Birdell McCALL, on behalf of himself and all other persons similarly situated, Plaintiff-Appellant v. DISABLED AMERICAN VETERANS, Ernestine Schumann-Heink Missouri Chapter 2; Red Racks Thrift Store, LLC; Douglas DePew; James Hayworth, Defendants-Appellees.
No. 12-3011
United States Court of Appeals, Eighth Circuit
Submitted: March 13, 2013. Filed: July 31, 2013.
723 F.3d 962
We surveyed this landscape in Chambers and concluded that it remained an open question in this circuit “whether a plaintiff must demonstrate greater than de minimis injury to establish a use of excessive force that violates the Fourth Amendment.” Chambers, 641 F.3d at 904. We resolved that question by rejecting a constitutional rule that turns on the arrestee‘s degree of injury. According to Chambers, the appropriate inquiry is whether the force used is objectively reasonable, at least where the plaintiff shows some “actual injury.” Id. at 905-06 & n. 2. While “[t]he degree of injury is certainly relevant insofar as it tends to show the amount and type of force used,” we reasoned, “it is logically possible to prove an excessive use of force that caused only a minor injury.” Id. at 906.
“The distinction between de minimis force and de minimis injury, however, was not clear until Chambers was decided.” LaCross v. City of Duluth, 713 F.3d 1155, 1158 (8th Cir.2013). As of December 2010, when Glazier encountered Bishop, “a reasonable officer could have believed that as long as he did not cause more than de minimis injury to an arrestee, his actions would not run afoul of the Fourth Amendment.” Chambers, 641 F.3d at 908. Even if we assume for the sake of analysis that Glazier grabbed Bishop by the throat for 45-60 seconds, and that Bishop‘s breathing and speaking were restricted during that time, Bishop‘s only injury was a “light cut” on his neck that did not bleed and for which he did not seek any treatment. The amount of force that Glazier allegedly used did not cause more than de minimis injury. See Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir.2006) (concluding that “relatively minor scrapes and bruises” and “less-than-permanent aggravation of a prior shoulder condition” were de minimis injuries.). Glazier is thus entitled to qualified immunity, because he did not violate Bishop‘s then clearly established constitutional rights under the Fourth Amendment. See LaCross, 713 F.3d at 1158.
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The judgment of the district court is affirmed.
Mark Aloysius Kistler, Overland Park, KS, for Plaintiff-Appellant.
Chris R. Pace, Sara B. Anthony, Kansas City, MO, for Defendants-Appellees.
Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
Birdell McCall drove trucks for the Red Racks Thrift Store (“Red Racks“), which was operated by the Disabled American Veterans (DAV). The trucks that McCall operated had an actual weight of less than 10,000 pounds but a gross vehicle weight rating (GVWR) of greater than 10,000 pounds. McCall, a salaried employee ordinarily ineligible for overtime, filed a wage claim against DAV, seeking overtime pay. McCall alleged that he should be considered a “covered employee” under § 306 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act (SAFETEA-LU) Technical Corrections Act (TCA) and thus eligible for overtime. See
McCall drove trucks for Red Racks in Blue Springs, Missouri. McCall used the trucks to collect donated items from various locations. Sometimes, McCall‘s hours exceed 40 hours per week. Generally, under the Fair Labor Standards Act (FLSA), an employee who works in excess of 40 hours per week is entitled to be paid one-and-a-half times his or her regular pay rate for the excess hours. See
Under
In 2008, Congress passed the TCA, thereby amending the SAFETEA-LU. The TCA amended the definition of “motor private carrier” by defining it as a “motor vehicle” and not a “commercial motor vehicle,” thus returning the pre-SAFET[E]A[-LU] definition and again expanding the Secretary‘s authority. In a provision apparently not codified in the United States Code, the TCA also decreed that the overtime provisions contained in
From approximately March 2011 to October 2011, McCall was a salaried employee and thus received no pay for overtime hours. It is undisputed that, during the course of his employment, McCall drove trucks that had actual weights of less than 10,000 pounds but a GVWR of more than 10,000 pounds. In other words, McCall operated trucks that were rated to carry substantially heavier loads than the loads he actually transported.
McCall sued DAV, claiming that he sometimes worked more than 40 hours per week driving a truck with an actual weight of less than 10,000 pounds. McCall argued that he should have received overtime pay under the FLSA and the TCA. McCall moved for partial summary judgment to determine the application of the TCA. DAV also moved for summary judgment. The district court denied McCall‘s motion for partial summary judgment and granted
II. Discussion
On appeal, McCall argues that the MCAE to the FLSA did not apply to his employment because the TCA expressly provides overtime rights to covered employees, whose vehicle weigh 10,000 pounds or less. McCall maintains that because the actual weight of the loaded vehicle that he drove never exceeded 10,000 pounds, FLSA overtime provisions apply to him and he is entitled to overtime.
We review a district court‘s grant of summary judgment de novo. Johnson v. Carroll, 658 F.3d 819, 825 (8th Cir.2011). “Summary judgment is proper if, after viewing the evidence and drawing all reasonable inferences in the light most-favorable to the nonmovant, no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law.” Id. (quoting Hayek v. City of St. Paul, 488 F.3d 1049, 1054 (8th Cir.2007)).
Under the FLSA, “[e]mployees engaged in interstate commerce” are to be paid “one and one-half times” their regular salary rates for all work performed in excess of 40 hours per week.
In 2005, the SAFETEA-LU amended the definition of “motor private carrier” to mean “a person, other than a motor carrier, transporting property by commercial motor vehicle (as defined in section 31132).”
In 2008, the TCA deleted the § 13102(15) reference to a “commercial motor vehicle (as defined in section 31132)” and inserted the more generic language “motor vehicle,” which is its current form.
McCall argues that he was a covered employee with overtime rights under the FLSA because the trucks that he operated actually weighed less than 10,000 pounds despite having GVWRs greater than 10,000 pounds. Upon review, we agree with the district court that GVWR, not actual weight, is the appropriate criterion for determining if the TCA applies to place a driver‘s wage regulation under the FSLA rather than the Transportation Secretary. McCall operated trucks with GVWRs in excess of 10,000 pounds. He is not entitled to overtime under the FSLA.
We agree with the Seventh Circuit‘s reasoning in Collins v. Heritage Wine Cellars, Ltd.:
Dividing jurisdiction over the same drivers, with the result that their employer would be regulated under the Motor Carrier Act when they were driving the big trucks and under the [FLSA] when they were driving trucks that might weigh only a pound less, would require burdensome record-keeping, create confusion, and give rise to mistakes and disputes.
Id. at 901. The Secretary‘s use of GVWR establishes an objective and predictable standard for determining whether the MCAE applies. The district court properly determined that a FLSA-covered employee under the TCA is one driving a vehicle with a GVWR of 10,000 pounds or less. It also correctly concluded that McCall was not a covered employee and properly granteded summary judgment to DAV and denied partial summary judgment to McCall.
III. Conclusion
Accordingly, we affirm the judgment of the district court.