Alphonse Mazzarella v. Fast Rig Support LLC, et al
Filing
PRECEDENTIAL OPINION Coram: SMITH, HARDIMAN and SHWARTZ, Circuit Judges. Total Pages: 12. Judge: SHWARTZ Authoring.
Case: 15-3116
Document: 003112303237
Page: 1
Date Filed: 05/23/2016
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-3116
______________
ALPHONSE MAZZARELLA,
v.
FAST RIG SUPPORT, LLC;
FIRST AMERICANS SHIPPING AND TRUCKING, INC.,
Appellants
______________
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. No. 3-13-cv-02844)
District Judge: Hon. Malachy E. Mannion
______________
Submitted Under Third Circuit LAR 34.1(a)
May 20, 2016
______________
Before: SMITH, HARDIMAN, and SHWARTZ, Circuit
Judges.
(Filed: May 23, 2016)
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William E. Vinsko, Jr., Esq
253 South Franklin Street
Wilkes-Barre, PA 18701
Counsel for Appellant
Mark J. Gottesfeld, Esq.
R. Andrew Santillo, Esq.
Peter D. Winebrake, Esq.
Winebrake & Santillo
715 Twinning Road
Suite 211, Twinning Office Center
Dresher, PA 19025
Counsel for Appellee
______________
OPINION OF THE COURT
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SHWARTZ, Circuit Judge.
Trucking companies Fast Rig Support, LLC and First
Americans Shipping and Trucking, Inc., (collectively,
“Defendants”), appeal the stipulated judgment requiring them
to pay Plaintiffs overtime. Because the District Court
correctly determined that Defendants have not met their
burden to show that the Motor Carrier Act (“MCA”)
exemption to the overtime provisions in the Fair Labor
Standards Act (“FLSA”) and Pennsylvania Minimum Wage
Act (“PMWA”) applies, see 29 U.S.C. § 207(a)(1); 43 Pa.
Cons. Stat. Ann. § 333.104(c), we will affirm.
I
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Plaintiffs, including Alphonse Mazzarella, worked for
Defendants as truck drivers. They transported water to
hydraulic fracking sites within Pennsylvania.1 Mazzarella
asserts that he and his coworkers often worked more than
forty hours in a week, but were paid overtime only for work
performed above forty-five hours per week, in violation of the
overtime provisions of the FLSA and PMWA.2
Before trial was scheduled to begin, the District Court
ordered the parties to submit briefing on whether the
Defendants were subject to the MCA exemption to the
FLSA’s overtime requirements. As explained infra, the MCA
provides that certain interstate employment activity that is
subject to the jurisdiction of the Department of Transportation
is exempt from certain requirements, such as the FLSA’s
overtime provisions.
In support of applying the MCA, Defendants explained
that they contract with gas-drilling companies to transport
water from “retention ponds” to drill sites for hydraulic
fracking. Defendants assert that after fracking is completed,
Although Defendants assert that “[i]n many
instances, the drivers do leave the Commonwealth of
Pennsylvania during the ordinary course of their
employment,” App. II at 15, they do not deny that their
drivers’ primary responsibilities involved the transportation
of water within Pennsylvania itself, and as discussed further
herein, provide no evidence to substantiate the claim that the
drivers leave Pennsylvania as part of their duties.
2
The parties stipulated to the conditional certification
of a collective FLSA action, and Plaintiffs withdrew their
class action claims under the PMWA.
1
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they are occasionally hired to transport the water used in the
fracking process to injection wells for disposal. Although
Defendants presented detailed arguments about the fracking
process in their briefs, they submitted no evidence on this
topic. Rather, Defendants submitted only: (1) a certificate
issued by the Department of Transportation authorizing
Defendant First Americans to “engage in transportation as a
common carrier of property . . . in interstate or foreign
commerce,” App. II at 50; (2) a news article about another
company in Pennsylvania and regulatory decisions being
made about the fracking industry; and (3) a one-page
spreadsheet which appears to record water shipments over a
three-day period in January 2013.
The District Court held that the water Defendants
transported constituted property for purposes of applying the
MCA, but that Defendants had not shown the water and
drivers were engaged in a “continuous stream of interstate
travel.” App. I at 16-17. The District Court noted that its
own research disclosed that water involved in the fracking
process becomes “contaminated,” App. I at 18, and
“substantially modified,” and thus Defendants were engaged
in “two separate commercial transactions,” one before the
water becomes “tainted” and one after the fracking process is
complete, leading to the conclusion that there was no
continuous movement of an unaltered item across state lines
and “insufficient evidence of interstate intent” on Defendants’
part to apply the MCA exemption, App. I at 20-21.
The parties agreed to the entry of a conditional
judgment awarding Plaintiffs $31,000, which allowed
Defendants to appeal the ruling precluding them from relying
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on the MCA exemption.3
II4
The FLSA generally mandates that employers pay
employees 150% of their hourly wage for all time worked
above forty hours per week.5 29 U.S.C. § 207(a)(1). Several
Defendants’ notice of appeal seeks review of “the
final judgment entered in this action.” App. I at 1. However,
based upon the arguments presented in the parties’ briefs and
the contents of the stipulated judgment, we understand the
parties are seeking review of the District Court’s order that
held the MCA exemption did not apply.
4
The District Court had jurisdiction over Plaintiffs’
FLSA claim pursuant to 29 U.S.C. § 216(b) and 28 U.S.C.
§ 1331, and the PMWA claim pursuant to 28 U.S.C. § 1367,
and we have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291. The question of “[w]hether an employee’s
particular activities excluded them from the overtime benefits
of the FLSA is a question of law.” Resch v. Krapf’s Coaches,
Inc., 785 F.3d 869, 872 n.6 (3d Cir. 2015) (quoting Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)).
Accordingly, we exercise plenary review over the District
Court’s legal conclusions. See Post v. St. Paul Travelers Ins.
Co., 691 F.3d 500, 514-15 (3d Cir. 2012); Kosiba v. Merck &
Co., 384 F.3d 58, 64 (3d Cir. 2004).
5
This analysis applies equally to the FLSA and
PMWA claims, given the similarities between the MCA in
each statute. See 29 U.S.C. § 213(b)(1) (FLSA exemption);
43 Pa. Cons. Stat. Ann. § 333.105(b)(7) (PMWA exemption);
see also Resch, 785 F.3d at 871 n.4 (noting that identical
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categories of employees are exempt from this requirement,
including “any employee with respect to whom the Secretary
of Transportation has power to establish qualifications and
maximum hours of service” under 49 U.S.C. § 31502. 29
U.S.C. § 213(b)(1). There is no dispute that Plaintiff and his
coworkers work for and Defendants are motor carriers subject
to the Department of Transportation’s jurisdiction. See 49
U.S.C. § 13102(14).
The question here is whether
Defendants are engaged in transportation between “a State
and a place in another State.” 49 U.S.C. § 13501. If so, then
they are exempt from the FLSA’s overtime provisions
pursuant to the MCA. See 29 U.S.C. § 213(b)(1).
FLSA exemptions must be construed narrowly against
the employer, and Defendants “bear[] the burden of proving
‘plainly and unmistakably’ that the drivers qualify for the
MCA exemption.” Packard v. Pittsburgh Transp. Co., 418
F.3d 246, 250 (3d Cir. 2005) (citing Friedrich v. U.S.
Comput. Servs., 974 F.2d 409, 412 (3d Cir. 1992)). Whether
the exemption applies to a particular employer depends on
“the class of the employer and the class of work the
employees perform.” Resch v. Krapf’s Coaches, Inc., 785
F.3d 869, 872 (3d Cir. 2015) (citing 29 C.F.R. § 782.2(a)).
The exemption applies if the employer “engage[s] 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.”6 29 C.F.R. § 782.2(a). When the transportation
principles govern claims under FLSA and PMWA
exemptions).
6
The District Court held that because the water had
economic value to Defendants, it could be sufficiently
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takes place within a single state, the interstate commerce
requirement may still be met by demonstrating that the
employee’s work involves a “‘practical continuity of
movement’ across State lines.” 29 C.F.R. § 782.7(b)(1)
(quoting Walling v. Jacksonville Paper Co., 317 U.S. 564,
568 (1943)).7 Assessing whether “continuity of movement”
exists focuses on the “essential character of the movement.”
Packard, 418 F.3d at 255 (citing Balt. & Ohio Sw. R.R. Co. v.
Settle, 260 U.S. 166, 170-73 (1922)). For example, the Court
of Appeals for the Second Circuit examined whether the
MCA exemption applied to a distributor who brought
beverages into New York from out of state, then had its
drivers deliver the beverages to customers solely within the
state, and later collect empty bottles for return to the
employer’s warehouse for recycling and shipment out of
state. Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217,
219-20 (2d Cir. 2002). The court held that the distributor’s
drivers, who worked entirely within New York, were exempt
from the FLSA’s overtime provisions because their “carriage
was merely one leg of a route to an out-of-state destination,”
and “part of a continuous movement of goods in interstate
commerce.” Id. at 224.
Here, to demonstrate that their employees are engaged
in interstate commerce under the MCA exemption,
Defendants must similarly show that the drivers’
considered property for purposes of applying the exemption.
Neither party challenges that ruling on appeal.
7
These regulations are persuasive but not binding in
determining the scope of the MCA exemption and definition
of interstate commerce. See Packard, 418 F.3d at 251-54 &
nn. 5, 8.
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transportation of water is part of a “continuous stream of
interstate travel.” Walters v. Am. Coach Lines of Miami,
Inc., 575 F.3d 1221, 1229 (11th Cir. 2009) (quoting Chao v.
First Class Coach Co., Inc., 214 F. Supp. 2d. 1263, 1272
(M.D. Fla. 2001)). Courts look to a number of factors to
assess whether the employees and their activities are
sufficiently involved in interstate commerce, including: (1)
whether and to what extent a product pauses in a warehouse
or other location during transport before reaching its final
destination, Bilyou, 300 F.3d at 222-24; (2) whether the
product is altered in any way during its transport, Collins v.
Heritage Wine Cellars, Ltd., 589 F.3d 895, 898-99 (7th Cir.
2009); (3) the employer’s intent concerning the delivery of
the product at the time the transportation commences, see id.;
and (4) whether the employer’s business “involve[s] an
integrated system of interstate shipments.” Packard, 418 F.3d
at 255; compare id. (declining to apply the MCA exemption
where handicap ride access drivers occasionally drove
passengers to a bus or railroad station for interstate travel, but
were not part of a regular stream of commerce), with Abel v.
S. Shuttle Servs., Inc., 631 F.3d 1210, 1216-18 (11th Cir.
2011) (per curiam) (applying MCA exemption to airport
shuttle company because passenger reservations were often
purchased as part of a package deal with airline tickets,
creating a practical continuity of movement in interstate
commerce). While no single factor is required or controlling,
a factor’s presence or absence may reveal the employer’s
“fixed and persisting intent” at the time the shipment
commenced, which is important to showing the existence of
practical continuity of movement in interstate commerce.
Foxworthy v. Hiland Dairy Co., 997 F.2d 670, 673 (10th Cir.
1993) (citing 29 C.F.R. § 782.7(b)(2)).
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In this case, none of the three pieces of evidence
Defendants produced demonstrate that their drivers were
involved in a continuity of movement in interstate commerce.
The DOT certificate merely authorizes Defendants to engage
in interstate transportation. It provides no information about
whether Defendants’ drivers actually drove across state lines
or otherwise engaged in interstate commerce.8 Similarly, the
online news article Defendants provided offers, at best,
general information that most fracking wastewater is trucked
out of Pennsylvania to Ohio, but says nothing about any of
the water Defendants’ employees transport. Finally, the
spreadsheet Defendants submitted shows, at most, that
specific shipments of water are tracked and bound for specific
interim destinations within Pennsylvania before being used in
the fracking process.9 None of this evidence shows that the
drivers or water were part of the practical continuity of
movement in interstate commerce.10
8
The certificate itself references only that the
authorization will continue “as long as the carrier maintains
compliance” with insurance coverage and process server
designation requirements, as well as a requirement that the
carrier “render reasonably continuous and adequate service to
the public.” App. II at 50.
9
Defendants’ brief states that this spreadsheet reflects
the care with which they account for the water transported,
and they contend this supports a finding of “interstate intent.”
Appellant’s Br. 12. However, nothing in the spreadsheet
provides a basis to infer Defendants intended to transport
water recorded on the sheet out of state.
10
The District Court noted the general insufficiency of
the evidence Defendants presented, and apparently conducted
its own research, concluding that the fact that water becomes
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Beyond this limited evidence, Defendants present only
bare assertions, without evidentiary support in the record,
about the fracking process and transportation in interstate
commerce. For instance, Defendants assert in their brief that
water is sometimes picked up from sites in New York rather
than Pennsylvania, and Defendants are sometimes contracted
to haul wastewater to Ohio. This assertion, however, is not
backed up with evidence. Moreover, even if the Defendants
presented evidence supporting these assertions, it would not,
by itself, demonstrate that their actions are a “clearly
identifiable element of an integrated interstate distribution
system.” Packard, 418 F.3d at 254. The mere fact that a
journey which begins with Defendants transporting water
from retention ponds and ends with water being driven from
Pennsylvania into Ohio does not alone demonstrate
Defendants were part of “an integrated system of interstate
shipments” sufficient to satisfy Defendants’ burden.11 Id. at
“contaminated,” App. I at 18, and “tainted” during the
fracking process sufficiently changed the character of the
water to demonstrate that “defendants’ trucking activities
constitute two separate commercial transactions,” one
involving delivery of the water, and the second picking up
and transporting the water to Ohio, App. I at 20. The
evidentiary record provided by the parties lacks facts from
which we can reach this conclusion, and we decline to look
outside the record to address it. See Fassett v. Delta Kappa
Epsilon (N.Y.), 807 F.2d 1150, 1165 (3d Cir. 1986) (“The
only proper function of a court of appeals is to review the
decision below on the basis of the record that was before the
district court.”).
11
Defendants argue that they meet this burden because
their intent “from the very beginning of the water
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255.
The details of a business’s operation are often critical
to determining the connection between an employee’s actions
and interstate commerce. See, e.g., Morris v. McComb, 332
U.S. 422, 431-33 (1947) (considering the proportion of a
defendant’s interstate activities within its overall business
operations and whether a plaintiff could be assigned to such
activities). As the Court of Appeals for the Seventh Circuit
noted, minor differences in timing, title to the property being
transported, and a predetermined destination for the items
being transported can be dispositive of whether the MCA
exemption applies. Collins, 589 F.3d at 897-98 (noting that if
an employer purchased wine from out of state, shipped the
wine into the state, and used its truck drivers merely to
transport wine, it would be subject to the exemption—but if
the same importer shipped its wine to a wholesale distributor
who took title over the product and used its own trucks for
distribution, the shipments would be purely intrastate and not
subject to the MCA). Similarly, the relationship between
Defendants, the fracking companies, and the movement of the
transportation journey—is to transport the water to the
disposal wells out of state.” Appellant’s Br. 13 (emphasis
omitted). They, however, provide no evidence from which
this intent can be gleaned. Moreover, the mere intersection of
a company’s activity and interstate commerce is not enough
to warrant application of the MCA exemption. See Packard,
418 F.3d at 255 (“There is no general rule that once
something . . . embarks on a journey that will eventually carry
it between two states, every moment of that journey, through
the last conceivable moment of travel, is necessarily interstate
transport under the MCA.”).
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wastewater out of state could theoretically be one involving a
practical continuity of movement in interstate commerce,
depending on, among other things, the intent of the shipper at
the time shipment commenced, the role Defendants’ drivers
played, whether the water is altered during the fracking
process, and the steps for water removal and outgoing
transportation. Defendants, however, produced no evidence
concerning these matters.
In short, Defendants have simply not met their burden
to “plainly and unmistakably” show that the MCA exemption
applies. Friedrichs, 974 F.2d at 412.
III
For the foregoing reasons, we will affirm the order of
the District Court.
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