NANETTE K. LAUGHREY, District Judge.
Plaintiffs Shannon Graham, Jason Street, and all others similarly situated ("Plaintiffs") have sued Defendant Town & Country Disposal of Western Missouri, Inc., for violation of the Federal Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219 (2006). Pending before the Court are cross-motions for summary judgment [Docs. ## 141, 143]. For the following reasons, the Court denies Plaintiffs' motion for partial summary judgment [Doc. # 143] and grants Town & Country's motion for summary judgment [Doc. # 141].
Town & Country operates a for-hire motor carrier business based in Harrisonville, Missouri, that has contracts with cities, residents, and homeowners' associations in Kansas and Missouri to collect trash. All of Town & Country's trash trucks are registered with the United States Department of Transportation ("DOT"), and all the trucks display Town & Country's DOT number. Town & Country is subject to inspections and audits by the DOT's Federal Motor Carrier Safety Administration ("FMCA"),
Town & Country hired Plaintiffs as "throwers" working on its trash trucks for various periods of time between December 14, 2007 and December 14, 2010, having employed 170 individuals as throwers during that interval. Id. at 7. Throwers sometimes were assigned to a particular route,
As throwers, Plaintiffs were responsible for placing trash in the truck and for working with a driver, who was in charge of the truck. Id. at 11. Plaintiffs communicated with the driver through the use of hand signals. Id. at 13. As the trucks progressed along their routes, Plaintiffs were responsible for operating the truck's trash compacter mechanism when the back of the truck became full. [Doc. # 148 at 17]. Throwers were also required to wear brightly colored vests or shirts so they could be seen by traffic and seen by drivers as they assisted in backing up the trucks. Id. at 18. At no time has Town & Country conducted an investigation to assess its method of compensating its garbage throwers, and Town & Country does not have records of communications with the United States Department of Labor regarding compliance with the FLSA. Also, Town & Country does not maintain operations manuals, employee training manuals or handbooks, safety manuals, policy and/or procedure manuals, or job descriptions. Id. at 13.
In June 2010, Plaintiffs brought this action under the FLSA, 29 U.S.C. § 216(b) (penalizing employers that violate Section 207, the maximum hours provision) and assert compliance with 29 U.S.C. § 255(a) (requiring actions arising from willful violations to be commenced within three years after the cause of action accrued). This case was conditionally certified as a collective action on December 14, 2010. As of May 17, 2011, fifty current and former garbage throwers have opted in to this lawsuit by filing consents with the Court.
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case." Rakes v. Life Investors Ins. Co. of Am., 582 F.3d 886, 893 (8th Cir.2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party bears "the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992). However, when a summary judgment motion is made and supported by evidence as provided in Rule 56(c), the nonmoving party may not rest on mere allegations or denials in its pleadings but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e).
As a preliminary matter, the Court finds that the FLSA applies to Town & Country. Plaintiffs seek to recover for Town & Country's alleged violation of the FLSA's maximum hours provision, 29 U.S.C. § 207(a)(1):
(emphasis added). To qualify as an "enterprise engaged in commerce or in the production of goods for commerce," a business must meet two requirements. First, it must have "employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person." 29 U.S.C. § 203(s)(1)(A)(i). `Commerce' means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." 29 U.S.C. § 203(b). As Town & Country employees routinely cross state lines to collect trash for the business, the company is clearly involved in interstate commerce.
Since Town & Country is an enterprise covered under the FLSA, the pertinent inquiry before the Court is whether Town & Country is exempt under the Motor Carrier Act
Department of Labor regulations apply the MCA exemption depending "both on the class to which [the employee's employer] belongs and on the class of work involved in the employee's job." 29 C.F.R. § 782.2(a). To fall within the exemption, an employer must show it meets three criteria: 1) that it is an employer whose transportation of passengers or property by motor vehicle is under the jurisdiction of the Secretary of Transportation, 2) that the employee is a driver, driver's helper, loader or mechanic, and 3) that the employee 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." See 29 C.F.R. §§ 782.2(a)-(b)(2). Plaintiffs argue that Town & Country cannot show that it meets any of these elements.
The Court must first determine whether Town & Country trash collection business is subject to the Secretary of Transportation's jurisdiction for transporting "property" under the MCA, thus satisfying the first element.
Here, the Secretary clearly appears to be exercising jurisdiction over Town & Country's trash collection business, as it regulates Town & Country's operations from the registration to the inspection process. Town & Country's trash trucks are all registered with the Department of Transportation and have a DOT registration number, which is displayed on all the trucks. See Baez v. Wells Fargo Armored Service Corp. 938 F.2d 180, 182 (11th. Cir. 1991) (finding a permit issued to Wells Fargo by the Interstate Commerce Commission to signify the ICC's jurisdiction over the company under the MCA). Further, Town & Country is subject to inspections and audits by the DOT's FMCA, which "regularly reviews and evaluates the Company's records." [Doc. # 148 at 9]. The most recent review and evaluation occurred in March 2011. Id. It is uncontested that the drivers of Town & Country's trash trucks all comply with the pre-trip and post-trip inspection requirements of the DOT, as well as with the DOT's hours of service limitations. Id. For the DOT to have the authorization to undertake such comprehensive oversight of
Though the DOT has clearly assumed jurisdiction over Town & Country, the Court must still evaluate whether this assumption of jurisdiction is consistent with the text, structure and purpose of the MCA. Congress has never defined the term `property' under the MCA. In cases of Congressional silence, the authorized agency generally possesses broad discretion in administering the law. See e.g. Midwest Crane and Rigging, Inc. v. Federal Motor Carrier Safety, 603 F.3d 837 (10th Cir.2010).
The Court finds the DOT's interpretation reasonable under the statute for several reasons. First, the text of the MCA is silent as to the meaning of property. There is no indication that Congress intended property to have a narrow meaning under the Act. In fact, the ICC emphasized in its previous case law the broad meaning which is to be given to property under the MCA:
Nuclear Diagnostic Laboratories Contract Carrier Application, 131 M.C.C. 578, 580-81 (1979).
An interpretation of trash as property is reasonable under the natural and ordinary meaning of "property," which is not limited to goods with a positive economic value. For example, property has been defined as "any external thing over which the rights of possession, use, and enjoyment are exercised." Black's Law Dictionary (9th ed. 2009). Town & Country contracts with cities, residents, and homeowners' associations to carry their trash away for payment, assuming possession of the trash at pickup. Town & Country then uses the trash, particularly its collection and transportation, as its business, thus deriving value from its possession and control, even if temporary and not dependent on any economic value intrinsic in the trash itself.
Second, it is also reasonable to interpret the structure of the MCA as including trash within the reach of the statute. Trash is not present in the list of items specifically exempted from the DOT's jurisdiction within the plain text of the MCA. Some of the commodities listed as exempt, including wood chips and broken glass, are arguably similar enough to trash that it is reasonable to assume that Congress would have explicitly excluded trash from the MCA's jurisdiction if it had so intended. 49 U.S.C.A. § 13506; see also VanArtsdalen, 2011 WL 1002027, *3 (stating that because the MCA excludes trash from the items exempt from the DOT's authority, it is implied under traditional rules of statutory construction that Congress intended the DOT to have jurisdiction over trash).
Third, the regulation of trash companies by the DOT fits logically within the intended
Plaintiffs emphasize heavily the prior ICC decisions which had concluded that trash is not property on account of such factors as trash's `negative economic value,' `the essentially local nature' of the transportation, and the limited relation of such operations to the remedial purposes of the MCA. See Joray Trucking Corp. Common Carrier Application, 99 M.C.C. 109 (1965) (classifying rock and debris, which have a "negative value as a commodity" as non-property); see also ICC v. Browning-Ferris Industries, 529 F.Supp. 287 (N.D.Ala.1981) (relying on ICC decisions to hold that nonradioactive hazardous wastes were not property under the MCA).
However, the Court finds that prior ICC decisions are not consistent in their process of evaluating whether a particular type of waste constitutes `property.' In fact, if there is a consistency within the ICC line of cases concerning waste, it is an emphasis on agency discretion and a case-by-case analysis of the specific circumstances of particular operations. This can be evidenced by looking at the post-Joray cases which found that radioactive wastes were property under the MCA despite having a clear negative value. Long Island Nuclear Service Corp. Common Carrier Application, 110 M.C.C. 398 (1969); Nuclear Diagnostic Laboratories, Inc., Contract Carrier Application, 131 M.C.C. 578, 580-81 (1979).
The broad meaning ascribed to property by the ICC, combined with the agency's disparate weighings of its three factors in different cases, provides for a substantive consistency to be drawn between the ICC's analytical framework and the DOT's exercise of jurisdiction over Town & Country. The DOT certainly has the discretion to perceive of garbage trucks as posing a substantial safety danger on interstate highways, even if the ICC would have defined such activities as more of a local concern. It is clear from the uncontroverted facts in this case that Town & Country spends a substantial portion of its business engaging in interstate transportation, and the safety of its collection and hauling operations are certainly a matter of concern across state lines on a daily basis. Thus, even if analyzing Town & Country's operations using the three-factors highlighted in Joray, the Court finds the DOT's exercise of jurisdiction to be reasonable as a means of regulating the safety of public highways within interstate commerce.
Now that Town & Country has shown that DOT has exercised proper jurisdiction over Plaintiffs, Town & Country must also show that Plaintiffs meet the second and third requirements for the MCA exemption: namely, that Plaintiffs were "loaders," or "driver's helpers," as defined by the MCA and were engaged in activities directly affecting the safety of operations of motor vehicles within interstate commerce. 29 C.F.R. § 782.2(b)(2). "A "loader" is an employee of a carrier whose duties include, among other things, the unloading and transfer of freight, and the proper loading of his employer's motor vehicles so that they may be safely operated on the highways of the country. 29 C.F.R. § 782.5(a). A "loader" engages in work directly affecting the "safety of operation of motor vehicles" so long as he has responsibility when such motor vehicles are being loaded, for exercising judgment and discretion in planning and building a balanced load or in placing, distributing, or securing the pieces of freight in such a manner that the safe operation of the vehicles on the highways in interstate or foreign commerce will not be jeopardized. 29 C.F.R. § 782.5(a). An employee who has no responsibility for the proper loading of a motor vehicle is not within the exemption as a "loader" merely because he furnishes physical assistance when necessary in loading heavy pieces of freight. 29 C.F.R. § 782.5(c). For example, the following activities provide no basis for exemption: unloading, placing freight in convenient places, and loading vehicles for trips which
The parties agree that as throwers, Plaintiffs were responsible for working with a driver and riding on the truck, for placing trash in the truck, and for operating the trash compacter when the back of the truck became full. Plaintiffs were also required to wear brightly colored vests or shirts so they could be seen by traffic and they communicated with the driver through the use of hand signals to assist with backing up the trucks.
The facts show that Plaintiffs made decisions about whether the items left for pick up were acceptable for loading into the trash collection trucks. For example, Plaintiff McKinney testified to a variety of objects that were not to be loaded in the trucks, particularly ones that pose safety hazards to the employees and the public:
[Doc. # 142-2 at 3].
The Court finds that when Plaintiffs decided what items were to be picked up and placed in the trash trucks, they exercised their judgment and discretion in placing, distributing, or securing the trash in such a manner that the safe operation of the vehicles on the highways in interstate commerce would not be jeopardized. See 29 C.F.R. § 782.5(a). Indeed, the court's holding in VanArtsdalen is directly applicable here. In that case, the plaintiff, who loaded trash onto trash trucks, filed an FLSA collective action against his employer. The court found:
VanArtsdalen, 2011 WL 1002027, at *3.
The Court notes that the parties in this case dispute whether Town & Country trained its throwers as to what items were acceptable for pick-up due to safety reasons. However, the Motor Carrier Act exemption does not require that the employer provide such training, but rather that their employees were required to exercise their discretion in this regard. Additionally, although Plaintiffs may have exercised such discretion in performing only part of their duties, that does not render the Motor Carrier Act exemption inapplicable to them during all times of their
29 C.F.R. § 782.2(3).
The parties also dispute the reason behind the throwers' decisions to place certain items in the truck or leave them on the curb. The Plaintiffs argue that these decisions were motivated by safety concerns at the landfill rather than concerns about safety on the highway. However, it is not reasonable to assume that a decision to avoid mixing flammable items such as gasoline with the rest of the trash in the truck would not have direct and important safety effects to drivers and pedestrians on the road, even if it would also have environmental and safety effects at the landfill. Other evidence provided by Plaintiffs also supports a finding that the throwers had discretion over safety-related activities, including one plaintiff who testified that he avoided loading items which could damage someone's property and avoided loading chemicals which could drip out of the truck and onto the roadways.
As the Court finds that the Plaintiffs were sufficiently classified as "loaders" within the meaning of the Motor Carrier Act, and engaged directly in activities affecting safety, it does not discuss whether Plaintiffs could also be "driver's helpers."
Accordingly, it is hereby ORDERED that Plaintiffs' motion for partial summary judgment [Doc. #143] is DENIED and Town & Country's motion for summary judgment as it relates to the FLSA overtime claim [Doc. #141] is GRANTED. Because Graham alleges an FLSA claim for failure to pay minimum wage, the case will remain open for determination of that issue.
