Friedman v. National Indemnity Company

Filing 70

MEMORANDUM AND ORDER - Friedman's motion for partial summary judgment (filing 64 ) is denied. National Indemnity's motion for partial summary judgment (filing 61 ) is granted. This case is referred to the Magistrate Judge for case progression. Ordered by Judge John M. Gerrard. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRUCE RICHARD FRIEDMAN,
Plaintiff,

8:16-CV-258

vs.
MEMORANDUM AND ORDER
NATIONAL INDEMNITY
COMPANY,
Defendants.

The plaintiff, Bruce Friedman, has sued his former employer, National
Indemnity Company, for allegedly failing to pay him overtime wages in
violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. This
matter is before the Court on the parties' cross-motions for partial summary
judgment. For the reasons discussed below, the Court will grant National
Indemnity's motion for partial summary judgment and deny Friedman's
motion for partial summary judgment.
BACKGROUND
The following facts are not meaningfully disputed. National Indemnity
is an insurance provider located in Omaha, Nebraska. Sometime in 2014,
National Indemnity made the decision to move from its midtown location to
its current location at 1314 Douglas Street. Filing 62 at 4. That move
required National Indemnity to build a centralized and secure location for its
operations (i.e., its data center). See filing 63-2 at 39. But in order to
transition its IT network into the new data center, National Indemnity
needed to hire a "network engineer" to design and implement the data
center's network infrastructure––that is, the hardware, layout and pathways

connecting National Indemnity's computers and servers. See filing 65-4 at 30;
see also filing 68 at 2-3. So, in May 2015, National Indemnity hired
Friedman, a network engineer with experience in electronic network
infrastructure. Filing 68 at 9; see also filing 65-4 at 23-25.
Once Friedman was hired, National Indemnity classified him as an
"exempt" employee under the FLSA. Filing 68 at 14. In other words,
Friedman was paid an annual salary of $95,000.00, but was not entitled to
overtime pay if and when he worked more than forty hours in a given
workweek. See filing 65 at 4; filing 68 at 9; filing 63-8 at 4. According to
Friedman,

however,

National

Indemnity

improperly

classified

his

employment status. Specifically, Friedman alleges that his primary duties at
National Indemnity included physically moving equipment, laying cables,
and troubleshooting National Indemnity's computer network––duties which,
Friedman claims, do not constitute exempt work under the FLSA. Filing 1 at
3; See also filing 65 at 1, filing 65 at 5.
As such, Friedman alleges that he is entitled to damages for unpaid
overtime, an equal amount of liquidated damages, and attorneys' fees for
National Indemnity's misclassification. Filing 1 at 4. The parties have filed
cross-motions for partial summary judgment on Friedman's claim that
National Indemnity misclassified him as an exempt employee under the
FLSA.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
2

demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
As briefly mentioned above, the parties have filed cross-motions for
partial summary judgment on Friedman's overtime claim. That claim is
premised on a provision of the FLSA requiring employers to pay overtime
wages to employees who work more than forty hours during a given
workweek. See 29 U.S.C. § 207(a)(1). But that provision is also subject to
numerous exemptions––three of which, National Indemnity argues, apply to
Friedman. See filing 62 at 24; filing 62 at 39, filing 62 at 43. Specifically,
3

National Indemnity claims that the computer employee, administrative
exemption, and combination exemptions, see 29 U.S.C. § 213(a)(1); 29 U.S.C.
§ 213(a)(17); 29 C.F.R. § 541.708, exempt Friedman from overtime payments.
In determining whether a particular FLSA exemption applies, the
amount of time devoted to exempt work presents factual questions. Reich v.
Avoca Motel Corp., 82 F.3d 238, 240 (8th Cir. 1996). But, the ultimate
question of whether an employee's particular activities excluded them from
the overtime benefits is a question of law. Spinden v. GS Roofing Prods. Co.,
94 F.3d 421, 426 (8th Cir. 1996). And as the Supreme Court has recently
made clear, exemptions to the overtime requirement are to be given a "fair
reading." Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018).
That is, those exemptions are not to be construed narrowly. Id. With that
understanding in mind, the Court will consider whether Friedman qualifies
for any, or all, of the overtime exemptions claimed by National Indemnity.
See 29 U.S.C. § 213(a)(1); 29 U.S.C. § 213(a)(17).
I. ADMINISTRATIVE EXEMPTION
National Indemnity's first argument, that Friedman is exempt under
the "administrative" exemption, is easily disposed of, so the Court will be
begin there. See filing 62 at 40-41. The "administrative" exemption
specifically exempts employees 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
"includes the exercise of discretion and independent judgment with respect to
matters of significance." 29 C.F.R. § 541.200(a).
But the Court cannot say, as a matter of law, that Friedman's primary
duties included "non-manual" work related to general business operations.
See id. After all, the parties do not dispute that a portion of Friedman's work
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on National Indemnity's network infrastructure required him to physically
move equipment and lay cables, tasks which, undisputedly, involve some
manual labor. Filing 65-4 at 40-1. Accordingly, National Indemnity's partial
motion for summary judgment will be denied on those grounds.
II. COMPUTER EMPLOYEE EXEMPTION
National

Indemnity's

next

argument,

however,

fares

better.

Specifically, National Indemnity claims that Friedman is an exempt
"computer employee." Filing 62 at 24-31. The "computer employee" exemption
states, in relevant part, that an employee is exempt from overtime wages if
the employee is a "computer systems analyst, computer programmer,
software engineer, or other similarly skilled worker" whose primary duty is:
(A)

the

application

of

systems

analysis

techniques

and

procedures, including consulting with users, to determine
hardware, software, or system functional specifications;
(B) 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;
(C) the design, documentation, testing, creation, or modification
of computer programs related to machine operating systems; or
(D) a combination of duties described in subparagraphs (A), (B),
and (C) the performance of which requires the same level of
skills . . . .
5

29 U.S.C. § 213(a)(17).
National Indemnity claims that Friedman performed a combination of
work generally reserved for highly skilled computer employees. See filing 62
at 25-28. In particular, National Indemnity alleges that Friedman had
significant responsibility in the design and configuration of National
Indemnity's network infrastructure, frequently met with vendors, troubleshot
various connectivity issues, and made permanent recommendations about
National Indemnity's technology and software usage. See filing 62 at 8-10.
Friedman, however, argues that he primarily performed simple tasks such as
"repair[ing]

computer

hardware

and

related

equipment,

installing,

configuring, testing, and troubleshooting computer networks, hardware, and
operating systems."1 Filing 68 at 14-15. And those duties, he argues, do not
require the application of highly specialized knowledge in computer systems
needed to satisfy the "computer employee" exemption. Filing 65 at 16; see also
filing 63-2 at 39.
Friedman relies on the Sixth Circuit's decision in Martin v. Ind. Mich.
Power Co. to support why, in his view, he is not an exempt computer
employee. 381 F.3d 574, 580 (6th Cir. 2004). In Martin, the Sixth Circuit
concluded that an employee was not exempt from overtime payments when
his primary duties included maintaining computer workstations, installing
simple software, checking cables, and undertaking some troubleshooting from

1

The Court acknowledges Friedman's contention that because his complaint was filed pro

se, it is "not persuasive or accurate." Filing 68 at 15. But "admissions in the
pleadings . . . are in the nature of judicial admissions binding upon the parties, unless
withdrawn or amended. Missouri Hous. Dev. Comm'n v. Brice, 919 F.2d 1306, 1314 (8th
Cir. 1990). If Friedman's counsel had wanted to amend Friedman's pro se complaint after
he was retained, he should have asked. See Fed. R. Civ. P. 15(a)(2).

6

the company's help desk. Id. at 577. Specifically, the Court found that the
employee's work lacked the "theoretical and practical application of highly
specialized knowledge in computer systems analysis, programing, and
software engineering" needed to be exempt. Id. at 580.
But Martin is distinguishable from this case for at least two reasons.
First, Martin was decided under the "computer professional exemption" of
§213(a)(1), rather than the more recent "computer employee exemption" in §
213(a)(17). And the "computer employee" exemption broadened the previous
"computer professional" in at least three ways: by (1) eliminating the
requirement that the employee's work require the exercise of independent
judgment; (2) eliminating any educational requirements; and (3) disposing of
the requirement that the employee "have achieved a level of proficiency in the
theoretical and practical application of a body of highly specialized
knowledge." Compare 29 U.S.C. § 213(a) with 29 U.S.C. § 213(a)(17); see also
Ortega v. Bel Fuse, Inc., No. 15-21229, 2016 WL 1588393, at *10 (S.D. Fla.
Apr. 20, 2016); Bobadilla v. MDRC, No. 03 Civ. 9217, 2005 WL 2044938, at
*8 (S.D.N.Y. Aug. 24, 2005). In other words, Martin was decided under a
much narrower statutory exemption than the one at issue here.
And second, Friedman's work at National Indemnity is distinguishable
from the duties, and responsibilities, at issue in Martin. Indeed, the employee
in Martin was not responsible for creating a computer system, or otherwise
substantively involved in analytical decisions about how the network ought to
function. Martin, 381 F. 3d at 577. Instead, his job duties were limited to
responding to help desk tickets, troubleshooting individual computers,
installing simple software, and checking cables––tasks the employee, who
had no computer certifications or advanced training, could easily manage. Id.

7

But that is not the case here. Rather, the record demonstrates that
Friedman did offer various opinions as to how National Indemnity's network
ought to function, and was primarily responsible for designing National
Indemnity's infrastructure. See Filing 68 at 35; see also filing 63-3 at 10,
filing 63-2 at 40. And that is true even assuming that Friedman spent a
significant amount of time moving equipment and laying cables, as he
contends. After all, Friedman admits that designing National Indemnity's
"core network" necessarily required the construction of physical network
connections (i.e., layer one connections). Filing 65-4 at 48. And layer one
connections, in essence, required the systems engineers to physically move
servers and lay cables––work not "just anybody" could do. Filing 65-4 at 48.
Q. No, you say, "technically qualified and trained personnel".
A. Yeah, you can't -- can you build a Cat6 cable? Can you
terminate fiberoptic connectivity?
Q. Well, I get to ask the questions.
A. But that's my point is, at the end of the day, regardless of the
adherence to a job description, or the meaning of an engineer,
to say that when I'm running cable or moving servers or doing
those things is work that you could go hire manpower people
to come in and do, that's not true. You can't just augment
staff, even at this level, with just anybody. They have to know
how to do it.
Filing 65-4 at 48.
8

And Friedman's integral role in the design of National Indemnity's
network infrastructure is also demonstrated by Friedman's own testimony
that he delivered "facts and choices" about the "core network." Filing 63-2 at
40. In particular, he made recommendations concerning "components, about
pricing, about the [value-added reseller] that was going to service or sell the
product, about warranty, about service, about the technology that was being
used, [and] about a plethora of things." Filing 65-4 at 29. He also engineered
the interplay between access devices, aggregation devices, and the network
core. Filing 63-8 at 5. And he planned, implemented, and maintained
network backup and recovery mechanisms for the data center. See filing 63-6
at 4. Friedman also provided "high level technical support on software and
server issues," filing 63-6 at 4, identified "super complex" server problems,
filing 65-4 at 51, and worked to solve National Indemnity's "significant [and]
persistent" network issues, filing 65-4 at 28.
In other words, Friedman––who was National Indemnity's "most
knowledgeable" storage engineer––was a large, if not primary, part of the
design and configuration of National Indemnity's network infrastructure.
Filing 68 at 35; see also filing 63-3 at 10. And that work necessarily involved
the practical application of knowledge and training unique to highly skilled
computer professionals. After all, courts have routinely found that analyzing
computer systems, troubleshooting complex server issues, and configuring
computer networks satisfies the "computer employee" exemption. See Grills
v. Hewlett-Packard Company, 88 F. Supp. 3d 822, 826-27 (N.D. Ohio 2015);
Campbell v. Kannapolis City Sch. Bd. of Educ., 55 F. Supp. 3d 821, 825
(M.D.N.C. 2014); Olorode v. Streamingedge, Inc., No. 11 Civ. 6934, 2014 WL
1689039, at *22 (S.D.N.Y. Apr. 29, 2014), report and recommendation
adopted, 2014 WL 3974581 (S.D.N.Y. Aug. 13, 2014); Clarke v. JPMorgan
9

Chase Bank, N.A.,, No. 08 Civ. 2400, 2010 WL 1379778, at *17 (S.D.N.Y.
Mar. 26, 2010) ; Young v. Cerner Corp., No. 06-0321-CV, 2007 WL 2463205,
at *5 (W.D. Mo. Aug. 28, 2007); Bobadilla, WL 2044938 at *6-9.
Accordingly, the Court finds that Friedman's primary duties constitute
exempt work under the "computer employee" exemption. As such, the Court
will deny Friedman's motion for partial summary judgment on these grounds,
and grant National Indemnity' motion for partial summary judgment.
III. COMBINATION EXEMPTION
As a final matter, National Indemnity also claims that Friedman is
exempt under the FLSA "combination" exemption. The "combination"
exemption allows combining the exempt work from one section to the exempt
work of another section. 29 C.F.R. § 541.708. This exemption is intended to
address "the situation that exists when an employee does not meet the
primary-duty requirement of any individual exemption." IntraComm, Inc. v.
Bajaj, 492 F.3d 285, 294 (4th Cir. 2007). But where, as here, the employee
does meet the primary duty requirement of an individual exemption (i.e., the
computer employee exemption) the combination exemption does not apply.
See id. So, National Indemnity's motion for partial summary judgment will
be denied on those grounds.
CONCLUSION
In

sum,

the

Court

concludes

that

National

Indemnity

has

demonstrated that Friedman was exempt from the overtime provision of the
FLSA as a matter of law pursuant to the "computer employee" exemption.
Thus, Friedman's motion for partial summary judgment on his overtime
claim will be denied, and National Indemnity's motion for partial summary
judgment on Friedman's overtime claim will be granted.
10

IT IS ORDERED:
1.

Friedman's motion for partial summary judgment (filing
64) is denied.

2.

National Indemnity's motion for partial summary judgment
(filing 61) is granted.

3.

This case is referred to the Magistrate Judge for case
progression.

Dated this 13th day of April, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

11