                                                                F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                                  PUBLISH
                                                                  JUN 7 2004
                UNITED STATES COURT OF APPEALS
                                                             PATRICK FISHER
                                                                      Clerk
                             TENTH CIRCUIT



WILLIAM D. JOHNSON, DAVID N.
KEARNEY; MICHAEL A. KILL;
ALEXANDER G. KUMP; ROBERT L.
LANE, JR.; JOHN W. NASH; JASON
W. SUTTON; SOPHIA BARAJAS;
MICHAEL BOWMAN; JAMES
BRINKLEY; WILLIAM
CARPENTER; LARRY
CHRONISTER; GREGORY
COLLINS; GREGORY CONCHOLA;
CHAD COWHER; MICHAEL
HUGHES; KYNARD HYLTON;
THOMAS JOYCE; RICHARD
KEITH; PATRICK MCCALLOP;
WILLIAM MICHAEL; ANGELA
                                       Nos. 01-3398, 02-3005 and 02-3014
MITCHELL; MICHAEL VEGA;
JACKIE WATERS; STEVE
WILLIAMS; TERRY ZEIGLER,

     Plaintiffs - Appellants/Cross-
     Appellees,
v.

THE UNIFIED GOVERNMENT OF
WYANDOTTE COUNTY/KANSAS
CITY, KANSAS and THE HOUSING
AUTHORITY OF KANSAS CITY,
KANSAS,

     Defendants - Appellees/Cross-
     Appellants.
        APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE FOR THE DISTRICT OF KANSAS
                   (D.C. No. 99-CV-2407-JWL)


Steve A.J. Bukaty, (Luke B. Harkins with him on the briefs) Steve A.J. Bukaty,
Chartered, Overland Park, Kansas, for the Plaintiffs-Appellants/Cross-Appellees.

Gregory P. Goheen, (Daniel B. Denk, with him on the brief) McAnany, Van
Cleave & Phillips, P.A., Kansas City, Kansas, for Defendant-Appellee/Cross-
Appellant Unified Government of Wyandotte County/Kansas City, Kansas.

Thomas R. Buchanan, (Donald G. Scott with him on the brief) McDowell, Rice,
Smith & Gaar, Kansas City Missouri, for Defendant-Appellee/Cross-Appellant
The Housing Authority of Kansas City, Kansas.



Before O’BRIEN, HOLLOWAY and McWILLIAMS, Circuit Judges.


HOLLOWAY, Circuit Judge.




                                        I

                                        A

      Plaintiffs/appellants are police officers employed by defendant/appellee

Unified Government of Wyandotte County/Kansas City, Kansas (an entity formed

by the merger of Kansas City, Kansas and Wyandotte County) who worked in

their off-duty hours as security guards for defendant-appellee, the Housing

Authority of Kansas City. The twenty-six plaintiffs brought this action (which

consolidated two separately filed lawsuits) seeking recovery for overtime
compensation under the Fair Labor Standards Act (FLSA or the Act). 1 They

contended that the Housing Authority and the Unified Government were joint

employers under the FLSA so that hours worked for both defendants during any

work week should have been combined for purposes of determining whether

plaintiffs were due overtime pay.

      The case was tried to a jury and, as set out infra, almost all issues were

submitted for the jurors’ determination. The jury found for the defendants on all

issues. The district judge denied plaintiffs’ post-trial motion for judgment as a

matter of law or for a new trial. Johnson v. Unified Govt. of Wyandotte County,

180 F.Supp. 2d 1192 (D. Kan. 2001). 2 Plaintiffs now bring this appeal from the

final judgment. Each defendant filed a cross-appeal. The cross-appeals were not

briefed and are deemed to have been abandoned. See Bledsoe v. Garcia, 742 F.2d

1237, 1244 (10th Cir. 1984). Accordingly we dismiss the cross-appeals.

      Plaintiffs invoked the district court’s jurisdiction under 29 U.S.C. § 216(b)

and 28 U.S.C. §§ 1331 & 1337. This court has appellate jurisdiction under 28

U.S.C. § 1291.




      1
          The Act is codified at 29 U.S.C. §§ 201 et seq.
      2
        The district judge issued thoroughly reasoned opinions denying certain
pre-trial motions in these cases as well. See Johnson, 127 F.Supp.2d 1181 (D.
Kan. 2000), and Barajas v. Unified Govt., 87 F.Supp.2d 1201 (D. Kan. 2000).
                                           -3-
                                           B

      The Housing Authority was created under state and federal statutes to

provide housing for low income tenants. The security patrols that have given rise

to the dispute underlying this litigation were funded under legislation passed by

Congress in 1988 to address the impact of illegal drugs in public housing. 3 The

Public Housing Drug Elimination Pilot Program, created under the authority of

this legislation, provided for grants to be used in public housing projects for,

among other things, the employment of security personnel. The Housing

Authority received a grant under this program which resulted in the use of the off-

duty police officers as security officers for the projects administered by the

Housing Authority.

      To take advantage of the grant monies made available under this

legislation, the City of Kansas City, Kansas (before its merger with Wyandotte

County created the Unified Government) and the Housing Authority entered into a

“memorandum of understanding” for the employment of off-duty officers of the

former as security officers for the latter. Under this agreement, the city agreed to

provide two marked police cars and radio and dispatch backup to be used by the

off-duty officers when serving as security patrols for the Housing Authority. II

Aplt. App. 270-72. Officers had to complete an application to the Police


      3
          See 42 U.S.C. §§ 11901 et seq.
                                           -4-
Department and receive permission for any off-duty work, including that with the

Housing Authority. Id. at 61, 109. Officers were limited to 20 off-duty hours of

employment per week, with no more than four hours per day on any day when the

officer was on duty with the Police Department. All off-duty employment was at

the option of the individual officer; in other words, this was strictly a voluntary

program.

      Additional facts are noted in connection with the legal analysis which

follows.

                                          II

      To establish their entitlement to overtime compensation the plaintiffs had to

convince the court and the jury that they were employees of the Housing

Authority, as opposed to independent contractors; 4 that the Housing Authority and

the Unified Government should be regarded as joint employers; 5 and that they had

worked more than 43 hours in any week for which they sought recovery. 6 Even if

the plaintiffs had prevailed on each of those three issues, the law provides an



      4
       See Baker v. Flint Engineering & Const. Co., 137 F.3d 1436, 1440 (10th
Cir. 1998).
      5
          See 29 C.F.R. § 791.2.
      6
       The 43 hour per week standard, rather than the usual 40 hour per week
standard, applies to law enforcement personnel. See 29 U.S.C. § 207(k); 29
C.F.R. § 533.230(c). Other elements of the claim are of no concern to us in this
appeal. The division of duties between judge and jury is discussed infra.
                                          -5-
affirmative defense called the “special detail exception,” which was invoked by

these defendants. See Johnson, 180 F.Supp.2d at 1197-1200. The parties agreed

to submit all of these issues to the jury, which decided all of them in favor of the

defendants. 7 As the district judge pointed out, plaintiffs had to prevail on each of

these issues to recover. Id. at 1194, n.1.

       Consequently, plaintiff have, of necessity, raised each of these issues on

appeal. But it is not necessary for us to decide each issue, and prudence counsels

against doing so. Because we conclude that sufficient evidence supported the jury

findings that the plaintiffs were not employees of the Housing Authority, but were

instead functioning as independent contractors when they patrolled as security

guards, we will not decide the other issues mentioned above.

       We review the denial of a motion for judgment as a matter of law based on

the ground of insufficiency of the evidence de novo, using the same legal standard

as the district court.

       A party is entitled to judgment as a matter of law only if the
       “evidence points but one way and is susceptible to no reasonable
       inferences supporting the party opposing the motion.” In reviewing
       the record, we “will not weigh evidence, judge witness credibility, or
       challenge the factual conclusions of the jury.” Judgment as a matter
       of law is appropriate if there is no legally sufficient evidentiary basis

       7
        The trial judge was well aware of authority such as Dole v. Snell, 875 F.2d
802, 805 (10th Cir. 1989), discussed infra, that the ultimate question on these
issues is one of law. But “the court and the parties struggled with the proper
allocation of the court’s functions and the jury’s functions” in applying the
principle. 180 F.Supp.2d at 1202.
                                          -6-
      for a claim under the controlling law. We consider the evidence, and
      any inferences drawn therefrom, in favor of the non-moving party.


Brown v. Gray, 227 F.3d 1278, 1285 (10th Cir. 2000) (internal citations omitted)

(quoting Deters v. Equifax Credit Info. Servs., Inc. 202 F.3d 1262, 1268 (10th Cir.

2000)).

      As a rule, the ultimate question is one of law, with the fact finder’s

underlying determinations reviewed only for clear error. Dole v. Snell, 875 F.2d

802, 805 (10th Cir. 1989). Here, however, we are presented with something of an

anomaly. Apparently because the district court and the parties found this rule to

be vexingly difficult to apply in the practical setting of a jury trial, the parties

agreed to submit this issue to the jury (along with other similar “ultimate”

questions that need not concern us here). See Johnson, 180 F.Supp.2d at 1202.

Consequently, we review the denial of the post-trial motion for judgment as a

matter of law only for the sufficiency of the evidence to support the jury’s

decision. Had the trial court made the ruling as one of law, our review would

have been de novo on the ultimate question. But for us now to make a de novo

determination whether the plaintiffs should be regarded as employees of the

Housing Authority under the FLSA would be counter to the doctrine of invited

error. See Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225, 1229 (10th Cir.

2003). The plaintiffs cannot agree to submit the question to the jury and still


                                            -7-
enjoy the benefit of the de novo standard of review that we would have applied to

the district judge’s determination of the ultimate issue in the absence of that

stipulation.

      As applied to the plaintiffs in this case and their relationship to the

defendants, the FLSA generally defines an employee as “any individual employed

by a . . . political subdivision of a State . . . .” 29 U.S.C. § 203(e)(1), (e)(2)(C).

The terms “employ” and “employer” are given similarly broad but vague

definitions. 8 The “striking breadth” of these definitions “stretches the meaning of

‘employee’ to cover some parties who might not qualify as such under a strict

application of traditional agency principles.” Nationwide Mut. Ins. Co. v.

Darden, 503 U.S. 318, 326 (1992) (quoted in Baker v. Flint Engineering & Const.

Co., 137 F.3d 1436, 1440 (10th Cir. 1998)).

      Accordingly, in determining whether the plaintiffs were employees of the

Housing Authority, our analysis “is not limited by traditional common law

concepts” but focuses on the economic realities, “and the focal point is ‘whether

the individual is economically dependent on the business to which he renders

service . . . or is, as a matter of economic fact, in business for himself.’” Dole v.


      8
        “Employer” is defined as “any person acting directly or indirectly in the
interest of an employer in relation to an employee . . . .” 29 U.S.C. § 203(d). The
verb “employ” is defined to mean “suffer or permit to work.” 29 U.S.C. § 203(g).
See Baker v. Flint Engineering & Const. Co., 137 F.3d 1436, 1440 (10th Cir.
1998).
                                            -8-
Snell, 875 F.2d 802, 804 (10th Cir. 1989) (quoting Doty v. Elias, 733 F.2d 720,

722-23 (10th Cir. 1984)). In Doty, we listed five factors (derived from United

States v. Silk, 331 U.S. 704, 716 (1947)) which are generally considered in

applying this test:

      (1) the degree of control exerted by the alleged employer over the
      worker; (2) the worker’s opportunity for profit or loss; (3) the
      worker’s investment in the business; (4) the permanence of the
      working relationship; and (5) the degree of skill required to perform
      the work.

733 F.2d at 723. “An additional commonly considered factor is the extent to

which the work is an integral part of the alleged employer’s business.” Dole v.

Snell, 875 F.2d at 805. None of the factors is to be considered dispositive; the

test is instead based on the totality of the circumstances. Id. The instruction to

the jury on this issue included each of the factors mentioned above and was

submitted without objection. Supp. App. 17-19.

      The record includes substantial evidence indicating that the Housing

Authority exercised very little control over the plaintiffs as they conducted the

security patrols. The security guards could come and go as they pleased within

the times from 4 p.m. to 2 a.m. Id. at 102, 113. Starting times were flexible,

depending on the individual’s needs. Id. at 54-55, 75. If needed, an officer could

go home after having worked only two hours. Id. at 93-94. When on duty as a

police officer, an individual had to get permission for breaks, but this was not so


                                          -9-
when the individual was working as a security guard for the Authority. Id. at

142-43. A police officer while on duty had to have permission to leave her

assigned district. In contrast, the Authority had properties in different divisions

and districts, and the security guards did not need permission to move from one

project to another in a different district. Id. Plaintiffs had little supervision while

on security duty for the Authority. Id. at 85. From this evidence, the jury could

reasonably have concluded that the degree of control exercised by the Housing

Authority was minimal and that this factor clearly weighed in favor of regarding

the plaintiffs as independent contractors rather than employees of the Authority.

      Did the plaintiffs have the opportunity for profit or loss? The plaintiffs

could not have lost money from their efforts for the Housing Authority.

Certainly, then, their circumstances differed from those of some independent

contractors. However, the flexibility that was afforded them in determining the

number of hours that they worked made their circumstances rather different from

those of most employees as well. The jury could have viewed this factor as not

favoring either side.

      As to the degree of skill involved in the actual labors, the officers who

served as security guards had been trained by the police department and did not

need further training. Supp. App. at 62-63; 97-98. As to whether the work was

integral to the Housing Authority’s business, the evidence was that the Authority


                                          -10-
had functioned for years before and after the program without the security patrols.

      Without the complete record, we cannot conduct the thorough review that is

usual in a sufficiency of the evidence challenge, and obviously we have not

addressed each of the pertinent factors identified above. Nevertheless, having

identified sufficient evidence on several of the factors, we cannot say that the

jury’s decision on the independent contractor issue was without support in the

evidence. We are therefore bound by that decision.

                                         III

      Plaintiffs contend that the jury instructions and verdict form used by the

district court were unfairly prejudicial to them because of the sheer volume of

work the jury would have been required to perform in order to find in favor of

plaintiffs. We review decisions as to both jury instructions and special verdict

forms under the abuse of discretion standard. Webb v. ABF Freight System, Inc.,

155 F.3d 1230, 1249 (10th Cir. 1998).

      Plaintiffs assert that due to the verdict form used, a verdict in their favor

would have required the jurors “to literally copy down hundreds of lines of

damages amounts, taken from exhibits created by Plaintiffs’ damages expert.”

Appellants’ Brief at 13. Plaintiffs also contend that Instruction 24, an instruction

on damages referred to in the verdict form, was confusing, apparently for the

same reason. In addressing the contention in ruling on plaintiffs’ objection to


                                         -11-
Instruction 24 at trial, the district judge said:

       This jury[,] I do not believe[,] is going to be stampeded on some
       decision based upon what is the easiest thing for them to do. I
       believe they have been very attentive, very tuned in to this case. I
       don’t believe the actual math they will have to do if they get to the
       damages calculations is all that awesome a task for them because the
       plaintiffs’ exhibits are so clearly laid out to correlate with that
       formula and with the verdict form that, as much as I wish we could
       do it a different way, I believe that for all the reasons I stated earlier
       it’s appropriate to leave it that way.

II Aplt. App. 630.

       We think it clear that the district judge’s reasoning applies to the verdict

form as well as to Instruction 24, even though the latter was the point the judge

was specifically addressing in these remarks. We have no basis for disagreeing

with the trial judge’s assessment of the diligence of the jurors, and this alone

suggests that the plaintiffs’ argument has little force. Furthermore, plaintiffs’

brief asserts that their damages exhibits and special interrogatories they had

proposed would have greatly simplified the jury’s task. But we cannot make the

suggested comparison because plaintiffs have not provided citations to the record

to enable us to find the trial exhibits and proposed special interrogatories (which

do not appear to be included in their appendix).

       Plaintiffs say that the essence of their complaint is that the instruction and

verdict form were contrary to the “burden shifting rule on damages in FLSA

cases” discussed in Hearnsberger v. Gillespie, 435 F.2d 926 (8th Cir. 1970). We


                                           -12-
presume that plaintiffs’ reference is to that portion of the Eighth Circuit’s opinion

in which the court quoted and followed Anderson v. Mt. Clemens Pottery Co., 328

U.S. 680, 686-88 (1946), where the Supreme Court had held that, if the

employer’s records are inaccurate or inadequate, the plaintiff employee

      has carried out his burden if he proves that he has in fact performed
      work for which he was improperly compensated and if he produces
      sufficient evidence to show the amount and extent of that work as a
      matter of just and reasonable inference. The burden then shifts to the
      employer to come forward with evidence of the precise amount of
      work performed or with evidence to negative the reasonableness of
      the inference to be drawn from the employee’s evidence. If the
      employer fails to produce such evidence, the court may then award
      damages to the employee, even though the result be only
      approximate.

Hearnsberger, 435 F.2d at 931-32 (quoting Anderson, 328 U.S. at 687-88)).

      Plaintiffs contend that they were “entitled to a reasonable inference of

accuracy of their damages evidence, and Defendants bore the burden of

establishing the exactness of the comparatively minuscule amounts of

overpayments to be deducted from the totals” on plaintiffs’ damages exhibits.

Appellants’ Brief at 15. Once again, our review is severely hampered by the fact

that plaintiffs have not provided citations to enable us to find their damages

exhibits, if those exhibits are included in the appendix. But we see no defect in

the trial judge’s rulings and instructions. Instruction 24 clearly told the jurors

that the defendants bore the burden of proving the amounts of any “premium pay”



                                          -13-
that could be subtracted in performing the calculations. 9

      Even if we assume that the plaintiffs had proffered a set of instructions and

a verdict form that would have been far easier for the jurors to use, that would

still not convince us that the trial judge abused his discretion in not using the

simplest procedure available.

      Plaintiffs raise another issue which we have not addressed – whether the

trial judge erred in deciding as a matter of law that plaintiffs had failed to adduce

evidence to support their contention that the defendants had willfully violated the

Act. Because we uphold the jury verdict that there was no violation, plaintiffs

could not show prejudice even if we were to conclude that there was evidence

from which the jurors could have found willful violations.

      Accordingly the cross-appeals, Nos. 02-3005 and 02-3014, are

DISMISSED, and the judgment of the district court in No. 01-3398 is

AFFIRMED.




      9
       Defendants suggest that plaintiffs cannot show that they suffered any
prejudice from the verdict form because the jury awarded no damages. That
contention quite obviously misses the mark because plaintiffs argue,
unpersuasively we conclude, that the very complexity of the task of calculating
damages influenced the jury to decide all issues in favor of the defendants.
                                         -14-
