United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
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.
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
filed its Motion regarding the applicability of the MCA and
the TCA. The Motion has been fully briefed and is now ripe
SUMMARY JUDGMENT STANDARD
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
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).
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.
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
(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.
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.
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 ...