IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-50743
_______________
CHARLES S. OWSLEY; REX L. HARTWIG; JUAN J. LEAL;
JERRY R. LUCE; PAUL MARK SNODGRASS; RAYMOND RAMIREZ;
CHARLES A. TREVINO; MICHAEL LELAND POST,
Plaintiffs-Appellees-
Cross-Appellants,
VERSUS
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
September 13, 1999
Before JOLLY and SMITH, Circuit Judges, professionals exempt from the FLSA's
and VANCE, District Judge,* overtime benefits requirements, we reverse and
render summary judgment in favor of SAISD.
JERRY E. SMITH, Circuit Judge:
I.
The San Antonio Independent School Dis- The plaintiffs are eight of the nine athletic
trict (“SAISD”) appeals a summary judgment trainers of SAISD. Trainers work with coach-
in this action brought pursuant to the Fair La- es and high school and middle school athletes
bor Standards Act (“FLSA”) awarding to prevent injuries and to rehabilitate athletes
overtime benefits to a group of athletic from injuries. Their job responsibilities include
trainers. Concluding that the trainers are attending practices and sporting events,
maintaining treatment facilities, and working
with students undergoing rehabilitation. On
*
District Judge of the Eastern District of average, they work sixty hours a week.
Louisiana, sitting by designation.
The FLSA, 29 U.S.C. § 201 et seq., Corp. v. Catrett, 477 U.S. 317, 322-24
requires employers to pay overtime for hours (1986); see also FED. R. CIV. P. 56(c). An
worked in excess of forty in a given work issue is genuine if the evidence is sufficient for
week, but it exempts employees employed in a a reasonable jury to return a verdict for the
bona fide professional, administrative, or ex- nonmoving party. Anderson v. Liberty Lobby,
ecutive capacity. 29 U.S.C. § 213(a)(1). Inc., 106 S.Ct. 2505, 2510 (1986).
SAISD claims the trainers are subject to this
exemption. The employer bears the burden of proving
exempt status. Paul v. Petroleum Equip.
II. Tools Co., 708 F.2d 168, 169 (5th Cir. 1983).
The district court granted the trainers’ mo- The employer’s claim of exemption must be
tion for summary judgment in part, declaring construed narrowly and in favor of the
they are not exempted professionals under the employee. See Brennan v. Green’s Propane
FLSA. It refused, however, to award Gas Serv., Inc., 479 F.2d 1027, 1032 (5th Cir.
liquidated damages, because SAISD had a 1973).1
good faith and reaso nable belief that the
trainers were exempt. See 29 U.S.C. § 260. B.
The court granted SAISD’s summary Both parties agree that the applicable test
judgment motion in part, finding that one of for whether the plaintiffs qualify as
the trainers, Rex Hartwig, was employed in an professionals is the following “short test”2 set
administrative capacity exempt from the forth in 29 C.F.R. § 541.3:
provisions of the FLSA under 29 C.F.R. §
541.2. The term employee employed in a bona
fide . . . professional capacity . . . shall
SAISD appeals the summary judgment re- mean any employee:
garding the exemption. The trainers cross-
appeal the holding that their job meets the
“learned” prong of the short test, the summary 1
SAISD urges us to review the legal
judgment adverse to Hartwig, and the denial of determination of exempt status under the FLSA as
liquidated damages. a question of law while deferring to the district
court’s factual findings for clear error. See
III. Dalheim v. KDFW-TV, 918 F.2d 1220, 1225-27
A. (5th Cir. 1990). The Dalheim court, however, was
We review a summary judgment de novo, reviewing a judgment following a bench trial, see
employing the same standards as did the id. at 1224, while we are reviewing a summary
district court. See Urbano v. Continental judgment. Therefore, we review the judgment de
Airlines, Inc., 138 F.3d 204, 205 (5th Cir.), novo and do not give the factual findings any
deference.
cert. denied, 119 S.Ct. 509 (1998). Summary
judgment is appropriate when, viewing the 2
The parties stipulate that the plaintiffs earn
evidence in the light most favorable to the more than $250 a week. Therefore, Department of
nonmoving party, there is no genuine issue of Labor regulations instruct that the exemption status
material fact and the moving party is entitled can be determined via the streamlined “short test”
to judgment as a matter of law. See Celotex described in 29 C.F.R. §§ 541.3(e), .315. See
Paul, 708 F.2d at 170.
2
(a) Whose primary duty consists of the
performance of:
(1) Work requiring knowledge er, the most lenient of which is the following:3
of an advanced type in a field
of science or learning (1) a bachelor’s degree in any field;
customarily acquired by a
prolonged course of (2) 1800 hours of apprenticeship over
specialized intellectual a three-year period;
instruction and study, as dis-
tinguished from a general aca- (3) completion of 5 3-hour credit
demic education and from an college courses in (a) human
apprenticeship, and from train- anatomy; (b) health, disease,
ing in the performance of nutrition, fitness, wellness, or drug
routine mental, manual or and alco hol education; (c)
physical processes, . . . and kinesiology; (d) human physiology
or physiology of exercise; and (e)
(b) Whose work requires the consistent athletic training; and
exercise of discretion and judgment in
its performance. (4) a C.P.R. test.
In ruling on the motions for summary judg- 25 TEX. ADMIN. CODE § 313.5. The district
ment, the district court held that because of the court found that, at a minimum, an SAISD
requirement to take fifteen hours of specific athletic trainer must obtain education beyond
college-level courses, the trainer position re- a high school level and that the education re-
quired learning customarily acquired through quires a certain amount of specialization in hu-
specialized intellectual instruction. With re- man anatomy and physiology. These
spect to the second prong, whether the work requirements are enough, the court held, to
required consistent exercise of discretion and satisfy the “learned” prong.
judgment, the court held that the trainers may
make decisions only within a well-defined and On cross-appeal, the trainers challenge the
regulated framework, and the application of finding in two ways. First, they submit an
their specialized knowledge is limited to opinion letter from the Wage and Hours
enumerated pre-set situations. Therefore, it Division of the Department of Labor stating
found that the trainers are not exempt
professionals under the FLSA.
3
The trainers concede that the other two
1. educational prerequisites for SAISD athletic
Trainers in Texas must obtain a state trainers, degrees in physical or corrective therapy,
license. State regulations provide a number of are more specialized than is the requirement of 15
options to meet the requirements to be a train- credit hours, and they therefore focus on the most
lenient requirements when discussing the “learned”
prong.
3
that athletic trainers in Kansas do not meet the
“learned” prong of the professional exemption.
They then ask us to defer to this agency
interpretation unless it is manifestly contrary to
statute. The opinion letter, the trainers assert,
represents an agency interpretation and
requires us to hold the plaintiffs “non-exempt”
under the “learned” prong.
We therefore consider the 1993 opinion let-
While the trainers are correct that we ter as persuasive, but we have no obligation to
should defer to the agency’s interpretation of defer to its interpretation, especially given that
a statute, this only means that we should it does not even deal with the same facts as
follow the guidelines set forth in § 541.3. It those in the case sub judice. The Kansas
does not mean that the Secretary’s views on athletic trainers that were the subject of its
§ 541.3 are always controlling. The case the opinion did not have a credit-hour requirement
trainers cite 4 stands only for t he similar to the fifteen credit-hours required in
uncontroversial proposition that agency inter- Texas. Therefore, while the letter suggests
pretations of statutes should be given that athletic trainers in general do not meet the
deference under Chevron U.S.A., Inc. v. learned prong, it does not account for the ad-
National Resources Defense Council, Inc., ditional specialized training in the form of the
467 U.S. 837 (1984). Opinion letters, which credit-hours Texas requires. For this reason,
are issued without the formal notice and rule- the letter’s analysis is inapposite.
making procedures of the Administrative
Procedure Act, do not receive the same kind In their second challenge, the trainers baldly
of Chevron deference as do administrative conclude that a mere fifteen credit-hours can-
regulations.5 not be compared to the advanced type of study
required for professions such as law, medicine,
and teaching that are specifically contemplated
4
Auer v. Robbins, 519 U.S. 452 (1997). by the professional exemption. See 29 C.F.R.
§ 541.301(e)(1). We agree with the district
5
See Kilgore v. Outback Steakhouse, Inc, court, however, that brevity of the trainers’
160 F.3d 294, 302 (6th Cir. 1998); Reich v. Par- course of specialized study does not preclude
ker Fire Protection Dist., 992 F.2d 1023, 1026 its inclusion under the “learned” prong. Unlike
(10th Cir. 1993) (refusing to give Chevron the case relied on by the trainers,6 in which the
deference to Wage and Hour Administrator claimants were not required to take any
Opinion Letters). This does not mean that such
specific college courses to qualify for their job,
opinion letters are to be completely disregarded.
For instance, this court has held that opinion letters
of an administrative agency, although less au-
thoritative than regulations or formal decisions, are (...continued)
entitled to be "weighed carefully" and to "great Fe Ry., 608 F.2d 213, 222 (5th Cir. 1978).
deference" if they state a reasonable conclusion.
6
See Coca-Cola Co. v. Atchison, Topeka & Santa Dybach v. Florida Dep’t of Corrections,
(continued...) 942 F.2d 1562 (11th Cir. 1991).
4
the trainers must take a specified number of
specialized courses directly related to their
professional duties in sports medicine and ath-
letic training.
The trainers’ educational background is
akin to the training requirements this court
found sufficient to meet the “learned” prong
for the airline pilots in Paul. There, we found
the requirement that pilots complete a course
of instruction to learn the regulations
governing pilots, basic aerodynamic and flight
principles, and numerous airplane operations
was enough to satisfy the “learned” prong.
See Paul, 708 F.2d at 172. Even though the
pilots did not obtain a college degree, their
“extensive knowledge of aerodynamics,
airplane regulations, airplane operations, [and]
instrument procedures” convinced us that their
training was as complex as that of “nurses,
accountants, and actuarial computants” who
are regarded as employees in learned
professions. See id. at 172-73.
cretion. The court based its ruling on two
Similarly, the trainers are required to obtain grounds, neither of which is persuasive.
an university degree and to undergo
specialized training in subjects such as human First, the court found that the trainers work
anatomy, physiology, and sports medicine. under the supervision of a physician. In mak-
We therefore affirm the finding that the ing this determination, it relied on SAISD’s
plaintiffs meet the “learned” prong of the pro- job description, which states that trainers “will
fessional exemption. . . . act under the supervision and the direction
of the team physician.”
2.
To qualify the trainers for the professional We disagree, however, that the stipulated
exemption, SAISD must also show that the job description supports the judgment. Not-
trainers’ work “requires the consistent exercise withstanding the “supervision and direction”
of discretion and judgment in its performance.” language, the job description also indicates
29 C.F.R. § 541.3. Though the district court that the trainers exercise a substantial amount
determined that the trainers satisfied the of discretion in the performance of their duties.
“learned” prong, it found that they did not
ultimately qualify for the exemption, because For instance, the trainers are expected to
their work does not require the exercise of dis- (1) establish specific procedures to be carried
5
out by a coach and/or student trainer in the specialized knowledge or training.
event of an emergency when care of an athlete
is needed; (2) be responsible for communica- Our review of this stipulation leads us to a
tion with parents, physicians, coordinating different conclusion. While many of the train-
trainer, and coaches concerning injured ath- ers’ duties are limited to actions within the
letes; and (3) determine the athlete’s return to “standard treatment guidelines,” we agree with
practice or playing status, following an athletic SAISD that reliance on such guidelines does
injury. In listing these discretionary respon- not, by itself, indicate the lack of professional
sibilities, the job description does not make discretion and judgment. In the context of
any reference to the supervising physician ex- finding nurses to be exempt professionals, for
cept to point out that a player’s return after an example, one court has observed that “the fact
injury may also be determined by a physician.7 that a standard remedy is prescribed for a des-
ignated injury or complaint does not detract
The job description states that trainers “will from the analysis and training and skill neces-
also act under the supervision and the direc- sary to determine the extent and seriousness,
tion of the team physician” (emphasis added). and often the type of injury or complaint, as
This further supports our view that the trainers well as what particular remedy should be given
act independently to exercise their own judg- or applied.” Hofer v. Federal Cartridge
ment and discretion and that they sometimes Corp., 71 F. Supp. 243, 244-45 (D.C. Minn.
act under the supervision of a physician. Ac- 1947).
cordingly, the district’s court’s reliance on the
job description does not support its ruling. Several of the trainers’ stipulated duties fit
within Hofer's category of discretionary skills
The court also decided that the trainers do applied within a standard framework. For
not exercise discretion because they use “their example, trainers must (1) assess[] the extent
advanced training and experience to make de- of an injury based on standard treatment
cisions . . . only within a well-defined frame- guidelines; (2) perform neurological evalu-
work.” See Hashop v. Rockwell Space Opera- ations by assessing consciousness, intellectual
tions Co., 867 F. Supp. 1287, 1298 (S.D. Tex. performance, sensation, and movement ac-
1994). Examining a stipulation of the trainers’ cording to standard guidelines; and (3) deter-
duties and responsibilities, the district court mine whether the athlete continues to
observed that over 45 of the 77 enumerated practice/play after an injury, based on well-
responsibilities set forth in the guidelines re- established tests and criteria when a physician
quire the trainers to act under standard treat- is not present. In exercising any of these
ment guidelines. The court further noted that duties, the trainer will have to apply his own
the remaining 30 or so responsibilities are rou- skills and training to diagnose injuries or make
tine acts that do not require the application of judgments about an athlete’s suitability for
further action.
7
The job description adds this parenthetical The trainers rely on Quirk v. Baltimore
comment: “Return may also be determined by a County, 895 F. Supp. 773 (D. Md. 1995),
team physician.” This language weighs against the which held that emergency response para-
district court’s assumption that trainers act under medics do not exercise discretion and judg-
the supervision of physicians at all times.
6
ment, because they follow highly specific med- injuries.8 These sorts of important and com-
ical protocols. Quirk is distinguishable, be- plex decisions, which require trainers inde-
cause paramedics work on a daily basis with pendently to apply their experience and ad-
their supervising physicians under the expec- vanced training in human anatomy and medi-
tation of physician intervention immediately cine, satisfy the “discretion” prong. Therefore,
following emergency treatment. In contrast, we reverse the summary judgment granted to
the trainers operate independently when they the trainers on this question.9
assess an athlete’s injury and when they make
decisions on whether the athlete should seek IV.
further medical attention, sit out the remainder Because the court erred in finding that the
of practice or a game, or continue athletic ac- trainers did not exercise discretion and inde-
tivity. There is no immediate expectation of pendent judgment, we REVERSE its partial
physician intervention, and, as we have said, summary judgment granted to the trainers.
there is no evidence that the physicians super- Our review of the record, which consists
vise the trainers’ activities at all times, or even mostly of stipulated evidence not raising any
most of the time. disputes of material fact, also permits us to
RENDER summary judgment in favor of
The existence of standard procedures and SAISD, because it successfully has demon-
guidelines does not mean that the trainers’ re- strated that the trainers qualify for the profes-
sponsibilities do not require the type of consis- sional exemption under the “learned” and “dis-
tent exercise of independent discretion and cretion” prongs of the FLSA’s short test.
judgment this court has found characteristic of
other professionals. In Paul, 708 F.2d at 171, REVERSED AND RENDERED.
we found that pilots exercised discretion and
judgment in deciding whether to fly, selecting
the safest route, and responding to unexpected 8
The trainers argue that in responding to emer-
airborne events, even though they also oper- gencies, they simply follow standard procedures
ated under extensive procedures and guide- and call for emergency medical support. We are
lines. convinced, however, that even making this initial
assessment of a potentially serious injury involves
Like the pilots in Paul, the trainers must discretion and judgment in deciding, for instance,
make decisions on whether an athlete must be whether to move the athlete from the field and
sent to a hospital or can continue to participate whether the injury is serious enough to merit EMS
in athletic events. The trainers aver that unlike support. Emergency response paramedics have no
the pilots, they do not have to make decisions such discretion.
“about problems to which there were often no 9
The trainers cross-appeal the partial summary
recognized or established answers.” See id.
judgment to SAISD declaring that Hartwig is
at 170. Trainers, however, must also respond exempt from overtime benefits as an
to emergencies and make quick, independent “administrator,” and the refusal to award
judgments about how to deal with unexpected prejudgment interest. Because we conclude that all
the trainers (including Hartwig) are exempt from
the FLSA's overtime benefits, we do not reach
Hartwig’s cross-appeal or the trainers’ cross-
appeal for prejudgment interest.
7