Foreman v. Five Star Food Serv., Inc.

• Decision Date: 24 June 2013
• Docket Number: Case No. 3:11–cv–01124.
• Citation: 950 F.Supp.2d 958
• Parties: John FOREMAN and Gary Runge, Plaintiffs, v. FIVE STAR FOOD SERVICE, INC., Defendant.
• Court: U.S. District Court — Middle District of Tennessee

950 F.Supp.2d 958

John FOREMAN and Gary Runge, Plaintiffs,

v.FIVE STAR FOOD SERVICE, INC., Defendant.

Case No. 3:11–cv–01124.

United States District Court,

M.D. Tennessee,

Nashville Division.

June 24, 2013.

Randall W. Burton, Jackson & Burton, PLLC, Stephen W. Grace, Grace and Rudy, Nashville, TN, for Plaintiffs.

Brent S. Usery, Marc O. Dedman, Spicer Rudstrom, PLLC, Nashville, TN, John C. Harrison, Evans Harrison Hackett, PLLC, Chattanooga, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

Plaintiff John Foreman has filed a Motion for Partial Summary Judgment (Docket No. 37), to which defendant Five Star Food Service, Inc. (“Five Star”) filed a Response in opposition (Docket No. 38), and the plaintiffs filed a Reply (Docket No. 44). Five Star has filed a Motion for Summary Judgment (Docket No. 30), to which Foreman and plaintiff Gary Runge filed a Response in opposition (Docket No. 39), and Five Star filed a Reply (Docket No. 43). For the reasons stated herein, Foreman's Motion for Partial Summary Judgment will be granted and the defendants' Motion for Summary Judgment will be denied.

BACKGROUND

Five Star is a Delaware corporation with a principal place of business in Chattanooga, Tennessee. It is one of the largest full-line vending, coffee service, and food services providers in the United States. Five Star has a branch location in Tennessee that services clients in Middle Tennessee. This case involves two factually distinct claims against Five Star. First, plaintiffs John Foreman and Gary Runge, who worked for Five Star during the relevant time frame, claim that Five Star owes them unpaid overtime compensation under § 216(b) the Fair Labor Standards Act (“FLSA”).¹ Second, Foreman claims that, in violation of Tennessee law, Five Star terminated him in retaliation for intending to comply with a lawful trial subpoena. Because these claims are factually and legally distinct, the court will address the relevant facts and law in separate sections relative to each claim.²

SUMMARY JUDGMENT STANDARD

“[O]n cross-motions for summary judgment, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Dixon v. Univ. of Toledo, 702 F.3d 269, 273 (6th Cir.2012). Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. (quoting Fed.R.Civ.P. 56(a)).

FLSA CLAIM

I. Relevant Facts

At issue in this lawsuit are two types of Five Star employees with similar responsibilities: vending route drivers and Avanti Market merchandisers. Vending route drivers are responsible for servicing vending machines located at customer locations along a designated route. The drivers are responsible for filling the vending machine to a proper inventory level, collecting money from the machines, performing routine sanitation and cleaning of the machines, and, in most relevant part, loading and transporting their trucks with products to stock the machines. In January 2011, Five Star also obtained the rights to a new service called “Avanti Markets,” which are essentially automated convenience stores maintained at a client's facility. As with vending route drivers, Avanti Market merchandisers serviced Avanti Markets along a designated route and were responsible for ensuring that food items were maintained and rotated appropriately, that the markets were safe and clean, and that the markets were stocked only with fresh products.

In the regular course of business, vending route drivers and merchandisers transported snack foods and other goods from Five Star's Nashville warehouse to the vending machines and Avanti Markets in Middle Tennessee during the relevant time frame. Because of a business relationship between Five Star and a company called Vistar of Tennessee, some of the products that Five's Star vending route drivers and merchandisers used to stock the machines and markets were originally manufactured and packaged outside of Tennessee. Vistar of Tennessee is a division of Performance Food Group, located in Memphis, Tennessee. Vistar of Tennessee maintains a distribution center in Memphis (among 20 distribution centers across the country), from which it distributes candy, snacks, beverages, and other convenience food items to clients, including Five Star. With respect to Vistar of Tennessee's Memphis warehouse, Vistar of Tennessee purchases and ships into Tennessee products manufactured and packaged in at least five states outside Tennessee. With respect to its contractual relationship with Five Star, Vistar of Tennessee then “sells and distributes” those products to Five Star and “regularly delivers” the products to Five Star's Nashville warehouse, by which point Five Star owns the products.³

In anticipation of servicing machines along their designated routes, Five Star's vending route drivers and merchandisers load products onto their trucks at Five Star's Nashville warehouse. Utilizing interstate highways (albeit only within Tennessee), the drivers and merchandisers then transport these products to locations along routes within Middle Tennessee. On a daily basis, these products include at least some products purchased from Vistar of Tennessee— i.e., products originally manufactured and packaged outside of Tennessee. The vending route drivers and merchandisers, who serviced accounts in Middle Tennessee, were never expected to transport these products outside of Tennessee.

In sum, based on the record, the food products at issue travel as follows: (1) out-of-state shippers manufacture and package food products outside of Tennessee; (2) Vistar of Tennessee, based in Tennessee, either ships or has the manufacturers ship those products across state lines into Vistar of Tennessee's Memphis warehouse/distribution center; (3) pursuant to an arm's length contractual relationship with Five Star (one of Vistar's multiple customers and one of Five Star's multiple suppliers), Vistar of Tennessee sells some of those products to Five Star and delivers them to Five Star's Nashville warehouse on a “regular basis”; and (4) on a daily basis, Five Star's vending route drivers and merchandisers load their trucks with products that include at least some products originally produced outside of Tennessee that, by that point in the chain of distribution, Vistar of Tennessee had sold and transported from Vistar of Tennessee's Memphis warehouse to Five Star's Nashville warehouse.

The record does not specify what volume of Vistar of Tennessee's business is comprised of purchases by Five Star; however, given that Vistar of Tennessee sells to multiple “retailer[s], vendors, and other customers” from the Memphis warehouse (Nelson Decl. ¶ 5), Five Star's business is necessarily a fraction of Vistar of Tennessee's sales and deliveries from the Memphis warehouse. The record does not indicate whether Vistar of Tennessee and Five Star operate pursuant to a requirements contract or whether Five Star simply purchases products from Vistar of Tennessee through individual (albeit regular) transactions as needed. Furthermore, aside from the fact that Vistar of Tennessee purchases goods from out-of-state manufacturers, the record contains no specific information about the contractual relationship between Vistar of Tennessee and those producers or the producers' intent in selling and/or shipping the goods to Vistar of Tennessee. At any rate, Nelson, Vistar of Tennessee's President, avers that Vistar of Tennessee distributed out-of-state products to Five Star from the Memphis warehouse “with the understanding, agreement, and intent that Five Star [ ] will sell the products to its customers/consumers.” ⁴

On September 6, 2011, Five Star hired Foreman as a vending route driver. For approximately four weeks, Foreman worked in this role and received $500 per week, regardless of the number of hours worked. Five Star does not dispute that Foreman worked more than forty hours per week as a vending route driver. In early October 2011 (apparently on or about October 3), Five Star transferred Foreman to an Avanti Markets merchandiser position, which Foreman held until Five Star discharged him on November 8, 2011. While working as a merchandiser, Foreman received a base wage of $12.50 and, to the extent he was able to record those hours, received an overtime premium for time worked over 40 hours. The parties dispute whether Foreman was able to record all of his overtime hours: Foreman testified that McDaniel required him to work “off the clock” without recording certain overtime hours, whereas McDaniel avers that he never instructed Foreman “to perform work ‘off the clock’ or to clock out and continue working.” ( See Foreman Dep. at pp. 107, 114–116, and 225–30; McDaniel Declaration ¶ 9.) Foreman has moved for summary judgment on his FLSA claim, arguing that Five Star failed to pay him (1) any overtime at all with respect to his four weeks of work as a vending route driver and (2) for unrecorded hours with respect to his five weeks of work as a merchandiser. ⁵ In response, Five Star (1) argues that Foreman is not entitled to demand overtime, because Foreman's employment falls within the so-called “Motor Carrier Act” (“MCA”) exemption from the FLSA's overtime requirements; and (2) disputes Foreman's contention that he was forced to work off the clock while working as a merchandiser.⁶

II. FLSA and the Motor Carrier ExemptionA. Standard to Justify an Exemption

Subject to certain enumerated exemptions, the FLSA requires covered employers to pay overtime wages to employees who work more than 40 hours per week. See29 U.S.C. § 207. One of these exemptions, commonly referred to as the “Motor Carrier Act exemption,” is contained in FLSA § 13(b)(1). See id. § 213(b)(1).

FLSA exemptions must be “narrowly construed against employers and are to be...