     Case: 12-60935       Document: 00512376683         Page: 1     Date Filed: 09/17/2013




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

                                                                            FILED
                                                                        September 17, 2013

                                       No. 12-60935                        Lyle W. Cayce
                                                                                Clerk

JOHNNY A. BASS, SR.; DAVID H. CAMPBELL,

                                                  Plaintiffs - Appellants

v.

CITY OF JACKSON, MISSISSIPPI,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:09-CV-549


Before DAVIS, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Johnny Bass, Sr. and David H. Campbell challenge the grant of judgment
as a matter of law to the City of Jackson on their claims under the Fair Labor
Standards Act (“FLSA”), and an adverse discovery ruling. Because the district
court did not err in finding facts indicating the FLSA’s administrative exemption
applied to Appellants, 29 U.S.C. § 213(a)(1), and because there was no abuse of
discretion concerning the discovery ruling, we AFFIRM.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-60935

                                 BACKGROUND
      Appellants are former district fire chiefs for the City of Jackson,
Mississippi. Both men retired from the fire department in June of 2009 and
then sued the City, alleging they were non-exempt employees entitled to
overtime compensation under the FLSA. While at the firehouse, they were on
salary and worked shifts of 24 hours on-duty followed by 48 hours off-duty.
Responsibilities of the district chiefs include supervising personnel, staffing the
firehouses within their districts, establishing schedules, and recommending
disciplinary action for their subordinates as necessary. On occasion, and due to
a shortage of district-level chiefs, they would work additional shifts for which
they were compensated a straight-time hourly rate.
      The complaint was filed in state court and the City removed the case based
on the federal statute. On cross-motions for summary judgment, the district
court first considered whether the City was correct in applying the
administrative exemption of the FLSA to the district fire chiefs. The court found
that the City had met its burden concerning the duties test but not the salary
basis test. Finding a genuine issue of material fact concerning the Appellants’
exemption status, the court denied the City’s motion for summary judgment and
Appellants’ motion for summary judgment on liquidated damages. A bench trial
was held. At the close of Appellants’ case, the court granted the City’s motion
for judgment as a matter of law concerning the application of the exemption to
the fire chiefs. This timely appeal followed.
                           STANDARD OF REVIEW
      The standard of review for a Rule 50(a) motion for judgment as a matter
of law is de novo. Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 622 (5th Cir.
2008). The court may render judgment where a party has been heard and there
is no legally sufficient evidentiary basis for a reasonable factfinder to find for the
party on that issue. Ellis v. Wealser Eng’g Inc., 258 F.3d 326, 337 (5th Cir.

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                                 No. 12-60935

2001). While the district court’s assessment of material, disputed facts is
reviewed only for clear error, the ultimate decision whether an employee is
exempt from the FLSA overtime compensation provisions is a question of law
reviewed de novo. Cheatham v. Allstate Ins. Co., 465 F.3d 578, 584 (5th Cir.
2006).
                                DISCUSSION
      The central issue in this appeal is whether the fire chiefs were exempt
from the FLSA overtime provisions.         To qualify under the administrative
exemption to the FLSA, an employee must have supervisory duties and meet the
salary basis test. The chiefs have challenged only the court’s holding that their
compensation met the salary basis test, i.e., that they were paid a salary
exceeding $455 per week. 29 C.F.R. §§ 541.100 & 541.200. Employees are
considered to be paid on a “salary basis” if they regularly receive a
“predetermined amount constituting all or part of [their] compensation, which
amount is not subject to reduction because of variations in the quality or
quantity of work performed.” Id. § 504.602(a). Paying employees an hourly rate
for work done beyond a regular schedule does not defeat the executive or
administrative exemption. See York v. City of Wichita Falls, Tex., 944 F.2d 236,
241–42 (5th Cir. 1991).
      Appellants offer two primary arguments why they did not meet the
qualifications of the salary basis test. First, they assert that the City adopted
a policy that could have reduced their pay based on the quantity of hours
worked. Though Appellants admit no district chief had ever been docked pay for
missing portions of shifts (and, in fact, the chiefs were allowed to run personal
errands while on duty), they argue that actual deductions are unnecessary to
remove them from exempt status; it is enough that an existing policy
countenanced the possibility of such deductions. Appellants’ second contention
is that a City policy against firefighters’ being Absent Without Official Leave

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                                     No. 12-60935

(“AWOL”) allegedly infringed Department of Labor regulations construing the
salary basis test, 29 C.F.R. § 541.602, because it presented a substantial
likelihood of disciplinary suspensions for the district chiefs of less than a week
and it arguably did not apply to all employees of the department or City.
       Since the district court found, as a matter of fact, that the district chiefs
were never subject to the potentially offending policies, we reject both assertions.
Appellants offer nothing more than conjecture, unsupported in practice, a level
of justification that cannot meet the standard set forth in Auer v. Robbins,
519 U.S. 452, 117 S. Ct. 905 (1997). In Auer, the Court accepted the Secretary’s
definition that an otherwise-exempt employee is subject to the FLSA when there
is a “significant likelihood” that an improper deduction might occur “as a
practical matter.” Id. at 461, 117 S. Ct. at 911. Here, it is clear, the chiefs were
not subject to salary deductions or suspensions. The district court was willing
to allow the Appellants to put on evidence that they were subject to policies that
would violate the Department of Labor’s mandates for exempt status. When
Appellants were unable to do so, the court found no substantial likelihood of
salary reduction or improper suspension.             That conclusion is not clearly
erroneous; the fire chiefs’ salary met the statutory exemption requirements.1
       In their final issue on appeal, Appellants contend the district court abused
its discretion in denying their motion for sanctions.                During discovery,
Appellants sought information concerning the work period adopted by the City
for its firefighters under Section 7(k) of the FLSA,2 29 U.S.C. § 207(k). After the
court compelled the City properly to answer numerous discovery requests, the
court denied a Fed. R. Civ. P. 37 request for further information and for


       1
        Because Appellants were exempt, we do not reach the question whether equitable
estoppel should alter the statute of limitations period.
       2
          A municipality can pick a work period anywhere between 7 and 28 days for purposes
of the firefighter overtime calculation. 29 C.F.R. § 553.230.

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                                  No. 12-60935

sanctions against the City. The information no longer pertains to this case
because we affirm the holding that Appellants are exempt employees.
Nevertheless, Appellants take a broad approach in seeking relief on this point,
urging this court that the district court should perhaps have disallowed the
City’s affirmative defenses or even entered a default judgment on their behalf.
      Discovery rulings are reviewed for abuse of discretion. United States v.
Webster, 162 F.3d 308, 336 (5th Cir. 1998). An appellate court need be involved
only when a party’s substantial rights have been prejudiced and the proceeding
would have turned out differently had the evidence been disclosed. Id. Based
on the record, there is no indication that the district court abused its discretion
in denying the discovery/sanction motion. In the end, Appellants’ rights were
not prejudiced since the information sought—assuming it was not already
provided by the City—was worthless without a ruling that they were non-exempt
employees.
                                CONCLUSION
      For the reasons stated above, the judgment of the district court is
AFFIRMED.




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