## 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-AppelleesCross-Appellants,

VERSUS



### SAN ANTONIO INDEPENDENT SCHOOL DISTRICT,

Defendant-AppellantCross-Appellee.

_________________________

Appeals from the United States District Court

for the Western District of Texas

_________________________

September 13, 1999

Before JOLLY and SMITH, Circuit Judges,

and VANCE, District Judge, *

JERRY E. SMITH, Circuit Judge:

The San Antonio Independent School District (“SAISD”) appeals a summary judgment

in this action brought pursuant to the Fair Labor Standards Act (“FLSA”) awarding

overtime benefits t o a group of athletic

trainers. Concluding that t he trainers are prof essionals exempt from the FLSA's

overtime bene f

i ts requirements, we reverse and

render summary judgment in favor of SAISD.

I.

The plaint iffs are eight of the nine athletic

trainers of SAISD. Trainers work with coaches and high school and middle school athletes

to prevent injuries and to rehab i litate athletes

from injuries. Their job responsibilities include

attend ing practices and sporting events,

maint aining treatment facilities, and working

with students undergoing rehabilitation. On

average, they work sixty hours a week.

* District Ju dge of the Eastern District of

Louisiana, sitting by designation.2

T he FLSA, 29 U.S.C. § 201 e t seq.

, requires employers to pay overtime for hours

worked in excess of forty i n a given work

week, but it exempts employees employed in a

bona fide professional, administrative, or executive capacity. 29 U.S.C. § 213(a)(1).

SAISD claims the trainers are subject to this

exemption.

II.

The district court granted the trainers’ motion for summary jud g ment in part, declaring

they are not exempted professionals under the

FLSA. It refused, however, to award

liquidated damages, because SA ISD had a

good faith and reaso nable belief that the

t rainers were exempt. S ee 29 U.S.C. § 260.

T he court granted SAISD’s summary

judgment motion in part, finding that one of

the trainers, Rex Hartwig, was employed in an

administrative capacity exempt fr om the

provisions of the FLSA under 29 C.F.R. §

541.2.

SAISD appeals the summary judgment regarding the exe mpt ion. The trainers crossappeal the holding that their j ob meets the

“learned” prong of the short test, the summary

judgment adverse to Hartwig, and the denial of

liquidated damages.

III.

A.

We r eview a summary judgment d e novo

,

e m ploying the same standards as did the

district court. S ee Urbano v. Continental

Airlines, Inc.

, 138 F.3d 2 04, 205 (5th Ci r.),

cert. denied

, 119 S.Ct. 509 (1998). Summary

judgment is appropr i ate when, viewing the

evidence in the light mo st favorabl e to the

nonmoving party, there is no genuine issue of

material fact and the moving p arty is entitled

t o judgment as a matter of law. S ee Celotex Corp. v. Catrett

, 477 U.S . 317, 322-24

(1986); s ee also F ED

. R. C IV

. P. 56( c). An

issue is genuine if the evidence is sufficient for

a reasonable jury to return a verdict for the

nonmoving party. A nderson v. Liberty Lobby,

Inc. , 106 S.Ct. 2505, 2510 (1986).

The employer bears the burden of proving

exempt st atus. P aul v. Petroleum Equip.

Tools Co.

, 708 F.2d 168, 169 (5th Cir. 1983).

The employer’s claim of exemptio n must be

construed narrowly and in fa vor of the

employee. S ee Brennan v. G r een’s Propane

Gas Serv., Inc.

, 479 F.2d 1027, 1032 (5th Cir.

1973). 1

B.

Both parties agree that the applicable test

for whether the plain t iffs qualify as

professionals is the following “short test” 2 set

forth in 29 C.F.R. § 541.3:

The term employee employed in a bona

fide

. . . professional capacity

. . . shall

mean any employee:

1 SAISD urges us t o review the legal

determination of exempt status under the FLSA as

a question of law while deferrin g to the district

court’s factual fi ndings for clear error. S ee

Dalheim v. KDFW-TV

, 918 F.2d 1220, 12 2 5-27

(5th Cir. 1990). The D alheim court, however, was

reviewing a judgment following a bench trial

, see

id

. at 1224, while we are reviewing a summa r y

judgment. Therefore, we review the judgment d e

novo and do not give the factual findings any

deference.

2 The parties stipulate that th e plaintiffs earn

more than $250 a week. Therefore, Department of

Labor regula tions instruct that the exemption status

can be determined via the streamlined “short test”

described in 29 C.F.R. §§ 541.3(e), .3 15. S ee

Paul , 708 F.2d at 170.3

( a) Whose primary duty consists of the

performance of:

(1) Work requiring knowledge

of an advanc ed type in a field

of sci ence or learning

customaril

y 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, . . . and

(b) Whose work requires the consistent

exer cise of discretion and judgment in

its performance.

In ruling on the motions for summary judgment, the district court held that because of the

requirement to take fifteen hours of s pecific

college -level courses, the trainer position required learning customarily acquired through

specialized intellectual instru ct ion. With respect to the second prong, whether the work

required con s istent exercise of discretion and

judgment, the court held that the trainers may

make decisions only within a well-defined and

regulated framework, and the application of

their speci a lized knowledge is limit ed to

enumerated pre-set situations. Therefore, it

found that the trainers are not exempt

professionals under the FLSA.

1.

Trainers in Texas must ob tai n a state

license. State regulations provide a number of

options to meet the requirements to be a trainer, the most lenient of which is the following: 3

(1) a bachelor’s degree in any field;

(2) 1800 hours of apprentice ship over

a three-year period;

(3) completion of 5 3-hour credit

college co urses in (a) human

anat o my; (b) health, disease,

nutrition, fitness, wellness, or drug

and alco hol education; (c)

kinesiology; (d) human physiology

or physiology of exercise; a n d (e)

athletic training; and

(4) a C.P.R. test.

25 T EX

. A DMIN

. C O DE § 313.5. The district

court found th at , at a minimum, an SAISD

athletic trainer must obtain education beyond

a high school level and that the education requires a certain amount of specialization in human anatomy and physiology . These

requirements are enough, the court held, to

satisfy the “learned” prong.

On cross-appeal, the trainers challenge the

finding in two w ays. First, they submit an

opinion letter from the Wage and H ours

Divis io n of the Department of Labor stating

3 The trainers concede that the ot h er two

e ducational prerequisites for SAISD athlet i c

trainers, degrees in physical or corrective therapy,

are more specialized than is the requirement of 15

credit hours, and they therefore focus on the most

lenient requirements when discussing the “learned”

prong.4

that athletic trainers in Kansas do not meet the

“learned” prong of the professional exemption.

They t hen ask us to defer to this agency

interpretation unless it is manifest ly contrary to

statute. The opinion letter, the trainers assert,

repres ent s an agency interpretation and

requires us to hold the plaint iffs “non-exempt”

under the “learned” prong.

While the trainers ar e correct that we

should defer to the agency’s interpretation of

a st at ut e, this only means that we should

foll o w t he guidelines set forth in § 541.3. It

does not me an that the Secretary’s views on

§ 541.3 are always controlling. The case the

trainers ci te 4 stands only fo r t he

uncontroversial proposition that agency interpretations of statutes should be give n

deference und er C hevron U.S.A., Inc. v.

National Resources Defe nse Council, Inc.,

467 U.S. 837 (1984). Opinion letters, which

are issued without the formal notice and rulemaking procedur es of the Administrative

P rocedure Act, do not receive the same kin d

of Chevron deference as do admi nistrative

regulations. 5 We therefore consider the 1993 opinion letter as persuasive, but we have no obligation to

defer to its interpretation, especially given that

it does not even deal with th e same facts as

thos e in t he case s ub judice. T he Kansas

athletic trainers that were the subject of its

opinion did not have a credit-hour requirement

similar t o t he fifteen credit-hours required in

Texas. Therefore, while the letter suggests

that athletic trainers in general do not meet the

learned prong, it does not account for the additional specialized training in the form of the

credit-hours Texas requires. For this reason,

the letter’s analysis is inapposite.

In their second challenge, the trainers baldly

conclude that a mere fifteen credit-hours cannot be compared to the advanced type of study

required for professions such as law, medicine,

and teaching that are specifically contemplated

by the professional exemption. S ee 29 C.F.R.

§ 541.301(e)(1). We agree with the district

court, however, t hat brevity of the trainers’

course of specialized study does not preclude

its inclusion under the “learned” prong. Unlike

the case relied on by the trainers, 6 in which the

claimants were not required to take any

specific college courses to qualify for their job, 4 Auer v. Robbins , 519 U.S. 452 (1997).

5 See Kilgore v. Outback St eakhouse, Inc

, 160 F.3d 294, 302 (6th Cir. 1998); Reich v. Parker Fire Protection Dist. , 992 F.2d 1023, 1026

(10th Cir. 1993) (refusing to g ive C hevron

deference to Wage and Hour Administrator

Opinion Letters). T his does not mean that such

opinion letters are to be completely disregarded.

For instance, this court has held that opinion letters

of an admini strative agency, although less authoritative than regulations or formal decisions, are

entitled to be "weighed carefully" and to "gr ea t

deference" if they state a reasonable conclusion.

See Coca-Cola Co. v. Atchison, Topeka & Santa

(continued...) (...continued)

Fe Ry. , 608 F.2d 213, 222 (5th Cir. 1978).

6 Dybach v. Florida Dep’t of Corr ections

, 942 F.2d 1562 (11th Cir. 1991).5

the trainers must take a specif ied number of

specialized courses directly re l ated to their

professional duties in sports medicine and athletic training.

The tr ainers’ 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 o perati ons

was enough to satisfy the “l e arned” prong.

See Paul

, 7 08 F.2d at 172. Even though the

pi lo ts did not obtain a college degree, their

“extensive knowledge of aerodynamics,

airplane regulations, airplane operations, [and]

instrument procedures” convinced us that their

train ing was as complex as that of “nurses,

accountants, and actu a rial computants” who

are regarded as employees in learned

professions. See id. at 172-73.

Similarly, the trainers are required to obtain

an universi

t y degree and to undergo

specialized training in subjects such as human

ana t omy, physiology, and sports medicine.

We therefore affirm the finding that t h e

plaint iffs meet the “learned” prong of the professional exemption.

2.

To qualify the trainers for the professional

exemption, SAISD must also show that the

trainers’ work “requires the consis tent exercise

of discretion and judgment in its performance.”

29 C.F.R. § 541.3. Though the district court

determin ed that the trainers satisfied the

“learned” prong, it found that they did not

ult ima t ely qualify for the exemption, because

their work does not require the exercise of discretion. The court based its ruling on two

grounds, neither of which is persuasive.

First, the court found that the trainers work

under the supervision of a physician. In making this determinati o n, it relied on SAISD’s

job description, which states that trainers “will

. . . act under the supervision and the direction

of the team physician.”

We disagree, ho wever, that the stipulated

job description suppor ts the j udgment. Notwithstanding the “supervision and direction”

language , the job description also indicates

that the trainers exercise a substantial amount

of discretion in the performance of their duties.

F or instance, the trainers are expected to

(1) establish specific procedures to be carried6

out by a coach and/or student t rainer in the

event of an emergency when care of an athlete

is needed; (2) be responsible for communication wi t h parents, physicians, coordinating

tra iner, and coaches concerning injured athletes; and (3) determine the athlete’s return to

practice or playing status, following an athletic

injury. In listing these discretionary responsibilit ies, the job description does no t make

any reference to the supervising physician except to point out that a player’s return after an

injury may also be determined by a physician. 7

The job description states that trainers “will

also act under the supervision and the direction of the team physician” (emphasis added).

This further supports our view that the trainers

act independently to exercise t heir own judgment and discretion and that the y sometimes

act under the supervision of a physician. Accordingly, the district’s court’s reliance on the

job description does not support its ruling.

The court also decided that the trainers do

not exercise discretion because they use “their

advanced training and experience to make decisions

. . . only

wit hin a well-defined framework.” S ee Hashop v. Rockw ell Space Operations Co.

, 867 F. Supp. 1287, 1298 (S.D. Tex.

1994). Examining a stipulation of the trainers’

duties and responsib ilities, the district court

observed that over 45 of the 77 enumerated

responsibilities set forth in the guide lines require the t rainers to act under standard treatment guidelines. The court further noted that

the remaining 30 or so responsibilities are routine acts that do not require the application of specialized knowledge or training.

Our review of this stipulation leads us to a

different conclusion. While many of the trainers’ duties are limit

ed to actions within the

“standard treatment guidelines,” we agree with

SAISD that reliance on such gu i delines does

not, by itself, indicate the lack of professional

discretion and judg ment. In the context of

finding nurses to be exempt professionals, for

example, one court has observed that “the fact

that a standard remedy is prescribed for a designated injury or complaint d o es not detract

from the analysis and training and skill necessar y to determine the extent and seriousness,

and often the typ e o f injury or complaint, as

well as what particular remedy should be given

or applied.” H

ofer v. Federal Cartridge

Corp.

, 71 F. Supp. 243, 244-4 5 (D.C. Minn.

1947).

Several of the trainers’ stipulated duties fit

within Hofer 's category of discretionary skills

applied within a sta ndard fram ework. For

example, trainers must (1) assess[] the extent

of an injury based on standard treatment

guidelines; (2) perform neurological evaluations by assessing consciousness, intellectual

performance, sensation, and movement according to standard guidelines; and (3) determine whether the athlete c ontinues to

practice/play af

t er an injury, based on wellestablished tests and criteria when a physician

is not present. In exercising any of these

duties, the trainer wil l have to apply his own

skills and training to diagnose injuries or make

judgments about an athlete’s suitabil it y for

further action.

The trainers rely on Q uirk v. Baltimore

C ounty , 895 F. Supp. 773 (D. Md. 1995),

which held that emergency response p aramedi cs do not exercise discretion and judg- 7 The jo b description adds this parenthetical

comment: “Return m ay also be determined by a

team physician.” This language weighs against the

district court’s assumption that trainers act under

the supervision of physicians at all times.7

ment, because they follow highly specific medical protocol s. Q uirk is distinguishable, because paramedics work on a daily b asis with

their supervis ing physicians under the expectat io n of physician intervention immediately

following emergenc y treatment. In contrast,

the trainers operate independentl y when they

assess an athlete’s injury and when they make

decisions on whethe r the athlete should seek

further medical attention, sit out the remainder

of practice or a game, or continue athletic activity. There is no immediate expect at ion of

physi cian intervention, and, as we have said,

there is no evidence that the physicians supervise the trainers’ activities at all times, or even

most of the time.

The existence of standard procedures and

guidelines does not mean that the trainers’ responsibilities do not require the type of consistent exercise of inde pendent discretion and

judgment this court has found characteristic of

other professionals. In P aul

, 708 F.2d at 171,

we found that pilots exe rcised discretion and

judgment in deciding whether to fly, selecting

the safest route, and responding to unexpected

airborne events, even though they also operated under ext ensive procedures and guidelines.

Like the pilots in Paul

, the trainers must

make decisions on whether an athlete must be

sent to a hospital or can continue to participate

in athletic events. The trainers aver that unlike

the pilots, they do not have to make decisions

“about problems to which there were often no

recognized or established answers.” S ee id

.

at 170. Trainers, however, must also respond

to emergencies and make quick, in d ependent

judgments about how to deal with unexpected injuries. 8 These sorts of import ant and complex decisions, which require trainers i ndependently t o apply their experience and advanced training in human a nat o my and medicine, satisfy the “discretion” prong. Therefore,

we reverse the summary judgment granted to

the trainers on this question. 9

IV.

Because the court erred in finding that the

trainers did not exercise discret io n and independent judgment, we REVER SE its partial

summary judgment granted to t he trainers.

Our review of the record , which consists

mos t ly of stipulated evidence not raising any

disputes of material fact, also permits us to

RENDER summary j udgment in favor of

SAISD, because it successfully has demonstrated that the trainers qualify for the professional exemption under the “learned” and “discretion” prongs of the FLSA’s short test.

REVERSED AND RENDERED.

8 The trainers argue that in responding to emergenci e s, they simply follow standard procedures

and call for emer gency medical support. We are

convinced, however, that even making this initial

assessment of a potentially serious injury involves

discretion and jud gment in deciding, for instance,

whether to move the athlete fr om the field and

whether the injury is serious enough to merit EMS

support. Emergency response paramedics have no

such discretion.

9 The trainers cross-appeal the partial summary

judgment to SAISD dec laring that Hartwig is

exempt from overtime benefits as an

“administr ator,” and the refusal to award

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 ’ crossappeal for prejudgment interest.