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Burlaka v. Contract Transport Services LLC

United States District Court, E.D. Wisconsin

March 30, 2019

LEONID BURLAKA et al., Plaintiff,


          William C. Griesbach, Chief Judge.

         Plaintiffs Leonid Burlaka, Travis Frischmann, Tim Keuken, and Roger Robinson filed this individual, collective, and Rule 23 class action under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., against Defendant Contract Transport Services LLC (CTS), alleging that CTS violated the FLSA and Wisconsin wage statutes by failing to pay them overtime premium pay for work they performed in excess of forty hours per week. The court has subject matter jurisdiction under 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. The case is before the court on CTS's motion for summary judgment. CTS claims that the undisputed evidence establishes that Plaintiffs are subject to the Federal Motor Carrier Safety Act (FMCSA) and therefore exempt from the FLSA, as well as Wisconsin's overtime laws. For the reasons set forth below, CTS's motion for summary judgment will be granted.


         CTS is a motor carrier registered with the FMCSA that signs contracts with customers to provide for the transport of goods across state lines. CTS employs approximately 171 drivers qualified under the FMCSA regulations to drive motor vehicles in interstate commerce. At all times relevant hereto, Green Bay Packaging, Inc. (Green Bay Packaging) was one of CTS's customers. CTS contracted with Green Bay Packaging to facilitate the transport of its products in and out of Green Bay Packaging facilities to locations within and without the State. Two of CTS's operation sites were located at Green Bay Packaging facilities in Green Bay (GB Shipping Container) and De Pere (De Pere Shipping Container). From April 19, 2015 to June 8, 2018, CTS transported loaded trailers for over 17, 226 customer orders through GB Shipping Container, 19.9% of which involved movement across state lines. CTS also transported loaded trailers for over 8, 882 customer orders through De Pere Shipping Container, 26.9% of which involved movement across state lines. Def.'s Proposed Findings of Fact (DPFOF), ECF No. 23, at ¶¶ 5-6.

         To serve its customers, CTS offers a variety of services, including over-the-road transportation, trailer spotting, and yard-management services. Burlaka, Frischmann, Keuken, and Robinson performed yard-spotting duties while employed at CTS. These duties required the plaintiffs to move trailers that were sometimes loaded with product, sometimes filled with corrugated cardboard that needed to be further processed to become finished boxes, and sometimes empty within and between Green Bay Packaging facilities. The plaintiffs received instructions as to which trailers to move and where to move them from a Green Packaging employee. The plaintiffs sometimes communicated directly with a CTS dispatcher. As spotters, the plaintiffs only moved trailers within or between Green Bay Packaging facilities, although Robinson sometimes moved trailers from other CTS accounts to a Green Bay Packaging location. When the plaintiffs delivered trailers to a drop lot, the trailers would be stored briefly and then subsequently moved to another facility and then possibly out of state. When trailers were pulled from GB Shipping Container, they could be parked at concrete pads next to the docks or at an overflow lot, and these movements would not be recorded. Trailer movements that were recorded were written on spot sheets. In the course of performing their yard-spotting duties, the plaintiffs would at times cross public roads.

         According to Green Bay Packaging bills of lading and CTS spot and trip sheets, though the plaintiffs did not themselves drive loaded trailers across state lines, each plaintiff transported trailers that were subsequently driven across state lines. According to these documents: (1) between February 24, 2016 and August 25, 2017, Burlaka hauled at least sixty-eight trailers that were later driven out of state, DPFOF at ¶ 22; Pls.' Response to Def.'s Proposed Findings of Fact (PRDPFOF), ECF No. 32, at ¶ 22; ECF No. 24 App. Parts 1-2; (2) between August 12, 2014 and March 11, 2016, Frischmann hauled no fewer than thirteen trailers that were later driven out of state, DPFOF at ¶ 55; ECF No. 24 App. Part 3; (3) between August 24, 2015 and November 14, 2017, Keuken hauled no fewer than forty-one trailers that were later driven out of state, DPFOF at ¶ 37; PRDPFOF at ¶ 37; ECF No. 24 App. Parts 2-3; and (4) between September 9, 2014 and July 18, 2017, Robinson hauled no fewer than seven trailers that were later driven out of state, DPFOF at ¶ 86; ECF No. 24 App. Parts 3-4. The delay between when the plaintiffs moved these trailers and when the trailers were moved across state lines was typically one or two days. See ECF No. 24.

         The plaintiffs experienced similar hiring processes and minimum expectations of employment at CTS. The hiring process involved consenting to a background check, as required under FMCSA safety regulation 49 C.F.R. § 391.23, providing alcohol and controlled substance training and testing records in compliance with 49 C.F.R. §§ 382.405(f)-(h) and 382.413(a)-(g), providing background information from previous employers, obtaining a medical certificate, passing a pre-employment screening, certifying completion of a driver evaluation, and providing a statement of available on-duty hours. The plaintiffs each received a CTS driver handbook and agreed to follow its guidelines. During employment at CTS, the plaintiffs, like all CTS drivers, maintained commercial driver's licenses (CDLs), remained part of the drug and alcohol testing pool mandated under FMCSA safety regulations, and generally complied with the FMCSA driver application and qualification process as well as other FMCSA safety regulations. DPFOF at ¶ 16; see generally 49 C.F.R. §§ 40, 391.23-31, 391.41-43, 395. Although the plaintiffs generally complied with FMCSA regulations, CTS did not achieve full compliance. CTS did not conduct an inquiry and record of violations for the plaintiffs each year, as required under 49 C.F.R. §§ 391.25 and 391.27, and did not require the plaintiffs to complete their road tests on a public road with traffic, as required under 49 C.F.R. § 391.31(c)(5). PRDPFOF at ¶ 16. Regarding work assignments, CTS maintains a policy and practice that allows it to call on any of its drivers, including yard spotters, to transport product on public roads, including transport over state lines, although whether CTS drivers are required to accept the over-state-lines leg of interstate trips is unclear. See Aaron Cunningham Decl., ECF No. 22, at ¶¶ 3-4, 30, 33.

         On August 14, 2017, Burlaka, Keuken, and Robinson filed this action, alleging that CTS failed to pay premium overtime pay to them for work they performed in excess of forty hours per week in their roles as CTS drivers performing yard-spotting duties, in violation of the FLSA and Wisconsin law. On March 15, 2018, Frischmann was added as a plaintiff in an amended complaint, along with individual and Rule 23 class action claims for violation of the Wisconsin wage statute.


         Summary judgment is appropriate where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is genuine if a reasonable trier of fact could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wollenburg v. Comtech Mfg. Co., 201 F.3d 973, 975 (7th Cir. 2000). A fact is material only if it might affect the outcome of the case under governing law. Anweiler v. Am. Elec. Power Serv. Corp., 3 F.3d 986, 990 (7th Cir. 1993). The standard for summary judgment mirrors the standard for directed verdict under Federal Rule of Civil Procedure 50(a), which requires that a verdict not be directed where reasonable minds could differ as to the import of the evidence. Anderson, 477 U.S. at 250-51. The “genuine issue” summary judgment standard is very close to the “reasonable jury” directed verdict standard, the small difference being procedural timing. Id. at 251. “In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. A court faced with a motion for summary judgment must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Foley v. City of Lafayette, Ind., 359 F.3d 925, 928 (7th Cir. 2004).


         The FLSA requires employers to pay overtime pay to employees who work in excess of forty hours per week. 29 U.S.C. § 207(a)(1); Johnson v. Hix Wrecker Serv., Inc., 651 F.3d 658, 660 (7th Cir. 2011). As a general rule, employees of a motor carrier that engages wholly in intrastate commerce are subject to the Secretary of Labor's jurisdiction, and consequently to the overtime and maximum hours provisions of the FLSA. Johnson, 651 F.3d at 660 (citing Reich v. Am. Driver Serv., Inc., 33 F.3d 1153, 1155 (9th Cir. 1994)). “In contrast, the employees of a motor carrier that engages in interstate commerce may come under the Secretary of Transportation's jurisdiction under the Motor Carrier Act.” Id. at 650-51; 49 U.S.C. § 31502; 29 U.S.C. § 213(b)(1) (Motor Carrier Act (MCA) Exemption). Employees covered by the MCA exemption are also exempt from the state wage and overtime laws. Wis. Admin. Code DWD § 274.04(4). The reason for this exemption in the MCA, like similar exemptions in legislation regulating railroad and maritime employees, is public safety:

In comparable fields, Congress previously had prescribed safety equipment, limited maximum hours of service and imposed penalties for violations of its requirements. In those Acts, Congress did not rely upon increases in rates of pay for overtime service to enforce the limitations it set upon hours of service. While a requirement of pay that is higher for overtime service than for regular service tends to deter employers from permitting such service, it tends also to encourage employees to seek it. The requirement of such increased pay is a remedial measure adapted to the needs of an economic and social program rather than a police regulation adapted to the rigid enforcement required in a safety program.

Levinson v. Spector Motor Serv., 330 U.S. 649, 657 (1947) (footnote omitted) (citing OvernightMotor Co. v. Missel, 316 U.S. 572, ...

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