Paul v. Petroleum Equipment Tools Co.

• Decision Date: 27 June 1983
• Docket Number: No. 82-3216,82-3216
• Citation: 708 F.2d 168
• Parties: 26 Wage & Hour Cas. (BN 390, 77 A.L.R.Fed. 667, 98 Lab.Cas. P 34,399 Travis PAUL, Plaintiff-Appellant, v. PETROLEUM EQUIPMENT TOOLS CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 168

708 F.2d 168

26 Wage & Hour Cas. (BN 390, 77 A.L.R.Fed. 667,

98 Lab.Cas. P 34,399

Travis PAUL, Plaintiff-Appellant, v. PETROLEUM EQUIPMENT TOOLS CO., Defendant-Appellee.

No. 82-3216.

United States Court of Appeals Fifth Circuit.

June 27, 1983.

Hawley & Schexnayder, Ltd., Nelson J. Schexnayder, Jr., Lafayette, La., for plaintiff-appellant.

Davidson, Meaux, Sonnier & Roy, L. Lane Roy, Lafayette, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before RANDALL and HIGGINBOTHAM, Circuit Judges, and BUCHMEYER, ^* District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Travis Paul, a company airplane pilot, brought this suit against Petroleum Equipment Tools Co., his former employer, seeking overtime pay allegedly due under the Fair Labor Standards Act. 29 U.S.C. Secs. 201-219. After a bench trial, the district court concluded that Paul was employed in a bona fide professional capacity within the meaning of 29 U.S.C. Sec. 213(a)(1) and its regulations and therefore was exempt from the overtime provisions of the FLSA. Taking judicial notice of Federal Aviation Administration regulations detailing the level of skill needed to fly PETCO's airplane, we affirm the district court's determination that Paul was employed in a professional capacity.

On January 12, 1979, PETCO hired Travis Paul to fly one of its company airplanes, a twin-engine, turboprop Beechcraft King Air B100 located in Lafayette, Louisiana. Paul was an experienced pilot and had long earned his living as a commercial pilot. Since learning to fly at England's Flying Service in Mobile, Alabama in 1966, Paul had logged 4900 hours of flying time as pilot-in-command of numerous types of airplanes. He held an airline transport pilot certificate, a flight instructor certificate, an instrument rating, and was authorized to fly both single and multiengine airplanes. At PETCO, Paul not only flew the plane but also cleaned it, stocked it, prepared reports of expenses and flight operations, and maintained charts and manuals. He received a monthly salary ranging from $1700 to $2081.

Paul resigned from PETCO on September 19, 1980. He then brought suit against PETCO seeking overtime compensation and liquidated damages under the FLSA and penalty wages under Louisiana law. PETCO asserted numerous defenses, including the claim that Paul was a professional and thus was exempt from the FLSA's overtime provisions. During the three day bench trial, the parties focused primarily on the accuracy of Paul's reported "duty time," on the existence of a company bonus plan, and on Paul's understanding regarding the hours he was required to work. The district court did not reach these issues; it instead ruled that Paul was exempt from the FLSA because he was employed in a bona fide professional capacity. Paul appeals, claiming that the record evidence does not support this finding.

The FLSA exempts from its overtime provisions "any employee employed in a bona fide executive, administrative, or professional capacity...." 29 U.S.C. Sec. 213(a)(1). The employer bears the burden of proving exempt status. See Usery v. Associated Drugs, Inc., 538 F.2d 1191, 1194 (5th Cir.1976). In addition, the exemptions contained in the Act are to be narrowly construed against the employer. See Brennan v. Greene's Propane Gas Service, Inc., 479 F.2d 1027, 1032 (5th Cir.1973). While there may be uncertainty in the deference to be given a trial court's ultimate conclusion of exempt status, see Jacksonville Paper Co. v. McComb, 167 F.2d 448 (5th Cir.1948), there is no disagreement that the subsidiary facts underlying that determination are governed by the "clearly erroneous" standard of Fed.R.Civ.P. 52(a). See, e.g., Continental Oil Co. v. Cole, 634 F.2d 188, 191 (5th Cir.1981). See also Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 666 (5th Cir.1983).

Determination of professional status is guided by regulations issued by the Secretary of Labor and the Administrator of the Wage-Hour Division pursuant to congressional direction. These regulations permit an employer to use either a "long test" or a "streamline test" to meet its burden of proving an employee's professional status. Under the long test, a court may decide that an employee is an exempt professional only if the conditions of his employment satisfy the requirements set forth in 29 C.F.R. Sec. 541.3(a)-(e). If, however, an employee receives a minimum weekly salary of $250, the employer's contention that he is exempt may be measured by the shorter streamline test described in 29 C.F.R. Secs. 541.3(e), .315. Because it is undisputed that Paul received at least $250 weekly, the district court properly resorted to the streamline test.

Under this test, PETCO must show that Paul's "primary duty consists of the performance of work requiring knowledge of an advanced type in a field of science or learning ... which includes work requiring the consistent exercise of discretion and judgment." Secs. 544.3(e), .315. ¹ "Primary duty" means that "the major part, or over 50 percent, of the employee's time" must be spent performing exempt work. Sec. 541.103. Activities that are "an essential part of and necessarily incident to" the professional work are also exempt. Sec. 541.307. Exempt work involving advanced learning is described in Sec. 541.302. Such work requires knowledge of an advanced type that generally cannot be attained at the high school level. This knowledge must be in a field of science or learning as distinguished from the mechanical arts. It also must be "customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes." Sec. 541.3(a)(1). Finally, a "prime characteristic of professional work is the fact that the employee does apply his special knowledge or talents with discretion and judgment. Purely mechanical or routine work is not professional." Sec. 541.305(b).

In applying these regulations to Paul, the district court first found that Paul's work required the exercise of discretion and judgment. The court noted, "He made the final decision of whether or not to fly and he chose the safest and most efficient route. Airborne, he was consistently exposed to periods wherein at any moment he might be required to make an instant judgment, drawing on knowledge acquired through flight training." We find that these findings of fact are not clearly erroneous. Two PETCO pilots testified that they had the sole authority to decide whether possible weather disturbances would require cancellation of the flight or alteration of the route. They also testified that they had to decide whether a particular plane was "airworthy." Such decisions are not "purely mechanical or routine" but involve considerable discretion and judgment. This case is thus materially different from Martin v. Penn Line Service, Inc., 416 F.Supp. 1387 (W.D.Pa.1976), on which Paul relies. The court there held that helicopter pilots hired to control forest fires, spray brush, and take aerial photographs did not exercise the requisite discretion and judgment because they were "merely highly trained technicians" who could not make decisions without consulting with their superior. Id. at 1390. In contrast, Paul had sole authority to make decisions about problems to which there were often no recognized or established answers. See Sec. 541.207.

The district court also found that Paul was engaged in a "learned profession" within the meaning of Sec. 541.3(a)(1) and Sec. 541.302. It reasoned:

Ability to make snap judgments based on unexpected flight conditions is not an "inherent talent" but is attained after specialized instruction required of pilots before being licensed.... Paul's numerous F.A.A. licenses for highly technical aircraft are the best evidence of his advanced knowledge acquired by study and training and to this Court are the functional equivalents of the advanced degree which is a prima facie showing of professional status under the regulations.

Paul argues that this finding is flawed in two respects. One deficiency is that PETCO made no showing that his "numerous F.A.A. licenses" were needed to fly the company plane. A second problem is that PETCO presented no evidence regarding the level of skill and training needed to obtain those licenses. While we agree with Paul that these are indeed the relevant inquiries and that without the explanatory aid of controlling regulations the "evidence" of Paul's level of training is scarce, we nonetheless find that Paul was engaged in a "learned profession" and thus was employed in a professional capacity.

Paul's first contention is that PETCO failed to show he needed his airline transport pilot certificate with single and multiengine class ratings to fly the company plane. He thus suggests that any skill and training needed to obtain this license is irrelevant in the determination of his professional status. It is true that the record nowhere explicitly states whether an ATP certificate is "required" to fly PETCO's airplane. It does show, however, that Paul in his job application represented that he had this rating. There was no direct evidence that the rating was a prerequisite for the job. But having been hired as a pilot with a listed skill level, Paul is in no position to now suggest that less was "required" by PETCO simply because the law required less. Regardless, Paul could not legally fly the PETCO aircraft with passengers at any distance without a commercial pilot certificate and an instrument rating, see 14 C.F.R. Sec. 61.129, .139, a classification one notch below an ATP certificate. See 14 C.F.R. Sec. 61.171.

Paul's second contention is that PETCO offered no specific evidence of the level of skill and training required to obtain such licenses....