United States District Court, W.D. Texas, San Antonio Division
C. LAMBERTH UNITED STATES DISTRICT JUDGE.
the Court are defendant Trican Well Service, LP's
(“Trican”) Motion for Summary Judgment ,
defendant's Brief in Support thereof , plaintiff
Rawad Alawar and Class Members' (“Alawar” or
“Field Engineers” or “Class Members”)
Response in Opposition thereto , and defendant's
Reply . Also pending before the Court are plaintiffs'
Objections to Jason Cleveland's Declaration ,
defendant's Response thereto , and plaintiffs'
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.
Trican's Motion for Summary Judgment
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.
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.
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.
The Field Engineers
at least January 8, 2013,  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.
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.
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.”).
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.
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.
The Service Supervisor
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.
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
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.
months later,  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.
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
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).
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)
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.
“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)).
The separation and release agreements do not bar or waive
plaintiffs' FLSA claims.
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)).
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.
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.
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
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
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).
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).
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.
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).
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
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).
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.”).
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.
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.
The Field Engineers' FLSA claims cannot be resolved
on summary judgment.
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 ¶¶
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,
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.
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.
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.
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)).
Definition of an Administrative Employee
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.
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.
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
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”).
There is a genuine dispute as to the Field Engineers'