Alston v. DIRECTV, Inc. (254 F. Supp. 3d 765, 2017)

ORDER AND OPINION

J. Michelle Childs, United States District Court Judge

Defendants DIRECTV, Inc., DIRECTV, LLC (together, “DirecTV”) and MasTec North America, Inc. (“MasTec”) (collectively, “Defendants”) have filed 14 motions seeking summary judgment on claims arising under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., asserted by Plaintiffs James Alston, Car-nell Bullock, Mark Hilton, Zachary Jenkins, James Kile, Rhett Linley, John McPherson, Jeffrey Naves, Joseph Robinson, Carl Simon, Khehadi Watkins, Corey Gleaton, Nolan Pegues, and Alan Ryman (together, “Plaintiffs”). (See ECF Nos. 87 to 100.) A hearing on the motions has been scheduled. (See ECF No. 139.) In order to streamline the upcoming hearing and to ensure an expeditious disposition of the summary judgment motions, this order addresses a number of arguments raised by the parties for which the court believes argument at a hearing would not be beneficial. Accordingly, in this order, the court DENIES IN PART Defendants’ motions for summary judgment and reserves decision on the remaining aspects of the motions until after the hearing.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On October 20, 2014, Plaintiffs filed their complaint in this matter, alleging that they are all technicians who worked installing and repairing satellite television service systems offered to consumers by DirecTV. (See ECF No. 1 at 2, 5.) Plaintiffs allege that DirecTV oversees a “provider network” of corporate entities called Home Service Providers (“HSPs”) that provide DirecTV with its workforce of technicians. (,See id. at 5.) Ostensibly, HSPs, such as MasTech, either employ technicians directly or engage technicians as independent contractors, and an HSP might also subcontract with another HSP to provide DirecTV with technicians who are designated as employees or independent contractors of the subcontracted HSP. (See id. at 5-6.) Plaintiffs allege that the HSP provider network was designed to allow DirecTV to exercise the right of control over technicians while avoiding its obligation to comply with the requirements that the FLSA imposes on employers. (See id. at 6-8.) Plaintiffs claim that, despite Defendants’ designation of their employment status, Plaintiffs were jointly employed by DirecTV and by the HSPs that engaged them for purposes of the FLSA. (See id. at 8-10.)

Plaintiffs also claim that the net effect of Defendants’ policies and practices was to willfully fail to pay minimum wage and overtime compensation due to Plaintiffs, and to avoid keeping accurate time records in order to save on payroll costs. (See id. at 10.) They allege that DirecTV used a computer program called SIEBEL to coordinate and assign to technicians particular work orders for installing or repairing DirecTV systems and that DirecTV used a per-task (piece-rate) payment scheme to compensate technicians for completing work orders. (See id. at 7.) Although the system accounted for some of the time during which technicians completed work orders, Plaintiffs allege that it failed to account for all of that time and that technicians were not compensated for the time needed to perform other necessary work, such as

assembling satellite dishes, driving to and between job assignments, reviewing and receiving schedules, calling customers to confirm installations, obtaining required supplies, assisting other technicians with installations, performing required customer educations, contacting [DirecTV] to report in or activate service, working on installations that were not completed, and working on. “rollback” installations where Plaintiffs had to return and perform additional work on installations previously completed.

(Id. at 11.) Plaintiffs also allege that the provider network resulted in many technicians being miselassified as independent contractors and that, due to this misclassi-fication, technicians were required to purchase at their own expense the supplies necessary to perform the work and that “chargebacks” were deducted from their pay. (See id. at 12.) As a result of Defendants’ failure to compensate technicians for working all the time necessary to perform their work and Defendants’ failure to reimburse technicians for chargebacks and expenses necessarily incurred to perform their work, Plaintiffs allege that they were paid below the minimum wage and overtime wage rates, in violation of the FLSA. (See id. at 10-12.) Plaintiffs seek damages for unpaid minimum wages, unphid overtime wages, and liquidated damages, pursuant to 29 U.S.C. § 216(b), and damages from unpaid wages and compensation resulting from their misclassification as independent contractors. (See id. at 24-27.)

After discovery was completed (see ECF No. 66 at 1), Defendants filed the instant motions for summary judgment (see ECF Nos. 87 to 100). Although Defendants raise several grounds for summary judgment, each motion is specifically tailored to each of the 14 remaining Plaintiffs’, such that not all of the grounds raised are applicable to each Plaintiff. (See ECF No. 181 at 52 (appendix).) Defendants assert that they are entitled to summary judgment on all or some of the claims asserted by all or some of the remaining Plaintiffs because there is no genuine dispute that (1) certain Plaintiffs were properly classified as independent contractors and were not jointly employed by Defendants; (2) Defendants lacked the requisite knowledge of the hours Plaintiffs worked; (3) certain Plaintiffs are subject to the retail or service establishment exemption for overtime wages under 29 U.S.C. § 207(i); (4) certain Plaintiffs were paid at least the minimum wage; (5) certain Plaintiffs are unable to make the requisite showing of damages; (6) certain Plaintiffs’ claims are barred by two year statute of limitations in 29 U.S.C. § 255(a); and (7) certain Plaintiffs were properly paid overtime wages during their employment with Mas-Tee. (See ECF Nos. 87-1, 88-1, 89-1, 90-1, 91-1, 92-1, 93-1, 94-1, 95-1, 96-1, 97-1, 98-1, 99-1, 100-1; see also ECF No. 131 at 52.)

II. LEGAL STANDARD

Summary judgment is appropriate when the materials in the record show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[I]n ruling on a motion for summary judgment, ‘the evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor.’” Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (per curiam) (brackets omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmov-ing part[ies],” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The parties seeking summary judgment shoulder the initial burden of demonstrating to the court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movants have made this threshold demonstration, the non-moving parties, to survive the motion for summary judgment, may not rest on the allegations averred in their pleadings. Rather, the non-moving parties must demonstrate that specific, material facts exist which give rise to a genuine issue. See id. at 324, 106 S.Ct. 2548.

III. ANALYSIS

The court addresses Defendants’ grounds for summary judgment below. As indicated by the truncated recitation of the facts above, the court discusses the relevant evidence to which the parties point in each of the below subparts as needed.

A. Joint employment and designation of Plaintiffs’ employment status

As Defendants correctly point out, for a defendant to be liable under the FLSA provisions at issue here, a plaintiff must prove that he was the defendant’s employee, as that term is used for purposes of the FLSA. See Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 133 (4th Cir. 2017) (citing 29 U.S.C §§ 203(e)(1), 206(a), 207(a)(1)). Under the FLSA, an individual may be jointly employed by more than one entity at the same time, with all joint employers being jointly responsible for compliance with the FLSA. See id. at 133-35. Under their theory of liability, Plaintiffs appear to argue that each Plaintiff was jointly employed by DirecTV and MasTec (see ECF No. 125 at 71-88), even though Plaintiffs Bullock and Ryman assert claims against DirecTV only, and not against MasTec (see ECF No. 1 ¶¶ 84,147).

In their first ground for summary judgment, Defendants have asserted in their motions that Plaintiffs fail to adduce evidence sufficient to raise a genuine dispute that DirecTV and MasTec did not jointly employ Plaintiffs Alston, Hilton, Jenkins, Kile, Linley, McPherson, Naves, Robinson, Simon, and Watkins (see ECF No. 87-1 at 10-21; ECF No. 90-1 at 8-20; ECF No. 91-1 at 9-20; ECF No. 92-1 at 9-21; ECF No. 93-1 at 9-21; ECF No. 94-1 at 10-22; ECF No. 96-1 at 9-20; ECF No. 98-1 at 11-23; ECF No. 99-1 at 10-22; ECF No. 100-1 at 12-25) or that DirecTV was not a joint employer of Plaintiffs Bullock, Gleaton, Pegues, and Ryman (see ECF No. 88-1 at 8-20; ECF No. 89-1 at 10-19; ECF No. 95-1 at 9-18; ECF No. 97-1 at 9-20). Defendants argue that the larger group of Plaintiffs have failed to adduce sufficient evidence that DirecTV and MasTec were their joint employers under the four-factor test set forth in Bonnette v. California Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983), or the six-factor test set forth in Ling Nan Zheng v. Liberty Apparel Co., Inc., 355 F.3d 61 (2d Cir. 2003), (see, e.g., id. at 14-21) and that the smaller group failed to adduce sufficient evidence that DirecTV was their joint employer under either the Bonnette or Zheng tests (see, e.g., ECF No. 88-1 at 13-20).With respect to all Plaintiffs except Gleaton, Pegues, and Robinson, Defendants also argue that each of them were independent contractors of an HSP subcontracted by MasTec to provide technicians for DirecTV and that, because they were independent contractors of a third party, they, as a matter of law, could not be employees of MasTec and DirecTV. (See, e.g., ECF No. 87-1 at 10 (citing Roslov v. DirecTV, Inc., 218 F.Supp.3d 965 (E.D. Ark. 2016)).)

After Defendants filed their motions for summary judgment, the Fourth Circuit issued, on the same day, its opinions in Salmas and in Hall v. DIRECTV, LLC, 846 F.3d 757 (4th Cir. 2017). In Salinas, the Fourth Circuit reaffirmed its decision in Schultz v. Capital International Security, Inc., 466 F.3d 298 (4th Cir. 2006), which

established a two-step framework for analyzing FLSA joint employment claims, under which courts must first determine whether two entities should be treated as joint employers and then analyze whether the worker constitutes an employee or independent contractor of the combined entity, if they are joint employers, or each entity, if they are separate employers

Salinas, 848 F.3d at 139-40 (citing Schultz, 466 F.3d at 305-07). Regarding the first step of this two-step framework, the court noted that district courts in this circuit had applied the Bonnette and Zheng tests to determine whether two entities should be treated as joint employers. See id. at 136. However, after a thorough review of the issue, the Salinas court expressly admonished the district courts to “no longer employ Bonnette or tests derived from Bonnette in the FLSA joint employment context,” id. at 140; see also id. at 137 (“[Cjourts should not rely on the Bonnette factors in determining whether a worker constitutes an employee or independent contractor for purposes of the FLSA and analogous labor statutes.”), an admonition that appears to prohibit employing Zheng for the same purpose, see id. at 136 (viewing the Zheng test as a “liberalized” version of the Bonnette test). After expressly prohibiting the use of Bon-nette and similar tests, the Salinas court set forth its own list of six non-exhaustive factors a court should consider in determining whether two entities should be treated as joint employers for FLSA purposes. See id. at 141-42. Regarding the second step of the two-step framework, the Salinas court reaffirmed Schultz’s six-factor test, derived from United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947), abrogated in part on other grounds by Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), in determining whether a worker constitutes an employee or independent contractor of the joint or separate employers. See Salinas, 848 F.3d at 137 n.7, 150.

In Hall, the Fourth Circuit addressed, among other things, a district court’s decision to first determine whether a plaintiff was an employee before determining whether the defendants were joint employers under the FLSA. See 846 F.3d at 766-67. Despite the express language in Schultz “recognize[ing] that in certain cases it may be necessary to first determine whether a party is an ‘employer’ for FLSA purposes before determining whether a joint employment arrangement exists,” 466 F.3d at 306 n.l, the Hall court nonetheless- castigated the district court for “invert[ing] the two-step inquiry [the Fourth Circuit] ha[d] adopted in FLSA joint employment cases,” 846 F.3d at 767; see also id. at 769 (explaining that “the district court’s inversion of the two-step Schultz framework alone would warrant reversal” and again castigating the district court for “compound[ing] its error by relying on Bonnette”). The Fourth Circuit concluded that courts “first must determine whether the defendant and one or more additional entities” were joint employers before proceeding to “the second step of the analysis — which asks whether a worker was an employee or independent contractor for purposes of the FLSA.” Hall, 846 F.3d at 767. It reasoned that the outcome of the second step “depends in large part upon the answer to the first step,” because the key inquiry is “whether the two entities’ combined influence over the terms and conditions of the worker’s employment render the worker an employee as opposed to an independent contractor.” Id. Thus, “[f]ocusing first on the relationship between putative joint employers is essential to accomplishing the FLSA’s ... purpose.” Id.

Here, as Plaintiffs assert (see ECF No. 125 at 71-88) and as Defendants acknowledge (see ECF No. 131 at 5-27) to some extent, the assessment of Plaintiffs’ joint employer theory of liability under the FLSA must proceed under the two-step analysis reaffirmed in Salinas, and, in addressing the first step, the court must apply the non-exhaustive six-factor test set forth in Salinas and may not apply the tests set forth in Bonnette or Zheng. Accordingly, to the extent that Defendants argue that they are entitled to summary judgment on the ground that they were not joint employers of any Plaintiff under the application of the Bonnette and Zheng tests, the court DENIES their motion in this respect.

Moreover, as the Fourth Circuit explained in Hall, the court may not first determine whether a worker is an employee of a putative joint employer before determining whether a joint employer arrangement exists. To do so would violate the principle emphasized by the Fourth Circuit that whether an employment relationship exists in the context of an alleged joint employer arrangement depends on the putative joint employers’ combined influence over the terms and conditions of the work to be performed, rather than their separate influence. Accordingly, the court cannot agree with Defendants that, should the court conclude that certain Plaintiffs have failed to create a genuine dispute that they are not independent contractors of a third-party HSP, then, as a matter of law, Defendants cannot be joint employers of those Plaintiffs. Such an analysis inverses the two-step framework set forth in Salinas and Hall. Accordingly, to the extent that Defendants argue that they are entitled to summary judgment on the ground that they were not joint employers of certain Plaintiffs because those Plaintiffs were independent contractors of third-party HSPs, the court DENIES their motion in this respect.

The court declines, until after the hearing on Defendants’ summary judgment motions, to decide whether Plaintiffs have adduced sufficient evidence to create a genuine dispute that Defendants jointly employ any of the Plaintiffs under the two-step framework articulated in Salinas and Hall.

B. Knowledge of uncompensated work

To succeed on a 29 U.S.C. § 207(a)(1) claim for uncompensated overtime wages, a plaintiff bears the burden of proving, as an element of the claim, that the employer had actual or constructive knowledge of the plaintiffs uncompensated overtime work. See Bailey v. Cnty. of Georgetown, 94 F.3d 152, 157 (4th Cir. 1996); Pforr v. Food Lion, Inc., 851 F.2d 106, 109 (4th Cir. 1988); Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir. 1986). This court has consistently applied this requirement to FLSA claims for uncompensated overtime wages, see MacGregor v. Farmers Ins. Exch., No. 2:10-cv-03088-DCN, 2014 WL 4199140, at *3 (D.S.C. Aug. 20, 2014); Martin v. Champion Window Co. of Columbia, LLC, No. 3:09-757-JFA, 2010 WL 412583, at *2 (D.S.C. Jan. 28, 2010), as have other district courts within the Fourth Circuit, see Brockdorff v. Wells Mgmt. Grp., LLC, No. 3:15cvl37-HEH, 2015 WL 3746241, at *4 (E.D. Va. June 15, 2015); Butler v. DirectSAT USA, LLC, 55 F.Supp.3d 793, 803 (D. Md. 2014); Porter v. Petroleum Transp., Inc., No. 2:10-cv-01384, 2012 WL 3835075, at *2 (S.D.W. Va. Sept. 4, 2012). Moreover, the knowledge element in the § 207(a)(1) uncompensated overtime wages context is premised on the FLSA’s prerequisite that the plaintiff show that he was “employed” (meaning suffered or permitted to work, 29 U.S.C. § 203(g)) by the defendant, see Davis, 792 F.2d at 1276, a prerequisite also imposed in a 29 U.S.C. § 206(a)(1) claim for violation of the minimum wage requirement, see Sanchez v. Truse Trucking, Inc., 74 F.Supp.3d 716, 721 (M.D.N.C. 2014). Accordingly, to succeed on a § 206(a)(1) claim for violation of the minimum wage requirement, a plaintiff must prove that the defendant had actual or constructive knowledge of the plaintiffs work that forms the basis of his claim. See Porter, 2012 WL 3835075, at *2.

Defendants assert that Plaintiffs have failed to adduce sufficient evidence to raise a genuine dispute that Defendants lacked actual or constructive knowledge of any uncompensated work performed by Plaintiffs and, therefore, that Defendants are entitled to summary judgment on all of Plaintiffs’ wage-related claims. (See, e.g., ECF No. 87-1 at 22-23 (citing Hertz v. Woodbury Cnty., 566 F.3d 775, 782 (8th Cir. 2009); Whitaker v. Pac. Enters. Oil Co., 956 F.2d 1170, at *1 (10th Cir. 1992) (unpublished table disposition)).) Defendants first assert Plaintiffs have not demonstrated actual knowledge of Plaintiffs’ work hours because it is undisputed that Defendants did not monitor or record Plaintiffs’ schedules and that they did not pay Plaintiffs and thus had no knowledge of the methods or rates of payment. (See, e.g., id. at 22.) Defendants also assert that Plaintiffs have not demonstrated constructive knowledge of Plaintiffs’ work hours. (See, e.g., id.) Defendants argue that SIE-BEL, the program used to issue and track the performance and completion of DirecTV work orders, is nót a timekeeping or payroll system and that it would have been futile for Defendants to attempt to track the number of hours Plaintiffs worked using SIEBEL because the amount of hours each work order takes to complete varies. (See, e.g., id. at 22-23.)

In response, Plaintiffs advance two arguments. First, Plaintiffs argue essentially that, when an alleged employer disavows the employment relationship and has made no attempt to monitor or record a putative employee’s work hours, the requirement that the alleged employer have actual or constructive knowledge of the putative employee’s uncompensated work hours should not apply. (See ECF No. 125 at 88 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds, Portal-to-Portal Act, Pub. L. No. 49-52, § 5, 61 Stat. 84, 87 (1947) (codified at 29 U.S.C. § 216(b))).) Second, Plaintiffs argue that they have adduced sufficient evidence regarding SIEBEL to raise a genuine dispute as to whether Defendants had knowledge of Plaintiffs’ uncompensated work hours because SIEBEL tracked and reported the timé at which technicians arrived at each job site and the expected total time it would take a technician, to complete all work orders assigned in a day and because MasTec admitted that technician's rarely worked less, than 40 hours per week. (See id. at 21-22, 89 (citing ECF No. 125-4 at 90).)

The court rejects Plaintiffs’ first argument. The court emphasizes here that the knowledge requirement is derived from the FLSA’s prerequisite for liability that the defendant employ the plaintiff and from the FLSA’s definition of the term “employ.” See Davis, 792 F.2d at 1276-77. A plaintiff must prove that the defendant knew or should have known of the work performed precisely because doing so is integral to proving that the defendant employed plaintiff to do that work for purposes of FLSA liability. Id.; see also Porter, 2012 WL 3835075, at *2; Darrikhuma v. Southland Corp., 975 F.Supp. 778, 783 (D. Md. 1997). A conclusion that a plaintiff is not required to prove a defendant’s actual or constructive knowledge that plaintiff performed the work amounts to a conclusion that the plaintiff need not prove that the defendant suffered or permitted the work to be done, even when (or specifically because) the defendant disputes that it employed the plaintiff. Such a conclusion is untenable because it presumes from the outset that the defendant employed plaintiff and places on defendant the burden to disprove that presumption, a result not contemplateB by FLSA jurisprudence and one that, in fact, upends FLSA analysis. See Pforr, 851 F.2d at 109 (“[T]his burden is squarely upon the plaintiff; a defendant ... is not required to show lack of knowledge as an affirmative defense.”); Davis, 792 F.2d at 1277 (“Nothing ... in the [FLSA] itself treats the lack of employer knowledge as an affirmative defense to be raised and proved by the employer.”). Accordingly, the court cannot accept an argument that is premised on this legal conclusion.

Plaintiffs’ reliance on Mt. Clemens in this regard is misplaced. As the Fourth Circuit explained when faced with a similar argument regarding the knowledge requirement, Mt. Clemens

was squarely directed at the issue of what evidence an employee must introduce to establish the extent of his overtime work when his employer has kept inadequate records. Employer 'knowledge was not an issue in that case. Nothing in Mt. Clemens ... treats the lack of employer knowledge as an affirmative defense to be raised and proved by the employer. The [FLSA] requires the plaintiff to prove that he was “employed” by the defendant, and that means proof that the defendant knew or should have known that the plaintiff was working overtime for the employer.

Davis, 792 F.2d at 1277 (internal citation omitted); see also Craig v. Bridges Bros. Trucking, LLC, 823 F.3d 382, 391-92 (6th Cir. 2016) (warning against “conflat[ing] the issues” by equating Mt. Clemens’ standard for proving that a plaintiff performed the work with the standard of proving that a defendant had actual or constructive knowledge of the work). Aside from Mt. Clemens, which is inapposite, Plaintiffs point to no other authority supporting the proposition that an FLSA plaintiff need not prove the defendant’s actual or constructive knowledge of the work when the defendant disputes that it employed the plaintiff and has not attempted to monitor or record the plaintiffs work. Because this proposition otherwise has no support in law, the court rejects it and will not further entertain Plaintiffs’ arguments in this vein.

The court declines to address the parties’ other argument — concerning whether Plaintiffs have adduced sufficient evidence of Defendants’ knowledge' — until after the hearing.

C. Retail or service establishment overtime wages exemption

The FLSA provides an exemption from' § 207(a)’s overtime wage requirement for qualifying employers that employ the employee in “a retail or service establishment.” 29 U.S.C. § 207(i). Aside from the threshold requirement that the employer employ the employee in a retail or service establishment, exemption from the overtime wages requirement under § 207(i) is applicable only

if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 ..., and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services.

Id.

Because the FLSA “is ‘remedial and humanitarian in purpose’ reflecting an intent by Congress to protect broadly the ‘rights of those who toil,’ ” Morrison v. Cnty. of Fairfax, 826 F.3d 758, 761 (4th Cir. 2016) (quoting Tenn. Coal, Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944)), “courts are to construe the FLSA liberally, ‘recognizing that broad coverage is essential’ to accomplishing the statute’s goals,” id. (quoting Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 296, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985)); see also Purdham v. Fairfax Cnty. Sch. Bd., 637 F.3d 421, 427 (4th Cir. 2011) (“[T]he Supreme Court has cautioned that the FLSA ‘must not be interpreted or applied in a narrow, grudging manner[.]’ ” (quoting Tenn. Coal, 321 U.S. at 597, 64 S.Ct. 698)). For these reasons, “FLSA exemptions ... ‘are to be narrowly construed against the employers seeking to assert them’ and applied only in instances ‘plainly and unmistakably with the exemptions’ terms and spirit.’ ” Morrison, 826 F.3d at 761 (internal quotation marks omitted) (quoting Desmond v. PNGI Charles Town Gaming, L.L.C., 564 F.3d 688, 692 (4th Cir. 2009) (“Desmond /”)); see Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). Thus, although the Fourth Circuit does not appear to have confronted the exemption set forth in § 207(i), in general, employers asserting an exemption bear the burden to “prove the application of the exemption by clear and convincing evidence.” Calderon v. GEICO Gen. Ins. Co., 809 F.3d 111, 121 (4th Cir. 2015) (citing Desmond I, 564 F.3d at 691 n.3); see also Schmidt v. Charleston Collision Holdings Corp., No. 2:14-cv-01094-PMD, 2015 WL 3767436, at *5 (D.S.C. June 17, 2015) (applying clear and convincing evidence standard to employer’s assertion of § 207(i) exemption); Herrera v. TBC Corp., 18 F.Supp.3d 739, 741-42 (E.D. Va. 2014) (same after noting circuit split).

In the court’s estimation, Defendants’ argument that there is no genuine dispute that the § 207(i) exemption applies to them fails at the threshold issue of whether they employed Plaintiffs in a retail or, service establishment, so the court limits its discussion in this order to this threshold issue. Defendants, asserting the § 207(i) exemption against all Plaintiffs except Gleaton, Naves, and Pegues (see ECF No. 87-1 at 24-25; ECF No. 88-1 at 22-24; ECF No. 90-1 at 22-23; ECF No. 91-1 at 23-24; ECF No. 92-1 at 23-24; ECF No. 93-1 at 23-24; ECF No. 94-1 at 24-26; ECF No. 96-1 at 25-26; ECF No. 97-1 at 24-26; ECF No. 98-1 at 26-27; ECF No. 99-1 at 28-30), rely heavily on Matrai v. DirecTV, LLC, 168 F.Supp.3d 1347 (D. Kan. 2016), (see, e.g., ECF No. 87-1 at 24-25). Noting first that § 207(i) does not define the term “retail or service establishment,” the Matrai court outlined two tests that courts have used in determining whether an employer employs an employee in a retail or service establishment for purposes of § 207(i). See Matrai, 168 F.Supp.3d at 1359-62. The first test relies on the definition of “retail or service establishment” provided in the since-repealed 29 U.S.C. § 213(a)(2) and the case law and Department of Labor regulations emanating therefrom. See Matrai, 168 F.Supp.3d at 1359-60. Under this test, a “retail or service establishment” means an establishment with at least 75% of its annual dollar volume of goods or services being (1) not available for resale and (2) recognized as retail sales or service in the particular industry. See id. at 1359 (citing 29 C.F.R. § 779.411); see also Schultz v. W.R. Martin & Son, Inc., 428 F.2d 186, 187 n.3 (4th Cir. 1970). The second test, developed by the Seventh Circuit in Alvarado v. Corp. Cleaning Services, Inc., 782 F.3d 365 (7th Cir. 2015), defines a “service establishment” (as opposed to a “retail establishment”) by reference to the establishment’s production’s sensitivity to demand: “Demand for services often varies, and when demand drops the seller cannot make up for it, as a maker of goods can do, by producing for inventory rather than for immediate sale,” Alvarado, 782 F.3d at 369; see Matrai, 168 F.Supp.3d at 1360.

In support of their argument that they employed Plaintiffs, if at all, in a retail or service establishment, Defendants point to the declaration of Valerie Kirby, DirecTV’s Supervisor of Financial Operations. (See e.g., ECF No. 87-1 at 3; see also ECF No. 101-3 at 2.) Kirby, in relevant part, states that “DIRECTV’s records reflect that substantially all, and well over 75% of DIRECTV’s revenues, come from the sales of goods and services to the end user — meaning more than 75% of DIRECTV’s revenues come from the sales of goods and services that are not for resale.” (ECF No. 101-3 at 2.) Defendants also point to the declaration of Steven Hill, the Deputy Executive Director of the Satellite Broadcast and Communications Association (“SBCA”) who bases his knowledge of the “consumer satellite industry” on his more than 10 years of employment with SBCA and his nearly 10 years of employment with Pegasus Communications. (See, e.g., ECF No. 87-1 at 3; see ECF No. 101-2 at 2-3; ECF No. 131 at 33 n.18.) Hill states, in relevant part:

Sales and services that are generally recognized as “retail” in our industry include ... the services performed by technicians to fulfill the retail transaction between the Satellite Service and the Consumer by delivering, installing, or servicing the equipment purchased or leased by the customer, and activating or maintaining the customer’s connection to the satellite company’s satellite television service.

(ECF No. 101-2 at 3.) Aside, from these two declarations, Defendants point to no other evidence in support of their argu-. ment that they employed Plaintiffs in a retail or service establishment for purposes of the § 207(i) exemption.

Before proceeding to Plaintiffs’ response, the court pauses to draw two conclusions' from Defendants’ arguments. First, the court observes that Defendants present no argument or evidence supporting application of the Alvarado test in determining whether Defendants employ Plaintiffs in a retail or service establishment for purposes of § 207(i). In Defendants’ memoranda in support of summary judgment, the Alvarado test is only mentioned in a block quote lifted from Matrai, but Defendants fail to assert that they are unable to continue producing their products (for instance by producing for inventory) when demand for the product drops. (See, e.g., ECF No. 87-1 at 24-25.) Defendants advance no argument regarding the sensitivity of their production to the changes in demand, and, more importantly, they point to no evidence in the record by which they might satisfy their burden of proving by clear and convincing evidence that they are service establishments under the test announced by Alvarado. Instead, the only evidence to which Defendants point in this regard is evidence directed at the other test outlined in Matrai that relies on regulatory definitions based on § 213(a)(2). (See, e.g., ECF No. 87-1 at 3; see ECF No. 101-2 at 2-3; ECF No. 101-3 at 2; ECF No. 131 at 33 n.18.) The court is under no obligation to sift through the uncited portions of Defendants’ voluminous filings submitted in support of summary judgment, and it declines to do so here. See Fed. R. Civ. P. 56(c)(l)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”); id. advisory committee’s note to 2010 amendment (“[T]he court may decide a motion for summary judgment without undertaking an independent search of the record.”). Because Defendants present no argument or evidence on the matter, to the extent they seek summary judgment that they employed Plaintiffs in a retail or service establishment under the test announced in Alvarado, their motions are DENIED in this respect.

Second, although Defendants present both argument and evidence to support the application of the § 213(a)(2) test, the argument and evidence are directed only to proving that DirecTV employed Plaintiffs in a retail or service establishment. While Defendants’ memoranda assert that “more than 75% of DIRECTV’S revenue is generated from the sales of goods and services to the end user and is not for resale” and that “[t]he installation of DIRECTV satellite equipment is recognized as retail within DIRECTV’S industry” (see, e.g., ECF No. 87-1 at 25; ECF No. 131 at 33-34), Defendants fail to make any mention of the percentage of MasTec’s revenue that is generated from the sales of goods and services that are not for resale, the nature of MasTec’s industry, or whether any work performed by Plaintiffs for MasTec is recognized as retail within that industry. Further, the only evidence Defendants present as to the § 213(a)(2) test is expressly addressed to whether DirecTV meets that test and does not appear to have any bearing on whether MasTec meets the test. (See ECF No. 101-2 at 2-3; ECF No. 101-3 at 2.) Accordingly, to the extent Defendants seek summary judgment that MasTec employed Plaintiffs in a retail or service establishment, their motions are DENIED in this respect.

In response to Defendants’ arguments, Plaintiffs first argue that a portion of the evidence on which Defendants rely in support of their argument for application of the § 207(i) exemption should be disregarded pursuant to Fed. R. Civ. P. 26(a)(l)(A)(i), (e)(1) and 37(c)(1). (See ECF No. 125 at 92 n.268.) Specifically, Plaintiffs assert that Defendants failed to timely identify Steven Hill as an individual likely to have discoverable information and whom Defendants may use to support its defense as required by Rule 26(a)(l)(A)(i) and (e)(1) and that therefore Defendants are not allowed to use Hill to supply evidence in support of their motions for summary judgment pursuant to Rule 37(c)(1). (See id.) Defendants did not respond to this argument in their reply brief.

Initial disclosures under Rule 26(a)(1) were due in this matter by July 13, 2015. (ECF No. 40 at 1.) Hill’s declaration was executed nearly three months beforehand on May 22, 2015 (see ECF No. 101-2 at 3), and DirecTV has relied on it in other cases to support application of the § 207(i) exemption, see Arnold v. DIRECTV, LLC, No. 4:10-cv-352 JAR, 2017 WL 1196428, at *7-9 (E.D. Mo. March 31, 2017); Roeder v. Directv, Inc., No. C14-4091-LTS, 2017 WL 151401, at *26-29 (N.D. Iowa Jan. 13, 2017). Although DirecTV relied on the Hill declaration for this purpose at the latest by August 19, 2016, see Roeder, 2017 WL 151401, at *2, the only Rule 26(a) disclosure served by DirecTV on record, which was supplemented on September 29, 2016, does not specifically name Hill as a witness likely to have discoverable information whom DirecTV may use to support its defense (see ECF No. 125-58 at 1-7, 10). Instead, the disclosure lists as such witnesses the “witnesses identified under [Fed. R. Civ. P.] 30(b)(6) by [DirecTV] in Arnold, v. DIRECTV, et al., Case No. 10-0352-JAR.” (ECF No. 125-58 at 4.)

“Unless stipulated by the parties or otherwise ordered by the court, [Rule] 26(a) requires the parties to disclose the identities ‘of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses[.]’ ” Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014) (ellipsis omitted) (quoting Fed. R. Civ. P. 26(a)). “Under Rule 26(e), a party who has made a Rule 26(a) disclosure or responded to discovery must provide timely supplementation ‘if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.’ ” Id. (quoting Fed. R. Civ. P. 26(e)). “Furthermore, ‘a party must make these disclosures at the time[s ] and in the sequence [that ] the court orders.’ ” Wilkins v. Montgomery, 751 F.3d 214, 221 (4th Cir. 2014) (brackets omitted) (quoting Fed. R. Civ. P. 26(a)(2)(D)). “Pursuant to [Rule] 37, a party who fails to comply with the disclosure requirements of Rule 26(a) or the supplementation requirement of Rule 26(e) ‘is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.’ ” Id. (quoting Fed. R. Civ. P. 37(c)(1)). The party facing sanctions for failing to make the required disclosures under Rule 26(a) and (e) bears the burden of demonstrating that the failure was substantially justified or harmless under the five-factor test outlined in Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 (4th Cir. 2003). See Wilkins, 751 F.3d at 222.

Here, the court begins by concluding that DirecTV’s reference to “witnesses identified by DirecTV in Arnold” in its September 29, 2016 supplemental disclosure and in its initial disclosure, which presumably contained the same reference, is not sufficient to identify Hill for purposes of Rule 26(a)(l)(A)(i). See 6 James Wm. Moore, Moore’s Federal Practice § 26.22[4][a][i] (3d ed. 2016) (“The parties must provide the specific names of the individuals they might use as witnesses. It is not sufficient to identify them through the use of a collective description....”). Rule 26(a) requires initial disclosure of the identity of only those individuals who have information that the disclosing party, at the time of the initial disclosure, may intend to use. See id. § 26.22[4][a][ii] (“Each party must disclose identifying information only for those persons the party anticipates it will use to support its claims or defenses. Rule 26(a)(1)(A) no longer requires parties to provide identifying information for persons whom it does not intend to use during the proceeding....” (footnote omitted)). Here, the court finds that, at the time set for making initial disclosures in this case, DirecTV knew of Hill’s declaration because Hill had executed it nearly three months before the deadline for serving initial disclosures and because DirecTV had used it to support a nearly identical § 207(i) argument in Arnold just over a month after that deadline passed. It is clear that “[s]ubmitting an affidavit from an individual on a motion would constitute ‘use’ of that individual’s information,” id., and, therefore, the court finds that DirecTV not only knew of Hill’s declaration prior to the deadline for serving initial disclosures but also anticipated using the information contained in the declaration before that deadline. Further, even if DirecTV had not intended to use Hill’s declaration in this case at the time initial disclosures were due, DirecTV at some point thereafter must have intended to use it to support the instant summary judgment motions, but it has failed even until now to supplement its Rule 26(a) disclosures to include Hill’s identity'in accordance with Rule 26(e). DirecTV’s only potential excuse for failing to supplement its disclosures might be that the information in Hill’s affidavit was otherwise made known to Plaintiffs. See Fed. R. Civ. P. 26(e)(1)(A). However, DirecTV has presented no evidence or argument from which the court might conclude that this information was made known to Plaintiffs, see id. (specifying that “the additional or corrective information” must be “otherwise be[ ] made known to the other parties” and “during the discovery process or in writing” (emphasis added)), even though it appears that it is DirecTV’s burden to do so, cf. Poitra v. Sch. Dist. No. 1, 311 F.R.D. 659, 667-68 (D. Colo. 2015) (explaining that courts should not presume that a reference to an individual equates to Rule 26(a)(l)(A)(i) disclosure and that the “otherwise made known” language of Rule 26(e)(1)(A) should be applied narrowly to avoid giving parties license to sandbag each other and to supplement disclosures “almost by happenstance”); L-3 Commc’ns Corp. v. Jaxon Eng’g & Maint., Inc., 125 F.Supp.3d 1155, 1169 (D. Colo. 2015) (explaining that “merely pointing to places in the discovery where the information was mentioned in passing is not sufficient”); Bush v. Gulf Coast Elec. Coop., No. 5:13-cv-369-RS-GRJ, 2015 WL 3422336, at *4 (N.D. Fla. May 27, 2015) (explaining that a party’s presenting evidence that individual’s name was mentioned during a deposition “is insufficient to demonstrate that the information was made known to the other party”). The court concludes that, pursuant to Rule 26(a)(1)(A)© and (e)(1)(A), DirecTV had an obligation to provide Plaintiffs with Hill’s identity in its initial disclosures and in its supplemental disclosures and that DirecTV failed to provide the requisite information.

Because DirecTV failed to make disclosures required in Rule 26(a) and (e), it is subject to the sanctions laid out in Rule 37(c)(1), unless it meets its burden to show that its failure was substantially justified or harmless. See Wilkins, 751 F.3d at 222. DirecTV has presented no evidence or argument to demonstrate that its failure to disclose was substantially justified or harmless under the Southern States five-factor test and therefore has failed to meet its burden. Accordingly, the court agrees with Plaintiffs that DirecTV should not be allowed to use the Hill declaration to supply evidence in favor of application of the § 207(i) exemption in its motions for summary judgment. See Fed. R. Civ. P. 37(c)(1).

In the absence of the Hill declaration, DirecTV has pointed to no evidence in the record to support a finding that DirecTV is an establishment with at least 75% of its annual dollar volume of goods or services being recognized within its industry as retail sales or service. See Matrai, 168 F.Supp.3d at 1359. DirecTV attempts to overcome this deficiency by pointing to cases in which courts have found that the services at issue in this case are recognized as retail sales or services within the industry. (See ECF No. 131 at 33-34 (citing Roeder, 2017 WL 151401, at *23-26; Matrai, 168 F.Supp.3d at 1362; Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423, 440-41 (N.D.N.Y. 2014); Owopetu v. Nationwide CATV Auditing Servs., Inc., No. 5:10-cv-18, 2011 WL 4433159, at *2-7 (D. Vt. 2011)).) DirecTV suggests that this court could rely on these other courts’ findings on this issue, even though the evidence on which these courts based their decisions is not in the record before this court, to conclude that there is no genuine dispute that the services at issue are ree-ognized as retail saies or services within the industry. (See id. (citing Johnson, 4 F.Supp.3d at 440-41).)

The court does not agree with DirecTV’s suggestion. Although the rules of evidence permit the court to take judicial notice of adjudicative facts, see Fed. R. Evid. 201, including the actions of other courts and documents filed in the records of other courts, see South Carolina v. United States, No. 1:16-cv-00391-JMC, 2017 WL 976298, at *6 (D.S.C. March 14, 2017) (citing United States ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201, 208 (1st Cir. 2016); Muller-Paisner v. TIAA, 289 Fed.Appx. 461, 466 n.5 (2d Cir. 2008)); 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 201.12(3) (2d ed. 2011), “records of other courts generally may be noticed only to establish the fact of the litigation and actions- of that court,” 1 Weinstein & Berger, supra, § 201.12(3). Thus, documents in other courts’ records, “may not be judicially noticed for the truth of the matters stated in them.” 1 Weinstein & Berger, supra, § 201.12(3). Perhaps counterintui-tively, this principle applies equally to documents filed by parties'as to orders filed by the court: judicial findings of fact placed in a court order may not be judicially noticed to the extent the findings of fact are sought to be noticed for their truth. See 21B Kenneth W. Graham, Jr. Federal Practice and Procedure § 5106.4 (2d ed. 2009); 1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 201.02[3] (9th ed. 2006); 1 Weinstein & Berger, supra, § 201.12(3). This is so because judicial findings of fact are not indisputable as that term is understood in the context of judicial notice and because, if the rule were otherwise, the doctrines of res judicata and collateral estoppel would be decadently superfluous. See 21B Graham, supra, § 5106.4; 1 Saltzburg, supra, § 201.02[3]; see also Rogers v. Deane, 594 Fed.Appx. 768, 770-71 (4th Cir. 2014) (declining to supplement the record on appeal with order entered by state adjudicative board in part because, “[a]lthough the filing by the [bjoard of an order ... is indisputable, the factual findings contained therein are not”); United States v. Zayyad, 741 F.3d 452, 464 (4th Cir. 2014) (“ ‘Facts adjudicated in a prior case’ ... ‘do not meet either test of indisputability contained in Rule 201(b).’ ” (alteration omitted) (quoting Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998))). Here, although DirecTV does, not employ the language of judicial notice, it essentially suggests that the court should judicially notice the decisions in which courts have found that the services at issue are recognized as retail sales or services in the applicable industry and to do so for the truth of those findings. The court concludes that it has no authority to do so for the reasons stated by the authorities cited in this paragraph. To the extent DirecTV relies on Johnson to suggest that the court has authority to take such judicial notice, the court finds Johnson unpersuasive, as it provided no explanation for taking judicial notice of other courts’ findings for their truth. See Johnson, 4 F.Supp.3d at 440-41.

In sum, the only evidence on which DirecTV relies to demonstrate that the services Plaintiffs performed is recognized as retail sales or services — the Hall declaration and the findings of facts by other courts — are not appropriate for the court to consider. In moving for summary judgment, a movant, such a DirecTV, heaping the ultimate burden of proof on an issue, also bears the initial burden of coming forward with evidence or otherwise demonstrating that there is no genuine dispute as to every element necessary to prevail on the issue, even in the absence of evidence or argument by the non-movant. See Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994); Zipit Wireless Inc. v. Blackberry Ltd., No. 6:13-cv-02959-JMC, 2016 WL 5933975, at *6 (D.S.C. Oct. 12, 2016); see also Semcon Tech, LLC v. Micron Tech., Inc., 660 Fed.Appx. 908, 914 (Fed. Cir. 2016) (collecting cases). Because the court concludes that it should not consider the only evidence on which DirecTV relied on this issue, DirecTV never makes it off the starting block, and the court would deny its motions seeking summary judgment on the basis of the § 207(i) exemption for this reason alone.

Second, even assuming that the court considered the Hall declaration, Plaintiffs argue that Defendants have “only proffered evidence on the alleged retail nature of Plaintiffs’ work ... at an enterprise-wide level” rather than at the establishment-level to which the § 207(i) exemption applies. (ECF No. 125 at 91; see id. at 93.) The court agrees. As concisely stated by another court:

For the purposes of both the § 7(i) and § 13(a)(2) exemptions, Congress chose to use the individual establishment, rather than the entire enterprise, as the business unit for evaluating the applicability of the exemption. An “establishment” is a distinct, physical place of business, while an “enterprise” is the largest unit of corporate organization and “includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units.” Thus, the relevant inquiry is not whether [a defendant’s nationwide network of service specialists is an appropriate establishment. Rather, the [cjourt must determine whether [the plaintiffs] were employed by a qualifying establishment at the local or regional level.

English v. Ecolab, Inc., No. 06 Civ. 5672(PAC), 2008 WL 878456, at *9 (S.D.N.Y. March 31, 2008) (internal citations omitted) (quoting 29 U.S.C. § 203(r)(1), (s)) (citing, inter alia, 29 C.F.R. §§ 779.23, 779.303); see also Hill v. Del. N. Cos. Sportservice, Inc., Nos. 11-CV-00753(S)(M); 14-CV-00138(S)(M), 2014 WL 10748103, at *2-4 (W.D.N.Y. July 28, 2014) (distinguishing between enterprise and establishment in context of “amusement or recreational establishment” exemption under 29 U.S.C. § 213(a)(3)); Chen v. Major League Baseball, 6 F.Supp.3d 449, 456-60 (S.D.N.Y 2014) (same). Here, the only evidence to which DirecTV points to prove that it employs Plaintiffs in a retail or service establishment — the Hill and Kirby declarations — refers to the volume of goods and services sold by DirecTV as a whole and makes no mention of the volume of goods and services sold by any subpart thereof. {See ECF No. 101-2 at 3; ECF No. 101-3 at 2.) Yet, DirecTV fails to point to any evidence to support the conclusion that DirecTV as a whole is the relevant establishment, rather than an enterprise, for purposes of the § 207(i) exemption. In fact, even after Plaintiffs raised the issue in their response, DirecTV failed to address it at all in its reply. In the court’s view, DirecTV’s failure to provide any evidence or argument to support a conclusion that DirecTV as a whole is an establishment for purposes of § 207(i), when DirecTV relies solely on evidence that DirecTV as a whole engages in retail sales and services, precludes summary judgment in its favor on the basis of the § 207(i) exemption. See Semcon Tech, LLC, 660 Fed.Appx. at 914; Lindsey, 16 F.3d at 618; Zipit Wireless Inc., 2016 WL 5933975, at *6. Thus, the court would deny DirecTV’s motions seeking summary judgment on the basis of the § 207(i) exemption for this independent reason.

Third, again assuming that the court considered the Hall declaration, Plaintiffs argue that they have raised a genuine dispute as to whether the services they provided are recognized as retail within the industry. (See ECF No. 125 at 91-92.) Plaintiffs first correctly note that the question whether a particular service is recognized as retail may be determined by reference to industry usage but that industry usage is not dispositive. (Id. (citing Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 204-05, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966)).) They then explain that, although the Hill’s sworn declaration is evidence that the industry views the services Plaintiffs provide as retail, Plaintiffs have provided the sworn testimony of other individuals within the industry — John Clarke and Daniel Yannantuono, officers with two of DirecTV’s HSPs — who stated (drawing reasonable inferences from the testimony in Plaintiffs’ favor) that the services are not viewed as retail. (See id. at 35-36 & nn.147-48, 92 (citing ECF No. 125-14 at 2; ECF No. 125-15 at 3-4).) Plaintiffs contend that contradictory evidence as to whether the industry views the relevant service as retail requires denial of the motions for summary judgment to the extent they are based on the § 207(i) exemption. {See id. at 92.) DirecTV’s reply does not address this argument.

The court 'agrees with Plaintiffs. It is clear that sworn testimony from individuals in the industry is relevant to determining whether the service at issue is recognized as retail within the industry, see Idaho Sheet Metal Works, Inc., 383 U.S. at 204-05, 86 S.Ct. 737; Schultz v. Nolle Clinic, 444 F.2d 17, 19-20 (4th Cir. 1971), a point implicitly conceded by DirecTV, as it pointed to the Hill declaration for this very purpose. The parties have presented sworn testimony from individuals within the industry, and the testimony conflicts on whether the services Plaintiffs provide is considered retail within the industry. Thus, the evidence boils down to a classic swearing contest, for which the court, in the summary judgment arena, cannot declare a winner. See United States v. Funds in the Amount of $239,400, 795 F.3d 639, 643 (7th Cir. 2015); Jackson v. West, 787 F.3d 1345, 1357 n.6 (11th Cir. 2015); Watson v. Brown, 446 Fed.Appx. 643, 645 (4th Cir. 2011). For this independent reason as well, the court would deny DirecTV’s motions for summary judgment to the extent they are grounded on the § 207(i) exemption.

In sum, the court agrees with the three arguments Plaintiffs raise in opposition to DirecTV’s motions seeking summary judgment based on the § 207(i) exemption, as there remain genuine issues of fact regarding the exemption’s application. Accordingly, the motions are DENIED in this respect.

D. Payment of at least minimum wage

Defendants argue that, with the exception of Plaintiff Watkins, Defendants are entitled to summary judgment on all of Plaintiffs’ minimum wage claims because, assuming they were Defendants’ employees, there is no genuine dispute that Plaintiffs were paid in excess of the minimum wage rate for each of-the hours they worked. (See ECF No. 87-1 at 28; ECF No. 88-1 at 26-27; ECF No. 89-1 at 24-25; ECF No. 90-1 at 26; ECF No. 91-1 at 26; ECF No. 92-1 at 27; ECF No. 93-1 at 26; ECF No. 94-1 at 28; ECF No. 95-1 at 23; ECF No. 96-1 at 29; ECF No. 97-1 at 27-28; ECF No. 98-1 at 33; ECF No. 100-1 at 29-30.) Defendants point to Plaintiffs’ supplemental Fed. R. Civ. P. 26(a)(1)(C) computation of damages and note the average hours each Plaintiff estimates that he worked per workweek and the average amount each Plaintiff approximates that he was paid each workweek. (See, e.g., ECF No. 87-1 at 28 (citing ECF No. 103-3 at 17-19).) Using these figures, Defendants calculate each Plaintiffs regular rate of pay by taking each Plaintiffs approximate average weekly pay and dividing it by the estimated average number of weekly hours worked. (See, e.g., id. at 26-28.) Because, for each Plaintiff, the resulting rate is above the minimum wage rate of $7.25 per hour, Defendants argue they are entitled to summary judgment on Plaintiffs’ claims that Defendants paid Plaintiffs below the minimum wage rate. (See, e.g., id. (citing 29 U.S.C. § 206).)

In response, Plaintiffs argue first that Defendants are not permitted to rely on Plaintiffs’ estimates of average hours worked and average pay received per week to support their summary judgment motions, as the rule permitting such estimations is intended to inure to the benefit of FLSA plaintiff-employees in proving the amount of damages after an FLSA violation has been proved and should not inure to the benefit of defendant-employers in seeking to disprove the violation. (See ECF No. 125 at 97 (citing Mt. Clemens, 328 U.S. at 688, 66 S.Ct. 1187).) Second, Plaintiffs argue that the average weekly pay that they have approximated does not take into account chargebacks later deducted from their pay and expenses they incurred for supplies that were necessary to perform their work and for which Defendants did not reimburse them. (See id. at 96-97 (citing ECF Nos. 125-30, 125-32, 125-36, 125-38, 125-40, 125-42, 125-44, 125-46, 125-48, 125-50, 125-52, 125-54, 125-56, 125-59).) Because, Plaintiffs argue, the approximated weekly pay amounts should be reduced to reflect these unreim-bursed expenses, the weekly regular rates of pay that Defendants calculated are inflated and thus fail to show beyond genuine dispute that Plaintiffs were paid at least at the minimum wage rate. (See ECF No. 125 at 97.) Defendants’ reply is not responsive to these arguments. (See ECF No. 131 at 36-37, 41.)

Regarding Plaintiffs’ first argument, the Supreme Court in Mt. Clemens set forth a burden-shifting framework that allows employees suing under the FLSA to prove damages when “the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes.’-’ 328 U.S. at 687, 66 S.Ct. 1187. In that situation, an employee may meet his burden

if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

Id. at 687-88. The Supreme Court further explained that this

rule applies only to situations where the fact of damage is itself uncertain ... [and] assum[es] that the employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer.

Id. at 688. Based on this language, a number of courts have concluded that the Mt. Clemens burden-shifting framework only provides an evidentiary leg-up to plaintiff-employees at the damages stage in order to prove the amount of damages and that its relaxed burden simply does not apply at the liability stage to prove the existence of damages, i.e., that the plaintiff-employee performed work for which he was not properly compensated. See, e.g., Carmody v. Kan. City Bd. of Police Comm’rs, 713 F.3d 401, 406 (8th Cir. 2013); O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 602-03 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, — U.S. -, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016); Stiller v. Costco Wholesale Corp., 298 F.R.D. 611, 629 (S.D. Cal. 2014).

Although it is clear that a plaintiff may not take advantage of the Mt. Clemens burden-shifting framework in proving Defendants’ FLSA liability, it is not at all clear that this limitation supports Plaintiffs’ argument here. The court perceives nothing in the case law stating that, because the lower evidentiary burden applies only at the damages phase, any evidence that might be used to meet that lower burden at the damages phase cannot also be used at the liability phase. Likewise, the court has not located case law stating that, because the lower evidentiary burden is intended to benefit plaintiffs who have proven liability, evidence that might be used to meet the lower burden cannot also be used by defendants to defeat liability. Accordingly, the court declines to make any rulings on this basis in this order. The parties remain free to make further arguments on this issue.

Regarding Plaintiffs’ second argument, Plaintiffs are correct that, unless an exception applies, “[a]n employee’s wages must be ‘free and clear, and an employer violates the FLSA where kickbacks ‘directly or indirectly to the employer or to another person for t