William Ellington v. City of East Cleveland ; Eric J. Brewer

*The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0246p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
WILLIAM ELLINGTON ,
Plaintiff-Appellant,
v.
CITY OF EAST CLEVELAND ; ERIC J. BREWER ,
Defendants-Appellees.
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N
No. 11-3700
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:10-cv-311—Solomon Oliver, Jr., Chief District Judge.
Argued: May 30, 2012
Decided and Filed: August 6, 2012
Before: DAUGHTREY and CLAY, Circuit Judges; CLELAND, District Judge.*
_________________
COUNSEL
ARGUED: Bruce B. Elfvin, ELFVIN BESSER, Cleveland, Ohio, for Appellant. Ronald
K. Riley, CITY OF EAST CLEVELAND, East Cleveland, Ohio, for Appellees.
ON BRIEF: Bruce B. Elfvin, Barbara Kaye Besser, Stuart Torch, ELFVIN BESSER,
Cleveland, Ohio, for Appellant. Ronald K. Riley, CITY OF EAST CLEVELAND, East
Cleveland, Ohio, for Appellees.
_________________
OPINION
_________________
CLELAND, District Judge. In August 2008, Plaintiff William Ellington accepted
the position of Deputy Clerk of the City Council of East Cleveland and walked into a
political crossfire. The City Council wanted him in, but the then-Mayor, Defendant Eric
1

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1The parties offer competing averments regarding the motive behind Mayor Brewer’s actions.
According to Ellington, Mayor Brewer expressed personal objections to the hiring of Ellington during an
executive session of the City Council on August 28, 2008. Defendants, alternatively, contend that Mayor
Brewer was simply following the advice of Johnson, who informed Mayor Brewer that the City Council’s
Brewer, stood in the way. Not until November 2008, after the resolution of an
approximately three-month-long standoff between the City Council and the Mayor, did
Ellington begin receiving regular paychecks and compensation for wages unpaid since
he had begun performing services.
Ellington later filed this lawsuit in the United States District Court for the
Northern District of Ohio alleging that Defendants’ failure to issue him paychecks
between August 2008 and November 2008 violated the minimum wage and overtime
provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201–219, article II,
section 34a of the Ohio Constitution (Section 34a or § 34a); and the Ohio Minimum Fair
Wage Standards Act (OMFWSA), Ohio Rev. Code §§ 4111.01–.99. On cross-motions
for summary judgment, the district court concluded that Ellington, as an employee of the
City Council, was subject to the “legislative employee” exclusions to the federal and
state minimum wage and overtime provisions and granted summary judgment in favor
of Defendants. In this matter of first impression in this Circuit, we AFFIRM.
I. BACKGROUND
On August 5, 2008, the City Council for the City of East Cleveland (“City
Council”) interviewed Ellington for the position of Deputy Clerk of City Council
(“Deputy Clerk”). Following the interview, the City Council convened an executive
session closed to the public and selected Ellington to fill the position of Deputy Clerk.
The next day Ellington accepted the offer from the Clerk of City Council, Melvin Davis.
Ellington reported to work on or around August 11, 2008. During a special meeting on
August 14, 2008, the City Council ratified its offer of employment to Ellington. Present
at the meeting were Almeta Johnson, the Law Director of the City of East Cleveland, and
the then acting Mayor, Eric Brewer. After the meeting, Mayor Brewer refused to sign
Ellington’s Personnel Transaction Form and directed city employees to refrain from
issuing paychecks to Ellington.1

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August 5 executive session and August 14 special meeting violated Ohio’s “Sunshine Law.” The district
court did not address this apparent disputed fact. Because Mayor Brewer’s motive is irrelevant to a
determination of whether Ellington qualifies as an employee under the FLSA, the issue does not preclude
the grant of summary judgment to Defendants.
In spite of Mayor Brewer’s refusal to sign off on Ellington’s hiring, Ellington
continued to report to work from August 2008 to November 2008 and received
assignments from City Council members and Davis, but all this while he received no
paychecks.
Ellington initiated a lawsuit against Defendants in the Cuyahoga County
Common Pleas Court in October 2008 seeking recovery of unpaid wages. Two days
after Ellington commenced the lawsuit in state court, the City Council held another
special meeting and passed a resolution commanding that Ellington be paid for his work
as Deputy Clerk. Mayor Brewer vetoed the resolution and again refused to authorize the
issuance of paychecks to Ellington. The standoff between the City Council and the
Mayor finally reached a resolution on November 19, 2008, when Mayor Brewer signed
a City Council resolution authorizing the payment of unpaid wages in the amount of
$8,674.27 to Ellington.
In October 2009, nearly a year after Mayor Brewer authorized payment of
Ellington’s unpaid wages, a panel conducting court-sponsored arbitration in the state-
court lawsuit awarded Ellington $17,348.54 in damages. Defendants apparently
appealed the arbitration award in the common pleas court and sought a trial de novo on
Ellington’s claims. Ellington voluntarily dismissed without prejudice the state-court
action, and filed a verified complaint in the United States District Court for the Northern
District of Ohio, alleging that Defendants failed to pay minimum wages and overtime
in violation of federal and state labor law. In October 2010, Ellington and Defendants
filed independent motions for summary judgment. The district court granted
Defendants’ motion and denied Ellington’s, finding that Ellington did not qualify as an
“employee” subject to the protections of the FLSA, § 34a, or the OMFWSA. Ellington
appeals this order.

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II. ANALYSIS
A. Standard of Review
We review de novo a district court’s grant of summary judgment. United
Steelworkers v. Cooper Tire & Rubber Co., 474 F.3d 271, 277 (6th Cir. 2007). Under
Federal Rule of Civil Procedure 56, summary judgment is proper where “the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” White v. Baxter Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008)
(internal quotation marks omitted). The moving party “bears the initial burden of
identifying those parts of the record which demonstrate the absence of any genuine issue
of material fact.” Id. at 389–90 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). Where the moving party carries its initial burden, the nonmoving party “may
not rest upon its mere allegations or denials of the adverse party’s pleadings, but rather
must set forth specific facts showing that there is a genuine issue for trial.” Moldowan
v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009).
B. Discussion
Ellington asserts two claims of error on appeal. First, he challenges the district
court’s finding that the “legislative employee” exclusions to the FLSA, the OMFWSA,
and § 34a applied to his position as Deputy Clerk. And, second, he argues that the
district court did not appropriately construe the facts in a light most favorable to him as
is required by Federal Rule of Civil Procedure 56.
1. “Legislative employee” exclusions under the FLSA, the Ohio Constitution, and the
OMFWSA
a. The FLSA
In 1938, Congress enacted the FLSA to remedy “labor conditions detrimental to
the maintenance of the minimum standard of living necessary for health, efficiency, and
general well-being of workers.” 29 U.S.C. § 202(a). The FLSA requires, inter alia,
employers to pay employees engaged in commerce a wage consistent with the minimum

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wage established by the Act, id. § 206(a), and “provides that employers may not require
employees to work more than forty hours per workweek unless those employees receive
overtime compensation at a rate of not less than one-and-one half times their regular
pay,” Baden-Winterwood v. Life Time Fitness, Inc., 566 F.3d 618, 626 (6th Cir. 2009)
(citing 29 U.S.C. § 207(a)(1)). The Supreme Court has indicated that the FLSA is to be
construed liberally, “recognizing that broad coverage is essential to accomplish the goal
of outlawing from interstate commerce goods produced under conditions that fall below
minimum standards of decency.” Tony & Susan Alamo Found. v. Sec’y of Labor
(Alamo), 471 U.S. 290, 296 (1985) (citing Powell v. U.S. Cartridge Co., 339 U.S. 497,
516 (1950)).
In spite of the expansive nature of the FLSA’s coverage, the Act expressly
defines “employee” so as to exclude a number of groups of working individuals from its
provisions. See 29 U.S.C. § 203(e) (“Except as provided in paragraphs (2), (3), and
(4), the term “employee” means any individual employed by an employer.”). Individuals
who work for a state or a political subdivision thereof are not “employees” under the Act
if they are not subject to the state’s or political subdivision’s civil service laws and fall
within one of the following enumerated exclusions established by Congress: (1) elected
officials, id. § 203(e)(2)(C)(ii)(I); (2) individuals who are chosen by an elected official
to be a member of his or her personal staff, id. § 203(e)(2)(C)(ii)(II); (3) individuals
appointed to a policymaking position by an elected official, id. § 203(e)(2)(C)(ii)(III);
(4) immediate advisors to elected officials who counsel the official on his or her
constitutional or legal powers, id. § 203(e)(2)(C)(ii)(IV); and (5) employees of the
legislative branch or legislative body of a State or political subdivision that are not
employed by a legislative library, id. § 203(e)(2)(C)(ii)(V). Although an individual may
be subject to more than one exclusion under § 203(e)(2)(C)(ii)—consider, for example,
a city council member who is presumably both an elected official and an employee of
the legislative body of a political subdivision—courts have developed independent
standards to determine whether a given exclusion applies to an individual employed by
a state or political subdivision. See, e.g., Birch v. Cuyahoga Cnty. Probate Ct., 392 F.3d
151, 158–61 (6th Cir. 2004) (applying separate standards to determine whether the

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“personal staff” and “policymaker” exclusions to the FLSA and Title VII of the Civil
Rights Act of 1964 applied to a probate court magistrate); c.f. Nichols v. Hurley, 921
F.2d 1101, 1108 (10th Cir. 1990) (declining to adopt Fourth Circuit’s “personal staff”
exclusion analysis because it mistakenly considered “factors that concern two other
exceptions to the definition of employee, not the personal staff exception”).
Relevant to this case is the exclusion from coverage of individuals employed by
the legislative branch or body of a political subdivision:
(2) In the case of an individual employed by a public agency, [employee]
means—
. . .
(C) any individual employed by a State, political
subdivision of a State, or an interstate governmental
agency, other than such an individual—
(i) who is not subject to the civil service laws of
the State, political subdivision, or agency which
employs him; and
(ii) who—
. . .
(V) is an employee in the legislative branch or
legislative body of that State, political
subdivision, or agency and is not employed by the
legislative library of such State, political
subdivision, or agency.
29 U.S.C. § 203(e) (emphasis added). Although this case provides us with the first
opportunity to interpret and apply the “legislative employee” exclusion, the statutory
language is unambiguous. The exclusion has three conjunctive elements: (1) the
individual must be employed by a state or a political subdivision thereof; (2) he or she
must not be subject to the civil service laws of the State or political subdivision; and
(3) he or she must be employed by the legislative branch or body of a State or political
subdivision but not by a legislative library. When these elements are satisfied, a plaintiff

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does not fall within the coverage of the FLSA and may not maintain a claim under the
Act.
Ellington does not contest the district court’s conclusion that the first two
elements of the exclusion are satisfied in this case. As to the first element, the district
court observed that both sides, despite disagreeing as to who Ellington’s ultimate
employer was, acknowledged that Ellington was employed by a political subdivision of
the state. Ellington v. City of E. Cleveland, No. 10-CV-311, 2011 WL 2149364, at *4
(N.D. Ohio May 31, 2011) (unpublished). Nor is it disputed that the civil service laws
of Ohio and the City of East Cleveland do not apply to Ellington’s position as Deputy
Clerk. The district court, after examining Ohio law and the City of East Cleveland’s
Charter, found that “[Ellington’s] employment is an ‘unclassified’ position under the
Charter, and [Ellington] has not offered any evidence to rebut case law and Defendants’
evidence that the civil service laws do not govern ‘unclassified’ employees in Ohio.”
Id.
Ellington argues that the district court erroneously found the third element of the
exclusion satisfied by ignoring the holding in Birch, a case he contends is binding
precedent and precludes a finding that he is a legislative employee. Birch, however, is
not controlling in this case, as it only addressed the scope of the “personal staff” and
“policymaking” exclusions of the FLSA. It does not discuss, nor even cite, the FLSA’s
“legislative employee” exclusion. See Birch, 392 F.3d at 158–61. Ellington’s entire
argument that the district court applied the wrong analysis is premised on conflating the
FLSA’s “legislative employee” exclusion with its “personal staff” exclusion. Were we
to accept Ellington’s contention that Birch’s “personal staff” analysis applies equally to
the determination of whether an individual is a legislative employee, the “legislative
employee” exclusion would become mere surplusage in the FLSA, a result we must
avoid if at all possible when interpreting statutory provisions. See Astoria Fed. Sav. &
Loans Ass’n v. Solimino, 501 U.S. 104, 112 (1991) (“[W]e construe statutes, where
possible, so as to avoid rendering superfluous any parts thereof.”); Montclair v.
Ramsdell, 107 U.S. 147, 152 (1883) (“It is the duty of the court to give effect, if possible,

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to every clause and word of a statute, avoiding, if it may be, any construction which
implies that the legislature was ignorant of the meaning of the language it employed.”).
Thus, Birch is not binding precedent in this case.
Because the City Council is undoubtedly the legislative body of the City of East
Cleveland, see City of East Cleveland Charter § 98 (“The legislative power of the City,
except as limited by this Charter, shall be vested in a Council consisting of five
members.”), the exclusive inquiry with respect to the third element is whether an
employment relationship existed between Ellington and the City Council. This inquiry
is no different than the one courts make when determining generally whether a defendant
is an “employer” of a plaintiff so as to permit recovery under the FLSA against the
defendant.
The FLSA defines “employer” to include “any person acting directly or indirectly
in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). “‘The
remedial purposes of the FLSA require the courts to define “employer” more broadly
than the term would be interpreted in traditional common law applications.’” Dole v.
Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir. 1991) (quoting McLaughlin v.
Seafood, Inc., 867 F.2d 875, 877 (5th Cir.1989) (per curiam)). In other words, the
employment relationship determination “is not fixed by labels that parties may attach to
their relationship nor by common law categories nor by classifications under other
statutes.” Powell, 339 U.S. at 528. Instead, the “economic reality” of the relationship
between a plaintiff and a defendant “determines whether their relationship is one of
employment.” Solis v. Laurelbrook Sanitarium & Sch. Inc., 642 F.3d 518, 522 (6th Cir.
2011) (citing Alamo, 471 U.S. at 301).
This “economic reality” standard, however, is not a precise test susceptible to
formulaic application. See Donovan v. Brandel, 736 F.2d 1114, 1116 (6th Cir. 1984).
It prescribes a case-by-case approach, whereby the court considers the “circumstances
of the whole business activity,” id.; see Dunlop v. Dr. Pepper-Pepsi Cola Bottling Co.
of Dyersburg, Tenn., 529 F.2d 298, 301 (6th Cir. 1976) (stating that in applying the
economic reality standard, “the authoritative decisions require that the courts consider

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the total relationship rather than isolated factors”). Relevant factors to consider may
include whether the plaintiff is an integral part of the operations of the putative
employer, Dr. Pepper-Pepsi Cola, 529 F.2d at 301; the extent of the plaintiff’s economic
dependence on the defendant, id.; the defendant’s “substantial control of the terms and
conditions of the work” of the plaintiff, Falk v. Brennan, 414 U.S. 190, 195 (1973); the
defendant’s authority to hire or fire the plaintiff, Braddock v. Madison Cnty., 34 F. Supp.
2d 1098, 1107 (S.D. Ind. 1998) (citing Barfield v. Madison Cnty., 984 F. Supp. 491, 497
(S.D. Miss. 1997)); and whether the defendant maintains the plaintiff’s employment
records and establishes the rate and method of payment, id. Consistent with the case-by-
case approach prescribed by Donovan, these factors are not exhaustive and “‘[n]o one
factor is dispositive; rather, it is incumbent upon the courts to transcend traditional
concepts of the employer-employee relationship and assess the economic realities
presented by the facts of each case.’” Dole, 942 F.2d at 966 (quoting Donovan v. Sabine
Irrigation Co., 695 F.2d 190, 195 (5th Cir. 1983)).
Here, the economic realities of Ellington and the City Council’s relationship
overwhelmingly support a finding that an employment relationship existed. First, the
City Council had substantial authority to hire and fire Ellington. The City Council
interviewed Ellington, offered him the position of Deputy Clerk, and tirelessly worked
to ensure that he was compensated for his services. Plenary authority to remove
Ellington from the position was also vested in the City Council: “The Deputy Clerk shall
hold office at the pleasure of Council and shall be removable from office at any time by
vote of a majority of the members of the Council with or without cause, and no reason
need be given for discharge.” (Deputy Clerk of Council Job Posting.) Second, as
Deputy Clerk, Ellington’s duties and work assignments directly corresponded to the
activities of the City Council. Ellington received his work assignments from individual
members of the City Council and the Clerk of Council, and the Deputy Clerk’s duties,
as set forth in the position’s job posting, included: (1) serving all members of the City
Council equally; (2) being informed of all matters concerning the City Council so that
in the absence of the Clerk of Council, the Deputy Clerk may effectively administer the
City Council’s affairs; and (3) preparing periodic reports for the City Council. Only one

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conclusion can be drawn from these facts: Ellington was an employee of the City
Council.
Ellington, relying on the factors addressed in Birch’s analysis of the “personal
staff” and “policymaker” exclusions under the FLSA and Title VII, see Birch, 392 F.3d
at 158–61, argues that, as Deputy Clerk, he was not a legislative employee because the
City Council’s power to hire him was not absolute, his professional relationship with the
City Council was not intimate, he did not represent the City Council in the eyes or the
public, his job duties were entirely administrative and clerical in nature, and he did not
formulate policy or draft legislation. In the first instance, contrary to Ellington’s
contentions, the record suggests that his working relationship with the City Council was,
in fact, intimate. Ellington received assignments directly from council members and was
responsible for administering the affairs of the City Council when the Clerk of Council
was absent. Moreover, although the City Council may not have had “plenary” control
of his hiring, the record clearly reflects the City Council’s substantial involvement in his
hiring.
Additionally, unlike the “policymaker” exclusion, Ellington’s lack of
involvement in the development of legislation is immaterial to determining whether the
City Council was his employer. Nor does the purported administrative and clerical
nature of his duties affect the employment relationship determination. The language of
the “legislative employee” exclusion is categorical: where an individual is employed by
the legislative branch or body of a state or political subdivision and is not subject to the
civil service laws of that State or political subdivision, he is excluded from FLSA
coverage, irrespective of the fact that the individual may not be a policymaker or on the
personal staff of an elected official. The district court’s conclusion that Ellington was
employed by the City Council, and thus not an “employee” as that term is defined by the
FLSA, was correct.

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b. The Ohio Constitution and the OMFWSA
The district court also correctly held that Ellington’s state-law claim fails because
he is excluded from the wage and overtime protections afforded by the Ohio Constitution
and the OMFWSA. Article II, section 34a of the Ohio Constitution states, in relevant
part, that Ohio employers must pay their employees working in the State a specified
minimum wage and provides that “[l]aws may be passed to implement [the section’s]
provisions and create additional remedies, increase the minimum wage rate and extend
the coverage of the section.” The OMFWSA is one such law the state legislature has
passed to implement the provisions of § 34a. The OMFWSA reaffirms the minimum
wage rate established in the Ohio Constitution, Ohio Rev. Code § 4111.02, and further
guarantees employees overtime pay, Ohio Rev. Code § 4111.03. Like the FLSA, both
§ 34a and the OMFWSA limit the scope of the minimum wage and overtime provisions
to individuals who qualify as “employees.” They also both expressly adopt the FLSA’s
definition of “employee.” Ohio Const. Art. II, § 34a (“As used in this section
. . . “employee” . . . [has] the same meaning[] as under the federal Fair Labor Standards
Act . . . .”); Ohio Rev. Code § 4111.14(B) (“In accordance with Section 34a of Article
II, Ohio Constitution, the term[] . . . ‘employee’ . . . [has] the same meaning[] as in the
‘Fair Labor Standards Act of 1938’ . . . . As used in division (B) of this section
. . . ‘[e]mployee” means individuals employed in Ohio, but does not mean individuals
who are excluded from the definition of “employee” under 29 U.S.C. 203(e) . . . .”
(emphasis added)). Accordingly, this court having already determined that Ellington
was not an “employee” under the FLSA, he also does not qualify as an employee subject
to the benefits of § 34a and the OMFWSA.
2. The district court correctly applied Federal Rule of Civil Procedure 56 and construed
the facts in a light most favorable to Ellington
Ellington’s second claim of error, that the district court did not construe the
evidence in a light most favorable to him as required by Federal Rule of Civil Procedure
56, is also unavailing. Specifically, Ellington argues (1) that the district court’s
purported finding that he was both an employee of the City of East Cleveland and the

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City Council precludes an award of summary judgment in favor of Defendants and
(2) that the district court erred in not holding that a jury could have reasonably
concluded that Defendants’ assertion of the “legislative employee” exclusion as a
defense to his federal and state-law claims was pretext for their actual motives for not
paying him.
Ellington’s first contention, that the district court erred in granting summary
judgment after it purportedly found him to be jointly employed by the City of East
Cleveland and the City Council, is a variation of an argument Ellington made in the
lower court. That argument, made in the alternative to his primary contention that he
was not a legislative employee, proceeded in two steps. First, he argued that he was a
joint employee of the City Council and the City of East Cleveland because the City
Council and the City were wholly distinct entities from each other. He then maintained
that because he is an employee of both the City Council and the City, he was not fully
excluded from FLSA coverage because the City was not a legislative branch or body.
(See Pl.’s Br. Supp. Mot. Summ. J. 12.)
As the district court observed, accepting this faulty reasoning “allows the
exception to the employer-employee relationship to be swallowed by the general rule.”
Ellington, 2011 WL 2149364, at *5. What Ellington perceives as a judicial finding in
his favor is, in fact, the district court’s explanation of why Ellington’s joint employer
argument eviserates the “legislative employee” exclusion. The district court stated:
A deputy clerk of council is both an employee of a city and a legislative
body, because the legislative body is technically a part of city
government. Recognizing this, the FLSA “legislative employee”
exception excludes an individual who is “employed by . . . [a] political
subdivision of a State,” and that political subdivision is a “legislative
branch or legislative body.”
Id. (alterations in original) (citations omitted) (citing 29 U.S.C. § 203(e)(2)(c)(ii)(V)).
Indeed, the existence of and the relationship between the first and third elements of the
“legislative employee” exclusion—that the individual must be both “employed by a
State, political subdivision of a State, or an interstate governmental agency,” 29 U.S.C.

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§ 203(e)(2)(C), and also be an employee of a State’s or political subdivision’s legislative
body, 29 U.S.C. § 203(e)(2)(C)(ii)(V)—accounts for Ellington’s contention that he is
employed by both the City Council and the City of East Cleveland. To conclude that
Ellington, who has been found to be an employee of a legislative body, is covered by the
FLSA because, as Deputy Clerk of Council, he is also part of the City of East
Cleveland’s workforce would effectively excise the FLSA’s “legislative employee”
exclusion. Such a conclusion is both unreasonable and not supported by the language
of the exclusion.
Ellington has also likely forfeited his argument that Defendants invoked the
“legislative employee” exclusion as pretext for their true motive behind failing to pay
him his wages because he did not raise it in the district court. See Meade v. Pension
Appeals & Review Comm., 966 F.2d 190, 194 (6th Cir. 1992) (“The general rule is that
the circuit court will not address issues on appeal that were not raised and ruled upon
below.”). Nonetheless, the fact that Defendants may have raised the exclusion after they
failed to timely pay Ellington is not relevant in this case. As is discussed in greater
detail above, Ellington is excluded from coverage under the FLSA and OMFWSA.
Once exclusion from coverage is established, Defendants’ motives or rationales for their
actions are immaterial.
III. CONCLUSION
We AFFIRM the district court’s order granting summary judgment to
Defendants.

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