Ashcraft v. United Supermarkets, Inc.

758 S.W.2d 375, 29 Wage & Hour Cas. (BNA) 460, 1988 Tex. App. LEXIS 2387, 1988 WL 96926
CourtCourt of Appeals of Texas
DecidedSeptember 22, 1988
DocketNo. 07-87-0250-CV
StatusPublished

This text of 758 S.W.2d 375 (Ashcraft v. United Supermarkets, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashcraft v. United Supermarkets, Inc., 758 S.W.2d 375, 29 Wage & Hour Cas. (BNA) 460, 1988 Tex. App. LEXIS 2387, 1988 WL 96926 (Tex. Ct. App. 1988).

Opinion

BOYD, Justice.

Appellant Samuel C. Ashcraft appeals from the judgment in favor of appellee United Supermarkets, Inc. on his claim for overtime compensation. In five points of error, appellant claims the trial court erred in entering judgment for appellee because there is no evidence to support the jury’s answer to Special Issue No. 1, wherein they found appellant was employed in a bona fide executive capacity. Alternatively, appellant argues that the jury’s answer was contrary to the overwhelming weight and preponderance of the evidence or was based on insufficient evidence. Lastly, appellant argues that, as a matter of law, appellant was not employed in a bona fide executive capacity. We affirm the judgment.

With regard to a legal insufficiency point, this Court will consider only the evidence tending to support the finding, viewing it in the most favorable light in support of the finding, giving effect to all reasonable inferences that may properly be drawn therefrom and disregarding all conflicting evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Where the challenge to a jury finding is framed as an insufficient evidence point, this Court is to consider all the evidence in the case, both that in favor of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

In considering an insufficient evidence point, we must remain cognizant of the fact that it is for the jury, as the trier of fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony. In accomplishing that task, the jury is privileged to believe all, part, or none of the testimony of any one witness. See Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex.Civ.App.—Amarillo 1977, writ ref’d n.r.e.). This Court may not substitute its judgment for that of the jury if the challenged finding is supported by some evidence of probative value and is not against the great weight and preponderance of the evidence. Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213 (Tex.Civ. App.—Amarillo 1981, writ ref’d n.r.e.).

In August of 1973, appellant began work as the meat market manager for the United [377]*377Grocery Store in Post, Texas. Appellant continued as the meat market manager until October 5, 1982.

Prior to August 1, 1980, appellant was paid on an hourly basis of $9.40 per hour. Any time over forty hours per week was considered overtime pay, and for this overtime pay, appellant was compensated at the rate of time and one-half. In July of 1980, appellee changed its policy with respect to compensation of market managers, such as meat market managers. Appellee, beginning August 1, 1980, began compensating its market managers at the rate of $400 per week plus a bonus of 6% of the net profits of the store over $10,400. The new policy required managers to work a minimum of fifty-four hours per week. On August 1, 1981, the minimum hours were reduced to forty-eight hours per week. Appellee argues that the new policy made no provision for overtime compensation since market managers, including meat market managers such as appellant, were bona fide executive employees and exempt from overtime compensation under federal law.

The Fair Labor Standards Act provides that no employee shall work longer than forty hours in any work week unless that employee receives compensation for the time worked in excess of forty hours at the rate of not less than one and one-half the regular rate at which he is employed. 29 U.S.C.S. § 207(a)(2) (1975). However, an employer such as appellee is exempt from paying such overtime where the employee is employed in a “bona fide executive” capacity. 29 U.S.C.S. § 213(a)(1) (1975).

The Fair Labor Standards Act also provides that the Secretary of Labor may, from time to time, promulgate regulations regarding the term “bona fide executive capacity.” 29 U.S.C.S. § 213 (1975). Pursuant to that authority, the Secretary has issued regulations defining the term “an employee employed in a bona fide executive capacity.” 29 C.F.R. § 541.1 (1983). Section 541 provides as follows:

The term “employee employed in a bona fide executive ... capacity” in section 13(a)(1) of the act shall mean any employee:
(a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and
(b) Who customarily and regularly directs the work of two or more other employees therein; and
(c) Who has the authority to hire or fire other employees or whose suggestions or recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
(d) Who customarily and regularly exercises discretionary powers; and
(e) Who does not devote more than 20 per cent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 per cent, of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section: Provided, That this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20 per cent interest in the enterprise in which he is employed; and
(f) Who is compensated for his services on a salary basis at a rate of not less than $155 per week (or $130 per week, if employed by other than a Federal Government in Puerto Rico, the Virgin Islands or American Samoa), exclusive of board, lodging, or other facilities: Provided, That an employee who is compensated on a salary basis at a rate of not less than $250 per week (or $200 per week if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, or American Samoa), exclusive of board, lodging, or other facilities, and whose primary duty consists of the management of the enterprise in which the employee is employed or a customarily recognized department or subdivision [378]*378thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all the requirements of this section.

The charge in the case at bar detailed the definitions found in the above subsections (a), (b), (c), (d) and included:

(5) who does not devote as much as 40% of his hours of work in a work week to activities which are not directly and closely related to the performance of the work described in Paragraphs (1) through (4).

The jury found that appellant was employed in a bona fide executive capacity as defined in the charge.

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Bluebook (online)
758 S.W.2d 375, 29 Wage & Hour Cas. (BNA) 460, 1988 Tex. App. LEXIS 2387, 1988 WL 96926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashcraft-v-united-supermarkets-inc-texapp-1988.