Marshall et al v. Amsted Industries Inc et al
Filing
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ORDER denying 212 Motion for Summary Judgment: For the reasons articulated in the attached Order, the Court DENIES Amsted's motion for summary judgment (Doc. 212). Signed by Judge Michael J. Reagan on 10/31/12. (soh )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHESTER MARSHALL and
RICHARD WHITBY, individually
and on behalf of a class of
others similarly situated,
Plaintiffs,
vs.
AMSTED RAIL COMPANY, INC.,
Defendant.
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Case No. 10-cv-0011-MJR-SCW
MEMORANDUM AND ORDER
REAGAN, District Judge:
A.
Introduction
In this lawsuit under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, et seq.,
conditionally certified as a collective action, 478 hourly-paid employees at a local
manufacturing plant seek to recover unpaid wages and overtime compensation from
their employer, Amsted Rail Company, Inc.
The amended complaint alleges that
Amsted owes Plaintiffs pay for time spent on certain pre-shift and post-shift activities,
such as donning and doffing protective equipment, obtaining and storing tools, and
preparing and cleaning their work areas.
A September 2011 Order ruled on Amsted’s motion for summary judgment
directed at the claims for donning and doffing personal protective equipment (PPE).
The undersigned Judge granted that motion in part, concluding that Plaintiffs’ claims
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for compensation based on time donning and doffing PPE were barred by § 203(o) of
the FLSA. 1
Following the Seventh Circuit Court of Appeals decision in an FLSA donningand-doffing case in May 2012, the undersigned Judge granted summary judgment for
Amsted on a second basis – finding that because the time spent donning and doffing
PPE fell under § 203(o), it cannot – as a matter of law – constitute a “principal activity”
which starts or ends the compensable workday under the FLSA.
See Doc. 204 and
Sandifer v. United States Steel Corp., 678 F.3d 590 (7th Cir. 2012).
Now before the Court is Amsted’s July 16, 2012 motion for summary judgment,
which has been extensively briefed by counsel and ripened with the filing of a reply on
September 6, 2012 (see Docs. 212, 213, 218, 224). For the reasons stated below, the Court
DENIES Amsted’s motion for summary judgment.
B.
Applicable Legal Standards
Federal Rule of Civil Procedure 56 governs motions for summary judgment.
Summary judgment should be granted if the record “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).
Section 203(o) provides that in determining the hours
an employee worked, “there shall be excluded any time
spent in changing clothes … at the beginning or end of each
workday” which was excluded from measured working
time by the express terms of (or custom and practice under)
a bona fide collective bargaining agreement.
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In assessing a summary judgment motion, the district court must construe all
facts in the light most favorable to, and draw all legitimate inferences in favor of, the
nonmovant.
Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Delapaz v.
Richardson, 634 F.3d 895, 899 (7th Cir. 2011); Spivey v. Adaptive Marketing, LLC, 622
F.3d 816, 822 (7th Cir. 2010); Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010).
But once the movant challenges the factual support and legal soundness of the
plaintiff’s claim, the plaintiff acquires the burden of demonstrating that a genuine fact
issue remains for trial. Marcatante, 657 F.3d at 440, citing Boumehdi v. Plastag
Holdings, LLC, 489 F.3d 781, 787 (7th Cir. 2007). See also Reget, 595 F.3d at 695.
A genuine issue of material fact remains “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Serednyj v. Beverly Healthcare,
LLC, 656 F.3d 540, 547, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In other words, to survive summary judgment, the plaintiff must produce admissible
evidence on which a jury could find in his favor. Maclin v. SBC Ameritech, 520 F.3d
781, 786 (7th Cir. 2008).
C.
Analysis
The FLSA requires employers to pay overtime to employees who work over 40
hours in a work week. 29 U.S.C. 207(a). The employee bears the burden to prove that
he performed overtime work for which he was not compensated. Kellar v. Summit
Seating, Inc., 664 F.3d 169, 173 (7th Cir. 2011). 2 Not all work-related activities count as
The employer has the burden to establish any
exemption applicable under the FLSA.
Kennedy v.
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“work” that must be compensated under the FLSA. Musch v. Domtar Industries, Inc.,
587 F.3d 857, 859 (7th Cir. 2009).
For example, in 1947, Congress amended the FLSA by passing the Portal-toPortal Act, 29 U.S.C. 251, et seq., which, inter alia, excluded from compensable time
activities that are preliminary or postliminary to an employee’s “principal activity.” As
a general rule, employers do not have to pay employees for time spent performing
preliminary or postliminary tasks. See Musch, 587 F.3d at 859; 29 U.S.C. 254(a). Case
law interpreting (and regulations promulgated under) the Portal-to-Portal Act have
clarified that, under normal conditions, activities like showering or changing clothes are
not compensable, but they can be compensable if they are integral and indispensable to
the principal activity for which the employee is covered. See, e.g., Steiner v. Mitchell,
350 U.S. 247, 256 (1956); 29 C.F.R. 790.7(g), 790.8(c).
Turning to the case sub judice, Amsted employees are not paid on the basis of
their clock-in and clock-out times.
They are paid based on their scheduled shifts.
Amsted permits employees to clock in up to 29 minutes before their shift and to clock
out up to 29 minutes after their shift.
Workers can use six different time clocks
throughout the facility and are not specifically instructed as to when and where to clock
in or out. However, they must be at their department, ready for work, when their shift
begins. Employee practices differ widely as to how and when they clock in and clock
Commonwealth Edison Co., 410 F.3d 365, 370 (7th Cir. 2005);
Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974).
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out at Amsted, as well as what they do between clocking in and starting work (and,
conversely, what they do between finishing their shift and clocking out).
The time clock data, which Amsted maintains in a “clock ring report,” is used
primarily to track attendance. Plaintiffs contend that by requiring employees to perform
certain tasks between the time they clock in and the time they start their shift (plus
between the time they finish their shift and the time they clock out), Amsted has
“received substantial unpaid labor from their hourly-paid employees” (Amended
Complaint, Doc. 80, pp. 1-2). The gist of Amsted’s summary judgment motion is that
Sandifer rendered obsolete Plaintiffs’ entire theory of liability, precluding Plaintiffs
from relying on any evidence of when they clocked in and out to show the fact (or
amount) of time worked off-the-clock.
Plaintiffs have maintained that the time clock punches reasonably reflect the
actual start and end times of their workday. Amsted concedes that before Sandifer,
“Plaintiffs’ time clock claim made sense – at least in theory” (Doc. 213, p. 1). All
employees donned and doffed some form of protective gear, so if donning and doffing
were principal activities that could start and end the workday under the FLSA, “then
some Plaintiffs’ clock rings may have correlated with the start and end times of the
workday,” at least as to those Plaintiffs who clocked in right after donning and clocked
out right before doffing (id.).
Sandifer held that if § 203(o) applies, then donning and doffing as a matter of law
cannot start or stop the continuous workday. Here the Court has found that § 203(o)
applies.
Thus, argues Amsted, Plaintiffs cannot use the time clock punches and,
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instead, must identify some preliminary and postliminary task done by each Plaintiff
which starts and ends the compensable workday under the FLSA -- a task which occurs
at or about the time each employee clocked in or clocked out. Without this collective
evidence to prove “the confines of the workday,” says Amsted, Plaintiffs cannot
establish liability or damages in this case. The Court is not persuaded that summary
judgment is merited on this basis.
The precise issue certified for interlocutory appeal in Sandifer was: “Under the
FLSA, where it has been determined that the activities of donning, doffing, and washing
are not to be included in hours of employment by operation of 29 U.S.C. § 203(o), can
such activities, under any circumstances, start or end the continuous workday under 29
U.S.C. § 254(a)?” Sandifer v. U.S. Steel Corp., 2010 WL 61971, *5 (N.D. Ind. 2010). The
Seventh Circuit answered the question no. Sandifer held that when a collective
bargaining agreement classifies clothes-changing time as non-working time (and,
therefore, “lawfully not compensated”), then that time cannot be considered a principal
employment activity. Sandifer, 678 F.3d at 596-97.
The Seventh Circuit’s Sandifer opinion does not mention time clocks, time
punches, or clock ring theories. Sandifer does not declare that, to survive summary
judgment, FLSA plaintiffs must have “collective proof” of tasks performed by each
worker which could possibly start the continuous workday. Sandifer does not address
whether time clocks or other record-keeping systems can be relied on by FLSA plaintiffs
to estimate uncompensated work.
Sandifer does not articulate the method by which
an off-the-clock FLSA case must (or may not be) be proven.
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Relying on one sentence in this Court’s November 2011 Order denying a motion
to certify an interlocutory appeal, Amsted suggests that this Court already ruled that if
the employer prevailed in Sandifer, the effect on this case would be to preclude
Plaintiffs from relying on time clocks to establish damages. Simply put, that is not what
the Court’s Order meant. The point of this Court’s November 11, 2011 decertification
ruling was that resolution of the Sandifer appeal “quite likely [would] affect the course
of” this case, because it had the potential to disallow one method for computing
damages, render moot some of Plaintiffs’ claims, and alter the analysis of the
decertification question (see Doc. 195, pp. 5-6).
Plaintiffs had argued in their brief supporting an interlocutory appeal that if
Sandifer held that donning and doffing (as a matter of law) cannot start or end the
continuous workday, then Plaintiffs’ damage theory changes, because they must “point
to some other pre-shift or post-shift activity as the beginning or end of their continuous
workday (e.g., gathering or returning tools)” (Doc. 188, p. 6). The undersigned Judge
could not precisely predict the outcome or scope of the Sandifer decision but agreed
with Plaintiffs’ contention that a ruling for the employer would move the focus of
Plaintiffs’ damages away from donning and doffing and on to some other pre-shift or
post-shift task, like obtaining tools. That did not equate to a ruling that all time clock
evidence is irrelevant, such that Amsted would be entitled to summary judgment.
Amsted emphasizes the significant diversity in pre-shift and post-shift routines
among the many Plaintiffs.
For instance, discovery has revealed that the tasks
performed after clocking in vary considerably from Plaintiff to Plaintiff. Some Plaintiffs
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clock in and walk to a break room or locker room, others clock in and directly go to get
tools or connect machinery, others make small-talk with coworkers or pray. Some
employees get tools during their shift not before it.
Plaintiffs’ post-shift routines and
habits likewise diverge. The Court agrees with Amsted that “what, exactly, the clock
rings capture varies from Plaintiff to Plaintiff” (Doc. 213, p. 4). Those arguments make a
convincing case for decertification more than they support the grant of summary
judgment.
Plaintiffs have presented evidence (e.g., Shop Rules and Regulations,
depositions/declarations) that they are required to clock in before their shift begins and
that they must be in their department, at their post, ready to commence work by the
start of their shift. The pre-shift and post-shift activities (which can be grouped into five
categories, see Doc. 218, p. 9) differ to a substantial degree from Plaintiff to Plaintiff, and
certainly not every Plaintiff performs each of the tasks. But evidence indicates that
nearly every Plaintiff performs tasks outside his or her scheduled shift, and (given the
Job Safety Analyses and job descriptions) some of these tasks may well be performed
for the primary benefit of Amsted.
Genuine issues of material fact remain as to whether Amsted required employees
to do compensable work outside of their scheduled shift times. Fact questions exist as
to whether certain Plaintiffs arrived to work early or stayed late voluntarily or because it
was mandated by company policy.
Fact questions linger as to the nature of the pre-
shift and post-shift activities (as well as the amount of time spent on them).
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Post-Sandifer, donning and doffing cannot be used to “bookend” the workday.
At trial Plaintiffs will have to show that some pre-shift and post-shift work they
performed was integral and indispensable to a “principal activity” of their job, such that
it is compensable under the FLSA. Plaintiffs also will have to present the jury with a
reasonable estimate of the amount of unpaid work they performed. The time clock
records may be helpful toward this end; the jury will determine what has been proven.
The time clock punches neither establish nor defeat Plaintiffs’ case. It remains to be
seen whether Plaintiffs can establish liability or damages, but Sandifer does not render
all evidence of clock rings irrelevant or inadmissible. Genuine issues of material fact
remain, and Amsted has not demonstrated entitlement to judgment as a matter of law.
D.
Conclusion
For all these reasons, the Court DENIES Amsted’s motion for summary
judgment (Doc. 212). Trial is set at 9:00 am on December 3, 2012. The Court heard
argument October 26, 2012 on Amsted’s motion to decertify and awaits supplemental
briefs (due November 2, 2012 and November 9, 2012) on that issue.
IT IS SO ORDERED.
DATED October 31, 2012.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge
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