IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NEPTALI JARAMILLO and IRA

NAVARRO, Individually and on

Behalf of All Others Similarly

Situated,

 Plaintiffs,

v.

GARDA, INC., GARDA CL GREAT

LAKES, INC. and DANIEL WEBB,

 Defendants.

Case No. 12 C 662

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants’ Motion for Summary for

Judgment. For the reasons stated herein, the Motion is granted. 

I. BACKGROUND

Defendant Garda CL Great Lakes, Inc. (“Garda”) is a secured

transportation service company that provides armored vehicle

transportation. Plaintiffs are past and current drivers or

messengers at Garda’s Broadview, Illinois branch. Drivers at Garda

are assigned to various routes for pickups and deliveries, while

messengers assist drivers in loading the armored vehicles. 

At the Broadview branch, Garda’s business includes

transporting coin, currency, checks, negotiable instruments, and

other valuables to and from customers. Drivers at the Broadview

branch make biweekly trips between the Federal Reserve in Chicago
and the Federal Reserve in Davenport, Iowa. Drivers also transport

coin and currency to and from Milwaukee, Wisconsin and

Indianapolis, Indiana five days a week. 

Garda’s Broadview branch utilizes a fleet of more than 100

armored vehicles. The majority of these vehicles have a gross

vehicle weight rating (“GVWR”) of more than 10,001 pounds (“large

vehicles”). A limited number of vehicles have a GVWR of less than

10,001 pounds (“small vehicles”). Plaintiffs have driven both

large and small vehicles as employees for Garda. 

Garda is a Federal Motor Carrier Safety Administration

(“FMCSA”) certified company and holds U.S. Department of

Transportation (“DOT”) FMCSA Number USDOT # 163997. This

certification requires Garda to comply with FMCSA’s rules,

regulations, and procedures. 

Plaintiffs filed this lawsuit against Defendant Garda, Garda,

Inc., and Daniel Webb, Garda’s Broadview Branch Manager,

(collectively the “Defendants”) under the Illinois Minimum Wage Law

(“IMWL,” 820 ILL. COMP. STAT. 105/1, et seq.), and the federal Fair

Labor Standards Act, (“FLSA,” 29 U.S.C. §§ 201 et seq.). 

Plaintiffs allege that Defendants failed to pay Plaintiffs the

appropriate overtime rate for hours worked in excess of 40 hours

per week. Plaintiffs brought their claims as a collective action

under the FLSA and as a class action under the Illinois labor laws. 

Defendants now move for summary judgment. 

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II. LEGAL STANDARD

Summary judgment is appropriate if the moving party “shows

that there is no genuine dispute as to any material fact and [it]

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). 

A dispute is “genuine” if the evidence would permit a reasonable

jury to find for the non-moving party. A dispute is material if it

could affect the outcome of the case. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). If the moving party satisfies its

burden, the non-movant must present facts to show a genuine dispute

exists to avoid summary judgment. See Celotex Corp. v. Catrett,

477 U.S. 317, 323–24 (1986). The Court construes all facts and

draws all reasonable inferences in favor of the non-moving party. 

Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009). To establish a

genuine issue of fact, the non-moving party “must do more than show

that there is some metaphysical doubt as the material facts.” 

Sarver v. Experian Info. Sys., 390 F.3d 969, 970 (7th Cir. 2004). 

III. DISCUSSION

Defendants move for summary judgment arguing that Plaintiffs,

and all others similarly situated, are subject to the jurisdiction

of the Secretary of Transportation, (“SOT”), thus making the

overtime provisions of FLSA and IMWL inapplicable. Defendants

claim the Motor Carrier Act (“MCA”) precludes Plaintiffs from

recovering overtime pay as a matter of law. Specifically,

Defendants contend that SOT has jurisdiction because (1)

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Defendants’ business involves interstate commerce; (2) Defendants’

vehicle fleet is mainly composed of large vehicles; and (3)

Plaintiffs in this case are drivers who drove large vehicles at

some point during their employment or could be expected to drive a

large vehicle on any given day of their employment. 

Plaintiffs contend summary judgment should be denied because

the SOT and the MCA should not automatically exempt Plaintiffs from

receiving overtime wages. Plaintiffs argue that in the weeks that

individual Plaintiffs drove only small vehicles, the MCA overtime

exemption should not apply. Plaintiffs urge this Court to undergo

a week-by-week analysis to determine whether a named Plaintiff

exclusively operated a small vehicle, and in those weeks, find the

MCA exemption inapplicable. 

A. FLSA and MCA

The FLSA requires employers to pay employees one and one-half

times their normal hourly wage for each hour they work in excess of

forty hours per week. 29 U.S.C. § 207(a)(1). Generally, employees

of a motor carrier that engages entirely in intrastate commerce are

subject the Secretary of Labor’s jurisdiction and consequently the

overtime provisions of the FLSA. Johnson v. Hix Wreck Service,

Inc., 651 F.3d 658, 660 (7th Cir. 2011). However, “employees of a

motor carrier that engages in interstate commerce may come under

the Secretary of Transportation’s jurisdiction under the Motor

Carrier Act [MCA].” Id. at 660-61 citing 49 U.S.C. § 31502. These

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employees are “exempt from the FLSA’s maximum hour and overtime

provisions pursuant to the FLSA’s motor carrier exemption.” Id.

While many motor carrier employers engage in both intrastate and

interstate commerce, an employee “cannot be subject to the

jurisdiction of both the Secretary of Labor and the Secretary of

Transportation simultaneously.” Id. citing Reich v. Am. Driver

Serv., Inc., 33 F.3d 1153, 1155 (9th Cir. 1994). It is the burden

of the motor carrier employer to show that the employee is exempt

from the overtime provisions of the FLSA. Klein v. RushPresbyterian-St. Luke’s Med. Ctr., 990 F.2d 279, 282 (7th Cir.

1999). 

The Seventh Circuit has explained that the applicability of

the MCA exemption depends on the activities of individual

employees. See Collins v. Heritage Wine Cellars, Ltd., 589 F.3d

895 (7th Cir. 2009). An employee is subject to the MCA exemption

if he/she: (1) is employed with “a [motor] carrier subject to the

power of the Secretary of Transportation”; (2) is engaged “in

activities directly affecting the operational safety of motor

vehicles”; and (3) is “engaged in interstate commerce.” Thompson

v. K.R. Denth Trucking, Inc., No. 1:10-CV-0135-TWP-MJP, 2011 WL

649680 at *3 (S.D. Ind. Feb. 3, 2011).

Prior to August 10, 2005, a motor carrier was defined under

the MCA as “a person providing motor vehicle transportation for

compensation.” 49 U.S.C. § 13102(12) (2004). However, on

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August 10, 2005, Congress enacted the Safe, Accountable, Flexible

and Efficient Transportation Equity Act: A Legacy for Users (the

“SAFETEA-LU”), amending the definition of motor carrier and motor

private carrier to include only commercial motor vehicles. 49

U.S.C. § 13102(14) (2005). This amendment had the effect of

altering the class of employees exempt from the FLSA and removing

from the Secretary of Transportation’s jurisdiction any employee

who did not operate a commercial motor vehicle. See 49 U.S.C.

§ 31132(1). Pursuant to the 2005 amendment, commercial vehicles

were defined as vehicles having “a gross vehicle weight rating or

gross vehicle weight of at least 10,001 pounds.” 49 U.S.C.

§31132(1)(A). 

On June 6, 2008, Congress enacted the SAFETEA-LU Technical

Corrections Act of 2008 (the “TCA”). Pub.L 110–224, 122 Stat. 1572

(2008). Section 305 of TCA replaced the previously changed

language in SAFETEA-LU, restoring the 2004 “motor carrier” language

in lieu of the 2005 commercial motor vehicle definition. However,

Section 306(c) of the TCA provided that the FLSA shall apply to a

“covered employee” notwithstanding Section 13(b)(1) (the exemptions

section) of FLSA. TCA defined a “covered employee” as one:

(1) who is employed by a motor carrier or motor

private carrier (as such terms are defined by

Section 13102 of Title 49, United States Code,

as amended by Section 305);

(2) whose work, in whole or part, is defined as:

(A) that of a driver, driver's helper,

loader, or mechanic; and

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(B) affecting the safety of operation of

motor vehicles weighing 10,000 pounds or

less in transportation on public highways

in interstate or foreign commerce, except

vehicles —

(i) designed or used to transport more

than 8 passengers (including the

driver) and not used to transport

for compensation; or 

. . .

(iii) used in transporting material . . .;

and

(3) who performs duties on motor vehicles weighing

less than 10,000 pounds or less.

Pub.L 110–224, 122 Stat. 1572, Section 306(c).

Thus, the TCA effectively retained the weight requirement for

vehicles in order for the Secretary of Transportation to have

jurisdiction under the MCA. What the TCA failed to articulate

though, was whether employees who work on both vehicles weighing

10,001 pounds and vehicles less than 10,000 pounds would be subject

to the jurisdiction of the Secretary of Transportation. Plaintiffs

argue that because they have worked on small vehicles for periods

of time at Garda, they should be considered “covered employees”

pursuant to the TCA. Plaintiffs do not contest that Garda is

engaged in interstate commerce. Nor do they contest that Garda is

a carrier subject to the Secretary of Transportation, or that

Plaintiffs engage in activities which directly affect the

operational safety of vehicles. Instead, Plaintiffs contend that

they are not covered by the MCA because in certain weeks certain

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employees worked exclusively in vehicles with a GVWR of less than

10,001 pounds. Plaintiffs point to the language of the TCA and the

Department of Labor’s Field Assistance Bulletin (the “Bulletin”) as

support. See Field Assistance Bulletin 2010-2, November 4, 2010

(explaining that the “four month” rule stems from the Department of

Transportation’s interpretation of the MCA . . . conferring that

agency jurisdiction over employees for a four-month period

beginning with the date they could have been called upon to, or

actually did, engage in . . . interstate activities [and]

triggering the overtime pay exemption for that period.”) 

The Court acknowledges that the Bulletin Plaintiffs’ reference

has the potential to support Plaintiffs’ position. However, the

Court finds the Bulletin to lack clarity regarding the issue of

employers with mixed vehicle fleets like Garda and finds the

Bulletin contrary to binding Seventh Circuit authority. Thus, the

Court does not afford the Bulletin great deference. See Howard v.

City of Springfield, 274 F.3d 1141, 1146 (7th Cir. 2001) (stating

an interpretative bulletin . . . from the Department of Labor does

not have the force of binding law . . . [and] [i]t is therefore not

entitled to deference . . .”); see also Christopher v. SmithKline

Beecham Corp., 132 S.Ct. 2156, 2166-67 (2012) (refusing to give

Auer deference to the Department of Labor’s interpretation of its

own regulations because “agencies should provide regulated parties

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fair warning of the conduct [a regulation] prohibits or

requires.”). 

What this Court finds persuasive is the Seventh Circuit

decision in Collins v. Heritage Wine Cellars, LTD., 589 F.3d 895

(7th Cir. 2009). In Collins, the court addressed the issue of

whether a portion of transportation that is entirely within

Illinois is nonetheless interstate commerce within the meaning of

the MCA. Id. After finding that it was, Judge Richard Posner

addressed the plaintiffs’ additional argument which was that

because some plaintiffs drove trucks lighter than 10,001 pounds

between 2005 and 2008, the MCA exemption should not apply. Id. at

901. In rejecting this argument, Posner stated,

[d]ividing 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

Fair Labor Standards Act 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. 

The Court finds the plaintiffs’ argument in Collins identical

to the Plaintiffs’ argument here, and as such, refuses to undergo

a week-by-week analysis to determine what regulatory overtime

scheme should apply to each individual Plaintiff for each week of

work. The Court finds this would be, as Judge Posner stated,

burdensome. 

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Moreover, Plaintiffs’ attempt to distinguish Collins is

futile. Plaintiffs allege that unlike the Collins, some of the

named Plaintiffs here engaged in large vehicles so infrequently

that those trips should be considered “de minimis.” Pl. Opp’n to

Defs.’ Mot. for Summ. J. at 9. Plaintiffs rely on McGee v.

Corporate Express Delivery Systems and Vidinliev v. Carey

International, Inc. to support their position. McGee v. Corporate

Express Delivery Systems, No. 01-C-1245, 2003 WL 22757757 (N.D.

Ill. Nov. 20, 2003); Vidinliev v. Carey International, Inc., 581

F.Supp.2d 1281 (N.D. Ga. 2003). The Court not only finds both

cases distinguishable, but also notes that both cases occurred

prior to the Seventh Circuit’s holding in Collins. Thus, the Court

is not persuaded.

Since Collins, the Seventh Circuit again addressed the issue

the applicability of the MCA exemption to FLSA in Johnson v. Hix

Wrecker Service, Inc, (notably, a case decided after the Department

of Labor issued the Bulletin). Johnson v. Hix Wrecker Service,

Inc., 651 F.3d 658 (7th Cir. 2011). In Johnson, the Seventh

Circuit reversed a district court’s decision granting summary

judgment to an employer because the Seventh Circuit found the

employer’s evidence insufficient to show that his employee fell

within the MCA exemption. Id. at 662. In making its

determination, the Seventh Circuit found that the employer’s

“affidavit . . . [failed to] show that Hix Wrecker [the employer]

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engaged in interstate commerce within a “reasonable period of time”

prior to the time during which it claims the exemption . . . [a]nd

the affidavit does not establish that Johnson [plaintiff] was

subject to being used in interstate commerce during a four-month

period or during any other “reasonable period of time.”” Id.

citing 46 Fed. Reg. 37,902. 

In Johnson, the Seventh Circuit relied on the Department of

Transportation’s interpretation of MCA which attempted to clarify

the extent of the Secretary of Transportation’s jurisdiction. It

states:

[For an employee to fall under the Secretary

of Transportation’s jurisdiction] . . . the

carrier must be shown to have engaged in

interstate commerce within a reasonable period

of time prior to the time at which

jurisdiction is in question. The carrier’s

involvement in interstate commerce must be

established by some concrete evidence such as

an actual trip in interstate commerce . . . If

jurisdiction is claimed over a driver who has

not driven in interstate commerce, evidence

must be presented that the carrier has engaged

in interstate commerce and that the driver

could reasonably have been expected to make

one of the carrier’s interstate runs. . . .

[Additionally] evidence of driving in

interstate commerce should be accepted as

proof that the driver is subject to [the

Secretary of Transportation’s jurisdiction]

for a 4-month period from the date of proof. 

46 Fed. Reg. 37,902.

In Johnson, the only evidence the employer submitted as proof

of the Secretary of Transportation’s jurisdiction was an affidavit

from its corporate secretary which stated that the employer’s

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drivers could be subject to being assigned to an interstate trip on

any given day. Id. at 662-63. 

Unlike the affidavit in Johnson, here, Defendants provided the

Court a multitude of exhibits detailing the driving records for

every named Plaintiff in this case. The Court finds these records

telling. The records not only reveal that every named Plaintiff

has driven a large vehicle, but also show that 21 out of the 34

named Plaintiffs have driven large trucks more than 80 percent of

the time at Garda. Moreover, even Plaintiff Jaramillo, the

individual Plaintiff who drove large vehicles the least amongst all

other Plaintiffs, still drove large vehicles on 11 different

occasions. The Court finds this to be a “reasonable amount of

time,” particularly because it is clear that Plaintiff Jaramillo

could be expected to drive a large vehicle on any given day of his

employment with Garda. Indeed, Defendants have provided “concrete

evidence” that all Plaintiffs could be expected to be a driver or

messenger in a large vehicle on any given day of their employment. 

Id. Because of this, the Court finds Defendants have satisfied

their burden of proof regarding each employee’s exemption from

FLSA. 

B. Plaintiff’s Request to Amend their Complaint

At the end of Plaintiffs’ Response to Defendants’ Motion for

Summary Judgment, Plaintiffs request leave to amend their Complaint

to “resolve any remaining disputes.” Pl. Opp. to Def.’s Mot. for

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Summ. J. at 12. Specifically, Plaintiffs seek to amend the

definition of the class as follows:

All individuals who were employed or are

currently employed, by one or more of the

Defendants, its subsidiaries or affiliated

companies as armored transport employees or

any other similarly titled position at any

time during the relevant statute of

limitations period and who exclusively drove a

small vehicle (less than 10,001 lbs.) during

any work week. 

Id. 

Defendants oppose Plaintiffs request to amend their Complaint,

arguing that the proposed modification of the class definition

would have the same deficiencies as the current Complaint. 

Federal Rule of Civil Procedure 15 states that leave to amend

“shall be freely given when justice so requires.” FED. R. CIV.

P. 15. However, under Rule 15, a court “may deny leave to amend on

the grounds of undue delay, bad faith, dilatory motive, prejudice,

or futility.” Guise v. BMW Mortg., LLC, 377 F.3d 795, 801 (7th

Cir. 2004) citing Indiana Funeral Directors Ins. Trust v. Trustmark

Ins. Corp., 347 F.3d 652, 655 (7th Cir. 2003). 

The Court finds here that even if it granted Plaintiffs leave

to amend their class definition, the class would still suffer the

same flaws as the current class definition, and thus, would not

survive summary judgment. This is due in part because of the

holding in Collins, which expressly denied an employee’s request to

undergo a week-by-week analysis to determine whether FLSA applied,

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and in part because Garda has provided the Court sufficient

evidence to determine that all employees at Garda can be expected

to drive a large vehicle on any given day of their employment. See

Collins, 589 F.3d at 901; Def. Reply Br. in Supp. of Mot. for Summ.

J. Ex. 1. Moreover, the fact that the courts have consistently

held that an employee cannot be subject to the jurisdiction of the

Secretary of Transportation and the Department of Labor

simultaneously provides added support. See Johnson, 651 F.3d at

660. As such, the Court denies Plaintiffs Motion to Amend their

Complaint. 

IV. CONCLUSION

For the reasons stated herein, the Court grants Defendants’

Motion for Summary Judgment.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE:10/17/2012

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