                                                                               PUBLISH


                     IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT                   FILED
                                                                 U.S. COURT OF APPEALS
                                    _______________                ELEVENTH CIRCUIT
                                                                         06/11/99
                                      No. 98-5225                    THOMAS K. KAHN
                                 Non-Argument Calendar                    CLERK
                                   _______________

                            D. C. Docket No. 97-7029-CV-WJZ


JEAN JOSEPH ETIENNE, on behalf of himself,
and all others similarly situated,

                                                                        Plaintiff-Appellant,


                                          versus


INTER-COUNTY SECURITY CORPORATION,
a Florida Corporation,

                                                                       Defendant-Appellee.

                           ______________________________

                        Appeal from the United States District Court
                            for the Southern District of Florida
                           ______________________________

                                      (June 11, 1999)


Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.*

__________________
* This decision is rendered by a quorum, due to Judge Henderson's death on May 11, 1999. 28
U.S.C. § 46(d).

PER CURIAM:
      On consideration of appellant's motion to alter and/or amend the judgment, the

prior opinion issued on April 30, 1999, and published at 173 F.3d 1372 (11th Cir.

1999), is modified, as follows:

      We vacate the introductory paragraph and adopt in its place the following:

             This is an appeal from the jury's verdict for the defendant in the
      plaintiff's action brought for failure to pay overtime wages under the Fair
      Labor Standards Act. Plaintiff/appellant Etienne raises three issues: (1)
      the district court erred in denying his motion for judgment as a matter of
      law, (2) the jury verdict was contrary to law and against the clear weight
      of the evidence, and (3) the district court erred in its jury instructions
      regarding the burdens of proof. We conclude that the district court did
      not err in refusing to give Etienne's requested jury instructions. We
      decline to consider Etienne's claim that jury's verdict went against the
      weight of the evidence because Etienne did not raise this argument
      before the district court. Finally, we conclude that the district court did
      not err in denying the motions for judgment as a matter of law, except
      with respect to $18.62 in wages, which the defendant admitted to owing.
      We vacate the last paragraph in section (1) of the opinion discussing the motion

for judgment as a matter of law and adopt in its place the following:


              The operations manager, relying on company records, testified that
      Etienne was paid all the overtime compensation he earned, with the
      exception of $18.62, which was the payroll company's error. Etienne
      testified that he worked additional hours for which he was not
      compensated. The evidence was essentially a credibility determination,
      with the exception of the $18.62 the defendant admitted to owing, and
      the credibility of the witnesses was the province of the jury. Therefore,
      the district court did not err in denying the motions for judgment as a
      matter of law, except with respect to the $18.62. We vacate the district
      court's denial of the plaintiff's motion for judgment as a matter of law
      and remand to the district court for further proceedings in accordance
      with this opinion.

                                          2
     The disposition of the case should read:

AFFIRMED in part, VACATED in part, and REMANDED.




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