Tom Hughes and Desmond McDonald, on behalf of themselves and others similarly situated, Plaintiffs-Appellants,
Gulf Interstate Field Services, Inc., Defendant-Appellee.
Argued: October 6, 2017
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:14-cv-00432-Edmund A.
Sargus Jr., Chief District Judge.
Richard J. Burch, BRUCKNER BURCH PLLC, Houston, Texas, for
J. Swartz, Jr., POLSINELLI PC, Atlanta, Georgia, for
A. Jones, BRUCKNER BURCH PLLC, Houston, Texas, Robert E.
DeRose, Robi J. Baishnab, BARKAN MEIZLISH HANDELMAN GOODIN
DEROSE WENTZ, LLP, for Appellants.
J. Swartz, Jr., J. Stanton Hill, POLSINELLI PC, Atlanta,
Georgia, Mark A. Knueve, VORYS, SATER, SEYMOUR AND PEASE LLP,
Columbus, Ohio, for Appellee.
Before: MERRITT, MOORE, and ROGERS, Circuit Judges.
NELSON MOORE, Circuit Judge.
Hughes and Desmond McDonald served as welding inspectors for
Gulf Interstate Field Services on a pipeline-construction
project in Ohio between 2013 and 2014. In 2014, they and
others similarly situated brought suit under the Fair Labor
Standards Act (FLSA) and the comparable Ohio Minimum Fair
Wage Standards Act (OMFWSA), asserting that they were
entitled to overtime pay for weeks in which they worked more
than forty hours. Gulf Interstate argued, and the district
court ruled on summary judgment, that Hughes, McDonald, and
other employees like them were instead exempt from the
overtime requirements because they qualified as highly
compensated employees under the governing regulations.
Hughes and McDonald concede that they were paid in a manner
and at a rate consistent with being exempt, they argue that
those facts do not resolve the question under the text of the
regulations. Instead, they argue, it matters whether their
salaries were guaranteed, and in turn, whether a
rational trier of fact could have concluded that there was no
such guarantee. Because such a guarantee does matter, and
because there is a genuine issue of material fact as to
whether such a guarantee existed, we REVERSE
the district court's grant of summary judgment to Gulf
Interstate and remand for further proceedings.
and McDonald began working for Gulf Interstate as welding
inspectors in January and June 2013, respectively, on a
pipeline project in Ohio for a Gulf Interstate client called
MarkWest. R. 31-1 (Hughes Decl.) (Page ID #151-52); R. 31-2
(McDonald Decl.) (Page ID #155); see also R. 42-13
(Kramer Decl., Exs. BA-BB) (Page ID #600, 602). Prior to
beginning their work, they each received an offer letter from
Gulf Interstate stating that they were entitled to, in
addition to a weekly per diem and computer stipend, a salary
of "$337.00/Day Worked." R. 31-1 (Hughes Decl., Ex.
1) (Page ID #154). Rate sheets exchanged between Gulf
Interstate and MarkWest regarding the project also listed,
among various "Cost Components, " a "Daily
Rate, " with a note appended clarifying that the
"[d]ay rate" would be "paid on days
worked." R. 93-2 (Sprick Dep., Ex. 3) (Page ID #3182).
between MarkWest and Gulf Interstate offers further
discussion of the arrangement. After Gulf Interstate's
director asked whether inspectors were "paid for DAYS
WORKED only (whether its [sic] 1, 2, 3, etc), or is there a
5, 6, or 7 day minimum ?", a MarkWest manager replied:
"[Inspectors are p]aid for days worked only. This was
explained to all of the inspectors coming in. These projects
are based on a 6 day work week @ 10 hours a day (salaried
position). As is the case anywhere any additional hours
worked in a day is [sic] not paid." R. 93-2 (Sprick
Dep., Ex. 12) (Page ID #3241).
is also evidence that welding inspectors were told orally
that they would be working "six days a week" and
ten hours a day, an arrangement known by industry shorthand
as "six 10s." R. 90-9 (Hughes Dep.) (Page ID
#1637); see R. 42-2 (Hill Decl.) (Page ID #310)
("It was my expectation . . . that . . . either one of
my subordinates or I explained to each Plaintiff that they
would be paid a daily rate multiplied by six in each week . .
. ."); see also 90-10 (McDonald Dep.) (Page ID
#1750, 1752); R. 90-20 (Williamson Dep.) (Page ID #2684). And
Gulf Interstate's Field Services Manager, Catherine
Kramer, testified that inspectors were to be paid for six
days even if they worked five ...