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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-2103 <br> <br>                          STEVEN ROMAN, <br> <br>                      Plaintiff - Appellant, <br> <br>                                v. <br> <br>                   MAIETTA CONSTRUCTION, INC., <br> <br>                      Defendant - Appellee. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                    FOR THE DISTRICT OF MAINE <br> <br>           [Hon. David M. Cohen, U.S. Magistrate Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Bownes, Senior Circuit Judge, <br> <br>                    and Stahl, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Donald F. Fontaine, with whom Lynne A. Gardner, Fontaine & <br>Beal, P.A., Thomas H. Somers and Hoff, Curtis, Pacht, Cassidy & <br>Frame, P.C., were on brief for appellant. <br>    Graydon G. Stevens, with whom Kelly, Remmel & Zimmerman, was <br>on brief for appellee. <br> <br> <br> <br>                       ____________________ <br> <br>                          July 2, 1998 <br>                       ____________________

          TORRUELLA, Chief Judge.  Plaintiff Steven Romn filed <br>this action against his former employer Maietta Construction, Inc. <br>("Maietta") for back pay plus liquidated damages under section <br>16(b) of the Fair Labor Standards Act ("FLSA").  Romn also joined <br>pendent state claims for unpaid wages and overtime pay under 26 Me. <br>Rev. Stat. Ann.  670, 626-A.  While the trial court ultimately <br>awarded plaintiff $2,436 plus costs and reasonable attorney's fees, <br>it denied Romn's claim for compensation for time spent at the race <br>track as a crew chief for stock cars raced by the son of Maietta's <br>owner.  The court also rejected plaintiff's claim for damages under <br>26  Me. Rev. Stat. Ann.  626-A.  Romn appeals these portions of <br>the judgment.  He also challenges certain factual findings as well <br>as the trial court's calculation of damages.  We affirm. <br>                          I.  BACKGROUND     The following facts are largely undisputed.  We summarize <br>disputed facts in a manner consistent with the district court's <br>supportable findings of fact.  See United States v. Gallo, 20 F.3d <br>7, 9 (1st Cir. 1994). <br>          Romn became interested in stock car racing in the late <br>1970s.  Prior to 1984, he owned and raced two stock cars, serving <br>as crew chief for these cars and paying the drivers a percentage of <br>the winnings.  During this time, he also served as crew chief for <br>two stock cars that he did not own.  He considered the members of <br>the crews on the cars that he owned to be volunteers and did not <br>compensate them.  Moreover, he was not paid for his work as crew <br>chief on the cars that he did not own, and in fact, considered <br>himself a volunteer when he worked in that capacity. <br>          Romn met Michael Maietta, Sr. ("Michael"), a son of the <br>owner of Maietta, at the race track where both of them did most of <br>their racing.  In 1984, Romn provided building and repair services <br>for the stock cars raced by Michael at Romn's body shop in <br>Windham, Maine.  Romn was paid for these services.  At the time, <br>Romn made his living from the body shop.  In 1985, Romn began <br>serving as crew chief for Michael's stock cars.  He performed this <br>work as a volunteer.  His duties as crew chief for the stock cars <br>included being present at weekly races from April through October <br>every year.  Races were usually held on Saturdays, although some <br>races occurred on Sundays or on Friday or Wednesday nights.  <br>Occasionally, there were two races in a week. <br>          Maietta advertised at the race track where Michael raced, <br>most often as part of a package deal that it arranged with the <br>owner of the track.  Maietta provided some parts and services, but <br>no cash, to Michael in connection with his racing, and the <br>company's name was painted on Michael's stock cars as a sponsor.  <br>At all relevant times, the construction company did not own these <br>stock cars. <br>          In 1987, Romn asked Michael whether Maietta could hire <br>him to work as a welder.  Michael is not and never has been an <br>officer, owner, or director of Maietta, although he was employed by <br>the company in a supervisory position.  Michael approached his <br>father, Louis Maietta, Sr. ("Louis Sr."), with this request and <br>Louis Sr. approved the hiring of Romn as a welder at $12 per hour.  <br>Romn was employed by Maietta from the fall of 1987 through <br>June 26, 1995. <br>          The year Romn was hired, Louis Sr. gave Michael <br>permission to move his stock cars from Romn's Windham shop to the <br>construction company's business premises in Scarborough, Maine, on <br>the condition that no one work on the cars during regular business <br>hours.  However, Romn regularly worked on the stock cars during <br>business hours.  He recorded all of the time during which he worked <br>on the stock cars at Maietta's premises on his time cards, which <br>were processed through the company's time clock.  All of the <br>supervisors at the premises, who were sons of Louis Sr., were aware <br>of these activities but did not direct Romn to stop.  Whenever <br>Louis Sr. learned that Romn was working on the stock cars during <br>business hours, he would tell Romn to stop or tell one of his sons <br>to tell Romn to stop.  However, Louis Sr.'s sons continued <br>thereafter to permit Romn to work on the stock cars while on the <br>firm's time clock.  Romn was paid by Maietta for all the hours he <br>recorded, including the hours spent working on the stock cars. <br>          In 1989, Romn's pay was increased to $16 per hour.  He <br>was frequently paid time and one-half by Maietta for overtime <br>hours.  Romn spent many of these hours working on Michael's stock <br>cars.  At some time during his employment, Romn and Louis Maietta, <br>Jr. ("Louis Jr."), one of Louis Sr.'s sons and vice-president and <br>a director of Maietta, agreed that any hours over 40 hours in a <br>given week spent by Romn working on the stock cars at Maietta's <br>business premises would be "held" rather than included in his <br>paycheck for that week.  Payment for these held hours was <br>accomplished in stages by paying him on the basis of a 40-hour work <br>week in weeks when he, in fact, worked fewer than 40 hours.  Romn <br>and Maietta, acting through Louis Jr., referred to these held hours <br>as "compensatory time."  They also agreed that Romn could take <br>compensatory time off in exchange for held hours.   Between June 9, <br>1993 and August 24, 1994, Maietta held a total of 120.75 hours from <br>Romn's time cards.  During this same time period, Maietta paid <br>Romn for a total of 105 hours in compensatory time at the rate of <br>$16 per hour. <br>          In August 1994, Romn sustained an injury while working <br>at Maietta.  He returned to work in November 1994, but his <br>relationship with the company and with Michael deteriorated <br>thereafter.  Romn did not serve as Michael's crew chief after the <br>1994 season.  After Romn ceased working for the construction <br>company on June 26, 1995, he filed this action under the FLSA for <br>additional wages he contended were due to him.  In particular, the <br>plaintiff sought back pay for serving as Michael's crew chief <br>during weekend races.  He also joined pendant state law claims. <br>          Both parties consented to having a magistrate conduct all <br>proceedings in the case pursuant to 28 U.S.C.  636(c).  Following <br>three days of hearings, the magistrate determined that, under the <br>FLSA, the plaintiff was entitled to overtime pay for all <br>compensatory time.  The court awarded the plaintiff an additional <br>$8 per hour for the 105 hours of compensatory time for which he had <br>received only $16 per hour, and awarded the overtime rate of $24 <br>per hour for the 15.75 hours of compensatory time for which he was <br>not paid, for a total of $1,218.  The trial court also ruled that, <br>under both the FLSA and state law, Romn was entitled to liquidated <br>damages in the amount of the unpaid overtime plus costs and <br>attorney's fees.  Thus, the magistrate rendered judgment for Romn <br>in the amount of $2,436 plus costs and reasonable attorney's fees.  <br>However, the trial court denied back pay for Romn's services as <br>Michael's crew chief.  In addition, the trial court found that <br>Romn was not entitled to damages in excess of those provided by <br>the FLSA because the FLSA was the exclusive remedy for the <br>enforcement of rights created under the act.  On appeal, Romn <br>challenges these aspects of the judgment. <br>                         II.  DISCUSSION <br>          We review a trial court's findings of fact for clear <br>error and its application of the law to the facts de novo.  SeeReich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997). <br>          A.   Factual Findings <br>          Romn challenges the trial court's finding of fact that, <br>prior to joining Michael's racing team, the plaintiff considered <br>himself a volunteer when he served as crew chief on two stock cars <br>he did not own.  We find no clear error in the court's <br>determination.  With respect to one of the cars, Romn specifically <br>testified, "I was a volunteer."  In addition, plaintiff testified <br>that his crew chief activities turned from sport to work when he <br>joined Michael's crew.  The court could have reasonably concluded <br>from this testimony that Romn considered himself a volunteer on <br>any stock car he worked on prior to Michael's stock cars.  <br>Accordingly, we see sufficient record support to affirm the trial <br>court's finding that Romn was a volunteer on the two stock cars at <br>issue. <br>          Romn also disputes the trial court's factual finding <br>that the construction company contributed no cash to Michael's <br>racing activities, citing to various portions of the trial <br>transcript which provide some backing for his challenge.  However, <br>other parts of the transcript, such as Michael's testimony that he <br>received no cash from the construction company for his racing team, <br>corroborate the trial court's finding. <br>          Undoubtedly, Maietta provided some financial support for <br>Michael's racing endeavors.  Nevertheless, we are not convinced <br>that the record clearly establishes that the company made cash <br>contributions to Michael for his racing team.  "A finding of fact <br>is clearly erroneous when the reviewing court is left with the <br>definite and firm conviction that a mistake has been made."  <br>Mitchell v. United States, 141 F.3d 8, 17 (1st Cir. 1998).  Lacking <br>such a conviction, we rule that the trial court did not commit <br>clear error in finding that Maietta did not provide funding to <br>Michael in connection with his stock car racing. <br>          B.   Romn's Crew Chief Activities <br>          Romn challenges the trial court's conclusion that the <br>weekend time he devoted to his crew chief activities for Michael's <br>stock cars was not compensable under the FLSA.  The FLSA provides <br>in relevant part that "no employer shall employ any of his <br>employees . . . for a workweek longer than forty hours unless such <br>employee receives compensation for his employment in excess of <br>[forty] hours . . . at a rate no less than one and one-half times <br>the regular rate at which he is employed."  29 U.S.C.  207(a).  <br>The act "defines the verb 'employ' expansively to mean 'suffer or <br>permit to work.'"  Nationwide Mut. Ins. Co. v. Darden, 503 U.S. <br>318, 326 (1992); see also 29 U.S.C.  203(g).  "The employer- <br>employee relationship does not lend itself to rigid per se <br>definitions, but depends 'upon the circumstances of the whole <br>activity.'"  Reich v. ConAgra, Inc., 987 F.2d 1357, 1361 (8th Cir. <br>1993) (citing Marshall v. Truman Arnold Distrib. Co., Inc., 640 <br>F.2d 906, 908 (8th Cir. 1981)).  Viewing Romn's activities as a <br>whole, we agree with the trial court that the FLSA does not require <br>Maietta to compensate Romn for his crew chief duties at the race <br>track. <br>          Maietta hired Romn to work as a welder on its business <br>premises.  However, the record reflects that he spent a substantial <br>amount of his time at the job site working on Michael's stock cars.  <br>Romn contends that since he performed the same type of work on the <br>stock cars at the race tracks, his weekend racing activities were <br>an extension of his workweek.  Thus, according to the plaintiff, he <br>is entitled to compensation for any time spent as Michael's crew <br>chief. <br>          The FLSA applies to "physical or mental exertion (whether <br>burdensome or not) controlled or required by the employer and <br>pursued necessarily and primarily for the benefit of the employer <br>and his business."  Tennessee Coal, Iron & R.R. Co. v. Muscoda <br>Local No. 123, 321 U.S. 590, 598 (1944).  Several of Romn's <br>supervisors did permit him to work on stock cars during business <br>hours.  Nevertheless, nothing in the record supports the claim that <br>Maietta Construction required Romn to serve as crew chief as part <br>of his job.  Indeed, as the magistrate observed, "[t]he work <br>performed by Romn at the race tracks was not primarily for the <br>benefit of Maietta; . . . the benefit to Maietta, if any, is too <br>tenuous to provide the basis for any legal liability to pay wages <br>for that work."  Romn v. Maietta Constr., Inc., No. 96-256, slip <br>op. at 5 (D. Me. Aug. 13, 1997). <br>          While Maietta's name as well as those of other companies <br>were painted on Michael's stock cars as sponsors, the link between <br>any potential benefits accruing to the construction firm from <br>Michael's performance as a stock car driver and Romn's crew chief <br>activities is far too attenuated to trigger the FLSA.  Maietta may <br>have garnered some advertising benefits from the success of <br>Michael's racing team, but such indirect benefits do not establish <br>an employer-employee relationship between the construction firm and <br>anyone who may have contributed his time to that activity. <br>          Furthermore, the record suggests that Romn served as <br>crew chief for his personal enjoyment rather than for the benefit <br>of Maietta.  Prior to joining Michael's racing team, Romn served <br>as a volunteer crew chief for his own stock cars as well as for two <br>cars he did not own.  In addition, he considered himself a <br>volunteer on Michael's crew before he started working for Maietta.  <br>From this evidence, it is reasonable to conclude that he continued <br>to pursue his crew chief activities primarily for his personal <br>benefit during his employment as a Maietta welder. <br>          Romn responds that the fact he may have volunteered to <br>be Michael's crew chief is not determinative.  He argues in his <br>brief, "[t]he crucial question is not whether the work was <br>voluntary but rather whether the (employee) was in fact performing <br>services for the benefit of the employer with the knowledge and <br>approval of the employer."  Secretary of Labor v. E.R. Field, Inc., <br>495 F.2d 749, 751 (1st Cir. 1974).  Romn fails to recognize that <br>he was hired to weld and fabricate construction equipment rather <br>than to help Michael race his stock cars.  If the plaintiff had <br>voluntarily expended extra time engaged in welding work, and <br>Maietta knew and approved of such work, the company would have to <br>compensate Romn for those hours.  However, we have established <br>that the connection between Romn's crew chief activities and any <br>benefits to Maietta is too insubstantial to warrant compensation <br>under the FLSA.  Therefore, Romn cannot recover for the time he <br>volunteered to serve as Michael's crew chief. <br>          C.   State Law Penalties <br>          Romn argues that the trial court erred in failing to <br>grant him the remedies set forth in 26 Me. Rev. Stat. Ann.  626-A <br>for Maietta's violation of  621 of that statute.  We disagree.  <br>As the trial court noted, "the FLSA is the exclusive remedy for <br>enforcement of rights created under the FLSA."  Romn, No. 96-256, <br>slip op. at 7 (citing Tombrello v. USX Corp., 763 F. Supp. 541, 544 <br>(N.D. Ala. 1991)).  That is, "the plaintiff cannot circumvent the <br>exclusive remedy prescribed by Congress by asserting equivalent <br>state claims in addition to the FLSA claim."  Tombrello, 763 F. <br>Supp. at 545. <br>     Romn contends that his claim for relief under  621(1) <br>has no FLSA equivalent.  However, our review of the complaint as <br>well as the record shows that Romn never raised a claim under that <br>subsection.  Instead, Romn sought relief under both the FLSA and <br>26 Me. Rev. Stat. Ann.  664 and 670 for minimum wage and overtime <br>pay violations.  Since Romn received compensation under the FLSA <br>for his claims, he cannot recover again under Maine law. <br>     D.   Compensatory Time <br>     Romn contends that the trial court erred in calculating <br>his back pay award.  The court ruled that Romn was entitled to the <br>overtime rate of $24 an hour for 120.75 hours of compensatory time.  <br>However, it credited Maietta for payment of $16 an hour for 105 of <br>these hours.  In effect, the trial court deducted any compensatory <br>time payments already made by Maietta to Romn at the regular rate <br>of pay from the total overtime pay he should have received for <br>those held hours.  The plaintiff argues that the trial court erred <br>in allowing such a deduction. <br>     As previously mentioned, the FLSA requires employers to <br>compensate employees at a rate one and one-half times the regular <br>rate of pay for any hours worked in excess of 40 hours per week.  <br>See 29 U.S.C.  207(a).  These payments must be made in "cash or <br>its equivalent."  29 C.F.R.  531.27.  "Employers and employees may <br>not, in general, make agreements to pay and receive less pay than <br>the statute provides for.  Such agreements are against public <br>policy and unenforceable."  See Rudolph v. Metropolitan Airports <br>Comm'n, 103 F.3d 677, 680 (8th Cir. 1996) (citing Barrentine v. <br>Arkansas-Best Freight Sys., Inc., 450 U.S. 728 (1981)).  Thus, we <br>agree with the trial court that Romn is entitled to overtime pay <br>for his compensatory time. <br>     We reject Romn's challenge to the trial court's <br>calculation of back pay.  In resolving this issue, we find D'Camerav. District of Columbia, 722 F. Supp. 799 (D.D.C. 1989), the case <br>cited by appellee, persuasive.  In D'Camera, the district court <br>allowed the District of Columbia to deduct compensatory time used <br>by the plaintiff police officers from an award of back pay.  While <br>the district court acknowledged that "[t]he FLSA does not expressly <br>authorize such a deduction, nor does its legislative history offer <br>any guidance,"  it found the District of Columbia's calculation to <br>be "fair and permissible under the Act."  Id. at 803.  The district <br>court held, and we concur, that "[p]laintiffs are entitled to be <br>made whole, not to a windfall at the [defendant's] expense." <br>     The language of the statute also suggests that we follow <br>this course.  Section 216(b) reads, "[a]ny employer who violates <br>the provisions of sections 206 or section 207 of this title shall <br>be liable to the employee or employees affected in the amount of <br>their . . . unpaid overtime compensation . . . and in an additional <br>equal amount as liquidated damages."  29 U.S.C.  216(b) (emphasis <br>added).  Since Romn received partial payment for his overtime <br>hours, Maietta remains responsible only for the unpaid portion.  We <br>find that the trial court's award of liquidated damages adequately <br>compensated him for Maietta's violation of the FLSA.  Cf. D'Camera, <br>722 F. Supp. at 804.  Accordingly, we affirm the trial court's <br>award of $2,436 plus costs and reasonable attorney's fees. <br>                        III.  CONCLUSION <br>     For the foregoing reasons, we affirm the trial court's <br>findings of fact and conclusions of law. <br>     Costs to appellee.</pre>

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