Aubuchan et al v. Doe Run Resources Corporation et al

Filing 76

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that plaintiffs' motion for order conditionally certifying collective action [# 46 ] is granted to the following extent: plaintiffs shall provide revised class and subclass def initions in accordance with this Memorandum and Order within 10 days of the date of this Order. IT IS FURTHER ORDERED that defendants shall provide plaintiff's attorneys with the names, employment dates, and last known addresses of all potential class members within 15 days of the date of this Order. IT IS FURTHER ORDERED that the parties shall file a joint proposed form of notice for the Court's consideration, consistent with this Order, within 20 days of the date of this Order. If th e parties cannot agree on a joint proposed form of notice after good faith efforts, then the parties shall file their own proposed forms of notice, each with a brief memorandum setting out the areas of disagreement and support for their position, for the Court's consideration. IT IS FURTHER ORDERED that defendant Doe Run's motions to compel arbitration [# 49 , # 50 ] are granted as follows: plaintiff Beth Ann Sappington is ordered to arbitrate her claims as set out in her separation a greement, and the claims of plaintiff Beth Ann Sappington against defendant Doe Run are stayed pending completion of arbitration. Plaintiff Herb J. Schnell, III is ordered to arbitrate his claims as set out in his separation agreement, and the claim s of plaintiff Herb J. Schnell against defendant Doe Run are stayed pending completion of arbitration. IT IS FURTHER ORDERED that the parties shall file a joint memorandum regarding mediation as set out above within 20 days of the date of this Order. Signed by District Judge Catherine D. Perry on 07/21/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHANE BOWMAN, et al.,
individually and on behalf of all
others similarly situated,
Plaintiffs,
vs.
THE DOE RUN RESOURCES
CORP., et al.,
Defendants.

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Case No. 4:13 CV 2519 CDP

MEMORANDUM AND ORDER
Plaintiffs were plant workers at Doe Run’s lead smelter in Herculaneum,
Missouri and allege that they and other similarly situated employees were required
to perform work duties before and after their shifts without being paid.1 Plaintiffs
bring a collective action for unpaid compensation under the Fair Labor Standards
Act (FLSA), 29 U.S.C. § 201, et seq., on behalf of themselves and others similarly
situated. Plaintiffs also seek to certify a class action under Federal Rule of Civil
Procedure 23 for state law statutory claims under the Missouri Minimum Wage
Law (MMWL), Mo. Rev. Stat. § 290.500 et seq., as well as for common law
claims of quantum meruit and breach of contract.
1

These duties included obtaining, donning, doffing, washing, and stowing protective
clothing and equipment.

Plaintiffs now move for conditional certification of this case as a collective
action under the FLSA so that they may notify certain of defendants’ past and
present employees of this action and provide them the opportunity to “opt in” as
plaintiffs to this litigation.1 Defendants oppose conditional certification on
various grounds. I will grant plaintiffs’ motion for the reasons that follow.
Background
Plaintiffs were hired to work in the smelter either directly by Doe Run or as
contract employees through All Type Contracting. Regardless of the job
performed or the type of employee, all workers at the smelter were required to
wear certain clothing and equipment to protect them from lead exposure. This
clothing and equipment must be left at the facility each day and cannot be worn to
or from the worker’s home. An outside cleaning company removes lead residue
from the clothing and equipment. According to the numerous affidavits submitted
in support of conditional certification, workers are required each day before the
start of their shift to obtain and put on this protective gear before proceeding to
their position in the plant. This process requires workers to go to the “clean side”
lockers to change out of their street clothes and put on their company issued pants,

1

Numerous other plant workers have already filed consents to join this action even though
it has not yet been certified as a collective action.
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shirt, and jacket. Then they walk over to the “dirty side” lockers to obtain and don
their company issued boots. Workers next retrieve company issued respirators,
which are assembled and required to be worn throughout the facility. They were
then expected to proceed to their work stations before their shifts started so that
their co-workers could begin the reverse process of doffing and stowing the
clothing and equipment and showering before leaving the plant. The workers all
testified that they were required to perform these mandatory activities off the clock
before their shifts started and that they spent between 45 to 60 minutes per shift
performing these activities. Workers were also sometimes required to doff and
stow the clothing and equipment and shower after their shifts ended, also off the
clock. The workers were not paid for these off the clock activities, be it straight or
overtime pay, and these hours were not considered in the calculation of incentive
pay, either.
Contract employees were paid by All Type but directly supervised by Doe
Run. Doe Run controlled their schedules and determined how many contract
workers worked each shift. Doe Run required them to adhere to the same donning
and doffing procedures as its employees, also off the clock and without pay.
When some contract employees sought to paid for these donning and doffing
activities, they were told by All Type that because Doe Run did not compensate
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for these activities, they would not pay the contract workers for these activities,
either. Contract workers could not receive a pay increase from All Type or work
excess hours without Doe Run’s prior approval. They were subject to training,
discipline, and termination by Doe Run and, like Doe Run’s regular employees,
were tested regularly for lead exposure by Doe Run. Doe Run kept records of lead
testing for contract and regular employees.
Plaintiffs aver that Doe Run and All Type have a systematic and single
common policy that requires all employees to work off the clock, without pay,
each day obtaining clothes and equipment and performing donning and doffing
related activities. They further state that Doe Run has a common policy requiring
employees to work off the clock to relieve co-workers before scheduled shift times
or face additional uncompensated off the clock work at the end of their own shift
performing stowing, doffing, and washing activities. In their motion, plaintiffs
seek conditional certification of a class consisting of all current and former hourly
paid plant workers at Doe Run’s Herculaneum facility, from April 22, 2011, to the
present, who “received a paycheck from either defendant Doe Run or defendant
All Type, worked at least 38 hours in any week in the last three years, worked any
shift, and prior to and/or after their shift, obtained or stowed clothing and
equipment, put on and/or took off clothing and equipment, walked to their position
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on the line to relieve a co-worker, showered, etc.” Plaintiff Bowman seeks
conditional certification of a subclass of plant workers at Doe Run’s Herculaneum
facility, from April 22, 2011, to the present, who “received a paycheck from
defendant Doe Run for more than 40 hours of work in any week, worked any shift,
and did not receive overtime at the appropriate rate of time and one-half his or her
regular rate of pay because defendant Doe Run failed to include incentive bonuses
in the calculation of the regular rater of pay for overtime purposes.” Plaintiff
Aubuchan seeks conditional certification of a subclass of plant workers at Doe
Run’s Herculaneum facility, from April 22, 2011, to the present, who “received a
paycheck from defendant All Type for at least 38 hours of work in any week,
worked any shift, and prior to and/or after their shift, obtained or stowed clothing
and equipment, put on and/or took off clothing and equipment, walked to their
position on the line to relieve a co-worker, showered, etc.”
Discussion
Section 7 of the Fair Labor Standards Act mandates that an employer may
not subject non-exempt employees to a work week in excess of 40 hours unless the
employee is compensated for her overtime with additional pay of at least one and
one half times her regular hourly wage. 29 U.S.C. § 207. The Act also provides
that any employer who violates this restriction “shall be liable to the employee or
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employees affected in the amount of their . . . unpaid overtime compensation . . .
and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).
An action to recover the overtime and liquidated damages may be
maintained “by any one or more employees for and on behalf of himself or
themselves and other employees similarly situated.” Id. The FLSA does not
define the term “similarly situated.”2 Although the Eighth Circuit Court of
Appeals has not decided the standard to determine whether potential opt-in
plaintiffs are “similarly situated” under § 216(b), the district courts in this circuit
use a two-step analysis. See e.g., Fry v. Accent Marketing Servs., LLC, 2013 WL
4093203, *2 (E.D. Mo. Aug. 13, 2013); Simmons v. Enterprise Holdings, Inc.,
2011 WL 855669, *2 (E.D. Mo. Mar. 9, 2011); Littlefield v. Dealer Warranty
Services, LLC, 679 F. Supp. 2d 1014, 1016 (E.D. Mo. 2010); Parker v. Rowland
Express, Inc., 492 F. Supp. 2d 1159, 1164 (D. Minn. 2007); Davis v. Novastar
Mortgage, Inc., 408 F. Supp. 2d 811, 815 (W.D. Mo. 2005); Dietrich v. Liberty
Square, L.L.C., 230 F.R.D. 574, 577 (N.D. Iowa 2005); McQuay v. American

2

A 216(b) collective action differs from class actions brought under Rule 23 of the
Federal Rules of Civil Procedure. Davis v. Novastar Mortgage, Inc., 408 F. Supp. 2d 811, 81415 (W.D. Mo. 2005). A primary distinction is that under FLSA a similarly situated employee
must “opt-in” to the collective action to be bound by it, whereas under Rule 23, a similarly
situated employee must “opt-out” to avoid being bound by the judgment. Id. See also Grayson
v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (noting that the “similarly situated”
standard is considerably less stringent than Rule 23(b)(3) class action standards).
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International Group, Inc., 2002 WL 31475212, *2 (E.D. Ark. Oct. 25, 2002).
As is typical under the two-step process, plaintiffs have moved for
conditional certification for notice purposes at an early stage of the litigation. See
Davis, 408 F. Supp. 2d at 815. At this first step in the process, I do not reach the
merits of their claims. Kautsch v. Premier Communications, 504 F. Supp. 2d 685,
688 (W.D. Mo. 2007); Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y.
1997) (citation omitted). Plaintiffs’ burden at this stage is not onerous. See
Kautsh, 504 F. Supp. 2d at 688; Smith v. Heartland Automotive Services, Inc., 404
F. Supp. 2d 1144, 1149 (D. Minn. 2005) (burden at first stage is “not rigorous”).
Conditional certification at the notice stage requires “nothing more than
substantial allegations that the putative class members were together the victims of
a single decision, policy or plan.” Davis, 408 F. Supp. 2d at 815. “Plaintiffs need
not show that members of the conditionally certified class are actually similarly
situated.” Fast v. Applebee’s International, Inc., 2007 WL 1796205, *3 (W.D.
Mo. June 19, 2007). That determination is made during the second step of the
process, after the close of discovery. Id. “Determining whether such a collective
action is the appropriate means for prosecuting an action is in the Court’s
discretion.” Heartland, 404 F. Supp. 2d at 1149 (citation omitted). Once the
Court conditionally certifies the class, potential class members are given notice
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and the opportunity to “opt-in.” Parker, 492 F. Supp. 2d at 1159.
At the second step of the process, the defendant may move to decertify the
class. See Dernovish v. AT&T Operations, Inc., 2010 WL 143692, *1 (W.D. Mo.
Jan. 12, 2010). This is typically done after the close of discovery when I have
more information and am able to make a factual determination as to whether the
members of the conditionally certified class are similarly situated. See Davis, 408
F. Supp. 2d at 815. To be similarly situated, however, “class members need not be
identically situated.” Fast, 2007 WL 1796205, *4 (W.D. Mo. June 19, 2007).
Having reviewed plaintiffs’ motion in light of the relevant standards, I find
that they have cleared the relatively low hurdle of demonstrating that conditional
certification of the collective action is appropriate. Plaintiffs have come forward
with substantial allegations that they and the other members of the proposed
collective action were victims of a single decision, policy or plan to deprive them
of compensation, namely, that they were required to perform some work, including
donning and doffing clothing and equipment and relieving co-workers, without
getting paid for it. For purposes of this motion, Doe Run does not dispute that all
workers at Doe Run’s Herculaneum plant were subject to these mandatory
procedures or that they were required to perform these activities off the clock

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without pay.3 Instead, defendants challenge the propriety of conditional
certification by arguing that Doe Run and All Type are not joint employers and
that some potential class members are subject to a mandatory arbitration provision.
These arguments are insufficient to defeat conditional certification.
Under the FLSA, two or more employers may employ a person jointly, and
each joint employer is individually responsible for complying with the FLSA with
respect to the entire employment. 29 C .F.R. § 791.2(a). The Eighth Circuit has
not established a test to determine whether an entity may be held to be a joint
employer under the FLSA; however, several courts in this circuit have been
guided by the following four factors: (1) the power to hire and fire employees: (2)
supervision and control of employee work schedules or conditions of employment;
(3) determination of the rate and method of payment; and (4) maintenance of
employment records. Arnold v. DirecTV, Inc., 2012 WL 4480723, *4 (E.D. Mo.
Sept. 28, 2012); Arnold v. DirecTV, Inc., 2011 WL 839636, at *6 (E.D. Mo. Mar.
7, 2011) (citing Schubert v. Bethesda Health Group, Inc., 319 F. Supp. 2d 963,
971 (E.D. Mo. 2004)). No one factor is dispositive; courts examine the “economic
realities” of the working relationship rather than technical definitions relating to

3

All Type argues that the affidavits establishing these allegations should be ignored on
hearsay grounds. As discussed below, that argument is rejected.
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employment. Arnold, 2012 WL 4480723 at *5 (citing Goldberg v. Whitaker
House Coop., Inc., 366 U.S. 28, 33(1961)).
I find that plaintiffs have alleged sufficient facts to sustain their modest
burden for conditional certification on this issue. Plaintiffs have alleged that Doe
Run controls both scheduling and day-to-day management of all Herculaneum
plant workers. Contract workers have alleged that they were subject to training,
discipline, and even termination by Doe Run. Doe Run tested all workers for lead
exposure and maintained the results of those tests. More importantly, all workers,
whether contract or regular employees, were subject to the same donning and
doffing procedures that are at issue in this case. When some contract employees
requested compensation from All Type for these required off the clock duties, they
were told by All Type that they would not be paid because Doe Run did not pay its
employees for these activities. Although defendants challenge the basis for these
assertions, threshold employment questions do not keep the Court from
conditionally certifying the collective action. See Arnold, 2012 WL 4480723, at
*5; Nobles v. State Farm Mut. Auto. Ins. Co., 2011 WL 3794021, *11-12 (W.D.
Mo. Aug. 25, 2011) (“Although courts have later decertified actions because of
employment relationship questions, this does not alter the present burden at the
conditional certification stage considered here.”). Moreover, the Court can
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consider plaintiffs’ provided affidavits in support of conditional certification even
if, as defendants argue, some of the statements in the affidavits would not be
admissible at trial. See In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d
604, 613 (8th Cir. 2011) (“Because a decision to certify a class is far from a
conclusive judgment on the merits of the case, it is of necessity not accompanied
by the traditional rules and procedure applicable to civil trials.”) (internal
quotation marks and citation omitted); Lindsay v. Wells Fargo Advisors, LLC,
2013 WL 943736, *5-*6 (E.D. Mo. Mar. 11, 2013) (applying In re Zurn to
conditional certification). Additionally, “[e]mployees can testify to the working
practices of others that they observe.” Davenport, 2012 WL 3563974, at *1.
Defendants’ arguments regarding the joint employer issue are inappropriate at this
stage of the proceedings and can be raised at the second, or decertification, stage.
Arnold, 2012 WL 4480723, at *5.
The same is true of Doe Run’s argument that conditional certification
should be denied because some potential class members may be required to
arbitrate their FLSA claims. Other courts have held that “‘the existence of
arbitration agreements is irrelevant to class certification, because it raises a meritsbased determination.’” Hernandez v. Immortal Rise, Inc., 2012 WL 4369746, *5
(E.D.N.Y. Sept. 24, 2012) (quoting D’Antuono v. C & G of Groton, Inc., 2011
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WL 5878045, *2 (D. Conn. Nov. 23, 2011)). In Davis v. NovaStar Mortg., Inc.,
408 F. Supp. 2d 811, 818 (W.D. Mo. 2005), the district court rejected defendant’s
argument that conditional certification should be denied because some potential
class members had signed arbitration agreements. Instead, the court granted
conditional certification despite the arbitration issues and indicated that, once the
identity of the class members had been determined, it would consider whether to
compel arbitration of certain claims at that time. Id. (adopting the approach set
out in Villatoro v. Kim Son Restaurant, L.P., 286 F. Supp. 2d 807, 808 (S.D. Tex.
2003)). I agree with the Davis court’s handling of this issue and adopt the same
approach here. If Doe Run chooses to move to compel arbitration of certain
claims once the potential class members have been determined, I will consider
whether the claims are arbitrable at that time.4 I will not, however, deny
conditional certification on this basis.
Doe Run’s argument that notice to potential class members is unnecessary
because plaintiffs’ counsel have “already notified” class members about the
lawsuit is simply a rehashing of those arguments already rejected in my March 24,

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In fact, the parties have already adopted just such an approach in this case and there is no
indication that it will not continue to work once notice has been sent out. As always, I encourage
the parties to work cooperatively as much as possible and not file lengthy motions or needless
oppositions when a simple consent motion to compel arbitration would suffice.
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2014, Memorandum and Order denying defendant’s motion to disqualify. I find
no basis to deny plaintiffs’ request for notification of this FLSA collective action
based on the prior actions of plaintiffs’ counsel, and I do not find the reasoning of
the unpublished decision in Dell’Orfano v. IKON Office Solutions, Inc., Civil
Action No. 5:05-cv-245 (M.D. Ga. Aug. 18, 2006),5 persuasive or applicable here.
Finally, I reject All Type’s argument that conditional certification should be
denied because plaintiffs allegedly have not “substantiated” their belief that
additional potential class members will choose to opt in if the class is
conditionally certified. An alleged lack of interest in a collective action by
potential class members is not an appropriate factor to consider when deciding
whether to conditionally certify a collective action. See Ondes v. Monsanto Co.,
2011 WL 6152858, *5 (Dec. 12, 2011).
For purposes of this motion, defendants’ arguments do not preclude
conditional certification of a collective action. After discovery is complete and the
matter is fully briefed, I may decertify the collective action if defendants show that
it is appropriate then. But I cannot deny conditional certification of the proposed
collective action based on the arguments raised by defendants.

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Doe Run attached this case as Exhibit 2 in support of their opposition to conditional
certification.
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As plaintiff has pled a willful violation, a three-year certification period is
appropriate. See Simmons v. Enterprise Holdings, Inc., 2011 WL 855669, *4
(E.D. Mo. Mar. 9, 2011) (three-year certification period); Beasely v. GC Services
LP, 270 F.R.D. 442, 445 (E.D. Mo. 2010) (same). I find the dates used in the
proposed class definition are appropriate as the Court believes the limitation
period should be tolled for a brief period upon the filing of the motion for
conditional certification to permit the Court to rule on this issue. I agree with Doe
Run that plaintiffs are not entitled to the social security numbers and phone
numbers of potential class members at this time. Rather, defendants shall simply
provide plaintiffs with the names, last known addresses, and dates of employment
for all potential class members. If, however, notices sent by mail are returned and
additional information is required to notify potential class members, then I expect
counsel to meet and confer in good faith about this issue and attempt to resolve it
in a manner designed to safeguard the privacy of potential class members and
without further Court involvement. I also agree with defendants that the Notice
must be revised to specifically indicate that it applies only to workers at the
Herculaneum facility and that the Notice and class definitions should be specific
as to the types of pre- and post-shift activities included within the class definition

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instead of using “etc.”6 I also do not believe it is necessary or appropriate to list
the names of the individuals who have already filed consents to join. I agree with
plaintiffs that a ninety-day consent to join period is appropriate. Most of
defendants’ remaining objections to the proposed form of Notice are meritless and
will be overruled if the parties insist on fighting about these issues, so with these
guidelines in mind, I expect the parties to meet and confer in good faith to agree
upon a proposed form of notice, to be filed for the Court’s consideration within 20
days of the date of this Order. I also expect plaintiffs to file revised class and/or
subclass definitions in accordance with this Memorandum and Order within 10
days of the date of this Order. Absent further Order from the Court, these revised
class and/or subclass definitions will be used by the parties in preparing their
proposed form of Notice for the Court’s consideration and in providing the
information to plaintiffs’ counsel about the potential class members as set out
below.
Finally, I have not yet held a Rule 16 scheduling conference in this case.
Given the current procedural posture, however, I believe that an early referral to
mediation, likely after the notice period expires, may be appropriate and in the best

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I do not find the use of “etc.” in the class definition or proposed Notice fatal to
conditional certification as plaintiffs’ complaint and brief are specific as to the types of activities
included and this wording issue can be easily corrected by plaintiffs’ counsel.
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interests of all parties. Therefore, I would like the parties to consult about the
propriety of early mediation and file a joint memorandum setting out their
respective positions on this issue. If the parties agree to mediation, they should
also provide proposed dates for referral to and completion of mediation, along
with an indication of whether a stay or a scheduling conference may be required.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for order conditionally
certifying collective action [#46] is granted to the following extent: plaintiffs shall
provide revised class and subclass definitions in accordance with this
Memorandum and Order within 10 days of the date of this Order.
IT IS FURTHER ORDERED that defendants shall provide plaintiff’s
attorneys with the names, employment dates, and last known addresses of all
potential class members within 15 days of the date of this Order.
IT IS FURTHER ORDERED that the parties shall file a joint proposed
form of notice for the Court’s consideration, consistent with this Order, within 20
days of the date of this Order. If the parties cannot agree on a joint proposed form
of notice after good faith efforts, then the parties shall file their own proposed
forms of notice, each with a brief memorandum setting out the areas of
disagreement and support for their position, for the Court’s consideration.
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IT IS FURTHER ORDERED that defendant Doe Run’s motions to
compel arbitration [#49, #50] are granted as follows: plaintiff Beth Ann
Sappington is ordered to arbitrate her claims as set out in her separation
agreement, and the claims of plaintiff Beth Ann Sappington against defendant
Doe Run are stayed pending completion of arbitration. Plaintiff Herb J. Schnell,
III is ordered to arbitrate his claims as set out in his separation agreement, and the
claims of plaintiff Herb J. Schnell against defendant Doe Run are stayed pending
completion of arbitration.
IT IS FURTHER ORDERED that the parties shall file a joint
memorandum regarding mediation as set out above within 20 days of the date of
this Order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 21st day of July, 2014.

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