Raymond Songer, et al v. Dillon Resources, Inc., et al

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PUBLISHED OPINION FILED. [09-10803 Affirmed ] Judge: FPB , Judge: CES , Judge: LHS Mandate pull date is 09/24/2010 [09-10803]

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Raymond Songer, et al v. Dillon Resources, Inc., et al Doc. 0 Case: 09-10803 Document: 00511224995 Page: 1 Date Filed: 09/03/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED September 3, 2010 N o . 09-10803 Lyle W. Cayce Clerk R A Y M O N D KEITH SONGER; CROX ALVARADO; VICTOR ARRINGTON; G E O R G E E. EATON, JR.; DANIEL GARCIA, JR.; DEBRA SUE GARRISON; J O S E RAMON GUILAMO; LARRY HAZELTON; ANTRONE HENDERSON; S A N D R A K. HENDERSON; DANIEL CLINTON HENLEY; JOHNNY R O B E R T JARVIS; EDDIE JONES; ERIC C. MATTHEWS; BRIAN ALAN M C G L O T H I N ; KAREN SUE PARENT; MONICA LENISE PERVIS; BOBBY J O E SCHRODER; COURTLAND DALE WALLACE; PERRY SCOTT W I G G I N S , Individually and on behalf of other Employees similarly situated; F E L IX VASQUEZ, Per Consent pursuant to 29 USC 216(b), Plaintiffs - Appellants v. D I L L O N RESOURCES, INC.; SUNSET LOGISTICS, INC.; SUNSET ENNIS, I N C ., doing business as Sunset Waxahaxie, Inc., Defendants - Appellees A p p e a l from the United States District Court for the Southern District of Texas B e fo r e BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges. C A R L E. STEWART, Circuit Judge: Dockets.Justia.com Case: 09-10803 Document: 00511224995 Page: 2 Date Filed: 09/03/2010 No. 09-10803 P la in t iffs -A p p e lla n t s , truck drivers who operate commercial trucks, sued D e fe n d a n t s -A p p e llee s Dillon Resources, Inc., Sunset Logistics, and Sunset Ennis in Texas state court for unpaid overtime under the Fair Labor Standards Act (F L S A ), 29 U.S.C. 207(a). Both sides moved for summary judgment as to w h e t h e r the FLSA motor carrier exemption, 29 U.S.C. 213(b), applies to D e fe n d a n t s . The district court granted Defendants' motion, denied Plaintiffs' m o t io n , and dismissed Plaintiffs' claims with prejudice. We AFFIRM. I. BACKGROUND A . Factual Background P la in t iffs -A p p e lla n t s are truck drivers who operate commercial trucks to h a u l materials to and from mines and quarries. Defendant-Appellee Dillon R e s o u r c e s , Inc. is a licensed staff leasing company who hires truck drivers and a s s ig n s them to work for trucking company clients. Defendant-Appellee Sunset E n n is is an interstate trucking company based in Waxahachie, Texas. Defendant-Appellee Sunset Logistics, based in Fort Worth, Texas, is a logistical s u p p o r t company to other third-party trucking companies, including Sunset E n n is , and engages in some trucking operations. 1. The Relationship Between the Defendants D illo n maintains staff leasing agreements with Sunset Logistics and S u n s e t Ennis (collectively, "the Sunset companies"). Under the agreements' t e r m s , Dillon and the trucking companies share responsibility for the truck d r iv e r s and consider themselves joint employers of the drivers. The Sunset c o m p a n ie s are responsible for the day-to-day supervision of and liability for the d r iv e r s and for recruiting, qualifying, training, disciplining, and terminating d r iv e r s assigned to them. Dillon reserves the right of direction and control over d r iv e r s assigned to the Sunset companies. It is responsible primarily for the p a y m e n t of wages and payroll taxes and retains the right to hire, fire, discipline, 2 Case: 09-10803 Document: 00511224995 Page: 3 Date Filed: 09/03/2010 No. 09-10803 a n d reassign drivers. Dillon is compensated by clients such as the Sunset c o m p a n ie s for recruiting and providing qualified drivers. 2 . Defendants' Trucking Operations S u n s e t Logistics and Sunset Ennis are authorized by the Department of T r a n s p o r t a t io n (DOT) Federal Motor Carrier Safety Administration as common c a r r ie r s of property by motor vehicle in interstate or foreign commerce. Sunset L o g is t ic s , on its own behalf and on behalf of Sunset Ennis, solicited and received in t e r s t a t e work from its customers. Dillon hired Plaintiffs as truck drivers and assigned them to drive c o m m e r c ia l trucks for Sunset Logistics and Sunset Ennis.1 The drivers t r a n s p o r t e d construction materials within the state of Texas. Some drivers also t r a n s p o r t e d aggregate (i.e., sand, gravel, and crushed rock materials used in c o n s t r u c t io n ) across state lines into other states, such as Oklahoma, and from o t h e r states into Texas. Truck drivers for Sunset Logistics and Sunset Ennis a ls o transported construction materials for the Sunset companies' customer, T X I, Inc. TXI owns and operates aggregate plants in Oklahoma and "ready-mix" c o n c r e t e plants in Texas. TXI orders aggregate from its Oklahoma plants and s h ip s them via rail from Oklahoma to the Dallas and Celina rail terminals. TXI h ir e s third-party trucking companies, like the Sunset companies, to transport t h e aggregate from the rail terminals to its Texas ready-mix plants. 3. Plaintiffs' Employment as Drivers A s drivers, Plaintiffs must meet DOT and Federal Motor Carrier Safety R e g u la t io n s (FMCSR) requirements prior to assuming their driving duties. Plaintiffs hired before January 19, 2007 were assigned to drive for Sunset Logistics. In January 2007, Sunset Logistics converted to logistical support as its primary business; Dillon then reassigned drivers from Sunset Logistics to Sunset Ennis. Accordingly, during the relevant time period, some plaintiffs worked for Sunset Logistics and Sunset Ennis, while some only worked for Sunset Ennis. At the time the lawsuit was filed, all the Plaintiffs were assigned to work as truck drivers for Sunset Ennis. 1 3 Case: 09-10803 Document: 00511224995 Page: 4 Date Filed: 09/03/2010 No. 09-10803 P la in t iffs must have a valid Class A commercial drivers license and meet the d r iv e r qualification requirements of FMCSR Parts 382 and 391.2 Upon hire, P la in t iffs are issued the FMCSR Pocketbook, a compilation of relevant r e g u la to r y information. The drivers also participate in New Hire Safety O r ie n t a t io n to review the FMCSR and the difference between interstate and in t r a s t a t e hours of service regulations. After being hired, Plaintiffs must record t h e ir hours of service and complete driver vehicle inspection reports pursuant t o the FMCSR. D u r i n g the relevant time period, Plaintiffs received their assignments fr o m a dispatch service before the start of their shifts. The dispatch notified the d r iv e r s regarding the number of loads they had been assigned and the loads' p ic k -u p and delivery locations. No driver had a dedicated route. The assignments were based on various factors, including the driver's available h o u r s (i.e., whether the driver has sufficient available hours to complete the load a s s ig n m e n t and still remain within regulatory requirements regarding m a x im u m hours driven) and customer requirements. Based on these factors, th e loads for each truck driver were distributed indiscriminately--i.e., any driver c o u ld be called upon at any time to make an interstate or intrastate trip. The d r iv e r s ' employment could be terminated if they refused an assignment. B. Procedural Background I n April 2008, Plaintiffs3 sued Dillon, Sunset Logistics, and Sunset Ennis i n Texas state court for unpaid overtime under the FLSA, 29 U.S.C. 207(a). The requirements included: (1) meeting the general qualification for commercial truck drivers, 49 C.F.R. 391.11.15; (2) submitting to required background and character investigations, id. 391.21.27; (3) submitting to a road test or its equivalent, id. 391.31.33; and (4) submitting to physical qualifications and examinations including drug-testing requirements, id. 391.41.49. The lawsuit originated with 26 plaintiffs. At the time of the district court's order, 21 plaintiffs remained part of the action. 3 2 4 Case: 09-10803 Document: 00511224995 Page: 5 Date Filed: 09/03/2010 No. 09-10803 D e fe n d a n t s timely removed to the district court for the Northern District of T exas. In June 2008, Plaintiffs filed a motion for notice to putative class members p u r s u a n t to 29 U.S.C. 216(b), the FLSA collective action provision,4 and a m o t io n to toll the FLSA statute of limitations5 pending the outcome of the m o t io n . Plaintiffs argued that Defendants failed to pay overtime and that c o m p a n y policy encouraged working unpaid overtime by imposing financial p e n a lt ie s -- e .g ., failure to pay bonuses or a flat rate when there was no w o r k -- w h e n drivers failed to complete all assigned deliveries on time. In July 2 0 0 8 , the district court denied both motions. The district court agreed with D e fe n d a n t s that Plaintiffs' affidavits only offered conclusory allegations that did n o t state personal knowledge of company-wide discrimination and did not d e m o n s t r a t e whether other putative class members wanted to opt in to the la w s u it . However, the district court declined to consider Defendants' remaining a rg u m en ts. I n March 2009, Plaintiffs filed their first amended collective action p e t it io n . In April 2009, Defendants filed an answer in which they asserted, a m o n g other defenses, that Plaintiffs' claims were barred because the work they p e r fo r m e d fell within the Motor Carrier Act (MCA) exemption to the FLSA. Both parties moved for summary judgment on the issue of whether the M C A exemption applied to Defendants. In June 2009, the district court c o n c lu d e d that the MCA exemption applied to Sunset Logistics and Sunset E n n is , but that Dillon had not provided sufficient evidence to prove its The FLSA collective action provision states, in relevant part, "An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. 216(b). The FLSA provides for a two-year statute of limitations for a cause of action alleging unpaid overtime, and a three-year statute of limitations for a cause of action alleging willful failure to pay overtime. 29 U.S.C. 255(a). 5 4 5 Case: 09-10803 Document: 00511224995 Page: 6 Date Filed: 09/03/2010 No. 09-10803 e n tit le m e n t to the exemption. The district court also concluded that the drivers' d u t ie s fell within the Secretary of Transportation's ("Secretary") power, and t h e r e fo r e the exemption applied, but only to the four-month period in which each d r iv e r was engaged or could have been called to engage in interstate commerce. Accordingly, the district court held the motions in abeyance and ordered a d d it io n a l briefing regarding: (1) the MCA's exemption's applicability to each p la in t iff, including competent summary judgment evidence; and (2) whether D illo n qualifies as a motor carrier.6 A fte r the supplemental briefing was completed, the court granted D e fe n d a n t s ' motion for summary judgment and denied Plaintiffs' motion on July 1 5 , 2009. The district court held that: (1) the MCA exemption applied to Dillon b e c a u s e it is a joint employer with the Sunset companies, both of whom are s u b je c t to the exemption; and (2) Defendants' summary judgment evidence was s u ffic ie n t to prove that the exemption applied to all Plaintiffs. The district court a ls o dismissed Plaintiffs' claims with prejudice. Plaintiffs timely appealed. I I . DISCUSSION A . Standard of Review T h is court reviews a grant of summary judgment de novo, applying the s a m e legal standards as the district court. Allen v. McWane, Inc., 593 F.3d 449, 4 5 2 (5th Cir. 2010). Summary judgment is appropriate when the record d is c lo s e s that there is no genuine issue of material fact and that the movant is e n tit le d to judgment as a matter of law. FED. R. CIV. P. 56; Celotex Corp. v. C a tr e tt, 477 U.S. 317, 322 (1986). The moving party has the burden of d e m o n s t r a t in g that there are no genuine issues of material fact in dispute. Allen, 593 F.3d at 452. We view the evidence in the light most favorable to the The district court also ordered additional briefing on the 2008 amendments to the definition of "motor carrier" in the MCA, 49 U.S.C. 13102(14), but ultimately held that the definition is not material to this case. 6 6 Case: 09-10803 Document: 00511224995 Page: 7 Date Filed: 09/03/2010 No. 09-10803 n o n m o v a n t , drawing all reasonable inferences in the nonmovant's favor. See id. (c it a t io n omitted). B. The FLSA and the Motor Carrier Act Exemption T h e FLSA requires employers to compensate employees engaged in c o m m e r c e for all hours worked over forty each week at the rate of one and o n e -h a lf times their regular rate. 29 U.S.C. 207(a)(1). The statute also s p e c ific a lly exempts certain employers and/or employees from its overtime r e q u ir e m e n t s . Id. 213. Exemptions under the FLSA are construed narrowly a g a in s t the employer, and the employer bears the burden to establish a claimed e x e m p t io n . Barefoot v. Mid-America Dairymen, Inc., No. 93-1684, 1994 WL 5 7 6 8 6 , at *2 (5th Cir. Feb. 18, 1994) (per curiam) (citing Levinson v. Spector M o to r Serv., 330 U.S. 649, 678 (1947)). In this case, Defendants assert the MCA exemption, which states that the F L S A 's overtime requirement "shall not apply . . . to . . . any employee with r e s p e c t to whom the Secretary of Transportation has power to establish q u a lific a t io n s and maximum hours of service pursuant to the provisions of s e c t io n 31502 of Title 49 [of the MCA.]"7 29 U.S.C. 213(b)(1). According to the D e p a r t m e n t of Labor (DOL) regulations enforcing the FLSA, the application of t h e MCA exemption to an employee "depends both on the class to which his e m p lo y e r belongs and on the class of work involved in the employee's job." 29 C .F .R . 782.2(a). Accordingly: The power of the Secretary of Transportation to establish maximum h o u r s and qualifications of service of employees, on which e x e m p t io n depends, extends to those classes of employees and those o n ly who: (1) Are employed by carriers whose transportation of Under section 31502, the Secretary "may prescribe requirements for . . . qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier[.]" 49 U.S.C. 31502(b)(1). 7 7 Case: 09-10803 Document: 00511224995 Page: 8 Date Filed: 09/03/2010 No. 09-10803 p a s s e n g e r s or property by motor vehicle is subject to his jurisdiction u n d e r section 204 of the Motor Carrier Act [codified at 49 U.S.C. 3 1 5 0 2 ] . . . , and (2) engage in activities of a character directly a ffe c t in g the safety of operation of motor vehicles in the t r a n s p o r t a t io n on the public highways of passengers or property in in t e r s t a t e or foreign commerce within the meaning of the Motor C a r r ie r Act. Id. Further, we have stated that "[t]he Secretary . . . need only possess the p o w e r to regulate the employees at issue; it need not actually exercise that p o w e r for the [MCA] exemption to apply." Barefoot, 1994 WL 57686, at *2 (citing L e v in s o n , 330 U.S. at 678). C. Application of the Motor Carrier Exemption 1. E m p lo y e d By Carriers Subject to the Secretary's Power T h e first inquiry is whether Plaintiffs "are employed by carriers whose t r a n s p o r t a t io n of property by motor vehicle is subject to" the Secretary's ju r is d ic t io n . 29 C.F.R. 782.2(a)(1). To be subject to the Secretary of T r a n s p o r t a t io n 's jurisdiction pursuant to the MCA, a motor carrier 8 must be e n g a g e d in interstate commerce: A lt h o u g h the MCA defines interstate commerce as commerce " b e t w e e n a place in a state and a place in another state," it has not b e e n applied literally by the courts. In fact, we have defined it as the a c t u a l transport of goods across state lines or the intrastate t r a n s p o r t of goods in the flow of interstate commerce. Siller v. L & F Distributors, Ltd., No. 96-40549, 1997 WL 114907, at *1 (5th Cir. 1 9 9 7 ) (per curiam) (citing Merchant's Fast Motor Lines, Inc. v. ICC, 528 F.2d 1 0 4 2 , 1044 (5th Cir. 1976)). Motor carriers are defined as persons "providing motor vehicle transportation for compensation." 49 U.S.C. 13102(14). 8 8 Case: 09-10803 Document: 00511224995 Page: 9 Date Filed: 09/03/2010 No. 09-10803 P la in t iffs do not dispute that Sunset Ennis and Sunset Logistics, two t r u c k in g companies, are motor carriers subject to the Secretary's power. Instead, they argue that Dillon, a staff leasing agency, is not a motor carrier w it h in the meaning of the MCA. Defendants assert that because the Sunset com p a n ies are motor carriers and the Sunset companies are joint employers with D illo n , Dillon is also a motor carrier within the meaning of the MCA. While Fifth Circuit precedent is limited on this issue, other courts have h e ld that a staff leasing company who provides employees for a motor carrier a n d operates as a joint employer with the carrier meets the requirements of 29 C .F .R . 782.2(a)(1). See, e.g., Moore v. Universal Coordinators, Inc., 423 F.2d 9 6 , 99100 (3d Cir. 1970) (holding that truck drivers were employees of both n o n c a r r ie r truck driver leasing company and private motor carrier and therefore M C A exemption extended to leasing company). The Moore court analyzed the M C A and the FLSA, and determined that Congress intended to regulate e m p lo y e e s of carriers in the interest of safety. Id. at 99. Therefore, the S e c r e t a r y 's power had to extend to leased drivers and to the leasing company t h a t employed them. Id. at 99100. In a more recent case, the district court cited Congressional safety c o n c e r n s as the rationale for extending the exemption: The [MCA] exemption, as explained in Moore, safeguards the S e c r e t a r y ['s ] authority to regulate the qualifications and maximum h o u r s of employees whose work affects the "safety of operation" of a motor carrier. . . . Refusing to extend the [MCA] exemption to the sta ffin g agency defendants would therefore facilitate what Congress s o u g h t to prohibit--circumvention of the Secretary's regulatory a u th o r ity . Tidd v. Adecco USA, Inc., No. 07-11214-GAO, 2010 WL 996769, at *2 (D. Mass. M a r . 16, 2010) (citing Moore, 423 F.2d at 9899). 9 Case: 09-10803 Document: 00511224995 Page: 10 Date Filed: 09/03/2010 No. 09-10803 A p p ly in g Moore and Tidd, the evidence supports a finding that Dillon, as jo in t employer with Sunset Logistics and Sunset Ennis, is a carrier subject to the S e c r e t a r y 's jurisdiction. Dillon is a staff leasing company who provides drivers t o Sunset Logistics and Sunset Ennis to fulfill interstate work orders from c lie n t s for compensation. Our review of the record reflects the following e v id e n c e : Dillon hires and trains the drivers and is responsible for their payroll, t h e Sunset companies are responsible for control of the drivers' day-to-day o p e r a t io n s , and Dillon is reimbursed for wages and benefits paid to the drivers a n d receives a fee when the drivers are assigned. These facts are similar to T id d , in which the staffing agency defendants were held as joint employers to F e d E x , a motor carrier, and, therefore, subject to the Secretary's jurisdiction. See Tidd, 2010 WL 996769, at *23. Accordingly, we hold that the first r e q u ir e m e n t for jurisdiction under the MCA--i.e., that Plaintiffs work for c a r r ie r s engaged in interstate commerce--is met. See Barefoot, 1994 WL 57686, a t *2. 2. E n g a g e d in Activities That Directly Affect Operational Safety of M o to r Vehicles In Transport of Property In Interstate Commerce T h e second part of the MCA exemption inquiry is whether the Plaintiffs " e n g a g e in activities that directly affect the operational safety of motor vehicles in the transport of property in interstate commerce" as defined by the MCA. 29 C .F .R . 782.2(a)(2). It is undisputed that Plaintiffs, as truck drivers subject to D O T requirements, are employed in positions that "affect the operational safety o f motor vehicles." See Barefoot v. Mid-America Dairymen, Inc., 826 F. Supp. 1 0 4 6 , 1050 (N.D. Tex. 1993), aff'd, 1994 WL 57686 (5th Cir. Feb. 18, 1994) (per c u r ia m ) ("Truck drivers are engaged in activities of a character affecting safety t h a t subject them to the power of the Secretary . . . if the drivers are required to . . . complet[e] [DOT] logs recording the time spent driving, pass[] DOT written 10 Case: 09-10803 Document: 00511224995 Page: 11 Date Filed: 09/03/2010 No. 09-10803 a n d driving tests, complet[e] various DOT forms, and pass [] a DOT physical d r u g test.").9 W e therefore determine whether Plaintiffs' activities directly affected m o t o r vehicle safety "in the transport of property in interstate commerce." 29 C .F .R . 782.2(a)(2). We have stated "`it is the character of the activities, rather t h a n the proportion of the employee's time or activities'" that determines the S e c r e t a r y 's jurisdiction to regulate employees under the MCA (and therefore d e t e r m in e s whether the MCA exemption of the FLSA applies). Barefoot, 1994 W L 57686, at *3 (citing Morris v. McComb, 332 U.S. 422, 431 (1947)). Plaintiffs assert that the Secretary's jurisdiction only applies to t r a n s p o r t a t io n across state lines, and therefore that Defendants must d e m o n s t r a t e that each driver personally transported property by motor vehicle a c r o s s state lines. But the Supreme Court held in Morris that the Interstate C o m m e r c e Commission (ICC), the predecessor to the DOT, had jurisdiction to r e g u la te all of defendant carrier's drivers, even though two of the 42 drivers had n o t engaged in interstate trips during the relevant period, and that the drivers w e r e not entitled to overtime under the FLSA. Morris, 332 U.S. at 43436. In t h a t case, the carrier's few interstate trips (4% of all trips during the relevant p e r io d ) were distributed indiscriminately to all drivers. Id. at 433. The S u p r e m e Court noted that, in practical terms, the safety concerns facing a c a r r ie r who sent every driver on an interstate trip would be the same if the c a r r ie r sent only some or most of its drivers on interstate trips. See id. at 434. T h e r e fo r e , the ICC had the power to regulate all of defendant's drivers, and the e x is te n c e -- r a t h e r than the exercise--of that power was the test as to whether the e m p lo y e e s were entitled to overtime pay under the FLSA. Id. at 434. See also Plaintiffs argue that being subject to DOT regulations is not per se sufficient to subject drivers to the Secretary's jurisdiction. However, they do not contest that as drivers, they engage in activities affecting safety operations of motor vehicles. 9 11 Case: 09-10803 Document: 00511224995 Page: 12 Date Filed: 09/03/2010 No. 09-10803 B a r e fo o t, 1994 WL 57686, at *2 ("The Secretary . . . need only possess the power t o regulate the employees at issue; it need not actually exercise that power for t h e [MCA] exemption to apply.") (citing Levinson, 330 U.S. at 678). Additionally, the FLSA regulations promulgated by the DOL and the D O T 's notice of interpretation have clarified that if drivers can be reasonably e x p e c t e d to perform interstate transport, the MCA exemption applies. The F L S A regulations state that generally, if the employee's job duties are "such that h e is (or . . . is likely to be) called upon in the ordinary course of his work to p e r f o r m , either regularly or from time to time, safety-affecting activities" of a d r iv e r , he comes within the MCA exemption "in all workweeks when he is e m p lo y e d at such job." 29 C.F.R. 782.2(b)(3). This general rule assumes that the activities involved in the c o n t i n u in g duties of the job in all such workweeks will include a c t iv it ie s which have been determined to affect directly the safety o f operation of motor vehicles on the public highways in t r a n s p o r ta t io n in interstate commerce. Where this is the case, the r u le applies regardless of the proportion of the employee's time or of h is activities which is actually devoted to such safety-affecting work in the particular workweek, and the exemption will be applicable e v e n in a workweek when the employee happens to perform no work d ir e c t ly affecting "safety of operation." I d . The DOT has also stated that "a driver will remain under the [Secretary's] ju r is d ic t io n . . . for as long as the driver is in a position to be called upon to drive in interstate commerce as part of the driver's regular duties." Application of the F e d e r a l Motor Carrier Safety Regulations, 46 Fed. Reg. 37,902, 37,903 (Dep't of T r a n s p . July 23, 1981) (notice of interpretation) ("DOT Notice").10 We note that "interpretations contained in formats such as opinion letters are `entitled to respect', but only to the extent that those interpretations have the `power to persuade.'" Christensen v. Harris County, 529 U.S. 576, 587 (2000) (distinguishing judicial deference to agency regulations under Chevron from deference to agency notices of interpretation and opinion letters) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 10 12 Case: 09-10803 Document: 00511224995 Page: 13 Date Filed: 09/03/2010 No. 09-10803 T h e summary judgment evidence supports the district court's finding that t h e drivers could have been called upon to drive in interstate commerce during t h e ir employment. In their deposition testimony, several drivers testified that t h e y understood when they were hired by the Sunset companies that they might h a v e to make out-of-state trips during their employment. Upon employment, the d r iv e r s were assigned routes via dispatcher, and the type and number of routes c h a n g e d on a daily basis. In addition, the pick-up location, specific route, load, a n d destination were assigned indiscriminately based on various factors, and no d r iv e r s had a dedicated route. In other words, any driver could have been a s s ig n e d to an interstate trip and, if they were, would be subject to DOT safety r e g u la tio n s affecting the operation of trucks. Therefore, the Secretary could r e t a in jurisdiction over their activities, and they are exempt from receiving o v e r t im e pay. P la in t iffs also contend that Defendants cannot meet their burden with r e s p e c t to plaintiffs Henderson, Henley, Matthews, and Pervis because the r e c o r d reflects no evidence that any of these plaintiffs ever traveled interstate o r within Texas during their employment. Plaintiffs cite section 782.3(b) of the D O L regulations, applicable specifically to drivers, which states that a driver's w o r k affects "`safety of operation' . . . whenever he drives a motor vehicle in in t e r s t a t e or foreign commerce," but the MCA exemption does not apply "if his jo b never involves transportation in interstate commerce within the meaning of t h e [MCA]." 29 C.F.R. 782.3(b). Plaintiffs' argument, however, ignores the general MCA exemption r e q u ir e m e n t s of section 782.2(b)(3), which states that the exemption will be a p p lic a b le "even in a workweek when the employee happens to perform no work d ir e c t l y affecting `safety of operation,'" so long as the employee's continuing d u tie s involve activities that affect motor vehicle safety in interstate transport. 13 Case: 09-10803 Document: 00511224995 Page: 14 Date Filed: 09/03/2010 No. 09-10803 2 9 C.F.R. 782.2(b)(3). Here, all the drivers, including Henderson, Henley, M a t t h e w s , and Pervis, were hired to drive trucks for the Sunset companies and t h e ir clients. Their continuing duties were to accept assignments for t r a n s p o r t in g materials to, from, and within Texas and to expect termination if t h e y refused an assignment. The drivers are always required to perform these d u t ie s . But there were occasionally weeks (for all the drivers) where they were n o t assigned to transport property in interstate commerce. Plaintiffs cannot and d o not claim that the drivers were required to perform other duties which would n o t affect the safety of motor vehicles in transport--for example, the drivers did n o t load or unload trucks. At all times, Plaintiffs were employed to perform the c o n t in u in g duties of a driver--i.e., "individuals whose driving duties are c o n c e r n e d with transportation some of which is in intrastate commerce and some o f which is in interstate . . . commerce within the meaning of the [MCA]." 29 C .F .R . 782.3(a). Moreover, the DOT Notice states that if the Secretary claims jurisdiction o v e r a driver who has not driven in interstate commerce, evidence must be p r e s e n t e d that the carrier has engaged in interstate commerce and that the d r iv e r could reasonably have been expected to make one of the carrier's in t e r s t a t e runs. DOT Notice, 49 Fed. Reg. at 37903. Defendants' summary ju d g m e n t evidence demonstrates that the Sunset companies were engaged in the t r a n s p o r t of property in interstate commerce during the relevant time period: in 2006, drivers for Sunset Logistics transported approximately 222,000 total lo a d s of aggregate, of which approximately 5,980 were transported across state lin e s ; in 2007, drivers for Sunset Ennis transported approximately 60,000 total lo a d s of aggregate, of which approximately 2,000 loads were transported across s t a t e lines; and in 2008, drivers for Sunset Ennis hauled approximately 44,000 t o t a l loads of aggregate, of which approximately 1,000 were transported across s t a te lines. And as stated, the evidence further demonstrates that all the 14 Case: 09-10803 Document: 00511224995 Page: 15 Date Filed: 09/03/2010 No. 09-10803 d r iv e r s -- in c lu d in g the four Plaintiffs who did not drive any interstate r o u t e s -- c o u ld reasonably have been expected to drive in interstate commerce c o n s is t e n t with their job duties. Accordingly, we hold that the MCA exemption b a r s Plaintiffs' claims.11 I I I . CONCLUSION F o r all the foregoing reasons, we AFFIRM the judgment of the district c o u r t.1 2 A F F IR M E D . Because we determine that Plaintiffs engaged in "[h]ighway transportation by motor vehicle from one State to another," we do not address whether Plaintiffs also met the MCA exemption when they transported materials from the Dallas rail terminals to points within Texas. See 29 C.F.R. 782.7(b)(1) (defining interstate commerce as: (i) "[h]ighway transportation by motor vehicle from one State to another," or (ii) "[t]ransportation within a single [s]tate . . . [that] forms a part of a practical continuity of movement across [s]tate lines from the point of origin to the point of destination"). Because we affirm the district court's grant of summary judgment and dismissal of all claims with prejudice, we do not address the district court's denial of Plaintiffs' motion for conditional certification and notice to putative class members under the FLSA collective action provision, 29 U.S.C. 216(b). 12 11 15

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