Thomas v. Quikrete Cos., LLC (Feb. 26, 2026)

Case details
Full caption
David Thomas v. The Quikrete Companies, LLC
Country
United States
Jurisdiction
Federal
Decided
Feb. 26, 2026
Disposition
Motion Granted
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 594760Only the Westlaw citation is currently available.United States District Court, W.D.Texas, San Antonio Division.DAVID THOMAS, INDIVIDUALLY AND ONBEHALF OF SIMILARLY SITUATED INDIVIDUALS;PETE GONZALESJR., EUNICE CARTER,RODOLFO LOPEZ, BENJAMIN BURRS, JOHNHERNANDEZ, RAMIRO . ROCHA, TIMOTHYGODOY, FRANCISCO PALAFOS, FRANCISCOPALAFOS, TOICE WALKER, DANIEL CERDA,JAMES ALEXANDER, FRANK REYES, LOUISM. YANEZIV, ALEJANDRO CERDA, DANIELQUINTANILLA, DANTE FREEMAN, JOHN RAMOS,JOSE GRACIA, JOSE REYNA, MARCEL SWEATJR.,NATHAN INIGUEZ-JACO, RAMON RODRIGUEZ,RUBEN HEREDIA, SHELBY LAVERGNE,SIERRA SCARBOROUGH, STANLEY JACKSON,BRADLEY HALL, TERRANCE WILLIAMS,CHRISTIAN RIOS, RENARD GREENFIELD,BRYAN GAYTAN, JAYCEE GOODE, ARTHURRAMIREZ, MICHAEL HERNANDEZ, RUBENCANU, MARIO PALOMO, STEVEN BELL, Plaintiffs,v.THE QUIKRETE COMPANIES, LLC, Defendant.SA-23-CV-00638-FB|Filed 02/26/2026Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Attorneys and Law FirmsTrang Quoc Tran, Tran Law Firm L.L.P., Houston, TX,for Plaintiffs David Thomas, Pete Gonzales Jr., EuniceCarter, Rodolfo Lopez, Benjamin Burrs, John Hernandez,Ramiro Rocha, Timothy Godoy, Francisco Palafos, ToiceWalker, Daniel Cerda, James Alexander, Frank Reyes, LouisM. Yanez IV, Alejandro Cerda, Daniel Quintanilla, DanteFreeman, John Ramos, Jose Gracia, Jose Reyna, MarcelSweat Jr., Nathan Iniguez-Jaco, Ramon Rodriguez, RubenHeredia, Shelby Lavergne, Sierra Scarborough, StanleyJackson, Bradley Hall, Terrance Williams, Christian Rios,Renard Greenfield, Arthur Ramirez, Michael Hernandez,Ruben Canu, Mario Palomo, Steven Bell.Tim Tynan, Law Office of Tim Tynan, San Antonio, TX, forPlaintiffs Bryan Gaytan, Jaycee Goode.James H. Hanson, Pro Hac Vice, Janis E. Steck, Pro Hac Vice,Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis,IN, James D. Ellman, Scopelitis, Garvin, Light, Hanson& Feary, Fort Worth, TX, for Defendant The QuikreteCompanies, LLC.REPORT AND RECOMMENDATION OFUNITED STATES MAGISTRATE JUDGEELIZABETH S. (“BETSY”) CHESTNEY UNITED STATESMAGISTRATE JUDGE*1To the Honorable United States District Judge FredBiery:This Report and Recommendation concerns the parties'cross motions for summary judgment: Defendant's RenewedMotion for Summary Judgment [#84] and Plaintiffs' Motionfor Summary Judgment on Defendant's Motor Carrier ActDefense [#85]. All pretrial matters in this case have beenreferred to the undersigned for disposition pursuant toWestern District of Texas Local Rule CV-72 and AppendixC. The undersigned therefore has authority to enter this reportand recommendation pursuant to 28 U.S.C. §§ 636(b)(1)(B). In evaluating the merits of the parties' cross-motions forsummary judgment, the undersigned has also considered theparties' various responses and replies [#98, #99, #108, #109].For the reasons set forth below, the undersigned recommendsthat Defendant's motion for summary judgment be grantedand Plaintiffs' motion for summary judgment be denied.I. BackgroundThis is an employment case seeking the recovery of unpaidovertime compensation under the Fair Labor StandardsAct (“FLSA”), 29 U.S.C. § 216(b). Plaintiff DavidThomas worked as a driver for Defendant the QuikreteCompany (“Quikrete”), a manufacturer of concrete and other
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2cementitious products. According to Thomas's Complaint,he was responsible for transporting raw materials from localquarries to Quikrete's San Antonio plant for manufacturingand for transporting products from the plant to localdistributors. Thomas alleges that Quikrete violated the FLSAby misclassifying him and other drivers as exempt employeesand failing to pay them overtime compensation. On December3, 2024, the Court granted Thomas's motion for notice to allcurrent and former employees of Quikrete who worked asdrivers at the San Antonio plant in the last three years [#48].To date, approximately 50 other drivers have joined in thisaction.Quikrete admits that it does not pay its drivers overtimecompensation but asserts the affirmative defense of theFLSA's Motor Carrier Act (“MCA”) Exemption, 29 U.S.C.§ 213(b)(1). Quikrete filed an early motion for summaryjudgment based on the exemption, which the Courtsubsequently dismissed without prejudice to filing a newmotion after additional discovery [#71]. Quikrete has fileda renewed summary-judgment motion, asking the Court togrant it summary judgment on all of Plaintiffs' claims basedon the MCA exemption. Plaintiffs have filed a cross-motionfor summary judgment on the exemption defense, arguing thatQuikrete cannot establish the applicability of the defense andthat the MCA exemption does not govern this case as a matterof law. The motions are ripe for the Court's review.II. Summary Judgment StandardSummary judgment is appropriate under Rule 56 of theFederal Rules of Civil Procedure only “if the pleadings,depositions, answers to interrogatories, and admissions onfile, together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to a judgment as a matter of law.” Celotex Corp.v. Catrett, 477 U.S. 317, 322 (1986); see alsoFed. R. Civ. P.56(c). A dispute is genuine only if the evidence is such thata reasonable jury could return a verdict for the nonmovingparty. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986).*2 The MCA exemption is an affirmative defense onwhich the employer bears the burden of proof. CorningGlass Works v. Brennan, 417 U.S. 188, 196–197 (1974).Therefore, Quikrete bears the ultimate burden of proving bythe preponderance of the evidence the exemption applies.Hobbs v. EVO Inc., 7 F.4th 241, 248 (5th Cir. 2021). Whensummary judgment is sought on an affirmative defense, ashere, the movant must establish “beyond peradventure theelements of the defense.” Smith v. Reg'l Transit Auth., 827F.3d 412, 420 n.4 (5th Cir. 2016). “Once the movant does so,the burden shifts to the nonmovant to establish an issue of factthat warrants trial.” Id.The parties may satisfy their respective burdens by tenderingdepositions, affidavits, and other competent evidence.Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). TheCourt views the summary judgment evidence in the light mostfavorable to the non-movant. Rosado v. Deters, 5 F.3d 119,123 (5th Cir. 1993). “After the non-movant has been given theopportunity to raise a genuine factual issue, if no reasonablejuror could find for the non-movant, summary judgment willbe granted.” Miss. River Basin Alliance v. Westphal, 230 F.3d170, 174 (5th Cir. 2000).III. Undisputed Facts Establishedby the Summary-Judgment RecordThe following undisputed facts are established bythe summary-judgment record. Quikrete is the largestmanufacturer of pre-blended, packaged concrete andcementitious products in North America. (Williams Decl.[#84-2], at 2.) Quikrete sells its pre-mix concrete andother products, such as lava rock, repair caulks, and epoxies,to nationwide retailers like Home Depot, Lowe's, and AceHardware. (Id. at 3.) Aside from the pre-mix concrete,these products are manufactured by Quikrete at plants acrossthe country, including in Ohio, New Mexico and Virginia.(Id.) Quikrete then supplies these related products to its localplants, such as the one it operates in San Antonio, Texas. (Id.at 4; McSherry Decl. [#84-3], at ¶¶ 2–3.)Quikrete's San Antonio plant manufactures pre-mix concretebags and serves as a distribution point for products Quikreteships into Texas from other states on a monthly or quarterlybasis. (Williams Decl. [#84-2], at 5; McSherry Decl.[#82-3], at ¶¶ 2, 3; Thomas Dep. [#84-4], at 58:21–60:9,65:11–20.) The San Antonio plant supplies local storesoperated by its national customers (Home Depot, Lowe's,etc.) and hundreds of independent hardware stores in themarket area to ensure their shelves are loaded with product.(Williams Decl. [#84-2], ¶¶ 4, 5; McSherry Decl. [#84-3], at 2; Thomas Dep. [#84-4], at 58:21–60:9, 65:11–20.) Productsthat are shipped into a local plant such as the San Antonioplant may be stored in that location for limited periods of
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3time ranging from a few days to a few weeks to severalmonths, depending on the product. (Williams Decl. [#84-1],at 6; McSherry Decl. [#84-2], at 4; Thomas Dep. at161:12-162:7.) Quikrete does not process or modify the out-of-state products at the plant and does not sell directly to thegeneral public. (McSherry Decl. [#84-2], at 3; Sanders Decl.[#84-8], at 10.)Quikrete hires truck drivers to deliver its products stored at theSan Antonio plant to its local customers and also to transportraw materials from a local cement supplier to the plant neededto manufacture the pre-mix bags of concrete. (Compl. [#1],at 2; Answer [#5], at 2; McSherry Decl. [#84-2], at 9;Thomas Dep. [#84-4], at 68:25–11, 71:25–72:11.) Quikretetypically employs about 30 to 40 drivers at a given time.(Quikrete Dep. [#84-5] at 8:9–13.) All drivers operate truckswith a gross vehicle weight rating of 80,000 pounds but canhaul three different kinds of trailers: flatbed, belly dump,and tanker. (McSherry Decl. [#84-2], at 9; Sanders Decl.[#84-8], at 9.)*3 Flatbed trailers are used to haul products orders fromthe San Antonio plant and deliver both ready-mix concretebags manufactured in San Antonio and out-of-state products.(McSherry Decl. [#84-3], at 10; Sanders Decl. [#84-8],at 10; Thomas Dep. [#84-4], at 68:22–24.) Belly dumptrailers are used to pick up locally-sourced raw materials fromlocal sand and gravel pits and return those raw materials tothe San Antonio plant to mix with powdered cement. (JointStipulation [#31], at 3; McSherry Decl. [#84-3], at 11;Thomas Dep. [#84-4], at 66:24–13; Quikrete Dep. [#85-2],at 32:5–10l.) Tanker trailers are used to pick up locally-sourced powdered products and deliver them to the plantwhere the powdered cement is combined with the sand andgravel to form Quikrete's pre-mix concrete product, which isthen bagged and delivered to local retail customers on theflatbed trailers. (McSherry Decl. [#84-8], at 12; ThomasDep. [#84-4], at 66:14–23; Madigan Dep. [#99-16], at 9:19–21, 10:14–19.) Although additional training is required fordrivers to operate belly dump or tanker trailers, all Quikretedrivers are qualified to operate flatbed trailers. (Thomas Dep.[#84-4], at 226:7–21; Gonzales Dep. [#84-17], at 72:20–24.)None of the named Plaintiffs or opt-in drivers, regardlessof the type of trailer they operated, ever delivered productsacross state lines.1 (Madigan Dep. [#85-1], at 34:23-25.)Their driving duties were entirely intrastate, beginning andending within Texas. (Id. at 34:23– 35:3; McSherry Dep.[#99-15], at 59:2–7.) As belly dump and tanker trailers onlytransported locally sourced raw materials, only those drivershauling flatbed trailers were involved in the actual transportof products originating outside of the State of Texas. (SeeQuikrete Dep. [#85-2], at 89:5–23.)Quikrete is a for-hire and private motor carrier registered withthe Federal Motor Carrier Safety Administration (FMCSA),an agency within the DOT, and requires all its drivers to bequalified under the FMCSA's regulations. (Driver Job Posting[#84-5], at 37; Sanders Decl. [#84-8], ¶¶ 2–9; Thomas Dep.[#84-4], at 109:11–24, 169:12–170:6). When Quikrete postsfor its open driver positions, it advertises that it is seeking tohire a “Truck Driver” or “CDL Driver” generally. (QuikreteDep. [#84-5], at 12:12–17; Driver Job Posting [#84-5], at37.) All the Plaintiffs in this suit were employed by Quikreteduring the relevant time period as drivers and were subjectto the same compensation policy. (Sanders Decl. [#84-8], at 15.) Quikrete pays its drivers an hourly, straight-time ratefor all hours worked, but driver pay depends on whetherthe driver hauls flatbed, belly dump, or tanker trailers thatday. (Id.; Thomas Dep. [#85-4], at 132:5–9, 18–20.) Whenemployees haul flatbed trailers, they are paid at a lowerhourly rate than when they haul tankers or belly dump trailers.(McSherry Dep. [#84-13], at 47:13–15.) Quikrete classifiesall drivers as exempt under the MCA exemption and does notpay them overtime compensation. (Sanders Decl. [#84-8], at¶¶ 14–15; Madigan Dep. [#85-1], at 6:13-16; Quikrete Dep.[#85-2], at 76:10–14.)IV. AnalysisQuikrete asks the Court to grant it summary judgment onall of Plaintiffs' claims arising under the FLSA based on itsaffirmative defense of the MCA exemption. Plaintiffs in turnask the Court to grant them summary judgment and hold asa matter of law that the MCA exemption does not apply toPlaintiffs because (1) the exemption does not apply to thesub-class of Plaintiffs who primarily drove belly dump andtanker trailers; and (2) even for the flatbed drivers, Quikretecannot show that the products these drivers hauled retainedtheir interstate nature after arriving at the San Antonio plantfor indefinite storage and future delivery. The Court shouldfind that Plaintiffs are judicially estopped from arguing thatthe exemption cannot be decided on a class-wide basis as to allQuikrete drivers because they have taken directly inconsistentpositions at other times in this litigation. Further, becauseQuikrete has established the MCA defense as a matter oflaw, and Plaintiffs have not raised a genuine issue of material
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4fact the exemption's application as to all Plaintiffs, the Courtshould grant Quikrete summary judgment and deny Plaintiffs'motion.A. Plaintiffs are judicially estopped from arguing thatthe MCA exemption cannot be decided on a class-widebasis.*4 Plaintiffs argue in their summary-judgment briefing thatduring the relevant time period, trailer assignments werefixed; drivers were assigned to specific trailer types; andQuikrete maintained at least three distinct driver positionswith different job duties. Plaintiffs claim that the MCAexemption therefore fails as to all belly dump and tankerdrivers, as it is undisputed that these drivers hauled only localmaterials from quarries and plants, so not all Plaintiffs hada reasonable expectation of being assigned to haul out-of-state product on flatbed trailers. Quikrete argues that Plaintiffsare judicially estopped from taking this position because it isinconsistent with Plaintiffs' assertions at other times in thislitigation. The undersigned agrees.“Judicial estoppel is a common law doctrine that preventsa party from assuming inconsistent positions in litigation.”In re Superior Crewboats, Inc., 374 F.3d 330, 334 (5th Cir.2004). “Importantly, because judicial estoppel is designedto protect the judicial system, not the litigants, detrimentalreliance by the party opponent is not required.” Id. In theFifth Circuit, judicial estoppel applies where: (1) the party'sposition is clearly inconsistent with the previous one; (2) theCourt accepted the party's previous position; and (3) the partydid not act inadvertently. See id.Quikrete's judicial estoppel argument is based on Plaintiffs'representations to the Court in their motion to authorize noticethat directly contradict the arguments they are now makingin their summary judgment briefing. In the motion for notice,Plaintiffs argued that all Quikrete drivers working at the SanAntonio plant were misclassified as exempt employees underthe MCA exemption and all drivers “are similarly situatedsuch that collective treatment would advance the purposesof the FLSA.” (Mot. for Notice [#42], at 12.) Plaintiffsrepeatedly asserted that this case would not involve anindividualized inquiry into the exemption status of Quikrete'sdrivers, arguing “the exemption would apply or not applywith equal force across the unified class because all ofQuikrete's Drivers are paid in the same way, have the samejob description, and perform the same duties.” (Id.) Elsewherein their motion for notice, Plaintiffs argued that all drivers“performed the same work,” making the proposed class“similarly situated to each other, not just practically, but withrespect to any liability issues such that a trial on the merits canproceed collectively.” (Id. at 16, 22.) Plaintiffs stated that “nomerits issues exist that depend on individualized inquiries”and that this case does not “involve[ ] multiple subclasses andindividualized issues.” (Id. at 14.) In short, Plaintiffs' positionwas that “[a]ll workers were treated similarly by Quikrete inevery significant way” and the proposed class was “uniformlymanaged under the same policies.” (Id.)Plaintiffs now assert that they have “never claimed that alldrivers performed identical job duties or were universallyexempt or non-exempt under the MCA” and ask theCourt to consider “driver usage, assignment history, andexpectations, to determine whether the exemption applieson an individualized basis” and “whether individual driversengaged in (or could reasonably have been expected to engagein) interstate commerce.” (Mot. for Summ. J. Resp. [#99], at18–19, 29.) Plaintiffs argue their positions are not inconsistentbecause their representations in their motion for notice weresolely related to whether the proposed class of all San AntonioQuikrete drivers was similarly situated in terms of pay policy,not individualized driver duties.This position cannot be squared with Plaintiffs' assertionsin their motion for notice, as the quotes above demonstrate.Plaintiffs knew at the time they filed their motion for noticethat the affirmative defense of the MCA exemption was goingto be the merits issue litigated by the parties in this case.Plaintiffs expressly argued that the exemption did not requirean individualized inquiry because Plaintiffs were not justsimilarly situated in terms of pay policy (being classifiedas exempt) but also due to all Quikrete drivers having thesame job duties (drivers for Quikrete's San Antonio plant,who drove trucks that hauled three types of trailers). In short,Plaintiffs have taken inconsistent positions in this suit.*5 As to the second requirement, the Court plainly acceptedPlaintiffs' representations when it authorized notice. Atthe time the Court issued notice, Quikrete had alreadyfiled its earlier motion for summary judgment on theMCA exemption. The precise question before the Courtin issuing notice was whether, under Swales, the meritsissue of the MCA exemption could be decided collectivelyor whether analyzing the exemption would require “ahighly individualized inquiry into each potential opt-in'scircumstances.” See Swales v. KLLM Transport Servs.,LLC, 985 F.3d 430, 442 (5th Cir. 2021). In finding theformer, the Court relied directly on Plaintiffs' representations
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5that the MCA exemption could be decided collectively.(Order on Notice [#58], at 4 (“The parties agree here thatQuikrete's drivers are similarly situated as to their dutiesand compensation and that the merits of this case can bedecided collectively.” (emphasis added)). Absent the Court'sacceptance of Plaintiffs' representations in the motion fornotice, the Court either would not have authorized notice atall or would have only authorized notice to a smaller subsetof drivers.Third, in changing their argument at summary judgment,Plaintiffs have not acted inadvertently. Plaintiffs argue thatthey are only shifting their arguments based on Quikrete'sevolving legal positions throughout the course of this case.This is not a defensible position. Quikrete has consistentlystood on its MCA exemption defense from the outset ofthis case and filed an early summary judgment motionmaking the same arguments it asserts now in its renewedmotion. It is Plaintiffs who have shifted their position fromunequivocally arguing that any distinction between the jobduties of Quikrete's drivers (based on trailer type hauledor otherwise) is immaterial to the MCA exemption analysisto arguing the exemption cannot be decided at summaryjudgment because an individualized inquiry is required.Finally, although Quikrete is not required to show ithas suffered prejudice, allowing Plaintiffs to make anindividualized argument at summary judgment would withoutquestion result in prejudice to Quikrete. Had Quikrete knownPlaintiffs would argue for an individualized assessment ofeach opt-in plaintiff, it would have had a stronger basisto contest the scope of notice to be issued, and it couldhave insisted on taking each opt-in plaintiff's depositionand engaged in more individualized written discovery. Insum, Plaintiffs are judicially estopped from arguing that theresolution of the parties' dispute over the MCA exemptionrequires an individualized inquiry.B. Alternatively, collective treatment of the MCAexemption is appropriate in this case under governingFifth Circuit standards.Quikrete argues that even if Plaintiffs' representations on theindividualized nature of the exemption were not barred onjudicial-estoppel grounds, Fifth Circuit precedent providesfor the treatment of the MCA exemption in this case ona collective basis. The Fifth Circuit does not analyze theexemption's application on a week-by-week or employee-by-employee basis. Kelley v. Alpine Site Servs., Inc., 110 F.4th812, 816 (5th Cir. 2024); Songer v. Dillon Res., Inc., 618F.3d 467, 475 (5th Cir. 2010), abrogated on other groundsby Encino Motorcars, L.L.C. v. Navarro, 584 U.S. 79 (2018).Rather, if a driver engages in interstate commerce or couldreasonably be expected to, then the exemption applies to allworkweeks. Kelley, 110 F.4th at 816. “There is no specific,minimum frequency with which an employee must engagein work to which the MCA exemption would apply.” Id.The Fifth Circuit has explained that “[b]ecause the work isevaluated on a class-wide basis, we also agree that the MCAexemption can apply ‘to employees who rarely, or neverengage in' safety-affecting activities.” Id. (citation omitted).The Fifth Circuit's reasoning comports with the regulationsgoverning the FLSA and its exemptions, which providethat “if the bona fide duties of the job performed by theemployee” subject the employee to be or to likely be “calledupon in the ordinary course of his work to perform, eitherregularly or from time to time, safety-affecting activities ...he comes within the exemption in all workweeks when he isemployed at such job.” 29 C.F.R. § 782.2(b)(3). This “ruleapplies regardless of the proportion of the employee's timeor of his activities which is actually devoted to such safety-affecting work ... and the exemption will be applicable evenin a workweek when the employee happens to perform nowork directly affecting ‘safety of operation.’ ” Id.; see alsoRychorcewicz v. Welltec, Inc., 768 F. App'x 252, 255–56 (5thCir. 2019) (“Even if a few individual class members (here, 5out of the 52) never drive interstate, that is not the relevantinquiry. Instead, we consider whether field engineers, on acompany-wide basis, could reasonably have been expected todrive in interstate commerce consistent with their job duties.”)(internal quotation and citation omitted).*6 Plaintiffs argue that all Quikrete drivers were notexpected to drive in interstate commerce (i.e., to haul flatbedtrailers) until Quikrete changed its policy to assign drivers todifferent trailer types as needed from a generalized “driverpool” after this lawsuit was filed. Yet, Julia Frazier, OfficeManager of the San Antonio plant during the relevant period,stated in her declaration that she was responsible for assigningbelly dump and tanker drivers to pick up flatbed loads fora number of reasons, such as when their belly dump ortanker unit was down for maintenance. (Frazier Decl. [#99-1],at 36.) Several Plaintiffs provided consistent testimony—that when their assigned equipment was in the shop, theysometimes hauled flatbed trailers, even before the allegedpolicy change. (Yanez Decl. [#99-4], at ¶¶ 22–24; CantuDecl. [#99-5], at 13; Godoy Dep. [#84-9], at 37:4–17;Lopez Dep. [#84-18], at 103:15–18.) This is consistent with
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6Quikrete's records that numerous Plaintiffs who typicallydrove belly dump or tanker trucks also drove flatbed trucksduring the relevant period. Plaintiff Yanez hauled 113 flatbedloads; Plaintiff Cantu hauled 19 flatbed loads; Plaintiff Godoyhauled 1,508 flatbed loads; Plaintiff Lopez hauled 102 flatbedloads; and Plaintiff Thomas hauled seven flatbed loads.(McSherry Decl. [#84-3], at ¶¶ 17, 20; Gesch Second Supp.Decl. [#108-3], at ¶¶ 4, 6,16; Cantu TMS Report [#108-3],at 227; Godoy TMS Report [#98-11] at 21–42; Lopez TMSReport [#84-15], at 4–6.) And numerous Plaintiffs only orprimarily hauled flatbed trailers. (Gonzales Dep. [#84-17],at 26:19–20; Palafos Dep. [#84-19], at 25:1–3; Walker Dep.[#84-21], at 77:1–9; Burrs Dep. [#23], at 20:23–21:1.)Plaintiffs argue that all Quikrete drivers were not reasonablyexpected to haul flatbed loads because, prior to the allegedpolicy change, belly dump and tanker drivers had a choicewhether to accept a flatbed assignment when their truck wasdown for maintenance. (See, e.g., Yanez Decl. [#99-4], at¶¶ 22–24.) According to several Plaintiffs, each driver couldaccept a request to pick up a flatbed load or elect to takethe day off work without pay—meaning their reassignmentwas voluntary. (Id.) According to Plaintiffs, this testimonyprecludes application of the MCA exemption on a class-widebasis to all Quikrete drivers.This argument is not persuasive for several reasons. The FifthCircuit has applied a multi-factor test to evaluating whetheran a class of employees has a “reasonable expectation”of interstate transportation, without any one factor beingdispositive. Olibas v. Barclay, 838 F.3d 442, 448–49 &n.11 (5th Cir. 2016). These factors include: (1) whetherall employees in the class have similar job duties, evenif only some employees in the class make interstate trips;(2) whether the employer regularly sends some drivers tointerstate destinations; (3) whether the employer requires itsdrivers to meet DOT requirements; (4) whether and withwhat frequency project assignments are subject to change;(5) whether the drivers' assignments are given via dispatchbased on customer need; (6) whether drivers have fixed ordedicated routes; (7) whether assignments are distributedindiscriminately; and (8) whether drivers risk termination forrefusing trips from dispatch. Id.Here, these factors cut against Plaintiffs' argument, anda reasonable fact finder would not find otherwise. It isundisputed that all Quikrete drivers have similar job duties,even if on any given day or during some weeks, only somedrivers haul loads involving out-of-state product; Quikrete'sdriver pool in San Antonio includes drivers who regularlytransport out-of-state product; and Quikrete requires all itsdriver to meet DOT requirements. This evidence establishesthat “the [DOT] had the power to regulate all of [Quikrete's]drivers” because “the existence—rather than the exercise—of that power is the test as to whether the employees wereentitled to overtime pay under the FLSA.” Songer, 618 F.3dat 474 (emphasis in original).Moreover, there is undisputed evidence that there were otherreasons aside form a belly dump or tanker truck being inthe shop for driver reassignments. Plaintiff Eunice Carterstated in her declaration that, although there were not typicallyreassignments between trailer types on a daily basis, Quikretewould reassign belly dump and tanker drivers to flatbedtrailers if a flatbed driver called out sick and there werenot enough flatbed drivers available. (Carter Decl. [#99-11],at 14.) And none of Plaintiffs' witnesses have disputedQuikrete's witnesses' testimony that belly dump or tankerdrivers could be called on to haul flatbed trailers whenQuikrete's raw materials vendors were closed for holidaysor when there are weather events like hurricanes leading toincreased orders. (Sanders Decl. [#84-8], at 11; McSherryDecl. [#98-3], at 14.)*7 Plaintiffs repeatedly argue that there was additionaltraining required for drivers to be “promoted” to belly dumpor tanker drivers and that these positions were available onbasis of seniority. (See, e.g., Thomas Dep. [#84-4], at 226:7–21.) Yet there is no converse evidence that a belly dumpor tanker driver was not qualified to drive or could not beassigned to haul a flatbed load. No additional training wasrequired for this role. (Gonzales Dep. [#84-17], at 72:20–24.) That some discrete Plaintiffs may not have ever drivena flatbed load during the relevant period does not render theMCA exemption defense unavailable to be adjudicated on acollective basis. “To be sure, when evaluating the nature ofwork from a class-wide perspective, [the Fifth Circuit does]not require a particularly high concentration of qualifyingwork in order to meet the MCA exception.” Amaya v. NOYPIMovers, L.L.C., 741 F. App'x 203, 206 (5th Cir. 2018). Theexemption has been applied on a class-wide basis even whereonly 2.75 percent of a trips driven by a class were interstate,see Songer, 618 F.3d at 475–76, and where only about 4percent of the work of a class of drivers involved services ininterstate commerce, Morris v. McComb, 332 U.S. 422, 432–34 (1947).
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.7In sum, the summary-judgment evidence establishes thatthere were several reasons that drivers typically assignedto haul belly dump and tanker trailers would be askedto drive flatbed loads containing out-of-state product, andthat many of the Plaintiffs in this suit did in fact performsuch work during the relevant period. The “safety-affectingactivities” were not “so trivial, casual, and insignificantas to be de minimis,” such that the exemption does notapply. See Amaya, 741 F. App'x at 206 (denying summaryjudgment for employer on MCA exemption defense whereevidence showed that class of workers hired to installoffice cubicles (furniture-installers) were “hardly ever” calledupon to load trucks crossing state borders). Based on thisundisputed evidence, Quikrete has established that all itsdrivers, even those who primarily drove belly dump andtanker trailers, reasonably could be expected to drive flatbedtrucks containing materials originating from out of state.C. FLSA Framework and the MCA ExemptionThe FLSA provides the minimum wage and overtime payrequirements of employers engaged in interstate commerce.See29 U.S.C. §§ 206, 207. Under § 216(b), a qualifyingemployer who fails to pay a non-exempt employee thefederally mandated minimum wage and/or one-and-one-halftimes the employee's regular rate of pay for work completedover forty hours per week commits a violation of theFLSA and is liable to the employee for unpaid overtimecompensation.The FLSA exempts from regulation, however, “any employeewith respect to whom the Secretary of Transportation haspower to establish qualifications and maximum hours ofservice pursuant to the provisions of” the MCA. 29 U.S.C. §213(b)(1). The exemption serves to prevent dual regulationof commercial drivers by both the Department of Labor(“DOL”) and the Department of Transportation (“DOT”), andto “ensure that operators of vehicles affecting highway safety[are] regulated by an entity with a greater understanding of theparticular safety concerns.” Carley v. Crest Pumping Techs.,L.L.C., 890 F.3d 575, 579 (5th Cir. 2018); see also Shew v.Southland Corp., 370 F.2d 376, 380 (5th Cir. 1966).The Supreme Court has instructed the federal courts togive FLSA exemptions a “fair reading,” not a narrow one.Encino Motorcars, 579 U.S. at 89. As to the MCA exemptionspecifically, courts have observed that narrowly interpretingthe exemption would “undermine [DOT's] safety regulations”by “encouraging drivers to earn overtime” by working morehours, rather than “limit[ing] the number of continuous hoursdrivers may be on the road.” Glanville v. Dupar, Inc., No.CIV.A. H-08-2537, 2009 WL 3255292, at *3 (S.D. Tex. Sept.25, 2009). The Fifth Circuit has expressly recognized that theMCA exemption “should ... be broadly construed” to preservethe MCA's safety goals. Galbreath v. Gulf Oil Corp., 413 F.2d941, 946 (5th Cir. 1969).*8 There are two criteria that must be met for an employeeto qualify for the MCA exemption: (1) the employee must beemployed by carriers whose transportation of passengers orproperty by motor vehicle is subject to the jurisdiction of theDOT under section 204 of the MCA; and (2) the employeemust engage in activities of a character directly affecting thesafety of operation of motor vehicles in the transportation onthe public highways of passengers or property in interstate orforeign commerce within the meaning of the MCA. Escobedov. Ace Gathering, Inc., 109 F.4th 831, 834 (5th Cir. 2024)(citing 29 C.F.R. § 782.2(a)).In this case, the parties do not dispute that Plaintiffs areemployed by carriers whose transportation of property issubject to DOT jurisdiction and therefore satisfy the firstexemption requirement or that Plaintiffs were engaged in“safety-affecting activities” under the exemption's secondrequirement. Quikrete has submitted sufficient evidence tocarry its burden on this point as well. (See Sanders Decl.[#84-8], at ¶¶ 2–9.) The dispute in this case is exclusivelyover whether Plaintiffs were engaged in interstate commerce,even though they never hauled raw materials or cementitiousproducts across state lines.“The MCA defines interstate commerce as, simply,transportation between a place in a State and a place in anotherState,” but this definition “has not been applied literallyby the courts.” Escobedo, 109 F.4th at 834–35 (quoting 49U.S.C. § 13501(a)) (additional citation omitted). The FifthCircuit has long applied the MCA exemption not only tothe actual transport of goods across state lines but also to“the intrastate transport of goods in the flow of interstatecommerce.” Songer, 618 F.3d at 472. A carrier can be engagedin interstate commerce when transporting goods “ultimatelybound for destinations beyond Texas, even though the routeof the particular carrier is wholly within one state.” Escobedo,109 F.4th at 835 (quoting Merchants Fast Motor Lines, Inc. v.ICC, 528 F.2d 1042, 1044 (5th Cir. 1976) (emphasis added)).“Indeed, so long as ‘goods carried are in the course ofthrough transit” to or from another state, the Fifth Circuit hasobserved, “[t]raffic need not physically cross state lines to be
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.8in interstate commerce.’ ” Id. (quoting Merchants Fast MotorLines, 528 F.2d at 1044).In some cases, the application of these principles isstraightforward. For instance, the Supreme Court held inUnited States v. Capital Transit Co. that the transportationof passengers solely within the geographic boundaries ofWashington D.C. on an “intra-District streetcar and bus”constituted interstate commerce because the passengers were“going to and from Virginia establishments” and weretherefore engaged in “interstate movement.” Id. (quoting 338U.S. 286, 290 (1949)). And more recently in Escobedo, theFifth Circuit reached the “straightforward” conclusion that thetransportation of crude oil solely within the State of Texaswas nonetheless interstate commerce under the MCA becausethe oil was “ultimately bound for out-of-state destinations,”either being traded on the export market for other countries orrefined in refineries in other states, like Louisiana. 109 F.4that 835–36.The inquiry becomes more complicated where, as here, thereis evidence that the product being shipped is temporarilystored in a warehouse or other facility during its interstatejourney. In such circumstances, the Fifth Circuit has directedcourts to evaluate the “fixed-and-persisting-intent” of theshipper at the time of shipment to determine whether the“essential character” of the shipment remains interstatethroughout the entirety of its journey. Id. at 836–37(discussing line of cases applying “fixed-and-persisting-intent” test). Under this line of cases, where a productoriginates out of state and temporarily rests in a warehouseor company “hub,” “the later hub-to-customer or warehouse-to-customer transport” can still be “interstate in character,even though it did not again cross state lines” where there isa demonstrable intent to move those goods continuously ininterstate commerce. State of Tex. v. United States, 866 F.2d1546, 1561 (5th Cir. 1989).*9 Although the parties agree that the fixed-and-persisting-intent test is relevant to the Court's inquiry here, they disagreeas to what factors the Court should consider in evaluatingthe “essential character” of the shipments at issue. Plaintiffsrepeatedly cite the three-part test devised by the InterstateCommerce Commission (“I.C.C.”) in the 1950s, which wasincorporated into DOL regulations.2See29 C.F.R. § 782.7(b)(2). “Under that test, the major factors that could precludesingle-state transportation from being considered interstatein nature are (1) that there is no specific order destinedfor a specific destination; (2) that the terminal storage is adistribution point or local marketing facility; and (3) thattransportation from hub to spoke is arranged only after saleor allocation from storage.” Cent. Freight Lines v. I.C.C., 899F.2d 413, 421 (5th Cir. 1990) (quoting 29 C.F.R. § 782.7(b)(2)).However, as noted by Quikrete in its filings, this is nota complete, accurate statement of the test that is currentlyapplied by the Fifth Circuit. In more recent years, the DOThas supplemented the I.C.C. three-part test with additionalfactors regarding the shipper's intent drawn from “case lawthat developed subsequent to the cases upon which section782.7(b) was based.” U.S. Dep't of Labor, Opinion LetterFair Labor Standards Act (FLSA), 2005 WL 330602, at *2(Jan. 11, 2005). These additional criteria are set forth in a1992 Policy Statement issued by the I.C.C. and are to beconsidered in situations involving “minor traffic moving fromwarehouses or similar facilities to points in the same Stateafter or preceding a movement from another State.” PolicyStatement, 8 I.C.C. 2d 470, 1992 WL 122949 (April 27,1992), further codified at 57 Fed. Reg. 19,812, 1992 WL93608 (May 8, 1992)). The Fifth Circuit has rejected asoutdated the I.C.C. three-factor test, noting it is too limitedunder circumstances such as those present here. See Ash v.Flowers Foods, Inc., No. 23-30356, 2024 WL 1329970, at *3(5th Cir. Mar. 28, 2024) (“[T]his court has already rejectedthat test under similar facts” because the three-factor test hasbeen “supplemented” by additional criteria in favor of a moreoverarching “fixed and persisting transportation intent test.”).The 1992 Policy Statement, DOL guidance, and Fifth Circuitprecedent all emphasize an approach taking into considerationthe totality of the facts and circumstances surrounding thetransportation in determining a shipment's essential characterand the intent of the shipper. See, e.g., Ash, 2024 WL11329970, at *2; Merchants Fast Motor Lines, 5 F.3d at917; DOL Opinion Letter, 2005 WL 330602, at *2. The1992 Policy Statement specifies seven factors to consider indetermining whether the essential character of the shipmentstransported by Plaintiffs for Quikrete were interstate:1) Even if a shipper does not know the ultimate destinationof specific shipments, it bases its determination on thetotal volume to be shipped through the warehouse onprojections of customer demand that have some factualbasis, rather than a mere plan to solicit future saleswithin the State. This may include, but is not limited to,historical sales in the State, actual present orders, andrelevant market surveys of need.
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.92) No processing or substantial product modification ofsubstance occurs at the warehouse or distribution center.However, repackaging or reconfiguring (secondarypackaging) may be performed.3) While in the warehouse, the merchandise is subjectto the shipper's control and direction to the subsequenttransportation.4) Modern tracking systems allow tracking anddocumentation of most, if not all, of the shipmentscoming in and going out of the warehouse or distributioncenter.*10 5) The shipper or consignee must bear theultimate payment for transportation charges even ifthe warehouse or distribution center directly pays thetransportation charges to the carrier.6) The warehouse utilized is owned by the shipper.7) The shipments move through the warehouse pursuant toa storage in transit provision.DOL Opinion Letter, 2005 WL 330602, at *2–3 (citing 57Fed. Reg. at 19813). No one factor is dispositive. The Courttherefore considers these factors, as well as the totality ofthe circumstances, in evaluating whether Quikrete had thefixed and persisting intent to transport its goods in interstatecommerce, which is the ultimate inquiry.D. Quikrete has established that it is entitled to summaryjudgment on the MCA exemption because the totalityof the circumstances establish that there is no genuinedispute of material fact as to the interstate nature of itsshipments.Considering the totality of the circumstances, Quikrete hasestablished beyond peradventure that it had the fixed andpersisting intent to transport its goods in interstate commerceand that its shipments retain their interstate characterthroughout the entirety of their journey to the San Antonioplant and on to Quikrete's local San Antonio customers. SeeEscobedo, 109 F.4th at 834; State of Tex., 866 F.2d at 1561.A reasonable fact finder considering all seven factors wouldconclude as a matter of law that the essential character ofQuikrete's products remains interstate even after coming torest for a period of time at the San Antonio plant.First, it is undisputed that the products shipped to Quikrete'sSan Antonio facility are not processed or modified in anyway during their temporary storage and remain subject toQuikrete's control and direction at all times until final deliveryto Quikrete's local customers, as Quikrete owns the SanAntonio facility. (McSherry Decl. [#84-3], at ¶¶ 1, 3; WilliamsDecl. [#84-2], at 5.) Accordingly, Factors Two, Three, andSix all support Quikrete's assertion that its intent at the timeof shipment is to transport its goods from point of origin tocustomer.Additionally, it is undisputed that Quikrete uses a moderninventory system, JD Edwards, to track its shipments andinventory levels (Factor Four). (Madigan Dep. [#84-6],at 29:22–30:9; McSherry Dep. [#84-13], at 62:23–63:6.)According to Kristopher McSherry, the current Plant Managerof the San Antonio plant, the JD Edwards system tracks theamount of a given product and how long the product hasbeen stored in the warehouse, i.e., the average turnover ratefor a specific product. (McSherry Decl. [#84-3], at ¶¶ 1, 5.)According to McSherry, this form of tracking is essentialto Quikrete's business model, which delivers shipments tolocal customers on a first-in/first-out basis in order to ensureproducts are delivered prior to their expiration date, whichis usually between six to 12 months. (Id. at 8.) However,Quikrete concedes that its inventory system only tracks itemsthrough arrival at the San Antonio plant and does not followspecific product all the way to its customers. (Quikrete Dep.[#85-2], at 54:11–19 (explaining that it can track the arrival ofa specific item but not when that same exact item leaves thewarehouse for delivery). This factor also weighs in favor offinding the character of the shipments to be interstate. Factorsfive and seven are not applicable here.*11 This leaves the first factor, which considers whetherQuikrete bases its determination of the total volume to beshipped through the San Antonio plant on projections ofcustomer demand that have some “factual basis,” rather than amere plan to solicit future sales in the San Antonio area. DOLOpinion Letter, 2005 WL 330602, at *2–3. This is the primaryfactual dispute between the parties. Quikrete has presentedthe Court with substantial evidence that its shipments toSan Antonio from outside of Texas are based on historicalsales data and projected sales to its existing national andlocal customers in the area in the form of declarations fromkey Quikrete employees. Quikrete's Regional OperationsManager for South Texas, Donald Sanders, testified thateach year the Regional Sales Vice President prepares aforecast reflecting the quantity of each Quikrete product
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.10the company expects to sell customers, by month, for thefollowing year. (Sanders Supp. Decl. [#98-26], at 3.) RandyWilliams, Senior Vice President for Sales National Accountsalso testified that Quikrete uses past sales history and futuresales forecasts for a given facility to determine how muchof a given product to ship in from out of state. (WilliamsDecl. [#98-2], at 7.) Moreover, several witnesses testifiedthat every shipment to the San Antonio plant is intendedto be delivered to longstanding local retail customers andknown markets, not for potential future sales to unknowncustomers or the general public. (Id. at ¶¶ 3, 7; McSherryDecl. [#98-3], at 3; Sanders Supp. Decl. [#98-26], at 5.)Quikrete also supplied the court with a copy of its forecast forSan Antonio for the years 2022 through 2024. (Sanders Supp.Decl. [#98-26], at 3; Product Report [#98-26], at 5–15.) Thisreport summarizes the units of various Quikrete products soldfor each of the three years for the relevant period. (ProductReport [#98-26], at 5–15.)Plaintiffs argue that Quikrete's evidence fails to show thatit used “customer-specific forecasts or predictive models toinitiate its shipments to the San Antonio plant.” Yet this isnot the standard. Rather than needing to earmark specificshipments for specific customers, Quikrete need only have“some factual basis” for the amount of its shipments, which,per the 1992 Policy Statement, can include “historic salesin the State, actual present orders, [or] relevant marketsurveys of need.” Moreover, Quikrete “need not know theexact identity of particular consumers in order to intendthat the goods move continuously in interstate commerce.”Cent. Freight Lines, 899 F.2d at 421; see also Ash, 2024WL 1329970, at *2 (“Even if Flowers did not know at thetime of production which customers would ultimately receivewhich goods, it knew that the products were shipped intoLouisiana for distribution to Louisiana customers.”). There isno evidence that suggests that this is a case in which Quikreteships its products into Texas with a mere hope to “solicitfuture sales within the State” at some later date. SeePolicyStatement, 1992 WL 122949, at *2. Quikrete's goal is alwaysto ship “100 percent complete,” meaning it can fill anycustomer's order whenever additional product is needed andkeep the shelves of its local customers stocked with product.(Williams Dep. [#108-2], at 51:5–52:3.)Plaintiffs also argue that Quikrete cannot prevail on its MCAexemption defense because it has not produced a singlebill of lading, purchase order, routing sheet, or internalplanning record showing that Plaintiffs' deliveries fulfilled apreexisting interstate shipment. This argument is an extensionof Plaintiffs' argument that Quikrete must link its interstateshipments to particular customers. It is undisputed thatQuikrete does not earmark or track specific products andshipments from out of state to the shelves of its customers,and Quikrete concedes that its interstate shipments servethe purpose of “replenish[ing] [its] inventory.” (See QuikreteDep. [#85-2], at 54:11–19, 56:19–22.) This concession is notmaterial. Again, Quikrete need not establish that its shipmentswere based on a preexisting order from a specific customerto demonstrate the interstate nature of its shipments, onlythat there is “some factual basis” for the volume of itsshipments such that the delivery leg to local customers waspart of a “practical continuity of movement” across state lines.SeePolicy Statement, 1992 WL 122949, at *2; Ash, 2024 WL1329970, at *2 (finding shipper's intent to move goods ininterstate commerce where products were ordered “based onsales history and projections for particular stores”).3*12 Plaintiffs also argue that the fact that Quikrete pullsolder products to be delivered first also weighs against findingthe essential character of the product at issue being interstate.(See Williams Dep. [#85-5], at 45:11–46:4.) Yet Plaintiffs donot cite any authority, binding or persuasive, to support whythis would matter. And courts have repeatedly found that aproduct remains in interstate commerce even when deliveredaccording to a “first in/first out” process. See, e.g., Deherrerav. Decker Truck Line, Inc., 820 F.3d 1147, 1152 (10th Cir.2016); Ehrlich v. Rich Prods. Corp., 767 F. App'x 845, 849(11th Cir. 2019) (same).Zooming out, what Plaintiffs are asking is for the Court tofind that the San Antonio plant was not a temporary holdingfacility but a general inventory warehouse. Plaintiffs arguethat products arriving out of state were routinely held atthe San Antonio plant, sometimes for months, and weredistributed based on demand, which severed any continuityof movement in interstate commerce. Yet there is no limit onthe amount of time a product can be temporarily stored beforecontinuing its interstate journey. See Merchants Fast MotorLines, 5 F.3d at 915– 17 (upholding interstate determinationeven though some goods stayed in warehouse more than ayear). The MCA expressly includes “storage” as part of itsdefinition of “transportation.” Ash, 2024 WL 1329970, at *3.And the Fifth Circuit has not ever found that the fact thatan out-of-state shipment comes to rest for a significant timeat a warehouse before being delivered to local customersdestroys its interstate character. To the contrary, the FifthCircuit found that carpet shipped from Georgia to a servicecenter in Texas retained its interstate nature despite sitting
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.11in the service center for between two to three months beforebeing shipped to customers. State of Tex., 866 F.2d at 1549,1560–61 (finding I.C.C.'s determination that hub-to-customertransport was still interstate in character was not arbitrary andcapricious where shipments were based on projections frompast dealings with major customers accounting for 80 percentof the company's sales).Finally, the primary evidence Plaintiffs rely upon to argue thatthis factor squarely cuts in favor of finding that the shipmentsdid not retain their interstate character is the declarations ofvarious Quikrete employees regarding the use of forecastingto determine the amount of its shipments. Plaintiffs' summary-judgment evidence includes the declaration of Julia Frazier,who served as Office Manager and acting Plant Managerfrom February 2020 until March 2023 (during the relevantperiod). (Frazier Decl. [#99-1], at 2.) According to Frazier,she was responsible for managing payroll, accounts payableand receivable, employee onboarding and hiring, driverdispatch coordination, monitoring plant inventory and storagepractices, customer order processing, and the day-to-dayinternal operations of the San Antonio facility. (Id. at ¶¶3, 10.) Frazier testified that as acting Plant Manager, shenever saw Quikrete use past sales history or future salesforecasts to determine how much of a given product toship in from out of state, and there was no documentationor system that linked inventory restocking to pending oranticipated customer orders. (Id. at ¶¶ 13, 17.) Instead, perFrazier, the plant maintained what was internally referredto as a “baseline stock level” or “replenishment threshold”set annually by corporate manager that did not materiallychange from year to year during her tenure. (Id. at 14.)Quikrete asks the Court to disregard this testimony, however,because Sanders, Quikrete's Regional Operations Manager,testified that Frazier was (1) never appointed to serve asinterim or acting Plant Manager; (2) was never involved inQuikrete's forecasting process so never received copies offorecasts; and (3) was never responsible for any inventoryplanning. (Sanders Second Supp. Decl. [#108-1], at ¶¶ 4, 7–8.) Even if the Court accepts Frazier's testimony that shenever saw forecasts used at the San Antonio plant during hertime working there, whether Quikrete bases its determinationon projections of customer demand is only one factor in thetotality of the circumstances surrounding the nature of itsshipments. Even if a reasonable factfinder could find thatthis factor cuts in favor of Plaintiffs' position, a reasonablefactfinder would still conclude, based on the weight of theother factors and the totality of the circumstances, that thegoods retain their interstate character.*13 Ultimately, this Court is required to construe theMCA exemption broadly. Galbreath, 413 F.2d at 946.Quikrete has always required its drivers to be qualified underFMCSA's regulations and treated its drivers as subject to theFMCSA's jurisdiction (Sanders Decl. [#84-8], at 13), andPlaintiffs' work as truck drivers directly affects the safety ofmotor vehicles in the transportation of property on publichighways. Escobedo, 109 F.4th at 834. As to the interstatecommerce requirement, the factors identified in the 1992Policy Statement as a matter of law weigh in favor of findingthat Quikrete had the fixed and persistent intent to deliverits out-of-state products to its existing customers in the SanAntonio area. None of the evidence presented by Plaintiffswould allow a reasonable factfinder to reach the oppositeconclusion, even assuming the evidence generates a factdispute on one or two factors.There is therefore no genuine dispute of material factthat Quikrete, by transporting out-of-state product fromits San Antonio plant to local customers, was engaged inthe continuous flow of interstate commerce. Quikrete hassatisfied its burden to demonstrate that both elements ofthe MCA exemption apply and that Plaintiffs were properlyclassified as exempt from the overtime-compensationrequirements of the FLSA. Because the undersignedrecommends that Quikrete be granted summary judgmentas to all of Plaintiffs' claims, the Court need not considerQuikrete's alternative argument that it be granted summaryjudgment as to the claims of the five Plaintiffs who failed toappear for their depositions.V. Conclusion and RecommendationHaving considered the parties' motions, responses, andreplies, and the evidentiary record before the Court, itis recommended that Defendant's Renewed Motion forSummary Judgment [#84] be granted and Plaintiffs' Motionfor Summary Judgment on Defendant's Motor Carrier ActDefense [#85] be denied.VI. Instructions for Service andNotice of Right to Object/AppealThe United States District Clerk shall serve a copy ofthis report and recommendation on all parties by either (1)electronic transmittal to all parties represented by attorneys
DAVID THOMAS, INDIVIDUALLY AND ON BEHALF OF..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12registered as a “filing user” with the clerk of court, or (2)by mailing a copy to those not registered by certified mail,return receipt requested. Written objections to this reportand recommendation must be filed within fourteen (14)days after being served with a copy of same, unless thistime period is modified by the district court. 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b). The party shall file theobjections with the Clerk of Court and serve the objectionson all other parties. A party filing objections must specificallyidentify those findings, conclusions or recommendations towhich objections are being made and the basis for suchobjections; the district court need not consider frivolous,conclusive or general objections. A party's failure to filewritten objections to the proposed findings, conclusions andrecommendations contained in this report shall bar the partyfrom a de novo determination by the district court. Thomas v.Arn, 474 U.S. 140, 149–52 (1985); Acuña v. Brown & Root,Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failureto file timely written objections to the proposed findings,conclusions and recommendations contained in this reportand recommendation shall bar the aggrieved party, exceptupon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusionsaccepted by the district court. Douglass v. United Servs. Auto.Ass'n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc),superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).SIGNED this 26th day of February, 2026.All CitationsSlip Copy, 2026 WL 594760Footnotes1Despite this testimony by several Quikrete employees, Quikrete provided the Court with contradictoryevidence that at least some San Antonio drivers delivered product out of state on occasions. (Gesch Dep.[#98-25], at 26:9–30:16.) However, the undersigned has not relied on this evidence in resolving the parties'motions because in its response to Plaintiffs' motion to strike Gesch's testimony, Quikrete explained that itis not relying on the limited examples of interstate travel identified by Gesch in arguing the MCA exemptionapplies and has admitted for purposes of summary judgment that no Plaintiffs crossed state lines. (Resp.[#114], at 4.)2The I.C.C. regulated motor carrier safety prior to the Secretary of Transportation. See I.C.C. Termination Actof 1995, Pub. L. No. 104–88, 109 Stat. 803, 804 (1995).3Plaintiffs cite Ash throughout their briefing as standing for the proposition that bread products stored in localwarehouses for various lengths of time were not in a continuous stream of interstate commerce becausethey were held in storage “without a fixed and persisting intent to ship to a particular customer.” (See, e.g.,Resp. [#99], at 10.) Ash held precisely the opposite. In Ash, the Fifth Circuit affirmed the district court's grantof summary judgment in favor of the shipper based on the MCA exemption, finding that the totality of thecircumstances supported a finding that there was a fixed intent to move the bread products in interstatecommerce. Not only do Plaintiffs blatantly misrepresent the Fifth Circuit's holding in Ash, but they alsomanufacture or cite hallucinated quotations not appearing in the opinion.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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