     Case: 12-10785   Document: 00512277491     Page: 1   Date Filed: 06/18/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                                 June 18, 2013
                                 No. 12-10785
                                                                 Lyle W. Cayce
                                                                      Clerk
FLORENTINO MEZA, and all others similarly situated under 29 U.S.C.
216(b),

                                           Plaintiff–Appellant
v.

INTELLIGENT MEXICAN MARKETING, INCORPORATED; DAVID
BENITEZ; RICARDO J. VILLARREAL,

                                           Defendants–Appellees



                Appeal from the United States District Court
                     for the Northern District of Texas



Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Plaintiff–Appellant Florentino Meza appeals the district court’s grant of
summary judgment for his former employer, Defendant–Appellee Intelligent
Mexican Marketing, Inc. (“IMM”). Meza claims he is entitled to minimum-wage
and overtime compensation under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 216(b). IMM claims he falls within the FLSA’s exemption for outside
salesmen, and the statute’s overtime and minimum-wage requirements do not
apply to him. Because the record indicates that Meza spent the vast majority
of his time selling goods or performing work incidental to his sales, we affirm.
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                                 No. 12-10785

           I. FACTUAL AND PROCEDURAL BACKGROUND
      From June 2010 until July 2011, Meza was employed as a route salesman
at IMM, a company that sells and delivers food and beverage items to
convenience stores. Before he began his employment at IMM, Meza was a self-
employed water purification system salesman. Meza had obtained his position
at IMM after he heard the company was hiring salesmen, and he took the job
with the understanding that he would be doing marketing and sales work for the
company. When he began working, IMM trained Meza for his new position by
having him shadow an experienced salesman for a month.
      Meza was paid a weekly salary of $300, plus commissions that varied by
product. He was also entitled to a bonus of $75 if his sales in one week reached
$6,500, or a bonus of $175 if they reached $7,500. Meza averaged $164 a week
in commissions in 2010, and $233 a week in 2011. Initially, Meza was told he
would be paid for each new customer he brought in who ultimately bought more
than $115 worth of product, though Meza claims this incentive system was
eliminated after a few months.
      In his capacity as a route salesman, Meza would arrive in the morning at
an IMM warehouse and switch from his own car to a company truck he had
loaded with goods the evening before. He would drive to between seventeen and
twenty-two convenience stores or supermarkets daily, following a route specified
by a supervisor and designed to minimize fuel use. At each stop on his route,
Meza would greet the store attendant, inspect any IMM-distributed goods on the
shelves, remove those that were past or close to their expiration date, and make
a list of goods that needed to be restocked on his handheld computer. Meza
would arrange the goods to conform with photographs IMM provided its route
salesmen showing the preferred arrangement of the company’s goods on a store’s
shelves. If a store did not carry a particular IMM-distributed product, Meza
would try to sell it by pointing out that it had sold well in other stores, or by

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                                No. 12-10785
giving the attendant or cashier a sample. Meza would also try to improve the
placement of certain goods—for example, he would sometimes negotiate for
space near the cash register where “impulse merchandise” was sold. The
attendant would check Meza’s list of goods to be purchased or restocked, and
approve or reject the order. The cost of any unsold expired goods was debited
from Meza’s sales. Meza would then return to his truck to retrieve the ordered
goods and bring them into the store. The attendant would check the order and
pay with cash or on credit. Meza would then leave for his next stop.
      Unlike employees like route salesmen, IMM supervisors were not
permitted to make regular sales, but they could negotiate special price
reductions with specific stores. Meza would sometimes deliver goods that had
been ordered following a promotion arranged and negotiated by an IMM
supervisor.
      Meza was also authorized to visit stores that did not yet carry any of
IMM’s products to try to develop new business. At these stops, Meza would
introduce himself and present photographs or samples of the products he was
selling. Any sales were recorded using Meza’s handheld computer. Meza
successfully recruited a number of new customers, including one shortly before
the end of his employment at IMM.
      At the end of the day, Meza would return to the IMM warehouse. On the
way there, he would buy a money order with the cash he had received from his
customers and fill the truck he was driving with gas. Once at the warehouse,
Meza would record his arrival and wait in a line of other trucks to be able to
reload his truck with goods. When he reached the front of the line, Meza would
review his orders with the warehouse workers, and they would provide the


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                                 No. 12-10785
required products. Meza would then load the goods into the truck himself, which
usually took about forty minutes. Then he would close the truck and return the
handheld computer before leaving for the evening.
        Meza would typically work six days a week, reporting each day to IMM’s
warehouse at 6:30 a.m., returning to the warehouse by 5:00 p.m., and leaving the
warehouse around 7:00 p.m. He would take lunch breaks, which he was not
required to record, that usually lasted about twenty minutes. This meant that
Meza worked about seventy-two hours per week, at an average wage of $6.66 an
hour.
        Meza claims he had only twenty minutes at each stop on his route to
perform his duties, leaving him little time to deliver meaningful sales pitches.
Because he was only able to visit twelve or thirteen stores a day, Meza would not
always be able to visit all the stores on his assigned route, which would
sometimes include as many as twenty-two separate stops. However, Meza was
able to visit most stores at least once a week.
        IMM route salesmen were expected to attend weekly hour-long sales
training meetings, though IMM did not provide its route salesmen opportunities
to attend sales conferences. At the sales training meetings, managers would
announce sales contests, explain sales strategies, and tell the salesmen about
any products IMM was promoting.
        IMM also employs warehouse drivers, whose duties include delivering
goods to customers. Warehouse drivers do not receive sales commissions, and
are subject to the FLSA’s minimum-wage and overtime pay requirements. There
is no evidence in the record that IMM employs any salespeople other than its
route salesmen.


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                                         No. 12-10785
       On July 13, 2011, Meza filed this suit against IMM and its owners,1
seeking damages stemming from IMM’s alleged statutory minimum-wage and
overtime violations.2 Reasoning from the premise that he had worked fifty-five
weeks for IMM, Meza calculated that he was owed $3,080 in unpaid minimum-
wage compensation, and $15,224 in unpaid overtime compensation. On July 28,
2011, shortly after Meza initiated this suit, he was terminated by IMM.3
       On December 19, 2011, largely on the basis of Meza’s testimony at his
deposition, IMM moved for summary judgment, arguing that the FLSA’s
provisions did not apply to Meza because he was an outside salesman. The
district court determined that Meza was indeed properly categorized as an
outside salesman, and granted summary judgment for IMM. Meza timely
appealed.



       1
         Defendants–Appellees David Benitez and Ricardo Villarreal have ownership interests
in IMM. Meza’s claims against them are indistinguishable from those he has brought against
IMM, and we therefore dispose of the claims against all three parties together. “IMM” thus
refers to all Defendants–Appellees still party to the suit. Ana Trevino, who also has an
ownership interest in IMM, was once a named Defendant but was dismissed from the suit by
the parties’ joint stipulation before the summary judgment order issued.
       2
         In addition to his FLSA-related claims, Meza alleges that inventory was stolen out of
his truck one night after he had loaded the goods he needed for the next day. He claims that
employees of IMM stole the goods so that he would be charged for the inventory shortage.
Meza informed the police, but apparently took no further action. Meza claims that after the
incident, he received threats of future thefts from other IMM employees. Meza also claims
that IMM supervisors would sometimes intentionally place expired goods on the shelves of
stores Meza serviced in order to recoup the cost of the goods, and that he was unfairly deprived
of proceeds from an employee fund when he was terminated. While these allegations may be
relevant to the question of whether Meza has other causes of action available to him, they do
not impact the inquiry into whether he was an FLSA-exempt salesman, and do not bear on
IMM’s liability for overtime or minimum-wage violations.
       3
           As the district court noted, Meza’s complaint makes no retaliation claim against IMM.

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                                  No. 12-10785
                               II. DISCUSSION
      A. Standard of Review and Burden of Proof
      This Court reviews a grant of summary judgment de novo, applying the
same standard as the district court. Sanders–Burns v. City of Plano, 594 F.3d
366, 380 (5th Cir. 2010). Summary judgment is appropriate if the movant has
shown “that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “All reasonable
inferences are drawn in favor of the nonmoving party”—in this case, Meza—“but
a party cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions.” VRV Dev. L.P. v. Mid-Continent Cas. Co., 630 F.3d
451, 455 (5th Cir. 2011).
      An employer bears the burden of proving that an employee is ineligible for
overtime or minimum-wage compensation. Corning Glass Works v. Brennan,
417 U.S. 188, 196–97 (1974). The employer must prove facts by a preponderance
of the evidence that show the exemption is “plainly and unmistakably”
applicable.   See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960);
Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1156–57 (10th Cir. 2012).
      B. Analysis
      i. The FLSA and related DOL regulations
      In 1938, Congress enacted the FLSA to “protect all covered workers from
substandard wages and oppressive working hours.” Barrentine v. Ark.-Best
Freight Sys., Inc., 450 U.S. 728, 739 (1981); see also 29 U.S.C. § 202(a). One of
the FLSA’s requirements is that employers pay workers at one-and-a-half times
their normal wages for hours worked in excess of forty per week. 29 U.S.C. §




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                                       No. 12-10785
207(a). The FLSA also requires that employees be compensated at a minimum
average wage of $7.25 per hour. Id. § 206(a)(1).
       These requirements do not apply to all workers, however. See id. § 213.
Relevant to this appeal is the exemption for workers “employed . . . in the
capacity of outside salesm[e]n.” Id. § 213(a)(1). The logic of the exemption is
that “[s]uch [a] salesman, to a great extent, works individually. There are no
restrictions respecting the time he shall work and he can earn as much or as
little, within the range of his ability, as his ambition dictates.” Jewel Tea Co. v.
Williams, 118 F.2d 202, 207–08 (10th Cir. 1941). An outside salesman’s extra
compensation comes in the form of commissions, not overtime, and because most
of the salesman’s work is performed away from the employer’s place of business,
the employer often has no way of knowing how many hours an outside salesman
works. Id. at 208.
       Congress did not expressly define “outside salesman,” but it did authorize
the Department of Labor to promulgate regulations defining the term and
implementing other elements of the FLSA. 29 U.S.C. § 213(a)(1). According to
those regulations, “[t]he term ‘employee employed in the capacity of outside
salesman’” means any employee:
       (1)    Whose primary duty is (i) making sales within the meaning
              of section [203(k) of the FLSA4], or (ii) obtaining orders or
              contracts for services or for the use of facilities for which a
              consideration will be paid by the client or customer; and




       4
         Section 203(k) reads, in its entirety: “‘Sale’ or ‘sell’ includes any sale, exchange,
contract to sell, consignment for sale, shipment for sale, or other disposition.”

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                                 No. 12-10785
      (2)   Who is customarily and regularly engaged away from the
            employer’s place or places of business in performing such
            primary duty.

29 C.F.R. §§ 541.500(a)(1)–(2). Section 541.700 of the DOL regulations defines
“primary duty” as “the principal, main, major or most important duty that the
employee performs.” Id. § 541.700(a).
      Section 541.504 addresses the situation in which employees both deliver
and sell products. The regulation provides a general overview followed by a list
of factors to consider in determining if an employee is a deliveryman or an
exempt outside salesman:
      (a)   Drivers who deliver products and also sell such products may
            qualify as exempt outside sales employees only if the
            employee has a primary duty of making sales. In determining
            the primary duty of drivers who sell, work performed
            incidental to and in conjunction with the employee’s own
            outside sales or solicitations, including loading, driving or
            delivering products, shall be regarded as exempt outside sales
            work.

      (b)   Several factors should be considered in determining if a driver
            has a primary duty of making sales, including, but not limited
            to: a comparison of the driver’s duties with those of other
            employees engaged as truck drivers and as salespersons;
            possession of a selling or solicitor’s license when such license
            is required by law or ordinances; presence or absence of
            customary or contractual arrangements concerning amounts
            of products to be delivered; description of the employee’s
            occupation in collective bargaining agreements; the
            employer’s specifications as to qualifications for hiring; sales
            training; attendance at sales conferences; method of payment;
            and proportion of earnings directly attributable to sales.




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                                No. 12-10785
Id. §§ 541.504(a)–(b). The regulations further provide a list of examples of
drivers who qualify as exempt outside salesmen:
     (1)   A driver who provides the only sales contact between the
           employer and the customers visited, who calls on customers
           and takes orders for products, who delivers products from
           stock in the employee’s vehicle or procures and delivers the
           product to the customer on a later trip, and who receives
           compensation commensurate with the volume of products
           sold.

     (2)   A driver who obtains or solicits orders for the employer’s
           products from persons who have authority to commit the
           customer for purchases.

     (3)   A driver who calls on new prospects for customers along the
           employee’s route and attempts to convince them of the
           desirability of accepting regular delivery of goods.

     (4)   A driver who calls on established customers along the route
           and persuades regular customers to accept delivery of
           increased amounts of goods or of new products, even though
           the initial sale or agreement for delivery was made by
           someone else.

Id. §§ 541.504(c)(1)–(4). The final relevant portion of the regulations lists
examples of drivers who do not qualify for the exemption:
     (1)   A route driver whose primary duty is to transport products
           sold by the employer through vending machines and to keep
           such machines stocked, in good operating condition, and in
           good locations.

     (2)   A driver who often calls on established customers day after
           day or week after week, delivering a quantity of the
           employer’s products at each call when the sale was not
           significantly affected by solicitations of the customer by the


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                                  No. 12-10785
            delivering driver or the amount of the sale is determined by
            the volume of the customer’s sales since the previous delivery.

      (3)   A driver primarily engaged in making deliveries to customers
            and performing activities intended to promote sales by
            customers (including placing point-of-sale and other
            advertising materials, price stamping commodities, arranging
            merchandise on shelves, in coolers or in cabinets, rotating
            stock according to date, and cleaning and otherwise servicing
            display cases), unless such work is in furtherance of the
            driver’s own sales efforts.

Id. §§ 541.504(d)(1)–(3). Neither list of examples is exhaustive.
      We proceed first by applying the factors listed in 29 C.F.R. § 541.504(b) to
Meza’s case. We then consider the relevance of the examples of exempt and non-
exempt driver-salesmen listed in 29 C.F.R. §§ 541.504(c)–(d). Finally, we review
the applicability of the relevant precedent in this and other circuits.
      ii. Factors
      Of the nine listed factors, only one unequivocally favors Meza. Two are
inapplicable, one is inconclusive, and the remaining five favor IMM. The list of
factors is not exhaustive, and a simple tally of the factors does not categorically
settle the matter, but we find persuasive the fact that a majority of applicable
factors favors IMM.
      The first factor, “a comparison of the driver’s duties with those of other
employees engaged as truck drivers and as salespersons,” favors IMM’s position,
though not overwhelmingly. 29 C.F.R. § 541.504(b). The route salesmen like
Meza are apparently the only salesmen at IMM. The company also employed
warehouse drivers, who delivered goods, but these employees were not
authorized to make sales. There is little in the record that speaks to the duties


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                                  No. 12-10785
of the warehouse drivers, so a precise comparison between their duties and
Meza’s is difficult. However, it would make little sense for IMM to have two
distinct sets of employees whose primary responsibility was making deliveries.
The existence of a formal division of labor suggests that the route salesman’s job
description contained something more than that.
      The second factor, “possession of a selling or solicitor’s license when such
license is required by law or ordinances,” is inapplicable since no such license is
required to sell IMM’s products. Id.
      The third factor, the “presence or absence of customary or contractual
arrangements concerning amounts of products to be delivered,” is the subject of
some dispute. Id. In his briefing, as well as in a sworn affidavit that postdates
his deposition, Meza claims that the attendants with whom he spoke typically
did not have the authority to purchase new products, or in some cases, even
order goods to be restocked. IMM points out that this contradicts Meza’s
deposition, in which he stated, “The majority of the time the person that
attended did have authority to buy the product.” In his reply brief, apparently
for the first time, Meza argues that the record transcript of this portion of the
deposition contains a typo, stating that “when the testimony is read in context
it is apparent that the word ‘not’ was left out of the transcript.”
      Meza is likely procedurally barred from making this argument. See Fed.
R. Civ. P. 30(e) (explaining that a party who wishes to correct errors in a
deposition transcript should submit a signed errata statement within thirty days
of the deposition); AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir.
2009) (“Under this Circuit’s general rule, arguments not raised before the




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                                   No. 12-10785
district court are waived and will not be considered on appeal unless the party
can demonstrate ‘extraordinary circumstances.’”).
      Regardless, it is not at all “apparent” from reading the rest of the
transcript that the typo Meza complains of occurred. To the contrary, the parties
present for the deposition appear to proceed on the assumption that Meza was
interacting with attendants or cashiers with the authority to purchase goods.
For example, Meza gives details about a number of the sales tactics he would use
in trying to appeal to the store attendant. Additionally, Meza explicitly admits
in his deposition that “[his] responsibility as a route salesman was to sell
products to stores.”
      In any case, nowhere in the record or in either of the parties’ briefing is the
necessary corollary argument seriously asserted, i.e., no party claims that
Meza’s deliveries were merely fulfilling the terms of contracts that had been
arranged by his supervisors or IMM’s management. Tellingly, Meza specifically
points out that supervisors, rather than route salesmen, were the only IMM
employees who could authorize “specials,” or significant price reductions,
implying that it was route salesmen like Meza who were responsible for run-of-
the-mill sales for the company. Indeed, one of Meza’s supervisors testified that
it would have been against company policy for a supervisor to make a sale to a
store directly. For these reasons, it is difficult to conclude that many “customary
or contractual arrangements concerning the amount of products to be delivered”
existed, and this factor favors IMM.
      The fourth factor, the “description of the employee’s occupation in
collective bargaining agreements,” is inapplicable. 29 C.F.R. § 541.504(b).




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                                  No. 12-10785
      The fifth factor, “the employer’s specifications as to qualifications for
hiring,” also favors IMM. Id. Though the record does not indicate whether IMM
specified additional hiring criteria, at the very least, the position for which Meza
applied had been advertised as a salesman position, and he represented himself
to the company as having sales experience.
      The sixth factor, “sales training” also favors IMM. Id. Meza and the other
route salesmen attended weekly sales training meetings, where supervisors
announced prizes and incentives, explained sales tips, and notified the route
salesmen of any products they were hoping to promote that week. Also, when
Meza began his employment, he shadowed an experienced salesman as part of
his initial training.
      Because route salesmen at IMM did not attend sales conferences, the
seventh factor, “attendance at sales conferences,” favors Meza. Id.
      The eighth factor, “method of payment,” favors IMM. Id. Meza was paid
a base salary of $300 plus commission. IMM also provided bonuses if sales
reached a certain level in a given week. Meza alleges that while IMM initially
offered incentives for bringing in new clients, those incentives were eliminated
after a few weeks. Meza offers no evidence for this proposition other than his
own testimony, but even if what he claims is true, the fact remains that Meza
was paid according to a system that rewarded employees for making sales.
      It is unclear whether the ninth and final factor, “proportion of earnings
directly attributable to sales,” favors IMM or Meza. Id. There is little guidance
available as to what constitutes a high or low proportion of earnings directly
attributable to sales. Meza averaged commissions of $164 per week in 2010, and




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                                  No. 12-10785
$233 per week in 2011. This corresponds to 35% and 44%, respectively, of his
overall income.
      We are inclined to hold for IMM on the sole basis that of the seven
applicable factors, five favor IMM, one is inconclusive, and only one favors Meza.
However, in an abundance of caution, we also review the DOL’s listed examples
of exempt and non-exempt drivers and the case law interpreting this FLSA
exemption.
      iii. Examples
      Analogy to the examples of exempt and non-exempt drivers listed in the
DOL regulations also lends support to IMM’s position. Meza’s role at the
company had a number of the characteristics listed in the descriptions of exempt
driver-salesmen: Meza “provide[d] the only sales contact between the employer
and the customers visited, [he] call[ed] on customers and [took] orders for
products, [he] deliver[ed] products . . . and [he] receive[d] compensation
commensurate with the volume of products sold.” 29 C.F.R. § 541.504(c)(1). As
discussed above, supra Part II.C.ii., Meza “obtain[ed] or solicit[ed] orders for the
employer’s products from persons who ha[d] authority to commit the customer
for purchases.” Id. § 541.504(c)(2). He “call[ed] on new prospects for customers
along [his] route and attempt[ed] to convince them of the desirability of
accepting regular delivery of goods.” Id. § 541.504(c)(3). The applicability of any
one of the regulations’ listed examples would be persuasive; that three aptly
describe Meza’s duties is arguably decisive.
      Similarly, for the most part, the listed examples of non-exempt drivers
mostly do not describe the kind of work Meza performed. IMM did not require
that he restock or maintain vending machines. See id. § 541.504(d)(1). Meza’s


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                                   No. 12-10785
sales promotion work was performed as part of his own sales efforts, not those
of his supervisors or of other employees. See id. § 541.504(d)(3) (stating that
activities like “placing point-of-sale and other advertising materials, price
stamping commodities, arranging merchandise on shelves, in coolers or in
cabinets, rotating stock according to date, and cleaning and otherwise servicing
display cases” describe the work of a non-exempt salesman “unless such work is
in furtherance of the driver’s own sales efforts” (emphasis added)).
      It is true that Meza is on firmer ground in arguing that he was “[a] driver
who often call[ed] on established customers day after day or week after week,
delivering a quantity of the employer’s products at each call when the sale was
not significantly affected by [his] solicitations of the customer . . . or the amount
of the sale [was] determined by the volume of the customer’s sales since the
previous delivery.” Id. § 541.504(d)(2). Meza claims that even if he began his
employment as an outside salesman, the nature of the work changed over the
course of his time with IMM, so that by the end there were so many stops on his
route that he only had time to make deliveries and generate a list of items to be
restocked based on what had been sold by each convenience store. Even if
Meza’s assertion is accurate, however, he was still the only sales contact between
IMM and the convenience stores on his route—any sales that were made were
“significantly affected” by Meza. Furthermore, even if we were to concede that
this illustration of a non-exempt driver describes Meza, he must still contend
with the fact that he also fits easily within three of the regulations’ descriptions
of exempt driver-salesmen.




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                                  No. 12-10785
        iv. Case law
        Both parties argue that the case law interpreting the outside salesman
exemption requires a holding in their favor. IMM relies heavily on Jewel Tea Co.
v. Williams, 118 F.2d 202 (10th Cir. 1941) and Hodgson v. Krispy Kreme
Doughnut Co., 346 F. Supp. 1102 (M.D.N.C. 1972).            Jewel Tea involved
salesmen, paid on commission, who would travel a specified route in company-
owned cars, visiting potential customers’ homes in hopes of selling coffee and tea
products. Jewel Tea, 118 F.2d at 203–04. The court found the employees were
primarily salesmen, rather than deliverymen. Id. at 208. The court in Hodgson
similarly found the traveling doughnut salesmen at issue were exempt, because
they were designated “salesmen” on the payroll, nearly all of their work was
performed away from the company’s place of business, and the salesmen were
not    delivering   doughnuts   pursuant    to   any   pre-existing   contractual
arrangements. 346 F. Supp. at 1107.
        Meza meanwhile focuses primarily on Skipper v. Superior Dairies, Inc.,
512 F.2d 409 (5th Cir. 1975). In that case, this Court determined that the
outside salesman exemption did not apply to an employee who delivered dairy
products to convenience stores owned primarily by one company. Skipper, 512
F.2d at 413–416.       The deliveryman’s managers had typically entered into
contracts with the management of the convenience store company, which
determined how much milk the employee would bring to a given store. Id. at
414–15. The Court summarized with approval the district court’s observation
that the employee “did no selling, in the sense that he had no face-to-face-
negotiation with a store owner or manager who was in the position of purchasing
or ordering the products which [the employee] was delivering. . . . [T]he right to


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                                 No. 12-10785
place the product in each individual store . . . was obtained by negotiation
between the management officials of Superior Dairies and officials of Mini
Mart.” Id. at 413. That is not the case here. As discussed, Meza makes no
assertion that anyone at IMM other than the route salesmen was responsible for
any aspect of sales to IMM’s customers, other than rare instances of negotiating
the terms of “special” price reductions with certain stores.
      Meza also argues that Skipper dictates a finding that his work was non-
exempt because that Court emphasized “the rule that an employee’s performance
of both exempt and non-exempt activities during the same work week defeats
any exemption that would otherwise apply.” This argument is unavailing
because, in this case, Meza never performed work that could not be classified as
either sales or work incidental to his sales, and therefore never performed non-
exempt activities.
      Meza also devotes much discussion to Christopher v. SmithKline Beecham
Corp., 132 S. Ct. 2156 (2012). While that case admittedly did discuss the outside
salesman exemption, it dealt with whether pharmaceutical sales representatives
fell within the terms of the exemption, and as a result offers little guidance as
to how a court determines if a driver is a deliveryman or a salesman for FLSA
purposes. See Christopher, 132 S. Ct. at 2164, 2170–73. It is true that the
Christopher Court emphasized that “the FLSA’s exemption for outside
salesmen . . . is premised on the belief that exempt employees typically earned
salaries well above the minimum wage and enjoyed other benefits that set them
apart from the nonexempt workers entitled to overtime pay.” Id. at 2173
(alterations and internal quotation marks omitted). Meza, who was paid on
average $6.66 an hour, was compensated meaningfully below the minimum


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                                  No. 12-10785
wage. Christopher, however, merely found that the employees at issue, who
made significantly more than minimum wage, were not the sort of employees the
FLSA was meant to protect, thus implying only that earning significantly more
than minimum wage may preclude relief under the statute. Id. at 2173. No
aspect of the opinion suggests that earning less than minimum wage is itself
sufficient for relief. The fact is that there is no way to eliminate the possibility
that Meza’s relatively low compensation was due solely to poor salesmanship; in
any event (and perhaps for that very reason), the regulations do not indicate
that a court should consider a salesman’s effective compensation in determining
whether the exemption applies. Our application of the regulations persuades us
that, for purposes of the FLSA, Meza was more similar to an outside salesman
than to a deliveryman. IMM was therefore excused from paying him the wages
that statute would otherwise mandate.
                               III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment for IMM.




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