* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 18 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY D. SLAVENS, Plaintiff - Appellant, vs. SCENIC AVIATION, INC., Defendant - Appellee. No. 99-4197 (D.C. No. 99-CV-259) (D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.
Plaintiff-Appellant Gary Slavens appeals from the d istrict court’s grant of summary judgment in favor of Defendant-Appellee Sce nic Aviation (“Scenic”). Scenic operates primarily as an air ambulance and c harter service, while occasionally carrying air cargo. Mr. Slavens worke d for Scenic as its Vice President of Medical Operations beginning in January of 1998. After he was terminated, Mr. Slavens alleged that he should have been paid for approximately 600 hours of overtime that he worked while employed with Scenic. Mr. Slavens- 2 -

argues that failure to pay him for his overtime was a violation of the Fair Labor Standards Act (“FLSA”). The district court granted summary judgment in favor of Scenic, holding that Scenic is governed by the R ailway Labor Act (“RLA”) and is therefore exempt from the FLSA. On appeal, Mr. Slavens argues that (1) Scenic is not governed by the RLA; (2) he is not an “employee” as that term is defined by the FLSA, and thus cannot fall under the RLA exemption; and (3) his job duties are too far removed from any air carrierservices to be governed by the RLA. Our jurisdiction arises under 28 U.S.C. § 129 1 and we affirm.

Discussion We review a grant of summary judgment de novo. In doing so, we apply the same standard as the district court to determin e whether there is a genuine issue of material fact, and whether defendant is en titled to judgment as a matter of law. See Southwestern Bell Wireless, Inc. v. Johnson CountyBd. of County
Comm'rs , 199 F.3d 1185, 1189 (10th Cir. 1999). We examine the entire factual record and any reasonable inferences which may be d rawn from it in the light most favorable to the Plaintiffs. See Chessin v. Keystone Resort Management,
Inc. , 184 F.3d 1188, 1191-92 (10th Cir. 1999). (1) Scenic is governed by the RLA The Railway Labor Act covers “every common carrier by air engaged in- 3 -

interstate or foreign commerce.” 45 U.S.C. § 181. The FLSA expressly exempts air carriers subject to the RLA from the FLSA’s overtime provisions. See 29 U.S.C. § 213(b)(3). Mr. Slavens is correct in asse rting that exemptions to the FLSA are to be narrowly construed against the employer. See Chessin , 184 F.3d at 1192. However, in this case, the operations of Scenic are clearly within the exemption’s terms and spirit. Thus, if Scenic is c overed by the RLA, it is not subject to the FLSA’s overtime provisions. See Northwest Airlines, Inc. v. Jackson , 185 F.2d 74, 77 (8th Cir. 1950). Mr. Slavens contends that Scenic does not itself pr ovide any carrier services, but rather simply owns and manages severa l other companies, which do perform air carrier services. Therefore, Mr. Slave ns argues, Scenic is not a common carrier by air, and therefore not covered bythe RLA. The evidence, however, is undisputed. Scenic is not merely a man agement company. Approximately 90-95 percent of Scenic’s revenues ar e attributable to its air ambulance and charter service. Further, Scenic hold s an Air Carrier Certificate from the Federal Aviation Administration (“FAA”) au thorizing Scenic to “operate as an air carrier and conduct common carri age operations.” Scenic’s sole purpose for existence is to provide air carrie r services; the fact that it conducts business using several other assumed names is irrelevant. See e.g. , In re Rocky Mountain Holdings, L.L.C. d/b/a/ Eagle Airmed of Arizona , No. CJ-- 4 -

6638, 1999 WL 17850 (N.M.B. Jan. 12, 1999). We agr ee with the district court that there is no genuine issue of material fact that Scenic is a common carrier by air involved in interstate commerce. Therefore, itis governed by the RLA and exempt from the overtime provisions of the FLSA. (2) Mr. Slavens is an “employee” of Scenic The FLSA exempts from its overtime provisions any “ employee of a carrier by air subject to [the Railway Labor Act].” 29 U.S .C. § 213(b)(3) (emphasis added). Mr. Slavens argues he is not an “employee” of Scenic for purposes of the FLSA by pointing to the FLSA’s definition of employee (any person “employed by an employer”) and its definition of employer (which “includes any person acting directly or indirectly in the interes t of an employer in relation to an employee.”) 29 U.S.C. §§ 203(e)(1), 203(d). Neither party disputes that Mr. Slavens, as Vice Pr esident of Medical Operations, worked for Scenic in a management/supervisory capacity. Mr. Slavens contends that, in doing this work, he was “ acting directly or indirectly in the interest of” Scenic, and should therefore be cl assified as an employer rather than an employee under the FLSA. Further, he claim s that, as a manager, he would always represent management rather than emplo yees in labor disputes, thus making him an employer. If classified as an employ er rather than an employee, Mr. Slavens believes he would be eligible for overt ime benefits under the FLSA,- 5 -

because the exemption only applies to employees subject to the RLA. However, the FLSA also clearly exempts from its ove rtime provisions “any employee employed in a bona fide executive, adminis trative, or professional capacity.” 29 U.S.C. § 213(a)(1). Mr. Slavens’ cl aim to be a manager would appear to place him squarely in this exempt category, making him ineligible for overtime pay. Mr. Slavens has given us no cases to support his position that he can be a subordinate employee (thus falling outside of the § 213(a)(1) exemption) while simultaneously being an employer for purposes of escaping the RLA exemption. We agree with the district court that M r. Slavens is an employee of Scenic as defined by the FLSA. (3) Mr. Slavens’ job duties were directly related to S cenic’s air carrier services Mr. Slavens correctly points out that even if Sceni c is subject to the RLA, not all of Scenic’s employees are necessarily cover ed by the overtime exemption of the RLA. The RLA was not intended to apply to a ll types of work, regardless of the connection to transportation, just because t he company conducting the work performed some carrier activities within its company functions. See Northwest Airlines , 185 F.2d at 77. Rather, the Act “‘was intended t o apply only to transportation activities and that work which be ars more than a tenuous, negligible and remote relationship to the transport ation activities [of the- 6 -

employer].’” Id. (citation omitted). Mr. Slavens argues that, because he had no day-to-d ay responsibilities over any pilots or airplanes, nor any knowledge of when various flights were taking place, his duties were tenuous, negligible, and rem ote with respect to Scenic’s transportation activities, and he is not covered bythe RLA. However, Mr. Slavens’ duties were directly related to Scenic’s o perations as an air ambulance company. In his affidavit, Mr. Slavens characteriz ed his job duties as “primarily focused on evaluating the medical background of pot ential medical staff for proper qualifications, establishing medical protoco ls, establishing company policies and procedures, informing hospitals of the services and resolving personnel disputes.” Aplee. Supp. App. at 30 ¶15. Far from being “remote, tenuous, or negligible,” these support activities are integral to Scenic’s air ambulance services. Scenic, which derives 90-95 pe rcent of its revenues from its air ambulance services, simply could not perform th ese services without such support activities. Cf. Pan American World Airways, Inc. v. United Bhd. of Carpenters & Joiners of America , 324 F.2d 217, 220 (9th Cir. 1963) (finding that preventive maintenance work at a nuclear research d evelopment station performed by employees of an airline was too remote from transportation to be within the application of the RLA); Marshall v. Pan American World Airways,
Inc. , 1977 WL 1772, at *5 (M.D. Fla. Aug. 8, 1977) (giv ing as an example of an- 7 -

activity that is remote, tenuous, or negligible the operation of a hotel by airline employees). Because we hold that Scenic Aviation is a common c arrier by air subject to the RLA, that Mr. Slavens was an emp loyee of Scenic for purposes of the RLA, and that his job duties with Scenic wer e not remote, tenuous, or negligible with respect to Scenic’s transportation activities, the district court’s grant of summary judgment to defendant Scenic Aviation is AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge