United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50185

____________

Shawn Mondeck, Individually, and for Others Similarly Situated; 

Garrett Nichols, 

Plaintiffs—Appellants,

versus

LineQuest, L.L.C., 

Defendant—Appellee.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 7:19-CV-221

______________________________

Before Stewart, Dennis, and Southwick, Circuit Judges.

Per Curiam:*

Two employees sued their employer under the Fair Labor Standards 

Act for failure to pay overtime. The district court granted summary 

judgment in favor of the employer. We find genuine issues of material fact 

with respect to whether the roles of the two employees fulfill the 

“administrative exemption” to the Act. REVERSED and REMANDED.

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

June 14, 2023

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND

Garrett Nichols and Shawn Mondeck were employees of LineQuest, 

L.L.C., a “damage prevention” company. LineQuest specializes in 

providing “line locating, mapping, and hydro-excavation” services to its 

customers, which typically are oil and gas companies. Companies with

buried utilities in oilfields contract with LineQuest to ensure their sunken 

assets are not hit when there is digging in the oilfields.

Plaintiff Garrett Nichols worked as a “Line Locator” for LineQuest 

from November 2018 to September 2019 in west Texas and New Mexico. 

For most of his tenure, Nichols was assigned to perform line locating services 

for EnLink Midstream, a LineQuest customer. As a Line Locator, Nichols 

was responsible for locating buried utilities using an RD7100 tool and 

marking the buried assets with flags and paint. When Nichols located a line 

that planned digging might affect, he coordinated a time with the digging 

company to be present when the excavation occurred. Although Nichols 

observed the excavation and reported to EnLink whether the digging crew 

had followed protocol, he did not have authority to require the digging crew 

to follow proper procedures.

Plaintiff Shawn Mondeck worked for LineQuest from May until 

September 2019. He initially trained as a Line Locator before undergoing a

three-day training to become a Right of Way Technician. Right of Way 

Technicians observe the final phase of a pipeline construction project to 

ensure it is completed according to requisite standards. Mondeck was 

assigned to work with Medallion Midstream, a LineQuest customer. 

Mondeck observed the backfilling projects and filled out a report for 

Medallion detailing whether proper procedures were followed. Like Nichols, 

he did not have the authority to require the crew to follow proper procedures.

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In September 2019, Mondeck, for himself and others similarly 

situated, sued LineQuest. He alleged violations of the Fair Labor Standards 

Act (“FLSA”) for failure to pay overtime. 29 U.S.C. §§ 201, et seq. Nichols 

joined the lawsuit in December 2019; no other employees became plaintiffs. 

LineQuest moved for summary judgment, arguing plaintiffs were 

administrative employees exempt from overtime under the FLSA.

On August 3, 2021, the magistrate judge entered his Report and 

Recommendation, finding there were genuine issues of material fact 

regarding the application of the administrative exemption to both plaintiffs 

that precluded summary judgment. The district court disagreed and granted

summary judgment for LineQuest against both Nichols and Mondeck. The 

court held that the administrative exemption test had been met as a matter of 

law with respect to both plaintiffs because: (1) the FLSA salary basis test was 

satisfied; (2) Nichols’s and Mondeck’s primary duties each involved nonmanual work directly related to management or general business operations 

of the employer or employer’s customers; and (3) those primary duties 

involved the exercise of discretion and independent judgment in matters of 

significance. Plaintiffs timely appealed.

DISCUSSION

“We review a grant of summary judgment de novo, applying the same 

legal standards as the district court.” Adams v. All Coast, L.L.C., 15 F.4th 

365, 368 (5th Cir. 2021) (quotation marks and citation omitted). Summary 

judgment is appropriate when “the movant shows 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). “In a dispute about an FLSA 

exemption, the employer has the burden of establishing that the exemption 

applies by a preponderance of the evidence.” Adams, 15 F.4th at 368. 

“When summary judgment is sought on an affirmative defense . . . the 

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movant must establish beyond peradventure all of the essential elements of 

the claim or defense to warrant judgment in his favor.” Dewan v. M-I, L.L.C., 

858 F.3d 331, 334 (5th Cir. 2017) (emphasis in original) (quotation marks and 

citation omitted). “Because of the Act’s remedial nature, we narrowly 

construe its exemptions in favor of the employee.” Id.

Under the FLSA, an employee who works more than 40 hours in one 

workweek must be paid overtime compensation. Olibas v. Barclay, 838 F.3d 

442, 448 (5th Cir. 2016); 29 U.S.C. § 207. This requirement does not apply 

to “any employee employed in a bona fide executive, administrative, or 

professional capacity.” 29 U.S.C. § 213(a)(1). The administrative 

exemption applies to an employee: (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. § 541.200 (through December 31, 2019).1

The two plaintiffs were paid a weekly salary above the minimum of 

$455 per week, but they argue LineQuest engaged in impermissible 

“deductions” that rendered their pay structure ineligible to satisfy the

“salary basis” test of the administrative exemption. See 29 C.F.R. § 541.200; 

§ 541.602(a). The argument is based on LineQuest’s policy of not paying 

employees for sick days if they used up their vacation days or Paid Time Off 

(“PTO”). Such a pay structure is permissible under the exemption if “made 

in accordance with a bona fide plan, policy or practice of providing 

_____________________

1 As of January 1, 2020, the salary basis test was revised to require that an employee 

earn a minimum of $684 per week to qualify for the administrative exemption.

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compensation for loss of salary occasioned by such sickness or disability.” 29 

C.F.R. § 541.602(b)(2). Under LineQuest’s policy, employees could use 

PTO for sick days or sick leave. If PTO was exhausted, employees were not 

paid during sick leave. We agree with the district court that the plaintiffs’ 

arguments here fail, and this first requirement of the administrative 

exemption was satisfied.2

The administrative exemption also requires that the employee’s 

primary duty be (2) “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) “includes the exercise of discretion and 

independent judgment with respect to matters of significance.” 29 C.F.R. § 

541.200(a). To analyze those requirements, we obviously need to determine 

the employee’s primary duty. “The term ‘primary duty’ means the 

principal, main, major or most important duty that the employee performs.” 

29 C.F.R. § 541.700(a). “Determination of an employee’s primary duty must 

be based on all the facts in a particular case, with the major emphasis on the 

character of the employee’s job as a whole.” Id.3

As to primary duty, we first examine plaintiff Nichols’s duties. He 

was a Line Locator. The district court held that Nichols’s primary duty was 

_____________________

2 The plaintiffs also argue that LineQuest improperly docked their salaries if they 

could not work outside their normal schedule on Saturdays, which precludes their salaries 

from satisfying the salary basis test. See 29 C.F.R. § 541.602. This argument was not 

presented to the district court and is therefore forfeited. See Rollins v. Home Depot USA, 8

F.4th 393, 397 (5th Cir. 2021).

3 Among the factors to consider in defining the primary duty of an employee are (1) 

“the relative importance of the exempt duties as compared with other types of duties”; (2) 

“the amount of time spent performing exempt work”; “(3) the employee’s relative 

freedom from direct supervision”; and (4) “the relationship between the employee’s salary 

and the wages paid to other employees for the kind of nonexempt work performed by the 

employee.” 29 C.F.R. § 541.700(a).

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“non-manual and directly related to the management or general business 

operations of LineQuest’s customer, EnLink.” Nichols contends the record 

demonstrates a fact dispute about his primary duty, which, according to him,

was manually locating lines. Nichols highlights that, under LineQuest policy,

Line Locators in a municipal market do not qualify for the administrative 

exemption, whereas Line Locators for construction and backfilling 

operations do qualify. In making the “primary duty” determination, we are

to consider “the relationship between the employee’s salary and the wages 

paid to other employees for the kind of nonexempt work performed by the 

employee.” Id. According to Nichols, as a construction and backfilling Line 

Locator, he is “earning less than [the] non-exempt” municipal Line Locators

“for the same kind of work.”

The district court acknowledged that Line Locators in the municipal 

market are non-exempt. As a result, it concluded that “the question 

presented is whether Nichols, as a Line Locator for construction and 

backfilling operations in the oil and gas industry, performs his job duties in a 

distinctly different manner with a unique primary duty than that of a 

municipal Line Locator.” In other words, the court needed to determine 

“whether Nichols’s primary duty was something other than the general line 

location and flagging services provided by municipal Line Locators.” The 

court found that Nichols’s “primary duty” was not in physically locating 

lines; rather, he was a “site representative for surveillance,” which is “nonmanual and directly related to the management or general business 

operations of LineQuest’s customer.” In sum, the district court determined 

Nichols’s role fell within the administrative exemption.

We agree with Nichols that there is sufficiently conflicting evidence 

in the record that a reasonable jury could consider the Section 541.700(a) 

factors and find that Nichols’s primary duty was physically locating lines. 

Under Section 541.700(b), the “amount of time spent performing exempt 

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work can be a useful guide,” yet the record is unclear as to the amount of time 

Nichols spent line locating versus “surveilling”; Nichols’s testimony that he 

spent “80 percent” of his time inside his truck driving to job sites is not 

dispositive either way. We also agree with Nichols that the “relative 

importance” of his various duties is not clear from the record. See 29 C.F.R. 

§ 541.700(a). Although the LineQuest Chief Executive Officer stated 

Nichols’s assignments were “site surveillance,” Nichols’s declaration 

described his primary duty as “locat[ing] and mark[ing] buried utilities,”

while his deposition discussed both line locating and site surveillance duties.

4

For Nichols, then, there is a dispute of material fact regarding his primary 

duty that precludes summary judgment.

We now review the evidence of Mondeck’s primary duty. His job title 

was “Right of Way Technician.” Both parties highlight that Mondeck stated 

his responsibilities were to “observe the finalization of the construction of 

covering a pipeline” or to “observe the completion phase of Medallion 

pipeline construction projects (backfilling).” Mondeck states he was 

responsible for ensuring Medallion’s “rules and specifications” were 

followed, although, like Nichols, he did not himself have the authority to 

actually enforce the standards. At the end of each day, Mondeck filled out a 

_____________________

4 The district court also cited contracts, supposedly between EnLink and 

LineQuest, that defined “Site Surveillance” as “watch[ing] over and protect[ing] 

Company’s Facilities during unusual or extensive excavation projects (i.e., road widening 

projects, sewer projects, etc.) and providing such continuous on-site Locate Services.” 

We agree with Nichols that this does not necessarily demonstrate that the primary purpose 

of the contract was “to provide site supervision services,” nor does it necessarily show that 

Nichols’s “primary duty was observing contractors for compliance with regulations.” The

contract also defines “Locate Service” as “the process of determining the presence or 

absence of Company’s Facilities, their conflict with proposed excavations, and the Marking 

of the places and routes,” which Nichols contends was his primary duty. It is not clear 

from the contract how common these “unusual or extensive excavations projects” were 

that required “Site Surveillance.”

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report for Medallion regarding the backfilling work he observed that day. 

Though LineQuest characterizes Mondeck’s duty as to “oversee and 

supervise”— while the plaintiffs argue it was merely to “observe” — the 

rough contours of his duties are more or less clear, i.e., some combination of 

supervision and observation.5

The third administrative exemption factor 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. § 

541.200(a)(3). This “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). 

Relevant non-exclusive factors include whether the employee has authority 

to “formulate, affect, interpret, or implement management policies or 

operating practices,” “waive or deviate from established policies and 

procedures without prior approval,” and “negotiate and bind the company 

on significant matters.” 29 C.F.R. § 541.202(b). The degree of an 

employee’s discretion is considered “in the light of all the facts involved in 

the particular employment situation in which the question arises.” Id.

The district court found that both plaintiffs exercised discretion and 

independent judgment, then granted summary judgment for the defendant. 

The district court noted in particular that both Nichols and Mondeck (1) had 

“Stop Work Authority,” and (2) were each the only representative of 

LineQuest’s customer on the job site, where they performed duties without 

_____________________

5 The parties do dispute, however, that Mondeck’s primary duty was “directly 

related” to “management or general business operations,” i.e., element (2) of the 

administrative exemption. See 29 C.F.R. § 541.200(a)(2). Because we disagree with the 

district court’s holding that the plaintiffs’ primary duties satisfy the third element, we do 

not analyze whether Mondeck’s primary duty satisfied the second element. 

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immediate direction from a supervisor. The plaintiffs contend that the 

district court mischaracterized the level of discretion that accompanies 

“Stop Work Authority.” The plaintiffs also argue that under the relevant 

Section 541.202(b) factors it is not dispositive that they were often the only 

LineQuest representative on the job site. This is because, according to the 

plaintiffs, they did not have any actual authority to implement policies or

conduct operations of the business, nor did they possess any of the other 

responsibilities contemplated in Section 541.202(b).

We agree with the plaintiffs that, on this summary judgment record, a 

reasonable jury could determine that they did not exercise discretion and 

independent judgment on matters of significance. See 29 C.F.R. § 

541.202(a). The record indicates that LineQuest not only grants Stop Work 

Authority to every employee, but also that all employees have the “Authority 

and Responsibility to stop work for safety violations that could be a potential 

hazard” (emphasis added). “Section 541.202 clarifies that an employee does 

not exercise discretion or judgment in the relevant sense if his decisions are 

essentially ‘the use of skill in applying well-established techniques, 

procedures or specific standards described in manuals or other sources.’” 

Hobbs v. EVO Inc., 7 F.4th 241, 250 (5th Cir. 2021) (quoting 29 C.F.R. § 

541.202(e)). The fact that all employees had the responsibility to stop unsafe 

work — which the plaintiffs each exercised only once or twice during their 

monthslong tenure at LineQuest — is not sufficiently dispositive to grant 

summary judgment.

Moreover, we agree with the plaintiffs that there is insufficient 

evidence in the record that they possessed or exercised authority over 

matters of significance, regardless of whether they were the only LineQuest 

representative on the jobsite. The plaintiffs rely on the fact that neither had 

the “authority to require anyone [on the job site] to do anything,” that 

Mondeck underwent only “three days of field training” to become a Right of 

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Way Technician, and that neither had the authority to negotiate contracts or 

create or develop standards regarding the backfilling operations. See § 29 

C.F.R. 541.202(b). There is not enough in the record to conclude that 

Mondeck and Nichols possessed the level of authority necessary for a grant 

of summary judgment to LineQuest.

There are questions of material fact regarding Nichols’s primary duty 

and whether Mondeck’s and Nichols’s primary duties satisfy element (3) of 

the administrative exemption. We REVERSE and REMAND for 

proceedings consistent with this opinion.

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