TCA does “not alter the burden which remains on the employer”
How later courts described this case
- TCA does “not alter the burden which remains on the employer”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIE SEALS,
Plaintiff,
v. Case No. 25-cv-1914-JPG
FEDERAL EXPRESS CORPORATION,
successor to FedEx Ground Package System, Inc.,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on the motion of defendant Federal Express
Corporation (“FedEx”) for summary judgment (Doc. 2). Plaintiff Willie Seals has responded to
the motion (Doc. 8), and FedEx has replied to that response (Doc. 12). At the Court’s request,
the parties submitted supplemental briefing on caselaw from the Seventh Circuit (Docs 57 & 61).
The parties also filed and discussed supplemental authority (Docs. 62, 63, 78 & 81). The Court
also considers various other pending motions (Docs. 40, 43, & 49).
I. Background
In August 2017, a group of drivers who worked delivering FedEx packages filed suit
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-19, in the District of
Massachusetts seeking unpaid overtime wages under § 7(a) of the FLSA, 29 U.S.C. § 207(a).
Roy v. FedEx Ground Package Sys., Inc., No. 3:17-cv-30116 (D. Mass.). In November 2018, the
Roy court limited the case to Massachusetts plaintiffs. The non-Massachusetts plaintiffs then
filed suit in December 2018 in the Western District of Pennsylvania, the district where FedEx is
located. Claiborne v. FedEx Ground Package System, Inc., No. 2:18-cv-1698 (W.D. Pa.). The
Claiborne court conditionally certified a collective action pursuant to § 16(b) of the FLSA, 29
U.S.C. § 216(b). Seals opted into the collective on August 5, 2020. The court then decertified
the collective action and severed the individual claims of opt-in plaintiffs for transfer to
appropriate districts throughout the country.
After the decertification, Seals’s case was transferred to the United States District Court
for the Southern District of Illinois because he lives in Belleville, Illinois, within the Southern
District. FedEx filed its motion for summary judgment in the Western District of Pennsylvania
in January 2025, although it and its subsequent briefing on the motion did not make it to this
Court’s docket until October 2025.
The Second Amended Complaint (Doc. 37-1) asserts that Seals, a driver delivering
FedEx packages through an independent service provider (“ISP”), was properly classified as a
FedEx employee under the FLSA. Seals asserts that he was entitled under § 7(a) of the FLSA to
overtime compensation from FedEx for hours worked over 40 per week. In its summary
judgment motion, FedEx sidesteps the “employee” question and challenges Seals’s ability to
produce evidence that § 7(a) applied to him and that all of his claims fell within the statute of
limitations. It further seeks a legal determination of the proper method for damages calculation
to the extent any claim survives its first two arguments.
The Court finds there are genuine issues of material fact regarding Seals’s exemption
from the FLSA’s overtime pay requirements and the application of the statute of limitations,
although it finds FedEx correct, as a matter of law, regarding the method of calculating any
overtime pay due. For this reason, with one exception, the Court will deny FedEx’s motion for
summary judgment.
II. Summary Judgment Standard
Summary judgment must be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The Court must construe the evidence in the
light most favorable to the nonmoving party and draw all reasonable inferences in favor of that
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520
F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. Nevertheless, the “favor toward the
nonmoving party does not extend to drawing inferences that are supported by only speculation or
conjecture.” Monroe v. Ind. Dep’t of Transp., 871 F.3d 495, 503 (7th Cir. 2017) (internal
quotations and citations omitted).
The initial summary judgment burden of production is on the moving party to show the
Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712
F.3d 1166, 1168 (7th Cir. 2013). Where the nonmoving party carries the burden of proof at trial,
the moving party may satisfy its burden of production in one of two ways. It may present
evidence that affirmatively negates an essential element of the nonmoving party’s case, see Fed.
R. Civ. P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element
of the nonmoving party’s case without actually submitting any evidence, see Fed. R. Civ. P.
56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving
party fails to meet its strict burden, a court cannot enter summary judgment for the moving party
even if the opposing party fails to present relevant evidence in response to the motion. Cooper v.
Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere
existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by
“some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
III. Facts
There appears to be little dispute about the relevant facts and available evidence. The
dispute is primarily over burdens and inferences that can be drawn on summary judgment from
that evidence.
FedEx, a corporation in the business of commercial package delivery, is registered as a
motor carrier with the U.S. Department of Transportation and the Federal Motor Carrier Safety
Administration. Seals was employed to pick up and deliver packages for FedEx for two separate
periods from October 2017 to February 2020 out of FedEx’s Sauget, Illinois, facility. He worked
a total of 33 weeks during which he was paid $125.00 per day.
Seals was employed by two ISPs that contracted with FedEx to pick up and deliver
packages sent through FedEx: G Factor Transportation from October 11, 2017, to December 21,
2018, and Urbane Logistics from September 30, 2019, to February 2, 2020. G Factor and
Urbane owned some of the vehicles used by their drivers and rented others from commercial
vehicle rental agencies. FedEx did not own any of the vehicles.
On some work days, Seals drove delivery vehicles that had a gross vehicle weight rating
(“GVWR”) of over 10,000 pounds (“MCA vehicles”), but on other days he drove vehicles that
had a GVWR of 10,000 pounds or less (“light vehicles” or “small vehicles”). Seals typically
sought out two specific vehicles to drive, but he did not know the GVWR of either. When a
vehicle owned by an ISP was not available, he drove a rented vehicle, but he did not know the
GVWR of those vehicle either. Evidence of the frequency with which he drove light vehicles is
spotty, as described below.
FedEx obtained data about a driver’s work from information the driver entered into a
scanner, which FedEx calls “scanner data.” FedEx reviewed the scanner data to ensure
compliance with Department of Transportation rules. Each day a driver entered into the scanner
information about, among other things, the vehicle number of the ISP’s vehicle driven. The
vehicle number could be cross-referenced in FedEx’s Vehicle Maintenance System to determine
the GVWR of the particular vehicle if the ISP that owned the vehicle had entered that
information in those records. If it had not entered the information, FedEx did not have it. The
ISPs did not enter into FedEx’s maintenance records information about vehicles they rented for
drivers’ use in transporting FedEx packages. Additionally, errors in transcribing a vehicle
number made tracking down its GVWR extremely difficult.
Seals drove 79 days for G-Factor and 56 days for Urbane. The following chart represents
the days for which FedEx has scanner data for the type of vehicle Seals drove.
Light vehicle MCA vehicle Unknown vehicle Total Days
days days days
G Factor 2 (2.5%) 19 (24.1%) 58 (73.4%) 79 (100%)
Urbane 6 (10.7%) 0 (0%) 50 (89.3%) 56 (100%)
Total days 8 (5.9%) 19 (14.1%) 108 (80%) 135 (100%)
A substantial number of the days Seals drove vehicles of unknown GVWR he drove what he
describes as vans or 12-foot box trucks rented by the ISP, possibly light vehicles.
The scanner data broken down by weeks shows that Seals drove a documented light
vehicle in 4 weeks; in 3 of those weeks he was logged in as “on duty” for more than 40 hours. It
further shows that Seals drove a documented light vehicle or one of the unknown GVWR in 32
of 33 weeks; in 22 of those weeks he was logged in for more than 40 hours.
Light vehicle Light or unknown Total weeks
vehicle
Weeks worked 4 (12.1%) 32 (97.0%) 33 (100%)
Weeks on duty 3 (75.0%) 22 (68.8%)
>40 hours
In the weeks Seals worked more than 40 hours, he was still paid $125.00 per day and was
not paid overtime wages. He never complained to FedEx about not getting overtime.
Nevertheless, for all the years they employed Seals, G-Factor and Urbane certified to FedEx in
Annual Compliance Certifications that they had complied with all applicable laws, including
wage and hour laws like the FLSA.
Seals opted in to the Claiborne collective as a plaintiff on August 5, 2020. In August
2021, the original plaintiffs plus the opt-in plaintiffs filed the First Amended Complaint adding
state law overtime claims (Doc. 4), and on July 24, 2024, they filed the Second Amended
Complaint (Doc. 37-1). Seals did not bring a state law claim.
FedEx asks the Court for summary judgment on the grounds that Seals cannot show he
was subject to the FLSA’s overtime requirements because he was subject to the Motor Carrier
Act (“MCA”) Exemption. It also argues that the two-year statute of limitations bars some of
Seals’s claimed damages. Seals argues that it is FedEx’s burden to show an exception to the
MCA Exemption for light vehicles did not apply and that he is entitled to the three-year statute
of limitations for willful violations or equitable tolling of the limitations period. Finally, the
parties dispute the appropriate method for calculating damages.
IV. Analysis
As a preliminary matter, no party disputes that FedEx is a federal motor carrier engaged
in interstate commerce, that those driving to deliver its packages operate in interstate commerce
and that, were it not for the dispute over the use of small vehicles, those drivers would be subject
to the jurisdiction of the Secretary of Transportation under the MCA. So all those preliminaries
are taken as given. The parties clash over whether Seals falls within an exception to an
exemption from the FLSA’s overtime pay requirements, whether Seals’s claims are time barred
in part, and the proper method for calculating damages, if there are any.
A. Entitlement to Overtime Pay
FedEx first argues that Seals cannot show he was owed overtime pay for any week he
worked more than 40 hours. It claims he fell under the MCA Exemption from the FLSA
overtime pay requirement and not within the Small Vehicle Exception to that exemption. The
exemption and exception are described below. FedEx notes that there are very few records of
Seals’s using a small vehicle. It further argues that overtime eligibility is determined on a week-
by-week basis, so even if there were weeks he drove small vehicles, he is not owed overtime for
weeks he drove only MCA vehicles.
Seals contends that, after he shows he worked more than 40 hours without being paid
overtime pay, it is FedEx’s burden to show that the MCA Exemption applied, which includes the
burden to show the Small Vehicle Exception does not apply. Even if Seals bears the burden, he
claims there are genuine issues of material fact about which kind of vehicles Seals drove for
what length of time and whether his use of light vehicles was de minimis. He argues that gaps in
the scanner data’s recording of vehicle GVWR cannot be viewed in FedEx’s favor, so the Court
must assume vehicles of unknown GVWR were light vehicles.
1. Statutory Framework
A grasp of the statutory framework of the FLSA and the MCA is essential to
understanding this dispute. Section 7(a) of the FLSA requires overtime pay for any employee
who works more than 40 hours in a workweek. 29 U.S.C. § 207(a)(1). The overtime pay must
be “at a rate not less than one and one-half times the regular rate at which he is employed.” Id.
However, § 13(b) of the FLSA exempts from the overtime provisions “any employee
with respect to whom the Secretary of Transportation has power to establish qualifications and
maximum hours of service pursuant to the provisions of section 31502 of Title 49.” 29 U.S.C.
§ 213(b)(1); see Stingley v. Laci Transp. Inc., 172 F.4th 525, 528 (7th Cir. 2026); Collins v.
Heritage Wine Cellars, Ltd., 589 F.3d 895, 897 (7th Cir. 2009). The statute cited in § 13(b)(1) is
part of the MCA, so this exemption is often referred to as the MCA Exemption.1 That statute
allows the Secretary of Transportation to “prescribe requirements for . . . qualifications and
maximum hours of service of employees of . . . a motor carrier.” 49 U.S.C. § 31502(b)(1).
FLSA regulations provide that the MCA Exemption applies only to employees who
(1) Are employed by carriers whose transportation of passengers or property by
motor vehicle is subject to his jurisdiction under section 204 of the Motor Carrier
Act. . ., and (2) engage in activities of a character directly affecting the safety of
operation of motor vehicles in the transportation on the public highways of
passengers or property in interstate or foreign commerce within the meaning of
the Motor Carrier Act.
29 C.F.R. § 782.2(a). Thus, generally, the Secretary may regulate the maximum hours of drivers
employed by motor carriers, so they are not entitled to overtime under the FLSA.
However, the SAFETEA-LU Technical Corrections Act of 2008 (“TCA”), P.L. 110-244,
June 6, 2008, 122 Stat 1572, clarified the MCA Exemption and defined the Small Vehicle
Exception. The TCA states that the FLSA overtime pay requirements apply to a “covered
1 The rationale for MCA Exemption is safety. “It is dangerous for drivers to spend too many
hours behind the wheel, and a requirement of pay that is higher for overtime service than for
regular service tends to . . . encourage employees to seek overtime work.” Burlaka v. Contract
Transp. Servs. LLC, 971 F.3d 718, 719 (7th Cir. 2020) (internal quotations omitted).
employee” notwithstanding the MCA Exemption. TCA § 306(a). In turn, the TCA defined a
“covered employee” as an individual:
(1) who is employed by a motor carrier. . .;
(2) whose work, in whole or in part, is defined—
(A) as that of a driver. . .; and
(B) as affecting the safety of operation of motor vehicles weighing 10,000
pounds or less in transportation on public highways in interstate or foreign
commerce, [with inapplicable exceptions]; and
(3) who performs duties on motor vehicles weighing 10,000 pounds or less.
TCA § 306(c) (emphasis added).
In sum, for this case it is enough to say that the FLSA requires overtime pay for drivers
employed by motor carriers who are “covered employees” under the TCA, that is, drivers who,
“in whole or in part,” operate light vehicles. If an employee is a “covered employee,” he falls
within the Small Vehicle Exception to the MCA Exemption and is entitled to overtime pay under
§ 7(a) of the FLSA.
2. Relevant Caselaw
In order to prove an FLSA claim for unpaid overtime wages, a plaintiff must prove that
he performed overtime work without being paid time-and-a-half wages and that he suffered
damages. Osborn v. JAB Mgmt. Servs., Inc., 126 F.4th 1250, 1256 (7th Cir. 2025).
If precise work records are not available to prove the extent of damages because the
employer did not keep accurate records as required by the FLSA, 29 U.S.C. § 211(c), the
employee may rely on a “just and reasonable inference” from evidence that he was improperly
compensated for some overtime work even if the evidence does not explicitly show the precise
amount and extent of that work. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687
(1946), superseded on other grounds by Portal-to-Portal Act of 1947, 29 U.S.C. § 254(c). “The
just and reasonable inference standard applies to damages questions only after an employee has
met the initial burden to establish[] liability by showing that the employee performed
uncompensated overtime work.” Osborn, 126 F.4th at 1256 (internal quotations omitted). The
defendant can then provide evidence of the precise amount of work performed or the
unreasonableness of the inference on which the plaintiff relies. Anderson, 328 U.S. at 688. If
the defendant fails to produce such evidence, damages may be awarded even if they are only an
approximation. Osborn, 126 F.4th at 1256-57.
An employer claiming an employee is exempt from FLSA overtime pay requirements
bears the burden of proving an exemption applies. “The FLSA is a remedial act and exemptions
from its coverage are to be narrowly construed against employers.” Klein v. Rush-Presbyterian-
St. Luke’s Med. Ctr., 990 F.2d 279, 282 (7th Cir. 1993) (citing Arnold v. Ben Kanowsky, Inc.,
361 U.S. 388, 392 (1960)); accord Schaefer–LaRose v. Eli Lilly & Co., 679 F.3d 560, 571 (7th
Cir. 2012); Johnson v. Hix Wrecker Serv., Inc., 651 F.3d 658, 660 (7th Cir. 2011). Accordingly,
“[t]he law places the burden on the employer to show that an exemption applies.” E.M.D. Sales,
Inc. v. Carrera, 604 U.S. 45, 48 (2025); accord Johnson, 651 F.3d at 661 (citing Klein, 990 F.2d
at 283). That proof must be by a preponderance of the evidence. E.M.D. Sales, 604 U.S.at 54.
And exemption is an all or nothing proposition: “a motor carrier employee cannot be
subject to the jurisdiction of both the Secretary of Labor and the Secretary of Transportation
simultaneously.” Johnson, 651 F.3d at 661. “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 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.” Collins v. Heritage Wine Cellars, Ltd., 589 F.3d 895, 901
(7th Cir. 2009).
And although Collins concerned pre-TCA law, its rationale is consistent with the TCA’s
plain language that a “covered employee” includes one who works only “in part” with small
vehicles, that is, a mixed fleet driver. Schilling v. Schmidt Baking Co., 876 F.3d 596, 601 (4th
Cir. 2017); McMaster v. E. Armored Servs., Inc., 780 F.3d 167, 169-70 (3d Cir. 2015);
Frapanpina v. Garda CL Great Lakes, Inc., No. 19-cv-493, 2021 WL 1088302, at *3 (N.D. Ill.
Mar. 22, 2021) (collecting like-minded district court cases). It would, indeed, be unwieldy to
have the Secretary of Transportation prescribe regulations for a driver part of the time and the
Secretary of Labor for other times, possibly retrospectively based on events happening late in a
workweek. One notable decision from the Northern District of Illinois agreed that dividing up
jurisdiction between the two agencies even on a week-by-week basis would be overly
burdensome. Jamarillo v. Garda, Inc., No. 12 C 662, 2012 WL 4955932, *4 (N.D. Ill. Oct. 17,
2012). However, it held—without addressing the “in whole or in part” language of the TCA—
that an employee who drove an MCA vehicle a reasonable period of time was subject to the
MCA Exemption. Id. *5. Because Jamarillo essentially ignored the plain text of the TCA, the
Court does not find it persuasive in that regard. See Frapanpina, 2021 WL 1088302, at *4
(disagreeing with Jamarillo because it failed to follow TCA’s plain text).
Nevertheless, courts have crafted a de minimis exception relating to drivers of mixed
fleets. Hinds v. FedEx Ground Package Sys., Inc., No. 18-CV-1431, 2020 WL 12048882, at *6
(N.D. Cal. June 1, 2020). Indeed, earlier in this case, the District Court for the Western District
of Pennsylvania held:
There seems to be general consensus [among district courts] that in order [for the
Small Vehicle Exception to apply], an employee must (1) perform some work that
affects the safety of operation of small vehicles, and (2) it must be part of the
employee’s duties to [do] so, where some work must at least rise above the level
of de minimis work. . . .
Claiborne v. FedEx Ground Package Sys., Inc., No. 2:18-cv-1698, 2022 WL 4536999, at *4
(W.D. Pa. Sept. 28, 2022) (internal quotations omitted; emphasis added). However, de minimis
is not clearly defined by statutes, rules, or caselaw, although some courts have considered 1% to
be the de minimis threshold. See, e.g., Oddo v. Bimbo Bakeries U.S.A., Inc., 391 F. Supp. 3d
466, 474 (E.D. Pa. 2019).
Some courts place the burden on the plaintiff to prove, as a matter of establishing the first
element of his cause of action, that the Small Vehicle Exception to the MCA Exemption applies.
See, e.g., Carley v. Crest Pumping Techs., LLC, 890 F.3d 576, 580 (5th Cir. 2018). Other courts
hold that the defendant has that burden when proving as an affirmative defense that the MCA
Exemption applies. See, e.g., Wilkinson v. High Plains Inc., 297 F. Supp. 3d 988, 994 (D.N.D.
2018) (TCA does “not alter the burden which remains on the employer”). The Seventh Circuit
Court of Appeals has not considered the issue. Nevertheless, in light of the remedial nature of
the FLSA and the Supreme Court’s reminder that exemptions must be narrowly construed
considering the terms and the spirit of the law, Arnold 361 U.S. at 392; E.M.D. Sales, 604 U.S. at
48, the Court believes the burden must lie with the defendant to show that the Small Vehicle
Exception does not apply.
3. Application
There is sufficient evidence to lead a reasonable jury to conclude Seals performed work
in excess of 40 hours in some weeks without getting paid overtime compensation. Seals’s
testimony supports this fact, and, contrary to FedEx’s belief, a plaintiff’s own statement can
overcome summary judgment even without corroborating evidence. See Payne v. Pauley, 337
F.3d 767, 771 (7th Cir. 2003). Cases that have made the statement that self-serving,
uncorroborated, and conclusory affidavits are not sufficient to withstand summary judgment
have found the particular statements in issue insufficient not because they were self-serving but
because they were not made on personal knowledge or were inadmissible for some other reason.
Id. at 772. In truth,
[p]rovided that the evidence meets the usual requirements for evidence presented
on summary judgment—including the requirements that it be based on personal
knowledge and that it set forth specific facts showing that there is a genuine issue
for trial—a self-serving affidavit is an acceptable method for a non-moving party
to present evidence of disputed material facts.
Id. at 773.
Seals certainly has first-hand knowledge that he worked more than 40 hours in some
weeks without getting paid overtime, and FedEx has not pointed to any evidence that would
contradict such a statement. In fact, the scanner data corroborates that Seals was logged in more
than 40 hours in at least 22 weeks, and, although logged in times and work times may not
perfectly correlate, a reasonable jury could conclude that the scanner data supports Seal’s
statement. Seals’s statement is therefore appropriate evidence for summary judgment.
It is true that Seals may have a hard time proving the specific dates and hours he worked
overtime because, as noted above the scanner data is not perfect. However, a reasonable jury
could make a “just and reasonable inference” from Seals’s testimony and the scanner data as to
an approximation of his damages. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687
(1946).
Further, FedEx has not established that Seals was exempt from the FLSA’s overtime pay
requirements under the MCA Exemption. As part of proving its entitlement to the exemption, it
must show that Seals was not a “covered employee” under the TCA and therefore fell outside the
Small Vehicle Exception. However, because the evidence shows Seals drove a mixed fleet,
doing work that “in whole or in part” affected the safe operation of small vehicles, a jury could
find he was a “covered employee” within the heartland of the Small Vehicle Exception. Further,
consistent with the policy articulated in Collins, Seals would not be subject to the jurisdiction of
either the Secretary of Transportation or the Secretary of Labor on a week-by-week basis
depending on whether, in retrospect, the vehicles he drove that week were light vehicles, MCA
vehicles, or of unknown GVWR. To do so would create an unwieldy recordkeeping burden for
FedEx and the ISPs, which have already proved incapable of creating accurate vehicle weight
records. Based on the facts a reasonable jury could find, Seals would be covered by § 7 of the
FLSA in all weeks he worked.2
Additionally, no reasonable jury could find that Seals’s work on light vehicles was de
minimis such that the court-created de minimis exception applies. The scanner data shows Seals
drove a documented light vehicle 8 of his 135 work days (5.9% of the days). This is not de
minimis under a reasonable understanding of the phrase.
Because there is evidence from which a reasonable jury could conclude that Seals worked
more than 40 hours in some weeks without getting paid overtime compensation and that he was
not exempt from the FLSA’s overtime pay requirements under the MCA Exemption, FedEx is
not entitled to summary judgment.3
2 The Court will not limit this conclusion based on the particular facts within the limitations
period. It is untenable that the agency having jurisdiction over a worker could fluctuate based on
the facts as they existed only during the limitations period and not the broader facts of the
employment as a whole.
3 In its argument, FedEx contends Seals is judicially estopped from asking the Court to assume
vehicles of unknown GVWR should be considered light vehicles. First, the Court need not make
any such assumption where the evidence, even considering only documented light vehicles,
could lead a reasonable jury to conclude that Seals is covered by the TCA’s Small Vehicle
Exception. Second, positions the collective took when it agreed to voluntarily dismiss the claims
of some members who were not similarly situated to Seals will not judicially estop Seals from
making his arguments here.
B. Statute of Limitations
FedEx argues that it cannot be liable for any overtime Seals might be owed for periods
earlier than two years before he joined the collective action, that is, before August 5, 2018.
Earlier periods are beyond that default limitations period, and FedEx argues there are insufficient
facts to support a three-year limitations period for a willful violation. It argues that the ISPs
issued Seals’s paychecks; the ISPs promised FedEx it would comply with the wage and hour
laws and annually certified it was complying; and Seals never complained to FedEx about not
getting paid overtime wages. It further argues that Seals is not entitled to equitable tolling
because he was not diligent in asserting his rights despite an earlier tolling order.
Seals argues it is premature for the Court to determine whether the two- or three-year
limitations period applies before the jury finds that there is a violation of the FLSA and that
FedEx is Seals’s joint employer with the ISPs. In this regard, Seals expects his evidence at trial
to show that FedEx masterminded the ISP model in a deliberate attempt to do an end-run around
the FLSA’s overtime requirements while still retaining the authority to exert broad control over
the driver-employees of the ISPs, including monitoring ISPs’ wage and hour compliance and
maintaining scanner data.
1. Length of Limitations Period
The statute of limitations for a non-willful FLSA violation is two years and for a willful
violation, three. 29 U.S.C. § 255(a). The cause of action of a collective action member not
named in the complaint is considered commenced when their written notice of consent is filed in
the Court. 29 U.S.C. § 256(b). It is clear that “[a] cause of action for overtime pay accrues when
the employee received less than required by FLSA, regardless of whether the employee has
completed a qualitative assessment that a viable claim might be pursued.” McColley v. Casey’s
Gen. Stores, Inc., 627 F. Supp. 3d 972, 981 (N.D. Ind. 2022). A violation is considered willful
where the defendant “either knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133
(1988) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-130 (1985)). It is the
plaintiff’s burden to show that a violation was willful. Bankston v. State of Ill., 60 F.3d 1249,
1253 (7th Cir. 1995). That question should be left to a jury where there is evidence of
willfulness, id., but if there is no such evidence, the Court may grant summary judgment on the
question.
Even though the ISPs paid Seals and promised FedEx it was doing so in compliance with
applicable laws, and even though Seals never complained to FedEx about his wages, the
evidence shows that FedEx had access to and regularly reviewed the scanner data. That data
shows that Seals was “on duty” more than 40 hours in some weeks and was driving light vehicles
at least some of the time. A reasonable jury could find from this evidence that FedEx was on
notice that Seals was working more than 40 hours without overtime pay in violation of the
FLSA. The jury could find that this amounted to at least reckless disregard for Seals’s rights
under the FLSA because FedEx failed to investigate further to ensure compliance with the
statute. Thus, the Court must leave the factual disputes over the question of willfulness to the
jury.4
4 Although in its reply filings FedEx asserts it is not moving for summary judgment on the issue
of whether it is a joint employer with the ISPs, see, e.g. FedEx’s Response to Plaintiff Willie
Seals’ Responsive Concise Statement of Facts ¶ 8 (Doc. 13), it asserts with regard to willfulness
that it is not a joint employer so it cannot be accountable for any failure of an ISP to comply with
the FLSA. Based on its disclaimer of the argument at the summary judgment stage, the Court
declines to decide whether FedEx is a joint employer and will leave that question for the jury.
2. Equitable Tolling
Equitable tolling is extended sparingly and only where claimants exercise diligence in
preserving their legal rights. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (citing
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)). A litigant seeking equitable
tolling bears the burden of establishing two elements: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely
filing.” Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255-56 (2016) (internal
quotations omitted). The extraordinary circumstance must be an external obstacle to timely
filing that was beyond the litigant’s control. Id. at 256-57. Further, the analysis of whether to
apply equitable tolling should focus on fairness to both parties. See Irwin, 498 U.S. 89.
The District Court for the Western District of Pennsylvania equitably tolled the statute of
limitations beginning November 27, 2018, for potential opt-in (of which Seals was one) during
the period for sending notice of the collective action. Claiborne v. FedEx Ground Package Sys.,
Inc., No. 18-cv-1698, 2019 WL 4750141, at *6 (W.D. Pa. Sept. 30, 2019). Accordingly, it gave
collective action notice to drivers who had been employed to pick up and deliver FedEx
packages beginning November 27, 2015, accounting for the possibility that the three-year
limitation period applied. Id.
FedEx argues that this order does not apply to Seals’s individual claim, which must
depend on his own diligence in pursuing his rights. That determination, it argues, requires an
individualized inquiry and cannot be made at the preliminary stage of a collective action. And
that inquiry as applied to Seals does not show diligence, FedEx claims. Further, in its reply
brief, it argues that the Western District of Pennsylvania court did not have jurisdiction over
Seals, who had not yet opted in to the case, when it entered its tolling order. Seals argues that
the Western District of Pennsylvania court’s tolling order applies as the “law of the case.”
As for FedEx’s jurisdiction argument, it raises that argument for the first time in its reply
brief. It has long been established that arguments in support of the motion that are raised for the
first time in a reply brief are waived. Wright v. United States, 139 F.3d 551, 553 (7th Cir. 1998).
This is because the opposing party does not have an opportunity to respond to the new arguments
in the reply brief. See Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 668 (7th Cir. 1998).
As for the merits of the equitable estoppel argument, while it is true that some courts treat
equitable tolling as an individual decision not appropriate at the certification stage, see, e.g.,
Joyce v. Colter Energy Servs. USA, Inc., No. 2:22CV1367, 2024 WL 2794278, at *5 (W.D. Pa.
May 31, 2024), the court in the Western District of Pennsylvania did not, and that is the law of
the case. The law of the case is a discretionary doctrine that creates a presumption against
reopening matters already decided in the same litigation and authorizes reconsideration only for
a compelling reason such as, for example, a substantial manifest error or a change in the law that
reveals the prior ruling was erroneous. Pittman ex. rel Hamilton v. Madison Cnty., 108 F.4th
563, 572 (7th Cir. 2024) (declining to apply doctrine), cert. denied, 145 S. Ct. 1154 (2025);
United States v. Harris, 531 F.3d 507, 513 (7th Cir. 2008); Minch v. City of Chi., 486 F.3d 294,
301 (7th Cir. 2007).
FedEx has offered no compelling reason to reconsider the Western District of
Pennsylvania court’s tolling order. To the extent the Western District of Pennsylvania court did
not have jurisdiction to equitably toll the statute of limitations for Seals, the Court finds there are
disputed issues of fact regarding whether Seals diligently asserted his rights and the impact of the
twisted procedural history of this case on that diligence. Those disputes could be resolved in a
way that would justify an identical tolling order now considering the equities and complicated
procedural history of this litigation. Such tolling would potentially bring all of Seals’s
employment picking up and delivering FedEx packages within the statute of limitations whether
it is two or three years.
C. Damage Calculation
As noted above, the FLSA requires overtime pay for any employee who works more than
40 hours in a workweek “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). The parties dispute how to calculate Seals’s “regular
rate” per hour, which, in turn, is the touchstone to determine the amount of overtime pay owed
for each week. See Urnikis-Negro v. Am. Fam. Prop. Servs., 616 F.3d 665, 673 (7th Cir. 2010).
Federal regulations provide, “The regular hourly rate of pay of an employee is
determined by dividing his total remuneration for employment (except statutory exclusions) in
any workweek by the total number of hours actually worked by him in that workweek for which
such compensation was paid.” 29 C.F.R. § 778.109 (emphasis added). Where an employee is
paid an hourly rate for the workweek, one and one-half times that rate is fairly simple to
calculate: hourly rate x 1.5 = overtime hourly rate. The employee will then be paid the regular
rate for the total hours worked plus one-half the regular rate for hours worked beyond 40 hours.
See 29 C.F.R. § 778.110.
However, where, as here, the worker is paid a daily rate, the calculation is a little harder:
If the employee is paid a flat sum for a day’s work . . . without regard to the number of
hours worked in the day or at the job . . ., his regular rate is determined by totaling all the
sums received at such day rates . . . in the workweek and dividing by the total hours
actually worked. He is then entitled to extra half-time pay at this rate for all hours
worked in excess of 40 in the workweek.
29 C.F.R. § 778.112 (emphasis added). It is clear that the relevant unit of time for which
overtime should be determined is the week. Urnikis-Negro, 616 F.3d at 673.
FedEx takes the position that, for each week Seals worked, the total amount of pay he
received that week—that is, the total of all the $125.00 daily wages—must be divided by the
total number of hours he actually worked that week to reach his “regular rate” for that week. He
would then be owed, in addition to $125.00 per day, one half times the “regular rate” for each
hour he worked over 40 hours that week.
Seals contends that the total amount of pay he received in a week should be divided by 40
hours to arrive at his “regular rate” because FedEx cannot show the flat $125.00 was intended to
cover more than 40 hours per week.5 It believes that, for the purposes of calculating the “regular
rate” of pay, a flat weekly rate is presumed to cover only the first 40 hours, and the defendant
bears the burden of showing that rate was intended to include overtime hours such that the total
should be divided by all hours worked in that week.
Seals relies on the federal rule, and caselaw implementing it, relating to workers who
receive a salary for a period of a week or longer. The regular wage of such workers is
determined by “dividing the salary by the number of hours which the salary is intended to
compensate.” 29 C.F.R. § 778.113(a); see Urnikis-Negro, 616 F.3d at 673; Reich v. Homier
Distrib. Co., No. 1:04-cv-415, 2005 WL 3299141, at *1 (N.D. Ind. July 12, 2005). This rule
does not apply to workers paid at a daily rate whose “regular rate” is governed by 29 C.F.R.
§ 778.112. See Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)
(piecework).
Seals argues that, although 29 C.F.R. § 778.112 does not use the word “intended,” intent
is relevant because the rule is limited to those paid daily wages “without regard to the number of
hours worked.” See Cunningham v. Faerber's Bee Window, Inc., No. 1:04-cv-500, 2005 WL
5 Clearly it was not; the $125.00 was only covered a day’s labor.
1123634, at *4 (S.D. Ind. Apr. 19, 2005) (some evidence that worker understood daily rate to
cover only eight hours so it was not “without regard to the number of hours worked”). He reads
this to mean that if the wage were paid with regard for the number of hours worked, that is, if it
were intended to cover only eight hours, the weekly wage rule should apply. 29 C.F.R.
§ 778.113(a).
The Court is hesitant to adopt this interpretation. The phrase “without regard to the
number of hours worked” is intended to distinguish workers paid by the day from those paid by
the hour, the week, or longer. The phrase does not qualify different types of day laborers, and it
does not then shunt some of them to 29 C.F.R. § 778.113(a), which by its terms clearly applies
only to workers who receive a weekly wage. The Court is not persuaded by Seals’s argument
that the trailing words of 29 C.F.R. § 778.109—in the workweek “for which such compensation
was paid”—require a different conclusion.
Further, even if this were the rule, there is no evidence in this case from which a
reasonable jury could find that the $125.00 wage Seals received per day was intended to cover
eight hours of work, no more, no less. In fact, the scanner data shows several dates on which
Seals was “on duty” (presumably the maximum hours worked for the day) less than eight hours,
yet he was still paid the regular day wages. This suggests his wage was “without regard to the
number of hours worked.”
Seals also argues that, because the scanner data does not show how many hours he
worked in any workweek, that shortfall should be remedied by dividing his total weekly income
by 40 hours. The remedy requested is not rationally related to the recordkeeping delinquency
and is in direct contravention of the Department of Labor’s FLSA regulations. The Court rejects
it.
The Court will grant summary judgment for FedEx on this issue. Damages must be
calculated in accordance with 29 C.F.R. § 778.112.6
D. Miscellaneous Matters
1. Sealing Exhibit H
Seals moves to maintain under seal Exhibit H to its response to the summary judgment
motion (Doc. 40). He has already filed the motion under seal (Doc. 41). FedEx does not oppose
the motion, although it believes the exhibit is irrelevant (Doc. 46). The Court will grant the
motion and will maintain Exhibit H (Doc. 41) under seal.
2. Motion for Oral Argument on Summary Judgment Motion
FedEx asks for oral argument on its summary judgment motion (Doc. 49). The Court
does not find oral argument necessary and has, in fact, decided the motion without it.
Accordingly, the Court will deny the motion.
3. Motion for Oral Argument on Motion to Strike Witnesses
FedEx asks for oral argument on Seals’s motion to strike witnesses Jack Van Steenburg
and Daniel F. Spulber (Doc. 43). The Court will grant the motion. It has already set oral
argument on this motion by separate order for June 29, 2026.
4. Trial Briefs
As the Trial Briefs (Docs. 72 & 77) were submitted before the May 19, 2026, hearing and
6 So, for example, if Seals worked five 10-hour days (50 hours total) in one week, his “regular
rate” would be $12.50 per hour ($625.00 in total wages ÷ 50 hours actually worked). He would
be entitled to $625.00 in regular wages plus $62.50 in additional overtime wages ($12.50 x 0.5 x
10 hours worked beyond 40 hours) for a total of $687.50. But if he worked four 12.5-hour days
(50 hours total) in one week, his “regular rate” would be $10.00 ($500.00 in total wages ÷ 50
hours actually worked). He would be entitled to $500.00 in regular wages plus $50.00 in
additional overtime wages ($10.00 x 0.5 x 10 hours worked beyond 40 hours) for a total of
$550.00.
before this summary judgment ruling, they are outdated. The Court will therefore strike them
and allow the submission of updated Trial Briefs before the Final Pretrial Conference, currently
scheduled for July 14, 2026. A brief shall not exceed 20 pages and shall focus on particularly
difficult questions the Court will face at trial. See Senior Judge J. Phil Gilbert Case Management
Procedures 5 (Jan. 2020), https://www.ilsd.uscourts.gov/content/senior-judge-j-phil-gilbert.
Relief sought from the Court before trial regarding trial matters shall be presented by
motion rather than contained in a Trial Brief. Motions in limine must be filed seven days before
the Final Pretrial Conference; responses shall be filed the day before the Final Pretrial
Conference. The parties must attempt to work out evidentiary dispute between themselves
before presenting them to the Court in a motion. The failure to do so will be grounds for denying
the relief sought in the motion.
V. Conclusion
For the foregoing reasons, the Court:
e GRANTS in part and DENIES in part FedEx’s summary judgment motion (Doc. 2);
o The motion is GRANTED to the extent FedEx seeks to establish the proper
method for calculating Seals’s damages, if any; and
o The motion is DENIED in all other respects;
e GRANTS Seals’s motion for leave to file supplemental authority (Doc. 78). The Court
has considered that authority as well as FedEx’s response (Doc. 81);
e GRANTS Seals’s motion to maintain Exhibit H under seal (Doc. 40);
e DENIES FedEx’s motion for oral argument on its summary judgment motion (Doc. 49);
e GRANTS FedEx’s motion for oral argument on Seals’s motion to strike witnesses (Doc.
43) and has scheduled the oral argument for June 29, 2026; and
e STRIKES the Trial Briefs (Docs 72 & 77) with leave to refile.
One final word is in order. At the May 19, 2026, telephone hearing, Seals indicated his
compensatory damages were in the neighborhood of $15,000 with liquidated damages therefore
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around $30,000. That puts the amount in issue at trial around $45,000 assuming Seals wins on
everything. The Court has no doubt that it will cost much more than that to try this case. The
Court further doubts the attorneys fees that it would award on a plaintiff's victory would make
this case worth a trial. The Court strongly encourages the parties to consider settling this case
before resources are unnecessarily expended.
IT IS SO ORDERED.
DATED: June 1, 2026
J
J. PHIL GILBERT
DISTRICT JUDGE
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