     Case: 19-10476      Document: 00515437144         Page: 1    Date Filed: 06/02/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                    No. 19-10476
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                         June 2, 2020
                                                                         Lyle W. Cayce
SEAN OWENS,                                                                   Clerk


              Plaintiff-Appellant

v.

NEOVIA LOGISTICS, L.L.C.,

              Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CV-1719


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Sean Owens appeals the district court’s grant of summary judgment to
the defendant in this Fair Labor Standards Act (FLSA) suit. He argues that
certain exhibits should not have been considered and that he does not qualify
as an exempt administrative employee for FLSA purposes. Finding no
reversible error, we affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-10476

        This court reviews the grant of a motion for summary judgment de novo.
Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009).
Summary judgment “shall” be entered “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). When reviewing a ruling on a motion
for summary judgment, this court views all facts and evidence in the light most
favorable to the nonmoving party. Xtreme Lashes, LLC, 576 F.3d at 226.
        The FLSA provides that a covered employee shall be paid overtime
compensation for every hour worked in excess of forty hours in a week, but
administrative employees are exempt from this provision.               29 U.S.C.
§§ 207(a)(1), 213(a)(1); Belt v. EmCare, Inc., 444 F.3d 403, 407 (5th Cir. 2006).
One qualifies as an administrative employee if, inter alia, his main task
involves both (1) “the performance of office or non-manual work directly
related to the management or general business operations of the employer or
the employer’s customers” and (2) “the exercise of discretion and independent
judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a)(2)–
(3).
        The defendant bears the burden of persuasion as to whether its employee
meets the criteria for the administrative exemption. The “ultimate decision
whether an employee is exempt from the FLSA’s overtime compensation
provisions is a question of law” that is reviewed de novo. Cheatham v. Allstate
Ins. Co., 465 F.3d 578, 584 (5th Cir. 2006) (internal quotation marks and
citation omitted). Additionally, FLSA exemptions must be read fairly and
should not be narrowly construed against the employer. Faludi v. U.S. Shale
Solutions, L.L.C., 950 F.3d 269, 273 (5th Cir. 2020) (citing Encino Motorcars,
L.L.C. v. Navarro, 138 S. Ct. 1134, 1142 (2018)).




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                                 No. 19-10476

      When considering Owens’s claims, the magistrate judge, whose report
and recommendation was adopted by the district court, applied undisputed
facts established by the summary judgment evidence to the pertinent law. The
court granted Neovia’s motion for summary judgment and accordingly denied
that filed by Owens. Owens’s pro se briefing in this court fails to create a
genuine issue of material fact challenging the district court’s conclusion that
Owens qualifies as an administrative employee.
      Neovia’s business is providing logistics services to clients, helping them
to achieve cost savings through increased efficiency and productivity in their
facilities. Owens was employed for about two years as a Continuous
Improvement Supervisor.        With a bachelors’ degree and two decades
experience in the field as required job qualifications, his duties were to lead
workshops; travel to client facilities; analyze clients’ operations and report on
how to improve them.
      Concerning the first part of the test, Owens argues that his job consisted
primarily of manual labor in a warehouse, but the record citations he provides
show only his physical locations and do not undermine the district court’s
conclusions that his primary task was non-manual work related to Neovia’s
management or general business operations and that he was able to exercise
discretion while performing this task. Indeed, Owens explained his “primary
duty was to be a trainer and assist facilities with becoming NOS compliant.”
Moreover, “[p]erforming some manual work does not automatically remove an
employee from exempt status so long as the manual work is ‘directly and
closely related to the work requiring the exercise of discretion and independent
judgment.’” Renfro v. Ind. Mich. Power Co., 370 F.3d 512, 519 (6th Cir. 2004)
(quoting 29 C.F.R. § 541.203(b)). The manual work that Owens performed was
for the purpose of inquiring how a facility worked and then advising the client



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                                 No. 19-10476

how it could improve. Accordingly, the district court fairly categorized that
work as “collateral to his primary duty of making the facility more efficient.”
See Dalheim v. KDFW-TV, 918 F.2d 1220, 1227 (5th Cir. 1990).
      The district court next correctly concluded that Owens exercised
discretion and independent judgment.       The exercise of discretion involves
comparing possible courses of conduct and deciding how to proceed after
weighing the options. 29 C.F.R. § 541.202(a). The exercise of discretion and
judgment need not be final, decision-making authority. Lott v. Howard Wilson
Chrysler-Plymouth, Inc., 203 F.3d 326, 331 (5th Cir. 2000). The district relied
heavily on Owens’s own affidavit, in addition to other portions of the record, in
concluding that Owens exercised discretion when performing his primary duty
of “improving operations and processes.”
      Owens’s primary arguments against the district court’s conclusion are
that the court relied on unspecified falsehoods, that the court should not have
considered the declarations of Neovia employees Maria Olson and Tim Wilson,
and that questions asked during his deposition were designed to prove the
defendant’s case.     As each allegation is highly conclusory, they are
unpersuasive. Because Owens does not identify precisely the allegedly false
statements or provide record evidence rebutting them, these assertions have
no value. Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011) (noting
that conclusional allegations do not qualify as evidence in summary judgment
proceedings). Among other things, Owens contends that Olson’s declaration
falsely asserts that “she worked in [Owens’s] role,” but the record shows that
Olson did not say that she held the same position as Owens. Finally, although
he objects to how they were used, Owens does not dispute the statements he
made under oath in his deposition, which were cited by the district court in
denying relief. The deposition is competent summary judgment evidence, and



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                                 No. 19-10476

the district court did not err by considering it. See Nola Spice Designs, LLC v.
Haydel Enters., Inc.,783 F.3d 527, 536 (5th Cir. 2015) (noting that depositions
are competent summary judgment evidence).
      To the extent Olson continues to seek sanctions against the Appellee, his
arguments are meritless and the motion is denied.
      AFFIRMED.




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