                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                April 4, 2006
                              No. 05-16033                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 04-00832-CV-T-23MAP


ZELLA A. POWELL, on behalf of herself
and others similarly situated,

                                                                Plaintiff-Appellee,

     versus

MORTON PLANT MEASE HEALTH CARE, INC.,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (April 4, 2006)


Before TJOFLAT, BARKETT and HILL, Circuit Judges.

PER CURIAM:

     Zella A. Powell sued Morton Plant Mease Health Care, Inc. (“Morton”),
asserting a Fair Labor Standards Act (the “FLSA”) claim. During 2002 and 2003,

Powell was employed by Morton as a Food Service Coordinator in the Food and

Nutrition Services Department at Mease Dunedin Hospital. Her job was to

monitor the operations of the kitchen during the early morning shift (5:30 to 2:00),

when her supervisor was not present. She alleged in her complaint that, in

violation of the FLSA, Morton failed to pay her overtime pay for overtime hours.

Morton asserted the statutory affirmative defense that they were exempt from

paying Powell overtime because she was a salaried executive.1

       The case was tried before a jury. Powell called her two supervisors and

Morton’s human resources director, who testified to and introduced documentary

evidence regarding Morton job descriptions, payroll procedures and salaries,

overtime pay policies, and Morton’s organizational chart. Morton called no

witnesses, nor offered any documentary evidence.

       At the end of Powell’s case, Morton moved for judgment as a matter of law,

arguing that the evidence established as a matter of law that Powell was a salaried

executive, entitling it to FLSA’s executive exemption. The district court denied

the motion. At the end of the trial, Morton renewed its motion, and the district



       1
         The FLSA exempts any “employee employed in a bona fide executive, administrative,
or professional capacity . . . as such terms are defined and delimited from time to time by
regulations of the Secretary [of Labor] . . . . “ 29 U.S.C. § 213(a)(1).

                                              2
court again denied it.

       The case went to the jury, which returned a verdict for Powell in the

stipulated damage amount of $5500.2 Morton moved for a new trial on the

grounds that there was insufficient evidence to support the verdict. The district

court denied the motion, and this appeal followed.

       We review de novo the denial of a motion for judgment as a matter of law.

University of Fla. v. KPB, Inc., 89 F.3d 773, 775 (11 th Cir. 1996). We review the

denial of the motion for a new trial for an abuse of discretion. Blu-J, Inc. v.

Kemper C.P.A. Group, 916 F.2d 637, 643 (11 th Cir. 1990).

                                                I.

       The parties stipulated to Powell’s prima facie case – that she was employed

by Morton during the relevant time, that she was engaged in commerce or

employed by an enterprise engaged in commerce, and that Morton failed to pay her

overtime pay as required by FLSA if she is an hourly worker. Therefore, in order

for Morton to be entitled to judgment as a matter of law, the evidence must have

established as a matter of law that Powell was not an hourly worker. If the

evidence established that she was a salaried executive, Morton was entitled to the

FLSA exemption from liability for overtime pay for salaried executives. See


       2
         Powell also received liquidated damages, attorneys’ fees and costs, the amounts all
stipulated to prior to trial by Morton.

                                                3
Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974).

      In order to be considered salaried, the statute requires that the employee

receive a predetermined amount of wages without regard to the number of days or

hours worked. 29 C.F.R. § 541.118(a) (2003). The evidence at trial, however,

established that Powell’s paychecks varied greatly week to week depending on

how much overtime she worked, and that, on at least one occasion, she was paid on

the basis of less than full-time work.3 Based upon this evidence, we cannot

conclude that Powell was salaried as a matter of law. At best, the record evidence

created a jury issue as to whether Powell was salaried.

      Nor did the evidence at trial establish as a matter of law that Powell was an

executive. In order to be an executive, Powell’s duties must have been primarily

managerial or supervisory. 29 C.F.R. 541.102(a) (2003). Although there was

evidence that Powell’s duties were in part supervisory, there was significant other

evidence that she was primarily a kitchen worker. At most, there was competent

evidence on both sides of this issue. As such, Morton was not entitled to judgment

as a matter of law that Powell was an executive.

      Inasmuch as the evidence did not establish as a matter of law that Powell

was salaried and an executive, Morton was not entitled to judgment as a matter of



      3
          Morton offered no explanation for this reduction.

                                                 4
law under the executive exemption and the district court did not err in denying its

motion.

       Nor did the district court abuse its discretion in denying Morton’s motion for

a new trial. There was sufficient evidence from which the jury could infer that

Powell was an hourly worker. Furthermore, the jury is entitled to choose the

testimony it credits and what weight to assign particular testimony. We are unable

to conclude from the record that no juror could have reasonably found that Powell

was an hourly worker.4

       Accordingly, the denial of the motions for judgment as a matter of law and

for a new trial were correctly denied, and the judgment is

       AFFIRMED.




       4
        We have considered and find no merit in Morton’s arguments, not raised below, that the
jury was either not adequately or incorrectly instructed.

                                              5
