Summary
holding that clothes includes all apparel including those that are accessories
Summary of this case from Musticchi v. City of Little Rock, ArkansasOpinion
Case No. 08-5071-CV-SW-RED.
October 14, 2009
ORDER
Now before the Court is Defendant's Motion for Summary Judgment (Doc. 76), Plaintiff's Motion to Certify Class (Doc. 72), and Defendant's Motion to Amend Defendant's Answer (Doc. 108). After careful consideration, the Court GRANTS Defendant's Motion for Summary Judgment (Doc. 76). By way of that decision, Plaintiff's Motion to Certify Class (Doc. 72), and Defendant's Motion to Amend Defendant's Answer (Doc. 108) are rendered moot and are therefore DENIED. If either party believes either Motion is not rendered moot by this Court's summary judgment ruling, the party shall notify the Court.
BACKGROUND
Janice Hudson filed suit against Butterball, LLC alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et al., the Missouri Minimum Wage Law ("MMWL"), MO. REV. STAT. §§ 290.500 to 290.530, and Missouri common law. Hudson seeks recovery of wages for time spent "donning, doffing, and sanitizing gear and equipment, and walking to and from the production floor."
Hudson worked in Butterball's unionized Carthage turkey production plant as a "scalpeler" and a "trimmer." Due to a stroke, Hudson's last day of compensable work was May 1, 2008. While at Butterball, Hudson worked under the 2004 collective bargaining agreement ("CBA"). Butterball paid Hudson and its other Carthage production employees on a "master card basis" in accordance with the 2004 CBA. Payment on a master card basis meant the clock started when the first turkey arrived at Hudson's work station, and the clock stopped when the final turkey left her work station. No CBA Hudson worked under compensated her for time spent sanitizing, donning and doffing protective gear, or walking to and from her work station. During negotiations to determine the terms of the 1995 and 2001 CBAs, the union requested compensation for time spent changing clothes and sanitizing. However, the union always abandoned its requests in order to come to an amicable CBA. The union never raised the issue during 2004 CBA negotiations. In 2005, the union filed a grievance regarding compensation for donning, doffing, and sanitizing time. The union did not continue its grievance through to arbitration, as was required by the 2004 CBA. Rather, the parties settled the grievance during 2008 CBA negotiations.
Hudson argues that she also worked under the 2008 CBA. However, the 2008 CBA's effective date was May 4, 2008. Hudson's last day of compensable work was May 1, 2008. All of the wages Hudson alleges remain unpaid accrued under the 2004 CBA.
The protective gear employees were required to don and doff included smocks, bump caps, ear plugs, hair nets, coveralls, boots, mesh vests, plastic sleeves, aprons, rubber gloves, safety glasses, mesh gloves, Kevlar gloves, mesh aprons, arm guards, belly guards, scabbards, plastic gloves, and knife holders.
Hudson argues this evidence is inadmissible based on Carey Howerton's lack of personal knowledge as to what she testified, lack of foundation, and hearsay. For the deposition, Howerton was designated as a corporate representative pursuant to Federal Rule of Civil Procedure 30(b)(6). In PPM Finance v. Norandal USA, deposition testimony of a person designated as a corporate representative was challenged in similar ways. 392 F.3d 889, 894-95 (7th Cir. 2004). The Seventh Circuit concluded the testimony was admissible because the deponent did have actual knowledge of the events he testified to, and in any event he was deemed to have personal knowledge of "matters known or reasonably available to the corporation." Id. (citing Pugh v. City of Attica, Ind., 259 F.3d 619, 627 n. 7 (7th Cir. 2001)). Hudson's objections are unfounded considering Howerton's actual knowledge of CBA negotiations dating back to 2001, and Howerton's status as a corporate representative. Butterball certainly knew what issues the parties had raised during 1995 and 2001 CBA negotiations.
LEGAL STANDARD
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." FED. R. CIV. PRO. 56. "The plain language of Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
DISCUSSION Summary Judgment Is Appropriate on Hudson's FLSA Claim Pursuant to 29 U.S.C. § 203(o)
Hudson claims Butterball violated 29 U.S.C. § 207(a)(1) by failing to pay Hudson overtime for time spent sanitizing, donning, doffing, and walking. 29 U.S.C. § 207(a)(1) provides that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1) (2009). In determining hours of employment under § 207, "any time spent changing clothes or washing at the beginning or end of each workday which was excluded from measured working time . . . by custom or practice under a bona fide bargaining agreement applicable to the particular employee" is not compensable. 29 U.S.C. § 203(o) (2009). In other words, time Hudson spent sanitizing, donning, and doffing is not compensable if two things are true: 1) the time was spent "changing clothes or washing," and 2) there is a "custom or practice" of not paying for time spent sanitizing, donning, and doffing under the 2004 CBA.
Changing Clothes or Washing
Hudson does not contest that the sanitizing she was required to do was "washing" under § 203(o). However, Hudson alleges the protective gear she and other employees were required to don and doff did not constitute "clothes," and therefore summary judgment should be denied. This Court disagrees. When construing a statute, courts first consider the statute's plain and ordinary meaning and then look to legislature's intent. Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. 1988). The dictionary defines "clothes" as "clothing," which is defined as "covering for the human body or garments in general: all the garments and accessories worn by a person at any one time." Webster's Third New International Dictionary 428 (unabridged) (1986). The definition of clothes includes all apparel Butterball employees were required to don and doff because all of such apparel was either a garment or an accessory and would be worn by the employee at one time.The legislative history behind § 203(o) also supports a broad reading of "clothes." Congress' intent in enacting § 203(o) was to give unions and employers the power to decide whether time spent changing clothes and washing would be compensable. See 95 Cong. Rec. 11210 (daily ed. Aug. 10, 1949) (stating the amendment's intent was "to give sanctity once again to the collective bargaining agreements. . . ."). The Department of Labor supports this Court's broad reading of "clothes." In an opinion letter, the Department of Labor opined that protective safety gear, including mesh aprons, sleeves, gloves, plastic belly guards, arm guards and shin guards, constituted "clothes" under § 203(o). Based on Congress' intent to leave the decision over donning and doffing time to unions and companies, the Department of Labor reasoned Congress intended for "clothes" to have a broad meaning. See Wage Hour Div., U.S. Dep't of Labor, Opinion Letter, 2002 WL 33941766 (June 6, 2002) (citing 95 Cong. Rec. 11210 (1949)).
Hudson's relies on Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), to support her contention that protective gear does not constitute "clothes." In Alvarez, the Ninth Circuit determined that personal protective equipment was not "clothes" under § 203(o). Alvarez, 339 F.3d at 905. The Ninth Circuit narrowly interpreted "clothes," reasoning § 203(o) should be narrowly construed as an exemption. As other courts have pointed out, there was a flaw in the Ninth Circuit's reasoning. The cases the Ninth Circuit relied upon in giving § 203(o) a narrow construction interpreted a § 213 exemption, rather than a § 203 definition. If Congress wanted § 203(o) to be narrowly interpreted as an exemption, the text of § 203(o) should have been placed in the exemptions section rather than the definitions section. This Court respectfully declines to follow Alvarez.
Custom or Practice
To prevail, Butterball must not only show the time was spent "changing clothes or washing," which it has, but also that there was a "custom or practice" under the 2004 CBA of non-payment for such time. 29 U.S.C. § 203(o) (2009). The United States District Court for the District of Minnesota has opined that "custom or practice" is sufficiently broad to include "a long-standing practice by an employer of non-payment for clothes-changing time, . . . provided that the employer can demonstrate that the practice of nonpayment was sufficiently long in duration and that its employees knew of and acquiesced in the practice." Kassa v. Kerry, 487 F. Supp. 2d 1063, 1068 (D. Minn. 2007). Butterball had a long-standing practice of not paying its employees for time spent changing clothes, as Butterball never compensated its employees for that time until the 2008 CBA became effective. The employees' knowledge and acquiescence of nonpayment is evident considering the union raised the issue in 1995 and 2001 CBA negotiations, the result of which was no compensation for time spent changing clothes, sanitizing, or walking.Hudson relies on Turner v. City of Philadelphia, 262 F.3d 222 (3d Cir. 2001), to support her argument that there was no "custom or practice" of non-payment for donning and doffing time. In Turner, the Third Circuit found a "custom or practice" where there had been a "prolonged period of acquiescence" to non-payment for time spent changing clothes. 262 F.3d at 226. Hudson argues there was no "prolonged period of acquiescence," as required by Turner, because the union filed a grievance in 2005 over the donning and doffing time issue.
This Court rejects Hudson's argument for two reasons. First, Turner did not require a "prolonged period of acquiescence" for there to be a "custom or practice" of nonpayment. Rather, it was merely an example of what could constitute a "custom or practice." Second, the union's filing a grievance does not negate a "prolonged period of acquiescence," but rather shows such a period because the union did not follow through with its grievance. In a Fifth Circuit case where the union initiated grievance proceedings regarding compensation for time spent changing clothes, the court found a "custom or practice" existed because the union later withdrew the grievance. Bejil v. Ethicon, 269 F.3d 477, 479-80 (5th Cir. 2001). Here, the union's failure to follow through with the 2005 grievance shows an acquiescence to nonpayment for donning, doffing, and sanitizing time. Accordingly, there was a "custom or practice" of nonpayment for time spent sanitizing, donning, and doffing under the 2004 CBA. Based on the applicability of § 203(o) to Hudson's claims for time spent donning, doffing, and sanitizing, summary judgment is appropriate on those claims.
Walking Time
Hudson also seeks compensation for time spent walking to and from the production floor after changing in and out of work clothes. Butterball argues that walking time is also excluded from hours worked under § 203(o). Under the U.S. Supreme Court's opinion in IBP, Inc. v. Alvarez, walking time is only compensable if it follows or precedes a principal working activity. 546 U.S. 21, 37 (2005). Because time Hudson spent sanitizing, donning, and doffing is excluded from hours worked under § 203(o), the walking time did not follow or precede a principal work activity, and therefore is not compensable. Summary judgment is appropriate on Hudson's walking time claim.
Summary Judgment Is Appropriate on Hudson's MMWL Claims Summary judgment is proper on Hudson's overtime claim
Hudson alleges Butterball violated MO. REV. STAT. § 290.505 by failing to compensate her for time spent sanitizing, donning, doffing, and walking. Section 290.505(1) provides, "No employer shall employ any of his employees for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." MO. REV. STAT. § 290.505 (2009). Based on § 290.505(4)'s mandate that it be "interpreted in accordance with the [FLSA] and the Portal to Portal Act," Butterball argues Hudson's MMWL claims should be dismissed pursuant to 29 U.S.C. § 203(o). This Court agrees that summary judgment should be granted on Hudson's overtime claim for two reasons.
First, giving the statute its logical construction, "interpreted in accordance with the FLSA" means using the definition of "hours worked" set forth in 29 U.S.C. § 203(o) to interpret § 290.505(1). When construing statutes, courts "should not be hyper technical but instead should be reasonable, logical, and should give meaning to the statutes." United Pharmacal Co. of Missouri, Inc. v. Missouri Bd. of Pharmacy, 208 S.W.3d 907, 912 (Mo. banc 2006). Accordingly, because § 203(o) excludes time spent sanitizing, donning, doffing, and walking from the number of hours worked, summary judgment is appropriate on Hudson's overtime claim.
Second, Department of Labor regulations interpreting the FLSA and the Portal to Portal Act exclude time spent donning, doffing, sanitizing, and washing from time worked. 29 C.F.R. § 785.26 directs that "time spent by an employee in changing clothes or washing at the beginning of or end of each workday which was excluded from measured working time . . . by the express terms of or by custom or practice under a bona fide collective bargaining agreement" is not included in the number of hours worked. 29 C.F.R. § 785.26 (1965). For the same reasons § 203(o) excluded from "hours worked" time Hudson spent donning, doffing, sanitizing, and washing, 29 C.F.R. § 785.26 excludes such time from § 290.505(1).
Summary judgment is proper on Hudson's "straight time" claim
Hudson claims Butterball owes her "straight time" wages for time spent sanitizing, donning, doffing, and walking. Hudson recognizes the FLSA does not authorize straight time claims, but argues the MMWL does provide for such claims. Hudson points to MO. REV. STAT. § 290.527, which provides that "any employer who pays any employee less than the wages to which the employee is entitled under or by virtue of sections 290.500 to 290.530 shall be liable to the employee affected for the full amount of the wage rate." Hudson argues this statute authorizes her straight time claim because it allows recovery for "wages to which the employee is entitled." However, Hudson overlooks the rest of the language in the sentence. The additional language authorizes recovery only when an employee is not paid wages which must be paid "under or by virtue of sections 290.500 to 290.530." Sections 290.500 to 290.530 only require payment of minimum wage and overtime, and therefore Hudson's contention that she is entitled to straight time is not meritorious. Her straight time claim must be made on a breach of contract theory. Accordingly, summary judgment is appropriate on Hudson's MMWL straight time claim.
Summary Judgment Is Appropriate on Hudson's Common Law Claims
Hudson asserts breach of contract and quantum meruit claims against Butterball based on its failure to pay her for time spent sanitizing, donning, doffing, and walking. Butterball argues that Hudson must follow the grievance and arbitration provisions of the CBA for those claims. Hudson argues that wage and hour issues are not covered by the CBA.
Similar issues faced the Court of Appeals for the Eastern District of Missouri in Williams v. Clean Coverall Supply Co., Inc., 613 S.W.2d 659 (Mo. App. E.D. 1980). In Williams, an employee sued his employer for unpaid wages on breach of contract, quantum meruit, and fraud theories. Id. at 660. The employer moved for summary judgment, arguing the dispute had to be adjudicated pursuant to the grievance procedure in the CBA. Id. at 661. The trial court entered summary judgment for the employer. Id. at 660. The court affirmed because "[i]n the State of Missouri, where a collective bargaining agreement provides a grievance procedure for the settlement of disputes between the employer and the union or the employee, the parties aggrieved must exhaust the remedies provided by the agreement before resorting to the courts for redress." Id. at 661. The grievance procedure governs "unless it may be said with positive assurance that the arbitration clause is not susceptible of any interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." United Steel Workers of Am. v. Warrior Gulf Navigation Co., 363 U.S. 574 582-83 (1960).
The 2004 CBA required grievance procedures to be followed for disputes "between the Company and its employees as to the meaning or application of the specific terms of this Agreement." This Court agrees with Butterball that Hudson must pursue the grievance procedures provided in the 2004 CBA for her breach of contract and quantum meruit claims. Such claims come within the purview of the grievance procedure outlined in the 2004 CBA because the breach of contract claim arises out of breaching the CBA and the quantum meruit claim is based on the same factual allegations as the breach of contract claim. Accordingly, summary judgment is appropriate on Hudson's state common law claims.
CONCLUSION
Hudson's FLSA claim fails because time spent sanitizing, donning, doffing, and walking is excluded from the definition of hours worked in 29 U.S.C. § 203(o). Hudson's MMWL overtime claim fails because interpreting § 290.505 in accordance with the FLSA means excluding time spent donning, doffing, and walking from hours worked pursuant to 29 U.S.C. § 203(o) and 29 C.F.R. 785.26. Hudson's MMWL "straight time" claim fails because § 290.527 only authorizes payment under §§ 290.500-290.530, which in turn only authorizes payment for minimum wage and overtime. Hudson's common law claims fail because she failed to exhaust remedies under the grievance and arbitration provisions of the 2004 CBA. Accordingly, Butterball's Motion for Summary Judgment is granted as to all of Hudson's claims.