Wimberley v. Beast Energy Servs.
| Docket Number | Civil Action 3:19-cv-00096 |
| Decision Date | 04 March 2022 |
| Parties | MATTHEW WIMBERLEY, ET AL., Plaintiffs. v. BEAST ENERGY SERVICES, INC., ET AL., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
MEMORANDUM AND RECOMMENDATION
Pending before me are two motions filed by Defendant Beast Energy Service, Inc. (“Beast Energy”): (1) a Motion for Summary Judgment (Dkt. 44); and (2) a Motion to Strike Plaintiffs' Summary Judgment Evidence (Dkt. 47). After carefully reviewing the motions, the parties' briefing and the applicable law, and for the reasons discussed below I recommend that Beast Energy's Motion for Summary Judgment and Motion to Strike be DENIED. I also sua sponte recommend Plaintiffs' claims against Defendant Stig Gjerlaug be DISMISSED WITHOUT PREJUDICE for failure to prosecute.
Beast Energy is an oilfield service company that offers a range of downhole drilling tools and techniques, as well as other custom engineered products, solutions, and services (e.g. well-site supervision). Beast Energy employed Nicholas Flores (“Flores”) and Matthew Wimberley (“Wimberley”) (collectively “Plaintiffs”) as service supervisors for approximately six months in 2018. Broadly speaking Plaintiffs were responsible for loading and transporting oilfield service equipment to clients' well sites in south and west Texas, making sure the equipment was used in a safe manner, and returning the equipment to Beast Energy's shop in Rosharon, Texas. When Plaintiffs weren't traveling or onsite, they worked at Beast Energy's Rosharon shop, where they prepared, maintained, serviced, and rebuilt tools for upcoming jobs.
Plaintiffs received a monthly salary and were paid on a bi-weekly basis. In addition, Plaintiffs were eligible to receive bonus compensation known as “man-day” bonuses, which were calculated based on the number of projects Plaintiffs worked during the month prior, the fee Beast Energy charged its clients for said projects, and Beast Energy's overall profitability. The parties hotly dispute whether the man-day bonuses were discretionary.
Jason Tyson (“Tyson”), Plaintiffs' supervisor and Beast Energy's General Manager, maintains that he “had the authority on behalf of [Beast Energy] to offer” man-day bonus payments, which he verbally promised to Wimberley and Flores. See Dkt. 45-2 at 6-7. Plaintiffs similarly claim that Tyson, as well as Beast Energy's Vice President, Jason Hartley (“Hartley”), and its President/CEO, Stig Gjerlaug (“Gjerlaug”), verbally promised to pay them man-day bonuses. See Dkt. 45-4 at 7; Dkt. 45-5 at 7. Beast Energy disputes this characterization and maintains that, per Beast Energy's bonus policy, incentive bonuses were discretionary and largely dependent upon the company's overall profitability. See Dkt. 44-1 at 4, 8-9. Whatever the case, Beast Energy did not prove to be profitable, and in November 2018, Plaintiffs, along with Tyson, resigned.
In March 2019, Plaintiffs sued Beast Energy and Gjerlaug to recover unpaid overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Despite filing this suit nearly three years ago, Beast Energy never served Gjerlaug with process. Accordingly, I sua sponte recommend the Court dismiss Plaintiffs' claims against Gjerlaug without prejudice for failure to prosecute. See Fed. R. Civ. P. 4(m).
In their Second Amended Complaint, Plaintiffs complain they never received overtime compensation, despite “regularly . . . work[ing] in excess of forty (40) hours per week[, ] generally working approximately sixty (60) to one hundred and twenty (120) hours per week or more.” Dkt. 14 at 4. Plaintiffs also argue that the man-day bonuses they received or are owed should be considered part of their regular rate of pay for purposes of calculating their unpaid overtime.
Beast Energy has moved for summary judgment. Leading off, Beast Energy argues that Plaintiffs are not entitled to overtime compensation because they were properly classified as exempt administrative employees. In the alternative, Beast Energy argues that Plaintiffs have failed to satisfy their burden of demonstrating they performed compensable overtime work because the hours they claim to have worked are either “physically impossible” or include non-compensable “travel time.” Dkt. 44 at 27. Finally, and again in the alternative, Beast Energy argues that the man-day bonuses were discretionary and, therefore, should not be included as part of Plaintiffs' regular rate of pay.
In response, Plaintiffs argue that the administrative exemption does not apply because they performed manual labor and their “primary duty” was not directly related to Beast Energy's management or general business operations. Plaintiffs also dispute that the man-day bonuses were discretionary. As for the credibility of their claimed overtime hours, Plaintiffs argue that is a fact question for the jury to decide. Regardless, Plaintiffs argue, time spent transporting necessary equipment to and from well sites is compensable under the FLSA.
Summary judgment is appropriate “if the movant shows 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 of material fact is “genuine” if the evidence would allow a reasonable jury to find in favor of the nonmovant. See Rodriguez v. Webb Hosp. Corp., 234 F.Supp.3d 834, 837 (S.D. Tex. 2017). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once satisfied, the burden shifts to the nonmovant to show the existence of a genuine fact issue for trial. See Id. at 324. To do so, the “nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim.” Brooks v. Houston Indep. Sch. Dist., 86 F.Supp.3d 577, 584 (S.D. Tex. 2015).
In ruling on a motion for summary judgment, I must construe “the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.” Cadena v. El Paso Cnty., 946 F.3d 717, 723 (5th Cir. 2020). It is not my role to weigh the evidence or evaluate its credibility, as those are fact questions for the jury to decide. See Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016) (). That said, I am “not required to accept the nonmovant's conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence.” Id. (quotation omitted).
Under the FLSA, employers must pay overtime compensation to employees who work more than 40 hours per week. See 29 U.S.C. § 207(a)(1). However, employees working in a bona fide executive, administrative, or professional capacity are exempt from the FLSA's overtime requirement. See 29 C.F.R. § 541.200(a). Only the administrative exemption is at issue in this case. An employee qualifies as an administrative employee if:
See id.
The employer has the burden of establishing that an exemption applies by a preponderance of the evidence. See Fraser v. Patrick O'Connor & Assocs., L.P., 954 F.3d 742, 745 (5th Cir. 2020). The Supreme Court has rejected the principle that the FLSA's exemptions should be construed narrowly against the employer and instead determined courts must give them a “fair reading.” See Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134, 1142 (2018) .
Because the disposition of Beast Energy's Motion to Strike will affect the evidentiary record, I address it first.
In opposition to Beast Energy's Motion for Summary Judgment, Plaintiffs submitted the sworn declarations of Tyson, Wimberley, and Flores. Beast Energy asserts a general objection to “[a]ny statements . . . that are not based on the declarant's personal knowledge.” Dkt. 47 at 4. Beast Energy also objects to and has moved to strike specific portions of the declarations, arguing the testimony is conclusory, “calls for an ultimate legal conclusion, ” or “contains a factual allegation that is actually an ultimate legal conclusion.” See Id. at 2-7.
Under Federal Rule of Civil Procedure 56, declarations may be offered in support of, or opposition to, summary judgment if they set forth facts that would be admissible under the Federal Rules of Evidence. See Fed. R. Civ. P 56(c)(4). See also Fed. R. Evid. 602 (). However, the factual averments cannot be conclusory or based on mere belief. See Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997). If a declarant establishes personal knowledge of the facts contained in their...
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