Aikins et al v. Warrior Energy Services Corp.

Filing 66

MEMORANDUM AND ORDER denying 51 MOTION for Summary Judgment , denying 57 MOTION to Strike Plaintiffs' Summary Judgment Evidence (Signed by Judge Gregg Costa) Parties notified.(arrivera, 3)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
DONNIE EUGENE AIKINS, et al,

§
§
§
Plaintiffs,
§ CIVIL ACTION NO. 6:13-CV-54
VS.
§
WARRIOR ENERGY SERVICES CORP., §
§
Defendant.
§

MEMORANDUM AND ORDER
This is a lawsuit brought by Plaintiffs who operated trucks as employees of
Warrior Energy Services Corp., an oilfield services company, and who now seek
overtime pay under the Fair Labor Standards Act. Under recent changes to federal
law, their entitlement to overtime pay depends on the type of trucks they operated.
Warrior moved for summary judgment (Docket Entry No. 51) on the ground that
Plaintiffs, as operators of heavy vehicles weighing more than 10,000 pounds, fall
within the Motor Carrier Act exemption to the FLSA’s overtime pay requirements.
Those heavy vehicles include coil tubing trucks, which guide the spool of coiled
tubing into the well; fluid pump trucks, which provide pressure down-hold; and
cranes, which are used to set up and take down the coiled tubing unit and fluid
pump unit’s access to the well.
Plaintiffs do not dispute their regular involvement with these heavy trucks
and others, but contend that under the Technical Corrections Act of 2008 they
1 / 19

qualify for overtime as long as their work “in part” involved lighter vehicles
weighing 10,000 pounds or less. Those lighter vehicles are Ford F-250 pickup
trucks that Plaintiffs contend they regularly drove to perform various duties.
I.

BACKGROUND
The sixty-six Plaintiffs in this lawsuit were Warrior employees whose jobs

involved servicing oil wells in North Dakota, Montana, and other states undergoing
an oil boom. They worked in crews based in Warrior’s Dickinson, North Dakota,
office, and travelled to wells owned by Warrior’s customers to provide coil tubing
services, in which long tubes are inserted into oil wells to stimulate production and
to clean the wells. Jobs were typically located several hours from Dickinson, and
took a number of days to complete. For the duration of the jobs, crews were
housed by Warrior in hotels or “man camps,” sites built to house oilfield crews.
Docket Entry No. 51-2 ¶ 16. Plaintiffs were paid a fixed salary and bonuses until
November 2012, when, after a merger and reorganization, they began to be paid on
an hourly basis with overtime. Plaintiffs brought this FLSA suit to recover unpaid
overtime wages for hours worked in excess of 40 hours per week. It was filed in
North Dakota, where most of the Plaintiffs worked, but the parties agreed to

2 / 19

transfer the case to this Court as Warrior does business in Texas and has similar
employees working in this district.1
Given the large number of Plaintiffs, the Court scheduled an initial round of
discovery limited to ten bellwether Plaintiffs, with five chosen by each side.
Plaintiffs chose not to take the depositions of their five. Warrior deposed four of
its five selected bellwether plaintiffs—Michael Alvarado, Matthew Scott Barrows,
Cody Holland, and Randall Newell. Finding this sufficient to present a “test case”
on the statutory issue presented, the Court allowed Warrior’s summary judgment
motion to go forward. Docket Entry No. 41.
The summary judgment evidence focuses on whether, how often, and under
what circumstances Plaintiffs operated Ford F-250 pickup trucks. This is critical,
because, as discussed in more detail below, Plaintiffs’ eligibility for FLSA
overtime pay depends on their use of “motor vehicles weighing 10,000 pounds or
less.” See SAFETEA–LU Technical Corrections Act of 2008, Pub. L. No. 110244, § 306(c), 122 Stat. 1572. It is not disputed that Warrior’s Ford F-250s,
operated without an attached trailer, fall at or below the threshold weight of 10,000
pounds.
According to Warrior, Plaintiffs’ primary duties involved the operation of a
number of vehicles weighing well over 10,000 pounds—coil tubing trucks, fluid
1

A similar case against Warrior, involving workers in Texas, is also pending in this district: Call
v. Warrior Energy Servs. Corp., No. 6:14-cv-18 (S.D. Tex. filed Mar. 6, 2014).

3 / 19

pump trucks, crane trucks, “blow out preventer transport” trucks, nitrogen trucks,
and nitrogen transport trucks. Docket Entry No. 51-2 ¶¶ 5–10. Although Warrior
admits that Ford F-250s were involved in the jobs, the company asserts that they
were only used by supervisors and almost always had a heavy trailer attached,
raising the weight of the trucks beyond the 10,000 pound threshold. Docket Entry
No. 51-2 ¶ 11.
Plaintiffs, however, emphasize their use of the Ford F-250s, without an
attached trailer, during coil tubing jobs.

Although each bellwether Plaintiff

provides slightly different details about his own use, each claims in a declaration
that he drove the pickup trucks at least weekly and drove them on public highways
without trailers attached. See Docket Entry No. 52-1, Exs. A–D. Each states, for
example, that he drove the F-250s “just as much” or “more than” he drove larger
vehicles. See Docket Entry No. 52-1 at 2, 14 (Alvarado and Newell: “just as
much”); id. at 6 (Barrows: “just as much or more than”); id. at 10 (Holland: “more
than”). Each bellwether Plaintiff states that one purpose of the pickup trucks was
to bring fuel to the well site. For example, Alvarado states:
There was a constant and continuing need and a part of my job duties
to supply the fuel trailer and well service equipment by retrieving fuel
from gas and fueling stations by driving the Ford F-250 (without any
trailer attached) on the public highways. In the remote locations that
we worked servicing wells in North Dakota and Montana, fuel runs
for the slip tanks in the Ford F-250 from the well site to a fueling
station could be substantial distances from 12 miles to 30 miles away.
4 / 19

Docket Entry No. 52-1 at 2. Each also states that the pickups were used to
transport the crew and supplies between the crew’s lodging (or Warrior’s shop)
and the well sites. As Alvarado states:
[P]rior to beginning and after well service jobs for the day, I also
routinely and regularly drove . . . [a] Ford F-250 containing the crew,
tools, supplies and equipment to and from locations as directed by my
supervisor after meeting at a designated location at the well site . . . [,]
the hotel or “man camp” parking area . . . or Defendant’s shop or
“yard”. . . . I was not relieved of my work/driving duties until we
returned to the man camp or hotel.
Id. at 3.
II.

STANDARD OF REVIEW
When a party moves for summary judgment, the reviewing court shall grant

the motion “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). A dispute about a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts on questions
of fact must be resolved in favor of the party opposing summary judgment. Evans
v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001) (citation omitted).
III.

MOTION TO STRIKE
Warrior moves to strike the bellwether Plaintiffs’ declarations (Docket Entry

No. 57), which are the entirety of the evidence Plaintiffs put forward in opposition
5 / 19

to Warrior’s motion for summary judgment. Warrior argues that the declarations
are “inconsistent with and contrary to Plaintiffs’ sworn deposition testimony,”
Docket Entry No. 57 at 2, and notes that “the nonmovant cannot defeat a motion
for summary judgment by submitting an affidavit which directly contradicts,
without explanation, his previous testimony.” Albertson v. T.J. Stevenson & Co.,
749 F.2d 223, 228 (5th Cir. 1984).

This “sham-affidavit” rule is “applied

sparingly” and requires an “inherent inconsistency” between the declaration and
the declarant’s earlier deposition testimony. Axxiom Mfg., Inc. v. McCoy Invs.,
Inc., 846 F. Supp. 2d 732, 750 (S.D. Tex. 2012) (quoting Latimer v. Roaring Toyz,
Inc., 601 F.3d 1224, 1237 (11th Cir. 2010)).
Warrior, however, has not shown inherent contradictions between the
bellwether Plaintiffs’ deposition testimony and their declarations. For example,
Warrior argues that deposition testimony that the crews often had a 600-gallon
“fuel buffalo” and that Warrior’s customers sometimes provided fuel to Warrior’s
crews is inconsistent with statements in the declarations that trips off the well site
to get fuel took place “numerous times per day.” See Docket Entry No. 57 at 7.
To the extent that there are differences between Plaintiffs’ deposition testimony
and declarations, they are not directly contradictory, as they can be read as merely
supplementing the deposition testimony. S.W.S. Erectors, Inc. v. Infax, Inc., 72
F.3d 489, 495 (5th Cir. 1996) (“When an affidavit merely supplements rather than
6 / 19

contradicts prior deposition testimony, the court may consider the affidavit when
evaluating genuine issues in a motion for summary judgment.”). And in many
instances, Plaintiffs’ deposition testimony is in line with their declarations. For
example, although Warrior states that Plaintiff Holland “made no mention of
making fuel runs to get fuel for the coil tubing equipment during his deposition,”
he in fact stated that his duties included “driving the F250, driving the truck,
fuelling, [and] putting supplies in the pickup.” Holland Dep., Docket Entry No.
61-1, 22:19–20.

Another example comes from Barrows, who testified in his

deposition that “hauling fuel in the crew truck . . . . [t]o the fuel station and back”
was done “several times per day.” Barrows Dep., Docket Entry No. 57-3, 34:2–13.
The Court thus denies Warrior’s motion to strike (Docket Entry No. 57) and
considers all of the evidence, disregarding that pertaining only to the nonbellwether Plaintiffs, in ruling on Warrior’s motion for summary judgment.
IV.

FAIR LABOR STANDARDS ACT COVERAGE
A.

The Technical Corrections Act

Plaintiffs sued for overtime wages under the FLSA, which requires that
employees be paid one and one half times their regular rate of pay for hours
worked over forty in a workweek. 29 U.S.C. § 207(a). The Motor Carrier Act
(MCA) exemption, however, exempts from the FLSA’s overtime requirements
“any employee with respect to whom the Secretary of Transportation has power to
7 / 19

establish qualifications and maximum hours of service.” 29 U.S.C. § 213(b)(1).
The Secretary of Transportation has the power to prescribe the qualifications and
maximum hours of motor carrier employees in order to ensure “the safety of
operations on the roads and highways of this country.” Allen v. Coil Tubing
Services, L.L.C., 846 F. Supp. 2d 678, 689 (S.D. Tex. 2012) aff’d, 755 F.3d 279
(5th Cir. 2014) (citing United States v. Am. Trucking Ass’ns, 310 U.S. 534, 539
(1940)). The MCA exemption has been amended a number of times since its
enactment. See Vanzzini v. Action Meat Distribs., Inc., 995 F. Supp. 2d 703, 713–
15 (S.D. Tex. 2014) (discussing the history of the MCA exemption). Despite that
history, the dispute in this case comes down to a single statutory provision of the
SAFETEA–LU Technical Corrections Act of 2008, Pub. L. No. 110-244, 122 Stat.
1572 (TCA).2
The TCA “both restored”—and therefore widened—“the scope of the
Secretary of Transportation’s regulatory jurisdiction . . . and simultaneously
narrowed the scope of the MCA exemption.” Vanzzini, 995 F. Supp. 2d at 715. It
accomplished the latter by broadening the FLSA overtime requirement to “covered
employee[s] notwithstanding” the MCA exemption. See TCA § 306(a); McMaster

2

Although it was enacted in 2008, the TCA has not been codified. Warrior emphasizes this fact,
perhaps to suggest that it should not “override[] the application of the long-established MCA
exemption.” Docket Entry No. 51 at 26. The Court, of course, cannot weigh the importance of
different duly enacted pieces of legislation based on whether or not they are contained in the U.S.
Code; it must apply the law as it stands.

8 / 19

v. E. Armored Servs., Inc., --- F.3d ----, 2015 WL 1036035, at *2 (3d Cir. Mar. 11,
2015) (“‘[C]overed employees’ are entitled to overtime.”). The statute goes on to
define “covered employee” as “an individual”
(1)

who is employed by a motor carrier or motor private carrier . . .

(2)

whose work, in whole or in part, is defined—
(A)
(B)

(3)

as that of a driver, driver’s helper, loader, or mechanic;
and
as affecting the safety of operation of motor vehicles
weighing 10,000 pounds or less in transportation on
public highways in interstate or foreign commerce . . .
and

who performs duties on motor vehicles weighing 10,000
pounds or less.

TCA § 306(c).
Plaintiffs do not dispute Warrior’s contention that absent the TCA, the MCA
exemption would apply to them and they thus would not be entitled to overtime
wages. Instead, the parties argue about the applicability of the TCA’s definition of
“covered employee” to Plaintiffs. In particular, they focus on the second and third
elements of that definition—that is, they disagree about the type and amount of
work on “motor vehicles weighing 10,000 pounds or less” that is sufficient to

9 / 19

trigger FLSA coverage for drivers who would otherwise be exempted from the law
by the MCA, and whether that work constituted Plaintiffs’ “duties.”3
Warrior relies on what it describes as the “prevailing view” of section 306,
asserting that, under the TCA, “the motor vehicle exemption should apply so long
as the time an employee spends operating commercial motor vehicles [which
include vehicles weighing 10,001 pounds or more4] is more than de minimis.”
Docket Entry No. 51 at 29 (citing Avery v. Chariots For Hire, 748 F. Supp. 2d 492,
500 (D. Md. 2010)). But many decisions, including some that Warrior cites in
support of its position, instead read section 306 to afford overtime coverage to
employees, notwithstanding the MCA, as long as they perform “some meaningful
work” on vehicles weighing 10,000 pounds or less. See, e.g., Lucas v. NOYPI,
3

Although Warrior’s briefing includes a substantial discussion arguing that Plaintiffs have the
burden of proof for asserting FLSA coverage pursuant to the TCA (as opposed to exemptions
like the MCA on which an employer has the burden), this issue is not particularly consequential
at this stage, as Plaintiffs do not contest the point and accordingly put forward evidence in
support of their position. Because it is ordinarily the plaintiff’s burden to establish that he or she
is covered by the FLSA, see Mendoza v. Detail Solutions, LLC, 911 F. Supp. 2d 433, 439 (N.D.
Tex. 2012) (citing D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 120 (1946)), that is likely the case
under the TCA coverage provision as well.
4

“Commercial motor vehicles” includes vehicles with “a gross vehicle weight rating or gross
vehicle weight of at least 10,001 pounds, whichever is greater.” 49 U.S.C. § 31132. Warrior and
some courts have used the gross vehicle weight rating measure in analyzing covered employee
status under the TCA, despite the fact that the TCA only refers to “motor vehicles weighing
10,000 pounds or less.” See McCall v. Disabled Am. Veterans, 723 F.3d 962, 966 (8th Cir.
2013) (using gross vehicle weight rating, not actual weight, as the appropriate measure under the
TCA). Other courts have used actual weight as the appropriate measure. See Glanville v. Dupar,
Inc., 2009 WL 3255292, at *8 (S.D. Tex. Sept. 25, 2009) (“In the absence of a specific definition
in the TCA, the ordinary meaning of ‘weight’ controls.”). This distinction is not relevant for the
purposes of this order, because the parties do not dispute that F-250s without attached trailers
qualify as “vehicles weighing 10,000 pounds or less” and that F-250s with attached trailers do
not.

10 / 19

Inc., 2012 WL 4754729, at *9 (S.D. Tex. Oct. 3, 2012); Allen, 846 F. Supp. 2d at
705. That is, instead of applying the so-called “prevailing view” that any non-de
minimis work on heavier vehicles is sufficient to exempt employees from FLSA
coverage, these cases hold the opposite: that any meaningful use of lighter vehicles
entitles employees to overtime under the FLSA regardless of how often they also
work with heavy trucks. Courts taking the former view appear to be outliers,
applying pre-TCA law. See Avery, 748 F. Supp. 2d at 500 (citing Hernandez v.
Brink’s, Inc., 2009 WL 113406, at *7 (S.D. Fla. Jan. 15, 2009), which applied preTCA law).
Given the language of section 306(c)(2), which states that a covered
employee’s work need only “in part” affect the safety of vehicles weighing 10,000
pounds or less, it is unsurprising that few courts have held that any substantial
work on larger vehicles disqualifies an employee from the FLSA’s overtime
mandate. In support of its preferred interpretation, Warrior points to the third
element of the TCA’s definition of “covered employee,” which establishes that
drivers must “perform[] duties” on vehicles weighing 10,000 pounds or less, and
notes that this provision is not qualified by the same “in whole or in part”
language. But there is little reason to believe that Congress intended to negate the
“in part” language of section 306(c)(2) by failing to include a similar qualification
in the next provision. A more plausible reading is that, in order to be owed
11 / 19

overtime notwithstanding the MCA, an employee must both (1) perform some
work that “affect[s] the safety of operation of” smaller vehicles, and (2) it must be
part of the employee’s “duties” to do so. The “duties” element may prevent de
minimis or aberrational activities outside the scope of an employees’ routine duties
from qualifying an employee for TCA coverage.

It does not state or imply,

however, that covered employees cannot also have substantial duties involving
larger vehicles. The Department of Labor has endorsed this view, noting in a
guidance document that “even in weeks where employees worked on vehicles
weighing more than 10,000 pounds (and thus were subject to Department of
Transportation regulations), those employees would still be entitled to overtime if
they worked on vehicles weighing less than 10,000 pounds.” Hernandez v. Alpine
Logistics, LLC, 2011 WL 3800031, at *5 (W.D.N.Y. Aug. 29, 2011) (discussing
Department of Labor, Wage & Hour Division, Fact Sheet #19 (Nov. 2009),
available at http://www.dol.gov/whd/regs/compliance/whdfs19.pdf).
The Court thus follows the majority of courts (including the only court of
appeals) to have addressed the issue, and declines to adopt a reading of the TCA
that any significant use of vehicles weighing more than 10,000 pounds excludes an
employee from FLSA coverage. See, e.g., McMaster, 2015 WL 1036035, at *1–2
(holding that a driver who “spent 51% of her total days working on vehicles rated
heavier than 10,000 pounds, and 49% of her total days working on vehicles rated
12 / 19

lighter than 10,000 pounds” fell “squarely within the [TCA’s] definition of a
‘covered employee’”); Lucas, 2012 WL 4754729, at *9 (concluding that because
plaintiffs “did not perform meaningful work for more than an insubstantial time
with non-commercial vehicles,” they were not “covered employees” under the
TCA); Allen, 846 F. Supp. 2d at 705 (finding fact issue where parties did not
provide sufficient evidence concerning the plaintiffs’ “use (or non-use) of noncommercial vehicles”). Because the TCA extends FLSA coverage to motor carrier
employees whose work, even “in part,” “affect[s] the safety of operation of motor
vehicles weighing 10,000 pounds or less,” the law does not exclude a motor carrier
employee from FLSA coverage merely because his or her work also involves
operating heavier vehicles.
That is not the end of the statutory dispute, however. As mentioned above,
some courts have suggested that there is a minimum threshold of the type or
amount of work that employees must perform on vehicles weighing 10,000 pounds
or less before the TCA affords them FLSA overtime coverage. Two courts in this
district, for example, have held that a covered employee under the TCA “must
perform some meaningful work for more than an insubstantial time with vehicles
weighing 10,000 pounds or less.” Lucas, 2012 WL 4754729, at *9; Allen, 846 F.
Supp. 2d at 705 (emphasis added). Plaintiffs argue, to the contrary, that there is no
“meaningful work” requirement in the TCA, and cite Vanzzini v. Action Meat
13 / 19

Distribs., Inc., 2014 WL 426494 (S.D. Tex. Jan. 31, 2014), which denied summary
judgment with regard to an employee without determining whether his work met
some minimum threshold. Plaintiffs argue that the “in whole or in part” language
in the TCA affords FLSA coverage to employees as long their work involves
vehicles weighing 10,000 pounds or less, “no matter how small” a portion of their
work this is.5 As a textual matter, this position finds support in light of other
FLSA exemptions that set a higher statutory threshold by speaking of “primary
duties” and whether employees “customarily and regularly engage” in those duties.
See, e.g., 29 U.S.C. § 213(a)(17)(A) (exempting, among others, “any employee
who is a computer systems analyst . . . whose primary duty is the application of
systems analysis techniques and procedures . . . ”); 29 C.F.R. § 541.500(a)
(defining “outside salesman” to include employees whose “primary dut[ies]”
involve sales and who are “customarily and regularly engaged away from the
employer’s place or places of business in performing such primary duty”). On the
other hand, as mentioned above, the “duties” element of the TCA may functionally
act as a minimum threshold by excluding uncommon activities that fall outside of
an employee’s ordinary responsibilities.
5

In support of this argument, Plaintiffs point to CSX Transp., Inc. v. McBride, 131 S. Ct. 2630
(2011). In that case, the Supreme Court held that language in the Federal Employers Liability
Act stating that railroads are liable to their employees for injuries “resulting in whole or in part
from the negligence” of the railroad means that railroads are liable “if [the railroad’s] negligence
played a part—no matter how small—in bringing about the injury.” Id. at 2644.

14 / 19

The Court, however, need not resolve whether or not there is any minimum
threshold in the TCA for purposes of this motion.

The “meaningful work”

standard, as applied by other district courts, seems to require no more than that
covered employees’ work on vehicles weighing 10,000 pounds or less be more
than de minimis. See Allen, 846 F. Supp. 2d at 705 (following Mayan v. Rydbom
Exp., Inc., 2009 WL 3152136, at *9 n.12 (E.D. Pa. Sept. 30, 2009), which applied
a de minimis threshold to TCA coverage).

As discussed below, Plaintiffs’

summary judgment evidence is sufficient to raise a fact issue even under this
slightly more exacting standard.
B.

Application

Plaintiffs’ response to Warrior’s motion for summary judgment is supported
by declarations from the bellwether Plaintiffs that provide the details of each
Plaintiffs’ use of the Ford F-250s. Each bellwether Plaintiff describes two distinct
types of work he performed on the pickup trucks: (1) transporting fuel from “gas
and fueling stations” to well sites using “slip tanks” in the bed of the trucks, and
(2) transporting “the crew, tools, supplies, and equipment” between well sites,
Warrior’s “yard,” and hotels or “man camp[s].” See, e.g., Docket Entry No. 52-1
at 2–3.

Each Plaintiff also asserts that both types of travel usually occurred

without an attached trailer (which, as Warrior argues and Plaintiffs do not contest,
would raise the weight of the vehicles beyond 10,000 pounds).
15 / 19

With regard to fueling trips, each bellwether Plaintiff states that he made
“numerous trips during the day and during a well service job on the public
highways . . . retrieving and loading fuel at gas and fueling stations to supply the
fuel trailer and well service equipment for Defendant’s well service jobs,” and that
these trips lasted 1 to 1.5 hours. See Docket Entry No. 52-1 at 2 (Alvarado); id. at
6 (Barrows); id. at 10 (Holland); id. at 14 (Newell). Unlike in Lucas, in which the
court granted summary judgment because “Plaintiffs offered no evidence that they
worked with noncommercial vehicles,” 2012 WL 4754729, at *9, this claimed use
of the F-250s, allegedly performed regularly and for substantial amounts of time, is
sufficient to meet a “meaningful work” minimum threshold.

Compare also

Vanzzini, 995 F. Supp. 2d at 717 (finding testimony that employees sometimes
used a manager’s personal truck for business-related purposes sufficient to defeat
summary judgment).

Warrior asserts that “Plaintiffs greatly exaggerate the

significance of the F-250 as a refueling resource at the well site,” Docket Entry No.
56 at 12, and that such trips took place infrequently “because Warrior had multiple
other means to have its equipment refueled at the well site,” Docket Entry No. 51
at 37–38. The Court, however, cannot make credibility determinations at the
summary judgment stage. Plaintiffs’ declarations are sufficient to raise a fact issue
about whether their “work, in whole or in part” as drivers was “defined as affecting
the safety of operation of motor vehicles weighing 10,000 pounds or less.” See
16 / 19

TCA § 306(c)(2)(B). Because Plaintiffs’ assertion that they regularly used the
pickup trucks for fueling trips overcomes Warrior’s argument that they did not
drive them enough to qualify as covered employees, at this stage the Court need
not address Warrior’s contention that Plaintiffs’ trips between their lodging and the
well sites should be discounted for purposes of determining FLSA eligibility under
the Portal-to-Portal Act. 29 U.S.C. § 254(a).
That leaves another element of the TCA’s “covered employee” definition:
whether Plaintiffs “perform[ed] duties on motor vehicles weighing 10,000 pounds
or less.”

TCA § 306(c)(3).

Although Warrior notes that Plaintiffs’ job

descriptions did not include the operation of pickup trucks, it is “[t]he actual dayto-day job activities of the employee,” not job descriptions, that are relevant in
assessing an employee’s entitlement to FLSA coverage. Cf. Kohl v. Woodlands
Fire Dep’t, 440 F. Supp. 2d 626, 634 (S.D. Tex. 2006) (discussing the
administrative employee exemption to the FLSA). And although Warrior argues
that Plaintiffs’ “primary duties” involved the operation of larger trucks, the TCA
does not refer to “primary” duties as other FLSA provisions do. It only requires
that a covered employee “performs duties” on lighter vehicles. TCA § 306(c)(3).
Each of the bellwether Plaintiff’s declarations describes his use of the pickup
trucks as a duty, and Warrior provides no evidence to negate this characterization.

17 / 19

Plaintiffs’ evidence is thus sufficient to raise a fact issue on the “duties” element of
the TCA definition of “covered employee.”
The TCA also requires that covered employees must be employees “whose
work, in whole or in part, is defined as that of a driver, driver’s helper, loader, or
mechanic.”

TCA § 306(c)(2)(A).

Plaintiffs assert that they each worked as

drivers, loaders, and mechanics. Warrior argues that Plaintiffs were not loaders
because their jobs involved no “balancing, placing, distributing, or securing of
pieces of freight,” and that they were not mechanics because they only performed
“simple maintenance” and “visual inspections.” Docket Entry No. 56 at 14. But
because Warrior does not challenge Plaintiffs’ contention that they were drivers,
and because Plaintiffs have established a fact issue concerning whether their
driving duties were sufficient to entitle them to FLSA overtime wages, it is not
necessary to address these arguments.
V.

CONCLUSION

The parties paint very different pictures concerning Plaintiffs’ use of the
pickup trucks. At this stage in which all inferences must be drawn in favor of
Plaintiffs, that is enough to defeat summary judgment. This credibility dispute
should not be difficult to resolve at trial, however, assuming Plaintiffs are
performing similar duties to those they performed prior to November 2012.
Documentation of these recent activities over a reasonable period of time would
18 / 19

indicate how often, if at all, Plaintiffs are using the pickup trucks for fuel runs or
other covered activities. Resolution of this case must await that trial in which a
factfinder can decide this disputed issue. Warrior’s motion for summary judgment
(Docket Entry No. 51) is therefore DENIED.
SIGNED this 17th day of March, 2015.

_________________________________
Gregg Costa
United States Circuit Judge*

*

Sitting by designation.

19 / 19