage Builders, Inc., 576 F. Supp. 2d 1207,

1221 (D.N.M. 2008) (concluding that employee directed the work of others where she

“assigned work to these employees, directed the work of the employees, apportioned work

among the employees, set deadlines for the employees, answered questions of the employees,

disciplined the employees, supervised the employees’ arrival and departure times, evaluated

the employees’ job performance, made recommendations concerning salary increases, and

created procedures for the employees”).

96 Fetter Dep., Doc. 39-3 at 35:19-38:1; see Szabo Dep., Doc. 39-5 at 26:11-27:19; see also Szabo

SUMF, Doc. 39 ¶¶ 16, 21.

97 Delahoussaye Dep., Doc. 39-4 at 27:12-15.

Q: And if they were doing something wrong, would you tell them how

to fix that so they weren’t doing it incorrectly?

A: Yeah, that’s, I mean that goes with training someone, yes, sir, you

want to make sure they do the job and learn it correctly.

Q: Were there times with either Ms. Crappell or Mr. Croy where they

would ask for your assistance with a calibration technique or

something they were doing to perform the work?

A: Yes. Sure. There were always questions about doing things.

Q: Okay. And when they, those questions, they were directed to you?

A: Well, yes, sir, I was the only one there.

Q: And did you then help them perform the—

A: Well, yes, sir.

Q: Okay. So and it’s correct to say that when people, William Croy

and Shandi Crappell would a job assignment with you, you were

trying to make sure they were doing the work correctly; is that

right?

A: Well, yes, sir, you don’t want to teach them to do it wrong.

Q: So in essence, I mean isn’t that what supervision is, is everything

you just described: answering questions, giving them directions,

helping them do the job correctly, wouldn’t you agree that’s what

supervision is?

A: No, sir. I was a trainer. I was not supervisor. Let’s be clear.

Q: And, well, help me understand the difference in your perspective

between what you did and what supervision is?

A: Okay. Well, for example, my brother-in-law works for the

government, he is a trainer. He’s clearly someone that trains people

to do a certain job, but he’s not a supervisor. He doesn’t have any

supervisory capabilities hiring people, firing people, do this, do

that, do what I say or, you know, that’s what a supervisor is. But to

train someone, you’re just training someone. You’re teaching them

how to do a job and that’s all I did was teach people how to do a

job.

Q: Okay. So, again, let’s try to make sure I understand, it sounds to me

like your definition . . . of someone who supervises means that they

have to have the ability to hire or fire that employee; is that correct?

A: Let’s not twist that around. I’m not saying that. I’m just saying that

I didn’t have any delegation authorities. I was just there to make

sure someone did the job correctly, to understand the process and

how Muncy does things. I was not any type of supervisor.

Q: Okay. Well, let’s talk about an individual site where you would

have gone with somebody like William Croy, right, so you arrive

at the customer’s location. Who was the person who decides who

is going to do what part of the job that day when you would arrive?

A: I don’t know. we just did it. We just tackled it and did things, I

mean it wasn’t—

Q: Okay. well, was it you that told Mr. Croy, I’m going to go do this—

A: I didn’t delegate.

Q: —and you’re going to go do that?

A: No, I didn’t delegate. No, I didn’t do that.

Q: How did you decide with Mr. Croy and Ms. Crappell who was

going to do what part of the job?

A: We just would open up the stuff and just start tackling. Sometimes

they would say, okay, I’ll do this or do that and you do this and do

that, okay, that’s fine. You know, however you all want to do it,

let’s do it, you know.99

It appears that the extent of Szabo’s training responsibilities was showing

other Muncy employees how to calibrate, ensure the work was done correctly, and

answer questions if there were any. But he had no authority to delegate them tasks,

much less control their work. Once Szabo finished training other technicians, he and

the other technicians were essentially on equal footing.100 Even assuming he directed

Croy or Crappell’s work while training them, he did not direct their work after their

training was complete.101

The many decisions cited above bear out the conclusion that training other

employees without having any other managerial authority over them is not directing

the work of others. No case cited in this opinion involved an executive employee

who only instructed other employees. Every single employee in those cases had

some additional power that was consistent with directing others’ work.

A useful comparison is Bellone v. Kraft Power Corporation, in which the

Eastern District of New York considered whether an employee “in the business of

designing and manufacturing engine-generator systems” who was hired as the

defendant’s “technical manager” was exempted from the FLSA.102 The court

100 See Szabo Dep., Doc. 39-5 at 22:24-28:4 (“Q: So were you training [Croy and Crappell] the

entire time that they worked with you? A: No, once they learned the job, we would just be

teammates at that point.”), 54:23-56:10.

101 See id. at 28:5-14 (“Q: Okay. So after they were trained, didn’t you have the authority to

supervise them on the job site at that point to tell them what they could do and you would do

something different, correct? A: Oh, absolutely not. I did not have the authority to say you do

this or I’ll do that or whatever. we were just equals at that point. I was not a team leader or a—

you know, once they were calibration technicians, they were just a technician like me.”). Cf.

Selwood v. Ocean Divers, Inc., at *3 (S.D. Fla. Sept. 29, 2006), report and recommendation

adopted, 2006 WL 8433889 (S.D. Fla. Oct. 4, 2006) (finding a genuine issue of material fact

where the plaintiff’s subordinates testified that the plaintiff supervised them).

concluded that he directed others’ work because he trained other employees, drafted

documents detailing tasks for them, and received progress reports from them.103

Unlike the employee in Bellone, Szabo had no authority over other Muncy

employees. Aside from instructing them on calibration, he did not delegate them

tasks or assess their progress. Those additional responsibilities beyond just training

show that the employee in Bellone directed other employees, and evidence some

form of hierarchy between him and other employees whose work he directed. Here,

the undisputed facts presented here show that all Szabo did was instruct employees

for a limited period of time, after which the employees became his peers. The Court

therefore concludes that Szabo’s training is not direction under section

541.100(a)(3). Nor did he meaningfully supervise other technicians when calibrating

with them. No reasonable factfinder would find them to be directing others’ work.

c. Szabo’s Training Was Not Customary and Regular

Even assuming that Szabo’s training of other employees is tantamount to

directing their work, the record indicates that his training was not a customary and

regular activity. As discussed above, courts generally agree that an employee

regularly and customarily directs others’ work when he or she does so upwards of

seventy-five percent of the time.104

103 Id. at *4-5.

It is unclear how much time Szabo devoted to training employees. He

estimates—and the Court accepts as true—that he was out on the road visiting

customers or traveling eighty percent of his time spent working.105 However, it

appears that Szabo at least occasionally trained other employees while doing on-site

calibrations as customer locations.106 Fetter estimates that Szabo trained five or six

employees throughout his two-and-one-half years with Muncy.107 Szabo does not

appear to dispute that he trained five or six employees, but he only recalls two of

them becoming technicians for Muncy.108 He recalls a few assignments with one

technician he trained and one assignment with the other.109 Muncy does not dispute

those facts. It is unclear whether any of these assignments involved training, but

even if they all did, a reasonable factfinder could not find these isolated instances to

take up seventy-five percent of the time Szabo spent working over a two-and-one-

half-year period.

Although the record is not completely clear, Szabo’s training responsibilities

seem intermittent rather than regular or customary. But Muncy fails to identify any

facts regarding how much time Szabo spent training employees—the main in which

Szabo could have directed others’ work.110 Although Szabo carries the burden on his

105 Szabo Dep., Doc. 39-5 at 87:15-16; Szabo SUMF, Doc. 39 ¶ 7.

106 See Szabo Dep., Doc. 39-5 at 22:24-24:21.

107 Fetter Dep., Doc. 39-3 at 24:16-25:12.

108 Szabo Dep., Doc. 39-5 at 22:24-24:6.

109 Id.

110 Cf. Howe v. Gov’t Leasing Co., 2017 U.S. Dist. LEXIS 216565, at *18 (D. Colo. Sep. 26,

motion, Muncy must at least identify some evidence on which it could meet its

burden to show the executive employee exemption applies to Szabo.111 And it has

failed to do so. There are no facts from which the Court could even infer that Szabo

spent anywhere near seventy-five percent of his time working on training others.

Therefore, the Court concludes that there is no dispute that Szabo did not regularly

and customarily direct others’ work.

d. Szabo Did Not Direct the Work of Two or More

Employees

Additionally, the Court concludes that even if Szabo’s activities could be

considered regular and customary, Muncy has not identified a single instance in

which Szabo trained or supervised more than one employee. Although the record is

not completely clear on that point, it appears that, at most, Szabo was accompanied

by one other technician on trips.112 That is insufficient to satisfy section

541.100(a)(3)’s test.113

Additionally, Szabo and the other technicians received their assignments from

Delahoussaye, who was in a position of authority over Szabo and the other

evidence detailing the amount of time Plaintiff spent supervising other employees as compared

to time spent on other activities”).

111 See Perez, 769 F.3d at 30; Lawrence, 98 F.3d at 65.

112 See May 29, 2020 Email from Delahoussaye to Szabo and Shandi Crappell, Doc. 39-9

(informing Szabo and another technician of their work schedule).

113 McPherson v. LEAM Drilling Sys., LLC, 2015 WL 1470554, at *8-9 (S.D. Tex. Mar. 30, 2015)

(concluding that where employees consistently performed tasks in two-man teams, the senior

technicians.114 Fetter also had supervisory authority.115 Therefore, even if the Court

were to find a triable issue of fact on Szabo’s regular and customary direction, he

shared that responsibility with Delahoussaye and Fetter, which further indicates that

he did not regularly and customarily direct the work of two or more employees.116

Therefore, the Court concludes that no reasonable jury could find that Szabo

regularly and customarily directed the work of other employees. At best, Muncy has

convinced the Court that the undisputed facts show that Szabo was an instructor, not

a supervisor. Without facts establishing some form of regular and customary

authority over two employees, the Court concludes that summary judgment in

Szabo’s favor is appropriate.

C. The Professional Employee Exemption

Muncy next seeks to characterize Szabo as an employee working in a

“professional capacity,” which would exempt him from the FLSA’s overtime

requirements.117 Szabo disputes Muncy’s characterization, arguing that his work

does not meet the Department’s regulatory test for the professional exemption.118

114 Szabo SUMF, Doc. 39 ¶¶ 17-20 (citing Delahoussaye Dep., Doc. 39-4 at 22:3-4; July 7, 2020

Email from Delahoussaye to Szabo, Doc. 39-8; May 29, 2020 Email from Delahoussaye to

Szabo and Shandi Crappell, Doc. 39-9).

115 Szabo SUMF, Doc. 39 ¶¶ 22-24.

116 See § 541.104(d) (“[A] shared responsibility for the supervision of the same two employees in

the same department does not satisfy this requirement.”).

117 Muncy Opp. Br. to Partial MSJ, Doc. 42 at 17-18; 29 U.S.C. § 213(a)(1).

As was the case with the executive exemption, although Szabo carries the

burden on his motion, Muncy is responsible for putting forward “definite, competent

evidence showing that” the exemption applies and cannot survive summary

judgment by just “point[ing] to a dearth of evidence.”119

The parties agree that the exemption is governed by 29 U.S.C. § 213(a) and

29 C.F.R. § 541.300 and § 541.301. Under section 541.300(a), a professional

employee under section 213(a) is one who is: (1) compensated on a salary basis at a

rate not less than $684 a week; and (2) “[w]hose primary duty is the performance of

work” that either requires “knowledge of advanced type in a field of science or

learning customarily acquired by a prolonged course of specialized intellectual

instruction” or requires “invention, imagination, originality or talent in a recognized

field of artistic or creative endeavor.” Again, the parties do not appear to dispute the

salary factor, and there is no indication that Muncy intends to argue that Szabo’s

work requires artistic or creative ability. As with the executive exemption, the test

for the learned professional exemption is also conjunctive.120

1. Prolonged Courses of Intellectual Instruction

Under section 541.301(a), to qualify for the professional exemption, an

employees’ “primary duty” must be the performance of work that requires

“advanced knowledge . . . in a field of science or learning,” which “must be

119 Perez, 769 F.3d at 30; see Lawrence, 98 F.3d at 65.

customarily acquired by a prolonged course of specialized course of specialized

instruction.” “The phrase ‘customarily acquired by a prolonged course of specialized

intellectual instruction’ restricts the exemption to professions where specialized

academic training is a standard prerequisite for entrance into the profession.”121 “The

best prima facie evidence that an employee meets this requirement is possession of

the appropriate academic degree.”122 “However, the word ‘customarily’ means that

the exemption is also available to employees in such professions who have

substantially the same knowledge level and perform substantially the same work as

the degreed employees, but who attained the advanced knowledge through a

combination of work experience and intellectual instruction.”123

Therefore, for an employee to be an exempt learned professional, “some type

of academic degree is required, as opposed to skill acquired through experience.”124

In Pignataro v. Port Authority of New York and New Jersey, our Court of Appeals

explained that academic means “[o]f, relating to, or characteristic of a school [or]

[p]ertaining to liberal or classical rather than technical or vocational education.”125

121 § 541.301(d).

122 Id.

123 Id.

124 Pignataro, 593 F.3d at 269 (emphasis in original).

125 Id. at 269 n.5 (citing WEBSTER’S II NEW RIVERSIDE DICTIONARY 69 (1988)). The Pignataro

court defined intellectual as relating to “the capacity for understanding and knowledge [or]

[t]he ability to think abstractly or profoundly.” Id. at 270 n.8 (quoting Webster’s II New

Other Courts of Appeals have reached similar conclusions that some level of

academic degree is required.126

The Pignataro court concluded that a helicopter pilot’s flight license and

related certifications were not academic degrees in the meaning of the regulation.

The court noted that the pilots received their instruction in the air rather than in a

classroom, and thus were not engaged in intellectual instruction and study, despite

the fact that they had “specialized knowledge” and “unique skills.”127 It was of no

moment that the pilots had to complete post-high school training to work for the

defendant-employer.128 The court ultimately agreed with the district court that the

pilots were “merely highly trained technicians.”129

126 See, e.g., Reich v. Wyoming, 993 F.2d 739, 741 (10th Cir. 1993) (educational prong satisfied

where game wardens “required to have a baccalaureate degree in wildlife management,

wildlife biology, or a closely related field”); Rutlin v. Prime Succession, Inc., 220 F.3d 737,

742 (6th Cir. 2000) (two years of college including related scientific training, year of mortuary

science school, and passage of state examination deemed sufficient); Owsley v. San Antonio

Indep. Sch. Dist., 187 F.3d 521, 524 (5th Cir. 1999) (bachelor's degree in any field, five

three-hour credit courses specifically directed towards athletic training, 1800 hours of

apprenticeship training, and C.P.R. test deemed sufficient); Vela v. City of Houston, 276 F.3d

659, 675 (5th Cir. 2001) (concluding that the lack of educational requirement combined with

over one thousand hours of combined field work and didactic training was insufficient for the

exemption); Fife v. Harmon, 171 F.3d 1173, 1177 (8th Cir. 1999) ( “combination of experience

and education” from “general academic education and from an apprenticeship” insufficient to

satisfy education prong).

127 Pignataro, 593 F.3d at 270.

128 See id.

2. Szabo Did Not Undergo a Prolong Course of Intellectual

Instruction

Here, it is undisputed that Szabo does not have any type of academic degree

and that being a calibration technician does not require an academic degree.130

Szabo’s resume, which was attached to his job application, indicates that he has

knowledge in several technical areas.131 His application shows that he attended high

school, completed a six-month program in information technology, and spent some

years serving in the United States Air Force, where he maintained fighter jets.132

Fetter explained that he believed Szabo spent a significant amount of time in the

classroom through “his training in the military, his training on engines and learning

about engines in a training setting in the military.”133

But based on Szabo’s resume and job application, the Court concludes that

any training he received was either vocational or on-the-job. It is clear that Szabo is

highly trained, but without a degree; he is not highly trained in an academic or

intellectual sense. The fact that Muncy does not require a degree is further evidence

that Szabo did not undergo a prolonged course of academic instruction. Although

job titles are of little evidentiary value in this context,134 the Court notes that Szabo’s

job title is technician, he professes to be a technician, and Muncy does not dispute

130 Szabo SUMF, Doc. 39 ¶¶ 25 (citing Szabo Job Application, Doc. 39-12), 26 (citing

Delahoussaye Dep., Doc. 39-4 at 30:7-17).

131 See Szabo Job Application, Doc. 39-12.

132 See id.

133 Fetter Dep., Doc. 39-3 at 47:20-48:12.

that he is a technician. As Pignataro indicates, technicians are generally not learned

professionals.135 Therefore, there is no dispute of material fact that said training is

not a prolonged course of intellectual instruction. Summary judgment on the learned

professional exemption is accordingly appropriate.

IV. CONCLUSION

As evident throughout this opinion, the FLSA’s overtime requirements

require an incredibly detailed assessment of the facts. And as the cases cited in this

opinion indicate, that detailed assessment often prevents summary judgment. That

is the case with Muncy’s motion. But not so with Szabo’s. Despite the limited record,

there is no dispute of fact that training someone without having any authority over

them is not directing their work and there is no dispute of fact that a technician

without a degree did not undertake a prolonged course of academic instruction.

Therefore, summary judgment in Szabo’s favor is appropriate.

Accordingly, the Court denies Muncy’s motion for summary judgment and

grants Szabo’s partial motion for summary judgment.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge