                Case: 11-13708      Date Filed: 08/30/2012       Page: 1 of 8

                                                                    [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT

                              ________________________

                                    No. 11-13708
                              ________________________

                         D.C. Docket No. 2:08-cv-02106-VEH

MARIO JARMON,

                                                                 Plaintiff-Appellee,

                                           versus

VINSON GUARD SERVICES, INC.,

                                                                 Defendant-Appellant.


                              ________________________

                     Appeal from the United States District Court
                        for the Northern District of Alabama
                            ________________________

                                     (August 30, 2012)

Before JORDAN and HILL, Circuit Judges, and EDENFIELD,* District Judge.

PER CURIAM:

       *
        Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
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       Mario Jarmon sued his former employer, Vinson Guard Services, Inc., asserting

a claim under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., as well as state

law claims for conversion and breach of contract.1 Mr. Jarmon alleged that Vinson

violated § 207 of the FLSA by willfully failing to pay him overtime wages throughout

his employment. The case proceeded to trial on the FLSA claim, but at the close of

Vinson’s case, the district court granted Mr. Jarmon’s motion for judgment as a

matter of law as to liability and instructed the jury to determine only the issue of

damages. The jury awarded Mr. Jarmon $1,110.00 in damages, a sum the district

court doubled pursuant to § 216(b) of the FLSA.

       The issue is whether the district court erred in granting Mr. Jarmon’s motion

for judgment as a matter of law as to Vinson’s liability. Following oral argument, and

a review of the record and the relevant authorities, we conclude that the district court

improperly took the issue of Vinson’s liability away from the jury. Accordingly, we

reverse and remand the case for a new trial.

                                               I

       We review de novo a district court’s grant of judgment as a matter of law under

Federal Rule of Civil Procedure 50, applying the same legal standard as the district



       1
        The district court granted Vinson’s motion for summary judgment as to the conversion and
breach of contract claims, leaving only the FLSA claim.

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court. See Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1278 (11th Cir. 2005).

Under Rule 50, a court should grant a motion for judgment as a matter of law when

there is no legally sufficient basis for a reasonable jury to find against that party on

that issue. See id. A court should deny such a motion, however, if there is a

substantial conflict in the evidence, “such that reasonable and fair-minded persons in

the exercise of impartial judgment might reach different conclusions[.]” Christopher

v. Florida, 449 F.3d 1360, 1364 (11th Cir. 2006) (internal quotation marks omitted).

We review all the evidence in the record and draw all reasonable inferences in favor

of the nonmovant. See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189,

1192-93 (11th Cir. 2004). “‘Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury functions, not those

of a judge.’” Id. at 1193 (quoting Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S.

133, 150 (2000)).

                                          II

      Because we write only for the parties, we assume their familiarity with the

underlying facts, and only summarize those necessary to resolve this case.

      On March 9, 2008, Mr. Jarmon began working for Vinson as a field supervisor.

Mr. Jarmon remained in that position until October 22, 2008, when he was demoted

from field supervisor to security guard. On November 6, 2008, Mr. Jarmon stopped

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working for Vinson, and he subsequently filed suit.

                                             III

       In granting Mr. Jarmon’s motion for judgment as a matter of law, the district

court stated:

       I’m going to grant the plaintiff’s motion for partial judgment as a matter
       of law as to liability. I will send to the jury the issue of damages and the
       issue of willfulness. . . . [N]o reasonable jury can find that there wasn’t
       some overtime that was not paid . . . by the defendant to the plaintiff
       during the time period, October 5 to 11, [2008].

D.E. 113 at 472-73. The district court later instructed the jury that it had determined

that Mr. Jarmon had proved that Vinson did not pay him the overtime wages required

by law.2 The district court also instructed the jury that Vinson had admitted to not

paying Mr. Jarmon for 7.5 hours of overtime he worked on October 7, 2008. See D.E.

113 at 551. In our view, the district court erred in granting Mr. Jarmon’s Rule 50

motion.

       The FLSA provides that overtime wages must be determined by a given

workweek. See 29 U.S.C. § 207(a). Although Greg Carter, Vinson’s corporate

representative, admitted that Vinson did not pay Mr. Jarmon overtime wages for work

performed on October 7, 2008, see D.E. 112 at 369-71, that admission—as we explain


       2
         “I have determined that the plaintiff has proved that he worked overtime hours without
adequate compensation. It is up to you, however, to determine how much overtime the plaintiff
worked without adequate compensation.” D.E. 113 at 545.

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below—was insufficient to determine as a matter of law that Vinson violated the

FLSA.

      The relevant time period is the workweek, not any given day, and Mr. Carter

testified that, even though Vinson did not pay Mr. Jarmon for October 7, it

nevertheless overpaid him for the week of October 5 to October 11. See D.E. 112 at

382-83; D.E. 113 at 396. For example, Mr. Carter—referring to Exhibit 13 at Vinson

0215, the payroll timekeeping sheet for the week of October 5-11, 2008—explained

that Mr. Jarmon worked a total of 47 hours from October 6 to October 11, but was

paid for 54 hours of work (40 straight time hours and 14 overtime hours). See D.E.

112 at 368 (Oct. 6), 369-71 (Oct. 7), 371-75 (Oct. 8), 375-78 (Oct. 9), 379-80 (Oct.

10), and 382 (Oct. 11). Thus, the evidence viewed in the light most favorable to

Vinson would have permitted the jury to find that Vinson overpaid Mr. Jarmon by 7

hours for the time period from October 6 to October 11.

      That leaves October 5. With respect to that day, Vinson’s personnel schedule

indicated that Mr. Jarmon was not scheduled to work, see Exh. 13 at 1, and Mr. Carter

testified that he did not know how many hours Mr. Jarmon had worked that day, as

his time entries were incomplete. See D.E. 112 at 363-66; D.E. at 391. Mr. Jarmon,

for his part, testified that he worked 9 hours on October 5. See D.E. 112 at 252-55.

Thus, had the jury credited Vinson’s evidence for the period from October 6 to

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October 11, and credited Mr. Jarmon’s testimony for October 5, Mr. Jarmon would

have worked 56 hours while only being paid for 54.

       The problem, for Rule 50 purposes, is that Mr. Jarmon’s credibility (in general,

and specifically with respect to October 5) was for the jury, particularly in light of the

fact that Mr. Jarmon previously had said that he did not know how much he was

underpaid by Vinson. See D.E. 112 at 277-82. Credibility determinations and the

weighing of evidence are jury functions, see Cleveland, 369 F.3d at 1193, and the

jury should have been allowed to decide whether it believed Mr. Jarmon’s version of

events. See Etienne v. Inter-County Sec. Corp., 173 F.3d 1372, 1374 (11th Cir. 1999)

(“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.”).3 Nothing in Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680 (1946) or its progeny requires a jury to accept a plaintiff’s version of events when

an employer has kept inadequate records. See Kuebel v. Black & Decker, Inc., 643

F.3d 352, 364-65 (2d Cir. 2011) (“The [Mt. Clemens] test simply addresses whether

there is a reasonable basis for calculating damages, assuming that a violation has been


       3
          In Etienne we concluded that the district court erred in denying a motion for judgment as
a matter of law as to the $18.62 the defendant admitted to owing because of an error by the payroll
company. Vinson, in contrast, has not admitted that it owes Mr. Jarmon any money. Rather, Vinson
has submitted evidence indicating that although Mr. Vinson was not paid wages for a certain day,
he is not owed any further wages because he was still overpaid for the workweek.

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shown.”). Rather, the burden merely shifts to the employer to come forward with

evidence to negate the reasonableness of the inference to be drawn from the

employee’s evidence. As explained above, Vinson did enough to get to a jury.

      Stated differently, although Mr. Jarmon received the benefit of a jury

instruction in accordance with Mt. Clemens, that did not mean that he was entitled to

judgment as a matter of law as to Vinson’s liability. In Mt. Clemens, the Supreme

Court held that where the employer’s records are inaccurate or inadequate, the

employee has the burden to prove by way of just and reasonable inference that he in

fact performed work for which he was improperly compensated. See id. at 687. Once

the employee has met his burden, the burden then shifts to the employer to come

forward with evidence of the precise amount of work performed or with evidence to

negate the reasonableness of the inference to be drawn from the employee’s evidence.

See id. at 687-88. As we have said, Vinson presented the testimony of Mr. Carter, its

corporate representative, that Mr. Jarmon was not underpaid for the week of October

5-11, 2008. As a result, Vinson presented sufficient evidence to negate the

reasonableness of Mr. Jarmon’s testimony and create a jury question on liability.

      In sum, the district court erred in granting Mr. Jarmon’s motion for judgment

as a matter of law on liability, and Mr. Jarmon’s motion for attorneys’ fees and costs.

                                          IV

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      The district court’s judgment as a matter of law on liability is reversed, as is the

district court’s award of attorney’s fees and costs to Mr. Jarmon. The case is

remanded for a new trial. In light of this disposition, we need not and do not address

any of the other issues raised by Vinson.

      REVERSED AND REMANDED.




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