    Case: 19-50360   Document: 00515360538    Page: 1   Date Filed: 03/26/2020




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

                                                                       FILED
                               No. 19-50360                      March 26, 2020
                                                                  Lyle W. Cayce
                                                                       Clerk


BRYCE MILLER; ROBERT MILLS; MICHAEL STRAWN;
JASON JEWERT; MICHAEL J. CANALES; BELINDA MANGUM,

                                        Plaintiffs–Appellees,

versus

TRAVIS COUNTY, TEXAS;
JUDGE SARAH ECKHARDT, in her official capacity,

                                        Defendants–Appellants.




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




Before SMITH, HO, and OLDHAM, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     The plaintiffs are lieutenants in the Travis County Sheriff’s Office. A
jury awarded each damages for unpaid overtime under the Fair Labor Stan-
dards Act (“FLSA”). It determined that the county hadn’t shown (1) that the
lieutenants’ recommendations as to other employees were given “particular
weight” or (2) that their primary duties were management.           The county
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                                   No. 19-50360
challenges the judgment on various grounds. We affirm.

                                        I.
      The office’s structure is straightforward. The Sheriff is naturally at the
top of the food chain. In descending order are the Chief Deputy, majors, cap-
tains, lieutenants, sergeants, detectives, and deputies. The office is split into
three bureaus; the plaintiffs serve in the law-enforcement bureau.

                                        A.
      The lieutenants’ main responsibility is to manage the operation of units
of sergeants and deputies. Patrol lieutenants oversee reports and calls for
help. Sometimes they go to the field to assist with interviews, investigations,
searches, and other front-line activities. But often, those duties are left to the
sergeants and deputies, with the lieutenants overseeing and assigning tasks.
The lieutenants spend plenty of time at their desks.

                                        B.
      The lieutenants participate in employment decisions regarding their co-
workers, starting with hiring and promotion. The Sheriff’s Office has a civil
service system under which each applicant seeking to be hired or promoted is
assigned a score based on two equally weighted components. One comes from
a written exam, the other from an interview. The scores are then delivered to
the Sheriff, who may pick from among the top three.

      Lieutenants sometimes sit on the boards that conduct the interviews.
Five reviewers participate in each one. On promotional boards, only those who
outrank the candidate may sit; but on hiring boards, those lower in rank than
the lieutenants can participate.

      The board interviews the candidate, and the five reviewers submit their
evaluations. The highest and lowest scores are tossed out, and the remaining
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                                  No. 19-50360
three are averaged. That interview score is then combined with the written
portion to calculate a final score, which is delivered to the Sheriff.

      The lieutenants also participate in discipline and termination decisions.
When there is a potential disciplinary action against a deputy or sergeant, lieu-
tenants must give recommendations within the chain of command. The lieu-
tenants review the suggestions provided by their subordinates, conduct their
own investigations, and then write a report. That report is delivered to the
supervising captain, who reviews the file and arrives at his or her own recom-
mendation. The major does the same. The Chief Deputy then makes a final
decision, which is appealable to the Sheriff and even to the civil service system.

                                        C.
      Believing they were entitled to overtime pay, the lieutenants sued Travis
County and Judge Sarah Eckhardt under the FLSA, 29 U.S.C. § 201 et seq.,
and 42 U.S.C. § 1983. The county answered, asserting, among other things,
that the lieutenants were executive employees and hence exempt from the
FLSA’s overtime mandate.

      The case went to a jury. The parties stipulated that the lieutenants had
stated a claim under the FLSA, so the jury decided only whether the county
had proven that the lieutenants were exempt. The jury found that they were
not. The county hadn’t shown (1) that the lieutenants’ primary duty was man-
agement instead of front-line enforcement or (2) that the lieutenants’ recom-
mendations as to hiring, promotion, discipline, termination, and the like were
given particular weight. The jury also found for the lieutenants on the § 1983
claim.

      The jury awarded damages to each plaintiff for the FLSA and the § 1983
violations. After the verdict, the county renewed a motion for judgment as a

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matter of law (“JMOL”), which the district court denied. The court entered
judgment on the FLSA verdict alone, declining to award the lieutenants a
double recovery for § 1983.

                                              II.
       We review de novo a ruling on a motion for JMOL, Evans v. Ford Motor
Co., 484 F.3d 329, 334 (5th Cir. 2007), which may be granted if “a reasonable
jury would not have a legally sufficient evidentiary basis to find for” a party
that “has been fully heard on an issue,” FED. R. CIV. P. 50(a)(1). Our review
“is especially deferential” to a jury verdict. Flowers v. S. Reg’l Physician Servs.
Inc., 247 F.3d 229, 235 (5th Cir. 2001). We affirm unless “the facts and infer-
ences point[ed] so strongly in favor of the movant that a rational jury could not
[have] reach[ed] a contrary verdict.” 1 In doing so, we “review all of the evidence
in the record.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). But we draw all reasonable inferences in favor of the nonmovant and
do not evaluate credibility or weigh the evidence. Evans, 484 F.3d at 334.

                                              A.
       The FLSA exempts from the overtime requirement “any employee em-
ployed in a bona fide executive . . . capacity.” 29 U.S.C. § 213(a)(1). The em-
ployer bears the burden of proving that exemption by a preponderance of the
evidence. 2

       A required element 3 of the exemption is that the employee be one “[w]ho


       1Allstate Ins. Co. v. Receivable Fin. Co., 501 F.3d 398, 405 (5th Cir. 2007). The lieu-
tenants maintain that the county forfeited a sufficiency challenge as to Jewert, Canales, and
Mangum, triggering an even more deferential standard of review. We needn’t address that
contention, because, under the normal standard, the evidence is sufficient. See id.
      See Faludi v. U.S. Shale Sols., L.L.C., 950 F.3d 269, 273 (5th Cir. 2020); Dalheim v.
       2

KDFW-TV, 918 F.2d 1220, 1224 (5th Cir. 1990).
       3   The test is conjunctive, as the parties agree. See, e.g., Escribano v. Travis Cty.,
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has the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring, firing, advancement, promotion or any other
change of status of other employees are given particular weight.” 4 The parties
stipulated that the lieutenants couldn’t hire or fire; so the jury decided only
whether their recommendations received “particular weight.”                    29 C.F.R.
§ 541.100(a)(4).

       The regulations illuminate what “particular weight” means. See id.
§ 541.105. Relevant factors include “[1] whether it is part of the employee’s job
duties to make such suggestions and recommendations; [2] the frequency with
which such suggestions and recommendations are made or requested; and
[3] the frequency with which the employee’s suggestions and recommendations
are relied upon.” Id. Generally, the suggestions “must pertain to employees
whom the executive customarily and regularly directs.” Id. “[O]ccasional sug-
gestion[s]” regarding a coworker don’t count. Id. But the employee’s sugges-
tions can “still be deemed to have ‘particular weight’ even if a higher level man-
ager’s recommendation has more importance and even if the employee does not
have authority to make the ultimate decision.” Id.

                                            B.
       The county contends that the evidence was overwhelming that the lieu-
tenants’ recommendations are given particular weight—so much so that the



947 F.3d 265, 267 (5th Cir. 2020) (noting that the executive exemption requires the employer
to demonstrate the four elements in 29 C.F.R. § 541.100(a)).
       4 29 C.F.R. § 541.100(a)(4). Another requirement is that the lieutenants’ “primary
duty is management.” Id. § 541.100(a)(2). The parties focus their briefs on that prong. But
we don’t reach it, because the county needed to prove all four prongs, see, e.g., Escribano,
947 F.3d at 267, and, for reasons described below, the jury permissibly concluded that the
particular-weight prong wasn’t met, see Mullins v. City of New York, 653 F.3d 104, 119 (2d
Cir. 2011) (per curiam) (declining to reach one prong of the executive exemption because
another prong wasn’t met).
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jury acted irrationally in concluding otherwise.               We disagree.       There was
enough evidence for a rational juror to conclude that the county hadn’t met its
burden. See Allstate, 501 F.3d at 405.

       To start, the hiring and promotional boards did not provide the lieu-
tenants any special influence. They sometimes sat on the boards, but, at least
for hiring boards, they did so along with their subordinates. Their scores were
afforded the same weight as everyone else’s. If a lieutenant’s vote was an out-
lier, it didn’t count. And even when it did count, it comprised only one-third of
the interview score—which itself constituted only one-half of the total score.
Thus, at most, a lieutenant’s recommendation accounted for one-sixth of the
final tally.

       The county points out that a civil service system is designed to prevent
any one participant’s views from having disproportionate influence. “If work-
ing under civil service alone were a sufficient factor to negate the ‘particular
weight’ element of the executive exemption,” the county suggests, the “exemp-
tion would be without meaning.”

       But the jury was properly instructed that an employee’s recommendation
can receive particular weight even if he or she doesn’t make the ultimate deci-
sion and even if others (including superiors) get to weigh in, too. And there is
no evidence that the jury considered the civil service arrangement to be dis-
positive. Nor is there indication that the district court did.

       The jury would’ve been justified in finding for the county on the
particular-weight prong. But it chose not to, weighing the evidence differently
from how the county would’ve preferred. 5 The jury heard, for example, that


       5See, e.g., Olibas v. Barclay, 838 F.3d 442, 450 (5th Cir. 2016) (“The jury’s function as
the traditional finder of facts is to weigh conflicting evidence and inferences and determine
the credibility of witnesses.” (cleaned up)).
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                                        No. 19-50360
internal recommendations played no role and that the lieutenants served on
the boards voluntarily. There was enough for the jury to find as it did, and the
exemption retains its “meaning.”

      The same is true for the lieutenants’ role in discipline and termination.
As the district court noted, the county provided few examples in which any
lieutenant’s recommendation—let alone that of the plaintiffs—was given par-
ticular weight, even though the regulation counts frequency of reliance as a
factor and even though the county had the burden. See 29 C.F.R. § 541.105;
Dalheim, 918 F.2d at 1224.

      True, the lieutenants must provide their views in investigations of those
under their command, and there was general testimony from two captains and
a major that they give extra weight to the lieutenants’ recommendations. One
captain suggested that he frequently agrees with them.

      But the jury also heard that sergeants—who are subordinate—provide
the same kinds of recommendations, which the captains consider. And the jury
wasn’t required to believe the captains’ testimony about the lieutenants’ rec-
ommendations, because the jury could’ve viewed it as employer-pleasing and
hence not credible 6—especially given that the testimony wasn’t supported with
concrete examples. In fact, in the only example provided, it’s unclear whether
a plaintiff was involved (as opposed to another lieutenant), and the captain
rejected half of the recommendation. 7

      There was evidence on both sides, and the jury picked a winner. Our
task is not to determine whether the verdict was correct—only whether there


      6   See id. (noting that juries—not courts of appeals—weigh credibility).
      7  It is true that the regulation asks whether the lieutenants’ recommendations were
afforded particular weight—not whether they were followed. See 29 C.F.R. § 541.100(a)(4).
Yet a rational jury could consider it relevant whether the recommendation was followed.
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                                       No. 19-50360
was a sufficient basis to render it. See FED. R. CIV. P. 50(a). There was.

                                             III.
       The county contends that the district court erred in refusing to grant a
new trial because the verdict ignored the weight of the evidence. We review
for abuse of discretion and affirm unless “the party that was the movant in
[the] district court makes a clear showing of an absolute absence of evidence to
support the jury’s verdict[.]” Whitehead v. Food Max of Miss., Inc., 163 F.3d
265, 269 (5th Cir. 1998) (cleaned up). Above, under a more exacting standard,
we found sufficient evidence. 8 So the refusal to grant a new trial was neces-
sarily also blameless. 9

       The county maintains that the district court erred in refusing to alter or
amend the judgment under Federal Rule of Civil Procedure 59(e). The county
urges that Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018),
effected “a sea change in wage and hour law” in holding that courts should
fairly—not narrowly—construe the FLSA’s exemptions.

       We review for abuse of discretion, Def. Distributed v. United States Dep’t
of State, 947 F.3d 870, 872 (5th Cir. 2020), and there was none. There is no
evidence that the court or jury applied a narrow construction. The jury instruc-
tions said nothing about how to construe the exemption, and the district court
was aware of Encino. There is therefore no “manifest error of law.” Id. at 873.

       Finally, the county urges us to grant JMOL as to the § 1983 claim. But



       8 See Foradori v. Harris, 523 F.3d 477, 497 (5th Cir. 2008) (“Our review of the district
court’s denial of a motion for a new trial is more deferential than our review of a motion for
[JMOL].”).
       9   See id. (“Because we have already concluded that the jury’s verdict was supported
. . . in reviewing the district court’s denial of [JMOL], we necessarily find that there was no
abuse of discretion in its denying the motion for a new trial[.]”).
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                                       No. 19-50360
the court didn’t enter judgment or award damages on that ground, recognizing
that such would’ve created a double recovery. That aspect of the case is there-
fore moot. 10

       AFFIRMED.




       10See, e.g., Envtl. Conservation Org. v. City of Dall., 529 F.3d 519, 527 (5th Cir. 2008)
(observing that a case is moot “when the parties lack a legally cognizable interest in the out-
come of the litigation” (quotation marks removed)).
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