Zarra et al v. Sun-Sentinel Company
Filing
38
ORDER granting 21 Motion for Summary Judgment; denying as moot 24 Motion to Certify Class; denying 27 Cross-Motion for Summary Judgment; denying as moot 34 Motion to Strike; denying as moot 35 Motion for Leave to File; cancelling calendar call and trial. Signed by Judge James I. Cohn on 10/29/2012. (sry)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-60542-CIV-COHN/SELTZER
JEANNETTE ZARRA and MARK BEETZ,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
SUN SENTINEL COMPANY,
Defendant.
___________________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Defendant Sun Sentinel Company’s Motion
for Summary Judgment [DE 21], as well as four other related motions.1 The Court has
carefully reviewed the pending motions, the parties’ briefs regarding the motions, and
the parties’ factual statements and record submissions, and the Court is otherwise fully
advised in the premises.
I.
Background
A.
Material Facts2
1
The other pending motions are Plaintiffs’ Opposed Motion to Facilitate Notice
[DE 24], Plaintiffs’ Cross-Motion for Summary Judgment [DE 27], Defendant’s Motion to
Strike Plaintiffs’ Cross-Motion for Summary Judgment [DE 34], and Defendant’s Motion
for Leave to File a Surreply Brief in Opposition to Plaintiffs’ Motion to Facilitate Notice
[DE 35].
2
The witnesses deposed in this case have submitted post-deposition affidavits
or declarations addressing, in a summary fashion, certain key issues covered in their
depositions. See DE 26-2 (Aff. of Mark Beetz); DE 26-3 (Aff. of Jeannette Zarra); DE
22-1 (Decl. of Manly Baker). These written statements are generally consistent with the
witness’s depositions. However, to the extent these statements conflict with the
witnesses’s specific deposition testimony, the Court will disregard the written
statements. See Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657
Defendant Sun Sentinel Company (“Sun Sentinel”) publishes and distributes the
major daily newspaper in Broward and Palm Beach counties. See DE 22 at 2, ¶ 3. Sun
Sentinel employed Plaintiff Mark Beetz as a District Coordinator from March 5, 2012, to
August 2, 2012. See id. at 2, ¶ 4. Plaintiff Jeannette Zarra worked as a District
Coordinator for Sun Sentinel from 1996 to May 7, 2012. See id. at 2, ¶ 5.
Among other duties they performed as District Coordinators, Plaintiffs delivered
newspapers to consumers (known as “throwing a route”) whenever the circumstances
required them to do so—for example, when there was no carrier assigned to a delivery
route, when a carrier missed deliveries, or when a new carrier was in training. See DE
22 at 2, ¶ 7. Beetz testified that, on average, he delivered newspapers to consumers
three to four times per week. See DE 22 at 3, ¶ 9. Zarra stated that she delivered
newspapers to consumers an average of two times per week. See id. at 3, ¶ 10. Every
time Zarra threw a route, she recorded her mileage in a log. See id. at 3, ¶ 11. The
mileage logs produced by Zarra show that she delivered newspapers to subscribers
and other consumers on numerous dates throughout the relevant years. See id. at 3-6,
¶ 11 & n.1.
The District Coordinator Position Description and Job Requirements Form
specify route delivery as one of the responsibilities of a District Coordinator. See DE
22-4; DE 22-5. Further, these documents list the following job requirements involving
the delivery of newspapers:
1.
delivering non-contracted routes in the absence of a contracted
independent carrier;
(11th Cir. 1984) (“When a party has given clear answers to unambiguous questions
which negate the existence of any genuine issue of material fact, that party cannot
thereafter create such an issue with an affidavit that merely contradicts, without
explanation, previously given clear testimony.”).
2
2.
being responsible for delivery of replacement copies to subscribers;
3.
having dependable transportation, a valid Florida driver’s license,
and current automobile insurance; and
4.
being physically able to deliver newspapers within a geographic
area.
See id.
Manly Baker, Sun Sentinel’s Distribution Manager, testified that District
Coordinators are not hired “[d]irectly” as newspaper delivery persons and that it was his
“goal” to have independent delivery contractors covering all the routes. DE 26-1 at 4041. Nevertheless, Manly stated that newspaper delivery is “a large part of [District
Coordinators’] responsibility.” Id. at 40.
Like other District Coordinators, Plaintiffs were paid a salary and did not receive
overtime pay when they worked more than forty hours in a week. See DE 26 at 3, ¶ 5.
Sun Sentinel classified District Coordinators as exempt employees for purposes of the
Fair Labor Standards Act (“FLSA”). See DE 26-1 at 11-12.
B.
Procedural History
On March 27, 2012, Plaintiffs brought this action against Sun Sentinel. See DE
1. In their current Amended Complaint, Plaintiffs allege that Sun Sentinel improperly
classified them as exempt employees and failed to pay them overtime wages as
required by the FLSA. See DE 17; 29 U.S.C. § 207 (setting forth overtime
compensation requirements for non-exempt employees). Moreover, Plaintiffs seek to
represent a class of “all persons who were formerly or are currently employed by
Defendant as District Coordinators, and who were paid in a similar manner as Plaintiffs,
or who were so employed during the period of March 27, 2009 to the present.” DE 17
at 2, ¶ 8; see 29 U.S.C. § 216(b) (authorizing collective actions by employees).
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Sun Sentinel filed an Answer to the Amended Complaint, denying any liability to
Plaintiffs and their proposed class. See DE 19. Sun Sentinel also pleaded several
affirmative defenses, including that “Plaintiffs and any other similarly situated
employees are engaged in the delivery of newspapers to consumers pursuant to
29 U.S.C. Section 213(d) and are therefore exempt from the minimum wage and
overtime requirements of the Fair Labor Standards Act.” Id. at 11, ¶ 2.
On September 12, 2012, Sun Sentinel filed its present Motion for Summary
Judgment (“Motion”). See DE 21; DE 23 (Mem. of Law). In the Motion, Sun Sentinel
argues that Plaintiffs are not entitled to overtime wages because they fall within the
FLSA’s exemption for “employee[s] engaged in the delivery of newspapers to the
consumer.” 29 U.S.C. § 213(d). Plaintiffs oppose the Motion, claiming that this
exemption does not apply to them. See DE 27.3
II.
Discussion
A.
Summary Judgment Standard
The Court may 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.” Fed. R. Civ. P. 56(a). The moving party “always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying
3
As part of their Response to Sun Sentinel’s Motion, Plaintiffs have filed a
Cross-Motion for Summary Judgment. See DE 27. The Court agrees with Sun
Sentinel, however, that Plaintiffs’ Cross-Motion is untimely because it was filed two
weeks after the September 14, 2012, deadline for dispositive pretrial motions. See DE
5 at 2, ¶ 5. And Plaintiffs have given no explanation for the untimely filing. In any
event, for the reasons discussed herein, the record shows conclusively that Plaintiffs
are covered by the FLSA’s newspaper-delivery exemption. Accordingly, the Court
denies Plaintiffs’ Cross-Motion for Summary Judgment [DE 27] and denies as moot
Defendant’s Motion to Strike Plaintiffs’ Cross-Motion for Summary Judgment [DE 34].
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those portions of [the record] which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy
this burden, the movant must point out to the Court that “there is an absence of
evidence to support the nonmoving party’s case.” Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production
shifts, and the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). As Rule 56 explains, “[i]f a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact . . . the court may . . . grant summary judgment if the motion and
supporting materials—including the facts considered undisputed—show that the movant
is entitled to it.” Fed. R. Civ. P. 56(e)(3). Therefore, the non-moving party “may not rest
upon the mere allegations or denials in its pleadings” but instead must present “specific
facts showing that there is a genuine issue for trial.” Walker v. Darby, 911 F.2d 1573,
1576-77 (11th Cir. 1990).
Essentially, so long as the non-moving party has had an ample opportunity to
conduct discovery, it must come forward with affirmative evidence to support its claim.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). “A mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be enough
of a showing that the jury could reasonably find for that party.” Walker, 911 F.2d at
1577. If the evidence advanced by the non-moving party “is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249-50 (citations omitted).
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The Court’s function at the summary-judgment stage is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. In making this determination, the Court must discern
which issues are material: “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
Moreover, in deciding a summary-judgment motion, the Court must view the facts in the
light most favorable to the non-moving party and draw all reasonable inferences in that
party’s favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
B.
Analysis of Defendant’s Motion
Sun Sentinel moves for summary judgment on Plaintiffs’ overtime-wage claims,
asserting that Plaintiffs are covered by the FLSA’s newspaper-delivery exemption as a
matter of law. As relevant here, the overtime provisions of the FLSA do “not apply with
respect to any employee engaged in the delivery of newspapers to the consumer.”
29 U.S.C. § 213(d). A Department of Labor regulation indicates that this exemption
applies only to employees who directly deliver newspapers to consumers:
This provision applies to carriers engaged in making deliveries to the
homes of subscribers or other consumers of newspapers (including
shopping news). It also includes employees engaged in the street sale or
delivery of newspapers to the consumer. However, employees engaged
in hauling newspapers to drop stations, distributing centers, newsstands,
etc., do not come within the exemption because they do not deliver to the
consumer.
29 C.F.R. § 570.124.
FLSA exemptions are construed narrowly against the employer, which bears the
burden of showing that an exemption applies. See Walters v. Am. Coach Lines of
Miami, Inc., 575 F.3d 1221, 1226 (11th Cir. 2009) (per curiam). Still, the interpretation
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of an FLSA exemption is guided by normal rules of statutory construction. The Court’s
analysis “begin[s] with the plain language of the statute,” viewed in the context of the
statute as a whole. Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553
F.3d 1351, 1362 (11th Cir. 2008). Only if the statutory language is ambiguous may the
Court look beyond that language to other sources of interpretation. See id.
Here, the parties dispute whether Plaintiffs were “engaged in” the delivery of
newspapers to consumers. 29 U.S.C. § 213(d). Plaintiffs argue that delivering
newspapers was only a small part of a District Coordinator’s job, which included many
other responsibilities. Sun Sentinel maintains that Plaintiffs regularly delivered
newspapers to consumers—even if it was only one of their duties—and that this activity
qualifies Plaintiffs for the statutory exemption. The Court agrees with Sun Sentinel.
As used in § 213(d), the word “engage” means “[t]o employ or involve oneself; to
take part in; to embark on.” Black’s Law Dictionary 608 (9th ed. 2009); see American
Heritage Dictionary 591 (5th ed. 2011) (defining “engage” as “[t]o involve oneself or
become occupied; participate”). This definition indicates an employee is “engaged in” a
particular activity if he participates in that activity in any substantial way. See LouisCharles v. Sun-Sentinel Co., 595 F. Supp. 2d 1304, 1307 (S.D. Fla. 2008) (interpreting
newspaper-delivery exemption and finding, based on similar definitions, that “a minimal
amount of participation is required to constitute ‘engaging in’ an activity”). Under this
interpretation, Plaintiffs are subject to the § 213(d) exemption if they had any regular
involvement in delivering newspapers to consumers.
Louis-Charles—another FLSA case brought by a Sun Sentinel District
Coordinator—supports this view of the newspaper-delivery exemption. There, Judge
Ryskamp explained that the term “engaged in” appears in other parts of the FLSA and
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is construed broadly. See id. at 1307-08. For example, Judge Ryskamp observed that
for purposes of FLSA coverage, an employee is considered “engaged in commerce or
in the production of goods for commerce” if that activity is “regular and recurring” even
though “small in amount.” Id. at 1307 (quoting 29 C.F.R. § 776.3). Judge Ryskamp
further noted that in contrast to other exemptions requiring the exempt activity to be an
employee’s “primary duty,” see, e.g., 29 C.F.R. § 541.700, the newspaper-delivery
exemption requires only that an employee be “engaged in” that work. See LouisCharles, 595 F. Supp. 2d at 1308-09; see also 29 U.S.C. § 213(a)(6), (b)(10)
(requiring employees to be “principally engaged” or “primarily engaged” in certain
exempt activities). Based on this statutory context, as well as the ordinary meaning of
“engaged in,” Judge Ryskamp determined that “so long as the employee has consistent
time performing the exempt duty, he is exempt from the provisions of the FLSA.” LouisCharles, 595 F. Supp. 2d at 1309.
This Court agrees with the reasoning of Louis-Charles and similarly concludes
that an employee is “engaged in the delivery of newspapers to the consumer” if he
performs that task with some regularity, even if it represents only a small portion of his
overall work. Moreover, it is clear that Plaintiffs meet this standard here. Although their
newspaper deliveries varied over time, on average, Beetz delivered papers to
consumers three to four times per week, and Zarra made deliveries to consumers two
times per week. Zarra’s mileage logs, the written job requirements for District
Coordinators, and Baker’s testimony further confirm that consumer deliveries were a
regular part of Plaintiffs’ work for Sun Sentinel. See Louis-Charles, 595 F. Supp. 2d at
1309-10 (concluding, based on similar evidence, that plaintiff’s deliveries to consumers
were “regular and recurring” and therefore plaintiff was exempt as a matter of law).
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Because the record shows conclusively that Plaintiffs are covered by the newspaperdelivery exemption, they are not subject to the FLSA’s overtime-wage requirements.
See 29 U.S.C. § 213(d). Sun Sentinel is therefore entitled to summary judgment.4
III.
Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
Defendant Sun Sentinel Company’s Motion for Summary Judgment [DE 21] is
GRANTED;
2.
Plaintiffs’ Opposed Motion to Facilitate Notice [DE 24] is DENIED as moot;
3.
Plaintiffs’ Cross-Motion for Summary Judgment [DE 27] is DENIED;
4.
Defendant’s Motion to Strike Plaintiffs’ Cross-Motion for Summary Judgment
[DE 34] is DENIED as moot;
5.
Defendant’s Motion for Leave to File a Surreply Brief in Opposition to Plaintiffs’
Motion to Facilitate Notice [DE 35] is DENIED as moot;
6.
The calendar call scheduled for November 8, 2012, is CANCELLED, and the
case is removed from the Court’s November 12, 2012, trial calendar; and
7.
The Court will enter a separate Final Judgment in this action.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 29th day of October, 2012.
4
Given the entry of summary judgment against Plaintiffs, the Court need not
consider Plaintiffs’ request to certify a class of similarly situated individuals. Thus, the
Court denies as moot Plaintiffs’ Opposed Motion to Facilitate Notice [DE 24], as well as
Defendant’s Motion for Leave to File a Surreply Brief in Opposition to Plaintiffs’ Motion
to Facilitate Notice [DE 35].
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Copies to:
Counsel of record via CM/ECF
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