     Case: 18-20603      Document: 00514921457         Page: 1    Date Filed: 04/18/2019




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


                                    No. 18-20603
                                                                                FILED
                                                                            April 18, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
KOREY RYCHORCEWICZ, Individually and on behalf of similarly situated
individuals,

              Plaintiff - Appellant

v.

WELLTEC, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 4:16-CV-2


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM:*
       The district court held that Plaintiff-Appellant Korey Rychorcewicz and
those he purports to represent are exempt from the Fair Labor Standards Act’s
(“FLSA”) overtime requirements based on the Motor Carrier Act’s (“MCA”)
exemption of operators of vehicles that affect highway safety. We agree that
the plaintiffs are exempt and affirm.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-20603
                          I. FACTUAL BACKGROUND
      Defendant-Appellee Welltec, Inc. is an international oil and gas company
that provides well technologies and solutions to optimize its clients’ oil and gas
production and increase reservoir drainage. Welltec is headquartered in Katy,
Texas and during the class period had locations in Fort Worth, Texas; San
Antonio, Texas; Minot, North Dakota; Houma, Louisiana; Fort Collins,
Colorado; Bridgeville, Pennsylvania; Cranberry Township, Pennsylvania; and
Deadhorse, Alaska. Welltec is registered with the U.S. Department of
Transportation as a motor carrier to transport oil-field equipment, machinery,
and large objects.
      Korey Rychorcewicz worked for Welltec as a field engineer. Such
engineers provided on-site intervention services to maintain Welltec’s
customers’ well sites. Their duties included “rigging up and rigging down a
Welltec tractor, which gets tools and equipment in and out of a deep well,
operating   oilfield   machinery,    and    providing   other   troubleshooting,
maintenance, and intervention services.” Field engineers worked out of
assigned Welltec offices and drove company vehicles from their assigned offices
to customers’ well sites. Welltec’s monthly work reports show that the plaintiffs
regularly drove across state lines to perform their duties.
      Rychorcewicz sued Welltec, alleging that it violated the Fair Labor
Standards Act by misclassifying him and members of a class of similarly
situated field engineers as exempt employees. After the district court
conditionally certified the class, Welltec moved for summary judgment. It
contended that the plaintiffs were properly exempt from the FLSA’s overtime
requirements because they satisfied the MCA’s exemption for those employees
(1) “whom the Secretary of Transportation has power to establish




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                                     No. 18-20603
qualifications and maximum hours of service” 1 and (2) who “engage in
activities of a character directly affecting the safety of operation of motor
vehicles in the transportation . . . of property in interstate commerce.” 2
      In a thorough opinion, the magistrate judge recommended granting
summary judgment for Welltec because (1) it is a motor carrier under the MCA
and (2) the plaintiffs engaged in activities directly affecting the operational
safety of motor vehicles in the transportation of property in interstate
commerce. The plaintiffs objected to that recommendation, but the district
court adopted it in full and dismissed the case. The plaintiffs timely appealed.
                             II. STANDARD OF REVIEW
      We review the district court’s grant of summary judgment de novo. 3 We
review the evidence “in the light most favorable to the nonmovant, drawing all
reasonable inferences in the nonmovant’s favor.” 4
      Welltec has the burden of proving that the MCA’s exemption applies. 5
“The Supreme Court recently clarified that courts are to give FLSA exemptions
‘a fair reading,’ as opposed to the narrow interpretation previously espoused
by this and other circuits.” 6
      The SAFETEA-LU Technical Corrections Act of 2008 (“Technical
Corrections Act”) designates a class of employees to which the MCA exemption
does not apply. 7 It states that the MCA exemption does not apply to employees
who (1) are employed by a motor carrier and (2) perform duties on motor
vehicles weighing 10,000 pounds or less. 8 The plaintiffs have the burden of



      1 29 U.S.C. § 213(b)(1).
      2 29 C.F.R. § 282.2(a).
      3 Luv N’ Care, Ltd. v. Groupo Rimar, 844 F.3d 442, 446–47 (5th Cir. 2016).
      4 Songer v. Dillon Res. Inc., 618 F.3d 467, 471 (5th Cir. 2010).
      5 Carley v. Crest Pumping Techs. L.L.C., 890 F.3d 575, 579–80 (5th Cir. 2018).
      6 Id. at 579 (citing Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018)).
      7 Pub. L. No. 110–244, § 306(a), (c).
      8 Id.

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                                   No. 18-20603
establishing that the weight of Welltec’s vehicles disqualifies them from the
MCA’s exemption. 9 To carry this burden, they must show that they performed
their duties on vehicles weighing less than 10,001 pounds.
                                   III. ANALYSIS
      The plaintiffs contend that (1) the MCA does not apply to the field
engineers who worked at Welltec’s locations offshore and in Alaska, and (2)
field engineers fall under the Technical Corrections Act’s exception to the
MCA’s exemption because they sometimes drive light vehicles. The magistrate
judge considered these contentions but rejected them in a detailed opinion. We
agree with the magistrate judge’s reasoning and conclusions.
A.    The MCA’s Exemption
      The FLSA generally requires employers to pay employees who work
more than forty hours in a workweek at least one and one-half times the
employees’ regular rate for each hour in excess of forty. 10 The FLSA exempts
from the overtime requirement employees “whom the Secretary of
Transportation has power to establish qualifications and maximum hours of
service pursuant to the [MCA].” 11 The MCA in turn allows the Secretary of
Transportation to promulgate regulations to define these exempt employees. 12
The relevant regulation states:
      (1) [a]re employed by carriers whose transportation of passengers
      or property by motor vehicle is subject to [DOT] jurisdiction under
      section 204 of the [MCA] . . . and (2) engage in activities of a
      character directly affecting the safety of operation of motor
      vehicles in the transportation on the public highways of




      9 Carley, 890 F.3d at 579.
      10 29 U.S.C. § 207(a)(1).
      11 29 U.S.C. § 213(b)(1).
      12 49 U.S.C. § 31502(b).

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                                       No. 18-20603
       passengers or property in interstate or foreign commerce within
       the meaning of the [MCA]. 13

       The magistrate judge determined that the field engineers met both
requirements. The judge concluded that Welltec is subject to the DOT’s
jurisdiction because it is a registered motor carrier. The judge also concluded
that field engineers did engage in activities directly affecting the safety of
operation of motor vehicles in interstate commerce because they were “likely
to be . . . called upon in the ordinary course of [their] work to perform . . . safety-
affecting activities” and regularly drove in interstate commerce.
       The plaintiffs challenge the magistrate judge’s conclusion that field
engineers engage in activities that directly affect the operational safety of
motor vehicles in the transport of property in interstate commerce. 14 They
contend that a subset of field engineers—specifically, those who worked in
Welltec’s Alaska location and offshore from Welltec’s Houma, Louisiana
location—were not called on to drive across state lines.
       As the magistrate judge explained, our precedent requires courts to
evaluate the MCA’s applicability on a company-wide basis rather than
employee-by-employee. 15 Even if a few individual class members (here, 5 out
of the 52) never drive interstate, that is not the relevant inquiry. Instead, we
consider whether field engineers, on a company-wide basis, “could reasonably



       13  29 C.F.R. § 782.2(a); see Allen v. Coil Tubing Servs., L.L.C., 755 F.3d 279, 282–86
(5th Cir. 2014) (explaining the statutory and regulatory framework).
        14 The plaintiffs do not appeal the magistrate judge’s finding that Welltec qualifies as

a motor carrier subject to the DOT’s jurisdiction.
        15 Allen, 755 F.3d at 285–86, 288 (“[T]his court’s precedent effectively precludes an

employee-by-employee analysis.”); Songer v. Dillon Res., Inc., 618 F.3d 467, 476 (5th Cir.
2010); see also Amaya v. NOYPI Movers, L.L.C., 741 F. App’x 203, 206 (5th Cir. 2018)
(collecting authority and stating that “when evaluating the nature of work from a class-wide
perspective, we do not require a particularly high concentration of qualifying work in order
to meet the MCA exception”); Barefoot v. Mid-Am. Dairymen, Inc., No. 93-1684, 1994 WL
57686 (5th Cir. 1994) (per curiam).
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have been expected to drive in interstate commerce consistent with their job
duties.” 16
       Under that framework, the magistrate judge considered (1) the field
engineers’ job descriptions required that they could be called on regularly to
make trips in interstate commerce, (2) undisputed “testimony from Plaintiffs
that they regularly worked and traveled to bases in other states in the course
of their position as field engineers,” (3) field engineers often moved to different
satellite offices and drove interstate, and (4) “monthly work reports [that]
show[ed] that in almost every month of the relevant period, Plaintiffs engaged
in interstate travel.” This evidence amply supports the magistrate judge’s
conclusion that field engineers reasonably could have expected to drive across
state lines. 17
       We agree that the plaintiffs are exempt from the FLSA’s overtime
requirements under the MCA.
B.     The Technical Correction Act’s Exception to the MCA Exemption
       In the Technical Corrections Act, Congress codified the “conditions under
which [the FLSA] requires overtime pay notwithstanding the MCA’s
exemption.” 18 The Act excepts employees whose duties “affect[] the safety of
operation of motor vehicles weighting 10,000 pounds or less in transportation
on public highways in interstate or foreign commerce.” 19 We recently explained
in Carley v. Crest Pumping Technologies, L.L.C. that (1) the plaintiffs have the
burden of showing that the vehicles weighed less than 10,001 pounds and (2)
the relevant measurement of weight is a vehicle’s gross vehicle weight rating



       16 Songer, 618 F.3d at 476.
       17 See Amaya, 741 F. App’x at 206 (“[W]e evaluate the work of the employees on a
class-wide basis, ‘even if, in doing so, the effect is to apply the MCA exemption to employees
who rarely, or never, engage in interstate commerce.’” (quoting Allen, 755 F.3d at 287)).
       18 Carley, 890 F.3d at 580.
       19 Pub. L. No. 110–244.

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                                           No. 18-20603
(“GVWR”), rather than its weight when empty. 20 The plaintiffs would fall
under the Act’s exception if their work affected the safety of vehicles with
GVWRs under 10,001 pounds.
        The magistrate judge concluded that the plaintiffs did not meet this
burden for two reasons. First, the plaintiffs’ evidence on the vehicles’ GVWRs—
website links stating the GVWR data for particular makes and models of
vehicles—was not competent because, without the year or VIN number of the
vehicles, that evidence does not show the actual GVWRs for the vehicles the
plaintiffs drove. Second, even if the GVWRs for those vehicles were known and
were under 10,001 pounds, the evidence proves that the plaintiffs only
occasionally drove personal and rental vehicles. This amounts to de minimis
use.
        The plaintiffs challenge the magistrate judge’s conclusion that the
Technical Correction Act’s exception to the MCA’s exemption does not apply to
them. In support of this claim, they cite several examples of employees
occasionally driving personal or rental vehicles.
        We agree with the magistrate judge. The plaintiffs have neither met
their burden of showing that the GVWRs of the vehicles were under 10,001
pounds nor proved that they drove personal or rental vehicles on more than de
minimis basis. The record shows that (1) the plaintiffs took hundreds of trips
in vehicles with GVWRs more than 10,000 pounds and (2) most of the vehicles
in Welltec’s fleet had GVWRs of more than 10,000 pounds. The plaintiffs did
not carry their burden under the Technical Corrections Act. They therefore do
not fall under that act’s exception to the MCA’s exemption.
                                      IV. CONCLUSION
        We AFFIRM the district court’s judgment.


        20   Carley, 890 F.3d at 579–82.
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