Full opinion text
MEMORANDUM AND ORDER LEE H. ROSENTHAL, District Judge. This is a collective action suit to collect unpaid wages and overtime. Roy Maynor sued his former employer, the Dow Chemical Company, under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. Maynor alleged that Dow failed to pay him and similarly situated employees for time spent training for and taking skills-assessment tests to comply with a requirement that the employees advance two levels per year in the areas tested. This court conditionally certified a class of current and former members of the International Union of Operating Engineers Local No. 564 employed at Dow’s Freeport, Texas facility, hired before May 14, 2003, who had to undergo training and testing to comply with the skills-assessment section of the collective bargaining agreement that applied between October 9, 2004 and November 30, 2006. (Docket Entry No. 42). Maynor has been joined in this collective action by 129 or 130 other current or former Dow employees. The following motions are pending: • The plaintiffs have moved for partial summary judgment on their claim that the hours they spent participating in the skills-assessment program are compensable and that their acceptance of payments from Dow made after an investigation by the Department of Labor into Dow’s failure to pay for this time did not waive the unpaid wage and overtime claims raised in this suit. (Docket Entry No. 188). Dow has responded. (Docket Entry No. 194). Dow agrees that accepting the partial payments it made after the Department of Labor investigation did not waive the plaintiffs’ claims in this case. Dow vigorously disputes that the studying and training time is compensable. The plaintiffs have replied to Dow’s response. (Docket Entry No. 198). • Dow has moved for partial summary judgment on Maynor’s individual claim for improper denial of overtime compensation for time spent studying to take the skills assessment tests and his individual claim that decision to fire him in February 2006 was in retaliation for his complaints about the failure to pay overtime. (Docket Entry No. 189). Maynor has responded, (Docket Entry No. 193), and Dow has replied, (Docket Entry No. 195). • Dow has moved to decertify the class, (Docket Entry No. 192), arguing that the plaintiffs are not similarly situated because there was no common policy or plan of required training for the skills-assessment tests. Dow argues that the only common policy or plan was that the employees advance two skill levels per year. Dow also argues that there are individualized defenses to liability that preclude collective action treatment. The plaintiffs have responded, arguing that the skills-assessment program, including the training, is a common policy that gives rise to the FLSA violation; Dow’s defenses to liability are common to the class; and that subclassing will adequately address the differences among the plaintiffs’ claims. (Docket Entry No. 197). Based on a careful review of the complaint; the motions, responses, and replies; the summary judgment record; and the applicable law, this court: • grants the plaintiffs’ motion for partial summary judgment that the acceptance of Dow’s payment did not waive the claims asserted in this case; • grants in part and denies in part the motion for a judgment that as a matter of law, all the time spent studying or training for the tests was compensable; • denies Dow’s motion for summary judgment as to Maynor’s unpaid wages and overtime claim and his retaliatory discharge claim; and • denies Dow’s motion to decertify the class. The reasons for these rulings are explained in detail below. A status conference is set for Monday, November 30, 2009 at 8:30 a.m. in Courtroom 11B. I. Background The parties have engaged in significant discovery that provides the basis for the factual background set out below. Dow hired Maynor in 1974 to work as an operator at the Freeport facility, which has over 5,000 employees. Maynor belonged to Local 564 of the International Union of Operating Engineers (the “Union”), which represents over 900 hourly nonexempt employees at the Freeport facility. (Docket Entry No. 188, Ex. A). On May 14, 2003, a collective bargaining agreement (“CBA”) between Dow and the Union became effective. Article XXXIV of the CBA established a “Skills Initiative Program.” Under Section 1 of Article XXXIV, Union members hired before May 14, 2003 had to comply with the “Site Foundational Skills Program.” Section 1 stated: Foundational Skills Assessment will be required for employees hired prior to May 14, 2003. Employees required to obtain an associates degree will take the assessment upon completion of the degree. The Foundational Skills include the areas of Reading, Applied Mathematics, Locating Information, Teamwork, Applied Technology and Observation (the “Skill Category(s)”). In each Skill Category there are different Skill Levels, 3, 4, 5, 6 and 7 (“Skill Levels”). Each employee will be required to take a skills assessment to determine the level they are at, paid for by the COMPANY. Once the Skill Level has been determined, an employee will be expected to move up at least 2 Skill Levels per year until the employee has achieved the required level in all the Skill Categories. Employees must reach a Skill Level of 5 in Locating Information and Teamwork and a Skill Level of 6 in the other four categories. (Docket Entry No. 197, Ex. B). Dow’s Labor Relations Manager, Robin Campbell, testified that Dow intended to “upgrade and maintain ... skills to increase competitiveness of [operators]” and to “insure that all [operators] were given opportunities and assistance in achieving the various skill levels.” (Docket Entry No. 192, Ex. B, Campbell Aff., ¶ 5). New hires had to have at least an associate’s degree. Present employees had to show that they had basic skills by complying with the Site Foundational Skills Program. Campbell testified that without the foundational skills the assessments measured, some employees “may not have the skill and ability to understand the training” in technical areas that would be important in many plant jobs. (Id., Ex. A, Campbell Depo. at 40-41). A. The Site Foundational Skills Program Under the Site Foundational Skills Program (“FSP”) set out in Article XXXIV, Section 1 of the CBA, an employee had to take an initial assessment in each of six skill areas — reading, applied mathematics, locating information, teamwork, applied technology, and observation. There were five to seven skill levels within each of these six areas. Once each operator’s skill level was determined by this mandatory initial assessment test, the operators had to take reassessment tests and advance two skill levels per year until the operator met the level required for each area. The assessment tests were standardized tests administered by ACT, a national testing service, at Brazosport College, a nearby school. The FSP was implemented in May 2003. Operators had until December 31, 2004 to advance the initial two skill levels. If an employee failed to advance, disciplinary action could be imposed. An employee who demonstrated that he was working to achieve the skills needed to perform successfully on the assessment tests but could not do it within the time limits could get additional time and chances to take the tests. Dow did not require that employees prepare for the assessment tests in any specific way or that they prepare at all. The only requirement was to advance two skill levels per year on the test results until a certain level for each of the six areas was reached. Dow took the position when the CBA was negotiated that the time spent on studying or preparing for the assessment tests was not compensable. Dow did provide options for studying and training for employees who chose to do so. Those options were provided through Brazosport College. The options included accessing online training programs, attending classes covering the materials in the assessment tests, attending one-on-one tutoring, visiting computer labs, and obtaining materials, including workbooks and CDs, for self-study. Dow paid ACT and Brazosport College for the study materials, the online training portal, and the classroom programs, which were all offered to covered Dow employees through Brazosport College. Although Dow did not require any studying or studying in a particular way or amount, Brazosport College only allowed employees to take reassessment tests every 90 days unless they had engaged in some form of training. If an employee failed to advance a skill level after taking the assessment test twice, the College required the employee to meet with a tutor before taking the test a third time. (Docket Entry No. 192, Ex. B, Campbell Aff., ¶ 14, Ex. G, Kirby Aff., ¶¶ 7-8). Dow required employees subject to the Foundational Skills Assessment requirement to sign releases that would allow Dow to get their test results from Brazos-port College. (Id., ¶ 12). Failure to execute a release was an offense subject to discipline. (Id., ¶ 18). The releases also allowed Dow to get information on the hours an employee spent studying if that employee did so by accessing online materials through Brazosport College or attended classroom sessions, one-on-one tutoring, or went to computer labs at the College. The College reported those hours to Dow. Each month, Dow received a spreadsheet from the Brazosport College identifying the assessment tests taken and the results, as well as the number of hours the employees spent in training through the College. (Id., Ex. A, Campbell Depo. at 67-71). If, however, an employee used self-study to prepare for the assessments, the only information Dow had about those hours was from the employee reporting them to Dow. The record does not show that employees were required to report their self-study hours, and at least some employees did not do so. Some employees were able to meet the two-skill-level-per-year advancement requirement without studying or training at all. (Id., Ex. C, Campbell Decl. ¶ 6). Most employees, however, prepared through the College classes, tutoring, computer labs, or online materials. Some employees used self-study. (See, e.g., id., Ex. E, Butler Depo. at 45-47, Ex. F, Gilbert Depo. at 49-50, Ex. Q, McConnell Decl., Ex. 2). As of the end of 2004, employees who had satisfied the FSP requirement had spent an average of 18.5 hours of training time to advance one skill level. (Id., ¶¶ 16-17). Because the record does not show that employees were required to report their self-study hours, it appears that this 18.5-hour number was based only on hours tracked by Brazosport College and reported to Dow on the spreadsheets. B. The February 2005 Agreement In the fall of 2004, the Union asked Dow for an amendment to the Site Foundational Skills program to allow employees more time to advance two skill levels before the December 31, 2004 deadline. While over 500 covered employees had satisfied the requirement, 370 had not. In February 2005, Dow and the Union entered into an Agreement addressing the appropriate discipline for employees who failed to achieve the required skill-level advancement. (Docket Entry No. 188, Ex. D, Ex. 1-B at 1). The Agreement, entitled “Skills Initiative — Addressing Non-Compliances,” was “created as a guideline for site consistency in addressing non-compliances as it relates to the contractual requirements on Foundational I & II skills initiatives.” The Agreement provided “examples of different situations and the guidelines on how to address them” grouped into three “Tiers.” (Id. at 2). “Tier I” scenarios, including failing to sign the privacy release form, signing the release form but not taking any Assessments, and signing the release form but not having any activity after that, were to be addressed through a written warning or through progressive discipline “[i]f discipline above the level exists.” (Id.). Signing the release form, taking the Foundational Skills Assessments, and enrolling in training, but failing to advance two skill levels per year, was classified as a “Tier II” scenario if the employee had less than forty hours of training and as a “Tier III” scenario if the employee had forty or more hours of training. A Tier II scenario warranted progressive discipline up to time off without pay or a more severe penalty (but not termination) if the employee’s last disciplinary action was time off without pay. The Tier II approach was to allow employees who had made “reasonable efforts” to improve the assessment test results — by taking at least 40 hours of class training or online training reported to Dow — a chance to avoid job termination despite unsatisfactory test results. A Tier III scenario would lead to an employee receiving a “letter of expectations” establishing a time frame for completing the required skill levels. (Id,.). C. Discipline For Failing to Comply with the Foundational Skills Program; Maynor’s Job Termination Beginning in 2005, covered employees received disciplinary warnings for failing to comply with the program. (Docket Entry No. 188, Ex. A, Singletary Decl. at 2). Approximately four covered employees were suspended, which led to the loss of a performance award for 2005. (Id.). By September 2006, over 40 covered employees had been disciplined. (Id.). Maynor refused to sign the privacy release form, a basic requirement of the FSP. On February 3, 2005, Dow sent May-nor a letter stating that he had failed to meet the Site Foundational Skills program annual requirement; he would have until June 30, 2005 to satisfy the two-level requirement for the prior year; and that he would have until December 31 to satisfy the two-level requirement for 2005. (Docket Entry No. 189, Ex. A, Maynor Depo., Ex. 4, Ex. A-2). Under the February 2005 Agreement between Dow and the Union, an employee’s refusal to sign the release was a Tier I scenario. An initial written warning would issue and continued failure would be addressed under Dow’s progressive discipline policy. (Docket Entry No. 192, Ex. B, Campbell Aff., ¶ 18). On August 10, 2005, after warnings, Dow sent Maynor a letter suspending him without pay for one day for failing to meet the requirements. (Docket Entry No. 189, Ex. A, Maynor Depo., Ex. 4, Ex. A-3). Maynor was the only employee out of more than 700 covered by the program who refused to sign the release. (Docket Entry No. 189, Ex. B, Campbell Depo. at 63,148). In early January 2005, Maynor gave his supervisor, Cheryl Weinberger and Dow’s Labor Relations Manager, Robin Campbell, a packet from Brazosport College containing a paper copy of his training hours report. The record shows that Campbell and Weinberger both knew that the Brazosport College transcript was included in the packet. Weinberger told Maynor in an e-mail that Campbell would be meeting with the legal department and that “[a]t that time, they will consider your request to accept the paper-copies of your college information,” until which time she would “keep the packet in my office.” (Docket Entry No. 193, Ex. F). The following month, in February 2006, Dow terminated Maynor’s employment. The stated reason was his failure to sign the privacy release. Dow took the position that as a result, it could not verify whether Maynor had engaged in training under the FSP or performed satisfactorily on the assessment tests. (Docket Entry No. 192, Ex. B, Campbell Depo. at 115). Maynor filed three grievances in connection with the discipline and the job termination. The termination was upheld in a grievance hearing. (Docket Entry No. 193, Ex. B, Maynor Decl. at 2). D. The DOL Investigation and the November 2006 Contract Modification On September 6, 2006, after approximately 40 covered employees had been disciplined in connection with the FSP, the Union filed a complaint with the DOL. The Union alleged that Dow had violated the FLSA by failing to compensate employees for time spent training for and taking the Foundational Skills Assessments. (Docket Entry No. 188, Ex. A-l at 19). On November 30, 2006, Dow and the Union entered into a Mid-Term Agreement modifying Article XXXIV of the CBA to eliminate the two-skill-level-advancement-per-year requirement. The Mid-Term Agreement eliminated the clause stating that “[fjailure of the employee to attempt to reach these requirements could result in corrective disciplinary action, however employees clearly working toward achieving the skills but simply needing additional time in achieving required levels may be given additional time and opportunities to succeed,” and the clause stating that “[o]nce the Skill Level has been determined, an employee will be expected to move up at least 2 Skill Levels per year until the employee has achieved the required level in all the Skill Categories.” (Docket Entry No. 32, Ex. 1-E). Although Dow retained the Foundational Skills Assessment Program, it was revised to provide that the only consequence of failing to complete the requirements was the inability to bid into a new job. (Docket Entry No. 192, Ex. B, Campbell Aff., ¶ 23). No discipline would result from any failure to comply with the program. (Id.). Covered employees were also compensated for the time spent taking reassessment tests. (Id.). The DOL investigated the Union’s complaint and concluded that because the training and assessments were “mandatory,” Dow was required to compensate employees for the time spent in the FSP. Dow provided the DOL a spreadsheet showing the number of hours each operator had spent on training for the assessments, according to the Brazosport College records. (Docket Entry No. 188, Ex. B, Campbell Depo. at 144). The number of hours and the hourly rates on the spreadsheet led to a total of $2.67 million. Dow disputed the DOL’s conclusions. Without admitting liability, Dow agreed to pay covered employees who participated in the FSP for up to 40 hours per year of training from mid-2005 through November 30, 2006. If an employee had spent less than 40 hours of training during that period, Dow paid for the time actually spent in training. Dow also paid for the time spent taking the skills assessments. Dow agreed to expunge disciplinary records related to the FSP. (Docket Entry No. 192, Ex. B, Campbell Aff., ¶¶ 21-22). On January 14, 2008, the DOL sent Dow a letter stating that under this approach, Dow had underpaid $640,033.28 to 637 employees between July 1, 2005 and June 20, 2007. The letter confirmed that Dow had agreed to pay these amounts. (Docket Entry No. 32, Ex. 4). The payments were made in August and November 2007. (Docket Entry No. 192, Ex. B, Campbell Aff., ¶ 21). On November 9, 2007, Dow sent employees a letter explaining that they would be receiving the payments. The letter stated: You will be receiving a payment from The Dow Chemical Company (“Dow”) and we want to inform you of the purpose of the payment and give you some background on how the payment came to be made. U.S. Department of Labor (“DOL”) recently completed a review of how Dow administered certain skills initiative training in the past. As a result of this review, Dow and the DOL have reached an agreement addressing the question of compensability of time that some employees spent on this training. The skills initiative practice which was in question had been negotiated and agreed to by the Union and the Company in 2003. However, the DOL took the position that some of the employees’ time in the training program was compensable under federal law. After numerous discussions, Dow has voluntarily reached an agreement with the DOL on this issue. While our company does not necessarily agree with the position taken by the DOL, we felt that it was in the best interests of all parties involved to reach an agreement as quickly as possible, in order to bring this matter to resolution. As of November 30, 2006, ratification of the mid-term agreement, there are no 2 level requirements or potential discipline related to the skills initiative. This means that there are no ongoing skills initiative activities that would be compensable under the DOL’s position. Employees will continue to be paid for certain assessment activities. The payment you will receive is based on an assessment of the time that you spent on the compensable activities. Any questions related to this should be directed to Labor Relations. (Docket Entry No. 33, Ex. A). Dow did not make payments to Maynor or expunge his disciplinary records because he had not signed a release and because he was no longer a Dow employee. (Docket Entry No. 192, Ex. B, Campbell Aff., ¶¶ 21-22). The DOL investigator told the Union that operators would not waive their rights to pursue future claims by accepting Dow’s partial payment. (Docket Entry No. 188, Ex. A, Singletary Decl. at 2). E. This Suit and the Conditional Collective Action Certification Maynor filed this lawsuit on October 9, 2007. (Docket Entry No. 1). On May 28, 2008, 2008 WL 2220394, this court conditionally certified a class made up of the following: Current and former members of the International Union of Operating Engineers Local No. 564 employed by Dow at the Dow facility in Freeport, Texas and hired before May 14, 2003 who were required to undergo training and testing in order to comply with the Site Foundational Skills section of the collective bargaining agreement between Dow and the Union between October 9, 2004 and November 30, 2006. (Docket Entry No. 42 at 26). When the class was conditionally certified, sixteen current or former covered employees had filed consents to join. The notice sent to putative class members included the following statement: Again, Dow denies any liability in this case. The lawsuit is in its early stages and no right to recovery has been determined by the Court. If you choose to join the lawsuit, your continued right to participate in the lawsuit may depend on a later decision by the court that you and the Plaintiffs are “similarly situated” employees in accordance with federal law. If you choose to join the lawsuit, you will be bound by the judgment of the Court on all issues of the case. While the lawsuit is proceeding, you may be required to respond to written questions, produce documents, give a deposition and/or testify in Court. If you choose not to join the lawsuit, you will not be affected by the decision rendered, whether favorable or unfavorable. (Docket Entry No. 43 at 3). Since the notice issued, many more plaintiffs have filed consents and some have voluntarily terminated their claims. At present, May-nor has been joined by either 129 or 130 opt-in plaintiffs. In the conditional certification order, this court clarified that the two-step Lusardi approach would govern this collective action. (Docket Entry No. 42 at 11-12). Under that framework, after certification, discovery proceeded on a collective basis. Twelve depositions have been taken and both parties have conducted written discovery. Discovery has revealed details about how the FSP and the reporting of hours spent in preparation and training for the assessments worked in practice. One training option available to covered employees was to access online programs through the ACT servers and the Brazos-port College. Each covered employee received a user ID and password to access the online training materials remotely, including from a laptop computer at the employee’s home or work. ACT tracked and recorded how long each employee was logged onto the system and what training materials the employee accessed while online. Brazosport College obtained its data about the employees’ online training from the ACT servers. Brazosport College submitted that data to Dow. (Docket Entry No. 192, Ex. A, Campbell Depo. at 69-71). Although Dow apparently did not realize it when the FSP began, the company at some point discovered that the only information ACT obtained about how long a covered employee spent in online training was how long an employee remained logged on to the computer, as opposed to how long the employee actually engaged in online training. Once a Dow employee had logged on, the ACT server would record how much time elapsed before the employee logged off. (Docket Entry No. 192, Ex. M, Gay Deck, ¶¶ 3-5). One plaintiff, Gary Phillips, testified that, on occasion, he left the online training portal open while not actually engaged in training activity. He testified that the longest period he spent training after logging on was 90 minutes, but his training records recorded him as engaged in online training for as long as 11 straight hours. (Id., Ex. D, Phillips Depo. at 28-29). Another plaintiff, Clifton Butler, would log onto the computer for online training and simply stay logged on for up to 30 minutes at a sitting. (Id., Ex. E, Butler Depo. at 41-42). Hipólito Nieto would log on at work and stay logged on for his entire eight-hour shift, spending only a few minutes each day actually looking at the online materials. (Id., Ex. N, Nieto Depo. at 26-27). According to Larry Kirby, the Safety Technical Coordinator for Brazosport College, some Dow employees logged onto online training and stayed logged on for extended periods, some so extended that the system recorded over twenty-four hours of training in a single day. (Id., Ex. G, Kirby Decl., ¶ 9). Maynor’s training records include days in which he spent 16.31, 16.32, 20.39, 20.95, 45.47, and 53.98 hours logged onto the online training system. (Id., Ex. O, Maynor Depo., Ex. 4, Ex. A-4). May-nor testified that each of these entries was incorrect as a record of how much time he actually spent training. (Id., Ex. 0 at 150-54). Not every employee who did online training stayed logged on for extended periods with only intermittent or no participation in training. Cluney Woodward testified that he never got up and walked away from an online training session after logging on and that he would participate in training for as many as seven consecutive hours in a session. (Id., Ex. K, Woodward Depo. at 52). Some employees engaged in online and other study methods during their work shifts at Dow. Nieto was not the only employee who logged online training hours while at work. Phillips testified that all the time he spent in online training was while he was on the clock at Dow during his regular shift. Woodward testified that only around five percent of his online training hours occurred while working at Dow; the rest were when he was off duty. (Id., Ex. K, Woodward Depo. at 32-33). Some employees testified that they performed self-study away from work. Phillips also reported fifty hours of self-study, which he spent looking at printed materials provided through Brazosport College. Of those fifty hours, forty were while Phillips was on the clock at Dow on his regular shift. (Id. at 29-32). Other employees only engaged in self-study away from their work at Dow, during their off-duty hours. (Id., Ex. E, Butler Depo. at 46-47). Most of this self-study was similar to what Phillips reported he did; reading manuals and other printed material supplied by ACT and the College. There were, however, some variations in the types of self-study material used. There were also variations in whether the employee studied while engaging in other activities. Maynor testified that a large portion of his self-study hours involved reading the printed materials obtained from the Brazosport College while he was driving his car to and from work. (Id., Ex. 0, Maynor Depo. at 25-26). And some employees self-studied by reading materials that he routinely read apart from the FSP. Anthony Moody testified that between 100 and 150 of his 864 self-study hours was spent reading newspaper articles to test his ability to retain information. Moody regularly read newspapers before Dow began the skills initiative. (Id., Ex H., Moody Depo. at 37, 42-43). The plaintiffs moved for a summary judgment ruling that their hours of participating in the FSP by studying for and taking the assessment tests from October 2004 to November 2006 were compensable. The plaintiffs argue that the undisputed facts show that the studying and training was directly related to their jobs and that their participation was not voluntary. As a result, the plaintiffs argue, the program did not meet all the criteria necessary to exclude the hours from compensable work time under 29 C.F.R. §§ 785.27-785.29. (Docket Entry No. 188). Dow responded by arguing that there are genuine issues of disputed fact material to determining whether the assessment and training time was directly related to the plaintiffs’ jobs and whether the training was voluntary. (Docket Entry No. 194). The plaintiffs replied. (Docket Entry No. 198). Dow also moved for partial summary judgment dismissing Maynor’s claims. (Docket Entry No. 189, 191). The plaintiffs responded, (Docket Entry No. 193), and Dow replied, (Docket Entry No. 195). Finally, Dow moved to decertify the class. (Docket Entry No. 192). Dow argues, in part, that discovery revealed individualized defenses to the FLSA claims. Many employees are claiming compensation for self-study training hours. Brazos-port College did not report self-study hours to Dow. Instead, Brazosport College reported to Dow only the hours logged online and spent in classroom studying, in tutoring sessions. As a result, Dow asserts that it did not and should not have known about most or all of the self-study hours claimed. Dow argues that there will have to be individualized inquiries to determine what each plaintiff communicated to Dow about his self-study hours. (Docket Entry No. 192 at 15). Dow also argues that the flaw in the system for tracking online hours spent in training (as opposed to merely being logged on) means that individualized inquiries will be required to determine how many hours the plaintiffs who used online training actually spent in training. (Id. at 16-17). In response, the plaintiffs emphasize that Dow had reliable information about the number of hours the plaintiffs spent in classroom study, computer labs, and tutoring. (Docket Entry No. 197). These hours were reported to Dow by Brazosport College and are not challenged. The plaintiffs argue that the issues Dow raises relate to only a portion of the hours claimed and involve two questions: whether the hours all the plaintiffs claimed for online study were accurate; and whether Dow knew or should have known about most or all of the hours 85 of the plaintiffs claimed for self-study. The plaintiffs argue that these issues go to damages, not liability, and cannot defeat otherwise appropriate collective action treatment; that determining how many online hours were spent in actual training can be resolved by representative testimony or by bifurcating liability and damages; and that determining the number of hours spent by the 85 plaintiffs who are claiming compensable time for self-study can be managed by subclassing and, if necessary, bifurcation. Each of these motions is considered below. II. The Plaintiffs’ Motion for Summary Judgment A. The Applicable Law 1. Summary Judgment Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir.2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift, Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citation omitted). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir.2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir.2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)). When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ ” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir.2008). The moving party bears a heavier burden when seeking summary judgment on a claim or defense on which it would bear the burden of proof at trial. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). “Thus, if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Id.; see also Meecorp Capital Markets LLC v. Tex-Wave Industries LP, 265 Fed.Appx. 155, 157 (5th Cir.2008) (per curiam) (unpublished) (quoting Fontenot). 2. Compensation for Training Hours Two statutes must be analyzed to decide whether the undisputed facts establish that as a matter of law, the time they spent studying for and taking the skills assessments was compensable: the FLSA, which requires the employer to pay employees for time that the employer controls and requires, 29 U.S.C. § 207; and the Portal-to-Portal Act, which limits that obligation by excluding from compensable time hours spent on activities that are preliminary or “postliminary” to an employee’s principal work activity. 29 U.S.C. § 254(a)(2). An employer must compensate an employee for time spent on all “principal activities” performed during the work day, including time for activities before or after the regular work shift if those activities are an “integral and indispensable part” of the employee’s principal activities for which the employee is employed. The Portal-to-Portal Act exempts employers from liability under the FLSA for failing to compensate for time spent on “activities which are preliminary to or postliminary to said principal activity or activities.” Id. In Dunlop v. City Electric, Inc., 527 F.2d 394 (5th Cir.1976), the Fifth Circuit held that time spent on activities performed by electricians before their 8:00 a.m. start time, such as filling out daily time, material, and requisition sheets, checking job locations for the day, and preparing for that day’s job, were compensable as “principal activities.” Id. at 401. Dunlop defines principal activities as those “performed as part of the regular work of the employees in the ordinary course of business” and “at the employer’s behest and for the benefit of the business.” Id. “The only activities excluded from FLSA coverage are those undertaken ‘for [the employees’] own convenience, not being required by the employer and not being necessary for the performance of their duties for the employer.’ ” Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47, 50 (8th Cir.1984) (quoting Dunlop, 527 F.2d at 398). Under the FLSA, time spent on job-related training activities are generally compensable. Moreau v. Klevenhagen, 956 F.2d 516, 521 (5th Cir.1992). Regulations issued by the Wage and Hour Division of the Department of Labor provide the following criteria to determine whether time spent on such activities as attending lectures or training programs is compensable: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met: (a) Attendance is outside of the employee’s regular working hours; (b) Attendance is in fact voluntary; (c) The course, lecture, or meeting is not directly related to the employee’s job; and (d) The employee does not perform any productive work during such attendance. 29 C.F.R. § 785.27. Time spent on training and similar activities must satisfy all four criteria to be exempt from treatment as compensable time. B. Analysis The primary arguments raised in the plaintiffs’ motion for partial summary judgment are whether, as a matter of law, taking the assessments and preparing for them was “voluntary” and directly related to the employees’ jobs. 1. Voluntary The regulations explain that attendance at events such as classes, lectures, or other education or training sessions is not “voluntary” if it is required by the employer or if “the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.” 29 C.F.R. § 785.28. Dow does not argue that the assessments themselves were voluntary. Dow admits that it required employees to take the assessments. Dow does, however, argue that there are genuine issues of fact material to determining whether the time spent in training and studying for the assessments was voluntary. Dow points out that it required no studying or training. Instead, Dow required a certain level of performance on the assessments — advancing two skill levels per year. An employee who could do so without training at all would comply with Dow policy. Dow cites cases such as Dade County v. Alvarez, 124 F.3d 1380, 1384-85 (11th Cir.1997), to support its argument that requiring a specific level of performance is different from requiring training that might be necessary or useful to achieve this level. Dow argues that even though it required a specific level of performance on the assessments, which many employees could not achieve without studying, the studying was not required, was “voluntary,” and was not compensable. In Dade County, the court found that off-duty training by police officers seeking to pass a mandatory fitness test was voluntary and not compensable under the FLSA. The officers were not “required to spend a specific amount of time training or to perform certain exercise routines during their off-duty hours.” Id. at 1385. There was no evidence that the officers’ “employment would be adversely affected if they did not participate in any particular off-duty activities, as long as they could pass the fitness tests.” Id. “Given the freedom the officers enjoyed in selecting their off-duty activities,” the panel concluded that “the actual off-duty physical activity performed by individual officers was voluntary within the meaning of the regulations.” Id. Similarly, in Bull v. United States, 68 Fed.Cl. 212, 256-60 (Fed.Cl.2005), the court held that off-duty training by customs agents to pass a marksmanship test was voluntary because there was no “directive or requirement to act” and no evidence that employment would have been adversely affected by failing to train. In a similar case, Jackson v. City of San Antonio, 2006 WL 2548545, at *14 (W.D.Tex. Aug 31, 2006), the court reached the same result. It held that off-duty weapons training by police officers seeking to pass a required weapons test was voluntary. Id. The plaintiffs in Jackson did not allege that they would be unable to pass the test without off-duty practice. Id. Similarly, in Price v. Tampa Elec. Co., 806 F.2d 1551 (11th Cir.1987), the court held that off-duty training offered to industrial product testers was voluntary even though the training was a prerequisite to a salary increase. As Dow has noted, the plaintiffs in this case consistently testified in their depositions that no one at Dow told them that they were required to train at all, to spend a certain number of hours training, or to engage in a particular type of training. Like the officers in Dade County and Bull, the plaintiffs were required only to pass the assessment tests at a certain level of proficiency. In Dade County and Bull, the fact that passing would have been difficult without training did not make the training involuntary. And in Dade County and Bull, the fact that the employer made certain training options available and paid for them mean that the training was involuntary. See Bull, 68 Fed.Cl. at 257 n. 47 (finding off-duty weapons training voluntary even though employer provided ammunition for that purpose); Jackson, 2006 WL 2548545, at *14 (same); Price, 806 F.2d at 1552 (finding training courses set up by employer voluntary). The plaintiffs argue that this case is distinguishable from Dade County, Bull, and similar cases. The plaintiffs point to evidence showing that Dow tracked the training hours, receiving spreadsheets from Brazosport College reporting the type and amount of each employee’s training. The plaintiffs also argue that in the CBA, they were warned that “[f]ailure of the employee to attempt to reach” the two-skill-level-per-year advancement requirement “could result in corrective disciplinary action,” (Docket Entry No. 188, Ex. C at 2). The plaintiffs cite the amended Agreement of February 2005 setting discipline for an employee who failed to advance two skill levels per year. The discipline was based on the amount of training time the employee had. An employee who did not pass two skill levels per year and who had fewer than 40 hours of combined classroom and online time per year would receive discipline that could progress up to and including suspension without pay. An employee who did not pass the required two skill levels per year but had more than forty hours of training time would receive a “letter of expectation” setting a deadline to complete the past year’s requirements and the actions that would be taken if this deadline was not met. (Id., Ex. 1-B at 3). In short, the plaintiffs argue, Dow set 40 hours of training as a requirement to avoid discipline if the employee failed to meet the performance level. An employee who took 40 hours of training was making a “reasonable effort” to advance two skill levels per year and would not be subject to progressive discipline. (Docket Entry No. 192, Ex. B, Campbell Aff., ¶¶ 17-18). Dow characterizes the 40 training hours not as a requirement but as an “affirmative defense to discipline if an employee did not meet the requirement of the PSP to advance two skill levels on the assessments per year. (Docket Entry No. 194 at 17). According to Robin Campbell, the February 2005 Agreement came about because approximately 370 employees failed to advance the required two skill levels by December 31, 2004. (Docket Entry No. 192, Ex. B, Campbell Aff. ¶ 17). Campbell testified in his deposition: So it wasn’t Dow’s position that we had changed anything, as far as requiring. What we were trying to do is support the Union’s concern that we’ve actually got people who are out there not blowing this off or not paying attention, that we have a signed CBA, but they just cannot get the two levels. Can we look at other ideas on things to work at? And that’s how this came to life. (Id., Ex. A, Campbell Depo. at 78). The record does not support Dow’s position. The record shows that by September 2006, approximately 40 operators had been disciplined under the CBA and the February 2005 Agreement. (Docket Entry No. 188, Ex. A, Singletary Decl. at 2, Ex. A-l at 61-117). The record does not show how many employees were subject to discipline under Tier II as opposed to Tiers I or III. Dow argues that the February 2005 Agreement did not expose a covered employee to discipline if that employee participated in the program, advanced two skill levels on the assessments, but recorded at least 40 hours of training time. Such an employee would fall under Tier III. Such an employee would, however, receive a letter of expectation stating that disciplinary action could result if the stated expectation was not achieved within the deadline. Many of the letters of expectation required additional training. (Id., Ex. A-l at 61-117). The February 2005 Agreement did expose an employee to progressive discipline — up to suspension without pay^ — -for failing to advance two skill levels per year if that employee had fewer than 40 hours of training. (Docket Entry No. 192, Campbell Depo., Ex. 5). In Dade County, Bull, and Jackson, by contrast, discipline was not tied to the number of training hours completed; it was wholly based on test results. See Dade County, 124 F.3d at 1384-85; Bull, 68 Fed.Cl. at 256-60; Jackson, 2006 WL 2548545, at *14. Cases such as Dade County and Bull are also distinguishable because they involved employment requirements that were already in place when the plaintiffs began their jobs. As the Dade County court explained: “The sole limitation placed upon the officers by the County was that they maintain the level of physical conditioning required by the job of SRT officer ... all of whom were active and physically fit when they applied.” Dade County, 124 F.3d at 1385-86. The employees could not begin the job without first attaining a certain level of fitness and the employees knew when they began work that they had to maintain that level to remain employed. Id. Similarly, the customs officers in Bull were required to undergo weapons training and attain the minimum marksmanship standards before beginning work. The subsequent tests were in place to ensure that the officers maintained that level of competence and the officers knew of this requirement when they began employment. Bull, 68 Fed.Cl. at 258. The officers in Jackson were also required to satisfy marksmanship standards before beginning work. Jackson, 2006 WL 2548545, at *12. Here, by contrast, the issue is the application of the new requirements Dow applied to existing employees. To upgrade the skills of the work force, Dow required that all new hires have an associate’s degree. The existing employees, hired before any such requirement was in place, had to participate in the FSP until they demonstrated that they had equivalent basic skills. The plaintiffs did not need those skills or an associate’s degree to qualify for an operator job when they began work. Unlike the fitness or marksmanship testing for police officers, the FSP did not require covered employees to maintain the skill level required when they began working. The FSP required covered employees to demonstrate by taking assessments that they had developed or improved in six skill areas or face discipline. The undisputed evidence establishes that for covered employees who failed to advance two skill levels per year, up to 40 hours per year spent in training for which Dow received reports from Brazosport College was not voluntary. There are, however, disputed fact issues as to whether time spent in self-study, which Dow did not count in determining whether an employee had made reasonable efforts to meet the two-skill-level-per-year advancement, was voluntary. 2. Related to the Employees’ Jobs Dow argues that there are disputed fact issues material to determining whether the time spent training for assessments was “directly related” to the plaintiffs’ jobs. The “directly related” requirement is the third element of the Labor Department regulations. The Labor Department has issued regulations clarifying this prong of the analysis. The regulations provide: The training is directly related to the employee’s job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill.... Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee’s job even though the course incidentally improves his skill in doing his regular work. 29 C.F.R. § 785.29. Case law has provided additional guidance. In Price, the Eleventh Circuit found that an employee who spent 90% of his time testing rubber goods and 10% working on existing metering equipment could not show that training on upgraded metering equipment was directly related to his job. Price, 806 F.2d at 1552. Citing the Labor Department regulations, the court reasoned that “[ajlthough appellant may have benefitted incidentally from training on the new solid-state meters, the courses were not related to his current job.” Id. Similarly, in Dade County, the court found that the police officers’ off-duty physical training was not directly related to their jobs. Dade County, 124 F.3d at 1385. The court explained: The County did not require the officers to acquire or develop a skill unique to their employment as SRT officers. Although physical fitness training allows SRT officers to perform their core employment function of responding to emergency situations, such training also provides the individual officers with benefits that extend beyond their employment position. Id. These cases provide support for Dow’s argument that training is not directly related to an employee’s job if it develops skills that are either beyond the requirements of the employee’s specific job or so basic and transferrable that the skills would be useful to the employee in any job and beyond. In other words, if the training makes an employee a better person rather than simply better at doing a particular job, the training is not directly related to that job. Dow also points to a Labor Department Wage and Hour Division Opinion Letter. Such opinion letters “constitute a body of experience and informed judgment” but are not binding. Skidmore, 323 U.S. at 140, 65 S.Ct. 161; Dade County, 124 F.3d. at 1385 (quoting Skidmore). In the letter Dow cites, a restaurant owner provided non-English-speaking employees with basic training in English language skills to “provide them greater opportunities in the workforce and enhance job satisfaction and workplace morale.” DOL Wage and Hour Opinion Letter of March 3, 2006, 2006 WL 940661. The employees’ current jobs for the restaurant owner did not require English proficiency. The letter concluded that the training was not directly related to the employees’ jobs. Instead, the language training was “general in scope” and “designed to help the employee advance in society and in work” rather than to “ ‘handle his job more effectively.’ ” Id. at *2 (quoting 29 C.F.R. § 785.29). The evidence in the present record is mixed as to whether the FSP training enabled the operators to do their present jobs more effectively or to upgrade their basic skills so they would be better equipped to perform any jobs, particularly those involving increasingly sophisticated technology. The CBA describes the FSP as intended to “upgrade and maintain skills.” (Docket Entry No. 193, Ex. B at 2). But no employee who completed the FSP was promoted to a different job, which the plaintiffs argue shows that the skills were directly related to the existing operator jobs. See Haszard v. American Medical Response Northwest, Inc., 237 F.Supp.2d 1151, 1165 (“the general rule of 29 C.F.R. § 785.27(c) that training time is compensable if it is ‘not directly related to the employee’s job[ ]’... is meant to encompass all forms of training that do not qualify the employee for advancement or promotion.”). Dow points to Campbell’s statement in his declaration that “[t]he FSP was designed to upgrade the skills of covered employees so they could succeed in the next phase under Article XXXIV of the collective bargaining agreement, namely process operator assessments and training.” (Docket Entry No. 192, Ex. C, ¶ 7). Campbell explained that the training for the assessments did not relate to day-today job functions but instead “was designed to address the position’s requirements as they were going to evolve in the future through advancing technology.” (Id.). The record shows that when Dow created the FSP for existing operators, the job qualifications for a newly hired operator had been changed to require new hires to have an associate’s degree. Dow added that degree requirement to ensure that operators had the necessary skills for jobs that increasingly required learning sophisticated and complex technical information. (Docket Entry No. 192, Ex. A, Campbell Depo. at 40). The existing operators needed to develop equivalent skills to be able to understand new technology and to perform jobs that would increasingly require training in what Dow referred to as “process technology.” Dow set up the FSP out of concern that existing employees “may not have the skills and ability to understand” the process technology training. (Id. at 40-41). The newly hired operators’ job description had changed to require an associate’s degree; the FSP was put it in place so that existing operators could attain equivalent skill levels. The fact that newly hired operators were required to have an associate’s degree and the existing operators were required to achieve certain levels on the assessments as an equivalent weighs in favor of finding that the FSP was directly related to the covered employees’ jobs. Other aspects of the FSP, however, support a different conclusion. The FSP was directed to “foundational skills.” The assessments, and the training to prepare for those assessments, were on general, basic skills. Such skills, and the training to achieve and improve them, did not merely apply to specific jobs, but to better performance in the workplace in general and, indeed, in life. In this respect, the training is similar to the English-language training described in the DOL letter and to the fitness training at issue in Dade County. Basic skills in reading, applied mathematics, locating information, teamwork, applied technology, and observation improve the employees’ ability to do many jobs and to be productive away from the workplace as well. See Dade County, 124 F.3d at 1385 (“such training also provides the individual officers with benefits that extend beyond their employment position.”); DOL Wage and Hour Opinion Letter of March 3, 2006, 2006 WL 940661, at *2 (“The training is designed to help the employee advance in society and in work.”); see also 29 C.F.R. § 785.31 (creating a “special” exemption to compensability if an employee voluntarily attends courses as part of a “program of instruction which corresponds to courses offered by independent bona fide institutions of learning” that the employer has established “for the benefit of his employees”); but see Haszard, 237 F.Supp.2d at 1165 (“The unique exception of college-type courses should be restricted to those situations in which the course is clearly offered on a voluntary basis for the benefit of the employee.”). Fact issues remain as to whether the training, in whole or in part, was directly related to the plaintiffs’ jobs. To the extent that the plaintiffs seek summary judgment that their training and study time for the assessments was compensable, their motion is granted in part. The record shows that up to forty hours per year, reported to Dow by Brazosport College, was not voluntary; an employee who logged fewer hours and failed to improve two skill levels per year was subject to discipline. There are fact issues that must be resolved to determine whether other types of training were voluntary, because Dow did not count any other types of training in deciding whether to discipline employees for failing to meet the FSP requirements. There are also fact issues that must be resolved to determine whether all or part of the training time was related to the plaintiffs’ jobs. The plaintiffs’ motion is for summary judgment is also granted with respect to the plaintiffs’ argument that they did not waive their claims by accepting partial payment from Dow in the Labor Department settlement. The record shows that because Dow chose to pay two years instead of three years in back wages, the DOL did not require employees to sign a form waiving their rights. The DOL investigator informed the Union that employees would not waive their rights to pursue claims by accepting settlement payments. (Docket Entry No. 188, Ex. F-l). Dow has conceded that no waiver occurred. (Docket Entry No. 194 at 2 n. 1). III. Dow’s Motion for Partial Summary Judgment Dow has moved for summary judgment on Maynor’s individual claim for overtime pay as well as on his claim that he was discharged in retaliation for engaging in activity protected by the FLSA. A. Maynor’s FLSA Retaliation Claim Maynor’s retaliation claim arises under section 15(a)(3) of the FLSA, which makes it unlawful: to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee 29 U.S.C. § 215(a)(8). This claim is analyzed under the McDonnell Douglas burden-shifting approach, borrowed from Title VII. See Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 624 (5th Cir.2008). Maynor has the initial burden to make out a prima facie case of retaliation. His prima facie case has three parts: (1) participation in a protected activity; (2) an adverse employment action; and (3) a causal link between the two. If Maynor makes that showing, the burden shifts to Dow to articulate a legitimate, nonretaliatory reason for its decision to take the adverse employment action. If Dow can provide such a reason, the burden returns to Maynor to show that the proffered reason is a pretext for retaliation. Id. Maynor’s summary judgment burden during this third stage is to raise a fact issue as to whether Dow took the action against Maynor “because of’ his protected activity. Id. (citing Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 576 (5th Cir.2004)). This is a “but for” causation standard. Kanida, 363 F.3d at 580. To satisfy the first element of his prima facie case, Maynor alleges that he complained to Robin Campbell, Dow’s Labor Relations Manager in Freeport, and others, about Dow’s refusal to compensate him and others for time spent training for and taking the assessments. The question is whether Maynor “filed any complaint” under section 215(a)(3). See Hagan, 529 F.3d at 623. The Fifth Circuit has construed that language to allow “an informal, internal complaint to constitute protected activity under Section 215(a)(3).” Id. at 626. But there are limits. “[N]ot all abstract grumblings or vague expressions of discontent are actionable as complaints.” Id. (citations and quotations omitted). The informal complaint must “concern some violation of law” and be “framed ... in terms of the potential illegality” of the action. Id. In Hagan, the panel found that the plaintiffs complaints about a schedule change were not protected activity because he did not contend — or, as he testified, even subjectively believe — that the change was illegal. The schedule change was in fact legal. The plaintiff had raised concerns “about the possibility” of employees receiving less overtime pay, not about any vi