source: Caselaw Access Project

author: POOLER, Circuit Judge:

license: Public Domain

text:
    Kwame GARNETT, Plaintiff-AppelleeCross-Appellant, v. UNDERCOVER OFFICER C0039, Individually and In his official capacity, Defendant-Appellant-Cross-Appellee, Undercover Officer C0243, Individually and In his official capacity, Defendant-Appellee, City of New York, Neftali Betances, Individually and In his official capacity, Keith Carpenter, Individually and In his official capacity, Abel Joseph, Individually and In his official capacity, Erick Ortiz, Individually and In his official capacity, Carlos Sierra, Individually and In his official capacity, Tyrone Viruet, Individually and In his official capacity, John Does, Nos. 1-10, Individually and In their official capacity (the names John and Jane Doe being fictitious, as the true names are presently unknown), Jane Does, Nos. 1-10, Individually and In their official capacity, (the names John and Jane Doe being fictitious, as the true names are presently unknown), Defendants.

      Docket Nos. 15-1489 (Lead), 15-1500 (XAP)
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: June 7, 2016
    Decided: September 30, 2016

      ROBERT T. PERRY, Brooklyn, NY, for Plaintiff-Appellee-Cross-Áppellant Kwame Garnett.
    RICHARD DEARING, of counsel (Cecilia Chang, Ingrid R. Gustafson, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellant-Cross-Appellee Undercover Officer C0039 and Defendant-Appellee Undercover Officer C0243.

      Before: POOLER, SACK, and LYNCH, Circuit Judges.
   POOLER, Circuit Judge:

Both plaintiff-appellee-cross-appellant Kwame Garnett- and defendant-appellant-cross-appellee Undercover Officer C0039’s (“UC, 39”) appeal from a judgment, entered after a jury trial in the United States District Court for the Southern District of New York (Gregory H. Woods, </.), finding UC 39 liable for denying Garnett his right to a fair trial by fabricating evidence in connection with criminal charges against Garnett, and awarding Garnett $1 in nominal damages and $20,000 in punitive damages. UC 39 argues that the district court erred in denying his motion for judgment as a matter of law, and Garnett contends that thé court erred in denying his motion for a new trial.

Garnett was, arrested by UC 39 in the wake of an undercover “buy and bust” operation, and was subsequently charged based in part on UC 39’s account of his own observations during the alleged drug sale, including a statement he said Garnett made during the transaction. Garnett denied making the statement and, after being held for nearly eight months pending trial, was acquitted at a state criminal trial. In its rulings following Garnett’s civil jury trial, the district court held that UC 39's allegedly fabricated account of his own observations could provide the basis for a claim of denial of the right to a fair trial due to an officer’s provision of false information to a prosecutor following Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123 (2d Cir. 1997), and therefore denied UC 39’s motion for judgment as a matter of law.. The district court also denied Gar-nett’s motion for a new trial after finding that the court’s jury instruction on probable cause, following the jury’s request for clarification, was an accurate statement of law and answered the jury’s question. Because we conclude that Ricciuti controls when the fabricated information at issue is an officer’s false account, conveyed to prosecutors, of his or her own purported observations of alleged criminal activity which led to an arrest, and that the district court’s jury instruction was proper, we affirm.

In Ricciuti, we held that, even if there is probable cause to arrest a defendant, an officer who subsequently fabricates that defendant’s confession “and forwards that information to prosecutors- ,.. violates the accused’s constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressa-ble in an action for damages under 42 U.S.C. § 1983.” 124 F.3d at 130. This case calls for us to consider whether Ricciuti requires the same result when the fabricated information at issue is the officer’s own account of his or her observations of alleged criminal activity which he or she conveys to prosecutors. We hold that it does.

BACKGROUND

I. Factual Background

A. Garnett’s Arrest and Prosecution

This case arises from a so-called “buy and bust” operation conducted by the New York City Police Department (“NYPD”) on November 19, 2011. On that evening, a team of NYPD officers, including defendant-appellant-cross-appellee UC 39 and defendant-appellee Undercover Officer C0243 (“UC 243”), conducted an operation in East Harlem where the undercover officers attempted to purchase drugs.

There are commonly two roles in a “buy and bust” operation: the “primary” tries to buy the drugs, while the “ghost” serves to protect the safety of the primary. UC 39 was the ghost, UC 243, the primary, met non-parties Naquan Cintron and Naim Roper. Roper was allegedly stating something along the lines of “smoke, smoke, smoke” or “bud, bud, bud,” and, at Roper’s suggestion, the - undercover officers entered Lexington Grocery, a bodega, where Cintron and Roper then sold small amounts of crack cocaine and marijuana to UC 243 sometime after 6:00 P.M. App’x at 251, 332. Cintron and Roper were -then arrested by other officers participating in the “buy and bust” operation.

Garnett was also arrested in connection with the drug sale. While UC 243 spoke with Cintron and Roper, UC 39 was scanning the area and stated that he observed an individual, identified as Garnett, standing by the curb outside the bodega. UC 39 testified that he saw Garnett also scanning the area. UC 39 stated that, based on his experience, he believed Garnett was keeping a lookout for police during the sale. UC 39 wrote in a “DD-5,!’ a complaint followup form, and told the arresting officer and a prosecutor, that Garnett entered the bodega during the sale and told Cintron and Roper, “Yo, hurry up. Y’all ain’t done yet? Get that money. I’m not looking to get locked up tonight. Let’s go.” App’x at 263-64, 603. UC 243 heard Garnett speak, but did not hear exactly what Garnett had said. UC 39 testified’ that after he saw Garnett look at Roper and Cintron, Gar-nett shook his head, and exited the bodega. This caused UC 39 to revise his earlier theory that Garnett was a lookout for Roper and Cintron and instead to believe that Garnett could be Roper’s and Cintron’s manager.

B. Roper and Cintron Plead Guilty; Garnett’s Criminal Trial

Six days after the arrests, Roper pled guilty in state court to one count of criminal sale of marijuana in the fourth degree and one count of criminal facilitation in the fourth degree. Cintron and Garnett were both indicted by a state grand jury, but Cintron then pled guilty to one count of criminal sale of a controlled'substance (cocaine). In his plea allocution, Cintron stated that he acted “in concert with” Garnett in selling “a narcotic drug to a police officer.” App’x at 781.

Garnett then proceeded to a state criminal trial. Prior to Garnett’s criminal trial, UC 39 communicated the inforihation in UC 39’s original DD-5 report to the Assistant District Attorney prosecuting the case. UC 39 also explained that he knew Garnett prior to the arrest at issue as, three years earlier, Garnett and 'two other individuals attempted to rob UC 39 at gunpoint in a housing project where officers were engaging in an investigation. Garnett," seventeen years old at the time, was convicted of attempted robbery in the first degree. According to UC 39, it was not until he learned Garnett’s name after the arrest that he realized that Garnett was the same person who had robbed him at gunpoint three years earlier. UC 39 explained that he did not initially recognize Garnett during the “buy and bust” operation because, during the earlier encounter, Garnett had been three years younger, had looked younger and thinner, and had had “a lot of hair on his head.” App’x at 293. UC 39 was precluded from testifying about the robbery during Garnett’s state criminal trial.

Garnett has consistently denied having any involvement in the drug sale and denies making , the statement attributed to him by UC 39. After he was arrested, Garnett was searched and no drugs, other contraband, or any other evidence of criminal activity, were found on his person. Nevertheless, Garnett was arraigned and charged with criminal sale of a controlled substance in the third degree and criminal sale of marijuana in the fourth degree on the basis of UC 39⅛ communications with the prosecutor. Garnett pled not guilty and bail was set at $50,000. Unable to post bail, Garnett remained in custody for nearly eight months. On July 6,. 2012, a jury acquitted Garnett of all charges and he was released.

C. Garnett’s Federal Damages Lawsuit

On October 4, 2013, Garnett filed a lawsuit in the district court for the Southern District of New York (Rakoff and Woods, JJ.). On December 9, 2013, Garnett filed his amended complaint against officers involved in his arrest, including UC 39 and UC 243, alleging, among other things, false arrest, malicious prosecution, failure to intervene, and denial of the right to a fair trial under 42 U.S.C. § 1983. On December 20, 2013, defendants moved to dismiss all claims except the false arrest claim and denial of the right to a fair trial claim against UC 39. On February 10, 2014, the district court (Jed .S. Rakoff, J.) granted the motion in. part and denied it in part. The court dismissed all claims except: (1) the false arrest claim against UC 39, UC 243, and two other officers, (2) the failure to intervene claim against UC 243, (3) the malicious prosecution claims, under both federal and state law, against UC 39 and UC 243, (4) the right to a fair trial claim against UC 39 and UC 243, and two other state law claims not relevant to this appeal.

On March 27, 2014, defendants moved for summary judgment. On April 8, 2014, the case was reassigned from Judge Ra-koff to Judge Woods. On August 13, 2014, the district court (Gregory H. Woods, J.) granted the motion in part and denied it in part, in particular denying summary judgment on Garnett’s false arrest, malicious prosecution, and fair trial claims against UC 39, and the failure to intervene claim against UC 243. On October 14, 2014, the district court denied defendants’ motion for reconsideration.

D. The Federal Damages Trial

On November 17, 2014, the case proceeded to trial on those four claims. At trial, Garnett testified on his own behalf and presented five additional witnesses in his case-in-chief: UC 39, UC 243, Lieutenant Neftalí Betances, Roper, and Detective Tyrone Viruet. UC 39 and UC 243 adopted the testimony of the police officer witnesses presented in Garnett’s ease and rested.

UC 39 testified, in relevant part, that Garnett entered Lexington Grocery while Cintron, Roper, and UC 243 were conducting the “buy” transaction, at which point Garnett gave UC 39 a “hard look” “[u]p and down,” App’x at 255-56. UC 39 testified that Garnett then spoke “sternly” to Cintron and Roper, telling them to “hurry up, I’m not looking to get locked up tonight[.]” App’x at 256. After Garnett spoke, UC 39 testified that Garnett looked “upset” and that Roper and Cintron “began to move quicker and they seemed, after his statement, nervous, and they seemed to have been taking [Garnett’s] direction, his order.” App’x at 256-57. This led UC 39 to testify that he believed Gar-nett was the “manager of the transaction.” App’x at 257.

Despite UC 39 testifying that Garnett told Roper and Cintron to “hurry up,” UC 39 went on to testify that Garnett went, to the counter in the bodega to conduct a transaction. That testimony was inconsistent with the testimony UC 39 had given before the grand jury. At Garnett’s civil trial, UC 39 was confronted with his grand jury testimony where he stated that Gar-nett went to the counter before “turning] around” and saying to Cintron and Roper, “Yo, hurry up. What the hell is taking so long? I’m not trying to go back to jail. Get that money, get that money, let’s go.” App’x at 257-58. UC 39 then testified that, after conducting some sort of transaction at the counter, Garnett looked back at UC 39, exited the store, crossed the street, and entered an audio/video store.

For his part, UC 243 testified that he did not notice Garnett outside the bodega, that UC 39 did not alert him to Garnett’s presence, and that he did not see Cintron or Roper make eye contact with a third person outside the store. UC 243 did testify that he saw Garnett enter the store and say something. After being presented with his grand jury testimony, UC 243 also testified that he recalled that Garnett’s statement “grabbed [ ] Cintron’s attention” and that “Cintron looked over [UC,243’s] left shoulder” and Roper “started moving quickly.” App’x at 317-18. But he also testified that, although he has “good hearing” and was “standing only a few feet away” from Garnett, he “did not hear what [ ] Garnett said[.]” App’x at 321.

Garnett’s account at trial differed greatly from those of UC 39 and UC 243. Garnett testified that, in the late morning of November 19, 2011, he went to his grandmother’s house in order to drop off his niece and then sent a text message to a friend, Quincy Brown, who invited Garnett to Brown’s apartment and also invited some other friends over. After Garnett arrived at Brown’s apartment and had some drinks, Garnett testified that Cintron and Roper arrived at the apartment but that he did not speak with them.

Garnett testified that he left Brown’s apartment, alone, around “nighttime.” App’x at 363. Garnett said he went to Crown Fried 'Chicken, a restaurant, whieh was near the bodega. Garnett said he did not see Roper or Cintron “again after [he] left [Brown’s] apartment.” At Crown Fried Chicken, Garnett testified that he ordered “the center breast,” then “stepped out,” and “was going to walk in the [grocery] store” but saw that “it was crowded.” App’x at 364. Garnett said he was going to the bodega to' buy a soda because the sodas were cheaper in the bodega than they were at Crown Fried Chicken. But Garnett denied entering the grocery store because the “doorway[] was, like, crowded” and then he “heard the guy that work[ed] [at] the chicken spot knock on the window, so [he] went back in there and grabbed the chicken, and found out [he] had enough anyway for the soda, and walked directly across the street in[to] the game store.” App’x at 365.

Garnett testified that he spoke to his cousin Shedy Bolton in the game store, but then was handcuffed by a police officer, searched both outside the game store and later at the 25th Precinct, and that the officers found no drugs, contraband, or money, and that the only items he had on him at the time of his arrest were an iPod, a cell phone, Blistex, and the chicken. Importantly, Garnett testified .that he had no involvement in the sale, did not act as a lookout, did not enter the store during the sale, and did not say anything to Cintron and Roper. Garnett flatly denied committing any crime on November 19, 2011.

Roper also testified at the federal trial. He confirmed that he, Cintron, and Gar-nett were at Quincy Brown’s apartment earlier in the day on November 19, 2011, but, somewhat inconsistently with Gar-: nett’s testimony, Roper stated that all three of them—Garnett, Cintron, and Roper—“left Quincy Brown’s house and headed to Lexington Avenue together.” App’x at 453 (emphasis added). But Roper then testified that Garnett was “a little bit separated from us[,]” and when Cintron and Roper started “going toward the grocery store ... [Garnett] started backing away from where we was going in the same direction” and Garnett instead went to the “chicken spot.” App’x at 463.

Roper also testified that he and Cintron were “chilling” in front of the bodega when the “informants”—presumably UC 39 and UC 243—arrived and so Roper and Cin-tron “decided to go inside the store and make a sale[.]” App’x at 453. Roper testified that he believed that, at the time, Garnett was still at the “chicken spot, because if he was with us, he would have went inside the store with us.” App’x at 453-54. Roper said he did not “remember seeing [Garnett] inside the store at all” and said he “remembered] it like it was yesterday.” App’x at 454. Roper did not recall whether Garnett entered the store at any point and stated that he never heard Garnett say anything along the lines of “Hurry up, y’all ain’t done yet. Get that money[.]” App’x at 449. Indeed, Roper testified that while he was in the store, he saw Garnett “cross the street” with a “brown bag in his hand.” App’x at 449. Roper flatly denied that Garnett was involved in the sale.

II. Procedural History

A. The Jury Instructions, Deliberations, and Verdict

At the conclusion of trial, the district court instructed the jury that, in order to establish his claims under Section 1983, Garnett had to demonstrate by a preponderance of the evidence that (1) the conduct of the defendant intentionally or recklessly deprived Garnett of a right protected by the Constitution of the United States, and (2) that the conduct was a proximate cause of the injuries and damages suffered by Garnett. See App’x at 523. Specifically with respect to the fair trial claim, the district court instructed the jury that Garnett had to show: “(1) that [UC 39] fabricated evidence of a material nature; (2) that the fabricated evidence of a material nature was likely to influence a jury’s decision; (3) [that] this fabricated evidence of a material nature was intentionally forwarded to prosecutors by [UC 39]; and (4) [that Garnett] suffered a deprivation of liberty as a result of fabricated evidence of a material nature.” App’x at 530. The verdict form asked the jury to determine whether Garnett had proven his false arrest, malicious prosecution, denial of the right to a fair trial, and failure to intervene claims by a preponderance of the evidence. There was no special inter-rógatory asking the jury to determine whether there had been probable cause for Garnett’s arrest or prosecution.

At some point during the jury’s deliberations, the district court received a note from the jury stating, in relevant part:

[W]e ask for clarification on probable causé. If an individual reasonably appears "to have knowledge of a criminal transaction currently taking place, but does not appear to be involved, is probable cause established?

App’x at 568-69. Garnett’s counsel asked the district court to instruct the jury that mere knowledge of activity without involvement in the activity does not constitute probable cause to arrest. The officers’ counsel objected-, stating a response to that effect would “answer the question for [the jury].” App’x at 571. Instead, the officers’ counsel suggested the court should “refer the[ jury] back to the law and explain the law.” App’x at 571. The district court agreed, explaining:

What I think I would like to do is to develop with you, counsel, -a proposed response that will both refer the[ jury] back to the relevant language in the existing set of instructions, and try to point the[ jury] more closely to what it is that they’re supposed to be evaluating here. Namely, whether or not a reasonable person would understand that Mr. Garnett was involved in criminal activity. And that that is taken from the point of view of a reasonable officer under the circumstances,

App’x at 571-72. Garnett’s counsel reaffirmed his positioñ that “mere knowledge that criminal activity is ongoing is not in itself criminal activity” in response. App’x at 572.

The district court then distributed a proposed supplemental instruction which stated, in relevant part, “[i]f a reasonable person in the officer’s shoes looking at the totality of the circumstances would believe there is a probability that the plaintiff had committed a crime or is committing a crime, there would be probable cause for his arrest.” App’x at 574. Garnett’s counsel renewed his objection, again asking for an instruction that mere knowledge is not sufficient. After a colloquy between counsel and the court, the district court revised the proposed instruction and added a sentence that stated if “a reasonable person in the officer’s shoes looking at the totality of the circumstances would not believe that there was a probability that the plaintiff hád committed a crime or was committing a crime, there- would not be probable" cause for his arrest.” App’x at 575. Garnett’s counsel maintained his objection, arguing the language was not responding to the jury’s question, but conceded that the instruction was an accurate statement of the law. The district court delivered the instruction to the jury.

The jury subsequently returned a verdict finding tliat Garnett had proven his denial of the right to a fair trial claim by a preponderance of the evidence but had not proven his false arrest, malicious prosecution, or failure to intervene claims. The jury awarded Garnett punitive damages of $20,000 and nominal damages of $1.

B. The District Court’s Decision on the Post-Trial Motions

Following the trial, UC 39 moved for, in relevant part, judgment' as a matter of law pursuant to Federal Rule of Civil Procedure 50- on the denial of a right to á fair trial claim. UC 39 argued that the fabricated evidence did not cause Garnett’s deprivation of liberty because UC 39 had had probable cause to arrest Garnett. Garnett v. Undercover Officer C0039, No. 1:13-cv-7083, 2015 WL 1539044, at *3 (S.D.N.Y. Apr. 6, 2015). The district court denied UC 39’s motion, holding that the arguments were “wrong as a matter of law.” Id. at *1. Specifically, the district court relied on Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123 (2d Cir. 1997) for the principle that “ ‘[n]o arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee. To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false [information] at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice.’ ” Garnett, 2015 WL 1539044 at *1 (quoting Ricciuti, 124 F.3d at 130). The district court held that Ricciu-ti directly controlled the outcome of UC 39’s motion for judgment as a matter of law, and accordingly denied the motion. Id. at *1, *4-*6.

At the same time, Garnett moved for a new trial pursuant to Federal Rule of Civil Procedure 59 on his false arrest, malicious prosecution, and failure to intervene claims based on the district court’s response to the jury’s question regarding probable cause. Id. at *3, *12-*14. The district court determined that its response to the jury note was both “an accurate statement of the law” and “adequately addressed the jury’s question[.]” Id. at *14. Accordingly, the district court denied Garnett’s motion because its “instruction on probable cause, taken as a whole, [wa]s correct and sufficiently covered the ease so that the jury could intelligently determine the questions presented to it.” Id. (internal quotation marks and citation omitted).

DISCUSSION

I. The District Court Did Not Err in Denying UC 39’s Motion for Judgment As A Matter of Law

A. Standard of Review

This court reviews a district court’s denial of a motion for judgment as a matter of law de novo. Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010). In doing so, the court “applies] the same standards that are required of the district court.” Id. (internal quotation marks and citation omitted). Accordingly, the court “must draw all reasonable inferences in favor of the nonmoving party,” “may not make credibility determinations or weigh the evidence!,]” and “must disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. (internal quotation marks, emphases, and citations omitted).

B. Applicable Law and Analysis

The instant case presents this court with an important legal question: whether Ricciuti’s holding—that a Section 1983 plaintiff may sue for denial of the right to a fair trial based on a police officer’s fabrication of information—applies when the information fabricated is the officer’s own account of his or her observations of alleged criminal activity, which he or she then conveys to a prosecutor. We answer that question in the affirmative, while emphasizing the essential limiting principles encompassed by the Ricciuti standard.

In Ricciuti, the court flatly rejected the argument that “as long as [an] arrest complied with the Fourth Amendment, [a Section 1983 plaintiff] can have no claim for post-arrest fabrication of evidence against [him or her].” 124 F.3d at 130. Ricciuti grew out of an altercation between Harlice Watson, an African-American New York City Corrections officer, and Alfred Ricciu-ti, a white civilian. Id. at 125. After Watson complained to police that Ricciuti had assaulted him, Ricciuti was arrested. Lieutenant Robert Wheeler, a police lieutenant who interviewed Ricciuti, wrote in a report that Ricciuti had confessed to being drunk, to having hit Watson, and to having addressed Watson using a racial epithet. Id. at 126. The purported confession, which Ricciuti (and his nephew, who had been present at the interview with Wheeler) insisted was fabricated by Wheeler, made its way into several subsequent investigation reports and, based in part on the confession, the assault was classified as bias-related and the Bronx district attorney added a charge of aggravated harassment in the second degree. Id. All charges were subsequently dismissed by a pre-trial court order after Lieutenant Wheeler, despite multiple adjournments, “failed to appear to testify in support of the ‘confession.’ ” Id. at 127.

During Ricciuti’s subsequent Section 1988 federal civil case for violation of his constitutional right to a fair trial, the district court granted defendants’ motion for summary judgment based in relevant part on defendants’ argument that “so long as there was probable cause for Alfred Ricci-uti’s arrest—independent of the allegedly fabricated evidence—the fabrication of evidence is legally irrelevant.” Id. at 129-80. On appeal, the panel decisively rejected defendants’ argument in an opinion that is worth quoting at length:

This argument—an ill-conceived attempt to erect a legal barricade to shield police officials from liability—is built on the most fragile of foundations; it is based on an incorrect analysis of the law and at the same time betrays a grave misunderstanding of those responsibilities which the police must have toward the citizenry in an open and freé society. No arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee. To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false confessions at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice. Like a prosecutor’s knowing use of false evidence to obtain a tainted conviction, a police officer’s fabrication and forwarding to prosecutors- of known false evidence works an unacceptable corruption of the truth-seeking function of the trial process.
When a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors, he violates the accused’s constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983. Here, a reasonable jury could find, based oh the evidence, that defendants ... violated the plaintiffs’ clearly established constitutional rights by conspiring to fabricate and forward to prosecutors a known false confession almost certain to influence a jury’s verdict. These defendant police officers are not entitled to summary judgment on the ground of qualified immunity. Qualified immunity is unavailable where, as here, the action violates an accused’s clearly established constitutional rights, and no reasonably competent police officer could believe otherwise.

Id. at 130 (internal quotation marks and citations omitted). Ricciuti’s, reasoning applies as much to a situation where, as here, the falsified information was the officer’s account, conveyed to prosecutors, of what he heard the defendant say or do during the alleged offense, as it did in Ricciuti, where the officer was describing what he heard the defendant say during an interview after his arrest.

UC 39 makes two arguments against relying on Ricciuti. First, UC 39 argues that Ricciuti does not control this case because Ricciuti addressed only whether qualified immunity was available to police officers who willfully fabricated evidence, rather than the merits of Ricciuti’s denial of the right to a fair trial claim. See Jovanovic v. City of New York, 486 Fed.Appx. 149, 152 (2d Cir. 2012). Second, UC 39 argues that falsification of evidence has always been addressed under the auspices of false arrest and malicious prosecution claims under the Fourth Amendment. UC 39 maintains that application of a denial of the right to a fair trial claim to falsified evidence would upset the balance between liability and probable cause developed in Fourth Amendment jurisprudence.

On the first point, UC 39 is incorrect that Ricciuti’s holding is limited to the question of immunity. In Ricciuti, the panel held that fabrication of evidence violated a “clearly established constitutional right[]” and thus the officers were not entitled to qualified immunity. Ricciuti, 124 F.3d at 130 (“Qualified immunity is unavailable where, as here, the action violates an accused’s clearly established constitutional rights, and no reasonably competent police officer could believe otherwise.”). Thus, in order to find that the officers were not entitled to qualified immunity, the panel necessarily also held that the officers’ conduct in fabricating Ricciuti’s supposed “confession” violated a clearly established constitutional right, the right to a fair trial. As the Ricciuti court explained, “[w]hen a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors, he violates the accused’s constitutional right to a fair trial[.]” M; see also Morse, 804 F.3d at 548 (citing Ricciuti for this proposition); Zahrey v. Coffey, 221 F.3d 342, 344, 348, 355 (2d Cir) 2000) (citing Ricciuti for this proposition and concluding that qualified immunity did not apply because there is a clearly established “constitutional right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigatory capacity,” and noting that the “liberty deprivation” was the eight months of confinement plaintiff éxperienced between bail revocation and his acquittal, while the due process violation was “the manufacture of false evidence” against him). We find UC 39’s argument that Ricciuti does not address the merits of the fair trial claim unpersuasive, as well as contrary to the explicit reasoning of our opinion in that case.

UC 39’s reliance on Jovanovic v. City of New York, a non-precedential summary order, is also misplaced. In Jovanovic, the court stated that the elements of a denial of the right to a fair trial claim were: “an (1) investigating official (2) fabricates evidence (3) that is likely to influence a jury's decision, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of liberty as a result.” 486 Fed.Appx. at 152, UC 39 interprets the “as a result” language of the fifth element to mean that the falsified information must be the only reason the plaintiff suffered a deprivation of his liberty, such that a privileged arrest is sufficient to negate this element of an arrestee’s Section 1983 claim. UC 39 places more weight, on the “as a result” language than it can bear.

First, the cited language is not the holding of the case, which neither purports to decide any new point of law nor claims to constrict or revise the holding of Ricciuti. The recitation of elements is simply a restatement of the holdings of prior cases. Second, that formulation is in fact derived from the following language in Ricciuti: “When a police officer , creates false information likely to influence a jury’s decision and forwards that information to prosecutors, he violates the accused’s constitutional right to a fair trial, and the harm occasioned by such unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983.” Ricciuti, 124 F.3d at 130; see Jovanovic, 486 Fed.Appx. at 152 (citing Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir. 2003), and Ricciuti, 124 F.3d at 130); Jocks, 316 F.3d at 138 (quoting Ricduti, 124 F.3d at 130). But that language cannot mean what UC 39 would have it mean. In Ricciuti, as here, the court was addressing a claim of a denial of the right to a fair trial based on an officer’s provision of false information where the arrest itself had been privileged. See 124 F.3d at 130. Thus, even though the arrest of one of the plaintiffs, Alfred Ricci-uti, was supported by probable cause, and therefore a privileged arrest accounted for at least some portion of the deprivation of his liberty, the Ricciuti court nevertheless found that Alfred Ricciuti had suffered a deprivation of liberty as a result of the officer’s fabrication of a false confession. Id. Ricciuti thus necessarily stands for the proposition that a privileged arrest is insufficient to negate the fifth element of a fair trial claim when an officer falsifies information “likely to influence a jury’s decision and forwards that information to prosecutors.” Id. Third, the conclusion is entirely sound. An arrest is lawful when supported by probable cause—a rather low threshold. But an arrest in itself may involve only a limited deprivation of liberty. The setting of bail, which may make the difference between freedom and confinement pending trial, and the prosecutor’s decision to pursue charges rather than to dismiss the complaint without further action, may depend on the prosecutor’s and magistrate’s assessments of the strength of the case, which in turn may be critically influenced by fabricated evidence. Thus, a further deprivation of liberty can result from the fabrication of evidence even if the initial arrest is lawful. Fourth, Jovanovic itself, in the very next sentence after the one relied upon by UC 39, explicitly states “[pjrobable cause is not a defense” to a claim for a denial of the right to a fair trial. 486 FedAppx. at 152.

In short, a Section 1983 claim for the denial of a right to a fair trial based on an officer’s provision of false information to prosecutors' can stand even if the officer had probable cause to arrest the Section 1983 plaintiff. The language of Jovanovic cannot support the meaning UC 39 assigns to it.

UC 39’s second argument, that Garnett’s claim based on falsified information is only cognizable as a claim for malicious prosecution or for false arrest under the Fourth Amendment, and not as an independent fair trial claim, is similarly unpersuasive.

First, claims alleging the denial of a right to a fair trial based on fabricated information are redressable under the Constitution, regardless of which constitutional provision provides the basis for. the claim—“[c]ertain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution’s commands.” See Soldal v. Cook Cty., Ill., 506 U.S. 56, 70, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992); see. also Gregory v. City of Louisville, 444 F.3d 725, 750-51 (6th Cir. 2006) (reversing district court’s conclusion that one factual premise could not form the basis of separate claims of constitutional violations under Section 1983); Riley v. City of Montgomery, Ala., 104 F.3d 1247, 1253-54 (11th Cir. 1997) (permitting a fabrication-of-evidence claim to go forward against one defendant while rejecting malicious prosecution claim against others). Indeed, .our sister circuits have recognized that a plaintiff may pursue an independent due process claim premised on fabricated evidence. As the Fifth Circuit has observed, we, along with the Eighth, Ninth, and Tenth Circuits, have “all found denials of due process when charges rest on fabricated evidence,” and the Fifth Circuit agrees that there is “a due process right not to have police deliberately fabricate evidence and use it to frame and bring false charges against” an arrestee. Cole v. Carson, 802 F.3d 752, 770-71 (5th Cir. 2015), petition for cert, docketed, No. 16-351 (Sept. 19, 2016).

Second, probable cause, which is a Fourth Amendment concept, should not be used to immunize a police officer who violates an arrestee’s non-Fourth Amendment constitutional rights. See Ricciuti, 124 F.3d at 129-30 (rejecting defendants’ argument that “so long as there was probable cause for [the] arrest ... the fabrication of evidence is legally irrelevant” because such a rule would “make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice.”); see also Robinson v. City of Garland, Tex., No. 3:10-CV-2496-M, 2016 WL 1253557, at *8 (N.D. Tex. Feb. 29, 2016) (Ramirez, Mag. J.) (“There may be a due process violation ... when police intentionally fabricate evidence, successfully get someone falsely charged, and relief under the Fourth Amendment is unavailable. The presence of probable cause does not forestall Plaintiffs options under the Fourteenth Amendment.”- (citations omitted)). Relatedly, using probable cause as a shield would unduly limit an arrestee’s right to relief when a police officer fabricates evidence. Because probable cause is no defense to a denial of the right to a fair trial claim, fair trial claims cover kinds of police misconduct not addressed by false arrest or malicious prosecution claims. See Ricciuti, 124 F.3d at 130 (“[A] police officer’s fabrication and forwarding to prosecutors of known false evidence works an unacceptable corruption of the truth-seeking function of the trial process.” (internal quotation marks and citations omitted)); see also Castellano v. Fragozo, 352 F.3d 939, 955 (5th Cir. 2003) (finding jury instructions “deeply flawed” when they limited the jury’s use of fabricated evidence to evaluate a Fourth Amendment malicious prosecution claim without allowing a finding of a Fourteenth Amendment due process violation).

Third and lastly, any limitation of false information allegations to false arrest and malicious prosecution claims would ignore the collateral consequences that are associated with fabricated information even if the officer had probable cause for the initial arrest. As the Fifth Circuit has observed, “[bjeing framed and falsely charged” damages an individual’s reputation, requires that individual to “mount a defense, and places him in the power of a court of law[.]” Cole, 802 F.3d at 772 (footnote omitted). “[TJhese wrongs ... do not disappear where there is no violation of [the Fourth AJmendment” and, “where there is no more specific constitutional protection available, the Fourteenth Amendment may offer protection,” Id. (citations omitted); see Lisker v. City of L.A., 780 F.3d 1237, 1242 (9th Cir. 2015) (explaining that “police investigative materials have evidentiary value wholly, apart from assisting trial testimony—they comprise part of the documentary record before the prosecution and defense and affect charging decisions, plea bargaining, and cross-examination of the investigating officers” (internal quotation marks and citation omitted)).

Although we hold that any information fabricated by an officer can serve as the basis of a claim for a denial of the right to a fair trial, we acknowledge concerns raised by the City of New York (“City”) about attaching liability for false information to an officer’s account of his or her own observations of an alleged criminal activity giving rise to an arrest. For example, the City posits that an affirmance of Ricciuti would lead to the retrial of every unsuccessful state prosecution as a federal Section 1983 action and would turn an individual’s resentment at being prosecuted into allegations of fabrication against police officers. The City cautions that such retrials would impose burdens on society by chilling the work of honest officers and by diverting energy away from general policing and towards defensive litigation.

This court does not take those concerns lightly. Nonetheless, the City’s proposed distinction between fabricated testimony about what an officer claims to have seen during a “buy and bust” and fabricated testimony about a purported confession is incoherent. The court’s holding in Ricciuti covers “false information,” 124 F.3d at 130, not merely false information about confessions. The information fabricated by Lieutenant Wheeler in Ricciuti, exactly like the fabricated information at issue here, is nothing more or less than a false account of something the officer claimed to have seen or heard the defendant say, which he forwarded to prosecutors and to which he would be expected to testify at trial. That the officer here fabricated testimony about what he heard in a bodega, rather than what he heard in a police station during an interview, cannot conceivably make a difference. Having considered the City’s policy arguments, we find that the standard outlined in Ricciuti places appropriate limitations on the availability of a claim for denial of the right to a fair trial based on fabrication of information by a police officer which, serve to address the City’s fears.

As the jury was properly instructed here, the standard in Ricciuti restricts fair trial claims based on fabrication of information to those cases in which an (1) investigating official (2) fabricates information (3) that is likely to influence a jury’s verdict, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty, or property as a result. See Ricciuti, 124 F.3d at 130; see also Jocks, 316 F.3d at 138. In order to succeed on a- claim for a denial of the right to a fair, trial against a police officer based on an allegation that the officer falsified information, an arrestee, must prove by a preponderance of the evidence that the officer created false information, the officer forwarded the false information to prosecutors, and the false information was likely to influence a jury’s decision. See, e.g., Ricciuti v. N.Y.C, Transit Auth., 70 F.Supp.2d 300, 331 (S.D.N.Y. 1999) (jury charge on the denial of constitutional right to a fair trial claim on remand in Ricciuti). These requirements all provide necessary limits on the reach of a denial of a fair trial claim based on false information.

In particular, the requirements that the information be both false and likely to influence a jury’s decision constrain the types of information that can serve as the basis for a denial of the right to a fair trial claim. Ricciuti has been the law for nearly twenty years, without the dire results that the City predicts from the perfectly routine application of its principles to the facts here. Experience thus suggests that the limiting principles of Ricciuti have proven effective to date in restricting claims for a denial of the right to a fair trial against police officers on the basis of false information. The court thus embraces the limiting principles inherent in the Ricciuti standard while affirming that Ricciuti’s holding applies to falsified information contained in an officer’s account of his or her observations of alleged criminal activity which he or she conveys to prosecutors.

II. The District Court Did Not Err in Denying Garnett’s Motion for A New Trial

A. Standard of Review of Jury Instructions

This court reviews supplemental jury charges for abuse of discretion. See Uzoukwu v. City of New. York, 805 F.3d 409, 414 (2d Cir. 2015), “[I]f a supplemental jury charge is legally correct, the district court enjoys broad discretion in determining how, and under what circumstances, that charge will be given.” Id. (internal quotation marks and citation omitted). Further, “a trial court responding to a note from a deliberating .jury is only required to answer the particular inquiries posed” and it “enjoys considerable discretion in construing the scope of a jury inquiry and in framing a response tailored to the inquiry,” United States v. Rommy, 506 F.3d 108, 126 (2d Cir. 2007) (citations omitted).

B. Analysis

In his cross-appeal, Garnett.ar-gues that the district court erred in declining to instruct the jury, in response to the jury’s request for clarification on the issue, that mere knowledge of criminal activity without involvement in the activity does not constitute probable cause to arrest.

We find the district court did not abuse its discretion in declining to give this instruction. First, Garnett’s counsel agreed that the supplemental instruction in response to the jury’s note “accurately]” stated the law to the extent that it charged “an innocent person could be arrested if it appears to a reasonable officer that a crime was being committed [by that person].” App’x at 577-78. “[A] jury instruction will be deemed adequate, so long, as the charge, taken as a whole, is correct and sufficiently covers the case so that a jury can intelligently determine the-questions presented to it.” Care Travel Co. v. Pan Am. World Airways, 944 F.2d 983, 996 (2d Cir, 1991) (internal quotation marks and citations omitted). Because the district court’s probable cause instruction was “correct and sufficiently covered the essential issues[,]” Luciano v. Olsten Corp., 110 F.3d 210, 218 (2d Cir. 1997) (internal quotation marks and citation omitted), we cannot say that the supple-

mental instruction “created a distinct risk of confusing the jury[,]” Gordon v. N.Y.C, Bd. of Educ., 232 F.3d 111, 118 (2d Cir. 2000). The district court’s instructions made clear, and correctly so, that probable cause is evaluated by examining, “based on the totality of the circumstances,” whether the police officer has “knowledge of or reasonably trustworthy information as to facts and circumstances ... sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” App’x at 524. That instruction was sufficient to make clear that (a) what matters is the officer’s reasonable belief; and (b) that the reasonable belief has to be that the individual to be arrested “has been or is ... committing]” a criminal offense. Id. Along with this probable cause instruction, the district court instructed the jury that Garnett had been arrested for criminal sale of a controlled substance and that Garnett could be liable for the conduct of others if, “acting with the mental culpability required for the commission thereof, he intentionally aids such person in such conduct.” App’x at 526-27. The supplemental instruction reiterated these basic principles that are central to probable cause and to the offense for which Garnett was arrested. Thus, combining the district court’s instructions on probable cause and aiding and abetting, the charge taken as a whole made clear that for UC 39 to have probable cause to believe that Garnett was aiding and abetting a drug sale, the officer would have to have had a reasonable belief that Garnett not only knew that an illegal transaction was occurring, but also was “intentionally aiding” that sale of narcotics. Accordingly, we hold that the district court’s supplemental charge “correct[ly] and sufficiently covered the essential issues” with respect to the jury’s question on probable cause. See Luciano, 110 F,3d at 218.

Furthermore, the district court expressly permitted the jury to send another note if its supplemental instruction did not answer the original question, but the jury did not do so. Thus, this court is satisfied that the district court did not abuse its discretion in giving the challenged supplemental jury charge.

CONCLUSION

For the foregoing reasons,' this court holds that the district court did not err in denying UC 39’s motion for judgment as a matter of law or in denying Garnett’s motion for a new trial. In doing'so, this court confirms that thé holding of Riccmti, along with the limiting standard therein, applies to false information contained in an officer’s own account of his or her observations of alleged criminal activity giving rise to an arrest which he or she then conveys to prosecutors. Accordingly, the decision of the district court is AFFIRMED.

      . We note that UC 39 has testified regarding the circumstances leading to Garnett’s arrest multiple times. Where not otherwise indicated, we draw these facts from his testimony at trial before the district court.

      . This statement, however, was deemed inadmissible hearsay by the district court at Gar-nett's federal civil trial as Cintron was unavailable to testify after both parties were unable to locate him.

      . UC 39 noted that Garnett's trial testimony differed from his deposition testimony. In his deposition, Garnett claimed that he was at his grandmother’s house the day of his arrest, that he went straight to a fried chicken restaurant, and that he did not see Roper and Cintron at any time on November 19, 2011 until after he had been arrested.

      . Although Garnett testified that he may have had "K2” on him at the time of his arrest on November 19, 2011, App’x at 366, none of the briefs Contests Garnett’s statement that officers found no drugs or contraband on him.

      . Before the jury was charged, UC 39 moved for a directed verdict on all claims against him pursuant to Federal Rule of Civil Procedure 50. He renewed that motion after trial.

      . Whether this right is rooted in the Sixth Amendment or Fifth and Fourteenth Amendments, or both', is an issue we need not decide because the constitutional harm resulting from the falsified information-at issue is in any event redressable in an action for damages under 42 U.S.C, § 1983. See Morse v, Fusto, 804 F.3d 538, 547 n.7 (2d Cir. 2015), petition for cert. docketed, No. 15-1510 (June 15,2016).

      . Not surprisingly, in light of our language in Ricciuti, many district courts in our circuit have cited Ricciuti as controlling on the merits of fair trial claims, and not merely in qualified immunity cases. See, e.g,, Gomez v. City of New York, — F.Supp.3d -, ---, 14-CV-2621, 2016 WL 2591883, at *3 (E.D.N.Y. May 5, 2016) (citing Ricciuti, among other authorities, for the proposition that “[w]hen an officer supplies false information to a prosecutor about a suspect, the officer has violated that suspect’s right to a fair trial[,] ... even if the officer had probable cause to arrest the accused,” as well as for the proposition that qualified immunity is unavailable "where, as here, the action violates an accused’s clearly established constitutional rights, and no reasonably competent officer could believe otherwise”); Soomro v. City of New York, 174 F.Supp.3d 806, 816, No. 13CV0187, 2016 WL 1266069, at *6 (S.D.N.Y. Mar. 30, 2016) ("The Second Circuit's 1997 precedential decision in Riccfiujti makes it clear that the fabrication and provision of material false evidence to a prosecutor is a violation of clearly established constitutional rights of the accused.”); Pesola v. City of New York, 15-cv-1917, 15-cv-1918, 2016 WL 1267797, at *10 (S.D.N.Y. Mar, 30, 2016) (quoting Ricciuti, 124 F.3d at 130); Ganek v. Leibowitz, 167 F.Supp.3d 623, 637-38, 15cvl446, 2016 WL 929227, at *9 (S.D.N.Y. Mar. 10, 2016) (same), appeal docketed, No. 16-1463 (2d Cir. May 9, 2016).


author: BARRINGTON D. PARKER, Circuit Judge:

text:
    William A. HILL and Tanica Brown, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. DELAWARE NORTH COMPANIES SPORTSERVICE, INC., Defendant-Appellee, Baltimore Orioles Limited Partnership, Intervenor.
    No. 15-2109-cv
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: April 4, 2016
    Decided: October 3, 2016

      GARY Lynch, Carlson Lynch Sweet & Kilpela, LLP, Pittsburgh, PA (Jamisen A. Etzel, Carlson Lynch Sweet & Kilpela, LLP, Pittsburgh, PA, Edward David Hos-kins, Law Offices of E. David Hoskins, LLC, on the brief) for Plaintiffs-Appellants.
    RobeRt Pritchard (Brian' M. Hentosz, on the brief), Littler Mendelson, P.C., Pittsburgh, PA, Terrence M. Connors, Connors LLP, Buffalo, NY, for Defendant-Appel-lee.
    Marie Celeste Bruce, Rifkin Livingston Levitan & Silver LLC, Bethesda, MD, James R. Grasso, Phillips Lytle LLP, Buffalo, NY, for Intervenor.
    Before: POOLER, PARKER, and LIVINGSTON, Circuit Judges.
   BARRINGTON D. PARKER, Circuit Judge:

The Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et. seq„ strives to combat “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” Id. § 202. To that end it requires most employers to pay an overtime premium of one and one-half times the regular rate of pay for those hours that an employee works in excess of the standard forty-hour work week. Id. § 207(a)(1). However, any “amusement or recreational establishment” is exempt from paying overtime if its operations or receipts show that its business is seasonal. Id. § 213(a)(3). Plaintiffs-Appellants William A. Hill and Tanica Brown, who worked at the concessions at Oriole Park, the home field of the Baltimore Orioles, seek overtime compensation, which Defendant-Appellee Delaware North Companies Sportservice Inc. (“DNC Sportservice”), the owner of these concessions, chose not to pay on the basis of this exemption. The United States District Court for the Western District' of New York (William N. Skretny, Judge), granted summary judgment in favor of DNC Sportservice, reasoning that it was exempt.

This appeal calls on us to decide whether a concessions operator at a place of amusement or recreation qualifies in its own right as “amusement or recreational,” even though it does not directly provide the amusement or the recreation. We determine that it does qualify. Though FLSA does not define “amusement or recreational,” the legislative history and an interpretative rule from the Department of Labor (“DOL”) indicate that “concessionaires” at amusement or recreational establishments are themselves typical examples of such establishments. Using the common understanding and definition of “concessionaire,” we hold that an establishment at an amusement or recreational host that sells goods or services to the host’s customer’s for their consumption or use during the host’s amusement or recreational activities is a concessionaire that qualifies as an “amusement or recreational establishment” under FLSA.

To qualify for the exemption, DNC Sportservice must also have satisfied at least one of the two tests for seasonality. Under “Test A,” the seasonal operations test, it must, “not operate for more than seven months in any calendar year.” 29 U.S.C. § 213(a)(3). Under “Test B,” the receipts test, it must be the case that, “during the preceding calendar year, its average receipts for any six months of such year were not more than 33 ⅜ per centum of its average receipts for the other six months of such year.” Id. We conclude that DNC Sportservice satisfied the receipts test during the relevant period and do not rely on the operations test. For all these reasons, we affirm the judgment of the district court.

BACKGROUND

The relevant facts are undisputed. In November 2010, Maryland Sportservice, Inc., a wholly-owned subsidiary of DNC Sportservice, entered into a concession agreement with the Baltimore Orioles Limited Partnership, which has intervened in this case. This agreement grants Maryland Sportservice the right to operate the food, beverage and merchandise sales concessions at Oriole Park. Oriole Park consists of two structures: the baseball stadium itself and part of an old Baltimore & Ohio Railroad warehouse, separated by a pedestrian promenade known as Eutaw Street.

Maryland Sportservice operates entirely within Oriole Park. On game days Maryland Sportservice operates on every level dozens of stands (which are hard stands with three cinderblock walls and a roll-up shutter, where customers walk up to the stand to make their purchase) throughout the ballpark, selling food and beverages, or souvenirs and merchandise. Television monitors in the concourses show the baseball game live so that baseball fans need not miss any of the action on the field when purchasing concessions at a stand. Maryland Sportservice also operates numerous portable concession carts throughout the ballpark, and its vendors walk through the seating areas of the ballpark, selling food and beverages. These services are available only in connection with home baseball games being played at Oriole Park, and only to ticket holders who are at Oriole Park to watch a Major League Baseball game.

Other parts of Maryland Sportservice’s operations at Oriole Park occur on non-game days. It operates a number of clubs and lounges in the ballpark, which oh game days are available only to ticket holders but are also available for rental on other days with food that it caters. In addition, it operates the Orioles Team Store, which sells Orioles apparel and team souvenirs, and Dempsey’s Brew Pub and Restaurant. Both of these are in the warehouse section at Oriole Park and are likewise open only to ticket holders on game days. However, they -are also open on non-game days and during the off-season, and individuals do not require a game ticket to enter them on these days.

Though Maryland Sportservice has some operations on non-game days, the parties agree that “the overwhelming majority of its business is conducted exclusively with ticket holders during game baseball games.” J.A. 186; see id. at 312. Appellants do not dispute that its average receipts at Oriole Park for the six months of 2011 in which receipts were smallest were not more than 33 ½% of the average receipts for the other six months when receipts were the largest. Receipts in 2010 yield an even more stark comparison between the busiest six months and the others. Before Maryland Sportservice started operating the concessions at Oriole Park in 2010, ARAMARK operated them under substantially the same conditions. When the 2010 receipts for ARAMARK and Maryland Sportservice are considered together, the result is that the average receipts of these entities during the off-season months of January through March and October through December are a mere 4.86% of the average receipts for the baseball season months of April through September. This disparity between the baseball season and the off-season is consistent with the fact that Maryland Sportservice has around 600 employees working at its operations on game days but as few as 12 employees working at the Team Store and Dempsey’s on non-game days. This disparity is also typical of the concessions that DNC Sportservice operates at baseball stadiums through various subsidiaries. Its concession services at the Great American Ball Park in Cincinnati, Ohio, Progressive Field in Cleveland, Ohio, and Metro Bank Park in Harrisburg, Pennsylvania all had average receipts for the six months in 2010 with the smallest receipts that were not more than 33 ⅜% of the average receipts for the other six months of 2010. Like Oriole Park, each of these other facilities is a baseball-only ballpark.

Appellants were employees of Maryland Sportservice’s concessions. Hill was employed from March through most of June 2011, and Brown was employed from February to June 2011. individuals worked primarily as retail supervisors primarily at the Orioles Team Store but also did some work at the mini-gift and souvenir stands in Oriole Park. Appellants regularly worked in excess of forty hours, but Maryland Sportservice classified them as exempt from FLSA’s overtime provision pursuant to the “amusement or recreational establishment” exemption- and paid them only their regular hourly rate for the excess hours, investigated Maryland Sport-service’s use of the exemption in 2012, but informed it on January 2, 2013 that DOL had found no violation of FLSA. The DOL provided no further explanation.

In September 2011, Hill commenced a putative class action, alleging that DNC Sportservice failed to pay him and other similarly-situated employees overtime compensation in violation of FLSA. In the same month, Brown filed a written consent to join this action. In March 2013, the Baltimore Orioles Limited Partnership successfully moved to intervene.

In separate reports and recommendations on July 28, 2014 and December 15, 2014, the magistrate judge to whom the case was referred recommended that the district court grant DNC Sportservice’s motions for summary judgment. The magistrate judge reasoned that DNC Sportser-vice qualified for the “amusement or recreational establishment” exemption from FLSA’s overtime requirement because the concession activities “were an integral part of the amusement and recreational character of Oriole Park.” Special App. 6. Turning to seasonality, it decided that DNC Sportservice “satisfied Test A of § 213(a)(3) since it did not operate for more than seven months in 2011” and declined to reach Test B. Id. at 8.

The district court adopted the respective reports and recommendations, and entered judgment. The Plaintiffs appealed.

DISCUSSION

Our review of the district court’s grant of summary judgment is de novo. Pippins v. KPMG, LLP, 759 F.3d 235, 239 (2d Cir. 2014). We may affirm summary judgment on any grounds with sufficient support in the record, even if they differ from the ones on which the district court relied. McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012). Whereas the district court appeared to suggest a general principle that an establishment can qualify if its operations are an integral part of a host establishment’s amusement or recreational character, we adopt a narrower rule that a “concessionaire,” as defined below, has the amusement or recreational character of its host. Also, whereas the district court reasoned that Maryland Sportservice satisfied the seasonal operations test, we decide instead that it satisfied the receipts test.

I. “Amusement or Recreational Establishment”

FLSA does not define either “amusement or recreational establishment” or any of the individual words in this phrase. See 29 U.S.C. § 203. In Chen v. Major League Baseball Properties, Inc., 798 F.3d 72 (2d Cir. 2015), our first and only case to deal with this exemption, we interpreted “establishment” to mean “a distinct, physical place of business as opposed to an integrated multiunit business or enterprise.” Id. at 79. Though we also discussed the meaning of “amusement or recreational,” the amusement or recreational character of the establishment in Chen was not contested as it is for the establishment here. Id. at 82. Thus, this case requires further analysis of the “amusement or recreational” aspect of the exemption. As in Chen, we first “determine, as a threshold matter, the meaning of the term” at issue and “then turn to the question of whether ... the relevant establishment! ] is covered by the exemption.” Id. at 76.

A. Meaning of “Amusement or Recreational”

As an initial matter, the meaning of “amusement or recreational” in this context is ambiguous. See Chao v. Double JJ Resort Ranch, 375 F.3d 393, 396-97 (6th Cir. 2004) (“ ‘[rjecreational establishment’ is an ambiguous phrase”). In Chao, the court noted that “Congress clearly meant for there to be a limitation to the exemption, and the words used in the statute do not plainly convey where that boundary lies.” Id. at 397. Though Appellants argue that it is "evident that Delaware North’s operations, which are limited to the provision of food and retail services, are not of a recreational or amusement character,” Appellants’ Opening Br. 25, this proposition is actually only arguable. The food, drink, and merchandise that Maryland Sportser-vice sells at Oriole Park are predominately for baseball game attendees’ use and consumption as they, watch the game, and they enhance the amusement or recreational value of watching the game. For this reason, we believe its operations have an amusement or recreational character because they provide a measure of amusement or recreation that would otherwise be absent from the stadium.

Because we are faced with textual ambiguity, we turn to the legislative history and to statements of the law from DOL, just as we did in Chen, 798 F.3d at 76-79. Our first task is to identify the contours of the exemption. In this initial inquiry, we seek not a broad-or narrow statutory construction, but the one that most accurately reflects congressional intent. We have said that FLSA “exemptions ‘are to be narrowly construed' against the employers seeking ’ to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.’ ” Id. at 81 (quoting Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 531 (2d Cir. 2009)). This rule, as stated, applies only after we have discerned the “terms and spirit” of a given exemption. Consistent with this approach, we did not especially aim in Chen for an interpretation of “establishment” that exempted as few workers as possible; instead, we examined different sources, and it was only after ascertaining the definition of “establishment” that we “narrowly construed” the exemption. See 798 F.3d at 76-79, 81-82.

1. Legislative History

We first examine the legislative history. Congress first specified that certain amusement or recreational establishments would be exempt in the 1961 amendments to FLSA. See S. Rep. No. 87-145, at 49, 68 (1961); Chen, 798 F.3d at 77. The relevant part of the 1961 provision exempted from overtime compensation “any employee employed by any retail or service establishment, ... if such establishment ... is an amusement or recreational establishment that operates on a seasonal basis.” Pub. L. 87-30, 75 Stat. 65, 71 (1961). Consistent with this earlier statutory text, we observed that, at this time, “employees of an amusement or recreational establishment operating on a seasonal basis were exempt only if the establishment was also a ‘retail or service establishment.’ ” Chen, 798 F.3d at 77.

With the 1966 amendments to FLSA, the exemption took its current form. Pub. L. 89-601, 80 Stat. 830, 833 (1966), (codified as amended at 29 U.S.C. § 213(a)(3)). As we observed in Chen, the amended “wording seems to have been intended to establish criteria for seasonality, and by eliminating the retail and service language to make plain that employees of seasonal amusement or recreational companies generally are exempt.” 798 F.3d at 77 (internal quotation marks omitted) (quoting Marshall v. New Hampshire Jockey Club, Inc., 562 F.2d 1323, 1329 (1st Cir. 1977)). Thus, any establishment that would have qualified under the 1961 version of the exemption also qualifies under the current version.

The committee reports for the 1961 amendments make clear that concessionaires at places of amusement or recreation had the amusement or recreational character required for the exemption. The reports provide that “[a] similar exemption is provided for employees of amusement and recreational establishments operating on a seasonal basis. These establishments are typically those operated by concessionaires at amusement parks and beaches and are in operation for '6 months or less a year.” H.R. Rep. No. 87-75, at 10 (1961) (emphasis added); accord S. Rep. No. 87-145, at 28. With the word “at,” Congress distinguished between concessionaires and the amusement parks and beaches that host them. Thus, the legislative history treáts concessionaires ' as core examples of amusement or recreational establishments, even when analyzed separately from the amusement or recreational sites they serve. This history undermines Appellants’ suggestion that a concessionaire can only qualify for the exemption if it is part of the same establishment as the host amusement or recreational establishment.

That concessionaires are examples of exempt establishments also defeats Appellants’ contention that Congress cannot have understood an establishment that sells food - and merchandise to have an amusement or recreational character. Though the committee reports do not define “concessionaire,” Merriam-Webster’s Unabridged Dictionary defines it as. “a person or firm that is the beneficiary of a concession,” and a concession is most pertinently defined as “a lease of premises or a portion of premises for a particular purpose, especially for some purpose supplementary to another activity ... or for providing entertainment.” Furthermore, the definition of “concessionaire” gives as examples “one that owns or operates a stand or booth to sell refreshments or opportunities for entertainment to patrons of a recreational center (as a beach, park, or fair),” “one that holds the right to sell a particular type of product or service in a given location,” and “one that provides food service in a factory, school, or other establishment.” Based on this dictionary definition, we are comfortable in. concluding that the essence of serving as a concessionaire is having a contractual arrangement with a host to operate on the host’s premises to sell goods to the host’s customers for them to use or consume, also on the host’s premises, during the host’s amusement or recreational activities.

Modest additional support that, food and retail establishments can be amusement or recreational for the purpose of the exemption comes from language in the same committee reports deeming this exemption “similar” to one for “employees of a retail or service establishment’ employed primarily in connection with the preparation or offering of food for human consumption on the premises.” S, Rep. No. 87-145, at 28; accord H.R. Rep. No. 87-75, at 10. It seems unlikely that Congress would have intended to exempt these food service employees but not the ones selling food as part of the concessions at an amusement or recreational establishment.

Having found no statements in the legislative history or past versions of the statutory text that contradict the ones we have highlighted, we conclude that, these sources reflect a congressional understanding that concessionaires that sell food, drink, and merchandise at amusement or recreational sites have the requisite amusement or recreational nature to qualify for the exemption.

2. Statements from DOL

Further guidance comes from the DOL. Among such statements, the most authoritative are the Department’s rules. In general, there are two types of rules: legislative rules, which have the force of law, and interpretive rules, which inform the public of the agency’s construction of the statutes it administers. Perez v. Mortg. Bankers Ass’n, — U.S. -, 135 S.Ct. 1199, 1203-04, 191 L.Ed.2d 186 (2015): Interpretive rules lack the force of law because they need not undergo notice- and-comment rulemaking as legislative rules do. Id at 1204. For this reason, we defer to interpretive rules “only to the extent that we find them persuasive.” Reiseck v. Universal Commc’ns of Miami, Inc., 591 F.3d 101, 106 (2d Cir. 2010) (citing Skidmore v. Swift, 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).

Here, the potentially relevant regulations are merely persuasive because they are interpretive. See 29 C.F.R. § 779.0 (describing the rules as “official interpretations ... by which the Department of Labor will be guided”); The Fair Labor Standards Act as Applied to Retailers of Goods or Services, 35 Fed. Reg. 5856 (Apr. 9,1970) (codified as amended at 29 C.F.R. § 779) (noting that the notice-and-comment rulemaking requirement was “not applicable because these are interpretive rules”). The rule that discusses the exemption most extensively is 29 C.F.R. § 779.385, which provides that:

“Amusement or recreational establishments” as used . in [29 U.S.C. § 213(a)(3)] are establishments frequented by the public for its amusement or recreation and which are open for 7 months or less a year or which meet the seasonal receipts test provided in clause (B) of the exemption. Typical examples of such are the concessionaires at amusement parks and beaches.

This passage implies that concessionaires at amusement or recreational sites can be “establishments frequented by the public for its amusement or recreation.” Though not binding, this rule adds persuasive value and reinforces our view of the legislative history. Though legislative history can risk becoming “an exercise in looking over a crowd and picking out your friends,” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (internal quotation marks omitted), the fact that DOL’s interpretive rule on the exemption adopts the sentence about concessionaires gives us confidence that we have not taken that sentence out of context.

Two other interpretive rules confirm our view of the history of the exemption; they note that the exemption appeared in the 1961 amendment and was moved to a different .section in 1966, without suggesting in any way that the exemption was narrowed in 1966. See 29 C.F.R. §§ 779.338, 779.381. No other rules dealing with retail establishments, under FLSA conflict with these. Thus, there is consistency between the legislative history and DOL’s interpretive rules in indicating that concessionaires can have an amusement or recreational character.

We next turn to DOL opinion letters. Though we have often relied on them, Barfield v. New York City Health & Hospitals Corp., 537 F.3d 132, 149 (2d Cir. 2008), we are not bound- by them-any more than we are -bound by DOL’s interpretive rules. The Supreme Court has stated that “opinion letters ... do not warrant Chevron-style deference.” Christensen v. Harris Cty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Instead, the level of deference to “opinions of Administrator under” FLSA “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161.

One letter we find relevant is from 1967, which further supports our view that the 1966 amendments did not narrow the exemption. Comparing the 1966 and 1961 versions, the letter states that “the amended act does not require that the amusement or recreational establishment be a retail or service establishment as was required under ... the prior act.” U.S. Dep’t of Labor Wage & Hr. Div. Op. Ltr., 1967 DOLWH LEXIS 164, at *3 (June 22,1967) [hereinafter 1967 Letter]. If anything, this statement, combined with the legislative history, suggests that a concessionaire would have more clearly qualified under the 1961. amendments than the amusement or recreational establishments that hosted them because concessionaires are more obviously retail establishments.

However, the core message of the 1967 Letter is in tension with DOL’s interpretive rule, 29 C.F.R. § 779.385. Whereas the interpretive rule treats a concessionaire as an exempt establishment on its own, the 1967 Letter seems to exempt concessionaires only as part of a combined establishment with their hosts by saying the exemption applies “provided the operations of the concessionaire and the host establishment constitute a single establishment which meets the requirements for the exemption.” 1967 Letter, at *1. Since the 1967 Letter states that “it is only in rare instances that two or more business activities on the same premises ... [will] constitute more than one establishment for the purpose of the exemption[ ],” id. at *2, it generally also indicates that 29 C.F.R. § 779.385 would apply. Nonetheless, the reasoning of these two statements differ in a significant way that would affect the application of the seasonality tests. For example, under 29 C.F.R. § 779.385, the receipts to measure for Test B would seem to be just the concessionaire’s. In contrast, the 1967 Letter implies that the relevant receipts would be the combined receipts of the concessionaire and host establishment.

A different opinion letter from DOL, from 2009, may outright contradict 29 C.F.R. § 779.385.- U.S. Dep’t of Labor Wage & Hr. Div. Op. Ltr. FLSA2009-11, 2009 WL 649013 (Jan. 15, 2009) [hereinafter 2009 Letter]. The 2009 Letter dealt with “a concessionaire at a privately-owned recreational establishment” that “holds an exclusive contract with the owner of a recreational establishment to provide various catering services to the general public and to private parties who use the facility.” Id. at *1. The DOL determined that this concessionaire “is not itself an amusement or recreational establishment, but is a legal entity separate from the recreational establishment where its employees work.” Id. at *2. It concluded that this concessionaire “and the recreational establishment with which it contracts are not a ‘single establishment’ ” and that it is thus ineligible for the exemption. Id.

Not only are the J.967 and 2009 Letters in tension with the legislative history and with 29 C.F.R. § 779.385, but they are also in tension with DOL’s Field Operations Handbook. This “agency manual” is on the same level as “opinion letters,” “policy statements,” and “enforcement guidelines” as an interpretation of law. See Christensen, 529 U.S. at 587, 120 S.Ct. 1655. In discussing the amusement and recreational exemption, it offers as a qualifying example establishments that sell food and other goods in national parks and similar areas when they are “limited by policy of the Interior or Agriculture Departments to merchandising only those items and pro-vidingonly those services appropriate-for the public use and enjoyment of the’areas administered by them.” U.S. Dep’t of Labor Wage & Hr. Div. Field Operations Handbook, § 25j02 (2016). In these settings,- “the activities of these establishments are considered to have a sufficiently intimate relation to the operation of these recreational areas to warrant their characterization as amusement or recreational establishments.” Id. Here, as in 29 C.F.R. § 779.385, the establishments selling food or merchandise are exempt in their own right, not because they constitute a single establishment .with the national parks or other government-administered areas they serve.

Overall, it appears that DOL does not have a consistent position as to whether or how concessionaires will be deemed to have an amusement or recreational character. Fortunately, we are not required to reconcile apparent conflicts among non-legislative interpretations of law by DOL. In general, whether a non-legislative interpretation deserves deference under Skidmore depends on whether it is “consisten[t] with earlier and later pronouncements.” 323 U.S. at 140, 65 S.Ct. 161. Instead of attempting to harmonize DOL’s various pronouncements, we choose to follow the legislative history, adopted in 29 C.F.R. § 779.385, and hold that concessionaires at amusement or recreational establishments will qualify on their own as exempt establishments if they meet at least one of the seasonality tests in 29 U.S.C. § 213(a)(3). Following this approach, we define concessionaires as establishments whose purpose is to sell goods and services on the premises of an amusement or recreational host facility to the host’s customers for.their use or consumption on the host’s premises as they participate in the host’s amusement or recreational activities. To the extent that any of DOL’s opinion letters or other non-legislative interpretations of FLSA conflict with this holding, we decline to give them any weight.

Our holding is a narrow one in three senses. First, with respect to concessionaires as defined above, we are not precluding the possibility that they might also qualify because their operations and those of their host establishments constitute a single qualifying establishment. Second, we do not intend to alter the effect or interpretation of any statements by DOL as they apply to establishments other than concessionaires. Third, we have limited our holding to establishments that are most commonly - understood to be concessionaires. In so doing, we do not determine the outer limits of this- category. Overall, we are merely providing an alternative path for archetypal concessionaires to qualify as “amusement or recreational” establishments in their own right for the purposes of the exemption.

B. Application to Maryland Sport-service

We now consider whether Maryland Sportservice’s operations at Oriole Park make it a concessionaire. As an initial matter, Oriole Park, the host facility, clearly has an amusement or recreational character because of the baseball games it hosts. Next, though Appellants contend that the concessions are physically separate from other activities at Oriole Park, they do not contest that Maryland Sport-service operates entirely within Oriole Park. In any event, the fact that part of the park complex is a building separated by Eutaw Street does not mean that any operation's in that building are operating on a different premises from the rest of the concessions. Finally and most importantly, the parties agree that Maryland Sportservice’s business is predominantly with ticket holders during game days. It is clear to us that this establishment has as its primary purpose selling food, drink, and Orioles merchandise to customers of Oriole Park for their consumption and use as they participate in watching the baseball games held there. For these reasons, Maryland Sportserviee possesses the characteristics of a concessionaire described above.

The only remaining question arises from the small amount of business Maryland Sportserviee does outside of game days with non-ticket holders, which are not activities of a concessionaire as defined above because these activities are not associated with a particular baseball game. Operations on non-game days include the Orioles Team Store, where Appellants primarily worked, Dempsey’s Brew Pub, and rental of clubs and lounges at Oriole Park. We think the disparity in the numbers of employees on game days compared to non-game days—as many as 600 versus as few as 12—makes the extent of operations that are not typical of a concessionaire de minimis. We believe that, with our working definition of concessionaire, a de minimis level of non-concessionaire activities does not detract from an establishment’s overall amusement or recreational character. For these reasons, we conclude that Maryland Sportserviee is an “amusement or recreational establishment” under FLSA.

II. Seasonality Tests

Operating as an amusement or recreational establishment is not sufficient , to qualify for the exemption from overtime compensation. Rather, as noted, FLSA exempts such an establishment only “if (A) it does not ■ operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33 ½ per centum of its average receipts for the other six months of such year.” 29 U.S.C. § 213(a)(3). Following the district court, we refer to these tests as “Test A” and “Test B,” Roughly speaking, Test A is based on- when during the year the establishment is open for business, whereas Test B is based on when it receives most of its revenue.

A. Test A: Seasonal Operations

The text .of Test A might suggest that an establishment must not engage in any activity at all for five months, even for maintenance purposes. However, DOL has interpreted “operate” to mean “operate[] as an amusement or recreational establishment.” U.S. Dep’t of Labor Wage & Hr. Div. Field Operations Handbook § 25j01(b). It has indicated that, “[i]f an establishment engages .only in activities such as maintenance operations or ordering supplies during the dead season, it is not considered' to be operating for the purposes of the exemption.” Id. For example, it has . advised that lifeguards’ off-season maintenance work would not cause their establishment to fail Test A:

The fact that some of the lifeguards work more than seven months in the •year maintaining the equipment would not serve to deny the exemption under [29 U.S.C. § 213(a)(3) ], provided the establishment (the beach) is not open as a recreational facility (i.e., protected swimming) for more than seven months in any calendar year.

U.S. Dep’t of Labor Wage & Hr. Div. Op. Ltr. WH-309, 1975 WL 40933, at *1 (emphasis removed) (Jan. 24,1975). One of our sister Circuits has interpreted the seasonal operations test similarly, deciding that a baseball franchise satisfied the test even though “Plaintiff was employed in the off-.season months relative to the preparation and maintenance of the baseball fields.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 596 (11th Cir. 1995). The Eleventh Circuit reasoned that “[i]t is the revenue-producing operation of the ... franchise which affords it the protection of the exemption.” Id.

Maryland Sportservice’s operations at Oriole Park do not as obviously satisfy the seasonal operations test. While most of its business is tied to baseball games, which occur during a baseball season lasting no more than seven months, it continues to operate the Orioles Team Store and Dempsey’s Brew Pub during the off-season. Its statement that individuals do not need a ticket to enter these places during the off-season strongly suggests that its employees are not simply performing maintenance or preparation work in this part of the year. If so, then under Jeffery, the business of the Team Store and Dempsey’s would be part of Maryland Sportser-vice’s “revenue-producing operation.” Though the revenue from these operations is almost certainly de minimis, we are hesitant to hold that such operations are not occurring at all, especially since Test B deals with receipts and is apparently designed to measure revenue in different months.

We are also uncertain how DOL would decide this question. Maryland Sportser-vice cites several opinion letters for the proposition that a recreational establishment is not operating if it “is not open as a recreational facility.” DOL Wage & Hour Op. Ltr. FLSA 2009-5, 2009 WL 648997 (Jan. 14, 2009); DOL Wage & Hour Op. Ltr., 1986 WL 1171127 (May 12, 1986); DOL Wage & Hour Op. Ltr., 1986 WL 1171081 (Jan. 17, 1986); DOL Wage & Hour Op. Ltr. WH-309, 1975 WL 40933 (Jan. 24, 1975). However, none of the scenarios discussed in these letters described involve revenue-producing operations,- as opposed to maintenance. Also, while the DOL did investigate Maryland Sportser-vice’s use of the exemption, it did not provide any explanation to support its finding of no violation. Thus, we are reluctant to bind this Court to a rule as to whether and when revenue-producing operations that are not for amusement or recreational purposes should count toward the seasonal operations test’s seven-month limit.

B. Test B: Receipts

Fortunately, we need not articulate such a rule in this case because we readily conclude that DNC Sportservice satisfied the receipts test. The test is relatively straightforward to apply when the establishment has operated for the whole of the “preceding calendar year” but needs to be adapted when it began operating in the middle of the preceding year. Here, Maryland Sportservice employed Appellants in 2011 but only began to serve as the concessionaire at Oriole Park in November 2010. A literal reading of the text of Test B would yield an unfair advantage to establishments that start operating midyear because they would have no receipts in the months before they started operating. Since Maryland Sportservice started in November of the preceding calendar year, it would seem automatically to satisfy the receipts test because its receipts from January through June 2010, which would appear to be zero, would almost certainly not be more than a third of the average receipts for July through December 2010, as the company conducted business in November and December.

At any rate, we question whether a literal reading of Test B in fact comports with § 213(a)(3)’s reasonable construction. See John F. Manning, The Absurdity Doctrine, 116 HARV. L. Rev. 2387, 2486 (2003) (distinguishing “literal meaning” from “reasonable-user-of-3anguage” approach to statutory interpretation and noting that latter approach “eliminates ... putative absurdities ... arising] under a literal meaning framework”). Though we read a statute according to its plain language, the Supreme Court has cautioned against literal readings producing absurd results.” See Corley v. United States, 556 U.S. 303, 317, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009); see also Local Union 86, Int’l Bhd. of Elec. Workers, AFL-CIO v. NLRB, 631 F.3d 23, 27 (2d Cir. 2010). The result we have described above is absurd because it threatens to provide many amusement and recreational establishments a way to satisfy Test B before and during the first full year of operation even when they would fail the test in subsequent years. Looking beyond this literal interpretation, we think that, when an establishment was not operating during the entirety of the “preceding calendar year,” it must have some functional equivalent of a preceding calendar year’s record of receipts to satisfy Test B.

The DOL’s Field Operations Handbook has recognized the need for such an approach, and it has offered establishments two ways of satisfying the receipts test:

a. If the enterprise of which the new establishment is a part operates other seasonal amusement or recreational establishments ... of the same type in the same general area under substantially the same conditions and all such establishments conclusively and clearly meet the condition of Test B; or
b. If such employer does not have other such establishments but other employers operating the same type of establishment in the same general area under substantially the same conditions and manner of operation clearly are entitled to exemption under Test B.

§ 25j08(a)(2). Though DOL’s application of the receipts test for new establishments is not binding, we choose to grant it Skid-more deference because we see the “thoroughness evident in its consideration,” and “validity of its reasoning,” and because we have not found any contrary interpretive statements from the DOL. 323 TJ.S. at 140, 65 S.Ct. 161.

DNC Sportservice claims that Maryland Sportservice’s concessions at Oriole Park satisfied Test B in 2011 under both criteria (a) and (b) of DOL’s test, for new business, and Appellants do not dispute these claims. Corresponding to criterion (a), DNC Sportservice submits that, for its other baseball stadium concessions, the average receipts of the six months of 2010 with the smallest receipts were not more than 33 ½% of the average receipts of the six months of 2010 with the greatest receipts. Since these other stadiums were baseball-only ballparks like Oriole Park, it appears that DNC Sportservice operated these other concessions “under substantially the same conditions” as the Oriole Park concessions. Since all these other establishments conclusively and clearly pass the receipts test, we conclude that the Oriole Park concessions satisfy prong (a), as well.

Even if these concessions did not satisfy criterion (a), criterion (b), which asks an employer to identify “other employers” that are similarly situated, would be satisfied. Here, DNC Sportservice identified the most closely analogous employer to Maryland Sportservice: its immediate predecessor in operating the same concessions at Oriole Park, ARAMARK. Since ARA-MARK operated these concessions until November 2010, combining ARAMARK’s receipts in 2010 with Maryland Sportser-vice’s receipts for the remainder of that year arguably yields the best estimate of what Maryland Sportservice’s receipts would have been in 2010 had it operated the concessions the entire year. The 2010 receipts imply a clear entitlement to exemption under Test B, since the least busy six months had only 4.86% of the receipts of the other six months.

Though other plaintiffs might have contested whether these approximations to a preceding calendar year’s receipts are close enough to show that Maryland Sport-service satisfies Test B, Appellants here have not done so. Instead, having contended (unpersuasively) that Maryland Sport-service has to qualify as part of a single establishment with Oriole Park, they assert that, even if Maryland Sportservice so qualifies, a genuine issue of material fact exists as to whether the combined single establishment satisfies either Test A or Test B. However, because we have decided that Maryland Sportservice qualifies in its own right as an amusement or recreational establishment by virtue of its function as a “concessionaire” operating at an amusement or recreational host, we need only consider whether Maryland Sportservice meets either of the seasonality tests. Thus, any issue of fact as to the seasonality of Oriole Park combined with Maryland Sportservice, even if genuine, is not material. Since Maryland Sportservice’s statements as to various receipts are supported by sufficient evidence, we conclude that it was a seasonal establishment in 2011 under Test B.

CONCLUSION

In sum, Maryland Sportservice is an “amusement or recreational establishment” because it is a “concessionaire” at an amusement or recreational facility, which Congress intended to exempt if it also meets one of the seasonality tests. Because Maryland Sportservice satisfies the receipts test as applied to new businesses under DOL’s guidance, Appellants were exempt from overtime compensation under 29 U.S.C. § 213(a)(3). Accordingly, we AFFIRM the judgment of the district court.

      . Judge Livingston views § 213(a)(3), when considered in light of its original text and 1966 amendment and the DOL materials referenced herein, to be sufficiently clear as not to require resort to legislative history. Accordingly, although she joins in all other parts of this opinion, she does not join in the subsection that follows, to the extent it relies on legislative history.


text:
    UNITED STATES of America, Appellee, v. Corey JONES, Defendant-Appellant.
    Docket No. 15-1518
    United States Court of Appeals, Second Circuit.
    October 3, 2016
    Before: JOHN M. WALKER, Jr., GUIDO CALABRESI, PETER W. HALL, Circuit Judges.
   ORDER

It is hereby ORDERED that, pending the Supreme Court’s disposition in Beckles v. United States, No. 15-8544, this Court’s opinion, issued on July 21, 2016, is VACATED and Appellee’s petition for rehearing and for rehearing en banc is held in abeyance. Following the disposition in Beckles, Appellee will be permitted to refile the petition for rehearing, which may include arguments based on the decision in Beckles, and Appellant will be permitted to file a response.