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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                    May 30, 2017
                                 No. 16-20182
                                                                    Lyle W. Cayce
                                                                         Clerk
MATTHEW DEWAN, Individually and On Behalf of All Others Similarly
Situated; WILLIAM J. CASEY,

             Plaintiffs - Appellants

v.

M-I, L.L.C., doing business as M-I SWACO,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Two oilfield workers sued their employer for unpaid overtime wages.
The district court granted summary judgment on the defendant’s affirmative
defense that the plaintiffs fell under the administrative exemption of the Fair
Labor Standards Act. Finding there to be genuine disputes of material fact
that affect whether the exemption applies, we REVERSE and REMAND.


              FACTUAL AND PROCEDURAL BACKGROUND
      Defendant M-I SWACO is an oilfield service company that specializes in
engineering drilling-fluid systems and additives designed to improve
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                                        No. 16-20182
performance for oil and gas well drilling operations. As part of its business,
M-I employs Drilling Fluid Specialists, or “mud engineers,” who work at M-I
customer locations to manage the drilling-fluid system and interact directly
with the customers by providing advice and other support.
          The minimum educational requirement for a mud engineer is a
high-school diploma.         Once hired, mud engineers undergo an eight-week
training program at M-I’s office in Houston, Texas. During the program,
trainees receive basic instruction on the functions of drilling fluids, their
physical and chemical properties, mathematics, and training on the proper use
of testing equipment and computer software.
          A mud engineer works to ensure the properties of the drilling fluid, also
known as drilling mud, 1 are within designed specifications as set forth in the
mud plan, which is created by a project engineer at M-I’s headquarters and is
based on historical drilling in the area. Both plaintiffs claimed that they did
not have authority to deviate from the mud plan. Mud engineers perform their
duties either by “sitting” on the customer’s well (an extended, round-the-clock
monitoring of one drill site) or doing a “drive-by” (quick visits to multiple drill
sites).
          To ensure the drilling mud is performing adequately 2 and within its
designated parameters, mud engineers test the mud’s pH, rheology, weight,
and viscosity. The tests are generally conducted either in a lab trailer at the




         “Drilling mud comes in many varieties, ranging from water-based fluid mixed with
          1

minerals to oil-based fluid with a composition similar to diesel fuel to synthetic oil-based fluid
with a composition similar to food-grade mineral oil.” Whiteman v. Chesapeake Appalachia,
L.L.C., 729 F.3d 381, 383 n.3 (4th Cir. 2013). The mud system is a crucial part of a drilling
operation that performs approximately ten functions.

          Improperly maintained mud can have severe and costly consequences for the drilling
          2

operation. Among the risks are the loss of circulation and stuck pipes, which may cause the
drilling operation to stop and require significant repairs.
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                                  No. 16-20182
customer’s site or on the tailgate of the mud engineer’s assigned company
vehicle. Plaintiff Dewan testified at his deposition that, after testing was
complete, he would provide recommendations to the “company man.” These
recommendations were largely accepted without further inquiry.               The
plaintiffs were typically the only M-I employees or mud engineers on site.
      M-I employed Plaintiffs Matthew Dewan and William Casey as mud
engineers until December 2012. On December 14, 2012, Dewan filed a putative
class-action suit against M-I, alleging violations of the overtime provisions of
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–19. That same day,
Casey consented to join the suit pending collective or class-action certification.
After discovery closed, M-I moved for summary judgment on various grounds,
including that the plaintiffs were exempt from the FLSA’s overtime
requirements under 29 U.S.C. § 213(a)(1). The plaintiffs separately moved for
judgment on the pleadings under Federal Rule of Civil Procedure 12(c).
      The district court (1) denied the plaintiffs’ motion for judgment on the
pleadings; (2) denied M-I’s motion for summary judgment as to the claim that
Casey was not a party to the lawsuit; (3) denied M-I’s motion as to the FLSA’s
outside sales and combination exemptions; and (4) granted M-I’s motion on the
grounds that the plaintiffs fell under the FLSA’s administrative exemption.
The plaintiffs timely appealed.


                                  DISCUSSION
      In 1938, Congress enacted the FLSA in an effort to ensure each employee
covered by the Act would receive “[a] fair day’s pay for a fair day’s work and
would be protected from the evil of overwork as well as underpay.” Barrentine
v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981). One way the
FLSA effectuates these goals is through its overtime provision, which requires
an employer to compensate any covered employee who works in excess of 40
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hours in a workweek “at a rate not less than one and one-half times the
[employee’s] regular rate . . . .” 29 U.S.C. § 207(a)(1). Relevant here, the FLSA
excludes from its overtime requirement those employees working “in a bona
fide executive, administrative, or professional capacity . . . .” Id. § 213(a)(1).
      The district court granted summary judgment for M-I, holding that these
employees were exempt from the overtime rules. In our de novo review, we use
the same standards as did the district court in considering facts and analyzing
law. Owsley v. San Antonio Indep. Sch. Dist., 187 F.3d 521, 523 (5th Cir. 1999).
Summary judgment is proper when the movant shows there are no genuine
issues of material fact and the movant is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(a).
      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 his favor.” Fontenot v. Upjohn
Co., 780 F.2d 1190, 1194 (5th Cir. 1986). “Once the movant does so, the burden
shifts to the nonmovant to establish an issue of fact that warrants trial.” Smith
v. Reg’l Transit Auth., 827 F.3d 412, 420 n.4 (5th Cir. 2016). The burden of
proof on exempt status is on the employer. Owsley, 187 F.3d at 523. Because
of the Act’s remedial nature, we narrowly construe its exemptions in favor of
the employee. Id.
      To all these statements we add something further. There is no dispute
about what these two engineers did from day to day. Even so, more is involved
of relevance here than just a record of the plaintiffs’ daily activities. Those
facts must be interpreted based on the regulations. For the administrative
exemption to apply, the employee must be one (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
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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. The compensation of the plaintiffs is clearly sufficient.
The second and third criteria, though, 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.
        We choose two examples to make the point. Even if the evidence is
undisputed about the mud engineers’ activities, a fact-finder might also need
to decide if what they do is the equivalent of “perform[ing] specialized work
along    standardized    lines   involving   well-established   techniques     and
procedures[.]” § 541.203(g). Further, would a fact-finder believe the mud
engineers are exercising “discretion and independent judgment” when they
perform their tasks, with that quoted phrase requiring consideration of “all the
facts involved in the particular employment situation” as further explained by
a lengthy list of nonexhaustive factors? See § 541.202(b). Most of that is fact-
finding, not legal analysis.
        It is with these considerations that we unpack the legal question we must
answer — namely, do the plaintiffs fall within the FLSA’s administrative
exemption? “That ultimate determination, however, relies on many factual
determinations that can be resolved by a jury.” Singer v. City of Waco, 324
F.3d 813, 818 (5th Cir. 2003). We agree with one of this court’s unpublished
opinions that we should consider “the amount of time the employee devotes to
particular duties, as well as the significance of those duties . . . .” Zannikos v.
Oil Inspections (U.S.A.), Inc., 605 F. App’x 349, 352 (5th Cir. 2015). A check
on any finding that facts are undisputed is that “the drawing of legitimate
inferences from the facts are jury functions, not those of a judge, whether he is
ruling on a motion for summary judgment or for a directed verdict.” Anderson
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v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
      We conclude that there remain genuine disputes of material fact, as we
will explain.   In summary now, 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. Those interpretations cannot be
said on this record to be resolvable on summary judgment.
      All this review-standard throat-clearing out of the way, we turn to the
issues before us. As we note above, the first criterion of the administrative
exemption, which concerns the plaintiffs’ weekly earning, is clearly satisfied.
Plaintiffs argue, however, that genuine issues of material fact exist as to the
second and third criteria. Additionally, the plaintiffs argue the district court
placed the burden on them to negate the affirmative defense while allowing
M-I to rely on the absence of evidence of any element of the plaintiffs’ case. We
will address the two contested criteria separately. We conclude there is error
as to both criteria and find it necessary to examine each individually to show
the extent of the fact-finding still needed on remand.


I.    Work “Directly     Related”   to   “Management      or   General   Business
      Operations”

      To repeat, the administrative exemption requires the employee to have
as his “primary duty . . . the performance of work directly related to the
management or general business operations of the employer or the employer’s
customers.” § 541.201(a). The regulations define an employee’s “primary duty”
as the “principal, main, major or most important duty that the employee
performs.” § 541.700(a). The “directly related” test is met by the employee’s
“assisting with the running or servicing of the business, as distinguished, for
example, from working on a manufacturing production line or selling a product
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                                No. 16-20182
in a retail or service establishment.” § 541.201(a). Under that inquiry, it is
“the type of work performed by the employee” on which we must focus. Id.
      The plaintiffs argue that their job duties — or the types of work they
perform as mud engineers — are fundamentally different from the kinds of
positions the regulations set out as examples. Examples of work “directly
related to management or general business operations” include such functional
areas as human resources, marketing, quality control, and safety and health.
§ 541.201(b).     Another regulation entitled “Administrative exemption
examples” includes insurance-claims adjusters, financial-services employees,
and human-resource managers. § 541.203. The plaintiffs argue that their
mud-engineer position is far removed from both sets of examples.
      The plaintiffs also rely on a recent Texas district court decision that
denied summary judgment to an employer on its affirmative defense that its
manufacturing engineer was subject to the FLSA’s administrative exemption.
See Elliott v. Dril-Quip, Inc., No. H-14-1743, 2015 WL 7302764 (S.D. Tex. Nov.
18, 2015). There, the district court stated that “it is the actual day-to-day
activities of the employees that determine whether the employee is exempt,
not the labels the employer or employee place on those duties.” Id. at *6. The
court found factual issues existed over the second criterion of whether a
manufacturing engineer’s primary duty was directly related to the
management or general business operations of the employer or its customers.
Id. at *6–*9. There were also factual uncertainties about the third criterion,
namely, whether the plaintiff exercised the requisite discretion and
independent judgment. Id. at *10–*11. At least for summary judgment, the
employer failed to establish that the employee “falls plainly and unmistakably
within the terms and spirit of the exemption.” Id. at *11 (alteration omitted).
      Relying on Elliott and the regulations, the plaintiffs argue the district
court erred in concluding that they performed non-manual work for M-I or its
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customers.   Instead, they contend mud engineers “produce those income-
generating services” that are central to M-I’s business model. The plaintiffs
seek to align their work as mud engineers with that of oil-well drillers. There
is support for that comparison, as the Labor Department included oil-well
drillers in a list of “Blue-Collar Occupations That Are Most Likely Nonexempt”
under the regulations.     See Defining and Delimiting the Exemptions for
Executive, Administrative, Professional, Outside Sales and Computer
Employees, 69 Fed. Reg. 22,122, 22,242 (Apr. 23, 2004) (as codified at 29 C.F.R.
pt. 541).
      This court has addressed the needed analysis in a few opinions.
Particularly relevant is a case in which we stated that the relevant distinction
“is between those employees whose primary duty is administering the business
affairs of the enterprise [and] those whose primary duty is producing the
commodity or commodities, whether goods or services, that the enterprise
exists to produce and market.” Dalheim v. KDFW-TV, 918 F.2d 1220, 1230
(5th Cir. 1990). Other circuits have thought to label this distinction as the
“administrative-production dichotomy, under which production employees
(whose job it is to generate the product or service the business offers to the
public) will not qualify for the exemption.” Foster v. Nationwide Mut. Ins. Co.,
710 F.3d 640, 644 (6th Cir. 2013). Some courts, though, have doubted, saying
such a distinction is more in keeping with the “industrial age” and not so much
“the modern service-industry context.” Roe-Midgett v. CC Servs., Inc., 512 F.3d
865, 872 (7th Cir. 2008).    Indeed, “[t]he line between administrative and
production jobs is not a clear one, particularly given that the item being
produced . . . is often an intangible service rather than a material good.” Davis
v. J.P. Morgan Chase & Co., 587 F.3d 529, 532 (2d Cir. 2009).
      Applying these concepts if not the analytical labels to our case, the
undisputed evidence is that the plaintiffs’ work requires continuous and
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regular contact with the company men at the drilling location where they are
assigned. The plaintiffs provide recommendations, anticipate the customer’s
concerns with the drilling mud, then address those concerns on M-I’s behalf.
Based on this evidence, the district court found the plaintiffs performed work
that “directly related to the general business operations of the employer or the
employer’s customers, which was their principal value to M-I and its business
of supplying drilling fluid systems engineered to improve, even optimize,
drilling performance to the oil industry while reducing costs.”
      It is true that Section 541.201(a) provides that the administrative
exemption applies to work relating to the “general business operations” of an
employer. What needs to be kept distinct, though, is that the exemption
applies when the employee is involved with “administering the business affairs
of the enterprise,” not with “producing the commodity” of the business.
Dalheim, 918 F.2d at 1230. Supplying the drilling-fluid systems seems more
related to producing the commodities than the administering of M-I’s business.
      The district court also found that “nearly all of [the plaintiffs’] working
time related directly to continually monitoring the mud for quality control, in
compliance with 29 C.F.R. § 541.201(b) . . . .” That section of the regulation
identifies functional areas that are directly related to management and
includes “quality control” in a list that also contains “areas such as tax; finance;
accounting; budgeting; auditing; insurance; . . . purchasing; procurement;” and
others. 29 C.F.R. § 541.201(b). The regulation’s reference to “quality control,”
particularly considering the list of which it is a part, seems to mean the quality
of the mud being provided to M-I’s customers and not with monitoring and
adding materials to the mud as it is being used in drilling wells to ensure that
its properties stay within the specifications set forth in the mud plan developed
by project engineers.
      The district court also determined that the plaintiffs’ work as mud
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                                  No. 16-20182
engineers was “directly related to the general business operations” because the
plaintiffs “acted as advisors or consultants to M-I’s customers, in compliance
with 29 C.F.R. § 541.201(c).” That regulation only sets forth two examples of
the types of employees that may be exempt: tax experts and financial
consultants. 29 C.F.R. § 541.201(c).
      We find an opinion from another Circuit to be instructive on the type of
work that an exempt advisor or consultant must perform. See Bratt v. Cnty. of
Los Angeles, 912 F.2d 1066, 1070 (9th Cir. 1990). In determining whether
probation officers fit within the regulation’s concept of advisor, that court held
this to be the test: “whether the activities are directly related to management
policies or general business operations.” Id. That is, the focus is not on a
general concept of advice or consultancy but rather on “policy determinations
[for] how a business should be run or run more efficiently . . . .” Id. Through
that lens, the probation officers were not clearly “engaged in ‘servicing’ a
business within the meaning of” the regulations. Id.
      Further support for this reasoning can be found in a 1997 opinion letter
issued by the Wage and Hour Division of the Department of Labor, which is
“entitled to respect” to the extent it is persuasive. See Christensen v. Harris
Cnty., 529 U.S. 576, 587 (2000). In responding to an inquiry on whether
background investigators fit within the FLSA’s administrative exemption, the
opinion letter clarified the type of advice an exempt employee provides: the
relevant regulation “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.” U.S. Dep’t of Labor, Wage & Hour Div., Op. Letter (Sept. 12, 1997).
Generally, this requires an exempt employee to participate “in important staff
functions of the employer or the employer’s clients or customers as opposed to
the production functions.” Id.
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                                    No. 16-20182
        Finally, one of our unpublished opinions explains in a useful context the
type of advisory role an exempt employee must perform. See Zannikos, 605 F.
App’x at 350. We held that the plaintiffs’ work as marine superintendents fit
within this element of the administrative exemption; the employees argued
they did not perform non-manual work directly related to the general business
operations of the employer’s customer. Id. at 353. Our analysis required us to
be fairly precise about the work:
        The plaintiffs’ work, including that relating to line blending,
        primarily included supervision, quality control, and ensuring
        compliance with applicable standards. They did not transfer oil,
        blend oil, or manufacture or sell petroleum products themselves.
        Instead, they oversaw these functions and provided [the
        employer’s] customers with inspection and operational support
        services. Such services are not considered production.

Id.
        We also found that the employees’ “primary duties included work in
several functional areas explicitly listed as administrative in Section
541.201(b), including quality control, safety, and legal and regulatory
compliance.” Id. Having “concluded that the plaintiffs performed non-manual
work directly related to the management of [the employer’s] customers,” we
deemed it “inconsequential” whether they performed the same task “directly
related to the management” of their employer. Id. at 354.
        There are significant distinctions between the work performed by these
mud engineers and the Zannikos marine superintendents. The latter oversaw
the work performed by the customers’ employees, contractors, and equipment.
Id. at 351. Mud engineers, on the other hand, neither assured compliance with
health and safety standards nor engaged in tasks likely to qualify as the
“general administrative work applicable to the running of any business.” See
Davis, 587 F.3d at 535. “[W]ork that [i]s primarily functional rather than

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                                  No. 16-20182
conceptual” does not meet the standard. See id. We conclude that the district
court erred in granting summary judgment on the issue of whether the
plaintiffs’ work could be classified as office or non-manual work directly related
to the general business operations of M-I’s customers.


II.     Discretion and Independent Judgment in Matters of Significance
        The final criterion for the administrative exemption requires that an
employee’s primary duty “include the exercise of discretion and independent
judgment with respect to matters of significance.” 29 C.F.R. § 541.202(a). The
phrase “matters of significance” is defined to “refer[] to the level of importance
or consequence of the work performed.” Id. Additionally, the regulations
require that the “exercise of discretion and independent judgment must be
more than the use of skill in applying well-established techniques, procedures
or specific standards described in manuals or other sources.” § 541.202(e).
Notably, “employees can exercise discretion and independent judgment even if
their decisions or recommendations are reviewed at a higher level.”
§ 541.202(c).
        The regulations provide a non-exclusive list of factors relevant to this
criterion. Included are “whether the employee has authority to formulate,
affect, interpret, or implement management policies or operating practices; . . .
whether the employee has authority to waive or deviate from established
policies and procedures without prior approval; [and] whether the employee
has authority to negotiate and bind the company on significant matters[.]”
§ 541.202(b). The employee’s degree of discretion must be considered “in the
light of all the facts involved in the particular employment situation in which
the question arises.” Id.
        The district court concluded that the matter of significance over which
the plaintiffs exercised the requisite discretion and independent judgment was
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the “quality control of the condition of the mud . . . .” The district court
determined that Dewan and Casey’s primary duty “involved first determining
the condition of the mud in various locations admittedly through a variety of
fairly standard tests” and then deciding “which of various additives and
treatments of the mud or what tradeoffs would optimize drilling performance
. . . .” In effect, the court reasoned that the engineers evaluated alternate
courses of action and thereby satisfied the need for exercising “discretion and
independent judgment,” which the relevant regulation describes as “the
comparison and the evaluation of possible courses of conduct, and acting or
making a decision after the various possibilities have been considered.”
§ 541.202(a).
      The district court also found that the plaintiffs’ work affected M-I’s
operating procedures, which is one of the non-exhaustive factors the
regulations identify.     The court based its determination on the fact that
although plaintiffs “strove to stay within the parameters of the mud plans
created by engineers in M-I’s offices, they could deviate from or go outside of
those parameters when conditions required them to” do so.
      Also relevant is whether the plaintiffs had “authority to make an
independent     choice,   free   from   immediate    direction    or   supervision.”
§ 541.202(c). The district court found that even though there were “distinctions
between Dewan and Casey’s experiences,” both mud engineers acted with
limited supervision and made independent choices.                The district court
considered that the regulation explicitly “does not require that the decisions
made by an employee have a finality that goes with unlimited authority and a
complete absence of review.”       Recommendations at times can suffice, and
occasional review by higher-level employees does not prevent a finding that
discretion and independent judgment are being exercised. See § 541.202(c).
      The plaintiffs disagree with the defendants’ argument that the plaintiffs
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“had the requisite discretion and independent judgment so long as they stayed
within the parameters outlined in the mud plan.” The plaintiffs rely on a non-
binding district court decision that rejected a similar argument involving the
work of a manufacturing engineer. See generally Elliott, 2015 WL 7302764.
There, the district court determined even though the employee “used his
experience and knowledge,” much of the manufacturing engineer’s work was
“routine or copy and paste.” Id. at *11.
      There is little evidence that the plaintiffs were given “authority to
formulate, affect, interpret, or implement management policies or operating
practices[.]” 29 C.F.R. § 541.202(b) (factor one).       Both Dewan and Casey
testified that they lacked such authority. Dewan stated that he “didn’t have
the authority to change what was in the mud program.” Instead, he could
“make recommendations based on the drilling — the drilling procedures that
were going on and all that, and then get approval if they wanted to change it.”
Casey agreed with the question that if he believed a change needed to be made
in order to stay in compliance with the drilling plan, “you have to raise that to
the people above you; right?”
      A reasonable jury could credit this testimony and find that the plaintiffs
exercised no discretion as mud engineers and merely “appl[ied] well-
established techniques, procedures or specific standards described in manuals
or other sources.” See id. § 541.202(e). By regulation, there is no exemption if
employees “simply apply well-established techniques or procedures described
in manuals or other sources within closely prescribed limits . . . .” Id. § 541.704.
Other Section 541.202(b) factors for which there was no evidence include
whether the employees had the authority to commit M-I in matters that have
significant financial impact, or negotiate and bind M-I on significant matters,
or represent M-I in handling complaints, arbitrating disputes, or resolving
grievances.
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      Moreover, a review of the plaintiffs’ responsibilities suggests that their
work involved little more than “the use of skill in applying well-established
techniques, procedures or specific standards described in manuals or other
sources,” § 541.202(e), and that they primarily performed “inspector-type
duties” consisting of “specialized work along standardized lines involving well-
established techniques and procedures[,] which may have been catalogued and
described in manuals or other sources,” Clark v. Centene Co. of Texas, L.P., 656
F. App’x 688, 692 (5th Cir. 2016) (unpublished) (quoting § 541.203(g)).
      This limited factual record could reasonably be interpreted to provide
two different understandings of the scope of the plaintiffs’ discretionary
authority and independent judgment. This is evidence that must be weighed
by a jury. Notably, a vast majority of this contrary evidence comes from the
plaintiffs’ own testimony. “To the extent the testimony of a witness who is also
a party may be impaired by party self-interest, it is ordinarily the role of the
jury—not the court on summary judgment—to discount it accordingly.”
Johnson v. Perez, 823 F.3d 701, 710 (D.C. Cir. 2016). This is such a case.
      However close the determination may be, M-I has not established its
affirmative defense beyond peradventure. See Smith, 827 F.3d at 420 n.4.
      We REVERSE and REMAND for further proceedings consistent with
this opinion.




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