Flora Andrea Rodriguez Asalde v. First Class Parking Systems LLC
Opinion
We withdraw our previous opinion, reported at
Flor Andrea Rodriguez Asalde and others worked as valets for First Class Parking Systems LLC in Miami-Dade County, Florida. They brought claims against FCPS and its owners (whom we refer to collectively as FCPS) under the minimum-wage and overtime provisions of the Fair Labor Standards Act,
Following a review of the record, and with the benefit of oral argument, we conclude that FCPS was not entitled to summary judgment on the issue of "enterprise" coverage. Based on the evidence, a jury could find that the valet tickets used by the plaintiffs in their work for FCPS constituted "materials" under the FLSA's "handling clause," thereby providing "enterprise" coverage.
See
I
The FLSA covers certain employment scenarios.
See, e.g.,
When it moved for summary judgment, FCPS argued in part that the plaintiffs could not show that any employees handled any qualifying "goods or materials." The district court agreed and granted summary judgment in favor of FCPS on this basis alone. The court concluded that the cars parked by the plaintiffs were not "materials" under the FLSA. It also ruled that "the fact that [the plaintiffs] handled walkie-talkies, pens, uniforms, valet tickets and other items that originated out of state" did not change the "instrastate nature of their work" because "[FCPS] was the ultimate consumer of those goods."
Rodriguez Asalde v. First Class Parking Sys. LLC
,
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.
,
III
"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,"
We set out the following test for determining whether an item constitutes a "material" under the FLSA:
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.
Id . at 1226. We also provided multiple examples to explain what this test means in practice.
First, following the lead of the Senate Report for certain 1974 amendments to the FLSA, we discussed the soap used by a laundry.
See
id
. at 1224-25. We noted that if a laundry uses soap to clean clothes handed over by a customer, then it uses the soap as a "material" (a tool or other article necessary for doing or making something) to clean those clothes.
See
id
. at 1225. "One could easily consider the soap in this example as an 'article[ ] necessary for doing something,' for instance, washing clothes."
Second, we looked to a Department of Labor opinion 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
id
."[W]e imagine that, where a restaurant uses interstate cooking equipment as an article to perform its commercial activity of serving food, the restaurant is engaged with 'materials' that will subject the business to FLSA coverage."
Third, we considered the example of china dinner plates. See id . at 1226. We said that "[d]epending on how they are used, china dinner plates ... could count as either 'goods' or 'materials.' Where a catering business uses the china plates at a client's banquet, the plates count as part of the 'materials' necessary for serving a catered meal." Id . But where "an accounting firm ... uses the same china plates as objects of decoration mounted on its lobby wall, the china plates cannot count as 'materials' because the plates have no significant connection to the business['] accounting work." Id . Instead, "[t]he china plates in this example seem likely to count as 'goods' that are subject to the ultimate-consumer exception because the accounting firm is the items' ultimate consumer." Id . at 1226 n.9.
*1140
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" under the FLSA: (1) "shutters containing blades that were evidenced to have been made in Col[o]mbia," sold by the employer and installed by its employees,
id
. at 1227 ; (2) "burglar alarms with wires, key pads, and other components manufactured out of state," sold by the employer and installed by its employees,
id
. ; (3) "paint, tape, and coarse drywall screws" with which employees made "home repairs" for customers,
Our recent decision in
Gold Star
,
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 ruled that "trucks used by the employees in a landscaping business were 'materials.' " Id . at 1370-71. We did the same with another district court decision concluding that "the flashlight, uniform, and cellphone used by an employee of a property rental business" could be "materials.'" Id .
Ultimately, we reasoned in Gold Star 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 id . at 1371. Returning to our "example of a commercial laundry, with the soap employed to wash the clothing constituting the 'materials,' " we reasoned that
[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).
Id .
IV
The district court held that the plaintiffs could not establish "handling clause" (and therefore "enterprise") coverage for two reasons. First, the vehicles they parked are not "materials," but rather "goods" subject to the FLSA's "ultimate consumer exception." Second, that the plaintiffs "handled walkie-talkies, pens, uniforms, valet tickets, and other items that originated out of state does not change the intrastate nature of their work," because FCPS is "the ultimate consumer of those goods."
See
Rodriguez Asalde
,
*1141 The plaintiffs argue that the walkie-talkies, pens, uniforms, valet tickets, and other items that they used in their jobs were "materials." FCPS disagrees, defending the district court's ruling. Based on the record before us, and our reading of the relevant statutory provisions and precedent, we hold there are triable issues of fact sufficient to defeat FCPS' motion for summary judgment on the issue of "enterprise" coverage. For the present, it is enough for us to analyze and rest our decision on the valet tickets that FCPS' employees use in their work.
A
FCPS provides commercial valet parking services at a variety of locations in Miami-Dade County, including a convention center, a theatre, a hotel, and a private condominium. At each of these locations, employees of FCPS use numbered valet tickets (purchased and provided by FCPS) to keep track of the cars they park for customers. When a car pulls up, the valet who is in charge of parking obtains a valet ticket. On one half of the ticket he or she writes his or her name and the make, model, and color of the car. This information is then written down on a sheet by the valet who is in charge of the information/control booth and who keeps the keys of the cars. The parking valet gives the other half of the ticket to the owner of the car, who uses it later to request the vehicle. See D.E. 29-3, Deposition of Javier Cabrera at 42-43; D.E. 29-4, Deposition of Flor Andrea Rodriguez Asalde at 14, 18, 23-24; D.E. 36, Defendants' Amended Statement of Material Facts at ¶¶ 47, 51, 62; D.E. 44-2, Affidavit of Flor Andrea Rodriguez Asalde at ¶ 46; D.E. 44-3, Affidavit of John Conde at ¶ 2; D.E. 47-1, Supplemental Affidavit of Javier Antonio Cabrera Savinovich at ¶ 4; D.E. 49-3, Deposition of Jorge Zuluaga (FCPS' corporate representative) at 23.
A jury could find that the valet tickets used by FCPS in providing its commercial parking services constitute "materials" within the meaning of the FLSA's "handling clause." First, looking at the matter contextually, a jury could find that the valet tickets are "articles necessary for doing ... something," i.e., providing the commercial service of parking cars.
See
Polycarpe
,
FCPS argues that the valet tickets are not "materials" under
Polycarpe.
But it does this in conclusory fashion, without explaining how it could run its business operation without them.
See
Br. for Appellees at 8. As a result, we are not persuaded by its argument. As for the district court's ruling that the valet tickets (and other items used by FCPS' employees) are merely goods used by FCPS and are subject to the ultimate consumer exception,
*1142
we have already explained why a jury must decide whether the valet tickets are "materials" in the context of FCPS' commercial parking operations.
Cf.
Watkins v. City of Montgomery
,
B
To show that "enterprise" coverage exists, the plaintiffs must also establish that the "materials" at issue-here the valet tickets-"have been moved in or produced for [interstate or international] commerce by any person."
In its amended statement of material facts, FCPS asserted that it purchased the valet tickets "within Florida." D.E. 36, Defendants' Amended Statement of Material Facts at ¶ 71. FCPS' director of operations attested to the same thing in his affidavit. See D.E. 29-6, Affidavit of Sebastian Lopez at ¶ 10. This assertion concerning purchase, however, does not establish that the tickets were manufactured in Florida.
In his deposition, Jorge Zuluaga, one of FCPS' owners, testified that it was his "understanding" that the valet tickets were manufactured in Florida. He explained that had "been at the shop" of one of FCPS' local vendors and had "seen the huge machines ... and all the printing right there." D.E. 49-3, Deposition of Jorge Zuluaga at 24. He also said that the tickets had the name of the company on them, and that company "belongs to Florida." Id. at 25. 3
*1143 If this was all the record contained, we might well agree with FCPS that the plaintiffs failed to create a jury issue as to whether the valet tickets moved in or were produced for interstate commerce. But, as they say, there is more. In a supplemental affidavit submitted before the district court issued its summary judgment order, one of the plaintiffs, Javier Antonio Cabrera Savinovich, said that in late July of 2016 he found in his personal documents a valet ticket he had issued to a customer while working as a valet for FCPS. He also explained that he and the other valets used tickets like that one in parking cars for FCPS. See D.E. 47-1, Supplemental Affidavit of Javier Antonio Cabrera Savinovich at ¶¶ 4-6. That representative ticket, a copy of which was attached to the affidavit, stated "PRINTED IN USA," as well as "SOUTHLAND PRINTING, SHREVEPORT, LA." See D.E. 47-2.
FCPS moved to strike Mr. Cabrera Savinovich's supplemental affidavit and the valet ticket on a number of grounds,
see
D.E. 48, but the district court did not rule on that motion and, as noted, appeared to accept for purposes of summary judgment that the valet tickets and other items used by the plaintiffs originated outside of Florida. To the extent that FCPS mounts evidentiary objections to the supplemental affidavit and the valet ticket on appeal,
see
Br. for Appellees at 10-11, we reject them. First, Mr. Cabrera Savinovich was competent to authenticate the valet ticket, as he attested that he had provided it to one of FCPS' customers and found it in his personal documents.
See
Fed. R. Evid. 901(b)(1) (testimony "that an item is what it is claimed to be" is sufficient to authenticate the item);
United States v. Lanzon
,
On the merits, FCPS contends that the name of a company and its location on a valet ticket "may simply reflect the name of the patent holder or reflect the name of the parent company of the local Florida printer." Br. for Appellees at 11. That assertion could be true, but it is not necessarily true, and it is not one that a jury must accept. We have to view the evidence in the light most favorable to the plaintiffs, and when seen in that light, the printing indicates that the valet ticket was manufactured by Southland Printing in Shreveport, Louisiana.
A label or inscription reflecting an item's place of manufacture is admissible evidence and generally 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
,
V
The district court correctly ruled that the vehicles parked by the plaintiffs while working as valets for FCPS are not "materials" under the FLSA. Nevertheless, FCPS was not entitled to summary judgment on the issue of "enterprise" coverage. Viewing the evidence in the light most favorable to the plaintiffs, a jury could find that the valet tickets used by FCPS' employees constitute "materials" under § 203(s)(1)(A)(i) of the FLSA. A jury could also find, based on the printing on the representative valet ticket provided by Mr. Cabrera Savinovich, that the tickets were manufactured outside of Florida and moved in interstate commerce under § 203(s)(1)(A)(i). 4
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
"Goods" (unlike "materials") are subject to an "ultimate consumer exception." If employees "handl[e], sell[ ], or otherwise work" on goods "after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof," then such handling, selling, or working will not serve as a predicate for "enterprise" coverage.
See
§ 203(i) ;
Polycarpe
,
FCPS did not present any copies of valet tickets in its summary judgment submissions.
Given our rulings, we need not reach the other issues presented, such as whether there is sufficient evidence that other items used by the plaintiffs in their work as valets for FCPS were "materials" or moved in international or interstate commerce.
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. 1st Class Valet Service, Sebastian Lopez, Jorge Zuluaga, Defendants-Appellees.
- Cited By
- 33 cases
- Status
- Published