Gomez et al v Tyson Foods

Filing 432

MEMORANDUM AND ORDER - The plaintiffs' Objection (Filing No. 338 ) to the Magistrate Judge's Order (Filing No. 281 ) is sustained. That portion of the order of the magistrate judge (Filing No. 281 ) that limits class members to tho se employed by Tyson up to the date of class certification is vacated. The plaintiffs' alternative Motion to Amend Class (Filing No. 338 ) is granted. The class certified is amended as follows: All current and former employees of Defendant Tyson's Dakota City, Nebraska, meat processing facility who have been employed by Tyson at any time from January 17, 2004, to April 3, 2013, and are or were paid under a "gang time" compensation system in the Slaughter or Processing Departments. Defendant's Motion to Decertify (Filing No. 417 ) is denied. Ordered by Judge Joseph F. Bataillon. (GJG)

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;
Plaintiffs,

8:08CV21

MEMORANDUM AND ORDER

v.
TYSON FOODS, INC.,
Defendant.

This matter is before the court on the plaintiffs’ Objection to Magistrate Judge’s
Order, and, in the Alternative, Motion to Amend Class Definition, Filing No. 338, and on
the defendant’s Motion to Decertify, Filing No. 417.1
1. Plaintiffs’ Objection/Motion to Amend Class
The plaintiffs object to that portion of the magistrate judge’s order that excludes
from the class those employees hired after the date of class certification, and
alternatively, they move to amend the class definition. For the reasons stated in an
order on the same issue in Acosta v. Tyson, Case No. 8:08CV86, the court finds the
plaintiffs’ objection to the magistrate judge’s order should be sustained, the magistrate
judge’s order vacated, and the plaintiffs’ alternative motion to amend the class should
be granted. See Acosta v. Tyson, No. 8:08cv86, Filing No. 311, Findings of Fact and
Conclusions of Law at 5, 49; Filing No. 316, Memorandum and Order at 2-3. The
phrase “to the present” in the class definition can be reasonably understood to mean the

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The motion to decertify was presented with Tyson’s motion for new trial, Filing No. 417. The
motion for a new trial is addressed in a separate order.

date of the verdict. See id., Filing No. 311, Mem. & Order at 3. The court finds the class
herein should be amended to include all employees who were paid on ‘gang time’ up to
the date of the jury’s verdict.
2. Defendant’s Motion to Decertify the Class
The defendant bases its motion to decertify on the contention that the recent
United States Supreme Court cases of Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), and
Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), disallow “trial by formula.” Tyson
contends that the damages of the plaintiff class must be proved individually with respect
to each plaintiff. It argues that the plaintiffs offered no classwide proof and there was
significant variation among the class. Further, it argues that the plaintiffs’ evidence was
not representative of the class and did not offer a classwide number of minutes.
In order to qualify for class certification under Rule 23, a plaintiff must satisfy the
threshold requirements of Rule 23(a) as well as the one of the three subsections of Rule
23(b).

See Fed. R. Civ. P. 23; Dukes, 131 S. Ct. at 2548.

The four threshold

requirements of Rule 23(a) are: (1) numerosity; (2) commonality; (3) typicality; and (4)
adequacy of representation. Fed. R. Civ. P. 23(a).
Under Rule 23(b)(1), a class action may be maintained if Rule 23(a) is satisfied
and if: (1) prosecuting separate actions by or against individual class members would
create a risk of: (A) inconsistent or varying adjudications with respect to individual class
members that would establish incompatible standards of conduct for the party opposing
the class; or (B) adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other members not parties
to the individual adjudications or would substantially impair or impede their ability to

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protect their interests. Fed. R. Civ. P. 23(b)(1). Under subsection (b)(3) of Rule 23, a
plaintiff must show that common question of fact among class members predominate
and that a class action is the superior method for adjudicating the controversy. Fed. R.
Civ. P. 23(b)(3). In this case, the court found the plaintiffs satisfied both subsections (1)
and (3) of Fed. R. Civ. P. 23(b).2
The Supreme Court’s denial of class certification in Wal–Mart v. Dukes focused
on the “commonality” element, which requires that a class action involve “questions of
law or fact common to the class.” Dukes, 131 S. Ct. at 2548. The Supreme Court
specified that:
What matters to class certification . . . is not the raising of common
questions—even in droves—but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the
litigation. Dissimilarities within the proposed class are what have the
potential to impede the generation of common answers.
Dukes, 131 S. Ct. at 2551 (citations and internal quotation marks omitted).

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The court found:

The court finds the defendant’s uniform pay system affects each employee in the
same way, albeit to varying degrees. Further, a determination about whether the pay
system is a violation of state statute should be uniform for each plaintiff and the
defendant. See Thomas v. SmithKline Beecham Corp., 201 F.R.D. 386, 396-97 (E.D.
Pa. 2001) (“Certifications under [Rule 23(b)(1)] are common in labor relations cases
because defendants often provide ‘unitary treatment to all members of [a] putative class
[in this] . . . area’ and thus the rights of absent ‘class member[s] [are often] . . . implicated
by litigation brought by other class members.’”) (alterations in original). The defendant
focuses on the damages awards, which are likely to differ among employees, without
adverse impact on the defendant or the class as a whole. However, the defendant may
be subject to differing and incompatible standards of conduct if the outcomes of separate
litigation resulted in different definitions of work or compensable activity. Under such
circumstances, the defendant may have to compensate employees working side-by-side
differently for the same activity. Accordingly, class certification under Rule 23(b)(1)
appears appropriate.
Filing No. 74, Findings and Recommendations at 13-14; see Filing No. 76, Mem. & Order. Dukes
involved subsection (b)(2), which involves injunctive relief. Dukes, 131 S. Ct. at 2559-60. “[I]ndividualized
monetary claims belong in Rule 23(b)(3).” Id. at 2558.
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The propriety of class certification in wage and hour cases that involve
recordkeeping violations should be assessed in light of the relaxed burden of proving
damages. See Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (noting that
the class certification analysis frequently entails overlap with the merits of the plaintiff’s
underlying claim, because the class determination generally involves considerations
that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of
action); Dukes, 131 S. Ct. at 2552 & n.6 (noting the necessity of touching on the merits).
The FLSA requires employers to pay their employees a specified minimum hourly wage
and at least one and one-half times their regular pay for hours worked in excess of 40
hours each week. 29 U.S.C. § 207(a). This does not mean (as Tyson appears to
suggest), however, that the plaintiffs must “prove each hour of overtime work with
unerring accuracy or certainty.” Pforr v. Food Lion, Inc., 851 F.2d 106, 108 (4th Cir.
1988); Donovan v. Tony and Susan Alamo Foundation, 722 F.2d 397, 403-404 (8th Cir.
1983) (an employer is charged with the duty of record-keeping so that the amount of
work performed and compensation earned may be calculated with precision, and an
employer failing to comply with this duty cannot complain if the record is deficient and
the court must resort to a reasonable “approximation” in computing the amount of
damages awarded).

“If the employer kept inaccurate or inadequate records, the

plaintiff’s burden of proof is relaxed, and, upon satisfaction of that relaxed burden, the
onus shifts to the employer to negate the employee’s inferential damage estimate.”
Oldham v. United States Postal Serv., 465 Fed. App’x 440, 444 (6th Cir. 2012) (italics in
original); see Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687 (1946). The
relaxed burden applies only to damages, not liability—it does not help plaintiffs show

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that there was a violation under the FLSA; it only allows them to prove damages by way
of estimate, if they had already established liability. O’Brien v. Ed Donnelly Enterprises,
Inc., 575 F.3d 567, 602 (6th Cir. 2009).
Unlike Dukes, which involved the subjective intent of thousands of managers,
this action involves a company-wide compensation policy that is uniformly applied to
production workers in Tyson’s Dakota City, Nebraska, plant.

In looking at the

commonality requirement in wage and hour law cases post-Dukes, courts have focused
on a common plan or company-wide policy to deny pay. See, e.g., Leyva v. Medline
Industries Inc., 716 F.3d 510, 513-514 (9th Cir. 2013) (finding an abuse of discretion to
deny class certification in wage and hour case where damages inquiry was highly
individualized, but common unlawful action was at issue); Wang v. Chinese Daily News,
Inc., 2013 WL 4712728, *4 (9th Cir. Sept. 3, 2013) (remanding for a determination of
whether the claims of the proposed class “depend upon a common contention capable
of classwide resolution—which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one stroke,”
noting that the plaintiff need not show every issue or even a preponderance of issues
were capable of classwide resolution—[“s]o long as there is ‘even a single common
question,’ a would-be class can satisfy the commonality requirement of Rule 23(a)(2)”);
McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, 672 F.3d 482, 490 (7th Cir. 2012)
(challenging company-wide policies in a class action is not forbidden by the Dukes
decision); Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 59-60 (1st Cir. 2013)
(allegations of across-the-board policy were sufficient to state a class action claim);
Vang v. Kohler Co., 488 Fed. App’x 146, *147 (7th Cir. 2012) (remanding to determine

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whether “one firm-wide policy or a congeries of supervisor-level practices” were at
issue).3
In contrast to Dukes, this case involves a uniform policy or practice of
compensating employees on “gang-time” and the primary issue with respect to all
members of the plaintiff class was whether their donning and doffing activities were
compensable. The court finds the plaintiffs provided sufficient proof of a uniform policy
of underpayment for donning and doffing activities, presenting a common question

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Numerous district court cases are to the same effect. See, e.g., Thompson v. Bruister and
Associates, Inc., 2013 WL 4507740, *11 (M.D. Tenn. August 23, 2013) (denying decertification, rejecting
theory that plaintiffs must “‘prove each hour of overtime work with unerring accuracy or certainty,’” and
applying Mount Clemens’ relaxed burden of proof since the employer kept inaccurate or inadequate
records); Alcantar v. Hobart Serv., 2013 WL 156530, *4 (C.D. Cal. Jan. 15, 2013) (holding Dukes
inapplicable and finding plaintiffs met their burden of establishing an approximate award for purposes of
awarding damages based on reasonable inferences provided by a representative sample of the class);
Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 615 (S.D.N.Y. 2012) (stating that “[t]he weight of
authority rejects the argument that Dukes bars certification in wage and hour cases”; Ripley v. Sunoco,
Inc., 287 F.R.D. 300, 308 (E.D. Pa. 2012) (finding that the class maintained a common claim that the
employer broadly enforced an unlawful policy denying employees earned overtime compensation and
that the policy was “the common answer that potentially drives the resolution of [the] litigation,” though
“each Plaintiff’s recovery might be different due to the number of hours that he or she worked without
proper compensation”); Myles v. Prosperity Mortgage Co., 2012 WL 1963390, *6 (D. Md. May 31, 2012)
(when differences go to the damages that each employee is owed, not to the common question of the
employer’s liability, plaintiffs have alleged a common injury that is capable of classwide resolution and
Dukes is distinguishable and does not preclude class certification); Driver v. AppleIllinois, LLC, 890 F.
Supp. 2d 1008, 1037 (N.D. Ill. 2012) (finding class could establish damages under using the Mount
Clemens burden-shifting framework); Mitchell v. Smithfield Packing Co., 2011 WL 4442973, *3 (E.D.N.C.
September 23, 2011) (stating “In Dukes, there was no single decision, policy or plan at issue” and noting
that “[w]hile differences may exist among the putative class members with regard to the type of protective
equipment worn, the method in which they donned and doffed the equipment, and whether they were
compensated for any donning and doffing time, these differences relate primarily to the issue of damages,
which ordinarily are insufficient to preclude class certification.”); Martinez-Hernandez v. Butterball, LLC,
2011 WL 4549606, *4 (E.D.N.C. Sept. 29, 2011) (noting in a donning and doffing case that “[t]he primary
issue with regard to all of the plaintiffs’ payday claims is whether their donning and doffing of protective
equipment and related activities constitutes ‘work’” and “[w]hile plaintiffs’ claims may involve some
individualized assessment of damages, this is not a situation where ‘the functional equivalent of a fullblown trial on . . . causation” would be required for each putative class member.’”); Nehmelman v. Penn
National Gaming, Inc., 822 F. Supp. 2d 745 (N.D. Ill. 2011) (finding Dukes distinguishable because
employer policy of rounding hours was “just the opposite” of the policy at issue in Dukes, and no
individualized inquiry regarding damages was necessary because “a review of the time cards should
reveal how much overtime the employee is entitled to each week”); Gilmer v. Alameda-Contra Costa
Dist., 2011 WL 5242977 at *7 (N.D. Cal. Nov. 2, 2011) (stating that Dukes does not stand for the
proposition that an employer is entitled to an individualized determination of an employee’s claim for back
pay in all instances in which a claim is brought as a collective or class action, pay practices challenged in
the case resulted from uniform policies, not discretionary decisions).
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subject to classwide proof.

The evidence included an expert time study and

representative testimony that established the approximate, average time that plaintiffs
were entitled to recover. Individual calculations of the exact amount due each class
member have been derived from Tyson’s wage records. Despite the fact that each
individual class member worked different hours and received a different amount of pay,
the common question that drove the litigation (and involves a common answer) is
whether the defendant’s “gang time” plus “K-code” policy denied the class members
overtime and minimum wage pay for compensable activities.
Similarly, the Supreme Court’s holding in Comcast v. Behrend is inapposite. In
Comcast, the Supreme Court held that a class seeking relief based on antitrust claims
“was improperly certified under Rule 23(b)(3),” because it failed to meet the
predominance requirement.

Comcast, 133 S. Ct. at 1432.

The Court found class

certification was improper because the plaintiffs were not able to “establis[h] that
damages [were] capable of measurement on a classwide basis,” and thus could not
show “Rule 23(b)(3) predominance.” Id. at 1433. “The predominance inquiry requires
an analysis of whether a prima facie showing of liability can be proved by common
evidence or whether this showing varies from member to member.” Halvorson v. AutoOwners Ins. Co., 718 F.3d 773, 778 (8th Cir. 2013). In order for a class to be certified,
each member must have standing and show an injury in fact that is traceable to the
defendant and likely to be redressed in a favorable decision. Id.
“Comcast holds that a damages suit cannot be certified to proceed as a class
action unless the damages sought are the result of the class-wide injury that the suit
alleges.” Butler v. Sears, Roebuck and Co., — F.3d —, —, 2013 WL 4478200, *3 (7th

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Cir. Aug. 22, 2013) (noting that “It follows that a model purporting to serve as evidence
of damages in this class action must measure only those damages attributable to that
theory.). The Comcast holding is not applicable to this case because the plaintiffs
proceeded on only one theory of recovery and damages were attributable to that theory.
See also Amgen, Inc. v. Connecticut Ret. & Trust Funds, 133 S. Ct. 1184, 1196
(February 27, 2013) (stating that Rule 23(b)(3) does not require a plaintiff seeking class
certification to prove that each element of her claim is susceptible to classwide proof,
only that common questions predominate over any questions affecting only individual
class members).
Further, Tyson’s argument that the plaintiffs have to prove the amount and extent
of each individual plaintiff’s work is misplaced. The cases that Tyson cites do not stand
for that proposition. In Blades v. Monsanto, 400 F.3d 562 (8th Cir. 2005), a price-fixing
conspiracy case in which the court determined that a class action was not appropriate
because proof of injury could not be established with proof common to the class, the
Eighth Circuit Court of Appeals noted that “[t]he market for seeds is highly individualized
depending on geographic location, growing conditions, consumer preference and other
factors.” Id. at 570. In addition, Espenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th
Cir. 2013), is inapposite. Espenscheid involved independent-contractor-type satellite
TV repairmen and installers who had been paid under a piece-rate system. Id. at 77273. The Seventh Circuit Court of Appeals affirmed the denial of class certification in that
case, finding that class certification would require thousands of evidentiary hearings. Id.
at 773. Notably, the court observed that Espenscheid was not the type of case (like this
one) where “‘it appear[s] that the calculation of monetary relief will be mechanical,

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formulaic, a task not for a trier of fact but for a computer program, so that there is no
need for notice . . . , the district court can award that relief without terminating the class
action and leaving the class members to their own devices.’” Id. (quoting Johnson v.
Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 372 (7th Cir. 2012)).
As the Seventh Circuit Court of Appeals recently stated in a class action case
remanded by the Supreme Court for reconsideration in light of Comcast Corp., 133 S.
Ct. at 1426:
It would drive a stake through the heart of the class action device, in cases
in which damages were sought rather than an injunction or a declaratory
judgment, to require that every member of the class have identical
damages. If the issues of liability are genuinely common issues, and the
damages of individual class members can be readily determined in
individual hearings, in settlement negotiations, or by creation of
subclasses, the fact that damages are not identical across all class
members should not preclude class certification. Otherwise defendants
would be able to escape liability for tortious harms of enormous aggregate
magnitude but so widely distributed as not to be remediable in individual
suits. As we noted in Carnegie v. Household Int’l., Inc., 376 F.3d 656, 661
(7th Cir.2004), “the more claimants there are, the more likely a class
action is to yield substantial economies in litigation. It would hardly be an
improvement to have in lieu of this single class 17 million suits each
seeking damages of $15 to $30. . . . The realistic alternative to a class
action is not 17 million individual suits, but zero individual suits, as only a
lunatic or a fanatic sues for $30” (emphasis in original). The present case
is less extreme: tens of thousands of class members, each seeking
damages of a few hundred dollars. But few members of such a class,
considering the costs and distraction of litigation, would think so meager a
prospect made suing worthwhile.
Butler v. Sears, Roebuck and Co., — F.3d —, 2013 WL 4478200, *5 (7th Cir. August
22, 2013). The court finds the action involves a company-wide compensation policy
uniformly applied to production workers and finds the evidence sufficient to establish
damages with the specificity required under Anderson v. Mount Clemens, 328 U.S. at

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686-88. Accordingly, the court finds Tyson’s Motion to Decertify should be denied.
Accordingly,
IT IS ORDERED:
1.

The plaintiffs’ Objection (Filing No. 338) to the Magistrate Judge’s Order

(Filing No. 281) is sustained;
2.

That portion of the order of the magistrate judge (Filing No. 281) that limits

class members to those employed by Tyson up to the date of class certification is
vacated.
3. The plaintiffs’ alternative Motion to Amend Class (Filing No. 338) is granted.
4. The class certified is amended as follows:
All current and former employees of Defendant Tyson’s Dakota
City, Nebraska, meat processing facility who have been employed by
Tyson at any time from January 17, 2004, to April 3, 2013, and are or
were paid under a “gang time” compensation system in the Slaughter or
Processing Departments.
5. Defendant’s Motion to Decertify (Filing No. 417) is denied.
Dated this 1st day of October, 2013.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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