Ennis v. Two Men and a Truck International, Inc. et al
MEMORANDUM OPINON AND ORDER granting Motions 32 , 37 ,[38, 39 , Counts I and II of the Amended Complaint in each of the four cases are DISMISSED WITH PREJUDICE; see order for specifics. Signed by Honorable Timothy L. Brooks on February 24, 2017. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
IN RE TWO MEN AND A TRUCK LITIGATION
Consolidated Case No.
MEMORANDUM OPINON AND ORDER
Prior to the entry of the Court's Order (Doc. 36) consolidating case numbers 5:16CV-05255 , 5:16-CV-05256 , 5:16-CV-05257, and 5:16-CV-05258 , Defendant TMT
Arkansas , Inc. ("TMT") had filed Motions for Partial Summary Judgment in each case. Now
that the cases have been consolidated , all four Motions have been refiled in the
Consolidated Case , 5:16-CV-05255. See Docs . 32 , 37 , 38 , and 39 . The Motions are
identical, in that they all request partial summary judgment of Counts I and II of each
Plaintiff's Amended Complaint. Count I is a claim for overtime compensation under the
Fair Labor Standards Act ("FLSA"), and Count II is the same claim, but made under the
Arkansas Minimum Wage Act ("AMWA"). TMT's argument on summary judgment is that
Counts I and II should be dismissed as to all four Plaintiffs because the federal motorcarrier exemption , codified at 29 U.S.C. § 213(b)(1 ), applies to Plaintiffs' work for TMT and
precludes their FLSA and AMWA claims for overtime compensation .1
In the following Order, the Court will rule on the issue of whether the motor-carrier
exemption applies , and in so ruling , will dispose of all four Motions for Partial Summary
Judgment. The following documents were considered : (1) TMT's Briefs, Affidavits, and
According to Ark. Code Ann . § 11-4-211 (d), the AMWA's overtime provisions "shall not
apply to any employee exempt from the overtime requirements of the federal Fair Labor
Standards Act . . .. "
Statements of Facts filed in support of each of the four Motions (Docs. 33 , 34 , and 35 in
5: 16-CV-05255, 5: 16-CV-05256 , 5: 16-CV-05257, and
5: 16-CV-05258); Plaintiffs'
Consolidated Response in Opposition , Consolidated Statement of Facts , and Consolidated
Brief in Support (Docs. 43, 44 , 45 in 5: 16-CV-05255); and TMT's Consolidated Reply (Doc.
49 in 5: 16-CV-5255).
For the reasons explained herein , TMT's Motions for Partial Summary Judgment are
GRANTED , and Counts I and II are DISMISSED WITH PREJUDICE .
Plaintiffs Robert Ennis , Haskell Fuller, IV, Lonnie Harris, and Micah Lindsay are
former employees of TMT, an Arkansas-based moving company.
According to the
Amended Complaint that was filed in each of their cases , TMT failed to pay them overtime
compensation and made unlawful deductions from their paychecks, which reduced their
salaries below the minimum wage and violated both the FLSA and the AMWA. Plaintiffs
brought their claims against TMT in state court, and all four cases were removed to this
Court on September 16, 2016 . On December 1, 2016 , the Court issued an Order (Doc.
36) consolidating the four cases sua sponte , and finding that they involved the same
Defendants,2 the same counsel for both sides, and the same or similar background facts
and causes of action .
Plaintiffs do not dispute that TMT is a "motor carrier," as that term is defined in 49
U.S.C. § 13102(14), and Plaintiffs also agree that TMT is engaged in the business of
At that time, there were two Defendants in the case: TMT and its franchisor, Two Men
and a Truck International, Inc. ("TMTI "). On January 9, 2017 , Plaintiffs moved to dismiss
TMTI without prejudice, see Doc. 50 , and the Court granted the motion the following day
by text order, leaving TMT as the only Defendant in this action .
offering inter- and intrastate moving services to the general public, under the authority of
the United States Department of Transportation . See Plaintiffs' Consolidated Statement
of Facts , Doc. 44 , p. 1. Plaintiffs further agree that when they worked for TMT, they were
classified as "movers" or "drivers" or both. 3 (Doc. 44 , p. 1). Their main point of contention
on summary judgment is that their work as "movers" can only be considered exempt if it
had some effect on the safe operation of trucks in interstate commerce . Plaintiffs believe
their work had no such effect because TMT never provided them with training on how to
load trucks safely.
TMT, on the other hand , believes the motor-carrier exemption applies to bar all four
Plaintiffs' overtime claims, and Plaintiffs' work as drivers and movers should qualify for the
exemption . The text of the exemption , found at 29 U.S.C. § 213(b)(1 ), states as follows :
(b) Maximum Hour Requirements The provisions of section 207 of this title
[regarding overtime compensation under the FLSA] shall not apply with
(1) 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 .
Ennis was employed by TMT from June 23, 2014 to July 26 , 2016 as a driver, operating
box trucks that each had a gross vehicle weight of over 10,000 pounds. See 5: 16-CV05255, Doc. 35, p. 2. Fuller was employed by TMT as a mover from August 11 , 2014 to
October 22 , 2014 , and again from March 29 , 2016 to July 26 , 2016 . See 5:16-CV-05256,
Doc. 35 , p. 2. The job of "mover" involved safely moving , packing , and unpacking
customers' belongings , and assisting drivers with pre- and post-trip inspections and with
backing up or maneuvering trucks in tight situations. Id. Harris was employed by TMT as
a mover from April 4, 2016 to April 20 , 2016 , and also as a driver from April 21 , 2016 to
August 2, 2016. See 5:16-CV-05257 , Doc. 35 , p. 2. Finally, Lindsay was employed by
TMT as a mover from April 14, 2016 to September 22, 2016 . See 5:16-CV-05258, Doc.
35, p. 2. Plaintiffs "do not dispute" the above job descriptions, which were provided by
TMT. See Plaintiffs' Consolidated Statement of Facts, Doc. 44 , p. 2.
Id. Turning to 49 U.S.C. § 31502 , it provides that "[t]he 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." Reading these two statutes
together, it appears that the Secretary of Transportation retains the authority to determine
the maximum number of hours of service that certain employees of motor carriers may
perform . Accordingly, the work performed by these employees is not subject to the
overtime requirements of the FLSA. See Williams v. Cent. Transp. Int'/, Inc., 830 F.3d 773 ,
778 (8th Cir. 2016) ("[l]f an employee spends a substantial part of his time . .. participating
in or directing the actual loading of a motor vehicle common carrier's trailers operating in
interstate or foreign commerce , the Secretary of Transportation has the authority to
regulate that employee's hours of service and the [Motor Carrier Act] Exemption applies ,
regardless of the employee's precise role in the loading process.").
The regulations that define the motor-carrier exemption are found at 29 C.F .R.
§ 782.2. These regulations explain that the applicability of the exemption "depends both
on the class to which the employer belongs and on the class of work involved in the
employee's job. " 29 C.F.R. § 782 .2(a) . Exempt employees are classified as "driver[s],
driver's helper[s], loader[s], or mechanic[s]" whose work "directly affect[s] the safety of
operation of motor vehicles on the public highways in transportation in interstate or foreign
commerce within the meaning of the Motor Carrier Act. " 29 C.F.R. § 782.2(b)(2) . The
regulations caution that when "determining whether an employee falls within such an
exempt category, neither the name given to his position nor that given to the work that he
does is controlling ; what is controlling is the character of the activities involved in the
performance of his job." Id. (internal citations omitted) .
Plaintiffs have conceded that the exemption applies to the work of driving a moving
truck for TMT. See Plaintiffs' Consolidated Brief, Doc. 45 , p. 12 ("The Plaintiffs concede
that TMT is a Motor Carrier under 49 U.S.C. 13102 and concede that the portion of their
employment actually driving a truck may be exempt . ... "). The Court will therefore rule
in favor of TMT as to Plaintiff Ennis, whose pay records indicate that 80-90% of his hours
on the job were spent driving a moving truck. See Ennis's Time Sheets, Doc. 43-4 , pp . 27101 ; see also 29 C.F.R. § 782 .2(b)(3) (explaining that exempt work will not qualify for
overtime compensation unless the number of hours spent doing that work is "so trivial ,
casual , and insignificant as to be de minimis").
As for the remaining Plaintiffs, Harris worked as both a driver and a mover, and
Fuller and Lindsay worked only as movers. Plaintiffs agree that the driving portion of
Harris's time should be exempt, but they disagree that their moving duties should also be
exempt. Such work would be exempt only if it were classified as "loading" under the
A "loader," as defined for Motor Carrier Act jurisdiction, is an employee of a
carrier subject to section 204 of the Motor Carrier Act (other than a driver or
driver's helper as defined in §§ 782 .3 and 782.4) whose duties include,
among other things , the proper loading of his employer's motor vehicles so
that they may be safely operated on the highways of the country. A "loader"
may be called by another name, such as "dockman ," "stacker, " or "helper,"
and his duties will usually also include unloading and the transfer of freight
between the vehicles and the warehouse, but he engages, as a "loader, " in
work directly affecting "safety of operation" so long as he has responsibility
when such motor vehicles are being loaded , for exercising judgment and
discretion in planning and building a balanced load or in placing, distributing ,
or securing the pieces of freight in such a manner that the safe operation of
the vehicles on the highways in interstate or foreign commerce will not be
29 C.F.R. § 782 .S(a) (internal citations omitted) .
Plaintiffs focus on the second half of the definition of a "loader" in arguing that their
moving work at TMT was not a "safety affective activity" that would qualify for exemption .
They also refer to their time sheets as evidence that they were paid to perform several
different jobs in addition to loading/moving , apparently in an attempt to show that their
loading work was de minimis in comparison to the rest of the time they spent working for
In reply to Plaintiffs' arguments , TMT cites to the same time sheets and asks the
Court to carefully examine them in order to test the validity of Plaintiffs' contentions. TMT
insists that the time sheets plainly demonstrate that only a small amount of Plaintiffs' time
was spent doing non-exempt tasks, i.e., non-driving or non-loading duties. In addition ,
TMT presents other records to prove that Plaintiffs did , in fact, receive at least some formal
train ing on how to safely pack a truck. Below, the Court will consider the parties' dueling
arguments on summary judgment, beginning first with an examination of the appropriate
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a) , "[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." The Court must review the facts in
the light most favorable to the opposing party and give that party the benefit of any
inferences that logically can be drawn from those facts. Canada v. Union Elec. Co., 135
F.3d 1211 , 1212-13 (8th Cir. 1997). The moving party bears the burden of proving the
absence of a genuine dispute of material fact and that it is entitled to judgment as a matter
of law. See Fed . R. Civ. P. 56(c) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986) ; Nat'/. Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co. ,
165 F.3d 602 , 607 (8th Cir. 1999). Once the moving party has met its burden , the
non-moving party must "come forward with 'specific facts showing that there is a genuine
issue for trial. "' Matsushita , 475 U.S. at 587 (quoting Fed . R. Civ. P. 56(c)) .
In order for there to be a genuine issue of material fact, the non-moving party must
produce evidence "such that a reasonable jury could return a verdict for the nonmoving
party." Allison v. Flexway Trucking, Inc., 28 F.3d 64 , 66 (8th Cir. 1994) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242 , 248 (1986)) . "The nonmoving party must do more
than rely on allegations or den ials in the pleadings, and the court should grant summary
judgment if any essential element of the prima facie case is not supported by specific facts
sufficient to raise a genuine issue for trial. " Register v. Honeywell Fed. Mfg. & Techs. , LLC,
397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317 , 324
The sole issue on summary judgment is whether the federal motor-carrier exemption
applies to preclude Plaintiffs' claims for overtime compensation under the FLSA and
AMWA. Plaintiffs do not dispute that TMT qualifies as a motor carrier, due to the fact that
it engages in interstate commerce and utilizes trucks weighing in excess of 10,000
pounds. 4 As previously noted , Plaintiffs also do not dispute the fact that TMT drivers
Although this point was not argued by Plaintiffs in their briefing, the Court observes that
the relative number of interstate moves-as compared to intrastate moves-that each
Plaintiff personally participated in is immaterial, as "[t]he Motor Carrier Act exemption
applies to a driver who performs no interstate driving if the driver is 'subject to be[ing]
qualify for the exemption , which means that Ennis's overtime claims are appropriate for
summary judgment, as most of his working hours were spent driving a truck. The
remaining Plaintiffs dispute that they qualify under the exemption as "loaders" whose work
directly affects "the safety of operation of motor vehicles in interstate or foreign commerce
within the meaning of the Motor Carrier Act. " 29 C.F .R. § 782.5(b) . They believe that
material disputes of fact exist as to: (1) whether enough of their time was spent loading
trucks-as opposed to time spent doing clearly non-exempt tasks-so as to qualify them
as "loaders" under the exemption ; and (2) whether their work loading trucks should be
considered "safety affecting activities" that qualify for the exemption, given their argument
that they never received training from TMT on how to safely load a truck.
The Court rejects Plaintiffs' first argument that their weekly job duties involved a de
minimis amount of time spent either driving or loading freight. Plaintiffs' Consolidated Brief
in opposition to summary judgment claims that Plaintiffs' "time sheets clearly show that
they performed many other tasks aside from simply loading and driving trucks, for which
such jobs were separately accounted for on an hourly basis." (Doc. 45 , pp. 5-6) . The
Court takes from this statement that Plaintiffs agree their time sheets constitute the best
evidence of how they actually spent their time at work. In examining these time sheets, it
appears all hours are grouped into categories labeled "shop time ," 5 "mover hourly," "driver
assigned an interstate trip' and there is a reasonable expectation of such an assignment. "
Alexander v. Tutle and Tutle Trucking, Inc., 834 F.3d 866 , 870 (8th Cir. 2016) (quoting
Starrett v. Bruce, 391 F.2d 320 , 323-24 (10th Cir. 1968)). Here, it appears Plaintiffs do not
dispute that they were, at all times during their employment, either actively participating in
interstate moves or subject to being assigned to perform interstate moves.
Neither party has informed the Court what tasks are involved in "shop time."
hourly," "packer hourly," and "training hourly." See Doc. 43-4 . As previously noted, 8090% of Ennis's hours were logged in the "driver hourly" category. See id. at pp . 27-101.
Most of Harris's hours were also spent driving-approximately 70%-with less than 20%
billed as "mover hourly," and the remaining 10% billed as "shop time" or "packer hourly."
Id. at pp. 102-110. Fuller's time sheets show that approximately 80% of his hours were
billed as "mover hourly," only 15% of his hours were billed as "shop time," and the
remaining hours were billed as "packer hourly." Id. at pp . 18-26. Finally, between 80-90%
of Lindsay's time was billed as "mover hourly," about 10% was "shop time ," and the rest
of his hours were spent either training or packing.
Assuming for the sake of argument that the only possible exempt work at TMT
would be reflected in the "mover hourly" or "driver hourly" categories, the facts are
undisputed that all four Plaintiffs devoted 80% or more of their hours to these two
categories. Considering this, the only remaining issue for the Court to consider is whether
Harris, Fuller, and Lindsay's "mover hourly" work should qualify for the motor-carrier
These Plaintiffs contend that, although they were employed by a qualifying "motor
carrier" and loaded freight into box trucks that operated in interstate commerce, their
loading activities should not qualify for exemption because they routinely loaded trucks with
either no recognition of, or no regard for, the impact that their work had on the safe
operation of moving trucks on public roadways. In particular, they maintain that TMT never
provided them with instructions on how to balance , place, distribute, or secure the freight
so as to insure the safe operation of the trucks on the road . Fuller affirmed in an affidavit
that his supervisors instructed him "to box up the items and get them on the truck as
quickly as possible," but failed to provide him with further instructions. See Doc. 43-2 , p.
3. He also stated : "At no time during my employment was I trained in or called upon to
perform any safety related tasks for my employer." Id.
TMT disputes these claims and submits documentary evidence to prove that all
Plaintiffs were provided training on how to safely load a truck. The proof comes in the form
of a number of agenda sign-in sheets, which contain Plaintiffs' signatures and which
correspond to various safety training sessions. See Doc. 49-1 . TMT has also attached
"Move Observation" forms , see Doc. 49-2 , pp . 29-32 , which appear to be on-site
evaluations of the movers' job performances. Each "Move Observation" form indicates
whether the mover being evaluated observed TMT's safety protocols , including packing the
truck properly, lifting heavy loads using proper body mechanics , and maintaining walkways
free of hazards. See id. At least one "Move Observation" form was completed for Ennis ,
id. at p. 28 , for Fuller, id. at p. 29 , and for Lindsay, id. at p. 31.
All of this evidence collectively establishes that Plaintiffs were , in fact, provided with
at least some training on how to safely load trucks, and that TMT periodically evaluated
Plaintiffs in order to verify that they were adhering to certain safety standards when
performing these tasks . Plaintiffs' statements claiming that they were never provided with
any such training or evaluation are directly contradicted by the evidence, and will be
disregarded. As the Eighth Circuit has previously noted:
[A] properly supported motion for summary judgment is not defeated by
self-serving affidavits. Rather, the plaintiff must substantiate allegations with
sufficient probative evidence that would permit a finding in the plaintiff's
Bacon v. Hennepin Cnty. Med. Ctr., 550 F.3d 711, 716 (8th Cir. 2008) (internal citations
and quotation marks omitted) .
Though the Court believes the evidence is undisputed that Plaintiffs received formal
safety training and performed their loading duties with full knowledge of, and regard for,
the safe operation of the trucks on the roadway, the Court believes that if Plaintiffs had only
received informal , periodic, or even minimal safety training, it would have been enough to
qualify their work for exemption , due to the character of the work itself. A case that
illustrates this point is Williams v. Central Transport International, Inc., 830 F.3d 773 (8th
Cri. 2016). According to the facts of the case, Williams was classified as a "switcher"
whose daily work involved loading trailers destined for interstate line-haul operations and
for deliveries in and around the St. Louis area . The job featured such physical tasks as
"balancing trailer loads, installing decks to safely stack freight 'high and tight, ' bracing
top-heavy freight, loading hazardous materials , and so forth ."
Id. at 777 . Williams'
argument on appeal was that the trial court erred in finding that he qualified for the motorcarrier exemption-not because his everyday work activities involved something other than
loading freight on trucks bound for interstate travel-but because he had little prior
experience doing such work, was only provided with initial training and nothing more , and
was monitored by supervisors periodically, but was never "constantly supervis[ed]. " Id.
Indeed , "Williams acknowledge[d] that loaders are exempt from the FLSA but
argue[d] the district court erred in classifying him as a loader" because of circumstances
personal to him . Id. (emphasis in original). He, like the Plaintiffs in the case at bar, did not
believe his work directly affected the safety of motor carrier operations because his lack
of training and direct supervision made it impossible for him to exert '"judgment and
discretion in planning and building a balanced load or in placing, distributing, or securing
the pieces of freight in such a manner that the safe operation of the vehicles on the
highways ... will not be jeopardized ,' as DOL regulations require ." Id. (quoting 29 C.F.R.
§ 782.5(a)) .
The Court of Appeals affirmed the trial court and rejected Williams' arguments,
finding that "the governing standard" is not the worker's level of judgment, discretion , or
relative supervision . Id. at 778 . Rather, the focus of the analysis should be on the work
itself-"the physical act of loading freight in a safe manner," which has "an undeniable,
direct effect on safety." Id. (quotation marks and citations omitted) . The Court explained
that "'placing freight in convenient places in the terminal [or] checking bills of lading"' would
not qualify for the exemption , but by contrast, Williams' work of '"distributing and making
secure heavy or light parcels of freight on board a truck"' did qualify for the exemption . Id.
at 777 (quoting Levinson v. Spector Motor Serv., 330 U.S. 649 , 674 (1947)) .
With the Williams opinion in mind , the Court rejects Plaintiffs' assertion that the work
they did was more akin to "tossing items into the back of a truck, " (Doc. 45 , p. 12), rather
than "distributing and making secure heavy or light parcels of freight," Williams , 830 F.3d
at 777 (quoting Levinson , 330 U.S. at 674) . The undisputed evidence reveals that
Plaintiffs' duties as "loaders" had a direct effect on highway safety and therefore came
within the regulatory authority of Secretary of Transportation .
The evidence also
establishes that Plaintiffs were provided with formal safety training , exercised a significant
degree of discretion on how they loaded their trucks-in that they were not constantly
supervised, but routinely loaded trucks as they saw fit-and they were periodically
evaluated to ensure adherence to proper loading and safety techniques. Their work bears
no resemblance to the sorts of loading jobs that would be considered non-exempt, such
as placing freight in convenient places, or checking bills of lading . Summary judgment will
enter in TMT's favor as to Counts I and II of the Amended Complaint, and Plaintiffs'
overtime claims will be dismissed with prejudice due to the application of the motor-carrier
Accordingly , Defendant TMT Arkansas , lnc.'s Motions for Partial Summary
Judgment (Docs. 32 , 37 , 38 , and 39) are GRANTED , and Counts I and II of the Amended
Complaint in each of the four cases are DISMISSED WITH PREJUDICE .
IT IS SO ORDERED on this ~ ay of February, 2017 .
ES DISTRICT JUDGE
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