                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 12, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 06-50713
                           Summary Calendar


                          ELEAZAR GONZALEZ,

                         Plaintiff-Appellant,

                                versus

                          ERNESTO GONZALEZ,
                          SUK CHA GONZALEZ,
                 doing business as Hong Kong Buffet,

                        Defendants-Appellees.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                         (USDC No. 1:05-cv-223)
                          --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Appellant won below on his FLSA claim and appeals only the

district court’s calculation of his damage award.       The over-time

provisions of the Fair Labor Standards Act require an employer to

pay covered workers “at a rate of not less than one and one-half

times the regular rate at which he is employed.”          29 U.S.C. §

207(a)(1).     Appellant argues that his “regular rate” should have

been calculated by dividing his weekly salary by the number of

hours he worked per week — a rate which exceeded minimum wage.          He

     *
       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this opinion should not be published and is not precedent except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.
                             No. 04-30852
                                  -2-

explains that his overtime wages should have been calculated based

on this rate and the number of overtime hours work.

      The district court, however, assumed that the plaintiff was

hired for the minimum wage, and that any extra money provided by

his fixed salary was intended to partially compensate for overtime.

The district court calculated the overtime rate based on the

minimum wage, and deducted from plaintiff’s overtime wages the

partial   compensation.     As     a    result    of    the   district   court’s

approach, plaintiff argues that he is owed an additional $6,804.85

in wages and $6,804.85 in liquidated damages.

      There was a trial below and testimony about the parties’

intent. Yet the plaintiff argues that “it is indisputable that the

district court was itself deeming the Plaintiff’s hourly wage to be

the minimum wage of $5.15 as a matter of law, rather than finding

that this wage somehow represented the intent of the parties.”

(emphasis added).

      We disagree. The district court found that “the twice monthly

payments were intended to cover all hours worked, including regular

hours and overtime.” (emphasis added).            It further found that “the

raises were intended to compensate plaintiffs for overtime hours

worked.” (emphasis added).       Plaintiff’s efforts to transform this

into a legal question are inconsistent with the record.              We review

a   district   court’s   factual       findings   for    clear   error,   which

plaintiff does not even attempt to show.                 The judgment of the

district court is
            No. 04-30852
                 -3-

AFFIRMED.
