NOLL v. FLOWERS FOODS INC et al

Filing 277

ORDER ON DEFENDANTS' MOTION FOR DECERTIFICATION OF FLSA COLLECTIVE ACTION granting 268 Motion. The FLSA and Declaratory Judgment claims of Opt-in Plaintiffs are dismissed without prejudice. Plaintiff Timothy Noll's FLSA and Declaratory Judgment claim is dismissed with prejudice, based on his failure to substantiate his own recourse to the TCA exception in opposition to Defendants' summary judgment motion. By JUDGE LANCE E. WALKER. (CJD)

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

TIMOTHY NOLL, individually and,
on behalf of similarly situated
individuals,

)
)
)
)
Plaintiff,
)
)
v.
)
)
FLOWERS FOODS INC, LEPAGE
)
BAKERIES PARK STREET, LLC., and )
CK SALES CO., LLC,
)
)
Defendants.
)

Case No. 1:15-cv-00493-LEW

ORDER ON DEFENDANTS’
MOTION FOR DECERTIFICATION OF FLSA COLLECTIVE ACTION

The matter is before the Court on Defendants’ Motion for Decertification of the
FLSA Collective Action (ECF No. 268). For reasons set out in this Order, Defendants’
Motion is granted.
BACKGROUND
This civil action presents “collective” claims for recovery of unpaid overtime wages
pursuant to the federal Fair Labor Standards Act (FLSA). Plaintiff Timothy Noll contends
Defendants Flowers Foods, Lepage Bakeries, and CK Sales misclassified the members of
the collective as independent contractors and thereby deprived those individuals of
overtime wages throughout the claim period.

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On March 20, 2019, I certified the following FLSA collective:
All persons who, at any time from December 2, 2012, continuing through
entry of judgment in this case, worked as distributors for Flowers Foods, Inc.,
Lepage Bakeries, Inc., and/or CK Sales Co., LLC, and personally serviced
one or more territories in the state of Maine and were classified as
independent contractors under their distribution agreements.
Class Certification Order (ECF No. 219).
On May 31, 2019, the parties filed motions for summary judgment. On January 29,
2020, based on the summary judgment record, I found that the distribution activity at issue
in this case is subject to the Motor Carrier Act (MCA) exemption to the FLSA, unless a
given distributor can establish that his or her use of a personal vehicle is within the
Technical Corrections Act’s exception to the MCA exemption. Although Plaintiff Noll’s
summary judgment presentation was not calibrated to make the TCA showing, I denied
Defendant’s request for collective-wide summary judgment on the FLSA claim and a
related claim for declaratory judgment because I concluded, based on some of the evidence
contained in the record, that there are some members of the FLSA class who likely could
demonstrate that they conducted some product distribution services in personal vehicles
and, consequently, could be entitled to overtime wages for certain weeks of the claim
period. 1 Specifically, I worded my conclusion as follows:
The record supports the finding that at least some of the members of the
FLSA class have on occasion driven personal vehicles to deliver interstate
products to their customers. In particular, it appears that pull up or recall
duties can involve the delivery of products to restock customers’ shelves.
Based on this evidence, the finder of fact could conclude, through an exercise

1

I granted summary judgment in favor of Defendants on the state law claims.
2

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of inferential reasoning, that there are some individuals who will, in some
work weeks, use personal vehicles to deliver in-bound products ….
Summary Judgment Order at 22.
Nevertheless, because Defendants carried their burden of demonstrating that the
distribution activity was subject to the Secretary of Transportation’s jurisdiction under the
MCA, such that each and every class member would only be entitled to relief if he or she
delivered product in a personal vehicle during any weeks in the class period in which his
or her hours exceeded 40, and because the summary judgment record failed to demonstrate
that lead Plaintiff Timothy Noll would be able to make such a showing, I granted
Defendants leave to file a motion to decertify the FLSA class.
DISCUSSION
Defendants’ Motion for Decertification of the FLSA Collective Action (ECF No.
268) is founded on the following factors and contentions:
1. Plaintiff Timothy Noll has provided deposition testimony that indicates he never
used a personal vehicle to deliver product to his customers;
2. For the opt-in Plaintiffs, a recovery is only possible if they transported product
in their personal vehicles to satisfy existing orders;
3. The burden to make this showing is Plaintiffs’ burden, because the showing is
necessary to overcome the MCA exemption for which Defendants have already carried
their burden at the summary judgment stage; and
4. Plaintiffs cannot make this showing with representative evidence because each
plaintiff’s conduct in any given week is an individualized inquiry and Plaintiffs failed to
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develop a record that would permit the finder of fact to determine that plaintiffs’ activities
in this regard were in any way uniform or typical across the collective.
In opposition to the motion, Plaintiff Noll argues the TCA exception to the MCA
overtime exemption “can largely be determined with representative evidence, and this
Court can efficiently handle individualize factfinding, should it be required.” Opposition
at 1 (ECF No. 274-1 (unredacted version)). Noll observes, correctly, that Courts regularly
engage in individualized fact finding in FLSA matters. Id. He asserts, too, that “Plaintiffs’
work pulling and transporting stale product, which they uniformly do, constitutes the
continuation of interstate transportation under the TCA,” and that “[a]ll Plaintiffs are
similarly situated with regard to this legal issue,” and also with regard to issues related to
the nature of their work and their common law employee status. Id. Should I disagree that
the TCA exception can be demonstrated through representative evidence involving pulling
stale product, Noll argues I should certify a small collective comprised of only those opt in
plaintiffs who delivered product in personal vehicles. Id. at 2, 17-19.
A.

The TCA’s Interstate Requirement
In the Summary Judgment Order, I reached a conclusion of law that the distributors’

intrastate transportation activity is subject to regulation by the Secretary of the Department
of Transportation, and therefore within the scope of the MCA exemption from the FLSA’s
overtime provision, 29 U.S.C. § 213(b), because it involves the carriage of property, in
commercial vehicles, in interstate commerce. See 49 U.S.C. §§ 13102(15)(A), 13501. As
to the interstate commerce component, based on Department of Labor regulations, I
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concluded that the distributors’ use of commercial vehicles is part of Defendants’ interstate
transportation program because the distributors’ deliveries are part of “a practical
continuity of movement of the out-of-state goods through [Defendants’] distribution point
to [their] customers,” U.S. Dep’t of Labor, Field Operations Handbook § 24d02(b) (Rev.
690, May 23, 2016), available at https://www.dol.gov/whd/FOH/FOH_Ch24.pdf, “in
fulfillment of existing orders.” Summary Judgment Order at 21-22, 24 (emphasis added).
That conclusion, I am confident, was sound.
I then considered whether the so-called Technical Corrections Act exception (what
I will here call the “small vehicle exception”) would permit the distributors, as a collective,
to escape the MCA exemption. I concluded that a given distributor might demonstrate
entitlement to FLSA overtime wages, if the distributor delivered fresh bakery products to
the customers who ordered them, using a “personal vehicle” rather than a commercial box
truck, and the record suggested to me that there are some distributors who might be able to
do so for some weeks in the claim period. However, nothing in the record suggested to me
that personal vehicle deliveries are typical for the collective, calling into question whether
it would be fair to determine collective-wide liability based on representative evidence that,
frankly, Plaintiff Noll never put forward in his summary judgment statements.
In the course of my analysis, albeit in a footnote, I rejected the idea that distributors
who pull stale product from the store shelves and carry it away in their personal vehicles
would come within the small vehicle exception, reasoning that this was not the kind of
transportation activity that would warrant an exercise of jurisdiction by the Secretary, and
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therefore did not affect transportation in interstate commerce. Summary Judgment Order
at 29 n.14. But in doing so, I conflated the MCA jurisdictional standard with the TCA
interstate commerce standard. On further reflection, I do not see why a standard devised
to determine whether the Secretary of Transportation has jurisdiction over internodal
intrastate shipments should be applied when one is attempting to determine whether
Congress intended to afford FLSA relief to workers pursuant to the small vehicle exception
to the MCA exemption.
As explained in the Summary Judgment Order, the TCA’s small vehicle exception
extends the protection of Section 7 of the FLSA to “covered employee[s]” whose
transportation work comes within the jurisdiction of the Secretary of Transportation, but
whose work also, “in whole or in part,” affects “the safety of operation of motor vehicles
weighing 10,000 pounds or less in transportation on public highways in interstate …
commerce.” 29 U.S.C. § 207 Statutory Note (quoting Pub. L. 110-244, Title III, § 306(c)
(2008). This is the so-called “small vehicle” or “non-commercial vehicle” exception
(which I have also referred to as a “personal vehicle,” following the lead of the parties).
Here, the question is whether “pulling stales” from the shelves and transporting
them to another location in a small vehicle is activity that affects “the safety of operation
of motor vehicles weighing 10,000 pounds or less in transportation on public highways in
interstate … commerce.” 29 U.S.C. § 207 Statutory Note (emphasis added). The burden
of showing it is falls to Plaintiff Noll. Carley v. Crest Pumping Techs., LLC, 890 F.3d 575,
580 (5th Cir. 2018).
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Noll argues that pulling stales is interstate commerce for purposes of the TCA
exception because the Distributor Agreement obligates the distributors to remove the stale
product from customers’ shelves and, consequently, “the chain of interstate commerce was
never broken …., but rather completed an intended, final leg of movement that originated
outside Maine.” Opposition at 12.
Upon further consideration, I conclude that, although the transportation of stales,
standing alone, likely would not be the kind of transportation activity that would come
within the Secretary of Transportation’s MCA jurisdiction to regulate interstate
transportation, when the transportation of stales is considered in light of a “fair” reading of
the FLSA’s small vehicle exception, Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134,
1142 (2018), it is nonetheless transportation “in interstate commerce,” which is all that the
plain language of the TCA exception requires. In other words, when I consider the plain
language of the TCA exception, it seems to me that Congress expressed its intention to
afford FLSA overtime for workers when their transportation is in a non-commercial vehicle
and comes within Congress’s power to regulate interstate commerce. Nothing in the plain
language of the TCA suggests to me that Congress intended to muddy up the meaning of
interstate commerce by incorporating Department of Labor regulations that attempt to
differentiate between internodal intrastate transportation that completes an interstate
shipment (which would come within the Secretary of Transportation’s jurisdiction), and
intrastate transportation that is not in the service of an interstate shipper.

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When Congress uses a term like interstate commerce, the logical inference is that it
intends to exert its authority over interstate commerce. “If a court, employing traditional
tools of statutory construction, ascertains that Congress had an intention on the precise
question at issue, that intention is the law and must be given effect.” Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). I should “look to agency
interpretations only when the statute or regulation remains ambiguous after [I] have
employed the traditional tools of construction.” United States v. Lachman, 387 F.3d 42,
54 (1st Cir. 2004). Because there is no apparent reason why I should convolute the meaning
of interstate commerce by reference to the DOL’s interpretation of the DOT’s jurisdiction
over interstate transportation, I will revisit the issue whether “pulling stales” in a personal
vehicle is transportation in interstate commerce.
Supreme Court precedent teaches that the power of Congress to regulate commerce
extends to “‘the channels of interstate commerce,’ ‘persons or things in interstate
commerce,’ and ‘those activities that substantially affect interstate commerce.’” Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012) (quoting United States v.
Morrison, 529 U.S. 598, 609 (2000)). See also United States v. Lopez, 514 U.S. 549, 560
(1995) (“Where economic activity substantially affects interstate commerce, legislation
regulating that activity will be sustained.”). When Congress enacted the small vehicle
exception, it is fair to interpret its legislative act as extending to transportation activities
that substantially affect interstate commerce. Here, the transportation of stales, when
performed in a small vehicle, comes within the TCA’s small vehicle exception because it
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substantially affects interstate commerce, even though it is entirely intrastate
transportation. Stale perishable products in the stream of commerce are not only brought
to a secondary market through this activity, but typically are sold to thrift store outlets that
maintain their own accounts with Defendants. 2 Dep. of Paul Milazzo at 187 (ECF No.
273-3); Dep. of Jake Linthicum at 76 (ECF No. 274-2 (under seal)). This evidence supports
a finding that distributors’ intrastate transportation of stales affects “the safety of operation
of motor vehicles … in transportation on public highways in interstate … commerce,” 29
U.S.C. § 207 Statutory Note. Nothing in the plain language of the TCA exception requires
any greater interstate nexus than that.
B.

Decertification
Defendants argue that pulling stales cannot salvage the collective action. They

observe: “Plaintiffs do not cite to anything in the record that supports this claim of small
vehicle use because no such record evidence exists.” Reply at 1 (ECF No. 276). They
further observe: “there is no evidence that this merchandising work on non-delivery days
involve[s] Distributors either removing or transporting product from the customers’
premises.” Id. Defendants also cite evidence that runs counter to Noll’s contention that it
is typical for distributors to pull stales on their non-delivery days, let alone to pull them
and then transport them in small vehicles.

2

The Distributor Agreement does not allow distributors to sell stales to the public, thought distributors
may sell stale products to purchasers for non-human consumption. Distributor Agreement § 12.3. The
record also reflects that the thrift stores maintain accounts with Defendants so that Defendants receive
payment from the thrift stores rather than the distributors.
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Jake Linthicum is the Distributor Enablement Operations Coordinator for Lepage
Bakeries Park Street. Mr. Linthicum explains:
2. All bread products have a color tag for Distributors to identify the day of
the week the bread product is to be pulled from their customers’ shelves or
displays.
3. The bread product pull code (color of the twist tie) corresponds with one
of the five delivery days: Monday, Tuesday, Thursday, Friday and Saturday.
The bread does not have an out of code date that falls on either a Sunday or
a Wednesday. Distributors have no reason to pull product or transport out of
code product on Sunday or Wednesday.
4. If a Distributor does not deliver to a customer on all five delivery days
each week it is possible a product’s out of code date will occur between
delivery days. In this circumstance, the Distributor has the option to pull any
such products from the customers’ shelves or displays on the Distributor’s
regularly scheduled delivery day even if the product is pulled a day or two
before it becomes out of code.
Linthicum Decl. (ECF No. 276-2).
Against the picture presented by Mr. Linthicum, Plaintiff Noll has presented
evidence demonstrating that the Distributor Agreement requires that stales be pulled from
customer shelves (and necessarily transported somewhere), but not any evidence that it is
typical of the members of the collective to perform this work in small vehicles. Instead,
Noll relies on the inference that some products “may become out of code on a day that is
not a retailer’s usual service day; in that case, the Distributor may make a special trip to
pull stale to satisfy the ‘daily’ requirement.” Opposition at 3 (citing Dep. of Paul Milazzo
at 204-206 (ECF No. 273-3). To reinforce just how loose this evidentiary proffer is,
consider Noll’s primary summation of the evidence:

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The common testimony also shows that Distributors used light vehicles on
Wednesdays and Sundays. While pulling and further transporting stale may
have occurred on Wednesdays and Sundays in light vehicles, the common
testimony clearly shows that Distributors performed pull ups in light
vehicles, which involves pulling products from the back of the shelves and
rotating existing stock on shelves.
Opposition at 14 (emphasis added). In other words, Noll emphasizes that “the common
testimony” reveals that distributors use personal vehicles to travel to certain accounts on
two non-delivery days when they pull products from back shelves and rotate stock. But as
to “transporting stale,” Noll offers only that it “may have occurred.”
What this evidence tells me is that Noll failed to substantiate his contention that the
TCA small vehicle exception applies; as in, failed to present a reliable representative
sampling from members of the collective, showing that it is typical for distributors to move
product (fresh or stale) in their personal vehicles. This failure may be the product of Noll’s
assumption that simply using a personal vehicle to get to a customer’s store is all that is
needed to come within the TCA small vehicle exception. But as to that point, I agree with
Defendants that the TCA exception requires a showing that the small vehicle is used in
transportation, not merely that it is used to commute to a job site where job duties are
performed. After all, the small vehicle exception is worded in precisely that manner,
requiring that the employee’s work affect “the safety of operation of motor vehicles
weighing 10,000 pounds or less in transportation on public highways in interstate …
commerce.” 29 U.S.C. § 207 Statutory Note. Consequently, a given distributor would not

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be entitled to FLSA overtime wages unless he or she, in a given week, not only personally 3
worked in excess of 40 hours but also used a personal vehicle to transport Defendants’
product (fresh or stale). Unfortunately for the members of the collective action, Noll has
not supplied the kind of representative evidence – either through his summary judgment
statements or through his opposition to the current motion to decertify – that would warrant
a collective proceeding.
Magistrate Judge Nivison has summarized the kind of showing required to justify a
collective trial based on representative evidence:
Plaintiffs must demonstrate that they are similarly situated to the other
members of the conditionally certified action, and they must produce “‘more
than just allegations and affidavits’ demonstrating similarity in order to
achieve final certification.” Frye v. Baptist Mem’l Hosp., Inc., 495
Fed.Appx. 669, 671 (6th Cir. 2012) (quoting Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008)).
The “overriding question” is whether the original plaintiffs and the opt-in
plaintiffs are “similarly situated.” Thiessen v. Gen. Elec. Capital Corp., 267
F.3d 1095, 1102 (10th Cir. 2001). In order to serve the interest of judicial
economy and prevent abuse, the similarity among plaintiffs to a collective
action must relate to more than just “job duties and pay provisions.” Morgan
v. Family Dollar Stores, Inc., 551 F.3d 1233, 1262 (11th Cir. 2008); White
v. Osmose, Inc., 204 F. Supp. 2d 1309, 1314 (M.D. Ala. 2002).
The three factors that are typically used to assess the similarity of potential
plaintiffs in a collective action are: the plaintiffs’ employment settings, the
individual defenses available to the defendant that may require
individualized proof, and fairness and procedural considerations. Id.;
Morgan, 551 F.3d at 1261. Although these three factors are commonly
considered, certification involves an ad hoc consideration of all relevant
factors, made on a case-by-case basis. Mott v. Driveline Retail Merch., Inc.,
No. 2:12-cv-05244, 2014 WL 2115469, at *3 (E.D. Pa. May 21, 2014).

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Some distributors employ others to perform their duties.
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If the Court concludes that Plaintiffs are similarly situated, the action
proceeds collectively; otherwise, “the class is decertified, the claims of the
opt-in plaintiffs are dismissed without prejudice, and the class
representative[s] may proceed on [their] own claims.” Lee v. ABC Carpet &
Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006).
Saunders v. Getchell Agency Inc., No. 1:13-CV-00244-JDL, 2014 WL 12539643, at *2–3
(D. Me. Dec. 12, 2014), report and recommendation adopted, 2015 WL 1292594 (D. Me.
Mar. 23, 2015).
Although this case involves several questions common to the class that can be
resolved on representative evidence, Plaintiff Noll has failed to demonstrate that the TCA
exception to the MCA defense – the issue for which Plaintiff bears the burden – is anything
other than thoroughly individualized. Instead, Plaintiff has relied on evidence that the
members of the collective are subject to the same job duties and pay provisions (i.e., the
same Distributor Agreement). I am not persuaded that this is enough. Indeed, on this
record, I cannot say what a typical TCA exception presentation will look like, or who the
representatives might be. This not only calls for decertification of the existing collective
action, but also undermines any inclination I might have had, on another showing, to amend
the certification order to shrink the collective to include only those distributors who used
personal vehicles to transport Defendants’ product. I suspect such a showing might be
possible, but not on the summary judgment and certification presentations made by Mr.
Noll.

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CONCLUSION
Defendants’ Motion for Decertification of the FLSA Collective Action (ECF No.
268) is GRANTED. The FLSA and Declaratory Judgment claims of the Opt-In Plaintiffs
are DISMISSED WITHOUT PREJUDICE. Plaintiff Timothy Noll’s FLSA and
Declaratory Judgment claim is DISMISSED WITH PREJUDICE, based on his failure
to substantiate his own recourse to the TCA exception in opposition to Defendants’
summary judgment motion.
SO ORDERED.
Dated this 3rd day of August, 2020.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE

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