                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT           FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               NOV 28, 2008
                                   No. 08-13412
                                                             THOMAS K. KAHN
                               Non-Argument Calendar
                                                                 CLERK
                             ________________________

                       D. C. Docket No. 07-80584-CV-KLR

STEVEN ABEL,
on his own behalf and all
others similarly situated,

                                                             Plaintiff-Appellant,

                                      versus

SOUTHERN SHUTTLE SERVICES, INC.,
a Florida Corporation,

                                                            Defendant-Appellee.

                             ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                (November 28, 2008)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:
       Plaintiff Steven Abel appeals the district court’s order granting summary

judgment to his former employer, Southern Shuttle Services, Inc. (“Southern

Shuttle”), on his claim for unpaid overtime brought pursuant to the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201-219. The district court concluded as a

matter of law that Southern Shuttle’s airport shuttle service fell within the “taxicab

exemption” to the FLSA’s overtime provisions and Abel was not entitled to

overtime compensation. After review, we reverse.

                                    I. BACKGROUND

       The following facts are not in dispute.

A.     Southern Shuttle’s Airport Service

       Southern Shuttle operates “Super Shuttle” vans that transport people to and

from three airports: Miami International Airport (“MIA”), Palm Beach

International Airport (“PBIA”) and Fort Lauderdale-Hollywood International

Airport (“FLHIA”).1 Super Shuttle (the “Shuttle”) transports customers in large,

nine- and ten-passenger vans. The Shuttle is “a shared-ride airport shuttle

service,” which means passengers share the ride to or from the airport with other

passengers. The Shuttle’s website touts its “shared ride” service as a way to offer


       1
        Southern Shuttle has an agreement with Miami-Dade County to provide ground
transportation services to MIA. Southern Shuttle has no other such contracts with airlines, hotels
or companies.

                                                2
“prices that are more economical than a taxi or limo . . . .”

       Shuttle vans pick up passengers at any location in the area (such as their

home, office or hotel) and transport them to one of the three area airports or take

passengers from the airport to any location in the area. Shuttle drivers are not

allowed to transport passengers from any location to any other location; they can

transport passengers only to or from one of the three airports. The Shuttle uses

“stands” at the three airports and is available to the general public.2

       Southern Shuttle advertises its services under the heading “Airport

Transportation” in telephone books. Taxicab companies, limousine services and

town car services also advertise under this heading. Southern Shuttle does not

advertise under the heading “Taxicabs.”

       Passengers contact the Shuttle directly. Passengers can either make

reservations ahead of time by phone or schedule a trip at the airport. Passengers

traveling to the airport schedule a fifteen-minute pickup window. Passengers

traveling from the airport check in either at an airport kiosk or counter or at

curbside with a Shuttle representative (not a driver) and wait to be assigned to a


       2
         At MIA, the Shuttle has its own “stand,” which is identical to stands used by taxicabs,
but is separately marked with signs. The Shuttle has five spots at its MIA stand. While waiting
to pick up passengers, taxicabs and the Shuttle vans wait in different designated areas. As for
PBIA, the parties dispute whether the Shuttle has a separately marked spot or stand. We do not
think this dispute affects the result in this case.

                                                3
van waiting in a “holding lot.” The Shuttle’s “dispatch office” sends the vans to

pick up passengers traveling to the airport and “routes” airport passengers with

others traveling to the same geographical area and assigns them to vans. Shuttle

drivers are not permitted to transport passengers who “hail” them on the street.

Rather, they are allowed to transport only passengers who have pre-arranged

transportation through the Shuttle’s dispatch office or a kiosk or counter inside the

airport.

       The Shuttle charges passengers a flat rate based on zip codes organized into

zones, a common practice in South Florida for both airport shuttles and some

taxicabs. Shuttle vans do not have meters or charge metered fares. Shuttle drivers

are paid commission and may accept tips. Some, but not all, Shuttle drivers have

“hack” licenses, which taxicab drivers also possess.

       From December 19, 2005 to June 24, 2007, Plaintiff Abel worked for

Southern Shuttle as a driver of vans to and from the three airports. Abel was paid

commission and tips, but no overtime compensation. For any period in which

Abel’s commission and tips was less than minimum wage, Southern Shuttle paid

Abel the additional amount needed to reach minimum wage.

B.     District Court Proceedings

       Abel filed this action on behalf of himself and other similarly situated

                                          4
employees and former employees, alleging violation of the FLSA’s overtime

provisions. Following discovery, Southern Shuttle moved for summary judgment,

arguing that Abel was exempt from receiving overtime compensation because

Southern Shuttle was in the business of operating taxicabs. The district court

agreed and granted the summary judgment motion.

       Abel filed this appeal. Abel argues the district court erred in concluding as

a matter of law that Southern Shuttle’s airport shuttle service fell within the

“taxicab exemption.”3

                                      II. DISCUSSION

       Generally, the FLSA requires an employer to pay overtime compensation at

one and one-half times the employee’s regular rate for all hours worked in excess

of forty per week. 29 U.S.C. § 207(a)(1). The FLSA exempts from its overtime

pay requirements “any driver employed by an employer engaged in the business of

operating taxicabs . . . .” 29 U.S.C. § 213(b)(17). Neither the FLSA nor the Code

of Federal Regulations defines the phrase “the business of operating taxicabs.”

When interpreting an FLSA exemption, we look to the plain language of the

       3
         We review de novo a district court’s order granting summary judgment, applying the
same legal standards as the district court and viewing the evidence and all reasonable inferences
therefrom in the light most favorable to the non-moving party. Allen v. Bd. of Public Educ. for
Bibb County, 495 F.3d 1306, 1309, 1313 (11th Cir. 2007). Summary judgment is appropriate
when the evidence shows that “there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.” Id. at 1313 (quotation marks omitted).

                                                5
statute itself and give words of the statute “their ordinary, contemporary, common

meaning.” Anderson v. Cagle’s Inc., 488 F.3d 945, 955 (11th Cir. 2007)

(quotation marks omitted). Given the remedial nature of the FLSA, we construe

exemptions narrowly against the employer. Alvarez Perez v. Sandford-Orlando

Kennel Club, Inc., 515 F.3d 1150, 1157 (11th Cir. 2008).

      The Department of Labor’s (“DOL”) field operations handbook does

contain a section on § 213(b)(17)’s taxicab exemption, which at least discusses the

common features of a taxicab:

      “Business of operating taxicabs”. The taxicab business consists
      normally of common carrier transportation in small motor vehicles of
      persons and such property as they may carry with them to any requested
      destination in the community. The business operates without fixed
      routes or contracts for recurrent transportation. It serves the
      miscellaneous and predominantly local transportation needs of the
      community. It may include such occasional and unscheduled trips to
      and from transportation terminals as the individual passengers may
      request, and may include stands at the transportation terminals as well
      as at other places where numerous demands for taxicab transportation
      may be expected.

Dep’t of Labor, Wage and Hour Division, Field Operations Handbook § 24h01.

We have said the field operations handbook is not entitled to Chevron deference,

but may be persuasive. Klinedinst v. Swift Investments, Inc., 260 F.3d 1251, 1255

(11th Cir. 2001). The employer bears the burden to show by “clear and

affirmative evidence” that an exemption applies. Birdwell v. City of Gadsden, 970

                                         6
F.2d 802, 805 (11th Cir. 1992) (quotation marks omitted).

       After reviewing the undisputed facts, we conclude that when the term

“taxicabs” is construed narrowly and given its plain meaning, it does not include

the airport shuttle vans Southern Shuttle operates. First, Congress could have used

broader words that would have encompassed other forms of passenger motor

vehicle transportation. Instead, Congress chose to limit this exemption to

“taxicabs.” Southern Shuttle does not call itself a taxicab operator or its vehicles

taxicabs.

       Second, the Shuttle’s vans do not fit within the common sense

understanding of a taxicab as reflected in the handbook. A taxicab is a small

motor vehicle that carries a passenger to any requested destination. The

passenger: (1) is not required to always have an airport destination or airport

departure as part of the trip; (2) ordinarily is not obliged to share the ride with

other passengers; and (3) is taken directly to his or her requested destination.4

       In contrast, the Shuttle is operated as “shared ride” transportation with

multiple unaffiliated passengers. Most passengers are not taken directly to their

       4
        Southern Shuttle argues that because the field operations handbook states that a taxicab
business may include trips to and from transportation terminals, its shuttle service is a taxicab
business. However, Southern Shuttle ignores the limiting language that the trips to transportation
terminals be “occasional and unscheduled.” Super Shuttle trips to and from airports are neither
occasional nor unscheduled. Every Super Shuttle trip is either to or from an airport and is
scheduled. Thus, the field operations handbook does not help Southern Shuttle.

                                                7
destination, but must wait through several stops as other passengers are picked up

or dropped off. The Shuttle markets its shared ride feature as a way to offer

passengers “prices that are more economical than a taxi or limo . . . .” Although

taxicabs may sometimes permit ride-sharing (when passengers are willing), they

generally are not operated as “shared ride” transportation.

      Southern Shuttle uses large, nine- and ten-passenger vans for its Shuttles,

not the typical smaller motor vehicles commonly used for taxicabs. Although we

are not bound by each municipality’s definition of a taxicab, both Broward County

and Miami-Dade County draw the line for taxicabs at eight passengers. See

Broward County, Fla. Code § 22½-1(k)(1) (2008); Miami-Dade County, Fla. Code

§ 31-81(qq) (2008).

      A taxicab’s fare usually is calculated by a taximeter based on distance and

time, although sometimes it is based on a flat rate. Shuttle’s vans do not have a

meter. Notably, all three counties in which Southern Shuttle operates define a

taxicab as a vehicle equipped with a meter.

      Our determination necessarily turns on the specific facts presented.

Nonetheless, we note that courts have concluded, based on many of the same

considerations, that other kinds of passenger transportation services that share

some attributes with taxicabs do not fall within the taxicab exemption. See, e.g.,

                                          8
Wirtz v. Cincinnati, Newport & Covington Transp. Co., 375 F.2d 513, 514–15

(6th Cir. 1967) (concluding unmetered, four-passenger “Red Top” sedans

operating under contract with air carriers to transport passengers to and from the

airport not taxicabs); Airlines Transp. v. Tobin, 198 F.2d 249, 252 (4th Cir. 1952)

(seven-passenger, unmetered limousines operating under contract with airline

carriers to transport passengers to and from the airport).

       Southern Shuttle argues that its airport shuttle vans are sufficiently similar

to taxicabs to claim the exemption. For instance, its Shuttles provide “point to

point” transportation and do not run on a fixed route or at set times. However, one

of the two points for a Shuttle is always one of three area airports. Thus, one end

of the route is always fixed.5 Also, the Shuttle begins each trip with a route of

scheduled stops that are predetermined by the dispatch office.

       Southern Shuttle’s other claimed similarities likewise do not fair well under

close scrutiny. Although some taxicabs charge fares by zone, Miami-Dade County

requires all taxicabs to have a taximeter, Miami-Dade County, Fla. Code § 31-


       5
         Southern Shuttle’s president averred that Southern Shuttle also operates “Passenger
Motor Carrier” vans that transport members of the general public from point to point in Miami.
Southern Shuttle provides no other information about this other shuttle service. Miami-Dade
County’s vehicles for hire ordinance contains provisions regulating “passenger motor carriers,”
which are separate from the provisions regulating taxicabs. Southern Shuttle’s vague allegation
about another shuttle service is insufficient to show by clear and affirmative evidence that it is
entitled to the taxicab exemption.

                                                 9
86(a)(2008), and Southern Shuttle admits its Shuttles do not have taximeters.

Although Southern Shuttle advertises in the yellow pages alongside taxicabs under

the heading “Airport Transportation,” so do town car services and limousine

services. Southern Shuttle does not advertise its Shuttle service under the heading

“Taxicabs.”

       Finally, Southern Shuttle argues that some drivers have what it calls a “hack

license,” by which it presumably means a chauffeur’s registration. The two

counties’ ordinances that require chauffeur’s registration–Broward County and

Miami-Dade County–do not apply only to taxicab drivers.6 See Broward County,

Fla. Code § 22½-8(a)(2008) (applies to all drivers who operate a motor vehicle for

compensation over Broward County streets); Miami-Dade County, Fla. Code § 31-

83(2008) (applies to taxicab and limousine drivers). Further, these two counties

impose additional permitting and other requirements on operators of taxicabs (as

opposed to other passenger vehicles for hire). Although the employer bears the

burden to show by clear and affirmative evidence that it is entitled to an FLSA

exemption, Southern Shuttle produced no evidence that it complies with municipal

taxicab regulations. For example, Southern Shuttle did not provide evidence that


       6
        Similarly, Palm Beach County requires all drivers of vehicles for hire (which includes
taxicabs, jitneys, shuttles and limousines) to have a county-issued identification badge. See Palm
Beach County, Fla. Code §§ 19-213, 19-221(a) (2008).

                                               10
it has either a for-hire taxicab license from Miami-Dade County or a certificate of

public convenience from Broward County. See Miami-Dade County, Fla. Code

§ 31-82(o) (requiring taxicab operators to obtain a for-hire taxicab license issued

through a highly-regulated lottery system); Broward County, Fla. Code §§ 22½-3,

22½-3, 22½-4 (requiring taxicab operators to obtain a certificate of pubic

convenience, also issued by lottery).

       Southern Shuttle asks us to construe the word “taxicab” liberally when we

are required to do the opposite. The fact that its airport shuttle vans share some

characteristics with taxicabs does not make them taxicabs. In sum, Southern

Shuttle has not shown that it is “engaged in the business of operating taxicabs.”7

Therefore, the district court erred in granting summary judgment to Southern

Shuttle on this basis. Accordingly, we vacate the district court’s order granting

summary judgment and remand for further proceedings consistent with this

opinion.

       VACATED AND REMANDED.

       7
         Southern Shuttle attached as exhibits to its motion for summary judgment DOL
documents it claimed related to prior investigations of Southern Shuttle. Southern Shuttle
contended that, after each investigation, DOL concluded that its drivers fell under the taxicab
exemption. Abel objected to the use of these documents both here and in the district court. These
documents are not authenticated or accompanied by a declaration or deposition supporting
Southern Shuttle’s factual assertions. The documents predate Abel’s employment by several
years and contain numerous redactions. Furthermore, it is not clear from the face of the
documents whether the focus of these investigations was the applicability of the taxicab
exemption or whether these were final agency determinations. Given the obvious deficiencies in
this evidence, we do not consider it.

                                               11
