Bunn v. Newland et al
ORDER denying 16 Motion for Summary Judgment; denying 17 Motion for Partial Summary Judgment, by Magistrate Judge Craig B. Shaffer on 10/20/15.(nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Craig B. Shaffer
Civil Action No. 14-cv-02500-CBS
LEROY BUNN AND MARK NEWLAND,
CITY AND COUNTY OF DENVER, COLORADO,
Magistrate Judge Shaffer
Plaintiffs Leroy Bunn and Mark Newland (collectively “Plaintiffs”) seek monetary
damages pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., on the
basis that the City and County of Denver (“the City”) failed to provide overtime pay for the
hours they worked in excess of forty hours per week. This matter comes before the court on the
dueling motions for summary judgment filed by the parties. (Docs. 16 & 17). For the following
reasons, the court denies both motions.
Plaintiffs filed their Complaint (Doc. 1) on September 10, 2014. In their Complaint, they
contend that (1) they have been misclassified as “exempt” employees; and (2) the City has failed
to properly pay them overtime wages. They allege that — despite being classified as exempt —
they perform the same work as their non-exempt co-workers, are not managers, do not exercise
independent judgment or discretion, and apply only well-established techniques, procedures, and
specific standards described in manuals or other sources. See Doc. 1 at ¶¶ 15(a)-(h), 18-19, 41.
They contend that they have been misclassified and, as a result, are entitled to overtime payment
for the on-call hours that they have worked. Id. at ¶¶ 52-60.
Following a period of discovery, Plaintiffs and the City filed competing motions for
summary judgment. Docs. 16 & 17. In its motion, the City argues that the undisputed material
facts establish that Plaintiffs are properly classified as administrative employees and are,
therefore, exempt from the provisions of the FLSA. Doc. 16 at 16-22. And the City contends
that, in the alternative, Plaintiffs are exempt from the FLSA under the “computer employee
exemption.” Id. at 22-26. In their motion for partial summary judgment, Plaintiffs contend that,
based on the undisputed facts, the City cannot meet its burden of establishing that they are
exempt from the FLSA. See generally Doc. 17. Plaintiffs also contend that this court should not
address the City’s arguments regarding the computer employee exemption because the City
neither included this defense in the original scheduling order nor requested to amend the
scheduling order. Doc. 23 at 2-3. The parties filed responses (Docs. 22 &23) in opposition to the
competing motions, as well as replies (Docs. 26 & 27) in support of their own respective
Plaintiffs are both employed as “911 Systems Administrators II” in the 911
Communications Center within the City’s Department of Safety. They work full-time and
undisputedly earn more than $455 per week. According to the parties’ filings, Plaintiffs’ duties
include installing and configuring operating systems, troubleshooting and resolving issues with
servers and databases, researching necessary changes, maintaining hardware and software,
desktop support, creating “playbooks” for various operating systems, and working with vendors
and customers. In addition, both Plaintiffs are required to be “on-call” once every four weeks;
however, they are not paid overtime wages for these on-call hours because they are classified as
In March 2014, Plaintiffs and two co-workers, Christopher Beard and Barry Bjork1,
received new titles2 as well as upward salary adjustments. Mr. Beard and Mr. Bjork were both
classified as “non-exempt,” while Plaintiffs remained “exempt” from the FLSA overtime
provisions. Plaintiffs, however, allege that there is no difference between the duties that they
perform and the duties performed by Mr. Beard and Mr. Bjork. They contend that they have been
misclassified and are, therefore, entitled to overtime payment for all of the hours that they are
required to be on-call.3
Summary Judgment Pursuant to Fed. R. Civ. P. 56
Summary judgment is appropriate only if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter–Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “[A] ‘judge’s function’ at summary judgment
is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.’” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v.
Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material
Mr. Beard and Mr. Bjork are each employed as “911 Systems Administrators I.” This title was
changed from “Associate Information Technology Systems Administrator.”
Plaintiffs’ position was previously titled “Senior Information Technology Systems
Because the court concludes that there is a disputed issue of material fact as to whether
Plaintiffs are properly classified as administrative employees, it does not reach the question of whether
Plaintiffs are entitled to pay for the entire time they are on-call.
fact depends upon whether the evidence presents a sufficient disagreement to require submission
to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson,
477 U.S. at 248–49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S.
Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an
element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory
that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson,
477 U.S. at 248.
“Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities
Service Com, 391 U.S. 253, 289 (1968)).
The Fair Labor Standards Act and the Administrative Employee Exemption
Under the FLSA, employers are required to pay their employees no less than one and
one-half times their regular hourly rate for each hour the employee works in excess of forty
hours per week. 29 U.S.C. § 207(a)(1). However, this provision does not apply to “any employee
in a bona fide . . . administrative . . . capacity.” 29 U.S.C. § 214(a)(1). A bona fide administrative
employee is an employee (1) who is compensated on a salary basis at a rate of not less than $455
per week; (2) whose primary duty is the performance of office or non-manual work directly
related to the management or general business operations of the employer or the employer’s
customers; and (3) whose primary duty includes the exercise of discretion and independent
judgment with regard to matters of significance. 29 C.F.R. § 541.200(a).
According to the regulations, an employee’s work is “directly related to the management
or general business operations” if the employee performs work directly related to assisting with
the running or servicing of the business, as opposed to working on a production line or selling a
product in a retail or service establishment. 29 C.F.R. § 541.201(a). The phrase “discretion and
independent judgment” involves the “comparison and evaluation of possible courses of conduct,
and acting or making a decision after the various possibilities have been considered.” 29 C.F.R.
§ 541.202(a). The term “matters of significance” refers to the level of importance or consequence
of the work performed. Id. The exercise of discretion and independent judgment may consist of
recommendations for action rather than the actual taking of action. That an employee’s decision
may be subject to review does not mean that the employee is not exercising independent
judgment. Id. However, the exercise of discretion must involve “more than the use of skill in
applying well-established techniques, procedures or specific standards described in manuals or
other sources.” 29 C.F.R. § 541.202(e).
In their briefs, the parties have cited numerous cases regarding the application of the
FLSA’s administrative exemption. And they have argued extensively regarding whether their
respective cases are relevant to — or distinguishable from — the specific facts at issue here.
Factual scenarios aside, however, all of these cases are clear that “[i]n FLSA cases, a court must
first determine the employee’s primary duty, and then determine whether that primary duty
disqualifies the employee from [the] FLSA’s protections.” Maestas v. Day & Zimmerman, LLC,
664 F.3d 822, 827 (10th Cir. 2012) (citations omitted). Although the time spent performing each
duty is a useful guide in determining whether a duty is primary, there is no requirement that an
employee spend more than 50 percent of his or her time performing exempt work. 29 C.F.R. §
541.700 (b). The regulations also recommend examining other factors such as “the relative
importance of the exempt duties as compared with other types of duties; . . . the employee’s
relative freedom from direct supervision; and the relationship between the employee’s salary and
the wages paid to other employees for the kind of nonexempt work performed by the employee.”
Id. “Because the primary duty inquiry presents a question of fact, summary judgment is proper
only if there [is] no genuine dispute regarding plaintiffs’ primary duties.” Maestas, 664 F.3d at
828; see also Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640, 649 (6th Cir. 2013) (noting that
whether duties required discretion and independent judgment involved questions of fact).
Computer Employee Exemption
In its motion, the City contends for the first time that Plaintiffs are exempt under the
computer employee exemption of the FLSA. This provision specifically exempts “any employee
who is a computer systems analyst, computer programmer, software engineer, or other similarly
skilled worker.” 29 U.S.C. § 213(a)(17). The court declines to address this argument, but not for
the reasons articulated by Plaintiffs.
In its motion, the City lists the elements of the computer employee exemption and then,
in some detail, describes two cases that have applied this exemption. Doc. 16 at 22-25. However,
the brunt of the City’s argument regarding the application of the exemption is limited to a single
sentence: “Plaintiffs also met the standard for the computer professional exemption, through
testimony of Mr. Gonzales, Mr. Garcia and Mr. Cardenas.” Id. at 25. The City does not cite any
specific evidence in support of this assertion, nor does it offer any analysis other than a
conclusory restatement of the statutory elements. Id. at 25-26. Indeed, the City fails to apply
either of its cited cases to the facts at issue here. It simply states, without more, that the job duties
involved in those cited case are analogous to the Plaintiffs’ duties in this case. Id. The court will
not address such undeveloped and perfunctory arguments.4 See Murrell v. Shalala, 43 F.3d 1388,
The court’s conclusion with regard to the motion for summary judgment does not preclude the
City from presenting evidence that might be relevant to this defense at trial. As the court noted at the
September 15, 2015 hearing (Doc. 28), the court may amend the pleadings to conform them to the
evidence presented at trial. See Fed. R. Civ. P. 15(b).
1389 n.2 (10th Cir. 1994) (finding that inadequately framed or undeveloped arguments are
insufficient to invoke review).
With regard to the administrative exemption, the court has reviewed, in its entirety, the
voluminous record in light of the relevant law, and finds that it cannot grant either motion for
Here, there is conflicting evidence in the record as to what Plaintiffs’ primary duties
specifically entail. Although it is undisputed that Plaintiffs’ duties include installing and
configuring operating systems, the job description5 for a Senior Information Technology Systems
Administrator (Doc. 16-4) implies that Plaintiffs’ responsibilities went beyond simply “applying
well-established techniques, procedures or specific standards described in manuals or other
sources.” 29 C.F.R. § 541.202(e). In particular, the job description suggests that Plaintiffs work
on important, complex projects and do, in fact, exercise discretion in performing their duties.
Specifically, the description states: “Guidelines are generally but not always clearly applicable,
requiring the employee to exercise judgment in selecting the most pertinent guideline, interpret
precedents, adapt standard practices to differing situations, and recommend alternative actions in
situations without precedent.” Doc. 16-4 at 1. See also Id. at 2 (describing the Plaintiffs’ essential
duties as including (among other things) “Develop[ing], test[ing], and implement[ing] complex
scripts”; “Develop[ing], maintain[ing], and publish[ing] complex custom reports”; “perform[ing]
lead work over subordinate employees or project management duties”); Doc. 17-6 at 6 (Plaintiff
Plaintiffs and the City have submitted documentary evidence in support of their respective
motions for summary judgment. The court notes that none of these documents are accompanied by
affidavits that would authenticate them or support their admissibility. However, given that neither party
has objected to the use of these documents, the court considers them.
Newland testifying that the job description was accurate to the extent it states the guidelines are
not always applicable).
In addition, the City offered evidence that Plaintiffs both created “playbooks” and wrote
complex operating procedures that were not otherwise available from vendors. See Doc. 16-11 at
22-23, 32, 35-37 (Anthony Gonzales testifying that Plaintiffs wrote complex standard operating
procedures); see also Doc. 26-1 at ¶ 8 (David Garcia attesting that Plaintiffs wrote playbooks
specific to the 911 Communications Center that did not have significant language from vendors).
These projects apparently required independent research and initiative on the part of both
Plaintiffs. Doc. 16-11 at 30-31 (Anthony Gonzales testifying regarding the extensive research
performed by Plaintiff Bunn); see also Doc. 26-2 at ¶6 (Anthony Gonzales attesting that
Plaintiffs are required to “take lead responsibility on tasks, . . . provide additional support and
research on tasks, and . . . independently maintain expertise on certain tasks”).
Further, Plaintiffs were considered to be “lead” technicians, which — according to the
evidence — entailed “planning,  coordinating,  scheduling, working with . . . customers to
make sure the requirements are understood, working with a vendor to make sure they understand
all of the processes or steps they need to go through in order to complete it successfully.” Doc.
22-4 at 13 (testimony of David Garcia regarding the responsibilities of a lead technician). And
the evidence shows that Plaintiff Newland was responsible for training Mr. Bjork on certain
processes. Doc. 22-4 at 6 (testimony of David Garcia).
The record also suggests that Plaintiffs exercised, at least some, discretion in performing
their duties. Doc. 16-11 at 22-23, 38-39 (Anthony Gonzales testifying that Plaintiffs chose the
procedures that they wanted to write); Doc. 16-15 at 39 (David Garcia testifying that Plaintiffs
chose certain playbooks to write and were assigned others); see also Doc. 17-6 at 6 (Plaintiff
Newland testifying that they don’t always have to go to a supervisor when troubleshooting
issues). And the record also shows that Plaintiffs worked independently with little oversight.
Doc. 26-1 at ¶ 11 (David Garcia attesting that after making recommendations and receiving
approval, “Plaintiffs carry out the projects with little oversight”); see also Doc. 16-4 (job
description stating that the “employee receives assignments and is expected to carry them out
through to completion with substantial independence”); Doc. 16-6 at 16 (Plaintiff Newland
testifying that he “tend[ed] to agree” with the portion of the job description stating that he
exercised “substantial independence”).
However, Plaintiffs’ affidavits6 and portions of their deposition testimony characterize
their primary duties quite differently. As described by Plaintiffs, their duties involve applying
specific standards or performing routine work over which they had little discretion. Doc. 16-1 at
21 (Plaintiff Bunn testifying that Anthony Gonzales was the one who made the decisions); Doc.
16-6 at 16 (Plaintiff Newland testifying that — although he had independence — managers were
very involved in all of the projects); Doc. 23-1 at ¶¶ 15, 17, 20 (affidavit of Plaintiff Newland
attesting that he used well-established techniques to perform his duties and that David Garcia
“micro-managed” his performance); Doc. 23-2 at ¶ 24 (affidavit of Plaintiff Bunn attesting that
he is closely supervised by David Garcia and requires his approval for all decisions).
Both Plaintiffs have disputed the complexity of their duties. Doc. 16-1 at 22 (Plaintiff
Bunn characterizing his work as transcription); Doc. 16-6 at 20 (Plaintiff Newland testifying that
In their response to the City’s motion, Plaintiffs each submitted an affidavit challenging many of
the City’s “undisputed” facts. Although it is not entirely clear, the City seems to contend that these
affidavits are attempting to create “sham” issues of fact. The court concludes, however, that these
affidavits do not contradict the Plaintiffs’ prior deposition testimony, and the City has not offered any
specific citations or argument otherwise. Further, portions of these affidavits are directly addressed to the
City’s new arguments regarding the computer employee exception, as well as clarifying certain portions
of the deposition testimony that Plaintiffs contend has been misconstrued. Therefore, the court finds that
these are not “sham” affidavits that must be disregarded.
he follows vendor-provided instructions that anyone could use); Doc. 17-6 at 6 (Plaintiff
Newland characterizing troubleshooting as going through a predetermined checklist of
questions); Doc. 23-1 at ¶¶ 16, 17 (Plaintiff Newland attesting that some of the procedures he
wrote were very simple and that they were based on existing vendor procedures); Doc. 23-2 at ¶¶
5-8, 11, 14 (Plaintiff Bunn attesting that his tasks are not necessarily more complicated than
those done by non-exempt employees).
For example, Plaintiff Bunn testified that the majority of his time is spent installing and
configuring operating systems and working on workstations — which included replacing
monitors and keyboards, and rewiring desks. Doc. 16-1 at 31. Indeed, he characterized himself as
a “desktop specialist.” Id.; see also Doc. 23-2 at ¶11 (characterizing one of his projects as “data
entry and correction”). Likewise, Plaintiff Newland attested that the majority of his time is spent
installing and configuring operating systems. Doc. 23-1 at ¶¶ 3-4. He also testified that the
process of updating certain systems merely involved following a set of vendor-provided
instructions. Doc. 16-6 at 20. In addition, Plaintiffs both testified that the task of “creating
processes and procedures” was more properly characterized as simply documenting steps that
already existed for certain procedures. Doc. 16-6 at 18 (testimony of Plaintiff Newland); Doc.
16-1 at 22 (Plaintiff Bunn characterizing the process of “creating” procedures as transcribing
Further, Plaintiffs have maintained that the work they perform is the same as the work
performed by employees who have been classified as non-exempt. Doc. 17-7 at 5, 10 (Plaintiff
Bunn testifying the associate IT administrators and the senior IT administrators performed the
same work); Doc. 23-1 at ¶ 9 (Plaintiff Newland attesting that they have the same job as nonexempt employees). And Plaintiff Newland insisted that being a “lead” technician meant that he
was the point of contact for the vendor, as opposed to having any supervisory authority over any
other employees. Doc. 17-6 at 7.
Based upon the foregoing, the court finds that the parties have presented sufficient
evidence to create a genuine issue of material fact as to the nature of Plaintiffs’ duties.
Resolution of this dispute necessarily asks the court to make a credibility determination. But it is
not the court’s role to make such determinations at this stage of the litigation. See Zia Trust Co.
ex rel. Causey v. Montoya, 597 F.3d 1150, 1153 n. 2 (10th Cir. 2010) (stating that the district
court correctly noted that it was inappropriate to weigh the credibility of the sworn deposition
testimony in evaluating entitlement to summary judgment and citing Seamons v. Snow, 206 F.3d
1021, 1026 (10th Cir. 2000) (“It is axiomatic that a judgment may not evaluate the credibility of
witnesses in deciding a motion for summary judgment.”)). The exact nature of Plaintiffs’ duties
is material to determining their discretion and independent judgment and, ultimately, to
determining whether the administrative exemption to the FLSA’s overtime requirement will
apply. Consequently, entry of summary judgment is inappropriate and a trial is required.
WHEREFORE, for the foregoing reasons, it is hereby ORDERED that Defendant’s
Motion for Summary Judgment (Doc. 16) is DENIED. It is FURTHER ORDERED that
Plaintiffs’ Motion for Partial Summary Judgment (Doc. 17) is DENIED.
DATED at Denver, Colorado, this 20th day of October, 2015.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge
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