ORDER ON DEFENDANTS' MOTION FOR DECERTIFICATION OF FLSA COLLECTIVE ACTION
Lance E. Walker, UNITED STATES DISTRICT JUDGE.
The matter is before the Court on Defendants' Motion for Decertification of the
This civil action presents "collective" claims for recovery of unpaid overtime wages pursuant to the federal Fair Labor Standards Act (FLSA). Plaintiff Timothy Noll contends Defendants Flowers Foods, Lepage Bakeries, and CK Sales misclassified the members of the collective as independent contractors and thereby deprived those individuals of overtime wages throughout the claim period.
On March 20, 2019, I certified the following FLSA collective:
Class Certification Order (ECF No. 219).
On May 31, 2019, the parties filed motions for summary judgment. On January 29, 2020, based on the summary judgment record, I found that the distribution activity at issue in this case is subject to the Motor Carrier Act (MCA) exemption to the FLSA, unless a given distributor can establish that his or her use of a personal vehicle is within the Technical Corrections Act's exception to the MCA exemption. Although Plaintiff Noll's summary judgment presentation was not calibrated to make the TCA showing, I denied Defendant's request for collective-wide summary judgment on the FLSA claim and a related claim for declaratory judgment because I concluded, based on some of the evidence contained in the record, that there are some members of the FLSA class who likely could demonstrate that they conducted some product distribution services in personal vehicles and, consequently, could be entitled to overtime wages for certain weeks of the claim period.
Summary Judgment Order at 22.
Nevertheless, because Defendants carried their burden of demonstrating that the distribution activity was subject to the Secretary of Transportation's jurisdiction under the MCA, such that each and every class member would only be entitled to relief if he or she delivered product in a personal vehicle during any weeks in the class period in which his or her hours exceeded 40, and because the summary judgment record failed to demonstrate that lead Plaintiff Timothy Noll would be able to make such a showing, I granted Defendants leave to file a motion to decertify the FLSA class.
Defendants' Motion for Decertification of the FLSA Collective Action (ECF No.
1. Plaintiff Timothy Noll has provided deposition testimony that indicates he never used a personal vehicle to deliver product to his customers;
2. For the opt-in Plaintiffs, a recovery is only possible if they transported product in their personal vehicles to satisfy existing orders;
3. The burden to make this showing is Plaintiffs' burden, because the showing is necessary to overcome the MCA exemption for which Defendants have already carried their burden at the summary judgment stage; and
4. Plaintiffs cannot make this showing with representative evidence because each plaintiff's conduct in any given week is an individualized inquiry and Plaintiffs failed to develop a record that would permit the finder of fact to determine that plaintiffs' activities in this regard were in any way uniform or typical across the collective.
In opposition to the motion, Plaintiff Noll argues the TCA exception to the MCA overtime exemption "can largely be determined with representative evidence, and this Court can efficiently handle individualize factfinding, should it be required." Opposition at 1 (ECF No. 274-1 (unredacted version)). Noll observes, correctly, that Courts regularly engage in individualized fact finding in FLSA matters. Id. He asserts, too, that "Plaintiffs' work pulling and transporting stale product, which they uniformly do, constitutes the continuation of interstate transportation under the TCA," and that "[a]ll Plaintiffs are similarly situated with regard to this legal issue," and also with regard to issues related to the nature of their work and their common law employee status. Id. Should I disagree that the TCA exception can be demonstrated through representative evidence involving pulling stale product, Noll argues I should certify a small collective comprised of only those opt in plaintiffs who delivered product in personal vehicles. Id. at 2, 17-19.
A. The TCA's Interstate Requirement
In the Summary Judgment Order, I reached a conclusion of law that the distributors'
I then considered whether the so-called Technical Corrections Act exception (what I will here call the "small vehicle exception") would permit the distributors, as a collective, to escape the MCA exemption. I concluded that a given distributor might demonstrate entitlement to FLSA overtime wages, if the distributor delivered fresh bakery products to the customers who ordered them, using a "personal vehicle" rather than a commercial box truck, and the record suggested to me that there
In the course of my analysis, albeit in a footnote, I rejected the idea that distributors who pull stale product from the store shelves and carry it away in their personal vehicles would come within the small vehicle exception, reasoning that this was not the kind of transportation activity that would warrant an exercise of jurisdiction by the Secretary, and therefore did not affect transportation in interstate commerce. Summary Judgment Order at 29 n.14. But in doing so, I conflated the MCA jurisdictional standard with the TCA interstate commerce standard. On further reflection, I do not see why a standard devised to determine whether the Secretary of Transportation has jurisdiction over internodal intrastate shipments should be applied when one is attempting to determine whether Congress intended to afford FLSA relief to workers pursuant to the small vehicle exception to the MCA exemption.
As explained in the Summary Judgment Order, the TCA's small vehicle exception extends the protection of Section 7 of the FLSA to "covered employee[s]" whose transportation work comes within the jurisdiction of the Secretary of Transportation, but whose work also, "in whole or in part," affects "the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate ... commerce." 29 U.S.C. § 207 Statutory Note (quoting Pub. L. 110-244, Title III, § 306(c) (2008)). This is the so-called "small vehicle" or "non-commercial vehicle" exception (which I have also referred to as a "personal vehicle," following the lead of the parties).
Here, the question is whether "pulling stales" from the shelves and transporting them to another location in a small vehicle is activity that affects "the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate ... commerce." 29 U.S.C. § 207 Statutory Note (emphasis added). The burden of showing it is falls to Plaintiff Noll. Carley v. Crest Pumping Techs., LLC, 890 F.3d 575, 580 (5th Cir. 2018).
Noll argues that pulling stales is interstate commerce for purposes of the TCA exception because the Distributor Agreement obligates the distributors to remove the stale product from customers' shelves and, consequently, "the chain of interstate commerce was never broken ...., but rather completed an intended, final leg of movement that originated outside Maine." Opposition at 12.
Upon further consideration, I conclude that, although the transportation of stales, standing alone, likely would not be the kind of transportation activity that would come within the Secretary of Transportation's MCA jurisdiction to regulate interstate transportation, when the transportation of stales is considered in light of a "fair" reading of the FLSA's small vehicle exception, Encino Motorcars, LLC v. Navarro, ___ U.S. ___, 138 S.Ct. 1134, 1142, 200 L.Ed.2d 433 (2018), it is nonetheless transportation "in interstate commerce," which is all that the plain language of the TCA exception requires. In other words, when I consider the plain language of the TCA exception, it seems to me that Congress expressed its intention to afford FLSA overtime for workers when their transportation is in a non-commercial vehicle
When Congress uses a term like interstate commerce, the logical inference is that it intends to exert its authority over interstate commerce. "If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). I should "look to agency interpretations only when the statute or regulation remains ambiguous after [I] have employed the traditional tools of construction." United States v. Lachman, 387 F.3d 42, 54 (1st Cir. 2004). Because there is no apparent reason why I should convolute the meaning of interstate commerce by reference to the DOL's interpretation of the DOT's jurisdiction over interstate transportation, I will revisit the issue whether "pulling stales" in a personal vehicle is transportation in interstate commerce.
Supreme Court precedent teaches that the power of Congress to regulate commerce extends to "`the channels of interstate commerce,' `persons or things in interstate commerce,' and `those activities that substantially affect interstate commerce.'" Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (quoting United States v. Morrison, 529 U.S. 598, 609, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)). See also United States v. Lopez, 514 U.S. 549, 560, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) ("Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained."). When Congress enacted the small vehicle exception, it is fair to interpret its legislative act as extending to transportation activities that substantially affect interstate commerce. Here, the transportation of stales, when performed in a small vehicle, comes within the TCA's small vehicle exception because it substantially affects interstate commerce, even though it is entirely intrastate transportation. Stale perishable products in the stream of commerce are not only brought to a secondary market through this activity, but typically are sold to thrift store outlets that maintain their own accounts with Defendants.
Defendants argue that pulling stales cannot salvage the collective action.
Jake Linthicum is the Distributor Enablement Operations Coordinator for Lepage Bakeries Park Street. Mr. Linthicum explains:
Linthicum Decl. (ECF No. 276-2).
Against the picture presented by Mr. Linthicum, Plaintiff Noll has presented evidence demonstrating that the Distributor Agreement requires that stales be pulled from customer shelves (and necessarily transported somewhere), but not any evidence that it is typical of the members of the collective to perform this work in small vehicles. Instead, Noll relies on the inference that some products "may become out of code on a day that is not a retailer's usual service day; in that case, the Distributor may make a special trip to pull stale to satisfy the `daily' requirement." Opposition at 3 (citing Dep. of Paul Milazzo at 204-206 (ECF No. 273-3)). To reinforce just how loose this evidentiary proffer is, consider Noll's primary summation of the evidence:
Opposition at 14 (emphasis added). In other words, Noll emphasizes that "the common testimony" reveals that distributors use personal vehicles to travel to certain accounts on two non-delivery days when they pull products from back shelves and rotate stock. But as to "transporting stale," Noll offers only that it "may have occurred."
What this evidence tells me is that Noll failed to substantiate his contention that the TCA small vehicle exception applies; as in, failed to present a reliable representative sampling from members of the collective, showing that it is typical for distributors to move product (fresh or stale) in their personal vehicles. This failure may be the product of Noll's assumption
Magistrate Judge Nivison has summarized the kind of showing required to justify a collective trial based on representative evidence:
Saunders v. Getchell Agency Inc., No. 1:13-CV-00244-JDL, 2014 WL 12539643, at *2-3 (D. Me. Dec. 12, 2014), report and recommendation adopted, 2015 WL 1292594 (D. Me. Mar. 23, 2015).
Although this case involves several questions common to the class that can be resolved on representative evidence, Plaintiff
Defendants' Motion for Decertification of the FLSA Collective Action (ECF No. 268) is