Akins et al v. Worley Catastrophe Response, LLC et al

Filing 128

ORDER AND REASONS on Plaintiffs' 82 Motion for Partial Summary Judgment. Having considered the complaint, as amended, the submissions of the parties and the applicable law, IT IS ORDERED that the motion is DENIED, for the reasons set forth herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 5/8/13. (tbl)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN AKINS ET AL.

CIVIL ACTION

VERSUS

NO. 12-2401

WORLEY CATASTROPHE
RESPONSE, LLC ET AL.

MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTION
John Akins and 179 other named plaintiffs, individually on and on behalf of all
those similarly situated,1 filed this putative collective action under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 216(b). Plaintiffs allege that their former
employers, Worley Catastrophe Response, LLC, Worley Catastrophe Services, LLC
(collectively “Worley”) and Michael Allen Worley (“Mr. Worley”), failed to pay them
overtime wages as required by the statute. This matter was referred to a United States
Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C.
§ 636(c), upon the written consent of all parties. Record Doc. No. 26. The court has
conditionally certified this matter as a collective action.
Plaintiffs filed a motion for partial summary judgment, seeking decisions in their
favor on four issues: (1) defendants did not pay plaintiffs on a “salaried basis” under the
FLSA, which would lead to a finding that plaintiffs did not qualify for either of the three

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Additional plaintiffs have filed consent forms to opt in to the collective action, bringing the
total number of plaintiffs to 237 as of April 4, 2013. Plaintiffs’ memorandum in support of their
motion for partial summary judgment, Record Doc. No. 82-1 at p. 2 n.3.

exemptions from the overtime pay requirement asserted by defendants, namely, (2) the
administrative employee exemption, (3) the executive employee exemption or (4) the
highly compensated worker exemption. Payment of wages on a salaried basis is a
threshold requirement for the applicability of all three of the exemptions. Record Doc.
No. 82.
Defendants filed a timely opposition memorandum in which they contend that
plaintiffs cannot carry their burden to show the absence of genuine issues of disputed,
material facts regarding any of the four issues raised by the motion. Alternatively, citing
Fed. R. Civ. P. 56(d)(1), defendants argue that plaintiffs’ motion for partial summary
judgment should be denied or deferred as premature because it cannot be decided before
pending discovery is completed regarding the issues raised by the motion. Record Doc.
No. 105.
Having considered the complaint, as amended, the submissions of the parties and
the applicable law, IT IS ORDERED that the motion is DENIED, for the following
reasons.
A.

Standards for Summary Judgment

“A party may move for summary judgment, identifying each claim or defense–or
the part of each claim or defense–on which summary judgment is sought. The court shall
grant summary judgment if the movant shows that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
Rule 56, as revised effective December 1, 2010, establishes new procedures for
supporting factual positions:
(1) A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A
party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials,
but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Fed. R. Civ. P. 56(c).
Thus, the moving party bears the initial burden of identifying those materials in
the record that it believes demonstrate the absence of a genuinely disputed material fact,
but it is not required to negate elements of the nonmoving party’s case. Capitol Indem.
Corp. v. United States, 452 F.3d 428, 430 (5th Cir. 2006) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). “[A] party who does not have the trial burden of production
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may rely on a showing that a party who does have the trial burden cannot produce
admissible evidence to carry its burden as to [a particular material] fact.” Advisory
Committee Notes, at 261.
If the moving party bears the burden of proof on an issue, either because the
movant is the plaintiff or is a defendant asserting an affirmative defense, the movant must
“‘establish beyond peradventure all of the essential elements of the [claim or] defense’”
to warrant judgment in its favor. United States v. Renda Marine, Inc., 667 F.3d 651, 659
(5th Cir. 2012), cert. denied, 81 U.S.L.W. 3335, 81 U.S.L.W. 3574, 81 U.S.L.W. 3579
(2013) (quoting Addicks Serv., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 293 (5th Cir.
2010)); accord Meecorp Capital Mkts. LLC v. Tex-Wave Indus. LP, 265 F. App’x 155,
158 (5th Cir. 2008) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).
Similarly, to withstand a properly supported motion, the nonmoving party who bears the
burden of proof at trial must come forward with evidence to support the essential
elements of its claim. Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d
698, 712 (5th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 321-23 (1986)).
No genuine disputed material fact exists if a rational trier of fact could not find for
the nonmoving party based on the evidence presented. Id. A fact is “material” if its
resolution in favor of one party might affect the outcome of the action under governing
law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

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“Factual controversies are construed in the light most favorable to the nonmovant,
but only if both parties have introduced evidence showing that an actual controversy
exists.” Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998) (emphasis
added); accord Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005). “We do not,
however, in the absence of any proof, assume that the nonmoving party could or would
prove the necessary facts.” Badon v. R J R Nabisco Inc., 224 F.3d 382, 394 (5th Cir.
2000) (quotation omitted) (emphasis in original). “Conclusory allegations unsupported
by specific facts . . . will not prevent the award of summary judgment; ‘the [nonmoving
party can]not rest on his allegations . . . to get to a jury without any “significant probative
evidence tending to support the complaint [or affirmative defense].”’” Nat’l Ass’n of
Gov’t Employees, 40 F.3d at 713 (quoting Anderson, 477 U.S. at 249).
“Moreover, the nonmoving party’s burden is not affected by the type of case;
summary judgment is appropriate in any case where critical evidence is so weak or
tenuous on an essential fact that it could not support a judgment in favor of the
nonmovant.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotation
omitted) (emphasis in original); accord Duron v. Albertson’s LLC, 560 F.3d 288, 291
(5th Cir. 2009).
Thus, plaintiffs in the instant case must demonstrate the absence of any material
fact disputes as to their allegation that they were not paid on a salaried basis. If they fail

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to carry their burden on this threshold issue, they cannot prevail on their other arguments
that none of the three overtime exemptions applied to them.
B.

Material Fact Questions Are In Dispute Regarding Whether Plaintiffs Were
Paid on a Salaried Basis

Section 216(b) of the FLSA grants employees a cause of action to recover
overtime compensation and liquidated damages against an employer who violates the
statute by failing to pay for overtime. Workers who are “employed in a bona fide
administrative, executive, or professional capacity” are exempt from the overtime pay
requirement. 29 U.S.C. § 213(a)(1). The FLSA does not define the terms “executive,”
“administrative” or “professional” for purposes of the exemption, but directs the
Secretary of Labor to do so by regulation. Id. “The Secretary’s regulations have the
force of law, and are generally given controlling weight.” Anani v. CVS RX Servs., Inc.,
788 F. Supp. 2d 55, 59 (E.D.N.Y. 2011) (citing Auer v. Robbins, 519 U.S. 452, 461
(1997)).
To qualify for an exemption as an administrative, executive or highly
compensated2 employee under the Department of Labor’s regulations, the employee must
be paid on a “salary basis” of not less than $455 per week. 29 C.F.R. §§ 541.100,
541.200, 541.601.

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The highly compensated employee exemption (for employees with total annual
compensation of at least $100,000) was added by the Department of Labor in 2004 under the
authority of 27 U.S.C. § 213. 29 C.F.R. § 541.601, 69 Fed. Reg. 22260 (Apr. 23, 2004).
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“Salary basis” is defined by the Department of Labor as follows.
(a) General rule. An employee will be considered to be paid on a “salary
basis” within the meaning of these regulations if the employee regularly
receives each pay period on a weekly, or less frequent basis, a
predetermined amount constituting all or part of the employee’s
compensation, which amount is not subject to reduction because of
variations in the quality or quantity of the work performed. Subject to the
exceptions provided in paragraph (b) of this section, an exempt employee
must receive the full salary for any week in which the employee performs
any work without regard to the number of days or hours worked. Exempt
employees need not be paid for any workweek in which they perform no
work. An employee is not paid on a salary basis if deductions from the
employee’s predetermined compensation are made for absences occasioned
by the employer or by the operating requirements of the business. If the
employee is ready, willing and able to work, deductions may not be made
for time when work is not available.
29 C.F.R. § 541.602(a) (emphasis added). The regulations do not require that the wages
be called a “salary” to qualify as being “paid on a ‘salary basis.’”
Paragraph (b) of section 541.602 further provides that deductions may be made
from the wages of salaried employees in certain circumstances, such as absences of a full
day or more for personal reasons or unpaid disciplinary suspensions of a full day or more,
without destroying the salary basis of the pay. Id. § 541.602(b); Cowart v. Ingalls
Shipbldg., Inc., 213 F.3d 261, 264 (5th Cir. 2000) (citing predecessor regulation 29
C.F.R. § 541.118(a)(2)).
Although the ultimate question whether the employee is exempt from the overtime
pay provisions of the FLSA is a question of law, issues regarding an employee’s duties,
compensation, deductions and other aspects of employment relevant to deciding that
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legal question are questions of fact. Cheatham v. Allstate Ins. Co., 465 F.3d 578, 584
(5th Cir. 2006); Smith v. City of Jackson, 954 F.2d 296, 298 (5th Cir. 1992).
Plaintiffs argue that neither of the three exemptions applies to them because they
were paid a day rate, not on a salaried basis. They acknowledge that merely because an
employee’s earnings are computed on a daily rate basis does not mean that the employee
is not paid on a salary basis, but they contend that defendants’ payments to them did not
otherwise qualify as salary under 29 C.F.R. § 541.604(b), which provides:
An exempt employee’s earnings may be computed on an hourly, a daily or
a shift basis, without losing the exemption or violating the salary basis
requirement, if the employment arrangement also includes a guarantee of
at least the minimum weekly required amount paid on a salary basis
regardless of the number of hours, days or shifts worked, and a reasonable
relationship exists between the guaranteed amount and the amount actually
earned. The reasonable relationship test will be met if the weekly
guarantee is roughly equivalent to the employee’s usual earnings at the
assigned hourly, daily or shift rate for the employee’s normal scheduled
workweek. Thus, for example, an exempt employee guaranteed
compensation of at least $500 for any week in which the employee
performs any work, and who normally works four or five shifts each week,
may be paid $150 per shift without violating the salary basis requirement.
29 C.F.R. § 541.604(b) (emphasis added). Plaintiffs argue that they had no guaranteed
minimum weekly required amount and that, even if the minimum required amount of not
less than $455 per week was guaranteed, that amount bore no reasonable relationship to
the much larger amounts (ranging from $2,975 to $3,850 per week) that plaintiffs
actually earned during their normal scheduled six- or seven-day work week.

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I find that the deposition excerpts and other evidence presented by plaintiffs are
insufficient to carry their burden to show that it is undisputed that they were not paid on
a salary basis. Defendants have presented competent summary judgment evidence,
consisting of the declaration under penalty of perjury of Allen Carpenter, the Chief
Administrative Officer of Worley Catastrophe Response, LLC, and the exhibits attached
thereto, Defendant’s Exh. A, Record Doc. No. 105-2, that material fact issues are in
dispute concerning whether plaintiffs were paid on a salaried basis, including but not
limited to, whether plaintiffs were guaranteed a minimum of at least $455 per week for
the weeks that they worked; whether plaintiffs regularly and actually received at least
$455 per week for the weeks that they worked, with the exception of permissible
deductions; whether some plaintiffs were paid their full rate and did not have their wages
reduced based on the quantity of work when they did not work full days; whether
plaintiffs had a clear expectation regarding the amount of pay they would receive each
week based on the required work week schedule of either twelve- or ten-hour days for
seven or six days per week, respectively; whether that expected amount was a
“predetermined amount”; whether plaintiffs’ pay that was computed on a daily rate, but
actually received on a weekly or less frequent basis, meets the salary basis test; whether
plaintiffs actually received at least two-thirds of the compensation they could expect to
receive based on their assigned rate of pay and the normal scheduled work week; whether
some plaintiffs actually earned more than 70 percent of the compensation they could
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expect to receive based on their assigned rate of pay and the normal scheduled work
week; and whether the amounts expected to be earned and actually earned by plaintiffs
during a normal scheduled work week bore a reasonable relationship to the amount
guaranteed, if any.
Because the question whether plaintiffs were paid on a salaried basis remains in
dispute, they cannot prevail on the current summary judgment record on their additional
contentions that they were not exempt administrative, executive or highly compensated
employees. Accordingly, plaintiffs’ motion for partial summary judgment is denied.

8th
New Orleans, Louisiana, this ___________ day of May, 2013.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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