Childress v. Ozark Delivery of Mo. L. L.C.

Citation95 F.Supp.3d 1130
Decision Date05 March 2015
Docket NumberCase No. 6:09–cv–03133–MDH.
PartiesCalvin CHILDRESS, et al., Plaintiffs, v. OZARK DELIVERY OF MISSOURI L.L.C., et al., Defendants.
CourtUnited States District Courts. 8th Circuit. Western District of Missouri

95 F.Supp.3d 1130

Calvin CHILDRESS, et al., Plaintiffs
OZARK DELIVERY OF MISSOURI L.L.C., et al., Defendants.

Case No. 6:09–cv–03133–MDH.

United States District Court, W.D. Missouri, Southern Division.

Signed March 5, 2015.

95 F.Supp.3d 1132

Brendan J. Donelon, Donelon, P.C., Kansas City, MO, Charles Jason Brown, Brown & Associates, LLC, Gower, MO, for Plaintiffs.

Robert Anthony Costello, John K. Power, Husch Blackwell LLP, Kansas City, MO, Jason N. Shaffer, Springfield, MO, for Defendants.


DOUGLAS HARPOOL, District Judge.

Before the Court are motions for summary judgment filed by Plaintiffs (Doc. 135) and Defendant Employer Advantage, L.L.C. (Doc. 138). Plaintiffs ask the Court to find, as a matter law, that Plaintiffs are not exempt from FLSA overtime provisions pursuant to the Motor Carrier Act (“MCA”) exemption. Defendant Advantage moves the Court for an order finding as a matter of law that Advantage is not Plaintiffs' joint employer under the FLSA. After full and careful consideration of the issues raised and the arguments provided by the parties, the Court hereby GRANTS Plaintiffs' motion (Doc. 135) and DENIES IN PART Defendant Advantage's motion (Doc. 138).


Plaintiffs Calvin Childress and Jolene Loyd brought the above-captioned lawsuit as a collective action pursuant to Section 216(b) of the Fair Labor Standards Act (“FLSA”). Plaintiffs allege that Defendants willfully violated Section 207 of the FLSA by failing to fully compensate the plaintiff delivery drivers for all hours worked in excess of 40 hours per week. The action is brought against Ozark Delivery, L.L.C. (“Ozark”), Klein Calvert,1 and Employer Advantage, L.L.C. (“Advantage”)

95 F.Supp.3d 1133

2 as “joint employers.”3 The Court conditionally certified the case as a collective action and the class now includes fifty-six (56) opt-in plaintiffs who were drivers allegedly employed by Defendants between April 2006 and June 2009.

Plaintiffs move the court for summary judgment regarding FLSA exemptions. Plaintiffs argue that the Motor Carrier Act (“MCA”) exemption is the sole FLSA exemption asserted by Defendants and that it does not apply in this case because the undisputed evidence shows that Plaintiffs are “covered employees” as defined by the SAFETEA–LU Technical Corrections Act of 2008 (“TCA”). The TCA states that “covered employees,” as the term is defined therein, are subject to the FLSA's overtime provisions notwithstanding the MCA exemption. See Pub.L. 110–244, Title III, § 306, June 6, 2008, 122 Stat. 1620. Defendant Advantage and Defendant Ozark filed suggestions in opposition to Plaintiffs' motion arguing that a genuine issue of material fact exists as to whether Plaintiffs qualify as “covered employees” under the TCA. Defendants rely on Klein Calvert's testimony that some Plaintiffs drove vehicles in excess of 10,000 pounds and some Plaintiffs drove vehicles transporting hazardous materials.

Defendant Advantage separately filed a motion for summary judgment challenging Advantage's alleged status as a joint employer. Advantage argues that it merely contracted with Defendant Ozark to provide back room human resource services to Ozark between July 25, 2005 and December 23, 2006. Advantage argues that, even during this limited time period, it does not classify as a joint employer because it exercised no control over Plaintiffs other than maintaining their personnel records and files. Plaintiffs argue that Advantage is essentially the same company as “EA Advantage,” which entered into a nearly identical service contract with Defendant Ozark effective December 23, 2006 to December 29, 2007; thus, the relevant time period for Advantage's joint employer status is April 2006 through December 2007.

Plaintiffs have also now filed a motion to amend/correct the complaint in order to add EA Advantage as a “d/b/a defendant.” (Doc. 160). Plaintiffs argue that Defendant Employer Advantage did business as EA Advantage. Because that issue may affect Advantage's status as joint employer during the time period from December 23, 2006 to December 29, 2007, when EA Advantage provided services to Ozark, the Court defers ruling on that issue at this time. Nonetheless, all other issues in the parties' motions for summary judgment are fully briefed and ripe for review.


Summary judgment is proper where, viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) ; Reich v. ConAgra, Inc., 987 F.2d 1357, 1359 (8th Cir.1993). “Where there is no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate.” Quinn v. St. Louis County, 653 F.3d 745, 750 (8th Cir.2011). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact.

95 F.Supp.3d 1134

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets the initial step, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do so, the nonmoving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).


After full and careful consideration, the Court finds that the undisputed material facts show as a matter of law that: (1) Plaintiffs were not exempt from the FLSA's overtime provisions pursuant to the MCA exemption, and (2) Advantage qualifies a Plaintiffs' joint employer under the FLSA for the relevant time period of April 2006 to December 23, 2006. The Court defers ruling on whether Advantage also qualifies as Plaintiffs' joint employer for the time period December 23, 2006 to December 29, 2007.

I. Plaintiffs' Motion for Summary Judgment Regarding Exemptions

The FLSA generally requires employers to pay covered employees engaged in interstate commerce “one and one-half times” their regular rate of pay for all hours worked in excess of forty hours per week. 29 U.S.C. § 207. This “maximum hour” requirement, however, does not protect all employees. Rather, the Act contains certain exemptions that exclude various persons from coverage under Section 207. See id. at § 213. Where an exemption is alleged, the employer bears the burden of proving that exemption, which is to be narrowly construed against the employer. Graham v. Town & Country Disposal of W. Missouri, Inc., 865 F.Supp.2d 952, 956 (W.D.Mo.2011). As relevant here, one category of exempt employees includes “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. at § 213(b)(1). Section 31502 of Title 49 concerns employees of motor carriers and motor private carriers. See 49 U.S.C. § 31502(b). Thus, this FLSA exemption is called the Motor Carrier Act (“MCA”) exemption. See, e.g., McCall v. Disabled Am. Veterans, 723 F.3d 962, 964 (8th Cir.2013).

Under the MCA exemption, “motor carrier” and “motor private carrier” employees are excluded from the FLSA's overtime pay provisions. The term “motor carrier” is defined as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. §§ 13102(14), 31501(2). The term “motor private carrier” describes “a person, other than a motor carrier, transporting property by motor vehicle” where: “(A) the transportation is as provided in section 13501 of this title;4 (B) the person is the owner, lessee, or bailee of the property being transported; and (C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise.” Id. at §§ 13102(15), 31501(2). In recent years, the scope of the MCA exemption has been affected by various amendments to the definitions of the terms cited above. See McCall v. Disabled Am. Veterans Ernestine Schumann–Heink Missouri Chapter

95 F.Supp.3d 1135

2, No. 11–1298–CV–W–ODS, 2012 WL 3069845, at *2 (W.D.Mo. July 27, 2012)aff'd sub nom. McCall v. Disabled Am. Veterans, 723 F.3d 962 (8th Cir.2013). For example, in August 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act (“SAFETEA–LU”) went into effect and removed from the definition of “motor carrier” and “private motor carrier” all vehicles weighing less than 10,001 pounds; therefore, employees who drove those vehicles were subject to FLSA overtime provisions. See id. Then, in June of 2008, Congress enacted the SAFETEA–LU Technical Corrections Act of 2008 (“TCA”), which “restored the 2004 definition of a ‘motor carrier,’ but retained the weight limitation for vehicles.” See Wells v. Fedex Ground Package Sys., Inc., 979 F.Supp.2d 1006, 1033 (E.D.Mo.2013).

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