Drexler v. TEL NEXX, INC., et al
Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. For the foregoing reasons, Defendants' Motion for Summary Judgment (Docket No. 104 ) on Counts I and II is ALLOWED. Drexler's Motion for Summary Judgment on Liability (Docket N o. 110 ) is DENIED. The Court previously allowed Drexler's motion to withdraw his only remaining claim--one alleging retaliation. See Docket No. 171 . Therefore, the Clerk shall enter final judgment for the defendants. (Geraldino-Karasek, Clarilde)
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
TEL NEXX, INC.; TOKYO ELECTRON U.S.
HOLDINGS, INC.; TOKYO ELECTRON AMERICA, )
INC.; THOMAS WALSH; CHRISTINA CHU;
and REZWAN LATEEF,
MEMORANDUM AND ORDER
July 20, 2017
Pro se plaintiff Joshua Drexler sued his former employer,
TEL NEXX, Inc. (TEN), subsidiary entities, and a number of
current and former employees of the companies. The Court
(Woodlock, J.) previously allowed in part and denied in part
Defendants’ motion to dismiss.1 See Drexler v. TEL NEXX, Inc.,
125 F. Supp. 3d 361, 379 (D. Mass. 2015). Currently pending are
the parties’ cross-motions for summary judgment (Docket Nos.
104, 110) on Drexler’s unpaid overtime wage claims under the
federal Fair Labor Standards Act (FLSA) and Massachusetts law.
The case was reassigned on April 27, 2017. See Docket No.
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Because Drexler was an exempt employee under the
administrative-employee exemption, the Court ALLOWS Defendants’
Motion for Summary Judgment (Docket No. 104) and DENIES
Plaintiff’s Motion for Summary Judgment (Docket No. 110).
When all reasonable inferences are drawn in the non-moving
party’s favor, the following facts are treated as undisputed
except where stated.2
TEN manufactures complex, expensive semiconductor
fabrication equipment for the production of chips used in smart
phones and other products. TEN charges customers between $1.5
and $3.5 million for the equipment it produces. See Affidavit of
Yoel Roznitsky, March 16, 2017 (Roznitsky Aff.), Docket No. 107,
Ex. 2 at ¶ 8. In May 2012, Tokyo Electron U.S. Holdings, Inc.
(TEH) acquired NEXX Systems, Inc. (NEXX). TEN is a wholly owned
subsidiary of TEH. See Rule 30(b)(6) Deposition of Vickie Lee,
Oct. 26, 2016 (Lee 30(b)(6) Dep.), Docket No. 107, Ex. 1, 6:258:7, 12:21-13:16, 16:5-10. Individual defendants Thomas Walsh,
In the weeks before the Court heard argument on the crossmotions for summary judgment, Defendants filed three motions to
strike certain portions of Drexler’s filings. Docket Nos. 135,
138, 149. The motions are DENIED. For purposes of ruling on the
summary judgment motions, the Court considers the evidence in
the record consistent with Fed. R. Civ. P. 56(c)–(e).
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Christina Chu, and Rezwan Lateef were TEN employees during the
relevant time period.3
Drexler attended the Massachusetts Institute of Technology,
where he took courses in physics, math, chemistry, and English,
but did not graduate. See Deposition of Joshua Drexler, March 2,
2016 (Drexler Dep.), Docket No. 107, Ex. 3, 10:19-22, 11:7-12.
In the 1970s, Drexler earned an undergraduate degree in
economics at the University of Wisconsin at Madison. Drexler
Dep. 10:24-11:1. Drexler later earned a Master’s in Business
Administration at the University of New Hampshire. Drexler Dep.
11:2-6. Drexler held a number of jobs between graduating from
the University of Wisconsin and starting to work for TEN’s
predecessor. His job immediately prior to working for TEN’s
predecessor was in “technical sales” at Alase, which involved
informing customers about machine capability and drafting data
sheets. Drexler Dep. 13:9-16:23, 20:2-21:1. To learn about the
machine’s capabilities, Drexler interviewed the inventor and
conducted additional research. Drexler Dep. 21:3-8.
Drexler’s Technical Writing Job
Drexler first began working for TEN’s predecessor in the
late 1990s, when he was hired on a contract basis to draft a
Barry Mayer, TEH’s President, was originally named in the
complaint. See Docket No. 1, Ex. 2. Mayer was dismissed with
prejudice, by joint stipulation, on October 21, 2016. See Docket
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manual for a product that had already been shipped to a customer
in Taiwan. Drexler Dep. 27:2-28:11. From the start of his
contract work with TEN until he was hired full-time in 2005,
Drexler performed technical writing duties. Drexler Dep. 31:1417.
In January 2006, NEXX converted Drexler from his role as
“senior technical writer consultant,” an independent contractor
position, to a full-time employee role in light of concerns
raised by a human resources official that Drexler did not
qualify as an independent contractor under Internal Revenue
Service regulations. See Deposition of Donna Tinsley, Oct. 18,
2016 (Tinsley Dep.), Docket No. 107, Ex. 5, 8:9-10:15. As a
result NEXX offered Drexler a position as a “payroll-enrolled
employee,” a position which he accepted. Tinsley Dep. 13:18-24.
A NEXX employee determined that Drexler’s role qualified as
exempt under the FLSA. Tinsley Dep. 21:18-22:3; Lee 30(b)(6)
Dep. 65:1-22. However, no contemporaneous written job
description or determination of FLSA exemption status appears in
the record. On December 8, 2005, NEXX sent Drexler an offer
letter for a position of “Sr. Technical Writer.” Deposition of
Lori Vitale, Oct. 18, 2016 (Vitale Dep.), Docket No. 107, Ex. 6,
at Ex. 1. The letter stated that Drexler’s salary would be
$77,000 annually, paid on a biweekly basis. Vitale Dep., at Ex.
1. According to a former NEXX human resources employee, offer
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letters were based on templates, and those that used the term
“salary” reflected an exempt position, while offer letters that
used the term “hourly rate” reflected a non-exempt position.
Vitale Dep. 11:20-12:6.
Drexler contends that he understood his compensation to be
based on a spreadsheet sent to him in November 2005 by then-CEO
Dr. Richard Post. Affidavit of Joshua Drexler, Apr. 10, 2017
(Drexler Aff.), Docket No. 128, ¶¶ 38-39. Drexler interpreted
the spreadsheet as stating that he would work 40 hours per week
on average. Drexler Aff. ¶ 38. When TEN acquired NEXX, in 2012,
Drexler received a new offer letter (dated Apr. 9, 2012) stating
that his annual salary would be $88,997.48, paid biweekly. See
Letter from Kathy Garner to Joshua Drexler, Docket No. 107, Ex.
7. There is no evidence of a completed employment contract
between Drexler and TEN in the record. Drexler never received
additional compensation for working more than forty hours per
week while he worked for NEXX or TEN, nor was he ever paid on an
hourly basis. Drexler Dep. 111:14-24; 112:23-113:1. Drexler knew
his salary covered 40 hours per week on average, maybe more or
less depending on the week. Drexler Dep. 113:9-13. Payroll
records for the claims period reflect that Drexler was paid a
set biweekly salary regardless the number of hours he worked
each week. See Docket No. 144 at 47-110; Vitale Dep. 21:5-18.
Drexler kept a “contemporaneous record of [his] daily hours and
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activities” beginning in 2007 and continuing until his
termination. Drexler Dep. 100:6-9; Drexler Aff. ¶¶ 72–74; Docket
No. 107, Ex. 10 (“Drexler Work Log”). The log captured Drexler’s
“major work” each day. Drexler Dep. 104:12-18.4
Throughout his employment for NEXX and TEN, Drexler
performed technical writing duties. Drexler Dep. 31:14-32:1.
Drexler estimated that seventy to eighty percent of his time at
work was devoted to developing or revising technical manuals.
Drexler Dep. 85:7-8. The technical manuals Drexler developed
were “big collections of procedures, or . . . a smaller
procedure for one particular thing.” Drexler Dep. 32:3-10.
Drexler created the manuals by “Observing the element to be
documented, talking to [subject matter experts] about it,”
“[w]atching the element operate,” “[p]ulling drawings,” and
“[d]eveloping scratch sheets of pre-made questions in order to
facilitate  interaction with busy [subject matter experts].”
Drexler Dep. Errata, Docket No. 107, Ex. 3 at 96; Drexler Dep.
146:13-21. Drexler also sometimes conducted online or other
research. Drexler Dep. 66:9-67:14. Drexler developed these
methods when he worked as an independent contractor, and
continued using them when NEXX hired him full-time, and
Drexler’s Work Log is not hearsay for purposes of
Defendants’ motion for summary judgment. The journal constitutes
statements of a party opponent. Fed. R. Evid. 801(d)(2)(A).
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throughout his employment. Drexler Dep. 49:4-19, 69:5-70:5.
Drexler copied some portions of existing manuals. Beginning in
early 2012, defendant Chu, his supervisor, set limits on which
subject matter experts Drexler could confer with to develop
certain manuals. Drexler Dep. 88:11-22, 91:6-98:2; Drexler Aff.
¶¶ 16, 30. When TEN acquired NEXX, Drexler faced increased
pressure to conform his work to TEN’s style guide. Drexler Aff.
Drexler wrote manuals related to the maintenance and
operating procedures for TEN’s semiconductor fabrication
equipment, including updating existing manuals to reflect
ongoing engineering improvements. Drexler Dep. 74:19-75:7, 83:212. No equipment was shipped to a customer without a manual. TEN
also provided manuals in electronic form. Drexler Dep. 74:5-18.
Drexler also wrote safety procedures associated with the
operation and maintenance of the machines for which he wrote
technical manuals. Drexler Aff. ¶¶ 3, 19; see also Docket No.
107, Ex. 12 (“Stratus 300 Manual”), at 140–77. TEN’s
semiconductor fabrication equipment and the associated manuals
are subject to government regulations (including those
promulgated by the Occupational Safety and Health Administration
(OSHA)) and industry standards (including those promulgated by
Semiconductor Equipment and Materials International (SEMI)). See
Roznitsky Aff. ¶¶ 3–5. Many of the regulations and standards
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concern the safety of TEN’s customers who use the equipment.
Roznitsky Aff. ¶ 3. Drexler also wrote portions of manuals which
described to users how to interact with the computer software
associated with the equipment TEN produced. Drexler Dep. 70:672:14. Drexler understood that the purpose of the manuals was so
customers could learn how to operate and maintain the equipment
TEN sold. Drexler Dep. 233:20-24. Drexler visited NEXX customers
in Maine, New York, Texas, and North Carolina, and observed
copies of his manuals at those locations. Drexler Aff. ¶ 48.
As an example of how Drexler wrote maintenance procedures
for a technical manual, he was
“told to address the alignment of the Lanier
drive in the Nimbus, and [he went] to the
engineer, [he] look[ed] at [the Lanier
Drive] when it was open . . . . These things
were normally sealed up and kept at vacuum.
And they were rarely opened to the
atmosphere. But when they were [he]’d take
 pictures, [he]’d look at them, [he]’d
talk to techs, [he]’d talk to engineers, and
[he]’d  work up a picture of how you go
about aligning this particular mechanism.
And then [he]’d write out a series of
scratch questions in the form of the steps,
sort of in a step order and pass that by
someone who knew how to do it, and then 
they’d say, yay or nay, or ‘here’s the step
that comes first’ or ‘change things around.’
Then [he]’d write it up. Then it would be
submitted back to the same people for
redlines. [He]’d correct the redlines, and
then it was pretty much done.”
Drexler Dep. 75:10-76:6. Drexler’s Work Log reflects his
meetings with subject matter experts while Drexler was in the
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process of drafting or updating technical manuals. See, e.g.,
Drexler Work Log entries dated Oct. 12, 2010; Oct. 18, 2010;
Oct. 19, 2010; Feb. 13, 2011; May 31, 2012; Sept. 16, 2012.
Drexler noted that his superiors did not understand the
complexity of technical writing at TEN. Drexler Work Log entry
dated Sept. 17, 2011 (“Non-practitioners don’t understand that
top-down command and control do not work for creating bottoms-up
technical documentation. . . . Until you’ve actually tried to
document something with literally hundreds or thousands of
separate details all revolving around each other and interacting
with each other you just can’t imagine what a mental effort it
takes. But one clue might be neither the hardware nor the
software engineering team willingly produces its own technical
The level of oversight Chu and others provided (or forced
upon) Drexler is in dispute. Drexler stated that, at least until
a February 2012 incident described below, he spent a “de
minimis” amount of time working directly with Chu, despite his
perception that she complained of having to “devote large
amounts of her time to working with” Drexler. Drexler Dep.
85:14-21. The record reflects that Drexler received emails from
Chu and others on nights and weekends. Drexler Aff. ¶ 78. Chu
set numerous deadlines and tasks for Drexler. Drexler Aff.
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¶¶ 79–80. However, nothing in the record reflects direct and
persistent supervision, to the extent of limiting Drexler’s
freedom to develop the substance of the technical manuals during
his first six years of full-time employment at TEN.
In February 2012, Chu reprimanded Drexler for instructing a
coworker to send a customer an unapproved version of an older
technical manual, which Drexler had updated to meet the needs of
the customer’s customized machine. Drexler Dep. 91:19-94:17.
Following that incident, Drexler stated that Chu curtailed his
ability to approach subject matter experts directly in a “light
and informal” manner and that he should go through her to set up
meetings with engineers. Drexler Dep. 94:19-95:15. Drexler
testified at his deposition that Chu’s limitation on his access
to subject matter experts after the February 2012 incident was
the first time he felt Chu impeded his independent discretion.
Drexler Dep. 96:12-17. Drexler does not point to specific
evidence of his supervisors impeding his discretion prior to the
February 2012 incident. Drexler’s self-evaluation from December
2011 does not specify other limits on his access to subject
matter experts. Deposition of Christina Chu, Oct. 19, 2016 (Chu
Dep.), Docket No. 107, Ex. 13, at Ex. 3. Beginning in late 2012,
Drexler perceived that Chu assigned Jeffrey Stoddard, a TEN
technical writer in Texas, to oversee Drexler’s work. Drexler
Aff. ¶¶ 61–62; Drexler Dep. 96:19–97:4. Stoddard significantly
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edited Drexler’s work and insisted that he follow TEN’s style
manual. Drexler Aff. ¶ 63.
On November 19, 2012, Drexler handed defendant Lateef a
letter titled “THIS IS A WAGES AND HOUR COMPLAINT.” Drexler Aff.
¶ 101. On April 11, 2013, TEN terminated Drexler’s employment.
Drexler Aff. ¶ 2.
Standard of Review
Summary judgment is appropriate when 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). To succeed
on a motion for summary judgment, the moving party must
demonstrate that there is an “absence of evidence to support the
non-moving party’s case.” Sands v. Ridefilm Corp., 212 F.3d 657,
661 (1st Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986)). The burden then shifts to the non-moving party
to set forth specific facts showing that there is a genuine
issue of material fact for trial. Quinones v. Houser Buick, 436
F.3d 284, 289 (1st Cir. 2006). A genuine issue exists where the
evidence is “sufficiently open-ended to permit a rational
factfinder to resolve the issue in favor of either side.” Nat’l
Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.
1995). A material fact is “one that has the potential of
affecting the outcome of the case.” Calero–Cerezo v. U.S. Dep’t
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of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986)). In its review
of the evidence, the Court must examine the facts in the light
most favorable to the non-moving party and draw all reasonable
inferences in its favor. Sands, 212 F.3d at 661. Ultimately, the
Court is required to “determine if there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party.” Id. (quotation marks omitted).
The Question of Drexler’s FLSA Status
Defendants argue that Drexler is not entitled to overtime
wages because he is an exempt employee under the FLSA and
parallel Massachusetts law exemptions. Defendants argue a number
of individual exemptions apply to Drexler including the
administrative exemption.5 Defendants contend that Drexler was
exempt under the administrative exemption because he was paid a
sufficient amount to meet the salary test, he performed nonmanual work related to the management and general business of
the company and its customers, and as part of his primary duty
he exercised discretion and independent judgment with respect to
matters of significance. As to the learned-professional
exemption, Defendants argue it applies because Drexler’s primary
Defendants also argue that the learned-professional,
creative-professional, and combination exemptions apply to
Drexler. For the reasons stated, the Court need not reach those
arguments and declines to do so.
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duty required knowledge of an advanced type in a field of
science customarily acquired by a prolonged course of
specialized intellectual construction.
Drexler argues that he was not an exempt employee. First he
argues that he was creating an end-product that was an integral
part of the manufactured machines. That is, Drexler argues that
he was essentially an assembly-line employee because his manuals
were a necessary element of the machines that were eventually
shipped to customers. In addition to his contention that his
output was a product unrelated to the general business
operations of TEN or its customers, Drexler argues that he
lacked the necessary discretion and freedom to use independent
judgment for the administrative exemption to apply to him.
The FLSA generally requires employers to pay overtime
compensation at one and one-half an employee’s “regular rate”
for any work in excess of forty hours in any week. 29 U.S.C.
§ 207(a)(1) (2012). The Massachusetts statute governing overtime
pay mirrors the FLSA. See Drexler, 125 F. Supp. 3d at 377 n.3
(citing Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 40 (1st
Cir. 1999)). This general rule, however, is subject to
exceptions, and does not apply to “any employee employed in a
bona fide executive, administrative, or professional capacity.”
29 U.S.C. § 213(a)(1) (2012). “Because of the remedial nature of
the statute, the Supreme Court has emphasized that the
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exemptions should be ‘narrowly construed’ and ‘limited to those
establishments plainly and unmistakably within their terms and
spirit.’” Hines v. State Room, Inc., 665 F.3d 235, 242 (1st Cir.
2011) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392
(1960)). The FLSA places the burden on the employer to establish
that an exemption applies. Id. at 240. Although exempt status
will typically be a question of fact, where there is no dispute
of the material facts governing the exemption analysis, summary
judgment can be granted. See, e.g., Hines v. Longwood Events,
Inc., No. 08-cv-11653, 2010 WL 2573194, at *10 (D. Mass. June
23, 2010), aff’d Hines, 665 F.3d at 236.
Was Drexler Involved in Production?
As an initial matter, Drexler contends that he could not be
an exempt employee because he produced the product TEN sold. The
crux of this argument is that the technical manuals were a
necessary part of TEN’s semiconductor fabrication equipment,
rendering Drexler’s work essentially part of the assembly line.
The undisputed record evidence supports Drexler’s contention
that manuals were shipped with equipment as a matter of course.
Indeed, Drexler saw copies of manuals he created on trips to
visit TEN customers in multiple states. Simply put, his argument
is that because the manual was shipped in the box, he helped
produce the product. Drexler argues that there is an “abundance
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of evidence that manuals were an intrinsic part of [TEN’s]
product.” Docket No. 150 at 14.
The fact that an employee develops something that is
shipped in the same box as an employer’s product is not
dispositive. Since the relevant Department of Labor regulations
were revised in 2004, the First Circuit rejected a rigid
dichotomy between production and non-production employees and
relied on the Department of Labor’s regulations to determine the
type of work performed by the employee. See Cash v. Cycle Craft
Co., Inc., 508 F.3d 680, 684 (1st Cir. 2007) (citing 29 C.F.R.
§ 541.201(a)–(b)); see also Verkuilen v. MediaBank, LLC, 646
F.3d 979, 981 (7th Cir. 2011) (“Notice the gap: employees who
don’t perform work directly related to assisting with the
running or servicing of the employer’s or its customers’
business are not necessarily employees who ‘for example’ work on
an assembly line or work in a retail store as a salesperson.”).
The post-2004 regulation makes clear that the proper
analysis is more fine-grained than whether or not something the
employee developed was included in the box that went to the
(a) To qualify for the administrative
exemption, an employee’s primary duty must
be the performance of work directly related
to the management or general business
operations of the employer or the employer’s
customers. The phrase “directly related to
the management or general business
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operations” refers to the type of work
performed by the employee. To meet this
requirement, an employee must perform work
directly related to assisting with the
running or servicing of the business, as
distinguished, for example, from working on
a manufacturing production line or selling a
product in a retail or service
(b) Work directly related to management or
general business operations includes, but is
not limited to, work in functional areas
such as tax; finance; accounting; budgeting;
auditing; insurance; quality control;
purchasing; procurement; advertising;
marketing; research; safety and health;
personnel management; human resources;
employee benefits; labor relations; public
relations, government relations; computer
network, internet and database
administration; legal and regulatory
compliance; and similar activities. Some of
these activities may be performed by
employees who also would qualify for another
29 C.F.R. § 541.201. Thus, the Court must engage in a
Does the Administrative Exemption Apply?
Because Drexler’s production-dichotomy argument does not
end the matter, it is necessary to analyze whether his specific
duties meet any of the FLSA exemptions that Defendants proffer.
“[E]xempt status depends less on  title, and more on the
actual duties performed.” DiBlasi v. Liberty Mut. Grp. Inc., No.
Civ. 12-10967, 2014 WL 1331056, at *6 (D. Mass. Apr. 3, 2014)
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The Department of Labor’s regulations establish a threeprong test for determining whether an employee qualifies under
the FLSA’s administrative exemption:
The term “employee employed in a bona fide
administrative capacity” in section 13(a)(1)
of the Act shall mean any employee: (1)
Compensated on a salary or fee basis at a
rate of not less than $455 per week . . .
exclusive of board, lodging or other
facilities; (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
respect to matters of significance.
29 C.F.R. § 541.200(a). Employees who spend more than fifty
percent of their time performing exempt work will generally
satisfy the primary duty requirement. See Crowe v. Examworks,
Inc., 136 F. Supp. 3d 16, 39 (D. Mass. 2015) (citing 29 C.F.R.
First, Drexler does not dispute that he was paid a
sufficient salary to meet the salary test, and he does not
dispute that he spent between seventy and eighty percent of his
working hours developing technical manuals, thus rendering that
task his primary duty. Drexler does dispute whether, on the
undisputed facts in the record, the second and third prongs of
the administrative exemption apply to his position.
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Turning to the second prong, on the undisputed facts in the
record, the Court concludes that Drexler’s “primary duty [was]
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.” 29 C.F.R. § 541.200(a)(2). In
particular Drexler’s “work directly related to assisting with
the running or servicing of the [customers’] business.” 29
C.F.R. § 541.201(a). First, the undisputed evidence leads to the
conclusion that Drexler performed non-manual work in an office
setting, not on the production line. Drexler’s work log is
replete with entries regarding meetings, observations of
equipment, developing graphics, and generally trying to
understand how TEN’s complex equipment worked and how to explain
it to customers. Second, the technical manuals Drexler produced
were directly related to the business operations of TEN’s
customers, as he saw when he visited the sites of many
customers. Third, the regulations include within work directly
related to management or general business operations “work
in . . . safety and health; . . . legal and regulatory
compliance; and similar activities.” 29 C.F.R. § 541.201(b).
Drexler’s work involved safety and regulatory compliance. It is
undisputed that the manuals included sections to assist with
safe operation of TEN’s machines, see Stratus 300 Manual at 140–
77, and the manuals were also developed to ensure regulatory
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compliance. Fourth, the fact that Drexler visited customer sites
also supports the exemption in this case. See Verkuilen, 646
F.3d at 982 (discussing exempt employee’s interactions with
customers, including visits to customers’ premises).
With respect to the third prong, Drexler’s discretion and
independent judgment relating to these matters of significance,
the undisputed facts show that--at least until February 2012--he
had the imprimatur to go about the substantive elements of his
manual writing as he saw fit. In this context, discretion and
independent judgment require more than “applying wellestablished techniques, procedures or specific standards
described in manuals or other sources . . . [or] recording or
tabulating data, or performing other mechanical, repetitive,
recurrent or routine work.” 29 C.F.R. § 541.202(e). The fact
that Drexler was subject to supervision, that he was told which
manuals and portions of manuals to write, and that his work
product was reviewed and heavily edited does not defeat the
conclusion that he exercised discretion and independent judgment
with respect to significant matters like safety and regulatory
Even after Chu and Stoddard were conducting thorough and
searching reviews of his work, the subject of the supervision
was the pace of work and the style--not the substance. And the
substance is critical here. Drexler was not writing a simple,
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rote manual, say, for operating a toaster. He was not a copy
editor on a manual written by another.6 TEN’s manuals could run
more than five hundred pages long, see Stratus 300 Manual, and
included highly complex and scientific materials, as well as
materials that were customized for particular customer’s
business needs, see Drexler Dep. 92:2-24.
Drexler pushes back against this conclusion arguing that he
was subject to strict and overbearing oversight by his manager,
Christina Chu, and others who worked at TEN, including noting
that his work product was always subject to review by the
“change control board” and others. See Drexler Dep. 97:14–98:2.
Even if Drexler’s work product was subject to review throughout
his employment, and even if supervision of his style and
productivity increased from February 2012 to April 11, 2013, it
is of no moment. As the regulations make clear, discretion
regarding matters of significance can coexist with supervision.
[E]mployees can exercise discretion and
independent judgment even if their decisions
or recommendations are reviewed at a higher
level. Thus, the term ‘discretion and
independent judgment’ does not require that
the decisions made by an employee have a
finality that goes with unlimited authority
and a complete absence of review. . . . The
Drexler’s freedom to develop work product, and his personal
responsibility for crafting words, graphics, and other means to
describe equipment parts and processes distinguish Drexler from
the copy editors in the Department of Labor, Wage and Hour
Division’s opinion letter, FLSA 2006-45, which Drexler urges the
Court to follow.
Case 1:13-cv-13009-PBS Document 172 Filed 07/20/17 Page 21 of 23
fact that an employee’s decision may be
subject to review and that upon occasion the
decisions are revised or reversed after
review does not mean that the employee is
not exercising discretion and independent
29 C.F.R. § 541.202(c). Thus, although Drexler was subject to
review, his work received significant edits, and he was
chastised for going beyond the bounds of the corporate style
guide, those facts do not render the administrative exemption
inapplicable. Indeed, the undisputed record reflects that, even
when Drexler was subject to more rigorous oversight from Chu and
others, beginning in 2012, he still decided which questions to
ask subject matter experts and developed first drafts of the
technical manuals subject to the confines of TEN’s style guide.
Drexler himself defined Chu’s direct oversight as “de minimis”
which is also relevant to the analysis. See Verkuilen, 646 F.3d
at 981 (“Employees tasked with jobs requiring the exercise of
independent judgment usually are expected to work with a minimum
of supervision even when they are working in their office rather
than on a customer’s premises.”).
In many ways, Drexler’s duties for FLSA exemption purposes
mirror those of the technical writers in Renfro v. Indiana
Michigan Power Co., 497 F.3d 573 (6th Cir. 2007). With regard to
the independent judgment and discretion analysis, there is
substantial factual similarity between the two cases. In Renfro,
Case 1:13-cv-13009-PBS Document 172 Filed 07/20/17 Page 22 of 23
as with Drexler, the technical writers wrote maintenance
procedures for equipment, worked without constant supervision,
and had discretion to determine what level of detail a procedure
should be written in. Id. at 574–75. The technical writers in
Renfro consulted numerous sources to develop procedures,
including consulting with colleagues in the engineering
department. Id. at 575. In Renfro, as here, the employer had a
style guide which constrained certain format and stylistic
aspects of the technical writers’ work. Id. Concluding that the
technical writers exercised discretion and independent judgment,
a divided panel of the Sixth Circuit reversed the district
court’s judgment for the technical writers and remanded the case
with an order that the district court enter summary judgment for
the employer. Id. at 577–78.
The key distinguishing characteristic between the writers
in Renfro and Drexler goes to the second prong of the
administrative exemption test. In Renfro, the writers wrote
maintenance procedures for an internal audience, whereas Drexler
wrote manuals for use by TEN’s customers. See Drexler, 125 F.
Supp. 3d at 372 n.5. This distinction does not preclude finding
Drexler exempt, because the second prong of the exemption
focuses on how the employee’s work relates to the general
business operations of either the employer or the employer’s
customers. See 29 C.F.R. § 541.200(a)(2). In Renfro, the
Case 1:13-cv-13009-PBS Document 172 Filed 07/20/17 Page 23 of 23
technical writers work directly related to the employer’s
general business operations. See 497 F.3d at 574. Here,
Drexler’s work directly related to TEN’s customers’ business
operations, in that his manuals made it possible for customers
to operate the complex equipment purchased from TEN.
Alternatively, there is a strong argument that Drexler’s work
directly related to TEN’s general business operations, in that
Drexler’s manuals permitted his employer to comply with
regulations propounded by government and industry entities, such
as OSHA and SEMI.
Therefore, on the undisputed facts in the record, TEN has
met its burden of proving that Drexler’s duties during the
relevant period met the FLSA’s administrative exemption.
For the foregoing reasons, Defendants’ Motion for Summary
Judgment (Docket No. 104) on Counts I and II is ALLOWED.
Drexler’s Motion for Summary Judgment on Liability (Docket No.
110) is DENIED. The Court previously allowed Drexler’s motion to
withdraw his only remaining claim--one alleging retaliation. See
Docket No. 171. Therefore, the Clerk shall enter final judgment
for the defendants.
/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge
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