Case: 12-50137     Document: 00511972550         Page: 1     Date Filed: 08/31/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          August 31, 2012

                                     No. 12-50137                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



AURELIA NELMS,

                                                  Plaintiff-Appellant,
v.

JEAN MADSEN KRAMER, as Executor of the Estate of Anna Louise
Madsen,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                   for the Western District of Texas, San Antonio
                                   5:10-CV-627


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges..
PER CURIAM:*
        The appellant, Aurelia Nelms, challenges the district court’s rejection of
her action under the Fair Labor Standards Act for overtime pay. The district
court concluded that because Mrs. Nelms’s work was as a domestic service
employee to provide companionship service to 90 year old Mrs. Anna Louise
Madsen during the last two years of her life, plaintiff was exempt from


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                     No. 12-50137

entitlement to overtime pay. Appellant contended that the exemption did not
apply to her because more than 20 percent of her time was spent on general
household work unrelated to the care of the client. We conclude that the district
court did not clearly err in its findings rejecting plaintiff’s contention that the
exemption did not apply to her.
       The only question in this case is whether the district court correctly
concluded that plaintiff’s services fell within the companionship service
exemption provided for in 29 U.S.C. § 213(a)(15).1
       The Department of Labor’s regulation implementing this provision
provides:
       [T]he term companionship services shall mean those services which
       provide fellowship, care and protection for a person who, because of
       advanced age or physical or mental infirmity, cannot care for his or
       her own needs. Such services may include household work related
       to the care of the aged or infirm person such as meal preparation,
       bed making, washing of clothes, and other similar services. They
       may also include the performance of general household work:
       Provided, however, That such work is incidental, i.e., does not
       exceed 20 percent of the total weekly hours worked . . ..2


       The trial testimony and other evidence focused on the extent of the general
household work Mrs. Nelms provided that was unrelated to her companionship
to Mrs. Madsen and whether that work exceeded the 20 percent permitted by the
regulation.
       The time relevant to this suit is May 2008 until Mrs. Madsen’s death in
May of 2010.        Sometime before May of 2008, Ms. Nelms terminated her

      1
        “(15) any employee employed on a casual basis in domestic service employment to
provide babysitting services or any employee employed in domestic service employment to
provide companionship services for individuals who (because of age or infirmity) are unable
to care for themselves (as such terms are defined and delimited by regulations of the
Secretary);” 29 U.S.C. § 213(a)(15).
      2
          29 C.F.R. § 552.6.

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                                  No. 12-50137

employment with Mrs. Madsen because Nelms did not want to perform duties
for Madsen’s visiting family members. Nelms then agreed to return to work for
Madsen on the condition that she did not have to cook for or clean after visiting
family members. This was incorporated in her contract. Beginning in May of
2008 Nelms earned $20 per hour and beginning in January of 2008 Nelms was
advanced to $25 per hour. From May 2008 until Madsen’s death in April 2010
Nelms earned a total of $231,230.
      The evidence was conflicting with respect to the amount of general
household work Nelms performed that was unrelated to her companionship with
and care of Mrs. Madsen. She testified that despite her agreement to the
contrary the Madsen children called upon her to do considerable work for them
when they came to visit. She also testified that she spent considerable time
maintaining Mrs. Madsen’s two vehicles. She also testified that she spent
approximately 15 hours per week performing heavy cleaning of all parts of the
home not frequented by Mrs. Madsen. She cleaned the oven and refrigerator;
she cleaned the garage and swept the driveway. When the family members
came to visit she testified that she spent extra hours cooking and baking for the
family and the other staff in addition to her work for Mrs. Madsen.
      The members of the family contradicted this testimony and testified that
she spent little or no time on duties unrelated to her care of Mrs. Madsen. They
testified that at most she would cook breakfast for them but she did not clean
any parts of the house other than the kitchen and the other portions of the house
Mrs. Madsen occupied. Evidence of credit card receipts showing the cost of food
purchased at restaurants daily for Mrs. Madsen were introduced to refute
plaintiff’s testimony about the extent of her cooking.
      After a careful review of the record we are persuaded that the evidence
fully supports the district court’s finding that plaintiff did not spend more than
20 percent of her time on general household work. The testimony was conflicting


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                                  No. 12-50137

but credibility calls are for the district court to make. Because the district court
did not clearly err in its findings, we affirm its judgment.
      AFFIRMED.




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