Mendoza v. Quirch Foods Co. et al

Filing 51

ORDER Granting 38 Defendants' Motion for Summary Judgment. Signed by Ch. Magistrate Judge Andrea M. Simonton on 9/30/2017. (par)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-24005-CIV-SIMONTON
TIRSO R. MENDOZA,
Plaintiff,
v.
QUIRCH FOODS CO., and
IGNACIO J. QUIRCH,
Defendants.
/
ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter came before the Court upon the Defendants’ Case-Dispositive Motion
for Summary Judgment, ECF No. [38]. The Plaintiff has filed a Response in Opposition
and the Defendants have filed a Reply, ECF Nos. [41] [45]. Also pending before the Court
is the Defendants’ Motion to Strike or Disregard Plaintiff’s Affidavit, ECF No. [46]. That
Motion has been fully briefed, ECF Nos. [47] [48]. Pursuant to the Parties’ consent, the
Honorable Kathleen M. Williams, United States District Judge, has referred this matter to
the undersigned Magistrate Judge to take all necessary and proper action as required by
law, through and including trial by jury and entry of final judgment, ECF No. [30]. For the
following reasons, the Defendants’ Motion to Strike or Disregard Plaintiff’s Affidavit, ECF
No. [46] is denied, and the Defendants’ Case-Dispositive Motion for Summary Judgment,
ECF No. [38] is granted.
I. BACKGROUND
This matter was initiated when the Plaintiff, Tirso R. Mendoza, (“Mendoza”) filed a
one-count Complaint against Defendants Quirch Foods Co., and Ignacio J. Quirch
(“Quirch”) alleging overtime wage violations of the Fair Labor Standard Act, 29 U.S.C. §§
201-206, ECF No. [1]. The Complaint alleges that the Plaintiff worked for the Defendants

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as a warehouse worker from on or about April 16, 2008 through on or about September
29, 2015, ECF No. [1] at 2. The Plaintiff alleges that during that time, he worked an
average of 78 hours per week for the Defendants loading and unloading trucks, but was
not paid any wages at all for any hours worked over 40 hours a week, ECF No. [1] at 3.
The Plaintiff seeks to recover double damages and reasonable attorney fees from the
Defendants, along with court costs, interest, and any other relief that the Court finds
reasonable under the circumstances, ECF No. [1] at 4. The Plaintiff requests a trial by
jury.
In their Answer and Affirmative Defenses, the Defendants admit that the Plaintiff
was employed by Quirch Foods Co. as a truck loader from approximately April 2008
through September 28, 2015, ECF No. [14] at 3. In their Affirmative Defenses, the
Defendants contend, inter alia, that the Plaintiff is not entitled to overtime pay because
he is exempt from federal overtime compensation pursuant to the Motor Carrier Act
exemption, ECF No. [14] at 6.
II. THE POSTIONS OF THE PARTIES
The Defendants have filed the instant Motion for Summary Judgment contending
that Quirch is entitled to summary judgment as a matter of law because Plaintiff Mendoza
was exempt from payment of overtime wages pursuant to the Motor Carrier Exemption
(“MCE”) of the FLSA, ECF No. [38].

The Defendants primarily rely on the deposition

testimony of the Plaintiff in support of their Motion and contend that that testimony
establishes that as a truck loader for Quirch, the Plaintiff was engaged in using his
discretion for the wrapping and loading of food products to ensure that the trucks were
loaded in a balanced manner. The Defendants assert that therefore when Plaintiff worked
as a truck loader for Quirch that his activities in that position directly affected the safety

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of motor vehicles in interstate commerce, and therefore contend that the Plaintiff was
properly classified as an exempt employee under the FLSA.
The Defendants also note that the Department of Labor (“DOL”) previously
audited Quirch Foods, including a review of whether the MCE applies to Truck Loaders’
Duties. The Defendants contend that the DOL concluded that those loaders’ positions
met the requirements of the MCE, and the Defendants assert that those duties have not
changed since that audit.
In opposition to the Defendants’ Motion for Summary Judgment, the Plaintiff
argues that the Defendants have failed to meet their burden of establishing that the
Plaintiff is an exempt employee under the MCE because the Defendants have failed to
establish: 1) that the Plaintiff was in charge of ensuring that the goods were loaded and
transported safely for purposes of highway safety; 2) that the Plaintiff had discretion
when performing his loading duties; 3) that the Plaintiff’s job contained any type of
safety-related decision-making; and, 4) that the Plaintiff made any discretionary
decisions regarding loading and placement that would be associated with
maneuverability on the public highways, ECF No. [41] at 3-7. Thus, the Plaintiff, in
essence, contends that he did not exercise the judgment and discretion in the execution
of his job duties and thus cannot be considered a loader for purposes of the MCE
exemption. The Plaintiff also argues that the Defendants should not be permitted to rely
on a DOL investigation that failed to identify the truck loaders employed, for purposes of
determining whether those truck loaders were similarly-situated to Plaintiff Mendoza,
ECF No. [41] at 7-8.
The Plaintiff primarily points to his statements in the Affidavit in opposition to the
Motion to support this contention. Specifically, the Plaintiff asserts that his Affidavit in
combination with his deposition testimony establish that the Plaintiff was supervised
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during the loading and unloading of the truck, and that highway safety issues, as
opposed to safety issues related to preservation of the food products being shipped,
were overseen by the supervisors and scanners and were not part of the Plaintiff’s
duties, ECF No. [41] at 3-4, 5-6.
III. LEGAL FRAMEWORK
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, “[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.” Rule 56(a). A party raises an
issue of genuine material fact when the evidence is such that a reasonable jury could
return a verdict in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93
F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913,
919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving party's
position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate
of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252, (1986)).
A party seeking summary judgment bears the initial burden of demonstrating to
the court, by reference to the record, that there are no genuine issues of material fact to
be determined at trial. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
“When a moving party has discharged its burden, the non-moving party must then go
beyond the pleadings, and by its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a
genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir.
1995) (internal citations and quotation marks omitted). Substantive law determines the
materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the
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suit under the governing law will properly preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a
court “must view all evidence and make all reasonable inferences in favor of the party
opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)
(citation omitted). “Where the nonmoving party has failed to make a sufficient showing
‘to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial,’ there exist no genuine issues of material fact.”
Mize, 93 F.3d at 742 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).
B. The Fair Labor Standards Act and the Motor Carrier Exemption (“MCE”)
The Fair Labor Standards Act (FLSA) provides that employers must pay nonexempt employees at “one and one-half times the regular rate” for time worked in excess
of forty hours per week. 29 U.S.C. § 207(a)(1). However, the FLSA exempts “any
employee with respect to whom the Secretary of Transportation has power to establish
qualifications and maximum hours of service” under the Motor Carrier Act. 29 U.S.C. §
213(b)(1). The Eleventh Circuit has explained that “[t]he Secretary has the power to
establish qualifications and maximum hours of service for employees who (1) are
employed by carriers whose transportation of passengers or property by motor vehicle is
subject to the Secretary's jurisdiction under the Motor Carrier Act; and (2) engage in
activities of a character directly affecting the safety of operation of motor vehicles in the
transportation on the public highways of passengers or property in interstate or foreign
commerce within the meaning of the Motor Carrier Act.” Baez v. Wells Fargo Armored
Service Corp., 938 F.2d 180, 181–182 (11th Cir. 1991) (citing 29 C.F.R. § 782.2(a)).
Exemptions to the FLSA are narrowly construed against the employer. Alvarez Perez v.
Sanford–Orlando Kennel Club, Inc., 515 F.3d 1150, 1156 (11th Cir. 2008).

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The Department of Labor has issued regulations which provide a description and
guidance as to those employees who are exempt under the MCE. Those regulations
provide in relevant part,
A “loader,” . . . is an employee of a carrier subject to section
204 of the Motor Carrier Act. . . 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
jeopardized.
29 C.F.R. § 782.5. In addition, 29 C.F.R. § 782.2, entitled “Requirements for exemption in
general” provides, in relevant part,
(2) The exemption is applicable, under decisions of the U.S.
Supreme Court, to those employees and those only whose
work involves engagement in activities consisting wholly or
in part of a class of work which is defined: (i) As that of a
driver, driver's helper, loader, or mechanic, and (ii) as directly
affecting 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.
...

In 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
...
(3) As a general rule, if the bona fide duties of the job
performed by the employee are in fact such that he is (or, in
the case of a member of a group of drivers, driver's helpers,
loaders, or mechanics employed by a common carrier and
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engaged in safety-affecting occupations, that he is likely to
be called upon in the ordinary course of his work to perform,
either regularly or from time to time, safety-affecting activities
of the character described in paragraph (b)(2) of this section,
he comes within the exemption in all workweeks when he is
employed at such job.
...
On the other hand, where the continuing duties of the
employee's job have no substantial direct effect on such
safety of operation or where such safety-affecting activities
are so trivial, casual, and insignificant as to be de minimis,
the exemption will not apply to him in any workweek so long
as there is no change in his duties.
...
29 C.F.R. § 782.2(b) 2 & 3.
IV. ANALYSIS
A. Plaintiff’s Affidavit Will Not Be Stricken
As a preliminary matter, the Defendants have moved to strike the Plaintiff’s
Affidavit contending that the Affidavit is a self-serving sham affidavit that directly
contradicts the testimony given by the Plaintiff at his deposition, ECF No. [46].

In

support of this contention, the Defendant cites Van T. Junkins & Associates, Inc. v. U.S.
Industries, Inc., 736 F. 2d 656, 657 (11th Cir. 1984) for the proposition that 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.
In response, the Plaintiff contends that his Affidavit does not contradict the
testimony given at his deposition, and instead argues that in their Motion to Strike, the
Defendants failed to fully quote the Plaintiff’s deposition as to those issues in
contention, ECF No. [47]. By way of example, the Plaintiff points to that portion of the
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Plaintiff’s deposition testimony that related to the nature of any safety duties that were
encompassed in the Plaintiff’s work duties, ECF No. [47] at 2. The Plaintiff contends that
throughout his deposition testimony, the Plaintiff consistently testified that his job duties
ensured the safety of the product and not the safety of the truck. The Plaintiff further
contends that the issues raised by the Defendant related to the Plaintiff’s testimony
involve issues of credibility that are matters for the jury.
In this circuit, a court may “disregard an affidavit submitted solely for the purpose
of opposing a motion for summary judgment when that affidavit is directly contradicted
by deposition testimony.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7
(11th Cir. 2003). “‘When a party has given clear answers to unambiguous questions
which negate the existence of any genuine issue of material fact [for summary
judgment], that party cannot thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear testimony.’” Id. (quoting Van T.
Junkins and Assoc., Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984)
(emphasis omitted)).
The undersigned has carefully reviewed the deposition testimony of the Plaintiff
as well as the Affidavit submitted in opposition to the Defendant’s Motion for Summary
Judgment and concludes that the Affidavit should not be stricken. While the undersigned
is somewhat troubled by the form of the Affidavit, as discussed below, and the fact that it
merely denies the truth of certain testimony offered by the Defendants without further
explanation, the Affidavit does not directly contradict the Plaintiff’s testimony. Rather,
the Affidavit reasserts the Plaintiff’s contention, that was also made at his deposition,
that his primary focus in his job was the safety of the food product he loaded and not the
safety of the truck. Thus, although arguably the Affidavit does have the hallmarks of a

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sham affidavit, it is not in complete contradiction to the Plaintiff’s deposition statement.
Accordingly, the Affidavit will not be stricken.
B. The Defendant is Entitled to Summary Judgment Pursuant to the MCE
In their Motion for Summary Judgment, the Defendants argued that Quirch Foods
qualifies as a Motor Private Carrier subject to the Secretary of Transportation’s
jurisdiction, and the Plaintiff did not dispute this assertion in response to the Motion for
Summary Judgment. Thus, it is undisputed and the record supports that Quirch Foods
Co., qualifies as a “motor carrier” subject to the Secretary's MCE jurisdiction. See 49
U.S.C. §§ 13102(14), 13501. In addition, the Plaintiff did not dispute the Defendants’
contention that the Department of Labor’s regulations expressly exempt “loaders” from
FLSA overtime requirements under the MCE. Thus, the only issue in dispute before the
undersigned is whether the Plaintiff’s job activities and duties while working as a loader
at Quirch directly affected the safety of operation of motor vehicles on public highways,
thereby exempting him from the FLSA pursuant to the MCE.
At the outset, the undersigned acknowledges that the regulations make clear that
the title of the Plaintiff’s job as “loader” standing alone is not controlling. However,
viewing the facts in a light most favorable to the Plaintiff, and based upon a thorough
review of the Plaintiff’s deposition testimony, the undersigned concludes that the record
supports the Defendants’ contention that the Plaintiff’s work duties as a loader required
him to ensure that Quirch trucks were loaded in such a manner that they were safe while
traveling on the highway. Specifically, in his deposition, the Plaintiff testified that while
he worked for Quirch Foods he was responsible for bringing food products onto the
truck where he organized, loaded and balanced those products, ECF No. [40-2] at 42-43.
Further, the Plaintiff answered affirmatively when he was asked if it was his job to make
sure that the truck wasn’t unbalanced in a “tilting” way, ECF No. [40-2] at 67-68. The
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Plaintiff also conceded that if the truck was unbalanced it could create a safety issue for
the driver, ECF No. [40-2] at 68 at 7-17. The Plaintiff also testified that he knew how to
load the pallets from experience, ECF No. [40-2] at 88-89. Further, when the Plaintiff was
asked what he considered to be the most important part of his job, he first responded,
“What I consider to be most important in loading trucks, I would say the product safely,”
and then stated, “The safety of how the truck is loaded.” ECF No. [40-2] at 90 at 11-20.
As to Plaintiff’s argument that other employees were responsible for ensuring that
the trucks were loaded safely, in his deposition, the Plaintiff testified that the “scanner”
was his immediate boss and “is a person responsible for the truck that is about to be
loaded.” ECF No. [40-2] at 55 at 19-25. However, the Plaintiff continued with “[the
scanners] have all of the necessary documentation, where you see the truck, pallet
number, number of pallets, amount of merchandise. Everything related to that.” ECF No.
[40-2] at 56 at 1-4. Further, although the Plaintiff testified that a scanner would tell him
how the scanner wanted something done regarding loading the pallets, the Plaintiff
testified that sometimes the loading decisions were “on” him and that if he had a “bad
scanner,” he would call his supervisor and tell him that the way the scanner suggested
for loading was not right, ECF No. [40-2] at 89-90. Thus, based upon the foregoing, and
the entirety of the testimony, the undersigned concludes that the Plaintiff exercised
sufficient discretion and judgment regarding the loading of the trucks so that his duties
affected the safety of motor carriers’ operations on the highways once the trucks were
loaded with the food product.
Through his Affidavit, the Plaintiff attempts to escape the fact that his testimony
makes clear that as part of his loading duties, he was tasked with ensuring that the truck
was loaded in a manner that did not pose a safety hazard to the driver of the truck by
focusing on the fact that the Plaintiff was also concerned with ensuring that the truck
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was loaded in a manner that would not cause damage to the food product loaded onto
the truck, ECF No. [42-1]. However, the Plaintiff’s Affidavit does not set out specific facts
contained in the record to counter the facts offered by the Defendants as undisputed
facts. Rather, the Affidavit simply denies or admits certain facts and frequently states
that the Defendants have mischaracterized the Plaintiff’s deposition testimony. In
addition, the Affidavit reiterates Plaintiff Mendoza’s statement that his concern regarding
the loading or wrapping of the product was to make sure that the product was not
damaged, ECF No. [42] at 2, 3. While the burden remains on the Defendants to
demonstrate that the Plaintiff is subject to the motor carrier exemption, there is nothing
in the applicable regulations that indicates that the duties of an exempt person are
defined by what the loader focused on, but rather turn on the duties that the loader
performs. The undersigned has considered the testimony of the witnesses in this case,
and concludes that the Plaintiff’s job activities sufficiently involved the safety of the
operation of the truck, to qualify him as an exempt employee. 1
Finally, although not the basis of the undersigned’s determination, the court notes
the fact that Department of Labor had previously audited the loader position at Quirch
and determined that loaders who worked for Quirch Foods qualified as exempt
employees under the MCE. 2
The undersigned’s conclusion that the Plaintiff is subject to the MCE is not altered
by the cases cited by Plaintiff in opposition to the Motion. Specifically, Chellis v. New

1

The Defendants also submitted the deposition transcripts of Iganacio J. Quirch and two
other Quirch workers. The testimony contained in those depositions was not challenged
by the Plaintiff.

2

To the extent that the Plaintiff was denied his request to depose the DOL worker who
conducted the audit, that denial was without prejudice for the Plaintiff to renew that
request once other loaders and witnesses had been deposed, if necessary. The Plaintiff
never sought additional relief from the Court on that issue.
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Century Transportation, Inc., 843 F. Supp. 2d 551 (D. New Jersey 2012) is distinguishable
for a number of reasons. First, the court in Chellis, in evaluating the sufficiency of the
allegations in a complaint on a motion to dismiss, opined on the statutory interpretation
of the regulation which described a “loader’s duties” for purposes of applying the MCE.
The parties in Chellis disagreed as to whether the regulation was disjunctive, and only
required the plaintiff to have duties placing, distributing or securing pieces of freight to
fall within the exemption, or if the plaintiff was required to also exercise judgment and
discretion in planning a balanced load. The Court in Chellis did not have to evaluate
whether the facts supported a finding that a plaintiff, had in fact, exercised judgment and
discretion in the course of his job activities, while considering a motion for summary
judgment, akin to the case at bar.
Similarly, in Yellow Transit Freight Lines, Inc. v. Balven, 320 F. 2d 495 (8th Cir.
1963), the reviewing court concluded that the motor carrier’s dock foreman was not
subject to the exemption where his duties were primarily clerical and had no substantial
effect on safety or the operation of the motor vehicles. Thus, that case is clearly distinct
from the facts presented in this case.
Moreover, the undersigned finds the decision in Williams v. Central Transport
International, Inc., 830 F.3d 773 (8th Cir. 2016) to be persuasive. In that case, the
reviewing court affirmed a trial court’s determination that the plaintiff was an FLSA
exempt employee pursuant to the Motor Carrier Act. In so doing, the Court rejected the
contention that the definition of an exempt “loader” for purposes of the exemption
should be dictated by the regulations promulgated by the Department of Labor, and
declined to give any deference to those regulations, concluding that such determinations
were subject to the Secretary of Transportation’s jurisdiction. Id. at 778. The Court
instead concluded that based upon the Supreme Court’s controlling precedents that “if
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an employee spends a substantial part of his time. . . participating in or directing the
actual loading of a motor vehicle common carrier’s operating in interstate. . . commerce,.
. .the MCA Exemption applies, regardless of the employee’s precise role in the loading
process.” Id.
While neither side has argued that the Department of Labor’s regulations should
not be given deference, even absent those regulations, the court finds that the Plaintiff’s
duties as a loader, are sufficient to for him to fall within the MCE. It is clear that he had
responsibilities for wrapping products to be loaded onto the trucks and loading them in a
secure fashion. He evaluated whether loading instructions he received were not
appropriate, and recognized the importance of safely loading the products. The evidence
does not support his argument that he merely placed a product on a pallet where he was
directed to place it during the loading process; his responsibilities were far greater than
a mere laborer who would not fall within the MCE. Thus, the Plaintiff’s duties fall within
the description of an exempt loader under applicable precedent. See e.g., Levinson v.
Spector Motor Serv., 330 U.S. 649, 662 (1947); Pyramid Motor Freight Corp. v. Ispass, 330
U.S. 695, 707 (1947); Morris v. McComb, 332 U.S. 422, 434 (1947), Defendants are
therefore entitled to summary judgment.
V. CONCLUSION
Accordingly, based upon the foregoing analysis and a thorough review of the
entire record, it is
ORDERED and ADJUDGED that the Defendants’ Motion to Strike or Disregard
Plaintiff’s Affidavit, ECF No. [46] is DENIED. It is further

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ORDERED and ADJUDGED that the Defendants’ Case-Dispositive Motion for
Summary Judgment, ECF No. [38] is GRANTED. A final judgment in favor of the
Defendants will be entered by way of separate order.
DONE AND ORDERED in Miami, Florida, in chambers, on September 30, 2017.

_________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All counsel of record

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