Opinion
Civil Action No. 01-734, Section M/3
March 25, 2002.
MINUTE ENTRY
The defendant, Pennington Seed, Inc., has filed a motion for summary judgment in this action by plaintiff, Jarvis Carpenter, to recover overtime wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. For the following reasons, the motion is GRANTED.
The parties have consented to proceed before the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Rec. Doc. No. 10).
Facts
The following facts are not disputed. Defendant, Pennington Seed, Inc., sells and distributes garden supplies, feed, grain, and other outdoor use products throughout the United States, including states which border the Gulf of Mexico. (Exh 1, Bourgoyne's Declaration (Dec.), para. 3). Pennington Seed's Ponchatoula facility is a wholesale distribution facility and not a retail establishment. (Exh. 1, Bourgoyne' s Dec., para. 5). Pennington Seed employs drivers at its Ponchatoula facility who operate commercial trucks and eighteen wheelers and deliver products to customers in Texas, Louisiana, Mississippi, Alabama, and Florida. (Exh. 1, Bourgoyne's Dec., para. 6).
On October 12, 1994, plaintiff was employed as a driver by defendant at its Ponchatoula, Louisiana, facility. (Exh. 2, Plaintiff's Dep., pp. 7, 17, 20). As a condition of his employment, plaintiff was required to take a Department of Transportation (DOT) physical examination, DOT drug and breath alcohol tests, and a written examination regarding federal motor carrier safety regulations related to the safe operation of motor vehicles in interstate commerce. Plaintiff also took a road test that examined his ability to couple and uncouple the trailer, place the vehicle in motion, control the vehicle, utilize emergency equipment, operate in traffic, brake, back up, and park. (Exh. 2, Plaintiff's Dep., pp. 35-36; Exh. 1, Bourgoyne Dec., para. 10, 12, 14).
Defendant issued plaintiff a "Federal Motor Carrier Safety Regulations Pocketbook" containing safety rules and regulations for operating a commercial motor vehicle. (Exh. 1, Bourgoyne Dec., para. 15, Exhibit F). In accordance with DOT regulations, the defendant required the plaintiff and all of its drivers to maintain transportation logs to document the number of hours they spent driving each day. (Exh. 1, Bourgoyne Dec., para. 11; Exh. 2, Plaintiff's Dep., p. 38). The defendant's policy was to comply with DOT regulations limiting the number of daily and weekly service hours to 60 hours maximum per week, 15 hours per day, including a maximum of 10 hours of driving time. (Exh. I, Bourgoyne Dec., para. 11, Attachment A). It also mandated that each driver have 8 consecutive hours off duty after 10 hours of driving time. (Exh. 1, Bourgoyne Dec., para. 11, Attachment A).
In the course of his duties, plaintiff drove eighteen wheelers across state lines every day. (Exh. 2, Plaintiff's Dep., p. 20). For example, every Wednesday the plaintiff would routinely perform the Meridian, Mississippi run which required him to drive from Ponchatoula, Louisiana to Forrest, Carthage, Philadelphia, Newton, and Meridian, all in Mississippi, and then return to Ponchatoula. On Thursdays, plaintiff would routinely perform the Jackson run which required him to drive from Ponchatoula, Louisiana, to Jackson, Clinton, Ridgeland, Yazoo City, Madison, Pearl, and Terry, all in Mississippi, and then return to Ponchatoula. (Exh. 1, Bourgoyne Dec., para. 9). During plaintiff's employment with defendant, defendant employed approximately eleven truck drivers, including the plaintiff, to drive eighteen wheelers and other commercial vehicles across state lines for the purpose of delivering defendant's products. (Exh. 1, Bourgoyne Dec., para. 7-8).
On April 10, 2000, defendant terminated the plaintiff. (Defendant's Memorandum in Support, p. 5). Prior to his termination, plaintiff never complained to the defendant about not being paid overtime. (Exh. 2, Plaintiff's Dep., pp. 33-34).
On March 10, 2001, plaintiff filed this complaint against defendant asserting a claim under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216 (b), for unpaid overtime compensation. (Rec. Doc. No. 1) Defendant filed this motion for summary judgment with respect to plaintiff's remaining FLSA claim.
On July 9, 2001, plaintiff filed his first supplemental complaint, adding claims for race and age discrimination pursuant to Title VII, the ADEA, and Louisiana Anti-Discrimination statutes, LSA-23:332.A(1)(a) and 23:311 et seq. On March 19, 2002, the parties filed a stipulation of partial dismissal with prejudice, dismissing plaintiff's state law wage claim and his employment discrimination claims under federal and state law. (Rec. Doc. No. 17).
Analysis
The Fair Labor Standards Act, 29 U.S.C. § 201 et seq, requires employers to pay their employees one and one-half times their regular rate of pay for hours worked in excess of forty hours in one workweek.See 29 U.S.C. § 207(a)(2). This provision, however, is not applicable to "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49." 29 U.S.C. § 213(b)(1). Because there is no concurrent jurisdiction between the FLSA and the Motor Carrier Act, if an employee falls within the Secretary of Transportation's jurisdiction pursuant to the motor carrier exemption, then the FLSA does not apply.
Morris v. McComb, 332 U.S. 422, 437-438, 68 S.Ct. 131, 138 (1947);Shew v. The Southland corporation, 370 F.2d 376, 380 (5th Cir. 1966).
Pursuant to 49 U.S.C. § 31502, referred to as the Motor Carrier Act, the Secretary of Transportation "may prescribe requirements for — (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation."
49 U.S.C. § 31502 was amended by Pub.L. 97-449 to substitute the words "Secretary of Transportation" for "Interstate commerce commission". All of the functions, powers, and duties of the Interstate commerce commission under section 204(a)(1) and (a)(2) of the Motor carrier Act that relate to employee's qualifications and maximum hours of service and the safety of operations and equipment were transferred to the Secretary of Transportation by Pub.L. 89-670 ( 80 Stat. 931). 29 C.F.R. § 782.0 (c).
A "motor carrier" is defined as "a person providing motor vehicle transportation for compensation." The term "motor private carrier" includes "a person, other than a motor carrier, transporting property by motor vehicle when — (A) the transportation is (across state lines as provided in 49 U.S.C. § 13501]; (b) the person is the owner, lessee, or bailee of the property being transported; and (c) the property is being transported for sale, lease, rent or bailment or to further a commercial enterprise."
The motor carrier exemption is construed narrowly against the employer and the employer bears the burden of proving its applicability. The Secretary of Transportation has promulgated regulations defining those employees who fall within the DOT's jurisdiction. 29 C.F.R. § 782.2 (a) lists the following criteria for the motor carrier exemption:
Martin v. Cooper Electric Supply co., 940 F.2d 896, 900 (3rd Cir. 1991), cert. denied, 502 U.S. 936, 112 S.Ct. 1473, 17 L.Ed.2d 617 (1992); McGuiggan v. CPC International. Inc., 84 F. Supp.2d 470, 481 (S.D.N.Y. 2000).
The exemption of an employee from the hours provisions of the Fair Labor Standards Act under section 13(b) (1) depends both on the class to which his employer belongs and on the class of work involved in the employee's job. The power of the Secretary of Transportation to establish maximum hours and qualifications of service of employees, on which exemption depends, extends to those classes of employees and those only who (1) are employed by carriers whose transportation of passengers or property by motor vehicle is subject to his jurisdiction under section 204 of the Motor Carrier Act [citations omitted], 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 [citations omitted].
Section 204 of the Motor carrier Act has been amended and recodified at 49 U.S.C. § 31502 (b).
Plaintiff satisfies both elements of 29 C.F.R. § 782.2 (a). As previously noted, the Secretary of Transportation has jurisdiction over "motor private carriers." The defendant is a "motor private carrier" because it is the distributor of garden supplies which regularly transports products across state lines. (Exh. 1, Bourgoyne's Dec., para. 3 and 6; Bourgoyne's Supp. Dec., para. 4); (2) it owns the products it transports. (Bourgoyne's Supp. Dec., para. 4); and (3) the products it transports are for sale. (Bourgoyne's Supp. Dec., para. 4) Plaintiff also engaged in activities which directly affected the safety of vehicle operations. His employer required that he comply with safety regulations promulgated by the DOT, including passing a DOT physical, taking drug and alcohol tests, passing written and driving tests, and maintaining transportation logs. (Exh. 1, Bourgoyne Dec., para. 11, Exh. 2, Plaintiff's Dep., p. 38).
In determining the jurisdiction of the Secretary of Transportation, "it is not a question of fundamental concern whether or not it is the larger or the smaller fraction of the employee's time or activities that is devoted to safety work. It is the character of the 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, maximum hours of service, safety of operation and equipment." Levinson v. Spector Motor Service, 330 U.S. 649, 674, 67 S.Ct. 931, 944 (1947). "Highway transportation by motor vehicle from one State to another, in the course of which the vehicles cross the State line, clearly constitutes interstate commerce under both [the FLSA and the Motor carrier Act]. Employees of a carrier so engaged, whose duties directly affect the safety of operation of such vehicles, are within the exemption . . .". 29 C.F.R. § 782.7(b)(1).
"Truck drivers are engaged in activities of a character affecting safety that subject them to the power of the Secretary of Transportation if the drivers are required to adhere to the following: completing Department of Transportation ("DOT") logs recording the time spent driving, passing DOT written and driving tests, completing various DOT forms, and passing a DOT physical and drug test." Barefoot v. Mid-America Dairymen. Inc., 826 F. Supp. 1046, 1050 (N.D. Tex. 1993), citing Thomas v. Wichita coca-cola Bottling co., 968 F.2d 1022, 1026 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992).
Plaintiff contends that he is excepted from the motor carrier exemption pursuant to 49 U.S.C. § 13505(a). 49 U.S.C. § 13505 (a) provides that "[n]either the Secretary nor the Board has jurisdiction under this part over the transportation of property by motor vehicle when — (1) the property is transported by a person engaged in a business other than transportation; and (2) the transportation is within the scope of, and furthers a primary business (other than transportation) of the person."
Plaintiff relies on Reich v. New Mt. Pleasant Bakery, 1993 WL 372270 (N.D.N.Y. 1993) in support of his argument. In Reich, the district court concluded that drivers hired by a bakery to deliver baked goods to customers within the State of New York fell within the exception of 49 U.S.C. § 13505(a) to the Secretary of Transportation's jurisdiction. The court found that the defendants were engaged in the business of baking and selling baked goods, not in transportation, and that any transportation of baked goods was within the scope of and furthered the defendant's primary business as a bakery. Adopting that rationale, plaintiff argues that defendant was in the business of manufacturing and selling seed and garden supplies, not in the business of transportation, and that the transportation of those supplies was within the scope of and furthered defendant's garden supply business.
The language of 49 U.S.C. §§ 13505(a) was formerly contained in 49 U.S.C. §§ 10524. 49 U.S.C. § 10524 was amended by Pub.L. 104-88, § 102(a) and recodified as 49 U.S.C. § 13505 (a).
1993 WL 372270 at *5, para. 19 and 20.
Id., at para. 21.
The Third Circuit addressed plaintiff's argument in Friedrich v. U.S. Computer Services, 974 F.2d 409, 413 (3rd Cir. 1992), stating:
[The plaintiffs argue that the DOT does not have the power to regulate them because they were engaged in a business other than transportation and the transportation in question was in furtherance of their primary business of servicing computer equipment. Under the "primary business test,' the ICC [Interstate Commerce Commission] lacks jurisdiction over the transportation of property by motor vehicle by a person engaged in a non-transportation business when the transportation is within the scope of and furthers the primary business of such person. 49 U.S.C. § 10524(a).
. . . Section 10524(a) has no application in this case. The section merely exempts motor private carriers from the licensing, permit, and certificate requirements imposed upon motor carriers by the ICC pursuant to 49 U.S.C. § 10921-10935; it does not serve to deprive the DOT of its power to regulate the qualifications and maximum hours of service of employees of motor private carriers pursuant to 49 U.S.C. § 3102(b)(2). (citation omitted). The MCA exemption thus applies independent of ICC's jurisdiction over a motor private carrier.974 F.2d at 413.
The court in Klitzke v. Steiner Corp., 110 F.3d 1465, 1468 (9th Cir. 1997), also rejected the plaintiff's attempt to use 49 U.S.C. § 13505 (a) to extricate himself from the motor carrier exemption for the same reasons espoused in Freidrich. In addition, McGuiggan v. CPC International. Inc., 84 F. Supp.2d 470, 482 (S.D.N.Y. 2000) and Bilyou v. Dutchess Beer Distributors. Inc., 2001 WL 286779, at *3 (S.D.N Y Mar. 9, 2001), have also declined to follow Reich, agreeing with the decisions in Klitzke and Friedrich.
Plaintiff notes that the ICC's licensing, permit, and certificate requirements contained in 49 U.S.C. § 10921-10935 were repealed afterFriedrich was decided, and he argues that the Friedrich court's determination that the former 49 U.S.C. § 10524 (a) only referred to the requirements imposed therein no longer makes sense. Nevertheless, the Court is convinced, for the reasons stated in Friedrich, Klitzke, and McGuiggan, that 49 U.S.C. § 13505 (a) does not deprive the Secretary of Transportation of jurisdiction over employees of "motor private carriers" who meet the requirements of 29 C.F.R. § 782.2 (a).
Because 49 U.S.C. § 13505(a) does not afford plaintiff relief from the motor carrier exemption and plaintiff falls within the jurisdiction of the Secretary of Transportation pursuant to 49 U.S.C. § 31502 (b), the FLSA's overtime provisions do not apply to the plaintiff. There being no genuine dispute as to any material fact, the Court finds that the defendant is entitled to summary judgment on plaintiff's FLSA claim as a matter of law.
Rule 56(c), Fedral Rules of Civil Procedure; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Conclusion
For the above and foregoing reasons,IT IS ORDERED that the motion of defendant, Pennington Seed, Inc., for summary judgment, is hereby GRANTED.