                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 18 2000
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 GARY D. SLAVENS,

           Plaintiff - Appellant,
 vs.                                                   No. 99-4197
                                                   (D.C. No. 99-CV-259)
 SCENIC AVIATION, INC.,                                  (D. Utah)

           Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before SEYMOUR, KELLY, and LUCERO, Circuit Judges.


       Plaintiff-Appellant Gary Slavens appeals from the district court’s grant of

summary judgment in favor of Defendant-Appellee Scenic Aviation (“Scenic”).

Scenic operates primarily as an air ambulance and charter service, while

occasionally carrying air cargo. Mr. Slavens worked for Scenic as its Vice

President of Medical Operations beginning in January of 1998. After he was

terminated, Mr. Slavens alleged that he should have been paid for approximately

600 hours of overtime that he worked while employed with Scenic. Mr. Slavens



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
argues that failure to pay him for his overtime was a violation of the Fair Labor

Standards Act (“FLSA”). The district court granted summary judgment in favor

of Scenic, holding that Scenic is governed by the Railway Labor Act (“RLA”)

and is therefore exempt from the FLSA. On appeal, Mr. Slavens argues that (1)

Scenic is not governed by the RLA; (2) he is not an “employee” as that term is

defined by the FLSA, and thus cannot fall under the RLA exemption; and (3) his

job duties are too far removed from any air carrier services to be governed by the

RLA. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.



                                      Discussion

       We review a grant of summary judgment de novo. In doing so, we apply

the same standard as the district court to determine whether there is a genuine

issue of material fact, and whether defendant is entitled to judgment as a matter

of law. See Southwestern Bell Wireless, Inc. v. Johnson County Bd. of County

Comm'rs , 199 F.3d 1185, 1189 (10th Cir. 1999). We examine the entire factual

record and any reasonable inferences which may be drawn from it in the light

most favorable to the Plaintiffs.   See Chessin v. Keystone Resort Management,

Inc. , 184 F.3d 1188, 1191-92 (10th Cir. 1999).

       (1) Scenic is governed by the RLA

       The Railway Labor Act covers “every common carrier by air engaged in


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interstate or foreign commerce.” 45 U.S.C. § 181. The FLSA expressly exempts

air carriers subject to the RLA from the FLSA’s overtime provisions.       See 29

U.S.C. § 213(b)(3). Mr. Slavens is correct in asserting that exemptions to the

FLSA are to be narrowly construed against the employer.       See Chessin , 184 F.3d

at 1192. However, in this case, the operations of Scenic are clearly within the

exemption’s terms and spirit. Thus, if Scenic is covered by the RLA, it is not

subject to the FLSA’s overtime provisions.      See Northwest Airlines, Inc. v.

Jackson , 185 F.2d 74, 77 (8th Cir. 1950).

      Mr. Slavens contends that Scenic does not itself provide any carrier

services, but rather simply owns and manages several other companies, which do

perform air carrier services. Therefore, Mr. Slavens argues, Scenic is not a

common carrier by air, and therefore not covered by the RLA. The evidence,

however, is undisputed. Scenic is not merely a management company.

Approximately 90-95 percent of Scenic’s revenues are attributable to its air

ambulance and charter service. Further, Scenic holds an Air Carrier Certificate

from the Federal Aviation Administration (“FAA”) authorizing Scenic to

“operate as an air carrier and conduct common carriage operations.” Scenic’s

sole purpose for existence is to provide air carrier services; the fact that it

conducts business using several other assumed names is irrelevant.       See e.g. , In

re Rocky Mountain Holdings, L.L.C. d/b/a/ Eagle Airmed of Arizona         , No. CJ-


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6638, 1999 WL 17850 (N.M.B. Jan. 12, 1999). We agree with the district court

that there is no genuine issue of material fact that Scenic is a common carrier by

air involved in interstate commerce. Therefore, it is governed by the RLA and

exempt from the overtime provisions of the FLSA.

      (2) Mr. Slavens is an “employee” of Scenic

      The FLSA exempts from its overtime provisions any “      employee of a carrier

by air subject to [the Railway Labor Act].” 29 U.S.C. § 213(b)(3) (emphasis

added). Mr. Slavens argues he is not an “employee” of Scenic for purposes of

the FLSA by pointing to the FLSA’s definition of employee (any person

“employed by an employer”) and its definition of employer (which “includes any

person acting directly or indirectly in the interest of an employer in relation to an

employee.”) 29 U.S.C. §§ 203(e)(1), 203(d).

      Neither party disputes that Mr. Slavens, as Vice President of Medical

Operations, worked for Scenic in a management/supervisory capacity. Mr.

Slavens contends that, in doing this work, he was “acting directly or indirectly in

the interest of” Scenic, and should therefore be classified as an employer rather

than an employee under the FLSA. Further, he claims that, as a manager, he

would always represent management rather than employees in labor disputes, thus

making him an employer. If classified as an employer rather than an employee,

Mr. Slavens believes he would be eligible for overtime benefits under the FLSA,


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because the exemption only applies to    employees subject to the RLA.

      However, the FLSA also clearly exempts from its overtime provisions “any

employee employed in a bona fide executive, administrative, or professional

capacity.” 29 U.S.C. § 213(a)(1). Mr. Slavens’ claim to be a manager would

appear to place him squarely in this exempt category, making him ineligible for

overtime pay. Mr. Slavens has given us no cases to support his position that he

can be a subordinate employee (thus falling outside of the § 213(a)(1) exemption)

while simultaneously being an employer for purposes of escaping the RLA

exemption. We agree with the district court that Mr. Slavens is an employee of

Scenic as defined by the FLSA.

      (3) Mr. Slavens’ job duties were directly related to Scenic’s air carrier

      services

      Mr. Slavens correctly points out that even if Scenic is subject to the RLA,

not all of Scenic’s employees are necessarily covered by the overtime exemption

of the RLA. The RLA was not intended to apply to all types of work, regardless

of the connection to transportation, just because the company conducting the

work performed some carrier activities within its company functions.     See

Northwest Airlines , 185 F.2d at 77. Rather, the Act “‘was intended to apply only

to transportation activities and that work which bears more than a tenuous,

negligible and remote relationship to the transportation activities [of the


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employer].’” Id. (citation omitted).

       Mr. Slavens argues that, because he had no day-to-day responsibilities over

any pilots or airplanes, nor any knowledge of when various flights were taking

place, his duties were tenuous, negligible, and remote with respect to Scenic’s

transportation activities, and he is not covered by the RLA. However, Mr.

Slavens’ duties were directly related to Scenic’s operations as an air ambulance

company. In his affidavit, Mr. Slavens characterized his job duties as “primarily

focused on evaluating the medical background of potential medical staff for

proper qualifications, establishing medical protocols, establishing company

policies and procedures, informing hospitals of the services and resolving

personnel disputes.” Aplee. Supp. App. at 30 ¶15. Far from being “remote,

tenuous, or negligible,” these support activities are integral to Scenic’s air

ambulance services. Scenic, which derives 90-95 percent of its revenues from its

air ambulance services, simply could not perform these services without such

support activities.   Cf. Pan American World Airways, Inc. v. United Bhd. of

Carpenters & Joiners of America       , 324 F.2d 217, 220 (9th Cir. 1963) (finding that

preventive maintenance work at a nuclear research development station

performed by employees of an airline was too remote from transportation to be

within the application of the RLA);      Marshall v. Pan American World Airways,

Inc. , 1977 WL 1772, at *5 (M.D. Fla. Aug. 8, 1977) (giving as an example of an


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activity that is remote, tenuous, or negligible the operation of a hotel by airline

employees).         Because we hold that Scenic Aviation is a common carrier by

air subject to the RLA, that Mr. Slavens was an employee of Scenic for purposes

of the RLA, and that his job duties with Scenic were not remote, tenuous, or

negligible with respect to Scenic’s transportation activities, the district court’s

grant of summary judgment to defendant Scenic Aviation is AFFIRMED.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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