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 to a group of athletic

trainers. Concluding that the trainers are

professionals exempt from the FLSA's

overtime benefits requirements, we reverse and

render summary judgment in favor of SAISD.

I.

The plaintiffs 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 rehabilitate athletes

frominjuries. Their job responsibilities include

attending practices and sporting events,

maintaining treatment facilities, and working

with students undergoing rehabilitation. On

average, they work sixty hours a week. 

 

* District Judge of the Eastern District of

Louisiana, sitting by designation.
2

The FLSA, 29 U.S.C. § 201 et seq.,

requires employers to pay overtime for hours

worked in excess of forty in 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 judgment in part, declaring

they are not exempted professionals under the

FLSA. It refused, however, to award

liquidated damages, because SAISD had a

good faith and reaso nable belief that the

trainers were exempt. See 29 U.S.C. § 260.

The court granted SAISD’s summary

judgment motion in part, finding that one of

the trainers, Rex Hartwig, was employed in an

administrative capacity exempt from the

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

541.2. 

SAISD appeals the summary judgment regarding the exemption. The trainers crossappeal the holding that their job meets the

“learned” prong of the short test, the summary

judgment adverse to Hartwig, and the denialof

liquidated damages.

III.

A.

We review a summary judgment de novo,

employing the same standards as did the

district court. See Urbano v. Continental

Airlines, Inc., 138 F.3d 204, 205 (5th Cir.),

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

judgment is appropriate when, viewing the

evidence in the light most favorable to the

nonmoving party, there is no genuine issue of

material fact and the moving party is entitled

to judgment as a matter of law. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322-24

(1986); see also FED. R. CIV. P. 56(c). An

issue is genuine if the evidence is sufficient for

a reasonable jury to return a verdict for the

nonmoving party. Anderson v. Liberty Lobby,

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

The employer bears the burden of proving

exempt status. Paul v. Petroleum Equip.

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

The employer’s claim of exemption must be

construed narrowly and in favor of the

employee. See Brennan v. Green’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 plaintiffs qualify as

professionals is the following “short test”2set

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 to review the legal

determination of exempt status under the FLSA as

a question of law while deferring to the district

court’s factual findings for clear error. See

Dalheim v. KDFW-TV, 918 F.2d 1220, 1225-27

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

reviewing a judgment following a bench trial, see

id. at 1224, while we are reviewing a summary

judgment. Therefore, we review the judgment de

novo and do not give the factual findings any

deference.

 

2 The parties stipulate that the plaintiffs earn

more than $250 a week. Therefore, Department of

Laborregulations instruct that the exemption status

can be determined via the streamlined “short test”

described in 29 C.F.R. §§ 541.3(e), .315. See

Paul, 708 F.2d at 170. 
3

(a) Whose primary duty consists of the

performance of:

(1) Work requiring knowledge

of an advanced type in a field

of science or learning

customarily acquired by a

prolonged course of

specialized intellectual

instruction and study, as distinguished from a general academic education and from an

apprenticeship, and fromtraining in the performance of

routine mental, manual or

physical processes, . . . and

(b) Whose work requires the consistent

exercise of discretion and judgment in

its performance.

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

requirement to take fifteen hours of specific

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

specialized intellectual instruction. With respect to the second prong, whether the work

required consistent 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 specialized knowledge is limited to

enumerated pre-set situations. Therefore, it

found that the trainers are not exempt

professionals under the FLSA.

1.

Trainers in Texas must obtain a state

license. State regulations provide a number of

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

(1) a bachelor’s degree in any field;

(2) 1800 hours of apprenticeship over

a three-year period;

(3) completion of 5 3-hour credit

college courses in (a) human

anatomy; (b) health, disease,

nutrition, fitness, wellness, or drug

and alcohol education; (c)

kinesiology; (d) human physiology

or physiology of exercise; and (e)

athletic training; and

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

25 TEX. ADMIN. CODE § 313.5. The district

court found that, at a minimum, an SAISD

athletic trainer must obtain education beyond

a high school level and that the education requires a certain amount ofspecialization 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 ways. First, they submit an

opinion letter from the Wage and Hours

Division of the Department of Labor stating

 

3 The trainers concede that the other two

educational prerequisites for SAISD athletic

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 trainersin Kansas do not meet the

“learned” prong ofthe professionalexemption.

They then ask us to defer to this agency

interpretation unlessit ismanifestlycontraryto

statute. The opinion letter, the trainers assert,

represents an agency interpretation and

requires usto hold the plaintiffs “non-exempt”

under the “learned” prong. 

While the trainers are correct that we

should defer to the agency’s interpretation of

a statute, this only means that we should

follow the guidelines set forth in § 541.3. It

does not mean that the Secretary’s views on

§ 541.3 are always controlling. The case the

trainers cite4 stands only for the

uncontroversial proposition that agency interpretations of statutes should be given

deference under Chevron U.S.A., Inc. v.

National Resources Defense Council, Inc.,

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

are issued without the formal notice and rulemaking procedures of the Administrative

Procedure Act, do not receive the same kind

of Chevron deference as do administrative

regulations.5

We therefore considerthe 1993 opinion letter as persuasive, but we have no obligation to

defer to itsinterpretation, especially given that

it does not even deal with the same facts as

those in the case sub judice. The Kansas

athletic trainers that were the subject of its

opinion did not have a credit-hourrequirement

similar to the fifteen credit-hours required in

Texas. Therefore, while the letter suggests

that athletic trainersin 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.

Intheirsecond challenge, the trainers baldly

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

required for professionssuch aslaw, medicine,

and teaching that are specificallycontemplated

by the professional exemption. See 29 C.F.R.

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

court, however, that brevity of the trainers’

course of specialized study does not preclude

itsinclusion under the “learned” prong. Unlike

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

claimants were not required to take any

specific college coursesto qualify for theirjob,

 

4 Auer v. Robbins, 519 U.S. 452 (1997).

 

5

See Kilgore v. Outback Steakhouse, 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 give Chevron

deference to Wage and Hour Administrator

Opinion Letters). This does not mean that such

opinion letters are to be completely disregarded.

For instance, this court has held that opinion letters

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

entitled to be "weighed carefully" and to "great

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 Corrections,

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

the trainers must take a specified number of

specialized courses directly related to their

professional dutiesin sports medicine and athletic 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 usthat 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. 

Similarly, the trainers are required to obtain

an university degree and to undergo

specialized training in subjects such as human

anatomy, physiology, and sports medicine.

We therefore affirm the finding that the

plaintiffs 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 “requiresthe consistent exercise

ofdiscretionand judgment inits performance.”

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

determined that the trainers satisfied the

“learned” prong, it found that they did not

ultimately 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 determination, it relied on SAISD’s

job description, which statesthat trainers “will

. . . act under the supervision and the direction

of the team physician.”

We disagree, however, that the stipulated

job description supports the judgment. Notwithstanding the “supervision and direction”

language, the job description also indicates

that the trainers exercise a substantial amount

of discretion in the performance oftheir duties.

For instance, the trainers are expected to

(1) establish specific procedures to be carried
6

out by a coach and/or student trainer in the

event of an emergency when care of an athlete

is needed; (2) be responsible for communication with parents, physicians, coordinating

trainer, 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 responsibilities, the job description does not 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 statesthat trainers “will

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

Thisfurthersupports our view that the trainers

act independently to exercise their own judgment and discretion and that they sometimes

act under the supervision of a physician. Accordingly, the district’s court’sreliance 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 within a well-defined framework.” See Hashop v. Rockwell Space Operations Co., 867 F. Supp. 1287, 1298 (S.D. Tex.

1994). Examining a stipulation of the trainers’

duties and responsibilities, the district court

observed that over 45 of the 77 enumerated

responsibilities set forth in the guidelines require the trainers to act under standard treatment guidelines. The court further noted that

the remaining 30 orso 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 limited to actions within the

“standard treatment guidelines,”we agreewith

SAISD that reliance on such guidelines does

not, by itself, indicate the lack of professional

discretion and judgment. 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 does not detract

from the analysis and training and skill necessary to determine the extent and seriousness,

and often the type of injury or complaint, as

well as what particularremedy should be given

or applied.” Hofer v. Federal Cartridge

Corp., 71 F. Supp. 243, 244-45 (D.C. Minn.

1947).

Several of the trainers’ stipulated duties fit

within Hofer's category of discretionary skills

applied within a standard framework. 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 continues to

practice/play after an injury, based on wellestablished tests and criteria when a physician

is not present. In exercising any of these

duties, the trainer will have to apply his own

skills and training to diagnose injuries or make

judgments about an athlete’s suitability for

further action. 

The trainers rely on Quirk v. Baltimore

County, 895 F. Supp. 773 (D. Md. 1995),

which held that emergency response paramedics do not exercise discretion and judg-

 

7 The job description adds this parenthetical

comment: “Return may also be determined by a

teamphysician.” 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 specificmedical protocols. Quirk is distinguishable, because paramedics work on a daily basis with

their supervising physicians under the expectation of physician intervention immediately

following emergency treatment. In contrast,

the trainers operate independently when they

assess an athlete’s injury and when they make

decisions on whether the athlete should seek

further medical attention,sit out the remainder

of practice or a game, or continue athletic activity. There is no immediate expectation of

physician 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 independent discretion and

judgment this court hasfound characteristic of

other professionals. In Paul, 708 F.2d at 171,

we found that pilots exercised discretion and

judgment in deciding whether to fly, selecting

the safest route, and responding to unexpected

airborne events, even though they also operated under extensive 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.” See id.

at 170. Trainers, however, must also respond

to emergencies and make quick, independent

judgments about how to deal with unexpected

injuries.8 These sorts of important and complex decisions, which require trainers independently to apply their experience and advanced training in human anatomy and medicine,satisfythe “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 discretion and independent judgment, we REVERSE its partial

summary judgment granted to the trainers.

Our review of the record, which consists

mostly of stipulated evidence not raising any

disputes of material fact, also permits us to

RENDER summary judgment 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 emergencies, they simply follow standard procedures

and call for emergency medical support. We are

convinced, however, that even making this initial

assessment of a potentially serious injury involves

discretion and judgment in deciding, for instance,

whether to move the athlete from 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 declaring that Hartwig is

exempt from overtime benefits as an

“administrator,” 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.