# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 22

- 20095

**Jose Flores; Jean Romero**

**- Rodriguez; Brandon**  **Villarreal,**
Plaintiffs

— Appellants **,**

versus
**FS Blinds, L.L.C.,**
Defendant

— Appellee

**.**

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19

- cv

- 4114

Before **Wien er, Higginson,**  and **Wilson ,**  Circuit Judges

**.** ***** **Cory T. Wilson,** Circuit Judge **:**
This is an overtime case . T hree installers of window blinds sued FS Blinds , L.L.C. , the company for wh ich they worked. The district court granted summary judgment to FS Blinds, determining that Plaintiffs had not met their prima facie burden to show they worked overtime

. The court dismissed the case , and Plaintiffs appealed

.

* **J udge**  **W iener**  concurs only in the judgment. United States Court of Appeals Fifth Circuit 

### FILED July 12, 2023 Lyle W. Cayce Clerk Case: 22-20095 Document: 00516818139 Page: 1 Date Filed: 07/12/2023No. 22

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2 We reverse

. Plaintiffs have met the lenient standard under Anderson v. Mt

. Clemens Pottery Co. , 328 U.S. 680, 686

– 8 8 (1946) , and therefore survive summary judgment , at least as to whether, if employees, Plaintiffs worked overtime

. But w e decline to reach whether Plai ntiffs were employees or independent contractors and instead remand for the district court to consider that question anew in view of this opinion

. I. FS Blinds, a seller and installer of window blinds in Texas, engaged Plaintiffs Jose Flores, Jean Romero

- R odriguez, and Brandon Villarreal to install blinds. Flores worked for FS Blinds from mid

- April 2018 until early October 2019. Romero

- Rodriguez did so from early March until late October
2019 , and Villareal worked from early August 2018 until early April 2020, though he performed no work for FS Blinds for several weeks during that period

. Plaintiffs measured windows for blinds, delivered and installed blinds, and repair ed damaged blinds , mostly in newly constructed homes . While the company’s office and warehouse are in Pearland, Plaintiffs traveled to job sites across the greater Houston area

. Because FS Blinds treated Plaintiffs as independent contractors, it did not maintain records of the hours Plaintiffs spent perfo rming work for the company. Instead, Plaintiffs received flat fees for each window measurement , blinds installation , or blinds repair completed without regard to how long the job took or the travel time from one job site to the next

. FS Blinds owned the warehouse and maintained the inventory of blinds, but Plaintiffs traveled to job sites in their own vehicles and used their own tools to complete the jobs

. Plaintiffs did not have set work schedules. Instead, e ach afternoon, FS Blinds sent them lists of jobs for the next day. The next morning, Plaintiffs picked up the day’s blinds from FS Blinds’s warehouse

. Flores and Case: 22-20095 Document: 00516818139 Page: 2 Date Filed: 07/12/2023No. 22

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3 Romero

- Rodriguez had early pickup times, arriving at the warehouse between 5:00 and 5:30 a.m. Villarreal had a later time, between 7:00 and 8:00 a.m. After pickup, Plaintiffs left the warehouse and travel ed to job sites to complete their assignments

. Each Plaintiff w as largely responsible for managing his own schedule throughout the day. So long as t he day’s job list did not specif y otherwise, Plaintiffs could complete the jobs in any order they chose. And i f they failed to complete all the jobs on the day’s list, they could roll jobs over to the next day

. Plaintiffs’ daily quitting times varied. Flores usually finished between
8: 30 and 10:00 p.m. but sometimes worked as late as midnight. Romero

Rodriguez usually finished between 7:30 and 8:30 p.m. Villarreal , between 7:00 and 10:00 p.m.

While their usual weekly work schedules were Monday through Friday, Plaintiffs sometimes work ed Saturdays

. Other times, they worked fewer than five full days, at times working as little as one day a week. And as noted above, Villareal did no work at all for FS Blinds during several weeks over the course of his year

- and

- a

- half stint with the comp any. Despite the variations in their schedules, Plaintiffs assert they each worked an average of “around 70 hours per week.”

In October 2019 , Plaintiffs sued FS Blinds for failing to pay overtime compensation , as required under the Fair Labor Standards Act (FLSA). See 29 U.S.C. § 207 . FS Blinds counter ed that “Plaintiffs were classified as independent contractors ” and therefore were ineligible for overtime compensation. See i d. After discovery, b oth side s m oved for summary judgment. The district court denied Plaintiffs’ motion s , but it granted summary judgment to FS Blinds . The court determin ed that Plaintiffs had failed to meet their prima facie burden to show they worked overtime. Based on that conclusi on, Case: 22-20095 Document: 00516818139 Page: 3 Date Filed: 07/12/2023No. 22

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4 the court dismissed Plaintiffs’ claims. T he court denied summary judgment

as to whether Plaintiffs were independent contractors , stating only that “a genuine question of material fact exists regarding Plaintiffs’ employee status.” After t he district court entered its final judgment , Plaintiffs timely appealed

. II. We review a summary judgment de novo , applying the same legal standards as the district court. Certain Underwriters at Lloyd’s, London v. Axon Pressure Prod s . Inc. , 951 F.3d 248, 255 (5th Cir. 2020). “[O] n cross motions for summary judgment ,” we “ address [] each party’s motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.” CANarchy Craft Brewery Collecti ve , LLC v. Texas Alcoholic Beverage Comm’n , 37 F.4th 1069, 1074 (5th Cir. 2022) (quotation omitted). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a mat ter of law.” **F ED** 

**. R.**  **C IV** 

**. P.**  56(a).

I II

. The FLSA requires that employers pay certain employees overtime compensation. 29 U.S.C. § 207. Employers who fail to pay the requisite compensation are liable to the affected employees for unpaid overtime. Id. § 216(b). But t he statute’s overtime protections apply only to covered “employees , ” not to independent contractors. I d. § 207. This case centers on th e se two questions : ( A ) whether Plaintiffs w orked overtime for which they were not paid , and ( B ) whether they were employees of FS Blinds, or independent contractors. Case: 22-20095 Document: 00516818139 Page: 4 Date Filed: 07/12/2023No. 22

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5 A

. We begin with overtime. All parties agree that b ecause FS Blinds did

not keep records of Plaintiffs’ hours , the burden

- shifting standard from Mt. Clemens , 328 U.S. at 686

– 88, applies. T he district court determined that Plaintiffs had not met th eir prima facie burden under Mt. Clemens because they “fail[ed] to substantiate the ir overtime claims with any specific facts, relying on conclusory and speculative assertions.” But u nder our precedent, Mt. Clemens is a not a tall slope. Plaintiffs have summited it.

1. First, the Mt. Clemens standard. Usually , a plaintiff who brings a claim for unpaid overtime bears “the burden of proving that he performed work for which he was not properly compensated.” 328 U.S. at 687. This burden is “easily discharge[d]” where an employer keeps accurate records of an empl oyee’s hours, as the FLSA requires. Id. ; see also 29 U.S.C. § 211 ( providing that employers must “make, keep, and preserve” records of employees’ hours).

But Mt. Clemens recognized that the FLSA’s recordkeeping regime may inadvertently incentivize emplo yers to “fail[] to keep proper records” because those records may later aid a plaintiff in proving overtime liability. 328 U.S. at 687. Such a perverse incentive would “penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work , ” thereby contraven ing “[t]he remedial nature of [the FLSA] and the great public policy which it embodies.” Id. To alleviate this concern, the Supreme Court in Mt. Clemens created a burden

- shifting rule that applies when an employer has failed to keep records, or where such records are “inaccurate or inadequate.” Id. In such

cases, a plaintiff need only come forward with evidence that shows “ that he Case: 22-20095 Document: 00516818139 Page: 5 Date Filed: 07/12/2023No. 22

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6 has in fact performed work for which he was improperly compensated” and further shows “the amount and extent” of unpaid overtime worked “as a matter of just and reasonable inference.” Id. Under this relaxed standard, a p laintiff need not prove “t he precise extent of uncompensated work , ” i d. , though he must present more than “unsubstantiated assertions , ” Harvill v. Westward Commc’ns , L.L.C. , 433 F.3d 428, 441 (5th Cir. 2005).

Once a plaintiff has made this prima facie showing, “[t]he burden then shifts to the employer to come forward with evidence” that rebuts the plaintiff ’ s claims. Mt. Clemens , 328 U.S. at 687. The employer can discharge this burden by presenting either “evidence of the precise amount of work performed or

. . . evidence to neg ative the reasonableness of the inference to be drawn from the employee’s evidence .” Id. at 687

– 88. “ I f the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” Id. at 68 8.
While the Mt. Clemens framework might seem “lenient,” it is “rooted in the view that an employer [should not] benefit from its failure to keep required payroll records, thereby making the best evidence of damages unavailable.” U.S. Dep’t of Labor v. Five Star Automatic Fire Prot

. , L.L.C. , 987 F.3d 436, 440 (5th Cir. 2021).

2. Next, whether Plaintiffs have met their prima facie burden.

Plaintiffs each estimate an average workweek of 70 hours. 1 To substantiate this estimate, each Plaintiff testified about his usual work

1 The district court miscast Plaintiffs’ testimony to denote an “unwavering stance that they worked 70 hours per week even on weeks when doing so would be impossible.” To the contrary, Plaintiffs have consistently contended that they worked an average of 70 hours per week, not that they worked 70 hours every week. Case: 22-20095 Document: 00516818139 Page: 6 Date Filed: 07/12/2023No. 22

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7 schedule, including his usual daily start ing and quitting time s

. This testimony supported that Plaintiffs each averaged work days between 11 and 17 hours. Some of th is testimony was corroborated by testimony from FS Blinds. 2 In addition, Plaintiffs also produced work orders documenting the jobs they completed during a sample week. 3 Based on the record before us, Plaintiffs have presented enough to satisfy the ir “ lenient ” prima facie burden under Mt. Clemens

. See Five Star , 987 F.3d at 440. Their testimony alone would be sufficient

. See Hobbs v. EVO, Inc. , 7 F.4th 241, 257 (5th Cir. 2021) (“This leniency [under Mt. Clemens ] has led us to accept estimates of weekly overti me hours derived from plaintiffs’ testimony as adequate evidence[.]”); see also Beliz v. W.H. McLeod & Sons Packing Co. , 765 F.2d 1317, 1331 (5th Cir. 1985) ( finding
p laintiff s’ testimony regarding “personal knowledge of the work performed

. . . was suffic ient to establish, by reasonable inference, the hours worked” ); Hodgson v. Ricky Fashions, Inc. , 434 F.2d 1261, 1264 (5th Cir. 1970) ( same ). This is so even though P laintiffs’ testimony o ffers only an estimated average of hours worked. See Reeves v. Int’l Tel. and Tel. Corp. , 616 F.2d 1342, 1352 (5th Cir. 1980) ( finding plaintiffs met their burden by offering “an estimated average workweek of approximately 75 hours” ) ; see also Donovan v. Hamm’s Drive Inn , 661 F.2d 316, 318 (5th Cir. 1981) ( “The court found,

2 For example, an FS Blinds representative corroborated that installers beg a n arriving at the warehouse each morning at 5:30 a.m.

3 Using these records, Plaintiffs estimated hours worked during tha t sample week at well over 40 hours. Before the district court, Plaintiffs contended that these summary estimates were admissible under Rule 1006 of the Federal Rules of Evidence. But the district court n either mention ed the summaries in its order n or ru le d on the summaries’ admissibility

. FS Blinds now contends that these summaries are inadmissible, but the parties dispute whether FS Blinds properly preserved this issue by objecting in the district
court. W e need not decide the issue

. Even without the summaries, Plaintiffs ’ testimony and work orders are sufficient to establish the Mt. Clemens inference

. Case: 22-20095 Document: 00516818139 Page: 7 Date Filed: 07/12/2023No. 22

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8 based on the testimony of employees, that certain groups of employees averaged certain numbers of hours per week and awarded back pay based on those admittedly approximate calculations.” )

. In addition to their testimony , though, Plaintiffs offered s upporting work orders and some corroborating testimony from FS Blinds. All told, t his record evidence hurdles Plaintiffs’ Mt. Clemens burden

. See Skipper v. Superior Dairies, Inc. , 512 F.2d 409, 417 , 419 (5th Cir. 1975) ( holding p laintiff

met his burden by offering his own testimony and “73 different delivery lists” showing jobs he completed ) ; see also O’Meara

- Sterling v. Mitchell , 299 F.2d 401, 404 (5th Cir. 1962) ( finding plaintiff’s testimony and the timecards of his successor “ adequate” to meet his burden)

. The district court thus erred when it rejected Plaintiffs’ claims as no more than unsubstantiated assertions. It reached that conclusion r elying on Kirk v. Invesco, Limited , 700 F. App’x 334, 336 (5th Cir. 2017) , and Ihegw ord v. Harris County Hospital District , 929 F. Supp. 2d 635, 668 (S.D. Tex

. 2013)

. Of course, neither Kirk nor Ihegword is binding. 4 In any event, we do not find either case persuasive.

This case’s contrast with Harvill shows why. In Harvill , we rejected the plaintiff’s Mt. Clemens claim as mere “unsubstantiated assertion s ” because she “offered no factual allegations at all to substantiate her c laims,” including “ no evidence of the amount or the extent of hours she worked without compensation” and “ no evidence that [her employer] was aware she worked overtime hours without compensation.” 433 F.3d at 441 (emphas e s

4 This court’s unpublished opinions “do not establish any binding law for the circuit[.]” Salazar v. Molina , 37 F.4th 278, 286 (5th Cir. 2022). Likewise, “[a] decision of a federal district court

. . . is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” Camreta v. Gree ne , 563 U.S. 692, 709 n.7 (2011). Case: 22-20095 Document: 00516818139 Page: 8 Date Filed: 07/12/2023No. 22

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9 in original). Only on appeal did Harvill “add[] to her argument” an alleged number of unpaid overtime hours. Id. U nlike in Harvill , Plaintiffs here have sufficiently substantiated their claim, proffer ing not only an estimated number of unpaid overtime hours worked but also specific testimony and record s to support th eir estimates. 5

T he district court also conflated the lenient Mt. Clemens standard with the more stringent standard that applies in other overtime case s. T he district court relied on Garner v. Chevron Phillips Chemical Company, L.P. , for the proposition that each Plaintiff must “prov[e], with d efinite and certain evidence, that he performed work for which he was not properly compensated.” Garner , 834 F. Supp. 2d 528, 545

– 46 (S.D. Tex. 2011) . But

as Garner itself makes clear, id. at 546, t hat standard applies in overtime cases where the employe r has kept the required time records, not in Mt. Clemens

case s

. Considering the record before us and under the proper standard , Plaintiffs have met their prima facie burden.

3

. In response, FS Blinds must rebut Plaintiffs’ showing. Mt. Clemens , 328 U.S. at 687. Because FS Blinds did not keep records of Plaintiffs’ time, it cannot produce “evidence of the precise amount of work [Plaintiffs]

5 On appeal, FS Blinds points for support to Fairchild v. All American Check Cashing, Inc. , 815 F.3d 959 (5th Cir. 2016) , and Garcia v. U Pull It Auto & Truck Salvage, Inc. , 657 F. App’x 293 (5th Cir. 2016) . But both case s are inapposite. Fairchild does not involve the Mt. Clemens standard at all , as the employer there maintained timesheets. 815 F.3d at 965. I n Garcia , the plaintiff ’s assertions were insufficiently specific not because they failed to show he worked over time, but because they failed to show he worked overtime for which he was not paid

. 657 F. App’x at 29 7

– 9 8. That is not disputed here. We also note that Garcia is unpublished and, therefore, not precedential

. See Salazar , 37 F.4th at 286. Case: 22-20095 Document: 00516818139 Page: 9 Date Filed: 07/12/2023No. 22

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10 performed.” Id. But the company can “ ‘disprove’ the evidence ad duced ” by Plaintiffs. Skipper , 512 F.2d at 420. It fails to do so.

FS Blinds points to Plaintiffs’ deposition testimony and their vari ed weekly compensation. To be sure, FS Blinds is correct that Plaintiffs’ schedules varied week

- to

- week. But Plaintiffs have never assert ed that they worked 70 hours every week. Instead, they have consistently maintained that they worked an average of 70 hours per week. See supra n.1. Therefore, FS Blinds’s broad

- brush contention that Plaintiffs could not possibly have work ed 70 hours every week does not in itself overcome Plaintiffs’ overtime allegations.

At most , FS Blinds has identified certain weeks when each Plaintiff worked fewer than 70 hour s , or no overtime at all. But FS Blinds nowhere offers undisputed summary judgment evidence demonstrating that Plaintiffs did not work any unpaid overtime. Nor does FS Blinds counter Plaintiffs’ testimony about their usual start and end times. Thus, whi le the company has offered evidence that may well bear on the amount of overtime Plaintiffs worked, i.e., the compensation they are owed, FS Blinds has failed to negate Plaintiffs’ proof that they in fact worked overtime for which they were not compensated

. B.

But there is a “but.” T hough Plaintiffs have met their prima facie burden under Mt. Clemens to show that they worked unpaid overtime , thereby defeat ing summary judgment on this issue , Plaintiffs may nonetheless not recover if they were independent contractors , rather than employees

. See Hopkins v. Cornerstone Am

. , 545 F.3d 338, 34 2 (5th Cir. 2008) (“[T]he FLSA applies to employees but not to independent contractors[.]”). In their competing motions for summary judgment, Plaintiffs assert ed that they were employees, while FS Blinds contended that Plaintiffs were Case: 22-20095 Document: 00516818139 Page: 10 Date Filed: 07/12/2023No. 22

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11 independent contractors. T he district court denied summary judgment to either side on the issue

. In a single sentence in its order disposing of the

mot ions , t he district court determin ed that “a genuine dispute of material fact exists regarding Plaintiffs’ employee status.” G iven its overtime holding, the district court did not analyze the issue further. On appeal, both Plaintiffs and FS Blinds urge us to resolve th e issue , though they urge us to reach opposite conclusions

. In determining whether worker s are employee s or independent

contractor s , “ t he pertinent question is whether the alleged employees, as a matter of economic reality, are economi cally dependent on the business to which they supply their labor and services , ” or are “in business for [them]sel[ves].” Parrish v. Premier Directional Drilling, L.P. , 917 F.3d 369, 379 (5th Cir. 2019) ( quotations and citation omitted)

. To answer, courts consider five factors : (1) the degree of control exercised by the alleged employer; (2) the extent of the relative investments of the worker and the alleged employer; (3) the degree to which the worker’s opportunity for profit or loss is determined by the alleged employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship.
Id. (quoting Hopkins , 545 F.3d at 343). While these factors are “non

exhaustive,” “[o]nly the economic realities are legally releva nt

. ” I d. at 379

– 80. So we do not consider labels attached to the relationship by the alleged employees or employer unless they “ mirror economic reality.” Id. at 380 (quotations omitted). The ultimate determination about w hether a worker is an employee or independent contractor is a question of law. Id. at 377. But Case: 22-20095 Document: 00516818139 Page: 11 Date Filed: 07/12/2023No. 22

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12 the findings as to the five factors and the “historical findings of fact that underlie [those] finding[s]” are questions of fact. Id. at 378.

T hough the distr ict court denied summary judgment on this issue , w e could choose to address the question here to the extent it provides an alternate ground for affirmance. See Doctor’s Hosp. of Jefferson, Inc. v. Se. Med. All., Inc. , 123 F.3d 301, 307 (5th Cir. 1997) (“A district court’s grant of summary judgment may be affirmed on grounds supported by the record other than those relied on by the court.”). “But we have no obligation to do that.” George v. SI Group, Inc. , 36 F.4th 611, 626 (5th Cir. 2022) (Oldham, J., concurring in part) ( citing Sanders

- Burns v. City of Plano , 594 F.3d 366, 383 (5th Cir. 2010))

. Whether Plaintiffs are independent contractors or employees is “fact intensive.” Hathcock v. Acme Truck Lines, Inc. , 262 F.3d 522 , 527 (5th Cir. 2001) ; cf. Parrish , 917 F.3d at 380 (“Like every FLSA action in a similar posture, the instant cross

- motions for summary judgment are ‘very fact dependent.’” (citation omitted)) . But the district court’s order did not grapple with the fact s in this case, only determining without explanation that “a genuine question of material fact exist [ed.]” Nor did the district court decide whether to consider the additional factors proffered by the parties

— namely, whether Plaintiffs we re integral to FS Blinds ’s operation and whether Plaintiffs represented themselves as independent contractors

. Of course, this approach was not un reasonable given the court’s conclusion that Plaintiffs failed to substantiate their prima facie case ; that holding made it u nnecessary to delve any deeper into Plaintiffs’ employment relationship with FS Blinds

. With our reversal of that holding , however, this alternative ground for summary judgment is again salient. M indful that we

are a “court of review, not of first view , ” Landry’s, Inc. v. Ins

. Co. of the State Case: 22-20095 Document: 00516818139 Page: 12 Date Filed: 07/12/2023No. 22

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13 of Penn

. , 4 F.4th 366, 372 n.4 (5th Cir. 2021) , we decline to reach the issue to allow the district court to consider it first

. 6

IV. Finally, a word on damages. Should the district court conclude that Plaint iffs are employees (instead of independent contractors) and otherwise entitled to recover unpaid overtime compensation , it should then proceed to “do the best [it] can in assessing damages. ” Mitchell v. Riley , 296 F.2d 614, 616 (5th Cir. 1961). “ W e do no t minimize [the district court’s] difficulties” in “translat[ing]” the facts of this case “into dollars” for damages. Mitchell v. Mitchell Truck Line , Inc. , 286 F.2d 721, 725 (5th Cir. 1961) . But under Mt. Clemens , the “[d]ifficulty of ascertainment is no longer confused with right of recovery.” Id. (citation omitted). Though Plaintiffs’ estimates are likely not “perfectly accurate,” they can still “provide[] a sufficient basis” for an award of damages under Mt. Clemens

. Marshall v. Mammas Fried Chicken, Inc. , 590 F.2d 598, 599 (5th Cir. 1979)

. In this process, FS Blinds has no right “to complain that the damages” determined by the district court inevitably will “lack the exactness and precision of measurement that would be possibl e had [it] kept records in accordance with the [FLSA’s] requirements.” Mt. Clemens , 328 U.S. at 688; see also Mitchell Truck Line , 286 F.2d at 725 (“The employer cannot really complain that matters are left in great uncertainty.”). Nevertheless, the dist rict court may consider whether FS Blinds has identified errors in Plaintiffs’ calculations . “It may well be that in this process the [district

6 We also note that this court applies a “presumption [ that ] weighs in favor of submission of [employee

- status] inquiries to the jury.” Hathcock , 262 F.3d at 527. T his can be overcome where the facts “permit[] only one reasonable con clusion.” Id. We leave it to the district court to determine in the first instance whether the facts here overcome that presumption for Plaintiffs or for FS Blinds

. Case: 22-20095 Document: 00516818139 Page: 13 Date Filed: 07/12/2023No. 22

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14 court] will feel that further evidence should be taken.” Mitchell Truck Line , 286 at 726. And i f the evidence adduced substantiates errors in Plaintiffs’ alleged overtime amounts , the district court should reduce damages awarded accordingly. See Hobbs , 7 F.4th at 258 (“We note that the district court reduced the number of hours claimed by each Plaintiff based on errors that [the Defendant] brought to its attention.”)

. V.

The district court erred in hold ing that Plaintiffs failed to meet their prima facie burden to substantiate overtime under Mt. Clemens

. The court’s summary judgment in favor of FS Blinds based on this conclusion was therefore likewise in error. Accordingly, we reverse the district court’s grant of summary judgment on this issue and remand for further proceedings consistent with this opinion . We foreshadow no outcome as to the questions that remain for the district court to consider on remand

— including whether Plaintiffs were employees of FS Blinds or independent contractors, and, if they were employees, the appropriate overtime compe nsation to be awarded as damages in this action

. We hold only that Plaintiffs have met their prima facie burden under Mt

. Clemens to show they worked overtime.

**REVERSED** and **REMANDED**

**.** Case: 22-20095 Document: 00516818139 Page: 14 Date Filed: 07/12/2023