DeKeyser et al v Thyssenkrupp Waupaca Inc
Filing
582
DECISION AND ORDER granting 547 Plaintiffs' Motion to Certify Class and granting-in-part and denying-in-part 541 Defendant's Motion to De-Certify Class. See order for detail. Proposed amended complaints for each subclass shall be filed no later than May 6, 2016. The case is set for a telephone status conference on May 16, 2016, at 9:30 a.m. Signed by Chief Judge William C Griesbach on 3/31/2016. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RYAN DEKEYSER, THOMAS COOPER,
HARLEY GRANIUS, AND CARLOS LOPEZ,
on behalf of themselves and others
similarly situated,
Plaintiffs,
v.
Case No. 08-C-0488
THYSSENKRUPP WAUPACA, INC.,
d/b/a Waupaca Foundry, Inc.,
Defendant.
DECISION AND ORDER GRANTING MOTION TO CERTIFY CLASS AND
DENYING MOTION TO DE-CERTIFY CLASS
Plaintiffs are past and current workers in Defendant Waupaca Foundry Inc.’s iron foundries
who seek to be paid for time spent “donning and doffing” (changing into and out of) work clothes
and protective gear, and for time spent showering after their shifts in facilities provided by Waupaca.
In 2012, I granted summary judgment in favor of Waupaca on Plaintiffs’ claims for unpaid wages
and overtime under the Fair Labor Standard Act and its Wisconsin-law counterpart. ECF Nos. 427
& 437. The Seventh Circuit reversed, concluding summary judgment was not proper based on a
factual dispute as to whether such changing and showering were “required by the nature of the
work” in the foundries, and thus compensable under these laws. DeKeyser v. Thyssenkrupp
Waupaca, Inc., 735 F.3d 568, 571 (7th Cir. 2013).
The case is back before me on Plaintiffs’ motion to certify the Wisconsin law claims as a class
action under Federal Rule of Civil Procedure 23, and on Waupaca’s motion to de-certify the
previously “conditionally” certified FLSA collective action, under 29 U.S.C. § 216(b). For the
reasons below, Plaintiffs’ motion will be granted and Waupaca’s motion granted-in-part and deniedin-part.
BACKGROUND
This case involves six iron foundries, three located in two plants in Waupaca, Wisconsin
(“Plant 1” and “Plant 2/3”), and one located in each of the cities of Marinette, Wisconsin (“Plant 4”),
Tell City, Indiana (“Plant 5”), and Etowah, Tennessee (“Plant 6”). Plaintiffs asserted the FLSA
claims on behalf of all “similarly situated” workers in these foundries, and they asserted the
Wisconsin law claims on behalf of similarly situated workers in the Wisconsin foundries. This Court
previously conditionally certified a collective action under the FLSA, 29 U.S.C. § 216(b), based on
a preliminary showing that the Plaintiffs were indeed similarly situated to the proposed FLSA class
members. ECF No. 91 at 4 (describing two-step approach to certification of FLSA collective
action). The proposed class (hereinafter “the FLSA class”) was defined as all non-exempt, hourly
paid, production workers employed by Waupaca at the six foundries at any time since December 18,
2005. ECF Nos. 91 at 9; 94 at 1. Notices were disbursed, 486 individuals opted into the FLSA
class, and 4 subsequently withdrew, leaving the FLSA class comprised of 482 current or former
workers. Def.’s Br. in Supp. of Mot. to De-Certify at 3 & n.2, ECF No. 554. These workers
perform many different jobs in different departments of the foundries. Waupaca seeks decertification of the FLSA class.
Plaintiffs oppose Waupaca’s motion to decertify the FLSA class and have filed their own
motion to certify a Rule 23 class including production workers in the four Wisconsin foundries.
Plaintiffs define the proposed class (hereinafter “the Wisconsin class”) as follows: “All persons who
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are or were employed by Waupaca Foundry at any time after June 4, 2006, as nonexempt, hourly
paid, production employees (defined as employees in the Millroom, Coreroom, Disa, Shakeout, Melt,
Maintenance, and Melt Maintenance departments) at plants located in Waupaca, Wisconsin, or
Marinette, Wisconsin, and who are not or have not been paid for their on-site donning, doffing, or
showering.” ECF No. 547 at 1. Plaintiffs submit that this class includes 4,104 workers. Pls.’ Br.
in Supp. Mot. for Class Cert. at 15, ECF No. 438.
ANALYSIS
I.
Wisconsin Class/Rule 23
“A district court may certify a class of plaintiffs if the putative class satisfies all four
requirements of Federal Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and
adequacy of representation—and any one of the conditions of Rule 23(b).” Siegel v. Shell Oil Co.,
612 F.3d 932, 935 (7th Cir. 2010).
The party seeking certification bears the burden of
demonstrating compliance with Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct.
2541, 2551 (2011). Here, Plaintiffs seek certification under both Rule 23(b)(2) and Rule 23(b)(3),
discussed below.
A. Rule 23(a)
As Plaintiffs estimate the Wisconsin class includes more than 4,000 workers, the numerosity
requirement (“the class is so numerous that joinder of all members is impracticable”) is not in
dispute.
The commonality requirement is that “there are questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). Even a single such common question is enough to satisfy Rule
23(a)(2), and the existence of a mixture of common and individual questions presents an issue of
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whether common questions “predominate” over individual questions under Rule 23(b)(3), not an
issue of commonality under Rule 23(a)(2). See Wal-Mart Stores, 131 S. Ct. at 2556. At the same
time, the Supreme Court has warned that because any competently crafted class complaint literally
raises common questions, what matters for commonality purposes is whether the classwide
proceeding will generate common answers to those questions. Id. at 1551.
Here, the obvious common question is whether the donning, doffing and changing activities
are compensable under the FLSA and Wisconsin laws.1 More specifically, the question is whether
such activities are “required by the nature of the work” in Waupaca’s foundries, and more
specifically yet, to the extent Waupaca does not require its employees to don and doff their clothes
at work, the question at trial will be whether Plaintiff can establish that “changing clothes and
showering at work will significantly reduce the risk to the health of the employee.” ECF No. 504
at 9. Plaintiffs maintain that this basic question concerning Waupaca’s liability can be resolved with
common evidence, namely written materials Waupaca provided to workers advising of the hazards
of some of the chemicals workers in the foundries might be exposed to, and, more importantly, the
expert opinion of an industrial hygienist hired by Plaintiffs which holds that such changing and
showering will indeed “substantially decrease” health risks to foundry workers and their families.
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Plaintiffs argue the Wisconsin liability standard under Wis. Admin. Code § DWD
272.12(2)(e)1. is more employee-friendly than that under the FLSA. I have previously concluded
otherwise, ECF No. 437, but Plaintiffs argue my decision was called into question by
subsequently-decided Wisconsin lower court decisions. ECF No. 548 at 22. However,
Plaintiffs’ briefs were submitted before the Wisconsin Supreme Court decided United Food &
Commercial Workers Union, Local 1473 et al. v. Hormel Foods Corporation, in which the
Court suggests the Wisconsin standard is substantially similar to the FLSA standard, 2016 WI
13, ¶ 43 n.13 & ¶ 69 (lead opinion), and because I conclude class certification is appropriate even
in light of the supposedly more demanding FLSA standard, there is no need at the moment to
address Plaintiffs’ position (if it is still their position) regarding the Wisconsin liability standard.
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ECF No. 552-14, ¶ 7A & B.
Waupaca argues Plaintiffs are trying to bring “toxic tort” claims on a classwide basis. In
other words, Waupaca’s position is that Plaintiffs’ and the class members’ claims are inherently
individualized by nature, requiring each claimant to show that his or her changing and showering
before leaving work was required given such factors as his or her individual health history, his or her
“exposure profile” (e.g. the intensity, frequency, and duration of exposures to hazardous materials),
and even the length of his or her commute home from work. See ECF No. 554 at 9. Waupaca
maintains that such an individualized showing is called for in order for a claimant to sustain the
burden to show that on-site changing and showering would indeed significantly reduce the healthrelated risks of working in a foundry.
But Plaintiffs’ are not seeking damages for “toxic tort.” Indeed, Plaintiff’s position is that
the preventative measures of changing clothes and showering at work are reasonably necessary to
avoid injury from “toxic tort.” The question for trial is not whether the class members are currently
suffering from illnesses and diseases caused by exposure to hazardous materials, but whether
changing clothes and showering at work are reasonably necessary to protect human beings from such
illnesses and diseases. Thus, the inquiry is not the individualized one that Waupaca claims; it is the
more general question of whether the conditions that production workers are exposed to in the plants
warrant the safety precautions for which Plaintiffs seek compensation.
If Waupaca were correct about the individualized nature of the liability standard, class
certification would seem to never be appropriate for this type of case, i.e., where the precautions at
issue are not required by law or by the employer. In fact, the exacting burden of proof demanded
by Waupaca would seem to doom even such claims brought individually, because workers have no
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way of knowing exactly what or how much hazardous material they are actually exposed to. It is
for that reason that Plaintiffs’ expert opines that an “individualized risk assessment” would not be
proper with respect to workers in Waupaca’s foundries, and that the only reasonable thing to do in
the workers’ position, given the potential of exposure to materials known to be dangerous, is to
shower and change clothes at work. ECF No. 552-14, ¶¶ 7E, 39. Of course, the jury or other
factfinder will not be required to accept Plaintiffs’ expert’s opinion with respect to the dangerousness
of working in Waupaca’s foundries and the necessity of the changing and showering at work. It may
instead disregard Plaintiff’s expert’s opinion based on opinions provided by experts hired by the
defense or based other evidence in the case. In any event, the issue with respect to commonality is
simply whether Plaintiffs have produced common evidence tending to prove their common assertion,
and the opinion of their expert is just that.
The typicality requirement is that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Plaintiffs’ claims need not
be identical to the Wisconsin class members’ claims, but Plaintiffs’ claims must have the same
essential characteristics as the Wisconsin class members’ claims.
“This boils down to two
considerations: whether the same event, practice, or course of conduct gives rise to the claims of the
class and whether the claims are grounded in the same legal theory.” Curry v. Kraft Foods Global,
Inc., No. 10-1288, 2011 WL 4036129, at *7 (N.D. Ill. Sept. 12, 2011) (citing Arreola v. Godinez,
546 F.3d 788, 798 (7th Cir. 2008); Oshana v. Coca–Cola Co., 472 F.3d 506, 514 (7th Cir. 2006);
and De La Fuente v. Stokely–Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). The answer to
both questions is clearly “yes” here, where all claims arise out of the same Waupaca practice or
course of conduct not to pay employees for time spent changing or showering, and where all claims
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are based on the same legal theory that such activities were “required by the nature of the work” and
thus compensable under the FLSA and Wisconsin law.
Waupaca vigorously disputes that the typicality requirement is met, noting differences in the
workers’ employment histories, health histories and habits, exposure profiles, the manner in which
they were paid, etc., ECF No. 563 at 17–20; ECF No. 554 at 5–14, 10–21, but these variations are
more germane to Waupaca’s commonality argument addressed above and its Rule 23(b)(3) argument
addressed below. Simply put, “[f]actual distinctions among the different class members do[] not
prevent Plaintiffs from meeting the typicality requirement so long as a similar legal theory binds the
named Plaintiffs and the other class members.” Curry, 2011 WL 4036129, at *7; see also De La
Fuente, 713 F.2d at 232 (“[S]imilarity of legal theory may control even in the face of differences of
fact.”).
The adequacy of representation requirement is that “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Again there are two
considerations: “the adequacy of the named plaintiff's counsel, and the adequacy of representation
provided in protecting the different, separate, and distinct interest of the class members.” Retired
Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (quotation omitted).
There is no dispute that Plaintiffs have retained qualified counsel. Waupaca disputes the adequacy
of representation of class members’ interests, however, on two grounds. ECF No. 563 at 22–23;
see also ECF No. 554 at 23–24. First, Waupaca notes none of the proposed class representatives
currently works at “Plaint 1,” one of the foundries located in Waupaca, Wisconsin, and that former
employees will not adequately represent the interests of current employees. However, the proposed
class representatives do include current employees Thomas Cooper and John Cummings and former
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employee Debra Wilde, who previously worked at Plant 1, ECF No. 548 at 17, so these individuals
will adequately represent the interests of the proposed class both with respect to current workers and
with respect to Plant 1 workers.
Second, Waupaca argues Plaintiffs “conceded” they were only seeking “modest” wages
estimated at 10 minutes per day, thereby violating their fiduciary duty to the Wisconsin class by
“throwing away,” according to Waupaca, compensation for any workers who took longer than 10
minutes. ECF No. 563 at 22–23. But Plaintiffs have not conceded any particular amount of time
or disclaimed any entitlement to wages; the 10 minute figure was merely used to provide an
estimated damage amount for reference in relation to, among other things, Plaintiffs’ Rule 23(b)(2)
argument that their claims for injunctive relief are as important as their claims for damages.
Accordingly, all four conditions of Rule 23(a) are satisfied, and the question becomes
whether either or both of the requirements in Rule 23(b)(2) and (3) are also satisfied.
B. Rule 23(b)
Plaintiffs seek and Waupaca opposes certification under both Rule 23(b)(2) and (b)(3). The
former provision authorizes certification if “the party opposing the class has acted or refused to act
on grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.” Waupaca cites Jefferson v.
Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir. 1999), for the proposition that where compensatory
damages are also sought, certification under Rule 23(b)(2) is likely to be improper. This is because
claims for compensatory damages “‘introduce new and substantial legal and factual issues’ requiring
the Court to find an actual injury based on individualized proof for each class member.” ECF No.
563 at 24 (citing Jefferson, 195 F.3d at 898).
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It is not clear that Jefferson would bar certifying the class under Rule 23(b)(2) here,
however, since the damages Plaintiffs seek are essentially back pay awards. As the Jefferson court
noted, “back pay is a form of equitable relief, but this relief was treated as incidental to the
injunction—and, because it was deemed equitable, neither side had a right to a jury trial, so that
handling the suit as a consolidated proceeding in equity did not threaten anyone’s rights.” Id. at 896.
In Jefferson, the damages sought by the plaintiffs included both compensatory damages and punitive
damages. Because that is not the case here, I conclude that certification under Rule 23(b)(2) is
permissible.
Certification is also proper under Rule 23(b)(3). That subsection applies where “the court
finds that the questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.” Given my conclusion above that the central
liability question in this case can be answered with common evidence, the first question is whether
that question “predominates” over, or can be considered more important than, individualized
questions. See Tyson Foods, Inc. v. Bouaphakeo, --- S. Ct. ---- , 2016 WL 1092414, at *7 (March
22, 2016). Frankly, the importance of the common question is hard to overstate in this case. Cf. id.
at *7 (“[T]he parties do not dispute that there are important questions common to all class members,
the most significant of which is whether time spent donning and doffing the required protective gear
is compensable work under the FLSA.”). It is the central issue the parties have spent years litigating.
In its response regarding Rule 23(b)(3), Waupaca reiterates its view that the liability issue requires
considering each individual claimant’s varied work and health histories in conjunction with their
unique exposure/dose scenarios and commute times, the same argument I rejected above. Beyond
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that, Waupaca argues calculating individual class members’ damages will take an extraordinary
amount of time, considering that individuals will have engaged in varying amounts of compensable
time and were and/or are paid differently. But these are mere mathematical computations, and “[i]t
has long been recognized that the need for individual damages determinations at [a] later stage of
the litigation does not itself justify the denial of certification.” Mullins v. Direct Digital, LLC, 795
F.3d 654, 671 (7th Cir. 2015).
Finally, the superiority requirement is that the class action is superior to other methods of
adjudication. Rule 23 directs courts to consider such factors as class members’ interests in
individually controlling the prosecution of the actions, the extent and nature of any litigation
concerning the controversy already begun by class members, the desirability or undesirability of
concentrating the litigation of the claims in the particular forum, and the likely difficulties in
managing a class action. Rule 23(b)(3)(A)–(D). Although Waupaca correctly points out that there
will be difficulties in managing the Wisconsin class given its size and the fact that each claimant will
conceivably (if Plaintiffs are successful as to liability) be entitled to a unique amount of unpaid wages
and/or overtime, the rest of the factors favor the class action. Moreover, contrary to Waupaca’s
arguments, Waupaca’s rights under the Wisconsin Constitution do not prohibit bifurcating the
liability and damages issues for separate proceedings. Int’l Fin. Servs. Corp. v. Chromas Tech.
Canada, Inc., 356 F.3d 731, 735 (7th Cir. 2004) (“Even where, as here, a district court is applying
the substantive law of a state, federal procedural law controls the question of whether there is a right
to a jury trial.”). For all of these reasons, I conclude that Rule 23 is satisfied, and I therefore will
certify the Wisconsin class as defined below.
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II.
FLSA Class
Naturally, Waupaca’s arguments for de-certification of the FLSA class mirror its arguments
against certification of the Wisconsin class. The FLSA authorizes employees to bring suit against
an employer individually and on behalf of “similarly situated” employees. 29 U.S.C. § 216(b).
Factors relevant to the FLSA certification question include any disparate factual and employment
settings of the individual plaintiffs, the various individualized defenses available to the defendant, and
fairness and procedural considerations. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1102–03 (10th Cir. 2001) (cited approvingly in Espenscheid v. DirectSat USA, LLC, 705 F.3d 770,
771–72 (7th Cir. 2013)). The Seventh Circuit has indicated in dicta that the standards for
certification under § 216 and Rule 23 should be treated as the same, Espenscheid, 705 F.3d at
771–772 (“[T]here isn't a good reason to have different standards for the certification of the two
different types of action . . . . Simplification is desirable in law, especially in the present context,
because joining a collective action and a class action or actions in one suit, as in this case, is both
common and, we have held, permissible.”), and at a minimum logic would seem to dictate that a class
satisfying Rule 23(a) and Rule 23(b)(3), including the requirements of commonality, typicality,
adequacy of representation, predominance, manageability, etc., also satisfies the FLSA’s less onerous
“similarly situated” requirement (even if it is conceivable that the converse may not always be true).
Of course, there is the fact that the FLSA class conditionally certified in this case is of a
different scope than the Wisconsin class. The FLSA class includes all production workers in the six
foundries since December 2005; the Wisconsin class includes all production workers in the four
Wisconsin foundries since June 2006. There is no reason to believe that the different starting dates
will affect the class certification analysis, however. Notwithstanding the foregoing, Plaintiffs do not
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oppose decertifying the workers from the non-Wisconsin foundries included in the FLSA class. Pls.’
Br. in Opp. to Mot. to De-certify at 29, ECF No. 559 (“The parties agree that [the] Indiana and
Tennessee opt-ins do not belong in this lawsuit.”).
This presents an unusual situation. Plaintiffs previously moved to sever the non-Wisconsin
opt-in workers and transfer those portions of the case to district courts in their home states.
Waupaca opposed Plaintiffs’ motion and convinced the Court that it would suffer prejudice if it was
required to defend essentially the same case in three different venues. Waupaca made clear that it
expected to defeat Plaintiffs’ motion to certify any class under Rule 23 and to successfully move to
de-certify the FLSA collective class the Court had conditionally certified at the inception of the
action. Based on the circumstances of the case at that time, the Court denied Plaintiff’s motion to
sever and transfer. Waupaca’s expectations have not been realized, however, and thus the
circumstances have changed. The effect of decertifying the non-Wisconsin opt-ins would be
dismissal of their claims which would require that they start over from scratch in the district courts
in the states where they reside. This would require counsel to file new lawsuits on behalf of some
of the non-Wisconsin opt-ins, provide notice of the proposed class and gather hundreds of new optin forms from workers who have already opted in to this lawsuit. It would also introduce questions
of whether applicable statutes of limitations have been tolled by virtue of the worker’s prior decisions
to opt in to this lawsuit.
Taking these matters into consideration, the Court concludes that Plaintiffs’ request to sever
and transfer the non-Wisconsin portions of the case to the appropriate district courts in Indiana and
Tennessee is the more prudent course. The residence of those workers and location of the plants
where they work make those districts more convenient forums now that the non-Wisconsin opt-ins
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have been decertified from initial collective action class and Plaintiffs have not sought to include
them in the class they have requested the Court to certify under Rule 23. The Court will therefore
follow the procedure utilized by the court in Medina v. Happy’s Pizza Franchise, Inc., Case No. 103148, 2012 WL 1094353 (N.D. Ill. Feb. 3, 2012), and partially decertify the FLSA collective action
into three classes based on the federal judicial district in which they worked. Upon Plaintiffs filing
amended complaints for each sub-class, the Court will transfer the non-Wisconsin cases to the
appropriate district.
CONCLUSION
For the reasons above, Plaintiffs’ motion to certify the Wisconsin class under Rule 23 is
GRANTED and Waupaca’s motion to de-certify the FLSA class is GRANTED-IN-PART and
DENIED-IN-PART.
The Wisconsin class is defined as follows: All persons who are or were employed by
Waupaca Foundry at any time after June 4, 2006, as nonexempt, hourly paid, production employees
(defined as employees in the Millroom, Coreroom, Disa, Shakeout, Melt, Maintenance, and Melt
Maintenance departments) at plants located in Waupaca, Wisconsin, or Marinette, Wisconsin, and
who are not or have not been paid for their on-site donning, doffing, or showering.
The FLSA class is divided into three sub-classes with the opt-in workers in Indiana and
Tennessee each comprising a separate class from the Wisconsin class. The Wisconsin FLSA class
is now defined as follows: All persons who are or were employed by Waupaca Foundry at any time
after December 18, 2005, as nonexempt, hourly paid, production employees (defined above) at
plants located in Waupaca, Wisconsin, or Marinette, Wisconsin, and who are not or have not been
paid for their on-site donning, doffing or showering. As to the Indiana and Tennessee sub-classes,
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the courts to which they are transferred will address further certification questions as they arise.
Proposed amended complaints for each subclass shall be filed no later than May 6, 2016. The case
is set for a telephone status conference on May 16, 2016, at 9:30 a.m.
SO ORDERED this 31st
day of March, 2016.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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