                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 29 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    SCOTT BENTON,

                  Plaintiff - Appellant,

    v.                                                   No. 02-6309
                                                   (D.C. No. CIV-01-1600-C)
    CUSTER COUNTY BOARD OF                             (W.D. Oklahoma)
    COUNTY COMMISSIONERS,
    a political subdivision of the State
    of Oklahoma,

                  Defendant - Appellee.


                               ORDER AND JUDGMENT         *




Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Scott Benton, a former deputy sheriff for Custer County,

Oklahoma, appeals from the district court’s order entering summary judgment in

favor of defendant Custer County Board of County Commissioners (County) on

his claim for overtime compensation under the Fair Labor Standards Act (FLSA),

29 U.S.C. §§ 201-219. Our jurisdiction arises under 28 U.S.C. § 1291.

We affirm.

       “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.”   Kendrick v. Penske

Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000) (quotation omitted).

Summary judgment “shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

“When applying this standard, we view the evidence and draw reasonable

inferences therefrom in the light most favorable to the nonmoving party.”

Kendrick , 220 F.3d at 1225 (quotation omitted).

       The district court determined, as a matter of law, that plaintiff is not

entitled to overtime compensation under FLSA, concluding that the undisputed

facts in this case show that plaintiff’s position as a deputy sheriff fell within

the “personal staff” exception to FLSA’s definition of a covered employee.


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See 29 U.S.C. § 203(e)(2)(C)(i) and (ii)(II). Having thoroughly reviewed the

record in this case, we hold that the district court’s determination is in accordance

with our decision in Nichols v. Hurley , 921 F.2d 1101, 1110-14 (10th Cir. 1990)

(holding that boards of county commissioners and elected sheriffs of two counties

in Oklahoma were entitled to summary judgment on claims of deputy sheriffs for

overtime compensation under FLSA on ground that undisputed facts showed that

deputy sheriffs were part of elected sheriffs’ personal staffs and were therefore

not covered employees under FLSA). Accordingly, because plaintiff has failed to

put forth sufficient facts to distinguish   Nichols , we affirm the entry of summary

judgment in favor of the County for the reasons relied upon by the district court.

See Aplt. App. at 189-94.

       The judgment of the district court is AFFIRMED.


                                                       Entered for the Court


                                                       David M. Ebel
                                                       Circuit Judge




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