     Case: 17-20635       Document: 00514550305        Page: 1    Date Filed: 07/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals

                                      No. 17-20635
                                                                               Fifth Circuit

                                                                             FILED
                                                                         July 11, 2018

JUAN AMAYA,                                                             Lyle W. Cayce
                                                                             Clerk
                Plaintiff - Appellant

v.

NOYPI MOVERS, L.L.C.; PIONEER CONTRACT SERVICES,
INCORPORATED; SUSAN SUSUSCO; RAUL SUSUSCO; BLUGGI, L.L.C.,

                Defendants - Appellees




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 4:15-CV-928


Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Juan Amaya filed a collective action suit against Pioneer Contract
Services, Inc., NOYPI Movers, L.L.C., BLUGGI, L.L.C., 1 and two individual
executives of NOYPI (collectively, “the defendants”). Amaya seeks unpaid
overtime wages owed under the Fair Labor Standards Act, 29 U.S.C. § 216(b).




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1   NOYPI was the prior name for what is now BLUGGI, L.L.C.
    Case: 17-20635    Document: 00514550305         Page: 2   Date Filed: 07/11/2018



                                 No. 17-20635
Amaya appeals the district court’s grant of summary judgment in favor of the
defendants. For the reasons set forth, we reverse.
                                          I.
      Pioneer Contract Services is a commercial relocation and business
support service provider. Specifically, the business assists in commercial
relocation, asset management and warehousing, records and information
management, new furniture sales, furniture refurbishing, and administrative
support. It also provides assembly and installation services for the office
furniture it sells, which includes workspace cubicles. Pioneer subcontracted
with NOYPI Movers, L.L.C., to provide additional workers to assist with
clients both in and out of Texas. NOYPI employees were hired for distinct
assignments—some for driving, others for moving, and still others for
installing furniture, a role called “Panel Tech.”
      Pioneer and NOYPI together utilized about 35 commercial trucks for
their moving services. And although the companies together carried out 545
jobs from 2012 to 2014, only a small portion of the two companies’ joint services
were provided to out-of-state clients. Pioneer’s Vice President asserted just 15
required deliveries across state lines.
      Amaya was an NOYPI employee hired by Pioneer as a Panel Tech to
install workspace cubicles. The remaining contours of Amaya’s position are
disputed in the record. Pioneer’s Vice President asserted that, in this capacity,
Amaya and other furniture-installing employees were also responsible for
loading the trucks that transported office furniture, and, specifically, the
deliveries that travelled across state lines. But Amaya testified by deposition
that he rarely engaged in truck-loading. Furthermore, he could not recall “ever
traveling outside of Texas when [he] worked for” NOYPI; indeed, the vast
majority of his work remained within Houston.


                                          2
    Case: 17-20635    Document: 00514550305     Page: 3   Date Filed: 07/11/2018



                                 No. 17-20635
      On April 9, 2015, Amaya filed a collective action lawsuit on behalf of
other “installer[s] of office furniture,” seeking unpaid overtime wages under
the Fair Labor Standards Act (“FLSA”). The defendants filed a motion for
summary judgment on January 9, 2017, asserting that his overtime claim
should be dismissed under the Motor Carrier Act (“MCA”) exemption—an
argument they had also raised as an affirmative defense. On September 30,
2017, the district court agreed and granted the motion for summary judgment.
Final Judgment was entered a few days later, and Amaya timely appealed.
                                       II.
      We review a grant of summary judgment de novo, applying the same
standards as the district court. Luv N’ Care, Ltd. v. Groupo Rimar, 844 F.3d
442, 446–47 (5th Cir. 2016). “The court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). The
court must review the evidence “in the light most favorable to the nonmovant,
drawing all reasonable inferences in the nonmovant’s favor.” Songer v. Dillon
Res., Inc., 618 F.3d 467, 471 (5th Cir. 2010). Further, we have established that,
“[f]or a defendant to obtain summary judgment on an affirmative defense, it
must establish beyond dispute all of the defense’s essential elements.” Bank of
La. v. Aetna U.S. Healthcare, Inc., 468 F.3d 237, 241 (5th Cir. 2006).
      The defendants have the burden to prove that the MCA exemption
applies. Dalheim v. KDFW-TV, 918 F.2d 1220, 1224 (5th Cir. 1990). As recently
clarified by the Supreme Court, the FLSA’s list of exemptions must be given a
“‘fair reading,’ as opposed to the narrow interpretation previously espoused by
this and other circuits.” Carley v. Crest Pumping Techs., L.L.C., 890 F.3d 575,




                                       3
     Case: 17-20635       Document: 00514550305         Page: 4    Date Filed: 07/11/2018



                                      No. 17-20635
579 (5th Cir. 2018) (quoting Encino Motorcars, LLC v. Navarro, 138 S. Ct.
1134, 1142 (2018)). 2
       The FLSA requires employers to pay an employee one and a half times
his “regular rate” for time spent working beyond forty hours in a week. 29
U.S.C. § 207(a)(1). The MCA exemption to this requirement is introduced by
the FLSA itself. Specifically, the statute notes that the overtime requirement
does not apply to “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 31502 of Title 49.” Id. § 213(b)(1).
Section 31502, in turn, permits the Secretary to “prescribe requirements for
. . . qualifications and maximum hours of service of employees of . . . motor
carrier[s]” and “motor private carrier[s].” 49 U.S.C. § 31502(b).
       The Department of Labor promulgated regulations to define these
employees further. Specifically, they:
              (1) [a]re employed by carriers whose transportation of
              passengers or property by motor vehicle is subject to
              [the Secretary of Transportation’s] jurisdiction under
              section 204 of the [MCA] . . . and (2) engage in
              activities of a character directly affecting the safety of
              operation of motor vehicles in the transportation on
              the public highways of passengers or property in
              interstate or foreign commerce within the meaning of
              the [MCA].
29 C.F.R. § 782.2(a); Allen v. Coil Tubing Servs., L.L.C., 755 F.3d 279, 283 (5th
Cir. 2014). As this court has long noted, this definition comprises qualifications


       2 We note that our prior opinions on the MCA exemption enunciated this now-
erroneous principle of construction. See, e.g., Allen v. Coil Tubing Servs., L.L.C., 755 F.3d
279, 283 (5th Cir. 2014); Songer v. Dillon Res., Inc., 618 F.3d 467, 471 (5th Cir. 2010). But
the central analyses of these decisions remain unaffected because they concern the
interpretation and application of FLSA-implementing regulations, not the statute itself. See
Allen, 755 F.3d at 283–85; Songer, 618 F.3d at 473–76. Accordingly, our reliance on these
cases and the regulations they evaluate (whose applicability is not disputed by the parties)
remains unaffected by Encino Motorcars.
                                             4
    Case: 17-20635     Document: 00514550305     Page: 5   Date Filed: 07/11/2018



                                  No. 17-20635
for both the employer and employee. Songer, 618 F.3d at 472. “For the motor
carrier exemption to apply . . . [the employees] must meet both of these
requirements.” Allen, 755 F.3d at 283 (internal quotation omitted). As Amaya
has conceded that his employer qualifies as a carrier subject to the Secretary’s
jurisdiction, we need only focus on the latter—that is, the status of Amaya and
the class of employees he represents.
      The MCA exemption is available only to certain types of employees who
perform a specific type of work. Only employees who—either “wholly or in
part”—engage in work as “drivers, driver’s helpers, loaders, [or] mechanics”
may be exempt. 29 C.F.R. § 782.2(b)(2)(i). Relevant here, the duties of loaders
“include, among other things, the proper loading of [their] employer’s motor
vehicles so that they may be safely operated on the highways of the country.”
Id. § 782.5. Notably, the responsibility must not be a “casual[] or occasional . .
. part of an employee’s activities.” Id. As to the type of work, the court must
discern whether it “directly affect[s] the safety of operation of motor vehicles
on the public highways in transportation in interstate . . . commerce.” Id.
§ 782.2(b)(2)(ii).
      The proper application of these requirements entails an analysis that is
both specific and general. On the one hand, courts do not merely rely on “the
name given to [the] position nor that given to the work” done. Allen, 755 F.3d
at 283 (quoting 29 C.F.R. § 782.2(b)(2)). Instead, “[i]t is the character of the
activities rather than the proportion of either the employee’s time or of his
activities” that controls. Levinson v. Spector Motor Serv., 330 U.S. 649, 674–75
(1947); see 29 C.F.R. § 782.2(b)(2). Conversely, consistent with regulatory
guidance, we have never set a specific quantification of how frequently
employees must engage in the sort of work that would qualify for the MCA
exemption. For example, “we look to whether the employees ‘could reasonably
have been expected to [engage] in interstate commerce consistent with their
                                        5
    Case: 17-20635     Document: 00514550305      Page: 6   Date Filed: 07/11/2018



                                  No. 17-20635
job duties.’” Allen, 755 F.3d at 284 (quoting Songer, 618 F.3d at 476); see 29
C.F.R. § 782.2(b)(3) (noting that the determination must look to what an
employee does in “the ordinary course of his work”). Moreover, we evaluate the
work of the employees on a class-wide basis, “even if, in doing so, the effect is
to apply the MCA exemption to employees who rarely, or never, engage in
interstate commerce.” Id. at 287.
      To be sure, when evaluating the nature of work from a class-wide
perspective, we do not require a particularly high concentration of qualifying
work in order to meet the MCA exception. See, e.g., Morris v. McComb, 332
U.S. 422, 433–34 (1947) (MCA exception applies when only 4% of the
employees’ work involved interstate transport); Songer, 618 F.3d at 475–76
(employees had a reasonable expectation when only 2.75% of freights were
transported interstate). Indeed, in Morris, the Court applied the exception
despite the fact that two of 43 drivers in the class had never engaged in
interstate commerce. 332 U.S. at 433.
      Yet, we cannot merely rubber-stamp an employer’s assertion that the
MCA exemption applies. Notably, “where the continuing duties of the
employee’s job have no substantial direct effect on such safety of operation or
where such safety-affecting activities are so trivial, casual, and insignificant
as to be de minimis, the exemption will not apply to [the employee].” 29 C.F.R.
§ 782.2(b)(3); see Allen, 755 F.3d at 284; Wirtz v. C & P Shoe Corp., 336 F.2d
21, 29–30 (5th Cir. 1964) (no FLSA exemption for employees “who sporadically
helped on the trucks or acted as drivers”).
      After weighing these various standards and reviewing the record, we
cannot agree with the district court that the defendants have met their burden.
For one, the record evidence indicates Amaya and the class of employees for
which he brings this action are hired for the purpose of installing office cubicles
ordered by the defendants’ clients. It is true that Pioneer’s Vice President’s
                                        6
    Case: 17-20635    Document: 00514550305     Page: 7   Date Filed: 07/11/2018



                                 No. 17-20635
declaration broadly asserted that “NOYPI employees, including Juan Amaya,”
were responsible for loading commercial trucks and were required “to exercise
judgment and discretion” to ensure the safe transit of the load. But Amaya
testified that he was “hardly ever” involved in such activities. He could recall
loading items only a “few times” during his years with the company. Moreover,
he described his loading work as “help[ing] . . . carry the cubicles onto the
trucks.” At the very least, there remains a material issue of fact as to whether
the loading activities of Amaya and other furniture-installing Panel Tech
employees were too “casual or occasional” to qualify them as “loaders.” 29
C.F.R. § 782.5.
      Furthermore, the record lacks a sufficient evidentiary basis to tie the
loading work done by Panel Techs specifically to interstate commerce. The
declaration merely states that NOYPI employees “loaded . . . commercial
trucks on approximately 545 different jobs” between 2012 and 2014, and that
“15 of those jobs in which . . . trucks were loaded by NOYPI employees,
including Juan Amaya, required interstate travel.” The record also includes
certain work orders that required interstate deliveries listing Pioneer
employees involved. Notably, only two list the involvement of NOYPI Panel
Techs, and they provide no information regarding the nature of their
involvement. This is an insufficient basis to establish that Amaya and his class
“could reasonably have been expected” to load trucks engaged in interstate
commerce. Allen, 755 F.3d at 284 (quoting Songer, 618 F.3d at 476).
      To see why this is so, it is important to remember that NOYPI employees
were hired for different tasks, but the lawsuit here only concerns the actions
of a distinct subset: Panel Tech. The aforementioned evidence fails to establish
how frequently these furniture-installing employees loaded any trucks for
Pioneer—let alone the fifteen trucks that crossed state borders. If anything,
the evidence (namely, Amaya’s own deposition testimony) suggests Panel Tech
                                       7
    Case: 17-20635    Document: 00514550305     Page: 8   Date Filed: 07/11/2018



                                 No. 17-20635
employees were rarely involved in any loading activities. And Amaya’s own
work never caused him to travel interstate.
      To be sure (and as we have noted), the connection between workers and
interstate commerce can be quite thin. But the guiding case law all
presupposes that there exists at least some connection. For example, Morris
and Songer both involved classes comprising truck drivers who were directly
responsible for transporting activities. Morris, 332 U.S. at 431–35; Songer, 618
F.3d at 473–76. Although only a small percentage of their work was tied to
interstate transport, it was clear from the record that this percentage could
still be attributed to work done by the class. Id. Here, the record provides no
such clarification.
      In short, applying both the summary judgment standard of review to the
evidence and the relevant burden for establishing an MCA exemption, the
defendants have failed to provide sufficient evidence to prove that any of the
workers in the plaintiff’s class were involved as loaders with the 15 interstate
shipments that the declaration attributes to NOYPI employees.
                                      III.
      We REVERSE the district court’s judgment, and REMAND the matter
for further proceedings.




                                       8
