Lederman v. Frontier Fire Protection, Inc. , 685 F.3d 1151 ( 2012 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    July 11, 2012
    PUBLISH                  Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    GARY LEDERMAN,
    Plaintiff-Appellee,
    v.                                          No. 10-1534
    FRONTIER FIRE PROTECTION,
    INC., a Colorado corporation, and
    ESTATE OF KARL SMITH,
    Defendants-Appellants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLORADO
    (D.C. NO. 07-CV-01708-RPM)
    Michael P. Zwiebel (Jeffrey A. Springer with him on the briefs) Springer and
    Steinberg, P.C., Denver, Colorado, for Appellant.
    David Lichtenstein, Attorney at Law, Denver, Colorado, for Appellee.
    Before BRISCOE, Chief Circuit Judge, TYMKOVICH, Circuit Judge, and
    EAGAN *, District Judge.
    TYMKOVICH, Circuit Judge.
    *
    The Honorable Claire V. Eagan, District Judge, United States District
    Court, Northern District of Oklahoma, sitting by designation.
    Gary Lederman sued his former employer, Frontier Fire Protection, Inc., to
    recover overtime pay he alleged was owed to him under the Fair Labor Standards
    Act (FLSA). A jury found Frontier liable and awarded Lederman $17,440.86 in
    damages. Frontier challenges the jury instructions issued by the district court.
    Because we find the district court should not have instructed the jury that
    Frontier bore a heightened burden of proof in establishing its entitlement to an
    FLSA exemption, we REVERSE the judgment and REMAND the case for further
    proceedings.
    I. Background
    Frontier is a company in the business of selling and installing automatic
    fire sprinkler systems. Frontier hired Lederman as a senior estimator in 2002.
    Although the facts are contested, Lederman’s job responsibilities appear to have
    involved contacting customers and potential customers, inspecting customer
    buildings to evaluate the cost of sprinkler system installation, and preparing bids.
    Lederman spent between 30 and 60 percent of his time in Frontier’s office, 1 and
    did most of his bid preparation work there. The bids he prepared were sent as
    offers to customers, but the extent of his power to enter into binding contracts on
    behalf of Frontier is disputed.
    1
    Lederman testified he spent 60 percent of his time in the office, while
    Frontier’s CEO, Karl Smith, claimed Lederman was in the office as little as 30
    percent of the time. Lederman’s supervisor, Steve Martin, estimated Lederman
    was in the office about half the time.
    -2-
    Frontier paid Lederman a salary and an annual bonus. Lederman testified
    at trial that his annual bonuses totaled $30,000 in 2005 and $40,000 in 2006.
    Frontier did not pay Lederman overtime, and did not pay him any commission for
    the sales he arranged.
    Lederman resigned in May 2007 and demanded that Frontier pay him
    $5,000 as a portion of his annual bonus for that year. Frontier refused. Lederman
    retained an attorney and filed suit.
    Lederman asserted a claim against Frontier for overtime pay under the
    FLSA. 2 According to Lederman, he began tracking the amount of overtime he
    worked on his home computer in 2002, and stopped tracking it in early 2006. He
    alleged that he frequently worked in excess of 40 hours per week, but was never
    paid overtime except on “approximately one or two occasions.” App. 11.
    Frontier asserted the affirmative defense that Lederman qualified as an
    exempt employee under the FLSA, and therefore was not eligible for overtime
    pay. Specifically, Frontier alleged that Lederman was an exempt outside
    salesperson as defined by the FLSA. Id.
    At trial, the evidence regarding whether Lederman qualified as an outside
    salesperson was mixed. In particular, the parties offered conflicting evidence
    regarding what proportion of Lederman’s working time was spent in the office or
    2
    Lederman also asserted two other claims, which he abandoned before
    trial.
    -3-
    traveling, the importance of sales to Lederman’s position, and his authority to
    finalize sales.
    After the close of evidence, the court conducted a conference to discuss
    jury instructions. Frontier proposed the following jury instruction regarding
    whether Lederman was an exempt employee: “An employer seeking an exemption
    from the overtime requirements of the FLSA bears the burden of proving an
    exemption.” Id. at 147. Lederman proposed a different instruction: “An
    employer seeking an exemption from the overtime requirements of the FLSA
    bears the burden of proving that the particular employee fits plainly and
    unmistakably within the terms of the claimed exemption.” Id. at 72. Lederman
    also proposed a special verdict form that started with the question, “Have
    Defendants carried their burden of proving that Gary Lederman fit plainly and
    unmistakably within the terms of the outside sales exemption?” Id. at 94.
    Over Frontier’s objection, the court adopted Lederman’s instruction
    regarding the outside sales exemption issue.
    In its oral instructions to the jury, the court said:
    The party asserting a claim or an affirmative defense has the
    burden of proving the essential elements of the claim or affirmative
    defense by a preponderance of the evidence. To ‘prove by a
    preponderance of the evidence’ means to prove that something is
    more likely so than not so. In other words, a preponderance of the
    evidence means such evidence as, when considered and compared
    with that opposed to it, has more convincing force and produces in
    your minds a belief that what is sought to be proven is more likely
    true than not true. The rule does not require proof to an absolute
    -4-
    certainty, since proof to an absolute certainty is seldom possible in
    any case.
    An employer seeking an exemption from the overtime
    requirements of the FLSA bears the burden of proving that the
    particular employee fits plainly and unmistakably within the terms of
    the claimed exemption.
    Persons employed in the capacity of “outside salesmen” are
    exempt from the minimum wage and overtime pay requirements of
    the Fair Labor Standards Act.
    To prove this exemption, the defendants must prove by a
    preponderance of the evidence that (1) the plaintiff’s primary duty
    was (a) making sales; or (b) obtaining orders or contracts for
    services; and (2) the plaintiff was customarily and regularly engaged
    away from the employer’s place or places of business in performing
    such primary duty.
    Id. at 659-60 (emphasis added).
    The jury ultimately found that Lederman was not an outside salesperson. It
    went on to find Frontier liable to Lederman, but only for a portion of the amount
    sought.
    II. Discussion
    A. Standard of Review
    “We review a district court’s decision to give a particular jury instruction
    for abuse of discretion,” but “we review de novo legal objections to the jury
    instructions.” Frederick v. Swift Transp. Co., 
    616 F.3d 1074
    , 1079 (10th Cir.
    2010) (internal quotation marks and citations omitted); see also Webb v. ABF
    Freight Sys., Inc., 
    155 F.3d 1230
    , 1248 (10th Cir. 1998) (“[W]e will find an abuse
    -5-
    of discretion if the challenged instruction incorrectly states the governing law.”).
    We read and evaluate the jury instructions in light of the entire record to
    determine if they “fairly, adequately and correctly state the governing law and
    provide the jury with an ample understanding of the applicable principles of law
    and factual issues confronting them.” United States v. Barrera-Gonzales, 
    952 F.2d 1269
    , 1272 (10th Cir. 1992) (internal quotation marks and citation omitted).
    We do not decide whether the instructions “are flawless, but whether the jury was
    misled in any way and whether it had a[n] understanding of the issues and its duty
    to decide those issues.” Brodie v. Gen. Chem. Corp., 
    112 F.3d 440
    , 442 (10th
    Cir. 1997) (internal quotation marks and citation omitted). “[S]o long as the
    charge as a whole adequately states the law, the refusal to give a particular
    requested instruction” is not grounds for reversal. United States v. Suntar
    Roofing, Inc., 
    897 F.2d 469
    , 473 (10th Cir. 1990).
    If we determine that the trial court erred, we must then determine whether
    the error was prejudicial to Frontier. “[T]he judgment must be reversed ‘if the
    jury might have based its verdict on the erroneously given instruction.’” Wankier
    v. Crown Equip. Corp., 
    353 F.3d 862
    , 867 (10th Cir. 2003) (quoting Townsend v.
    Lumbermens Mut. Cas. Co., 
    294 F.3d 1232
    , 1242 (10th Cir. 2002)). “Although
    we may reverse the district court’s judgment only if an erroneous instruction is
    prejudicial in light of the record as a whole, we note that ‘[j]ury instructions
    outlining the appropriate burdens of proof are almost always crucial to the
    -6-
    outcome of the trial.’” Karnes v. SCI Colo. Funeral Servs., Inc., 
    162 F.3d 1077
    ,
    1079 (10th Cir. 1998) (quoting Stevison v. Enid Health Sys., Inc., 
    920 F.2d 710
    ,
    714 (10th Cir. 1990)).
    B. FLSA’s Outside Salesman Exemption
    Lederman argued at trial that he was an employee entitled to overtime pay.
    The FLSA requires employers to pay covered employees overtime equal to one-
    and-one-half times their normal pay for work in excess of forty hours in a week.
    See 
    29 U.S.C. § 207
    . Employers who fail to do so are liable to the employee for
    the unpaid overtime, plus “an additional equal amount as liquidated damages.”
    § 216(b).
    But the FLSA exempts employers from this requirement for certain kinds of
    employees, including “any employee employed . . . in the capacity of an outside
    salesman.” § 213. The definition of an outside salesman is established by federal
    labor regulations:
    (a) The term “employee employed in the capacity of outside
    salesman” in section 13(a)(1) of the [FLSA] shall mean any
    employee:
    (1) Whose primary duty is:
    (i) making sales within the meaning of section 3(k) of the [FLSA], or
    (ii) obtaining orders or contracts for services or for the use of
    facilities for which a consideration will be paid by the client or
    customer; and
    -7-
    (2) Who is customarily and regularly engaged away from the
    employer’s place or places of business in performing such primary
    duty.
    (b) The term “primary duty” is defined at § 541.700. In determining
    the primary duty of an outside sales employee, work performed
    incidental to and in conjunction with the employee’s own outside
    sales or solicitations, including incidental deliveries and collections,
    shall be regarded as exempt outside sales work. Other work that
    furthers the employee’s sales efforts also shall be regarded as exempt
    work including, for example, writing sales reports, updating or
    revising the employee’s sales or display catalogue, planning
    itineraries and attending sales conferences.
    
    29 C.F.R. § 541.500
    ; see Clements v. Serco, Inc., 
    530 F.3d 1224
    , 1227-28 (10th
    Cir. 2008) (“The touchstone for making a sale, under the Federal Regulations, is
    obtaining a commitment. This can be done by making a sale or obtaining an order
    or contract for services.”); see also Christopher v. Smithkline Beecham Corp., No.
    11-204, slip op. at 20-21 (U.S. June 18, 2012) (finding that “[o]btaining a
    nonbinding commitment” may qualify as a sale if it “is the most that plaintiffs
    were [legally] able to do to ensure the eventual disposition of the products that
    respondent sells.”).
    Thus, determining whether an employee is an outside salesman for the
    purposes of the FLSA can be a fact-intensive endeavor, turning on, for example,
    the extent of the employee’s authority to enter contracts, the amount of time spent
    away from the employer’s place of business, or whether the employee’s other
    duties were incidental to the employee’s sales. See, e.g., Clements, 
    530 F.3d at 1228
     (military recruiter not exempt because he lacked authority to obtain a
    -8-
    binding commitment from recruits); Ackerman v. Coca-Cola Enters., 
    179 F.3d 1260
    , 1266-67 (10th Cir. 1999) (employee’s promotional work exempt where
    employee consummated sales at same location). Such determinations may also be
    affected by the “regulatory environment within which [the employer] must
    operate.” Christopher, No. 11-204, slip op. at 21.
    The question of Lederman’s status was one of the central fact questions at
    trial. It was Frontier’s burden to establish its entitlement to an exemption from
    FLSA’s overtime requirements.
    C. Burden of Proof
    Frontier claims the trial court erred by instructing the jury that Frontier had
    to prove Lederman “fit[] plainly and unmistakably within the terms of the claimed
    exemption.” Frontier argues the phrase “plainly and unmistakably” refers to the
    principle, articulated in many prior cases, that exemptions from FLSA’s overtime
    provisions should be construed narrowly. According to Frontier, this principle is
    a rule of statutory interpretation for the court, rather than a burden of proof for
    the factfinder.
    In response, Lederman argues that binding circuit precedent stands for the
    proposition that “plainly and unmistakably” is the burden of proof the employer is
    required to meet to establish a FLSA exemption. To resolve these claims requires
    a short review of the evolution of our law applying the FLSA exemption.
    -9-
    As a textual matter, the phrase “plainly and unmistakably” is found
    nowhere in the FLSA, or in our early precedents interpreting that statute. The
    phrase’s earliest occurrence in our circuit law is in Schoenhals v. Cockrum, 
    647 F.2d 1080
     (10th Cir. 1981), which used the phrase in the context of statutory
    construction: “The [FLSA] constitutes humanitarian and remedial legislation.
    Exemptions must be narrowly construed and are limited to those establishments
    plainly and unmistakably within the terms and the spirit of the exemption
    invoked.” 
    Id. at 1081
    . The two cases cited for this proposition in Schoenhals
    were likewise addressed towards statutory construction, not evidentiary burdens.
    See A.H. Phillips, Inc. v. Walling, 
    324 U.S. 490
    , 493 (1945) (“Any exemption
    from such humanitarian and remedial legislation must . . . be narrowly construed,
    giving due regard to the plain meaning of statutory language and the intent of
    Congress.”); Shultz v. Adair’s Cafeterias, Inc., 
    420 F.2d 390
    , 393 (10th Cir. 1969)
    (“As remedial legislation [the FLSA’s] exceptions must be narrowly construed.”).
    The phrase “plainly and unmistakably” surfaced again in Jones v. Tiller, 
    72 F.3d 138
    , *1 (10th Cir. 1995) (unpublished opinion). That language was a
    misquote from Reich v. Wyoming, 
    993 F.2d 739
     (10th Cir. 1993), in which we
    said, “Exemptions to the FLSA are to be narrowly construed; the employer must
    show the employees fit ‘plainly and unmistakenly within [the exemption’s]
    terms.’” 
    Id. at 741
    . Reich, in turn, misquoted a 1960 Supreme Court case, Arnold
    v. Ben Kanowsky, Inc., 
    361 U.S. 388
    , which said, referring to the FLSA’s
    -10-
    exemption for retail sales and service establishments, “We have held that these
    exemptions are to be narrowly construed against the employers seeking to assert
    them and their application limited to those establishments plainly and
    unmistakably within their terms and spirit.” 
    Id. at 392
    .
    Arnold used the phrase “plainly and unmistakably” not in the context of an
    evidentiary standard, but in a discussion of whether undisputed facts were legally
    sufficient to make out an FLSA exemption. See 
    id. at 391
    . Similarly, Reich and
    Jones considered whether undisputed facts established, as a matter of law, a
    “profession” exemption under the FLSA. See Reich, 
    993 F.2d at 741
    ; Jones, 72
    F.3d at *1. These cases support Frontier’s position that “plainly and
    unmistakably” is not correctly applied as an evidentiary burden but as a legal
    standard.
    More recently, some of our opinions may have appeared to support the
    notion that “plainly and unmistakably” refers to the employer’s burden of proof.
    For example, in Clements v. Serco, Inc., 
    530 F.3d 1224
     (10th Cir. 2008), we said,
    “as the employer, Serco bears the burden of proving that the Employees fit
    ‘plainly and unmistakably within the exemption’s terms.’” 
    Id. at 1227
     (quoting
    Ackerman, 179 F.3d at 1264). Clements, however, reviewed a grant of summary
    judgment, and made the above statement with regard to the legal scope of FLSA
    exemptions. See id. Similarly, in Ackerman, we reviewed a legal question on
    undisputed facts. See Ackerman, 179 F.3d at 1264 (“[T]he question before us is
    -11-
    . . . whether the plaintiffs’ merchandising activities were incidental to and in
    conjunction with their sales of Coca-Cola products such that the plaintiffs were
    covered by the FLSA exemption for outside salesmen. We review the district
    court’s resolution of this legal question de novo . . . .”) (citations and quotation
    marks omitted). The cases Ackerman cited for this proposition were Reich and
    Arnold, which, again, addressed a legal standard of construction rather than a
    factual standard of proof. See id.
    Likewise, all of our other cases employing this phrase have done so in
    addressing legal rather than factual issues. See Pacheco v. Whiting Farms, Inc.,
    
    365 F.3d 1199
    , 1206 (10th Cir. 2004) (“Defendants have demonstrated the
    packaging operations at Whiting Farms plainly and unmistakably fall within the
    agricultural exemption because those practices constitute secondary farming
    under FLSA.”); Rodriguez v. Whiting Farms, Inc., 
    360 F.3d 1180
    , 1184 (10th Cir.
    2004) (“[E]xemptions under the FLSA are to be narrowly construed against the
    employers seeking to assert them and their application limited to those
    establishments plainly and unmistakably within their terms and spirit.” (citation
    and quotation marks omitted)); Welding v. Bios Corp., 
    353 F.3d 1214
    , 1218 (10th
    Cir. 2004) (“Bios is not entitled to summary judgment unless it can establish that
    the undisputed facts . . . plainly and unmistakably fit within the companionship
    services exemption.”); accord Baker v. Barnard Constr. Co., 
    146 F.3d 1214
    ,
    -12-
    1217-18 (10th Cir. 1998); Carpenter v. City & County of Denver, 
    82 F.3d 353
    ,
    355 (10th Cir. 1996), vacated on other grounds, 
    519 U.S. 1145
     (1997).
    In sum, our cases stand for the proposition that in considering an FLSA
    exemption, a court must find that the claimed exemption falls “plainly and
    unmistakably” within the terms of the statute—not for the proposition that an
    employer need prove such an exemption by anything more than a preponderance
    of the evidence. Once a court finds the employer is eligible to claim the
    exemption, the factfinder reviews the disputed facts to determine if the exemption
    is met.
    Other courts have confronted similar FLSA burden-of-proof issues and
    come to the conclusion that the proper standard is a preponderance. For example,
    the Seventh Circuit, in Yi v. Sterling Collision Centers, Inc., 
    480 F.3d 505
     (7th
    Cir. 2007), rejected the plaintiff-appellee’s contention that the defendant was
    required to prove an FLSA exemption by a “clear and affirmative evidence”
    standard. 
    Id. at 506-07
    . The Seventh Circuit traced the origin of the phrase
    “clear and affirmative evidence” in the FLSA context to our own opinion in
    Donovan v. United Video, Inc., 
    725 F.2d 577
     (10th Cir. 1984), in which we stated,
    “[t]he employer who asserts the exemption has the burden of establishing [the
    exemption] by clear and affirmative evidence.” 
    Id. at 581
    . The Seventh Circuit
    explained how this language was originally rooted in statutory-construction cases
    going back to the 1940’s, but became “garbled” over time as it was repeated by
    -13-
    different courts, “the original meaning forgotten.” Yi, 
    480 F.3d at 507
    . The
    Seventh Circuit concluded the appropriate burden of proof was a preponderance
    of the evidence, notwithstanding the language employed in Donovan and similar
    opinions. See 
    id.
    Recently, in an unpublished opinion, we endorsed Yi’s conclusion that a
    preponderance is the proper evidentiary standard for FLSA exemptions. That
    case involved another variation on the burden of proof since some courts had
    applied a “clear and affirmative evidence” standard in FLSA cases:
    Our use of ‘clear and affirmative evidence,’ [citing Arnold, 
    supra]
    has lead [sic] to confusion whether this in fact means clear and
    convincing evidence—a burden beyond the preponderance of
    evidence standard traditionally applied in civil cases. This is not the
    case; instead, clear and affirmative evidence is simply an ‘invocation
    of the familiar principle of statutory interpretation that exemptions
    from a statute that creates remedies that should be construed
    narrowly,’ Yi v. Sterling Collision Centers, Inc., 
    480 F.3d 505
    , 508
    (7th Cir.2007), and “also that the burden of proof is on the
    [employer], since entitlement to an exemption is an affirmative
    defense.” 
    Id. at 507
    . “[A] silent or ambiguous record” is not
    affirmative evidence. United States v. Bush, 
    405 F.3d 909
    , 921 (10th
    Cir. 2005).
    Fowler v. Incor, 279 F. App’x 590, 592 (10th Cir. 2008).
    In sum then, just as some courts have mistakenly viewed “clear and
    affirmative evidence” as a heightened evidentiary standard, the same is true with
    the phrase “plainly and unmistakably.” When our prior cases employing this
    phrase are read as a whole, they do not establish a heightened evidentiary
    requirement on employers seeking to prove an FLSA exemption. Instead, the
    -14-
    ordinary burden of proof—preponderance of the evidence—controls the jury’s
    evaluation of whether the facts establish an exemption to the FLSA.
    Thus, we conclude the district court should not have instructed the jury that
    “[a]n employer seeking an exemption from the overtime requirements of the
    FLSA bears the burden of proving that the particular employee fits plainly and
    unmistakably within the terms of the claimed exemption.” Instead, the jury
    should have only been instructed to consider the evidence under the
    preponderance-of-the-evidence standard.
    D. Prejudice
    Having found the jury instruction misstated the law, we must still
    determine whether the district court’s legal error was prejudicial to Frontier.
    “[T]he judgment must be reversed ‘if the jury might have based its verdict on the
    erroneously given instruction.’” Wankier, 353 F.3d at 867. “The ‘might have’
    threshold, as its language suggests, requires reversal ‘even if that possibility is
    very unlikely.’” Level 3 Commc’ns, LLC v. Liebert Corp., 
    535 F.3d 1146
    , 1158
    (10th Cir. 2008) (quoting Wankier, 
    353 F.3d at 867
    ). “Only ‘when the erroneous
    instruction could not have changed the result of the case’ can we say the error is
    harmless and does not require reversal.” 
    Id.
     (quoting World Wide Ass’n of
    Specialty Programs v. Pure, Inc., 
    450 F.3d 1132
    , 1139 (10th Cir. 2006)).
    “Although we may reverse the district court’s judgment only if an erroneous
    instruction is prejudicial in light of the record as a whole, we note that ‘[j]ury
    -15-
    instructions outlining the appropriate burden of proof are almost always crucial to
    the outcome of the trial.’” Karnes, 
    162 F.3d at 1079
     (quoting Stevison, 
    920 F.2d at 714
    ).
    Here, there were many disputed issues of fact relevant to the question
    whether Lederman was an outside salesman and therefore exempt from FLSA’s
    overtime requirements. For example, conflicting evidence was presented
    regarding the amount of time Lederman spent out of Frontier’s place of business.
    Lederman produced witnesses who held the same job as himself to testify that
    they spent eighty percent of their time in Frontier Fire’s office. But Frontier
    presented evidence that Lederman was away from Frontier’s place of business at
    least fifty percent of the time. Lederman himself testified that when soliciting
    contracts he would visit customers’ job sites, and that he attended meetings at his
    customers’ places of business.
    Another disputed factual issue was the extent of Lederman’s authority to
    finalize sales. Frontier presented testimony that the bids prepared by Lederman
    became binding when they were accepted by the customers. Frontier’s witnesses
    testified that although Lederman’s sales were formalized in a contract after the
    bid had been transmitted and accepted, this was a mere formality.
    Despite this conflicting evidence, Lederman argues that the instructions as
    a whole were not prejudicial because they could not have seriously misled the
    jury. We disagree. The instruction spoke explicitly in terms of the burden of
    -16-
    proof—“an employer . . . bears the burden of proving that the particular employee
    fits plainly and unmistakably within the terms of the claimed exemption.” The
    instruction is most naturally read to require proof beyond a preponderance of the
    evidence. And “instructions outlining the appropriate burden of proof are almost
    always crucial to the outcome.” Stevison, 
    920 F.2d at 714
    .
    We recognize that the district court referred to the preponderance standard
    at other points in the instructions, both before and after the challenged
    instruction. But those references did not clarify or negate the erroneous
    instruction. “Where two instructions are given which are in direct conflict with
    each other, one of which is error and might have been followed by the jury, the
    giving of such instructions is generally said to be prejudicial.” United States v.
    Wiseman, 
    172 F.3d 1196
    , 1215 (10th Cir. 1999) (quoting Gonzales v. United
    States, 
    286 F.2d 118
    , 122 (10th Cir. 1960)); see also Francis v. Franklin, 
    471 U.S. 307
    , 322 (1985) (“A reviewing court has no way of knowing which of the
    two irreconcilable instructions the jurors applied in reaching their verdict.”).
    Although we have recognized that flawed instructions are sometimes harmless
    when “[c]onsidered in context,” United States v. Dowlin, 
    408 F.3d 647
    , 667 (10th
    Cir. 2005), that is not true here because the correct portions of the instructions
    simply conflict with the erroneous portion without shedding further light upon it. 3
    3
    We also note that Dowlin, and many similar cases, applied plain-error
    review rather than the stricter harmlessness standard we apply here.
    -17-
    Additionally, Lederman’s counsel likely exacerbated the error by emphasizing the
    “plainly and unmistakably” standard at the start of his closing argument:
    [S]ome of you have sat on juries before, and you may be surprised to
    find out that the burden of proof in this case is different, not just
    from a criminal case, but for most civil cases. It’s different because
    in this case on the issue of the exemption, it is the employer, the
    defendant, that has the burden of proving that Mr. Lederman fit
    plainly and unmistakably within the outside sales exemption.
    App. 624.
    We conclude “the jury might have based its verdict on the erroneously
    given” standard of proof. Wankier, 
    353 F.3d at 867
    . Accordingly, we find the
    district court’s instructional error was prejudicial. 4
    III. Conclusion
    For the foregoing reasons, the jury’s verdict is REVERSED, the judgment
    of the district court is REVERSED, and the case is REMANDED to the district
    court for further proceedings consistent with this opinion.
    4
    Our prejudice analysis subsumes our analysis of Lederman’s alternative
    argument that he was entitled to judgment as a matter of law regardless of any
    instructional error. The significant factual disputes discussed above preclude us
    from affirming on this ground.
    -18-
    

Document Info

Docket Number: 10-1534

Citation Numbers: 685 F.3d 1151, 19 Wage & Hour Cas.2d (BNA) 678, 2012 WL 2819459, 2012 U.S. App. LEXIS 14196

Judges: Briscoe, Tymkovich, Eagan

Filed Date: 7/11/2012

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (24)

32-socsecrepser-41-medicaremedicaid-gu-39132-tawina-k-stevison-a , 920 F.2d 710 ( 1990 )

Welding v. Bios Corporation , 353 F.3d 1214 ( 2004 )

Wankier v. Crown Equipment Corp. , 353 F.3d 862 ( 2003 )

robert-reich-secretary-of-labor-united-states-department-of-labor , 993 F.2d 739 ( 1993 )

Rick Webb v. Abf Freight System, Inc., a Corporation, and ... , 155 F.3d 1230 ( 1998 )

Townsend v. Lumbermens Mutual Casualty Co. , 294 F.3d 1232 ( 2002 )

United States v. Suntar Roofing, Inc. And David Kevin Pratt , 897 F.2d 469 ( 1990 )

Raymond J. Donovan, Secretary of Labor, United States ... , 725 F.2d 577 ( 1984 )

Frederick v. Swift Transportation Co. , 616 F.3d 1074 ( 2010 )

United States v. Dowlin , 408 F.3d 647 ( 2005 )

Arnold v. Ben Kanowsky, Inc. , 80 S. Ct. 453 ( 1960 )

United States v. Lonnie Ray Wiseman , 172 F.3d 1196 ( 1999 )

Don Schoenhals, B. Winston Munn, Leonard E. Essary, Rosa ... , 647 F.2d 1080 ( 1981 )

james-s-brodie-larry-a-butcher-and-william-a-thompson-travis-skaggs , 112 F.3d 440 ( 1997 )

Carpenter v. City & County of Denver , 82 F.3d 353 ( 1996 )

World Wide Ass'n of Specialty Programs v. Pure, Inc. , 450 F.3d 1132 ( 2006 )

Dong Yi and Edgar Martinez, Individually and on Behalf of ... , 480 F.3d 505 ( 2007 )

United States v. Carlos Barrera-Gonzales, Also Known as ... , 952 F.2d 1269 ( 1992 )

A. H. Phillips, Inc. v. Walling , 65 S. Ct. 807 ( 1945 )

Rodriguez v. Whiting Farms, Inc. , 360 F.3d 1180 ( 2004 )

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