noting that “affirmative defenses may be raised at any time . . . so long as the plaintiff suffers no prejudice” in its ability to “rebut the defense” or “alter their litigation strategy”
How later courts described this case
- noting that “affirmative defenses may be raised at any time . . . so long as the plaintiff suffers no prejudice” in its ability to “rebut the defense” or “alter their litigation strategy”
- finding defendant preserved defense where there was no prejudice to plaintiffs, even though defendant did not raise the defense in its answer
- reciting general rule that an FLSA exception “is a matter of affirmative defense on which the employer has the burden of proof.’”
- “Courts have taken the sensible approach of interpreting the FLSA’s personal staff exception consistently with its counterparts in other statutes, including Title VII.”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 20-2216
________________
SCOTT P. CLEWS; JOSEPH S. POTHERING;
DEBRA M. DETWEILER,
Appellants
v.
COUNTY OF SCHUYLKILL
________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-17-cv-02233)
District Judge: Honorable Jennifer P. Wilson
________________
Argued on March 10, 2021
Before: SMITH, Chief Judge, McKEE and AMBRO, Circuit
Judges
(Opinion filed August 30, 2021)
Edward M. Brennan (Argued)
306 Mahantongo Street
Pottsville, PA 17901
Counsel for Appellants
Christopher L. Scott (Argued)
David L. Schwalm
Thomas Thomas & Hafer LLP
225 Grandview Ave, 5th Floor
Camp Hill, PA 17101
Counsel for Appellee
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Employees of state and local governments are typically
protected by federal employment laws such as the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. But not so
for the personal staff of elected officials. Determining who is
a member of an official’s personal staff can be a fact-intensive
and often murky inquiry. In this case of first impression for
our Circuit, we distill two themes for analyzing the personal
staff exception that flow from the FLSA, its regulations, and
precedents in other circuits, particularly the Fifth Circuit’s
approach in Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th
Cir. 1985).
2
Three former Deputy Coroners claim their employer,
the County of Schuylkill, violated the FLSA by failing to pay
them overtime and then firing them in retaliation for seeking
overtime pay. The District Court granted summary judgment
in favor of the County, concluding that all three Plaintiffs were
personal staff of the County’s elected Coroner and thus cannot
bring an FLSA claim. While we agree with the Court that the
County did not forfeit the personal-staff-exception argument,
granting summary judgment was not called for, as there are still
material factual disputes concerning the exception’s
applicability to the Plaintiffs. Hence we vacate its decision and
remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In Pennsylvania, each county has an independently
elected coroner. See 16 Pa. Stat. and Cons. Stat. Ann. §
401(a)(4) (West 2021). Since January 2012, Dr. David Moylan
has been the elected Coroner in Schuylkill County. In that role,
his main responsibility includes investigating the cause and
manner of deaths in the County, especially those involving
suspicious circumstances or criminal acts. See id. § 1218-B.
In addition to Dr. Moylan, the Coroner’s office consists of Dr.
Joseph A. Weber, the Chief Deputy Coroner, as well as many
Deputy Coroners.
All three Plaintiffs—Scott P. Clews, Joseph S.
Pothering, and Debra M. Detweiler—worked as part-time
Deputy Coroners for the County. It also concurrently
employed each in another capacity. Clews was a Deputy
Coroner between 2008 and 2016 while working full time as a
911 operator. Pothering worked as a Deputy Coroner for 11
years between 2008 and 2019 and was also a 911 operator
3
before retiring in 2018. Detweiler became a Deputy Coroner
in 2014 and concurrently served as a certified field appraiser in
the tax assessor’s office. A former Coroner, Joseph Lipsett,
hired Clews and Pothering, while Dr. Moylan hired Detweiler.
For most counties, including Schuylkill, the relevant
Pennsylvania statute acknowledges only one “deputy” coroner
who may be appointed by the Coroner to act in his place. See
16 Pa. Stat. and Cons. Stat. Ann. § 1211-B (West 2021).1
Despite this statutory constraint, for historical reasons many
people (possibly around twenty at the time of Detweiler’s
hiring) hold the title of Deputy Coroner in Schuylkill County,
though they are also referred to as “investigators.” Suppl. App.
at 12; Oral Arg. Tr. 9:9–14. As Deputy Coroners, the Plaintiffs
were dispatched by the Coroner or Chief Deputy Coroner to a
scene of death to investigate and determine its cause. Typically
their work involved examining bodies, taking photographs,
conducting interviews, attending autopsies, and transporting
bodies to and from funeral homes. When on site, they wore
professional-looking attire and carried identification badges.
After completing an investigation, they called either the
Coroner or the Chief Deputy Coroner to report their findings.
The County paid Deputy Coroners a flat rate, which
meant the Plaintiffs did not receive overtime pay even if they
1
Pennsylvania has sixty-seven named counties divided into
nine classes based on population. 16 Pa. Stat. and Cons. Stat.
Ann. §§ 201, 210 (West 2021). Schuylkill County, which had
a population of about 148,000 as of the 2010 census, is a Fourth
Class county. Id. §§ 210, 211. Pennsylvania has separate rules
about coroners for more populated First Class, Second Class
and Second Class A counties. See id. §§ 4231, 7534.
4
worked more than forty hours per week across all their
positions for the County. The County’s then-Human
Resources Director, Martina Chwastiak, believed this payment
structure violated the FLSA and expressed concerns to her
supervisors on several occasions. Chwastiak also informed Dr.
Moylan about the overtime-pay requirements, which would
affect those who worked other jobs with the County (such as
the three Plaintiffs).
In 2016, Dr. Moylan approved the termination of two of
the Plaintiffs, Clews and Pothering, ostensibly so the County
would not need to pay them overtime. See Suppl. App. at 20
(Dr. Moylan stating he “approved the terminations . . . because
of that 40-hour rule”). Based on Chwastiak’s request, the
County’s Board of Commissioners also voted to approve those
terminations (which included a third Deputy Coroner, Kyle
Koury, who is not a party to this lawsuit). For reasons unclear
from the record, only Clews was immediately separated from
the Coroner’s office. Pothering separated temporarily in 2017
but did not completely stop working as a Deputy Coroner until
May 2019. The record is also unclear on when and why
Detweiler was terminated or if she ever stopped working at the
Coroner’s office.2 See Clews v. Cnty. of Schuylkill, 461 F.
Supp. 3d 142, 146 (M.D. Pa. 2020); Oral Arg. Tr. 23:22–24:5.
In November 2017, the Plaintiffs filed an action in the
Court of Common Pleas of Schuylkill County, which the
County then removed to federal District Court. The complaint
sought damages for alleged violations of the FLSA’s overtime
2
Detweiler ran, unsuccessfully, to replace Dr. Moylan as the
Coroner. Pothering claims he was terminated because he
supported Detweiler over Moylan during the election.
5
wage and retaliatory-discharge provisions. In its answer to the
complaint, the County stated that the “[P]laintiffs are not
entitled to any recovery . . . because they were, and are, exempt
from the minimum wage and/or overtime requirements of the
FLSA.” App. at 34. Following discovery, the parties filed
cross-motions for summary judgment. The County then
argued specifically that the Plaintiffs were not covered by the
FLSA due to the personal staff exception. The Plaintiffs
responded that the County forfeited this affirmative defense by
failing to raise it in answering the complaint, but the District
Court rejected this argument. On the merits of the personal
staff exception, the Court sided with the County, holding that
the Plaintiffs were members of Dr. Moylan’s personal staff and
therefore not covered by the FLSA. The Court thus granted
summary judgment in favor of the County on all claims
without reaching the substance of the alleged FLSA violations.
The Plaintiffs timely appealed to us.
II. JURISDICTION AND STANDARDS OF REVIEW
The District Court had federal question jurisdiction
under 28 U.S.C. § 1331 over this FLSA case, and we have
appellate jurisdiction per 28 U.S.C. § 1291. We review the
District Court’s decision regarding “the waiver of an
affirmative defense for abuse of discretion.” Sharp v. Johnson,
669 F.3d 144, 158 (3d Cir. 2012). As to the District Court’s
grant of summary judgment, we exercise plenary (that is,
unrestricted) review. See Baloga v. Pittston Area Sch. Dist.,
927 F.3d 742, 751 (3d Cir. 2019). “Summary judgment is
appropriate only where ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.’” Id. at 751–52 (quoting Fed. R. Civ. P. 56(a)). “A
dispute is ‘genuine’ if ‘a reasonable jury could return a verdict
6
for the nonmoving party.’” Id. at 752 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Like the
District Court, our role is not to weigh the evidence and assess
its veracity, but instead we review the facts in the light most
favorable to the nonmoving party. Id.
III. DISCUSSION
The Plaintiffs press two arguments on appeal. First,
they contend that the County forfeited the personal-staff-
exception argument. Second, even if the defense was not
forfeited, they argue that the District Court erred by granting
summary judgment in favor of the County given there are
genuine disputes of material fact with respect to applying the
personal staff exception. We address each issue in turn.
A. Forfeiture of the Personal-Staff-Exception
Defense
Typically, an “affirmative defense . . . must be included
in a responsive pleading or may be considered [forfeited].”
Sharp, 669 F.3d at 158; see also Fed. R. Civ. P. 8(c)(1). While
we have not directly addressed whether an exception to the
definition of “employees” under federal employment laws is
an affirmative defense, the Supreme Court noted that “the
general rule [is] that the application of an exemption under the
Fair Labor Standards Act is a matter of affirmative defense on
which the employer has the burden of proof.” Corning Glass
Works v. Brennan, 417 U.S. 188, 196–97 (1974); see also
Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 632
(7th Cir. 2010); Oden v. Oktibbeha Cnty., 246 F.3d 458, 467
(5th Cir. 2001).
7
The parties here accept that the personal staff exception
to the FLSA is an affirmative defense. Under our precedents,
“affirmative defenses may be raised at any time, even after
trial, so long as the plaintiff suffers no prejudice.” Sharp, 669
F.3d at 158. To establish prejudice, the Plaintiffs must show
the County’s failure to raise the specific defense “deprived
[them] of an opportunity to rebut that defense or to alter [their]
litigation strategy accordingly.” In re Sterten, 546 F.3d 278,
285 (3d Cir. 2008).
We agree with the District Court that the Plaintiffs were
not prejudiced by the County’s failure to mention specifically
the personal staff exception in its answer to the complaint. It
is telling that, while the Plaintiffs contend that they were
“greatly prejudiced,” Pls.’ Br. at 10, they did not explain what
could have been developed in discovery with more explicit
notice of the exception. Nor was there a request to reopen
discovery once the County briefed the exception’s
applicability. Indeed, the County took a consistent position
throughout that the Plaintiffs were not covered by the FLSA.
In addition to stating in its answer that the Plaintiffs “were, and
are, exempt from the . . . requirements of the FLSA,” the
County questioned each Plaintiff about his or her job
responsibilities during discovery. App. at 34; see Clews, 461
F. Supp. 3d at 149. All this “should have put [the Plaintiffs]
on notice” that the personal staff exception was at issue. See
Schmidt, 599 F.3d at 632. We thus conclude that, despite not
using the words “personal staff” in the answer, the County
properly preserved this defense.
8
B. Personal Staff Exception
1. Legal background
Among other protections, “[t]he FLSA establishes
federal minimum-wage, maximum-hour, and overtime
guarantees that cannot be modified by contract.” Genesis
Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2013).
“Congress enacted [the statute] in 1938 with the goal of
‘protect[ing] all covered workers from substandard wages and
oppressive working hours.’” Christopher v. SmithKline
Beecham Corp., 567 U.S. 142, 147 (2012) (quoting Barrentine
v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981))
(second alteration in original). For instance, the overtime-pay
requirement “obligates employers to compensate employees
for hours in excess of 40 per week at a rate of 1½ times the
employees’ regular wages.” Id. (citing 29 U.S.C. § 207(a)).
But the FLSA’s protections do not extend to everyone.
Only those who are “employees” can assert valid FLSA claims.
See Razak v. Uber Techs., Inc., 951 F.3d 137, 142 (3d Cir.
2020) (citing 29 U.S.C. §§ 203, 206–207); see also 29 U.S.C.
§ 215(a)(3). As relevant here, the FLSA excludes from its
definition of covered “employees” those who work for a state,
its political subdivision or an intergovernmental agency, are
not subject to civil service laws (that is, are not civil servants
under the relevant state laws), and fall within one of several
enumerated categories, including those “selected by the holder
of [a public elective office] to be a member of his personal
staff.” 29 U.S.C. § 203(e)(2)(C)(ii)(II).3 This is known as the
3
The other excluded categories are (1) elected officials, see
29 U.S.C. § 203(e)(2)(C)(ii)(I), (2) individuals appointed to a
9
personal staff exception.4 While a plaintiff seeking
compensation under the FLSA has the “initial burden of
proving that an employer-employee relationship exists . . . [,
o]nce this burden is met, the employer bears the burden of
proving entitlement to any exemptions or exceptions.”
Benshoff v. City of Va. Beach, 180 F.3d 136, 140 (4th Cir.
1999); see also Brennan, 417 U.S. at 196–97; Oden, 246 F.3d
at 467.
Analogous carveouts for personal staff are found in
other federal employment statutes, including Title VII of the
Civil Rights Act, see 42 U.S.C. § 2000e(f), and the Age
Discrimination in Employment Act, see 29 U.S.C. § 630(f).
The Equal Pay Act and the Family and Medical Leave Act also
incorporate the FLSA’s exception for personal staff. See Birch
v. Cuyahoga Cnty. Prob. Ct., 392 F.3d 151, 161 (6th Cir. 2004)
policymaking position by an elected official, see id. §
203(e)(2)(C)(ii)(III), (3) immediate advisors who counsel the
elected official on the office’s constitutional or legal powers,
see id. § 203(e)(2)(C)(ii)(IV), and (4) employees of a state
legislative branch or body that is not a legislative library, see
id. § 203(e)(2)(C)(ii)(V). See also Ellington v. City of East
Cleveland, 689 F.3d 549, 553 (6th Cir. 2012).
4
Technically, this is an “exception” to the FLSA’s definition
of “employee” and not explicitly codified as an “exemption.”
See 29 U.S.C. § 213 (listing various statutory exemptions).
Yet courts sometimes loosely refer to the carveout for personal
staff as an “exemption” to the FLSA. See, e.g., Birch v.
Cuyahoga Cnty. Prob. Ct., 392 F.3d 151, 161 (6th Cir. 2004).
When they do in a case we cite, we use that court’s
terminology.
10
(noting the personal staff exception to the Equal Pay Act); 29
U.S.C. § 2611(3); see also E.E.O.C. v. Sidley Austin Brown &
Wood, 315 F.3d 696, 708 (7th Cir. 2002) (Easterbrook, J.,
concurring) (observing that similar definitions of the term
“employee” are in “wide use” among federal employment
statutes). Courts have taken the sensible approach of
interpreting the FLSA’s personal staff exception consistently
with its counterparts in other statutes, including Title VII. See,
e.g., Birch, 392 F.3d at 161 (citing Nichols v. Hurley, 921 F.2d
1101, 1110 (10th Cir. 1990) (per curiam)); Brewster v. Barnes,
788 F.2d 985, 990 n.7 (4th Cir. 1986) (noting that the “personal
staff” exemption in Title VII and the FLSA are “essentially
identical”).5
In its regulations, the federal Department of Labor
explained that the term “‘member of personal staff’ generally
includes only persons who are under the direct supervision
of the selecting elected official and have regular contact with
such official.” 29 C.F.R. § 553.11(b); see also Nichols, 921
F.2d at 1103. The regulation further elaborates that personal
staff “must be appointed by, and serve solely at the pleasure or
discretion of, the elected official.” 29 C.F.R. § 553.11(c). We
do not know of any cases challenging the Department’s
interpretation and, as explained below, do not need to
scrutinize its approach, which is largely consistent with judicial
precedents in other circuits.
5
Compare 42 U.S.C. § 2000e(f) (in Title VII, “the term
‘employee’ shall not include any person . . . chosen by [an
elected officer] to be on such officer’s personal staff”), with
29 U.S.C. § 203(e)(2)(C) (in the FLSA, carving out
individuals “selected by the holder of [a public elective
office] to be a member of his personal staff”).
11
2. The Teneyuca factors
By far the leading case on the personal staff exception
is the Fifth Circuit’s decision in Teneyuca v. Bexar County, 767
F.2d 148, 151 (5th Cir. 1985). At least the Sixth, Eighth, and
Tenth Circuits favor it, along with District Courts in our
Circuit. See Hemminghaus v. Missouri, 756 F.3d 1100, 1108
(8th Cir. 2014); Birch, 392 F.3d at 158 (6th Cir. 2004); Nichols,
921 F.2d at 1110 (10th Cir. 1990); Conley v. City of Erie, 521
F. Supp. 2d 448, 453 (W.D. Pa. 2007); Marburger v. Upper
Hanover Twp., 225 F. Supp. 2d 503, 510 (E.D. Pa. 2002).
Teneyuca devised a list of six factors based on its review
of case law at the time. They are:
(1) whether the elected official has plenary
powers of appointment and removal, (2) whether
the person in the position at issue is personally
accountable to only that elected official, (3)
whether the person in the position at issue
represents the elected official in the eyes of the
public, (4) whether the elected official exercises
a considerable amount of control over the
position, (5) the level of the position within the
organization’s chain of command, and (6) the
actual intimacy of the working relationship
between the elected official and the person filling
the position.
Teneyuca, 767 F.2d at 151.
12
The list “is not intended to be exhaustive,” and the
analysis is “highly factual,” requiring courts to examine the
“nature and circumstances of the employment relationship
between the complaining individual and the elected official.”
See id. at 151–52 (internal citation and quotation marks
omitted).6 Hence we are not surprised courts have added more
factors to the mix. See Marburger, 225 F. Supp. 2d at 510–14
(following Teneyuca while considering additional factors).
Echoing the Teneyuca framework, the Fourth Circuit in
Cromer v. Brown, 88 F.3d 1315, 1323 (4th Cir. 1996), listed
eight non-exhaustive factors.7 Even there “[t]he factors . . . are
6
Accordingly, the focus is not on a person’s job title. In
situations where employees have the same title but a
meaningfully different working relationship with the elected
official, it is possible that some are members of the official’s
personal staff but others are not.
7
They are (1) whether “promotion of the employee [is] solely
up to the [elected official]”; (2) whether “the employee
occup[ies] a position high in the chain of command”; (3)
whether “the employee ha[s] a highly intimate working
relationship with the [elected official]”; (4) whether “the
employee contribute[s] to the making of policy decisions in the
[elected official’s] department”; (5) “whether the employee’s
position was created and compensated by the county pursuant
to state law”; (6) what “the full scope of the employee’s duties”
was; (7) “whether the employee worked in the official’s
political campaign”; and (8) “whether the employee worked
under the direction of the official or someone else.” Cromer,
88 F.3d at 1323 (internal citation and quotation marks omitted).
For a comparison of the overlap between the Fifth and Fourth
Circuit tests, see Henry Leaman, Narrowing the Trapdoor of
13
not intended to round out a rigid list. A fact-specific
examination of the employee’s role is what is required.” Id.
Arriving at a definitive set of factors is a Sisyphean task,
as some may be more relevant in one context but not another.
Having considered the Teneyuca factors, related case law, and
the relevant statute and regulations, we distill two themes for
our analysis, as “[t]oo often the factors in a checklist . . . result[]
in rote following of a form containing factors where courts tally
up and spit out a score without an eye on the principles.” See
In re Owens Corning, 419 F.3d 195, 210 (3d Cir. 2005).
First, for an employee to be the personal staff of an
elected official, he must work closely with the official in a
sensitive position of trust and confidence. This theme is at the
core of the personal staff exception’s purpose: to “exempt from
[employment law] coverage those who are chosen by . . . the
elected official . . . . , and who are in a close personal
relationship and an immediate relationship with him.”
Teneyuca, 767 F.2d at 152 (quoting 118 Cong. Rec. 4492–93
(1972)). Indeed, many courts have emphasized a close
working relationship between the elected official and members
of his or her personal staff as the overarching consideration.
See id. (noting the exception “appl[ies] only to those
individuals who are in highly intimate and sensitive positions
of responsibility on the staff of the elected official” (quoting
Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir. 1981));
Cromer, 88 F.3d at 1323; Conley, 521 F. Supp. 2d at 453.
the Government Employee Rights Act, 95 Notre Dame L. Rev.
413, 434 (2019).
14
Four of the Teneyuca factors help assess the closeness
of the working relationship—whether the position is personally
accountable only to the official (factor 2), whether those in that
position represent the elected official in the eyes of the public
(factor 3), the level of the position within the organization’s
chain of command (factor 5), and whether those in the position
handle sensitive and confidential information for the elected
official (referred to as “actual intimacy of the working
relationship” in Teneyuca) (factor 6). See Teneyuca, 767 F.2d
at 151. There is already significant overlap between factors 2
and 5, as both address whether the elected official is a direct
and immediate supervisor for the position. See Montgomery v.
Brookshire, 34 F.3d 291, 296 (5th Cir. 1994) (explaining that
“[t]he personal staff exception becomes less applicable the
lower the particular employee’s position because the exception
was primarily intended to exempt the elected official’s
immediate subordinates”) (internal quotation marks omitted).
Factor 3 is mostly self-explanatory, though it may not be
applicable in situations where the elected official seldom
interacts with the public.
Factor 6, described in Teneyuca as the “actual intimacy
of the working relationship,” 767 F.2d at 151, is difficult to
measure objectively, see Nichols, 921 F.2d at 1110. As
closeness of the working relationship is already an overarching
theme for analysis, we believe the factor is better framed as
whether the employee handles sensitive and confidential
information for the elected official. See id. at 1111 (examining
whether employees were “privy to sensitive information” in
assessing the intimacy of the working relationship); see also
Bland v. New York, 263 F. Supp. 2d 526, 540 (E.D.N.Y. 2003)
(explaining that a personal secretary who controlled the flow
of information to an elected official was placed in a “sensitive”
15
and “intimate” position of trust that rendered her a member of
the personal staff).
In sum, to qualify for the exception, members of an
elected official’s personal staff must have a close working
relationship with that official, often demonstrated by the
official’s direct and immediate supervision over personal staff,
regular contact between them, and personal staff being trusted
to handle sensitive or confidential information and decisions.8
The second theme involves the official’s personal
control over the employee’s hiring, promotion, work
conditions, discipline, and termination. This encompasses the
remaining Teneyuca factors—whether the elected official has
plenary powers to hire and fire (factor 1), while exercising
considerable control over the actions of the employee (factor
4) who answers only to the official (factor 2, which also relates
to the first theme above). Teneyuca, 767 F.2d at 151.
To evaluate this theme, courts should first consider
whether the elected official (or a predecessor) selected his or
her personal staff, as indicated by 29 U.S.C.
8
While personal staff at times may contribute to departmental
policy or participate in authoritative decision-making, this is
typically not a relevant consideration. See, e.g., Nichols, 921
F.2d at 1111 (suggesting policymaking is “not pertinent to the
personal staff exception”). But see Cromer, 88 F.3d at 1323
(examining whether “the employee contribute[s] to the making
of policy decisions”). As noted above, there is a separate
exception to the FLSA’s definition of “employees” for those
selected by an elected official “to serve on a policymaking
level.” See 29 U.S.C. § 203(e)(2)(C)(ii)(III).
16
§ 203(e)(2)(C)(ii)(II) of the FLSA (stating the exception for
those “selected by the holder of [a public elective office] to be
a member of his personal staff”) (emphasis added). Further,
courts may look to whether the official has power over the
employee’s termination, see Teneyuca, 767 F.2d at 151, and
promotion, see Cromer, 88 F.3d at 1323, and exercises
considerable control over the manner and conditions of the
employee’s work, see Hemminghaus, 756 F.3d at 1108–09
(finding a court reporter was a member of a judge’s personal
staff in part because the judge determined the reporter’s work
and leave schedule).
This second theme underscores that elected officials can
and do exert more control over their personal staff than typical
supervisors might over employees, the latter having less
concentrated control through a chain of command. In
colloquial terms, elected officials hold all the cards in the
working relationship with members of their personal staff.
Putting all this together, for an employee to be a
member of an elected official’s personal staff, 1) the official
must work closely with the employee in a sensitive position of
trust and confidence, and 2) the official exercises personal
control over the employee’s hiring, promotion, work
conditions, discipline, and termination. These two themes also
track the Department of Labor’s guidance that personal staff
are “under the direct supervision of the selecting elected
official and have regular contact with such official,” 29 C.F.R.
§ 553.11(b), and “must be appointed by, and serve solely at the
17
pleasure or discretion of, the elected official,” 29 C.F.R. §
553.11(c).9
No doubt these two themes often overlap, and we do not
mean to suggest that any factor falls neatly into one bucket or
the other. And while both themes should be satisfied to apply
the personal staff exception, no single factor is dispositive.
Context matters. To be clear, our two-themed approach does
not do away with a court considering the factors in Teneyuca.
To the extent they are relevant to one or both parts of our
approach, they should be considered in deciding if an
individual is a member of the elected official’s personal staff.
If “there is no genuine issue of material fact as to the
applicability of the relevant [themes]” and their application is
so one-sided that no reasonable jury could disagree with the
result, summary judgment is appropriate. Birch, 392 F.3d at
158. Otherwise, it is not.
9
This language can be read as adopting a bright-line rule that
the first Teneyuca factor—“whether the elected official has
plenary powers of appointment and removal”—must be
satisfied for the personal staff exception to apply. Teneyuca,
767 F.2d at 151. While we acknowledge this is an important
consideration, we decline to adopt a rule that would contravene
a fact-intensive approach that does not give dispositive weight
to any single factor. Cf. Hemminghaus, 756 F.3d at 1109–10
(concluding that the reasoning in a Department of Labor
opinion on the application of the personal staff exception is
unpersuasive, as it fails to consider the facts of the specific
case).
18
3. Application
The parties do not dispute that the Coroner, Dr. Moylan,
is an elected official and that the Plaintiffs are not civil servants
under Pennsylvania law. Thus the dispute is about whether the
Plaintiffs are members of the Coroner’s personal staff and
therefore not covered employees for purposes of the FLSA.
The District Court applied Teneyuca and granted summary
judgment in favor of the County, concluding that the Plaintiffs
as Deputy Coroners fell within the personal staff exception.
Reviewing the record using the framework set out above, we
believe there are genuine disputes of material fact that render
summary judgment inappropriate on this issue.
First, based on the available record, we are not
convinced that the Deputy Coroners had a sufficiently close
working relationship with Dr. Moylan to be considered his
personal staff. At the outset, we disagree with the District
Court that “there are no disputed facts and the analysis is
straightforward” as to whether the Plaintiffs “worked closely”
with Dr. Moylan. Clews, 461 F. Supp. 3d at 152. The record
is mixed as to the amount of regular contact the Plaintiffs had
with him, and the Plaintiffs’ own deposition testimony was
inconsistent.10 See id. at 153 (acknowledging Detweiler’s
testimony that she does not “speak as much” to Dr. Moylan).
10
A careful reader might notice it is possible to affirm the grant
of summary judgment in favor of the County for Pothering and
not Clews or Detweiler. While it is theoretically possible for
some but not all the Plaintiffs to be members of Dr. Moylan’s
personal staff, we do not see any evidence or allegations from
the record that the Plaintiffs had meaningfully different
working relationships with Dr. Moylan.
19
Compare App. at 68–69 (“Q. How closely did you work with
Dr. Moylan? [Clews]: Actually not close at all . . . . We only
had to contact him for—to get, talk to him about the cause of
death or that at a case. We didn’t—you didn’t deal with him
too often.”) with Suppl. App. at 17 (“Q. How closely did you
work with Dr. Moylan? [Pothering]: Pretty close . . . . Q. How
often would you [work together]? [Pothering]: Could be on a
daily basis.”).
We also think the number of Deputy Coroners
undermines the conclusion that Dr. Moylan worked closely
with all of them. Cf. Montgomery, 34 F.3d at 297 (concluding
the district court erred by granting summary judgment because
the result “would encompass all 113 law enforcement officials
in the [] County” under the personal staff exception and “is
inconsistent with the congressional intent that the exception be
narrowly construed”). The Coroner’s office employed around
twenty Deputy Coroners, see Suppl. App. at 12, and there is no
evidence that the Plaintiffs had different responsibilities than
other Deputy Coroners. We doubt that all of them worked in a
sensitive position of trust and confidence with Dr. Moylan,
though we recognize this is a context-dependent inquiry that
could be influenced by the size of the locality and the specific
job functions.11
We are also unpersuaded by the District Court’s
evaluation of two other factors relevant to determining a close
11
Inversely, the official’s employment of very few people for
a role “does not by itself render the position . . . within the
[official’s] personal staff,” as a small workforce is common in
rural or less populated areas. See United States v. Gregory,
818 F.2d 1114, 1117 (4th Cir. 1987).
20
working relationship—that the Plaintiffs were personally
accountable to the Coroner (Teneyuca factor 2) and that they
“were directly below the [C]oroner in the chain of command”
(Teneyuca factor 5). Clews, 461 F. Supp. 3d at 152. The
Plaintiffs allege they reported not only to Dr. Moylan but also
to Dr. Weber, the Chief Deputy Coroner. They argue that only
the Chief Deputy should be considered a member of the
Coroner’s personal staff, and the other so-called Deputy
Coroners are merely investigators and run-of-the-mill
employees. Indeed, the record does not clearly show whether
Dr. Moylan or Dr. Weber was their more direct supervisor. See
Clews, 461 F. Supp. 3d at 143 (acknowledging that, while on
duty, the Plaintiffs “were either called by Dr. Moylan or his
[C]hief [D]eputy [C]oroner”); Nichols, 921 F.2d at 1113
(“[B]eing personally accountable to someone other than the
elected official means that the employee does not serve solely
at the pleasure of the elected official, but of others as well.”).
Further, if Dr. Moylan died or was removed, it would be Dr.
Weber who would “execute the office of [C]oroner [and]
perform related duties.” 16 Pa. Stat. and Cons. Stat. Ann.
§ 1232-B (West 2021). All this suggests that a jury could
conclude Dr. Weber, rather than the Deputy Coroners, was Dr.
Moylan’s top adviser. Teneyuca, 767 F.2d at 152 (citation
omitted); see also 29 C.F.R. § 553.11(b) (stating that personal
staff “typically does not include individuals who are directly
supervised by someone other than the elected official even
though they may have been selected by the official”);
Montgomery, 34 F.3d at 296 (explaining the exception
“becomes less applicable the lower the particular employee’s
position”).
Although the Deputy Coroners represented the Coroner
in the eyes of the public (Teneyuca factor 3) and likely handled
21
sensitive and confidential information because they were often
the first at the scene of a death (Teneyuca factor 6), those
factors alone cannot justify granting summary judgment for the
County. As the above discussion indicates, there are several
factual disputes about whether Dr. Moylan worked closely
enough with the Plaintiffs to support application of the
personal staff exception; thus granting summary judgment
would require us impermissibly to “weigh evidence or
determine credibility questions.” Hill v. City of Scranton, 411
F.3d 118, 131 (3d Cir. 2005).
Continuing on, we see little to conclude that the Coroner
exercises the required amount of control over the Deputy
Coroners for them to be his personal staff. Although the
Coroner (Dr. Moylan and his predecessor) hired all three
Plaintiffs, the extent of his authority over hiring and firing
decisions is unclear. The District Court acknowledged that
although the Coroner “initiates the hiring and termination
processes,” he must complete a “Personal Action Request” that
is then approved by the Board of Commissioners for final
authorization. Clews, 461 F. Supp. 3d at 151.12 The Court
12
The District Court cited to the Second Class County Code
about the appointment and removal of Deputy Coroners to
conclude that Dr. Moylan has “plenary powers.” Clews, 461
F. Supp. 3d at 151. As explained above in note 1, Schuylkill
County is not a Second Class or Second Class A county and is
thus not subject to the Second Class County Code. See 16 Pa.
Stat. and Cons. Stat. Ann. § 210 (West 2021) (specifying a
county must have more than 500,000 people to be a Second
Class A county and more than 1 million people to be a Second
Class county); see also id. § 3102 (“Except where otherwise
22
viewed the County Commissioners’ approval of the
termination of Pothering and Clews as a “formality” that did
not diminish Dr. Moylan’s authority. Id. at 19. But this is not
clearly supported by the record. For instance, the District
Court reached this conclusion based on its belief that “the
Commissioners approved [the] termination[s] before
discussing the circumstances.” Id. However, their minutes
reveal that, before the vote, Chwastiak explained the overtime
issue to the Commissioners, and one of them asked her a
follow-up question. App. at 37. And while Detweiler
continuing to work as a Deputy Coroner after her termination
suggests Dr. Moylan could override the Commissioners’
action, no one could explain the exact circumstances of her
continued employment. See Oral Arg. Tr. 23:22–24:5. We are
not taking a position on this item, as a reasonable juror could
conclude that, despite these complexities, Dr. Moylan was in
practice the one with the power to hire and fire Deputy
Coroners. Still, based on the facts before us and viewing them
in the light most favorable to the Plaintiffs, we do not agree
that the undisputed evidence shows that Dr. Moylan could
“hire and fire [D]eputy [C]oroners at will.” Clews, 461 F.
Supp. 3d at 151.
The District Court further concluded that “the [C]oroner
exercised a considerable amount of control over [the Deputy
Coroner] position[].” Id. at 21. However, it did not make
specific findings about how Dr. Moylan controlled the
Plaintiffs’ employment (for example, if he set the Plaintiffs’
schedule or handled disciplinary matters). Further, the record
is unclear whether Dr. Moylan or his Chief Deputy exercised
specifically limited, this [Second Class County Code] applies
to all counties of the second class and second class A.”).
23
greater control and supervision over the Deputy Coroners’
work conditions and hours. And even if we were satisfied that
Dr. Moylan exercised personal control over the Deputy
Coroners’ positions, the genuine factual disputes about
whether they worked closely together means summary
judgment is not appropriate at this time.
* * * *
The personal staff exception is meant to carve out from
the FLSA’s protections those who work closely with an elected
official in a sensitive position of trust and confidence and over
whom the official exercises personal control. In this case, we
cannot conclude that the Deputy Coroners in Schuylkill
County fall under the personal staff exception based on
undisputed facts. Thus, we vacate the District Court’s order
granting summary judgment and remand for further
proceedings.
24