The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTIONS FOR SUMMARY JUDGMENT
This case is about whether employees at a chicken processing plant are entitled to compensation for time spent putting on and taking off ("donning and doffing") items of personal protective equipment and clothing ("PPE"). Plaintiffs Luz Lugo and members of the certified subclass ("Plaintiffs") allege that Defendant Farmer's Pride, Inc. ("Defendant" or "Farmer's Pride") violated the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201, et seq., as amended by the Portal-to-Portal Act of 1947, 29 U.S.C. § 254(a), by not compensating them for donning and doffing PPE at the beginning and end of their shifts and during their meal periods. Currently before the Court are Defendant's Motion for Summary Judgment and Plaintiffs' Motion for Partial Summary Judgment.
The motions raise five basic issues:
1. What PPE do Plaintiffs use when they work at Farmer's Pride, and why?
2. Should Farmer's Pride compensate Plaintiffs for time spent putting on PPE before their shifts and taking off PPE after their shifts?
3. Should Farmer's Pride compensate Plaintiffs for time spent putting on and taking off their PPE before and after their meal breaks?
4. Are Plaintiffs entitled to liquidated damages?
5. Is the statute of limitations two years or three years?
The Court has reviewed the parties' briefs and held oral argument on the motions. As to the first three issues, the Court finds there are disputes of material fact that prevent a decision as a matter of law. For the following reasons, Defendant's Motion for Summary Judgment will be granted in part and denied in part, and Plaintiffs' Motion for Summary Judgment will be denied.
Plaintiffs Luz Lugo and Yesenia Marco filed the initial Complaint on
February 23, 2007 (ECF No. 1), claiming Defendant's compensation
practices violated the FLSA and seeking to proceed as a collective
action under 29 U.S.C. § 216(b). The Court denied Defendant's Motion
to Dismiss the Complaint.*fn1 (ECF No. 54) Plaintiffs
filed an amended Complaint on January 24, 2008. (ECF No. 55) On March
7, 2008, the Court granted Plaintiffs' Motion for Conditional
Certification.*fn2 (ECF No. 62) More than 300
Plaintiffs opted in to the suit. (ECF Nos. 72--264; 271--397)
Following an evidentiary hearing on May 17-18, 2010, the Court granted
Defendant's Motion to Decertify on August 25, 2010.*fn3
(ECF No. 492) The Court later certified for trial a revised
and limited collective action consisting of the subclass of Plaintiffs
who worked in the Deboning Department on the Third Shift from the
period of February 23, 2004 to December 31, 2007, and for Plaintiffs' claims for off-the-clock work during meal
periods.*fn4 (ECF Nos. 504/505) Extensive discovery
took place and expert reports have been submitted with the motions for
Defendant filed its Motion for Summary Judgment (ECF No. 510/511) on March 31, 2011. Plaintiffs responded on April 25, 2011 (ECF No. 518), and Defendant replied on May 5, 2011 (ECF No. 519). Plaintiffs also filed their Motion for Partial Summary Judgment (ECF No. 512) on March 31, 2011. Defendant responded on April 25, 2011 (ECF No. 517), and Plaintiffs replied on May 5, 2011 (ECF No. 520). Plaintiffs filed a notice of supplemental authority on June 9, 2011 (ECF No. 526), to which Defendant responded on June 10, 2011 (ECF No. 527). The Court heard oral argument on the summary judgment motions on June 17, 2011.
Summary judgment is appropriate if the movant can show "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).*fn5
A dispute is "genuine" "if the evidence is such that a
reasonable jury could return
a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A factual dispute is "material" if it might
affect the outcome of the case under governing law. Id. Where the
nonmoving party bears the burden of proof on a particular issue at
trial, the moving party's initial burden can be met simply by showing
the district court "that there is an absence of evidence to support
the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). Summary judgment is appropriate if the nonmoving party
fails to rebut by making a factual showing "sufficient to establish
the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Id. at 322.
Under Rule 56, the Court must view the evidence presented in the light
most favorable to the nonmoving party. Anderson, 477 U.S. at
The Court begins its evaluation of the parties' cross motions for summary judgment by reviewing several key cases applying the FLSA and the Portal-to-Portal Act. The FLSA did not define the term "work." See 29 U.S.C. § 203 ("Definitions"). The question of how to define "work" arose in Tennessee Coal, Iron & R. Co. v. Muscoda Local, 321 U.S. 590 (1944), superseded by statute, 29 U.S.C. § 251 et seq., when iron ore miners sought overtime compensation for time spent traveling underground from the entrance of the mine to workstations in the mine. Id. at 592-93. The Supreme Court defined "work" as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Id. at 598. Tennessee Coal held that traveling from the portal of the mine to the workstation was compensable "work" under the FLSA. Id. at 603. Although this holding was overruled by the Portal-to-Portal Act, the Tennessee Coal definition of "work" remains operative.
A. Anderson v. Mt. Clemens Pottery Co.
InAnderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), superseded by statute, 29 U.S.C. § 251 et seq., employees sought to recover unpaid minimum wages and overtime compensation under the FLSA, for time spent walking to their workstations after punching their time cards in excess of time credited to the employees. Id. at 682-84. The district court entered a judgment against the employer, finding that walking was compensable. Id. at 686. The Sixth Circuit overturned the ruling and dismissed the case, holding that the district court erred in failing to accept a finding that the employees were not doing productive work until their scheduled shift time. Id. The Supreme Court later reversed and remanded for the district court to determine "the amount of walking time involved and the amount of preliminary activities performed, giving due consideration to the de minimis doctrine and calculating the resulting damages under the [FLSA]." Id. at 694. The Court affirmed the Tennessee Coal definition of work. Id. at 691-92.
Anderson is significant for the Supreme Court's introduction of the "de minimis" doctrine, that "insubstantial and insignificant periods of time spent in preliminary activities need not be included in the statutory workweek." Id. at 693. The "statutory workweek" included "all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace." Id. at 690-91. Under the de minimis doctrine, a "few seconds or minutes of work beyond the scheduled working hours" may be excluded from compensation. Id. at 692. The de minimis rule avoided "[s]plit-second absurdities," as the objective of the FLSA was to compensate employees when they are "required to give up a substantial measure of [their] time and effort." Id.
Shortly after the Anderson decision, Congress passed the Portal-to-Portal Act, which overruled Anderson to the extent the decision expanded employers' liability under the FLSA for time employees spent walking. See Univs. Research Ass'n, Inc. v. Coutu, 450 U.S. 754 (1981) (The Portal-to-Portal Act "was intended to curtail the numerous suits for unpaid compensation and liquidated damages under the FLSA that were filed after this Court's decision in Anderson v. Mount Clemens Pottery Co. . . ."). The Portal-to-Portal Act amended the FLSA to exempt the following activities from being compensable work:
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
29 U.S.C. § 254(a). The Portal-to-Portal Act also imposed a two-year statute of limitations for non-willful violations of the FLSA, and a three-year statute of limitations for willful violations.
The Supreme Court restricted the application of the Portal-to-Portal Act in Steiner v. Mitchell, 350 U.S. 247 (1956). In Steiner, battery plant employees who handled "dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employer to provide," sought compensation for donning and doffing protective gear and post- shift showering. Id. at 248. The Court considered whether those activities were compensable work or "preliminary" and "postliminary" activities under the Portal-to-Portal Act. Id. The Court concluded "that activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities" the employees performed. Id. at 256. The Court affirmed judgment for the battery plant employees because "it would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees." Id.
Steiner has been narrowly construed as a limited exception to the Portal-to-Portal Act. See, e.g., Gorman v. Consol. Edison Corp., 488 F.3d 586, 593 (2d Cir. 2007) (limiting applicability of Steiner to employees performing work in lethal atmosphere); Ballou v. Gen. Elec. Co., 393 F.2d 398, 400 (1st Cir. 1968) (explaining that although "shower and change time would not ordinarily be indispensable to a principal activity, it was indispensable in the peculiar circumstances of" Steiner).
Courts have applied Steiner to the poultry processing plant environment. In In re Tyson Foods, Inc., 694 F. Supp. 2d 1358 (M.D. Ga. 2010) (Land, J.), the district court rejected the employer's narrow interpretation of Steiner, holding that "donning and doffing of sanitary gear here is not 'changing clothes' 'under normal conditions'. . .[but rather] is required to enable the employer to produce an uncontaminated product." Id. at 1365. In concluding that the donning and doffing of sanitary gear was "markedly different from 'normal' clothes changing," Judge Land considered that the employer required donning and doffing to occur "at the plant and only at the plant," and that employees "are not permitted to wear the sanitary gear home or into the restroom or break room." Id. There was a genuine issue of material fact as to whether donning, doffing, and sanitizing activities at the poultry plant were "integral and indispensable," which prevented the district court from granting summary judgment to the employer based on the Portal-to-Portal Act. Id. at 1365-66 (citing Helmert v. Butterball, LLC, No. 4:08CV00342 JLH, 2009 WL 5066759, at *11-12 (E.D. Ark. Dec. 15, 2009) (Holmes, J.) (same); Gatewood v. Koch Foods of Miss., LLC, 569 F. Supp. 2d 687, 696-97 (S.D. Miss. 2008) (Starrett, J.) (same); Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300, 1316-17 (N.D. Ala. 2008) (Hopkins, J.) (same); Jordan v. IBP, Inc., 542 F. Supp. 2d 790, 809 (M.D. Tenn. 2008) (Trauger, J.) (holding that donning and doffing frocks in beef and pork processing plants was "integral and indispensable" to employees' principal activities and marked the beginning and end of the continuous workday); Garcia v. Tyson Foods, Inc., 474 F. Supp. 2d 1240, 1245-47 (D. Kan. 2007) (Lungstrum, J.), mot. amend denied, No. 06-2198-JWL, 2007 WL 1299199 (D. Kan. May 2, 2007), appeal dismissed, 534 F.3d 1320 (10th Cir. 2008) (summary judgment for the employer was not appropriate on donning and doffing claims)).
Other courts have ruled to the contrary that poultry plant employees' donning and doffing of protective clothing and gear is not compensable. See, e.g., Anderson v. Cagle's, Inc., 488 F.3d 945, 958 (11th Cir. 2007) (affirming the district court's grant of summary judgment for employer that donning and doffing was not compensable work); Isreal v. Raeford Farms of Louisiana, LLC, --- F.Supp.2d ----, No. 06--cv--1999, 2011 WL 1188698, at *9, 11 (W.D. La. Mar. 28, 2011) (Hornsby, M.J.) (granting defendant's motion for partial summary judgment because donning and doffing was not a principal activity); Alford v. Perdue Farms, Inc., No. 5:07-cv-87 (CAR), 2008 WL 879413, at *6 (M.D. Ga. Mar. 28, 2008) (Royal, J.) (finding no dispute of fact and holding as a matter of law that donning and doffing were non-compensable preliminary and postliminary activities, and alternatively were de minimis).
In IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), employees at a meat processing plant filed a class action "to recover compensation for preproduction and postproduction work, including the time spent donning and doffing protective gear and walking between the locker rooms and the production floor before and after their assigned shifts." Id. at 31. Following a bench trial, the district court "held that donning and doffing of protective gear that was unique to the jobs at issue were compensable under the FLSA because they were integral and indispensable to the work of the employees who wore such equipment." Id. (emphasis added). Additionally, the district court found that "for those employees required to don and doff unique protective gear, the walking time between the locker room and the production floor was also compensable because it occurs during the [continuous] workday." Id. The court denied employees' claims for compensation for "ordinary clothes changing and washing, or for the 'donning and doffing of hard hat[s], ear plugs, safety glasses, boots [or] hairnet[s],'" which were standard, non-unique items. Id. The Ninth Circuit affirmed the distinction between unique and non-unique gear on the alternative ground that donning and doffing non-unique items was de minimis as a matter of law. Id. at 32. The employer did not challenge the holding that, "in light of Steiner, the donning and doffing of unique protective gear are 'principal activities'" and thus compensable. Id. *fn6
At the Supreme Court, the only question for review in Alvarez was "whether the time employees spend walking between the changing area and the production area is compensable under the FLSA." Id. at 24. The Supreme Court reversed the Ninth Circuit's decision with regard to waiting time, explaining: "Because doffing gear that is 'integral and indispensable' to employees' work is a 'principal activity' under the statute, the continuous workday rule mandates that time spent waiting to doff is not affected by the Portal-to-Portal Act and is instead covered by the FLSA."*fn7 Id. at 40. Analyzing the claim under the FLSA, the ...