McMahan v. ADEPT PROCESS SERVICES, INC.McMahan v. ADEPT PROCESS SERVICES, INC.
ORDER
This case arises under the Fair Labor Standards Act (“FLSA”). 29 U.S.C. §§ 201, et seq. Defendant Adept Process Services, Inc. (“APS”) moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”) on the ground that Plaintiffs’ asserted claims for overtime pay are expressly barred by 29 U.S.C. § 213(b)(6), which exempts from the FLSA’s overtime pay requirements “any employee employed as a seaman.” Docs. 21, 22; 29 U.S.C. § 213(b)(6). For the reasons contained herein, the Court GRANTS APS’s motion for summary judgment.
I. Procedural History
On June 15, 2010, Plaintiffs Eric L. McMahan (“McMahan”), James E. Cooke (“Cooke”), Christopher E. Brown (“Brown”), Joshua Wiggins (“Wiggins”), Alexander F. Barranger (“Barranger”), Peter Milton (“Milton”), Jeffrey Harrell (“Harrell”), and Alex Rogers (“Rogers”) (collectively, “Plaintiffs”) filed their complaint against APS.
1
Doc. 1. Plaintiffs
On March 24, 2011, APS moved for Rule 56 summary judgment on the ground that Plaintiffs’ claims for overtime pay are barred by the “seaman exemption” in 29 U.S.C. § 213(b)(6). Doc. 22 at 1. Plaintiffs filed a response on April 4, 2011, contending that they are and were not “seamen” for FLSA exemption purposes and are, therefore, entitled to overtime pay. Doc. 23 at 45. APS filed a reply on April 6, 2011. Doc. 25. A hearing on APS’s motion was held on May 9, 2011.
II. Factual Background
In accordance with Local Civil Rule 56(B), the Court assumes as admitted the facts set forth at pages 311 of APS’s memorandum in support of its motion for summary judgment. Doc. 22. APS’s “Statement of Undisputed Facts” is adopted in whole because Plaintiffs’ responsive brief contains no specifically captioned section listing the material facts that it wishes to dispute, and it does not otherwise appear that Plaintiffs dispute such facts.
5
See Blaustein & Reich, Inc. v. Buckles,
1. The Boats operated by the Plaintiffs are 29 foot mini-tugs, each of which has an enclosed pilothouse, radar, GPS navigation system, radio, depthsounder, and loudhailer. The Boats are self-propelled by twin Cummins QSL9 diesel engines, rated for 285 horsepower at 1800 engine rpm, with fixed nozzles and rudders. The Boats have deck fittings and fendering systems to support their work as tug boats, including forward and aft tow posts and four quarter (mooring) posts, fittings at the bow for pushing barges and other tows ahead (referred to as “push knees”), and six-inch thick rubber fendering around the hull and on the push knees. The propulsion and fittings are rated for a 14,000 lbs. of bollard pull. The vessels have hoisting fittings, deck worklights, spotlights, and navigation lights.
2. APS crews the Boats with two-person Boat Crews, each consisting of a Captain and a Deckhand.
3. During weekdays, the Navy typically requires APS to have up to five Boat Crews available to carry out the scheduled and unscheduled Moves. 7
4. Each Captain is required to hold valid U.S. Coast Guard issued licenses and certifications.
5. The 2007 Contract, the 2010 Renewal, and all of the renewals in between specify that the Boat Crews are to work a twelve-hour day, paid at a day rate. They further specify “overtime hours” as “hours in excess of the 12-hour work day.”
6. The Boat Crew manning was specified by the 2007 Contract and its attached “Wage Determination 94-0196 17 Vessels,” (the “Wage Determination”) issued by the U.S. Department of Labor (“DOL”).
7. The Wage Determination is for individuals who are “employed on contracts for special project vessels, tugboats, and other coastal vessels.”
8. The Wage Determination states that the “daily rate cannot be computed to an hourly rate.”
9. The Captains and Deckhands are considered seamen under the Jones Act (46 U.S.C. § 30104) and are covered under APS’s marine employer’s liability insurance.
10. Many of the Boat Crews treat their time operating Boats on behalf of APS as qualifying experience and/or training to meet Coast Guard requirements to obtain or maintain Coast Guard Merchant Marine Officer licenses.
11. All of the Plaintiffs are (or were) at-will employees of APS and are (or were) employed as Captains or Deckhands.
12. All of the Plaintiff are, or were, members of the Boat Crews employed by APS to operate the Boats at Norfolk Naval Station in Norfolk, Virginia.
13. All of the Captain Plaintiffs were hired by APS as U.S. Coast Guard licensed Captains to operate the Boats.
14. All of the Captain Plaintiffs held U.S. Merchant Marine Officer Master’s Licenses during the times that they worked for APS.
15. All of the Deckhand Plaintiffs obtained Merchant Mariner Documents as Ordinary Seamen either before or during their employment with APS.
16. The sole duty of Deckhand Plaintiffs Wiggins, Brown, Barranger, and Milton during their employment with APS was to serve as Deckhands on the Boats. They performed no other duties as employees of APS.
17. During the working day when not operating the Boats, the Boat Crews could wait in the Boathouse, sit in their cars, listen to the radio, carry out personal errands, work out, or otherwise use their time as the wished, subject only to the constraint that they must remain in the vicinity of the Naval Base and be available for calls so that they could respond if needed to operate the Boats for unscheduled Moves.
18. The sole duty of each of Captains Rogers, Harrell, and Cooke during their employment with APS was to serve as a Captain. They performed no other duties as employees of APS.
19. Captain McMahan’s sole duty with APS throughout his employment was to serve as a Captain; during a portion of his employment with APS he also served as a Designated Examiner. He performed no other duties as an employee of APS.
20. The duties of the Captains employed by APS at Naval Station Norfolk have been, and are, to operate the Boats, to prepare their assigned Boats for upcoming Moves, and to stand by to operate the Boats.
21. The Moves carried out by the Captains using the Boats included navigating the Boats on the waters of Naval Station Norfolk and adjacent waters, towing PSB 8 sections, towing barges, towing paint floats, towing floating fenders, and from time to time towing miscellaneous objects.
22. An operation carried out in connection with the PSB sections typically involves navigating the Boat from the dock or other location to the designated PSB section, unmooring the PSB section from a buoy, tying up the PSB section tothe Boat by tying lines from the PSB section to bitts and/or cleats on the Boat, using the engines and steering of the Boat to maneuver and tow the PSB section clear of the buoy, hold it in position as directed, then tow it back to the buoy, cast off the PSB section from the Boat, and moor it to the buoy.
23. The operation of the Boats calls for the Captains to exercise seamanship and professional judgment, to steer, navigate, and maneuver the Boats, to operate the Boats in accordance with the Navigation Rules, to avoid collisions and interference with other vessels, to monitor and operate the Boats’ radios, to operate the Boats’ radars, to operate the Boats’ GPS navigation equipment, and to perform towing and related maritime operations.
24. The Captains, as the Masters of the Boats to which they were assigned, exercised command and responsibility for the safety of the Boat and its crew.
25. The Captains also maintained various records related to their operation of the Boats, including incident reports, administrative boat logs, and maintenance logs.
26. During the times the Captains were not underway operating the Boats, they had no other duties other than to keep the Boats ready to get underway, and to wait for additional underway operations.
27. The duties of the Deckhands employed by APS at Naval Station Norfolk have been, and are, to assist the Captains with the operation of the Boats under the direction of the assigned Captain.
28. The Deckhands work under the direction of the assigned Captain in the day-to-day operation of the Boats.
29. The tasks performed by the Deckhands include crewing the Boat with the assigned Captain, checking the equipment on the Boat at the start of each work day to ensure that the Boat is ready for operations, checking oil levels in the Boat engine, turning on the Boat batteries, in conjunction with the Captain or as directed, turning on and checking other equipment on the Boat including the Navigation Lights, the radio, the radar, the GPS, the depthsounder, and the loudhailer, handling lines on the Boat, getting underway on the Boat, unmooring PSB sections from buoys and making them up to the Boat by tying lines from the PSB to bitts and/or cleats on the Boat, making other tows up to the Boat by tying lines from the tows to bitts and/or cleats on the Boat, assisting the Captain as necessary while the Boat is towing PSB sections, barges, fenders, or other objects, untying PSB sections or other tows from the Boat, mooring PSB sections to buoys, mooring barges, fenders, and other objects to piers or docks, observing the condition of the PSB hulls and retying lines as needed, tying up the Boat to the dock, washing salt water off the Boat, replacing lines on the Boat, and occasionally changing oil or filters on the Boat.
30. A contractor other than APS carries out the maintenance of the PSB sections.
31. A Naval Station entity carries out the maintenance of the Boats.
32. The Deckhands do not operate any machinery other than the Boats.
33. When not underway on the Boats, Deckhands have no duties other than to prepare the Boats for the upcoming operations and to wait for upcoming operations on the Boats.
34. The Deckhands performed no other duties other than those in connectionwith preparation or operation of the Boats.
Doc. 22 at 311 (internal citations omitted). 9
On April 6, 2011, the parties jointly stipulated to the following additional undisputed facts: APS required Captains to make entries in Boat Usage Logs 10 each day for each Boat to which the Captains were assigned. Doc. 24 at ¶ 1. The Boat Usage Logs recorded boat movements and other matters affecting the Boats. Id. at ¶ 2. An entry of “Standby 5T” indicates that a Boat was not underway during the indicated time. Id. at ¶ 3. When not underway, “Plaintiffs might spend a few minutes over the course of a month ... splicing linesf,] going to the APS office[, and/or] sweeping and emptying the trash in and around the boathouse.” 11 Id. at ¶ 4. When not underway and not performing any of the above activities, “Plaintiffs were on standby to respond if needed to operate the Boats for an unscheduled Move but were otherwise free to use their time as they wished subject only to the constraint that they must remain in the vicinity of the Naval Base and be available for calls to operate Boats.” Id. at ¶ 5. When not underway, Plaintiffs could “read magazines/books/newspapers, go on the internet, watch movies, sleep, sit in their vehicles, throw a football, and socialize.” Id. at ¶ 6. Plaintiffs could also “go to the store, work-out at the gym adjacent to the Boathouse, go to the exchange, go to the bank, and do similar personal errands.” Id. The only constraint on Plaintiffs’ freedom of activity was that Plaintiffs were required to remain in the vicinity of the Naval Base and be available for a call so that they could respond if needed to operate Boats for an unscheduled Move. 12 Id. Deckhands were not provided with communication devices to carry when they were not underway — -during “Standby 5T” status periods. Id. at ¶ 10.
III. Analysis
Entry of summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248,
The determination of whether an employee’s activities place that employee within a FLSA exemption is a question of law; the question of what an employee’s work activities entail is a question of fact.
See Icicle Seafoods, Inc. v. Worthington,
In this case, there is no dispute over Plaintiffs’ duties. As noted in the preceding section of this Memorandum, there is no genuine issue as to those facts listed as 1 to 34 above and the facts provided in the parties’ April 6, 2011 joint stipulation of facts. The Court, therefore, turns to an analysis of whether the admitted and stipulated facts entitle APS to summary judgment that Plaintiffs’ claims for overtime pay are expressly barred by 29 U.S.C. § 213(b)(6) because Plaintiffs are “seamen.”
A. The FLSA’s Seaman Exemption
The FLSA sets forth maximum work hour limitations, requiring that an employer pay overtime at a rate of one and one half times an employee’s regular hourly rate for all hours worked in excess of forty per week. 29 U.S.C. § 207;
Walton,
The DOL advises that “an employee will ordinarily be regarded as ‘employed as a seaman’ if he performs, as master or subject to authority, direction, and control of
The DOL further advises:
Whether an employee is “employed as a seaman”, within the meaning of the Act, depends upon the character of the work he actually performs and not on what it is called or the place where it is performed. Merely because one works aboard a vessel, or may be articled as a seaman, or performs some maritime duties one is not employed as a seaman within the meaning of the Act unless one’s services are rendered primarily as an aid in the operation of the vessel as a means of transportation, as for example services performed substantially as an aid to the vessel in navigation.
29 C.F.R. § 783.33 (internal citations omitted). Listed as “not ‘seamen’ ” are stevedores; longshoremen; concessionaires and their employees; employees on floating equipment engaged in the construction of docks, levees, revetment, and other structures; employees engaged in dredging or digging operations; and “captains” and “deckhands” whose dominant work is industrial activity performed as part of harbor dredging operations and not in furtherance of transportation. 29 C.F.R. § 783.33-34. Some watchmen are “seamen;” others are not. 29 C.F.R. § 783.35. Barge tenders are considered “seamen” unless they do a substantial amount of “non-seaman’s” work. 29 C.F.R. § 783.36. Finally, a “seaman” will be regarded as such “even though during the workweek he performs some work of a nature other than that which characterizes the service of a seaman, if such nonseaman’s work is not substantial in amount,” and “such differing work is ‘substantial’ if it occupies more than 20 percent of the time worked by the employee during the workweek.” 29 C.F.R. § 783.37.
The above DOL regulations are not controlling, but they do “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”
Skidmore v. Swift & Co.,
B. Plaintiffs’ Work was Seamen’s Work
As APS contends, “Plaintiffs’ testimony unequivocally demonstrates that they were/are ‘employed as seam[e]n’ by APS.” Doc. 22 at 15. APS accurately points out that “Plaintiffs testified that all or virtually all of their duties were tasks directly related to operating vessels: preparing the vessels to get underway, operating the vessels while underway, connecting floating objects to the vessels for purposes of towing them, securing tows to buoys and docks, securing vessels once returned to the dock, and standing by waiting to be called to get underway.”
Id.
Such duties are seamen duties: they are services rendered primarily as an aid to the operation of a vessel as a means of transportation. 29 C.F.R. § 783.31;
see also Martin v. McAllister Lighterage
C. Plaintiffs’ Performed No Substantial Nonseamen’s Work
Plaintiffs ask the Court to find that the time they spent waiting to perform seamen’s duties constituted nonseamen’s
work,
notwithstanding the undisputed fact that Plaintiffs spent such time sitting in their cars or trucks (or on a bucket), reading magazines, getting coffee, going to the gym, or doing other personal errands and activities. The Court refuses to accept such a strained interpretation. Plaintiffs cannot reasonably argue that their nonseamen’s
work
exceeded the twenty (20) percent threshold of the 80:20 seaman’s-tononseaman’s-wor/c ratio that the DOL’s regulations suggest should guide a court’s determination of whether the FLSA seaman’s exemption applies. Plaintiffs had no nonseamen’s
duties
and did not perform any nonseamen’s
work.
The record is replete with Plaintiffs’ assertions that they had no
duties
when waiting to answer calls for Moves with APS’s boats,
13
and during
Plaintiffs nonetheless maintain that they spent a vast percentage of their time doing activities, including those set forth in the parties’ Stipulated Fact 6, 14 that were “certainly of a different character than work performed by seaman.” Doc. 23. In reply to Plaintiffs’ response to its motion for summary judgment, APS persuasively argues:
Plaintiffs’ position appears to be that, while conceding that their time spent working as seamen is exempt from overtime compensation provisions, the time they spent on standby waiting to do that overtime-exempt job is not exempt, because they are allowed to engage in personal activities, rest, and recreation or otherwise doing nothing during that waiting time. To even articulate the argument is to expose its frivolity.
Doc. 25 at 4.
When courts compare the ratio of seamen’s
work
with nonseamen’s
work
or
duties,
they are comparing one type of
work
and
duties
(seamen’s) with another type of
work
and
duties
(nonseamen’s). Such courts are not comparing seamen’s
work
time with seamen’s leisure time; such a ratio is not relevant to the inquiry. Plaintiffs’ attempt to classify their leisure
As APS contends, in this case, Plaintiffs’ leisure activities while waiting assume the character of the tasks that the Plaintiffs were waiting to perform — opening and closing the PSBs and performing other Moves with APS’s Boats, i.e. Plaintiffs’ seamen’s
work. See Godard v. Alabama Pilot, Inc.,
IV. Conclusion
In performing Moves on APS’s Boats, Plaintiffs performed seamen’s work. Plaintiffs performed no substantial nonsea
The Clerk is REQUESTED to send a copy of this Order to all counsel of record.
It is so ORDERED.
Notes
. Plaintiffs initially filed suit against Defendants Adept Process Services, LLC and Adept
. The parties jointly stipulate that "[t]he term 'Captain(s)' means persons employed by APS as masters of the Boats,” and "[t]he term ’Boat(s)' refers to the small tugboats operated by APS at Naval Station Norfolk, Virginia.” Doc. 24.
. The parties stipulate that "[t]he term 'Deckhand' means persons employed by APS as crewmembers on the Boats.” Id.
. Plaintiffs’ complaint originally contained a second count against APS — ''Count Two (Retaliation Claim).” However, as noted supra note 1, the parties filed a joint motion to dismiss Count II of Plaintiffs’ complaint and Defendant Adept Process Services, LLC on November 19, 2010, Doc. 12, and the Court granted that motion on November 22, 2010, Doc. 16. Thus, Plaintiffs’ retaliation claim was dismissed, and the Court need only address the allegations set forth in the FLSA claims contained in Plaintiffs' sole remaining count, "Count One.”
.Local Civil Rule 56 mandates that a brief submitted in support of a movant’s motion for summary judgment "include a specifically captioned section listing all material facts as to which the moving party contends there is no genuine issue and citing the parts of the record relied on to support the listed facts as alleged to be undisputed.” Local Civil Rule 56(B). In response, the nonmovant is required to "include a specifically captioned section listing all material facts as to which it is contended that there exists a genuine issue necessary to be litigated and citing the parts of the record relied on to support the facts alleged to be in dispute.” Id. If a nonmovant fails to set forth a statement of genuine issues as required by the rule, “the Court may assume that facts identified by the moving party in its listing of material facts are admitted.” Id.
.
See also Hadeed v. Abraham,
. The parties stipulate that "[t]he term 'Move' refers to an operation conducted by a Boat under the APS contract at Naval Station Norfolk.” Doc. 24.
. APS explains that it operates a fleet of U.S. Navy-owned Boats at Naval Station Norfolk and provides crews that "operate the Boats to open, close, and check on the status of floating port security barriers ('PSBs') that are used by the Navy to protect the Navy vessels moored at the Naval Station.” Doc. 22 at 2. APS further explains, "The barrier system consists of sixteen floating foam filled hulls connected to buoys and to each other with removable links, with netting to create a fence-like appearance. The barrier system covers 2.37 miles of the Naval Station waterfront.” Id. In their response to APS’s motion for summary judgment, Plaintiffs refer to the PSB as the "port security barrier.” In depositions, two of the Plaintiff Captains and two of the Plaintiff Deckhands referred to PSBs as "physical” security barriers rather than "port” security barriers, one Plaintiff Deckhand answered "I believe so” when asked if "PSB” stood for “permanent security barrier,” and another Plaintiff Deckhand referred to PSBs as "protective” security barriers. In any event, PSB(s) refers to the floating barrier at Naval Station Norfolk that APS was tasked with opening and closing.
. As APS contends, "[e]ven if the Court were to be lenient and overlook the Plaintiffs' noncompliance with the Rule [Rule 56(B) ], and attempt to cull out a response in Plaintiffs' 'Factual Background,' it would find that Plaintiffs have not challenged any of Defendants’ [sic] statement of undisputed facts.” Doc. 25 at 1. The parties agree on the operative facts; they simply disagree about whether Plaintiffs’ work activities place Plaintiffs within the FLSA’s “seaman” exemption.
. The parties stipulate that "[t]he term 'Boat Usage Log(s)’ refers to records concerning each Boat maintained by APS and its employees at Naval Station Norfolk.” Doc. 24.
. The parties stipulate that "[t]he term 'Boathouse' refers to the covered dock area and building used by APS at Naval Station Norfolk where the Boats dock when not underway.” Id.
. A "Move Sheet” set forth the schedule of moves to be performed by APS. Id. at ¶ 7. At times, APS would be directed to carry out additional, unscheduled Moves, commonly called “Add-Ons,” and last-minute changes were sometimes made to the "Move Sheet.” Id. at ¶ 8.
.
See e.g.,
Doc. 22-2, McMahan Tr. at 98:2099:12 ("Q. Would you do any work when you worked — when the boat was docked at 5T [the Boathouse]? A. No, not really. Q. Would the deckhands do any work while the boat was docked at 5T? A. No. Q. Was there ever any work that was done other than when the boat was underway? A. Yes. Q. What work was done? A. Splicing lines. Q. Who would do the line splicing? A. Everybody chips in and does that.”), at 101:24102:6 ("Q. Thanks. All right. So when the boat was at 5T or tied up is it correct then you could essentially do whatever you wanted; is that right? A. Yes, sir. Q. Was there any limit to the geographical area in which you could do whatever you wanted? I can ask it another way. How far could you go? A. I mean, I went home.”); Doc. 22-3, Cooke Tr. at 8:1014 ("Q. And what does that job [working as a Captain for APS] involve? A. We are responsible for opening and closing the floating security gate at the Navy base? Q. Anything else? A. That's pretty much the job.”), at 74:7-9 ("Q. Okay. Other than operate the boat, do you do any other work for APS? A. Not really.”); Doc. 22-4, Rogers Tr. at 91:1 ("Q. What are your job duties when you’re not working on the boat? A. We didn't have any.”); Doc. 22-5, Harrell Tr. at 65:9-19 ("Q. What would the deckhands do when the boat was there at 5T [the Boathouse]? A. If you were not underway, besides the morning checks, same as the captains, try to kill time. Q. Standing by for the next job; is that correct? A. Not necessarily. If they need to run to the bank or, you know, go get some food or sit in their vehicle and stay warm, that's fine. Q. But basically waiting for the next job; is that correct? A. Yes.”); Doc. 22-6, Barranger Tr. at 38:1239:1 ("Q. And during the time that the boats were not actually underway what were — what were you doing? A. Sitting on a bucket. Q. Doing anything else? A. If we had new line sometimes we would cut them to length, put them on the boat. I mean, anything, clean the landing at the boathouse, try to stay warm, whichever the temperature was, you know. We were outside the whole day.... Q. So you mentioned sitting on a bucket. I'm assuming you mean waiting. Was there a reason you were sitting on a bucket? A. There was nothing other to do than just sit.”); Doc. 22-7, Wiggins Tr. at 13:25 ("Q. Other than come in, fire up the boat, operate the boat and then stand by to go out on the boat, is there anything else you do at APS? A. No, sir.”), at 63:7-15 (“Q. Is that
. Stipulated Fact 6 provides in full:
While not underway on the Boats, and while not performing an activity as set out in Stipulated Fact 4 [splicing lines; going to the APS office, and sweeping and emptying the trash in and around the boathouse], the Plaintiffs could do the following things in the vicinity of the Boathouse: read magazines/books/newspapers, go on the internet, watch movies, sleep, sit in their vehicles, throw a football, and socialize. They were also routinely permitted to go to the store, work-out at the gym adjacent to the Boathouse, go to the exchange, go to the bank, and do similar personal errands, subject only to the constraint that they must remain in the vicinity of the Naval Base and be available for a call so that they could respond if needed to operate the Boats for an unscheduled Move.
Doc. 24 at 2.
. In Martin, the District Judge reasoned:
The plaintiffs argue, however, that these duties [the plaintiffs' seamen's duties] represent a minor part of the work they do, and that their principal duties were those of watchmen. Actually, I take it that their nautical duties on a normal day did not require more than an hour or two of physical effort except during towing. The rest of the time, apparently, they slept, ate, relaxed, read or busied themselves in any other fashion they liked until it was necessary to perform another nautical duty.
They are employed primarily to aid in the operation of the vessel and they do not do a substantial amount of nonexempt work.
The Plaintiffs would persuade the Court that all nonphysical work, i.e. watching, is nonexempt work but I feel that their duties in their entirety relate to the operation of the vessel. They “watched” only for a nautical assignment to arise.