Gina McKeen-chaplin v. Provident Savings Bank

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GINA MCKEEN-CHAPLIN, No. 15-16758
individually, on behalf of others
similarly situated, and on behalf of D.C. No.
the general public, 2:12-cv-03035-
Plaintiff-Appellant, GEB-AC

v.
OPINION
PROVIDENT SAVINGS BANK, FSB,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted April 21, 2017
San Francisco, California

Filed July 5, 2017

Before: Sidney R. Thomas, Chief Judge, Mary H. Murguia,
Circuit Judge, and Michael M. Baylson,* District Judge.

Opinion by Chief Judge Thomas

*
The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
2 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK

SUMMARY**

Labor Law

Reversing the district court’s grant of summary judgment
in favor of the defendant in an action under the Fair Labor
Standards Act, the panel held that mortgage underwriters
were entitled to overtime compensation for hours worked in
excess of forty per week.

Applying the analysis used by the Second Circuit, rather
than the Sixth Circuit, the panel held that, because the
mortgage underwriters’ primary job duty did not relate to
their employer bank’s management or general business
operations, the administrative employee exemption to the
Act’s overtime requirements did not apply.

COUNSEL

Matthew C. Helland (argued) and Daniel S. Brome, Nichols
Kaster LLP, San Francisco, California; for Plaintiff-
Appellant.

Michael L. Ludwig (argued), Howard M. Knee (argued), and
Caitlin Sanders, Blank Rome LLP, Los Angeles, California,
for Defendant-Appellee.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 3

OPINION

THOMAS, Chief Judge:

This appeal presents the question of whether a class of
mortgage underwriters are entitled to overtime compensation
under the Fair Labor Standards Act (“FLSA” or “the Act”),
29 U.S.C. § 201 et seq., for hours worked in excess of forty
per week. We conclude that, because the mortgage
underwriters’ primary job duty does not relate to the bank’s
management or general business operations, the
administrative employee exemption under 29 U.S.C.
§ 213(a)(1) and 29 C.F.R. § 541.200(a) does not apply,1 and
the underwriters are entitled to overtime compensation.

I

Provident Savings Bank (“Provident” or “the Bank”) sells
mortgage loans to consumers purchasing or refinancing
homes and then resells those funded loans on the secondary
market. Mortgage underwriters at Provident review mortgage
loan applications using guidelines established by Provident
and investors in the secondary market, including Fannie Mae,
Freddie Mac, and the Fair Housing Administration.

1
The mortgage underwriters also argue that they do not exercise
discretion and independent judgment with respect to matters of
significance, but we need not reach this argument because the test to
qualify for the administrative exemption under FLSA is conjunctive, not
disjunctive, see Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1125 (9th
Cir. 2002), and Provident bears the burden of proving the employees in
question satisfy each of the administrative exemption requirements, id. at
1124.
4 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK

Loan transactions begin with a loan officer or broker who
works with a borrower to select a particular loan product. A
loan processor then runs a credit check, gathers further
documentation, assembles the file for the underwriter, and
runs the loan through an automated underwriting system. The
automated system applies certain guidelines based on the
information input and then returns a preliminary decision.
From there, the file goes to a mortgage underwriter, who
verifies the information put into the automated system and
compares the borrower’s information against the applicable
guidelines, which are specific to each loan product.

Mortgage underwriters are responsible for thoroughly
analyzing complex customer loan applications and
determining borrower creditworthiness in order to ultimately
decide whether Provident will accept the requested loan.
They may impose conditions on a loan application and refuse
to approve the loan until the borrower satisfies those
conditions. The decision as to whether to impose conditions
is ordinarily controlled by the applicable guidelines, but the
underwriters can include additional conditions. They can also
suggest a “counteroffer”—which would be communicated
through the loan officer—in cases where a borrower does not
qualify for the loan product selected, but might qualify for a
different loan. Underwriters may also request that Provident
make exceptions in certain cases by approving a loan that
does not satisfy the guidelines.

After a mortgage underwriter approves a loan, it is sent to
other Provident employees who finalize the loan funding.
Underwriters say that whether a loan is funded ultimately
depends on factors beyond the underwriter’s control.
Another group of Provident employees sells funded loans in
the secondary market.
 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 5

On behalf of herself and a class of mortgage underwriters,
Gina McKeen-Chaplin brought this action seeking overtime
compensation under FSLA. The district court conditionally
certified an opt-in class of current and former mortgage
underwriters at Provident. Initially, the district court denied
cross motions for summary judgment and set the case for
trial. But later, on the parties’ joint motion for
reconsideration, the court concluded that the underwriters
qualify for the administrative exemption, based on finding
that their primary duty included “quality control” or similar
activities directly related to Provident’s general business
operations, and thus the district court granted summary
judgment in favor of Provident. This timely appeal followed.

Whether an employee’s primary duties exclude her from
FLSA overtime benefits is a question of law to be reviewed
de novo. Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1124
(9th Cir. 2002); Bratt v. Cty. of L.A., 912 F.2d 1066, 1068
(9th Cir. 1990). And we “must give deference to DOL’s [the
Department of Labor’s] regulations interpreting the FLSA.”
Webster v. Pub. Sch. Emps. of Wash., Inc., 247 F.3d 910, 914
(9th Cir. 2001) (citing Auer v. Robbins, 519 U.S. 452, 457
(1997)).

We review a district court’s grant of summary judgment
de novo. Swoger v. Rare Coin Wholesalers, 803 F.3d 1045,
1047 (9th Cir. 2015). Summary judgment is appropriate
where “no genuine dispute as to any material fact” exists such
that “the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a), (c). Though a denial of summary
judgment is ordinarily unappealable because it is not a final
order, where it is “coupled with a grant of summary judgment
to the opposing party,” both orders are reviewable de novo.
6 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK

Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir.
2002).

II

Ordinarily, FLSA provisions require employers to pay
employees time and a half for overtime work—that is, work
in excess of forty hours per week. 29 U.S.C. § 207(a)(1).
But employees who are “employed in a bona fide executive,
administrative, or professional capacity” are exempt from
those provisions. 29 U.S.C. § 213(a)(1). Employers who
claim the so-called administrative exemption under FLSA
bear the burden of proving its applicability to the employees
in question. Bothell, 299 F.3d at 1124. Exemptions are to be
construed narrowly. Id. at 1125. The overtime requirements
have long been intended to financially pressure employers to
“spread employment” and to assure workers “additional pay
to compensate them for the burden of a workweek beyond the
hours fixed in the [A]ct.” Overnight Motor Transp. Co., Inc.
v. Missel, 316 U.S. 572, 577–78 (1942), superseded by
statute, Portal-to-Portal Act, 61 Stat. 86–87 (authorizing
courts to deny or limit liquidated damages awarded for FLSA
violations), as recognized in Trans World Airlines v.
Thurston, 469 U.S. 111, 128 n.22 (1985). Thus, FLSA “is to
be liberally construed to apply to the furthest reaches
consistent with Congressional direction” and exemptions “are
to be withheld except as to persons plainly and unmistakably
within their terms and spirit.” Bothell, 299 F.3d at 1124–25
(quoting Klem v. Cty. of Santa Clara, 208 F.3d 1085, 1089
(9th Cir. 2000)).
 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 7

A

To determine whether employees qualify for the
administrative exemption, the Secretary of Labor has
formulated a “short duties test.” Bothell, 299 F.3d at 1126.2
A qualifying employee must (1) be compensated not less than
$455 per week; (2) perform as her primary duty “office or
non-manual work related to the management or general
business operations of the employer or the employer’s
customers;” and (3) have as her primary duty “the exercise of
discretion and independent judgment with respect to matters
of significance.” 29 C.F.R. § 541.200(a). An employee’s
primary duty is “the principal, main, major or most important
duty that the employee performs.” 29 C.F.R. § 541.700(a).
These three conditions “are explicit prerequisites to
exemption, not merely suggested guidelines.” Arnold v. Ben
Kanowsky, Inc., 361 U.S. 388, 392 (1960).

Accordingly, Provident must prove that the mortgage
underwriters meet all three duty requirements. See Bothell,
299 F.3d at 1125 (citing Mitchell v. Williams, 420 F.2d 67, 69
(8th Cir. 1969) (“The criteria provided by regulations are
absolute and the employer must prove that any particular
employee meets every requirement before the employee will
be deprived of the protection of [FLSA].”)); Bratt, 912 F.2d
at 1069. It is undisputed that the salary requirement is

2
We have explained previously that the Secretary’s new regulations
issued in 2004 do “not represent a change in the law.” In re Farmers Ins.
Exch., 481 F.3d 1119, 1128 (9th Cir. 2007); see also Roe-Midgett v. CC
Services, Inc., 512 F.3d 865, 870–71 (7th Cir. 2008) (noting that the new
“general rule . . . merely restates the short test’s two ‘duties’
requirements” and that the “Secretary has characterized the promulgation
of the new rules as an effort to ‘consolidate and streamline’ the dense and
unwieldy regulatory text of the old regulations”).
8 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK

satisfied. But because the underwriters’ duties go to the heart
of Provident’s marketplace offerings, not to the internal
administration of Provident’s business, see Bothell, 299 F.3d
at 1126, Provident cannot prove that the mortgage
underwriters qualify for the administrative exemption.

B

To satisfy the second requirement, an employee’s primary
duty must involve office or “non-manual work directly
related to the management policies or general business
operations” of Provident or Provident’s customers. Bothell,
299 F.3d at 1125 (emphasis in original) (quoting 29 C.F.R.
§ 541.200). Said otherwise, “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 establishment.” 29 C.F.R.
§ 541.201(a). Courts of appeal commonly refer to this
framework for understanding whether employees satisfy the
second requirement as the “administrative-production
dichotomy.” Its purpose is “to distinguish ‘between work
related to the goods and services which constitute the
business’ marketplace offerings and work which contributes
to ‘running the business itself.’” DOL Wage & Hour Div.
Op. Ltr., 2010 WL 1822423, *3 (Mar. 24, 2010) (quoting
Bothell, 299 F.3d at 1127 (quoting Bratt, 912 F.2d at 1070)).
In our own words, “[t]his requirement is met if the employee
engages in ‘running the business itself or determining its
overall course or policies,’ not just in the day-to-day carrying
out of the business’ affairs.” Bothell, 299 F.3d at 1125
(quoting Bratt, 912 F.2d at 1070); see also Dalheim v.
KDFW-TV, 918 F.2d 1220, 1230 (5th Cir. 1990) (describing
the dichotomy as distinguishing between “employees whose
 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 9

primary duty is administering the business affairs of the
enterprise from those whose primary duty is producing the
commodity or commodities, whether goods or services, that
the enterprise exists to produce and market”).

But the dichotomy “is only determinative if the work
‘falls squarely on the production side of the line.’” 69 Fed.
Reg. 22122, 22141 (Apr. 23, 2004) (quoting Bothell, 299 F.3d
at 1127).3 And this means the analysis can be complicated.
In fact, in the last decade, two of our sister Circuits have
assessed whether mortgage underwriters qualify for FLSA’s
administrative exemption and have come to opposite
conclusions. The Second Circuit held in Davis v. J.P.
Morgan Chase & Co., 587 F.3d 529 (2d Cir. 2009), that “the
job of underwriter . . . falls under the category of production
rather than of administrative work.” Id. at 535.

In contrast, the Sixth Circuit held recently that mortgage
underwriters are exempt administrators, explaining that they
“perform work that services the Bank’s business, something
ancillary to [the Bank’s] principal production activity.” Lutz
v. Huntington Bancshares, Inc., 815 F.3d 988, 995 (6th Cir.

3
See, e.g., Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 532 (2d
Cir. 2009) (“The line between administrative and production jobs is not
a clear one, particularly given that the item being produced—such as
‘criminal investigations’—is often an intangible service rather than a
material good.”); Desmond v. PNGI Charles Town Gaming, LLC,
564 F.3d 688, 694 (4th Cir. 2009) (“Although the administrative-
production dichotomy is an imperfect analytical tool in a service-oriented
employment context, it is still a useful construct.”); Martin v. Indiana
Michigan Power Co., 381 F.3d 574, 582 (6th Cir. 2004) (pointing out that
the administrative-production dichotomy is not absolute); Reich v. John
Alden Life Ins. Co., 126 F.3d 1, 9 (1st Cir. 1997) (“[A]pplying the
administrative-production dichotomy is not as simple as drawing the line
between white-collar and blue-collar workers.”).
10 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK

2016). In disagreeing with the Second Circuit, the Sixth
Circuit understood mortgage underwriters to perform
“administrative work because they assist in the running and
servicing of the Bank’s business by making decisions about
when [the Bank] should take on certain kinds of credit risk,
something that is ancillary to the Bank’s principal production
activity of selling loans.” Id. at 993; see also id. at 995
(explaining that Sixth Circuit precedent focuses “on whether
an employee helps run or service a business—not whether
that employee’s duties merely touch on a production
activity”).4

Given the undisputed facts presented in this case, we
conclude that the Second Circuit’s analysis in Davis should
apply. Provident’s mortgage underwriters do not decide if
Provident should take on risk, but instead assess whether,
given the guidelines provided to them from above, the
particular loan at issue falls within the range of risk Provident
has determined it is willing to take. Assessing the loan’s
riskiness according to relevant guidelines is quite distinct
from assessing or determining Provident’s business interests.
Mortgage underwriters are told what is in Provident’s best
interest, and then asked to ensure that the product being sold
fits within criteria set by others. In Davis, the Second Circuit
came to a similar conclusion:

Underwriters . . . performed work that was
primarily functional rather than conceptual.

4
The Lutz court did not cite this Circuit’s case law applying the
administrative exemption—which has been endorsed by DOL in several
documents. See, e.g., 69 Fed. Reg. at 22141 (quoting Bothell, 299 F.3d at
1127); DOL Wage & Hour Div. Op. Ltr., at *3 (Mar. 24, 2010) (citing
Bothell, 299 F.3d at 1127).
 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 11

They were not at the heart of the company’s
business operations. They had no
involvement in determining the future strategy
or direction of the business, nor did they
perform any other function that in any way
related to the business’s overall efficiency or
mode of operation. It is undisputed that the
underwriters played no role in the
establishment of [the Bank’s] credit policy.

587 F.3d at 535. We agree.

C

DOL’s codified examples of exempt administrative
employees, including especially the descriptions of insurance
claims adjusters and employees in the financial services
industry, buttress our conclusion. 29 C.F.R. § 541.203(a),
(b). Recently, in In re Farmers Ins. Exch., 481 F.3d 1119
(9th Cir. 2007), we considered whether claims adjusters of
many varieties are exempt from FLSA’s overtime provisions.
Id. at 1124. We relied heavily on DOL’s regulations and also
on several DOL Opinion Letters that discussed claims
adjusters. Id. at 1128–29. As we explained then, “the fact
that the adjusters ‘are not merely pursuing a standardized
format for resolving claims, but rather are using their own
judgment about what the facts show, who is liable, what a
claim is worth, and how to handle the negotiations with either
a policyholder or a third-party’” was “[e]ssential to the
DOL’s opinion.” Id. at 1128 (quoting at DOL Wage & Hour
Div. Op. Ltr., at 4–5 (Nov. 19, 2002)).

Specifically, the example describes duties such
as “interviewing,” “inspecting property damage,”
12 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK

“reviewing factual information,” “evaluating and making
recommendations regarding coverage of claims,”
“determining liability,” “negotiating settlements,” and
“making recommendations regarding litigation.”5 29 C.F.R.
§ 541.203(a). These duties differ from the duties of
Provident’s mortgage underwriters. The underwriters do not
interview or inspect property, negotiate settlements or make
litigation recommendations. They do review factual
information and evaluate the loan product and consumer
information and, in a sense, they assess liability in the form
of risk, although that assessment is subject to guidelines that
they do not formulate. See DOL Wage & Hour Div. Op. Ltr.,
at *2 (Oct. 29, 1985) (distinguishing appraisers from claims
adjusters by pointing out that appraisers “merely inspect
damaged vehicles to estimate the cost of labor and materials
and to reach an agreed price for repairs . . . are guided
primarily by their skill and experience and by written
manuals of established labor and material costs”).

The financial-services industry example also includes
descriptors that do not correspond with the underwriters’
primary duty, which aims more at producing a reliable loan
than at “advising” customers or “promoting” Provident’s
financial products. See 29 C.F.R. § 541.203(b). Although
mortgage underwriters do “collect[] and analyz[e]

5
In full, the example reads: “Insurance claims adjusters generally
meet the duties requirements for the administrative exemption, whether
they work for an insurance company or other type of company, if their
duties include activities such as interviewing insureds, witnesses and
physicians; inspecting property damage; reviewing factual information to
prepare damage estimates; evaluating and making recommendations
regarding coverage of claims; determining liability and total value of a
claim; negotiating settlements; and making recommendations regarding
litigation.” 29 C.F.R. § 541.203(a).
 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 13

information regarding the customer’s income, assets,
investments or debts,” and do sometimes “determin[e] which
financial products best meet the customer’s needs and
financial circumstances,” they do not “advis[e]” customers at
all, nor do they “market[], servic[e] or promot[e] the
employer’s financial products.”6 As the Department of Labor
has noted, “[w]ork does not qualify as administrative simply
because it does not fall squarely on the production side of the
line.” DOL Wage & Hour Div. Op. Ltr., at *3 (Mar. 24,
2010).

Moreover, the financial-services-industry example does
not “create[] an alternative standard for the administrative
exemption for employees in the financial services industry”
and it “is not an alternative test, and its guidance cannot result
in the ‘swallowing’ of the requirements of 29 C.F.R.
§ 541.200.” Id. at *8; see also Perez v. Mortgage Bankers
Ass’n, 135 S. Ct. 1199, 1205, 1206–07 (2015) (holding that
DOL’s decision to withdraw its 2006 opinion letter in its
2010 letter did not require notice-and-comment procedures
because both were interpretive rules).

DOL has also specifically analyzed mortgage loan
officers and made clear that they “do not qualify as bona fide

6
In full, the regulation states: “Employees in the financial services
industry generally meet the duties requirements for the administrative
exemption if their duties include work such as collecting and analyzing
information regarding the customer’s income, assets, investments or debts;
determining which financial products best meet the customer’s needs and
financial circumstances; advising the customer regarding the advantages
and disadvantages of different financial products; and marketing, servicing
or promoting the employer’s financial products. However, an employee
whose primary duty is selling financial products does not qualify for the
administrative exception.” 29 C.F.R. § 541.203(b).
14 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK

administrative employees” because they “have a primary duty
of making sales for their employers.” DOL Wage & Hour
Div. Op. Ltr., at *9 (Mar. 24, 2010). Mortgage underwriters
are distinct from mortgage loan officers in the mortgage
production process—most significantly because their primary
duty is not making sales on Provident’s behalf. But they are
not so distinct as to be lifted from the production side into the
ranks of administrators.

Thus, we conclude that where a bank sells mortgage loans
and resells the funded loans on the secondary market as a
primary font of business, mortgage underwriters who
implement guidelines designed by corporate management,
and who must ask permission when deviating from protocol,
are most accurately considered employees responsible for
production, not administrators who manage, guide, and
administer the business. See Davis, 587 F.3d at 353 (“[W]e
have drawn an important distinction between employees
directly producing the good or service that is the primary
output of a business and employees performing general
administrative work applicable to the running of any
business.”); DOL Wage & Hour Div. Op. Ltr., at *3 (Mar. 24,
2010) (quoting Davis, 587 F.3d at 353); see also In re
Farmers Ins., 481 F.3d at 1129 (“We must give deference to
the DOL’s interpretation of its own regulations.”).

D

The district court concluded that Provident underwriters
performed work that related to “quality control,” such that it
constituted “[w]ork directly related to management or general
business operations,” within the meaning of 29 C.F.R.
§ 541.201(b). But this was a legal conclusion as to the
 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 15

underwriters’ quality control function that was not supported
by the record evidence.

The underwriters’ statement of undisputed facts outlined
several significant aspects of Provident’s quality control
process. First, prior to closing, Provident used an outside
company to perform quality control functions, primarily
assessing for material deficiencies that affect salability. That
quality control check pulls approximately five per cent of
loans, and completely re-underwrites them. Second, a pre-
closing quality control process generates reports that are
provided to underwriters, and sends a monthly report to
Provident’s Vice President of Mortgage Operations. Third,
the loan servicing department performs post-closing quality
control and completely underwrites ten per cent of loans.
That department is not staffed by mortgage underwriters.
Fourth, the internal audit department reviews the loan process
annually.

In recounting the undisputed facts, the district court’s
opinion does not mention quality control, yet it made the
legal conclusion that Provident’s underwriters qualify for the
administrative exemption primarily because of their quality
control duties. The district court mentioned that “Provident
uses an outside company to perform quality control
functions,” and “has an internal Corporate Loan Committee
that completely re-underwrites 10% of the loans.” Without
discussing the significance of those facts, however, the
district court then stated that because the “underwriters ‘must
apply Provident’s guidelines or lending criteria as well as
agency guidelines . . . to determine whether [a] particular loan
falls within the level of risk Provident is willing to accept . . .
Provident has shown Plaintiffs’ primary duty included
16 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK

‘quality control,’” such that they are entitled to the
administrative exemption.

The record does not support this conclusion. And the
district court made no finding as to the legal significance of
the quality control functions that the record establishes are in
place at Provident.

Provident contends that because the underwriters do not
work on a manufacturing production line and do not sell, they
cannot fall on the production side of the administrative-
production dichotomy. This assertion fails to take into
account the mortgage underwriters’ role within Provident.
Indeed, to permit the administrative exemption of an
assembly line worker who checks whether a particular part
was assembled properly—simply because that role bears a
resemblance to quality control—would run counter to the
essence of FLSA. But even if mortgage underwriters could
not be cast by analogy as workers in an assembly line, the
administrative-production dichotomy is not a perfectly
determinative one, and the law requires that we construe the
administrative exemption narrowly against the employer.

Mortgage underwriters are essential to Provident’s
business, as are loan officers and many others who do not
qualify for FLSA’s administrative exemption. See Martin v.
Cooper Elec. Supply Co., 940 F.2d 896, 903 (3d Cir. 1991)
(“[I]t is important to consider the nature of the employer’s
business when deciding whether an employee is an
administrative or production worker.”). However, the
question is not whether an employee is essential to the
business, but rather whether her primary duty goes to the
heart of internal administration—rather than marketplace
offerings. See Bothell, 299 F.3d at 1126. Mortgage
 MCKEEN-CHAPLIN V. PROVIDENT SAVINGS BANK 17

underwriters at Provident are not administrators or corporate
executives; their tasks are related to the production side of the
enterprise.

E

For these reasons, we must reverse the district court’s
grant of summary judgment in favor of Provident and remand
with instructions to enter summary judgment in favor of Gina
McKeen-Chaplin and the mortgage underwriters.

REVERSED.