Cencarik v. Audubon Field Solutions, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JORDAN CENCARIK, ET AL. CIVIL ACTION

VERSUS NO. 22-3566

AUDUBON FIELD SOLUTIONS, LLC SECTION “O”

ORDER AND REASONS

Before the Court in this Fair Labor Standards Act (“FLSA”) wage-and-hour

collective action is Defendant Audubon Field Solutions, LLC’s motion1 for summary

judgment dismissing the claims for unpaid overtime brought by Plaintiff Quenton

Byrd,2 an Audubon welding inspector paid a day rate with no overtime, individually

and for other Audubon inspectors similarly situated. For the reasons that follow,

Audubon’s motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This FLSA collective action concerns Audubon’s alleged failure to pay

overtime to inspectors like Byrd.3 Audubon provides “a variety of integrated field

services”—including pipeline-inspection services—to clients in the energy, power,

utility, and infrastructure markets.4 Among other services, Audubon supplies

inspectors to its clients to help them manage the construction of pipelines.5

1 ECF No. 87.

2 The original collective-action representative, Jordan Cencarik, was replaced by Quenton

Byrd. See ECF No. 66 at 1; ECF No. 64 at 1. No party has moved the Court to modify the case caption.

3 See generally ECF No. 66.

4 ECF No. 87-2 at ¶ I(1); ECF No. 100-1 at ¶ I(1).

5 ECF No. 87-4 at ¶ 3.

Audubon’s inspectors fall into two categories relevant here: (1) chief inspectors

and (2) non-chief inspectors. Chief inspectors are the field supervisors of the

inspection team: They plan and direct the work of up to 15–20 Audubon inspectors

on projects.6 Chief inspectors are also responsible for managing client expectations of

the inspection team.7 Audubon has not clearly identified in its summary-judgment

materials any chief inspector remaining in this case. Former opt-in Plaintiff Brandon

Slocum is the only chief inspector clearly identified in the summary-judgment

materials.8 But Slocum has since withdrawn his consent to participate in this case.9

Because Audubon has not pointed to any remaining Plaintiff who is or was a chief

inspector for Audubon, no further discussion of this category of inspectors is needed.

This second category of inspectors includes all inspectors who are not chief

inspectors—assistant chief inspectors, pipeline inspectors, welding inspectors, utility

inspectors, environmental inspectors, and ordinary inspectors. The record suggests

that the remaining Plaintiffs fall into this category.10 Many of the details about these

6 ECF No. 87-2 at ¶ III(11); ECF No. 100-1 at ¶ III(11).

7 ECF No. 87-2 at ¶ III(11); ECF No. 100-1 at ¶ III(11).

8 ECF No. 114-4 at 3.

9 ECF No. 165 at 1.

10 The parties have not clearly identified in their summary-judgment briefing the Plaintiffs

remaining in this case and the precise positions those Plaintiffs hold. But the Court’s review of the

record—including the withdrawals of consent filed since the motion for summary judgment was

submitted—indicates that the remaining Plaintiffs include twenty-four “inspectors” (Kevin Arnott,

Larry Bish, Robert Bishop, Christopher Brewer, Christopher Carr, Richard Clendenning, Marshall

Davis, Robert Donahue, Tanner Edwards, Aaron Hoover, Deobrah Howell, Neale Howell, Jeffrey

Hughart, Joshua King, Robert Lamb, Jeff Lawrence, John Molinaro, III, Joshua Nelson, Brittany

Swarmer, Daniel Ward, George Zuspan, Arley Edwards Weaver, Arley Weaver, III, and Marvin

Roberts), one assistant chief pipeline inspector (James Toothman), one pipeline inspector (Jordan

Cencarik), one welding inspector (Quenton Byrd), one environmental inspector (William Russel

Walker), one field inspector (Wendy Clark), and one utility inspector (Thomas Evans). See ECF No.

111-4 at 2–4; ECF No. 21-2; ECF No. 21-5; ECF No. 21-6; ECF No. 21-7; ECF No. 21-8.

non-chief inspectors’ duties are genuinely disputed.11 Resolving those disputes in

Plaintiffs’ favor, as the Court must in this summary-judgment posture, see Cory v.

Stewart, 103 F.4th 1067, 1073 n.8 (5th Cir. 2024) (per curiam) (quotation and

citations omitted), the non-chief inspectors’ duties are generally as follows. All non-

chief inspectors perform similar inspection work.12 Non-chief inspectors must follow

the specifications and guidelines set by Audubon or Audubon’s clients.13 Much of their

work involves making and reporting observations in accordance with standards and

procedures set by Audubon or Audubon’s clients.14 Non-chief inspectors cannot make

any significant decisions on Audubon’s behalf: They cannot, for example, hire or fire

any other Audubon workers.15 Non-chief inspectors do not perform any managerial

duties for Audubon or any tasks that could be described as administering Audubon’s

business operations.16 The summary-judgment record, viewed in Plaintiffs’ favor,

reflects that non-chief inspectors have only limited stop-work authority they may use

based on the specifications of Audubon’s clients. For example, the collective-action

representative, Byrd, explained that he once used stop-work authority on a project

for Marathon Petroleum “based off the Marathon Petroleum

procedures/specifications” requiring a job to be shut down for nearby lightning.17

11 ECF No. 100-1 at ¶¶ III(1)–III(13).

12 ECF No. 21-2 at ¶ 23; ECF No. 21-5 at ¶ 23.

13 ECF No. 21-2 at ¶ 24; ECF No. 21-5 at ¶ 24; ECF No. 21-6 at ¶ 15; ECF No. 21-7 at ¶ 15.

14 ECF No. 87-5 at 34:16–24 & 35:1–13; id. at 37:1–14; id. at 41:22–43:11.

15 ECF No. 21-2 at ¶ 25; ECF No. 21-5 at ¶ 25; ECF No. 21-6 at ¶¶ 16–17; ECF No. 21-7 at ¶¶

16–17.

16 ECF No. 21-2 at ¶ 26; ECF No. 21-5 at ¶ 26; ECF No. 21-6 at ¶ 18; ECF No. 21-7 at ¶ 18.

17 ECF No. 87-5 at 47:17–48:14.

Audubon employs its inspectors to work on projects for clients in various

states.18 The projects can last between 3 and 9 months.19 For example, the collective-

action representative, Byrd, worked for Audubon as an inspector for Marathon

Petroleum in Ohio on various projects since 2020.20 Audubon says its inspectors

“typically earn total annualized compensation in excess of $107,432.”21 That figure

apparently includes the auto allowance and cash per diem each inspector received.22

Many of the details about the inspectors’ pay are genuinely disputed. Audubon

says that its inspectors are paid “a guaranteed minimum weekly salary of four days’

worth of pay regardless of the number of days or hours worked by the inspector in

each workweek.”23 Audubon explains that “[t]his is true so long as the inspector works

any time during any day of the workweek unless the inspector misses a full day of

work for personal reasons, performs no work the entire work week, or works less than

a full week during the beginning or ending weeks of a job assignment.”24 If “an

inspector is absent from work for personal reasons, full day deductions are made from

the four-day weekly guarantee for each full day absence.”25 If “an inspector works

only two days during a workweek because of operational needs of Audubon’s clients,”

18 ECF No. 87-4 at ¶ 7. The parties dispute whether Audubon employs its inspectors “on a

temporary basis.” Compare, e.g., id. (describing the inspectors’ employment as “temporary”) with ECF

No. 21-2 at ¶ 3 (Jordan Cencarik attesting to “have worked for Audubon since January 2021”); ECF

No. 21-5 at ¶ 3 (William Russel Walker attesting to “have worked for Audubon since February 8,

2021”); ECF No. 21-6 at ¶ 3 (Wendy Clark attesting to “have worked for Audubon since March 2021”);

ECF No. 21-7 at ¶ 3 (James Toothman attesting to “have worked for Audubon since February of 2019”).

19 ECF No. 87-4 at ¶ 7.

20 ECF No. 87-2 at ¶ II(1); ECF No. 100-1 at ¶ II(1).

21 ECF No. 87-4 at ¶ 36.

22 ECF No. 87-8 (total compensation chart including “Auto Pay” and “PD Pay”).

23 ECF No. 87-4 at ¶ 9.

24 Id. at ¶ 10.

25 Id. at ¶ 11.

however, “Audubon pays the inspector the minimum four-day weekly guarantee.”26

Plaintiffs, for their part, dispute that Audubon paid them a guaranteed weekly

salary:27 They submit that Audubon failed to pay them a guaranteed minimum

weekly salary 31 times across 2,026 workweeks during a three-year period.28

“Depending on the project,” an Audubon inspector may earn more than their

guaranteed weekly minimum salary if the inspector works hours beyond a “normal”

40-hour work week.29 By way of example, here is how Audubon describes the

compensation structure for its inspectors in some of its offer letters:

This is a Full-Time, Exempt position paid at a Daily rate of $340.00, to

be paid weekly in accordance with company payroll guidelines. While

working on this project, you will be guaranteed 4 days. Your work

schedule may be subject to change depending on project work. You will

be classified as an S2 Exempt Employee, which means that in addition

to your guaranteed weekly salary, for those irregular situations where

you are needed to work more than ten (10) hours a day on billable

projects you will be eligible to earn a bonus of $ 34.00 per hour for all

hours worked in excess of ten (10) hours in a day (“extra hours”). You

26 Id.

27 ECF No. 100-1 at ¶¶II(3)–(5).

28 ECF No. 100-3 at ¶ 10. Each side objects to the other’s Federal Rule of Evidence 1006

summary. See ECF No. 100 at 6 (Plaintiffs’ objection to Audubon’s summary); ECF No. 111 at 2–3

(Audubon’s objection to Plaintiff’s summary). The Court overrules both objections for purposes of the

Court’s consideration of Audubon’s motion for summary judgment only. “At the summary judgment

stage, materials cited to support or dispute a fact need only be capable of being ‘presented in a form

that would be admissible in evidence.’” LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530,

534 (5th Cir. 2016) (quoting FED. R. CIV. P. 56(c)(2)). Rule 1006 allows summaries to prove the

content of “voluminous admissible writings, recordings, or photographs that cannot be conveniently

examined in court.” FED. R. EVID. 1006(a). “The proponent must make the underlying originals or

duplicates available for examination or copying, or both, by other parties at a reasonable time and

place.” FED. R. EVID. 1006(b). “The district court has broad discretion to admit these sorts of

summary charts.” United States v. Mazkouri, 945 F.3d 293, 300 (5th Cir. 2019) (citing Irons v. Aircraft

Serv. Int’l, Inc., 392 F. App’x 305, 314 (5th Cir. 2010) (per curiam)). Exercising that “broad discretion,”

id., (citation omitted) here, the Court finds that neither side has shown that the other’s Rule 1006

summary is not capable of being presented in an admissible form at trial.

29 ECF No. 87-2 at ¶ 6; ECF No. 100-1 at ¶ II(6).

must receive written client approval before working the “extra hours” in

excess of ten (10) hours per day.30

Audubon explains that it itemizes its inspectors’ pay based on a “Daily rate” so

that its inspectors “can calculate their cost of living” while working on a project.31

Although some of Audubon’s offer letters do not use the word “salary” or state

explicitly that the “weekly guarantee” is for 40 hours of work, Audubon interprets the

four-day guarantee to be a minimum weekly salary for at least 40 hours worked.32

Claiming Audubon’s pay practices for inspectors violate the FLSA, Byrd

brought this collective action against Audubon, individually and for similarly

situated Audubon inspectors who were paid a day rate with no overtime.33 Byrd

reasons that he and other similarly situated Audubon inspectors “are non-exempt”

and thus that they should have received time-and-a-half overtime pay for the hours

they worked over 40 hours each work week.34 Byrd alleges Audubon willfully violated

the FLSA by failing to pay overtime to him and other similarly situated inspectors.35

Now, Audubon moves for summary judgment, raising three principal

arguments.36 First, Audubon contends Plaintiffs’ FLSA claims fail because two of the

regulations underpinning those claims—the “salary basis” test and the “reasonable

relationship” test—are “invalid.”37 Second, Audubon contends that all of Plaintiffs’

30 ECF No. 21-3 at 3. Other offer letters quantify salary on a weekly basis rather than on the

basis of a “Daily rate.” See ECF No. 87-7 at 78 (“While working on this project you will be paid

guaranteed weekly salary of $1240.00 (four days).”). The compensation structure for inspectors is

otherwise described in essentially the same way. Compare id. with ECF No. 21-3 at 3.

31 ECF No. 87-6 at 14:11–19.

32 Id. at 13:1–22.

33 See generally ECF No. 66.

34 See, e.g., id. at ¶ 70; id. at ¶¶ 89–94.

35 Id. at ¶ 89–94.

36 ECF No. 87.

37 Id. at ¶ II.

FLSA claims fail because Plaintiffs are exempt from the overtime requirement.38

Finally, Audubon contends that the statute of limitations is two years—rather than

three—because Plaintiffs cannot prove that Audubon acted willfully.39 Plaintiffs

oppose.40 Audubon replied,41 Plaintiffs filed a surreply,42 and Audubon responded to

Plaintiffs’ surreply.43 At the Court’s direction,44 each side filed a supplemental brief

addressing the validity of the “salary basis” test and the “reasonable relationship”

test in light of Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).45

II. LEGAL STANDARD

The Court “shall grant summary judgment if the movant shows that there is

no genuine dispute of material fact and the movant is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56(a). “A dispute is genuine if ‘the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’” Perry v. VHS

San Antonio Partners, L.L.C., 990 F.3d 918, 926 (5th Cir. 2021) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A fact is material if it ‘might affect the

outcome of the suit.’” Id. (quoting Anderson, 477 U.S. at 248).

The movant has the initial burden to show that there is no genuine dispute of

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the nonmovant

will bear the burden of proof at trial, as Plaintiffs will on their claim that Audubon

38 Id. at ¶ III–IV.

39 Id. at ¶ VI.

40 ECF No. 100.

41 ECF No. 111.

42 ECF No. 122.

43 ECF No. 123.

44 ECF No. 164.

45 ECF No. 173 (Audubon’s supplemental brief); ECF No. 174 (Plaintiffs’ supplemental brief).

willfully violated the FLSA,46 the movant meets its initial burden by pointing to “an

absence of evidence to support” the nonmovant’s claim. Id. at 325. The movant “need

not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (first citing Celotex, 477 U.S. at

323; and then citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885–86 (1990)). Nor

must the movant “set forth evidence when the nonmovant bears the burden of

persuasion at trial.” Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 997 (5th Cir.

2019). If the movant “fails to meet this initial burden,” the motion must be denied,

regardless of the nonmovant’s response.” Little, 37 F.3d at 1075.

If the movant meets its initial summary-judgment burden, however, the

burden shifts to the nonmovant to “identify specific evidence in the summary

judgment record demonstrating that there is a dispute of material fact concerning the

essential elements of its case for which it will bear the burden of proof at trial.” In re

Taxotere (Docetaxel) Prod. Liab. Litig., 994 F.3d 704, 708 (5th Cir. 2021) (first citing

FED. R. CIV. P. 56(a) & (e); and then citing Celotex, 477 U.S. at 324). “Speculative

theories cannot defeat a motion for summary judgment.” Guillot ex rel. T.A.G. v.

Russell, 59 F.4th 743, 750 (5th Cir. 2023) (citing Little, 37 F.3d at 1075). Nor may a

nonmovant “defeat summary judgment with ‘conclus[ory] allegations, unsupported

assertions, or presentation of only a scintilla of evidence.’” Flowers v. Wal-Mart Inc.,

79 F.4th 449, 452 (5th Cir. 2023) (quoting McFaul v. Valenzuela, 684 F.3d 564, 571

(5th Cir. 2012)). “Instead, the nonmovant must go beyond the pleadings and designate

46 See Steele v. Leasing Enters., Ltd., 826 F.3d 237, 248 (5th Cir. 2016) (“Plaintiffs have the

burden of demonstrating willfulness.” (citations omitted)).

specific facts that prove that a genuine [dispute] of material fact exists.” Id. (citing

Little, 37 F.3d at 1075). If the nonmovant “fails to meet this burden, the motion for

summary judgment must be granted.” Little, 37 F.3d at 1076 (emphasis added).

If the movant will “carr[y] the burden of proof at trial,” as Audubon will on its

exemption affirmative defense under the FLSA,47 the movant “must establish beyond

peradventure all of the essential elements of the . . . defense.” Cunningham v. Circle

& Crane Servs., L.L.C., 64 F.4th 597, 600 (5th Cir. 2023) (quotation omitted). “Only

if the movant succeeds must the nonmovant designate specific facts showing that

there is a genuine issue for trial.” Id. (quotation omitted).

In reviewing the summary-judgment record, the Court draws all reasonable

inferences in favor of the nonmovant. See Vote.Org v. Callanen, 89 F.4th 459, 469 (5th

Cir. 2023) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150

(2000)). And the Court “resolve[s] factual controversies in favor of the nonmoving

party, but only where there is an actual controversy, that is, when both parties have

submitted evidence of contradictory facts.” Little, 37 F.3d at 1075.

IV. ANALYSIS

Audubon moves for summary judgment on three principal grounds. First,

Audubon contends that two of the tests underpinning Plaintiffs’ FLSA claims—the

“salary basis” test and the “reasonable relationship” test—are invalid. Second,

Audubon contends that Plaintiffs are exempt from the FLSA’s overtime

47 See Novick v. Shipcom Wireless, Inc., 946 F.3d 735, 738 (5th Cir. 2020) (“In a FLSA suit for

unpaid overtime, the defendant employer bears the burden of proof to establish that an employee falls

under an exemption.” (citing Samson v. Apollo Res., Inc., 242 F.3d 629, 636 (5th Cir. 2001)).

requirements. Finally, Audubon contends that the limitations period on Plaintiffs’

claims for unpaid overtime is two years, not three, because Plaintiffs cannot prove

that Audubon willfully violated the FLSA. The Court takes each argument in turn.

A. The “Salary Basis” and “Reasonable Relationship” Tests

First, Audubon contends that the Court should grant summary judgment

dismissing Plaintiffs’ FLSA unpaid-overtime claims because, in Audubon’s view, two

of the tests underpinning those claims—the “salary basis” test and the “reasonable

relationship” test—are “invalid.”48 The Court lays the legal framework for the two

tests Audubon challenges before considering the merits of Audubon’s argument.

“Under the FLSA, an employer must pay overtime compensation to its non-

exempt employees who work more than forty hours a week.” Hobbs v. EVO Inc., 7

F.4th 241, 248 (5th Cir. 2021) (quotation omitted); see 29 U.S.C. § 207(a)(1). But the

FLSA “contains a series of exemptions that exclude certain types of employees” from

that general rule of overtime. Mayfield v. United States Dep’t of Lab., 117 F.4th 611,

614 (5th Cir. 2024). As relevant to Audubon’s motion for summary judgment, one

exemption covers “any employee employed in a bona fide executive, administrative,

or professional capacity.” 29 U.S.C. § 213(a)(1). “That exemption is known as the ‘EAP

Exemption’ or the ‘White Collar Exemption,’ and it gives the Secretary of the

Department of Labor the power to ‘define[ ] and delimit[ ]’ the ‘terms’ of the

exemption.” Mayfield, 117 F.4th at 614 (quoting 29 U.S.C. § 213(a)(1)). If an employee

48 ECF No. 87-1 at 6–15.

is a bona fide executive exempt under that EAP Exemption, she “has no right to

overtime wages.” Helix Energy Sols. Grp., Inc. v. Hewitt, 598 U.S. 39, 44 (2023).

Exercising that power to “define[ ] and delimit[ ]” the “terms” of the EAP

Exemption, 29 U.S.C. § 213(a)(1), the Secretary of the Department of Labor has

promulgated a regulation explaining that an employee is subject to the EAP

Exemption if (among other things) the employee is paid on a “salary basis.” 29 C.F.R.

§ 541.200(a)(1). An employer may establish that an employee is paid on a “salary

basis” in one of two ways under the regulations. See Helix, 598 U.S. at 46–47; see also

Gentry v. Hamilton–Ryker IT Sols., L.L.C., 102 F.4th 712, 718–19 (5th Cir. 2024).

The first way to satisfy the “salary basis” test under the regulations is through

29 C.F.R. §§ 541.602(a) and 541.604(a) (“§ 602(a)” and “§ 604(a)”). See Gentry, 102

F.4th at 718–19; see also Helix, 598 U.S. at 46–47. Section 602(a) ”applies solely to

employees paid by the week (or longer); it is not met when an employer pays an

employee by the day[.]” Helix, 598 U.S. at 50. In relevant part, § 602(a) states:

(a) General rule. An employee will be considered to be paid on a “salary

basis” within the meaning of this part if the employee regularly receives

each pay period on a weekly, or less frequent basis, a predetermined

amount constituting all or part of the employee’s compensation, which

amount is not subject to reduction because of variations in the quality

or quantity of the work performed.

(1) Subject to the exceptions provided in paragraph (b) of this

section, an exempt employee must receive the full salary for any

week in which the employee performs any work without regard to

the number of days or hours worked. Exempt employees need not

be paid for any workweek in which they perform no work.

29 C.F.R. § 541.602(a).

“Section 604(a) supplements § 602(a) and explains: ‘[a]n employer may provide

an exempt employee with additional compensation without losing the exemption or

violating the salary basis requirement, if the employment arrangement also includes

a guarantee of at least the minimum weekly-required amount paid on a salary basis.’”

Gentry, 102 F.4th at 719 (quoting 29 C.F.R. § 541.604(a)). As relevant here, § 604(a)

identifies “additional compensation based on hours worked for work beyond the

normal workweek” as one example of a permissible form of additional compensation.

29 C.F.R. § 541.604(a); see also Gentry, 102 F.4th at 719. “Together, sections 602(a)

and 604(a) allow employers to pay a true weekly salary, a salary paid on a weekly or

less frequent basis, plus additional compensation in the form of commissions, profit-

sharing, or hourly wages for hours worked beyond the normal workweek.” Gentry,

102 F.4th at 719. In short, “Section 602(a) provides a stable and predictable source of

income[,] while § 604(a) allows performance incentives for work beyond the regular

workweek.” Id. (citing 69 Fed. Reg. 22122, 22183 (Apr. 23, 2004)).

The second way to satisfy the “salary basis” test under the regulations is

through the alternative route provided by 29 C.F.R. § 541.604(b) (“§ 604(b)”). Helix,

598 U.S. at 47. Section 604(b) “concerns situations when employees paid on a more

frequent basis—such as by the hour, shift, or day—are still considered to be paid on

a ‘salary basis’[.]” Gentry, 102 F.4th at 719. In relevant part, § 604(b) states:

An exempt employee’s earnings may be computed on an hourly, a daily

or a shift basis, without losing the exemption or violating the salary

basis requirement, if the employment arrangement also includes a

guarantee of at least the minimum weekly required amount paid on a

salary basis regardless of the number of hours, days or shifts worked,

and a reasonable relationship exists between the guaranteed amount

and the amount actually earned. The reasonable relationship test will

be met if the weekly guarantee is roughly equivalent to the employee's

usual earnings at the assigned hourly, daily or shift rate for the

employee's normal scheduled workweek.

29 C.F.R. § 541.604(b) (emphasis added).

“The regulations explain that a salary is ‘roughly equivalent’ to an employee’s

weekly earnings when the ratio of usual earnings to salary is 1.5 to 1.” Gentry, 102

F.4th at 720 (quoting 29 C.F.R. § 541.604(b)).

Having laid out the legal framework, the Court now turns to Audubon’s

principal argument: Audubon contends that the “salary basis” test under § 602(a) and

the “reasonable relationship” test under § 604(b) are “invalid” because both tests

exceed the Secretary of the Department of Labor’s statutory authority.49 Audubon

reasons that both tests exceed the authority Congress granted the Secretary of the

Department of Labor under 29 U.S.C. § 213(a)(1) because both tests “exclude from

exempt status employees who clearly perform” exempt duties.50

The Court evaluates Audubon’s challenge under Loper Bright’s analytical

framework. See Mayfield, 117 F.4th at 617–19. Loper Bright “clarified ‘the

unremarkable, yet elemental proposition reflected in judicial practice dating back to

Marbury’ that ‘courts decide legal questions by applying their own judgment,’ even in

agency cases” like this one. Id. at 617 (quoting Loper Bright, 603 U.S. at 391–92).

Where “Congress has clearly delegated discretionary authority to an agency,” as it

has done here through 29 U.S.C. § 213(a)(1), the Court “discharge[s] [its] duty by

49 ECF No. 87 at 2.

50 Id.

‘independently interpret[ing] the statute and effectuat[ing] the will of Congress

subject to constitutional limits.’” Id. (quoting Loper Bright, 603 U.S. at 395). “This

means that [the Court] must ‘independently identify and respect [constitutional]

delegations of authority, police the outer boundaries of those delegations, and ensure

that agencies exercise their discretion consistent with the [Administrative Procedure

Act].’” Id. (quoting Loper Bright, 603 U.S. at 404). “Doing so requires using ‘all

relevant interpretive tools’ to determine the ‘best’ reading of a statute; a merely

‘permissible’ reading is not enough.” Id. (quoting Loper Bright, 603 U.S. at 400).

Here, 29 U.S.C. § 213(a)(1) stands as “an uncontroverted, explicit delegation

of authority” to the Secretary of the Department of Labor. Id. (citing Loper Bright,

603 U.S. at 404). That means “the question is whether” the “salary basis” and

“reasonable relationship” tests are “within the outer boundaries of that delegation.”

Id. (citing Loper Bright, 603 U.S. at 404). The text of Section 213(a)(1)’s delegation

explicitly grants the Secretary of the Department of Labor the authority to “define[ ]

and delimit[ ]” the “terms” of the EAP Exemption. 29 U.S.C. § 213(a)(1). “‘Define’

means to ‘set forth or explain what a word (or expression) means.’” Mayfield, 117

F.4th at 618 (quoting Define, OXFORD ENGLISH DICTIONARY (3d ed. 2015) (citing

Define, BLACK’S LAW DICTIONARY (12th ed. 2024)). “‘Delimit’ means to ‘mark or

determine (a limit or boundary)’ of something.” Id. (quoting Delimit, OXFORD ENGLISH

DICTIONARY (3d ed. 2015) (citing Delimit, BLACK’S LAW DICTIONARY (12th ed. 2024)).

The “salary basis” and “reasonable relationship” tests come within the

Secretary of the Department of Labor’s broad, statutorily conferred authority to

“define[ ] and delimit[ ]” the “terms” of the EAP Exemption. 29 U.S.C. § 213(a)(1). By

promulgating the regulations underpinning the “salary basis” test and the

“reasonable relationship” test, the Secretary of the Department of Labor “defines, in

part what it means to work in an executive, administrative, or professional

capacity”—namely, the way that an employee is paid. Mayfield, 117 F.4th at 618;

accord, e.g., Pickens v. Hamilton–Ryker IT Sols., LLC, No. 24-5407, — F.4th —, 2025

WL 972526, at *9 (6th Cir. Feb. 5, 2025) (Sutton, C.J.) (holding that the regulations

underpinning the “salary basis” and “reasonable relationship” tests “come within the

Secretary’s power to define, as they help to clarify whether a person works in a bona

fide executive, administrative, or professional capacity” (quotation omitted)). The

regulations underpinning the “salary basis” (§ 602(a)) and “reasonable relationship”

(§ 604(b)) tests also come within the Secretary’s power to “delimit[ ]” the “terms” of

the EAP Exemption: Those regulations “set[ ] a limit on what is otherwise defined by

the text of the [EAP] Exemption.” Mayfield, 117 F.4th at 618. Indeed, as Chief Judge

Sutton persuasively explained in a recent, published opinion rejecting essentially the

the same arguments Audubon raises here, the challenged regulations permissibly

delimit because they “establish a workable and reasonable method for applying the

[EAP] [E]xemption in practice.” Pickens, 2025 WL 972526, at *10.

Audubon’s principal counterargument does not persuade the Court that either

challenged test exceeds the authority Congress broadly delegated to the Secretary of

the Department of Labor. Audubon contends that the “salary basis” and “reasonable

relationship” tests erroneously “emphasiz[e] salary alone as a basis to disqualify

employees engaged in exempt” duties.51 But this is substantively the same argument

a Fifth Circuit panel recently and unanimously rejected in Mayfield—that “the power

to ‘define and delimit’ the terms of the [EAP] Exemption is only the power to further

specify and enumerate the types of duties that qualify an employee for the

Exemption.” 117 F.4th at 618; cf. Pickens, 2025 WL 972526, at *11 (rejecting

argument that the “salary basis” test is invalid because it “exclude[s] some employees

who undisputedly perform exempt executive, administrative, or professional job

duties” (quotation omitted)). As Mayfield explains, “the terms in the EAP Exemption,

particularly ‘executive,’ connote a particular status or level for which salary may be

a reasonable proxy.” 117 F.4th at 618. (footnote omitted). It therefore follows that

“[u]sing salary as a proxy for EAP status is a permissible choice because . . . the link

between the job duties identified and salary is strong.” Id. at 619.52

Accordingly, Audubon fails to show that the Secretary exceeded “the

boundaries of the delegated authority” in promulgating the regulations underpinning

the “salary basis” and “reasonable relationship” tests. Loper Bright, 603 U.S. at 395

(quotation omitted). Audubon therefore fails to show that either test is “invalid.” So

the Court denies Audubon’s motion for summary judgment on this ground.

51 ECF No. 87-1 at 8; see also ECF No. 173 at 4–7.

52 Audubon has not shown that either the “salary basis” test or the “reasonable relationship”

test (1) add “[a] characteristic with no rational relationship to the text and structure of” 29 U.S.C.

§ 213(a)(1); or (2) use a “proxy characteristic [that] frequently yields different results than the

characteristic Congress initially chose” in 29 U.S.C. § 213(a)(1). Mayfield, 117 F.4th at 619.

B. EAP Exemption

Next, Audubon contends that the Court should grant summary judgment

dismissing Plaintiffs’ claims for unpaid overtime because Plaintiffs are exempt from

overtime under the EAP Exemption. See 29 U.S.C. § 213(a)(1). “Whether an employee

is within an exemption is a question of law, but how an employee spends his working

time is a question of fact.” Smith v. Ochsner Health Sys., 956 F.3d 681, 684 (5th Cir.

2020) (citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)).

“Inferences about the nature of an employee’s work are also treated as questions of

fact.” Id. (citing Dalheim v. KDFW-TV, 918 F.2d 1220, 1226 (5th Cir. 1990)).

In its analysis, the Court gives the EAP Exemption “a ‘fair reading,’ not a

narrow one.” Hobbs, 7 F.4th at 248 (quoting Encino Motorcars, LLC v. Navarro, 584

U.S. 79, 89 (2018)). Like all FLSA overtime exemptions, the EAP Exemption is an

affirmative defense the employer has the burden to prove at trial. See Novick, 946

F.3d at 738. To win summary judgment on the EAP Exemption, then, Audubon “must

establish beyond peradventure all of the essential elements” of the EAP Exemption.

Cunningham, 64 F.4th at 600 (quotation omitted). Audubon has not done so.

The EAP Exemption applies to “any employee employed in a bona fide

executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). “Generally,

an employee is a ‘bona fide executive’ if the employee meets three criteria.” Venable

v. Smith Int’l, Inc., 117 F.4th 295, 299 (5th Cir. 2024). The first is the “salary basis”

test. Hewitt, 598 U.S. at 44–45. “The basic idea” of the “salary basis” test “is that an

employee can be a bona fide executive only if he receives a predetermined fixed

salary—one that does not vary with the precise amount of time he works.” Id. at 45

(quotation omitted). The second criterion is the “salary level” test; it requires that an

employee’s “preset salary exceeds a specified amount.” Id. The third criterion is the

“duties test, which focuses on the nature of the employee’s job responsibilities.” Id.

(quotation omitted). “When all three criteria are met, the employee (because

considered a bona fide executive) is excluded from the FLSA’s protections.” Id.

The Secretary of the Department of Labor “has implemented the bona fide

executive standard through two separate and slightly different rules, one applying to

lower-income employees and the other to higher-income ones.” Id. The parties do not

appear to dispute that the latter rule for higher-income employees—known as the

“Highly Compensated Employee rule” or the “HCE rule” for short—governs the

Court’s analysis. The HCE rule “amends only the duties test, while restating the

other two.” Id. The duties test for HCEs “is more relaxed.” Venable v. Smith Int’l, Inc.,

117 F.4th 295, 299 (5th Cir. 2024) (citing Hewitt, 598 U.S. at 45). To satisfy the duties

test, the HCE must “customarily and regularly perform[ ] any one or more of the

exempt duties or responsibilities of an executive, administrative, or professional

employee[.]” 29 C.F.R. § 541.601(a) (emphasis added). “The phrase ‘customarily and

regularly’ means a frequency that must be greater than occasional but which, of

course may be less than constant. Tasks or work performed ‘customarily and

regularly’ includes work normally and recurrently performed every workweek; it does

not include isolated or one-time tasks.” Id. § 541.701. Three duties are relevant here.

The first relevant duty is “the performance of office or non-manual work

directly related to the management of general business operations of the employer or

the employer’s customers[.]” Id. § 541.200(a)(2). To fall within this duty, “an employee

must perform work directly related to assisting with the running or servicing of the

business, as distinguished, for example, from working on a manufacturing production

line or selling a product in retail or service establishment.” Id. § 541.201(a). “Work

directly related to the management or general business operations includes, but is

not limited to, work in functional areas such as tax; finance; accounting; budgeting;

auditing; insurance; quality control; purchasing; procurement; advertising;

marketing; research; safety and health; personnel management; human resources;

employee benefits; labor relations; public relations; government relations; computer

network, internet and database administration; legal and regulatory compliance; and

similar activities.” Id. § 541.201(b). One example of an exempt duty under this

provision is “acting as advisers or consultants to [the employee’s] employer’s clients

or customers (as tax experts or financial consultants, for example)[.]” Id. § 541.201(c).

As relevant to this first duty, the Department of Labor has clarified that some

inspection work will not typically meet the duties requirement. For example,

“[o]rdinary inspection work generally does not meet the duties requirement[.]” Id.

§ 541.203(g). That is because ordinary inspectors “rely on techniques and skills

acquired by special training or experience”; “[t]hey have some leeway in the

performance of their work[,] but only within closely prescribed limits.” Id. Even

inspectors working in the areas of “safety, building or construction, [and] health or

sanitation” “generally do not meet the duties requirements . . . because their work

typically does not involve work directly related to the management or general

business operations of the employer.” Id. § 541.203(j). The work of such inspectors

“involves the use of skills and technical abilities in gathering factual information,

applying known standards or prescribed procedures, determining which procedure to

follow, or determining whether prescribed standards or criteria are met.” Id.

Courts applying those clarifying regulations generally have declined to hold,

on summary judgment, that inspectors indisputably perform “office or non-manual

work directly related to the management of general business operations of the

employer or the employer’s customers[.]” Id. § 541.200(a)(2); see, e.g., Sloane v. Gulf

Interstate Field Servs., Inc., No. 4:16-CV-1571, 2018 WL 1138411, at *2–4 (M.D. Pa.

Feb. 26, 2018) (finding a genuine dispute as to whether a welding inspector performed

an exempt duty); Nigg v. U.S. Postal Serv., 829 F. Supp. 2d 889, 908 (C.D. Cal. 2011)

(finding a genuine dispute as to whether inspectors met the duties test), aff’d, 544 F.

App’x 766 (9th Cir. 2013); Zubair v. EnTech Eng’g P.C., 808 F. Supp. 2d 592, 600

(S.D.N.Y. 2011) (holding “no reasonable juror could find” that a chief inspector’s

duties—including “testing concrete and paint samples and recommending project

improvements”—“are the kind associated with an employee who performs office or

non-manual work required under the” duties test); Zuber v. APC Natchiz, Inc., 144 F.

App’x 657, 658 (9th Cir. 2005) (Mem.) (reversing summary judgment for an employer

because an inspector’s job duties did not come within the EAP Exemption).

The second and third relevant duties are more straightforward. They are

“direct[ing] the work of two or more other employees,” id. § 541.100(a)(3), and

“ha[ving] the authority to hire or fire other employees,” id. § 541.100(a)(4).

Viewing the facts and drawing all reasonable inferences in Plaintiffs’ favor, see

Reeves, 530 U.S. at 150, the Court denies Audubon’s motion for summary judgment

on Audubon’s affirmative defense under the EAP Exemption because Audubon has

not carried its burden to “establish beyond peradventure” that the HCE rule’s duties

test is met on the record and briefing before the Court. Cunningham, 64 F.4th at 600

(quotation omitted). Specifically, Audubon has not shown the absence of a genuine

dispute as to whether the remaining Plaintiffs—none of whom Audubon clearly

identifies in its summary-judgment materials as a chief inspector—“customarily and

regularly perform[ ] any one or more of the exempt duties or responsibilities of an

executive, administrative, or professional employee[.]” 29 C.F.R. § 541.601(a).

To try to satisfy the HCE rule’s duties test, Audubon chiefly relies on the three

exempt duties the Court outlined above.53 But Audubon fails to carry its summary-

judgment burden to show that there is no genuine dispute that the remaining

Plaintiffs “customarily and regularly perform[ ] any one or more” of those duties. Id.

As for the first exempt duty on which Audubon relies, Audubon has not met its

summary-judgment burden to show that there is no genuine dispute that the

remaining Plaintiffs “customarily and regularly,” id., perform “office or non-manual

work directly related to the management or general business operations of” Audubon

53 ECF No. 87-1 at 22–23.

or Audubon’s “customers,” id. § 541.200(a)(2). “[D]isregard[ing] all evidence favorable

to [Audubon] that the [finder of fact] is not required to believe,” Heinsohn v. Carabin

& Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016) (quotation omitted), the Court finds

that the summary-judgment record, viewed in Plaintiffs’ favor, reflects that (1)

Plaintiffs’ inspection work involves making and reporting observations in accordance

with standards and procedures set by Audubon or its clients;54 (2) Plaintiffs must

follow the specifications and guidelines set by Audubon or Audubon’s clients;55 (3)

Plaintiffs do not perform any managerial duties for Audubon or any tasks that could

be described as administering Audubon’s business operations;56 and (4) Plaintiffs

cannot make any significant decisions on Audubon’s or Audubon’s clients’ behalf.57 A

reasonable fact finder reviewing this summary-judgment record in that light could

conclude that Plaintiffs performed “[o]rdinary inspection work” that “generally does

not meet the duties requirement,” 29 C.F.R. § 541.203(g), because such work merely

“involve[d] the use of skills and technical abilities in . . . applying known standards

or prescribed procedures, determining which procedure to follow, or determining

whether prescribed standards or criteria are met,” id. § 541.203(j). The Court

therefore finds a genuine dispute on the material fact of whether the remaining

Plaintiffs “customarily and regularly,” id. § 541.601(a), performed inspection work

54 ECF No. 87-5 at 34:16–24 & 35:1–13; id. at 37:1–14; id. at 41:22–43:11.

55 ECF No. 21-2 at ¶ 24; ECF No. 21-5 at ¶ 24; ECF No. 21-6 at ¶ 15; ECF No. 21-7 at ¶ 15.

56 ECF No. 21-2 at ¶ 26; ECF No. 21-5 at ¶ 26; ECF No. 21-6 at ¶ 18; ECF No. 21-7 at ¶ 18.

57 ECF No. 21-2 at ¶ 25; ECF No. 21-5 at ¶ 25; ECF No. 21-6 at ¶¶ 16–17; ECF No. 21-7 at ¶¶

16–17.

“directly related to the management or general business operations of” Audubon or

Audubon’s clients such that the HCE rule’s duties test is met, id. § 541.200(a)(2).

As for the second exempt duty, Audubon has not met its burden to show that

there is no genuine dispute that the remaining Plaintiffs “customarily and regularly,”

id. § 541.601(a), “direct the work of two or more other employees,” id. § 541.100(a)(3).

For this exempt duty, Audubon’s argument and evidence are limited to chief

inspectors.58 As noted above, however, Audubon has not clearly identified in its

summary-judgment materials any chief inspector who is still a Plaintiff in this case.

As for the third exempt duty, Audubon has not met its summary-judgment

burden to show that there is no genuine dispute that the remaining Plaintiffs “ha[ve]

the authority to hire or fire other employees.” Id. § 541.100(a)(4). On the contrary,

the summary-judgment record, viewed in Plaintiffs’ favor, reflects that the remaining

Plaintiffs lack the authority to hire or fire other Audubon inspectors.59

Audubon’s counterarguments do not persuade the Court that Audubon has

carried its burden to show that there is no genuine dispute that the HCE rule’s duties

test is met. Audubon posits that Plaintiffs performed at least one exempt duty

because “Plaintiffs advise Audubon clients with respect to the management and

operation of pipeline construction projects[.]”60 But Audubon has not shown there is

no genuine dispute that Plaintiffs customarily and regularly provide the type of

advising or consulting that qualifies as an exempt duty under the relevant

58 ECF No. 87-1 at 23.

59 ECF No. 21-2 at ¶ 25; ECF No. 21-5 at ¶ 25; ECF No. 21-6 at ¶¶ 16–17; ECF No. 21-7 at ¶¶

16–17; ECF No. 100-10 at ¶ 8.

60 ECF No. 87-1 at 22.

regulations. “[T]he type of advice an exempt employee provides . . . ‘is directed at

advice on matters that involve policy determinations, i.e., how a business should be

run or run more efficiently, not merely providing information in the course of the

customer’s daily business operation.’” Dewan v. M-I, L.L.C., 858 F.3d 331, 337 (5th

Cir. 2017) (quoting U.S. Dep’t of Labor, Wage & Hour Div., Op. Letter (Sept. 12,

1997)). Audubon has not shown the absence of a genuine dispute that Plaintiffs

customarily and regularly provided advice of that character to Audubon’s clients.

Contending otherwise, Audubon relies principally on the Fifth Circuit’s

nonprecedential opinion in Zannikos v. Oil Inspections (U.S.A.), Inc., 605 F. App’x

349 (5th Cir. 2015) (per curiam). In that unpublished opinion, a Fifth Circuit panel

held that a district court did not err in concluding on summary judgment that “marine

superintendents” whose primary duty “included observing oil transfers to verify that

performance was accurate, legal and safe” performed office or non-manual work and

so qualified for the administrative exemption to the FLSA. See id. at 350–54. The

“marine superintendents” “performed no production-related work”; instead, they

“supervised the work of independent inspectors, they insured compliance with

regulatory standards, and they performed several tasks directly related to quality

control, including ensuing that gas and oil ‘were blended according to the proper

ratios,’ ‘monitor[ing] the loading and unloading of cargo and report[ing] any errors or

losses,’ and ‘inspecting loading and discharge equipment.’” Hobbs, 7 F.4th at 254

(quoting Zannikos, 605 F. App’x at 351). The panel held that those undisputed facts

made the superintendents’ duties a form of quality control that was sufficiently

administrative for purposes of the duties test. See Zannikos, 605 F. App’x at 354.

The Fifth Circuit has limited Zannikos’s reach, however. Two published

opinions have distinguished—and narrowed—Zannikos. See Dewan, 858 F.3d at 337–

38; Hobbs, 7 F.4th at 254–56. And a third published opinion described Zannikos as

“unpersuasive.” Fraser v. Patrick O’Connor & Assocs., L.P., 954 F.3d 742, 747 n.1 (5th

Cir. 2020) (citing Zannikos, 605 F. App’x at 353). So it is unclear what remains of

Zannikos and the weight it should be accorded in the Court’s analysis. Taking

Zannikos on its own terms, the Fifth Circuit’s more recent, published opinions in

Dewan and Hobbs suggest that Zannikos turned on a potentially “elusive” “distinction

between production and administration”: If an employee’s quality-control

responsibilities lean closer to administration on the “production-administration

spectrum,” then the employee is more likely to be involved in exempt quality control.

See Hobbs, 7 F.4th at 255. If an employee’s work is more “functional rather than

conceptual,” however, the work will “not meet the standard for work related to

management or business operations.” Id. (quotation omitted). For its part, Audubon

has not convinced the Court that, under Dewan and Hobbs, there is no genuine

dispute that Plaintiffs’ customary and regular duties fall closer to administration on

the production-administration spectrum such that Plaintiffs customarily and

regularly performed at least one exempt quality-control duty. On this record and

briefing, given the genuine dispute about the nature of the duties Plaintiffs

customarily and regularly performed for Audubon, the Court cannot say that

Zannikos compels a conclusion that Plaintiffs customarily and regularly performed

“office or non-manual work directly related to the management or general business

operations of” Audubon or Audubon’s “customers.” 29 C.F.R. § 541.200(a)(2).61

Accordingly, the Court finds that Audubon has not shown that there is no

genuine dispute that the HCE rule’s duties test is met. Because Audubon has not

shown the absence of a genuine dispute that the HCE rule’s duties test is met,

Audubon has not carried its burden to “establish beyond peradventure all of the

essential elements” of its affirmative defense under the EAP Exemption.

Cunningham, 64 F.4th at 600 (emphasis original) (quotation omitted). The Court

therefore denies Audubon’s motion for summary judgment on the EAP Exemption.62

C. Willfulness

Finally, Audubon moves for summary judgment on the length of the limitations

period: Audubon says that period is two years (not three) because Plaintiffs cannot

prove that Audubon willfully violated the FLSA.63 Plaintiffs rejoin that there is a

genuine dispute as to whether Audubon acted willfully because “Audubon did nothing

to ensure it didn’t violate the FLSA.”64 Plaintiffs have the burden to prove at trial

that Audubon willfully violated the FLSA. See Steele, 826 F.3d at 248. To avoid

61 Nothing in this order and reasons should be construed as a definitive factual finding about

the nature of Plaintiffs’ duties or a definitive legal conclusion that the duties test is not met. The

Court’s holding is narrower: The Court holds only that Audubon has failed to carry its summary-

judgment burden to establish beyond peradventure that the HCE rule’s duties test is met because this

record, viewed in Plaintiffs’ favor, discloses a genuine dispute on that element of the EAP Exemption.

62 Because Audubon has not carried its burden to show that there is no genuine dispute that

the HCE rule’s duties test is met on this record, the Court does not reach the remaining elements of

Audubon’s affirmative defense under the EAP Exemption: the “salary level” and “salary basis” tests.

63 ECF No. 87 at 3.

64 ECF No. 100 at 27.

summary judgment on willfulness, then, Plaintiffs must “identify specific evidence in

the summary judgment record demonstrating that there is a dispute of material fact”

as to whether Audubon willfully violated the FLSA. In re Taxotere (Docetaxel) Prod.

Liab. Litig., 994 F.3d at 708 (citations omitted). Plaintiffs have not done so.

FLSA claims are generally subject to a two-year limitations period. See 29

U.S.C. § 255(a). But a three-year limitations period applies to “a cause of action

arising out of a willful violation” of the FLSA. Id. “To show willfulness, a plaintiff

must demonstrate that an employer ‘knew or showed reckless disregard for the

matter of whether its conduct was prohibited by the statute.’” Steele, 826 F.3d at 248

(quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133–34 (1988)). “Evidence

that a defendant was merely negligent regarding FLSA requirements is insufficient

to show willfulness.” Dacar v. Saybolt, L.P., 914 F.3d 917, 926 (5th Cir. 2018) (citing

Steele, 826 F.3d at 248). Even “an unreasonable violation” of the FLSA “does not

‘necessarily constitute a willful violation.’” Steele, 826 F.3d at 248 (quoting Mireles v.

Frio Foods, Inc., 899 F.2d 1407, 1416 (5th Cir. 1990)). “For example, an employer that

act[s] without a reasonable basis for believing that it was complying with the [FLSA]

is merely negligent, as is an employer that, without . . . notice of an alleged violation,

fails to seek legal advice regarding its payment practices.” Mohammadi v. Nwabuisi,

605 F. App'x 329, 332 (5th Cir. 2015) (per curiam) (quotation and citations omitted).

By contrast, “employers act willfully when they know their pay structures violate the

FLSA or ignore complaints brought to their attention.” Id. (citation omitted).

Viewing the facts and drawing all reasonable inferences in Plaintiffs’ favor, see

Reeves, 530 U.S. at 150, the Court holds that Plaintiffs have not pointed to evidence

creating a genuine dispute that Audubon “knew or showed reckless disregard for

whether its conduct was prohibited by the” FLSA. Id. (quotation omitted). Plaintiffs

present no evidence that Audubon “actually knew that the pay structure” for

inspectors “violated the FLSA” or that Audubon “ignored or failed to investigate” any

complaints asserting that the pay structure for inspectors violated the FLSA. Ikossi-

Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 553 (5th Cir. 2009).

To try to carry their summary-judgment burden, Plaintiffs instead point to the

following testimony from Hayden Hawkins, currently the Director of Strategy and

Sales for Audubon and formerly an HR Business Partner for Audubon:

• Hawkins was not “aware of” any training on the FLSA at

Audubon.65

• Hawkins did not know “what is done to ensure that the additional

compensation” inspectors earn “doesn’t exceed the reasonable

relationship test” for the EAP Exemption.66

• Hawkins does not know how Audubon decided that an inspector

would be exempt under the FLSA.67

• Hawkins has not been a part of “any efforts by Audubon to assess

the duties of the inspectors to make sure those duties satisfied the

duties requirements of any of the exemptions,” and Hawkins said

that he did not know of any such efforts.68

65 ECF No. 100-7 at 12:16–18.

66 Id. at 14:24–15:5.

67 Id. at 10:3–5.

68 Id. at 11:6–12.

At most, Hawkins’s testimony supports a finding that Audubon was “merely

negligent” about the FLSA’s requirements. Dacar, 914 F.3d at 926 (citing Steele, 826

F.3d at 248). Audubon’s alleged failure “to investigate whether it was in compliance

with the FLSA,” standing alone, does not create a genuine dispute on willfulness.

See Mohammadi v. Nwabuist, 171 F.Supp.3d 545, 550 (W.D. Tex. 2016), aff'd, 673 F.

App'x 443. “Without more evidence,” Audubon’s “allegations of willfulness cannot

survive the summary judgment stage.” [kossi-Anastasiou, 579 F.3d at 553.

Accordingly, because Plaintiffs have not pointed to evidence creating a genuine

dispute that Audubon willfully violated the FLSA, the Court grants Audubon’s

motion for summary judgment on the limitations period. The two-year period applies.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the motion” for summary judgment is GRANTED

IN PART and DENIED IN PART. The motion is granted insofar as the Court

holds that the two-year limitations period applies. The motion is otherwise denied.

New Orleans, Louisiana, this 16th day of April, 2025.

BRANDON S. LONG

UNITED STATES DISTRICT JUDGE

69 The evidence of willfulness here is unlike the evidence presented in the cases on which

Plaintiffs principally rely. The employer in Singer v. City of Waco admitted that it knew its employees

were being paid incorrectly. 324 F.3d 818, 821-22 (6th Cir. 2003). The employer in Reich v. Bay, Inc.

was notified by a government representative that its payment practices violated the FLSA, and yet

the employer continued those practices without further investigation. 23 F.3d 110, 117 (6th Cir. 1994).

70 ECF No. 87.

29