Pritchett et al v. Werner Enterprises, Inc.

Filing 104

Order: The plaintiff's Motion for Summary Judgment (Doc. 83 ) as to the MCA exemption is granted and the defendant's motion (Doc. 76 ) denied. The MCA exemption does not apply in this case. Signed by Chief Judge William H. Steele on 12/31/2013. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RAWLEIGH PRITCHETT, et al.,
Plaintiffs,
v.
WERNER ENTERPRISES, INC.,
Defendant.

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) CIVIL ACTION 12-0182-WS-C
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ORDER

This matter is before the Court on the parties’ competing motions for
summary judgment. (Docs. 76, 83). The parties have filed briefs and evidentiary
materials in support of their respective positions, (Docs. 77-82, 84-88, 94-95, 97,
99), and the motions are ripe for resolution. This order addresses only the
threshold issue of whether the plaintiffs are exempt employees; other issues will
be addressed in subsequent orders. After careful consideration, the Court
concludes that the plaintiffs’ motion is due to be granted and the defendant’s
motion denied.
BACKGROUND
As set forth in the Court’s order denying the defendant’s previous motion
for summary judgment on the exemption issue, (Doc. 54), the defendant was under
contract to provide certain trucking services to a non-party (“Boise”) that operates
a paper mill in Jackson, Alabama. The twelve plaintiffs are or were employed by
the defendant as truck drivers fulfilling this contract. The one-count complaint
alleges the plaintiffs were not paid overtime compensation in compliance with the
Fair Labor Standards Act (“FLSA”).

DISCUSSION
Summary judgment should be granted only if “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 party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must support
its motion with credible evidence ... that would entitle it to a directed verdict if not
controverted at trial. [citation omitted] In other words, the moving party must
show that, on all the essential elements of its case on which it bears the burden of
proof, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
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party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.1 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced. The Court of course also relies on its order
denying the defendant’s previous motion for summary judgment and on the
evidence cited therein.
The Motor Carrier Act Exemption.
The FLSA generally requires payment of time-and-a-half for hours in
excess of 40 in a workweek. 29 U.S.C. § 207(a)(1). But “[t]he provisions of
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Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
so.”).

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section 207 of this title shall not apply with respect 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 ….” Id. § 213(b)(1). This provision is known as “the Motor
Carrier Act [“MCA”] exemption.” Abel v. Southern Shuttle Services, Inc., 631
F.3d 1210, 1211 (11th Cir. 2011). The defendant invokes this exemption, while the
plaintiffs assert it does not apply under the circumstances presented.
“We construe FLSA exemptions narrowly against the employer,” and “[t]he
employer has the burden to show that an exemption applies.” Abel, 631 F.3d at
1212. Indeed, the employer must establish the exemption “by clear and
affirmative evidence.” Gregory v. First Title of America, Inc., 555 F.3d 1300,
1302 (11th Cir. 2009) (internal quotes omitted). The Court proceeds with these
principles in mind.
“There are two requirements for an employee to be subject to the motor
carrier exemption.” Walters v. American Coach Lines, Inc., 575 F.3d 1221, 1227
(11th Cir. 2009). “First, his employer’s business must be subject to the Secretary
of Transportation’s jurisdiction under the MCA.” Id. “Second, the employee’s
business-related activities must directly affect 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.” Id.
(internal quotes omitted); accord 29 C.F.R. § 782.2(a). The plaintiffs concede
that the first element is satisfied. (Doc. 48 at 5).
The following facts concerning the physical layout of Boise’s Jackson
operation are uncontroverted. It includes three physically separated facilities,
consisting of a base mill, a sheeter facility and a warehouse. The base mill site
includes two paper machines (J-1 and J-3) and a recycle facility. The sheeter
facility site includes the sheeter facility along with a trailer yard and loading
docks, where trailers are loaded with product for delivery to customers.
Communication among the three facilities is by public road, specifically, Industrial
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Parkway. The sheeter facility site is about 2½ miles away from the base mill, with
the warehouse another ¼ mile from the sheeter facility. (Doc. 77 at 3; Chancey
Deposition at 26, 29-34, 40-44; Davis Deposition at 36-37).
The following facts concerning Boise’s production process are
uncontroverted. Boise creates paper from pulp on its J-1 and J-3 machines, the
paper leaving the machines in the form of “jumbo rolls.” The jumbo rolls are so
heavy they must be transported to the sheeter facility in 40-foot containers
(mounted on removable chassis) specially modified with an additional steel floor
and so large that only eight of them can fit on a load. The sheeter facility holds
four machines, each of which takes six jumbo rolls at a time and feeds them
through the machine, where a rolling knife cuts the paper to the correct size.
There are varying sizes into which the machines cut the paper to make copy paper,
printing paper, and other types of communication paper. The cut paper is stacked
in 500-sheet reams, wrapped, and placed in cartons. The cartons are then stacked
on pallets and wrapped. During this process, if Boise determines there is a section
of paper that has wrinkles or some defect, “that roll is dumped and not made into
paper.” Boise considers the steps that occur at the sheeter facility to be “part of
the production process for copy paper,” and it does not consider the jumbo rolls to
constitute finished paper. (Doc. 77 at 3; Chancey Deposition at 31-32, 36-38, 50,
52; Davis Deposition at 131-32).
The defendant considers two forms of movement to constitute
transportation of property in interstate commerce for purposes of the MCA
exemption: (1) the movement of jumbo rolls from the base mill to the sheeter
facility; and (2) the movement, around the sheeter facility grounds and by means
of a yard truck, of trailers loaded with outbound paper. (Doc. 77 at 21-24; Doc. 94
at 4-7).2

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In support of its earlier motion for summary judgment, the defendant identified
other movements that it claimed to constitute transportation in interstate commerce. The
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A. Jumbo Rolls.
It is uncontroverted that no plaintiff has ever transported Boise paper
products outside the state of Alabama. As the parties agree, however, “purely
intrastate transportation can constitute part of interstate commerce if it is part of a
continuous stream of interstate travel.” Walters, 575 F.3d at 1229 (internal quotes
omitted). “For this to be the case, there must be a practical continuity of
movement between the intrastate segment and the overall interstate flow.” Id.
(internal quotes omitted).
The defendant notes that, once they leave the base mill, the jumbo rolls
undergo no chemical processing and have no raw materials added. The defendant
identifies Boise’s product as “paper” and insists that the jumbo rolls constitute
paper just as much as the finished reams. (Doc. 77 at 21-22). The defendant
dismisses the activity at the sheeter facility as the mere “packaging” of a preexisting product, and it relies on a policy statement from the Interstate Commerce
Commission for the proposition that “repackaging or reconfiguring (secondary
packaging) may be performed”3 without “interrupting the practical continuity of
movement in interstate commerce.” (Id. at 20-21).
The defendant raised the same argument on its previous motion for
summary judgment. As the Court noted in its order denying that motion, “[t]he
issue addressed by th[is] document[t] is whether and under what circumstances the
interstate transportation of property, once interstate movement has begun, is cut
off by delivery to a warehouse, distribution center or similar facility.” (Doc. 54 at
10-11 (emphasis in original)). Specifically, the policy statement addresses
whether property that has already crossed state lines continues to move in
Court rejected these contentions, (Doc. 54 at 11-15), and the defendant does not re-assert
them in the present round of motions.
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Motor Carrier Interstate Transportation – From Out-of-State Through
Warehouses to Points in the Same State, 57 Fed. Reg. 19812 (May 8, 1992).
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interstate commerce once it comes to rest in a warehouse or similar facility before
moving on to another in-state destination. The question here, however, is not
whether interstate transport has ended but whether, before the jumbo rolls reach
Boise’s sheeter facility, it has even begun.4
The plaintiffs counter with Arkadelphia Milling Co. v. St. Louis
Southwestern Railway Co., 249 U.S. 134 (1919). The Supreme Court there held
that the movement of lumber from the woods to a mill, where it was made into
staves, headings and hoops, was not movement in interstate commerce because “it
was not intended that [the lumber] be transported out of the state, or elsewhere
beyond the mill, until it had been subjected to a manufacturing process that
materially changed its character, utility, and value.” Id. at 150-51. The Eighth
Circuit, in a case also cited by the plaintiffs, applied Arkadelphia Milling to
conclude that the transportation of soybeans to a plant that processed them into
soybean meal and soybean oil was not movement in interstate commerce because
the processing resulted in “the creation of an article of commerce, as distinct from
the packing, bailing and the like of an existing one.” Roberts v. Levine, 921 F.2d
804, 807, 816 (8th Cir. 1990) (internal quotes omitted).
The defendant does not deny that Arkadelphia Milling is controlling if it
applies. Instead, it attempts to distance this case from that one on the grounds that
“the paper put through the sheeter facility is still paper [and] is not transformed
into a new article with a new name.” (Doc. 94 at 6). But of course a massive
“jumbo roll,” weighing perhaps a ton or more, is not the same thing as (and does
not carry the same name as) a 500-sheet ream of “copy paper,” any more than
rough lumber is the same thing as a stave, even though both may be called
4

Even if the policy statement addressed the present situation, it states only that
“repackaging,” also described as “secondary packaging,” does not cut off interstate
travel. The packaging into reams that occurs at the sheeter facility is not a repackaging
but the initial packaging. The same paragraph of the policy statement on which the
defendant relies also notes that “processing or substantial product modification of
substance” may cut off an existing interstate journey. As discussed in text, that is
precisely what occurs at the sheeter facility.
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“wood.” As the testimony cited above reflects, Boise does not intend to ship
jumbo rolls out of state any more than the shipper in Arkadelphia Milling intended
to send rough lumber out of state. The defendant makes no argument to the
contrary.
That the transformation to copy paper materially changes the “character,
utility and value” of a jumbo roll is evident. A jumbo roll is not a usable end
product but an intermediate product created in the midst of a process designed to
produce individual sheets of copy paper. Boise’s principal customer is Office
Max,5 a retailer of copy paper and other office products, and the value and utility
to it – or to any consumer – of a jumbo roll is dwarfed by the value and utility of
the reams of copy paper produced from such a roll.6 The defendant itself admits
as much when it insists that “an actual ream of paper, left packaged, has no
function or utility for the customer. In other words, the utility of the product is
derived from actual pieces of paper, not from the reams of paper.” (Doc. 77 at 22
(emphasis added)). Since no “actual pieces of paper” exist until after the jumbo
rolls reach the sheeter facility and are cut into individual sheets, the defendant
effectively concedes that the plaintiff satisfies the Arkadelphia Milling test.
The defendant relies heavily on two cases involving recycled materials. In
Craft v. Ray’s, LLC, 2009 WL 3163148 (S.D. Ind. 2009), the plaintiffs were
drivers for a curbside recycling business, who brought bins of recyclables and
trash to a central location for sorting and for shredding, compacting or baling in
preparation for delivery to interstate purchasers of recyclables. Id. at *2. The
Craft Court ruled that “[t]he recyclables at issue in the instant case were inspected,
consolidated, and baled while temporarily stored …. The court believes that these
activities fall within the categories of repackaging and reconfiguring, and
therefore, do not interrupt the practical continuity of movement in interstate
5

(Chancey Deposition at 38, 106).

6

As the plaintiffs note, a jumbo roll is useless to someone attempting to use a
copier, printer or fax machine.
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commerce.” Id. at *6. Bilyou v. Dutchess Beer Distributors, Inc., 300 F.3d 217
(2nd Cir. 2002), involved much the same situation, but the question addressed was
not whether sorting, compacting and baling are activities that precede or cut off
interstate commerce; instead, the question was whether it mattered that these
activities were performed by an entity other than the plaintiff’s employer. Id. at
224-25. Craft and Bilyou do not support the defendant’s position, because the
recyclable materials (glass, aluminum, cardboard and so forth) continued to be
those same exact things after being sorted and packaged for shipment. For reasons
expressed above, the same cannot be said of the jumbo rolls at issue here.
The defendant also cites Anheuser-Busch Brewing Association v. United
States, 207 U.S. 556 (1908), for the proposition that “[m]anufacture implies a
change, but every change is not manufacture …. [S]omething more is necessary
…. There must be transformation; a new and different article must emerge,
having a distinctive name, character, or use.” Id. at 562 (internal quotes omitted).
(Doc. 97 at 3). The defendant says Anheuser-Busch is relevant because Roberts
found it so. (Doc. 94 at 5). In fact, the Roberts Court said that Anheuser-Busch
was distinguishable because it was defining “manufacture” as used in a statute,
indeed, a statute having nothing to do with the evaluation of interstate commerce.
921 F.2d at 815.7 But even if Anheuser-Busch applied, it would not alter the result
here. As discussed above, at the sheeter facility a jumbo roll is transformed into
individual sheets of copy paper – an article that did not previously exist, that has a
different name, a different character and (because only the individual sheets will
fit in a copier, printer or fax machine) a different use.

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The question in Anheuser-Busch was whether corks imported from Spain were
thereafter “manufactured” in the United States (by virtue of having undergone certain
cleaning and drying processes through which the brewer put them) so as to entitle the
brewer to the benefit of a statute permitting an exporter of a domestically manufactured
article to receive a drawback roughly equal to the duty paid on imported materials used in
the domestic manufacture. 207 U.S. at 559.
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Finally, the defendant notes that “[a] critical factor in determining the
shipment’s essential character is the shipper’s ‘fixed and persisting intent’ at the
time of the shipment.” Mena v. McArthur Dairy, LLC, 352 Fed. Appx. 303, 306
(11th Cir. 2009) (quoting 29 C.F.R. § 782.7(b)(2)). (Doc. 77 at 18-19). This intent
is to be assessed “from all of the facts and circumstances surrounding the
transportation.” Mena, 352 Fed. Appx. at 306 n.2 (internal quotes omitted). But
just as the shipper in Arkadelphia Milling had no intent to ship rough lumber
across state lines, Boise plainly had no intent to ship jumbo rolls to other states – a
conclusion underscored by the testimony of Boise’s corporate representative.
In summary, the movement of jumbo rolls from the base mill to the sheeter
facility does not constitute the transportation of property in interstate commerce
for purposes of the MCA exemption.
B. Outbound Paper.
The sheeter facility includes a sheeter yard and sheeter loading dock.
Trailers that haul finished product are stored on the yard and are loaded at the
loading dock. At least some of the plaintiffs drive a “yard truck” on the grounds
of the sheeter facility in order to move trailers around the grounds. Some of the
trailers that these plaintiffs move are loaded with finished product, which the
defendant calls “outbound paper.” The loaded trailers are destined to travel across
state lines. At least some of the plaintiffs also use the yard truck to carry raw
materials and waste product between Boise’s three facilities and to refuel at a gas
station. (Doc. 77 at 5-6).
The defendant concedes that no plaintiff uses the yard truck to move any
loaded (or unloaded) trailer over any public road. However, the defendant says
this is irrelevant because at least some of the plaintiffs have driven (and any
plaintiff could be required to drive) the yard truck on Industrial Parkway for the
other purposes noted above. (Doc. 77 at 23-24).

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As noted, the MCA exemption extends only to employees “with respect to
whom the Secretary of Transportation has power to establish qualifications and
maximum hours of service.” 39 U.S.C. § 213(b)(1). That power “extends to those
classes of employees and those only who … engage in activities of a character
directly affecting the safety of operation of motor vehicles in the transportation on
the public highways of … property in interstate … commerce ….” 29 C.F.R. §
782.2(a). Only “the work of drivers, driver’s helpers, loaders, and mechanics”
meets this definition, and “no other classes of employees … perform duties
directly affecting such safety of operation.’” Id. § 782.2(b)(1); accord id. §§
782.2(b)(2), 782.2(d). A “yard hostler,” who drives a hostler tractor “which he
connect[s] to freight trailers in order to transport the trailers from a staging area to
loading docks at the facility,” does not perform the work of a driver, driver’s
helper, loader or mechanic and thus is not within the MCA exemption. Billingslea
v. Southern Freight, Inc., 699 F.Supp. 2d 1369, 1371, 1376-79 (N.D. Ga. 2010).
On its previous motion for summary judgment, the defendant initially
argued that the use of a yard truck to move trailers around the sheeter facility
grounds satisfied the exemption but, in light of Billingslea, retreated in its reply
brief. (Doc. 54 at 7 n.12). The defendant continues to acknowledge that
Billingslea controls when an employee drives a yard truck only on private
property, but it argues that Wilson v. Notheis, Inc., 1999 U.S. Dist. Lexis 20493
(N.D. Ga. 1999), requires a different result when the employee drives a yard truck
on a public road. At least under the circumstances here presented, the Court
cannot agree.
The only activity that can trigger the exemption is activity satisfying all six
of the following circumstances: (1) affecting the safety of operation; (2) of motor
vehicles; (3) in the transportation; (4) on the public highways; (5) of property; (6)
in interstate commerce. Billingslea establishes that the activity of the plaintiffs in
driving a yard truck within the sheeter facility does not satisfy all six of these
elements, especially the fourth.
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Driving a yard truck between Boise’s facilities or to a gas station implicates
several of these elements, including the fourth, but it does not implicate the sixth.
The raw materials and waste products that are transported on such trips plainly are
not finished products beginning an interstate journey, and the defendant makes no
argument to the contrary. Nor has the defendant argued or shown that refueling a
yard truck (at least one that is not towing a loaded trailer) introduces an element of
transportation in interstate commerce.
The defendant thus identifies two wholly separate types of activity
undertaken with the yard truck, neither of which satisfies the test for the MCA
exemption. What the defendant suggests is that the Court compensate for this
deficiency by cobbling the two activities together so that, in combination, all six
elements are implicated. For this remarkable proposition, the defendant relies
exclusively on Wilson.
It is doubtful that Wilson supports the defendant’s position. While Wilson
involved yard tractors operated only on private property except for three-block
forays for refueling, 1999 U.S. Dist. Lexis 20493 at *2, the Court did not rely on
this latter fact in finding the MCA exemption applicable. Indeed, the Wilson
Court did not address the “public highways” element of the exemption at all.
Instead, the Court concluded, without analysis or explanation, that “a substantial
part of Plaintiffs’ activities consisted of moving trailers containing goods in the
channels of interstate commerce to and from the Marshalls distribution center [all
on private property], and … a substantial part of Plaintiffs’ activities, as drivers of
the hostler-tractors, affected the safety of the transportation of those goods.” Id. at
*8. It appears from this statement that the Wilson Court understood that it could
rely on the interstate movement of the loaded trailers to satisfy the “public roads”
requirement. The Wilson Court did so without engaging in the painstaking legal
and factual analysis of the Billingslea Court, which reached the opposite
conclusion, one with which the defendant has not quarreled.

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Even if Wilson could be read as the defendant suggests, the Court would
not follow it. Nothing in Wilson or in the defendant’s presentation remotely
explains or justifies the implausible proposition that, if an employee engages in
two activities, neither of which triggers the MCA exemption, the employer can
successfully invoke the exemption simply because, between them, the activities
implicate all requirements for the exemption. Without authority or analysis
demonstrating the logical and legal defensibility of such a principle, the Court will
not embrace it.
CONCLUSION
For the reasons set forth above, the plaintiff’s motion for summary
judgment as to the MCA exemption is granted and the defendant’s motion
denied. The MCA exemption does not apply in this case. This ruling governs all
further proceedings in this action, including trial.
DONE and ORDERED this 31st day of December, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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