Opinion
Case No. 3:19-cv-45
02-12-2021
David GOWEY, Plaintiff, v. TRUE GRIP & LIGHTING, INC., and Nascar Productions, LLC, Defendants.
Jonathan L. Bobbitt, Emily S. Alcorn, Gilbert McWherter Scott Bobbitt PLC, Franklin, TN, for Plaintiff. Christopher C. Field, Gregory Brown, Lowe, Yeager and Brown, Knoxville, TN, for Defendants.
Jonathan L. Bobbitt, Emily S. Alcorn, Gilbert McWherter Scott Bobbitt PLC, Franklin, TN, for Plaintiff.
Christopher C. Field, Gregory Brown, Lowe, Yeager and Brown, Knoxville, TN, for Defendants.
MEMORANDUM OPINION
TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE
Before the Court is Defendants True Grip & Lighting, Inc., and Nascar Productions, LLC's (collectively, "Defendants") motion for summary judgment (Doc. 40). For the following reasons, Defendants’ motion will be GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
In 2015, Defendant True Grip & Lighting, Inc. ("True Grip") entered into an agreement (the "Lease Agreement") to lease a fleet of golf carts to Defendant NASCAR Productions, LLC ("NP") during the 2015–2018 NASCAR seasons. (Doc. 40-2, at 2, 6–9, 65.) Under the Lease Agreement, True Grip was responsible for maintaining the carts in working order, picking up and transporting fuel to refuel the carts, and obtaining a pickup truck at each race location for the purpose of hauling fuel and transporting True Grip drivers and mechanics during race week. (Id. at 3, 7, 65, 68.) NP was responsible for purchasing the fuel for the carts, reimbursing True Grip for any damage to the carts, rental truck expenses, and providing hotel rooms for True Grip's on-site drivers and mechanics. (Id. at 3, 7–8, 12.)
True Grip hired Plaintiff David Gowey ("Gowey") as a golf-cart supervisor for the 2015–2018 seasons. Gowey's job responsibilities included transporting the carts to each weekly NASCAR event and providing on-site maintenance of the golf carts. (Id. at 2–3, 68, 105.) Gowey was paid a weekly salary. (Doc. 42, at 1; Doc. 44, at 1.) In his role of golf-cart supervisor, Gowey drove a semitrailer with a gross vehicle weight of 80,000 pounds across state lines on a weekly basis. (Doc. 40-2, at 68, 71, 105, 111–12.) Gowey was then provided rental pickup trucks locally at each race location to pick up fuel for the carts and supplies for cart repair. (Id. at 11, 37, 86–92; Doc. 44-1, at 34.) Gowey also used the rental truck to travel between the racetrack and his hotel and to retrieve other True Grip employees from the airport when they flew in for races. (Doc. 40-2, at 86–92; Doc. 44-2, at 34, 39.)
Gowey avers that he used the rental truck to transport fuel across state lines for the purpose of fueling carts during race weeks, although other documentation and testimony in the the record does not appear to support this averment. (Doc. 40-2, at 11-35, 37–64, 239, 244, 263–264; Doc. 44-2, at 39.) The record does, however, show that Gowey transported parts and materials for cart repair across state lines on at least four occasions, limited to one week in 2016 and one week in 2018. (Doc. 40-2, at 69, 72–78.) Gowey claims he made interstate trips for materials and parts "often," avers that he also crossed state lines to pick up additional truck drivers from airports, and states that for at least eight weeks out of each thirty-six-week NASCAR season, he used small vehicles to transport employees to and from hotels across state lines. (Id. at 15–18, 89–90, 247–249, 285; Doc. 44-2, at 34, 39 ("I recall often crossing state lines").)
Credit-card statements reflecting fuel purchases by Gowey do not show any out-of-state purchases made during the course of his employment. (Doc. 40-2, at 11-35, 37–64.) Other True Grip employees who worked with Gowey also stated in deposition testimony that they do not recall crossing state lines to purchase fuel for the golf carts. (Id. at 239, 244, 263–264.)
United States Department of Transportation ("USDOT") regulations required Gowey to maintain daily driver logs that recorded the hours he worked each week. (Doc. 40-2, at 69, 79, 179.) Gowey's work week typically proceeded as follows: Gowey spent Monday and Tuesday driving the golf carts to the next racetrack location. (Id. at 2–3; Doc. 44-1 at 3–7.) By Wednesday, Gowey picked up his rental truck and began unloading, washing, fueling, and maintaining the golf carts for use, and these duties continued throughout the week until after the race concluded on Sunday. (Id. at 86, 89, 91–93; Doc. 44-1, at 6–10.)
The undisputed facts show that NP does not interview or hire True Grip's drivers, golf-cart supervisors, or cart techs and did not interview or hire Gowey. (Doc. 40-2, at 3, 127.) NP also does not determine the salary of True Grip employees, nor do they maintain employment records for True Grip employees. (Id. at 4, 68.) NP and True Grip do not share common management and their operations are not otherwise related. (Id. at 4, 127–28.) To the extent that an issue arose concerning True Grip's employees and its contract performance, NP would raise those issues with True Grip or its employees directly, but the parties dispute the extent to which NP was able to reprimand True Grip employees or direct True Grip to discipline or terminate employees. (Id. at 3–4, 11, 37, 66-67, 114–17, 119, 124–27, 154–56; Doc. 44-1, at 22, 28–33). For example, Gowey testified that he believes NP discussed his firing in 2018 with True Grip prior to his termination and that NP "cleared it." (Id. at 119.) Gowey also testified that NP "[got] rid of" several True Grip employees. (Doc. 44-1, at 22.) Conversely, True Grip President John Corcoran testified that he made the decision to end Gowey's employment without consulting anyone else. (Doc. 40-2, at 154–56.)
While NP directed the general responsibilities of the golf-cart supervisors employed by True Grip, such as telling golf-cart supervisors when the carts were needed at the track, instructing them where to park trucks and offload carts, and ensuring maintenance requests were timely resolved, NP did not give Gowey a particular set daily schedule. (Id. at 4–5, 10–11, 36-37, 66, 75, 86, 94–96, 183–87, 212–214; Doc. 44-2, at 8–10, 12–13, 15–17, 26–27, 32–33, 35–38.) NP employees also asked Gowey to complete additional tasks on their behalf, although the NP employees aver that these were merely favors. (Doc. 40-2, at 12, 38, 87, 196; Doc. 44-1, at 11, 14.) NP did, however, coordinate Gowey's travel and hotel arrangements (Doc. 44-1, at 3–4) and provide Gowey with NASCAR credentials (Id. at 50).
On February 1, 2019, Gowey sued True Grip and NP, as his joint employers, for violation of the Fair Labor Standards Act ("FLSA"), seeking overtime compensation for the weeks in which he worked more than forty hours. (Doc. 1.) True Grip and NP assert that Gowey is exempt from the FLSA's overtime requirement under the Motor-Carrier Exemption. (Doc. 42, at 2.) True Grip and NP also argue that Gowey's USDOT logs should estop him from making arguments contradictory to the content of those logs, and that NP is not a joint employer of Gowey under Sixth Circuit precedent. (Id. at 2–3.) True Grip and NP filed a motion for summary judgment (Doc. 40), and their motion is now ripe for review.
II. STANDARD OF REVIEW
Summary judgment is proper when "the movant shows 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). The Court views the evidence in the light most favorable to the nonmoving party and makes all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Nat'l Satellite Sports, Inc. v. Eliadis Inc. , 253 F.3d 900, 907 (6th Cir. 2001).
The moving party bears the burden of demonstrating that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Leary v. Daeschner , 349 F.3d 888, 897 (6th Cir. 2003). The moving party may meet this burden either by affirmatively producing evidence establishing that there is no genuine issue of material fact or by pointing out the absence of support in the record for the nonmoving party's case. Celotex , 477 U.S. at 325, 106 S.Ct. 2548. Once the movant has discharged this burden, the nonmoving party can no longer rest upon the allegations in the pleadings; rather, it must point to specific facts supported by evidence in the record demonstrating that there is a genuine issue for trial. Chao v. Hall Holding Co., Inc. , 285 F.3d 415, 424 (6th Cir. 2002).
At summary judgment, the Court may not weigh the evidence; its role is limited to determining whether the record contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A mere scintilla of evidence is not enough; the Court must determine whether a fair-minded jury could return a verdict in favor of the non-movant based on the record. Id. at 251–52, 106 S.Ct. 2505 ; Lansing Dairy, Inc. v. Espy , 39 F.3d 1339, 1347 (6th Cir. 1994). If not, the Court must grant summary judgment. Celotex , 477 U.S. at 323, 106 S.Ct. 2548.
III. ANALYSIS
A. Small-Vehicle Exception to the Motor-Carrier Exemption
Gowey alleges Defendants violated the FLSA by failing to pay overtime wages when he worked over forty hours per work week. (See Doc. 1.) The FLSA requires employers to compensate any employees who work in excess of forty hours per week "at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). However, the FLSA also provides several exemptions from the overtime pay requirements, including the "Motor-Carrier Exemption." See 29 U.S.C. § 213(b)(1). Under the Motor-Carrier Exemption, commercial motor vehicle drivers who engage in "interstate commerce" are not entitled to overtime pay. See Baird v. Wagoner Transp. Co. , 425 F.2d 407, 409–10 (6th Cir. 1970).
Gowey concedes that the Motor-Carrier Exemption would otherwise apply to him, but he argues that it does not because he is covered by the Small-Vehicle Exception to the Motor-Carrier Exemption. (Doc. 44, at 4–11.) The Small-Vehicle Exception is codified in Section 306 of the SAFETEA-LU Technical Corrections Act of 2008 ("TCA"). Pub. L. No. 110-224, 112 Stat. 1572 (2008). This section of the TCA provides in relevant part that, "[b]eginning on the date of enactment of this Act, section 7 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 207 ) shall apply to a covered employee notwithstanding ... 29 U.S.C. 213(b)(1)." Id. § 306(a). A "covered employee" is defined as an individual:
(1) who is employed by a motor carrier or motor private carrier (as such terms are defined by section 13102 of title 49, United States Code, as amended by section 305);
(2) whose work, in whole or in part , is defined--
(A) as that of a driver, driver's helper, loader, or mechanic; and
(B) as affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce , except vehicles—
(i) designed or used to transport more than 8 passengers (including the driver) for compensation;
(ii) designed or used to transport more than 15 passengers (including the driver) and not used to transport
passengers for compensation; or
(iii) used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of title 49, United States Code, and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103 of title 49, United States Code ; and
(3) who performs duties on motor vehicles weighing 10,000 pounds or less.
Id. § 306(c) (emphasis added). Another district court in this Circuit has summarized this section to mean that "where an employee combines more than de minimis work involving a vehicle provided for in the small vehicle exception with work involving a vehicle not covered by that exception, the employee is entitled to overtime pay under the FLSA, at least during weeks where there is such combined work." Byers v. Care Transp., Inc. , No. 13-cv-15174, 2015 WL 5608287 at *8, 2015 U.S. Dist. LEXIS 128111 at *28 (E.D. Mich. Sept. 24, 2015).
True Grip and NP concede that True Grip is a "motor private carrier" under the FLSA (Doc. 42, at 7; see also Doc. 40-2 at 148), which satisfies Section 306(c)(1). With respect to the other requirements of the Small-Vehicle Exception, however, True Grip and NP argue that Gowey did not operate vehicles weighing 10,000 pounds or less in interstate commerce, and if he did, such operation was so de minimis as to fall outside the exception. Gowey, on the other hand, argues that, in addition to physically crossing state lines in a small vehicle, he satisfies the requirement because his transportation within state borders was involved in a "practical continuity of movement"—namely operating rental trucks in furtherance of the movement of the golf carts across state lines.
i. Whether Gowey Operated Small Vehicles in Interstate Commerce
In deciding whether the Small-Vehicle Exception applies to Gowey, the Court must first determine if: (1) Gowey is a driver; (2) his work, in whole or in part, affected the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce; and (3) those vehicles weighed 10,000 pounds or less. See TCA § 306(c).
The facts before this Court require a relatively novel application of the Small-Vehicle Exception. Most cases addressing the Small-Vehicle Exception concern the use of the small vehicle and large vehicle for the same commercial purpose. Gowey indisputably used a vehicle with a gross weight rating of 80,000 pounds to drive golf carts across state lines. Once the golf carts arrived at the week's race track, however, he then used a smaller rental vehicle to perform additional tasks to maintain the golf carts within the scope of his employment. Therefore, this is not a typical "mixed fleet" scenario in which a driver uses vehicles of different weights to accomplish the same commercial end, as other courts have previously addressed. To determine how the law should best apply to the facts in this situation, the Court will examine each element of the relevant statutory language.
See, e.g., Oberg v. W. Park Hd , No. 1:19-cv-1120, 2020 WL 3470331, 2020 U.S. Dist. LEXIS 113381 (N.D. Ohio Apr. 17, 2020) (Plaintiff drove a fleet of delivery trucks that included at least one truck weighing below 10,000 pounds); Oddo v. Bimbo Bakeries U.S.A., Inc. , 391 F. Supp. 3d 466 (E.D. Pa. 2019) (Plaintiffs primarily drove delivery trucks with a Gross Vehicle Weight Rating both greater and lesser than 10,000 pounds to deliver products); Byers , 2015 WL 5608287, 2015 U.S. Dist. LEXIS 128111 (Plaintiffs drove vehicles for transporting passengers for compensation with a Gross Vehicle Weight Rating ("GVWR") both greater and lesser than 10,000 pounds); Moore v. Performance Pressure Pumping Servs., LLC , Nos. 5:15-cv-432, 5:15-cv-346, 2017 WL 1501436, 2017 U.S. Dist. LEXIS 63384 (W.D. Tex. Apr. 26, 2017) (employees operated a mixed fleet of large and small trucks).
a. Whether the Vehicles Weighed 10,000 Pounds or Less
As an initial matter, this Court does not have sufficient facts in the record to definitively conclude that any of the rental trucks Gowey drove weighed 10,000 pounds or less. Although the issue of who bears the burden of proof with respect to vehicle weight has not been addressed in the Sixth Circuit, the Fifth Circuit has considered the issue and held that the burden of proof on whether any vehicles driven in a work week weigh 10,000 pounds or less lies with the plaintiff. See Carley v. Crest Pumping Techs., L.L.C. , 890 F.3d 575, 579–80 (5th Cir. 2018). As the non-movant, however, Gowey's burden at this stage is only to produce evidence from which a reasonable jury to conclude the Small-Vehicle Exception applies. See Anderson , 477 U.S. at 248, 106 S.Ct. 2505.
In moving for summary judgment, True Grip and NP do not argue that the rental trucks operated by Gowey weighed over 10,000 pounds. It is undisputed that Gowey drove rental trucks of various makes and models, including Ford F-150, Ford F-250, Chevy Silverado, and Dodge Ram 1500. (See, e.g. , Doc. 40-2, at 90 (listing Ford F-150, Ford F-250, Chevy Silverado, and Dodge Ram 1500 as various makes and models of rental pickup trucks driven by Gowey).) Other courts have found trucks of these makes and models to weigh below 10,000 pounds. See Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin. , 538 F.3d 1172, 1209 n.61 (9th Cir. 2008) ("Class 2a trucks are those between 6,001 lbs. and 8,500 lbs. GVWR, which include vans, full-size pickups such as the F-150 and Chevrolet Silverado 1500, and medium to large SUVs. Class 2b trucks are those 8,501 to 10,000 lbs. GVWR, which include some large vans, heavy duty pickups (e.g., F-250, Silverado 2500, Ford Excursion, GMC Yukon XL, and Hummer H2), and large SUVs."); Crookston v. Doctor's, Inc. , No. 16-2071, 2017 WL 2439374, at *2, 2017 U.S. Dist. LEXIS 86425, at *5 (D. Kan. June 6, 2017) ("It is also undisputed that plaintiff almost exclusively drove a 2007 Ford F-150 truck ("F-150") weighing 8,900 pounds during his employment."); Aikins v. Warrior Energy Servs. Corp. , No. 6:13-cv-54, 2015 WL 1221255 at *1, 2015 U.S. Dist. LEXIS 32870 at *5 (S.D. Tex. Mar. 17, 2015) ("It is not disputed that Warrior's Ford F-250s, operated without an attached trailer, fall at or below the threshold weight of 10,000 pounds."); Smith v. Schwan's Home Serv. , No. 2:13-cv-231, 2014 WL 6679129, at *28, 2014 U.S. Dist. LEXIS 165883, at *59 (D. Me. Nov. 25, 2014) (finding that a 2007 Chevy Silverado had a GVWR of 7,000 pounds). Accordingly, drawing all reasonable inferences in Gowey's favor, a reasonable factfinder could conclude that Gowey operated pickup trucks weighing less than 10,000 pounds in the course of his employment.
b. Whether Gowey is a "Driver" in Interstate Commerce
A "driver" in the context of the Motor-Carrier Exemption is defined as "an individual who drives a motor vehicle in transportation which is, within the meaning of the Motor Carrier Act, in interstate or foreign commerce." 29 C.F.R. § 782.3(a). "[T]he interstate commerce requirements of the [Motor-Carrier Exemption] are not necessarily met by establishing that an employee is ‘engaged in commerce’ within the meaning of the Fair Labor Standards Act...." Id. § 782.7(a). "In order for the exemption to apply, their activities, so far as interstate commerce is concerned, must relate directly to the transportation of materials moving in interstate or foreign commerce within the meaning of the Motor Carrier Act." Id. However, "[h]ighway transportation by motor vehicle from one State to another, in the course of which the vehicles cross the State line, clearly constitutes interstate commerce" for the purpose of the Exemption. Id. § 782.7(b)(1). Further, a particular driver need not personally cross state lines to engage in interstate commerce and fall under the Motor-Carrier Exemption. Baird , 425 F.2d at 410.
Gowey is a driver in interstate commerce with respect to 80,000 pound vehicles as to warrant application of the Motor-Carrier Exemption. The question here, however, is whether Gowey is also a driver in interstate commerce with respect to the rental trucks as to warrant application of the Small-Vehicle Exception. The TCA does not offer definitions of "driver" or "interstate or foreign commerce," so the Court will apply the definitions provided in the Motor-Carrier Exemption. See United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs. , 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) ("Statutory construction ... is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear.").
The record reflects that Gowey's small-vehicle use has taken him across state lines on more than one occasion and that these small vehicles were used, at a minimum, to transport supplies for repair and maintenance of golf carts. Gowey also avers that he made interstate trips to pick up additional drivers from airports and to transport employees to and from hotels. There is perhaps a question as to whether Gowey's trips from the hotel to the race track are compensable as overtime under the Portal to Portal Act. See, e.g., Moore , 2017 WL 1501436, at *9–10, 2017 U.S. Dist. LEXIS 63384, at *31–32. However, given the totality of ways Gowey used the rental pickup trucks, a reasonable factfinder could conclude that he was a driver in interstate commerce with respect to the small rental vehicles he operated. See Masterson v. Tucker Energy Servs. , No. SA-16-CA-749, 2018 WL 5733188, at *3–4, 2018 U.S. Dist. LEXIS 221561, at *7–10 (W.D. Tex. Aug. 28, 2018) (denying summary judgment where plaintiff used a small vehicle to transport tools and equipment between job sites, run errands to purchase materials from parts and hardware stores, and transport crew members between the hotel and job site). Having determined that a reasonable factfinder could find that Gowey's use of the rental trucks qualifies as use in commerce, the Court must now examine whether this activity in commerce is de minimis as to place Gowey outside of the Small Vehicle Exception.
True Grip and NP cite to Garcia v. W. Waste Servs., Inc. , 969 F. Supp. 2d 1252, 1261 (D. Idaho 2013), for the proposition that "interstate travel to work on [a] company's own vehicles does not qualify as interstate commerce." (Doc. 45, at 6 n.5.) In Garcia , the plaintiff was hired as a salaried mechanic. 969 F. Supp. 2d. at 1254. The plaintiff traveled to perform repairs on company service vehicles using his own car, which he argued made him a driver in interstate commerce. Id. at 1261. The district court found that plaintiff had not presented evidence that he "drove across state lines," nor had he "transport[ed] property as a driver of a service vehicle or provide[d] services to customers." Id. In doing so, the Garcia court cited to Colbeck v. Dairyland Creamery Co. , 70 S.D. 283, 17 N.W.2d 262 (1945). There, the Supreme Court of South Dakota looked to whether "the nature of the employee's occupation is such that it does not affect the safety of motor vehicles." Id. at 291, 17 N.W.2d 262. The plaintiff in Colbeck was hired as a refrigerator service man, and his operation of a vehicle to move between service locations was "simply incidential" to his occupation, as it "consumed only a small part of his working time." Id. Here, Gowey was hired as a golf-cart supervisor, and there are facts in the record to support that his occupation affected the safety of motor vehicles. Further, there are facts in the record indicating that Gowey drove the rental pickup trucks to perform tasks related to the repair and maintenance of golf carts in service of a customer, NP, and that Gowey did in fact cross state lines on more than one occasion. In light of these facts, the Court declines to grant summary judgment based on Garcia.
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ii. Whether Gowey's Small-Vehicle Use Exceeded a De Minimis Threshold
"There seems to be general consensus [among district courts] that in order [for the Small-Vehicle Exception to apply], an employee must (1) perform some work that affects the safety of operation of small vehicles, and (2) it must be part of the employee's duties to so, where ‘some work’ must at least rise above the level of de minimis work...." Oddo , 391 F. Supp. 3d at 471 (collecting cases) (internal quotations partially omitted). The Department of Labor and several district courts have indicated that applicability of the Exception should be evaluated on a week-by-week basis. Id. (collecting cases). However, no legislature or court—in the Sixth Circuit or otherwise—appears to have defined what "de minimis " means in this context. Id. at 472 ; see also Byers , 2015 WL 5608287, at *8 n.11, 2015 U.S. LEXIS 128111, at *28–29 n.11 ("Though nearly every court dealing with this issue uses [de minimis ], virtually none actually define what de minimis work on small vehicles would be or actually rely on the concept in their holdings ...").
In dealing with the Motor-Carrier Exemption, other courts have held that, under the Motor Carrier Act, employees are not exempt from overtime if their qualifying work with vehicles is de minimis : i.e. , "where the continuing duties of the employee's job have no substantial direct effect on such safety of operation or where such safety-affecting activities are ... trivial, casual, and insignificant." Resch v. Krapf's Coaches, Inc. , 785 F.3d 869, 875 (3d Cir. 2015) (citing 29 C.F.R. § 782.2(b)(3) ). Several courts, including at least one district court in this Circuit, have relied on the definition of de minimis under the Motor-Carrier Exemption to craft a de minimis standard for the Small-Vehicle Exception. See Moore , 2017 WL 1501436, at *9, 2017 U.S. Dist. LEXIS 63384, at *26 ("Consistent with [the] caselaw on de minimis duties, work that is trivial, casual, and insignificant has no direct effect on the safety of operation of motor vehicles and would not render an employee covered under the [Small-Vehicle] Exception"); Byers , 2015 WL 5608287, at *8 n.11, 2015 U.S. Dist. LEXIS 128111, at *28–29 n.11 ("Though [another case] involved application of the de minimis concept as to the issue of whether an individual's work on vehicles qualifying under the [Motor-Carrier Exemption] was enough to bring that individual within the purview of the [Exemption] itself, its application to the small vehicle exception within the [Motor-Carrier Exemption] is analogous."). Under that standard, de minimis duties are duties "that have no direct effect on the safety of operation of motor vehicles or are otherwise trivial, casual, or insignificant." Oddo , 391 F. Supp. 3d at 473.
It is undisputed that Gowey operated a small vehicle on a weekly basis. There are at least four instances when Gowey crossed a state line to purchase materials or parts, and it is disputed whether these were the only four times Gowey ever crossed state lines for parts and materials. Further, Gowey avers that he also crossed state lines in transporting himself and others to and from various race tracks. As a result, genuine issues of fact remain as to whether Gowey's small-vehicle use was so "trivial, causal, or insignificant" as to be de minimis. See Smith , 2014 WL 6679129, at *32–33, 2014 U.S. Dist. LEXIS 165883, at *103–06 (denying summary judgment where it was unclear whether plaintiff's small vehicle use was de minimis ); Byers , 2015 WL 5608287, at *9, 2015 U.S. Dist. LEXIS 128111, at *31 (same); Mayan v. Rydbom Express, Inc. , No. 07-2658, 2009 WL 3152136 at *9, 2009 U.S. Dist. LEXIS 90525 at *32 (E.D. Pa. Sept. 30, 2009) (finding that "when and how long each plaintiff performed duties qualifying him or her to be a ‘covered employee’ " was a fact-specific analysis). A reasonable factfinder could conclude that Gowey's work with small vehicles was not trivial, casual, or insignificant, and therefore summary judgment is inappropriate at this time.
B. Estoppel by Gowey's USDOT Daily Driver Logs
Defendants next argue that Gowey should be judicially estopped from arguing that he ever worked more than 40 hours in a given week because it contradicts his prior signed USDOT daily driver logs, which do not reflect any on duty time in excess of forty hours a week. (Doc. 40, at 11.) In support of their argument, Defendants cite to multiple cases in which a party was estopped from taking a position contrary to earlier sworn statements made under the penalty of perjury. (Doc. 40, at 13–16); see also, e.g., Kutty v. United States , No. 3:05-cv-510, 2011 WL 3664476 at *8, 2011 U.S. Dist. LEXIS 93190 at *23 (E.D. Tenn. Aug. 19, 2011) ("When Dr. Kutty filed the LCAs, he certified, under penalty of perjury , that he was providing accurate information ..." (emphasis added)); Mahoney-Buntzman v. Buntzman , 12 N.Y.3d 415, 881 N.Y.S.2d 369, 909 N.E.2d 62, 66 (2009) ("We cannot, as a matter of policy, permit parties to assert positions in legal proceedings that are contrary to declarations made under the penalty of perjury on income tax returns." (emphasis added)); Meyer v. Insurance Co. of Am. , No. 97 Civ. 4678, 1998 WL 709854 at *1, 1998 U.S. Dist. LEXIS 15863 at *3 (S.D.N.Y. Oct. 8, 1998) ("[A]s she swore to the IRS under penalty of perjury that she consistently traded, her estate is estopped from now arguing otherwise." (emphasis added)).
To be sure, Gowey signed his USDOT logs, certifying those entries were "true and correct" (see, e.g. , Doc. 40-2, at 79, 99), and the USDOT logs before the Court do not reflect a week during which Plaintiff logged more than 40 hours of on-duty time. (Id. at 1, 81.) The on-duty time amounts Gowey logged in his USDOT report exist in apparent contradiction to Plaintiff's claims that he worked between 70 and 80 hours a week. (Doc. 1, at 4.) However, Defendants have not provided, and the Court cannot find, any law suggesting that USDOT daily driver logs are the equivalent of a sworn statement that might warrant the application of estoppel. The signed statements from Plaintiff in his USDOT logs, that "certify that these entries are true and correct," were not made under the penalty of perjury. Therefore, the Court will not grant summary judgment to Defendants on the basis of judicial estoppel.
C. NP's Status as a Joint Employer
Finally, NP argues that summary judgment should be granted in its favor because it is not a joint employer of Gowey under the FSLA. Determining employer status under the FLSA is a question of law. Dole v. Elliott Travel & Tours, Inc. , 942 F.2d 962, 965 (6th Cir. 1991). In Rhea v. West Tennessee Violent Crime & Drug Task Force , 825 F. App'x 272 (6th Cir. 2020), the Sixth Circuit explained the standard for determining whether an employer was a joint employer as follows:
The FLSA defines "employer" as "any person acting directly or indirectly in
the interest of an employer in relation to an employee[.]" 29 U.S.C. § 203(d). The Supreme Court has held that the determination of whether someone is an employer should focus on "the ‘economic reality’ rather than ‘technical concepts’ " of the employment. Under this directive, our circuit precedent maintains that "[i]n deciding whether a party is an employer, ‘economic reality’ controls rather than common law concepts of agency." For example, in Dole , we held that a corporate officer who owned 100% of the stock of a travel company was an employer because he was "involved in the business operations of the corporation," "controlled the purse strings of the corporation," and "had control over significant aspects of the corporation's day-to-day functions, including determining employee salaries." Id. at 966 ; see also Fegley v. Higgins , 19 F.3d 1126, 1131 (6th Cir. 1994) (holding that an individual who "controlled significant functions of the business, and determined salaries and made hiring decisions" was an employer). Other courts of appeals have listed nonexhaustive factors relevant to the "economic realities" of the job to aid in determining an alleged employer's status. These factors include "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records."
Id. at *275–76 (some citations omitted).
The plaintiff in Rhea was employed by the District Attorney General for the 30th Judicial District of Tennessee. Id. at 273. He was later assigned to the Interdiction Unit of the West Tennessee Violent Crime & Drug Task Force (the "Task Force") as a canine handler and brought suit seeking compensation for overtime hours he spent caring for his canine partner. Id. The Sixth Circuit determined that the Task Force was not plaintiff's employer for purposes of the FLSA. Id. at 276–77. The Task Force "did not pay Rhea or maintain his employment records," and "also did not make any determinations regarding Rhea's pay." Id. at 276. The District Attorney General generally hired members of the Task Force and then assigned them to the Task Force. Id. Further, the District Attorney General reserved authority to terminate his office's members of the Task Force without consulting the Task Force. Id. Under these facts, the Sixth Circuit found that it was "apparent that the Task Force was not Rhea's employer because it did not have control over the key ‘economic’ aspects of Rhea's employment." Id. at 277. "Although the Task Force was responsible for assigning Rhea's day-to-day tasks, that factor alone [was] insufficient to make the Task Force Rhea's employer." Id.
Rhea is instructive in this instance. It is undisputed that NP did not hire True Grip's drivers, golf-cart supervisors, or cart techs, nor did it determine the salary of True Grip's employees or maintain their employment records. These factors weigh in favor of a determination that NP is not a joint employer of Gowey. Further, while there is evidence NP directed the general responsibilities of the golf-cart supervisors employed by True Grip, assignment and management of day-to-day tasks alone is insufficient to make NP Gowey's joint employer in light of Rhea.
The last element to consider with respect to joint-employer status, then, is whether NP had the power to fire True Grip employees. Gowey testified that NP "cleared" the decision to fire him, but that does not indicate that NP had control over firing him. (Doc. 40-2, at 119 (Gowey testifying that he believes NP discussed his firing with True Grip prior to his termination and that NP "cleared it").) Gowey also testified that NP had the ability to make people "go away" if NP didn't like working with them. (See Doc. 44-1, at 334 ("I saw them get rid of several ... if Nascar didn't like you, you went away.").)
The undisputed facts show that NP was in a contractual relationship with True Grip per the Lease Agreement, under which True Grip provided services to NP. The record also shows that NP brought issues that NP had with True Grip's employees to True Grip's attention during the course of this contractual relationship. (See, e.g. , Doc. 40-2, at 66–67.) However, even if NP expressed dissatisfaction with the performance of a True Grip employee, the record does not reflect that NP had the power to fire that employee; that power remained solely within the hands of True Grip. While a negative performance report from NP might lead to True Grip firing an employee somewhere down the causal chain, it is untenable to hold that a client of a vendor who reports poor performance by the vendor's employee will later become a joint employer if the vendor chooses to fire the employee as a result of the client's negative feedback. It is undisputed that True Grip controlled all "economic realities" of Gowey's employment. Accordingly, Defendant's motion will be GRANTED IN PART , and Gowey's claim against NP will be dismissed with prejudice.
IV. CONCLUSION
Defendants’ motion (Doc. 40) is GRANTED IN PART with respect to Gowey's claim against NP. The remainder of Defendants’ motion is DENIED.