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Constantine v. Adas

United States District Court, S.D. Texas, Houston Division

April 19, 2019




         This Fair Labor Standards Act ("FLSA") case is before the Court on the Motion for Partial Summary Judgment as to the Applicability of the Fair Labor Standards Act ("Motion") [Doc. # 22] filed by Defendant Swift Auto Hauling, LLC ("Swift"). Swift seeks summary judgment that the Motor Carrier Act ("MCA") exemption applies and that the Technical Corrections Act ("TCA") exception to the exemption does not apply. Plaintiff Alexander Constantine filed a Response [Doc. # 23], and Swift filed a Reply [Doc. # 24]. Having reviewed the record and applicable legal authorities, the Court denies the Motion as to the applicability of the MCA and grants the Motion as to the inapplicability of the TCA. I. BACKGROUND Swift operates a tow truck business in the Houston, Texas, area. Plaintiff Constantine worked for Swift as a tow truck driver from June 2016 until October 2017. Plaintiff alleges that Swift failed to pay him the full amount of his wages and failed to pay him overtime wages for hours worked in excess of forty (40) per week.

         Plaintiff filed this lawsuit under the FLSA. Swift argues that the FLSA does not apply because the MCA exempts certain employees of motor carriers from FLSA coverage. Plaintiff argues that the MCA does not apply. Plaintiff argues also that, even if the MCA does apply, the TCA excludes from the MCA exemption those motor carriers operating vehicles weighing 10, 000 pounds or less.

         Swift filed its Motion regarding the applicability of the MCA and the TCA. The Motion has been fully briefed and is now ripe for decision.


         Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions in the record, together with any affidavits filed in support of the motion, 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. See Fed. R. Civ. P. 56(a); Bacharach v. SuntrustMortg., Inc., 827 F.3d 432, 434 (5th Cir. 2016). A party seeking summary judgment on a claim on which it does not have the burden of proof must demonstrate that there is no evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012). To obtain summary judgment on an issue on which the moving party bears the burden of proof, the movant must establish each essential element of that claim. See Wilson v. Epps, 776 F.3d 296, 299 (5th Cir. 2015) (citing Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)).

         If the moving party meets this initial burden, the burden shifts to the nonmovant to set forth specific facts showing the existence of a genuine issue for trial. See Brandon v. Sage Corp., 808 F.3d 266, 270 (5th Cir. 2015) (citing Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010)). The Court construes all facts and considers all evidence in the light most favorable to the nonmoving party. See Guar. Bank & Trust Co. v. Agrex, Inc., 820 F.3d 790, 794 (5th Cir. 2016).


         Swift has the burden of proving that the MCA exemption applies in this case. See Carley v. Crest Pumping Techs., L.L.C, 890 F.3d 575, 579 (5th Cir. 2018). The MCA exempts employees from the FLSA as 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." 29 U.S.C. § 213(b)(1). Generally, for the MCA to apply, an employee must be (1) employed by a motor carrier or private carrier, as defined by 49 U.S.C. § 13102, and (2) engaged in activities affecting the safety of operation of motor vehicles in interstate commerce within the meaning of the MCA. See 29 C.F.R. § 782.2(a). There is no dispute that tow truck drivers engage in activities that affect the safe operation of motor vehicles.

         The parties dispute whether Swift operates in interstate commerce and whether it was likely that Constantine would have been called upon to operate a tow truck for Swift in interstate commerce. The MCA exemption usually applies if employees are, or are "likely to be, called upon in the ordinary course of [their] work to perform, either regularly or from time to time, safety-affecting activities . . . that are interstate in nature." Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016) (internal quotations and citations omitted). Employees are considered "likely to be called upon" to perform interstate activities if they "could reasonably have been expected to [engage] in interstate commerce consistent with their job duties." Id. (citations omitted). To determine whether an employee could reasonably have been expected to engage in interstate commerce, courts consider several, non-dispositive factors:

(1) whether all employees in the class have similar job duties, even if only some employees in the class make interstate trips; (2) whether the employer regularly sends some drivers to interstate destinations; (3) whether the employer requires its drivers to meet DOT requirements; (4) whether and with what frequency project assignments are subject to change; (5) whether the drivers' assignments are given via dispatch based on customer need; (6) whether drivers have fixed or dedicated routes; (7) whether assignments are distributed indiscriminately; and (8) whether drivers risk termination for refusing trips from dispatch.

Id at 449 n.ll.

         Swift has presented evidence that it "tows vehicles across state lines at least 3% of the time." See Affidavit of Mahmoud Adas, Exh. 3 to Motion. Adas's Affidavit was executed March 4, 2019, and the averments are in the present tense. This affidavit does not supply evidence regarding interstate activity in which Swift may have engaged while Constantine was employed in 2016 and 2017.

         Swift also presents Plaintiffs Interrogatory Responses. Interrogatory No. 3 asked Plaintiff "Have you ever driven out of Texas in your assigned tow-truck for work?" Constantine's sworn response was "I worked for a company named Royal in California for seven weeks in 2016. Royal was owned by or affiliated with Swift, so I took the truck with me when I went to California." See Response to Interrogatories, Exh. 1 to Reply. There is no evidence in the record regarding the legal relationship, if any, between ...

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