DeKeyser et al v Thyssenkrupp Waupaca Inc

Filing 632

DECISION AND ORDER signed by Chief Judge William C Griesbach on 12/19/2017 denying Defendant's 620 Motion to Dismiss. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

RYAN DEKEYSER, et al.,
Plaintiffs,
v.

Case No. 8-C-488

THYSSENKRUPP WAUPACA INC.
d/b/a WAUPACA FOUNDRY INC.,
Defendant.

DECISION AND ORDER

This case has had a rather long history. Plaintiffs, current and former employees of
Defendant ThyssenKrupp Waupaca Inc. d/b/a Waupaca Foundry Inc., commenced this action on
June 4, 2008, seeking relief relating to time spent changing into and out of work clothes and
protective gear as well as for time spent showering after their shifts at Defendant’s Wisconsin,
Indiana, and Tennessee facilities. On July 16, 2008, Defendant filed a motion to dismiss, arguing (1)
the FLSA preempted Plaintiffs’ state and common law claims; (2) there was no private right of action
to enforce record keeping violations; (3) the complaint failed to state plausible causes of action for
unpaid wages under Wisconsin statutes; and (4) the complaint failed to state a plausible cause of
action for breach of contract. The motion was granted as to the record keeping claim but denied in
all other respects. ECF No. 82.
The case was conditionally certified in December 2008, and in July 2012, the court granted
Defendant’s motion for summary judgment, finding that Plaintiffs’ time spent engaging in on-site
decontamination activities was not compensable work under the FLSA. Plaintiffs appealed the

decision to the Seventh Circuit. In October 2013, the Seventh Circuit reversed and remanded for
further proceedings. DeKeyser v. Thyssenkrupp Waupaca, Inc., 735 F.3d 568 (7th Cir. 2013)
(DeKeyser I). On November 25, 2014, the court issued a decision defining the legal standard it
would apply to determine whether donning and doffing clothing and showering at Defendant’s plants
are activities required by the nature of the work: “[t]o prevail at trial, Plaintiffs must convince the
finder of fact that changing clothes and showering at work will significantly reduce the risk to the
health of the employee.” ECF No. 504 at 9. Defendant filed a motion for reconsideration of the
court’s November 25, 2014 order, arguing that the court’s legal standard was inconsistent with the
Supreme Court’s recent decision in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. ___, 135 S.
Ct. 513 (2014). While the court recognized that the principles discussed in Integrity Staffing applied
to the case, it found that the decision did not affect the legal standard created by the court and denied
the motion. ECF No. 529 at 4–5. Defendant subsequently moved to certify an interlocutory appeal
from the court’s decision denying reconsideration, which the court denied on April 10, 2015. ECF
No. 537.
On March 31, 2016, the court granted Plaintiffs’ motion to certify the Wisconsin law claims
as a class action and granted-in-part and denied-in-part Defendant’s motion to decertify the
previously conditionally certified FLSA collective action. The court divided the FLSA class into
three sub-classes—Wisconsin workers, Indiana workers, and Tennessee workers—and transferred
the non-Wisconsin cases to the appropriate districts. ECF No. 582. Defendant appealed the court’s
certification decision to the Seventh Circuit pursuant to Rule 23(f) of the Federal Rules of Civil
Procedure. The Seventh Circuit affirmed, finding that this court “did not err in concluding that the
plaintiffs have produced common evidence tending to prove their common assertion, as Rule 23 and
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section 216(b) require.” DeKeyser v. ThyssenKrupp Waupaca, Inc., 860 F.3d 818, 922 (2017)
(DeKeyser II). On September 7, 2017, Plaintiffs filed an amended complaint on behalf of the
Wisconsin plaintiffs in this case and separate complaints in the United States District Court for the
Southern District of Indiana on behalf of the Indiana plaintiffs as well as in the United States District
Court for the Eastern District of Tennessee on behalf of the Tennessee plaintiffs. This case is now
before the court on Defendant’s motion to dismiss Plaintiffs’ amended complaint. For the following
reasons, the motion will be denied.
LEGAL STANDARD
In considering a motion to dismiss, the court construes the allegations in the complaint in the
light most favorable to the plaintiff, accepts all well-pleaded facts as true, and draws all inferences
in favor of the non-moving party. Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 533 (7th Cir.
2011). To state a cognizable claim under the federal notice pleading system, the plaintiff is required
to provide a “short and plain statement of the claim showing that [she] is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts and her statement need only
“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, a complaint that offers “labels and conclusions” or a “formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
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550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (citation omitted). “[T]he plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678.
ANALYSIS
Defendant raises two arguments in its motion to dismiss: (1) Plaintiffs’ FLSA claims fail as
a matter of law under Integrity Staffing and (2) Plaintiffs’ state law claims fail as a matter of law
because the FLSA preempts them, or alternatively, the state law claims fail to state cognizable
claims. These arguments are substantially similar to those asserted in Defendant’s first motion to
dismiss as well as its motion for reconsideration. Thus, Plaintiffs maintain that the law of the case
doctrine prevents Defendant from reasserting its Integrity Staffing argument and argue that the court
should not reconsider these issues in the instant motion.
“The law-of-the-case doctrine generally provides that when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages in the same case.”
Musacchio v. United States, ___ U.S. ___, 136 S. Ct. 709, 716 (2016) (internal quotation marks
omitted); see also United States v. Story, 137 F.3d 518, 520 (7th Cir. 1998). Plaintiffs argue that
Defendant seeks reconsideration of the compensability legal standard governing this case, which has
been adopted and applied by the Seventh Circuit in resolving Defendant’s Rule 23(f) appeal. Pls.’
Br. in Opp’n at 12–13, ECF No. 628. Yet, the Seventh Circuit’s decision regarding certification did
not discuss or mention Integrity Staffing. Because the Seventh Circuit did not decide whether
Plaintiffs’ FLSA claims fail in light of Integrity Staffing, the law of the case doctrine does not apply.
See Roboserve, Inc. v. Kato Kagaku Co., Ltd., 121 F.3d 1027, 1032 (7th Cir. 1997) (“Law of the
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case is limited insofar as it applies only to issues that were decided in the former proceeding but not
to questions which might have been decided but were not.”).
In addition, this court is not prevented from reconsidering its prior rulings. Although
Defendant’s arguments are presented as a motion to dismiss the amended complaint, the court has
already addressed these arguments previously in deciding the motion to dismiss the original
complaint and will therefore apply the standard used to decide motions for reconsideration to this
case. While a court may “revisit a prior decision of its own or a coordinate court, it ordinarily should
not do so ‘in the absence of extraordinary circumstances such as where the initial decision was
clearly erroneous and would work a manifest injustice.’” In re Mathias, 867 F.3d 727, 730 (7th Cir.
2017) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)); see also
Fed. R. Civ. P. 54(b) (providing that non-final order “may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’ rights and liabilities”). Moreover, a motion
to reconsider is not a proper vehicle for rehashing arguments that the court previously rejected or
for introducing new legal theories. See Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90
F.3d 1264, 1270 (7th Cir. 1996). “Instead, motions for reconsideration under Rule 54(b) serve the
limited function of correcting manifest errors of law or fact or to present newly discovered
evidence.” Patrick v. City of Chicago, 103 F. Supp. 3d 907, 911–12 (N.D. Ill. 2015). A manifest
error of law or fact occurs “when there has been a significant change in the law or facts since the
parties presented the issue to the court, when the court misunderstands a party’s arguments, or when
the court overreaches by deciding an issue not properly before it.” United States v. Ligas, 549 F.3d
497, 501–02 (7th Cir. 2008) (citing Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d
1185, 1191 (7th Cir. 1990)).
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Here, Defendant contends the court misread Integrity Staffing and since this court’s decision,
multiple courts have relied on Integrity Staffing to reject FLSA claims for completing “off the clock”
activities. Def.’s Br. at 6–7, ECF No. 621. By way of background, the issue in Integrity Staffing
was whether the time that plaintiff warehouse workers spent waiting to undergo, and actually
undergoing, security screening required by the defendant at the ends of their shifts was compensable
by the FLSA. 135 S. Ct. at 515. The Court began its analysis by noting that, under the Portal-toPortal Act, a principal activity includes all activities that are “an integral and indispensable part” of
that activity. Id. at 517. It found that an activity is “integral and indispensable to the principal
activities that an employee is employed to perform if it is an intrinsic element of those activities and
one with which the employee cannot dispense if he is to perform his principal activities.” Id.
Applying this test, the Court concluded the security screenings were noncompensable postliminary
activities because they were not the principal activity the employees were employed to perform. Id.
It reasoned that the employer-required screenings were not integral to the work the workers were
hired to perform, namely retrieving products from warehouse shelves and packaging those products
for shipment, because they were not an intrinsic element of those duties. Id. The Court also found
that the screenings were not indispensable because the employer could have eliminated the screenings
without impairing the workers’ ability to perform their work. Accordingly, the Court concluded the
security screenings were noncompensable postliminary activities. Id.
Defendant asserts that in light of Integrity Staffing, Plaintiffs’ donning and doffing and
showering after their shifts are noncompensable because they were not the principal activity the
workers were employed to perform, that is, to make iron castings. But the mere fact that donning,
doffing and showering are not the principal activity the workers were employed to perform does not
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mean they are not compensable. Integrity Staffing did not overrule Steiner v. Mitchell, 350 U.S.
247, 249, 251 (1956), which held that where such activities are compelled by health concerns they
are compensable. Indeed, the Integrity Staffing Court reaffirmed Steiner’s holding that activities
related to workers safety do satisfy the “integral and indispensable” test: “For example, we have held
compensable the time battery-plant employees spent showering and changing clothes because the
chemicals in the plant were ‘toxic to human beings’ and the employer conceded that ‘the clotheschanging and showering activities of the employees [were] indispensable to the performance of their
productive work and integrally related thereto.’” Id. at 518 (alterations in original) (quoting Steiner,
350 U.S. at 249, 251). In other words, changing and showering are principal activities when the
nature of the work creates a significant risk to the workers’ health and participating in those
decontamination activities reduces that risk.
Plaintiffs’ Amended Complaint alleges that time spent showering after their shifts is
“necessary and indispensable to their work, as the employees work with toxic or corrosive chemicals,
and are exposed to silica and other foundry dust that adheres to the skin and clothing, presenting a
health hazzard to the employees and any family members who come into contact with it.” Am.
Compl. ¶ 23C, ECF No. 606. To be sure, unlike Steiner, Defendant here contests this allegation and
claims that donning, doffing, and showering are not necessary to reduce a serious health risk. But
the fact that Defendant contests Plaintiffs’ allegation is irrelevant at this stage of the proceedings.
In deciding a motion to dismiss, the court is required to accept the well-pleaded allegations of the
complaint. Estate of Davis, 633 F.3d at 533. At this stage, the court cannot simply reject Plaintiffs’
allegations just because Defendant denies them. Nor is the court inclined to limit Plaintiffs’ claim
by holding that only end-of-shift activities are compensable. Plaintiffs have stated a claim under the
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FLSA, and that is enough to deny Defendants’ motion. As a result, Plaintiffs’ FLSA claims will not
be dismissed.
Next, Defendant asserts that Plaintiffs’ state law claims fail as a matter of law because the
FLSA preempts them, or alternatively, the state law claims fail to state cognizable claims. To repeat,
Defendant raised these arguments in its motion to dismiss Plaintiffs’ original complaint. The court
previously denied Defendant’s preemption argument in its November 26, 2008 decision and order.
As noted in that decision,
It is clear that in enacting the FLSA, Congress did not explicitly preempt state wage
and hour laws. Indeed, the FLSA contains a “savings clause” that expressly allows
states to provide workers with more beneficial minimum wages and maximum
workweeks than those mandated by the FLSA itself. See 29 U.S.C. § 218(a) (“No
provision of this chapter or of any order thereunder shall excuse noncompliance with
any . . . State law or municipal ordinance establishing a minimum wage higher than
the minimum wage established under this chapter or a maximum workweek lower
than the maximum workweek established under this chapter . . . .”). Given this
express statement of Congress’ intent not to displace state laws granting workers
higher minimum wages or a shorter maximum workweek, it is clear that the FLSA
would preempt only state laws that mandated lower minimum wages or longer
maximum workweeks. Since the parties agree that the Wisconsin wage and hour
laws, Wis. Stat. chs. 103 and 104 and §§ 109.01-109.11, are not less generous than
those of the FLSA, it seems clear that the FLSA does not displace the state law.
Rather, it would seem that state law may offer an alternative legal basis for equal or
more generous relief for the same alleged wrongs.
It thus follows that Waupaca’s substantive preemption argument must fail. If, as
Plaintiffs have alleged, Waupaca’s policies are not only in violation of the FLSA, but
also violate Wisconsin’s wage and hour laws, and constitute a breach of contract,
nothing in the language or purpose of the FLSA precludes Plaintiffs from proceeding
on those claims in this action, as well. There is no need to consider implied
preemption, since Congress expressly stated its intent not to preempt the field and
to allow continued enforcement of state laws mandating more generous wage and
hour regulations. And of course, contractual agreements providing for equal or
greater benefits would also be enforceable. Kasten v. Saint-Gobain Performance
Plastics Corp., 2007 WL 5414927, *1 (W.D. Wis. Dec. 7, 2007). Plaintiffs have
alleged, wholly aside from the FLSA, that Waupaca contractually agreed to pay them
for the hours they worked and that Waupaca breached that contract. (Compl. ¶¶618

62.) . . . Rule 8(e)(2) provides that a party may plead alternative theories of relief
under both legal and equitable grounds. Fed. R. Civ. P. 8(e)(2). While Plaintiff may
not obtain double recovery, he is free to pursue relief under the FLSA as well as
statutory and contract claims. See Marquez v. Partylite Worldwide, Inc., 2007 WL
2461667, *6 (N.D. Ill. Aug. 27, 2007) (“While Plaintiff may not obtain double
recovery, he is free to pursue relief under the FLSA as well as unjust enrichment and
quantum meruit.”).
ECF No. 82 at 6–7. Defendant concedes the Seventh Circuit has not addressed the extent to which
the FLSA preempts state law claims. Def.’s Br. at 19. Instead, it argues that since this court’s
decision, “district courts in the Seventh Circuit have routinely recognized that the FLSA preempts
duplicative state common law claims.” Def.’s Br. at 19–20 (citing DeMarco v. Nw. Mem.
Healthcare, 2011 U.S. Dist. LEXIS 88541 (N.D. Ill. Aug. 10, 2011); Deschepper v. Midwest Wine
& Spirits, Inc., 84 F. Supp. 3d 767 (N.D. Ill. 2015); Richmond v. Adv. Pain Consultants, S.C., 2015
U.S. Dist. LEXIS 109319 (N.D. Ill. Aug. 18, 2015); Kyriakoulis v. DuPage Health Ctr., Ltd., 2011
U.S. Dist. LEXIS 63905 (N.D. Ill. June 9, 2011); Farmer v. DirectSat U.S., 2010 U.S. Dist. LEXIS
105738 (N.D. Ill. Oct. 4, 2010); Nicholson v. UTi Worldwide, Inc., 2010 U.S. Dist. LEXIS 138468
(S.D. Ill. Feb. 12, 2010)). This court, however, is not bound by the opinion of another district court,
and the cases Defendant cites do not alter the analysis or outcome of my prior decision. After
considering Defendant’s arguments, the court concludes there is no basis to alter the November 26,
2008 decision and order originally denying this challenge. Accordingly, the court finds that
Plaintiffs’ state law claims are not preempted by the FLSA.
Defendant’s arguments that Plaintiffs’ state law claims fail to state cognizable claims likewise
fail. As to the breach of contract claim, Defendant’s motion merely reasserts the arguments it
previously presented to the court in its first motion to dismiss. It has not offered any other factual
or legal argument that convinces the court that its November 26, 2008 decision was in error
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regarding Plaintiffs’ state law claims. At this stage, Plaintiffs have sufficiently pleaded breach of
contract. If Defendant believes Plaintiffs’ claims fail as a matter of law, it may raise these issues in
a motion for summary judgment. At this time, however, the court will deny Defendant’s motion with
respect to the breach of contract claim. Defendant also asserts that Plaintiffs’ state statutory claims
fail because Integrity Staffing bars the FLSA claim. Because the court has concluded Plaintiffs’
FLSA claim survives at this stage, their state statutory claims survive as well. Accordingly,
Defendant’s motion to dismiss will be denied.
CONCLUSION
IT IS THEREFORE ORDERED that Defendant’s motion to dismiss (ECF No. 620) is
DENIED.
Dated this 19th day of December, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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