IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20182

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 

United States Court of Appeals

Fifth Circuit

FILED

May 30, 2017

Lyle W. Cayce

Clerk

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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 adequately2 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 

 

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

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. 

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

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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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 factfinding, 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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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 incomegenerating 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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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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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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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 nonbinding 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] wellestablished 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 wellestablished 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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