Boudreaux v. Schlumberger Tech Corp

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

BROCK P BOUDREAUX ET AL CASE NO. 6:14-CV-02267

VERSUS JUDGE SUMMERHAYS

SCHLUMBERGER TECHNOLOGY CORP MAGISTRATE JUDGE WHITEHURST

MEMORANDUM RULING

The present matters before the Court are two motions for partial summary judgment filed

in this Fair Labor Standards Act (“FLSA”) collective action: (1) Plaintiffs’ Motion for Partial

Summary Judgment Regarding Schlumberger’s Affirmative Defenses [Doc. 343],’ and (2)

Plaintiffs’ Motion for Partial Summary Judgment Regarding Schlumberger’s Executive

Exemption Affirmative Defense [Doc. 368]. For the reasons set forth below, the Court GRANTS

Plaintiffs’ Motion for Partial Summary Judgment on Schlumberger’s Affirmative Defenses [Doc.

343], and GRANTS in part and DENIES in part Plaintiffs’ Motion for Partial Summary Judgment

on Schlumberger’s Executive Exemption Affirmative Defense [Doc. 368].

I.

BACKGROUND

This case was brought as a proposed collective action under the FLSA and alleges that

Defendant Schlumberger Technology Corporation (“Schlumberger”) failed to pay its

Measurement While Drilling (“MWD”) operators and Directional Drillers (“DD”) overtime as

required by the FLSA. Instead, Plaintiffs allege that Schlumberger paid its MWDs and DDs on

' This motion addresses 22 affirmative defenses: estoppel, misrepresentation, unclean hands, laches, failure to exhaust

administrative remedies, internal complaint procedures, election of remedies, professional exemption, outside sales

exemption, failure to mitigate, setoff, credit, waiver, ratification, acquiescence, consent, unjust enrichment,

comparative fault, payment, accord and satisfaction, justification and res judicata.

2 Complaint at J] 17-48 [Doc. 1].

salary plus a “day-rate.”? The Court ultimately granted Plaintiffs’ Motion for Conditional

Certification, and defined two classes that would be conditionally certified: the “MWD Class”

which includes all MWDs employed by Schlumberger during the past three years, and the “DD

Class” which includes all DDs employed by Schlumberger during the past three years.4

Schlumberger filed an answer to the complaint asserting a wide array of affirmative defenses.°

The present motions for partial summary judgment challenge a number of those asserted

affirmative defenses.

II.

SUMMARY JUDGMENT STANDARD

“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.” Fed. R. Civ. P. 56(a). “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.” Jd. “A genuine issue of

material fact exists when the evidence is such that a reasonable jury could return a verdict for the

non-moving party.” Quality Infusion Care, Inc. y. Health Care Service Corp., 628 F.3d 725, 728

(5th Cir. 2010). As summarized by the Fifth Circuit:

When seeking summary judgment, the movant bears the initial

responsibility of demonstrating the absence of an issue of material

fact with respect to those issues on which the movant bears the

burden of proof at trial. However, where the nonmovant bears the

burden of proof at trial, the movant may merely point to an absence

of evidence, thus shifting to the non-movant the burden of

demonstrating by competent summary judgment proof that there is

an issue of material fact warranting trial.

Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994) (internal citations omitted).

3 1.

Memorandum Ruling [Doc. 52].

Doc. 10 and Doc. 29.

When reviewing evidence in connection with a motion for summary judgment, “the court

must disregard all evidence favorable to the moving party that the jury is not required to believe

and should give credence to the evidence favoring the nonmoving party as well as that evidence

supporting the moving party that is uncontradicted and unimpeached.” Roberts v. Cardinal

Services, Inc., 266 F.3d 368, 373 (5th Cir.2001); see also Feist v. Louisiana, Dept. of Justice,

Office of the Atty. Gen., 730 F.3d 450, 452 (Sth Cir. 2013) (court must view all facts and evidence

in the light most favorable to the non-moving party). “Credibility determinations are not part of

the summary judgment analysis.” Quorum Health Resources, L.L.C. v. Maverick County Hosp.

Dist., 308 F.3d 451, 458 (Sth Cir. 2002). Rule 56 “mandates the entry of summary judgment...

against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof.” Patrick v.

Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (alterations in original) (quoting Celotex v. Catrett, 477

U.S. 317, 322 (1986)).

TI.

MOTION ON AFFIRMATIVE DEFENSES

A. Withdrawn Defenses

Schlumberger states that it is withdrawing fourteen (14) of the twenty-two (22) affirmative

defenses challenged by Plaintiffs’ Motion for Partial Summary Judgment: estoppel,

misrepresentation, unclean hands, laches, administrative remedies, internal complaint procedures,

election of remedies, professional exemption, outside sales exemption, failure to mitigate,

comparative fault, justification, unjust enrichment, and acquiescence.° Because Schlumberger is

Schlumberger’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment on Affirmative Defenses at 6 [Doc.

no longer relying on these affirmative defenses, the Court GRANTS Plaintiffs’ Motion for Partial

Summary Judgment [Doc. 343] with respect to these defenses.

B. Res Judicata, Payment, Accord, Satisfaction, and Release Defenses

Plaintiffs next challenge Schlumberger’s res judicata, payment, accord, satisfaction, and

release affirmative defenses on the grounds that Schlumberger has not produced any evidence and

discovery that would support these defenses. These defenses arise out of the settlement of an

FLSA collective action filed by Andrew Fritchman in the Western District of Pennsylvania,

Fritchman v. Schlumberger Tech. Corp., No. 2:16-cv-01752 (W.D. Pa. filed Nov. 22, 2016). A

final judgment and order granting a motion for final approval of a class action settlement was

entered in that matter on November 15, 2018.7 According to Schlumberger, the class action

settlement in Fritchman released any and all claims including claims under the FLSA$

Schlumberger argues that six of the opt-in Plaintiffs in the present case were also members of the

Fritchman class settlement and submitted claim forms in that action.? Schlumberger contends that

its affirmative defenses of res judicata, payment, accord, satisfaction, and release bar these six opt-

in plaintiffs from recovering in the present case.

Plaintiffs respond that they will dismiss the six opt-in plaintiffs who are members of the

Fritchman class: Ronnell Freeman, Edward Jacques, Jr., Matthew Jewell, Sarah West, David

Mason, Eric Matz, and Thomas Meeks-Teal.!° The Court subsequently entered an order dismissing

these plaintiffs with prejudice.'! In light of the dismissal of these defendants, the Court agrees with

Plaintiffs that Schlumberger has not demonstrated any grounds to assert these affirmative defenses

7 See Judgment and Order Granting Motion for Final Approval of Class Settlement, Attorney Fees and Costs, No. 16-

01752 [Doc. 76].

8 Defendant’s Opposition to Plaintiffs’ Motion for Partial Summary Judgment on Affirmative Defenses at 4 [Doc.

a.

10 Plaintiffs’ Reply in Support of Motion for Partial Summary Judgment on Affirmative Defenses at 4 [Doc. 388].

" August 9, 2019 Order Granting Joint Motion to Dismiss the Claims of Certain Plaintiffs [Doc. 455].

against any other plaintiff. Accordingly, the Court GRANTS Plaintiffs’ Motion for Partial

Summary Judgment [Doc. 343] with respect to the affirmative defenses of res judicata, payment, □

accord, satisfaction, and release.

C. Waiver, Consent, and Ratification

Plaintiffs next assert that Schlumberger has put forth no evidence to support its affirmative

defenses of waiver, consent, and ratification. Schlumberger bases these defenses on severance

agreements signed by twenty-three (23) of the opt-in plaintiffs. As Plaintiffs correctly argue--and

it appears Schlumberger agrees--a plaintiff's substantive FLSA claim cannot be waived. See

Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740 (1981) (FLSA rights cannot

be abridged by contract or otherwise waived.”).!* Schlumberger, however, contends that plaintiffs

may waive their right to proceed in a collective action; in other words, plaintiffs may waive their

procedural rights.!> Schlumberger further contends that it is not seeking to bar Plaintiffs from

asserting their FLSA claims individually as opposed to asserting these claims through a collective

action.

The Court agrees with Plaintiffs that Schlumberger cannot assert an affirmative defense of

waiver, ratification, acquiescence, and consent based on the collective action waivers in the

severance agreements signed by certain opt-in plaintiffs. See, e.g., Barrentine, 450 U.S. at 740.

To the extent that Schlumberger is seeking to preclude these twenty-three opt-in plaintiffs from

asserting their claims in this collective action, Schlumberger may file an appropriate motion to

enforce this procedural waiver and allow the Court to rule on the merits of that motion. “With

respect to these affirmative defenses, however, the Court agrees that they are directed at Plaintiffs’

Plaintiffs’ Memorandum in Support of Motion for Partial Summary Judgment on Affirmative Defenses at 5 [Doc.

"Schnee opposition to Plaintiffs’ Motion for Partial Summary Judgment on Affirmative Defenses at 14 [Doc.

71).

substantive claims and are barred. The Court GRANTS Plaintiffs’ Motion for Partial Summary

Judgment [Doc. 343] with respect to the affirmative defenses of waiver, ratification, acquiescence,

and consent. The Court grants this motion without prejudice to Schlumberger’s right to seek relief

with respect to its claim that certain plaintiffs waived their procedural right to assert their

substantive FLSA claims in a collective action.

D. Setoff and Credit Defenses

Plaintiffs next contend that the affirmative defenses of credit and setoff are not available

under the FLSA. Schlumberger bases these defenses on bonuses received by these MWD members

of the class prior to December 2016.'* Schlumberger explains that prior to December 2016 MWDs

were classified as exempt and were paid on a salary and bonus basis.'° Under this compensation

plan, MWDs “received a fixed bi-weekly salary plus a day rate bonus for all days in which they

worked in the field, regardless of how many hours the employee worked.”!© MWDs were also

eligible to receive other bonuses, including “standby” bonuses, “remote operations crew” bonuses,

“reduced crew incentive” bonuses, and “key technology” bonuses.!” The “eligibility requirements

and daily bonus amounts for these additional bonuses varied and was based on the employee’s pay

grade and the services that were run in the field.”!® Schlumberger contends that this compensation

plan was designed “for salaried-exempt employees who were not eligible to receive overtime

pay.”!? Accordingly, Schlumberger argues that it is entitled to a setoff or credit for bonuses paid

to MWD members of the class who are considered non-exempt on the grounds that they were not

14 Schlumberger’s Opposition to Plaintiffs’ Motion for Partial Summary Judgment on Affirmative Defenses at 7-8

Seclumatten of Osaretin Ojeiduma, Exh. 2 to Schlumberger’s Opposition to Plaintiffs’ Motion for Partial Summary

Judgment on Affirmative Defenses [Doc. 371-2].

16 Td. at 94.

Td. at] 5.

187.

19 Td.

entitled to receive these bonus payments.”° Plaintiffs respond that a setoff or credit for these bonus

payments is not permitted under the FLSA.

As a general rule, “‘[s]et-offs against back pay awards deprive the employee of the ‘cash

in hand’ contemplated by the Act, and are therefore inappropriate in any proceeding brought to

enforce the FLSA minimum wage and overtime provisions....” Singer v. City of Waco, Texas, 324

F. 3d 813, 828 n.9 (5th Cir. 2003) (quoting Brennan y. Heard, 491 F.2d 1, 4 (Sth Cir. 1974)). In

Singer, however, the Fifth Circuit recognized an exception to this general rule where “the money

being setoff can be considered wages that the employer prepaid the plaintiff-employee.” Martin

v. PepsiAmericas, Inc, 628 F.3d 738, 742 (Sth Cir. 2010) (citing Singer, 324 F.3d at 826). In

Singer, the plaintiffs were firefighters who sued their employer, the City of Waco, claiming that

they were not paid overtime compensation as required by the FLSA. There, the plaintiffs worked

in cycles of 120 hours over the first fourteen-day work period, 120 hours over the next fourteen-

day work period, and 96 hours over a third fourteen-day work period. Singer, 324 F.3d at 828.

Even though the actual hours worked during these three periods differed, the plaintiffs were paid

the same salary every two-week period. Jd. As a result, the plaintiffs were overcompensated for

the number of hours that they worked during the third fourteen-day work period when they only

worked 96 hours. Jd. They were undercompensated considering the number of hours worked over

the two fourteen-day work periods when they worked 120 hours. Jd. The court acknowledged the

general prohibition against setoffs in FLSA cases as well as the inapplicability of an “unjust

enrichment” claim. Jd. at 827. The court, however, characterized the overpayments during the

third (96 hour) work period as “pre-payments” of the city’s overtime obligations. Jd. at 828. In

Martin, 628 F.3d at 742, the Fifth Circuit clarified that Singer was a “narrow exception to the

20 Schlumberger’s Opposition to Plaintiffs’ Motion for Partial Summary Judgment on Affirmative Defenses at 7-8

[Doc. 371].

bright-line rule” that setoffs are impermissible under the FLSA, and that the Singer exception was

grounded on the “unique character of the setoffs” at issue in that case. Jd. According to the Martin

court, the Singer exception is limited to cases where the offset involves amounts that “can be

considered wages that the employer pre-paid to the plaintiff-employee.” Jd.

The MWD bonuses at issue here do not fall within the narrow exception outlined in Singer

and Martin. These bonuses are not “wages” that Schlumberger used to “pre-pay” its overtime

obligations to the MWD plaintiffs. Rather, these bonuses were based on such factors as seniority

and the nature of the work performed on a particular job.”! Thus, unlike wages, those bonuses were

not automatically applicable in every case where an MWD worked a job: “MWD employees

were...eligible to receive additional bonuses....”*? Courts addressing bonuses under similar

circumstances have declined to apply the Singer exception. See, e.g., Crews v. Elite Coil Tubing

Sols., LLC, No. 6:13-cv-00020, 2013 WL 6252697, at * 1-2 (S.D. Tex. Nov. 26, 2013) (day bonus

payments were not an attempt to “offset unpaid overtime with prepaid wages,” and therefore did

not trigger the Singer exception).

Schlumberger argues that the Fifth Circuit, in Gagnon y. United Technisource, Inc., 607

F.3d 1036 (Sth Cir. 2010), recognized two exceptions to the general prohibition of offsets in FLSA

actions: “those paid in advance to the employee and those paid inappropriately to the employee.”

Schlumberger argues that the MWD bonuses may be offset under Gagnon’s “two prong” exception

because, if the MWD plaintiffs had been properly classified as non-exempt, they would not be

eligible for the bonuses. Accordingly, the bonuses were “inappropriately” paid and could be used

to offset overtime wages regardless of whether they can be characterized as pre-paid wages. This

Gjeidume Declaration at | 5 [Doc. 371-2].

23 Schlumberger’s Opposition to Plaintiffs’ Motion for Partial Summary Judgment on Affirmative Defenses at 7 [Doc.

371] (emphasis added).

argument fails for two reasons. First, the argument misreads Gagnon. In Gagnon, the defendant

sought to offset per diem payments. 607 F. 3d at 1043. The court ruled that these per diem

payments did not fall within the Singer exception for pre-paid overtime obligations. /d. In

distinguishing Singer, the court explained that the defendant “did not pay Gagnon any additional

sums that could be characterized as advanced or inappropriate amounts subject to an offset against

the overtime owed to him.” Jd. There, the court was using the term “advanced or inappropriate” to

describe Singer’s exception for pre-paid wages, not to broaden the Singer exception or carve out

a new exception akin to the unjust enrichment theory rejected in Singer. Second, the argument

ignores Martin, 628 F.3d at 742. Martin clarified Singer and Gagnon to the extent that any

exception to the general prohibition of setoffs or credits is limited to one narrow exception

involving pre-paid wages, not a broader exception involving any amounts that could be

characterized as paid “inappropriately.” 628 F.3d at 742. The Court therefore GRANTS Plaintiffs’

Motion for Partial Summary Judgment [Doc. 343] with respect to Schlumberger’s setoff and credit

affirmative defenses.

IV.

MOTION ON THE EXECUTIVE EXEMPTION

The Court next addresses Plaintiffs’ Motion for Partial Summary Judgment on

Schlumberger’s Executive Exemption Defense [Doc. 368]. The “executive exemption” to the

FLSA’s overtime requirements pertains to “any employee employed in a ‘bona fide executive

capacity.’” 29 U.S.C. § 213(a). The Code of Federal Regulations states that:

The term “employee employed in a bona fide executive capacity” in

Section 13(a) of the act shall mean any employee,

(1) compensated on a salary basis at a rate of not less than $455 per week...,

exclusive of board, lodging, or other facilities;

(2) whose primary duty is management of the enterprise in which the

employee is employed or of a customarily recognized department or

subdivision thereof;

(3) who customarily and regularly directs the work of two or more

employees; and

(4) who has the authority to hire or fire other employees or whose

suggestions and recommendations as to the hiring, firing, advancement,

promotion or any other change of status of other employees are given

particular weight.

29 C.F.R. § 541.100(a). Plaintiffs contend that Schlumberger cannot establish each of the required

elements of the executive exemption for members of the MWD and DD classes in this case.

Schlumberger responds that its executive exemption defense cannot be decided as a matter of law

on summary judgment for all 288 opt-in plaintiffs. According to Schlumberger, some members

of the class served as “lead” MWDs and “lead” DDs and that these lead employees satisfy the

requirements for the executive exemption.

A. Schlumberger’s Burden on Summary Judgment

As a threshold matter, the parties dispute Schlumberger’s burden on summary judgment.

The executive exemption defense is an affirmative defense “on which the employer has the burden

of proof.” Corning Glassworks v. Brennan, 417 U.S. 188 (1974). Plaintiffs argue that

Schlumberger must demonstrate a genuine question of material fact with respect to each of the

288 opt-in plaintiffs. In other words, Schlumberger cannot discharge its summary judgment

burden by pointing to one or two members of a class of employees -- such as a single MWD or

DD -- and argue that there is a genuine question of material fact with respect to the entire class of

similarly situated employees. Instead, Plaintiffs argue, Schlumberger must demonstrate the

applicability of the exemption on a plaintiff-by-plaintiff basis and, if it fails to do so, Plaintiffs are

24 Schlumberger’s Opposition to Motion for Partial Summary Judgment on Executive Exemption at 9-13 [Doc. 413].

10

entitled to summary judgment on the exemption.”* Schlumberger, on the other hand, argues that

Plaintiffs have misstated its summary judgment burden. According to Schlumberger, Plaintiffs

are moving for summary judgment on a class wide basis and, therefore, its summary judgment

burden is satisfied if it can show that the exemption “applied to just one class member, or even if

there was just a dispute of fact as to one class member.””°

Plaintiffs correctly state Schlumberger’s burden of proof at trial but misstate

Schlumberger’s burden with respect to this motion. A summary judgment movant who does not

bear the burden of persuasion at trial can satisfy its initial burden on the motion by pointing to the

non-movant’s lack of evidence to support an essential element of its claim or defense. Celotex

Corp. v. Catlett, 477 U.S. 317, 325 (1986). A movant may also satisfy its initial burden by

producing evidence that negates an essential element of the non-movant’s claim or defense. Id.;

Lopez v. City of Dallas, Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (Sth Cir. 1991)

(quoting Little v. Liquid Air Corp., 939 F.2d 1293, 1299 (Sth Cir. 1991)). Plaintiffs rely on both

options to carry their initial burden, but they do so only with respect to a class of employees. For

example, in addressing the requirement for the exemption that an employee “customarily and

regularly direct the work of two of more other employees,” Plaintiffs’ motion addresses this

requirement with respect to MWDs and DDs in general.’ Plaintiffs do not, however, address this

element with respect to each of the individual opt-in plaintiffs or lead plaintiffs who fall within

these classes of employees. Unless Plaintiffs negate an essential element of the exemption with

respect to specific plaintiffs or point to the lack of evidence supporting an essential element of the

25Reply in Support of Plaintiffs’ Motion for Partial Summary Judgment on the Executive Exemption at 1-2 [Doc. 426].

26 Schlumberger’s Sur-Reply at 5-6 [Doc. 427-2]. Schlumberger requested leave to file its sur-reply in response to

arguments it contends were raised for the first time in Plaintiffs’ reply brief. In a separate order, the Court grants that

motion to file a sur-reply.

27 Plaintiffs’ Motion for Partial Summary Judgment on the Executive Exemption at 5-7 [Doc. 368].

11

exemption with respect to specific employees, Schlumberger can satisfy its summary judgment

burden by demonstrating a genuine question of material fact with respect to that class of

employees. That showing could consist of evidence that some members of a class of employees

may satisfy the essential elements of the exemption. The Court, accordingly, will now address

each of the elements required for the executive exemption under the FLSA.

B. Compensation Greater Than $455 Per Week

Plaintiffs’ motion does not address the $455 per week salary requirement of the executive

exemption. Schlumberger, accordingly, does not bear the burden showing a genuine question of

material fact with respect to this essential element of the exemption. Nevertheless, Schlumberger

identified at least four plaintiffs that it contends satisfy the salary requirement.”® Plaintiffs then,

for the first time, argue in their reply brief that one employee, Hani Anklis, “like all DDs and

MWDs,” was not paid on a salary basis.”? Given that this argument was not raised in the Motion

for Summary Judgment -- and, considering the evidence cited in Schlumberger’s Memorandum in

Opposition to the Motion for Summary Judgment -- the Court concludes that Plaintiffs are not

entitled to summary judgment on this essential element of the executive exemption.

C. Is a Cell or Crew a “Recognized Department or Subdivision” of Schlumberger?

The executive exemption applies to an employee who manages “a customarily recognized

department or subdivision” of the enterprise. 29 C.F.R. § 541.100(a). Plaintiffs argue that

Schlumberger’s directional drilling units cannot “be said to have continuity necessary to constitute

28 Schlumberger’s Opposition to Motion for Partial Summary Judgment on the Executive Exemption at 6 [Doc. 413].

po Reply in Support of Motion for Partial Summary Judgment on the Executive Exemption at 4-7 [Doc.

12

a ‘a customarily recognized department or subdivision.’””*° Plaintiffs also argue that “lead” DDs

and “lead” MWDs can change from project to project.*!

The requirement that the employee managed a “customarily recognized department or

subdivision” is intended to distinguish between a “collection of employees assigned from time to

time to a specific job or series of projects and a unit with permanent status and function.” 29 C.F.R.

§ 541.103(a). “A customarily recognized department or subdivision must have a permanent status

and a continuing function.” Jd. However, it “may move from place to place and the subordinate

personnel may change, as long as the ‘unit’ has a continuing function.” Villegas v. Dependable

Const. Servs., Inc., No. 4:07-cv-2165, 2008 WL 5137321 (S.D. Tex. Dec. 8, 2008). A qualifying

department or subdivision “need not be physically within the employer’s establishment.” 29 C.F.R.

§ 541.103.

Applying these principles here, Schlumberger has satisfied its burden with respect to this

requirement of the executive exemption with respect to the DD and MWD classes of employees.

Schlumberger contends that DDs and MWDs operate as part of a “cell or crew” that is a recognized

unit within the company and that “performs the same kind of functions at the well site and

frequently remains stable in composition...and follows the same customer’s rig from site to site for

months or even years.”?* Schlumberger cites deposition testimony that the composition of a cell

or crew may vary but always includes DDs and MWDs and varies from four to eight persons.*?

Schlumberger also points to deposition testimony showing that it attempts to “keep the same crew

(the same actual individuals) working with the same client on the same rigs whenever possible

Plaintiffs’ Motion for Partial Summary Judgment on the Executive Exemption at 8 [Doc.368-2].

32 conan Opposition to Motion for Partial Summary Judgment on the Executive Exemption at 9-10 [Doc.

Deposition of Evan Monckton, Exhibit 5 to Schlumberger’s Opposition at 32-35, 29-30 [Doc. 413-6].

13

because ‘continuity’ is in the best interest of the clients and [Schlumberger].’°4 Schlumberger also

cites cases where courts have found that similar types of field units satisfied this element of the

executive exemption. For example, in Carranza v. Red River Oilfield Sves., LLC, No. 15-3631,

2017 WL 387196 (S.D. Tex. 2017), the defendant employer provided inspection services to the oil

and gas industry by organizing its employees into independent field crews and the company

considered these crews to be a “permanent unit” of the company. The court concluded that these

field units satisfied the “recognized department or subdivision” requirement of the executive

exemption. 2017 WL 387196 at *3. Similarly, in Allen v. Coil Tubing Servs., LLC, 846 F.Supp. 2d

678, 706-10 (S.D. Tex. 2012), aff'd, 755 F.3d 279 (5th Cir. 2014), the defendant employer

“consistently and continuously relied on its field service units to perform customer projects which,

by definition...were rendered outside the company’s own facilities....” The court concluded that

these field units satisfied the “customarily recognized department or subdivision” requirement for

the executive exemption. /d.

Here, Schlumberger points to evidence that drilling units were recognized operating units

with some continuity and stability as far as personnel and structure. Considering the summary

judgment record and the relevant authorities, Schlumberger has satisfied its summary judgment

burden of showing a genuine question of material fact with respect to the “customarily recognized

department or subdivision” requirement for the executive exemption.

D. Was the Primary Duty of Lead MWDs and Lead DDs the Management of a

Recognized Department or Subdivision?

To invoke the executive exemption, Schlumberger must establish that a plaintiffs “primary

duty is management” of the drilling crew or cell. Schlumberger points to evidence that a cell or

34 Deposition of Evan Monckton, Exhibit 5 to Schlumberger’s Opposition to Motion for Partial Summary Judgment

on Executive Exemption at 169 [Doc. 413-6].

14

crew includes four to eight members (for offshore operations) or four to six members for land

operations, and that these crews include both MWDs or DDs.*° The senior DD serves as the “lead”

DD.*° Schlumberger’s summary judgment evidence indicates that the lead DD “has control over

the entire crew” and “monitors the work of the other team members.”?” With respect to lead

MWDs, Schlumberger points to job summaries showing that they are responsible “for the

management, training and development of second engineers at [the] well site.”>8 This evidence

satisfies Schlumberger’s summary judgment burden with respect to those plaintiffs whose

“primary duty” was to serve as a lead MWD or lead DD. This is a factual determination that will

have to be made on a plaintiff-by-plaintiff basis and is inappropriate for summary judgment.

E. Did Lead MWDs and Lead DDs Supervise Two or More Employees?

Schlumberger must also establish that lead MWDs and lead DDs supervised two or more

Schlumberger employees. 29 C.F.R. § 541.100(a). Schlumberger satisfies this burden with respect

to lead DDs. Schlumberger points to summary judgment evidence showing that lead DDs

managed an entire crew or cell consisting of anywhere from four to eight members. This satisfies

the two-employee threshold. Schlumberger, however, does not satisfy this requirement with

respect to MWDs, whether lead MWD or not. The summary judgment record appears to show

that MWDs supervise other MWDs but omits any evidence showing that a cell or crew typically

or customarily includes two or more subordinate MWDs. Accordingly, Schlumberger has not

created a genuine question of material fact as to whether lead MWDs “customarily and regularly

35 Schlumberger’s Opposition to Motion for Partial Summary Judgment on the Executive Exemption at 10-11 [Doc.

Citing the Deposition of Evan Monckton, Exhibit 5 to Schlumberger’s Opposition to the Motion for Partial

ey Judgment on the Executive Exemption at 164 [Doc. 413].

38 Id. at 11. (Citing Exhibit D to the Declaration of Uzma Babar [Doc. 47].

15

direct the work of two or more other employees.” 29 C.F.R. § 541.100(a). Plaintiffs are therefore

entitled to summary judgment to the extent that the executive exemption does not apply as a matter

of law to plaintiffs who fall within the MWD class of employees, whether lead MWD or not.

F. Role with Respect to Terminations, Advances and Other Personnel Decisions

The final essential element of the executive exemption requires proof that the employee

had “authority to hire or fire other employees or who suggestions and recommendations as to the

hiring, firing, advancement, promotion or any other change of status of other employees are given

particular weight.” 29 C.F.R. § 541.100(a). In this regard, Schlumberger points to summary

judgment evidence that lead DDs and lead MWDs have “the responsibility to mentor and provide

feedback on the performance of those working on [the] crew under them.’ According to

Schlumberger, feedback from a lead DD or MWD can include recommendations to remove a

member of the crew or cell, and that these recommendations are given significant weight.”? This

evidence is sufficient to create a genuine question of material fact with respect to this requirement

of the executive exemption.

G. Disposition of Motion

Considering all of the elements of executive exemption as a whole, Plaintiffs are entitled

to partial summary judgment on Schlumberger’s executive exemption with respect to those

plaintiffs who fall within the MWD employee class. They are entitled to summary judgment

because Schlumberger has not pointed to summary judgment evidence that creates a genuine

question of fact as to whether these employees customarily and regularly directed the work of two

39 Schlumberger’s Opposition to Motion for Partial Summary Judgment on Executive Exemption at 12 (citing

Deposition of Evan Monckton at 84 [Doc. 413-6]).

40 Iq. (Citing Deposition of Evan Monckton at 83-85 [Doc. 413-6]).

16

or more employees. Plaintiffs, however, are not entitled to summary judgment with respect to

employees who fall outside the MWD class of employees.*!

V.

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Partial Summary

Judgment on Affirmative Defenses [Doc. 343]. The Court further GRANTS Plaintiffs’ Motion

for Partial Summary Judgment Regarding Schlumberger’s Executive Exemption Affirmative

Defense [Doc. 368] IN PART and DENIES the motion IN PART. The Court will issue an order

reflecting this ruling. Hy

THUS DONE and signed in Lafayette, Louisiana on this day of January, 2020.

ROBERT R. SUMMERHAY

UNITED STATES DISTRICT J

41 Plaintiffs are not entitled to summary judgment on the DD class. A DD that never served (or only occasionally

served) as a “lead” DD would likely not qualify for the exemption. This determination, however, presents genuine

questions of material fact inappropriate for summary judgment on a class-wide basis.

17