                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 06-11055                    JULY 11, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                  CLERK
                         ________________________

                     D. C. Docket No. 05-00068-CV-BH-B


TAMMY M. STEVENS,
DENISE I. LITTLETON,
Chapter 7 Bankruptcy Trustee,


                                                      Plaintiffs-Appellants,

                                    versus

SIMPLEXGRINNELL, LLP,

                                                      Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                                (July 11, 2006)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
      Denise Littleton, as trustee for the bankruptcy estate of Tammy Stevens,

appeals the summary judgment in favor of SimplexGrinnell, LLP, and the striking

of an affidavit of Stevens. Littleton argues that the district court erroneously

concluded that Stevens, formerly an employee with SimplexGrinnell, was exempt

from the overtime provisions of the Fair Labor Standards Act as an “outside

salesman,” 29 U.S.C. §§ 207, 213(a), and erroneously struck Stevens’s affidavit

because it contradicted her previous deposition testimony. We affirm.

                                 I. BACKGROUND

      SimplexGrinnell is engaged in the business of selling, installing, servicing,

and inspecting sprinkler systems and other fire-related products in commercial

buildings. From February 23, 2004, to November 30, 2004, Stevens was employed

by SimplexGrinnell as a Preventative Maintenance Agreement Sales

Representative. Stevens was responsible for selling PMAs, which are agreements

with SimplexGrinnell customers regarding the maintenance of indoor sprinkler

systems. Stevens provided service to existing PMA customers. Stevens also sold

to existing customers equipment or service upgrades or renewals. Stevens received

an annual salary of $30,000 plus a commission of 8 percent of the dollar amount of

PMAs that Stevens sold, upgraded, or renewed.

      In her deposition testimony, Stevens identified four customers to whom she



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provided service while she was employed at SimplexGrinnell. Each of these

customers received sales proposals by Stevens, and most of these proposals

resulted in sales. Stevens also stated that she sold “quite a few upgrades” while

providing service to existing PMA customers. Stevens did not record the days she

worked or the hours she devoted to customer service.

       During her employment at SimplexGrinnell, Stevens wrote a Business Plan

for 2005. Stevens wrote that providing service to existing customers was a

necessary responsibility of her sales job. Stevens also wrote that her goal was to

“[a]chieve 200% of [sales] quota” and “[m]aximize my days in the field to exceed

my customers’ expectations to sell successfully.” Stevens resigned from

SimplexGrinnell in December 2004.

       Stevens filed a complaint that alleged, among other things, that she was

entitled to overtime pay under the Fair Labor Standards Act. After discovery,

SimplexGrinnell moved for summary judgment. SimplexGrinnell argued that

Stevens was an “outside salesman” who was exempt from the Fair Labor Standards

Act.

       In response to the motion for summary judgment, Stevens submitted an

affidavit that estimated that she “spent between fifty and sixty percent of [her] time

performing customer service duties which were unrelated to [her] sales activities.”



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In the affidavit, Stevens stated that “servicing these existing accounts provided no

opportunity for additional commissions when the service contracts were renewed

because Simplex Grinnell paid no commissions on renewed contracts.” Stevens

also stated that she “provided customer service to several hundred customers that I

never made any sales to [sic].” Stevens estimated that she only made five upgrade

sales during her customer service calls. SimplexGrinnell moved to strike the

affidavit because it contained inadmissible evidence and contradicted Stevens’s

deposition testimony.

        The district court granted both the motion to strike and the motion for

summary judgment. First, the district court struck the affidavit because it failed to

set forth “specific facts to support [Stevens’s] overtime claim, [and] instead

proffer[ed] improper speculation and hearsay.” Second, the district court granted

the motion for summary judgment. The district court concluded that Stevens was

not entitled to overtime pay because she was exempt from the Fair Labor Standards

Act as an “outside salesman.” The district found that although Stevens performed

customer service, Stevens “took the opportunity on those occasion[s] to develop

and propose her own sales contract to the customer.” The district court stated,

“There is simply no evidence that Stevens was ever precluded from promoting her

own sales . . . or that she was ever required to devote more than twenty percent of



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her time on duties unrelated to her sales duties.” After summary judgment was

entered, Littleton was substituted for Stevens as plaintiff.

                           II. STANDARD OF REVIEW

      We review the decision by a district court to strike an affidavit for abuse of

discretion. Young v. City of Palm Bay, 358 F.3d 859, 863 (11th Cir. 2004). We

review a grant of summary judgment by the district court de novo and apply the

same legal standards as the district court. State Farm Fire & Cas. Co. v. Steinberg,

393 F.3d 1226, 1229 (11th Cir. 2004) (citing Iraola & CIA, S.A. v. Kimberly-Clark

Corp., 325 F.3d 1274, 1283 (11th Cir. 2003)).

                                  III. DISCUSSION

      Littleton makes two arguments. First, Littleton argues that the district court

abused its discretion when it struck Stevens’s affidavit because the affidavit

provided specific facts to support Stevens’s arguments for overtime pay. Second,

Littleton contends that the district court erroneously granted summary judgment to

SimplexGrinnell because a genuine issue of material facts exists regarding whether

Stevens is an “outside salesman.” Both arguments fail.

  A. The District Court Did Not Abuse Its Discretion When It Struck the Affidavit.

      Littleton argues that the district court abused its discretion by striking the

affidavit of Stevens because it established that Stevens devoted more than 20



                                           5
percent of her hours to duties that were unrelated to sales. “[A] district court may

find an affidavit which contradicts testimony on deposition a sham when the party

merely contradicts its prior testimony without giving any valid explanation.” Van

T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 656 (11th Cir. 1984).

“When a party has given clear answers to unambiguous questions which negate the

existence of any genuine issue of material fact, that party cannot thereafter create

such an issue with an affidavit that merely contradicts, without explanation,

previously given clear testimony.” Id. at 657.

      Stevens’s affidavit directly contradicts substantial portions of her deposition

testimony. The affidavit stated that Stevens had “no opportunity for additional

commissions” when she provided service to existing customers, but in her

deposition, Stevens testified that she made sales during her service calls and earned

commissions on those sales under the terms of her employment contract. The

affidavit stated that Stevens made only five upgrade sales when she provided

customer service, but Stevens testified in her deposition that she “did quite a few

upgrades.” The affidavit baldly asserted that Stevens “spent between fifty and

sixty percent of [her] time performing customer service duties which were

unrelated to [her] sales activities,” but Stevens testified in her deposition that she

did not keep records of the number of days or hours she devoted to service.



                                            6
Stevens provided no explanation for these inconsistencies. The district court did

not abuse its discretion when it struck the affidavit. Evers v. Gen. Motors Corp.,

770 F.2d 984, 986 (11th Cir. 1985).

 B. The District Court Correctly Granted Summary Judgment to SimplexGrinnell.

      The Fair Labor Standards Act provides that all employees are entitled to

receive overtime compensation in the amount of one and one-half times their

regular rate of pay for hours worked in excess of forty hours. 29 U.S.C. § 207.

The Act exempts “outside salesmen” from this provision. Id. § 213(a). “Outside

salesmen” are those who are “employed for the purpose of . . . making sales . . . [,]

obtaining orders or contracts for services” and do not devote more than 20 percent

of the hours worked to duties unrelated to sales. 29 C.F.R. § 541.500 (2004).

“[W]ork performed incidental to and in conjunction with the employee’s own

outside sales or solicitations . . . shall not be regarded as nonexempt work.” Id.

The employer has the burden to establish that the employee is an outside salesman.

Corning Glass Works v. Brennan, 417 U.S. 188, 196–97, 94 S. Ct. 2223, 2229

(1974).

      Littleton contends that the district court erred when it granted summary

judgment to SimplexGrinnell. Littleton argues that a genuine issue of material fact

exists regarding whether Stevens was an outside salesperson when she was



                                           7
employed at SimplexGrinnell. Because Stevens failed to proffer admissible

evidence that more than 20 percent of her hours were unrelated to outside sales, the

district court did not err when it granted summary judgment to SimplexGrinnell.

      The record establishes that Stevens worked as an outside salesperson who

was exempt from the overtime provisions of Fair Standards Labor Act. By the

terms of her contract, Stevens was hired as a PMA Sales Representative, which is

an “exempt position.” According to her deposition, Stevens’s salary and job

performance depended on her ability to make sales. In the business plans that she

submitted to SimplexGrinnell, Stevens described her goals as “[m]aximiz[ing]”

sales and “[a]chiev[ing] 200%” of the sales quota imposed by Simplex Grinnell.

Although she also provided service to existing customers, this duty was “incidental

to and in conjunction with the employee’s own outside sales” because the service

that Stevens provided to these customers furthered her ability to make sales that

increased her commission. 29 C.F.R. § 541.400. Stevens’s sales records

confirmed that she made sales proposals to all the service customers she identified

in her deposition.

                                IV. CONCLUSION

      The summary judgment in favor of SimplexGrinnell is

      AFFIRMED.



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