Fox v. Commonwealth Worldwide Chauffeured Transportation of NY, LLC

Filing 87

MEMORANDUM & ORDER: Commonwealth's 72 Motion for Summary Judgment is GRANTED in its entirety, Fox's 58 Motion to Certify a collective action under the FLSA is DENIED. The Clerk of Court is respectfully directed to close the case. So Ordered by Judge Nicholas G. Garaufis on 3/30/2012. (Lee, Tiffeny)

FILED

IN CLERK'S OFFICE
U S DISTRICT COURT E.D.N.Y.

* MAR 302012 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------------)(

BROOKLYN OFFICE

KENNETH FO)(, on behalf of himself
and others similarly situated,

MEMORANDUM & ORDER
Plaintiffs,

08-CV-1686 (NGG) (RML)
-againstCOMMONWEALTH WORLDWIDE
CHAUFFEURED TRANSPORTA nON
OF NY, LLC, and D&S AUTO LEASING, LLC,
Defendants.

--------------------------------------------------------------------)(
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Kenneth Fox filed this putative class action against his former employer,
Commonwealth Worldwide Chauffeured Transportation of NY, LLC ("Commonwealth"), in
2008. 1 Fox worked as a chauffeur for Commonwealth, and alleges that while he was there
Commonwealth failed to pay him and other chauffeurs the full amount of overtime they were
entitled to receive under federal and state employment law. Fox also raises solely individual
claims related to his separation from Commonwealth in March 2008.
In January 201 I, Fox moved to certifY a "collective action" under § 16(b) of the Fair

1 In a subsequent amended complaint Fox added D&S Auto Leasing, LLC ("D&S") as a
defendant. (See Docket Entry # 44.) Although technically incorporated as a separate entities, for the
purposes of this action D&S and Commonwealth are one and the same. Commonwealth operates the
business-apparently including hiring and firing employees-while its affiliate, D&S, owns the much of
its vehicle fleet and signs the chauffeurs' paychecks. (Defs.' Local Rule 56.1 Statement of Facts '11'11 4, 12
(Docket Entry # 73); Fox Dep. (Docket Entry # 75, Ex. 3) at 55-56.} Whatever the tax, insurance, or
liability limiting benefits this arrangement may hold for the companies' principals, both D&S and
Commonwealth are named defendants in this action and the court will refer to them in the singular as

"Commonwealth. "

I

Labor Standards Act ("FLSA"), 29 U.S.C.A. § 216(b) (West 1998). While that motion was
pending, Commonwealth moved pursuant to Rule 56 of the Federal Rules of Civil Procedure fot
summary judgment on all of Fox's claims, arguing, inter alia, that Fox is covered by the "motor
carrier exemption" to the statutory provisions underlying his overtime claims. For the following
reasons, the court GRANTS Commonwealth's motion for summary judgment
and-necessarily-DENIES Fox's motion for certification.

I.

BACKGROUND
The following facts are not in dispute.
Commonwealth is a New York City area car service? (Defs.' Local Rule 56.1 Statement

of Facts ("Statement of Facts") (Docket Entry # 73) ~~ 1,2.) It provides "luxury" chauffeured
transportation to and from locations inside and outside of the City.

C!iL) Commonwealth

sometimes takes passengers to destinations outside of the State of New York. (Id.

~

2) With the

possible exception of its New Yark to Boston service, ~ supra note 2, Commonwealth operates
without fixed routes. (Statement of Facts ~ 2.) Instead, Commonwealth's customers reserve
vehicles in advance-although sometimes immediately in advance-and tell Commonwealth
where they want to go.

C!iL; 1st Rutter Aff. (Docket Entry # 75, Ex. 15) ~ 12.) Some customers

contact Commonwealth through stands that it maintains at certain New York City hotels and La
Guardia airport, but most make reservations over the telephone. (Statement of Facts ~ 3; 1st
Rutter Aff.

~

12.) Commonwealth does not allow its drivers to "cruise" for customers. (1st

2 According to its website, Commonwealth-although separately incorporated-is the New York
branch of a Boston-based car service that shares its name. Commonwealth Worldwide Chauffeured
Transportation, available at http://www.commonwealthlimo.com (last visited Nov. 28, 2011). Among
the services offered by these companies is transportation between New York City and Boston. III

2

Rutter Aff.

~

12; Fox Aff. (Docket Entry # 80) ~ 6.)

Commonwealth's fleet is high-end. A "Fleet Census" from 2008 shows that the majority
of Commonwealth's vehicles are late-model Lincoln Town Cars. (1st Rutter Aff., Ex. 2.) The
company also owns a number of brand new Cadillac DTS, several full size Mercedes, a Bentley,
and a Rolls Royce. (!QJ Importantly for the purposes of this case, Commonwealth counts
among its fleet over 40 SUVs and vans. 3 (Id.) The vast majority of the SUVs are Chevrolet
Suburbans (id.), each of which has a seating capacity of nine people. (1st Rutter Aff., Ex. 6.)
The vans are either Ford E250s or E350s, both of which can safely carry eight or more people.
(Id.)
Commonwealth has a United States Department of Transportation ("USDOT") Number
and a Federal Motor Carrier Safety Administration ("FMC SA") Certificate. (I st Rutter Aff., Ex.
3.) The FMCSA is a separate administration within USDOT. According to the FMCSA's
website, the agency's main purpose "is to prevent commercial motor vehicle-related fatalities and
injuries." FMC SA, available at http://www.fmcsa.dot.gov(lastvisited Nov. 29, 2011).
Although-as discussed infra-the term of art,"commercial motor vehicle," applies to a variety
of cars, vans, buses, and trucks, the website indicates that FMCSA is primarily focused on
regulating large trucks and buses. Id. As part of this effort, the agency sets and enforces safety
standards for commercial motor vehicles, their drivers, and the companies that operate them. Id.

3 Dawson Rutter, President of Commonwealth, states in a 2008 affidavit that "approximately
39% of the vehicles or in our fleet are rated as suitable for transporting more than eight passengers,
including the driver." (1st Rutter Aff. 1 4.) The court's own analysis of the 2008 Fleet Census arrives at
a result closer to 36 percent. In either case, it appears that during the time Fox drove for Commonwealth,
somewhere between a third and two-fifths of the fleet were larger vehicles capable of carrying eight or
more people.

3

Acquiring a USDOT number is one of the first steps a company takes when it submits to
regulation by the FMCSA, id., and a FMC SA Certificate appears to be a document verifying that
a company has registered with the agency and that it carries the requisite amount of insurance
(see I st Rutter Aff., Ex. 3).
Commonwealth bills its customers in one of two ways: it either charges a flat fee, which
is based on the mileage and expected duration of the trip; or it charges by the hour. (I st Rutter
Aff.

~

15.) Commonwealth also asks customers to pay an additional amount in the form of a

"service charge" for the drivers. 4 (2nd Rutter Aff. (Docket # 86, Ex. 16) ~ 11; Fox Aff. ~ 11.)
Usually amounting to around 15 or 20 percent of the rest of the bill, the service charge is paid to
Commonwealth, (2nd Rutter Aff.
paycheck.

~

9). which then fully remits it to the driver in his next

iliL ~ 11.)

Drivers are also paid an hourly rate.

iliL ~ 8.) For any additional hour a driver works

over 40 hours, he receives time-and-a-half. (Id.

~

13; Fox Aff.

~~

11,12.) The service charge

remitted to drivers, however, is not factored into the drivers' overtime rates. (Id. ~ 12; Fox Aff.
~

12.) In the language of the FLSA, it is not considered part of their "regular rate." See generally

29 U.S.C.A. § 207 (West 1998). The drivers still receive the service charge, but it is the same

4 Commonwealth maintains that this charge is actually a "tip," which customers may and
sometimes do decline to pay. Its president asserts that around June 2008 the company changed the
wording of its invoices to claritY that customers are not obligated to pay extra on the driver's behalf.
(2nd Rutter Aff. ~ II.) According to Rutter, Commonwealth replaced the term "service charge" with
"recommended tip." iliD But Commonwealth's self-designations have little bearing on whether the
charge is, for the purposes of the FLSA, a "tip"; and, even if they did, there is no question that during the
relevant time period Commonwealth's invoices included an item labeled "service charge," and did not
mention the word "tip." (lQ.; Fox Aff. ~ II.) For these reasons, the court refers to the amount
Commonwealth billed to customers on behalf of its drivers as a "service charge."

4

regardless of whether the driver is working his first or his forty-first hour of the week.'
Commonwealth hired Fox as a chauffeur in November 2007. (1st Rutter Aff. ~ 3; Fox
Aff. ~ I.) While he worked at Commonwealth, Fox was paid $7.50 an hour (2nd Rutter Aff.
~ 13; Fox Aff. ~ II) to drive five passenger sedans, vans and SUVs, (Fox Aff. ~ 10). His hourly

rate increased to $11.25 when he worked overtime. (2nd Rutter Aff.

~

13; Fox Aff.

~

12.)

Commonwealth's records show that Fox drove sedans for the majority of the 154 trips he made
while employed (1st Rutter Aff., Ex. 6; see also Fox Aff.

~

10), but that he drove an SUV or a

van on approximately twenty-three of his trips' (1st Rutter Aff., Ex. 6). On some of his trips Fox
would cross state lines. (Statement of Facts ~ 16.)
When Fox started work, he authorized Commonwealth to conduct a background check
through a private consumer reporting agency, First Advantage.

<l!L ~ 17;

Fox Dep., Ex. II

(Docket Entry # 75, Ex. 5).) The day after Fox signed the authorization form, First Advantage
ran his background check. (See Fox Dep., Ex. 12 (Docket Entry # 82, Ex. 6).) The background
check revealed that in 1999 Fox pled guilty in New York state court to two misdemeanors:
Criminal Solicitation in the Fourth Degree and Conspiracy in the Fifth Degree.7 (ld.) It also

, For example, at the beginning of the work week, a driver at Fox's pay grade (see infra) would
receive $22.50 ($7.50 x 3) plus the service charge for a three hour trip, and $33.75 ($11.25 x 3) plus the
same service charge for the same trip at the end of the week if he had already worked 40 hours.
, One time Fox drove a limousine. (I st Rutter Aff., Ex. 6) The record does not indicate how
many passengers the limousine could transport.
7

In New York:

a person is guilty of conspiracy in the fifth degree when, with intent that conduct
constituting:
(I) a felony be performed, he agrees with one or more persons to engage in or
cause the performance of such conduct; or
(2) a crime be performed, he, being over eighteen years of age, agrees with one
5

showed that for each crime Fox was sentenced principally to sixty days imprisonment.

iliU Fox

does not dispute the accuracy of the background check.
Commonwealth did not look at Fox's background check immediately, but noticed it in
early March 2008 when conducting-what appears to have been-a routine audit. (2nd Rutter
Aff., IS.) On March 6, an official at Commonwealth told Fox that he was being taken off the
road because of the background check. (Statement of Facts, 23.) He instructed Fox to contact
Commonwealth's human resources department to further discuss the matter. (I d.)
Four days later Fox sent a letter to Commonwealth's human resources department in
Boston, in which he asserted that his employment had been "terminated." (!Q" 26.) Through
his letter, Fox requested that Commonwealth provide its reasons for allegedly firing him and also

or more persons under sixteen years of age to engage in or cause the performance of such
conduct."
N.Y. Penal Law § 105.5 (McKinney's 2009).

A person is guilty of criminal solicitation in the fourth degree when:
(I) with intent that another person engage in conduct constituting a felony, he
solicits, requests, commands, importunes or otherwise attempts to cause such other
person to engage in such conduct; or
(2) being over eighteen years of age with intent that another person under sixteen
years of age engage in conduct that would constitute a crime, he solicits, requests,
commands, importunes or otherwise attempts to cause such other person to engage in
such conduct.
Id. § 100.5.
The background check did not contain-and Fox quit before Commonwealth could inquire
about-the details surrounding the convictions. Through discovery, however, it was revealed that
charges related to a family dispute arising originally from Fox's service as executor of his mother's
estate. In apparent contravention ofa Surrogate Court order, Fox transferred some of the estate's assets
out of the country and refused to repatriate them. (Statement of Facts 1 34.) Held in contempt of court,
Fox served over two years in jail, and, while incarcerated, discussed with an uncover police officer the
possibility of hiring a hit man to beat or kill his brother. C!J!, 1 35; see also Fox Dep., Exs. 32-35 (Docket
Entry # 84, Ex. 12).) The two misdemeanors identified in the background check stemmed from these
discussions. (Fox Dep. at 36.)

6

a copy of the background report.

<!It)

He referenced New York's Correction Law, which limits

employers' ability to fire employees on the basis of prior criminal convictions.

<!It; Fox Dep.,

Ex. 13 (Docket Entry # 77, Ex. 7).) A member of Commonwealth's human resources department
soon replied. (Statement of Facts ~~ 27, 28.) She wrote to Fox that Commonwealth had decided
to "pull you ofT the road" because "our first priority is to protect our clients."

<!It ~ 28; Fox

Dep., Ex. 14 (Docket Entry # 83, Ex. 8).) Among other items included with the letter were a
copy of the background check and a form summarizing his rights under the Fair Credit Reporting
Act. (Statement of Facts ~ 27.) A short time later, Fox's counsel wrote to Commonwealth
essentially reiterating the contents of Fox's letter.

<!It ~ 29.)

Counsel also asserted that Fox was

terminated, but noted that Fox had not been given written notice of termination as required by
New York's Labor Law. (Ex. \3 to Fox Dep.) He also directed Commonwealth's attention to
the Correction Law.

<!It)

Commonwealth responded with the same packet of information that it

had originally sent to Fox. (Statement of Facts ~ 30.)
About a month later, Fox filed suit. He alleged that Commonwealth violated the FLSA
and New York's parallel statute, the Labor Law, by omitting to include the service charge in its
calculation of his and other drivers' overtime rates. (Com pI. (Docket Entry # I) ~~ 31,49,59.)
Fox also asserted that Commonwealth had fired him, and alleged that this action was an unlawful
discriminatory practice for the purposes of New York's Human Rights Law ("NYHRL").
(Compl.

~

68.) Following several amendments to the complaint, (see I st Am. Compl. (Docket

Entry # 5); 2d Am. Compl. (Docket Entry # 44», Fox added a claim under the Fair Credit
Reporting Act ("FCRA"). (See 2d Am. Compl.

~

78).

On January 23, 2011, Fox moved for conditional certification a collective action under
7

§ 16(b) of the FLSA, a ruling that would allow Fox to also assert the overtime claims of similarly
situated employees of Commonwealth. The court has deferred ruling on the Fox's motion until
now so as to allow Commonwealth to file its potentially dipsositive motion for summary
judgment. That motion was filed fully briefed on September 23, 2011.

II.

DISCUSSION
Motion for Summary Judgment
Commonwealth argues that there is no genuine dispute about the facts material to its

defenses to Fox's overtime claims.' Likewise, it contends that the facts material to Fox's
NYHRL and FCRA claims are not genuinely disputed. Commonwealth argues that, based on
these established facts, it is entitled to judgment as a matter of law on its defenses and Fox's
claims. Specifically, Commonwealth argues that the undisputed facts of the case show that,
during his time at Commonwealth, Fox fell within two exemptions from the FLSA and Labor
Law provisions that underlie Fox's overtime claims. It further contends that Fox has failed to
produce evidence probative of a necessary element to his FCRA claim, and that his NYHRL
claim is similarly without factual support.
"The court shall grant summary judgment [on a particular claim or defense1if the movant
shows that there is no genuine dispute as to any material fact [regarding that claim or defense1
and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). A fact is
material if it could affect the resolution of a claim or defense under controlling law. Anderson v.
Liberty Lobby, Inc, 477 U.S. 242, 248 (1986). A dispute-or issue-about a fact is genuine if

, Commonwealth also argues in the alternative that, if it were not entitled to summary judgment
on its affirmative defenses, it would still be entitled to summary judgment on Fox's underlying FLSA and
Labor Law overtime claims.
8

there is evidence that would allow a reasonable jury to resolve the dispute in favor of the
nonmoving party. See id. Where the burden of persuasion on a given claim or defense lies with
the nonmoving party, the movant can meet the Rule 56(a) standard by simply pointing out the
nonmoving party's failure to produce enough evidence to put the existence of a material fact into
dispute. See Celotex v. Catrett, 477 U.S. 317, 322 (1986). Where the burden of persuasion on a
claim or defense lies with the moving party, the movant must produce enough evidence to
establish, beyond genuine dispute, all of the facts needed to prove that claim or defense.
The court first addresses Commonwealth's defenses to Fox's FLSA and New York
Labor Law claims for allegedly unpaid overtime wages. Commonwealth argues that it is not
liable to Fox for any unpaid overtime because Fox was covered by the FLSA's "motor carrier
exemption" and "taxicab exemption." These are affirmative defenses, the elements of which
Commonwealth would have to prove at trial. See Bilyou v. Dutchess Beer Distribs., 300 F.3d
217, 222 (2d Cir. 2002).
The motor carrier exemption is one of several exceptions to the overtime protections
found in section 7 of the FLSA, 29 U.S.C.A. § 207 (West 1998). It applies to "any employee
with respect to whom the Secretary of Transportation has power to establish qualifications and
maximum hours of service pursuant to the provisions of section 31502 of Title 49." Id.

§ 213(b)(I). The purpose of the motor carrier exemption is to avoid subjecting employers to
overlapping regulatory regimes. See Levinson v. Spector Motor Serv., 330 U.S. 649, 661 (1947).
If the Secretary of Transportation is authorized under the Motor Carrier Act to set maximum
work hours for an employee, then the FLSA's overtime provisions do not apply to that employee.
Importantly, it is the existence of the power to set to set maximum hours, not its actual
9

exercise, that triggers the motor carrier exemption. See id.; Morris v. McComb, 332 U.S. 422,
434 (1947); Bilyo!!, 300 F.3d at 299. Thus, the fact that the Secretary of Transportation has not
yet, and possibly never will, set maximum service hours for Commonwealth's chauffeurs is
irrelevant for the purposes of the exemption; what matters is whether the Secretary could
prescribe such requirements.
Determining whether a particular employee is subject to the Secretary of Transportation's
authority to set maximum work hours can be complicated. Section 31502(b) of Title 49 allows
the Secretary to establish maximum work hours for "employees of ... a motor carrier." But
reference to this section alone is not sufficient.
To begin with, the Secretary of Transportation's power to prescribe maximum service
hours under this section is limited, in relevant part, to employees of motor carriers involved in
transportation of passengers or property between a place in a state and another state. See 49
U.S.C.A. § 31502(a)(l) (West 2007) (incorporating by reference the Secretary's general
jurisdictional limits set out in 49 U.S.C. § 13501).
Next, "motor carrier" is a term of art. Today it means "a person providing motor vehicle
transportation for compensation." See id § 31501 (stating that, for the purposes of § 31502,
"motor carrier" has the same meaning as that provided in 49 U.S.C. § 13102); 49 U.S.C.A.

§ 13102(14) (West Supp. 2011) (reflecting amendments made by § 305(c) of the SAFETEA-LU
Technical Corrections Act of2008). But in 2007 and early 2008, when Fox drove for
Commonwealth, motor carrier meant "a person providing commercial motor vehicle

10

transportation for compensation."· See 49 V.S.C.A. § 13102(14) (West 2007) (emphasis added).
"Commercial motor vehicle" is itself a term of art, defined to mean:
a self-propelled or towed vehicle used on the highways in interstate commerce to
transport passengers or property, if the vehicleA.
has a gross vehicle weight rating or gross vehicle weight of at least
10,001 pounds, whichever is greater;
B.
is designed to or used to transport more than 8 passengers
(including the driver) for compensation;
C.
is designed or used to transport more than 15 passengers, including
the driver, and is not used to transport passengers for
compensation; or
D.
is used in transporting material found by the Secretary of
Transportation to be hazardous under section 5103 of this title and
transported in a quantity requiring placarding under regulations
prescribed by the Secretary under section 5103.
Id. § 31132( I) (emphasis added). Thus, at the time Fox drove for Commonwealth, the Secretary
of Transportation had the power to set the maximum service hours of employees of persons who
provided transportation for compensation, if the vehicles they used: (I) traveled on the highways
in interstate commerce; and (2) weighed over 10,001 pounds, were designed to transport more
than 8 passengers including the driver, or carried hazardous material.'o

• In June 2008, after Fox left Commonwealth, Congress removed the word "commercial" from
the definition of "motor carrier" provided in 49 U.S.c. § 13102. See SAFETEA-LU Technical
Corrections Act of2008, Pub. L. No. 11-244 § 305(c), 122 Stat. 1572 (2008). But the SAFETEA-LU
Technical Corrections Act have not been given retroactive effect, see Benoit v. Tri- Wire Engineering
Solutions. Inc., 612 F. Supp. 2d 84,89-90 (D. Mass. 2009); Vidinliev v. Carey Int'1. Inc, 581 F. Supp. 2d
1281, 1291 (N.D. Ga. 2008), and so the court will apply the motor carrier exception as it existed during
the time of Fox's employment.
The court notes that, when Fox drove for Commonwealth, the Secretary of Transportation's
relevant jurisdiction was somewhat redundantly defined. The Secretary's power to set maximum hours
was limited to motor carriers engaged in interstate commerce, ~ 49 U .S.C.A. § 31502(a) (West 2007)
(incorporating by reference jurisdictional limits set out in 49 U.S.C. § 1350 I), but a person could qualif'y
as a "motor carrier" only if his vehicles was used in interstate commerce, see id. § 3150 I (incorporating
by reference definition of motor carrier found in 49 U.S.c. § 131 02( 14), which incorporated by reference
definition of commercial motor vehicle found in 49 U.s.c. § 31132( I)). Thus, technically, the Secretary
had jurisdiction over entities providing transportation in interstate commerce with vehicles used to
'0

II

Finally, the term "employee" has a specialized meaning in the context of § 31502.
Although not statutorily defined,l1 cf. id. § 31501 (defining terms for Chapter 315 of Title
49), the term was long ago construed by the Supreme Court as referring only to those workers
"whose activities affect the safety of operation" of vehicles used in interstate transportation, ~
Dauphin v. Chestnut Ridge Transp .. Inc., 544 F. Supp. 2d 266, 273 (S.D.N.Y. 2008) (citing
Pyramid Motor Freight Corp. v. Ispas~ 330 U.S. 695, 698 (1947); United States v. Am. Trucking
Ass'ns. Inc., 310 U.S. 534, 553 (J 940)); see also 29 C.F.R. § 782.2 (Department of Labor rule
interpreting the Secretary of Transportation's power as limited to motor-carrier workers who
"engage in activities of a character directly affecting the safety of operation of motor vehicles in
the transportation on public highways of passengers or property in interstate or foreign commerce

provide transportation in interstate commerce. The 2008 amendment to 49 U.S.c. § 13102( 14) (see
supra note 9) corrects this inelegancy.
11 A definition for the term "employee" does appear elsewhere in Title 49. For the purposes of
Subchapter III of Chapter 311, an "employee" is:

an operator ofa commercial motor vehicle (including an independent contractor when
operating a commercial motor vehicle), a mechanic, a freight handler, or an individual
not an employer, who--A.
directly affects commercial motor vehicle safety in the course of
employment; and
B.
is not an employee of the United States Government, a State, or a
political subdivision of a State acting in the course of employment by the
Government, a State, or a political subdivision of a State.
49 U.S.C.A. § 31132 (West 2007). Applying the maxim of expressio un ius exclusio alterius, however,
the court concludes that this definition is limited to Chapter 311 and therefore non-binding as to § 31502,
which is in a different chapter, Chapter 315, of Title 49. Cf. TVA v. Hill, 437 U.S. 153, 188 (1978)
(interpreting the inclusion of one hardship among a list of statutory exceptions to mean the exclusion of
another un-listed hardship from the list). It notes, however, that, because the Chapter 311 definition is
almost identical to the judicial construction the term "employee" as used § 31502, reliance on the
Chapter 311 definition would yield the same outcome as to Fox.

12

within the meaning of the Motor Carrier Act,,).12
There are four broad categories of workers whose duties are said to directly affect the
safety of vehicle operation: drivers, mechanics, loaders, and helpers of the first three. See
Levinson, 330 U.S. at 673. The Secretary of Transportation, with his or her specialized
knowledge, is charged with designating which classes of workers directly affect safety, but it is
for the courts to determine whether a particular worker falls within such a classification. Cf.
Pyramid Motor Freight Corp., 330 U.S. at 707 (recognizing the power of the Interstate
Commerce Commission, which was formally empowered under what is today § 315102, to
establish safety-affecting classes of workers). A worker need not spend all of his or her time on
activities related to one of these categories, but such duties must actually affect the safety of
operating vehicles in a non-trivial way. See id. at 707-08. What matters is the degree to which a
worker's activities affects safety, not the amount of time the worker spends on that activity. See
Levinson, 330 U.S. at 674-75.
The same is true wit\"! respect to a worker's involvement in interstate transportation. As
long as interstate transportation "constitutes a 'natural, integral, and inseparable part'" of a
worker's activities, the interstate transportation requirement is met. Dauphin, 544 F. Supp. 2d at
274 (quoting Morris, 332 U.S. at 433). In the case ofa driver, interstate transportation is a

12 Of course, because the motor carrier exception tracks the Secretary of Transportation's
regulatory authority, it would be the USDOT's rules- not the those of the Department of Labor-that
could potentially bind the court's construction of the exemption. See Levinson v. Spector Motor Serv.,
330 U.S. 649, 676-77 (1947). Nevertheless the Department of Labor's interpretation "is entitled to
respect to the extent that it has the 'power to persuade. '" Dauphin v. Chestnut Ridge Transp .. Inc., 544
F. Supp. 2d 266, 273 n. 2 (S.D.N.Y. 2008) (quoting Christensen v. Harris County, 529 U.S. 576, 587
(2000»; see also Baez v. Wells Fargo Armored Servo Corp., 938 F.2d 180, 181-82 (11th Cir. 1991)
(adopting the standard set out in 29 C.F.R. § 782.2 as the law of the Eleventh Circuit).
13

"natural, integral, and inseparable" part a worker's duties if the worker "is likely to be called on
to perfonn interstate travel," irrespective of how many hours the worker actually devotes to
affecting the safety of vehicles engaged in interstate transportation. Id. (citing Morris, 332

u.s.

at 433). Thus, at least one court has held that the interstate transportation requirement was met
with respect to certain limousine drivers based solely on evidence that the drivers could have
been assigned to drive out-of-state. See Vidinliev v. Carey In!'1, Inc., 581 F. Supp. 2d 1281,
1287 (N.D. Ga. 2008).
There remains one possible additional requirement for a worker to qualifY as an
"employee·' for the purposes of § 31502: that the worker's duties involve work on a "commercial
motor vehicle," as that tenn is defined in 49 U.S.C. § 31 132(a). In many cases, an employer will
operate both commercial motor vehicles and non-commercial motor vehicles-it will field a
so-called "mixed fleet." Its use of the fonner to provide transportation for pay will render it a
motor carrier for the purposes of § 31502, but it is possible that some of its safety-affecting
workers never work on commercial vehicles. This could be the case where, for example, an
employer has two divisions--one operating commercial motor vehicles and one operating noncommercial motor vehicles--each with a separate workforce. The question is: whether workers
whose employer is undoubtably a motor carrier because of its operation of commercial motor
vehicles must be personally involved with the operation of such vehicles to qualifY as
"employees" under § 31502.
This is a relatively new and limited issue because, prior to 2005, the tenn "motor carrier"
was not defined by reference to commercial motor vehicles, see 49 U .S.c. § 131 02( 12) (2000),
and, as discussed, after 2008, the reference was again dropped (see supra note 9). But, for the
14

time period relevant to this case, motor carriers were defined in part by their use of commercial
motor vehicles, and so the court must determine whether a worker's status as an "employee" also
turned the use of such vehicles.
The courts have split on the issue, but the majority of those that have considered it favor
requiring at least some nexus between an individual worker's duties and the use of commercial
motor vehicles. See. e.g., Averv v. Chariots For Hire, 748 F. Supp. 2d 492, 499-501 (D. Md.
2010); Daulton v. Sabo, No. 09-CV-358 (AA), 2010 WL 1325613, at *3 (D. Or. Apr. 1,2010);
Brooks v. Halsted Commc'ns, 620 F. Supp. 2d 193,202 (D. Mass. 2009); Hernandez v. Brink's.
Inc., No. 08-CV-20717, 2009 WL 113406, at *5

(S.~.

Fla. Jan. 15,2009); Vidinliev, 581 F.

Supp. 2d. at 1292. But see Tidd v. Adecco USA. Inc., No. 07-CV-11214 (GAO), 2008 WL
4286512, (D. Mass. Sept. 17,2008) (holding that individual workers may still be "employees"
regardless of whether they have any connection to commercial motor vehicles).
It makes sense to follow the majority rule. For one thing, a contrary position would

potentially allow employers to have bought a single commercial motor vehicle for the sole
purpose of triggering the motor carrier exemption. See Brooks, 620 F. Supp. 2d at 202-03;
Vidliniev, 581 F. Supp. 2d. at 1294. Another reason is that requiring a worker-by-worker nexus
is consistent with Supreme Court case law requiring that motor carriers demonstrate each
worker's relationship to interstate transportation before availing themselves of the exemption.
See Morris, 332 U.S. at 423-441 (inquiring into individual truck drivers' connection to interstate
transportation notwithstanding the fact that their employer was clearly involved in interstate
transportation).
Accordingly, the court holds that, during the time that Fox drove for Commonwealth, a
15

motor-carrier worker was not an "employee" for the purposes of § 31502 unless that worker's
duties were related to the operation of a commercial vehicle, as that term is defined in 49 V,S.c.

§ 31132(a). The court holds that, as with the requirements that workers' duties affect safety and
interstate transportation, it is the character of a worker's commercial-vehicle-related activities,
not the quantity of them, that is dispostive. There is no minimum amount of time a motor carrier
worker needs to spend working on commercial motor vehicles; it is sufficient that a worker "is
likely to be called on" to work on a commercial vehicle.
In sum, for the purposes of § 31502 in 2007 and early 2008, an "employee" was a worker
whose duties directly affected the safety of operation of commercial vehicles used in interstate
transportation. If some aspect of the worker's duties affected safety in a non-de-minimus way
and it was likely that the worker would be called upon to perform these duties on a commercial
vehicle involved in interstate transportation, then that worker was an employee.
After reviewing the record, the court concludes that a reasonable juror would be
compelled to find all of the facts needed to establish the Secretary of Transportation'S power to
set Fox's maximum service hours. Indeed, almost all of these material facts are undisputed.
The evidence shows that Commonwealth was a motor carrier for the purposes of § 31502.
It is undisputed that Commonwealth used eight-plus-passenger SUVs and vans to take

passengers to and from destinations inside and outside the State of New York." The passengers

"The majority of Fox's briefon this issue is devoted to disputing Commonwealth's use of
commercial motor vehicles. (See Mem. of Law in Opp'n to Defs. Mot. for Summ. J. (Docket Entry # 78)
at 6-7.) He argues that "[n]owhere in their moving papers do Defendants contend that their vehicles
weigh 10,001 pounds or more." Mat 6.). This is true, but Fox ignores entirely that fact that vehicles
"designed to or used to transport more than 8 passengers (including the driver) for compensation," 49
U.S.C.A. § 31132(1 )(B)(West 2007), are also commercial motor vehicles for the purposes of § 315102.

16

paid for this service. Commonwealth thus provided commercial motor vehicle transportation for
compensation, and was a "motor carrier" as that term is defined in 49 U.S.C § 13202(14).
Fox's status as an "employee" is equally clear. As a full-time chauffeur who drove eightplus-passenger SUVs and vans, there is no question that Fox's duties directly affected the safety
and operation of commercial motor vehicles. And his trips with passengers across state lines
easily satisfies requirement of interstate transportation. i •
Because Fox was an "employee ... of a motor carrier," the Secretary of Transportation
had the power under 49 U .S.C. § 31502 to set his maximum service hours. He was therefore
exempt from the FLSA's overtime protections, and summary judgment is accordingly granted for
Commonwealth on its defense that the motor carrier exemption precludes liability on Fox's
FLSA claim."
Commonwealth is also entitled to summary judgment on its defense that the motor carrier

To the extent Fox could contend that there is no evidence that he drove commercial motor
vehicles in interstate transportation-that the record does not preclude the possibility that he only drove
commercial motor vehicles in-state-such an argument is foreclosed by the indisputable fact that he
could have been assigned to take such vehicles across state lines at any time. As the court has held, the
Secretary of Transportation's power to set employees' maximum service hours does not tum on motorcarrier workers' actual historical performance, but rather on whether such workers are "likely to be
called upon" to perform safety-affecting duties on commercial motor vehicles in interstate transportation.
The court concludes that, on this record, no reasonable juror could find that it was unlikely for Fox to be
called upon to perform such duties. Unrebutted affidavit testimony shows that Commonwealth's
chauffeurs could be called upon to drive any vehicle in the company's fleet, and that chauffeurs
frequently transported passengers to and from other states. (See 2nd Rutter Aff. (Docket # 86, Ex. 16),
7.) The only reasonable inference to draw from this evidence is that it would only be a matter of time
before Commonwealth assigned a chauffeur in Fox's position to drive a commercial motor vehicle across
state lines.
i.

" Because the court grants summary judgment for Commonwealth on its motor carrier
exemption defense, it need not consider Commonwealth's alternative defense based on the "taxicab
exemption," 29 U.S.C.A. § 213(b)(17)(West 1998).

17

exemption precludes liability under New York's Labor Law. The New York State Department of
Labor takes the position that the overtime provisions contained in that law expressly incorporate
the FLSA's exemptions, see 12 N.Y.C.R.R. § 142-2.2. Federal courts have followed the
Department's guidance, applying FLSA exemptions to state Labor Law claims. See. e.g., Torres
v. Gristede's Operating Com., 627 F. Supp. 2d 447, 456 n.4 (S.D.N.Y. 2008). This includes the
motor carrier exemption. See Khan v. 181 Armored Servs., 474 F. Supp. 2d 448, 450 & n.1
(E.D.N.Y.2007). Because Fox was subject to the FLSA's motor carrier exemption, he is also
exempt from the Labor Law's overtime protections.
The court next addresses Commonwealth's argument that Fox's has failed to raise triable
issue of fact about one or more elements of his FCRA and NYHRL claims. With respect to the
FCRA claim, Commonwealth contends that there is no evidence in the record from which a
reasonable juror could find that it acted with the required mental state. As for the NYHRL claim,
it argues, among other things, that Fox could not have suffered employment discrimination
because he was never SUbjected to an adverse employment action.
The relevant provision of the FCRA states:
[Iln using a consumer report for employment purposes, before taking any adverse
action based in whole or in part on the report, the person intending to take such
adverse action shall provide to whom the report relates(i) a copy of the report; and
(ii) a description in writing of the rights of the consumer under this
title ....
15 U.S.C. § 168Ib(b)(3)(A). An employer's failure to comply with this provision, however, is
not by itself eriough to trigger civil liability to a private plaintiff. Instead, to recover for a
violation of the statute, a plaintiff must show either: (I) that the failure was willful, id. § 1681n;

18

or (2) that the failure was a result of negligence and that the plaintiff sustained actual damages,
id. at § 16810. See also Thibodeaux v. Rupers, 196 F. Supp. 2d 585, 591 (S.D. Ohio) (holding
that § 1681b is not strict liability statute).
The court does not need to determine whether Commonwealth complied with
§ 1681 b(b )(3) because Fox has not pointed to any evidence in the record indicating that any
failure to comply-if one occurred-was willful or negligent. Indeed, the complaint fails to even
allege these elements in a non-conclusory fashion. (Cf. 2d Am. Compl.

~

79 ("Defendants have

violated the Fair Credit Reporting Act willfully").) Fox's FCRA claim accordingly fails as a
matter oflaw, and Commonwealth is entitled to summary judgment. 16
In relevant part, the Human Rights Law makes it "an unlawful discriminatory practice for
any ... corporation ... to deny ... employment to any individual by reason of his or her having
been convicted of one or more criminal offenses ... when such denial is in violation of article
twenty-three-A of the correction law." N.Y. Exec. Law § 296(15) (McKinney's 2010). Article
23A of the Correction Law, in tum, states in relevant part that:
[n]o application for ... employment ... shall be denied by reason of the
applicant's having been previously convicted of one or more criminal
offenses ... unless:
(I) there is a direct relationship between one or more ofthe previous
criminal offenses and the specific ... employment sought; or
(2) the ... granting of employment would involve an unreasonable risk to
property or to the safety or welfare of specific individuals or the general
public.
N.Y. Correct. Law § 752 (McKinney's 2010). Any person "aggrieved by an unlawful

discriminatory practice" may sue in a court of competent jurisdiction. N.Y. Exec. Law § 297(9)

16 The court also notes that there is no evidence that Fox suffered any actual damages as a result
of any FCRA violation.

19

(McKinney's 2010).
The parties disagree about the elements of a claim for employment discrimination based
on the Correction Law. Commonwealth argues that, because the text of the law itselfrefers only
to the "deni[alJ" of "employment," a plaintiff in Fox's position must establish that he was fired to
recover under the Human Rights Law. Fox maintains that he needs to only demonstrate an
"adverse employment action"-arguably something short of outright termination.
The court need not decide the issue. Fox is correct that several federal courts have
construed employment discrimination claims arising under various provisions ofthe Human
Rights Law as akin to those arising under federal civil rights laws, and accordingly extended the
Human Rights Law's reach to "adverse employment actions." See, e.g, James v. N.Y. Racing
Ass'n, 233 F.3d 149, 151, 153-54 (2d Cir. 2000) (addressing NYHRL and federal Age
Discrimination in Employment Act claims together under the same framework); Obabueki v.
IBM, 245 F. Supp. 371, 380 (S.D.N.Y. 2001) (applying James framework to NYHRL claim
based on the Correction Law). That such an interpretation seems at odds with the plain language
ofthe Correction Law is an issue for the courts of the State of New York. It is not dispositive
here because the undisputed facts of this case fail to establish that Fox suffered any "adverse
employment action," let alone was fired.
The Second Circuit has defined an adverse employment action as follows:
A plaintiff sustains an adverse employment action if he or she endures a
materially adverse change in the terms and conditions of employment. An
adverse employment action is one which is more disruptive than a mere
inconvenience or an alteration of job responsibilities. Examples of materially
adverse changes include termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices unique to a
20

particular situation.
Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) (citations and internal quotation marks
omitted). Importantly, there is a temporal aspect to determining whether an employment action
constitutes "a materially adverse change in the terms and conditions of employment." Short-term
suspensions pending investigations into wrongdoing generally do not, without more, work an
materially adverse change to the terms and conditions of employment. See id. at 91, 92; see also
id. at 90-91 (citing Singletary v. Mo. Dep't ofCorr., 423 F.3d 886, 889, 892 (8th Cir. 2005);
Peltier v. United States, 388 F.3d 984, 988 (6th Cir. 2004); Von Gunten v. Maryland, 243 F.3d
858, 869 (4th Cir. 2001); Breaux v. City of Garland, 205 F.3d 150, 154-55, 158 (5th Cir. 2000)).
This is because the terms and conditions of employment usually account for disciplinary action
"in appropriate circumstances." Id. at 91 (citing Von Gunten, 243 F.3d at 869).
Obviously, repeated suspensions or "[a]n exceptionally dilatory investigation" could
constitute adverse employment action, see id. at 92, but that is not what occurred here. Instead,
the record shows that Fox's suspension was not more than four-days old before he-not
Commonwealth--ended the employment relationship. Immediately after Commonwealth
informed Fox that he was suspended pending his communication with the human resources
department, Fox left work and, four days later, sent a letter to the human resources department
accusing Commonwealth of firing him. Although Commonwealth did not concede the
point-responding that Fox had merely been "pulled off the road"-Fox never returned to work
or otherwise sought reinstatement.
The suspension was not only short, it was also justified by the need to investigate Fox's
past convictions. By allowing for termination where an employer finds that its employee's prior
21

conviction impacts safety, the Correction Law anticipates that employers wi1l investigate the
circumstances surrounding employee convictions when the convictions are discovered. The
court declines to read into the Correction Law a requirement that employers keep
previously-convicted employees on the job while they conduct a statutorily-permitted
investigation into their prior conviction. It was thus entirely reasonable for Commonwealth to
suspend Fox for a short time while it looked into his convictions.
As with the employment situations discussed in the cases cited above, the terms and
conditions of Fox's job at Commonwealth included the possibility of a temporary suspension if
Commonwealth discovered a prior conviction. As such, Fox was not subject to an adverse
employment action, and his Human Rights Law claim fails even under his preferred construction.
Commonwealth is entitled to summary judgment.
Motion for Conditional Certification of a Collective Action
Because summary judgment is granted for Commonwealth on its defense to Fox's FLSA
claim, Fox's motion to conditionally certify a collective action under that statute is denied.
III

CONCLUSION
For the foregoing reasons, Commonwealth's motion for summary judgment is

GRANTED in its entirety, Fox's motion to certify a collective action under the FLSA is
DENIED. The Clerk of Court is respectfully directed to close the case.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York
March·it>,2012 •

NiCHOLAS G. GARAUFIS
United States District Judge

22