Thomas v. Wichita Coca-Cola Bottling Co., COCA-COLA

• Decision Date: 01 July 1992
• Docket Number: COCA-COLA,Nos. 91-1274,91-1342,s. 91-1274
• Citation: 968 F.2d 1022
• Parties: 30 Wage & Hour Cas. (BNA) 1606, 122 Lab.Cas. P 35,666 Mark A. THOMAS, John Hagar, Douglas Gillott, Reyes Medrano, Edward Watkins, Anthony Sintas, Anthony Giron, Michael Church, Buckley Berkey, William Churchill, and Victor Bradee, on their Behalf, and on Behalf of all Similarly Situated Individuals who may be elected to Participate in this Action Pursuant to 29 U.S.C., Section 126(d), Plaintiffs-Appellants, v. The WICHITABOTTLING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1022

968 F.2d 1022

30 Wage & Hour Cas. (BNA) 1606, 122 Lab.Cas.

P 35,666

Mark A. THOMAS, John Hagar, Douglas Gillott, Reyes Medrano,

Edward Watkins, Anthony Sintas, Anthony Giron, Michael

Church, Buckley Berkey, William Churchill, and Victor

Bradee, on their Behalf, and on Behalf of all Similarly

Situated Individuals who may be elected to Participate in

this Action Pursuant to 29 U.S.C., Section 126(d), Plaintiffs-Appellants, v. The WICHITA COCA-COLA BOTTLING COMPANY, Defendant-Appellee.

Nos. 91-1274, 91-1342.

United States Court of Appeals,

Tenth Circuit.

July 1, 1992.

Andrew T. Brake (Lee Thomas Judd with him on the brief), of Andrew T. Brake, P.C., Denver, for plaintiffs-appellants.

Elaine H. Turner, Colorado Springs (Gregory A. Eurich, Denver, with her on the brief), of Holland & Hart, for defendant-appellee.

Before LOGAN, ENGEL and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Pursuant to the provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219, Plaintiffs-Appellants (Plaintiffs) sought to recover overtime wages from their employer, Defendant-Appellee Wichita Coca-Cola Bottling (Wichita). Wichita denied any obligation to pay overtime, relying on the motor carrier exemption of the Act, § 13(b)(1), 29 U.S.C. § 213(b)(1). The district court granted summary judgment in favor of Wichita, holding as a matter of law that (1) Plaintiffs performed duties that were involved in interstate commerce and (2) the Department of Transportation had the power to regulate Plaintiffs' hours. Our jurisdiction to review the district court's summary judgment arises under 28 U.S.C. § 1291 and we affirm.

Background

The Fair Labor Standards Act of 1938 (FLSA or Act) provides that any employee who "is engaged in commerce or in the production of goods for commerce" shall be paid a minimum of one and one-half times his regular rate for a work week longer than forty hours. Act, § 7(a)(1); 29 U.S.C. § 207(a)(1). The Act exempts from the overtime provisions of § 207:

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 304 of Title 49; ...

29 U.S.C. § 213(b)(1). Whether this exemption applies is dispositive of this appeal.

Undisputed affidavits before the district court established the following facts. Wichita is a privately-owned corporation headquartered in Wichita, Kansas, and is engaged in the business of bottling and selling Coca-Cola products. As part of its Colorado division, Wichita has a sales center in Colorado Springs. Plaintiffs seek overtime pay in connection with their employment as route drivers and route supervisors in the sales center. Although Wichita did not pay overtime to its route drivers and route supervisors, it did pay overtime to its merchandisers and warehouse laborers. Wichita regarded these latter positions as nonexempt under the Act.

The Colorado Springs sales center obtains approximately ninety percent of its products from Wichita's bottling facility in Kansas. The sales center places product orders with the Wichita bottling facility two weeks in advance of delivery. Orders are based on anticipated orders from sales center customers. The sales center attempts to keep a two-week inventory of Coca-Cola products in its warehouse.

The Coca-Cola products normally are transported by Wichita's drivers (who are based in Kansas) from the bottling facility in Wichita to the sales center, although occasionally the products are transported by common carrier. The products are stored in the sales center warehouse until delivered to customers by route drivers, who regularly transport the products to customers. Route supervisors also regularly transport these Coca-Cola products to customers when they fill in for route drivers. Both drivers and supervisors are required, when delivering Coca-Cola products from the Colorado Springs sales center, to pick up empty product containers held by customers. The empty containers are then returned to the sales center and transported to the Wichita, Kansas bottling facility on a daily basis.

Route drivers, and supervisors when filling in for route drivers, are required to complete Department of Transportation (DOT) logs recording the time spent from the time the delivery truck leaves the sales center warehouse until the truck returns. These DOT logs are retained in accordance with DOT regulations and are subject to DOT inspection. All route drivers and route supervisors are required to pass DOT written tests and driving tests and must complete various DOT forms. They also must pass a DOT physical and drug test. Each driver is given a copy of the Federal Motor Carriers Safety Regulations Pocketbook containing applicable DOT regulations.

Discussion

Plaintiffs appeal from the grant of summary judgment. Our review is de novo and we apply the same legal standard used by the district court in evaluating the summary judgment motion, namely Fed.R.Civ.P. 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991).

A movant need only point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551-52, 91 L.Ed.2d 265 (1986). If a movant establishes its entitlement to judgment as a matter of law given uncontroverted, operative facts contained in the documentary evidence, summary judgment will lie. See Anderson, 477 U.S. at 251, 106 S.Ct. at 2511.

"Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)) (emphasis supplied). Thus, when a movant claims that there is no genuine issue for trial because a material fact is undisputed, the nonmovant must do more than refer to allegations of counsel contained in a brief to withstand summary judgment. Rather, sufficient evidence (pertinent to the material issue) must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein. Id.; Phillips v. Calhoun, 956 F.2d 949, 952-53 (10th Cir.1992). In the absence of such specific reference, we will not search the record in an effort to determine whether there exists dormant evidence which might require submission of the case to a jury. Id. Such an appellate supplementation of the nonmovant's presentation would not be fair to either the movant or the district court.

Plaintiffs do not contest the facts as set forth above. Instead, they argue that the inferences from these facts demonstrate a material factual dispute concerning whether Wichita intended that product delivered from Kansas to Colorado would remain in interstate commerce once it reached the warehouse. Plaintiffs suggest that, once delivered, the product remained in the warehouse and took on an intrastate character. Assuming arguendo that Wichita's intent with respect to its product deliveries does present a question of fact, absolutely no dispute exists regarding the handling of empty product containers. They are picked up on a daily basis, returned to the Colorado Springs warehouse, loaded onto trucks and shipped to Wichita's out-of-state bottling facility.

The regular...