Milton Alfred Lewis v. Eskridge Trucking Co., Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 6, 2011
No. 11-11366
Non-Argument Calendar JOHN LEY
CLERK
________________________

D.C. Docket No. 7:09-cv-01691-LSC

MILTON ALFRED LEWIS,

Plaintiff - Appellant,

versus

ESKRIDGE TRUCKING CO., INC.,

Defendant - Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
________________________

(October 6, 2011)

Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
Milton Lewis appeals the summary judgment in favor of Eskridge Trucking

Co., Inc., and against Lewis’s complaint for unpaid overtime compensation under

the Fair Labor Standards Act. See 29 U.S.C. § 207(a)(1). The district court ruled

that Lewis was exempt from the overtime provisions of the Fair Labor Standards

Act. We affirm.

An employee is exempt from the overtime provisions of the Fair Labor

Standards Act if he is subject to the rules promulgated by the Secretary of

Transportation under the Motor Carriers Act. Spires v. Ben Hill Cnty., 980 F.2d

683, 686 (11th Cir. 1993). The Secretary regulates employees who work for a

private motor carrier that provides transportation in interstate commerce and

whose work activities affect the “safety of operation” of that motor carrier, 29

C.F.R. § 782.2, including truck drivers, mechanics, loaders, and helpers, Levinson

v. Spector Motor Serv., 330 U.S. 649, 673, 67 S. Ct. 931, 943 (1947). The

employee need not devote all or even a majority of his time to safety activities, id.

at 674, 67 S. Ct. at 944; it is enough that a “loader” devote a “substantial part” of

his time to “activities affecting safety of operation,” id. at 681, 67 S. Ct. at 947.

Lewis is a “loader” who is subject to regulation under the Motor Carrier Act

and exempt from the overtime provisions of the Fair Labor Standards Act. A

“loader” is an employee of a carrier “whose duties include . . . the proper loading

2
of . . . motor vehicles so that they may be safely operated on the highways” and

who “exercis[es] judgment and discretion in planning and building a balanced load

or in placing, distributing, or securing the pieces of freight in such a manner that

the safe operation of the vehicles on the highways in interstate or foreign

commerce will not be jeopardized.” 29 C.F.R. § 782.5(a). Lewis testified that he

was a “loader” for Eskridge Trucking who was unsupervised as he filled trailers

with wood shavings and ensured that the loads were balanced, weighed the

trailers, and inspected the trailers for maintenance problems.

Lewis includes, in his statement of the issues, an argument that he was not

compensated for the time while he was on call for Eskridge Trucking, but he does

not include any argument in his brief about this issue. “‘The law is by now well

settled in this Circuit that a legal claim or argument that has not been briefed

before the court is deemed abandoned and its merits will not be addressed.’”

Tanner Adver. Group, LLC v. Fayette Cnty., Ga., 451 F.3d 777, 785 (11th Cir.

2006) (quoting Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th

Cir. 2004)).

We AFFIRM the summary judgment in favor of Eskridge Trucking.