PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 14-2308


GERARD MORRISON; CHRISTOPHER THOMPSON; ELTON POLEN, JR.; CALVIN
ALEXANDER; MICHAEL ALLEN; ROCCO ALVARO; THOMAS ARNOLD; WILLIAM
ATWELL; ROBERT BANASIK; TIMOTHY BARB; TODD BARB; MATHEW ARNHART;
MERVIN BARRERA; OSCAR BEASLEY; WILLIAM BEST, JR.; BILL BETZ;
DANIEL BORDEN, JR.; EDWARD BOWMAN; FRED BRANDELL; DONALD
BRASFIELD; CHRISTOPHER BROWN; JON BRULEY; CLYDE BUCHANAN;
CARLTON BURKHAMMER; ROBERT BURLINGAME; MATTHEW BURNS; LEO BURT;
LEROY BUTLER, JR.; KEITH CERZULLO; JOHN CHESEK, JR.; MICHAEL
CIARROCCHI;   STEVEN  CLARK;  BRADFORD  COCHRANE,   JR.;  THOMAS
CONNOLLY; DAVID CONRAD; ARTHUR COX; DUSTIN CRAMER; TRACY
CRAWFORD; KEITH CROSS; ERIC CUNNINGHAM; CHARLES CUNNINGHAM;
DANNY DANIELS, II; MICHAEL DAVIS; TROY DEAN; YOLANDA DEMARK;
SAMUEL DEVERA; KEITH DUBETSKY; BRIAN EDMONSTON; KEVIN EDWARDS;
DEREK EDWARDS; FELECIA EDWARDS; SEAN EVANS; MARK FEASTER;
MICHAEL FISCHER; COLIN FLANIGAN; THOMAS FLINT; MICHAEL FONTANA;
RAMIRO GALVEZ; MICHAEL GARCIA; KENNETH GEFFEN; JARED GOFF;
GEORGE GONZALEZ; TODD GORHAM; SAMUEL GRAY; RAYMOND GRIFFIN;
WESLEY GRIGG; DAVID GRUENDEL; MARK GUDITUS; DAVID HALL; JAMES
HARRISON, III; SHERYL HEMINGWAY; CHARLES HENDERSON; KIT HESSEL;
JOHN   HIGGINBOTHAM;  JAMES  HOBGOOD;  KIMBERLY   HOOD;  TRENTON
HOUGHTON; GREGORY HUNTER; JAMES IACONE; MICHAEL ISTVAN; JAMES
ISTVAN; ANTHONY JACKSON; JAMES JOHNSON; REGINALD JOHNSON; THOMAS
JOHNSON; WALTER JOHNSON; JOSEPH KALEDA; GLENN KAPLAN; PATRICK
KELLY; REBECCA KELLY; WILLIAM KINGDON; JOSPEH KISER; ROBERT
KITCHEN; JOSEPH KNERR; ROBERT KONCZAL; TONY KOSTECKA; RONALD
KULEY; DAVID LANGE; JAMES LEE; JOHN LEETE; JEFFREY LEWIS; ROBERT
LISON; MATTHEW LOPEZ; WILLIAM LYNCH; BARRY MAHAM; MICHAEL MARKS;
CHARLES MARTIN; JAMES MASIELLO; PAUL MASIELLO; GLENN MASON;
COREY MATTHEWS; THOMAS MAYHEW; STEVEN MCFARLAND; ROGER MCGEHEE;
RICHARD MCKINNEY, JR.; KERWIN MCNAMARA; FRANCIS MENSAH; MARK
MENTON; JOSEPH MERRITT, JR.; STEPHEN MILLER; ROBERT MOHLER;
JEFFREY MONGOLD; DONALD MONTAGUE; BRIAN MORAVITZ; JOHN MORRIS;
RICHARD MOXLEY; JOHN NIEMIEC; BRYAN NIX, JR.; STEVEN NORRIS;
STEPHEN O'BRIEN; MILTON PAINTER; JOSPEH PALAU, III; DENNIS
PASSMORE; GARY PEMBERTON; JOHN PETERS; DALLAS PHILLIPS; RALPH
PISANI; CHARLES PULLEN; E. MARTIN RANCK, III; BARRY RATHBONE;
JOHN RICHTER; NATALIE ROBB; RONNIE RODRIGUEZ; MATTHEW RYAN;
WILLIAM SCHELLHAMMER, III; MARK SCHROEDER; DAVID SCHWARZMANN;
MICHAEL SEASE, II; DAVID SELLERS; DANIEL SHAW; RICHARD SMITH;
SCOTT SMITH; MICHAEL SNAPP; JAMES A. SOBOTA; JAMES STICKLEN; REX
STRICKLAND; CHERI STROUP; RONALD SYDNOR; KENDALL THOMPSON;
LORENZO THROWER; CHRISTOPHER TILLES; DAVID TOBIN; JEFFREY TOLLE;
GLENN TSCHANN; WILLIAM VANNOY; DONALD VAUGHT; JACK WALMER, JR.;
JOHN WALSER; THOMAS WEALAND; OSCAR WELLS; WAYNE WENTZEL; MICHAEL
WHETSELL; PAUL WHITE; KENNETH WILDMAN; JEROME WILLIAMS; MARCUS
WILLIAMS; ELTON WRIGHT; RICHARD LANCING,

                 Plaintiffs – Appellants,

           and

GARY DIZE,

                 Plaintiff,

           v.

COUNTY OF FAIRFAX, VA,

                 Defendant – Appellee.

-------------------------

UNITED STATES DEPARTMENT OF LABOR,

                 Amicus Curiae.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:14-cv-00005-CMH-JFA)


Argued:   January 27, 2016                  Decided:   June 21, 2016


Before TRAXLER, Chief Judge, and THACKER and HARRIS, Circuit
Judges.


Reversed and remanded by published opinion. Judge Harris wrote
the opinion, in which Chief Judge Traxler and Judge Thacker
joined.



                                  2
ARGUED: Molly A. Elkin, WOODLEY & MCGILLIVARY, LLP, Washington,
D.C., for Appellants.     Sona Rewari, HUNTON & WILLIAMS LLP,
McLean, Virginia, for Appellee. Sarah Kay Marcus, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae.    ON
BRIEF:     Evangeline  C.   Paschal,  HUNTON  &  WILLIAMS  LLP,
Washington, D.C., for Appellee. M. Patricia Smith, Solicitor of
Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden,
Counsel for Appellate Litigation, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus
Curiae.




                               3
PAMELA HARRIS, Circuit Judge:

      Under the Fair Labor Standards Act (“FLSA”), employees who

work overtime generally are entitled to overtime pay.                    There is

an exception — like all FLSA exceptions, narrowly construed —

for   certain   “executive”   and    “administrative”          employees    whose

primary job duties are management-related.               The question in this

case is whether the fire captains of Fairfax County, Virginia,

firefighters who serve as first responders to fires and other

emergencies, fall within that exception so that they are not

entitled to overtime compensation.

      The district court held that all of the current and former

Fairfax   County   fire   captains       bringing      this   suit   are   exempt

executives, and entered summary judgment for Fairfax County.                    On

appeal, the County takes a different approach, arguing that some

of the Captains are exempt executives while others are exempt

administrators.     We conclude that on this record, no reasonable

jury could find by the requisite clear and convincing evidence

that any of the Captains is exempt from the FLSA’s overtime

requirement.       Accordingly,     we       reverse   the    district     court’s

judgment and remand with instructions to enter summary judgment

for the Captains.




                                         4
                                         I.

                                         A.

       We begin by setting out the statutory and regulatory scheme

that governs this case.         The Fair Labor Standards Act of 1938,

29 U.S.C. §§ 201–219, is “remedial and humanitarian in purpose”

reflecting an intent by Congress to protect broadly the “rights

of those who toil.”           Tennessee Coal, Iron & R.R. v. Muscoda

Local No. 123, 

, 597 (1944); Purdham v. Fairfax Cty.

Sch. Bd., 

, 427 (4th Cir. 2011).                       Consistent with

that    purpose,     courts   are   to        construe     the    FLSA     liberally,

“recognizing that broad coverage is essential” to accomplish the

statute’s goals.       Tony & Susan Alamo Found. v. Sec’y of Labor,

, 296 (1985); see 

(“[T]he

Supreme    Court     has   cautioned      that     the     FLSA     ‘must       not   be

interpreted or applied in a narrow, grudging manner.’” (quoting

Tennessee 

)).

       Among   the    protections    the       FLSA      provides       employees     is

overtime pay, or the right to be paid at time and a half for

work above the statutory limit, generally 40 hours per week.

See 29 U.S.C. § 207.          There are, however, exemptions from this

requirement,    including     the   so-called         “white     collar”    exemption

for workers “employed in a bona fide executive, administrative,

or professional capacity.”          29 U.S.C. § 213(a)(1).                 As we have

recognized,    FLSA    exemptions,     including         this    one,    “are    to   be

                                         5
‘narrowly      construed   against    the    employers   seeking     to    assert

them,’” and applied only in instances “plainly and unmistakably

within   the    exemptions’   terms    and    spirit.”       Desmond      v.   PNGI

Charles Town Gaming, L.L.C., 

, 692 (4th Cir. 2009)

(alterations omitted) (quoting Arnold v. Ben Kanowsky, Inc., 

, 392 (1960)).

     The Department of Labor (“DOL”) has promulgated regulations

interpreting       the     FLSA’s     exemptions      for      executive        and

administrative employees, the two categories at issue in this

case.    Under the DOL regulations, an “employee employed in a

bona fide executive capacity” is one who earns at least $455 per

week, has authority over hiring and firing, 1 routinely supervises

at least two other employees, 2 and — most relevant here — whose

“primary    duty   is    management   of    the   enterprise    in   which      the

employee is employed.”        29 C.F.R. § 541.100.          The administrative

exemption similarly turns on a management-related primary duty:

An “employee employed in a bona fide administrative capacity” is

one who, in addition to earning at least $455 per week and




     1 “Who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other
employees   are   given   particular   weight.”      29   C.F.R.
§ 541.100(a)(4).

     2 “Who customarily and regularly directs the work of two or
more other employees.” 29 C.F.R. § 541.100(a)(3).


                                       6
exercising discretion on significant matters, 3 has as a “primary

duty” 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.”                    

       In 2004, DOL proposed changes to its “Part 541” regulations

governing the white collar exemptions, generating concerns that

first       responders         and   manual        laborers     would    become     exempt

employees and lose their right to overtime pay.                          See U.S. Dep’t

of     Labor,      Wage    &    Hour      Div.,      Defining    and     Delimiting      the

Exemptions for Executive, Administrative, Professional, Outside

Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,129 (Apr.

23, 2004) (the “Preamble”).                   In response, DOL promulgated a new

regulation,        29     C.F.R.     §    541.3,     clarifying    the     scope    of   the

exemptions         as     applied        to   blue     collar     workers     and     first

responders.        Preamble at 22,128–29.

       Subsection (a) of the new regulation provides that the Part

541 exemptions “do not apply to manual laborers or other ‘blue

collar’ workers who perform work involving repetitive operations

with       their   hands,       physical      skill     and     energy.”      29    C.F.R.

§ 541.3(a).         Subsection (b) is the “first responder regulation,”

with potential bearing on this case.                     Subsection (b) provides in


       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)(3).


                                               7
its   first   part       that   the   Part       541   exemptions      “do    not    apply

to . . . fire fighters” and other first responders, “regardless

of rank or pay level.”              

            In its second and

third parts, the regulation explains why:                          “Such employees do

not qualify as exempt executive employees because their primary

duty is not management of the enterprise . . . as required under

§   541.100,”      

      and    “[s]uch     employees       do   not

qualify as exempt administrative employees because their primary

duty is not the performance of work directly related to the

management or general business operations of the employer . . .

as required under § 541.200,” 

                                            B.

      The Fairfax County Fire and Rescue Department is organized

in a straightforward hierarchy.                  At the top is the Fire Chief,

in charge of the entire Department.                     Reporting directly to the

Fire Chief are three Assistant Fire Chiefs; beneath them on the

organizational chart are nine Deputy Fire Chiefs, followed by

Battalion Chiefs.            Five ranks down from the top are the Captain

positions     at    issue      in   this   suit,       reporting     directly       to   the

Battalion Chiefs.            The County treats all of these positions as

exempt from overtime pay requirements under the FLSA.

      Directly below the Captains on the organizational chart are

the   Department’s           Lieutenants,        followed     by    firefighters         and

technicians.         All       positions     below      the    Captain       position     —

                                             8
Lieutenants, firefighters, and technicians — are treated by the

County   as      non-exempt          under    the       FLSA    and    thus    entitled       to

overtime compensation.

     Although          the        parties     disagree         about     the    fundamental

character     of    the      Captains’       jobs,       the   record    reveals       certain

undisputed facts about the Captains’ specific responsibilities

and work activities.                The Department divides its Captains into

two groups.        The “Captain I” group includes Shift Commanders and

Safety Officers, and the “Captain II” group includes Station

Commanders       and     Emergency          Medical      Service       Supervisors         (“EMS

Supervisors”).         For every 24-hour shift, a Station Commander or

Shift    Commander           is    responsible          for    supervising          each    fire

station;    an     EMS    Supervisor         is       responsible      for    the    emergency

medical services for each “battalion,” or geographic region; and

a Safety Officer is assigned to one or two stations, providing

advice   on   any      safety        issues    that       arise    and   serving       as    the

Department’s primary contact concerning these issues.

     Station and Shift Commanders are what are commonly known as

“first responders.”                They report to every emergency call that

comes in during their shifts and is assigned to their engines:

A fire engine cannot leave the station without its designated

Station or Shift Commander on board, and these Captains may not

refuse to respond to a call.                      At the scene, Station and Shift

Commanders    work       side-by-side         with      their     subordinates,        wearing

                                                  9
the same protective gear.              With their crews, they operate hoses

and ladders, ventilate buildings, and force entry, running into

burning buildings to rescue victims or search for signs that a

fire will spread.           Station and Shift Commanders spend the same

amount of time responding to emergencies as their lower-ranked

colleagues assigned to their engines.

      EMS Supervisors and Safety Officers also are part of the

first-response         team;   like    Station    and   Shift    Commanders,       they

have no discretion as to whether they will respond to calls.

EMS   Supervisors       transport      emergency    medical     equipment    to    the

scene      of    emergencies     and    render      emergency     care,     such    as

controlling bleeding and performing CPR.                 They also conduct more

technical Advanced Life Support (“ALS”) at the scene of fires,

initiating       intravenous     drips,    checking     EKG     rhythms,    and    the

like.      Safety Officers transport emergency equipment that allows

them to monitor the safety of fire scenes, including measuring

gas levels and analyzing the structural integrity of buildings

that they and their colleagues will need to enter.

      As    is   to    be   expected,    the     Captains   spend   only    a   small

portion of their time actually fighting fires.                      Most of their

time is spent at the station, and of that time, the single

biggest block goes to daily training for their first-response

duties.     Like all first responders, the Captains are required to

participate       in    emergency      response    training,     which     takes    an

                                          10
average of approximately two hours per shift.                         Held to the same

physical fitness standards as other firefighters, the Captains

also must undergo daily physical fitness training with their

crews to ensure that they are physically able to perform their

first-response        functions.         That        physical         fitness      training

consumes an additional two hours or so each day.

     While at the station, the Captains also spend time — though

significantly    less     —    on    tasks        that   are     distinct        from    their

front-line     responsibilities.              First,       the    Station        and    Shift

Commanders      complete        annual        evaluation             reports       of     the

firefighters     in    their        crews.         According         to    the    Captains’

unrebutted deposition testimony, each Commander spends a maximum

of twelve hours per year on this task.                         EMS Supervisors spend

less; they are responsible only for evaluation addendums for

ALS-certified    personnel,          assessing       ALS      abilities      exclusively,

which takes approximately four hours per year.                            Safety Officers

have no responsibility for evaluations.

     The   Captains      have    no    authority         to    administer        discipline

without the approval of a Battalion or Deputy Chief.                                But the

Station and Shift Commanders are required to report disciplinary

infractions up the chain of command and then to administer the

discipline decided upon by the higher-ranking officers, tasks

which   take    no    more    than     three        hours      per    year.        The    EMS

Supervisors     and     Safety       Officers        have      less       involvement      in

                                             11
discipline.          EMS Supervisors occasionally take part in inquiries

into       medical    issues      and     are    infrequently            ordered    to     issue

discipline.            Safety       Officers          occasionally          participate       in

accident       review      boards        but    do    not     decide      the     appropriate

outcome.

       Similarly, while the Captains do not write or disseminate

station       policies,        Station         Commanders          are    responsible        for

updating      station      policies        on    an    annual       basis    so     that    they

conform to updates in County-wide policies.                               That task takes

less than five hours per year.                   Finally, Station Commanders and

EMS    Supervisors         create    “wish       lists”       of    supplies       for     their

stations, accounting for fewer than four hours per year.                                     The

Captains       do    not    set     or    control       the    budget,       hire    or     fire

employees, set minimum staffing levels, change employees’ work

schedules, or approve overtime. 4


       4
       Our focus is on the factual record as it pertains to the
specific tasks performed by the Captains, rather than general
descriptions of their jobs. That is because “the determination
of whether an employee is exempt is an inquiry that is based on
the particular facts of his employment and not general
descriptions.”   Ale v. Tenn. Valley Auth., 

, 689
(6th Cir. 2001) (holding employees non-exempt under executive
and administrative exemptions).    Here, the County’s primary
source of evidence is its own job descriptions of the Captain
positions, as well as descriptions from some of the Captains’
resumes. In this posture, and given record testimony supporting
the accuracy of the County-prepared materials, we assume these
job descriptions are true. But they are framed at a high level
of generality, and thus do not add appreciably to or call into
question the more specific evidentiary submissions of the


                                                12
                                  C.

      In January 2014, over a hundred current and former Captains

brought suit against the County for the denial of overtime pay.

After discovery, the parties cross-moved for summary judgment.

The County took the position that the Captains are exempt from

the   FLSA’s   overtime   pay   requirements,   under   the    executive

exemption with respect to Station and Shift Commanders and under

the administrative exemption with respect to EMS Supervisors and

Safety   Officers.    The   Captains   argued   that    the   undisputed

evidence showed that they do not fall within those exemptions,

particularly in light of the first responder regulation.




parties.    For instance, the class specification for Station
Commanders tells us that these Captains “[p]repare[] the budget
for the fire and rescue station.”   J.A. 1985.  But the parties
do not dispute that what that means in practice — at the level
of day-to-day job tasks on which the exemption inquiry turns —
is that the Captains prepare “wish lists,” or make funding
requests that must be approved by their supervisors.     It is
those more specific duties that we recount above, and on which
any finding of exemption must rest.       See Vela v. City of
Houston, 

, 677 (5th Cir. 2001) (city job
descriptions too general to support a finding that employees’
specific job duties qualify as exempt under executive or
administrative exemptions); 

–89 (employer
job descriptions and employee resumes too general and vague to
support a finding that “what [the] employee actually does on a
day-to-day basis” is exempt under executive or administrative
exemptions).




                                  13
      The district court awarded summary judgment to the County,

holding that all of the Captains are exempt executives.                             The

court relied on a series of Fourth Circuit decisions finding

that fire shift commanders, engine captains, and EMS captains in

counties     other   than   Fairfax        are    exempt   executives      under    the

FLSA.   Morrison v. Cty. of Fairfax, Civ. No. 1:14–cv–005, 

, at *3 (E.D. Va. Nov. 3, 2014) (citing Hartman v.

Arlington Cty., 

(4th Cir. 1990); Int’l Ass’n of

Fire Fighters v. City of Alexandria, 

(4th Cir.

1990); West v. Anne Arundel Cty., 

(4th Cir. 1998)).

Given those cases, the district court concluded, “the exempt

status of fire captains and EMS captains in the Fourth Circuit

is well-established.”        

   district      court    held,    did    the    first   responder

regulation, promulgated after those cases were decided, affect

the   analysis.       According      to     the    district    court,      the   first

responder regulation, like its companion provision in 29 C.F.R.

§   541.3,   addresses      only    “blue       collar”    employees.       “Read    in

context,” the court explained, “the First Responder Regulation

ensures the Executive Exemption does not apply to ‘blue collar’

firefighters, regardless of rank or pay,” and has no import for

non-blue collar employees like the Captains.                      

     The

Captains timely appealed.



                                           14
                                  II.

     Summary judgment is appropriate if no reasonable jury could

find for the nonmoving party.          Moss v. Parks Corp., 

, 738 (4th Cir. 1993).      We review the district court’s grant

of summary judgment de novo.       Newport News Holdings Corp. v.

Virtual City Vision, Inc., 

, 434 (4th Cir. 2011).

In doing so, we are mindful that the FLSA exemptions are to be

“narrowly   construed   against   the    employer[],”   and   that   the

employer must prove an exemption’s applicability by clear and

convincing evidence.    

& n.3, 692.         On

this record, we conclude that no reasonable jury could find by

clear and convincing evidence that the Captains are exempt from

the FLSA’s overtime mandate.

                                  A.

     We begin our analysis with the first responder regulation,

which speaks directly to the exempt status of firefighters and

other first responders under the FLSA.

     29 C.F.R. § 541.3 states, in relevant part:

     (a) The [Part 541] exemptions and the regulations in
     this part do not apply to manual laborers or other
     “blue collar” workers who perform work involving
     repetitive operations with their hands, physical skill
     and energy. . . .

     (b)(1) The [Part 541] exemptions and the regulations
     in   this   part   also  do   not   apply   to  police
     officers, . . . fire    fighters, . . . and    similar
     employees, regardless of rank or pay level, who
     perform work such as preventing, controlling or

                                  15
     extinguishing fires of any type; rescuing fire, crime
     or accident victims; . . . or other similar work.

          (2) Such employees do not qualify as exempt
     executive employees because their primary duty is not
     management of the enterprise in which the employee is
     employed or a customarily recognized department or
     subdivision thereof as required under § 541.100. Thus,
     for example, a police officer or fire fighter whose
     primary duty is to investigate crimes or fight fires
     is not exempt under [the executive exemption] merely
     because the police officer or fire fighter also
     directs the work of other employees in the conduct of
     an investigation or fighting a fire.

          (3) Such employees do not qualify as exempt
     administrative employees because their primary duty is
     not the performance of work directly related to the
     management or general business operations of the
     employer or the employer’s customers as required under
     § 541.200.

     The County does not dispute that the Captains in this case

qualify   under    the   first   paragraph   of   §   541.3(b)   as   “fire

fighters” who “perform work such as preventing, controlling or

extinguishing     fires.”     See   29   C.F.R.   §   541.3(b)(1).      The

district court nevertheless held the regulation inapplicable to

the Captains, on the ground that it addresses only “blue collar”

firefighters.     The Secretary of Labor, joined by the Captains,

disagrees, 5 and the County does not defend the district court’s

decision in this regard.



     5 At our request, the Secretary of Labor appeared as amicus
in this case.    The Secretary also submitted a letter amicus
brief addressing the scope of the first responder regulation in
the Second Circuit case of Mullins v. City of New York, 

(2011).


                                    16
       Like    the   Secretary      and   the      Captains,       we     believe     the

district court erred in conflating the first subsection of the

regulation, addressing “blue collar” and manual laborers, with

the second, covering first responders.                Although the blue collar

provision immediately precedes the first responder regulation,

there    is   no   basis    for   treating     the   two    as   overlapping;         the

separate      subsections     are   clearly     delineated,        with     the     first

providing that the exemptions in question do not apply to blue

collar employees, and the second that the exemptions “also do

not apply” to first responders.                 

(emphasis

added).       The Preamble to the regulation confirms this reading,

analyzing the two subsections separately and making clear that

they respond to distinct concerns.                 See Preamble at 22,128–29.

Whether the Captains could be considered “blue collar” employees

under § 541.3(a), in other words, is immaterial to their status

as first responders under § 541.3(b).

       Thus, the first responder regulation applies to this case,

and     provides     in    subsection     (b)(1)     that    the        executive    and

administrative exemptions at issue “do not apply” to the listed

firefighters — a group that concededly includes the Captains —

“regardless of rank or pay level.”                   29 C.F.R. § 541.3(b)(1).

That     is   “because,”      the   regulation       goes    on     to     say,     such

firefighters’ “primary duty is not management,” as required for

the executive exemption, 

or “the performance

                                          17
of work directly related to the management” of the Department,

as required for the administrative exemption, 

       This     regulatory           language         might      naturally        be     read      as

establishing         a    bright-line         rule     that      firefighters          and    other

first responders covered by § 541.3(b)(1) are non-exempt and

thus    entitled         to    overtime     compensation.             But    that      is    not     a

position      advanced         by    either      party      to   this     case,    nor       by    the

Secretary.        Instead, the parties agree with the Secretary that

under     the     first        responder         regulation,         as     before,         whether

firefighters are exempt executives or administrators is governed

by the “primary duty” standard, under which the Captains are

exempt if (and only if) their primary duty is “management,” 

         or        administrative           work        “directly           related

to . . . management,” 

       To defend that reading, the Secretary points to language in

the    regulation         referencing         the      primary       duty    standard.             By

explaining that first responders are not exempt “because their

primary    duty      is       not   management”        or     “the   performance         of       work

directly related to . . . management,” both subsections (b)(2)

and (b)(3), the Secretary argues, demonstrate that subsection

(b)(1)’s      rule       remains        “grounded      in    first      responders’         primary

duty.”        DOL Br. at 23.                Similarly, the example provided in

subsection      (b)(2)         —    a    “fire    fighter        whose      primary      duty       is

to . . . fight fires is not exempt . . . merely because” he or

                                                 18
she also supervises other employees — makes clear that the scope

of subsection (b)(1) is limited to firefighters whose primary

duty is not management or management-related.

      The Secretary, joined by the County, also directs us to the

Preamble to the first responder regulation, which clarifies that

the     purpose     of     the     regulation        is     not     to   “depart[]

from . . . established case law” applying the primary duty test

to    hold   that   first       responders     —   including      fire   department

captains     —    are     not    exempt      executives     or     administrators.

Preamble at 22,129 (describing, inter alia, Dep’t of Labor v.

City of Sapulpa, 

(10th Cir. 1994) (fire department

captains not exempt executives)).                  The Preamble also endorses

cases    holding        that    certain      “high-level     police      and   fire

officials” are exempt because “their primary duty is performing

managerial tasks,” noting as an “important fact” that “exempt

police   and     fire    executives    generally      are    not    dispatched   to

calls, but rather have discretion to determine whether and where

their assistance is needed.”              

          The upshot, the

Secretary argues, is that the Preamble confirms that the first

responder regulation does not supplant the primary duty test in

determining whether a particular first responder is exempt.

      Like the Second Circuit in Mullins v. City of New York, 

(2011), we will defer to the Secretary’s interpretation

of his agency’s regulation.           

       In Mullins, finding

                                          19
police sergeants non-exempt under the FLSA, the court carefully

considered the meaning of the first responder regulation, and

concluded that the Secretary’s interpretation “is not plainly

erroneous or inconsistent with [the] regulations,” and warrants

deference under Auer v. Robbins, 

(1997).                                  

.               We agree.         Though the regulation might be

subject to a broader reading, the interpretation proposed by the

Secretary (and uncontested by the parties) is not foreclosed by

unambiguous regulatory text.                    Nor is there anything to suggest

that    it   “does       not    reflect    the       agency’s      fair    and    considered

judgment,” 

; see 

;

indeed,      it    is     entirely    consistent            with    the     interpretation

offered by the Secretary in the Mullins litigation.

       Importantly,        reading        the    first      responder       regulation       to

incorporate        the    well-established            primary      duty    test    does     not

render the regulation meaningless.                          Rather, as the Secretary

urges, the regulation clarifies the application of the primary

duty    test      to    first    responders          like    the   Captains,       primarily

through the example offered in subsection (b)(2):                                 “Thus, for

example, a police officer or fire fighter whose primary duty is

to     investigate        crimes     or    fight       fires       is     not    [an    exempt

executive] merely because the police officer or fire fighter

also directs the work of other employees in the conduct of an

investigation or fighting a fire.”                     29 C.F.R. § 541.3(b)(2).             As

                                                20
the court explained in Mullins, that example can be read only as

a single illustration of a broader principle, establishing that

management-like        tasks   undertaken          in     conjunction          with,    or

directly related to, primary first responder duties do not turn

a first responder into an exempt executive or administrator.

(adopting Secretary’s interpretation);

see     also    

   (tasks        that    “relate       to”     or    are

“undertaken . . . in the course of performing” first responder

duties are non-exempt under first responder regulation); Barrows

v. City of Chattanooga, 

, 603 (E.D. Tenn.

2013)     (relying    on   Mullins    and       holding    that       “management      and

supervisory activities performed by the categories of employees

listed     in    §    541.3(b) . . . undertaken            as     a     part     of    the

employees’      primary    field     law        enforcement     duties”        are     non-

exempt). 6




      6 On this point, it appears that the County takes a
different view, suggesting that § 541.3(b)(2) is limited to its
express terms and clarifies only that a firefighter does not
become exempt by virtue of supervising other employees at the
scene of a fire.    But the prefatory language — “[t]hus, for
example” — makes plain that what follows is but one example of a
larger principle, 

, and that general
principle is not confined to tasks undertaken “in the field,”

the other hand, § 541.3(b)(2)’s single example were
understood to be the sum total of the regulation’s contribution
to the law, then the regulation would be rendered toothless:
The executive exemption already requires both that an employee
supervise other workers and that the employee’s primary duty be
management, see 29 C.F.R. § 541.100, so even without § 541.3(b),


                                           21
                                               B.

       We   must    now    determine          whether      there    is   evidence       in   the

record from which a reasonable jury could find that the County

has met its burden of showing, by clear and convincing evidence,

that   the    Captains         are     covered       by    the    Part    541    exemptions,

construed narrowly and against the employer.                             See 

& n.3, 692 (FLSA exemptions are narrowly construed,

and employer must show their application by clear and convincing

evidence).      That is a substantial burden, and the County cannot

meet it here.        Accordingly, the Captains are entitled to summary

judgment.

       The district court came to a different conclusion, awarding

summary     judgment      to     the    County       and    holding      that   all     of   the

Captains are exempt executives — even the EMS Supervisors and

Safety      Officers      as    to     whom    the    County       had   argued       only   the

administrative         exemption.             The    court       based    its   holding      on

precedent from our court, pre-dating the 2004 first responder

regulation,        finding       that    certain          fire    captains      were    exempt

executives.         See        Morrison,      

,      at    *3    (citing

Hartman, 

; Int’l Ass’n of Fire Fighters, 

; and West, 

).                  That reliance was misplaced.




supervision at the scene of a fire would not suffice to meet the
primary duty test.


                                               22
       First, because those cases were decided before the first

responder regulation was promulgated, they do not reflect the

clarification       of    the   primary     duty       standard      provided    by     that

regulation.     And more fundamentally, the applicability of the

exemptions must be determined based on the individualized facts

and record in each case, not on whether first responders in one

jurisdiction     happen         to    share      a     title       with   exempt      first

responders     in        another,     who      may      have       entirely     different

responsibilities         and    primary     duties.           On   this   point,      DOL’s

regulations are very clear, providing that “[a] job title alone

is insufficient to establish the exempt status of an employee.”

29 C.F.R. § 541.2; see also Walton v. Greenbrier Ford, Inc., 

, 453 (4th Cir. 2004) (to determine an employee’s exempt

status,   “courts        must   focus     on     the   actual       activities     of    the

employee”); Vela v. City of Houston, 

, 677 (5th Cir.

2001) (“The title of ‘captain’ provides no guidance on whether

[an]   exemption     applies;        rather,      a    fact-sensitive         inquiry     is

required.” (internal quotation marks and alteration omitted)).

And indeed, the cases cited by the district court are careful to

focus on the particular duties of the employees involved, as

opposed   to   the       employees’     titles.         See    Hartman    v.    Arlington

Cty., 

, 1229 (E.D. Va. 1989), aff’d, 

(4th Cir. 1990); Int’l Ass’n of Fire Fighters, 

, 1233 (E.D. Va. 1989), aff’d, 

(4th Cir. 1990);

                                            23


.                       The district court’s conclusion that

“the exempt status of fire captains and EMS captains in the

Fourth Circuit is well-established” — and its reliance on this

conclusion to determine that all of the Captains were exempt

executives — was thus unfounded.

       We    must       instead    consider           the    particular           record      in   this

case,       and    the     showing           the     County       has     made,      against       the

regulatory         standards           for     the       executive        and      administrative

exemptions         on    which     the        County        relies. 7         As    noted      above,

application         of    either       exemption           requires      that      an    employee’s

“primary duty” be management or management-related.                                           For the

County to prove that the Shift and Station Commanders are exempt

executives, it must show by clear and convincing evidence that

their primary duty is “management of the enterprise in which

[they are] employed or of a customarily recognized department or

subdivision thereof.”                  29 C.F.R. § 541.100(a)(2).                    And to prove

that       the    EMS     Supervisors              and     Safety       Officers        are    exempt

administrators, it must show by clear and convincing evidence

that their primary duty is “the performance of office or non-

manual      work     directly          related        to    the     management          or    general

business         operations       of    the        employer.”           

       7
       The County does not defend the district court’s holding
that EMS Supervisors and Safety Officers are exempt executives,
and instead reasserts the administrative exemption.


                                                    24
Finally, under the first responder regulation, tasks performed

as part of or in furtherance of the Captains’ first response

duties   are     not     deemed    “management”        and     will    not       render    the

Captains       exempt      from     overtime          pay     requirements.                

see 

; Barrows, 944 F.

Supp. 2d at 604.

       An employee’s “primary duty” is “the principal, main, major

or most important duty that the employee performs,” “based on

all the facts in a particular case, with the major emphasis on

the character of the employee’s job as a whole.”                                   29 C.F.R.

§ 541.700(a).          DOL has listed four non-exhaustive factors to

consider    in    determining        the       primary       duty     of    an     employee:

(1) “the relative importance of the exempt duties as compared

with   other     types    of     duties;”      (2)    “the    amount       of     time   spent

performing exempt work;” (3) “the employee’s relative freedom

from direct supervision;” and (4) “the relationship between the

employee’s salary and the wages paid to other employees for the

kind of nonexempt work performed by the employee.”                          

      factors,     and      taking    full    account       of    the

“character of the employee[s’] job as a whole,” no reasonable

jury   could     find,    by     clear   and     convincing         evidence,       that   the

Captains’      primary     job    duty    is     anything     other        than    emergency

response.      The first factor, the relative importance of exempt

duties, decidedly falls in the Captains’ favor.                              Whatever the

                                            25
precise importance of the Captains’ non-firefighting duties —

the evaluations, the disciplinary reports, the annual conforming

changes to station policies — it is clear that fighting fires is

the more important part of the job.                    When an emergency call

comes   in,    it   takes    priority,     and   the    Captains   do   not   have

discretion to decline to respond.                And unlike their superiors,

Captains are part of the core group of firefighters who are

required to respond to a typical call; an engine cannot leave

the station without its Captain on board.                 See Barrows, 944 F.

Supp. 2d at 604–05 (first response is fire captain’s primary

duty where he and subordinates are charged with “interrupting

whatever other task or activity they may have been involved in

to respond to a fire or emergency call”).                   In this way, the

Captains      are   quite    unlike   the      “high-level”    fire     officials

contemplated as exempt by the Preamble, with the “discretion to

determine      whether      and   where    their    assistance     is   needed.”

Preamble at 22,130.         The Captains’ deposition testimony confirms

that their most important duty is first response, and “making

sure that [they and the rest of the crew] are ready to go when

the . . . 911 call comes in.” J.A. 964–65.                    And although it

deposed numerous Fire Department employees, the County points to

no testimony or other concrete evidence — and we have found none

— specifically disputing that assessment and identifying some

other job duty as more important than first response.

                                          26
       Instead,    the     County   relies       most    heavily    on    the       second

factor — the amount of time spent on exempt managerial work.

The County repeatedly emphasizes that the Captains spend very

little    of    their    work    time     actually      responding    to      emergency

calls; it follows, the County argues, that first response cannot

be the Captains’ primary duty.                 And the district court seems to

have     agreed,       stressing        that     “[a]lthough       [the       Captains]

participate in emergency response, the bulk of their time” is

spent at the station.             Morrison, 

, at *1.                    We

think this analysis misapprehends both the nature of the “time”

factor and the nature of firefighting.

       First,     as    the     Barrows     court     explained,      that      a     fire

captain’s direct firefighting duties do not consume the majority

of his or her time is simply the nature of first response work:

“[T]he nature of the job of every front-line fire fighter[] is

generally to wait.         Any given day for a fire fighter may consist

of extended periods of boredom, punctuated by periods of urgency

and moments of terror.”             

–05.

And it would be illogical to give much weight to how much time a

Captain    devotes       to     answering        emergency    calls;       that       time

presumably      would    vary    from     year   to   year,   based      on   how     many

emergencies       arise,      without     changing      the   “character        of     the

employee’s job as a whole,” 29 C.F.R. § 541.700.



                                           27
       Second, the regulation directs attention not to the amount

of time spent performing non-exempt work like fighting fires,

but specifically to “the amount of time spent performing exempt

work.”       

(emphasis added).                     And it will not do

simply to assume, as the County seems to on occasion, that the

two are inversely correlated — that any time a Captain is not on

the    scene    of   a   fire,        he    or    she     is    engaged    in     an   exempt

managerial      task.         On      the        contrary,       some     of     the   things

firefighters do at the station while awaiting emergency calls,

like sleeping and eating, are decidedly non-managerial.                                   The

burden is on the County to come forward with evidence that the

Captains spend some significant portion of their time at the

station — the regulations suggest that “employees who spend more

than    50    percent    of     their       time      performing        exempt    work    will

generally       satisfy         the        primary        duty     requirement,”          

— on managerial or management-related tasks.

       But the County has produced no evidence of how much time

the Captains spend performing exempt management work, and the

evidence that the Captains have produced suggests that it is

very    little.        The    Captains’          unrebutted       deposition       testimony

shows    that   they     work    approximately            2600    hours    per    year,    but

spend    less   than     25     of    those       hours    on    identified       management

tasks: twelve hours completing annual evaluations, three hours

reporting disciplinary infractions and administering discipline

                                                 28
decided upon by their superiors, five hours updating station

policies      to    conform         to    county-wide           changes,   and       four    hours

creating station “wish lists” for purchases.

      Nor can the gap be filled with the approximately four hours

per   day    the     Captains        devote         to     a    combination     of      emergency

response and physical fitness training.                                The Captains undergo

the   same    training         as    all       of    the       other   firefighters         at   the

station      so    that   they,          along      with       their   crews,    are     able     to

fulfill their first responder obligations.                             That so much time is

devoted to this process only underscores the importance of those

direct response duties.                   And like other efforts to “assur[e] a

constant      state       of    preparedness,”                 such    training      “relate[s]

directly to [a fire captain’s] regular front line firefighting

duties,” and is therefore non-managerial and non-exempt under

the first responder regulation.                      

(citing Mullins and finding fire captains non-exempt under first

responder regulation and primary duty standard).

      To the extent the County argues that the Captains have a

role in supervising training that qualifies as managerial, we

disagree.         Supervision and management are two different things

under the executive exemption regulation, which requires both

before an employee may be categorized as exempt.                                See 29 C.F.R.

§   541.100(a)(2)–(3).                   And    even       read    narrowly,      the    example

provided in subsection (b)(2) of the first responder regulation

                                                    29
precludes us from classifying as “management” the supervision of

employees in the course of activities directly related to first

response duties.      See 

8

     The    remaining    two   factors,      supervision       and    salary,   are

similarly    unavailing    for   the     County.        As    to    the   Captains’

“relative freedom from direct supervision,” 

it is

undisputed that the Battalion Chiefs to whom the Captains report

are physically present at the station for some portion of many

shifts and, when they are not, “have daily telephone or email

contact”    with   the   Captains.       J.A.   2518.         The    Captains   also

presented evidence that their role is to carry out the orders of

their    superiors:      One   Captain      testified,       for    instance,   that

“[a]ny good captain will tell you he doesn’t have an opinion


     8 For this reason, as well, references to management-type
duties in County job descriptions or on Captain resumes are not
enough to show that the Captains’ duties qualify as “management”
under the executive exemption and first responder regulations.
It may be, for instance, that certain Captains, as per the
County’s class specifications, have responsibility for “station
management,” with duties that include “direct[ing] the overall
activities” of the station. J.A. 1984. But to the extent such
management   or   direction   takes   the    form   of   supervision,
particularly    supervision    related    to    first    response   —
“apportioning    work”  among    subordinates,     “determining   the
techniques and personnel to be used” in connection with first
response, “reallocating [subordinates’] activities,” and the
like — it is not exempt “management” activity under the
regulatory framework here. 

. And non-
supervisory duties that relate to ensuring operational readiness
for first response also are non-exempt under the relevant
regulations, even if they might be described colloquially as
“management.” 

.


                                       30
about anything.         He has whatever opinion the fire chief tells

him it is.”       J.A. 194.         The EMS Supervisors were described as

“aide[s] to the battalion chief,” J.A. 662, indicating something

other    than    freedom     from    supervision.        On    the    whole,      this

evidence — which the County does not dispute — cannot be said to

show clearly and convincingly that the Captains are relatively

free    from     supervision      and   therefore      exempt       executives     or

administrators.

       As to the “relationship between the [Captains’] salary and

the wages paid to other employees” for the same firefighting

work,   29     C.F.R.   §   541.700(a),       the   County    has    not   presented

evidence of a significant gap in pay.                To be sure, the Captains

are assigned a higher pay grade than the non-exempt Lieutenants

just below them in rank.            But the high end of the range for the

Lieutenants’ pay grade is higher than the low end of the range

for    the   Captains’      pay   grade.        Moreover,     because      they   are

considered non-exempt, Lieutenants make significantly more money

than Captains in overtime; multiple Captains testified that they

waited to ask for promotions because being promoted would lower

their total take-home pay.

       Finally, we are mindful that the “primary duty” analysis is

a holistic one, “based on all the facts in a particular case,”

and with the “major emphasis on the character of the employee’s

job as a whole.”            

we step back to employ that

                                         31
broader       lens,    it   confirms       what    the     factor-by-factor             analysis

tells        us:       On   the     record        evidence,       these       Captains        are

firefighters, not managers or administrators.

        On    the     one   hand,    the     County       has    produced         no    evidence

showing that the Captains perform the kind of specific high-

level management tasks ordinarily associated with executives or

administrators: planning and controlling a budget, selecting new

employees, setting rates of pay and hours of work, and the like. 9

Instead,       the    specific      duties    performed          by    Captains        that   are

distinct from first response and claimed as “management” by the

County        —     like    submitting        annual           evaluations,            reporting

infractions, and making conforming changes to station policies —

are largely “ministerial in nature.”                       

     (fire    captains      non-exempt          where    purported        managerial

tasks        are    “ministerial”      and        take     up    small       percentage       of

captains’ time).             It may be appropriate to think of a fire

official       responsible     for    “high-level          direction         of   operations”

rather than “front-line firefighting” as a manager first and a

firefighter          second,   see    

      (quoting




      9Budgeting authority, interviewing and selecting employees,
and establishing hours of work and rates of pay all are included
in a DOL regulation enumerating activities that may constitute
“management” for purposes of the executive exemption.      See 29
C.F.R. § 541.102.



                                              32
Secretary’s explanation of first responder regulation), but that

description does not fit these Captains.

       Front-line      firefighting,        on   the     other    hand,    is    at    the

center of the Captains’ jobs.                “Simply put, [the Captains are]

tasked with the responsibility of interrupting whatever other

task or activity they may have been involved in to respond to a

fire or emergency call.”            

.                  Like

their    subordinates,       with    whom      they    work    side-by-side      at    the

scene of a fire, the Captains are part of the minimum staffing

complement      for     emergency     calls.           And     when   they      are   not

responding to a call, the undisputed evidence shows, then they

are mostly likely to be spending their time preparing to respond

or    waiting    to    respond.       “Primary         duty”   has    a   common-sense

meaning under the Part 541 regulations — “the principal, main,

major or most important duty that the employee performs,” see 29

C.F.R. § 541.700(a) — and on this record, the County simply

cannot    show        that   fighting        fires,       rescuing        victims      and

administering         emergency     aid   is     not    the    principal       and    most

important job of the Captains.                 See 

  (“[A]lthough       [the     captain’s]     firefighting         duties    may    not

have been his most time-consuming, they were clearly the most

important duties that he performed.”); see generally Dalheim v.

KDFW-TV, 

, 1227 (5th Cir. 1990) (“[T]he employee’s



                                            33
primary duty will usually be what she does that is of principal

value to the employer.”). 10

       There is no doubt that application of the executive and

administrative         exemptions      calls      for   a    fact-intensive        inquiry.

See 

; see also 

(application of FLSA exemptions turns on employees’ particular

duties, and how employees actually spend their time is question

of fact).         But where the record evidence will not allow an

employer    to    meet    its    heavy      burden      of   showing,     by    clear     and

convincing       evidence,      that   an    exemption        applies,      then    summary

judgment     is    appropriate.             See     

(reversing award of summary judgment to city and directing entry

of summary judgment to first responders because city failed to

meet    burden    of    showing     that     management        is   first      responders’

primary duty); 

(reversing award of summary

judgment    to    city    and    directing        entry      of   judgment      for     first

responders where record evidence “d[id] not satisfy the City’s

burden of proving” application of executive or administrative

exemptions); see also 

(affirming award

       10
       For the reasons already given, we think that the County’s
own job descriptions are framed at a sufficiently high level of
generality that they shed little light on the issue before us.
We do note, however, that to the extent those materials
expressly address the “primary duty” question, it is to clarify
that although an EMS Supervisor “plays a vital role in battalion
planning and management,” his or her “primary responsibility
revolves around EMS activity.” J.A. 3148.


                                             34
of   summary      judgment     to    employer     where    uncontested      facts

established application of different FLSA exemption).                      On the

record here, no reasonable jury could find that the County has

shown     by   clear   and    convincing     evidence     that    the   Captains’

“primary       duty”   is    management     or    management-related.         The

Captains therefore are entitled to judgment as a matter of law. 11



                                      III.

        The County has not submitted evidence that would allow a

reasonable      jury   to    find,    under      the   clear     and    convincing

standard, that the Captains’ primary duty is anything other than

first response.        It follows that the Captains are not exempt


     11 Given our conclusion that the County has not met its
burden under the “primary duty” standard, the County cannot
succeed on its alternative argument that the Captains are exempt
under what is known as the “highly compensated employee”
exemption to the FLSA’s overtime pay mandate.          Under that
exemption, an employee who earns at least $100,000 per year
“will qualify for exemption if the employee customarily and
regularly performs any one or more of the exempt duties or
responsibilities of an executive, administrative or professional
employee.”    29 C.F.R. § 541.601(c).     So, for example, the
executive exemption may apply to a highly compensated employee
if the employee meets the supervision requirement by regularly
directing the work of two or more other employees, “even though
the employee does not meet all of the other requirements for the
executive exemption.”      

the highly
compensated employee exemption “applies only to employees whose
primary duty includes performing office or non-manual work.”

   Because the County has not shown that the
Captains’ primary duty is anything other than firefighting and
emergency aid, the County also cannot show that the Captains
fall within the highly compensated employee exemption.


                                       35
executives   or   administrators,    and    are   instead    entitled   to

overtime compensation under the FLSA.         Accordingly, we reverse

the district court’s judgment and remand with instructions to

enter   summary   judgment   for    the    Captains   on    the   County’s

liability under the FLSA.     The district court has not ruled on

the Captains’ request for liquidated damages, and we express no

opinion on damages or any other issue.

                                                  REVERSED AND REMANDED




                                    36