Gerard Morrison v. County of Fairfax, VA

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2308

GERARD MORRISON; CHRISTOPHER THOMPSON; ELTON POLEN, JR.; CALVIN

ALEXANDER; MICHAEL ALLEN; ROCCO ALVARO; THOMAS ARNOLD; WILLIAM

ATWELL; ROBERT BANASIK; TIMOTHY BARB; TODD BARB; MATHEW ARNHART;

MERVIN BARRERA; OSCAR BEASLEY; WILLIAM BEST, JR.; BILL BETZ;

DANIEL BORDEN, JR.; EDWARD BOWMAN; FRED BRANDELL; DONALD

BRASFIELD; CHRISTOPHER BROWN; JON BRULEY; CLYDE BUCHANAN;

CARLTON BURKHAMMER; ROBERT BURLINGAME; MATTHEW BURNS; LEO BURT;

LEROY BUTLER, JR.; KEITH CERZULLO; JOHN CHESEK, JR.; MICHAEL

CIARROCCHI; STEVEN CLARK; BRADFORD COCHRANE, JR.; THOMAS

CONNOLLY; DAVID CONRAD; ARTHUR COX; DUSTIN CRAMER; TRACY

CRAWFORD; KEITH CROSS; ERIC CUNNINGHAM; CHARLES CUNNINGHAM;

DANNY DANIELS, II; MICHAEL DAVIS; TROY DEAN; YOLANDA DEMARK;

SAMUEL DEVERA; KEITH DUBETSKY; BRIAN EDMONSTON; KEVIN EDWARDS;

DEREK EDWARDS; FELECIA EDWARDS; SEAN EVANS; MARK FEASTER;

MICHAEL FISCHER; COLIN FLANIGAN; THOMAS FLINT; MICHAEL FONTANA;

RAMIRO GALVEZ; MICHAEL GARCIA; KENNETH GEFFEN; JARED GOFF;

GEORGE GONZALEZ; TODD GORHAM; SAMUEL GRAY; RAYMOND GRIFFIN;

WESLEY GRIGG; DAVID GRUENDEL; MARK GUDITUS; DAVID HALL; JAMES

HARRISON, III; SHERYL HEMINGWAY; CHARLES HENDERSON; KIT HESSEL;

JOHN HIGGINBOTHAM; JAMES HOBGOOD; KIMBERLY HOOD; TRENTON

HOUGHTON; GREGORY HUNTER; JAMES IACONE; MICHAEL ISTVAN; JAMES

ISTVAN; ANTHONY JACKSON; JAMES JOHNSON; REGINALD JOHNSON; THOMAS

JOHNSON; WALTER JOHNSON; JOSEPH KALEDA; GLENN KAPLAN; PATRICK

KELLY; REBECCA KELLY; WILLIAM KINGDON; JOSPEH KISER; ROBERT

KITCHEN; JOSEPH KNERR; ROBERT KONCZAL; TONY KOSTECKA; RONALD

KULEY; DAVID LANGE; JAMES LEE; JOHN LEETE; JEFFREY LEWIS; ROBERT

LISON; MATTHEW LOPEZ; WILLIAM LYNCH; BARRY MAHAM; MICHAEL MARKS;

CHARLES MARTIN; JAMES MASIELLO; PAUL MASIELLO; GLENN MASON;

COREY MATTHEWS; THOMAS MAYHEW; STEVEN MCFARLAND; ROGER MCGEHEE;

RICHARD MCKINNEY, JR.; KERWIN MCNAMARA; FRANCIS MENSAH; MARK

MENTON; JOSEPH MERRITT, JR.; STEPHEN MILLER; ROBERT MOHLER;

JEFFREY MONGOLD; DONALD MONTAGUE; BRIAN MORAVITZ; JOHN MORRIS;

RICHARD MOXLEY; JOHN NIEMIEC; BRYAN NIX, JR.; STEVEN NORRIS;

STEPHEN O'BRIEN; MILTON PAINTER; JOSPEH PALAU, III; DENNIS

PASSMORE; GARY PEMBERTON; JOHN PETERS; DALLAS PHILLIPS; RALPH

PISANI; CHARLES PULLEN; E. MARTIN RANCK, III; BARRY RATHBONE;

JOHN RICHTER; NATALIE ROBB; RONNIE RODRIGUEZ; MATTHEW RYAN;

WILLIAM SCHELLHAMMER, III; MARK SCHROEDER; DAVID SCHWARZMANN;

MICHAEL SEASE, II; DAVID SELLERS; DANIEL SHAW; RICHARD SMITH;

SCOTT SMITH; MICHAEL SNAPP; JAMES A. SOBOTA; JAMES STICKLEN; REX

STRICKLAND; CHERI STROUP; RONALD SYDNOR; KENDALL THOMPSON;

LORENZO THROWER; CHRISTOPHER TILLES; DAVID TOBIN; JEFFREY TOLLE;

GLENN TSCHANN; WILLIAM VANNOY; DONALD VAUGHT; JACK WALMER, JR.;

JOHN WALSER; THOMAS WEALAND; OSCAR WELLS; WAYNE WENTZEL; MICHAEL

WHETSELL; PAUL WHITE; KENNETH WILDMAN; JEROME WILLIAMS; MARCUS

WILLIAMS; ELTON WRIGHT; RICHARD LANCING,

Plaintiffs – Appellants,

and

GARY DIZE,

Plaintiff,

v.

COUNTY OF FAIRFAX, VA,

Defendant – Appellee.

-------------------------

UNITED STATES DEPARTMENT OF LABOR,

Amicus Curiae.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Claude M. Hilton, Senior

District Judge. (1:14-cv-00005-CMH-JFA)

Argued: January 27, 2016 Decided: June 21, 2016

Before TRAXLER, Chief Judge, and THACKER and HARRIS, Circuit

Judges.

Reversed and remanded by published opinion. Judge Harris wrote

the opinion, in which Chief Judge Traxler and Judge Thacker

joined.

2

ARGUED: Molly A. Elkin, WOODLEY & MCGILLIVARY, LLP, Washington,

D.C., for Appellants. Sona Rewari, HUNTON & WILLIAMS LLP,

McLean, Virginia, for Appellee. Sarah Kay Marcus, UNITED STATES

DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae. ON

BRIEF: Evangeline C. Paschal, HUNTON & WILLIAMS LLP,

Washington, D.C., for Appellee. M. Patricia Smith, Solicitor of

Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden,

Counsel for Appellate Litigation, Office of the Solicitor,

UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus

Curiae.

3

PAMELA HARRIS, Circuit Judge:

Under the Fair Labor Standards Act (“FLSA”), employees who

work overtime generally are entitled to overtime pay. There is

an exception — like all FLSA exceptions, narrowly construed —

for certain “executive” and “administrative” employees whose

primary job duties are management-related. The question in this

case is whether the fire captains of Fairfax County, Virginia,

firefighters who serve as first responders to fires and other

emergencies, fall within that exception so that they are not

entitled to overtime compensation.

The district court held that all of the current and former

Fairfax County fire captains bringing this suit are exempt

executives, and entered summary judgment for Fairfax County. On

appeal, the County takes a different approach, arguing that some

of the Captains are exempt executives while others are exempt

administrators. We conclude that on this record, no reasonable

jury could find by the requisite clear and convincing evidence

that any of the Captains is exempt from the FLSA’s overtime

requirement. Accordingly, we reverse the district court’s

judgment and remand with instructions to enter summary judgment

for the Captains.

4

I.

A.

We begin by setting out the statutory and regulatory scheme

that governs this case. The Fair Labor Standards Act of 1938,

29 U.S.C. §§ 201–219, is “remedial and humanitarian in purpose”

reflecting an intent by Congress to protect broadly the “rights

of those who toil.” Tennessee Coal, Iron & R.R. v. Muscoda

Local No. 123, 321 U.S. 590, 597 (1944); Purdham v. Fairfax Cty.

Sch. Bd., 637 F.3d 421, 427 (4th Cir. 2011). Consistent with

that purpose, courts are to construe the FLSA liberally,

“recognizing that broad coverage is essential” to accomplish the

statute’s goals. Tony & Susan Alamo Found. v. Sec’y of Labor,

471 U.S. 290, 296 (1985); see Purdham, 637 F.3d at 427 (“[T]he

Supreme Court has cautioned that the FLSA ‘must not be

interpreted or applied in a narrow, grudging manner.’” (quoting

Tennessee Coal, 321 U.S. at 597)).

Among the protections the FLSA provides employees is

overtime pay, or the right to be paid at time and a half for

work above the statutory limit, generally 40 hours per week.

See 29 U.S.C. § 207. There are, however, exemptions from this

requirement, including the so-called “white collar” exemption

for workers “employed in a bona fide executive, administrative,

or professional capacity.” 29 U.S.C. § 213(a)(1). As we have

recognized, FLSA exemptions, including this one, “are to be

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‘narrowly construed against the employers seeking to assert

them,’” and applied only in instances “plainly and unmistakably

within the exemptions’ terms and spirit.” Desmond v. PNGI

Charles Town Gaming, L.L.C., 564 F.3d 688, 692 (4th Cir. 2009)

(alterations omitted) (quoting Arnold v. Ben Kanowsky, Inc., 361

U.S. 388, 392 (1960)).

The Department of Labor (“DOL”) has promulgated regulations

interpreting the FLSA’s exemptions for executive and

administrative employees, the two categories at issue in this

case. Under the DOL regulations, an “employee employed in a

bona fide executive capacity” is one who earns at least $455 per

week, has authority over hiring and firing, 1 routinely supervises

at least two other employees, 2 and — most relevant here — whose

“primary duty is management of the enterprise in which the

employee is employed.” 29 C.F.R. § 541.100. The administrative

exemption similarly turns on a management-related primary duty:

An “employee employed in a bona fide administrative capacity” is

one who, in addition to earning at least $455 per week and

1 “Who has 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.” 29 C.F.R.

§ 541.100(a)(4).

2 “Who customarily and regularly directs the work of two or

more other employees.” 29 C.F.R. § 541.100(a)(3).

6

exercising discretion on significant matters, 3 has as a “primary

duty” the “performance of office or non-manual work directly

related to the management or general business operations of the

employer or the employer’s customers.” Id. § 541.200.

In 2004, DOL proposed changes to its “Part 541” regulations

governing the white collar exemptions, generating concerns that

first responders and manual laborers would become exempt

employees and lose their right to overtime pay. See U.S. Dep’t

of Labor, Wage & Hour Div., Defining and Delimiting the

Exemptions for Executive, Administrative, Professional, Outside

Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,129 (Apr.

23, 2004) (the “Preamble”). In response, DOL promulgated a new

regulation, 29 C.F.R. § 541.3, clarifying the scope of the

exemptions as applied to blue collar workers and first

responders. Preamble at 22,128–29.

Subsection (a) of the new regulation provides that the Part

541 exemptions “do not apply to manual laborers or other ‘blue

collar’ workers who perform work involving repetitive operations

with their hands, physical skill and energy.” 29 C.F.R.

§ 541.3(a). Subsection (b) is the “first responder regulation,”

with potential bearing on this case. Subsection (b) provides in

3

“Whose primary duty includes the exercise of discretion

and independent judgment with respect to matters of

significance.” 29 C.F.R. § 541.200(a)(3).

7

its first part that the Part 541 exemptions “do not apply

to . . . fire fighters” and other first responders, “regardless

of rank or pay level.” Id. § 541.3(b)(1). In its second and

third parts, the regulation explains why: “Such employees do

not qualify as exempt executive employees because their primary

duty is not management of the enterprise . . . as required under

§ 541.100,” id. § 541.3(b)(2); and “[s]uch employees do not

qualify as exempt administrative employees because their primary

duty is not the performance of work directly related to the

management or general business operations of the employer . . .

as required under § 541.200,” id. § 541.3(b)(3).

B.

The Fairfax County Fire and Rescue Department is organized

in a straightforward hierarchy. At the top is the Fire Chief,

in charge of the entire Department. Reporting directly to the

Fire Chief are three Assistant Fire Chiefs; beneath them on the

organizational chart are nine Deputy Fire Chiefs, followed by

Battalion Chiefs. Five ranks down from the top are the Captain

positions at issue in this suit, reporting directly to the

Battalion Chiefs. The County treats all of these positions as

exempt from overtime pay requirements under the FLSA.

Directly below the Captains on the organizational chart are

the Department’s Lieutenants, followed by firefighters and

technicians. All positions below the Captain position —

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Lieutenants, firefighters, and technicians — are treated by the

County as non-exempt under the FLSA and thus entitled to

overtime compensation.

Although the parties disagree about the fundamental

character of the Captains’ jobs, the record reveals certain

undisputed facts about the Captains’ specific responsibilities

and work activities. The Department divides its Captains into

two groups. The “Captain I” group includes Shift Commanders and

Safety Officers, and the “Captain II” group includes Station

Commanders and Emergency Medical Service Supervisors (“EMS

Supervisors”). For every 24-hour shift, a Station Commander or

Shift Commander is responsible for supervising each fire

station; an EMS Supervisor is responsible for the emergency

medical services for each “battalion,” or geographic region; and

a Safety Officer is assigned to one or two stations, providing

advice on any safety issues that arise and serving as the

Department’s primary contact concerning these issues.

Station and Shift Commanders are what are commonly known as

“first responders.” They report to every emergency call that

comes in during their shifts and is assigned to their engines:

A fire engine cannot leave the station without its designated

Station or Shift Commander on board, and these Captains may not

refuse to respond to a call. At the scene, Station and Shift

Commanders work side-by-side with their subordinates, wearing

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the same protective gear. With their crews, they operate hoses

and ladders, ventilate buildings, and force entry, running into

burning buildings to rescue victims or search for signs that a

fire will spread. Station and Shift Commanders spend the same

amount of time responding to emergencies as their lower-ranked

colleagues assigned to their engines.

EMS Supervisors and Safety Officers also are part of the

first-response team; like Station and Shift Commanders, they

have no discretion as to whether they will respond to calls.

EMS Supervisors transport emergency medical equipment to the

scene of emergencies and render emergency care, such as

controlling bleeding and performing CPR. They also conduct more

technical Advanced Life Support (“ALS”) at the scene of fires,

initiating intravenous drips, checking EKG rhythms, and the

like. Safety Officers transport emergency equipment that allows

them to monitor the safety of fire scenes, including measuring

gas levels and analyzing the structural integrity of buildings

that they and their colleagues will need to enter.

As is to be expected, the Captains spend only a small

portion of their time actually fighting fires. Most of their

time is spent at the station, and of that time, the single

biggest block goes to daily training for their first-response

duties. Like all first responders, the Captains are required to

participate in emergency response training, which takes an

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average of approximately two hours per shift. Held to the same

physical fitness standards as other firefighters, the Captains

also must undergo daily physical fitness training with their

crews to ensure that they are physically able to perform their

first-response functions. That physical fitness training

consumes an additional two hours or so each day.

While at the station, the Captains also spend time — though

significantly less — on tasks that are distinct from their

front-line responsibilities. First, the Station and Shift

Commanders complete annual evaluation reports of the

firefighters in their crews. According to the Captains’

unrebutted deposition testimony, each Commander spends a maximum

of twelve hours per year on this task. EMS Supervisors spend

less; they are responsible only for evaluation addendums for

ALS-certified personnel, assessing ALS abilities exclusively,

which takes approximately four hours per year. Safety Officers

have no responsibility for evaluations.

The Captains have no authority to administer discipline

without the approval of a Battalion or Deputy Chief. But the

Station and Shift Commanders are required to report disciplinary

infractions up the chain of command and then to administer the

discipline decided upon by the higher-ranking officers, tasks

which take no more than three hours per year. The EMS

Supervisors and Safety Officers have less involvement in

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discipline. EMS Supervisors occasionally take part in inquiries

into medical issues and are infrequently ordered to issue

discipline. Safety Officers occasionally participate in

accident review boards but do not decide the appropriate

outcome.

Similarly, while the Captains do not write or disseminate

station policies, Station Commanders are responsible for

updating station policies on an annual basis so that they

conform to updates in County-wide policies. That task takes

less than five hours per year. Finally, Station Commanders and

EMS Supervisors create “wish lists” of supplies for their

stations, accounting for fewer than four hours per year. The

Captains do not set or control the budget, hire or fire

employees, set minimum staffing levels, change employees’ work

schedules, or approve overtime. 4

4

Our focus is on the factual record as it pertains to the

specific tasks performed by the Captains, rather than general

descriptions of their jobs. That is because “the determination

of whether an employee is exempt is an inquiry that is based on

the particular facts of his employment and not general

descriptions.” Ale v. Tenn. Valley Auth., 269 F.3d 680, 689

(6th Cir. 2001) (holding employees non-exempt under executive

and administrative exemptions). Here, the County’s primary

source of evidence is its own job descriptions of the Captain

positions, as well as descriptions from some of the Captains’

resumes. In this posture, and given record testimony supporting

the accuracy of the County-prepared materials, we assume these

job descriptions are true. But they are framed at a high level

of generality, and thus do not add appreciably to or call into

question the more specific evidentiary submissions of the

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C.

In January 2014, over a hundred current and former Captains

brought suit against the County for the denial of overtime pay.

After discovery, the parties cross-moved for summary judgment.

The County took the position that the Captains are exempt from

the FLSA’s overtime pay requirements, under the executive

exemption with respect to Station and Shift Commanders and under

the administrative exemption with respect to EMS Supervisors and

Safety Officers. The Captains argued that the undisputed

evidence showed that they do not fall within those exemptions,

particularly in light of the first responder regulation.

parties. For instance, the class specification for Station

Commanders tells us that these Captains “[p]repare[] the budget

for the fire and rescue station.” J.A. 1985. But the parties

do not dispute that what that means in practice — at the level

of day-to-day job tasks on which the exemption inquiry turns —

is that the Captains prepare “wish lists,” or make funding

requests that must be approved by their supervisors. It is

those more specific duties that we recount above, and on which

any finding of exemption must rest. See Vela v. City of

Houston, 276 F.3d 659, 677 (5th Cir. 2001) (city job

descriptions too general to support a finding that employees’

specific job duties qualify as exempt under executive or

administrative exemptions); Ale, 269 F.3d at 688–89 (employer

job descriptions and employee resumes too general and vague to

support a finding that “what [the] employee actually does on a

day-to-day basis” is exempt under executive or administrative

exemptions).

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The district court awarded summary judgment to the County,

holding that all of the Captains are exempt executives. The

court relied on a series of Fourth Circuit decisions finding

that fire shift commanders, engine captains, and EMS captains in

counties other than Fairfax are exempt executives under the

FLSA. Morrison v. Cty. of Fairfax, Civ. No. 1:14–cv–005, 2014

WL 5591073, at *3 (E.D. Va. Nov. 3, 2014) (citing Hartman v.

Arlington Cty., 903 F.2d 290 (4th Cir. 1990); Int’l Ass’n of

Fire Fighters v. City of Alexandria, 912 F.2d 463 (4th Cir.

1990); West v. Anne Arundel Cty., 137 F.3d 752 (4th Cir. 1998)).

Given those cases, the district court concluded, “the exempt

status of fire captains and EMS captains in the Fourth Circuit

is well-established.” Id.

Nor, the district court held, did the first responder

regulation, promulgated after those cases were decided, affect

the analysis. According to the district court, the first

responder regulation, like its companion provision in 29 C.F.R.

§ 541.3, addresses only “blue collar” employees. “Read in

context,” the court explained, “the First Responder Regulation

ensures the Executive Exemption does not apply to ‘blue collar’

firefighters, regardless of rank or pay,” and has no import for

non-blue collar employees like the Captains. Id. at *3–4. The

Captains timely appealed.

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II.

Summary judgment is appropriate if no reasonable jury could

find for the nonmoving party. Moss v. Parks Corp., 985 F.2d

736, 738 (4th Cir. 1993). We review the district court’s grant

of summary judgment de novo. Newport News Holdings Corp. v.

Virtual City Vision, Inc., 650 F.3d 423, 434 (4th Cir. 2011).

In doing so, we are mindful that the FLSA exemptions are to be

“narrowly construed against the employer[],” and that the

employer must prove an exemption’s applicability by clear and

convincing evidence. Desmond, 564 F.3d at 691 & n.3, 692. On

this record, we conclude that no reasonable jury could find by

clear and convincing evidence that the Captains are exempt from

the FLSA’s overtime mandate.

A.

We begin our analysis with the first responder regulation,

which speaks directly to the exempt status of firefighters and

other first responders under the FLSA.

29 C.F.R. § 541.3 states, in relevant part:

(a) The [Part 541] exemptions and the regulations in

this part do not apply to manual laborers or other

“blue collar” workers who perform work involving

repetitive operations with their hands, physical skill

and energy. . . .

(b)(1) The [Part 541] exemptions and the regulations

in this part also do not apply to police

officers, . . . fire fighters, . . . and similar

employees, regardless of rank or pay level, who

perform work such as preventing, controlling or

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extinguishing fires of any type; rescuing fire, crime

or accident victims; . . . or other similar work.

(2) Such employees do not qualify as exempt

executive employees because their primary duty is not

management of the enterprise in which the employee is

employed or a customarily recognized department or

subdivision thereof as required under § 541.100. Thus,

for example, a police officer or fire fighter whose

primary duty is to investigate crimes or fight fires

is not exempt under [the executive exemption] merely

because the police officer or fire fighter also

directs the work of other employees in the conduct of

an investigation or fighting a fire.

(3) Such employees do not qualify as exempt

administrative employees because their primary duty is

not the performance of work directly related to the

management or general business operations of the

employer or the employer’s customers as required under

§ 541.200.

The County does not dispute that the Captains in this case

qualify under the first paragraph of § 541.3(b) as “fire

fighters” who “perform work such as preventing, controlling or

extinguishing fires.” See 29 C.F.R. § 541.3(b)(1). The

district court nevertheless held the regulation inapplicable to

the Captains, on the ground that it addresses only “blue collar”

firefighters. The Secretary of Labor, joined by the Captains,

disagrees, 5 and the County does not defend the district court’s

decision in this regard.

5 At our request, the Secretary of Labor appeared as amicus

in this case. The Secretary also submitted a letter amicus

brief addressing the scope of the first responder regulation in

the Second Circuit case of Mullins v. City of New York, 653 F.3d

104 (2011).

16

Like the Secretary and the Captains, we believe the

district court erred in conflating the first subsection of the

regulation, addressing “blue collar” and manual laborers, with

the second, covering first responders. Although the blue collar

provision immediately precedes the first responder regulation,

there is no basis for treating the two as overlapping; the

separate subsections are clearly delineated, with the first

providing that the exemptions in question do not apply to blue

collar employees, and the second that the exemptions “also do

not apply” to first responders. Id. § 541.3(b)(1) (emphasis

added). The Preamble to the regulation confirms this reading,

analyzing the two subsections separately and making clear that

they respond to distinct concerns. See Preamble at 22,128–29.

Whether the Captains could be considered “blue collar” employees

under § 541.3(a), in other words, is immaterial to their status

as first responders under § 541.3(b).

Thus, the first responder regulation applies to this case,

and provides in subsection (b)(1) that the executive and

administrative exemptions at issue “do not apply” to the listed

firefighters — a group that concededly includes the Captains —

“regardless of rank or pay level.” 29 C.F.R. § 541.3(b)(1).

That is “because,” the regulation goes on to say, such

firefighters’ “primary duty is not management,” as required for

the executive exemption, id. § 541.3(b)(2), or “the performance

17

of work directly related to the management” of the Department,

as required for the administrative exemption, id. § 541.3(b)(3).

This regulatory language might naturally be read as

establishing a bright-line rule that firefighters and other

first responders covered by § 541.3(b)(1) are non-exempt and

thus entitled to overtime compensation. But that is not a

position advanced by either party to this case, nor by the

Secretary. Instead, the parties agree with the Secretary that

under the first responder regulation, as before, whether

firefighters are exempt executives or administrators is governed

by the “primary duty” standard, under which the Captains are

exempt if (and only if) their primary duty is “management,” id.

§ 541.100, or administrative work “directly related

to . . . management,” id. § 541.200.

To defend that reading, the Secretary points to language in

the regulation referencing the primary duty standard. By

explaining that first responders are not exempt “because their

primary duty is not management” or “the performance of work

directly related to . . . management,” both subsections (b)(2)

and (b)(3), the Secretary argues, demonstrate that subsection

(b)(1)’s rule remains “grounded in first responders’ primary

duty.” DOL Br. at 23. Similarly, the example provided in

subsection (b)(2) — a “fire fighter whose primary duty is

to . . . fight fires is not exempt . . . merely because” he or

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she also supervises other employees — makes clear that the scope

of subsection (b)(1) is limited to firefighters whose primary

duty is not management or management-related.

The Secretary, joined by the County, also directs us to the

Preamble to the first responder regulation, which clarifies that

the purpose of the regulation is not to “depart[]

from . . . established case law” applying the primary duty test

to hold that first responders — including fire department

captains — are not exempt executives or administrators.

Preamble at 22,129 (describing, inter alia, Dep’t of Labor v.

City of Sapulpa, 30 F.3d 1285 (10th Cir. 1994) (fire department

captains not exempt executives)). The Preamble also endorses

cases holding that certain “high-level police and fire

officials” are exempt because “their primary duty is performing

managerial tasks,” noting as an “important fact” that “exempt

police and fire executives generally are not dispatched to

calls, but rather have discretion to determine whether and where

their assistance is needed.” Id. at 22,130. The upshot, the

Secretary argues, is that the Preamble confirms that the first

responder regulation does not supplant the primary duty test in

determining whether a particular first responder is exempt.

Like the Second Circuit in Mullins v. City of New York, 653

F.3d 104 (2011), we will defer to the Secretary’s interpretation

of his agency’s regulation. Id. at 113–17. In Mullins, finding

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police sergeants non-exempt under the FLSA, the court carefully

considered the meaning of the first responder regulation, and

concluded that the Secretary’s interpretation “is not plainly

erroneous or inconsistent with [the] regulations,” and warrants

deference under Auer v. Robbins, 519 U.S. 452 (1997). Mullins,

653 F.3d at 114. We agree. Though the regulation might be

subject to a broader reading, the interpretation proposed by the

Secretary (and uncontested by the parties) is not foreclosed by

unambiguous regulatory text. Nor is there anything to suggest

that it “does not reflect the agency’s fair and considered

judgment,” Auer, 519 U.S. at 462; see Mullins, 653 F.3d at 114;

indeed, it is entirely consistent with the interpretation

offered by the Secretary in the Mullins litigation.

Importantly, reading the first responder regulation to

incorporate the well-established primary duty test does not

render the regulation meaningless. Rather, as the Secretary

urges, the regulation clarifies the application of the primary

duty test to first responders like the Captains, primarily

through the example offered in subsection (b)(2): “Thus, for

example, a police officer or fire fighter whose primary duty is

to investigate crimes or fight fires is not [an exempt

executive] merely because the police officer or fire fighter

also directs the work of other employees in the conduct of an

investigation or fighting a fire.” 29 C.F.R. § 541.3(b)(2). As

20

the court explained in Mullins, that example can be read only as

a single illustration of a broader principle, establishing that

management-like tasks undertaken in conjunction with, or

directly related to, primary first responder duties do not turn

a first responder into an exempt executive or administrator.

Mullins, 653 F.3d at 115 (adopting Secretary’s interpretation);

see also id. at 117–18 (tasks that “relate to” or are

“undertaken . . . in the course of performing” first responder

duties are non-exempt under first responder regulation); Barrows

v. City of Chattanooga, 944 F. Supp. 2d 596, 603 (E.D. Tenn.

2013) (relying on Mullins and holding that “management and

supervisory activities performed by the categories of employees

listed in § 541.3(b) . . . undertaken as a part of the

employees’ primary field law enforcement duties” are non-

exempt). 6

6 On this point, it appears that the County takes a

different view, suggesting that § 541.3(b)(2) is limited to its

express terms and clarifies only that a firefighter does not

become exempt by virtue of supervising other employees at the

scene of a fire. But the prefatory language — “[t]hus, for

example” — makes plain that what follows is but one example of a

larger principle, Mullins, 653 F.3d at 115, and that general

principle is not confined to tasks undertaken “in the field,”

id. If, on the other hand, § 541.3(b)(2)’s single example were

understood to be the sum total of the regulation’s contribution

to the law, then the regulation would be rendered toothless:

The executive exemption already requires both that an employee

supervise other workers and that the employee’s primary duty be

management, see 29 C.F.R. § 541.100, so even without § 541.3(b),

21

B.

We must now determine whether there is evidence in the

record from which a reasonable jury could find that the County

has met its burden of showing, by clear and convincing evidence,

that the Captains are covered by the Part 541 exemptions,

construed narrowly and against the employer. See Desmond, 564

F.3d at 691 & n.3, 692 (FLSA exemptions are narrowly construed,

and employer must show their application by clear and convincing

evidence). That is a substantial burden, and the County cannot

meet it here. Accordingly, the Captains are entitled to summary

judgment.

The district court came to a different conclusion, awarding

summary judgment to the County and holding that all of the

Captains are exempt executives — even the EMS Supervisors and

Safety Officers as to whom the County had argued only the

administrative exemption. The court based its holding on

precedent from our court, pre-dating the 2004 first responder

regulation, finding that certain fire captains were exempt

executives. See Morrison, 2014 WL 5591073, at *3 (citing

Hartman, 903 F.2d 290; Int’l Ass’n of Fire Fighters, 912 F.2d

463; and West, 137 F.3d 752). That reliance was misplaced.

supervision at the scene of a fire would not suffice to meet the

primary duty test.

22

First, because those cases were decided before the first

responder regulation was promulgated, they do not reflect the

clarification of the primary duty standard provided by that

regulation. And more fundamentally, the applicability of the

exemptions must be determined based on the individualized facts

and record in each case, not on whether first responders in one

jurisdiction happen to share a title with exempt first

responders in another, who may have entirely different

responsibilities and primary duties. On this point, DOL’s

regulations are very clear, providing that “[a] job title alone

is insufficient to establish the exempt status of an employee.”

29 C.F.R. § 541.2; see also Walton v. Greenbrier Ford, Inc., 370

F.3d 446, 453 (4th Cir. 2004) (to determine an employee’s exempt

status, “courts must focus on the actual activities of the

employee”); Vela v. City of Houston, 276 F.3d 659, 677 (5th Cir.

2001) (“The title of ‘captain’ provides no guidance on whether

[an] exemption applies; rather, a fact-sensitive inquiry is

required.” (internal quotation marks and alteration omitted)).

And indeed, the cases cited by the district court are careful to

focus on the particular duties of the employees involved, as

opposed to the employees’ titles. See Hartman v. Arlington

Cty., 720 F. Supp. 1227, 1229 (E.D. Va. 1989), aff’d, 903 F.2d

290 (4th Cir. 1990); Int’l Ass’n of Fire Fighters, 720 F. Supp.

1230, 1233 (E.D. Va. 1989), aff’d, 912 F.2d 463 (4th Cir. 1990);

23

West, 137 F.3d at 763. The district court’s conclusion that

“the exempt status of fire captains and EMS captains in the

Fourth Circuit is well-established” — and its reliance on this

conclusion to determine that all of the Captains were exempt

executives — was thus unfounded.

We must instead consider the particular record in this

case, and the showing the County has made, against the

regulatory standards for the executive and administrative

exemptions on which the County relies. 7 As noted above,

application of either exemption requires that an employee’s

“primary duty” be management or management-related. For the

County to prove that the Shift and Station Commanders are exempt

executives, it must show by clear and convincing evidence that

their primary duty is “management of the enterprise in which

[they are] employed or of a customarily recognized department or

subdivision thereof.” 29 C.F.R. § 541.100(a)(2). And to prove

that the EMS Supervisors and Safety Officers are exempt

administrators, it must show by clear and convincing evidence

that their primary duty is “the performance of office or non-

manual work directly related to the management or general

business operations of the employer.” Id. § 541.200(a)(2).

7

The County does not defend the district court’s holding

that EMS Supervisors and Safety Officers are exempt executives,

and instead reasserts the administrative exemption.

24

Finally, under the first responder regulation, tasks performed

as part of or in furtherance of the Captains’ first response

duties are not deemed “management” and will not render the

Captains exempt from overtime pay requirements. Id.

§ 541.3(b)(2); see Mullins, 653 F.3d at 116; Barrows, 944 F.

Supp. 2d at 604.

An employee’s “primary duty” is “the principal, main, major

or most important duty that the employee performs,” “based on

all the facts in a particular case, with the major emphasis on

the character of the employee’s job as a whole.” 29 C.F.R.

§ 541.700(a). DOL has listed four non-exhaustive factors to

consider in determining the primary duty of an employee:

(1) “the relative importance of the exempt duties as compared

with other types of duties;” (2) “the amount of time spent

performing exempt work;” (3) “the employee’s relative freedom

from direct supervision;” and (4) “the relationship between the

employee’s salary and the wages paid to other employees for the

kind of nonexempt work performed by the employee.” Id.

Applying those factors, and taking full account of the

“character of the employee[s’] job as a whole,” no reasonable

jury could find, by clear and convincing evidence, that the

Captains’ primary job duty is anything other than emergency

response. The first factor, the relative importance of exempt

duties, decidedly falls in the Captains’ favor. Whatever the

25

precise importance of the Captains’ non-firefighting duties —

the evaluations, the disciplinary reports, the annual conforming

changes to station policies — it is clear that fighting fires is

the more important part of the job. When an emergency call

comes in, it takes priority, and the Captains do not have

discretion to decline to respond. And unlike their superiors,

Captains are part of the core group of firefighters who are

required to respond to a typical call; an engine cannot leave

the station without its Captain on board. See Barrows, 944 F.

Supp. 2d at 604–05 (first response is fire captain’s primary

duty where he and subordinates are charged with “interrupting

whatever other task or activity they may have been involved in

to respond to a fire or emergency call”). In this way, the

Captains are quite unlike the “high-level” fire officials

contemplated as exempt by the Preamble, with the “discretion to

determine whether and where their assistance is needed.”

Preamble at 22,130. The Captains’ deposition testimony confirms

that their most important duty is first response, and “making

sure that [they and the rest of the crew] are ready to go when

the . . . 911 call comes in.” J.A. 964–65. And although it

deposed numerous Fire Department employees, the County points to

no testimony or other concrete evidence — and we have found none

— specifically disputing that assessment and identifying some

other job duty as more important than first response.

26

Instead, the County relies most heavily on the second

factor — the amount of time spent on exempt managerial work.

The County repeatedly emphasizes that the Captains spend very

little of their work time actually responding to emergency

calls; it follows, the County argues, that first response cannot

be the Captains’ primary duty. And the district court seems to

have agreed, stressing that “[a]lthough [the Captains]

participate in emergency response, the bulk of their time” is

spent at the station. Morrison, 2014 WL 5591073, at *1. We

think this analysis misapprehends both the nature of the “time”

factor and the nature of firefighting.

First, as the Barrows court explained, that a fire

captain’s direct firefighting duties do not consume the majority

of his or her time is simply the nature of first response work:

“[T]he nature of the job of every front-line fire fighter[] is

generally to wait. Any given day for a fire fighter may consist

of extended periods of boredom, punctuated by periods of urgency

and moments of terror.” Barrows, 944 F. Supp. 2d at 604–05.

And it would be illogical to give much weight to how much time a

Captain devotes to answering emergency calls; that time

presumably would vary from year to year, based on how many

emergencies arise, without changing the “character of the

employee’s job as a whole,” 29 C.F.R. § 541.700.

27

Second, the regulation directs attention not to the amount

of time spent performing non-exempt work like fighting fires,

but specifically to “the amount of time spent performing exempt

work.” Id. § 541.700(a) (emphasis added). And it will not do

simply to assume, as the County seems to on occasion, that the

two are inversely correlated — that any time a Captain is not on

the scene of a fire, he or she is engaged in an exempt

managerial task. On the contrary, some of the things

firefighters do at the station while awaiting emergency calls,

like sleeping and eating, are decidedly non-managerial. The

burden is on the County to come forward with evidence that the

Captains spend some significant portion of their time at the

station — the regulations suggest that “employees who spend more

than 50 percent of their time performing exempt work will

generally satisfy the primary duty requirement,” id.

§ 541.700(b) — on managerial or management-related tasks.

But the County has produced no evidence of how much time

the Captains spend performing exempt management work, and the

evidence that the Captains have produced suggests that it is

very little. The Captains’ unrebutted deposition testimony

shows that they work approximately 2600 hours per year, but

spend less than 25 of those hours on identified management

tasks: twelve hours completing annual evaluations, three hours

reporting disciplinary infractions and administering discipline

28

decided upon by their superiors, five hours updating station

policies to conform to county-wide changes, and four hours

creating station “wish lists” for purchases.

Nor can the gap be filled with the approximately four hours

per day the Captains devote to a combination of emergency

response and physical fitness training. The Captains undergo

the same training as all of the other firefighters at the

station so that they, along with their crews, are able to

fulfill their first responder obligations. That so much time is

devoted to this process only underscores the importance of those

direct response duties. And like other efforts to “assur[e] a

constant state of preparedness,” such training “relate[s]

directly to [a fire captain’s] regular front line firefighting

duties,” and is therefore non-managerial and non-exempt under

the first responder regulation. Barrows, 944 F. Supp. 2d at 604

(citing Mullins and finding fire captains non-exempt under first

responder regulation and primary duty standard).

To the extent the County argues that the Captains have a

role in supervising training that qualifies as managerial, we

disagree. Supervision and management are two different things

under the executive exemption regulation, which requires both

before an employee may be categorized as exempt. See 29 C.F.R.

§ 541.100(a)(2)–(3). And even read narrowly, the example

provided in subsection (b)(2) of the first responder regulation

29

precludes us from classifying as “management” the supervision of

employees in the course of activities directly related to first

response duties. See id. § 541.3(b)(2). 8

The remaining two factors, supervision and salary, are

similarly unavailing for the County. As to the Captains’

“relative freedom from direct supervision,” id. § 541.700, it is

undisputed that the Battalion Chiefs to whom the Captains report

are physically present at the station for some portion of many

shifts and, when they are not, “have daily telephone or email

contact” with the Captains. J.A. 2518. The Captains also

presented evidence that their role is to carry out the orders of

their superiors: One Captain testified, for instance, that

“[a]ny good captain will tell you he doesn’t have an opinion

8 For this reason, as well, references to management-type

duties in County job descriptions or on Captain resumes are not

enough to show that the Captains’ duties qualify as “management”

under the executive exemption and first responder regulations.

It may be, for instance, that certain Captains, as per the

County’s class specifications, have responsibility for “station

management,” with duties that include “direct[ing] the overall

activities” of the station. J.A. 1984. But to the extent such

management or direction takes the form of supervision,

particularly supervision related to first response —

“apportioning work” among subordinates, “determining the

techniques and personnel to be used” in connection with first

response, “reallocating [subordinates’] activities,” and the

like — it is not exempt “management” activity under the

regulatory framework here. Mullins, 653 F.3d at 118. And non-

supervisory duties that relate to ensuring operational readiness

for first response also are non-exempt under the relevant

regulations, even if they might be described colloquially as

“management.” Barrows, 944 F. Supp. 2d at 604.

30

about anything. He has whatever opinion the fire chief tells

him it is.” J.A. 194. The EMS Supervisors were described as

“aide[s] to the battalion chief,” J.A. 662, indicating something

other than freedom from supervision. On the whole, this

evidence — which the County does not dispute — cannot be said to

show clearly and convincingly that the Captains are relatively

free from supervision and therefore exempt executives or

administrators.

As to the “relationship between the [Captains’] salary and

the wages paid to other employees” for the same firefighting

work, 29 C.F.R. § 541.700(a), the County has not presented

evidence of a significant gap in pay. To be sure, the Captains

are assigned a higher pay grade than the non-exempt Lieutenants

just below them in rank. But the high end of the range for the

Lieutenants’ pay grade is higher than the low end of the range

for the Captains’ pay grade. Moreover, because they are

considered non-exempt, Lieutenants make significantly more money

than Captains in overtime; multiple Captains testified that they

waited to ask for promotions because being promoted would lower

their total take-home pay.

Finally, we are mindful that the “primary duty” analysis is

a holistic one, “based on all the facts in a particular case,”

and with the “major emphasis on the character of the employee’s

job as a whole.” Id. And when we step back to employ that

31

broader lens, it confirms what the factor-by-factor analysis

tells us: On the record evidence, these Captains are

firefighters, not managers or administrators.

On the one hand, the County has produced no evidence

showing that the Captains perform the kind of specific high-

level management tasks ordinarily associated with executives or

administrators: planning and controlling a budget, selecting new

employees, setting rates of pay and hours of work, and the like. 9

Instead, the specific duties performed by Captains that are

distinct from first response and claimed as “management” by the

County — like submitting annual evaluations, reporting

infractions, and making conforming changes to station policies —

are largely “ministerial in nature.” Barrows, 944 F. Supp. 2d

at 604 (fire captains non-exempt where purported managerial

tasks are “ministerial” and take up small percentage of

captains’ time). It may be appropriate to think of a fire

official responsible for “high-level direction of operations”

rather than “front-line firefighting” as a manager first and a

firefighter second, see Mullins, 653 F.3d at 115 (quoting

9Budgeting authority, interviewing and selecting employees,

and establishing hours of work and rates of pay all are included

in a DOL regulation enumerating activities that may constitute

“management” for purposes of the executive exemption. See 29

C.F.R. § 541.102.

32

Secretary’s explanation of first responder regulation), but that

description does not fit these Captains.

Front-line firefighting, on the other hand, is at the

center of the Captains’ jobs. “Simply put, [the Captains are]

tasked with the responsibility of interrupting whatever other

task or activity they may have been involved in to respond to a

fire or emergency call.” Barrows, 944 F. Supp. 2d at 605. Like

their subordinates, with whom they work side-by-side at the

scene of a fire, the Captains are part of the minimum staffing

complement for emergency calls. And when they are not

responding to a call, the undisputed evidence shows, then they

are mostly likely to be spending their time preparing to respond

or waiting to respond. “Primary duty” has a common-sense

meaning under the Part 541 regulations — “the principal, main,

major or most important duty that the employee performs,” see 29

C.F.R. § 541.700(a) — and on this record, the County simply

cannot show that fighting fires, rescuing victims and

administering emergency aid is not the principal and most

important job of the Captains. See Barrows, 944 F. Supp. 2d at

605 (“[A]lthough [the captain’s] firefighting duties may not

have been his most time-consuming, they were clearly the most

important duties that he performed.”); see generally Dalheim v.

KDFW-TV, 918 F.2d 1220, 1227 (5th Cir. 1990) (“[T]he employee’s

33

primary duty will usually be what she does that is of principal

value to the employer.”). 10

There is no doubt that application of the executive and

administrative exemptions calls for a fact-intensive inquiry.

See Vela, 276 F.3d at 677; see also Walton, 370 F.3d at 453

(application of FLSA exemptions turns on employees’ particular

duties, and how employees actually spend their time is question

of fact). But where the record evidence will not allow an

employer to meet its heavy burden of showing, by clear and

convincing evidence, that an exemption applies, then summary

judgment is appropriate. See Mullins, 653 F.3d at 119

(reversing award of summary judgment to city and directing entry

of summary judgment to first responders because city failed to

meet burden of showing that management is first responders’

primary duty); Vela, 276 F.3d at 677 (reversing award of summary

judgment to city and directing entry of judgment for first

responders where record evidence “d[id] not satisfy the City’s

burden of proving” application of executive or administrative

exemptions); see also Walton, 370 F.3d at 453 (affirming award

10

For the reasons already given, we think that the County’s

own job descriptions are framed at a sufficiently high level of

generality that they shed little light on the issue before us.

We do note, however, that to the extent those materials

expressly address the “primary duty” question, it is to clarify

that although an EMS Supervisor “plays a vital role in battalion

planning and management,” his or her “primary responsibility

revolves around EMS activity.” J.A. 3148.

34

of summary judgment to employer where uncontested facts

established application of different FLSA exemption). On the

record here, no reasonable jury could find that the County has

shown by clear and convincing evidence that the Captains’

“primary duty” is management or management-related. The

Captains therefore are entitled to judgment as a matter of law. 11

III.

The County has not submitted evidence that would allow a

reasonable jury to find, under the clear and convincing

standard, that the Captains’ primary duty is anything other than

first response. It follows that the Captains are not exempt

11 Given our conclusion that the County has not met its

burden under the “primary duty” standard, the County cannot

succeed on its alternative argument that the Captains are exempt

under what is known as the “highly compensated employee”

exemption to the FLSA’s overtime pay mandate. Under that

exemption, an employee who earns at least $100,000 per year

“will qualify for exemption if the employee customarily and

regularly performs any one or more of the exempt duties or

responsibilities of an executive, administrative or professional

employee.” 29 C.F.R. § 541.601(c). So, for example, the

executive exemption may apply to a highly compensated employee

if the employee meets the supervision requirement by regularly

directing the work of two or more other employees, “even though

the employee does not meet all of the other requirements for the

executive exemption.” Id. But, importantly, the highly

compensated employee exemption “applies only to employees whose

primary duty includes performing office or non-manual work.”

Id. § 541.601(a). Because the County has not shown that the

Captains’ primary duty is anything other than firefighting and

emergency aid, the County also cannot show that the Captains

fall within the highly compensated employee exemption.

35

executives or administrators, and are instead entitled to

overtime compensation under the FLSA. Accordingly, we reverse

the district court’s judgment and remand with instructions to

enter summary judgment for the Captains on the County’s

liability under the FLSA. The district court has not ruled on

the Captains’ request for liquidated damages, and we express no

opinion on damages or any other issue.

REVERSED AND REMANDED

36