Lucas v. NOYPI, Inc. et al, No. 4:2011cv01940 - Document 39 (S.D. Tex. 2012)
Court Description: MEMORANDUM OPINION and ORDER granting 31 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified.(chorace)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MAX LUCAS, Individually and on Behalf of All Others Similarly Situated, § § § § § Plaintiffs, § v. § § NOYPI, INC.; PIONEER CONTRACT SERVICES, INC.; SUSAN SUSUSCO; and ED FRITCHER, § § Defendants. CIVIL ACTION NO. H-11-1940 § § § MEMORANDUM OPINION AND ORDER Pending before the court is Defendants' Judgment and Memorandum of Authorities Summary Judgment") discussed below, (Docket Entry No. Motion for Summary ("Defendants' 31). For Motion for the reasons Defendants' Motion for Summary Judgment will be granted. I. A. Factual and Procedural Background Defendants' Businesses and Plaintiffs' Employment During the ("NOYPI") was retained by in time the relevant to this lawsuit, commercial moving business, customers to move property NOYPI, i. e. , between Inc. it was locations. 1 lDefendants' Appendix to Its Motion for Summary Judgment and Memorandum of Authorities ("Defendants' Appendix"), Docket Entry No. 32, Ex. 1, Declaration of Raul Sususco, p. 3 <JI 4. NOYPI concluded its operations in 2011. Id. <JI 5. Defendant Pioneer Susan Contract ("Sususco") Sususco Services, was ("Pioneer") Inc. President. 2 NOYPI's was also business of providing commercial relocation services. 3 Ed Fritcher was Pioneer's President. 4 On August 11, in the Defendant 2008, NOYPI and Pioneer entered into a subcontract agreement, pursuant to which NOYPI provided labor to Pioneer. 5 Plaintiffs "Plaintiffs") Max Lucas and Uranui Lucas (collectively, were employed by NOYPI as movers. 6 employed from April 2008 employed from December to 2007 April to 2011, April and 2011.7 Max Lucas was Uranui Lucas Plaintiffs' was work involved moving furniture and office equipment from one office to another, which included loading that furniture and equipment into 2Defendants' Motion for Summary Judgment, Docket Entry No. 31, p. 6. 3Defendants' Appendix, Docket Entry No. 32, Ex. 2, Declaration of Roger Fritcher, p. 41 ~ 5. 4Id. at 40 ~ 2. 5Defendants' Appendix, Docket Entry No. 32, pp. 33-38. 6Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment ("Response"), Docket Entry No. 35, Ex. A, Declaration of Max Lucas, ~ 3; id., Ex. B, Declaration of Uranui "George" Lucas, ~ 3. 7Response, Docket Entry No. 35, Ex. A, Declaration of Max Lucas, ~ 3; id., Ex. B, Declaration of Uranui "George" Lucas, ~ 3. -2- trucks. 8 During that time they also loaded and unloaded vehicles owned by Pioneer. 9 B. Procedural Background Plaintiffs 10 commenced this action on May 20, violations of the Fair Labor Standards Act §§ 2011, alleging ("FLSA"), 201-219, based on failure to pay overtime wages. ll 29 U.S.C. Defendants NOYPI, Pioneer, Sususco, and Fritcher (collectively, "Defendants") initially moved to dismiss and, defini te statement. 12 in the alternative, The court denied the motion to dismiss, but granted the motion for a more definite statement. 13 filed their amended for a more complaint on December 14, Plaintiffs 2011,14 and Defendants' filed their answer on December 28, 2011. 15 8Response, Docket Entry No. 35, Ex. A, Declaration of Max Lucas, <[ 6; id., Ex. B, Declaration of Uranui "George" Lucas, <[ 6; Defendants' Appendix, Docket Entry No. 32, Ex. 1, Declaration of Raul Sususco, p. 5, <[<[ 14-15. 9Response, Docket Entry No. 35, Ex. A, Declaration of Max Lucas, <[ 6; id., Ex. B, Declaration of Uranui "George" Lucas, <[ 6. lOMax Lucas consented to becoming a party plaintiff pursuant to 29 U. S. C. § 216 (b) . Notice of Consent of Max Lucas, Docket Entry No.3. Uranui Lucas also consented to becoming a party plaintiff pursuant to 29 U.S.C. § 216(b). Notice of Consent of Uranui Lucas, Docket Entry No.4. llPlaintiffs' Original Complaint, Docket Entry No.1. 12Defendants' Motion to Dismiss or for More Definite Statement and Authorities in Support, Docket Entry No. 15. 13Hearing Minutes and Order, Docket Entry No. 20. 14Plaintiff's First Amended Complaint, Docket Entry No. 23. 15Defendants' Answer to Plaintiff's First Amended Complaint ("Answer"), Docket Entry No. 24. -3- Defendants now move for summary judgment, asserting that they were exempt from paying overtime wages under 29 U.S.C. § 213(b) (1), commonly referred to as the Motor Carrier Act ("MCA") exemption. 16 Plaintiffs argue that the exemption does not apply.17 II. Rule 56 of the Summary Judgment Standard Federal Rules of Civil Procedure mandates summary judgment "if the movant shows that there is no genuine dispute as to any material fact judgment as a matter of law." and the movant Fed. R. Civ. P. is entitled to 56(a). Material facts are those "that might affect the outcome of the suit under governing law," and disputes over such facts are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." 2505, 2510 Anderson v. Liberty Lobby, Inc., 106 S. Ct. (1986). A party moving for summary judgment "bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Ins. Co. v. Reyna, here, a defendant 401 F.3d 347, 349 moves for Lincoln Gen. (5th Cir. 2005). summary judgment Where, as based on an affirmative defense, the defendant "'must establish each element of 16Defendants' Motion for Summary Judgment, Docket Entry No. 31, pp. 9-11; Reply in Support of Defendants' Motion for Summary Judgment ("Reply in Support"), Docket Entry No. 36. 17Response, Docket Entry No. 35. -4- that defense as a matter of law.'" 1 6 9 F. 3 d 98 8 , 9 92 (5t h Ci r . Shanks v. AlliedSignal, Inc., 1 999) ( qu 0 tin g Cres c e n t Salvage Co., Inc. v. M/v Anax, 40 F.3d 741, 744 Tow i n g & (5th Cir. 1994)). Once the moving party has carried this burden, its opponent must show that specific facts exist over which there is a genuine issue for S. Ct. Reyna, trial. at 2553-54). 401 The F.3d at 349 nonmovant (citing Celotex, may not rest allegations in the pleadings to make such a showing. F.3d at 350. To "metaphysical create a doubt as genuine to the fact issue, material more facts" is upon 106 mere Reyna, 401 than some required. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). The parties may support the existence or nonexistence of a genuine fact issue by either materials in electronically admissions, materials the record, stored (1) citing to particular parts of including information, depositions, affidavits and interrogatory answers, cited do not establish the or or documents, declarations, (2) showing that the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact. reviewing this evidence Fed. R. Civ. P. 56(c) (1) (A)-(B). "the court must inferences in favor of the nonmoving party, credibili ty determinations or weigh the draw all reasonable and it may not make evidence." Reeves Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2110 (2000). -5- In v. III. A. Motor Carrier Act Exemption Affir.mative Defense Sufficiently Pleaded Before considering the applicability of the MCA exemption, the court addresses Plaintiffs' argument that Defendants did not properly plead the MCA exemption as an affirmative defense in their Answer. 18 Under the Federal Rules of Civil Procedure, "a party must . affirmative defense." affirmatively state any Pro. 8(c); see Lebouef v. Appx. 983, least some 984 (5th Cir. information alleged problem is.") following statement: Island Operating Co., 2009) that Fed. R. Civ. Inc., 342 Fed. (" [T]he defendant must provide at alerts the plaintiff to what the Defendants included in their answer the "Defendants affirmatively plead that they were not required to pay overtime to Plaintiff because his position was subject to an exemption to the payment of overtime under FLSA, including, but Section 13 (b) (1) not limited to, the of the FLSA. "19 motor carrier exemption in The court concludes that this pleading was sufficient to raise the affirmative defense on which Defendants' Motion for Summary Judgment is based. a technical failure to Moreover, even comply precisely with Rule 8 (c) may be excused so long as "the affirmative defense is raised in the trial court in Solomon v. a manner Spalitta, that does not result 2012 WL 3100751, in at *2 18Response, Docket Entry No. 35, pp. 7-8. 19Answer, Docket Entry No. 24, pp. 2-3. -6- unfair (5th Cir. surprise." July 31, 2012) (quoting Rogers v. 2008)). should McDorman, 521 F.3d 381, 385 (5th Cir. At the heart of Rule 8(c) is the concern that a "defendant not be permitted to 'lie behind plaintiff with an unexpected defense." a log' Rogers, and ambush a 521 F.3d at 385. In this case Plaintiffs cannot plausibly contend that they were ambushed by the motion for summary judgment in light of Defendants' assertion of the MCA exemption in their answer. B. Statutory and Regulatory Scheme The FLSA requires employers to compensate each employee at one and one-half times the employee's regular rate for all hours worked in excess of forty per week. statute also specifically 29 U.S.C. exempts § certain employees from this overtime requirement. 207 (a) (1). employers But the and their See id. § 213. These exemptions are construed narrowly against the employer, 20 and the employer bears the burden to establish a claimed exemption. v. Dillon Res., v. Songer Inc., 618 F.3d 467, 471 (5th Cir. 2010); Barefoot Mid-America Dairymen, Inc., 1994 WL 57686, Feb. 18, 1994); Smith v. City of Jackson, at *2 (5th Cir. 954 F.2d 296, 298 (5th Cir. 1992). 20The court rejects Defendants' assertion that FLSA exemptions must be construed fairly instead of narrowly. Defendants' reliance on Belt v. EmCare, Inc., 444 F.3d 403 (5th Cir. 2006), is misplaced. In EmCare the Fifth Circuit held that regulatory exemptions under the FLSA should be construed fairly, but expressly reaffirmed that statutory exemptions under the FLSA are construed narrowly. See id. at 409. A statutory exemption is at issue here. -7- In this case Defendants assert the MCA exemption, which provides that the FLSA's overtime requirement does not apply to "any employee with respect to whom the Secretary of Transportation [("Secretary")] has power to establish qualifications and maximum hours § of service 31502]." Secretary pursuant to the 29 U.S.C. § 213(b) (1). has the power to provisions of Under 49 U.S.C. prescribe [49 § requirements U.S.C. 31502, the for the "qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier." § 31502(b). 49 U.S.C. It is well-established that the Secretary "'need only possess the power to regulate the employees at issue; it need not actually exercise that power for the Songer, 618 F.3d at 472 [MCA] exemption to apply.'" (quoting Barefoot, 1994 WL 57686, at *2); see Klitze v. Steiner Corp., 110 F.3d 1465, 1469 (5th Cir. 1997) ("[T]he his Secretary's decision not to exercise regulatory authority over a category of carriers does not exempt them from his authority."). The FLSA only applies if the Secretary does not have power to establish qualifications and maximum hours of service. See Levinson v. Spector Motor Serv., 67 S. Ct. 931, 945 (1947). The Department of Labor ("DOL") regulations enforcing the FLSA state that whether an employee is within the jurisdiction of the Secretary "depends both on the class to which his employer belongs and on the class of work involved in the employee's C.F.R. § 782.2(a), quoted in Songer, 618 F.3d at 472. job." Accordingly, the exemption applies only to those classes of employees who -8- 29 (1) [a]re employed by carriers whose transportation of passengers or property by motor vehicle is subject to [the Secretary's] jurisdiction under section 204 of the Motor Carrier Act [codified at 49 U.S.C. § 31502] and (2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the Motor Carrier Act. 29 C.F.R. § 782.2(a), quoted in Songer, 618 F.3d at 472. Employers asserting the MCA exemption as an affirmative defense must show that both criteria are met. On June 6, 2008, Congress added an exception to this exemption, however, providing that an employee may be entitled to overtime compensation notwithstanding 29 U.S.C. § 213 (b) (1) if he qualifies as a "covered employee." below is therefore separated into pre- The analysis and post-June 6, 2008, claims. C. Application of the MCA Exemption: 1. Pre-June 6, 2008 Carriers Subject to the Secretary's Jurisdiction The first inquiry is whether Defendants are "carriers whose transportation of . . property by motor vehicle is subject to" the Secretary's jurisdiction. See 29 C.F.R. § 782.2(a) (1). To be subject to the Secretary's jurisdiction, Defendants must be "motor carriers" engaged in "interstate commerce," as defined in 13502 (b) the MCA. (1) . See 49 U.S.C. -9- §§ those terms 13102 (14), are 13501 (1), (a) The Motor Carriers definition of "motor carrier" was amended during the relevant periods of employment in this case. 21 Prior to June 6, 2008, person a "motor commercial carrier" motor was vehicle defined a "self-propelled or in 49 U.S.C. transportation for compensation." (amended June 6, 2008). "a defined (as as § providing section 31132) 13102(14) (2006) The term "commercial motor vehicle" means towed vehicle used on the highways interstate commerce to transport passengers or property, vehicle has a gross vehicle weight rating [("GVWR")] least 10,001 pounds." of "motor carrier, If 49 U.S.C. § 31132(1). in if the . of at Under this definition which applies to employment existing before June 6, 2008, employers who did not use commercial motor vehicles were not exempt from the overtime requirement. See Allen v. Coil Tubing Servs., L.L.C., 846 F. Supp. 2d 678, 692 (S.D. Tex. 2012). On June 6, 2008, Congress passed the SAFETEA-LU Technical Corrections Act of 2008 ("TCA"), Pub. L. 110-244, 122 Stat. 1572, which amended the definition of "motor carrier" by removing the 21The relevant periods of employment in this case range from December 2007 to April 2011. See Response, Docket Entry No. 35, Ex. A, Declaration of Max Lucas, ~ 3 (April 2008 to April 2011); id., Ex. B, Declaration of Uranui "George" Lucas, ~ 3 (December 2007 to April 2011). While Defendants assert that both Plaintiffs were hired in 2008, Defendants' Appendix, Docket Entry No. 32, Declaration of Raul Sususco, p. 05 ~~ 14-15, the court must accept Plaintiffs' version of the facts. See Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (factual controversies are resolved in favor of nonmovant "when both parties have submitted evidence of contradictory facts") ( internal quotations omitted). -10- modifier "commercial" from before "motor vehicle." Stat. 1572, 1620. Effective June 6, 2008, Id. § 305, 122 a "motor carrier" is defined as "a person providing motor vehicle transportation for compensation." 49 U.S.C. § 13102(14). This change expanded the scope of the MCA exemption to cover all employers that operated "motor vehicles" of any weight. Defendants have met See Allen, 846 F. Supp. 2d at 692. their burden to show that NOYPI and Pioneer qualified as motor carriers at all relevant times to this action. First, Defendants have provided competent summary judgment evidence fleets from NOYPI of vehicles and Pioneer that both companies maintained with GVWRs in excess of 10,0001 pounds. 22 Defendants also attached a picture of a placard from one of NOYPI's trucks indicating a GVWR of 25,500 pounds. 23 Defendants' motion, Plaintiffs failed to In their response to produce any evidence showing that either NOYPI or Pioneer did not operate as a "motor carrier" within the MCA. material fact that both Accordingly, there is no genuine issue of NOYPI and Pioneer qualify as "motor carriers" under the pre- and post-June 6, 2008, definitions. (b) Engaged in Interstate Commerce To be subject to the Secretary's jurisdiction under the MCA, a motor carrier must be engaged in "interstate commerce." The MCA 22Defendants' Appendix, Docket Entry No. 32, Ex. 1, Declaration of Raul Sususco, p. 3 <JI 7; id., Ex. 2, Declaration of Roger Fritcher, p. 41 <JI 7. 23Defendants' Appendix, Docket Entry No. 32, Ex. 1 , Declaration of Raul Sususco, Ex. B, p. 31. -11- defines the term, in relevant part, as commerce "between a place a in § State 13501(1) (A). and The a place Fifth in another State." 49 Circuit, quoting from notice a U. S. C. of interpretation issued by the DOT, has stated that the carrier must be shown to have engaged in interstate commerce within a reasonable period of time prior to the time at which jurisdiction is in question. The carrier's invol vement in interstate commerce must be established by some concrete evidence such as an actual trip in interstate commerce or proof that interstate business had been solicited. Reich v. American Driver Service, Cir. 1994) 33 F.3d 1153, 1156 (5th (quoting 46 Fed. Reg. 37,902, 37,903 (Dept. of Transp. July 23, 1981) (notice of interpretation)). The court whether Inc., concludes Defendants were that there motor is no genuine issue as carriers commerce for purposes of the MCA. engaged in to interstate The summary judgment record reveals that NOYPI actually participated in interstate commerce during the relevant periods of employment. Work orders show that NOYPI performed work in Louisiana in June and December of 2009. 24 In addition, the declaration provided by NOYPI's manager states that NOYPI regularly provided commercial moving services in Texas, Louisiana, and Florida, and offered to provide moving services in other states as business opportunities arose. 25 offered no evidence to refute these facts. Plaintiffs have Plaintiffs contend, 24Id. at 8-29. 25Id., Ex. 1, Declaration of Raul Sususco, p. 3 -12- <[ 6. however, with that because NOYPI is not registered as a motor carrier the Federal Motor Carrier Safety Administration, therefore not subj ect to the Secretary's j ur isdiction. 26 is not persuaded by this argument. it is The court Plaintiffs offer no authority to support the contention that such registration is required to bring a motor carrier within the Secretary's jurisdiction. it is the existence jurisdiction, central to not the the MCA of the Secretary's actual exercise The exemption. of fact power that to power, that NOYPI Indeed, exercise that was is not registered has no bearing on the Secretary's power over it under the MCA. The court concludes that NOYPI was continuously engaged in interstate commerce throughout the relevant periods in this case. Pioneer interstate also commerce. declaration that state lines, qualifies a Pioneer's motor carrier Vice-President Pioneer provided services engaged stated in in a in Texas and across and offered to provide services in other states as business opportunities arose. 27 Plaintiffs. as That evidence was not refuted by Furthermore, the Fifth Circuit has recognized that an employer operating as a joint employer with a motor carrier engaged in interstate commerce meets the requirements of the MCA exemption. See Songer, 618 F.3d at 472. In other words, where the MCA 26Response, Docket Entry No. 35, p. 9. 27Defendants' Appendix, Docket Entry No. 32, Ex. 2, Declaration of Roger Fritcher, p. 41 ~ 6. -13- exemption applies to one employer the existence of a joint employer relationship extends the exemption to all joint employers in a suit brought under 29 U.S.C. § 207. DOL regulations contemplate that a single individual may be the employee of two or more employers at the same time. 29 C.F.R. § 791.2(a). The regulations provide that where the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the [MCA]. Id. Here, the subcontract agreement between NOYPI and Pioneer provided for joint responsibility for the workers and also clearly delineated each party's responsibility,28 such that employment by NOYPI was Pioneer. NOYPI, "not completely disassociated from" employment by For example, Pioneer assigned tasks to workers hired by and the workers then carried out those tasks. 29 Moreover, Plaintiffs' descriptions of their jobs do not include distinctions between employment for NOYPI and employment for Pioneer. 30 Because Pioneer entered into the agreement with NOYPI on August 11, 2008,31 Pioneer and NOYPI were joint employers for all periods of 28Id., Ex. C, Subcontract Agreement, pp. 33-38. 29Id., Ex. 1, Declaration of Raul Sususco, p. 3 ~ 13. 30Response, Docket Entry No. 35, Ex. A, Declaration of Max Lucas, ~ 3; id., Ex. B, Declaration of Uranui "George" Lucas, ~ 3. 31Defendants' Appendix, Docket Entry No. 32, Ex. C, Subcontract Agreement, p. 33. -14- employment existing on and after August 11, there is no genuine issue of material requirement of the exemption i. e., 2008. fact Accordingly, that the first that Plaintiffs work for motor carriers engaged in interstate commerce -- is satisfied. 2. Employees' Acti vi ties Transportation Affecting Safety in Interstate Having concluded that Defendants are "motor carriers," the court must determine if Plaintiffs were employed in positions that affect highway safety interstate commerce. that "it is the in the transportation See 29 C.F.R. § 782.2(a). character of the of property in It is well-settled activities rather than the proportion of either the employee's time or of his activities that determines the actual need for the [Secretary's] power to establish reasonable requirements with respect to qualifications, hours of service, safety of operation and equipment." McComb, 68 S. Ct. 131, 135-36 four classes of employees -(3) (1947). (1) maximum Morris v. The exemption applies to drivers, (2) driver's helpers, loaders, and (4) mechanics -- if their work directly affects the safety of the operation of motor vehicles in transportation in interstate commerce. 29 C.F.R. § 782.2(b) (1). Defendants argue that Plaintiffs were employed in positions affecting transportation safety because they were employed as loaders. 32 Thus, the exemption applies only if each Plaintiff's work (1) was defined as that of a 32Motion for Summary Judgment, Docket Entry No. 31, p. 16. -15- "loader," and (2) directly affected the safety of operation of motor vehicles in interstate commerce within the meaning of the MCA. 29 C.F.R. § 782.5(b). (a) Loaders For purposes of the MCA exemption a "loader" is an employee of a carrier subject to the Secretary's jurisdiction "whose duties include, among other things, the proper loading of his employer's motor vehicles so that they may be safely operated on the highways of the country." 29 C.F.R. § 782.5(a). A loader's duties will usually also include unloading and the transfer of freight between the vehicles and the warehouse, but he engages, as a "loader," in work directly affecting "safety of operation" so long as he has responsibility when such motor vehicles are being loaded, for exercising judgment and discretion in planning and building a balanced load or in placing, distributing, or securing the pieces of freight in such a manner that the safe operation of the vehicles on the highways in interstate . commerce will not be jeopardized. rd.; see also Wirtz v. C & P Shoe Corp., 336 F.2d 21, 29 (5th Cir. 1964) (" [A loader] share [s] in the exercise of discretion as to the manner in which the loading [is] done."). An employee need not devote all or even the majority of his time to safety-affecting activities to qualify as a loader. Levinson, 67 S. Ct. at 944. Instead, "it is enough that a loader devote a substantial part of his time to activities affecting the safety of operation." 947. Id. at But see Pyramid Motor Freight Corp. v. Ispass, 67 S. Ct. 954, 960 ("[T]he mere handling of freight at a terminal, before or after loading, or even the placing of certain articles of freight on a -16- motor carrier truck may form so trivial, casual or occasional part of an employee's activities, or his activities may relate only to such articles or to such limited handling will which . come It is undisputed that, as movers, vehicles as part of their employment. that they therefore were were "merely not furnishing affecting meaning of the MCA. 33 the of that his affects safety of operation."). not within them, kind activities of Plaintiffs 'loading' loaded motor Plaintiffs contend, however, physical transportation assistance" safety wi thin and the Plaintiffs rely for support on the Fifth Circuit's decision in Wirtz, where the court held that workers who followed a simple "last out, first in" method of loading and unloading were not acting as loaders because of the utter lack of discretion involved in those activities. Wirtz, 336 F.2d at 29. But the uncontradicted summary judgment evidence paints a different picture. Both Plaintiffs stated that they loaded office furniture and equipment into trucks.34 Indeed, loading and unloading trucks was one of only three responsibilities that Plaintiffs addressed in their respective declarations. 35 Max Lucas also stated that he was 33Response, Docket Entry No. 35, p. 16. 34Id., Ex. A, Declaration of Max Lucas, Declaration of Uranui "George" Lucas, '!l 6. 35Response, Lucas, '!l 6; id., Plaintiffs also furni ture from rooms. Id. '!l 6; id., Ex. B, Docket Entry No. 35, Ex. A, Declaration of Max Ex. B, Declaration of George "Uranui" Lucas, '!l 6. declared that they were responsible for moving office to office and for setting up conference -17- responsible for supervising the loading of trucks. 36 Furthermore, Plaintiffs provided do not dispute any of the evidence Defendants regarding these loading activities. by The evidence in the summary judgment record reveals that Plaintiffs were responsible for using their discretion to build a balanced and safe load by placing and distributing property safely in the trucks. 37 There is no evidence that these loading activities were "so trivial, casual or occasional u parts of their activities such that they could not be classified as loaders. See Ispass, 67 S. Ct. at 960. The court concludes that the evidence shows that Plaintiffs engaged in more than mere physical assistance and were required to use discretion to ensure that the vehicles were safely loaded. facts here stand in clear contrast to those of Wirtz. their The Therefore, there is no genuine issue of material fact as to Plaintiffs' status as "loaders.u (b) Activities Involved in Interstate Transport Because Plaintiffs were employed in positions that affected the operational safety of motor vehicles, the court must address the question whether Plaintiffs' "acti vi ties directly affected motor vehicle safety 'in the transport of property in interstate commerce.'U 36Id., Songer, 618 F.3d at 473. The pertinent inquiry is Ex. A, Declaration of Max Lucas, <J[ 6. 37Defendants' Appendix, Docket Entry No. 32, Ex. B, Declaration of Raul Sususco, p. 5 <J[<J[ 9, 14, 15. -18- whether the employer establishes that the employee can be "reasonably expected" to engage in or to be asked to engage in safety-affecting duties in connection with interstate transport of property "in the ordinary course of his work," at least "from time to time." Songer, 618 F.3d at 474; accord Reich, 33 F.3d at 1156; see 29 C.F.R. showing, the workweeks § 782.2 (b) (3). § employee when he comes is If the employer can make wi thin employed at the MCA such exemption job." 29 such a "in all C.F.R. 782.2 (b) (3) . Loaders may be subject to the MCA exemption even if they did not personally participate in interstate commerce. S. Ct. at 136. See Morris, 68 In Morris the Supreme Court concluded that a group of drivers who collectively spent 4% of their time engaging in interstate commerce, and the remainder in intrastate commerce, were subject to the exemption. The Court reasoned that the interstate trips were a "natural, integral and apparently inseparable part" of the carrier's service because they were "shared indiscriminately" by the drivers and were "mingled with" the performance of other intrastate trips. the forty-three interstate Morris, 68 S. Ct. at 136. drivers commerce at in all. the Id. group at Notably, two out of had 136; never see engaged in also Brennan v. Schwerman Trucking Co., 540 F.2d 1200 (4th Cir. 1976) (all drivers exempt under MCA even though not all drove in interstate commerce) . The Fifth Circuit in Songer relied on Morris to conclude that all workers were engaged in interstate commerce under the MCA even -19- though four of the twenty-one traveled across state lines. therefore, is whether plaintiffs had never Songer, 618 F.3d at 475. obj ecti vely there can be actually The issue, said to be a "reasonable expectation" that an interstate trip could be assigned to members of subjectively a group, thought he not was whether likely to a particular receive an employee interstate assignment. The uncontradicted evidence provided by Defendants shows that, as discussed above, Defendants engaged in interstate commerce. Furthermore, employees such as Plaintiffs were expected, if asked, to travel wi thin the state of Texas and across transport customer property. 38 state lines to Assignments for interstate trips were distributed indiscriminately.39 Whether Plaintiffs actually performed is work across state lines disputed,40 but what is undisputed is that Plaintiffs were reasonably expected to engage in interstate commerce if called upon. The evidence demonstrates that Plaintiffs been interstate Accordingly, could reasonably consistent commerce there have is no genuine with issue expected their of to engage loading material in duties. fact that 38Defendants' Appendix, Docket Entry No. 32, Ex. 1, Declaration of Raul Sususco, p. 5 ~~ 14-15. 39Id. at 3 ~ 10. 40Compare id. at 5 ~~ 14-15 (stating that Plaintiffs did perform interstate work), with Response, Docket Entry No. 35, Ex. A, Declaration of Max Lucas, ~ 7 (stating that he never performed interstate work) and id., Ex. B, Declaration of Uranui "George" Lucas (stating that he never performed interstate work) . -20- Defendants were exempt from the overtime provisions of 29 U.S.C. § 207 for employment existing before June 6, 2008. D. Application of the MeA Exemption: Post-June 6, 2008 In addition to amending the definition of "motor carrier," the TCA also provides that 29 U.S.C. § 207 shall apply to a "covered employee" notwithstanding 29 U.S.C. § 213(b) (1). Stat. 1572, 1620. Accordingly, TCA § 306(a), 122 the TCA made the FLSA's overtime provisions applicable to any "covered employee," which is defined as an individual: ., (1) who is employed by a motor carrier (2) [w]hose work, in whole or in part, is defined (A) as that of a driver, driver's helper, loader, or mechanic; and (B) [a]s affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce .; and (3) who performs duties 10,000 pounds or less. Id. § for an MCA motor on motor 306 (c), 122 Stat. 1572, 1621. carrier vehicles weighing Thus, an employee who works and works on or with non-commercial vehicles (i.e., vehicles weighing 10,000 pounds or less) may now be entitled to overtime compensation. To be entitled to overtime pay an employee must perform some meaningful work for more than an insubstantial time with vehicles weighing 10,000 pounds or less. Allen, 846 F. Supp. 2d at 705. Only employees employed on or after June 6, 2008, may be considered "covered employees." -21- As discussed above, Defendants have provided evidence that both NOYPI and Pioneer maintained fleets of commercial vehicles, i.e., vehicles with GVWRs in excess of 10,001 pounds. 41 In their Response Plaintiffs offered no evidence that they worked with noncommercial vehicles. Plaintiffs merely argued that Defendants did not submit evidence that Plaintiffs specifically performed work with commercial vehicles. 42 genuine issue of fact The Defendants. Plaintiffs' argument does not raise a that summary will preclude judgment summary evidence judgment before the for court establishes that Defendants' vehicles were commercial vehicles and that Plaintiffs worked as loaders for Defendants. Accordingly, the court concludes that Plaintiffs did not perform meaningful work for more than an insubstantial Plaintiffs were thus not time with non-commercial "covered employees" under vehicles. TeA § 306. Therefore, Defendants' Motion for Summary Judgment will be granted for periods of employment falling on and after June 6, 2008. IV. The carriers court concludes subject Transportation. to Conclusion that Defendants NOYPI the jurisdiction of and Pioneer are the Secretary of The summary judgment record also establishes that 41Defendants' Appendix, Docket Entry No. 32, Ex. 1, Declaration of Raul Sususco, p. 3 <Jl 7; id., Ex. 2, Declaration of Roger Fritcher, p. 41 <Jl 7. 42Response, Docket Entry No. 35, p. 10. -22- Plaintiffs were engaged in safety-affecting operations of motor vehicles in interstate commerce. Furthermore, the evidence before the court establishes that Plaintiffs were not "covered employees" under TCA § 306. Therefore, Defendants' Motion for Summary Judgment will be granted. v. For the reasons Order explained above, Defendants's Motion for Summary Judgment (Docket Entry No. 31) is GRANTED. SIGNED at Houston, Texas, on this 3rd day of October, 2012. UNITED STATES DISTRICT JUDGE -23-
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