Case: 17-50226     Document: 00514474718       Page: 1    Date Filed: 05/16/2018




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

                                                                              FILED
                                                                           May 16, 2018
                                     No. 17-50226
                                                                           Lyle W. Cayce
                                                                                Clerk
SCOT CARLEY, On Behalf of Himself and All Others Similarly Situated,

              Plaintiff - Appellee

v.

CREST PUMPING TECHNOLOGIES, L.L.C.,

              Defendant – Appellant


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


Before KING, HAYNES and HIGGINSON, Circuit Judges.
HAYNES, Circuit Judge:
      Crest Pumping Technologies, LLC (“Crest”) appeals the magistrate
judge’s 1 denial of its motions for judgment as a matter of law and a new trial.
A jury returned a verdict in favor of Scot Carley and Brandon Brown
(collectively, “Plaintiffs”), former employees of Crest, finding that Crest
wrongfully denied them overtime pay in violation of the Fair Labor Standards
Act (“FLSA”). On appeal, Crest argues that the trial court erred in not granting
it judgment as a matter of law (“JMOL”) or a new trial, because it was exempt
from FLSA’s overtime payment requirements. Crest also argues that it should



      1  Tried by consent before a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c) and Federal Rule of Civil Procedure 73.
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                                          No. 17-50226

have received a new trial because, inter alia, the court improperly placed the
burden on Crest to prove that the SAFETEA-LU Technical Corrections Act
(“Corrections Act”) did not except Plaintiffs from the Motor Carrier Act
(“MCA”) exemption.
       Because the magistrate judge incorrectly placed the burden of proof on
Crest as to the Corrections Act’s applicability, and Plaintiffs presented no
evidence to meet their burden of proving the weight of the vehicles they
operated, we VACATE and RENDER JUDGMENT for Crest. 2
                                     I.      Background
       Crest is a corporation providing downhole cementing and pump down
services for complex unconventional and conventional oil wells.                          Crest
employed Plaintiffs as cementers. 3             Carley was employed by Crest from
February 18, 2014, to June 10, 2014, while Brown was employed by Crest from
February 18, 2014, to October 19, 2014. After leaving their positions, Plaintiffs
filed this claim under FLSA, 29 U.S.C. §§ 201–19, specifically alleging a failure
to adequately compensate for overtime work as required under 29 U.S.C.
§ 207(a). Crest answered, alleging, inter alia, that Plaintiffs were exempt from
the overtime pay requirements of FLSA under the MCA exemption.                             The
parties have stipulated to the requisite facts establishing the MCA exemption 4;


       2Because we reverse and render on the burden of proof issue, we do not reach Crest’s
arguments regarding (1) the highly compensated employee exemption, (2) the trial court’s
charge for determining whether the Corrections Act applied, and (3) the trial court’s
overruling of Crest’s objection to testimony regarding Crest’s compliance with Department of
Transportation (“DOT”) regulations.
       3  The parties dispute the exact nature of Plaintiffs’ titles. For simplicity’s sake, we
refer to Plaintiffs as “cementers.” We make no determination as to Plaintiffs’ particular
titles; the title of an employee is not relevant to this case because duties, rather than title,
determine an employee’s classification under FLSA. See 29 C.F.R. § 541.2.
       4 The MCA exemption applies to employees whose maximum hours are set by the
Secretary of Transportation, being employees who are (1) employed by a motor carrier 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 passengers or property in interstate
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                                        No. 17-50226

therefore, the issue is whether Plaintiffs were otherwise not subject to the
exemption, as explained below.
       On September 12–14, 2016, a jury trial was held to determine Crest’s
liability.   Plaintiffs called defense witness David Crombie, founder and
president of Crest. He testified that cementers used only Ford F-350 vehicles
for their jobs, as those vehicles were required to carry the weight necessary for
work. Crombie testified that he located the vehicle assigned to Carley and that
it was an F-350 with a gross vehicle weight rating (“GVWR”) 5 of 11,500 pounds.
He made the determination based upon (1) the doorplate and (2) calling the
manufacturer and providing the vehicle’s VIN number. He testified that Crest
had sold the vehicle assigned to Brown, but that it was an F-350 identical to
Carley’s.    Crombie stated that he had provided the VIN number to the
manufacturer to determine that its GVWR was also 11,500 pounds.                              No
competent contrary evidence as to GVWR was presented.
       Plaintiffs questioned Crombie about an Internet Registration Renewal
that Crest had submitted to the Texas Department of Motor Vehicles for an F-
350, in which Crest represented that Plaintiffs’ vehicles’ “empty weight” was
7600 pounds and their “gross weight” was 9600 pounds. Crest’s counsel asked
Crombie to clarify the meaning of “gross weight” as compared to GVWR, and



or foreign commerce.” 49 U.S.C. § 31502(b); 29 C.F.R. § 782.2(a). The Supreme Court has
clarified that the exemption applies “to those employees and those only whose work involves
engagement in activities consisting wholly or in part of a class of work which is defined: (i) As
that of a driver, driver’s helper, loader, or mechanic, and (ii) as directly affecting the safety
of operation of motor vehicles on the public highways in transportation in interstate or foreign
commerce.” 29 C.F.R. § 782.2(b)(2) (citing Morris v. McComb, 

(1948), Pyramid
Motor Freight Corp. v. Ispass, 

(1947), and Levinson v. Spector Motor Serv., 

(1947)). Here, the parties stipulated that (i) “in their jobs at Crest, Brown and
Carl[e]y drove motor vehicles and . . . loaded and secured tools and equipment on Crest’s
motor vehicles,” and (ii) “Brown’s and Carl[e]y’s duties directly affected the safety of vehicles
operated in the interstate commerce.”
       5GVWR is “the value specified by the manufacturer as the loaded weight of a single
motor vehicle.” See 49 C.F.R. § 390.5T (effective June 15, 2018).
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Crombie explained that the two measurements are different.                    Thus, the
evidence of the vehicles’ “gross weight” was not evidence of their GVWR. 6
      At the close of Plaintiffs’ evidence, Crest moved for JMOL under Federal
Rule of Civil Procedure 50(a). Crest argued, inter alia, that the Corrections
Act did not except Plaintiffs from the MCA exemption because the Corrections
Act only applies if the GVWR of the vehicles operated by Plaintiffs was 10,000
pounds or less.      Because Plaintiffs had not refuted Crest’s evidence that
Plaintiffs’ vehicles had a GVWR of 11,500 pounds, no reasonable juror could
conclude that Plaintiffs were not subject to the MCA exemption. 7 The court
denied the motion. At the close of the evidence, Crest reiterated its JMOL
motion, which the court again denied.
      At the charge conference, the parties disputed the allocation of the
burden of proof with respect to the Corrections Act. Crest argued that the jury
charge should place the burden on Plaintiffs, as employees, to prove that the
Corrections Act excepts them from the MCA exemption. However, the court
left the charge as written, requiring Crest to prove that the Corrections Act did
not apply to Plaintiffs.
      The jury returned a verdict in favor of Plaintiffs, finding that Crest did
not prove that Plaintiffs were exempt from overtime compensation under the
MCA exemption. The magistrate judge subsequently entered final judgment
for Plaintiffs. Crest timely moved for JMOL under Rule 50(b) and argued, in
the alternative, for a new trial under Rule 59(a). Crest’s motion for a new trial



      6  Plaintiffs also asked questions about compliance with DOT regulations regarding
weight. We conclude that this line of questioning does not provide evidence of these
particular trucks’ GVWR.
      7  Crest also argued that Plaintiffs could be exempt under either the highly
compensated employee exemption or the executive exemption to FLSA. Because we do not
reach the former here and the latter was not raised on appeal, the facts surrounding those
arguments are not discussed further.
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stated, inter alia, that the jury’s conclusion regarding the MCA exemption was
against the great weight of the evidence and that the burden of proof should
not have been placed on it with respect to the Corrections Act. The court denied
both motions. 8 Crest timely appealed both denials.
                                II. Standard of Review
      “We review de novo the district court’s denial of a motion for judgment
as a matter of law, applying the same standard as the district court.” Heck v.
Triche, 

, 272 (5th Cir. 2014) (quoting Foradori v. Harris, 

, 485 (5th Cir. 2008)). “A motion for judgment as a matter of law in a case
tried by a jury, however, ‘is a challenge to the legal sufficiency of the evidence
supporting the jury’s verdict.’” 

(quoting Hiltgen v. Sumrall, 

, 699 (5th Cir. 1995)). Therefore, the standard of review is “especially
deferential,” and “we draw all reasonable inferences and resolve all credibility
determinations in the light most favorable to the nonmoving party.” 

(quoting Flowers v. S. Reg’l Physician Servs. Inc., 

, 235 (5th Cir.
2001), and 

). We review a trial court’s decision to
deny a new trial for abuse of discretion. Pryor v. Trane Co., 

,
1026 (5th Cir. 1998) (per curiam).
                                    III.   Discussion
      Section 207 of FLSA requires an employer to pay overtime compensation
to employees working more than forty hours a week, subject to certain
statutory exemptions. 29 U.S.C. § 207(a)(1); 29 U.S.C. § 213(a)–(b). Crest’s
motions here relate to exemptions to FLSA’s overtime requirement in § 207.
The Supreme Court recently clarified that courts are to give FLSA exemptions
“a fair reading,” as opposed to the narrow interpretation previously espoused


      8The parties dispute the exact nature of the magistrate judge’s disposition of these
two motions. Because any consequences of that dispute relate to the highly compensated
employee exemption, which we do not reach today, we need not reach that issue.
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by this and other circuits. Encino Motorcars, LLC v. Navarro, 

,
1142 (2018).
       The MCA exemption to FLSA overtime requirements appears at
29 U.S.C. § 213(b)(1), which exempts employees subject to Secretary of
Transportation standards from overtime compensation. The Supreme Court
has reasoned that the purpose of the MCA exemption was primarily to ensure
that operators of vehicles affecting highway safety were regulated by an entity
with a greater understanding of the particular safety concerns.                 See, e.g.,
Morris v. McComb, 

, 436 (1947).
       After June 6, 2008, the Corrections Act went into effect, designating a
class of employees to which the MCA exemption does not apply. That class
includes “covered employees,” who are those employees:
             (1) who [are] employed by a motor carrier or motor
                 private carrier . . . ;
             (2) whose work, in whole or in part, is defined—
                  (A) as that of a driver, driver’s helper, loader, or
                      mechanic; and
                  (B) as affecting the safety of operation of motor
                      vehicles weighing 10,000 pounds or less in
                      transportation on public highways in
                      interstate or foreign commerce, . . . ; and
             (3) who perform[] duties on motor vehicles weighing
                 10,000 pounds or less.
       SAFETEA-LU Technical Corrections Act of 2008, Pub. L. No. 110-244,
§ 306(a), (c), 122 Stat. 1572, 1621 (June 6, 2008) 9; see also Allen v. Coil Tubing
Servs., L.L.C., 

, 291 n.6 (5th Cir. 2014). Relevant to this appeal,
the Corrections Act does not expressly answer two questions: (1) who bears the
burden of proving the weight of the motor vehicles, and (2) whether “weight”



      9    The relevant portion of the Corrections Act was codified in the notes section of
29 U.S.C. § 207 (Applicability of Fair Labor Standards Act requirements and limitation on
liability).
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under the Corrections Act refers to GVWR or another measure of weight.
A. Burden of Proof
      The text of the Corrections Act does not clearly allocate the burden of
proving whether the vehicles weigh 10,000 pounds or less, and we have no
precedent deciding the issue. The circuit and district court cases addressing
the Corrections Act did not need to resolve any question regarding the burden
of proof. See, e.g., Schilling v. Schmidt Baking Co., Inc., 

(4th Cir.
2017); Aikins v. Warrior Energy Servs. Corp., No. 6:13-CV-54, 

, at *4 n.3 (S.D. Tex. Mar. 17, 2015)).
      There is no dispute that Plaintiffs bore the initial burden of proving that
they were covered under FLSA’s overtime pay requirement, see Johnson v.
Heckmann Water Res. (CVR), Inc., 

, 630 (5th Cir. 2014), and Crest
bore the burden of proving that the MCA exemption applied in this case, see
Mitchell v. Ky. Fin. Co., 

, 291 (1959). The dispute here is who
bears the burden of proving the weight of vehicles under the Corrections Act.
      Plaintiffs argue that the Corrections Act, though codified separately
from the MCA exemption, is analogous to exclusionary language contained
within exemptions under 29 U.S.C. § 213, which the employer bears the burden
of proving.   See, e.g., 29 U.S.C. § 213(a)(6) (reading, in part, that wage
requirements do not apply to “any employee employed in agriculture . . . if such
employee is employed by an employer who did not, during any calendar quarter
during the preceding calendar year, use more than five hundred man-days of
agricultural labor” (emphasis added)). But Plaintiffs’ examples all fall within
the group of “Exemptions” listed under 29 U.S.C. § 213. On the other hand,
the Corrections Act was codified under 29 U.S.C. § 207, which sets out FLSA
standards that Plaintiffs bear the burden of proving lack of compliance by an
employer. In other words, the Corrections Act defines a “covered employee” in
a statute subsection under which the plaintiff has the burden of proof for FLSA

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coverage. See 

. Although an employer more logically
should bear the burden of proving an exemption from FLSA, here, the disputed
provision is not codified as an exemption but, rather, under the provision
defining when FLSA mandates overtime pay.               This statutory structure
indicates that the Corrections Act is not meant to be read in the same way as
exclusionary language within a FLSA exemption.
      Our decision in Samson v. Apollo Resources, Inc., 

(5th Cir.
2001) is instructive. In Samson, we determined whether the employee or
employer bore the burden of proving compliance with an approved method of
paying overtime under 29 U.S.C. § 

. We held that, because
the payment method “is one method of complying with the overtime payment
requirements of 29 U.S.C. § 207(a)(1) [and] [i]t is not an exemption to it . . . the
employee bears the burden of proving that the employer failed to properly
administer the [overtime payment] method.” 

whether
the method of paying overtime was a way to meet 29 U.S.C. § 207(a) or a way
to exempt oneself from § 207(a). See 

Corrections Act is similarly
not an exemption from § 207(a); rather, it codifies conditions under which
§ 207(a) requires overtime pay notwithstanding the MCA exemption.
Sampson’s logic thus indicates that the burden of proof is more appropriately
placed on Plaintiffs here, as compliance with the Corrections Act is of a piece
with compliance with § 207(a), rather than a way to exempt oneself from
§ 207(a) as per an exemption enumerated under 29 U.S.C. § 113.
      We hold that the burden of proof should have been placed on Plaintiffs.
Therefore, the trial court erred in allocating the burden of proving the
Corrections Act to Crest.
B. JMOL
      Because the burden of proving the weight of the vehicles was incorrectly
allocated, we must determine whether this error matters to this case. For

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starters, is there any competent evidence to satisfy Plaintiffs’ burden? If they
failed to present any evidence supporting their burden, JMOL should have
been granted. See Nobach v. Woodland Vill. Nursing Ctr., Inc., 

,
379 (5th Cir. 2015).
       Crest argues that Plaintiffs did not meet their burden, because they
presented no evidence that the vehicles operated by them had a GVWR of
10,000 pounds or less. Plaintiffs, for their part, do not point to competent
evidence of a lower GVWR but do argue that GVWR is not the proper measure
of weight, arguing that actual, unloaded weight should have been used. Had
the magistrate judge applied that standard, Plaintiffs argue, they presented
uncontroverted evidence of the actual, unloaded weight. 10 Therefore, even if
the burden of proof was incorrectly allocated, the error was harmless.
       We first turn to the proper measure of weight. The Corrections Act does
not expressly define “weight.” See Corrections Act § 306(c), 122 Stat. at 1621.
Statutory language “should be taken as carrying its ordinary meaning unless
the statute indicates the contrary.” Sinkler v. Mo. Pac. R.R. Co., 

,
334 (1958). Some district courts have thus analyzed the term “weight” as the
“put on the scale” weight as the truck leaves the factory. See, e.g., Garcia v. W.
Waste Servs., Inc., 

, 1258–59 (D. Idaho 2013); Glanville v.
Dupar, Inc., Civ. A. No. H-08-2537, 

, at *8 (S.D. Tex. Sept.
25, 2009).     Other courts, including the only circuit court to address the
question, have applied GVWR as the measure of weight under the Corrections



       10We note that, before trial, the magistrate judge determined that GVWR was the
appropriate measure of weight of the vehicles. Therefore, Crest did not have an incentive to
counter any of Plaintiffs’ evidence with respect to actual vehicle weight. Further, Crest
contends that Plaintiffs did not put on evidence of actual, unloaded weight. Both of these
issues only arise if actual, unloaded weight is the proper measure of weight in this case. As
explained infra, we conclude that GVWR, and not the actual, unloaded weight, is the proper
measure of weight.
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                                        No. 17-50226

Act. See, e.g., McCall v. Disabled Am. Veterans, 

, 966 (8th Cir.
2013); Wilkinson v. High Plains Inc., --- F. Supp. 3d --- , 

, at
*4 (D.N.D. Mar. 1, 2018); Roche v. S-3 Pump Serv., Inc., 

,
447 (W.D. Tex. 2016). 11 We must determine which approach is proper.
       The trial court relied on the Department of Labor’s (“DOL”) Wage and
Hour Division Field Assistance Bulletin 12 (the “Bulletin”) published in
response to the Corrections Act to determine that weight should be measured
by GVWR. The Bulletin states that the Wage and Hour Division “will continue
to use the gross vehicle weight rating” to determine the standard for
“[w]eighing 10,000 pounds” under the Corrections Act. Bulletin at 2. The trial
court determined that the Bulletin was entitled to deference “because it
represents [the] DOL’s interpretation of statutory provisions that it is charged
with enforcing” and “is reasonable because it leads to certainty in applying the
[Corrections Act] and it is consistent with the Secretary of Transportation’s
statutory and regulatory framework.”
       Applying Skidmore 13 deference to the Bulletin, we agree with the Eighth
Circuit on this analysis. See Humana Health Plan, Inc. v. Nguyen, 

, 1027 n.5 (5th Cir. 2015) (Skidmore deference applies to such bulletins).
Under Skidmore, the deference afforded to the Bulletin “depends on the
thoroughness evident in [the DOL’s] consideration, the validity of its



       11 Some courts have also stated that they measured weight by the “gross vehicle
weight.” See Childress v. Ozark Delivery of Mo. L.L.C., 

, 1136 (W.D. Mo.
2015); Miller v. Prof’l Transp., Inc., No. 3:09-CV-0111-RLY-WGH, 

, at *4
(S.D. Ind. Aug. 25, 2010). “Gross vehicle weight” is distinct from GVWR, and neither party
argued for its application here. See 49 U.S.C. § 31132(1) (defining a “commercial motor
vehicle” as, in part, a vehicle with “a gross vehicle weight rating or gross vehicle weight of at
least 10,001 pounds, whichever is greater” (emphasis added)).
       12 UNITED STATES DEPARTMENT OF LABOR, FIELD ASSISTANCE BULLETIN NO. 2010-2
(Nov. 4, 2010), https://www.dol.gov/whd/FieldBulletins/FAB2010_2.pdf.
       13   Skidmore v. Swift & Co., 

(1944).
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                                       No. 17-50226

reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control.” See Baylor
Cty. Hosp. Dist. v. Price, 

, 261 (5th Cir. 2017) (quoting Skidmore v.
Swift & Co., 

, 140 (1944)). In light of these considerations, we
analyze the history of the statutory scheme to determine whether deference to
the Bulletin was warranted. We agree with the Eighth Circuit (and the district
court opinion it analyzed) that the evolution of this statute supports the
conclusion that GVWR is the proper measure of weight. See 

–66; McCall v. Disabled Am. Veterans Ernestine Schumann-Heink Mo.
Chapter 2, No. 11-1298-CV-W-ODS, 

, at *2–3 (W.D. Mo. July
27, 2012). 14
       We conclude that the magistrate judge did not err in deferring to the
Bulletin’s mandate to measure weight using GVWR. Thus, we must determine
whether Plaintiffs put on evidence of the GVWR of their vehicles to meet their
burden of proof.
       Because this was a jury trial, we cannot reverse “unless the jury’s factual
finding[] [that the GVWR of the vehicles operated by Plaintiffs was 10,000
pounds or less is] not supported by substantial evidence.” See Baisden v. I’m



       14 Notably, soon after the MCA’s passage, the Supreme Court seemingly rejected the
weight measurement argued for by Plaintiffs here: the actual, unloaded weight. See Maurer
v. Hamilton, 

(1940). Although, in Maurer, the parties conceded that “size and
weight of motor vehicles” included the size and weight of both the vehicle and any load, the
Court reasoned that the weight of the unloaded vehicle could not be the proper measure of
the weight of a motor 

. Noting that the purpose of the MCA was to
avoid “the major problems of safety and use of the highways,” it would be “useless” to use the
“sizes and weights of motor vehicles, apart from their load” as the measure of weight affecting
highway safety. 

earliest regulations in response to the MCA appear to have
endorsed that view. These regulations use the term “gross weight” instead of “weight” alone,
indicating that the vehicle and its cargo were used to measure weight. See, e.g.,
Establishment of Chapter, 33 Fed. Reg. 19,700, 19,728 (Dec. 25, 1968); Safety Regulations, 2
Fed. Reg. 113, 117 (Jan. 22, 1937).


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Ready Prods., Inc., 

, 499 (5th Cir. 2012) (quoting Am. Home
Assurance Co. v. United Space Alliance, LLC, 

, 488 (5th Cir.
2004)). We find no legally cognizable evidence provided by Plaintiffs to refute
Crest’s evidence that the GVWR of the vehicles was more than 10,000 pounds.
Plaintiffs presented no evidence of the GVWR of the vehicles they operated.
The only evidence related to weight that Plaintiffs introduced was (1) Texas
Certificates of Title showing that the “weight” of Plaintiffs’ F-350s was 7600
pounds, and (2) Internet Registration Renewals completed by Crest showing
Plaintiffs’ vehicles’ “empty weight” as 7600 pounds and “gross weight” as 9600
pounds.      Neither of those measurements constitutes GVWR.                          Because
Plaintiffs put on no legally cognizable evidence of GVWR, Crest is entitled to a
remedy based upon the improper application of the burden of proof as to the
weight of the vehicles operated by Plaintiffs.
       Ordinarily, if a trial court fails to grant a defendant’s motion for JMOL
when warranted, we will vacate the judgment. See, e.g., City of San Antonio v.
Hotels.com, L.P., 

, 724 (5th Cir. 2017); Arsement v. Spinnaker
Expl. Co., LLC, 

, 244 (5th Cir. 2005) (“Because JMOL should have
been granted [to] defendants, we need not reach their new trial claims.”). Here,
because Plaintiffs did not present any legally sufficient evidence at trial with
respect to the GVWR of the vehicles being 10,000 pounds or less, rendition is
appropriate. 15 Thus, we VACATE and RENDER judgment for Crest.



       15 There could be situations where the trial court’s ruling regarding burden of proof so
affects the trial that it would be unjust to simply render, such that a new trial is warranted.
Here, because the magistrate judge did not allocate the burden of proof until after the parties
presented their evidence, Plaintiffs had every opportunity and incentive to develop their
evidence of GVWR. However, Plaintiffs have pointed to no competent evidence of a materially
lower GVWR. This is not a close case. Thus, there is no inequity to Plaintiffs from not
granting a new trial here. Cf. Montgomery Ward & Co. v. Duncan, 

, 251 (1940)
(noting that whether “the trial was not fair” is a consideration in a trial court’s discretion to
grant a new trial); O’Neil v. W. R. Grace & Co., 

, 914 (5th Cir. 1969) (noting that
an improper charge to the jury is grounds for a new trial and that a new trial should be
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                                      No. 17-50226




granted when the verdict results from “the jury receiving a distorted, incorrect, or an
incomplete view of the operative facts, or some undesirable element obtruded itself into the
proceedings creating a condition whereby the giving of a just verdict was rendered difficult
or impossible”).
                                            13