concurring.
I concur in Judge Cole’s analysis. I write separately simply to indicate my belief that we can decide this issue as a matter of law in favor of Plaintiff-Appellant Schaefer. I would therefore grant Plaintiffs motion for summary judgment and deny AEP’s.
The decision of whether an employee is exempt from the FLSA’s overtime compensation provisions under 29 U.S.C. § 213(a)(1) is primarily a fact question. Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203 F.3d 326, 330 (5th Cir.2000); see also Ale v. Tennessee Valley Auth., 269 F.3d 680, 688-89, 691 (6th Cir.2001) (stating that the DOL regulations indicate that courts must look to specific fact in determining whether an employee is exempted for overtime provisions, citing 29 C.F.R. § 541.103, 207(b)). However, the ultimate decision of whether the employee is exempt from the overtime compensation provision, § 207(a)(1), is a question of law. Ale, 269 F.3d at 691; Lott, 203 F.3d at 331.
In my view, AEP has, at a minimum, failed to create a genuine issue of fact on the question of whether Schaefer’s primary duty “includes work requiring exercise of discretion and independent judgment.” 29 C.F.R. § 541.1(e)(2); 29 C.F.R. § 541.214(a). As the majority points out in its analysis, AEP failed to demonstrate (as part of its burden in response to Schae-fer’s motion for summary judgment) that the “decisions” and “judgments” made by Schaefer when applying DOT regulations, require use of his discretion or judgment distinct from the application of skill or knowledge. That is, AEP’s examples of “judgments” made by Schaefer when applying the regulations entail only the application of his skill or knowledge.
Many skilled people, like electricians, nurses, and other skilled professionals and tradesmen, make all kinds of discretionary decisions in carrying out their skill, profession or trade, but that is not the kind of discretion envisioned by the short test. Indeed, the applicable regulation, explicitly makes this distinction. See Ale, 269 F.3d at 685 (stating that “section 541.207(c) distinguishes the exercise of discretion and independent judgement from the use of skill in applying techniques, procedures, or specific standards”).
Perhaps the most frequent cause of misapplication of the term “discretion and independent judgement” is the failure to distinguish it from the use of skill in various respects. An employee who merely applies his knowledge in the following prescribed procedures or deter*408mining which procedures follow, or who determines whether specified standards are met ... is not exercising discretion and independent judgement within the meaning of § 514.2. This is true even if there is some leeway in reaching a conclusion, as when an acceptable standard includes a range or tolerance above or below a specific standard.
29 C.F.R. § 541.207(c)(1) (2003). Schae-fer’s own testimony reflects that the decisions he makes are applications of his skill or knowledge as an environmental specialist in following proscribed procedures or determining which procedures to follow. See 29 C.F.R. § 541.207(c)(1). The district court did not consider this subsection (c)(1) in its analysis.
Furthermore, as the majority holds, of those tasks that indisputably require Schaefer to exercise discretion, “AEP has failed to establish the extent to which Schaefer completes these tasks as part of his primary duty.” Maj. Op., ante, at 405. Nor did AEP establish that Schaefer exercises discretion with sufficient frequency while completing condition reports as part of his primary duty. Thus, AEP has failed to meet its burden of establishing that Schaefer “customarily and regularly” exercises discretion and independent judgment. Having failed to meet its burden of-showing that the employee meets every aspect of the definition for an exempt employee, see Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960) (holding that employer bears burden of proof, on each and every element of the claimed exemption); see generally Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (application of an exception under the FLSA is a matter of affirmative defense, and the employer has the burden of proof), summary judgment for Schaefer is appropriate. I would therefore remand to the district court with instructions to enter summary judgment in favor of Schaefer.