Zella A. Powell v. Morton Plant Mease Health Care , 174 F. App'x 520 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 4, 2006
No. 05-16033 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00832-CV-T-23MAP
ZELLA A. POWELL, on behalf of herself
and others similarly situated,
Plaintiff-Appellee,
versus
MORTON PLANT MEASE HEALTH CARE, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 4, 2006)
Before TJOFLAT, BARKETT and HILL, Circuit Judges.
PER CURIAM:
Zella A. Powell sued Morton Plant Mease Health Care, Inc. (“Morton”),
asserting a Fair Labor Standards Act (the “FLSA”) claim. During 2002 and 2003,
Powell was employed by Morton as a Food Service Coordinator in the Food and
Nutrition Services Department at Mease Dunedin Hospital. Her job was to
monitor the operations of the kitchen during the early morning shift (5:30 to 2:00),
when her supervisor was not present. She alleged in her complaint that, in
violation of the FLSA, Morton failed to pay her overtime pay for overtime hours.
Morton asserted the statutory affirmative defense that they were exempt from
paying Powell overtime because she was a salaried executive.1
The case was tried before a jury. Powell called her two supervisors and
Morton’s human resources director, who testified to and introduced documentary
evidence regarding Morton job descriptions, payroll procedures and salaries,
overtime pay policies, and Morton’s organizational chart. Morton called no
witnesses, nor offered any documentary evidence.
At the end of Powell’s case, Morton moved for judgment as a matter of law,
arguing that the evidence established as a matter of law that Powell was a salaried
executive, entitling it to FLSA’s executive exemption. The district court denied
the motion. At the end of the trial, Morton renewed its motion, and the district
1
The FLSA exempts any “employee employed in a bona fide executive, administrative,
or professional capacity . . . as such terms are defined and delimited from time to time by
regulations of the Secretary [of Labor] . . . . “ 29 U.S.C. § 213(a)(1).
2
court again denied it.
The case went to the jury, which returned a verdict for Powell in the
stipulated damage amount of $5500.2 Morton moved for a new trial on the
grounds that there was insufficient evidence to support the verdict. The district
court denied the motion, and this appeal followed.
We review de novo the denial of a motion for judgment as a matter of law.
University of Fla. v. KPB, Inc., 89 F.3d 773, 775 (11 th Cir. 1996). We review the
denial of the motion for a new trial for an abuse of discretion. Blu-J, Inc. v.
Kemper C.P.A. Group, 916 F.2d 637, 643 (11 th Cir. 1990).
I.
The parties stipulated to Powell’s prima facie case – that she was employed
by Morton during the relevant time, that she was engaged in commerce or
employed by an enterprise engaged in commerce, and that Morton failed to pay her
overtime pay as required by FLSA if she is an hourly worker. Therefore, in order
for Morton to be entitled to judgment as a matter of law, the evidence must have
established as a matter of law that Powell was not an hourly worker. If the
evidence established that she was a salaried executive, Morton was entitled to the
FLSA exemption from liability for overtime pay for salaried executives. See
2
Powell also received liquidated damages, attorneys’ fees and costs, the amounts all
stipulated to prior to trial by Morton.
3
Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974).
In order to be considered salaried, the statute requires that the employee
receive a predetermined amount of wages without regard to the number of days or
hours worked. 29 C.F.R. § 541.118(a) (2003). The evidence at trial, however,
established that Powell’s paychecks varied greatly week to week depending on
how much overtime she worked, and that, on at least one occasion, she was paid on
the basis of less than full-time work.3 Based upon this evidence, we cannot
conclude that Powell was salaried as a matter of law. At best, the record evidence
created a jury issue as to whether Powell was salaried.
Nor did the evidence at trial establish as a matter of law that Powell was an
executive. In order to be an executive, Powell’s duties must have been primarily
managerial or supervisory. 29 C.F.R. 541.102(a) (2003). Although there was
evidence that Powell’s duties were in part supervisory, there was significant other
evidence that she was primarily a kitchen worker. At most, there was competent
evidence on both sides of this issue. As such, Morton was not entitled to judgment
as a matter of law that Powell was an executive.
Inasmuch as the evidence did not establish as a matter of law that Powell
was salaried and an executive, Morton was not entitled to judgment as a matter of
3
Morton offered no explanation for this reduction.
4
law under the executive exemption and the district court did not err in denying its
motion.
Nor did the district court abuse its discretion in denying Morton’s motion for
a new trial. There was sufficient evidence from which the jury could infer that
Powell was an hourly worker. Furthermore, the jury is entitled to choose the
testimony it credits and what weight to assign particular testimony. We are unable
to conclude from the record that no juror could have reasonably found that Powell
was an hourly worker.4
Accordingly, the denial of the motions for judgment as a matter of law and
for a new trial were correctly denied, and the judgment is
AFFIRMED.
4
We have considered and find no merit in Morton’s arguments, not raised below, that the
jury was either not adequately or incorrectly instructed.
5