Anthony Mart in v. Indiana Michigan Power Company, d/b/a American Electric Power

*The Honorable Peter C. Economus, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0277P (6th Cir.)
File Name: 04a0277p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ANTHONY MART IN,
Plaintiff-Appellant,
v.
INDIANA MICHIGAN POWER
COMPANY, d/b/a American
Electric Power,
Defendant-Appellee.
X
-
-
-
->
,
-
-
-
-
-
N
No. 02-2343
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 00-00218—Wendell A. Miles, District Judge.
Argued: March 17, 2004
Decided and Filed: August 23, 2004
Before: NORRIS and COLE, Circuit Judges;
ECONOMUS, District Judge.*
2 Martin v. Indiana Mich. Power Co. No. 02-2343
_________________
COUNSEL
ARGUED: Stephen D. Turner, LAW, WEATHERS &
RICHARDSON, Grand Rapids, Michigan, for Appellant.
Joseph J. Vogan, VARNUM, RIDDERING, SCHMIDT &
HOWLETT, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Stephen D. Turner, Gregory N. Longworth,
LAW, WEATHERS & RICHARDSON, Grand Rapids,
Michigan, for Appellant. Joseph J. Vogan, Peter A. Smit,
VARNUM, RIDDERING, SCHMIDT & HOWLETT, Grand
Rapids, Michigan, for Appellee.
COLE, J., delivered the opinion of the court, in which
ECONOMUS, D. J., joined. NORRIS, J. (p. 21), delivered a
separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant
Anthony Martin claims that his employer, Indiana Michigan
Power Company, d/b/a American Electric Power (“AEP”),
violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201-19, by failing to pay him time-and-a-half for hours
worked in a given week in excess of forty hours. AEP
counters that Martin is a bona fide administrative or
professional employee, exempt from the FLSA’s overtime
requirements. The parties filed cross-motions for summary
judgment, and the district court granted summary judgment
for AEP, holding that Martin was exempt from overtime pay
requirements because he was both an administrative employee
and a computer professional. For the reasons below, we
REVERSE the judgment of the district court and REMAND
for entry of summary judgment in favor of the plaintiff, and
for calculation of damages, including liquidated damages.

-- 1 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 3
I. BACKGROUND
Prior to AEP’s reorganization of its Information
Technology (“IT”) department, Martin held the position of
“Computer Security/Standards Technician,” which AEP
classified as nonexempt. On November 1, 1998, when the
department was reorganized, Martin’s title was changed to
“IT Support Specialist,” which AEP classified as an exempt
position. According to AEP, the purpose of the
reorganization was to “push down responsibilities to
workers,” “to delegate more authority,” and to “flatten the
organization.”
Mike Thornburg, Martin’s supervisor, describes the
function of his IT Support team as follows: “Maintaining the
computer workstation software, troubleshooting and
repairing, network documentation, that is our primary job.
We were a maintenance organization that takes care of
computer systems.” The computers that Martin works on are
workstations (or “PCs”) at individual desks connected to a
local area network (“LAN”); Martin does not work on the
plant process computer – “which deals with the plant, what’s
going on as far as the reactor operators”– which is a different
system.
When people at the plant have problems with their
computers, they call the help desk where the help desk
employees put the problems into a database as “help desk
tickets,” which Martin prints out. Martin responds to these
help desk tickets. He goes to the location indicated where he
attempts to determine the nature of the problem, to
“troubleshoot” it to determine how to proceed, and to repair
the problem if possible. Martin installs software, such as
Microsoft’s Office 97, on individual workstations. He
troubleshoots Windows 95 problems and installs provided
software patches.
If Martin cannot fix a problem, he will report the problem
and how he tried to fix it to Thornburg. Thornburg will
4 Martin v. Indiana Mich. Power Co. No. 02-2343
decide whether to request service from the manufacturer or
order a replacement part or unit. Martin, however, does not
decide or make recommendations as to whether a piece of
equipment must be serviced or replaced. Nor has he written
reports on his troubleshooting or repair activities. He has not
recommended the purchase of any equipment, hardware, or
software, although Thornburg considers Martin’s comments
on printers and problems “valuable” in his own decision
making process.
In addition to processing help desk tickets, Thornburg has
directed Martin to complete a variety of other tasks. First, for
a period of time while the nuclear reactors were shut down
between November 1998 and May 2000, Martin relocated
workstations to trailers and temporary buildings. Sometime
in 2000, Cook brought in contractors to move workstations.
Thornburg testified that, prior to that, everyone in IT Support
– including Thornburg and Martin – was spending so much
time moving workstations that they were not able to carry out
their primary job as a maintenance organization.
Second, Martin was assigned to install hardware and cable
for the network, including network components such as hubs,
switches, and routers, when Cook was physically expanding
the LAN to trailers and new buildings. Martin worked in the
wiring closets: terminating the cables (that is, putting
connectors on the ends of the cables), plugging them into the
hubs, and verifying that they were connected by phoning the
system administrator to confirm that the hubs had appeared
on the network. Martin was not involved in designing the
configuration of either the cables or the hardware he installed,
nor does he install any programs onto the network. Third, on
January 2, 2001, Thornburg assigned Martin to clean up the
wiring closets, to make sure the master network diagram
accurately reflected what was physically in the closets and
update it if necessary, and to get the locks changed, if
possible, so that one key would open all the closets.

-- 2 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 5
Shortly before Thornburg’s February 28, 2001, deposition,
Martin received another assignment. According to
Thornburg, he assigned Martin “to review a Windows 2000
operating system that we have just developed.” At the time
of the deposition, Thornburg explained that Martin was in the
“process” of “preparing” to do the review. For the
assignment, Martin was supposed to “review the desktop
operating system in our applications to make sure they work
as he uses them in the field. And if not, I expect him to make
recommendations for corrections.” This assignment –
apparently made after the litigation commenced – is the first
of this type for Martin. As Thornburg put it, Martin’s duties
were “evolving.”
Martin has no computer certifications and no degree
beyond high school. He has taken one course in
microcomputing, a class in using Windows 2000, and four,
week-long hands-on computer training classes. Martin has a
work bench located in a common work area – also referred to
as a “workshop” in the depositions. Martin does not have his
own phone line; everyone in the area shares a “shop phone.”
He wears a blue short-sleeved work shirt with two pockets on
the front, a name badge that says “Tony,” and a badge that
says “D.C. Cook, CSS Section”; blue work pants; and work
boots.
II. ANALYSIS
This Court reviews de novo a district court’s grant of
summary judgment. Stephenson v. Allstate Ins. Co., 328 F.3d
822, 826 (6th Cir. 2003). Summary judgment is appropriate
if, after examining the record and drawing all inferences in
the light most favorable to the non-moving party, there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. FED.R.CIV.P. 56(c);
Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.
1992).
6 Martin v. Indiana Mich. Power Co. No. 02-2343
1In additional to this shifting of the burden of proof, Martin argues
that the employer has to prove each element to a higher burden of proof
than to a preponderance of the evidence, citing Ale v. Tennessee Valley
Auth., 269 F.3d 680, 69 1 n.4 (6th C ir. 2001) (“The d efendant must
establish through ‘clear and affirm ative evidence’ that the employee
meets every re quirement of an exemp tion.”). Ale and the other circuits
that have articulated this “clear and affirmative evidence” language, see
The FLSA requires employers to pay their employees time-
and-a-half for work performed in excess of forty hours per
week, 29 U.S.C. § 207(a)(1), but exempts employers from
this requirement with respect to individuals “employed in a
bona fide executive, administrative, or professional capacity.”
29 U.S.C. § 213(a)(1). To avoid paying overtime to Martin,
AEP must prove that he falls within one of these exempt
categories. AEP argues that Martin is exempt as both an
“administrative” employee and a “computer professional,”
which is a subclass of “professional” employees.
The exemptions to the FLSA’s overtime provisions are “to
be ‘narrowly construed against the employers seeking to
assert [them],’” Douglas v. Argo-Tech Corp., 113 F.3d 67, 70
(6th Cir. 1997) (quoting Arnold v. Ben Kanowsky, Inc., 361
U.S. 388, 392 (1960)), and the employer bears not only the
burden of proof, but also the burden on each element of the
claimed exemption. Id. Because the burden of proof is
shifted, Martin is entitled to summary judgment unless the
defendant can come forward with evidence at least creating a
genuine issue of material fact as to whether Martin meets
each and every element of the exemption. If AEP fails to
proffer such evidence, not only must its motion for summary
judgment be denied, but summary judgment for Martin must
be granted. See Schaefer v. Ind. Mich. Power Co., 358 F.3d
394, 407 (6th Cir. 2004) (Suhrheinrich, J. concurring)
(asserting that Schaefer was entitled to summary judgment
because “[i]n my view, AEP has, at a minimum, failed to
create a genuine issue of fact on the question of whether
Schaefer's primary duty ‘includes work requiring exercise of
discretion and independent judgment.’”).1

-- 3 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 7
Klinedinst v. Swift Investments, Inc., 260 F.3d 12 51, 1254 (11th Cir.
2001); Donovan v. United Video, Inc., 725 F.2d 57 7, 581 (10th Cir.
1984), have d one so witho ut explanation of what the phrase means.
Martin, perhaps drawing from the similarity to the phrase “clear and
convincing evidence” urges us to ho ld that Ale sets a heightened
evidentiary standard. Alternatively, “clear and affirmative evidence” may
simply be a way of restating what we have said above: the employer
bears the burden of pro ving each and every element of the exemptio n in
a remedial statute that is to be narrowly construed against the employer.
Since the meaning of the phrase would not change the result in this case,
any exposition by us on the intentions of the Ale court would be mere
dicta.
For purposes of this analysis, we view the facts in the light
most favorable to AEP. The facts regarding Martin’s
workplace tasks are largely undisputed. The parties do
disagree, however, about how much time Martin spends on
hardware versus software tasks and how much time Martin
spent moving work stations with or without the help of
contractors. These disputes, however, are ultimately
irrelevant because neither Martin’s hardware nor software
work exempts him, and, regardless of how much time Martin
spent moving computers, his others tasks are no more exempt.
A. Computer Professional Exemption
To establish that Martin is a “computer professional” under
the regulations and therefore not entitled to overtime, AEP
must demonstrate that (1) the employee “is compensated on
a salary or fee basis at a rate of not less than $250 per week”
or that the employee “is compensated on an hourly basis at a
rate in excess of 6 1/2 times the minimum wage”; (2) the
employee’s “primary duty consists of the performance of . . .
[w]ork that requires theoretical and practical application of
highly-specialized knowledge in computer systems analysis,
programming, and software engineering, and [the employee
is] employed and engaged in these activities as a computer
systems analyst, computer programmer, software engineer, or
other similarly skilled worker in the computer software field
. . . ”; and (3) the employee’s primary duty “includes work
8 Martin v. Indiana Mich. Power Co. No. 02-2343
requiring the consistent exercise of discretion and judgment.”
29 C.F.R. §§ 541.3(a)(4), 541.3(e).
First, AEP must establish that Martin is payed on a salary
or fee basis at a rate of not less than $250 per week or that he
is compensated on an hourly basis at a rate in excess of 6 1/2
times the minimum wage. 29 C.F.R. § 541.3(e). The
evidence establishes that Martin is paid a salary. It does not
matter that Martin must make up partial-day absences or that
Martin’s hours are prescribed and he must obtain approval
from his supervisor to vary his hours. See Renfro v. Ind.
Mich. Power Co., 370 F.3d 512, 516 (6th Cir. 2004);
Schaefer, 358 F.3d at 400. Martin argues in his reply brief
that he is not a salaried employee because AEP pays him
straight overtime for some overtime hours, based on Kennedy
v. Commonwealth Edison Co., 242 F.Supp.2d 542 (C.D.Ill.
2003), which subsequently has been vacated and reconsidered
at Kennedy v. Commonwealth Edison Co., 252 F.Supp.2d 737
(C.D.Ill. 2003). We need not consider this novel (and only
partially briefed) argument, however, because we can decide
Martin’s status on the ground below.
AEP must raise a genuine issue of fact regarding whether
Martin’s “primary duty consists of the performance of . . .
[w]ork that requires theoretical and practical application of
highly-specialized knowledge in computer systems analysis,
programming, and software engineering, and [whether he is]
employed and engaged in these activities as a computer
systems analyst, computer programmer, software engineer, or
other similarly skilled worker in the computer software field.”
29 C.F.R. §§ 541.3(a)(4). Thus, although Martin is not a
systems analyst, programmer, or software engineer, he could
still be exempt from overtime if his work “requires theoretical
and practical application of highly-specialized knowledge in
computer systems analysis, programming, and software
engineering.”
The district court concluded that Martin was a computer
professional: “Martin falls within the exemption for a

-- 4 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 9
professional employed in a computer-related occupation:
there is no genuine dispute that his work requires highly-
specialized knowledge of computers and software, and the
evidence shows that he customarily and regularly exercises
discretion and independent judgment in his work.” (emphasis
added). The district court made an understandable mistake,
one that arises from the common perception that all jobs
involving computers are necessarily highly complex and
require exceptional expertise. However, the regulations
provide that an employee’s primary duty must require
“theoretical and practical application of highly-specialized
knowledge in computer systems analysis, programming, and
software engineering” not merely “highly-specialized
knowledge of computers and software.” This is an important
difference. The former is a narrower class of jobs that
requires a different level of knowledge and training than the
latter. Further, it is a distinction which will only become
more relevant as the range of computer-related jobs continues
to broaden.
Martin does not do computer programming or software
engineering; nor does he perform systems analysis, which
involves making actual, analytical decisions about how
Cook’s computer network should function. Rather, Martin’s
tasks – installing and upgrading hardware and software on
workstations, configuring desktops, checking cables,
replacing parts, and troubleshooting Windows problems – are
all performed to predetermined specifications in the system
design created by others. As Martin testified, he is provided
the standard “desktop” for installation on the computers he
configures, but he is not involved in determining what the
desktop should look like. Thornburg explained, as we noted
above, that IT Support is “a maintenance organization that
takes care of computer systems.”
29 C.F.R. § 541.303(b) further clarifies the work involved
in systems analysis, programming, and software engineering
that falls under the exemption:
10 Martin v. Indiana Mich. Power Co. No. 02-2343
To be considered for exemption under § 541.3(a)(4), an
employee's primary duty must consist of one or more of
the following:
(1) The application of systems analysis techniques and
procedures, including consulting with users, to determine
hardware, software, or system functional specifications;
(2) The design, development, documentation, analysis,
creation, testing, or modification of computer systems or
programs, including prototypes, based on and related to
user or system design specifications;
(3) The design, documentation, testing, creation or
modification of computer programs related to machine
operating systems; or
(4) a combination of the aforementioned duties, the
performance of which requires the same level of skills.
AEP selectively identifies certain words from this regulation
– particularly “consulting with users” and “testing” – and
applies them out of context. There is simply no evidence that
Martin “consults with users, to determine hardware, software,
or system functional specifications.” Martin “consults with
users” for purposes of repair and user support, not to
determine what “hardware, software, or system functional
specifications” the Cook facility will employ, as a systems
analyst might. Likewise, when Martin does “testing,” he is
testing things to figure out what is wrong with a workstation,
printer, or piece of cable so that he can restore it to working
order. He is not doing the type of testing that is involved in
creating a system, determining the desired settings for a
system, or otherwise substantively affecting the system.
Indeed, he is merely ensuring that the particular machine is
working properly according to the specifications designed and
tested by other Cook employees. Maintaining the computer
system within the predetermined parameters does not require
“theoretical and practical application of highly-specialized

-- 5 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 11
knowledge in computer systems analysis, programming, and
software engineering.”
Martin has one project that might fall under the category of
systems analysis: the Windows 2000 review. This project
was apparently assigned after the instant lawsuit commenced,
and, according to Thornburg, Martin was only “in the process
right now of preparing to review a Windows 2000 operating
system,” as of the date of Thornburg’s deposition. Even were
we to conclude that this project is systems analysis,
Thornburg was unable to provide any estimate of the amount
of time that he expected Martin would spend on the project
but did indicate elsewhere that Martin had various other
assignments. This single project does not make systems
analysis Martin’s primary duty.
Finally, the dissent suggests that there is a dispute of
material fact regarding whether Martin took training courses
teaching him to develop standards. Even if such a factual
dispute exists, it is not material because it is the job that one
does, not the job that one is trained to do, that determines
exempt status. We are required to analyze how the employee
is actually spending his time, see 29 C.F.R. § 541.3(e); Ale v.
Tennessee Valley Auth., 269 F.3d 680, 689-90 (6th Cir. 2001),
not what he is trained to do (but is not doing as his primary
duty) or what he is training to do in the future. Nor are
trainees bona fide computer professionals. 29 C.F.R.
§ 541.303(c). Only at such a time that systems analysis
becomes Martin’s primary duty can AEP classify him as a
bona fide computer professional.
Since AEP has only presented one task – the Windows
2000 project – that might fall under the “computer
professional” exemption and since, even viewing the facts in
the light most favorable to AEP, that task is not Martin’s
primary duty, AEP has failed to raise a genuine issue of
material fact regarding whether Martin is a bona fide
computer professional. AEP has not met its burden under the
computer professional exemption.
12 Martin v. Indiana Mich. Power Co. No. 02-2343
B. Administrative Exemption
To establish that Martin is a bona fide administrative
employee under the applicable Department of Labor (“DOL”)
regulations, AEP must demonstrate that: (1) the employee is
“compensated on a salary or fee basis at a rate of not less than
$250 per week”; (2) the employee’s “primary duty consists of
. . . [t]he performance of office or nonmanual work directly
related to management policies or general business operations
of his employer or his employer’s customers”; and (3) the
employee’s primary duty “includes work requiring the
exercise of discretion and independent judgment.” 29 C.F.R.
§§ 541.2, 541.214.
Martin is entitled to summary judgment because AEP has
neither established that, nor raised a genuine issue of material
fact regarding whether, Martin’s primary duty is “directly
related to management policies or general business operations
of his employer or his employer’s customers.” 29 C.F.R.
§§ 541.2(a)(1), 541.214(a). This provision, in addition to
describing the types of activities performed by an exempt
employee, “limits the exemption to persons who perform
work of substantial importance to the management or
operation of the business of his employer or his employer’s
customers.” 29 C.F.R. § 541.205(a).
AEP’s only argument that Martin’s work is “directly related
to management policies or general business operations of the
employer” is that Martin’s work is not production work. That
is, he is not producing electricity because he is not an
“operator” running the nuclear power equipment – and
therefore his work is administrative and thus “directly related
to management policies or general business operations of the
employer.” Under AEP’s theory, shippers of radioactive
waste, the individuals who don radiation suits and perform
maintenance work on the reactors, the janitorial staff, the
security guards, the cooks in the company cafeteria, and
various other workers including Martin are all doing work
“relating to the administrative operations of the business”

-- 6 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 13
purely because they do not operate the nuclear reactors. See
Schaefer, 358 F.3d at 402 (holding that a shipper of
radioactive material was not doing administrative work). We
have rejected the argument that all work that is not production
work is automatically “directly related to management
policies or general business operations of the employer.” Id.
at 402-403. Indeed, AEP made and we rejected this very
argument in Schaefer. AEP attempts to distinguish Schaefer
by arguing that the waste that was being shipped in Schaefer
was a direct by-product of the production of electricity. But
such an argument misses the point. AEP’s error is in
concluding that all work is either related to “the
administrative operations of the business” or production
work. The regulations do not set up an absolute dichotomy
under which all work must either be classified as production
or administrative. Rather, the regulations distinguish
production work from the administrative operations of the
business at 29 C.F.R. § 541.205(a) – thus production work
cannot be administrative – and then go on to define the
administrative operations of the business at 29 C.F.R.
§ 541.205(b). To accept AEP’s alternate reading of 29 C.F.R.
§ 541.205(a) as setting up an absolute dichotomy would
render the further definition of “the administrative operations
of the business” in 29 C.F.R. § 541.205(b) utterly
superfluous.
Martin’s primary job duty does not “relat[e] to the
administrative operations” at Cook. “The administrative
operations of the business include the work performed by so-
called white-collar employees engaged in ‘servicing’ a
business as, for example, advising the management, planning,
negotiating, representing the company, purchasing, promoting
sales, and business research and control.” 29 C.F.R.
§ 541.205(b). As we have noted, Thornburg described his
team as a “maintenance organization that takes care of
computer systems.” Martin is in no way involved in
“advising the management, planning, negotiating,
representing the company, purchasing, promoting sales, and
business research and control.” See also Renfro, 370 F.3d at
14 Martin v. Indiana Mich. Power Co. No. 02-2343
517 (AEP’s “planners” were bona fide administrative
employees where their primary duty fell within this definition
of “servicing” the business). Martin’s job, instead, is to assist
in keeping the computers and network running to the
specifications and designs of others.
Nor is Martin’s work “of substantial importance to the
management or operation of the business of his employer.”
29 C.F.R. § 541.205(a). Work that is of substantial
importance “is not limited to persons who participate in the
formulation of management policies or in the operation of the
business as a whole,” but includes employees whose work
“affects policy or whose responsibility it is to execute or carry
it out.” 29 C.F.R. § 541.205(c). And an employee’s work
need not affect operation of the business as a whole to meet
this criterion: it is enough that the employee’s “work affects
business operations to a substantial degree, even though their
assignments are tasks related to the operation of a particular
segment of the business.” Id.
AEP never presents an argument that Martin’s work itself
is “of substantial importance to the management or operation
of the business of his employer.” Indeed, AEP could not
successfully argue that Martin’s work itself is “of substantial
importance to the management or operation of the business of
his employer” because Martin makes no decisions that affect
even the small segment of the company’s operations in which
his work is performed. He does not determine what types of
workstations, network, hardware, or software AEP employs;
he is not involved in the design or development of AEP’s
network; he does not decide what software will be available
to AEP’s computer users or determine how that software will
be configured; and he does not decide or recommend when
equipment must be serviced or replaced. Rather, he sets up
and repairs parts of a system wholly designed and approved
by others. There is no evidence that he has any input into the
nature of the computer resources available to AEP employees.

-- 7 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 15
AEP argues that Martin’s work is “complex,” not “routine”
or “clerical,” and thus of substantial importance. AEP derives
this requirement from a portion of the regulation that states:
“An employee performing routine clerical duties obviously is
not performing work of substantial importance . . . .” 29
C.F.R. § 541.205(c)(2). AEP attempts to derive the negative
from this proposition and say that duties that are complex
rather than “routine clerical work” are of substantial
importance. This argument is the logical equivalent of saying
that because a chihuahua is obviously not a cat, then every
animal that is not a chihuahua is a cat. Without addressing
the issue of whether Martin’s work is actually “complex,” it
is sufficient to say that mere complexity would not make his
work substantially important under the regulations.
AEP next argues that Martin’s work is of “substantial
importance” because of the value of the systems he works on
and the consequences of mistakes. The regulations, however,
explain that it is the work itself that must be of substantial
importance – not the size of the consequences or loss that may
result from improper performance of the employee’s duties.
As the regulations note, an employee operating a very
expensive piece of equipment, a messenger boy entrusted
with carrying large sums of money, and an inspector for an
insurance company can all cause their employers serious loss
by failure to perform their jobs properly, but “such
employees, obviously, are not performing work of such
substantial importance to the management or operation of the
business that it can be said to be ‘directly related to
management policies or general business operations’ as that
phrase is used in § 541.2.” 29 C.F.R. § 541.205(c)(2) (giving
the examples of the messenger boy, the equipment operator,
and the insurance inspector).
AEP also argues that the level of supervision is relevant to
the inquiry, citing an unpublished case, affirmed without
comment by the Eleventh Circuit. Easter v. Florida Power &
Light Co., Case No. 97-153-CIV-OC-19 (M.D. Fla. June 7,
1999), slip op. at 9, aff’d 229 F.3d 1168 (11th Cir. 2000)
16 Martin v. Indiana Mich. Power Co. No. 02-2343
(table). While the fact that an employee works independently
might shore-up a conclusion that a worker is doing work of
“substantial importance,” that fact standing alone has little
relevance to the inquiry. Night janitorial workers, for
example, often work independently and without direct
supervision, as do any number of skilled tradesmen such as
nonexempt electricians and plumbers.
Finally, AEP suggests we should consider Martin’s salary
as evidence that his work is of substantial importance since he
makes more than “the average blue-collar worker.” This
argument is an attempt to draw attention away from the fact
that Martin’s work itself is not substantially important under
the regulations. Salary may be used to determine the primary
duty of an employee who performs both exempt and
nonexempt tasks by comparing his salary to the salary of
employees who are just doing the nonexempt tasks, see 29
C.F.R § 541.103, not to determine the nature of those tasks
themselves. Salary differential does not answer the
substantial importance question. The fact that a nonexempt,
unionized, skilled plumber may earn more than an exempt
public school teacher does not change the nature of the
plumber’s work.
In sum, the evidence viewed in the light most favorable to
AEP neither establishes that nor raises a genuine issue of
material fact regarding whether Martin’s work is “directly
related to management policies or general business operations
of his employer or his employer’s customers.” Thus, not only
is AEP not entitled to summary judgment, but Martin is
entitled to summary judgment.
C. Liquidated Damages
An employer who violates the FLSA’s overtime provisions
is liable to the employee in the amount of the unpaid overtime
compensation “and in an additional equal amount as
liquidated damages.” 29 U.S.C. § 216(b). Liquidated
damages under the FLSA “are compensation, not a penalty or

-- 8 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 17
punishment.” Elwell v. Univ. Hosp. Home Care Serv., 276
F.3d 832, 840 (6th Cir. 2002) (internal quotes omitted).
Although liquidated damages are the norm and have even
been referred to as “mandatory,” see, e.g., Martin v. Cooper
Elec. Supply Co., 940 F.2d 896, 907 (3rd Cir. 1991)
(emphasis in original), Congress has provided the courts with
some discretion to limit or deny liquidated damages. See 29
U.S.C. § 260; Martin, 940 F.2d at 907. Under this exception,
if an employer demonstrates both good faith and reasonable
grounds for the incorrect classification, then a court may
exercise its discretion to limit or deny liquidated damages.
Elwell, 276 F.3d at 840; Martin, 940 F.2d at 907. But “[t]his
burden on the employer is substantial,” Elwell, 276 F.3d at
840, and if the employer fails to carry it, the court may not
limit or deny liquidated damages. Elwell, 276 F.3d at 840;
Martin, 940 F.2d at 907.
To prove that it acted in good faith, an employer “must
show that [it] took affirmative steps to ascertain the Act’s
requirements, but nonetheless violated its provisions.”
Martin, 940 F.2d at 908. “Good faith” means more than
merely not willfully misclassifying the employee. Elwell,
276 F.3d at 841 n.5. The employer has an affirmative duty to
ascertain and meet the FLSA’s requirements, and an employer
who negligently misclassifies an employee as exempt is not
acting in good faith. Id. Thus, the violation of the FLSA
does not have to be intentional for Martin to recover
liquidated damages, and AEP has the burden of establishing
that it acted in good faith when affirmatively determining that
Martin was exempt. See Martin, 940 F.2d at 908.
AEP argues that it acted in good faith because it relied on
a form that Martin filled out during the reorganization of the
IT department – an“employee mapping form” – on which
Martin specified his job level under the new organization as
“IT Support Specialist I.” Reliance on this mapping does not,
however, establish good faith for a variety of reasons.
18 Martin v. Indiana Mich. Power Co. No. 02-2343
First, AEP cannot claim reliance on Martin’s choice of
position when AEP itself instructed Martin to choose the IT
Support job family, all of which positions are exempt. Martin
testified at deposition that he chose the IT Support Specialist
group rather than the technician group because he was
instructed to do so by Thornburg. AEP has not disputed this
proposition.
Second, even if AEP could rely in good faith on Martin’s
choice of IT Support Specialist I, it could not, in good faith,
classify any employee in that position as exempt without
further information because that position description includes
both nonexempt and (likely) exempt tasks. The first of the six
tasks listed in the IT Job Family Skills Matrix for IT Support
Specialist I roughly describes the nonexempt user support
work that Martin actually performs. The second task listed –
“[p]articipate in the review, evaluation, analysis, and
recommendation of information systems and procedures” –
may well be exempt. The third task, which requires the
employee to “[m]aintain records, documentation, manuals,
and prepare status reports,” is amorphous and appears in the
vast majority of the IT position descriptions, including the
nonexempt technician positions. The remaining items are not
job tasks per se but merely require the employee to maintain
certain skills. But, of course, the exempt work must be the
employee’s primary duty, and the job description provides no
indication the second of the task listed is the primary duty. If
anything, the order of the tasks, the name of the job family
(IT Support), the “typical job tracks” in the job family
description, and the mapping instructions (“Support
staff/Technicians to maintain [hardware and software] and
help customers use them”), all suggest that the first,
nonexempt task is primary. Thus, to classify any employee
who chose IT Support Specialist I as exempt, AEP would
need more information, and the FLSA’s good-faith
requirement requires AEP to seek it out.
But AEP’s misclassification of Martin was not, in fact,
based on this lack of information. AEP actually classifies the

-- 9 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 19
entire IT Support job family as exempt, even though positions
II through IV do not include any exempt tasks. Thus, AEP
would have incorrectly classified Martin as exempt regardless
of what level within the job family he chose.
Third, even if Martin had incorrectly picked an actual
exempt position in the mapping, AEP cannot claim to have
relied on it in good faith when it affirmatively knew that
Martin was doing nonexempt work. In addition to
Thornburg’s knowledge of Martin’s actual tasks, two
documents labeled “job descriptions” which list all the IT
employees’ job descriptions demonstrate that AEP knew what
kind of work Martin was doing. These documents – dated
August 2000 and December 2001 – list Martin’s job
description as follows: “Workstations, Network Printers,
Wiring Closet Hardware, Pagers, Radio Controlled Cranes,
Fiber Optics.” AEP cannot claim – in the face of this job
description – that it actually thought that Martin’s primary job
duty was “participat[ing] in the review, evaluation, analysis,
and recommendation of information systems and procedures.”
The FLSA requires the employer to make FLSA exemption
decisions based on the employee’s actual job duties, not the
employee’s job title, Ale, 269 F.3d at 689-90, and the good
faith requirement imposes an affirmative burden. AEP may
not rely on incorrect information in the face of its actual
knowledge of Martin’s job activities.
Fourth, the date of reclassification provides additional
evidence that AEP was not acting in good faith. AEP actually
classified Martin as exempt on November 1, 1998, just as the
Cook nuclear reactors were being taken offline for an
eighteen-month shutdown, plunging the plant into a period of
non-standard activity and hours. As Thornburg explained:
The last three years at this facility have been very non-
standard. What I mean by that is we have been in a
shutdown outage for three years. We all did non-
standard tasks during that three year period of time to
install complexes, we install trailers, we install buildings
20 Martin v. Indiana Mich. Power Co. No. 02-2343
that are no longer at this facility for that three year
period. . . . [W]e were all busy doing whatever we had to
do to restart the facilities. . . . [W]e were all doing
unusual things. We weren’t in normal configuration.
Changing an employees nonexempt status – just as the
employer is altering his duties – based solely upon a mapping
based on duties performed before the change is not in good
faith.
Fifth, when AEP was done with its reorganization, no
employees in the IT department worked in positions classified
as nonexempt. AEP has an affirmative obligation under the
act not to misclassify employees as exempt, and an
affirmative obligation to inquire into classification, Martin,
940 F.2d at 908-09, obligations which it failed. AEP was not
acting in good faith when it implemented this reorganization
which classified all IT workers as exempt. Finally, even if
AEP actually believed that it had made the correct
classification (which alone is not sufficient to avoid liquidated
damages), Martin immediately complained about his
classification as exempt, putting AEP on notice of the
problem.
Some of this evidence suggests willfulness and some
merely suggests negligence, but none of it establishes good
faith. Because AEP has not established that it acted in good
faith when it classified Martin as exempt, this Court and the
district court are without discretion to limit or deny liquidated
damages. We need not reach the question of the objective
reasonableness of AEP’s classification of Martin as exempt.
III. CONCLUSION
For the reasons stated above, we REVERSE the decisions
of the district court and REMAND for entry of summary
judgment in favor of plaintiff, and for calculation of damages,
including liquidated damages.

-- 10 of 11 --

No. 02-2343 Martin v. Indiana Mich. Power Co. 21
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
ALAN E. NORRIS, Circuit Judge, concurring-in-part and
dissenting-in-part. I concur in the majority’s ruling insofar as
it concludes that the grant of summary judgment in favor of
defendant was in error. However, I disagree with the
majority’s conclusion that there is insufficient evidence in the
record for defendant to avoid summary judgment. Genuine
issues of material fact exist regarding whether plaintiff was
properly categorized as a “computer professional.” In
particular, deposition testimony reveals that plaintiff had not
only been assigned “the Windows 2000 project,” but had been
sent to training courses aimed at teaching him how to
“develop standards that [are] use[d] on [defendant’s]
operating systems.” As plaintiff attended these courses, his
duties “evolv[ed].” This testimony demonstrates that
plaintiff’s primary duties might well have classified him as a
“computer professional.” Accordingly, I would remand the
case for trial.

-- 11 of 11 --