Fulton et al v. Bayou Well Services LLC

Filing 100

MEMORANDUM OPINION AND ORDER grants in part and denies in part 79 MOTION for Summary Judgment; and denies 88 MOTION for Summary Judgment. (Ordered by Judge David C Godbey on 9/11/2018) (epm)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
FRANKIE FULTON, et al.,
Plaintiffs,
v.
BAYOU WELL SERVICES, LLC,
Defendant.

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Civil Action No. 3:16-CV-00474-N

MEMORANDUM OPINION AND ORDER
This Memorandum Opinion and Order addresses Defendant Bayou Well Services
LLC (“Bayou”) and Plaintiffs’ motions for summary judgment [79, 88]. For the reasons set
forth below, the Court grants in part and denies in part Bayou’s motion for summary
judgment [79] and denies Plaintiffs’ motion for summary judgment [88].
I. ORIGINS OF THE DISPUTE
This case arises from Plaintiffs’ employment at Bayou.1 Bayou provides well site
support services for oil and gas operations. The Plaintiffs are hourly paid, nonexempt
employees performing oilfield labor services. Bayou employed Plaintiffs as oil field workers
on a two-week-on, two-week-off rotational schedule. For the two weeks during which

1

In September 2016, the Court conditionally certified a collective action consisting
of Bayou’s “current and former hourly-paid employees who received non-discretionary
bonus or ‘non-revenue’ pay during the past three years.” Order 7 [45]. Of the 162 people
who opted in to the collective action, 117 plaintiffs have settled all their claims against
Bayou. Only 45 remaining plaintiffs/opt-in class members are not covered by the settlement
agreement.

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Plaintiffs were on rotation (“on-rotation workweeks”), Bayou paid Plaintiffs at their regular
hourly rate for the first 40 work hours and at 1.5 times their regular rate for hours worked in
excess of 40. For the two weeks during which Plaintiffs were off work (“off-rotation
workweeks”), Bayou paid Plaintiffs for 40 hours of work at their regular rate despite the fact
that Plaintiffs were not in the field. Bayou also paid Plaintiffs at their regular hourly rate for
time spent traveling to and from job sites.
Bayou paid Plaintiffs for 40 hours of work during off-rotation workweeks no matter
how many hours Plaintiffs worked during on-rotation workweeks. Plaintiffs were not
permitted to work for a competitor during off-rotation workweeks, and performing any work
during off-rotation weeks was generally frowned upon. But if Plaintiffs voluntarily did any
fieldwork for Bayou during an off-rotation workweek, Bayou paid them at 1.5 times their
hourly rate for the additional hours. Bayou asserts that it adopted this compensation policy
to ensure that Plaintiffs had enough time to recover from on-rotation workweeks, during
which they spent approximately 12 hours a day engaged in mentally and physically
demanding work and spent up to three hours traveling to and from the job site for 14
consecutive days.
Plaintiffs were also eligible for Bayou’s Team Incentive Plan (“TIP”). The TIP
provided for quarterly incentive payments to be paid at Bayou’s discretion based on
employees’ achievement of certain safety, environmental, and operational efficiency goals.
Bayou introduced its third amended TIP (“TIP 3”) in November 2013. TIP 3 provided for
set bonus amounts paid at Bayou’s discretion based on particular performance metrics and

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indicated that the total bonus employees received would include both the bonus amount and
overtime attributable to the bonus amount. See Def.’s App. in Supp. of Mot. for Sum. J.
(“Def.’s App.”) 137 [81].
Plaintiffs allege that they were routinely underpaid for overtime as a result of Bayou’s
rotational pay and bonus policies in violation of the Fair Labor Standards Act,
29 U.S.C. § 207 (the “FLSA”). Both parties now move for summary judgment on their
claims.
II. LEGAL STANDARD
A. Legal Standard on Motion for Summary Judgment
Courts “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In making
this determination, courts must view all evidence and draw all reasonable inferences in the
light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962). The moving party bears the initial burden of informing the court of
the basis for its belief that there is no genuine issue for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
When a party bears the burden of proof on an issue, she “must establish beyond
peradventure all of the essential elements of the claim or defense to warrant judgment in [her]
favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis omitted).
When the nonmovant bears the burden of proof, the movant may demonstrate entitlement to

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summary judgment by either (1) submitting evidence that negates the existence of an
essential element of the nonmovant’s claim or affirmative defense, or (2) arguing that there
is no evidence to support an essential element of the nonmovant’s claim or affirmative
defense. Celotex, 477 U.S. at 322–25.
Once the movant has made the required showing, the burden shifts to the nonmovant
to establish that there is a genuine issue of material fact such that a reasonable jury might
return a verdict in its favor.

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586–87 (1986). Moreover, “[c]onclusory allegations, speculation, and
unsubstantiated assertions” will not suffice to satisfy the nonmovant’s burden. Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Indeed, factual
controversies are resolved in favor of the nonmoving party “‘only when an actual controversy
exists, that is, when both parties have submitted evidence of contradictory facts.’”
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999) (quoting McCallum
Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995)).
B. Legal Standard for Overtime Pay Under the FLSA
The FLSA prohibits an employer from employing an employee “for a workweek
longer than forty hours . . . unless such employee receives compensation for his employment
in excess of the hours above specified at a rate not less than one and one-half times the
regular rate at which he is employed.” 29 U.S.C. § 207(a)(2). The FLSA defines the
“regular rate” to include “all remuneration for employment” with certain exclusions.
Id. § 207(e). The FLSA does not set forth the method for calculating the regular rate, but the

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United States Department of Labor (the “Department of Labor”) has explained in interpretive
regulations that the “regular hourly rate of pay of an employee is determined by dividing his
total remuneration for employment (except statutory exclusions) in any workweek by the
total number of hours actually worked by him in that workweek for which such
compensation was paid.” 29 C.F.R. § 778.109.
III. BAYOU’S ROTATIONAL PAY POLICY COMPLIED WITH THE FLSA
Both Bayou and Plaintiffs move for summary judgment regarding whether Bayou’s
rotational pay plan violates the FLSA. The Court grants Bayou’s motion and denies
Plaintiffs’ motion.
Plaintiffs claim that Bayou’s rotational pay scheme violates the FLSA. Plaintiffs
argue that they actually earned off-rotation compensation during on-rotation workweeks.
See Pls.’ Resp. to Bayou’s Mot. For Sum. J. (“Pls.’ Resp.”) 31 [91] (“The pay for a fictitious
40 hours of work during weeks off (which only exist on pay stubs) is clearly earned for work
performed during weeks-on based on [Bayou’s] claim that it paid [Plaintiffs] to rest during
their two weeks off to maximize their ability to meet performance metrics during weeks on.”
(emphasis omitted)). They assert that the FLSA therefore requires Bayou to allocate offrotation compensation to on-rotation workweeks for purposes of calculating overtime. But
Plaintiffs point to no evidence in the record that they actually earned the off-rotation pay
during on-rotation, as opposed to off-rotation, workweeks.
Plaintiffs further claim that Bayou spread their compensation over both on- and
off-rotation weeks only to give Plaintiffs a more consistent flow of income and train them

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not to spend all their money too quickly. In support of their assertion, Plaintiffs point to a
quotation from Brett Agee, Bayou’s corporate representative:
I don’t think it’s curious to the oilfield worker, but what – it’s been my
experience that if you were to pay one of these people – any person typically
in an oilfield field personnel-type role, if you were to pay them a million
dollars once a month . . . versus spreading it out over multiple paychecks a
month, you would find that you have a better chance of training your
employees better by going ahead and trying to pay them in more
installments . . . .
[P]eople live paycheck to paycheck regardless of the amount that you
make . . . . And so you want to try and go ahead and create a situation where
you’re not only – we were not only going ahead and addressing the needs of
ourselves and our customer but of our employees as well. They were earning
a paycheck while they were being asked to perform zero work.
Pls.’ App. in Supp. of Resp. to Def.’s Mot. for Sum. J. (“Pls.’ Resp. App.”) 60–62 [92].
Plaintiffs argue that this case is thus substantially identical to Sandel v. Fairfield Industries,
Inc., 2015 WL 7709583 (S.D. Tex. June 25, 2015), in which the U.S. District Court for the
Southern District of Texas held that an employer’s rotational pay policy violated the FLSA.
See id. at *4.
But the facts of Sandel are quite different from those of the instant case. The Sandel
plaintiffs were rotational field employees who were paid only for their time spent working
on rotation. Id. at *3. The employer never compensated the plaintiffs for off-rotation hours.
Id. But because the plaintiffs’ employer decided that its employees “were not handling their
money well,” the employer divided the plaintiffs’ on-rotation earnings in half and began
paying the plaintiffs half of their earnings during on-rotation time and the other half during
off-rotation time. Id. The Sandel court held that “changing the timing of the payments [did]

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not change their legal significance” and that the employer’s payments for “off” days were
thus includable in the regular rate as a matter of law. Id. at 4.
Here, in contrast, Bayou never divided Plaintiffs’ on-rotation pay in half and spread
it among pay periods. Instead, Bayou fully compensated Plaintiffs for their on-rotation work
– including overtime – and then paid Plaintiffs additional income for off-rotation weeks so
that they would spend the time recuperating and not seek other work. Agee’s testimony in
direct response to a question about why Bayou adopted its rotational pay policy confirms
this:
Q. How did you come up with the idea of covering the forty hours? What was
the – if you recall the discussions of how that came about.
....
A. Well, the – we were being asked to be – we were being asked to be as good
as we possibly could be while we were at work. One of the – one of the sort
of fundamental metrics that we used both internally and externally with our
customer was to measure our ready-to-pump time.
Q. Okay.
A. Along with another, which was safety, and our ability to control, you know,
spills on location or an environmental component.
Q. Sure.
A. And so fundamental to that was – and what was – that was the expectation.
The way for us to best deliver on that expectation and that – and part of our
agreement and our contract was to make sure that we had a very well-rested
group of people that were being paid to rest while they were off, to then show
back up to work to go ahead and work, not just 40-hour weeks, I mean, a heck
of a lot more . . . . I’ve done that before, and you can do that for a period of
time, but the longer you do it without being able to recharge and refresh, the
more taxing the system is. And a frac location is an incredibly dynamic place
with thousands of moving parts with thousands of areas that are high risk. And

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so just as we engineered the equipment and the location to go ahead and try
and mitigate risk, one of the things that we wanted to do was to further
mitigate employee exposure to risk by going ahead and making sure that their
time off was truly time off. So we chose to pay them to not work and to sleep,
essentially.
Def.’s App. 146–48 [81]. Bayou also points to testimony from Plaintiff Raul Hazelhurst
indicating that he understood that Bayou paid him during off-rotation weeks so he would
recuperate and not work for another employer, id. at 98, and testimony from Plaintiff Kaleb
Baugh indicating that being paid during off-rotation weeks made it easier for him to not look
for other work, id. at 75–76. Thus, even if Bayou’s policy of issuing paychecks every two
weeks somehow trained Plaintiffs not to spend all of their money before their next paycheck,
Bayou did not simply divide Plaintiffs’ on-rotation pay in half and then spread the pay
between on- and off-rotation weeks. Instead, Bayou paid Plaintiffs in full for their onrotation hours worked and then paid Plaintiffs additional wages to recuperate and refrain
from accepting other work during off-rotation weeks.
Bayou was within its rights to compensate Plaintiffs for recovering from strenuous onrotation weeks instead of accepting employment elsewhere. “[A]n employer, if he chooses,
may hire a man to do nothing, or to do nothing but wait for something to happen.” Armour
& Co. v. Wantock, 323 U.S. 126, 133–34 (1944) (holding that, where firefighters were
required to remain on call in fire hall, time spent in amusements or idleness qualified as
working time for FLSA purposes); see also Alvarez v. IBP Inc., 546 U.S. 21, 26 (2005)
(stating that in Armour the Court “clarified that ‘exertion’ was not in fact necessary for an
activity to constitute ‘work’ under the FLSA.” (citing Armour, 323 U.S. 126)).

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Bayou acted legally when it compensated Plaintiffs for time spent recuperating and
refraining from other employment. That Bayou’s policy may have had an income-smoothing
effect is itself insufficient to create a genuine dispute of material fact precluding summary
judgment. The Court thus grants Bayou’s motion for summary judgment and denies
Plaintiffs’ motion for summary judgment with respect to Plaintiffs’ claim that Bayou’s
rotational pay policy violates the FLSA.
IV. GENUINE DISPUTES OF MATERIAL FACT EXIST REGARDING
WHETHER THE TIP 3 BONUSES COMPLIED WITH THE FLSA
Bayou and Plaintiffs each move for summary judgment regarding whether Bayou’s
calculation of TIP 3 bonuses and the increase in the regular rate of pay associated with the
bonuses complied with the FLSA. The Court grants in part and denies in part Bayou’s
motion and denies Plaintiffs’ motion.
The TIP 3 bonuses were quarterly incentive payments based on certain safety and
performance metrics. Bayou created TIP 3, the third amended TIP plan, in November 2013.
The TIP 3 plan document stated that “[i]f a bonus is paid, an additional payment for overtime
attributable to the bonus will also be paid.” Def.’s App. 174 [81]. Under TIP 3, eligible
employees received a specific bonus payment and separate overtime payment, resulting in
the same total incentive payment for all crew members. Bayou asserts that it used TIP 3 to
incentivize team, rather than individual, performance, so it tried to treat members of each
crew equally with respect to TIP 3 bonus payments. Plaintiffs now challenge Bayou’s
calculation of TIP 3 bonuses and the increase in the regular rate of pay associated with the
bonuses.

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A. Bayou’s Consideration of Its Total Bonus and Overtime
Liability When Calculating TIP 3 Bonuses Complied with the FLSA
Plaintiffs argue that, rather than set a TIP 3 bonus amount and then pay additional
overtime based on that bonus amount, Bayou set the total amount it wanted to pay and then
artificially divided that number into bonus and overtime on the bonus to create the
appearance of FLSA compliance. Plaintiffs assert that because Bayou did not change TIP 3
bonus amounts based on overtime hours worked, under TIP 3 Plaintiffs’ regular rates
declined inversely with the amount of overtime hours worked.
But Plaintiffs identify no provision of the FLSA that prohibits Bayou from paying
different bonus and overtime amounts to Plaintiffs or from considering the total bonus
amount – including overtime – when deciding the level of TIP bonus to award to Plaintiffs.
Plaintiffs quote Walling v. Harnischfeger Corp., 325 U.S. 427, 437 (1945), for the
proposition that courts “cannot arbitrarily divide bonuses or piece work wages into regular
and overtime segments, thereby creating an artificial compliance with” the FLSA. But
Harnischfeger is distinguishable. In Harnischfeger, employees received contracted-for
piecework wages styled as incentive bonuses in addition to their base hourly rates. Id. at
428–29. The Supreme Court rejected the employer’s attempt to include only the employees’
base rate in the regular pay rate for purposes of calculating overtime, holding that the
employer must include both the base rate and the incentive bonuses in Plaintiffs’ regular rate
of pay. Id. at 430–32.
Here, Plaintiffs do not dispute that Bayou did in fact pay overtime associated with TIP
3 bonuses. Instead, they challenge the means by which Bayou decided how much of a bonus

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to pay, but provide no authority suggesting those means are prohibited by the FLSA. Courts
may not imply a prohibition that cannot be found in the FLSA. See Christensen v. Harris
Cty., 529 U.S. 576, 585 (2000). The Court thus grants Bayou’s motion for summary
judgment and denies Plaintiffs’ motion for summary judgment on Plaintiffs’ claim that
Bayou’s consideration of its total bonus and overtime liability when calculating TIP 3
bonuses violated the FLSA.
B. Bayou is Not Entitled to Summary Judgment Regarding
Whether Its Method of Calculating the Regular Rate Increase
Attributable to TIP 3 Bonuses Complied with the FLSA
Bayou moves for summary judgment on Plaintiffs’ claim that Bayou incorrectly used
off-rotation hours to calculate the increase in the regular rate of pay attributable to the TIP 3
bonuses. The Court denies Bayou’s motion.
“The regular hourly rate of pay of an employee is determined by dividing his total
remuneration for employment (except statutory exclusions) in any workweek by the total
number of hours actually worked by him in that workweek for which such compensation was
paid.” 29 C.F.R. § 778.109. “Where a bonus payment is considered a part of the regular rate
at which an employee is employed, it must be included in computing his regular hourly rate
of pay and overtime compensation.” Id. § 778.209 (a). “When the amount of the bonus can
be ascertained, it must be apportioned back over the workweeks of the period during which
it may be said to have been earned.” Id. But “[i]f it is impossible to allocate the bonus
among the workweeks of the period in proportion to the amount of the bonus actually earned

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each week, some other reasonable and equitable method of allocation must be adopted.”
Id. § 778.209(b).
Plaintiffs challenge Bayou’s practice of allocating the TIP 3 bonuses across both onand off-rotation hours when calculating the regular rate increase due to the TIP 3 bonuses.
Plaintiffs argue that they earned the TIP 3 bonuses only during on-rotation weeks such that
Bayou should use only on-rotation hours in calculating the regular rate. Bayou responds that
allocating TIP 3 bonuses among workweeks in proportion to the amount of the bonus earned
each week is impossible, so it may use the “reasonable and equitable” alternative method of
allocating the TIP 3 bonuses across all on- and off- rotation hours. See id.
But regardless of whether Bayou’s allocation method was reasonable and equitable,
Bayou has made no showing that it was in fact impossible to allocate the TIP 3 bonuses over
on- and off-rotation workweeks. And under the applicable regulations, allocating a bonus
in proportion to the amount of the bonus actually earned each week must in fact be
impossible for an employer to adopt an alternative allocation method. See id. § 778.209.
The Court thus denies Bayou’s motion for summary judgment.
V. PLAINTIFFS HAVE NOT SHOWN THAT A GENUINE DISPUTE OF
MATERIAL FACT EXISTS WITH RESPECT TO THEIR TRAVEL TIME CLAIMS
Bayou moves for summary judgment with respect to Plaintiffs’ claim that Bayou
“failed to pay Plaintiffs . . . one-and-one-half times their ‘travel’ pay rate for all travel hours
worked in excess of 40 hours per week.” Pls.’ Second Am. Compl. ¶ 22 [22]. Bayou points
to voluminous evidence in the record indicating that it did indeed properly compensate

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Plaintiffs for travel time. Plaintiffs have not responded to Bayou’s arguments. The Court
thus grants Bayou’s summary judgment motion with respect to Plaintiffs’ travel time claims.
VI. SIX PLAINTIFFS’ CLAIMS ARE TIME-BARRED
The standard two-year FLSA limitations period is extended to three years if the
employer’s violation is “willful.” 29 U.S.C. § 255(a). Bayou argues that even if the threeyear statute of limitations applies, Plaintiffs Edgar Hernandez, Gregory Bell, Joseph
Lemoine, and Edgar Summers terminated their employment and Plaintiffs Anulfo Caballero
and Robert Bassler moved into exempt positions that are not the subject of this litigation
more than three years before they opted in to this action. See Def.’s Mot. for Sum. J. 32 [79].
Plaintiffs have not responded to Bayou’s argument. The Court thus grants Bayou’s motion
for summary judgment that the six Plaintiffs’ claims are time-barred.
VII. GENUINE DISPUTES OF MATERIAL FACT EXIST REGARDING
WHETHER BAYOU PROPERLY EXCLUDED CERTAIN BONUSES FROM THE
REGULAR RATE AND WHETHER BAYOU WILLFULLY VIOLATED THE FLSA
Plaintiffs move for summary judgment on their claims that (1) Bayou improperly
excluded TIP bonuses from the regular rate and (2) Bayou willfully violated the FLSA. The
Court denies Plaintiffs’ motion.
A. Genuine Fact Issues Exist Regarding Whether Bayou
Properly Excluded Pre-TIP 3 Bonuses from the Regular Rate
Plaintiffs assert that the bonuses Bayou paid under each version of the TIP were
nondiscretionary bonuses that Bayou was required to include in the regular rate of pay for
overtime purposes. The FLSA provides that the regular rate does not include:

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Sums paid in recognition of services performed during a given period
if . . . both the fact that payment is to be made and the amount of the payment
are determined at the sole discretion of the employer at or near the end of the
period and not pursuant to any prior contract, agreement, or promise causing
the employee to expect such payments regularly.
29 U.S.C. § 207(e)(3). The Department of Labor has expounded in interpretive regulations
on what qualifies as a discretionary bonus under section 207(e)(3):
(b) Discretionary character of excluded bonus. In order for a bonus to qualify
for exclusion as a discretionary bonus under section [207(e)(3)(a)] the
employer must retain discretion both as to the fact of payment and as to the
amount until a time quite close to the end of the period for which the bonus is
paid. The sum, if any, to be paid as a bonus is determined by the employer
without prior promise or agreement. The employee has no contract right,
express or implied, to any amount.
29 C.F.R. § 778.211(b). In contrast, the Department of Labor’s interpretive regulations state
that promised bonuses are not excludable from the regular rate:
(c) Promised bonuses not excluded. The bonus, to be excluded under section
[207(e)(3)(a)], must not be paid “pursuant to any prior contract, agreement, or
promise.” For example, any bonus which is promised to employees upon
hiring . . . would not be excluded from the regular rate under this provision of
the Act. Bonuses which are announced to employees to induce them to work
more steadily or more rapidly or more efficiently or to remain with the firm are
regarded as part of the regular rate of pay. Attendance bonuses, individual or
group production bonuses, bonuses for quality and accuracy of work, bonuses
contingent upon the employee’s continuing in employment until the time the
payment is to be made and the like are in this category. They must be included
in the regular rate of pay.
Id. § 778.211(c) (quoting 29 U.S.C. § 207(e)(3)).
As an initial matter, the Court rejects Plaintiffs’ assertion that Bayou failed to include
TIP 3 bonuses in the regular rate on the grounds that such bonuses were discretionary.
Bayou states – and Plaintiffs do not meaningfully dispute – that Bayou “began including

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bonus payments in the regular rate upon implementation of [TIP 3] in November 2013.” Br.
in Supp. of Def.’s Resp. to Pl.’s Mot. for Sum. J. 32 n.32 [94].
Nor have Plaintiffs demonstrated beyond genuine dispute that Bayou improperly
excluded pre-TIP 3 bonuses from the regular rate. Bayou concedes that it designed TIP to
incentivize team performance and that payment of TIP bonuses was contingent on continued
employment.

Plaintiffs thus argue that the bonuses were nondiscretionary.

See

29 C.F.R. § 778.211(c) (stating that “bonuses for quality and accuracy of work” and
“bonuses contingent upon the employee’s continuing in employment until the time the
payment is to be made” are “in th[e] category” of nondiscretionary bonuses). But the fact
that the TIP bonuses were incentive bonuses contingent on continued employment is not
alone sufficient. Read in context, the interpretive regulations make clear that only bonuses
paid “pursuant to [a] prior contract, agreement, or promise” are in fact nondiscretionary. Id.
(quoting 29 U.S.C. § 207(e)(3)).
Plaintiffs have not shown that no genuine dispute exists regarding whether Bayou
promised or announced the bonuses to Plaintiffs such that Bayou relinquished its discretion
with respect to either the fact or the amount of payment. See 29 C.F.R. § 778.211(b) (stating
that, for a bonus to be excluded as discretionary, “the employer must retain discretion both
as to the fact of payment and as to the amount until a time quite close to the end of the period
for which the bonus is paid”). Plaintiffs point to Agee’s testimony indicating that he cannot
recall a circumstance after July 15, 2012, in which any employee who satisfied the TIP
requirements did not receive a TIP bonus. Pls.’ App. in Supp. of Mot. for Sum. J. (“Pls.’

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App.”) 32 [89]. But while Bayou’s practices may in fact demonstrate that it consistently
awarded TIP bonuses, Plaintiffs have not demonstrated beyond genuine dispute that the
bonuses were nondiscretionary. Plaintiffs’ offer letters stated only that they would be
eligible to participate in the TIP – not that any TIP bonus amount was promised. And while
Plaintiffs point to TIP documents setting forth bonus amounts that Bayou planned to pay if
Plaintiffs achieved certain performance and safety milestones, Plaintiffs have not
demonstrated that they actually saw the TIP documents or discussed the TIP with Bayou
management. Indeed, Plaintiff Carlos Castillo has admitted that he understood that the TIP
bonus was not guaranteed. Def.’s App. 114–15 [81]. And Plaintiff Frankie Fulton indicated
that he could not recall if the TIP bonus was guaranteed. Id. 33.
Viewing the facts in the light most favorable to Bayou, the Court holds that a
reasonable jury could conclude that Plaintiffs had “no contract right, express or implied, to
any amount” of TIP bonus. See 29 C.F.R. § 778.211(b). Plaintiffs have thus not shown that
no genuine dispute exists regarding whether the TIP bonuses were nondiscretionary bonuses
that Bayou impermissibly excluded from the regular rate. The Court denies Plaintiffs’
motion for summary judgment with respect to their claim that Bayou improperly excluded
TIP bonuses from the regular rate.
B. Plaintiffs Have Not Demonstrated That No Genuine Dispute
Exists Regarding Whether Bayou Willfully Violated the FLSA
Plaintiffs also argue that Bayou willfully violated the FLSA by instituting TIP 3. But
as set forth in Section IV(a) supra, Bayou’s institution of TIP 3 and attendant consideration
of its total bonus and overtime liability when calculating TIP 3 bonuses complied with the

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FLSA. Nor have Plaintiffs shown beyond genuine dispute that Plaintiffs otherwise violated
the FLSA. The Court thus denies Plaintiffs’ motion for summary judgment on its claim that
Bayou willfully violated the FLSA.
CONCLUSION
The Court grants and denies the motions as follows:
•

The Court GRANTS Bayou’s motion for summary judgment with respect to
its rotational pay plan’s compliance with the FLSA [79];

•

The Court GRANTS Bayou’s motion for summary judgment with respect to
whether its consideration of both its total bonus an overtime liability when
calculating TIP 3 bonuses complied with the FLSA [79];

•

The Court DENIES Bayou’s motion for summary judgment with respect to
whether its method of calculating regular rate increases attributable to TIP 3
bonuses complied with the FLSA [79];

•

The Court GRANTS Bayou’s motion for summary judgment with respect to
Plaintiffs’ travel time claims [79];

•

The Court GRANTS Bayou’s motion for summary judgment that the six
Plaintiffs’ claims are time-barred [79];

•

The Court DENIES Plaintiffs’ motion for summary judgment [88].

•

MEMORANDUM OPINION AND ORDER – PAGE 17

Case 3:16-cv-00474-N Document 100 Filed 09/11/18

Page 18 of 18 PageID 1795

Signed September 11, 2018.

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David C. Godbey
United States District Judge

MEMORANDUM OPINION AND ORDER – PAGE 18