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Lugo v. Farmer's Pride Inc.

August 25, 2010

LUZ LUGO, YESENIA MARCO, ET AL.
v.
FARMER'S PRIDE INC.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: DEFENDANT'S MOTION TO DECERTIFY

I. INTRODUCTION

Before the Court is defendant Farmers Pride, Inc.'s Motion to Decertify the Collective Action Class. (Doc. 432.) Plaintiffs, current and former employees of defendant, have brought suit under the Fair Labor Standards Act (FLSA) on behalf of themselves and others "similarly situated," as provided for in 29 U.S.C. § 216(b). Plaintiffs allege that defendant has failed to fully compensate them for the time spent putting on and taking off ("donning and doffing") items of sanitary and protective clothing and equipment ("PPE") at the beginning and end of their shifts and their meal period, as well as for time spent on related activities such as retrieving and sanitizing the PPE and walking to and from their workstations.

Plaintiffs sought certification of a collective action with respect to these allegations, which the Court conditionally granted, allowing for a period of discovery and for notice to be sent to potential class members who may want to opt in to the collective action. Defendant now seeks decertification of the collective action, contending that plaintiffs have failed to demonstrate that they and the opt-in plaintiffs are "similarly situated" such that a collective action under the FLSA may be maintained.

Having received briefing and heard argument on defendant's Motion to Decertify, the Court deemed it appropriate to hold a two-day evidentiary hearing to further explore the parties' contentions and the disputed facts underlying them. Plaintiffs and defendant were each afforded one day to present witnesses, with equal time given to the opposing side for cross-examination; the parties also were permitted to submit exhibits and file post-hearing briefs. After reviewing this evidence and briefing, as well as the record developed by the parties over the course of this certification process, the Court, for the reasons set forth below, will grant defendant's Motion to Decertify.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Facts*fn1

1. Defendant's Production Operations

Plaintiffs were or are employed as hourly production workers at defendant's chicken-processing plant in Fredericksburg, Pennsylvania ("the plant"). Production operations at the plant are divided into multiple departments-including Live Receiving, Evisceration, Cut-Up, Packing, and Deboning-which, in turn, comprise various lines and positions, subdivided according to function. (Tobias 5/18 Tr. 201:5--11.) Workers in a given department would regularly rotate between different positions, workstations, and tasks. (Ythier Dep. 46, Feb. 5, 2008; Gundrum Dep. 55--56; Caba Dep. 73, June 8, 2009.) The Live Receiving and Evisceration departments perform what is referred to as the "first processing" stage of production, and the Cut-Up, Packing, and Deboning departments perform the "second processing" stage. (Tobias Decl. ¶ 5.) Production operations occur over the course of two shifts-the first shift and the third shift. For each of the two shifts, there is a supervisor overseeing each of the five production departments, as well as a "first processing manager" and a "second processing manager" overseeing the performance of the departments within those stages. (Tobias Decl. ¶ 5.) In addition to these production departments, the plant has a Sanitation department, which performs its work during the second shift, between the two production shifts. (Ythier 5/17 Tr. 82:6--10; Main Decl. ¶ 2.)

In order to perform the required work in the production departments, hourly production workers must wear various items of personal protective equipment and clothing ("PPE"). Workers who fail to wear the required PPE for their positions may be subject to disciplinary action. (See D. Ex. 2.) The items of PPE that a worker must wear vary by department and position, though the parties dispute the extent of these variations. Most hourly production workers are required to wear a smock, closed-toe shoes, a hairnet, and, if applicable, a beardnet when on the production floor. (Tobias Decl. ¶ 13; Garcia Dep. 133; Caba Dep. 137--38, June 8, 2009.) Some workers, however, are required to wear other items as well, such as safety glasses, hearing protection, and protective gloves and arm guards. (D. Ex. 2; Tobias Decl. ¶ 13.) Some hourly production positions also require the use of knives or scissors, along with additional PPE. (Molnar 5/18 Tr. 219:22--23:2; Camasta 5/18 Tr. 232:10--15, 232:21--233:4; Tobias Decl. ¶¶ 16--17; Garcia Dep. 84--85.) The type of knife, as well as the PPE required to be worn with the knife or scissors, vary by department. (Tobias Decl. ¶¶ 16--17; Tobias Dep. 44, 51, 75; Merrell Dep. 54--55; Eby Dep. 138--39.) Additionally, some workers opt to wear certain items of PPE that may be obtained from, but are not required by, defendant. (Tobias 5/18 Tr. 213:5--8.) For instance, some hourly production workers wear hearing protection not required for their position, and some choose to wear aprons, protective eyewear, plastic sleeves, cotton liners, and rubber gloves. (Molnar 5/18 Tr. 219:13--21; Camasta 5/18 Tr. 233:6--17; Tobias Decl. ¶ 15; Gundrum Dep. 192, 239--40; Camasta Dep. 247--49.) Some workers also choose to bring and wear extra clothing, such as sweaters and caps. (Marco 5/17 Tr. 11:9--10; Caba 5/18 Tr. 178:24--179:1, 186:3.) Defendant used to distribute items of PPE to hourly production workers primarily from a supply room (Tobias Decl. ¶ 18), but as discussed below, defendant altered its method of distributing PPE in December 2007. Defendant also provides lockers for workers to use at their option. (Ythier 5/17 Tr. 105:13--21; P. Ex. 4.)

When an hourly production worker begins his or her employment with defendant, he or she is required to attend two orientation sessions: one general session, which is directed to all new employees of defendant, and one department-specific session, which is conducted by the worker's supervisor and addresses details of the worker's particular position, including what PPE is required for that position. (Ythier 5/17 Tr. 89:12--23; Rhoads 5/18 Tr. 245:8--249:16.) At the general orientation session, workers are provided with defendant's Employee Handbook, which lays out defendant's general employment policies. (Ythier 5/17 Tr. 82:11--83:9, 89:20--23; Rhoads 5/18 Tr. 249:10--11.) The general orientation session covers what PPE is, explains that PPE is required, and provides examples of what items of PPE are required for each production department. The worker is also informed that "[y]ou[r] supervisor will instruct you on the PPE required for your specific job." (D. Ex. 2; Rhoads 5/18 Tr. 247:9--248:25.) The Employee Handbook also addresses defendant's general practices regarding PPE: it provides an overview of defendant's PPE requirements in a section entitled "Dress Policy"; and, in a section entitled "Donning and Doffing," it explains that defendant "has procedures that are followed for Shift Start, Lunchtime and Shift End" regarding the donning and doffing of such equipment, and that workers should "see bulletin boards for times." (P. Exs. 1--3.) The Handbook, including defendant's donning-and-doffing policy, is reviewed during the general orientation. (Ythier 5/17 Tr. 89:20--91:1; Rhoads 5/18 Tr. 250:11--24.)

2. Defendant's Compensation Systems

As noted above, at issue in this case are defendant's compensation practices for the time spent by hourly production workers at the plant performing activities related to donning and doffing. During the relevant time period, defendant employed two different systems for compensating employees: the first was in place between May 2001 and December 2007; the second, from December 2007 until present.

a. Pre-2007 System

Between May 2001 and December 2007, defendant's compensation system for the production departments*fn2 was based upon a schedule that, according to defendant, provided predetermined allowances for donning-and-doffing activities. The schedule listed the production departments operating in the third shift, and those operating in the first shift. For each listed department, the schedule specified eight times under the following headings: "Shift Punch In Time"; "Line Start"; "Line Stop For Lunch"; "Lunch Start"; "Lunch Stop"; "Line Start After Lunch"; "Line Stops End of Shift"; "Shift End Punch Out Time." (P. Ex. 4.) The schedule states that these times represent "the procedures that Farmers Pride will follow for Shift Start, Lunch Time and Shift End," and that they "will allow employees time for putting on their work equipment before entering departments." (P. Ex. 4.) Aside from the headings, the schedule does not expressly state what activities are to be performed at what times, nor does it specify what time periods are compensated. The times listed under the headings vary by shift and department, and the schedule also notes that "[t]hese times may vary depending on the employee[']s assigned position on line and our weekly production schedule." (P. Ex. 4.) As indicated in the Employee Handbook, this schedule was posted on bulletin boards in the plant. (Good 5/18 Tr. 108:6--22; Molnar 5/18 Tr. 215:12--14; Camasta 5/18 Tr. 223:25--224:3; Marco 5/17 Tr. 32:13--18; Caba Tr. 175:20--23; P. Exs. 1--3.)

The first version of this schedule was implemented in May 2001, and was derived from an internal time study regarding donning and doffing performed by management personnel for defendant; defendant undertook that time study in response to an investigation by the Department of Labor indicating that defendant was not adequately compensating for donning and doffing activities at the plant. (See Schmalhofer 5/18 Tr. 8:13--29:20.) Between May 2001 and December 2007, this schedule was repeatedly revised and republished,*fn3 adjusting the various times listed to account for changes in the production process and renovations to the plant. (Ythier 5/18 Tr. 92:18--93:5, 5/18 Tr. 77:12--78:3; Tobias 5/18 Tr. 204:4--14; Ythier Dep. 150--52, Aug. 18, 2009; Tobias Dep. 102--04.)

According to defendant, the schedule operated as follows: The production lines would run between the "Line Start" and "Line Stop For Lunch" times, and between the "Line Start After Lunch" and "Line Stops End of Shift" times. Between "Lunch Start" and "Lunch Stop" was the workers' meal period; this was thirty minutes for all production departments and shifts, and was unpaid. All donning-and-doffing activities were to occur during the time provided between "Shift Punch In Time" and "Line Start," "Line Stop For Lunch" and "Lunch Start," "Lunch Stop" and "Line Start After Lunch," and "Line Stops End of Shift"and "Shift End Punch Out Time." (See Ythier Decl. ¶ 5, Oct. 13, 2009.) Under this understanding of the schedule, the cumulative amount of time provided for donning and doffing over a given day varied by shift and department, and also changed over time as the schedule was revised. (See P. Ex. 4.) While this schedule provided the general structure for the plant's operations, there were also deviations from it: for instance, each production department had workers paid to come in early to set up and stay late to clean up, and workers would occasionally have to work longer than scheduled or on additional days in order to meet production demands. (Camasta 5/18 Tr. 227:20--228:4; Tobias Decl. ¶¶ 7--8; Tobias Dep. 145, 198--99; Gundrum Dep. 273--75; Merrell Dep. 257.) Additionally, defendant notes, supervisors would sometimes depart from the times that the production line was scheduled to run, providing more time for donning and doffing. (See Molnar 5/18 Tr. 215:24--216:2, 216:16--21.) As discussed at length below, plaintiffs dispute that the schedule was implemented in this manner.

Between May 2001 and December 2007, this schedule, in its various revised versions, provided the primary basis for an hourly production worker's compensation. Hourly production workers were required to punch in and out at time clocks before and after their shifts, but these punch times were used primarily to track attendance and to account for unplanned deviations from the schedule. At some point before the worker's shift, he or she would punch in;*fn4 the employee's pay for that day, however, generally would commence at a predetermined time, which, according to defendant, matched with the "Shift Punch In Time" indicated on the schedule. (Seabold 5/17 Tr. 143:4--7, 5/18 Tr. 104:8--11; Ythier Decl. ¶ 5, Oct. 13, 2009.) Similarly, at some point before leaving the plant at the end of the shift, an hourly production worker was required to punch out; the worker, however, generally would be compensated according to the scheduled "Shift End Punch Out Time."*fn5 (Ythier Decl. ¶ 5, Oct. 13, 2009.) Compensation for workers who had to come in early or stay late for work would be adjusted to account for this extra time (Seabold 5/18 Tr. 82:8--25), and workers who arrived late or left early would be paid according to their punch-in or punch-out time, rounded to the nearest fifteen-minute increment (Seabold 5/18 Tr. 83:4--8, 95:10--24). Supervisors were responsible for reviewing workers' punch reports each day and editing them to reflect the appropriate compensation period for each worker. (Seabold 5/17 Tr. 159:9--160:5; Camasta 5/18 Tr. 228:12--18; Molnar 5/18 Tr. 217:14--218:24.) For example, if a worker punched out at some point after the scheduled "Shift End Punch Out Time," the supervisor would check to ensure this was because the worker stayed late to work: if so, the worker would be paid according to his actual punch time, rounded to the nearest fifteen-minute increment; if not, the supervisor would edit the punch report to match the scheduled "Shift End Punch Out Time." (Camasta 5/18 Tr. 226:15--227:19, 228:12--230:22, 243:10--16.) Similarly, if a worker began work before his or her scheduled start time, the supervisor would edit the worker's report to reflect the extra work time. (Seabold 5/18 Tr. 91:19--23.) Workers were not required to punch in or out for the thirty-minute unpaid meal period. (Ythier 5/17 Tr. 119:25--120:2; Seabold 5/17 Tr. 154:2--21, 155:14--156:5.)

b. Post-2007 System

In December 2007, defendant changed its compensation system for hourly production workers. Under this new compensation system, workers were paid according to the times they punched in at the beginning of the day and punched out at the end of the day. (Good 5/18 Tr. 120:6--10; Tobias Decl. ¶ 9.) Defendant did not alter its compensation system for the meal period, however, leaving the pre-2007 schedule posted and continuing to base its pay according to the predetermined allowances for meal-period donning and doffing set forth therein. (Good 5/18 Tr. 121:23--122:9; Tobias Decl. ¶ 9.)

At the same time as this new compensation system went into effect, defendant also changed the location of time clocks where workers would punch in and out, moving them to the entrance of each production department. (Good 5/18 Tr. 119:11--120:5; Tobias Decl. ¶ 9; Polanco Dep. 157--58; Gomez Dep. 181--82.) Defendant also changed the manner in which it would distribute the required, and some optional, items of PPE to hourly production workers: rather than obtaining these items from the supply room, workers now would pick them up from racks and tables located inside or immediately outside of the entrances to each production department. (Good 5/18 Tr. 120:17--121:10; Tobias Decl. ¶ 10; Caba Dep. 134; C. Torres Dep. 131--32.) Defendant continued to use the supply room to distribute other items, such as cotton gloves. (Polanco Dep. 176--77.)

B. The Instant Litigation

1. Plaintiffs' Complaint

On February 23, 2007, plaintiffs Luz Lugo and Yesenia Marco filed a Representative Action Complaint, claiming defendant's compensation practices violate the FLSA and seeking to proceed collectively under 29 U.S.C. § 216(b). (Doc. 1.) On July 20, 2007, defendant filed a Motion to Dismiss (Doc. 34), which the Court denied (Doc. 54). On January 24, 2007, plaintiffs filed an amended Representative Action Complaint (Doc. 55), to which defendant filed an Answer on February 11, 2008 (Doc. 60).

2. Conditional Certification and Opt-Ins

On December 20, 2007, plaintiffs filed a Motion (1) for Class Certification (or Alternatively for Conditional Certification) of the Plaintiff Class; (2) to Serve Notice of Suit Upon Potential Plaintiff Class Members; and (3) to Compel Defendant to Provide the Names and Last Known Addresses of Potential Class Members. (Doc. 50). On January 23, 2008, the Court held an unrecorded telephone conference call with the parties to discuss discovery. After receiving briefing from the parties regarding what discovery, if any, would be needed to adjudicate Plaintiffs' Motion for conditional certification (Docs. 57, 59), on March 7, 2008, the Court granted conditional certification under § 216(b) (Doc. 62). The conditionally certified optin class was defined as follows:

All current and former employees of Farmer's Pride, Inc., who worked as hourly production and support workers at Farmer's Pride, Inc.'s Fredericksburg, Pennsylvania poultry processing facility at any time between February 23, 2004 and the present, who have not had their Fair Labor Standards Act ("FLSA") claim previously adjudicated by a court of law. (Docs. 64, 68.) The Court then authorized notice of the collective-action lawsuit and opt-in consent forms to be sent to potential class members. (Doc. 68). Over 300 opt-in consent forms were returned (Docs. 72--264; 271--397); subsequently, four opt-in plaintiffs voluntarily withdrew from the suit. (Docs. 421, 422.)*fn6

3. Motion to Decertify

On October 15, 2009, defendant filed the present Motion to Decertify the Collective Action Class (Docs. 432--33), followed by a Memorandum of Supplemental Authority (Doc. 436). On November 25, 2009, plaintiffs filed a Memorandum in Opposition (Doc. 448), to which defendant filed a Reply on December 29, 2009 (Doc. 453). With the Court's permission, on January 21, 2010 plaintiffs filed a Surreply (Doc. 455), a Motion for the Application of Anderson v. Mt. Clemens Pottery Burden-Shifting at Trial (Doc. 454), and a Proposed Trial Plan (Doc. 456). Defendant filed a Combined Response to these latter two motions on February 1, 2010. (Doc. 458.) On February 4, 2010, the Court held oral argument regarding these motions. (Doc. 461.) At the Court's request, the parties submitted supplemental briefing to address various questions raised during that argument. (Docs. 463, 464.)

As noted, following oral argument, the Court determined an evidentiary hearing would be appropriate and useful in elucidating whether collective adjudication of plaintiffs' claims was warranted. (Doc. 465.) This evidentiary hearing was held on May 17--18, 2010. The parties submitted additional briefing after the hearing. (Docs. 482--86, 489--90.)

4. Modifications to the Scope of the Collective-Action Class

Over the course of the briefing on defendant's Motion to Decertify, plaintiffs have narrowed the scope of workers and claims for which they seek collective-action treatment. Initially, plaintiffs sought to certification as to defendant's compensation practices both before December 2007, when compensation was based on the predetermined allowances in the schedule, and after December 2007, when compensation was changed to a punch-to-punch system for the start and end of the shift. Plaintiffs now have made clear, however, that they only seek to collectively challenge defendant's compensation practices between February 23, 2004 and December 2007, as well as defendant's continued use of predetermined allowances for the meal period in the post-2007 system. (Pls.' Post-Hearing Br. 1 n.2, Doc. 483.) Plaintiffs no longer challenge defendant's post-2007 punch-to-punch system. Plaintiffs have also indicated that any plaintiffs who worked solely in the Sanitation Department of the plant should not be included in the collective action. (Pls.' Mem. in Opposition 2 n.5, Doc. 448.) Accordingly, the Court will analyze the question of certification with these restrictions on the collective action in mind.

III. STANDARD GOVERNING CERTIFICATION OF FLSA COLLECTIVE ACTIONS

A collective action under the FLSA may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a ...


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