William Ellington v. City of East Cleveland

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0246p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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WILLIAM ELLINGTON,

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Plaintiff-Appellant,

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No. 11-3700

v.

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Defendants-Appellees. -

CITY OF EAST CLEVELAND; ERIC J. BREWER,

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:10-cv-311—Solomon Oliver, Jr., Chief District Judge.

Argued: May 30, 2012

Decided and Filed: August 6, 2012

Before: DAUGHTREY and CLAY, Circuit Judges; CLELAND, District Judge.*

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COUNSEL

ARGUED: Bruce B. Elfvin, ELFVIN BESSER, Cleveland, Ohio, for Appellant. Ronald

K. Riley, CITY OF EAST CLEVELAND, East Cleveland, Ohio, for Appellees.

ON BRIEF: Bruce B. Elfvin, Barbara Kaye Besser, Stuart Torch, ELFVIN BESSER,

Cleveland, Ohio, for Appellant. Ronald K. Riley, CITY OF EAST CLEVELAND, East

Cleveland, Ohio, for Appellees.

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OPINION

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CLELAND, District Judge. In August 2008, Plaintiff William Ellington accepted

the position of Deputy Clerk of the City Council of East Cleveland and walked into a

political crossfire. The City Council wanted him in, but the then-Mayor, Defendant Eric

*

The Honorable Robert H. Cleland, United States District Judge for the Eastern District of

Michigan, sitting by designation.

1

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 2

Brewer, stood in the way. Not until November 2008, after the resolution of an

approximately three-month-long standoff between the City Council and the Mayor, did

Ellington begin receiving regular paychecks and compensation for wages unpaid since

he had begun performing services.

Ellington later filed this lawsuit in the United States District Court for the

Northern District of Ohio alleging that Defendants’ failure to issue him paychecks

between August 2008 and November 2008 violated the minimum wage and overtime

provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201–219, article II,

section 34a of the Ohio Constitution (Section 34a or § 34a); and the Ohio Minimum Fair

Wage Standards Act (OMFWSA), Ohio Rev. Code §§ 4111.01–.99. On cross-motions

for summary judgment, the district court concluded that Ellington, as an employee of the

City Council, was subject to the “legislative employee” exclusions to the federal and

state minimum wage and overtime provisions and granted summary judgment in favor

of Defendants. In this matter of first impression in this Circuit, we AFFIRM.

I. BACKGROUND

On August 5, 2008, the City Council for the City of East Cleveland (“City

Council”) interviewed Ellington for the position of Deputy Clerk of City Council

(“Deputy Clerk”). Following the interview, the City Council convened an executive

session closed to the public and selected Ellington to fill the position of Deputy Clerk.

The next day Ellington accepted the offer from the Clerk of City Council, Melvin Davis.

Ellington reported to work on or around August 11, 2008. During a special meeting on

August 14, 2008, the City Council ratified its offer of employment to Ellington. Present

at the meeting were Almeta Johnson, the Law Director of the City of East Cleveland, and

the then acting Mayor, Eric Brewer. After the meeting, Mayor Brewer refused to sign

Ellington’s Personnel Transaction Form and directed city employees to refrain from

issuing paychecks to Ellington.1

1

The parties offer competing averments regarding the motive behind Mayor Brewer’s actions.

According to Ellington, Mayor Brewer expressed personal objections to the hiring of Ellington during an

executive session of the City Council on August 28, 2008. Defendants, alternatively, contend that Mayor

Brewer was simply following the advice of Johnson, who informed Mayor Brewer that the City Council’s

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 3

In spite of Mayor Brewer’s refusal to sign off on Ellington’s hiring, Ellington

continued to report to work from August 2008 to November 2008 and received

assignments from City Council members and Davis, but all this while he received no

paychecks.

Ellington initiated a lawsuit against Defendants in the Cuyahoga County

Common Pleas Court in October 2008 seeking recovery of unpaid wages. Two days

after Ellington commenced the lawsuit in state court, the City Council held another

special meeting and passed a resolution commanding that Ellington be paid for his work

as Deputy Clerk. Mayor Brewer vetoed the resolution and again refused to authorize the

issuance of paychecks to Ellington. The standoff between the City Council and the

Mayor finally reached a resolution on November 19, 2008, when Mayor Brewer signed

a City Council resolution authorizing the payment of unpaid wages in the amount of

$8,674.27 to Ellington.

In October 2009, nearly a year after Mayor Brewer authorized payment of

Ellington’s unpaid wages, a panel conducting court-sponsored arbitration in the state-

court lawsuit awarded Ellington $17,348.54 in damages. Defendants apparently

appealed the arbitration award in the common pleas court and sought a trial de novo on

Ellington’s claims. Ellington voluntarily dismissed without prejudice the state-court

action, and filed a verified complaint in the United States District Court for the Northern

District of Ohio, alleging that Defendants failed to pay minimum wages and overtime

in violation of federal and state labor law. In October 2010, Ellington and Defendants

filed independent motions for summary judgment. The district court granted

Defendants’ motion and denied Ellington’s, finding that Ellington did not qualify as an

“employee” subject to the protections of the FLSA, § 34a, or the OMFWSA. Ellington

appeals this order.

August 5 executive session and August 14 special meeting violated Ohio’s “Sunshine Law.” The district

court did not address this apparent disputed fact. Because Mayor Brewer’s motive is irrelevant to a

determination of whether Ellington qualifies as an employee under the FLSA, the issue does not preclude

the grant of summary judgment to Defendants.

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 4

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s grant of summary judgment. United

Steelworkers v. Cooper Tire & Rubber Co., 474 F.3d 271, 277 (6th Cir. 2007). Under

Federal Rule of Civil Procedure 56, summary judgment is proper where “the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” White v. Baxter Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008)

(internal quotation marks omitted). The moving party “bears the initial burden of

identifying those parts of the record which demonstrate the absence of any genuine issue

of material fact.” Id. at 389–90 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). Where the moving party carries its initial burden, the nonmoving party “may

not rest upon its mere allegations or denials of the adverse party’s pleadings, but rather

must set forth specific facts showing that there is a genuine issue for trial.” Moldowan

v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009).

B. Discussion

Ellington asserts two claims of error on appeal. First, he challenges the district

court’s finding that the “legislative employee” exclusions to the FLSA, the OMFWSA,

and § 34a applied to his position as Deputy Clerk. And, second, he argues that the

district court did not appropriately construe the facts in a light most favorable to him as

is required by Federal Rule of Civil Procedure 56.

1. “Legislative employee” exclusions under the FLSA, the Ohio Constitution, and the

OMFWSA

a. The FLSA

In 1938, Congress enacted the FLSA to remedy “labor conditions detrimental to

the maintenance of the minimum standard of living necessary for health, efficiency, and

general well-being of workers.” 29 U.S.C. § 202(a). The FLSA requires, inter alia,

employers to pay employees engaged in commerce a wage consistent with the minimum

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 5

wage established by the Act, id. § 206(a), and “provides that employers may not require

employees to work more than forty hours per workweek unless those employees receive

overtime compensation at a rate of not less than one-and-one half times their regular

pay,” Baden-Winterwood v. Life Time Fitness, Inc., 566 F.3d 618, 626 (6th Cir. 2009)

(citing 29 U.S.C. § 207(a)(1)). The Supreme Court has indicated that the FLSA is to be

construed liberally, “recognizing that broad coverage is essential to accomplish the goal

of outlawing from interstate commerce goods produced under conditions that fall below

minimum standards of decency.” Tony & Susan Alamo Found. v. Sec’y of Labor

(Alamo), 471 U.S. 290, 296 (1985) (citing Powell v. U.S. Cartridge Co., 339 U.S. 497,

516 (1950)).

In spite of the expansive nature of the FLSA’s coverage, the Act expressly

defines “employee” so as to exclude a number of groups of working individuals from its

provisions. See 29 U.S.C. § 203(e) (“Except as provided in paragraphs (2), (3), and

(4), the term “employee” means any individual employed by an employer.”). Individuals

who work for a state or a political subdivision thereof are not “employees” under the Act

if they are not subject to the state’s or political subdivision’s civil service laws and fall

within one of the following enumerated exclusions established by Congress: (1) elected

officials, id. § 203(e)(2)(C)(ii)(I); (2) individuals who are chosen by an elected official

to be a member of his or her personal staff, id. § 203(e)(2)(C)(ii)(II); (3) individuals

appointed to a policymaking position by an elected official, id. § 203(e)(2)(C)(ii)(III);

(4) immediate advisors to elected officials who counsel the official on his or her

constitutional or legal powers, id. § 203(e)(2)(C)(ii)(IV); and (5) employees of the

legislative branch or legislative body of a State or political subdivision that are not

employed by a legislative library, id. § 203(e)(2)(C)(ii)(V). Although an individual may

be subject to more than one exclusion under § 203(e)(2)(C)(ii)—consider, for example,

a city council member who is presumably both an elected official and an employee of

the legislative body of a political subdivision—courts have developed independent

standards to determine whether a given exclusion applies to an individual employed by

a state or political subdivision. See, e.g., Birch v. Cuyahoga Cnty. Probate Ct., 392 F.3d

151, 158–61 (6th Cir. 2004) (applying separate standards to determine whether the

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 6

“personal staff” and “policymaker” exclusions to the FLSA and Title VII of the Civil

Rights Act of 1964 applied to a probate court magistrate); c.f. Nichols v. Hurley, 921

F.2d 1101, 1108 (10th Cir. 1990) (declining to adopt Fourth Circuit’s “personal staff”

exclusion analysis because it mistakenly considered “factors that concern two other

exceptions to the definition of employee, not the personal staff exception”).

Relevant to this case is the exclusion from coverage of individuals employed by

the legislative branch or body of a political subdivision:

(2) In the case of an individual employed by a public agency, [employee]

means—

...

(C) any individual employed by a State, political

subdivision of a State, or an interstate governmental

agency, other than such an individual—

(i) who is not subject to the civil service laws of

the State, political subdivision, or agency which

employs him; and

(ii) who—

...

(V) is an employee in the legislative branch or

legislative body of that State, political

subdivision, or agency and is not employed by the

legislative library of such State, political

subdivision, or agency.

29 U.S.C. § 203(e) (emphasis added). Although this case provides us with the first

opportunity to interpret and apply the “legislative employee” exclusion, the statutory

language is unambiguous. The exclusion has three conjunctive elements: (1) the

individual must be employed by a state or a political subdivision thereof; (2) he or she

must not be subject to the civil service laws of the State or political subdivision; and

(3) he or she must be employed by the legislative branch or body of a State or political

subdivision but not by a legislative library. When these elements are satisfied, a plaintiff

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 7

does not fall within the coverage of the FLSA and may not maintain a claim under the

Act.

Ellington does not contest the district court’s conclusion that the first two

elements of the exclusion are satisfied in this case. As to the first element, the district

court observed that both sides, despite disagreeing as to who Ellington’s ultimate

employer was, acknowledged that Ellington was employed by a political subdivision of

the state. Ellington v. City of E. Cleveland, No. 10-CV-311, 2011 WL 2149364, at *4

(N.D. Ohio May 31, 2011) (unpublished). Nor is it disputed that the civil service laws

of Ohio and the City of East Cleveland do not apply to Ellington’s position as Deputy

Clerk. The district court, after examining Ohio law and the City of East Cleveland’s

Charter, found that “[Ellington’s] employment is an ‘unclassified’ position under the

Charter, and [Ellington] has not offered any evidence to rebut case law and Defendants’

evidence that the civil service laws do not govern ‘unclassified’ employees in Ohio.”

Id.

Ellington argues that the district court erroneously found the third element of the

exclusion satisfied by ignoring the holding in Birch, a case he contends is binding

precedent and precludes a finding that he is a legislative employee. Birch, however, is

not controlling in this case, as it only addressed the scope of the “personal staff” and

“policymaking” exclusions of the FLSA. It does not discuss, nor even cite, the FLSA’s

“legislative employee” exclusion. See Birch, 392 F.3d at 158–61. Ellington’s entire

argument that the district court applied the wrong analysis is premised on conflating the

FLSA’s “legislative employee” exclusion with its “personal staff” exclusion. Were we

to accept Ellington’s contention that Birch’s “personal staff” analysis applies equally to

the determination of whether an individual is a legislative employee, the “legislative

employee” exclusion would become mere surplusage in the FLSA, a result we must

avoid if at all possible when interpreting statutory provisions. See Astoria Fed. Sav. &

Loans Ass’n v. Solimino, 501 U.S. 104, 112 (1991) (“[W]e construe statutes, where

possible, so as to avoid rendering superfluous any parts thereof.”); Montclair v.

Ramsdell, 107 U.S. 147, 152 (1883) (“It is the duty of the court to give effect, if possible,

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 8

to every clause and word of a statute, avoiding, if it may be, any construction which

implies that the legislature was ignorant of the meaning of the language it employed.”).

Thus, Birch is not binding precedent in this case.

Because the City Council is undoubtedly the legislative body of the City of East

Cleveland, see City of East Cleveland Charter § 98 (“The legislative power of the City,

except as limited by this Charter, shall be vested in a Council consisting of five

members.”), the exclusive inquiry with respect to the third element is whether an

employment relationship existed between Ellington and the City Council. This inquiry

is no different than the one courts make when determining generally whether a defendant

is an “employer” of a plaintiff so as to permit recovery under the FLSA against the

defendant.

The FLSA defines “employer” to include “any person acting directly or indirectly

in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). “‘The

remedial purposes of the FLSA require the courts to define “employer” more broadly

than the term would be interpreted in traditional common law applications.’” Dole v.

Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir. 1991) (quoting McLaughlin v.

Seafood, Inc., 867 F.2d 875, 877 (5th Cir.1989) (per curiam)). In other words, the

employment relationship determination “is not fixed by labels that parties may attach to

their relationship nor by common law categories nor by classifications under other

statutes.” Powell, 339 U.S. at 528. Instead, the “economic reality” of the relationship

between a plaintiff and a defendant “determines whether their relationship is one of

employment.” Solis v. Laurelbrook Sanitarium & Sch. Inc., 642 F.3d 518, 522 (6th Cir.

2011) (citing Alamo, 471 U.S. at 301).

This “economic reality” standard, however, is not a precise test susceptible to

formulaic application. See Donovan v. Brandel, 736 F.2d 1114, 1116 (6th Cir. 1984).

It prescribes a case-by-case approach, whereby the court considers the “circumstances

of the whole business activity,” id.; see Dunlop v. Dr. Pepper-Pepsi Cola Bottling Co.

of Dyersburg, Tenn., 529 F.2d 298, 301 (6th Cir. 1976) (stating that in applying the

economic reality standard, “the authoritative decisions require that the courts consider

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 9

the total relationship rather than isolated factors”). Relevant factors to consider may

include whether the plaintiff is an integral part of the operations of the putative

employer, Dr. Pepper-Pepsi Cola, 529 F.2d at 301; the extent of the plaintiff’s economic

dependence on the defendant, id.; the defendant’s “substantial control of the terms and

conditions of the work” of the plaintiff, Falk v. Brennan, 414 U.S. 190, 195 (1973); the

defendant’s authority to hire or fire the plaintiff, Braddock v. Madison Cnty., 34 F. Supp.

2d 1098, 1107 (S.D. Ind. 1998) (citing Barfield v. Madison Cnty., 984 F. Supp. 491, 497

(S.D. Miss. 1997)); and whether the defendant maintains the plaintiff’s employment

records and establishes the rate and method of payment, id. Consistent with the case-by-

case approach prescribed by Donovan, these factors are not exhaustive and “‘[n]o one

factor is dispositive; rather, it is incumbent upon the courts to transcend traditional

concepts of the employer-employee relationship and assess the economic realities

presented by the facts of each case.’” Dole, 942 F.2d at 966 (quoting Donovan v. Sabine

Irrigation Co., 695 F.2d 190, 195 (5th Cir. 1983)).

Here, the economic realities of Ellington and the City Council’s relationship

overwhelmingly support a finding that an employment relationship existed. First, the

City Council had substantial authority to hire and fire Ellington. The City Council

interviewed Ellington, offered him the position of Deputy Clerk, and tirelessly worked

to ensure that he was compensated for his services. Plenary authority to remove

Ellington from the position was also vested in the City Council: “The Deputy Clerk shall

hold office at the pleasure of Council and shall be removable from office at any time by

vote of a majority of the members of the Council with or without cause, and no reason

need be given for discharge.” (Deputy Clerk of Council Job Posting.) Second, as

Deputy Clerk, Ellington’s duties and work assignments directly corresponded to the

activities of the City Council. Ellington received his work assignments from individual

members of the City Council and the Clerk of Council, and the Deputy Clerk’s duties,

as set forth in the position’s job posting, included: (1) serving all members of the City

Council equally; (2) being informed of all matters concerning the City Council so that

in the absence of the Clerk of Council, the Deputy Clerk may effectively administer the

City Council’s affairs; and (3) preparing periodic reports for the City Council. Only one

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 10

conclusion can be drawn from these facts: Ellington was an employee of the City

Council.

Ellington, relying on the factors addressed in Birch’s analysis of the “personal

staff” and “policymaker” exclusions under the FLSA and Title VII, see Birch, 392 F.3d

at 158–61, argues that, as Deputy Clerk, he was not a legislative employee because the

City Council’s power to hire him was not absolute, his professional relationship with the

City Council was not intimate, he did not represent the City Council in the eyes or the

public, his job duties were entirely administrative and clerical in nature, and he did not

formulate policy or draft legislation. In the first instance, contrary to Ellington’s

contentions, the record suggests that his working relationship with the City Council was,

in fact, intimate. Ellington received assignments directly from council members and was

responsible for administering the affairs of the City Council when the Clerk of Council

was absent. Moreover, although the City Council may not have had “plenary” control

of his hiring, the record clearly reflects the City Council’s substantial involvement in his

hiring.

Additionally, unlike the “policymaker” exclusion, Ellington’s lack of

involvement in the development of legislation is immaterial to determining whether the

City Council was his employer. Nor does the purported administrative and clerical

nature of his duties affect the employment relationship determination. The language of

the “legislative employee” exclusion is categorical: where an individual is employed by

the legislative branch or body of a state or political subdivision and is not subject to the

civil service laws of that State or political subdivision, he is excluded from FLSA

coverage, irrespective of the fact that the individual may not be a policymaker or on the

personal staff of an elected official. The district court’s conclusion that Ellington was

employed by the City Council, and thus not an “employee” as that term is defined by the

FLSA, was correct.

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 11

b. The Ohio Constitution and the OMFWSA

The district court also correctly held that Ellington’s state-law claim fails because

he is excluded from the wage and overtime protections afforded by the Ohio Constitution

and the OMFWSA. Article II, section 34a of the Ohio Constitution states, in relevant

part, that Ohio employers must pay their employees working in the State a specified

minimum wage and provides that “[l]aws may be passed to implement [the section’s]

provisions and create additional remedies, increase the minimum wage rate and extend

the coverage of the section.” The OMFWSA is one such law the state legislature has

passed to implement the provisions of § 34a. The OMFWSA reaffirms the minimum

wage rate established in the Ohio Constitution, Ohio Rev. Code § 4111.02, and further

guarantees employees overtime pay, Ohio Rev. Code § 4111.03. Like the FLSA, both

§ 34a and the OMFWSA limit the scope of the minimum wage and overtime provisions

to individuals who qualify as “employees.” They also both expressly adopt the FLSA’s

definition of “employee.” Ohio Const. Art. II, § 34a (“As used in this section

. . . “employee” . . . [has] the same meaning[] as under the federal Fair Labor Standards

Act . . . .”); Ohio Rev. Code § 4111.14(B) (“In accordance with Section 34a of Article

II, Ohio Constitution, the term[] . . . ‘employee’ . . . [has] the same meaning[] as in the

‘Fair Labor Standards Act of 1938’ . . . . As used in division (B) of this section

. . . ‘[e]mployee” means individuals employed in Ohio, but does not mean individuals

who are excluded from the definition of “employee” under 29 U.S.C. 203(e) . . . .”

(emphasis added)). Accordingly, this court having already determined that Ellington

was not an “employee” under the FLSA, he also does not qualify as an employee subject

to the benefits of § 34a and the OMFWSA.

2. The district court correctly applied Federal Rule of Civil Procedure 56 and construed

the facts in a light most favorable to Ellington

Ellington’s second claim of error, that the district court did not construe the

evidence in a light most favorable to him as required by Federal Rule of Civil Procedure

56, is also unavailing. Specifically, Ellington argues (1) that the district court’s

purported finding that he was both an employee of the City of East Cleveland and the

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 12

City Council precludes an award of summary judgment in favor of Defendants and

(2) that the district court erred in not holding that a jury could have reasonably

concluded that Defendants’ assertion of the “legislative employee” exclusion as a

defense to his federal and state-law claims was pretext for their actual motives for not

paying him.

Ellington’s first contention, that the district court erred in granting summary

judgment after it purportedly found him to be jointly employed by the City of East

Cleveland and the City Council, is a variation of an argument Ellington made in the

lower court. That argument, made in the alternative to his primary contention that he

was not a legislative employee, proceeded in two steps. First, he argued that he was a

joint employee of the City Council and the City of East Cleveland because the City

Council and the City were wholly distinct entities from each other. He then maintained

that because he is an employee of both the City Council and the City, he was not fully

excluded from FLSA coverage because the City was not a legislative branch or body.

(See Pl.’s Br. Supp. Mot. Summ. J. 12.)

As the district court observed, accepting this faulty reasoning “allows the

exception to the employer-employee relationship to be swallowed by the general rule.”

Ellington, 2011 WL 2149364, at *5. What Ellington perceives as a judicial finding in

his favor is, in fact, the district court’s explanation of why Ellington’s joint employer

argument eviserates the “legislative employee” exclusion. The district court stated:

A deputy clerk of council is both an employee of a city and a legislative

body, because the legislative body is technically a part of city

government. Recognizing this, the FLSA “legislative employee”

exception excludes an individual who is “employed by . . . [a] political

subdivision of a State,” and that political subdivision is a “legislative

branch or legislative body.”

Id. (alterations in original) (citations omitted) (citing 29 U.S.C. § 203(e)(2)(c)(ii)(V)).

Indeed, the existence of and the relationship between the first and third elements of the

“legislative employee” exclusion—that the individual must be both “employed by a

State, political subdivision of a State, or an interstate governmental agency,” 29 U.S.C.

No. 11-3700 Ellington v. City of E. Cleveland, et al. Page 13

§ 203(e)(2)(C), and also be an employee of a State’s or political subdivision’s legislative

body, 29 U.S.C. § 203(e)(2)(C)(ii)(V)—accounts for Ellington’s contention that he is

employed by both the City Council and the City of East Cleveland. To conclude that

Ellington, who has been found to be an employee of a legislative body, is covered by the

FLSA because, as Deputy Clerk of Council, he is also part of the City of East

Cleveland’s workforce would effectively excise the FLSA’s “legislative employee”

exclusion. Such a conclusion is both unreasonable and not supported by the language

of the exclusion.

Ellington has also likely forfeited his argument that Defendants invoked the

“legislative employee” exclusion as pretext for their true motive behind failing to pay

him his wages because he did not raise it in the district court. See Meade v. Pension

Appeals & Review Comm., 966 F.2d 190, 194 (6th Cir. 1992) (“The general rule is that

the circuit court will not address issues on appeal that were not raised and ruled upon

below.”). Nonetheless, the fact that Defendants may have raised the exclusion after they

failed to timely pay Ellington is not relevant in this case. As is discussed in greater

detail above, Ellington is excluded from coverage under the FLSA and OMFWSA.

Once exclusion from coverage is established, Defendants’ motives or rationales for their

actions are immaterial.

III. CONCLUSION

We AFFIRM the district court’s order granting summary judgment to

Defendants.