Jones v. Centurion Inv. Associates, Inc., 02 C 1459.

• Decision Date: 23 June 2003
• Docket Number: No. 02 C 1459.,02 C 1459.
• Parties: Kenneth JONES, et al., Plaintiffs, v. CENTURION INVESTMENT ASSOCIATES, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

268 F.Supp.2d 1004

Kenneth JONES, et al., Plaintiffs, v. CENTURION INVESTMENT ASSOCIATES, INC., Defendant.

No. 02 C 1459.

United States District Court, N.D. Illinois, Eastern Division.

June 23, 2003.

John William Billhorn, Billhorn Law Firm, Chicago, IL, for plaintiffs.

Robert Howard Brown, Jennifer Anne Naber, Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

BROWN, United States Magistrate Judge.

Plaintiff's Kenneth Jones and Leonard Liddell ("Plaintiffs") brought this action against Centurion Investment Associates, Inc. d/b/a Service Distributors¹ ("Defendant"), alleging causes of action under the Fair Labor Standards Act ("FLSA")(29 U.S.C. § 201 et seq.) and the Portal to Portal Act (29 U.S.C. § 251 et seg.)Compl.¶ 1). Plaintiffs allege that they are entitled to overtime pay under the FLSA. Plaintiffs' three-count complaint seeks back pay, interest, liquidated damages, and attorneys' fees for alleged violation of the FLSA. The parties have consented to the jurisdiction of a Magistrate Judge. [Dkt ## 17, 18.]

Defendant has moved for summary judgment. [Dkt #20.] For the reasons discussed below, Defendant's motion is GRANTED.

BACKGROUND

Defendant's Motion for Summary Judgment was accompanied by a Local Rule 56.1(a)(3) Statement. [Dkt #20.] Plaintiffs responded with a Local Rule 56.1(b)(3)(b) Statement of Additional Facts [dkt # 28], but no Local Rule 56.1(b)(3)(a) Statement containing "a response to each numbered paragraph in the moving party's statement." Rather, Plaintiffs state in the first sentence of their response brief that "as indicated in Plaintiffs (sic) response to Defendant's LR 56.1 Statement, the facts of the case are not disputed." (Pls.' Resp. at 1.) Defendant filed a response to Plaintiffs' additional facts. [Dkt #32.] The Seventh Circuit recently stated:

Local Rule 56.1's enforcement provision provides that when a responding party's statement fails to controvert the facts as set forth in the moving party's statement in the manner dictated by the rule, those facts shall be deemed admitted for purposes of the motion. We have consistently held that a failure to respond by the nonmovant as mandated by the local rules results in an admission.

Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) (citation omitted). As a result, all facts in Defendant's Local Rule 56.1(a)(3) Statement are deemed admitted.

Defendant is a wholesaler of bread products. Defendant bakes all of its bread and some buns in a facility in LaPorte, Indiana. (Def.'s LR Stmt, ¶ 3.) Some buns are baked in two other facilities located in Chicago. (Id.) Baked goods from the LaPorte, Indiana facility are "generally" loaded on two trucks. (Id. ¶ 6.) One truck travels directly to a warehouse in Glendale Heights, Illinois. The other stops at the two Chicago bakeries and then proceeds to Glendale Heights. (Id.) The products are unloaded in the Glendale Heights warehouse, where they remain for "no more than several hours." (Id. ¶ 9.)

Plaintiffs are or were employed by Defendant as routemen. (Def.'s LR Stmt. ¶ 2.) Routemen load trucks at the Glendale Heights warehouse and deliver the bread products to stores on their routes. (Id. ¶¶ 12, 10.) Of the products the routemen deliver, "[b]etween 33% and 50% are baked in LaPorte." (Def.'s LR Stmt. ¶ 7.) Individual loaves are riot assigned a particular destination, thus "a specific loaf of bread loaded on a routeman's truck could be placed in any of the: stores on that route if the routeman ordered that variety of loaf." (Def.'s LR Resp. ¶ 2.)

A routeman is responsible for assessing the "needs of each customer on [his] route and recording] orders on a spreadsheet." (Def.'s LR Stmt. ¶ 4.) That spreadsheet is submitted to the bakeries to determine how much of each type of product should be baked. (Id.) However, "an actual `sale' is made only after the product arrives at the store ... [N]o store had a standing contract requiring it to take into its inventory a specific volume or variety of bread product on any particular day." (Def.'s LR Resp. ¶ 4.) If a particular loaf is not sold "it could end up being transferred back to Glendale Heights as stale product." (Id. ¶ 2.) Defendant admits that if a routeman failed to sell all of the product on his truck, money was deducted from his pay. (Id ¶ 5.)

The bread products are transported on lightweight plastic trays. (Id ¶ 6.) At the various stores along his route, the routeman moves product into the store, removes it from the trays and places it on the shelves or in displays. He might also leave full trays of additional product in storage areas for later restocking. (Def.'s LR Stmt. ¶ 11.) When the routeman completes his deliveries at each store, he takes the empty trays for the product that he had put on shelves, and any additional trays, and carries those trays back to his truck. After each trip the routeman collects all empty trays from the bread he just delivered, or had previously delivered, and places them on the truck. (Id. ¶ 12.) The trays are not stacked in any particular manner. (Def.'s LR Resp. ¶ 7.) Upon returning to the Glendale Heights warehouse, the routeman unloads all empty trays into a pickup area. (Def.'s LR Stmt. ¶ 14.) The empty trays are stored in Glendale Heights "for between a few hours and twenty-four hours" and are not processed during that time period. (Id ¶ 15.) Other employees later load all empty bread trays and some empty bun trays back onto the truck arriving from LaPorte with the next day's orders. (Id. ¶ 14.) Those trays are returned to LaPorte for reuse. (Id.) Notwithstanding their admission of Defendant's statement that all empty bread trays are returned to LaPorte (Def.'s LR Stmt. ¶ 14), Plaintiffs state that "it is believed believe (sic) that most, if not all of the empty bread trays that I(sic) unloaded would stay at the Glendale Heights warehouse." (Pls.' LR Stmt. ¶ 8.) In support of that statement, Plaintiffs cite the affidavit of plaintiff Kenneth Jones who states that "on most occasions when I would be loading my truck the next morning, the empty bread trays I unloaded on the previous afternoon would often still be in the warehouse and I would re-use them in the morning to load my delivery truck." (Jones Afft. ¶ 8.) Defendant responds that Jones' impression may result from the fact that, because of the pick up schedule of the LaPorte truck, trays may be stored for a few hours three days per week and for 24 hours two days per week. (Def.'s Reply at 5; Pearson Decl. ¶ 9 [dkt # 20].) A "tray report" submitted by Defendant reflects that of the 24,960 trays brought to the warehouse by routemen in the week ending June 1, 2002, 90 trays were not returned to bakeries. (Pearson Decl, Ex. D.) The tray report also reflects that 6,730 trays were picked up by driver returning to LaPorte in that week. (Id.)

LEGAL STANDARD

The court may properly grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, "the mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505.

DISCUSSION

Under the FLSA, employees are entitled to overtime pay if they work more than forty hours a week unless their work is subject to an exemption. 29 U.S.C. § 207(a). Exemptions to the FLSA are to be narrowly construed against the employer. See, e.g., Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). The burden is on the employer to show that it is entitled to an exemption. Klein v. Rush-Presbyterian-St. Luke's Medical Ctr., 990 F.2d 279, 282-83 (7th Cir.1993). The FLSA, 29 U.S.C. § 213(b)(1), provides an exemption to the requirement of overtime pay for employees whose qualifications and maximum hours are regulated by the Secretary of Transportation pursuant to the Motor Carrier Act ("MCA")(49 U.S.C. § 13501 et seq.). Defendant's motion for summary judgment argues that Plaintiffs' employment is subject to that exemption.

The exemption to the FLSA's overtime pay requirement is further clarified by regulations issued by the Department of Labor ("DOL"):

The exemption is applicable, under decisions of the U.S. Supreme Court, to those employees and those only whose work involves engagement in activities consisting wholly or in part of a class of work which is defined (i) as that of a driver, driver's helper, loader, or mechanic, and (ii) as directly affecting the safety of operation of motor vehicles on the public highways in transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act.

29 C.F.E. § 782.2 (emphasis added).

The MCA was enacted by Congress in 1935:

to promote efficiency, economy, and safety in the motor transportation industry. Under the MCA, the Interstate Commerce Commission ("ICC") was granted regulatory power over the employees of motor carriers, and motor private carriers. In 1966, Congress transferred this regulatory power to the Department of Transportation ("DOT").

Turk v. Buffets, Inc., 940 F.Supp. 1255, 1258-1259 (N.D.Ill.1996)(internal citations omitted).

The Secretary of Transportation is authorized by the MCA to regulate transportation between points "... in a State and another place in the same State through another State ...." 49 U.S.C. § 13501. Pursuant to 49 U.S.C. § 31502(b), the Secretary "may prescribe requirements for (1) qualifications and maximum hours of service of...