Flor Andrea Rodriguez Asalde v. First Class Parking Systems LLC
Opinion of the Court
Flor Andrea Rodriguez Asalde worked as a valet for First Class Parking Systems LLC. She and others who also worked as valets brought claims in a putative collective action under the minimum-wage and overtime provisions of the Fair Labor Standards Act against FCPS and related parties (whom we refer to collectively as FCPS). The district court granted summary judgment in favor of FCPS, but did so based on a misreading of the term "materials" in
I
The FLSA enumerates the employment situations that are covered by its provisions. See
FCPS moved for summary judgment on several grounds, including that the plaintiffs could not provide evidence that any employees handled any qualifying "goods or materials." The district court agreed and granted summary judgment on this basis alone. The court concluded that the plaintiffs' activity of parking cars did not meet the handling clause's "goods or materials" requirement. It also ruled that the fact that the plaintiffs "handled walkie-talkies, pens, uniforms, valet tickets and other items that originated out of state" was irrelevant to the analysis because "[FCPS] was the ultimate consumer of those goods." Rodriguez Asalde v. First Class Parking Sys. LLC, No. 16-cv-20027, *1250
II
We review the district court's summary judgment order de novo, and view the evidence (and inferences) in the light most favorable to the plaintiffs, who were the non-moving parties. See Howlett v. Birkdale Shipping Co., S.A.,
A
"Goods" and "materials" are distinct (i.e., not overlapping) categories; an object may be a "good" in certain contexts and a "material" in others. See Polycarpe,
In Polycarpe, we concluded that "materials" are "tools or other articles necessary for doing or making something."
First, whether an item counts as "materials" depends on whether the item is serving as a material in context.... [T]o count as "materials," an item must [be a] tool[] or other article[] necessary for doing or making something....
Second, for an item to count as "materials" it must have a significant connection with the employer's commercial activity; the business may not just somehow internally and incidentally consume the item.
First, following the lead of the Senate Report for certain 1974 amendments to the FLSA, we discussed laundry soap. See
Second, we looked to a Department of Labor letter. That letter opined that coffee served by a fast-food retailer, as well as the cleaning supplies and equipment that it used, were "materials" for the purpose of this test. See
Third, we considered the example of china plates. See
Applying this test, and considering the examples we provided, we held in Polycarpe that the district court on remand would have to determine whether the following items could be found to be "materials": (1) "shutters containing blades that were evidenced to have been made in Col[o]mbia," sold by the employer and installed by its employees,
Our recent decision in Rodriguez,
In so holding, we further elaborated on the definition of "materials." We favorably cited the decision of the district court on remand in Polycarpe, which had held that "trucks used by the employees in a landscaping business were `materials.'"
Ultimately, we reasoned that cars parked by valets are not "materials" because they are an item on which a service is performed rather than the means of performing the service. See
[t]he cars that Rodriguez parks are more akin to the clothing than the soap in this example. Like the dirty clothing brought to the commercial laundry to be washed, the cars are handed to the valet parkers to be parked. In both cases, the employees perform a service for the customer with respect to the items left in their care. The employees do something to the cars here, like the employees of the commercial laundry do something to the clothes. In both cases, the customers' goods are returned to the customer after the service is performed on them. Neither the cars here nor the clothes in the laundry are tools necessary to do a job; rather, they are the "goods" which are serviced by the employees using tools (like soap in the commercial laundry).
Rodriguez,
B
In this case, the district court held that the plaintiffs could not establish "handling clause" coverage because (1) as we later confirmed in Rodriguez, vehicles parked by valets are "goods" subject to the "ultimate consumer" exception, and not "materials," and (2) the walkie-talkies, pens, uniforms, valet tickets, etc. that employees of FCPS used are "goods" and also subject to *1252the ultimate-consumer exception. See Rodriguez Asalde,
The plaintiffs argue that the walkie-talkies, pens, uniforms, valet tickets, etc. that they used in their jobs were "materials." FCPS disagrees, defending the district court's conclusion. Based on the record before us, and our reading of the relevant statutory provisions and precedent, we hold that the plaintiffs have established that there are triable issues sufficient to defeat FCPS' motion for summary judgment. For the present, it is enough for us to analyze and rest our decision on the uniforms that the plaintiffs aver that they had to wear as valets.
Applying the Polycarpe test, which focuses on context, first we address whether the uniforms were "tools or other articles necessary for doing or making something."
As we noted in Polycarpe, an item may qualify as a "material" as long as "a business provides a service using [the] item as part of its commercial operations."
Similarly, here, there is evidence that FCPS uses the plaintiffs' uniforms - which according to the plaintiffs are mandatory, see Affidavit of Cabrera Savinovich, D.E. 44-1 at ¶ 48 - to provide valet services because they offer a way for customers to identify the valets (and to see them as professional and trustworthy). It makes no difference that FCPS could possibly operate its valet business without requiring its employees to wear uniforms. The bottom line is that FCPS "us[es]" the uniforms to provide a service, which is sufficient to satisfy the first prong of the Polycarpe test. See generally Anat Rafaeli & Michael Pratt, Tailored Meanings: On the Meaning and Impact of Organizational Dress, *125318 Acad. of Mgmt. Rev. 32, 47-48 (Jan. 1993).
The second prong of the test that we laid out in Polycarpe requires "a significant connection [between the item and] the employer's commercial activity" - i.e., that "the business [does] not just somehow internally and incidentally consume the item."
The district court in Mendoza granted summary judgment to an employer in an FLSA case in part on the basis that the uniforms worn by employees at a car wash were not sufficiently connected to the employer's commercial activity to be "materials." See
Assuming without deciding that its analysis is sound, Mendoza is distinguishable from the case before us. In our view, the car washers' uniforms in Mendoza were less connected to the employer's commercial activity than the valets' uniforms in this case. A jury could find that a valet's uniform is distinctive because it identifies for customers the person to whom they should entrust their vehicle. A jury could similarly find that customers' ability to identify the valet is essential to the valet company's commercial activity because if customers cannot identify the valet they may be unable or unwilling to use the valet company's services. A car washer's uniform, by contrast, appears less connected to the car wash's commercial activity because customers can easily locate a car wash (and see their cars being washed) even if its employees do not wear uniforms. Thus, even though an employee's uniform may not always be sufficient to satisfy the second prong of the Polycarpe test, we conclude that the plaintiffs' uniforms are sufficient to create a jury issue in this case.
In sum, we hold that a reasonable jury could find that the plaintiffs' FCPS uniforms are "materials" under the FLSA.
III
To show that enterprise liability applies in a given case, an FLSA plaintiff must also establish that the "material" at issue "ha[s] been moved in or produced for [interstate or international] commerce by any person."
The plaintiffs defend the district court's conclusion. They point out that their uniforms have "Made in China," "Made in Jordan," and "Made in Colombia" printed on their labels. FCPS disagrees, generally arguing that the location printed on an item is irrelevant to determining where it originated. See Appellees' Br. at 11.
Given the case's summary judgment posture, FCPS is wrong. A label *1254reflecting an item's place of manufacture is admissible evidence and suffices to support a jury finding as to origin, as all courts reaching the question seem to agree. See, e.g., United States v. Brantley,
IV
The district court correctly ruled that the vehicles parked by the plaintiffs are "goods" subject to the ultimate consumer exception, and not "materials" under the FLSA. Nevertheless, FCPS was not entitled to summary judgment on the plaintiffs' FLSA claims. Viewing the evidence in the light most favorable to the plaintiffs, a jury could reasonably find that the uniforms they had to wear as valets for FCPS constitute "materials" under § 203(s)(1)(A) of the FLSA. The labels on the uniforms, which reflect foreign manufacture, similarly create a jury issue as to whether the uniforms moved in international or interstate commerce under § 203(s)(1)(A)(ii).
We reverse the district court's grant of summary judgment in favor of FCPS and remand for further proceedings consistent with our opinion.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
The majority opinion relies on the following guidance set forth in a January 22, 1997, Department of Labor ("DOL") opinion letter:
Under the enterprise provisions of the FLSA[,] an employer does not have to have employees `engaged in commerce' directly provided that the enterprise `has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person . This literally means that any products, supplies, or equipment used by employees of the enterprise that were produced or shipped from outside the State (even though purchased by the enterprise from suppliers within the State) would cause the employees to be covered. For example, the coffee served, cleaning supplies utilized, cooking equipment (ranges fryers, grills) operated, etc., that have been produced out-side of or shipped by any person from out-side the State, would trigger this provision.
See Op. Letter, Fair Labor Standards Act (Dep't of Labor Jan. 22, 1997),
Even though Polycarpe also cited the DOL opinion letter, it did so only for the limited reason to support the definition of "handling" as to "have or cause to pass through one's hands in commercial transactions" or "to trade in: engage in the buying, selling, or distributing of (a commodity)" or "[t]o have in hand or pass through one's hands in the way of business; to trade or deal in; to buy and sell."
Given these rulings, we need not reach the other issues presented, such as whether there is evidence that other items used by the plaintiffs in their work as valets were "materials" or moved in international or interstate commerce.
Concurring in Part
I concur with the majority's conclusion that the trial court ruled correctly that the vehicles parked by the plaintiffs are "goods" subject to the ultimate consumer exception, and not "materials" under the FLSA. Recent Eleventh Circuit precedent dictates this result. Rodriguez,
I do not agree with the majority's interpretation of the term "materials" under the FLSA, or its ultimate conclusion that "the evidence the plaintiffs presented sufficed to allow a jury to conclude that uniforms used by FCPS' employees were `materials' within the meaning of § 203(s)(1)(A)(i)." Maj. Op. at 1250. Circuit precedent does not support that uniforms in the context of this case are "materials."
In Polycarpe, the Eleventh Circuit stated that "whether an item counts as `materials' depends on whether the item is serving as a material in context." Polycarpe,
Second, for an item to count as a "material," it must have a "significant connection with the employer's commercial activity."
The majority relies on the language in a Senate Report to advocate for a new standard to allow items used in a business to determine if the FLSA applies under the Polycarpe two-part test. Maj. Op. at 1252-53. Specifically, the majority relies on language in S. Rep. 93-690 to state that use alone is sufficient to meet the first part of the Polycarpe test for "material." That is, even an unnecessary item, if not locally produced, can constitute a "material" if the item was useful to the provision of a service. Reliance on legislative history and agency interpretation,
*1256In applying the Polycarpe two-part test, I do not believe any reasonable juror would find that FCPS' employees' uniforms were (i) "necessary" for FCPS' business or (ii) "significantly connected to [FCPS'] commercial activity." The necessity of a uniform in performing a valet parking service is unlike the necessity of a launderer's soap to clean a customer's clothing, a security guard's use of a handgun to protect a premise, or a landscaper's use of his truck to transport heavy-duty equipment to his clients' properties - all of which are essential to the operation of the business in question. See, e.g., Dixon v. Maximum Sec. Service, LLC,
The majority's relaxed "materials" test erodes the disciplined two-part test announced in Polycarpe. Under the Polycarpe test, and assuming the determination of whether an item such as a uniform is a question of fact for the jury to decide, I find that a valet "uniform" is not, in this context and on the record here, a tool or article necessary to the valet business, and a reasonable juror would not find otherwise.
For these reasons, I would affirm the trial court.
Honorable William S. Duffey, Jr., United States District Judge for the Northern District of Georgia, sitting by designation.
"Goods" (unlike "materials") are subject to an "ultimate consumer exception," under which, if employees "handl[e]," etc., "goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof," then such "handl[ing]," etc., will not serve as a predicate for "enterprise coverage." Polycarpe,
Reference
- Full Case Name
- Flor Andrea Rodriguez ASALDE, John Conde, Javier Antonio Cabrera Savinovich, and All Others Similarly Situated Under 29 U.S.C. § 216(b), Plaintiffs-Appellants, v. FIRST CLASS PARKING SYSTEMS LLC, A.K.A. 1 Class Valet Service, Sebastian Lopez, Jorge Zuluaga, Defendants-Appellees.
- Cited By
- 1 case
- Status
- Published