NICHOLAS G. GARAUFIS, District Judge.
Plaintiff Kenneth Fox filed this putative class action against his former employer, Commonwealth Worldwide Chauffeured Transportation of NY, LLC ("Commonwealth"), in 2008.
In January 2011, Fox moved to certify a "collective action" under § 16(b) of the Fair 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 for 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.
The following facts are not in dispute.
Commonwealth is a New York City area car service.
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. (Id.) Importantly for the purposes of this case, Commonwealth counts among its fleet over 40 SUVs and vans.
Commonwealth has a United States Department of Transportation ("USDOT") Number and a Federal Motor Carrier Safety Administration ("FMCSA") Certificate. (1st 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." FMCSA, available at http://www.fmcsa.dot.gov (last visited 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. Acquiring a USDOT number is one of the first steps a company takes when it submits to regulation by the FMCSA, id., and a FMCSA 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 1st 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. (1st Rutter Aff. ¶ 15.) Commonwealth also asks customers to pay an additional amount in the form of a "service
Drivers are also paid an hourly rate. (Id. ¶ 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 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. ¶ 1.) While he worked at Commonwealth, Fox was paid $7.50 an hour (2nd Rutter Aff. ¶ 13; Fox Aff. ¶ 11) 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
When Fox started work, he authorized Commonwealth to conduct a background check through a private consumer reporting agency, First Advantage. (Id. ¶ 17; Fox Dep., Ex. 11 (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.
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. ¶ 15.) 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. (Id.)
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." (Id. ¶ 26.) Through his letter, Fox requested that Commonwealth provide its reasons for allegedly firing him and also a copy of the background report. (Id.) He referenced New York's Correction Law, which limits employers' ability to fire employees on the basis of prior criminal convictions. (Id.; 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 off the road" because "our first priority is to protect our clients." (Id. ¶ 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. (Id. ¶ 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. 13 to Fox Dep.) He also directed Commonwealth's attention to the Correction Law. (Id.) 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. (Compl. (Docket Entry #1) ¶¶ 31, 49, 59.) Fox also asserted that Commonwealth had fired him, and alleged that this action was
On January 23, 2011, Fox moved for conditional certification a collective action under § 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 dispositive motion for summary judgment. That motion was filed fully briefed on September 23, 2011.
Commonwealth argues that there is no genuine dispute about the facts material to its defenses to Fox's overtime claims.
"The court shall grant summary judgment [on a particular claim or defense] if the movant shows that there is no genuine dispute as to any material fact [regarding that claim or defense] and the movant is entitled to judgment as a matter of law." 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute — or issue — about a fact is genuine if 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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
Importantly, it is the existence of the power to set to set maximum hours, not its actual exercise, that triggers the motor carrier exemption. See id.; Morris v. McComb, 332 U.S. 422, 434, 68 S.Ct. 131, 92 L.Ed. 44 (1947); Bilyou, 300 F.3d at 229. 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)(1) (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 of 2008). But in 2007 and early 2008, when Fox drove for Commonwealth, motor carrier meant "a person providing commercial motor vehicle transportation for compensation."
Id. § 31132(1) (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: (1) 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.
Finally, the term "employee" has a specialized meaning in the context of § 31502.
Although not statutorily defined,
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, 67 S.Ct. 931. 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, 67 S.Ct. 954 (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, 67 S.Ct. 954. 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, 67 S.Ct. 931.
The same is true with 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, 68 S.Ct. 131). In the case of a driver, interstate transportation is a "natural, integral, and inseparable" part a worker's duties if the worker "is likely to be called on to perform 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, 68 S.Ct. 131). 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 Int'l, 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 term is defined in 49 U.S.C. § 31132(1), 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 former 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
This is a relatively new and limited issue because, prior to 2005, the term "motor carrier" was not defined by reference to commercial motor vehicles, see 49 U.S.C. § 13102(12) (2000), and, as discussed, after 2008, the reference was again dropped (see supra note 9). But, for the 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., Avery v. Chariots For Hire, 748 F.Supp.2d 492, 499-501 (D.Md.2010); Dalton 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.D.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; Vidinliev, 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, 68 S.Ct. 131 (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 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 U.S.C. § 31132(1). 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-minimis 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.
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.
Fox's status as an "employee" is equally clear. As a full-time chauffeur who drove eight-plus-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.
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 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
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:
15 U.S.C. § 1681b(b)(3)(A). An employer's failure to comply with this provision, however, is not by itself enough to trigger civil liability to a private plaintiff. Instead, to recover for a violation of the statute, a plaintiff must show either: (1) that the failure was willful, id. § 1681n; or (2) that the failure was a result of negligence and that the plaintiff sustained actual damages, id. at § 1681o. See also Thibodeaux v. Rupers, 196 F.Supp.2d 585, 591 (S.D.Ohio 2001) (holding that § 1681b is not strict liability statute).
The court does not need to determine whether Commonwealth complied with § 1681b(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 of law, and Commonwealth is entitled to summary judgment.
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 turn, states in relevant part that:
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) (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 itself refers only to the "deni[al]" 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 of the 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, 145 F.Supp.2d 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 of the 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:
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 of Corr., 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
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 conviction impacts safety, the Correction Law anticipates that employers will 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.
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.
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.
N.Y. Penal Law § 105.05 (McKinney's 2009).
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 of a Surrogate Court order, Fox transferred some of the estate's assets out of the country and refused to repatriate them. (Statement of Facts ¶ 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. (Id. ¶ 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.)
49 U.S.C.A. § 31132 (West 2007). Applying the maxim of expressio unius 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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (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.
