Melgar et al v. OK Foods et al
Filing
98
MEMORANDUM OPINION AND ORDER; Defendant's 75 Motion for Partial Summary Judgment is DENIED without prejudice; Further Granting 73 Plaintiff's Motion to Certify Class. Signed by Honorable Robert T. Dawson on March 31, 2015. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ANA MELGAR, PHAYTHOUNE
PHENGSOUVANAVONG, and
RUBEN IRABURO, individually and
on behalf of all other similarly situated
v.
PLAINTIFFS
CASE NO. 2:13-CV-2169-RTD
O.K. FOODS, INC. and
O.K. INDUSTRIES, INC.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Before
the
Court
Phengsouvanavong,
are
and
Plaintiffs
Ruben
Ana
Melgar,
Iraburo’s
Phaythoune
(collectively
“Plaintiffs”) Motion for Conditional Certification
and Court-
Authorized
Notice
(doc.
(doc.
Defendants
O.K.
Foods,
73)
and
Inc.
supporting
and
O.K.
brief
Industries,
74),
Inc.’s
(collectively “Defendants”) response (doc. 78) and Plaintiffs’
reply (doc. 83).
Also before the Court are Defendants’ Motion for Partial
Summary Judgment on Plaintiffs’ Meal Break Claims (doc. 75) and
supporting documents (docs. 76-77),
Plaintiffs’ response (doc.
79) and supporting document (doc. 80),
Defendants’ reply (doc.
85), Plaintiffs’ sur-reply (doc. 89) and Defendants’ response
(doc. 90).
Page 1 of 9
For the reasons set forth below, Plaintiffs’ Motion for
Conditional Certification and Court-Authorized Notice (doc. 73)
is GRANTED, and Defendants’ Motion for Partial Summary Judgment
on Plaintiffs’ Meal Break Claims (doc. 75) is DENIED.
I.
Background
On
May
30,
2013,
Plaintiffs
filed
their
Class
Action
Complaint in the Circuit Court of Sebastian County, Fort Smith
District.
The
Complaint
alleged
Defendants
failed
to
pay
Plaintiffs for time spent donning and doffing protective gear,
traveling to and from workstations, and time spent waiting for
the production line to start.1
Plaintiffs alleged three causes
of
the
action:
(“AMWA”),
(1)
Ark.
violations
Code
Ann.
of
§§
Arkansas
11-4-201,
et
Minimum
seq.;
Wage
(2)
Act
unjust
enrichment; and (3) breach of implied contract.
On June 28, 2013, Defendants removed the matter pursuant to
the Class Action Fairness Act of 2005 (“CAFA”).
(Docs. 1 & 4).
On March 27, 2014, the Court denied Defendants’ motion seeking
1
Plaintiffs’ Complaint describes the hourly production employees’ routine as
follows: “[e]ach day, OK’s employees arrive at work and access the facility
by swiping an employee identification card.
Employees then travel to a
supply room where they are issued other protective equipment, such as
hairnet, gloves, apron, and smock. Some employees also must spend around ten
minutes dipping their hands in a hot wax substance and wrapping their hands.
After donning this protective equipment, the employees travel to their work
station and wait for the production line to start. Once the line starts, the
employees begin receiving pay.
At the end of the day, the employees stop
getting paid when the production line stops, even though they have to doff
their protective gear before going home. Employees are also forced to take
two unpaid breaks every day, but they spend the vast majority of that break
time doffing their used protective equipment, waiting to receive a new set of
equipment, and donning the new equipment before returning to the line.”
(Doc. 4 at 1-2).
Page 2 of 9
to dismiss the breach of implied contract claim and also denied
Plaintiffs’ motion to remand the case to state court.
(Doc.
33).
On
April
24,
2014,
with
permission
from
the
Court,
Plaintiffs filed their First Amended Class-and-Collective Action
Complaint (doc. 53). In the amended complaint, Plaintiffs added
a collective action claim pursuant to the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §§ 201, et seq.
Plaintiffs now seek
conditional certification of a collective action under the FLSA,
and Defendants request summary judgment on Plaintiffs’ AMWA and
FLSA claims to the extent they seek recovery for donning-and
doffing–related time during Plaintiffs’ unpaid meal periods.
II.
Plaintiffs’ Motion for Conditional Class Certification and
Court-Authorized Notice
Plaintiffs seek conditional certification of a collective
action with the following definition:
All current and former hourly production
employees
of
OK
Foods,
Inc.
and
OK
Industries, Inc. who worked at any time (3
years from date of mailing) at the Fort
Smith, Heavener, and Muldrow facilities and
who were paid on a “line time” basis, and
continuing thereafter through the date on
which final judgment is entered in this
action pursuant to 29 U.S.C. § 216(b).
Section 216(b) of the FLSA provides that any one or more
employees
may
maintain
an
action
to
recover
the
liability
prescribed in the section against any employer on “behalf of
Page 3 of 9
himself or themselves and other employees similarly situated.”
29 U.S.C. § 216(b).
The district courts have discretion, in
appropriate cases, to facilitate notice to potential members of
the
class
brought.
(1989).
on
The
prevailing
what
certification
54
behalf
the
collective
action
has
been
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169
determining
Co.,
whose
F.3d
approach
“similarly
process
1207,
situated”
described
1212
among
(5th
in
federal
means
Mooney
Cir.
is
v.
1995).
courts
the
two-stage
Aramco
The
for
Services
Court
must
determine whether the named Plaintiffs, through their pleadings
and
affidavits,
have
demonstrated
that
they
are
“similarly
situated” to the potential collective action members.
U.S.C. § 216(b).
See 29
Plaintiffs must show that they and potential
class members were victims of a common decision, policy, or plan
of the employer that affected all class members in a similar
fashion.
1095,
Thiessen v. Gen.
1106-08
(10th
Cir.
Electric Capital Corp., 267 F.3d
2001).
Further,
the
“similarly
situated” determination requires only a modest factual showing;
it
does
not
require
the
plaintiff
and
the
potential
members to show that they are identically situated.
class
Kautsch v.
Premier Commc’ns, 504 F. Supp. 2d 685, 689-90 (W.D. Mo. 2007).
The Court is only concerned with the first or notice stage
of
the
certification
litigation,
not
the
process
later
at
opt-in
this
merits
Page 4 of 9
point
stage.
during
The
the
more
stringent factual inquiry as to whether Plaintiffs are similarly
situated is made only after a more substantial record has been
amassed.
Iowa
Robinson v. Tyson Foods, Inc., 254 F.R.D. 97, 99 (S.D.
2008)(citation
omitted).
The
second
stage
comes
after
discovery is largely completed and is usually prompted by the
defendant’s motion
to decertify the class.
Frank v. Gold’n
Plump Poultry, Inc., 2005 WL 2240336, at *3 (D. Minn. Sept. 14,
2005).
Plaintiffs
contend
all
of
OK
Foods’
hourly
production
employees who were paid on a “line time” compensation basis are
similarly situated and should be invited to join this action.
According
to
Plaintiffs,
all
hourly
production
employees
are
paid only for time spent on the production line and are required
to don and doff certain equipment, including during their meal
breaks.
Defendants contend certification of a collective action is
inappropriate because OK Foods pays putative class members for
eight (8) minutes per shift to compensate them for time spent
donning
and
doffing
protective
items.
Therefore,
the
Court
would have to make individualized inquiries into the amount of
time each employee spends donning and doffing above the eight
(8) minutes.
Further, Defendants contend Plaintiffs have not
demonstrated that they are similarly situated to the putative
class members.
Page 5 of 9
According to Defendants there are “significant” differences
in the types of sanitary and protective items employees are
required to use, how often they are required to don and doff
their respective equipment throughout a shift, and how much time
it
takes
them
to
don
and
doff.
Defendants
also
contend
Plaintiffs cannot show a common decision, policy, or plan of
Defendants that affected all putative class members in a similar
fashion.
While Defendants have pointed to some factual differences
in the protective gear worn by employees and the time needed to
don and doff such gear, the potential class members need only be
similarly,
not
identically,
situated.
Kautsch
at
689-90.
Simply identifying differences between the parties is not enough
to defeat a motion for conditional certification at this notice
stage.
Ford v. Townsends of Arkansas, Inc., 2010 WL 1433455
(E.D. Ark. Apr. 9, 2010) citing Helmert v. Butterball, 2009 WL
5066759, at *4 (E.D. Ark. Dec. 15, 2009).
The Court finds Plaintiffs have met their burden of showing
they
are
similarly
situated
to
the
putative
class
members.
Plaintiffs have shown that they all work in the same or similar
plants and are subjected to common policies regarding donning
and doffing protective gear, hygiene, and sanitation.
they
are
employer.
seeking
redress
for
similar
conduct
by
Further,
the
same
Accordingly, Plaintiffs’ Motion (doc. 73) is GRANTED.
Page 6 of 9
The Court authorizes the sending of notice by mail to all
putative class members and the translation of the notice
and consents-to-join to Spanish, Laotian, and Vietnamese.
Defendants are directed to distribute a copy of the notice
with employee paychecks and to post a copy of the notice at
their facilities in Fort Smith, Heavener, and Muldrow.
Court
hereby
directs
Defendants
to
provide
The
Plaintiffs’
counsel with a complete, electronic list of putative class
members, together with their current or last known address,
phone number, and email address, within ten (10) days of
this Order.
III. Motion for Partial Summary Judgment
Defendants move for summary judgment on Plaintiffs’ claims
for allegedly unpaid time spent donning and doffing protective
gear and related time during their unpaid meal or break periods
under
both
the
AMWA
and
FLSA.
Defendants
contend
they
are
entitled to judgment on these claims as Plaintiffs, rather than
Defendants, are the predominant beneficiaries of the unpaid meal
and break periods.
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.”
Fed. R.
Civ.
initial
P.
56(a).
The
moving
party
bears
the
responsibility of informing the district court of the basis for
Page 7 of 9
its
motion
and
identifying
those
materials,
if
any,
that
demonstrate an absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
has
been
adequate
time
for
discovery,
the
Assuming there
court
must
enter
summary judgment if the nonmovant then “fails to make a 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.
After reviewing the pleadings and the evidence on file in
the light most favorable to Plaintiffs, as required, the Court
finds
that
there
remain
genuine
issues
of
disputed
material
facts in connection with Plaintiffs’ meal break claims which
preclude summary judgment.
At this premature stage, the Court
cannot say as a matter of law that Plaintiffs’ meal break claims
are not compensable under the predominant benefit test or to
what extent they may be compensable.
However, the Court notes
that whether Plaintiffs’ meal breaks are bona fide meal breaks
and therefore, non-compensable, will be a close issue for the
jury.
Accordingly,
Defendants’
Motion
for
Partial
Summary
Judgment (doc. 75) is DENIED without prejudice to Defendants’
right to renew the motion after the close of discovery.
Page 8 of 9
IV.
Conclusion
For
the
Conditional
reasons
Class
set
out
above,
Certification
and
Plaintiffs’
Motion
Court-Authorized
for
Notice
(doc. 73) is GRANTED, and Defendants’ Motion for Partial Summary
Judgment (doc. 75) is DENIED.
IT IS SO ORDERED this 31st day of March, 2015.
/s/ Robert T. Dawson________
Honorable Robert T. Dawson
United States District Judge
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