Berry v. Best Transportation, Inc. et al

Filing 137

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Doc. 96 ) is DENIED. IT IS FURTHER ORDERED that Plaintiff Mario Berry's Motion for Partial Summary Judgment (Doc. 99 ) is DENIED. Signed by District Judge John A. Ross on 3/29/2018. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARIO BERRY,
on behalf of himself and others
similarly-situated,
Plaintiff,
vs.
BEST TRANSPORTATION, INC., d/b/a
BEST TRANSPORTATION OF
ST. LOUIS, et al.,
Defendants.

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Case No. 4:16-cv-00473-JAR

MEMORANDUM AND ORDER

This matter is before the Court on Defendants' Motion for Summary Judgment (Doc. 96)
and Plaintiffs Motion for Partial Summary Judgment (Doc. 99). The motions are fully briefed
and ready for disposition.

I.

Background

Defendant Best Transportation, Inc., is a Missouri company that provides transportation
services. (Doc. 96-1

at~

1.) Defendants Kim Garner and Deborah Rudawsky are co-owners of

Best Transportation. (Id. at

~

2.) Best Transportation operates a division known as GO Best

Express, which "specializes in transporting individuals to and from locations within the St. Louis
Metropolitan Area and into Illinois; including to and from Lambert International Airport," in St.
Louis. (Id.

at~

3.)

Prior to April 2014, GO Best Express operated a fleet of nine Ford E-350 Econoline
Super Duty Extended Wagon vans, which were given vehicle numbers in the 300's (the "300
1

Vans"). (Id.

at~

6.) The E-350 had a gross vehicle weight rating of 9,100 pounds and was

marketed as accommodating up to fifteen passengers, including the driver. (Id.

at~~

7-8). GO

Best Express removed the four-seat rear bench to create space for passengers' luggage, reducing
the 300 Vans' seating capacity to eleven. (Id.

at~

9.)

In 2009, Best Transportation signed a contract with Lambert International Airport to
transport passengers to and from the airport. (Id.

at~

11.) Because the contract stipulated that

Best Transportation must use vehicles with no more than eight seats, Best Transportation
removed the three-seat middle bench from the 300 Vans. (Id.

at~~

12-14.) In December 2011,

when Best Transportation and the airport amended their contract to allow the use of vans with
more than eight seats, Best Transportation replaced the middle benches in all of the 300 Vans.
(Id.

at~~

15-20.)

In 2014, Best Transportation signed a new contract with the airport that did not include a
seat limit and leased eleven new Ford E-350 vans, which were given vehicle numbers in the
900's (the "900 Vans"). (Id. at

~

24.) The 900 Vans were also rated at 9,100 pounds and

marketed as accommodating up to fifteen passengers. (Id.

at~~

25, 28.) The 900 Vans were

leased from Penske, who removed the rear bench to make space for luggage before delivering
them to Best Transportation, thereby reducing the seating capacity to eleven. (Id.
Transportation made no other modifications to the 900 Vans. (Id

at~~

at~

29.) Best

30-32.)

Plaintiff Mario Berry worked as a driver for the GO Best Express division from May
2013 to April 2015, but he occasionally drove for Best Transportation's other divisions. (Id. at
~~

33-34.) When driving for GO Best Express, Berry primarily operated the 300 and 900 Vans,

although he also drove other vehicles accommodating thirteen, fourteen, twenty-one, or twentyfour passengers.

(Id. at ~~ 37-38.)

When assisting Best Transportation's other divisions,
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however, Berry drove Sport Utility Vehicles ("SUV's") with seating capacities of eight or less.

(Id. at ii 40.)
On April 6, 2016, Berry, on behalf of himself and others similarly situated, filed suit
against Defendants, alleging that they had failed to pay overtime wages in violation of the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-19. (Doc. 1.) The parties conducted an initial
phase of discovery on the issue of whether Berry and those similarly situated were exempt from
overtime protection under the so-called "Motor Carrier Act" ("MCA") exemption to the FLSA.
(Doc. 75); 29 U.S.C. § 213(b)(l).
Defendants filed this Motion for Summary Judgment, arguing that Berry was exempt
from overtime protection under the MCA exemption. (Doc. 96.) Berry responds that the MCA
exemption does not apply and that, even if it does, he is entitled to the protection of the
SAFETEA-LU Technical Corrections Act of 2008 (the "TCA exception"), because the SUV's
were "small vehicles" with only eight seats. Pub. L. No. 110-244, Title III, § 306(a) (2008)
[hereinafter "TCA"]. (Doc. 110.)
Berry filed his own Motion for Partial Summary Judgment, arguing that GO Best Express
was not engaged in interstate commerce and therefore could not claim the MCA exemption
applied to its drivers. Berry alternatively argues that, even if the MCA exemption were available
to Defendants, they would have to show that he never drove a small vehicle. (Doc. 99.) Because
Defendants admit that Berry drove small vehicles during at least twenty weeks, he argues that he
is entitled to summary judgment regarding those weeks. (Id.) Defendants respond that Berry
misstates the standard and that his operation of small vehicles was de minimis, meaning he does
not qualify for the protection of the TCA exception. (Doc. 128.)
II.

Legal Standard
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"Summary judgment is proper where the evidence, when viewed in a light most favorable
to the non-moving party, indicates that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law." Davison v. City of Minneapolis, Minn.,
490 F.3d 648, 654 (8th Cir. 2007); see Fed. R. Civ. P. 56(c).

Summary judgment is not

appropriate if there are factual disputes that may affect the outcome of the case under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue
of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for
the non-moving party. Id.

"The basic inquiry is whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law." Diesel Machinery, Inc. v. B.R. Lee Industries, Inc., 418 F.3d 820,
832 (8th Cir. 2005) (internal quotation marks and citation omitted). The moving party has the
initial burden of demonstrating the absence of a genuine issue of material fact. City of Mt.

Pleasant v. Ass'd Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the movant does so,
the burden then shifts to the non-moving party, who must set forth affirmative evidence and
specific facts showing a genuine dispute on that issue. Anderson, 477 U.S. at 249.
As noted, the Court reviews the facts in a light most favorable to the party opposing the
motion and gives that party the benefit of any inferences that logically can be drawn from those
facts. The Court is required to resolve all conflicts of evidence in favor of the nonmoving party,

Osborn v. E.F Hutton & Co., Inc., 853 F.2d 616, 619 (8th Cir. 1988), and may not make
credibility determinations, weigh the evidence, or draw inferences from the facts, Torgerson v.

City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).

III.

Discussion

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The substance of both pending motions overlap to such a degree that the Court will
discuss their arguments together, rather than in discrete sections devoted to each motion. Under
the FLSA, employees are entitled to one and one-half times their hourly rate for anything more
than forty hours in one workweek. 29 U.S.C. § 207(a)(l). However, any employee whose
position falls under the authority of the Secretary of Transportation-including anyone who
works for a so-called "motor carrier" such as Best Transportation-is exempt from overtime
protection under the MCA exemption.

§ 213(b)(l).

Still, the TCA exception to the MCA

exemption brings certain "covered employees" back under FLSA protection-those who operate
vehicles that weigh less than 10,000 pounds and that were neither "designed" nor used to
transport eight or more passengers, including the driver.

TCA § 306(c). The issue for the

Court's determination is whether Berry and those similarly situated are exempt under the MCA
exemption or "covered employees" under the TCA exception.
A. The MCA exemption applies to Berry and similarly situated drivers.
There is no dispute that Berry is covered by the FLSA, so Defendants must show that he
"fit[s] plainly and unmistakably within the [MCA] exemption's terms and spirit." Fezard v.

United Cerebral Palsy of Cent. Ark., 809 F.3d 1006, 1010 (8th Cir. 2016) (citation omitted).
Under the MCA exemption, an employee is exempt from overtime protection when:
(1) his employer is under the jurisdiction of the Secretary of Transportation;
(2) he is a driver, driver's helper, loader or mechanic; and
(3) he "engages 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."

Williams v. Cent. Transp. Jnt'l, Inc., No. 4:13-CV-2009 CEJ, 2014 WL 1344513, at *2 (E.D.
Mo. Apr. 4, 2014) (citation omitted); 29 C.F.R. §§ 782.2(a)-(b)(2).
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Berry first argues that Defendants cannot meet the first or third elements because GO
Best Express's drivers do not "operate in interstate commerce" as that element is interpreted.
(Doc. 99 at 8-12.) Defendants respond that Berry never challenged the interstate nature of GO
Best Express' s business and therefore the Court should not allow him to raise the issue now.
(Doc. 128 at 14-16.) Because the Court finds that GO Best Express was engaged in interstate
commerce, it will not penalize Berry at this juncture for his failure to raise the issue during
discovery.
"Highway transportation by motor vehicle from one State to another, in the course of
which the vehicles cross the State line, clearly constitutes interstate commerce [and e]mployees
of a carrier so engaged, whose duties directly affect the safety of operation of such vehicles, are
within the [MCA] exemption." 29 C.F.R. § 782.7. Defendants assert that Berry drove into
Illinois on multiple occasions while employed by GO Best Express and that, during the relevant
time period, Best Transportation sent employees into Illinois nearly 400 times. (Id. at 19.)
Berry argues that the rare trip over state lines is insufficient to satisfy the interstate
commerce element. (Doc. 99 at 8-12.) He cites Morris v. McComb, 332 U.S. 422, 427 (1947),
for the proposition "that a company's interstate business is de minimis if ... less than one
percent of its trips are interstate." (Doc 99 at 12.) In response, Defendants point to the Eighth
Circuit's opinion in Alexander v. Tutle & Tutle Trucking, Inc., 834 F.3d 866, 871 (8th Cir. 2016),
in which the Circuit Court held that an employer is engaged in interstate commerce "if there is a
'reasonable expectation' that [its employees] will be directed to perform interstate driving." Id.
at 870. Indeed, the Eighth Circuit held that an employer may invoke the MCA exemption even
as to "a driver who performs no interstate driving" so long as he is '"subject to being assigned to

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an interstate trip' and there is a reasonable expectation of such an assignment." Id. (emphasis
added) (quoting Starrett v. Bruce, 391 F.2d 320, 323-24 (10th Cir. 1968)).
The Court agrees with Defendants. Given the geographic area in which GO Best Express
operates and the fact that it routinely sent drivers into Illinois, there can be no dispute that Berry
was subject to being assigned an interstate trip and there was a reasonable expectation that he
would be. In fact, he was. Because Berry does not challenge the second element of the MCA
exemption, the Court concludes that Berry and similarly situated drivers are within the
exemption.

B. The TCA exception to the MCA exemption applies to Berry.
The TCA exception to the MCA exemption reinstates overtime protection for covered
employees "whose work, in whole or in part," consists of driving vehicles that weigh 10,000
pounds or less, unless those vehicles are "designed or used to transport more than eight
passengers." TCA § 306(c); see also LaCurtis v. Express Med Transporters, Inc., 856 F.3d 571,
575 (8th Cir. 2017). In other words, Berry must show that his work included the operation of
vehicles that weighed less than 10,000 pounds and were neither designed nor used to transport
more than eight passengers. The 300 and 900 Vans weighed less than 10,000 pounds but were
sometimes used to transport more than eight passengers.

Thus, the dispositive question is

whether the 300 and 900 Vans were "designed" to transport more than eight passengers.
Additionally, it must be determined whether Berry's occasional operation of SUV's affects his
eligibility for overtime protection under the TCA exception.

i.

The 300 and 900 Vans were "designed" to transport more than eight
passengers.
Defendants first argue that the plain and unambiguous definition of "designed" in this

instance means the intended use of the vehicle at the time of manufacture. (Doc. 103 at 10.) In
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support, they cite Vil/. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 501
(1982)-a U.S. Supreme Court opinion interpreting "designed or marketed for use with illegal
cannabis or drugs" as "refer[ing] to the design of the manufacturer, not the intent of the retailer
or customer."

Because Ford marketed the E-350 to accommodate "up to 15 passengers,"

Defendants argue that the 300 and 900 Vans were indisputably "designed" to transport more than
eight people. (See Doc. 109 at~ 7.) In addition, Defendants cite to several publications by the
Department of Transportation's ("DOT") Federal Motor Carrier Safety Administration,
interpreting similar uses of "designed" to mean "the number of designated seats as originally
designed[, e ]ven if you remove some seats," and "the original design[; r ]emoval of seats does not
change the design capacity of the [vehicle]." (Doc. 103 at 12.)
Berry responds that although the vans as manufactured could fit up to fifteen passengers,
Ford "designed" the E-350 to allow for "various seating capacities," as evidenced by the ease
with which seats are removed. (Doc. 110 at 10.) In fact, Berry argues, this flexible design is
what led Defendants to purchase the E-350 in the first place. (Id.) In support of his position,
Berry cites LaCurtis-a case about high-capacity vans being permanently altered to
accommodate wheel chairs-for the proposition that "Congress did not intend for the term
'designed' as used in TCA § 306(c) to be limited to a vehicle's original design no matter what
happens to the vehicle after its original design and manufacture." 856 F.3d at 579-80.
The Court agrees that LaCurtis provides the appropriate framework to interpret
"designed." Id. at 578. "Designed" is not defined in the TCA and the statute provides no
indication as to whether it means "as originally designed" or "as currently designed." See TCA
§ 306.

In LaCurtis, the Eighth Circuit discussed the plain meaning of "design," the

congressional intent behind the MCA and TCA, and the same agency interpretations Defendant
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cites in this case, and found them all unpersuasive. 856 F Jd at 579-80. Instead, the Circuit
Court held that "design" is not limited to a vehicle's original specifications "no matter what
happens to the vehicle after." Id. In so holding, the Eighth Circuit recognized that there is a
threshold at which point alterations to a vehicle are so significant as to constitute a
"comprehensive redesign" such that the original specifications are no longer dispositive. Id. at
580. Whether modifications to a given vehicle cross that threshold is the key inquiry.
The Court finds that, under the specific factual circumstances of this case, the alterations
made by Defendants are so insignificant that the Court can determine as a matter of law that the
"design" of the vans did not change. The vans driven by the LaCurtis plaintiffs "undisputedly
underwent a comprehensive redesign and substantial modifications by a third-party manufacturer
before being delivered to [defendant] and placed into service." Id. at 580. Such was not the case
here. In this case, the vehicles arrived to Defendants with more than eight seats-the 300 Vans
were sent to Defendants as manufactured and the 900 Vans were sent with only the rear bench
removed. Neither alteration could be reasonably construed as a "comprehensive redesign [or]
substantial modification[.]" Id. Likewise, in LaCurtis, "the third-party manufacturer removed
some of the seats, altered the roof and doors, and installed wheelchair anchors, ramps, and lifts in
accordance with the redesign." Id. The most significant alteration by Defendants in this case
was the temporary removal of two bench seats; the vehicles were otherwise unchanged. In fact,
the redesign in LaCurtis was so significant that "the third-party manufacturer placed new
placards on the door pillars to comply with [federal] labeling requirements." Id. The alterations
in this case were too minor to require relabeling.
Given the significant factual differences between the paralift vans in LaCurtis and the
vehicles involved in this case, the Court concludes that Defendants' alteration of the 300 and 900
9

Vans did not constitute a redesign. Indeed, the LaCurtis court itself noted in dicta that "more
modest changes to a vehicle, such as the removal of seats by a final user" are likely insufficient
to change the "design" of the vehicle.

Id. at 580, n.7 (emphasis added).

Ford's original

specifications and marketing of the E-350 as accommodating up to fifteen passengers therefore
controls.

ii.

A genuine issue of material fact exists as to whether Berry's operation of
SUV's make him a "covered employee" under the TCA.
As noted, Defendants concede that Berry spent some time driving SUV's that were

designed and used to transport no more than eight passengers, including the driver. (Doc. 103 at
20; see also Doc. 96-1 at ii 40.) Berry argues that his operation of those small vehicles made him
a "covered employee" under the TCA exception. Defendants assert that Berry's operation of
small vehicles was too rare to mandate overtime pay-only twenty-six days out of 480; slightly
more than five percent of his tenure at Best Transportation. (Doc. 103 at 20.)
Courts are split on whether an employee whose work involves a "mixed fleet" of
vehicles-some of which meet the elements of the TCA exception and some of which do not-is
a "covered employee" entitled to overtime protection under the TCA exception or is exempt
from overtime protection under the MCA exemption. See, e.g., Wilkinson v. High Plains Inc.,
No. 1:16-CV-Oll, 2018 WL 1123863, at *4 (D.N.D. Mar. 1, 2018) (collecting cases). Some
courts have held that the key inquiry is whether the plaintiffs work, in whole or in part, was the
operation of large vehicles-those too heavy or designed to transport too many passengers to
qualify for the TCA exception. See, e.g., Avery v. Chariots For Hire, 748 F. Supp. 2d 492, 500
(D. Md. 2010); Dalton v. Sabo, Inc., No. CIV 09-358-AA, 2010 WL 1325613, at *4 (D. Or. Apr.
1, 2010); Hernandez v. Brink's, Inc., No. 08-20717-CIV, 2009 WL 113406, at *6 (S.D. Fla. Jan.
15, 2009); Jaramillo v. Garda, Inc., No. 12 C 662, 2012 WL 4955932, at *4 (N.D. Ill. Oct. 17,
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2012). Other courts find that the key inquiry is whether the plaintiffs work, in whole or in part,
was the operation of small vehicles. See, e.g., McMaster v. E. Armored Servs., Inc., 780 F.3d
167, 169 (3d Cir. 2015); Schilling v. Schmidt Baking Co., Inc., 876 F.3d 596, 601 (4th Cir.
2017); Childress v. Ozark Delivery of Missouri L.L.C., 95 F. Supp. 3d 1130, 1137 (W.D. Mo.
2015); Aikins v. Warrior Energy Servs. Corp., No. 6:13-CV-54, 2015 WL 1221255, at *5-6 (S.D.
Tex. Mar. 17, 2015). The Eighth Circuit has not squarely addressed the issue.
The Court agrees with the second camp that the more natural reading of the statute
focuses on the employee's operation of small vehicles. Under the TCA exception, the term
"covered employee" means an individual who is employed by a motor carrier and "whose work,

in whole or in part, is defined as that of a driver ... affecting the safety of operation of motor
vehicles weighing 10,000 pounds or less."

TCA § 306(c)(2)(A-B) (emphasis added). To

interpret the statutory language as asking whether the plaintiffs job is to drive vehicles that
weigh more than 10,000 pounds is contradictory to the language's plain meaning.

If the

plaintiff's work consists, in whole or in part, of the operation of vehicles weighing less than
10,000 pounds, he qualifies under the TCA exception unless those vehicles are designed or used
to transport more than eight passengers. Id. at § 306(C)(2)(B)(i). Together, then, the statutory
language is naturally read to ask whether a motor carrier employed plaintiff to, in whole or in
part, drive motor vehicles weighing less than 10,000 pounds which were neither designed nor
used to transport more than eight passengers. Because Berry's work for Best Transportation
was, in part, that of a driver of motor vehicles weighing 10,000 pounds or less which were
neither designed nor used to transport more than eight passengers (the SUV's), he is a "covered
employee" entitled to overtime protection.

11

The Court's holding is in accord with the reasoning of multiple circuit courts and
numerous district courts applying the TCA exception in mixed-fleet cases. In McMaster v. E.
Armored Servs., Inc., 780 F.3d 167, 168 (3d Cir. 2015), the Third Circuit held that an employee

who drove both TCA-qualifying and non-qualifying vehicles was entitled to overtime protection
even though she drove the qualifying vehicles a minority of the time. The Fourth Circuit held in
Schilling v. Schmidt Baking Co., Inc., 876 F.3d 596, 601 (4th Cir. 2017), that "[t]he text of the

TCA plainly provides that employees working on mixed fleet vehicles are covered by the TCA
exception." Accord Wilkinson, 2018 WL 1123863, at *4 (citing Pye v. Oil States Energy Servs.,
LLC, 233 F. Supp. 3d 541, 554 (W.D. Tex. 2017); Garcia v. W Waste Servs., Inc., 969 F. Supp.

2d 1252, 1260 (D. Idaho 2013))
Defendants assert that, even if Berry's operation of the SUV's meets the elements for the
TCA exception, he did so too infrequently to qualify for the TCA exception. 1 (Doc. 103 at 2223.) Berry argues that Defendants' proposed "de minimis" standard is unnecessary in light of the
TCA's plain language; he asserts that "in whole or in part" means any operation of small
vehicles, no matter how minimal. (Doc. 110 at 5.)
The Court finds that case law supports Defendants' argument for the inclusion of a de
minimis threshold.

As the Western District of Missouri succinctly put it:

"Where

a mixed fleet is involved, the issue for the court is whether the employee spends more than a de
minimis amount of time operating vehicles that weigh less than 10,000 pounds." Childress, 95
F. Supp. 3d at 1137.
The Court additionally recognizes that a de minimis standard eliminates the need to
account for every operation of TCA-qualifying vehicles, no matter how isolated, which would

1

Defendants list twenty-six dates on which Berry drove small vehicles, but Berry asserts that the
12

otherwise impose a significant burden on employers. The Eighth Circuit reached a similar
conclusion in McCall v. Disabled Am. Veterans, 723 F.3d 962, 966 (8th Cir. 2013), noting that:
Dividing jurisdiction over the same drivers, with the result that their employer
would be regulated under the [MCA] when they were driving the big trucks and
under the [FLSA] when they were driving trucks that might weigh only a pound
less, would require burdensome record-keeping, create confusion, and give rise to
mistakes and disputes.
(alterations in original) (quoting Collins v. Heritage Wine Cellars, Ltd., 589 F.3d 895, 901 (7th
Cir. 2009)).
However, the Court finds that a genuine issue of material fact exists as to whether Berry's
operation of the SUV's was more than de minimis. "[D]e minimis is more of a standard than a
rule, clearly defined in the extremes but much hazier toward the middle." Davis v. White, No.
4:10-CV-1429 NAB, 2013 WL 12181901, at *6 (E.D. Mo. Dec. 31, 2013), aff'd in part, rev'd in
part, 794 F.3d 1008 (8th Cir. 2015).

The term is commonly understood as meaning "to a

negligible degree" or "so insignificant as to be unworthy of attention."

Oxford English

Dictionary (3d ed. 2008). Moreover, Berry disputes the completeness of Defendant's records
such that a genuine issue of material fact exists even as to how frequently Berry drove SUV's.
Accordingly, summary judgment is not appropriate.
IV.

Conclusion

For these reasons, the Court concludes that genuine issues of material fact exist that
preclude it from finding, as a matter of law, whether Berry is entitled to overtime protection
under the FLSA.
Accordingly,

records Defendants reference are incomplete.
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IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Doc. 96)
is DENIED.
IT IS FURTHER ORDERED that Plaintiff Mario Berry's Motion for Partial Summary
Judgment (Doc. 99) is DENIED.

.ROSS
ED STATES DISTRICT JUDGE
Dated this 29th day of March, 2016.

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