Fox v. Commonwealth Worldwide Chauffeured Transp. of NY, LLC

• Decision Date: 30 March 2012
• Docket Number: No. 08–CV–1686 (NGG)(RML).,08–CV–1686 (NGG)(RML).
• Citation: 865 F.Supp.2d 257
• Court: U.S. District Court — Eastern District of New York
• Parties: Kenneth FOX, on behalf of himself and others similarly situated, Plaintiffs, v. COMMONWEALTH WORLDWIDE CHAUFFEURED TRANSPORTATION OF NY, LLC, and D & S Auto Leasing, LLC, Defendants.

865 F.Supp.2d 257

Kenneth FOX, on behalf of himself and others similarly situated, Plaintiffs,

v.COMMONWEALTH WORLDWIDE CHAUFFEURED TRANSPORTATION OF NY, LLC, and D & S Auto Leasing, LLC, Defendants.

No. 08–CV–1686 (NGG)(RML).

United States District Court, E.D. New York.

March 30, 2012.

David C. Wims, Law Office of David Wims, Brooklyn, NY, for Plaintiffs.

Katherine Christine Glynn Robinson & Cole, LLP New York, NY, Catherine E. Reuben, Hirsch Roberts Weinstein LLP, Boston, MA, for Defendants.

MEMORANDUM & ORDER

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 2008.¹ Fox worked as a chauffeur for Commonwealth, and alleges that while he was there Commonwealth failed to pay him and other chauffeurs the full amount of overtime they were entitled to receive under federal and state employment law. Fox also raises solely individual claims related to his separation from Commonwealth in March 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.

I. BACKGROUND

The following facts are not in dispute.

Commonwealth is a New York City area car service.² (Defs.' Local Rule 56.1 Statement of Facts (“Statement of Facts”) (Docket Entry # 73) ¶¶ 1, 2.) It provides “luxury” chauffeured transportation to and from locations inside and outside of the City. ( Id.) Commonwealth sometimes takes passengers to destinations outside of the State of New York. ( Id. ¶ 2) With the possible exception of its New York to Boston service, see supra note 2, Commonwealth operates without fixed routes. (Statement of Facts ¶ 2.) Instead, Commonwealth's customers reserve vehicles in advance—although sometimes immediately in advance—and tell Commonwealth where they want to go. ( Id.; 1st Rutter Aff. (Docket Entry # 75, Ex. 15) ¶ 12.) Some customers contact Commonwealth through stands that it maintains at certain New York City hotels and La Guardia airport, but most make reservations over the telephone. (Statement of Facts ¶ 3; 1st Rutter Aff. ¶ 12.) Commonwealth does not allow its drivers to “cruise” for customers. (1st Rutter Aff. ¶ 12; Fox Aff. (Docket Entry # 80) ¶ 6.)

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.³ ( Id.) The vast majority of the SUVs are Chevrolet Suburbans ( id.), each of which has a seating capacity of nine people. (1st Rutter Aff., Ex. 6.) The vans are either Ford E250s or E350s, both of which can safely carry eight or more people. ( Id.)

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 charge” for the drivers.⁴ (2nd Rutter Aff. (Docket # 86, Ex. 16) ¶ 11; Fox Aff. ¶ 11.) Usually amounting to around 15 or 20 percent of the rest of the bill, the service charge is paid to Commonwealth, (2nd Rutter Aff. ¶ 9), which then fully remits it to the driver in his next paycheck. ( Id. ¶ 11.)

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 generally29 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.⁵

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 ⁶ (1st Rutter Aff., Ex. 6). On some of his trips Fox would cross state lines. (Statement of Facts ¶ 16.)

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. ⁷ ( Id.) It also showed that for each crime Fox was sentenced principally to sixty days imprisonment. ( Id.) Fox does not dispute the accuracy of the background check.

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 an unlawful discriminatory practice for the purposes of New York's Human Rights Law (“NYHRL”). (Compl.¶ 68.) Following several amendments to the complaint, ( see 1st Am. Compl. (Docket Entry # 5); 2d Am. Compl. (Docket Entry # 44)), Fox added a claim under the Fair Credit Reporting Act (“FCRA”). ( See 2d Am. Compl. ¶ 78).

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...