Adams v. All Coast L L C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

WILLIAM ADAMS ET AL. CIVIL ACTION

VERSUS NO. 16-1426

ALL COAST, LLC SECTION: “H”

ORDER AND REASONS

Before the Court are Defendant’s second Motion for Summary Judgment

(Doc. 168) and Plaintiffs’ Daubert Motion to Exclude Defendant’s Expert Todd

Pellegrin (Doc. 170). For the following reasons, Defendant’s second Motion for

Summary Judgment is GRANTED, and Plaintiffs’ Daubert Motion is

DENIED.

BACKGROUND

This action arises out of Defendant All Coast, LLC’s (“All Coast” or

“Defendant”) alleged failure to pay Plaintiffs overtime compensation as

required by the Fair Labor Standards Act (“FLSA” or “the Act”).1 All Coast

operates a fleet of liftboats that service offshore oil and gas platforms in the

Gulf of Mexico. Plaintiffs were employed by All Coast to work aboard the

liftboats in different capacities, including cooks, mates, deckhands, ordinary

seamen (“OS”), and able-bodied seamen (“AB”). Plaintiff William Adams

initially brought this suit as a collective action on behalf of himself and other

1 See 29 U.S.C. § 201 et. seq.

similarly situated employees of All Coast to recover unpaid overtime wages.2

The Court subsequently granted conditional class certification for “Cooks;

Mates; Deckhands; Ordinary Seaman; and Able-Bodied Seaman employed by

All Coast, LLC in the workweeks in which they were employed in these

classifications in the [three years preceding November 2017], except for those

employees who signed waiver and release agreements.”3

All Coast filed a Motion to Dismiss for Failure to State a Claim that was

subsequently converted into a Motion for Summary Judgment.4 All Coast

asked the Court to find that Plaintiffs were exempt seamen under FLSA and

therefore not entitled to the Act’s overtime requirements. The Court adopted

the Magistrate Judge’s Report and Recommendation denying the Motion

without prejudice as premature.5 The parties have since conducted significant

discovery. All Coast filed the instant Motion for Summary Judgment, again

urging the Court to find that Plaintiffs are exempt from FLSA’s overtime

requirements because they are seamen.6 Plaintiffs also filed the instant

Daubert Motion, seeking to exclude the testimony of All Coast’s expert, Todd

Pellegrin.7

FLSA requires employers to provide overtime pay to any employee who

works more than forty hours per week unless an exemption applies.8

Defendant All Coast argues that Plaintiffs are exempt under the seaman

exemption and therefore, Plaintiffs’ claims should fail as a matter of law.9

Plaintiffs argue that they are not seamen and are consequently entitled to avail

2 See Doc. 1.

3 Doc. 85 at 1.

4 See Docs. 16, 33.

5 See Doc. 57.

6 See Doc. 168.

7 See Doc. 170.

8 29 U.S.C. §§ 207, 213.

9 See id. § 213(b)(6).

themselves of FLSA’s overtime provisions. The Act itself does not define the

term “seaman.”

Plaintiffs argue that, with the exception of the cooks, the bulk of their

jobs involved operating a crane aboard the liftboat as opposed to performing

traditional maritime duties. Plaintiffs aver that the significant crane

operations they performed render them non-seamen. Defendants argue that

Plaintiffs are seamen exempt from FLSA’s overtime requirements because

“[t]he amount of time the plaintiffs spent operating the crane, whether 10% of

their time or 100% is irrelevant because crane operation is seaman’s work that

aids the vessel as a means of transportation.”10 The Court agrees with

Defendant.

LEGAL STANDARD

“The court 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.”11 “As to materiality . . . [o]nly disputes over

facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.”12 Nevertheless, a dispute

about a material fact is “genuine” such that summary judgment is

inappropriate “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”13

In determining whether the movant is entitled to summary judgment,

the Court views facts in the light most favorable to the non-movant and draws

10 Doc. 168-11 at 13–14.

11 FED. R. CIV. P. 56.

12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

13 Id. at 248.

all reasonable inferences in his favor.14 “If the moving party meets the initial

burden of showing that there is no genuine issue of material fact, the burden

shifts to the non-moving party to produce evidence or designate specific facts

showing the existence of a genuine issue for trial.”15 Summary judgment is

appropriate if the non-movant “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case.”16 An employer who

asserts an exemption from FLSA’s overtime wage provisions bears the burden

of proof that the exemption applies.17

“In response to a properly supported motion for summary judgment, the

nonmovant must identify specific evidence in the record and articulate the

manner in which that evidence supports that party’s claim, and such evidence

must be sufficient to sustain a finding in favor of the nonmovant on all issues

as to which the nonmovant would bear the burden of proof at trial.”18 The Court

does “not . . . in the absence of any proof, assume that the nonmoving party

could or would prove the necessary facts.”19 Additionally, “[t]he mere argued

existence of a factual dispute will not defeat an otherwise properly supported

motion.”20

LAW AND ANALYSIS

The determination of whether an employee’s activities place that

employee within a FLSA exemption is a question of law; however, the question

14 Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).

15 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

16 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

17 Halle v. Galliano Marine Serv., L.L.C., 855 F.3d 290, 293 (5th Cir. 2017); see also 29 C.F.R.

§ 783.21.

18 Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.

2004) (internal citations omitted).

19 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

20 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

of what an employee’s work activities entail is a question of fact.21 “The line of

demarcation between seamen and non-seamen is not distinctly drawn, and

probably cannot be. It depends a good deal upon the facts in each case,

especially upon the character of the work that is principally engaged in.”22

Further, an employer who claims an exemption under the Act has the burden

of showing that it applies.23

While FLSA does not provide a definition for “seaman,” the Department

of Labor (“DOL”) regulations provide some guidance.24 Generally, a vessel’s

crew members are seamen, so long as they meet the criteria in 29 C.F.R.

§ 783.31.25 Section 783.31 provides:

[A]n employee will ordinarily be regarded as employed as a

seaman if [1] he performs, as master or subject to the authority,

direction, and control of the master aboard a vessel, [2] service

which is rendered primarily as an aid in the operation of such

vessel as a means of transportation, provided he performs no

substantial amount of work of a different character.26

The regulations also provide that “work other than seaman work becomes

substantial if it occupies more than 20 percent of the time worked by the

employee during the workweek.”27 Thus, if an employee spends more than 20%

of his time doing non-seaman’s work, he will not be a “seaman” under FLSA,

and consequently, he will not be exempt from its overtime provisions. Courts

21 See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) (“The question of how the

respondents spent their working time on board the Arctic Star is a question of fact. The

question whether their particular activities excluded them from the overtime benefits of

the FLSA is a question of law.”).

22 Walling v. Bay State Dredging & Contracting Co., 149 F.2d 346, 351 (1st Cir. 1945).

23 29 C.F.R. § 783.21; Walling v. Gen. Indus. Co., 330 U.S. 545, 548 (1947).

24 The Fifth Circuit has held that the Department of Labor regulations are entitled to great

weight. Dole v. Petroleum Treaters, Inc., 876 F.2d 518. 521 (5th Cir. 1989) (citing Tony &

Susan Alamo Found v. Sec’y of Labor, 471 U.S. 290, 297 (1985)).

25 29 C.F.R. § 783.32; Coffin v. Blessey Marine Servs., Inc., 771 F.3d 276, 279 (5th Cir. 2014).

26 29 C.F.R. § 783.31.

27 Id. § 783.37.

must “evaluate an employee’s duties based upon the character of the work he

actually performs and not on what it is called or the place where it is

performed.”28

A. Cooks

The Court will first address the issue of whether All Coast cooks are

“seamen” under FLSA. “The term ‘seaman’ includes members of the crew such

as . . . cooks . . . if, as is the usual case, their service is of the kind described in

§ 783.31.”29 “A cook is usually a seaman because he usually cooks for

seamen.”30 Here, Plaintiffs and Defendant agree that All Coast cooks prepared

food for both crewmembers and third parties. If “the cooks spent more than

20% of their time preparing food for non-crew members,” then “they are not

seamen under the FLSA.”31 Only one Plaintiff, Erwin Thibodeaux, was deposed

regarding his work as a cook. This testimony reveals that as a cook, Plaintiff

Thibodeaux was under the command of the vessel’s captain; ate, slept, and

lived aboard the vessel; and cooked for crewmembers and third parties.32

Crucially, Plaintiff Thibodeaux testified that for every meal he cooked, All

Coast crew members ate.33 While third parties may have been on board at

times and consumed the cook’s food, the crewmembers were served each and

every meal prepared by the cook. Consequently, the Court finds that All Coast

cooks are “seamen” for FLSA because they cooked primarily for All Coast

crewmembers.

B. Mates, Deckhands, Ordinary Seamen, and Able-Bodied Seamen

28 Coffin, 771 F.3d at 280 (citing 29 C.F.R. § 783.33).

29 29 C.F.R. § 783.32.

30 Martin v. Bedell, 955 F.2d 1029, 1036 (5th Cir. 1992).

31 Id.

32 Doc. 173-11 at 14, 18–20.

33 Id. at 19.

As to the remaining All Coast job positions at issue, the parties do not

dispute that the first prong of the seaman exemption is satisfied: each Plaintiff

was answerable to the captain of his assigned vessel. The parties also do not

dispute what the Plaintiffs’ work activities entailed. Instead, the parties

dispute whether those work activities, as a matter of law, qualify Plaintiffs as

“seamen.”

The evidence presented by the parties demonstrates the following

undisputed facts. All Plaintiffs, regardless of their position, were assigned to a

particular All Coast liftboat vessel as a crew member. The liftboats were

chartered by other companies to transport people and equipment on the

liftboat to a worksite offshore. While on hitch, Plaintiffs ate all of their meals

on the vessel and slept aboard the vessel. Each deposed Plaintiff agreed that

the official All Coast job descriptions, whether for the position of Mate, AB, OS,

or Deckhand, accurately reflected their job duties and responsibilities.34

However, each deposed Plaintiff also noted that crane operations—not listed

on the job descriptions—were a significant part of their job duties. The cranes

were used to transport personnel, supplies, and equipment back and forth

between the liftboat and the dock, the liftboat and the worksite platform, the

liftboat and other vessels, and within the liftboat itself. Plaintiffs spent

between 25% and 90% of their day operating the crane.35

34 These job descriptions include duties like standing look out, steering, engine room watches,

attaching lifting devices to cables, washing the deck, loading equipment and supplies onto

the vessel, splicing rope, and making minor repairs. See Docs. 168-6, 168-7, 168-8, 173-2,

173-5.

35 Plaintiff Christopher Robinson, employed as a Mate, testified that 75% of his time was

spent operating the crane. Docs. 168-6 at 24, 173-10 at 13. Plaintiff Rynell Wesley, also

employed as a Mate, testified that 50% of his time was spent operating the crane. Docs.

168-6 at 76, 173-13 at 8. Plaintiff Cody Migues, employed as an OS, testified that 25% of

his time was spent operating the crane. Docs. 168-7 at 47–48, 173-9 at 173-9 at 18–19.

Plaintiff Joe Adams, employed as an AB, testified that 70% of his time was spent operating

the crane. Docs. 168-8 at 18, 173-8 at 5. Plaintiff Syronne Coney, also employed as an AB,

Plaintiffs and Defendant agree that the listed job duties on the official

All Coast job descriptions constitute seaman’s work.36 The parties also agree

on the amount of time that Plaintiffs spent operating cranes. However, the

parties dispute whether crane operations constitute seaman’s work. Because

the Plaintiffs spent more than 20% of their time operating the crane, if crane

operation—in this context—is not seaman’s work under FLSA, then Plaintiffs

performed a substantial amount of non-seaman’s work and hence cannot

qualify as seamen for purposes of FLSA. However, if crane operation—in this

context—is seaman’s work, then Plaintiffs’ claims fail as a matter of law

because they would be classified as exempt seamen under FLSA and not

entitled to overtime pay.

The DOL regulations define seaman’s work as a “service which is

rendered primarily as an aid in the operation of [a] vessel as a means of

transportation.”37 To determine if crane operations aids the vessel as a means

of transportation, the Court must evaluate the Plaintiffs’ work “based upon the

character of the work . . . and not on what it is called or the place where it is

performed.”38

On All Coast chartered liftboats, cranes were used to move people and

supplies off of and onto the liftboat at various locations. The crane, therefore,

functioned to load and unload cargo from the liftboat. The Fifth Circuit has

noted “with some caution that [w]orkers who are primarily concerned with

loading and unloading cargo are not, generally speaking, seamen within the

testified that more than 50% of his time was spent operating the crane. Docs. 168-8 at 78,

173-7 at 26. Plaintiff William Adams testified that he spent 90% of his time operating the

crane when he was employed as an AB and 85% of his time operating the crane when he

was employed as a deckhand. Docs. 168-8 at 43–45, 173-12 at 7.

36 See supra, n. 34.

37 29 C.F.R. § 783.31.

38 Coffin, 771 F.3d at 280 (citing 29 C.F.R. § 783.33).

meaning of the FLSA.”39 However, unloading and loading cargo is not per se

non-seaman’s work because courts must “always consider the factual context

when deciding whether an employee is exempt.”40 The Court therefore looks to

other similar factual circumstances to determine whether crane operations, in

this context, constitutes seaman’s work.

In Owens v. SeaRiver Maritime, Inc., the Fifth Circuit held that the

plaintiff was not a seaman under FLSA.41 The plaintiff was assigned to a

“strike team” stationed on a permanently-moored, land-based, landing barge.

The strike team was responsible for loading and discharging product from

unattended barges, and this was primary purpose of plaintiff’s job. The

plaintiff was not a member of a towboat crew and was not tied to any vessel for

the duration of the voyage.42 The Fifth Circuit found that because loading and

unloading barges merely prepared the vessel for navigation and did “not aid in

its actual operation as a means of transportation,” the strike team work was

non-seaman’s work.43

Conversely, in Coffin v. Blessey Marine Services, Inc., the Fifth Circuit

found that a vessel-based tankerman, whose primary duties involved loading

and unloading barges, was a seaman for purposes of FLSA.44 The Fifth Circuit

distinguished the facts in Coffin from Owens in reaching its conclusion. Unlike

the plaintiff in Owens, the Coffin plaintiff lived and worked on the towboat to

which he was assigned; was answerable to the vessel’s captain; shared the

nineteen duties that deckhands performed along with his primary loading and

39 Id. (brackets and italics in original) (citing Owens v. SeaRiver Maritime, Inc., 272 F.3d 698,

704 (5th Cir. 2001)).

40 Id. (emphasis in original).

41 272 F.2d 698 (5th Cir. 2001).

42 Id. at 700.

43 Id. at 704 (emphasis in original).

44 771 F.3d 276 (5th Cir. 2014).

unloading duties; and was expected to perform work on barges that were

towed, not simply stationary.45

The Fifth Circuit in Coffin repeatedly emphasized that “the character of

loading and unloading duties might change when a member of a vessel-based

crew performs such duties.”46 The Fifth Circuit stated:

Naturally, when an individual lives aboard the vessel that he or

she loads or unloads, this living situation will affect the character

of his or her duties. In Owens, the tankermen were divorced from

the subsequent navigation of the barge. By contrast, the Plaintiffs

here recognized that their loading and unloading duties were

integrated with their many other duties.47

The court found that the Coffin plaintiff’s loading and unloading duties were

integrated with other standard seaman’s duties “because doing his job

improperly meant that the barge would get stuck when traveling down a river

or canal . . . . [and] that performing [his] loading and unloading duties

effectively made [his] jobs and the captain’s job easier.”48

The Fifth Circuit ultimately held that the Coffin plaintiff was a seaman

because, as a vessel-based employee, he “performed [his] loading and

unloading duties with an eye toward navigation and [was] required to perform

such duties safely so that the vessel could safely operate on inland and oceanic

waterways.”49 While the “evidence in Owens was insufficient to suggest that

loading and unloading assisted the vessel’s operation, [the Fifth Circuit] did

not categorically reject the relevance of such evidence in other cases,

45 Id. at 278, 280.

46 Id. at 281.

47 Id. at 283 (internal citation omitted).

48 Id. at 284 (emphasis in original).

49 Id. (emphasis in original).

particularly when the work in question is performed by a member of the

vessel’s crew.”50

In Johnson v. Canal Barge Co.,51 the Southern District of Texas found

that the plaintiff, a vessel-based tankerman, was a seaman. The court applied

four principles from Coffin in reaching its finding: (1) the plaintiff was subject

to the control of the master of the vessel; (2) the plaintiff was a member of the

marine crew responsible for operating the ship; (3) the plaintiff ate, slept, lived,

and worked on the vessel; and (4) the plaintiff’s job of loading and unloading

cargo had implications for the seaworthiness and efficient movement of the

defendant’s barges.52 In support of the last principle, the court explained that

uncontradicted evidence showed that the plaintiff’s loading and unloading of

cargo implicated the safety of the vessel on which he was a crew member.53

The facts of this case more closely resemble Coffin and Johnson than

Owens. The Plaintiffs here were subject to the control of the vessel’s master;

were members of the crew assigned to a particular vessel; and ate, slept, lived,

and worked on the vessel. They had duties and responsibilities that resembled

typical seaman’s work.54 Crucially, however, the Plaintiffs’ crane operations

had implications for the seaworthiness and efficient movement of the vessel.

Plaintiff Christopher Benjamin testified that operating a crane is

hazardous, and that while operating the crane, he has to watch out for other

All Coast crew members, crew members of other vessels, the position of the

boat, and the position of the platform.55 Plaintiff Syronne Coney testified that

operating a crane is fatally hazardous to crew members onboard the vessel,

50 Id. at 281.

51 181 F. Supp. 3d 413 (S.D. Tex. 2016).

52 Id. at 416–17.

53 Id. at 418.

54 See supra, n. 34.

55 Doc. 173-6 at 9.

crew members onboard other vessels, and personnel on platforms.56 Plaintiff

Cody Migues testified that crane operations are hazardous and that safety is

important for crane operations.57 He stated, “You got to be safe. Every lift you

pick up, it has to be safe, and it don’t [sic] matter if the rigger is telling you to

go up. You got to look at your ball, you know, make sure everything is centered,

and then pick up the load.”58 He further stated that it is important to be

mindful of environmental conditions like the weather and the sea.59 Plaintiff

Christopher Robinson testified that the main hazard with operating a crane is

“striking personnel, your legs.”60 He also stated that crane operations were

hazardous to seamen on other vessels and to personnel on oil platforms.61

The Court therefore finds that—in this specific context—the Plaintiffs’

crane operations for Defendant All Coast constitute seaman’s work because

they are a “service which is rendered primarily as an aid in the operation of

such vessel as a means of transportation.” Plaintiffs consequently perform “no

substantial amount of work of a different character.” Accordingly, Plaintiffs

are considered “seamen” for purposes of FLSA and are exempt from FLSA’s

overtime provisions.62 Additionally, All Coast cooks are “seamen” because they

cook primarily for seamen. Therefore, Plaintiffs’ claims fail as a matter of law.

56 Doc. 173-7 at 31.

57 Doc. 173-9 at 21–22.

58 Id. at 22.

59 Id.

60 Doc. 173-10 at 14.

61 Id.

62 The Court’s conclusion is bolstered by the Supreme Court’s recent pronouncement in

Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018). There, the Supreme Court held

that exemptions from FLSA should now be given a fair construction as opposed to a narrow

one that had traditionally been applied by courts in the past. Id. at 1142.

CONCLUSION

Considering the foregoing, Defendant’s Motion for Summary Judgment

is GRANTED, and Plaintiffs’ claims are DISMISSED WITH PREJUDICE.

Plaintiffs’ Daubert Motion is DENIED as moot.

New Orleans, Louisiana this 15th day of October, 2019.

Gg TRICHE MILAZZO

UNITED STATES DISTRICT JUDGE

13