Gomez et al v Tyson Foods

Filing 318

MEMORANDUM AND ORDER - IT IS ORDERED: The plaintiffs' Emergency Motion to Compel Monty Hahn's Attendance at Trial, Filing No. 310 , is granted. The defendant's Emergency Motion for Clarification, Filing No. 311 , is granted as set forth above. Ordered by Judge Joseph F. Bataillon. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSE A. GOMEZ, JULIANA REYES,
JUAN M. CRUZ, TED MCDONALD,
CECILIA ORTIZ, and MARIO CRUZ, on
behalf of themselves and all other similarly
situated individuals,

8:08CV21
MEMORANDUM AND ORDER

Plaintiffs,
vs.
TYSON FOODS, INC.,
Defendant.

This matter is before the court on the plaintiffs’ Emergency Motion to Compel
Monty Hahn’s Attendance at Trial, Filing No. 310, and the defendant’s Emergency
Motion for Clarification, Filing No. 311.
The court finds the plaintiffs’ motion should be granted. In light of Tyson’s prior
representations in this case and the Acosta trial, its position with respect to Mr. Hahn’s
attendance at trial is unreasonable. Contrary to Tyson’s assertion, the court’s statement
that Dr. Fernandez’s report is irrelevant does not mean that Dr. Hahn’s testimony is
irrelevant. Dr. Fernandez conducted time studies at different plants and Mr. Hahn’s
testimony relates to the Dakota City plant. Mr. Hahn has personal knowledge of facts
relevant to the issues in this case. Moreover, it is incumbent on this court, not counsel
to determine relevance.
In its motion for clarification, Tyson “seeks clarification that time studies which
purported to study only unique items are now irrelevant to the issues for jury trial herein
and that Mr. Hahn will not be questioned about the aforementioned time study nor will
that time study or its result be otherwise mentioned.” Tyson also seeks clarification

“that if plaintiffs are now permitted to change this trial from one about ‘minutes’ into one
about ‘pay practices,’ that Defendant similarly be permitted to introduce all evidence and
testimony relevant to the rationale for its overall pay practices.”

Further, Tyson

contends that it would be highly prejudiced if plaintiffs were allowed to question Hahn
about the time study and the items not included in that study unless Tyson were
“allowed to explain to the jury why it pays a minimum of four minutes at the Dakota City
plant, including that the union has not bargained for more minutes or ever challenged
that the current payment is not sufficient.”
Tyson misreads the court’s prior ruling. First, although the court stated at the
hearing on March 11, 2013, that the jury would hear evidence of the four minutes that
Tyson paid its employees for donning and doffing activities, it later became clear that
the court had not decided how to handle the four-minute issue. See Filing No. 308,
Transcript of Hearing on March 11, 2013, at 34, 71, and 81. To clarify, the court now
finds, for the reasons stated below, that the evidence relating to the four minutes Tyson
has paid its employees will not be permitted with respect to issues of liability. The court
will apply the four minutes as an offset to the jury’s finding on the number of minutes the
plaintiffs spend on compensable activities. If evidence is adduced regarding the four
minutes, the jury will be instructed to that effect.
In its order on the motions for summary judgment, the court found against Tyson
as a matter of law on the liability issue. Filing No. 224, Memorandum and Order at 3235. The finding was premised in part on the historical record of Tyson’s litigation of the
issue in the Alvarez case, which involved a Union plant. See id. at 10-14. Union
negotiations and Tyson’s “pay practices” and/or rationale for its pay practices are

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irrelevant as defenses to liability. The liability issue has been resolved by the court. As
hard as it is for Tyson to accept that fact, it is the law of the case.
Tyson’s history of litigation as reflected in the case law and public record shows
that there is no dispute that the four minutes paid to Tyson employees at its unionized
plants did not, and does not, include, at the least, walking time. Alvarez v. IBP, Inc.,
2001 WL 34897841, *2, n.3, *6 (characterizing minutes as “clothes changing”). It is
undisputed that Tyson never increased the amount of clothes-changing time at the
Dakota City plant above four minutes.1 The United States Supreme Court found in
Alvarez that the employees are entitled to compensation for walking time.
Any argument that the company has kept proper and accurate records based on
the fact that its time records include four minutes of time for donning and doffing is
foreclosed by the fact that the four-minute figure was calculated without reference to
walking time and is, therefore, not accurate.2
The court’s finding in favor of the plaintiffs on the liability issue is equivalent to a
finding that the plaintiffs have satisfied the first prong of the burden-shifting analysis
outlined in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (8th Cir. 1946).
They have established as a matter of law that they have “in fact performed work for
which they were improperly compensated” and can produce “sufficient evidence to
show the amount and extent of that work as a matter of just and reasonable inference.”

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Plaintiffs’ counsel made this statement at the hearing on March 11, 2013, and Tyson’s counsel
did not dispute it. See Filing No. 308, Tr. at 100. Tyson’s counsel also admitted at one point that it was
“still at four minutes,” with respect to some Union plants. Id. at 71. See also Filing No. 224,
Memorandum and Order at 4; Filing No. 144, Tyson’s Brief in Support of Motion for Summary Judgment,
Statement of Undisputed Facts at 13.
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Similarly, as outlined in the court’s order on summary judgment, the historical record and case
law show that Tyson’s reliance on the four minutes to satisfy its obligations under the FLSA was
appropriate only until 2001, when the Department of Labor clarified that actual time was compensable.
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Id. In these circumstances, “a basis for a reasonable inference as to the extent of the
damages” is enough. Id. It is then incumbent on the defendant to “come forward with
evidence of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s evidence.” Id. at 68788; Dole v. Alamo Foundation, 915 F.2d 349, 351 (8th Cir. 1990) (“only a just and
reasonable inference need be established as to the uncompensated work performed,
and once the plaintiff has produced evidence of uncompensated labor,” the burden
shifts to the employer). In short, as in Anderson, “the employee has proved that he has
performed work and has not been paid in accordance with the statute. The damage is
therefore certain. The uncertainty lies only in the amount of damages arising from the
statutory violation by the employer.” Id. at 688. Though Anderson’s holding was later
limited in part by the Portal-to-Portal Act, the burden-shifting remedial analysis remains
the law. See, e.g., Dole, 915 F.2d 351 (citing Anderson, 328 U.S. at 687-88); see also
Eighth Circuit Manual of Model Jury Instructions, Civil, § 10.03, Committee comments.
Defendant seeks clarification that time studies which purported to study only
unique items are now irrelevant to the issues for jury trial herein and that Mr. Hahn will
not be questioned about the aforementioned time study nor will that time study or its
result be otherwise mentioned. Tyson’s argument in this regard is based on the court’s
exclusion of the report of Dr. Fernandez, in part because it is not relevant. Tyson again
misinterprets the court’s order; plaintiffs’ motion in limine with respect to Dr. Fernandez
was based on several contentions, including that the report, prepared in 1998 was
based on a different plant and a different time period and was not an exception to the
hearsay rule. It also argued that Tyson seeks to introduce the obsolete report instead of

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presenting Dr. Fernandez’s testimony subject to cross-examination. Further, it argues
that Dr. Fernandez is not listed as an expert and cannot give an opinion as a lay
witness.
Tyson overstates the impact of the court’s ruling with respect to Dr. Fernandez,
and the comment that his testimony is irrelevant because it dealt only with unique items.
That doesn’t mean all testimony that deals with unique items is irrelevant. Dr. Hahn’s
time study did not study all the activities the court has found compensable, but it studied
some of them at the plant at issue. He can testify to what he did.
The court’s ruling on Dr. Adams stands. The plaintiffs can use Dr. Adams’s
testimony, if at all, only to impeach the testimony of an officer or director of Tyson that is
contrary to Dr. Adams’s testimony. This is because the evidence goes to the credibility
of the witness and not to the truth of Dr. Adams’s statement.
To further clarify, evidence of collective bargaining will not be allowed.
Accordingly,
IT IS ORDERED:
1.

The plaintiffs’ Emergency Motion to Compel Monty Hahn’s Attendance at

Trial, Filing No. 310, is granted.
2. The defendant’s Emergency Motion for Clarification, Filing No. 311, is granted
as set forth above.
Dated this 15th day of March, 2013.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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