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01-2952 Demos v. City of Indianapolis (57760)

By: dmc-admin//September 3, 2002//

01-2952 Demos v. City of Indianapolis (57760)

By: dmc-admin//September 3, 2002//

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“Considering his deposition testimony and the other evidence in the light most favorable to Demos, we find that virtually all of Demos’s duties were administrative. 9 29 C.F.R. § 541.207(a) notes, in part, that ‘discretion and independent judgment [involve] the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. . . .’ Likewise, Demos’s recommendations for action included financial decisions and other commitments that are explicitly identified in 29 C.F.R. § 541.207(d)(2). See 29 C.F.R. §§ 541.2(e)(2), 541.214(a). At a minimum, ‘putting out fires’ for his supervisor meets the discretionary component of § 541.214(a), and recommending the proper allocation of finances and working with outside groups meets the ‘independent judgment’ component as well. The only way that we could conclude that Demos’s activities were primarily non-administrative would be to ignore his deposition testimony and the other undisputed evidence.

“The undisputed evidence shows that Graham was an executive employee. Graham’s position was, on its face, one of executive responsibility. In fact, as Facilities Maintenance Supervisor, most of his work was spent managing other employees. For these reasons, Graham concedes that at least forty percent of his time, he was engaged in exempt executive management duties and managing more than two employees. However, he argues that the remainder of his executive time was spent in record keeping, making him a non-exempt employee. We disagree. The Act’s implementing regulations, see 29 C.F.R. § 541.103(b), speak directly to Graham’s claim, because they specify that ‘the keeping by a supervisor of production or sales records of his own subordinates for use in supervision or control [is] exempt work.’ Therefore, Graham’s challenge fails for two reasons: his primary duties were all clearly executive and the large majority of his time was spent performing those duties. Both of these factors qualify him as an exempt employee under three separate sections of the regulations. See 29 C.F.R. §§ 541.119(a), 541.1(f), 541.103. Lacking any other basis for his non-exemption under the short test, no reasonable juror could conclude that Graham was at any time anything but an exempt executive employee. In sum, we conclude that there are no material issues of fact regarding the plaintiffs’ status as salaried administrative or executive employees exempt from the FLSA.”

Affirmed.

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Williams, J.

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