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Alawar v. Trican Well Serv., L.P.

United States District Court, W.D. Texas, San Antonio Division

August 28, 2019

RAWAD ALAWAR et al., Plaintiffs,
v.
TRICAN WELL SERV., L.P., Defendant.

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE.

         Before the Court are defendant Trican Well Service, LP's (“Trican”) Motion for Summary Judgment [42], defendant's Brief in Support thereof [43], plaintiff Rawad Alawar and Class Members' (“Alawar” or “Field Engineers” or “Class Members”) Response in Opposition thereto [50], and defendant's Reply [53]. Also pending before the Court are plaintiffs' Objections to Jason Cleveland's Declaration [49], defendant's Response thereto [54], and plaintiffs' Reply [57].

         After reviewing the pleadings and the record in its entirety, the Court will GRANT IN PART and DENY IN PART Trican's Motion for Summary Judgment. Alawar's Objections to Jason Cleveland's Declaration will be OVERRULED WITHOUT PREJUDICE, and such objections shall be governed by the Federal Rules of Evidence at trial.

         I. Trican's Motion for Summary Judgment

         A. Background

         This collective action arises under the Fair Labor Standards Act of 1938 (“FLSA”), codified as amended at 29 U.S.C. §§ 201 et seq. Alawar and the Field Engineers were formerly in Trican's employ. ECF No. 43, at 5; ECF No. 50, at 1. Alawar brings this action on behalf of himself and all other Field Engineers who were contemporaneously in Trican's employ. Id.

         Alawar also brings his claim on behalf of William Fruhwirth, who Trican employed as a Service Supervisor. Id. The plaintiffs, collectively, are thus “Field Engineers and Fruhwirth.” At times relevant to the events underlying this litigation, Trican was a pressure-pumping company with operations in many states, headquartered in Houston. ECF No. 43, at 6; ECF No. 50, at 2. Specifically, it provided integrated well-service solutions to its customers, who were involved in the exploration and development of oil and natural gas reserves. ECF No. 43, at 6. Chiefly, Trican provided fracking and coil tubing support to its customers. ECF No. 50, at 2.

         In general, Trican assigned one Field Engineer to each of its well-sites per shift, each of whom reported to a District Engineer. ECF No. 50, at 2; see also ECF No. 43, at 9. Trican also assigned one Service Supervisor to each well-site, whose function was to supervise the crew and all of the operations taking place at the well-site. ECF No. 50, at 2. Additionally, Trican's customers usually assigned a “Company Man” to represent the customer's interests at each well-site. ECF No. 50, at 2; ECF No. 43, at 9.

         1. The Field Engineers

         Since at least January 8, 2013, [1] the Field Engineers monitored down-hole well conditions from computer screens in “data vans” located on the well-sites. ECF No. 50, at 2; ECF No. 43, at 9. They were mainly responsible for monitoring a computer screen, which relayed certain data to them. ECF No. 50, at 2. According to the Field Engineers, one key duty was to alert the Service Supervisor and Company Man if the computer screen reported levels beyond those deemed acceptable to Trican and its customer. Id. at 2-3.

         The parties' characterizations sharply differ vis-à-vis the scope of the Field Engineers' duties, their day-to-day functions, and Trican's reporting structure. For example, Trican alleges that Field Engineers were “required to exercise [their] judgment and discretion on a daily basis to interpret the monitored data from the well, assess potential problems, and make recommendations based upon [their] findings.” ECF No. 43, at 10. The Field Engineers, meanwhile, explain that they would “monitor the chemical levels present . . . and document such information on a spreadsheet to keep record.” ECF No. 50, at 3. If the data fell beyond Trican's or its customers' established guidelines, Field Engineers “alerted the Service Supervisor, who would relay the information to other site employees and administrators.” Id. Trican concedes that the Field Engineers “notified and conferred with the Company Man and/or the Service Supervisor” in such circumstances. ECF No. 43, at 10.

         As another example, the Field Engineers allege that they “had no discretion to recommend changes to a project to resolve an identified problem.” ECF No. 50, at 4. But, Trican maintains that the Field Engineers did, in fact, have “discretion to make recommended changes to a project to resolve an identified problem.” Id. at 10-11. The parties agree that the Field Engineers would consult with the Service Supervisor, but they disagree as to whether the Field Engineers' input had any bearing on Trican's ultimate determination of resolving the problem. Compare ECF No. 43, at 11 (“Field Engineers were not required to get prior approval from anyone at Trican before making recommendations to the Company Man.”), with ECF No. 50, at 4 (“The Field Engineer would consult with the Service Supervisor on the issues he found, but the Service Supervisor generally made recommendations to the Company Man on how to resolve issues. . . . Field Engineers never told the Company Man which direction to take.”).

         In addition, the parties provide conflicting characterizations of the nature of the Field Engineers' work. The Field Engineers maintain that they spent approximately one-quarter of their time “conducting fluid recovery, ” a manual task. ECF No. 50, at 3. Trican maintains that it “did not require Field Engineers to perform manual labor on the job site.” ECF No. 43, at 11.

         Finally, the parties dispute the Field Engineers' work schedule and compensation regime. The Field Engineers allege that they were scheduled to work for “8 days on and 4 days off” for scheduled 12-hour shifts on each day. ECF No. 50, at 5. They maintain, however, that they were normally required to work beyond their scheduled hours, generally “14 or even 17 hours a day, ” and that they often “would be on the well-site for 14 or 15 days before they had time off.” Id. at 5-6. Meanwhile, Trican maintains that it paid the Field Engineers “an annual salary in excess of $455 per week” and that they “understood their salary was intended to cover any and all hours worked, ” irrespective of “whether they worked over or under forty hours.” ECF No. 43, at 7.

         2. The Service Supervisor

         Fruhwirth is the only Service Supervisor who is a party to this action. The parties do not dispute Fruhwirth's primary duties as a Service Supervisor. In general, Fruhwirth's main task was “to supervise his crew of 8-16 hourly equipment operators/ground hands.” Id. at 12. He “ran [the well-sites] and crews with little to no supervision.” Id. at 13. From time to time, Fruhwirth worked in the data van alongside the Field Engineers “as a team.” Id. From time to time, Fruhwirth would “assist his crew with manual tasks, ” but Trican contends that this was not his primary duty. Id. at 14.

         However, the parties distinctly characterize Fruhwirth's compensation structure. Trican alleges that Fruhwirth “understood his salary was intended to cover any and all hours worked” and that he would be paid “the same amount each week regardless of whether he worked over or under forty hours” in that week. Id. at 12. Fruhwirth maintains, however, that his salary was reduced on or about February 9, 2015 when Trican reduced the quantity of work available to him, but that it continued to require him to work a varied schedule, so that he was no longer considered a “salaried” employee. ECF No. 50, at 8.

         3. February 2015

         The parties do not dispute that on or about February 9, 2015, Trican's Director of Human Resources notified every Trican employee of a company-wide wage reduction. Id. at 8. Therein, Trican informed all of its employees that it would reduce their salaries by 10 percent. Id. Notwithstanding the salary reductions, Trican continued to require the Field Engineers to work at their respective well-sites for a minimum of 12 hours per day, but would frequently “deviate from [that] schedule, ” causing Field Engineers to work very long shifts of up to 17 hours per day. Id. Before the salary reduction, Field Engineers routinely worked a schedule of “8 days on, 4 days off, ” for 12 hours each day. Id. Thus, according to the Field Engineers, Trican reduced their pay and required them to work erratic, long hours. Id. Trican does not deny these allegations. See ECF No. 43; ECF No. 53.

         Some months later, [2] Trican terminated the Field Engineers' and Fruhwirth's employment. Trican alleges that, as a condition of receiving severance pay, some Field Engineers and Fruhwirth purportedly released any and all claims arising from their employ with Trican including, ostensibly, any FLSA claim. ECF No. 43, at 14. All of the plaintiffs were terminated in 2015.

         On January 8, 2016, Alawar filed the instant action. See Compl., ECF No. 1. Alawar amended his complaint on January 15, 2016. Amend. Compl., ECF No. 6. On April 15, 2016, the Court granted the parties' Stipulated Motion for Conditional Certification and Notice to Putative Class Members, thus establishing a collective action against Trican.

         B. Legal Standard

         A moving party is entitled to summary judgment upon showing that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Meadaa v. K.A.P. Enters., LLC, 756 F.3d 875, 880 (5th Cir. 2014). A dispute is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S 242, 248 (1986).

         “When summary judgment is sought on an affirmative defense, as here, the movant ‘must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [its] favor.'” Dewan v. M-I, LLC, 858 F.3d 331, 334 (5th Cir. 2017) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). Once the movant does so, the burden shifts to the nonmovant to come forth “with ‘specific facts' showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)); see also Smith v. Reg'l Transit Auth., 827 F.3d 412, 420 n.4 (5th Cir. 2016) (same).

         Critically, however, “‘[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.'” United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003)). Further, “[m]ere conclusory allegations” are likewise insufficient to overcome a motion for summary judgment. Akene v. Goodwill Indus. of Cent. Tex., No. 17-CV-00360, 2018 WL 1128149, at *2 (W.D. Tex. Mar. 1, 2018) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)).

         Accordingly, “Rule 56 ‘mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

         C. Discussion

         1. The separation and release agreements do not bar or waive plaintiffs' FLSA claims.

         Emilio Chaho, Chad Facchine, Ruben Ortiz, and Jose Perales were Field Engineers who, upon their termination, signed a Separation and Release Agreement. ECF No. 43, at 14. Fruhwirth also signed such an agreement upon his termination. See Id. By virtue of this agreement, Trican argues that Chaho, Facchine, Fruhwirth, Ortiz, and Perales' FLSA claims are barred because it “paid severance” to them “in exchange for their execution of” the Separation and Release Agreements they signed “at the time of their separation from employment.” Id. at 14. But as a general rule, “even when there is a bona fide dispute as to whether certain employees are covered by the FLSA, and when that dispute has been settled in favor of paying the employees FLSA required wages, the employees' right to recover liquidated damages cannot be waived.” Bodle v. TXL Mortg. Corp., 788 F.3d 159, 163 (5th Cir. 2015) (citing D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946)).

         Trican urges that while “FLSA claims generally cannot be waived, ” they may be waived when the dispute centers on “wages.” ECF No. 43, at 14. It then states that “the plain language of the Agreements” suggest that “Plaintiffs agreed to resolve and release any FLSA claims against Trican.” Id. (emphasis added). Thus, Trican at once acknowledges the general prohibition on FLSA waivers, but then argues that these five plaintiffs executed precisely such a waiver to support its position.

         For its part, Trican points the Court to Martin v. Spring Break '84 Prods., LLC, 688 F.3d 247 (5th Cir. 2012) for the proposition that, in the Fifth Circuit, Courts must “uphold a release in cases where an employee is agreeing to resolve a bona fide dispute regarding wages.” Id. And here, Trican alleges, the “Plaintiffs even acknowledged that Trican had paid them for all wages” and that “the Agreements executed by Plaintiffs effectively resolved any wage-related disputes between Trican and Plaintiffs.” Id. at 14-15. Trican's reliance on Martin is misplaced.

         Martin involved a waiver of FLSA claims in the context of a labor union, where the labor union was the “exclusive representative of the employees in the bargaining unit.” Martin, 688 F.3d at 249. The Court cautioned that “FLSA substantive rights may not be waived in the collective bargaining process, ” but enforced the waiver against the employees only because their “FLSA rights were not waived, but instead, validated through a settlement of a bona fide dispute.” Id. at 257 (emphases added). Martin is the exception, not the rule. See Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 704 (1945) (“Where a private right so charged or colored with the public interest to effectuate a legislative policy, waiver of a right so charged or colored with the public interest will not be allowed where it would thwart the legislative policy which it was designed to effectuate.”).

         Martin's reasoning is thus only applicable to situations where there is an “unsupervised settlement[] that [is] reached due to a bona fide FLSA dispute over hours worked or compensation owed.” Bodle, 788 F.3d at 165 (citing Martin, 688 F.3d at 255). In Bodle, the Fifth Circuit clarified the Martin rule, explaining that the exception does “not undermine the purpose of the FLSA because the plaintiffs [in Martin] did not waive their claims through some sort of bargain but instead received compensation for the disputed hours.” Id. (citing Martin, 688 F.3d at 257). The Bodle Court went on to hold that “the absence of any mention or factual development of any claim of unpaid overtime compensation in the . . . settlement negotiations precludes a finding that the release resulted from a bona fide dispute under Martin.Id.

         Here, the Separation and Release Agreements unequivocally indicate that the separating employees reserve the right to recover “base wages earned . . . through the Termination Date, ” and provides that they “shall be paid all such wages regardless of whether” they chose to sign the Agreements. See, e.g., ECF No. 44-4, at 16 ¶ 3(b) (identical language in each Agreement). However, the Agreements purportedly demonstrate that the separating employees each “acknowledge[d] that” they “have been paid all wages (including but not limited to overtime wages) and/or commissions owing, ” and that they “have not worked any hours for which” they “have not received payment from the Company.” Id. ¶ 4(c).

         As a general matter, such waivers are not permissible. “The [FLSA] was a recognition of the fact that due to the unequal bargaining power as between an employer and employee, certain segments of the population required federal compulsory legislation to prevent private contracts on their part which endangered the national health and efficiency.” O'Neil, 324 U.S. at 706 (footnote omitted). Accordingly, where, as here, Trican does not suggest “that the right to the basic statutory minimum wage could be waived by any employee subject to the Act, ” it must follow that “the same policy considerations which forbid waiver of basic minimum and overtime wages under the [FLSA] also prohibit waiver of the employee's right to liquidated damages.” Id. at 707 (emphasis added).

         And although Bodle contemplates that the Martin exception could apply in situations where plaintiffs “discussed overtime compensation or the FLSA in their settlement negotiations, ” such an extension of Martin cannot apply where, as here, “there was no factual development of the number of unpaid overtime hours nor of compensation due for unpaid overtime.” Bodle, 788 F.3d at 165. Were it otherwise, “[t]o deem the plaintiffs as having fairly bargained away” their right to assert a claim of wages due under the FLSA would frustrate the entire statutory regime. Id. And here, Chaho, Facchine, Fruhwirth, Ortiz, and Perales each had two equally unappealing choices: (1) either to sign the Separation and Release Agreements in consideration of two-weeks' severance pay, or (2) not to sign the Agreements and forfeit property (i.e., compensation) they were promised in contemplation of executing them.

         Indeed, in either case, there exists a material question as to the parity of the bargaining power between Trican and Chaho, Facchine, Fruhwirth, Ortiz, and Perales. It is a bedrock principle of contract doctrine that prospective agreements to limit judicial or administrative remedies are enforceable only if it is the result of a bona fide arm's-length, consensual bargain that is not otherwise the result of overreaching by one of the parties. See Loader Leasing Corp. v. Kearns, 83 F.R.D. 202 (W.D. Pa. 1979); see also Starcrest Trust v. Berry, 926 S.W.2d 343 (Tex. Ct. App. 1996). Indeed, the “prime purpose of the [FLSA] was to aid . . . those employees who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage.” O'Neil, 324 U.S. at 707 n.18 (citing FLSA's legislative history).

         Accordingly, the parity of the parties' bargaining power is fundamental to the Court's inquiry into the validity of the Agreements insofar as they purport to divest Chaho, Facchine, Fruhwirth, Ortiz, and Perales of an express statutory right. Here, unlike in Martin, these individuals had no labor union representing them. Cf. Martin, 688 F.3d at 249. Further, the Court notes that each of these employees signed the Separation and Release Agreements either on or after their separation date, which casts considerable doubt as to whether these five individuals truly “bargained for” the agreements.

         Indeed, Chaho signed his agreement on October 23, 2015, but was terminated on October 22, 2015 (ECF No. 44-4, at 16 ¶¶ 2, 19); Perales signed his agreement on October 26, 2015, and was terminated on that same date (ECF No. 44-3, at 6 ¶¶ 2, 9); Facchine signed his agreement on March 14, 2016, and was terminated on that same date (ECF No. 44-2, at 15 ¶ 2, 9); Ortiz signed his agreement on March 19, 2015, and was terminated on that same date (ECF No. 44-1, at 21 ¶¶ 2, 25); and Fruhwirth was terminated on October 22, 2015, but the record does not indicate the date he signed the agreement (ECF No. 44-5, at 22 ¶ 2).

         Thus, because there remains a question of fact as to whether Trican and Chaho, Facchine, Fruhwirth, Ortiz, and Perales freely bargained for the waiver of rights in their Separation and Release Agreements, and because the Court must draw all reasonable inferences from the facts in the plaintiffs' favor at this stage, the Court finds that each of these plaintiffs' FLSA claims are not barred by their Agreements. Cf. Sartor v. Ark. Nat. Gas Corp., 321 U.S. 620, 623-24 (1944) (“Where the undisputed facts leave the existence of a cause of action depending on questions of damage which [Fed. R. Civ. P. 56] has reserved from the summary judgment process, it is doubtful whether summary judgment is warranted on any showing.”).

         And even if the Martin exception were to apply to these claims, Chaho, Facchine, Fruhwirth, Ortiz, and Perales have advanced that “the parties never specifically negotiated for overtime compensation when agreeing to severance amounts, ” thus raising a specific question of material fact. ECF No. 50, at 18. In its reply, Trican asserts only that the text of the Agreements “effectively resolved any wage-related disputes between” it and Chaho, Facchine, Fruhwirth, Ortiz, and Perales. ECF No. 53, at 4. But Trican does not address the Bodle distinction raised in the plaintiffs' response. ECF No. 50, at 17. Accordingly, there exists a genuine dispute of material fact that must be resolved before a jury and not on summary judgment. See, e.g., Celotex Corp., 477 U.S. at 322.

         Accordingly, the Court cannot grant summary judgment as a matter of law on this issue, and therefore will deny Trican's motion for summary judgment as to Chaho, Facchine, Fruhwirth, Ortiz, and Perales on the basis that they executed a waiver of claims.

         2. The Field Engineers' FLSA claims cannot be resolved on summary judgment.

         The Field Engineers claim that Trican violated the FLSA's overtime provisions when it (1) misclassified them as “non-exempt” employees and (2) failed to pay them overtime compensation at one and one-half times their regular pay rates. See Amend. Compl., ECF No. 6 ¶¶ 37, 46.

         Subject to certain statutory exemptions, the FLSA requires an employer to compensate a covered employee for all hours worked in excess of 40 hours per week “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). To ascertain whether an exemption applies, courts must employ a “‘fair reading,' as opposed to the narrow interpretation previously espoused by [the Fifth] and other circuits.” Carley v. Crest Pumping Techs., LLC, 890 F.3d 575, 579 (5th Cir. 2018) (quoting Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134, 1142 (2018)).

         Still, at all times, “the burden of proof on exempt status is on the employer.” Owsley v. San Antonio Indep. Sch. Dist., 187 F.3d 521, 523 (5th Cir. 1999); Accord Dewan v. M-I, LLC, 858 F.3d 331, 334 (5th Cir. 2017), abrogated on other grounds by Navarro, 138 S.Ct. at 1142. And where, as here, the employer seeks summary judgment on an affirmative defense, it “‘must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [its] favor.'” Dewan, 858 F.3d at 334 (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)) (emphasis in original). Trican fails to carry that burden here.

         For its part, Trican argues that each of the Field Engineers and Fruhwirth were exempt from the FLSA's overtime provisions under the FLSA's administrative exemption. See ECF No. 43, at 15. In the alternative, Trican argues that some of the Field Engineers, as well as Fruhwirth, were exempt from the statute's overtime provisions under its “highly compensated employee” exemption. Id. at 18-19. On this record, neither of Trican's arguments is persuasive, and its motion for summary judgment must fail.

         a. Administrative Exemption

         The FLSA exempts “any employee employed in a bona fide . . . administrative . . . capacity[.]” 29 U.S.C. § 213(a)(1). Trican claims that the Field Engineers were “properly classified . . . as exempt pursuant to [the FLSA's] ‘administrative exemption.'” ECF No. 43, at 15. Whether this exemption applies “is primarily a question of fact, ” but the “ultimate decision whether the employee is exempt from the FLSA's overtime compensation provisions is a question[] of law.” Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203 F.3d 326, 331 (5th Cir. 2000) (citations omitted). At all times, the Court is cognizant that “[a] job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee's salary and duties meet the requirements” as detailed in the regulations promulgated under § 213 of the FLSA. See 29 C.F.R. § 541.2.

         Accordingly, the Court first will draw all reasonable factual inferences in the plaintiffs' favor, and then make legal “inferences from the facts in applying the regulations and interpretations promulgated under 29 U.S.C. § 213(a)(1) . . . [to] make the ultimate determination of whether an employee was exempt” as a matter of law. Id. (citing Dalheim v. KDFW-TV, 918 F.2d 1220, 1226 (5th Cir. 1990)).

         i. Definition of an Administrative Employee

         When Congress fashioned the FLSA, it chose to exempt from its provisions those employees “employed in a bona fide . . . administrative . . . capacity.” 29 U.S.C. § 213(a)(1). Congress delegated to the Department of Labor (the “Department”) the task of “defin[ing] and delimit[ing]” those terms “from time to time by regulations of the Secretary [of Labor].” Id. In turn, the Department has codified its regulations and interpretations of the FLSA's exemptions at 29 C.F.R. §§ 541.0 et seq. (hereinafter the “regulations”). See also Lott, 203 F.3d at 331. The regulations appurtenant to “administrative employees” are codified at 29 C.F.R. §§ 541.200-04.

         Therein, an “administrative employee” is an individual (1) who is “[c]ompensated on a salary or fee basis at a rate of not less than $455 per week;” (2) “[w]hose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers;” and (3) “[w]hose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a).

         At all times, the Court is cognizant that any classification of an administrative employee must be bona fide, as the statute requires. See Chevron USA, Inc. v. Nat. Resources Defense Council, Inc., 467 U.S. 837, 843-45 (holding that courts must defer to an agency's definitions, but only where those definitions comport with the statute itself).

         The first of these requirements is readily ascertainable; the second and third, however, “require a fact-finder to analyze the facts to determine the employee's primary duty, how the work directly relates to certain parts of the employer's business, and whether the duty involves some discretion and independence.” Dewan v. M-I, LLC, 858 F.3d at 334. And here, because “factual issues such as identifying these employees' primary duties, or deciding if they exercised independent judgment and discretion, cannot be resolved without making inferences from the evidence that are subject to genuine dispute, ” such interpretations should not and must not be decided on summary judgment. Id. at 335; see also Singer v. City of Waco, 324 F.3d 813, 818 (5th Cir. 2003) (such “ultimate determination[s]” necessarily “rel[y] on many factual determinations to be resolved by a jury”).

         1. There is a genuine dispute as to the Field Engineers' salaries ...


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