# Cencarik v. Audubon Field Solutions, LLC

> District Court, E.D. Louisiana · April 16, 2025

URL: https://www.frixlaw.com/law-library/cases/10846718

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** April 16, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10846718

## How later opinions describe it (automated extraction)

- 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
- finding a genuine dispute as to whether inspectors met the duties test

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10846718. Public record. Not legal advice.