Deherrera v. Decker Truck Line, Inc.

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS April 21, 2016

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

JOE DEHERRERA, a/k/a Joe “J.R.”
Deherrera; JOE GRIEGO; JENNIFER
JOHNSON; SCOTT JOHNSON; TOM
LARK, on behalf of themselves,
individually, and on behalf of all others
similarly situated,
No. 15-1220
Plaintiffs - Appellants,

v.

DECKER TRUCK LINE, INC,

Defendant - Appellee.
_________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:13-CV-02556-RM-KLM)
_________________________________

David H. Miller (Rachel Graves with him on the briefs), The Sawaya & Miller Law Firm,
Denver, Colorado, for Plaintiffs-Appellants.

Emily F. Keimig (Matthew M. Morrison with her on the brief), Sherman & Howard,
L.L.C., Denver, Colorado, for Defendant-Appellee.
_________________________________

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________
 I. INTRODUCTION

This case involves a dispute over the scope of the Motor Carrier Act

exemption from the overtime pay requirements of the Fair Labor Standards Act

(FLSA) and the Colorado Minimum Wage Order (Wage Order). Joe Deherrera and

several other complainants (Plaintiffs), who were commercial truck drivers for

Decker Truck Line, Inc. (Decker), claim Decker failed to pay them proper overtime

wages. Decker contends Plaintiffs were exempt employees under both the FLSA and

the Wage Order. The district court granted summary judgment to Decker, and we

affirm. By driving an intrastate leg of shipments in interstate commerce, Plaintiffs

became subject to the authority of the Secretary of Transportation and were thus

exempt from the overtime pay requirements of the FLSA and the Wage Order.

II. BACKGROUND

A. Facts1

Decker is a for-hire motor carrier, regulated by the U.S. Department of

Transportation (USDOT) and the Secretary of Transportation, with its principal

office in Fort Dodge, Iowa. Decker signed a transportation contract with New

Belgium Brewing Company (New Belgium) to make two classes of shipments: (1)

outbound shipments of beer from New Belgium’s brewery to its warehouse (known

as the “Rez”), and (2) backhaul shipments of empty kegs, pallets, hops, and other

1
“In reciting the facts of this case, we view the evidence in the light most
favorable to the non-moving party, as is appropriate when reviewing a grant of
summary judgment.” Weigel v. Broad, 544 F.3d 1143, 1147 (10th Cir. 2008) (quoting
Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1200 n.1 (10th Cir. 2006)).
2
materials from the Rez to the brewery. These two facilities are located approximately

five miles apart in Fort Collins, Colorado. And Decker employed Plaintiffs (all of

whom are commercial truck drivers) to transport both categories of shipments.2

New Belgium sells its beer primarily through distributors located outside the

State of Colorado. To determine the composition and volume of the outbound

shipments, New Belgium uses a forecast that accounts for historical demand and

pending customer orders. This process requires its distributors to place orders at least

21 days before shipment, but New Belgium allows the distributors to modify their

orders up until the time of shipment if New Belgium can satisfy the production

request. At the time these orders are placed, the distributors also generally designate

which carrier will retrieve the shipment from the Rez. In a number of cases, New

Belgium arranges the carrier as a “value-added service” to the goods they provide.

New Belgium then prepares a monthly schedule showing what beer will be brewed

and packaged on each day of the month.

Because New Belgium lacks sufficient refrigerated storage at its brewery,

Decker’s drivers (including Plaintiffs) transport approximately 99 percent of the beer

New Belgium produces from the brewery to the Rez. The rest remains on-site for

local sales. New Belgium tracks the content of these shipments by affixing “license

plates” to each pallet and logging each one using modern tracking software. Upon

arrival at the Rez, approximately 10% of beer is repackaged, but most of it is left

2
Plaintiffs were also required, at least by virtue of Decker’s contract with New
Belgium, to comply with the USDOT’s federal motor carrier safety regulations
(FMCSRs), including mandatory pre-trip safety inspections.
3
undisturbed. New Belgium then exercises complete control over the beer until

carriers retrieve the product from the Rez at the designated date and time for delivery

to the distributors.

On average, beer remains at the Rez for two weeks before it is shipped to New

Belgium’s customers. But on occasion some beer is never stored at the warehouse.

Instead, it is shipped from the brewery to the Rez, scanned into the Rez’s inventory,

and then loaded directly into an outbound truck. It is unclear whether these particular

trucks then make intrastate or interstate deliveries. But overall, of the beer that

Plaintiffs transported to the Rez in November 2013, roughly 86 percent was later

shipped to locations outside of Colorado. That figure rose to 89 percent in February

2015. For all shipments, New Belgium has a “first-in/first-out” policy which means

that the first beer to come into the Rez is the first beer to leave the Rez. New Belgium

also places a “best by” date on its beer and assures its customers that it will not ship

beer to them with less than sixty days remaining before that date. Beer that is too

close to the best by date is discarded.

Plaintiffs’ backhaul shipments take a different form. After delivering beer to

the Rez, Decker’s drivers then load empty kegs, pallets, hops, and other materials

from the Rez onto their trucks and haul them back to the brewery. Distributors

receive $30 and $7, respectively, for each keg and pallet returned to New Belgium. It

is unclear whether New Belgium arranges for the kegs and pallets to be returned or

whether the distributors handle that responsibility entirely. Regardless, most of these

backhaul materials arrive at the Rez from locations outside the state.

4
 B. Proceedings Below

Plaintiffs allege that in making these shipments for Decker, they were required

to work overtime hours but were not given overtime pay as required under the FLSA

and the Wage Order. Specifically, Plaintiffs allege they worked a repeating schedule,

one week working 4 days with shifts of 12 hours and 15 minutes, followed by another

week working 3 days with shifts of 12 hours and 15 minutes. Plaintiffs first claim a

violation of the FLSA for failure to pay overtime wages. Plaintiffs’ second cause of

action alleges Decker violated the Wage Order because they (1) were not paid

overtime when working 12-hour shifts, (2) were not given paid breaks, (3) worked

off the clock for 15 minutes each day, and (4) were not paid overtime when working

over 40 hours during a work week.

Plaintiffs filed an amended complaint against Decker in federal court on

September 19, 2013, incorporating both causes of action. On November 20, 2013,

Decker filed a motion to dismiss, asserting the court lacked subject-matter

jurisdiction and Plaintiffs had failed to state a claim. The district court denied the

motion and opened the case for limited discovery on whether Plaintiffs were exempt

employees under the FLSA and the Wage Order.

Decker then filed a motion for summary judgment on February 9, 2015,

arguing Plaintiffs moved goods in “interstate commerce” and were thus exempt from

the overtime provision under the FLSA. Decker also argued that Plaintiffs were not

“equipment operat[ors]” and did not belong to any of the industries covered by the

Wage Order. The district court granted Decker’s motion on June 10, 2015.

5
 In its decision, the court laid out the “Undisputed Facts” and the “Disputed

Facts.” With respect to the latter, the court noted that “[t]he parties hotly dispute[d]”

whether in a separate adjudication before the NLRB the Plaintiffs had admitted to

being subject to regulation by the USDOT. But the court ultimately decided

resolution of that issue was “not necessary to [the] resolution of the motion” and

granted summary judgment on the basis of the undisputed facts alone.

As to Plaintiffs’ FLSA claim, the district court determined Plaintiffs were

engaged in interstate commerce based entirely on their backhaul shipments of

materials from the Rez to the brewery. The court concluded these shipments were

“clearly sufficient to place plaintiffs in interstate commerce and under the authority

of the Secretary of Transportation which in turn, exempts plaintiffs from the overtime

provision of the FLSA.” As to Plaintiffs’ claim under the Wage Order, the court

agreed with Decker that Plaintiffs were not “equipment operators” and were exempt

from the provisions of the Wage Order as “interstate drivers.” The district court

entered final judgment in Decker’s favor, and Plaintiffs timely appealed. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

III. DISCUSSION

In affirming the district court’s grant of summary judgment, we first analyze

the scope of the Motor Carrier Act (MCA) exemption to the FLSA and conclude—

based on the undisputed facts—that Plaintiffs’ backhaul shipments of hops, pallets,

empty kegs, and other materials took place in interstate commerce. As a result,

Plaintiffs were exempt from the FLSA’s overtime provisions. Because Plaintiffs were

6
engaged in interstate commerce, we also conclude they were “interstate drivers”

under the Wage Order and therefore exempt from its overtime provisions as well.

Accordingly, we affirm the district court’s grant of summary judgment in favor of

Decker on both claims.

A. Standard of Review

“We review summary judgment orders de novo and may affirm the district

court’s grant of summary judgment on any grounds adequately presented below.”

Reinhart v. Lincoln Cty., 482 F.3d 1225, 1228 (10th Cir. 2007) (brackets omitted)

(quoting Medina v. City & Cty. of Denver, 960 F.2d 1493, 1500 (10th Cir. 1992)). As

defendant, Decker “is entitled to summary judgment if it ‘raises at least one legally

sufficient defense that would bar plaintiff’s claim and that involves no triable issue of

fact.’” Archuleta v. Wal-Mart Stores, Inc., 543 F.3d 1226, 1232–33 (10th Cir. 2008)

(quoting 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice & Procedure § 2734 (3d ed. 1998)). Here, Decker’s defense is that the

overtime provisions of the FLSA do not apply because Plaintiffs fall under the MCA

exemption. Because FLSA exemptions are “narrowly construed against

. . . employers,” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960), “in

considering an FLSA exemption, a court must find that the claimed exemption falls

‘plainly and unmistakably’ within the terms of the statute,” Lederman v. Frontier

Fire Prot., Inc., 685 F.3d 1151, 1157–58 (10th Cir. 2012). “Once a court finds the

employer is eligible to claim the exemption, the factfinder reviews the disputed facts

to determine if the exemption is met.” Id. at 1158. Indeed, this exemption inquiry

7
“remains intensely fact bound and case specific.” Bohn v. Park City Grp., Inc., 94

F.3d 1457, 1461 (10th Cir. 1996) (quoting Dalheim v. KDFW–TV, 918 F.2d 1220,

1226 (5th Cir. 1990)).

B. Plaintiffs’ FLSA Claim

Plaintiffs first challenge the summary judgment in favor of Decker on their

FLSA claim because the district court failed to strictly adhere to a set of three factors

promulgated by the Interstate Commerce Commission (ICC) and recognized by this

court in Foxworthy v. Hiland Dairy Co., 997 F.2d 670 (10th Cir. 1993). They claim

these factors (known as the MC-48 test) compel the conclusion that the shipments

between the Rez and the brewery did not take place in interstate commerce. We

disagree. As our Foxworthy decision makes clear, we may consider a broader set of

factors in deciding whether a shipment took place in interstate commerce than the

three Plaintiffs cite from the MC-48 test. And as evidenced by the undisputed facts,

Plaintiffs’ backhauling of hops and other materials from the Rez to the brewery took

place as part of those backhauled items’ journey in interstate commerce. Summary

judgment was therefore appropriate in favor of Decker on Plaintiffs’ FLSA claim.

1. Scope of the MCA Exemption

Section 207 of the FLSA mandates that employers provide overtime pay to

employees who work longer than forty hours in a given week. 29 U.S.C. § 207(a).

But the FLSA also provides dozens of exemptions to the overtime rules. Id. § 213.

One of these—the so-called MCA exemption—provides that the overtime pay

requirement does not apply to “any employee with respect to whom the Secretary of

8
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). In turn, the

Secretary of Transportation has power over an employee of a private motor carrier

like Decker only where “the employee in the performance of his duties moves goods

in interstate commerce and affects the safe operation of motor vehicles on public

highways.” Foxworthy, 997 F.2d at 672.

Distilled down, the applicability of this exemption depends centrally on

whether or not the employee was engaged in interstate commerce.3 This court

explained in Foxworthy that an employee engages in interstate commerce if his

delivery “forms a part of a ‘practical continuity of movement’ across state lines from

the point of origin to the point of destination.” Id. (quoting Walling v. Jacksonville

Paper Co., 317 U.S. 564, 568 (1943)). In other words, an employee engages in

interstate commerce where the “essential character” of the shipment is interstate in

nature. Id. (quoting Texas & New Orleans R.R. Co. v. Sabine Tram Co., 227 U.S.

111, 122 (1913)).

3
This interstate commerce requirement is a result of the jurisdictional limits of
the Secretary of Transportation’s authority. The Secretary has power to establish
“qualifications and maximum hours of service” over “employees of, and standards of
equipment of, a motor private carrier, when needed to promote safety of operation.”
49 U.S.C. § 31502(b)(2). “Motor private carrier,” in turn, is defined as “a person . . .
transporting property by motor vehicle when--(A) the transportation is as provided in
section 13501 of this title; (B) the person is the owner, lessee, or bailee of the
property being transported; and (C) the property is being transported for sale, lease,
rent, or bailment or to further a commercial enterprise.” Id. § 13102(15); see also id.
§ 31501(2). And section 13501 sets the jurisdiction of the Secretary of
Transportation, restricting it generally to only those forms of transportation taking
place in interstate commerce. Id. § 13501.
9
 For certain types of shipments, the interstate nature of the transportation can

become blurred as products are temporarily warehoused or moved by various

carriers—some of whom may only complete intrastate portions of the journey. The

Supreme Court has repeatedly concluded that the character of these shipments may

still be interstate in nature; indeed, “[t]he entry of the goods into the warehouse

interrupts but does not necessarily terminate their interstate journey.” Walling, 317

U.S. at 568; see Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701

& n.2 (11th Cir. 1986) (in determining the meaning of “foreign commerce” under the

FLSA, “[i]t is irrelevant that the foreign and domestic legs of the voyage are effected

by different shippers or carriers”). To determine whether the essential character of

these shipments remains interstate, courts must look to the shipper’s “fixed and

persisting intent” at the time of the shipment. Foxworthy, 997 F.2d at 672 (quoting

Int’l Bhd. of Teamsters v. ICC, 921 F.2d 904, 908 (9th Cir. 1990)). Here, the focus of

the parties’ dispute is whether the shipper’s “fixed and persisting intent” was to move

the goods in interstate commerce.

This intent inquiry is “fixed” in the sense that courts must look to “the

intended final destination of the transportation when that ultimate destination was

envisaged at the time the transportation commenced.” Bilyou v. Dutchess Beer

Distribs., Inc., 300 F.3d 217, 223–24 (2d Cir. 2002) (emphasis added) (internal

quotation marks omitted); accord Atl. Coast Line R. Co. v. Standard Oil Co. of Ky.,

275 U.S. 257, 269 (1927) (asking whether the final destination of the shipment is

“arranged for or fixed in the minds of the sellers” at the time the initial segment of

10
the journey commenced). And this intent “persists” from the moment “the goods

enter[] the channels of interstate commerce . . . until their interstate journey [ends],”

regardless of the number of carriers involved in the transportation. See Walling, 317

U.S. at 568; Project Hope v. M/V IBN SINA, 250 F.3d 67, 74–75 (2d Cir. 2001)

(“Where multiple carriers are responsible for different legs of a generally continuous

shipment,” the intent at the time of departure “fixes the character of the shipment for

all the legs of the transport within the United States.”).

As the methods of warehousing and interstate commerce became increasingly

complex, the ICC4 grappled with the question of whether certain movements strip

shipments of their interstate character. The ICC held extensive hearings and

ultimately issued a set of guidelines, which were later codified and adopted by the

Department of Labor (DOL). 29 C.F.R. § 782.7(b)(2); see Baird v. Wagoner Transp.

Co., 425 F.2d 407, 410 (6th Cir. 1970). Under these guidelines—known as the MC-

48 test—a “shipper has no fixed and persisting transportation intent beyond the

terminal storage point at the time of shipment” if all of the following criteria are met:

(i) At the time of shipment there is no specific order being filled for a
specific quantity of a given product to be moved through to a specific
destination beyond the terminal storage, and
(ii) the terminal storage is a distribution point or local marketing facility
from which specific amounts of the product are sold or allocated, and
(iii) transportation in the furtherance of this distribution within the
single State is specifically arranged only after sale or allocation from
storage.

4
The ICC was previously responsible for administering the MCA, but its
responsibilities were in part later divested to the USDOT. See ICC Termination Act
of 1995, Pub. L. No. 104–88, 109 Stat. 803.
11
29 C.F.R. § 782.7(b)(2). Plaintiffs argue that because this court applied these three

factors in its Foxworthy decision, it is now bound to apply these factors—and only

these factors—in ruling on the current dispute. But this argument misapprehends our

Foxworthy decision and ignores the further refinement of the “fixed and persisting

intent” inquiry adopted by the agencies responsible for applying the MCA exemption

in subsequent decisions.

In Foxworthy, as in the present case, the plaintiff sued for overtime payments,

claiming his purely intrastate transportation of goods placed him outside the MCA

exemption to the FLSA. 997 F.2d at 671. There, the driver placed orders with Hiland

Dairy Company, which then shipped those products across state lines from its Fort

Smith, Arkansas processing plant to the driver’s loading point in Ponca City,

Oklahoma. Id. at 671–72. Before reaching Ponca City, the products were stored

overnight in a refrigerated trailer in Oklahoma City. Id. The driver then loaded his

products and made purely intrastate deliveries to customers, primarily composed of

“Circle K” convenience stores. Id. at 672. Despite the temporary warehousing, this

court noted that the products “were intended to be delivered to Circle K stores in

Oklahoma from the moment they were loaded onto the truck” in Arkansas. Id.

(emphasis added).

After each delivery, the driver would collect empty plastic crates from the

customer, and those crates were later transported by a different carrier to the

Arkansas processing plant. Id. at 672, 674. We ruled in Foxworthy that the fixed and

persisting intent at the time the driver collected the empty crates was to have them

12
continue across state lines. Specifically, we reasoned that the crates were

“indispensable to the processing procedures at the Arkansas plant.” Id. at 672.

Indeed, we concluded that this backhauling portion of the journey was, in itself,

sufficient to place the driver in interstate commerce for purposes of the MCA

exemption. Id. at 674. This was true even though the portion of that journey the

driver completed was entirely intrastate. Id.

In analyzing the character of the outgoing shipments, the Foxworthy court

applied the factors from the MC-48 test but did not constrain its analysis to those

factors alone. Id. at 673–74. Instead, the court reviewed additional factors considered

by a host of other circuits, including:

the length of time movement of the product is interrupted by storage;
whether the distribution center has a low “through-put” compared to its
storage capability; whether the products are shipped on a
“predetermined” ordering cycle; whether the carrier is in continuous
possession of the product until delivery; whether the product is
processed or commingled in any way at the storage location; whether
the final destination is designated by the out-of-state shipper or by an
instate intermediator; whether the goods were intended for particular
customers; and whether temporary storage simply provides an efficient
opportunity to convert the means of delivery from one form of
transportation to another.

997 F.2d at 673 (collecting cases). After applying all of these factors—those from the

MC-48 test and those identified by other circuits—this court concluded that the

outgoing shipments in Foxworthy retained their interstate character, despite the

temporary stop at the loading facility and the solely intrastate character of the

driver’s segment of that journey. Id. at 672–74.

13
 Ours is not the only circuit to rely on factors beyond those identified in the

MC-48 test in cases involving temporary warehousing of goods. Sister circuits have

followed the ICC’s own decision to depart from the strictures of the MC-48 test and

to focus more broadly on “all the facts and circumstances surrounding the

transportation.” Armstrong World Indus., Inc.-Transp. Within Texas-Petition for

Declaratory Order, 2 I.C.C.2d 63, 69 (1986); accord Mena v. McArthur Dairy, LLC,

352 F. App’x 303, 306 n.2 (11th Cir. 2009) (accord); Int’l Bhd. of Teamsters, 921

F.2d at 908 (“[I]t appears that [the ICC’s] use of [the MC-48] standard has been

refined, if not phased out.” (quoting Cal. Trucking Ass’n v. ICC, 900 F.2d 208, 213

(9th Cir. 1990))); Cent. Freight Lines v. ICC, 899 F.2d 413, 421 (5th Cir. 1990)

(noting “[the ICC] appears to have implicitly recharacterized the applicable test”);

Middlewest Motor Freight Bureau v. ICC, 867 F.2d 458, 460 (8th Cir. 1989) (stating

“there is no formula to apply in determining intent” but “intent should be determined

from the facts and circumstances which surround the transportation”).

Less than a year before Foxworthy, the ICC issued a new set of guidelines—

known as the MC-207 test—to account for increased diversity in shipping methods.

This test assesses a shipper’s intent by looking to a broader set of factors. Motor

Carrier Interstate Transp. (Ex-Parte No. MC-207), 8 I.C.C.2d 470, 473–74 (1992);

see Musarra v. Dig. Dish, Inc., 454 F. Supp. 2d 692, 711 (S.D. Ohio 2006) (“[I]n the

face of modern advancements and new shipping techniques, MC–48 is no[] longer

sufficient to determine a shipper’s intent accurately.”). In particular, the ICC stressed

through this new set of guidelines that a shipment’s interstate character “is not

14
changed simply because the merchandise may move through a warehouse or terminal

facility on the way to its ultimate destination.” Ex-Parte No. MC-207, 8 I.C.C.2d at

472. If the warehouse “serves only as temporary storage to permit orderly and

convenient transfer of goods in the course of what the shipper intends to be a

continuous movement to destination, the continuity of the movement is not broken at

the warehouse.” Id. at 472–73.

Although we did not cite the ICC’s MC-207 decision in Foxworthy, the

analysis included an examination of circumstances beyond those set forth in MC-48.

And a year after Foxworthy, the ICC expressly stated it was not bound by the

strictures of the MC-48 test. Advantage Tank Lines, Inc., 10 I.C.C.2d 64, 67 (1994)

(“[T]he Commission is not bound in this case to apply the [MC-48] test . . . . Instead

it must analyze the circumstances of this case in light of all the facts and

circumstances surrounding the transportation.”). Subsequently, in 2005, the DOL

adopted the MC-207 test, bringing its approach into harmony with the USDOT. U.S.

Department of Labor, Opinion Letter No. FLSA 2005-10, Intra/interstate

Transportation of Gasoline and Section 13(b)(1) (Jan. 11, 2005) (citing 57 Fed. Reg.

19,812, 19,813 (1992)). Where DOL and USDOT are each charged with applying the

FLSA exemption, their consistent interpretation of the term “interstate commerce”

for purposes of that application “is entitled to great weight.” Boutell v. Walling, 327

U.S. 463, 471 (1946); Baird, 425 F.2d at 411 (“[W]here the [DOL] and the [ICC]

construe the FLSA and the MCA consistently, their construction ‘is entitled to great

weight.’” (quoting Boutell, 327 U.S. at 471)); see also Finn v. Dean Transp., Inc., 53

15
F. Supp. 3d 1043, 1053–55 (M.D. Tenn. 2014) (explaining the history of MC-48 and

MC-207).

In sum, Foxworthy does not exclusively bind us to the factors from the MC-48

test. First, this court in Foxworthy considered factors beyond those identified in MC-

48. Second, after our decision in Foxworthy, the two agencies charged with

interpreting the meaning of the MCA exemption reached consistent interpretations of

interstate commerce which look to circumstances beyond those identified in MC-48.

That harmonious interpretation is entitled to great weight. Thus, considering the facts

and circumstances here, we agree with the district court that the Plaintiffs were

engaged in interstate commerce when they transported backhaul shipments from the

Rez to the brewery.

2. Plaintiffs’ Participation in Interstate Commerce

As in Foxworthy, the drivers here were responsible for one segment of a

continuous interstate shipment of empty materials back to a processing facility. There

is no dispute that the empty kegs, pallets, hops, and other materials arrived at the Rez

primarily from out-of-state locations. Plaintiffs were then responsible for backhauling

these materials from the Rez to the brewery. Furthermore, there can be no serious

dispute that the final destination for these materials at the time of shipment was the

brewery because all of these materials, and in particular, the hops, are “indispensable

to the processing procedures” at New Belgium’s brewery. Foxworthy, 997 F.2d at

672. The undisputed facts therefore establish that Plaintiffs completed the final

16
intrastate leg of the backhauled materials’ intended journey across state lines, and

summary judgment in favor of Decker on Plaintiffs’ FLSA claim was appropriate.

Nevertheless, Plaintiffs claim summary judgment was improper because there

was no direct evidence that the out-of-state shippers specifically intended for the

backhauled materials to reach the brewery, rather than the Rez. On this point,

Plaintiffs miss the mark. As we have detailed above, the crucial inquiry is whether

the essential character of Plaintiffs’ shipments was interstate in nature—or, stated

otherwise, whether they “form[] a part of a ‘practical continuity of movement’ across

state lines from the point of origin to the point of destination.” Id. at 672 (quoting

Walling, 317 U.S. at 568). Although warehousing goods may alter the character of an

otherwise interstate shipment, the undisputed facts here compel the opposite

conclusion.

On summary judgment, “[a]lthough we must draw all factual inferences in

favor of the nonmovant, those inferences must be reasonable.” Allen v. Muskogee,

119 F.3d 837, 846 (10th Cir. 1997). And “[w]here only one inference could

reasonably be drawn from the undisputed evidentiary facts, then summary judgment

would be proper.” Empire Elecs. Co. v. United States, 311 F.2d 175, 180 (2d Cir.

1962). Here, the only “reasonable” inference from the undisputed facts is that the

hops and other materials were bound for the brewery from the moment of their initial

departure. As explained by the district court, “the practical realities of the business at

hand and the character of the materials” necessitated their return to New Belgium’s

17
brewery so New Belgium could continue its production of beer.5 And New Belgium

contracted with Decker for this very purpose.

This court reached a similar conclusion in Thomas v. Wichita Coca-Cola

Bottling Co., 968 F.2d 1022 (10th Cir. 1992). There, as in Foxworthy, the plaintiffs

were responsible for delivering products that had been shipped from an out-of-state

facility, temporarily warehoused, then picked up and delivered by the plaintiffs to

intrastate customers. Id. at 1024. The plaintiffs were also required to collect empty

product containers with each delivery, which were transported first to the warehouse,

and then shipped on a daily basis back to the out-of-state bottling facility. Id. The

Thomas court reviewed both types of shipments but ruled exclusively on the basis of

the backhaul shipments, concluding that these return shipments placed the plaintiffs

in interstate commerce. Id. at 1025–26. There, as here, the parties could not

reasonably dispute that the empty materials were bound for an out-of-state facility

from the moment of pickup.

Although Plaintiffs here completed the last leg of the backhaul shipments,

rather than the first, that distinction is irrelevant. “[I]f the final intended destination

at the time the shipment begins is another state, the [MCA] applies throughout the

shipment, even as to a carrier that is only responsible for an intrastate leg of the

5
As the district court properly noted, it is irrelevant whether these backhaul
shipments constituted a major portion of the Plaintiffs’ workload, because even
minimal loads in interstate commerce place employees within the MCA exemption to
the FLSA. Morris v. McComb, 332 U.S. 422, 434 (1947) (“[T]here is the same
essential need for the establishment of reasonable requirements with respect to
qualifications and maximum hours of service of employees” even if a driver spends
only “4% of his driving time each day in interstate commerce.”).
18
shipment.” Project Hope, 250 F.3d at 75. Accordingly, the interstate character of

Plaintiffs’ backhaul shipments placed Plaintiffs “plainly and unmistakably” under the

authority of the Secretary of Transportation which exempts them from the overtime

provisions of the FLSA. Lederman, 685 F.3d at 1158; see also 29 U.S.C. § 213(b)(1).

We therefore affirm the grant of summary judgment in Decker’s favor on Plaintiffs’

FLSA claim.

C. Plaintiffs’ Wage Order Claim

We also affirm the grant of summary judgment in Decker’s favor on Plaintiffs’

Wage Order claim because, by engaging in interstate commerce, Plaintiffs are

similarly exempt from the Wage Order’s overtime provisions. The Wage Order

“regulates wages, hours, working conditions and procedures for certain employers

and employees for work performed within the boundaries of the state of Colorado” in

certain industries, such as the “Retail and Service” and “Commercial Support

Service” industries. 7 COLO. CODE REGS. § 1103-1:1. The Wage Order then defines

each of these industries; the “Commercial Support Service” industry, for example,

includes:

any business or enterprise engaged directly or indirectly in providing
services to other commercial firms through the use of service employees
who perform duties such as: clerical, keypunching, janitorial, laundry or
dry cleaning, security, building or plant maintenance, parking
attendants, equipment operations, landscaping and grounds
maintenance.

19
Id. § 1103-1:2(B). But the Wage Order separately provides that “interstate drivers,

driver helpers, loaders or mechanics of motor carriers, [and] taxi cab drivers” “are

exempt from all provisions of [the Wage Order].” Id. § 1103-1:5.

The district court concluded by way of its FLSA analysis that Plaintiffs were

exempt employees under the Wage Order but that it was “unlikely that the legislature

desired to include motor carrier drivers transporting interstate goods” within the

“vague category of equipment operators.” Plaintiffs argue this conclusion was

erroneous because truck driving is considered a “Commercial Support Service”—in

particular, “equipment operations”—and because they are not “interstate drivers”

under the Wage Order exemption. Although we disagree with the district court’s

interpretation of the Wage Order, we reach the same result and therefore affirm. In

our view, Plaintiffs perform work in a covered industry but are exempt from the

Wage Order’s overtime provisions because they are “interstate drivers.”

Our interpretation and application of the Wage Order is governed by Colorado

law, and because the terms at issue are not defined, we “look[] to the plain meaning

of the language used, considered within the context of the statute as a whole.”

Salazar v. Butterball, LLC, 644 F.3d 1130, 1143 (10th Cir. 2011) (quoting Bly v.

Story, 241 P.3d 529, 533 (Colo. 2010)). If a statute’s plain meaning and context still

leave it “capable of being understood by reasonably well-informed persons in two or

more different senses,” Allen v. Geneva Steel Co. (In re Geneva Steel Co.), 281 F.3d

1173, 1178 (10th Cir. 2002), then—and only then—do we “look beyond that

language ‘for other evidence of legislative intent and purpose, such as legislative

20
history or other rules of statutory construction.’” Salazar, 644 F.3d at 1143–44

(quoting Crandall v. City & Cty. of Denver, 238 P.3d 659, 662 (Colo. 2010)).6 When

read in context, we do not believe the disputed terms here present any ambiguity.

We reach our conclusion by addressing two related interpretive questions:

first, whether truck drivers perform work in a covered industry under the Wage

Order, such as a “Commercial Support Service”; and second, if truck drivers do

perform work in a covered industry, whether Plaintiffs are considered exempt as

“interstate drivers” under the Wage Order exemption. 7 COLO. CODE REGS. § 1103-

1:2–1:5. The first question is easily addressed by applying the canon against

superfluity. An exemption from coverage for “interstate drivers” would be rendered

meaningless if at least one of the covered industries under the Wage Order were not

construed to include them in the first place. In other words, if interstate drivers did

not perform work in a covered industry then it would have been totally unnecessary

to include an “interstate drivers” exemption, thereby rendering it superfluous. And

6
Plaintiffs argue that the Wage Order is remedial and rely on In re R.C. for the
proposition that “[a] remedial statute is to be liberally construed to accomplish its
object.” 309 P.3d 954, 956 (Colo. App. 2013); see also COLO. REV. STAT. § 8-6-102
(requiring courts to “liberally construe[]” the Colorado Minimum Wages of Workers
Act, “or any part thereof”). But this maxim “is useless in deciding concrete cases.
Every statute is remedial in the sense that it alters the law or favors one group over
another. . . . Knowing that a law is remedial does not tell a court how far to go. Every
statute has a stopping point, beyond which, [the legislative branch] concluded, the
costs of doing more are excessive—or beyond which the interest groups opposed to
the law were able to block further progress. A court must determine not only the
direction in which a law points but also how far to go in that direction.” Stomper v.
Amalgamated Transit Union, Local 241, 27 F.3d 316, 320 (7th Cir. 1994). Plaintiffs
do not provide any interpretive direction, however, suggesting that the Colorado
General Assembly intended to have the overtime provisions reach all truck drivers.
21
Colorado courts “avoid constructions that render any term superfluous or any result

illogical.” M.T. v. People, 269 P.3d 1219, 1222 (Colo. 2012); Rajala v. Gardner, 709

F.3d 1031, 1038 (10th Cir. 2013) (“[I]t is a cardinal principle of statutory

construction that . . . if it can be prevented, no clause, sentence, or word shall be

superfluous, void, or insignificant.” (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31

(2001))). At least one of the Wage Order’s covered industries therefore must

necessarily include interstate truck drivers.

The second question—whether Plaintiffs qualify as “interstate drivers” under

the exemption to the Wage Order—is also easily addressed by reference to our FLSA

analysis above. Like the other terms in the Wage Order, “interstate drivers” is not

defined. Because it is an exemption, the court should construe it narrowly. CIR v.

Clark, 489 U.S. 726, 739 (1989) (where “a general statement of policy is qualified by

an exception, we usually read the exception narrowly in order to preserve the primary

operation of the provision”). The parties here both agree that the “interstate drivers”

exemption under the Wage Order should be read in harmony with the meaning of

interstate commerce under the MCA exemption to the FLSA. We read these two

exemptions harmoniously because many of the Wage Order provisions (including the

overtime exemptions) are patterned largely after the FLSA. Compare 7 COLO. CODE

REGS. § 1103-1:5 (exempting administrative, executive, professional, and sales

employees from the overtime requirements), with 29 U.S.C. § 213(a)(1) (same). And

where a state law is patterned after a federal law or designed to implement its

policies, federal constructions of the law “should be accorded great weight.” See

22
People v. Gallegos, 251 P.3d 1056, 1062 (Colo. 2011). Because Plaintiffs are

engaged in interstate commerce for purposes of the MCA exemption to the FLSA (as

we established above), they are also “interstate drivers” under the Wage Order

exemption.

In interpreting the Wage Order, the district court concluded Plaintiffs were not

“equipment operat[ors]” in the “Commercial Support Service” industry because it

found it “unlikely that the legislature desired to include motor carrier drivers

transporting interstate goods . . . under the vague category of equipment operators.”

The court based this reading entirely on the fact that the Wage Order exempts

interstate drivers. But as explained above, the “interstate drivers” exemption would

be rendered superfluous if Plaintiffs were not considered to perform work in a

covered industry—whether as equipment operators in the “Commercial Support

Service” industry or otherwise.7 This interpretive matter aside, we agree with the

district court that Plaintiffs are “interstate drivers” and thus exempt from the Wage

Order, including its overtime provisions. We therefore affirm the district court’s

grant of summary judgment in Decker’s favor on Plaintiffs’ Wage Order claim.

IV. CONCLUSION

By backhauling hops, pallets, empty kegs and other materials from the Rez to

the brewery, Plaintiffs were engaged in an intrastate leg of an interstate journey. As a

7
The parties here specifically dispute whether Plaintiffs performed work in the
“Commercial Support Service” industry as “equipment operat[ors].” 7 COLO. CODE
REGS. § 1103-1:2(B). We need not reach this question, however, because we
conclude Plaintiffs are exempt from the statute altogether as “interstate drivers.”
23
result, they were moving goods in interstate commerce, subject to the power of the

Secretary of Transportation, and thus exempt from the FLSA’s overtime provisions.

Plaintiffs’ deliveries in interstate commerce similarly exempted them from

Colorado’s Wage Order. Accordingly, the district court properly granted summary

judgment in Decker’s favor on both of Plaintiffs’ claims, and we AFFIRM.8

8
Decker has filed a motion to seal certain pages of the record on the ground
that they contain proprietary business information unnecessary to the determination
of the parties’ substantive rights. While the public generally has a right to access
documents in the court’s record, a party may overcome the presumption in favor of
public access to judicial records by demonstrating the pages contain “sources of
business information that might harm a litigant’s competitive standing.” Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). And the public’s interest in
access to judicial records is lessened when the contents are not “used to determine
[the] litigants’ substantive legal rights.” See Colony Ins. Co. v. Burke, 698 F.3d 1222,
1242 (10th Cir. 2012). We agree with Decker that the identified pages contain
proprietary business information which is unnecessary to our disposition of this
appeal. We therefore grant the motion with respect to the identified pages.
24