FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 November 30, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16433

________________________

D. C. Docket No. 04-60904-CV-PAS

DIANE JUDSON, 

NIGEL C. SIMPSON,

on behalf of themselves and all

others similarly situated,

Plaintiffs- Appellants,

versus

JM FAMILY ENTERPRISES, INC.,

a Delaware Corporation, and

SOUTHEAST TOYOTA DISTRIBUTORS, LLC, 

a Florida Corporation,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(November 30, 2006)
* Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting by

designation.

2

Before PRYOR, FAY and REAVLEY , Circuit Judges.

*

PER CURIAM:

The summary judgment entered in favor of the defendants/appellees is

affirmed for the reasons set forth in the very thorough and scholarly ORDER

GRANTING MOTION FOR SUMMARY JUDGMENT entered by the district

court on October 17, 2005, with one minor exception that does not change the

result. On page 10 of its opinion, the district court stated:

Plaintiffs argue that they were not salaried employees because

Defendants required them “to submit a time report and use personal

or vacation time to be paid” when they were going to be away from

the office. This argument, however, is not supported by the record. 

Rather, while the record indicates that Plaintiffs could use personal or

vacation time when they were away from work, neither Ms. Parks nor

Ms. Mangini testified that Defendants required Plaintiffs to use their

personal or vacation time for such absenses.

A review of the record convinces us that this statement is incorrect. The

plaintiffs alleged that they were required to use personal or vacation time if they

were away from work for more than four hours. Ms. Mangini testified in her

deposition that if the plaintiffs were away from work for more than fours hours

they were “required to put it in writing that [they were] using personal time or

vacation time.” Mangini depo at 10:18-19.
3

However, it is clear that plaintiffs were paid on a salary basis. The

Department of Labor regulation requires that the amount of compensation not be

reduced depending on the quality or quantity of work performed. An employee is

considered to be paid on a salary basis if “he regularly receives each pay period on

a weekly, or less frequent basis, a predetermined amount constituting all or part of

his compensation, which amount is not subject to reduction because of variations

in the quality or quantity of the work performed.” 29 C.F.R § 541.118. The

Department of Labor has opined that it is permissible to charge a salaried

employee’s leave bank for partial day absences. “Where an employer has a

benefits plan (e.g., vacation time, sick leave), it is permissible to substitute or

reduce the accrued leave in the plan for the time an employee is absent from work,

whether the absence is a partial day or a full day, without affecting the salary basis

of payment, if the employee nevertheless receives in payment his or her

guaranteed salary.” 2005 WL 330606, FLSA 2005-7. Because there is no dispute

that the plaintiffs were paid a predetermined amount every pay period and that

amount was not subject to variations, they were salaried employees and summary

judgment was proper.

AFFIRMED.