Etienne v. Inter-County Security , 173 F.3d 1372 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-5225 04/30/99
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-7029-CV-WJZ
JEAN JOSEPH ETIENNE, on behalf of himself,
and all others similarly situated,
Plaintiff-Appellant,
versus
INTER-COUNTY SECURITY CORPORATION,
a Florida Corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 30, 1999)
Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.
PER CURIAM:
This is an appeal from the jury's verdict for the defendant in the plaintiff's action brought for
failure to pay overtime wages under the Fair Labor Standards Act. Plaintiff/appellant Etienne raises
three issues: (1) the district court erred in denying his motion for judgment as a matter of law; (2)
the jury verdict was contrary to law and against the clear weight of the evidence; and (3) the district
court erred in its jury instructions regarding the burdens of proof. We affirm.
BACKGROUND
Etienne worked as a security guard for defendant/appellee Inter-County Security Corp.
(Inter-County) for one year. At trial, Etienne testified that on numerous occasions Inter-County did
not pay him for the hours he worked, totaling about 80.5 hours, and that he had brought the
shortages to the operation manager's attention. Inter-County presented the testimony of its
operations manager. The operations manager submitted the company payroll records, and conceded
that there were errors in the payroll that amounted to an underpayment of $18.62 to Etienne, but
stated that Etienne had been paid for all other hours worked. The operations manager testified that
Etienne had only approached him once about the amount of his paycheck, and that was about an
amount withheld due to a previous overpayment.
At the close of Etienne's case, Inter-County moved for judgment as a matter of law pursuant
to Fed.R.Civ.Proc. 50. The district court reserved ruling on the motion. At the close of all evidence,
Inter-County renewed its motion for judgment as a matter of law, arguing that Etienne had
established that at most he was owed $18.62, and had not established bad faith on Inter-County's
part that would allow for double damages. Etienne did not make his own motion, but responded that
the jury should be allowed to determine the credibility of the witnesses' testimony. At the end of
his response to Inter-County's motion, Etienne's counsel stated that "I think this court should and
must, as a result of the admissions this afternoon, enter judgment in favor of plaintiff finding an
overtime violation existed." The district court denied the defendant's motion, and the jury returned
a verdict for Inter-County. Etienne then moved for judgment notwithstanding the verdict, and the
district court told counsel that the motion would have to be filed in writing within the time period
prescribed by law. Etienne did not file a written motion, but brought this appeal.
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DISCUSSION
(1) Motion for judgment as a matter of law
Etienne argues that the district court erred in denying his motion for judgment as a matter
of law based on Inter-County's admission that they failed to pay Etienne $18.62 he was owed.
Etienne admits that he did not label his motion as such, but points out that he asked the judge to
enter judgment in his favor.
This Court reviews the district court's denial of motion for judgment as a matter of law de
novo. Circa Ltd. v. City of Miami, 79 F.3d 1057, 1063 (11th Cir. 1996). Although this Court
requires a motion for judgment as a matter of law to be made at the close of evidence, giving the
specific grounds for the motion, this Court has taken a liberal view of what constitutes such a
motion. Nat’l Industries, Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1549 (11th Cir. 1986). The
principle at stake is whether the opposing party and the trial judge are informed of the argument and
given a chance to amend any deficiency. Id. Even in the absence of such motion, however, this
Court will review the record to ascertain if any evidence supports the jury's verdict, irrespective of
its sufficiency, or whether there was plain error that resulted in a manifest miscarriage of justice.
Wilson v. Attaway, 757 F.2d 1227, 1237 (11th Cir. 1985).
We consider whether the evidence presents a sufficient conflict to require a jury’s
determination of the facts, reviewing all the evidence and inferences in a light most favorable to the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512,
91 L.Ed.2d 202 (1986). If the facts and inferences overwhelmingly favor one party, such that
reasonable people could only arrive at one verdict, then the motion should have been granted. Carter
v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989).
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Etienne did not expressly make a motion for judgment as a matter of law. In his response
to Inter-County's motion, however, he requested that the court enter judgment for him based on the
operations manager's admission. Therefore, the opposing party and the trial judge were informed
of the argument, and given this Court's liberal view of what constitutes a motion for judgment as a
matter of law, we will consider his statement at trial a motion. Even if it was not, plain error is
evident in regard to the $18.62.
The operations manager, relying on company records, testified that Etienne was paid all the
overtime compensation he earned, with the exception of $18.62, which was the payroll company's
error. Etienne testified that he worked additional hours for which he was not compensated. The
evidence was essentially a credibility determination, with the exception of the $18.62 defendants
admitted to owing, and the credibility of the witnesses was the province of the jury. Therefore, the
district court did not err in denying the motions for judgment as a matter of law, except with respect
to the $18.62. This case should be remanded for the award of $18.62, but only as to that amount.
(2) Weight of the evidence
Etienne argues that he should receive a new trial because his testimony at trial was
uncontradicted about the overtime compensation owed him for three pay periods, and that Inter-
County conceded so for two of those three periods.
District courts review a party's argument about the weight of the evidence when it is raised
by a party in a motion for a new trial. See, e.g., Technical Resource Services, Inc. v. Dornier
Medical Systems, Inc., 134 F.3d 1458, 1468 (11th Cir. 1998)(argument that jury's verdict was
against the weight of the evidence raised in motion for new trial). Issues raised for the first time
in this Court are generally not considered because the district court did not have the opportunity to
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consider them. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994); see also Velazquez v.
Figueroa-Gomez, 966 F.2d 425, 427 (1st Cir.), cert. denied, 510 U.S. 993 (1993)(motion for new trial
must be made first to the trial court, particularly where the issue is the weight of the evidence, and
failure to move for a new trial waives the issue on appeal).
Following the jury's verdict, Etienne's counsel stated: "Your Honor, the plaintiff moves for
judgment notwithstanding the verdict," without stating grounds. The district court told counsel that
he had to file that in writing within the time prescribed by law. Etienne did not do so, and never
made a motion for a new trial. The district court did not have the opportunity to consider his
argument that the evidence was against the weight of the verdict and we will not consider it.
(3) Jury instructions
Etienne argues that the district court erred in failing to instruct the jury in accordance with
the holding of Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed.2d 1515(1946). There, the Supreme Court held that where the employer's records are inaccurate or
inadequate and the employee proves he performed work for which he was not properly compensated,
the burden shifts to the employer to prove its claim or disprove the employee's, and upon failing to
do so, the court can award damages to the employee even if the result is only approximate. Id. at
687-88, 66 S.Ct. at 1192.
At trial, Inter-County's witness testified that he could not find the record of one week, and
that one record did not match his master schedule because the master schedule omitted a shift that
Etienne had worked.* The district court instructed the jury that the plaintiff "must prove each of the
following facts by a preponderance of the evidence; first, that the plaintiff was employed by the
*
Etienne is not contenting that he was underpaid during either of these weeks.
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defendant during the time--during the time period involved;" [the second factor related to the size
of the defendant's business and was stipulated to before trial]; "third, that the defendant failed to pay
the plaintiff the overtime pay required by law." The court further instructed the jury that "[i]f, upon
consideration of all the evidence, you find that the plaintiff has failed to prove one or more of the
elements of his claim your verdict must be for the defendant. If, however, you find that the plaintiff
has proved each of the elements of his claim by a preponderance of the evidence then your verdict
is for the plaintiff and you must then determine the amount of damages which the plaintiff is entitled
to recover."
In Anderson, the employer paid the employees starting on the quarter-hour before they
clocked in, and ending on the quarter-hour before they clocked out. As a result, employees could
be unpaid for as much as 56 minutes each day, depending on when they clocked in and out, and the
Supreme Court held that:
where the employer's records are inaccurate or inadequate and the
employee cannot offer convincing substitutes . . . an employee has
carried out his burden if he proves that he has in fact performed work
for which he was improperly compensated and if he produces
sufficient evidence to show the amount and extent of that work as a
matter of just and reasonable inference. The burden then shifts to the
employer to come forward with evidence of the precise amount of
work performed or with evidence to negative the reasonableness of
the inference to be drawn from the employee's evidence. If the
employer fails to produce such evidence, the court may then award
damages to the employee, even though the result be only
approximate.
328 U.S. at 683-84, 687-88, 66 S.Ct. at 1190-91, 1192.
Case law does not, however, support Etienne's claim that the absence of one week's record
and the inaccurate recording of one shift in a year's time constitutes circumstances under which the
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burden-shifting analysis is applied. Under Etienne's interpretation, the burden-shifting analysis
would apply every time employers had any error at all in their records. Rather, this circuit has
employed the burden-shifting analysis in situations where no records were kept at all or no overtime
was recorded. See, e.g., Amcor, Inc. v. Brock, 780 F.2d 897, 900 (11th Cir. 1986)(no records kept);
Olson v. Superior Pontiac-GMC, Inc., 776 F.2d 265, 267 (11th Cir. 1985) (employer's time records
did not correspond with pay periods); Donovan v. New Floridian Hotel, Inc., 676 F.2d 468,470
(11th Cir. 1982)(employer unable to find "many records" and payroll department employee testified
to regularly falsifying records); Skipper v. Superior Dairies, Inc., 512 F.2d 409, 411 (5th Cir.
1975)(no records kept); Brennan v. General Motors Acceptance Corp., 482 F.2d 825, 828 (5th Cir.
1973)(employees kept time records but were not permitted to report overtime worked except in rare
situations); Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721, 724 (5th Cir. 1961)(no records
kept). Etienne does not cite to any case where the facts are similar to his, and research does not
reveal any other than those cited above.
Because Etienne cannot support his claim that Inter-County's records were inaccurate and
incomplete to any significant degree, the district court did not err by declining to give his requested
jury instructions.
AFFIRMED.
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