Wendy St. Elien v. All County Environmental Services, Inc.

991 F.3d 1197

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 18, 2021
• Docket: 20-11619
• Status: Published

Opinion

USCA11 Case: 20-11619 Date Filed: 03/18/2021 Page: 1 of 10

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11619 Non-Argument Calendar ________________________

D.C. Docket No. 0:19-cv-60630-RAR

WENDY ST. ELIEN,

Plaintiff - Appellant,

versus

ALL COUNTY ENVIRONMENTAL SERVICES, INC., VICTOR WEST, III, DAHLIA WEST,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(March 18, 2021)

Before WILSON, ROSENBAUM, and NEWSOM, Circuit Judges.

NEWSOM, Circuit Judge: USCA11 Case: 20-11619 Date Filed: 03/18/2021 Page: 2 of 10

This case presents the following question: Does evidence that an employee

makes three to five phone calls per week to out-of-state customers and vendors

provide a legally sufficient basis for a reasonable jury to find that the employee

falls within the coverage of the Fair Labor Standards Act? We hold that it does.

Because the district court erred in concluding otherwise, we vacate its judgment

and remand for further proceedings.

I

All County Environmental Services, Inc. provides pest-control services for

homes and businesses in Southeast Florida. All County has only one office,

located in Broward County, and Wendy St. Elien worked there as an administrative

assistant. St. Elien sued All County, All County’s president Victor West III, and

Victor’s wife Dahlia West, alleging that they had violated the Fair Labor Standards

Act by failing to pay her overtime wages.

The FLSA provides, subject to exceptions not relevant here, that—

[N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1).

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Section 207(a)(1)’s first clause—which refers to “any of his employees who

in any workweek is engaged in commerce or in the production of goods for

commerce”—pertains to what we’ve called “individual coverage” and requires us

to examine the individual employee’s activities. See Thorne v. All Restoration

Servs., Inc., 448 F.3d 1264, 1266 (11th Cir. 2006). The second clause—which

refers to “an enterprise engaged in commerce or in the production of goods for

commerce”—points to what we’ve termed “enterprise coverage” and requires an

assessment of the enterprise’s activities. See Polycarpe v. E&S Landscaping Serv.,

Inc., 616 F.3d 1217, 1220 (11th Cir. 2010).

This case went to trial on the question whether St. Elien’s interstate contacts

sufficed to bring her within the FLSA’s ambit through § 207(a)(1)’s “individual

coverage” clause. At trial, St. Elien testified that she called All County’s out-of-

state customers and vendors on the phone between three and five times a

week. She explained that many of the out-of-state customers were “snowbirds”—

those who live in colder climes much of the year and then head down to Florida

during winter. St. Elien called these customers to ask for permission to charge

their credit cards for services rendered at their Florida properties or to get their go-

ahead before All County entered their premises. As to the out-of-state vendors,

St. Elien called their corporate headquarters to discuss billings and payments to

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those companies for purchases that All County had made at those companies’ local

stores.

Having heard St. Elien put on her case for two days, the district court

granted the defendants’ Rule 50(a) motion for judgment as a matter of

law. The district court’s ruling hinged on the following portion of our decision

in Thorne:

[F]or an employee to be “engaged in commerce” under the FLSA, he must be directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce, e.g., transportation or communication industry employees, or (ii) by regularly using the instrumentalities of interstate commerce in his work, e.g., regular and recurrent use of interstate telephone, telegraph, mails, or travel.

448 F.3d at 1266.

On the district court’s reading of that passage, a plaintiff must, as a

necessary prerequisite, present evidence that she “direct[ly] participat[ed] in the

actual movement of persons or things in interstate commerce,” such that the

plaintiff’s proof that she “regularly used the instrumentalities of interstate

commerce,” without more, wouldn’t establish individual coverage. And in this

case, the district court found that St. Elien failed to satisfy that threshold condition

because “there [was] simply no evidence in the record that [she] directly

participated in the actual movement of persons or things in interstate

commerce.” Regarding the phone calls, the court said that it was “unpersuaded

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that speaking on the phone with ‘snowbirds’ to obtain approval for local work and

payment processing constitutes ‘direct participation’ in interstate

commerce.” And, the court continued, calling those customers on the phone to

discuss their payments or gain permission to enter their properties did “not alter the

fundamentally local nature of [St. Elien’s] work.” Accordingly, the court held that

St. Elien wasn’t individually covered by the FLSA and that the defendants were

entitled to judgment as a matter of law.

This is St. Elien’s appeal. 1

II

First, the statutory text. We must ask whether the evidence was sufficient to

support a jury finding that St. Elien was an “employee[] who in any workweek . . .

engaged in commerce or in the production of goods for commerce.” 29 U.S.C.

§ 207(a)(1). Because there’s no contention that St. Elien produced goods for

commerce, the sole question is whether a rational jury could have found that she

was “engaged in commerce.”

1 “A ruling on a party’s motion for judgment as a matter of law is reviewed de novo, applying the same legal standard as the district court.” McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016) (quotation marks omitted). To grant such a motion, the court must “find[ ] that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue,” Fed. R. Civ. P. 50(a)(1), even when all logical inferences are made for, and the record is viewed in the light most favorable to, the nonmovant, McGinnis, 817 F.3d at 1254. 5 USCA11 Case: 20-11619 Date Filed: 03/18/2021 Page: 6 of 10

We hold that it could have. The FLSA defines “[c]ommerce” to mean

“trade, commerce, transportation, transmission, or communication among the

several States or between any State and any place outside thereof.” 29 U.S.C.

§ 203(b) (emphasis added). As a matter of plain text, then, it would seem that

St. Elien “engaged in commerce” because she engaged in “communication . . .

between any State and any place outside thereof.” After all, she was in Florida and

she called—that is, engaged in communication with—customers and vendors in

other states and, in one instance, another country. And she did so three to five

times a week as part of her work for All County. That, we think, is sufficient to

permit a rational jury to conclude that St. Elien was individually covered by the

FLSA.

The district court felt constrained to reach the opposite conclusion based

largely on our decision in Thorne and, in particular, our statement (quoted earlier)

that—

[F]or an employee to be “engaged in commerce” under the FLSA, he must be directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce, e.g., transportation or communication industry employees, or (ii) by regularly using the instrumentalities of interstate commerce in his work, e.g., regular and recurrent use of interstate telephone, telegraph, mails, or travel.

Thorne, 448 F.3d at 1266.

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Based on that passage, the district court rejected the contention that the

“testimony that [St. Elien] regularly spoke to out-of-state customers [was]

sufficient to submit the case to the jury.” The court acknowledged that

“allegations that a plaintiff directly participated in interstate commerce by placing

telephone calls to out-of-state customers is sufficient to navigate a plaintiff through

the courthouse door,” but held that, ultimately, more was required under Thorne,

such that St. Elien’s communications with out-of-state customers (and, we assume,

vendors) left no room for a reasonable jury to find in her favor.

That seems to us a plausible but ultimately mistaken reading of Thorne. St.

Elien argues, and we agree, that the phrase in Thorne on which the district court

focused—“he must be directly participating in the actual movement of persons or

things in interstate commerce by”—is not a freestanding condition imposed on

each of the latter two components of the sentence. Rather, those two components

are independent ways “by” which one can show “direct[] participat[ion].” That is,

one who, within the meaning of sub-clause (ii), “regularly us[es] the

instrumentalities of interstate commerce in his work, e.g., regular and recurrent use

of interstate telephone, telegraph, mails, or travel” is one who “directly

participat[es] in the actual movement of persons or things in interstate commerce.”

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The remainder of Thorne supports that interpretation. As evidence, consider

how Thorne frames the individual-coverage issue elsewhere. For instance, the

Court said that “[f]or individual coverage to apply under FLSA, [the plaintiff] must

have provided evidence at trial that he was (1) engaged in commerce or (2)

engaged in the production of goods for commerce.” Id. Then, within its

discussion of the “engaged in commerce” route to coverage, the Court discussed

“the actual movement of persons or things in interstate commerce.” Id. And it did

so based on regulations that specify how the FLSA applies in the context of the

construction industry. See id. (citing 29 C.F.R. § 776.23(d)(2) (“Employment in

the construction industry”); id. § 776.24 (“Travel in connection with construction

projects”). Notably, the Court observed that the plaintiff there “did not produce

evidence that he corresponded with merchants outside the state of Florida using the

mail, phone, or fax . . . .” Id. at 1267. That caveat—which seems to describe

precisely the kind of evidence that St. Elien produced here—strongly suggests that

the Court didn’t mean to graft an “actual movement of persons or things”

evidentiary requirement onto the definition of “commerce” for all FLSA claims.

Accordingly, we don’t think that Thorne forecloses the possibility that a reasonable

jury could find for St. Elien.

St. Elien also directs our attention to regulations promulgated by the

Department of Labor that counsel against the district court’s reading of the FLSA.

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While we don’t find § 207(a)(1) ambiguous—and thus needn’t wade into

Chevron’s waters—we do note that a number of DOL’s regulations buttress our

reading of the text. Consider, for example, 29 C.F.R. § 779.103:

Typically, but not exclusively, employees engaged in interstate or foreign commerce include employees in distributing industries, such as wholesaling or retailing, who sell, handle or otherwise work on goods moving in interstate commerce as well as workers who order, receive, pack, ship, or keep records of such goods; clerical and other workers who regularly use the mails, telephone or telegraph for interstate communication; and employees who regularly travel across State lines while working.

29 C.F.R. § 779.103 (emphasis added). The same regulation explains that

“[e]mployees are ‘engaged in commerce’ within the meaning of the Act when they

are performing work involving or related to the movement of persons or things

(whether tangibles or intangibles, and including information and intelligence)

among the several States or between any State and any place outside thereof.” Id.

(emphasis added). Under DOL’s understanding of matters, then, clerical workers

making phone calls to out-of-state entities to exchange information fall within the

FLSA’s ambit. Other regulations reflect the same understanding that this kind of

work satisfies the “engaged in commerce” criterion. See, e.g., 29 C.F.R.

§ 776.23(d)(2) (“[E]mployees who regularly use instrumentalities of commerce,

such as the telephone, telegraph and mails for interstate communication are within

the scope of the Act.”); id. § 776.10(b) (“[S]ince ‘commerce’ as used in the Act

includes not only ‘transmission’ of communications but ‘communication’ itself, 9 USCA11 Case: 20-11619 Date Filed: 03/18/2021 Page: 10 of 10

employees whose work involves the continued use of the interstate mails,

telegraph, telephone or similar instrumentalities for communication across State

lines are covered by the Act.”).

* * *

For the foregoing reasons, we hold that a reasonable jury could find that St.

Elien was covered under the FLSA. We therefore VACATE the district court’s

judgment and REMAND for further proceedings consistent with this opinion.