Opinion
CASE NO.: 1:15-CV-156 (LAG)
2020-03-27
Travis TAYLOR, on behalf of himself and all others similarly situated, Plaintiffs, v. WHITE OAK PASTURES, INC., Defendant.
John F. Beasley, Jr., Watkinsville, GA, Mitchell Douglas Benjamin, Atlanta, GA, for Plaintiffs. Warren R. Hall, Jr., Brian Abrams, Thomas W. Cox, Atlanta, GA, for Defendant.
John F. Beasley, Jr., Watkinsville, GA, Mitchell Douglas Benjamin, Atlanta, GA, for Plaintiffs.
Warren R. Hall, Jr., Brian Abrams, Thomas W. Cox, Atlanta, GA, for Defendant.
ORDER
LESLIE A. GARDNER, JUDGE
Before the Court are: (1) Defendant's Motion for Decertification (Doc. 71); (2) Defendant's Motion for Summary Judgment (Doc. 77); and (3) Plaintiffs' Motion for Partial Summary Judgment (Doc. 72). For the reasons set forth below, Defendant's Motion for Decertification is GRANTED , Defendant's Motion for Summary Judgment is DENIED , and Plaintiffs' Motion for Partial Summary Judgment is DENIED .
PROCEDURAL BACKGROUND
Plaintiff Travis Taylor, on behalf of himself and all others similarly situated, initiated this action on September 23, 2015. (Doc. 1.) Plaintiffs allege that Defendant White Oak Pastures, Inc. willfully failed to pay them overtime premiums in violation of the Fair Labor Standards Act (FLSA). (Id. ¶¶ 1, 27.) Plaintiff Taylor filed a First Amended Complaint on October 10, 2016. (Doc. 25.) On April 20, 2017, the Court granted Plaintiff's Second Motion to Certify Class and certified a class of plaintiffs who:
(1) are or were employed by Defendant White Oak Pastures, Inc. from April ___ 2014 [three years prior to the mailing date of the notice] to April ___ 2017 [the mailing date]; (2) worked in the Red Meat Abattoir or in support of the Red Meat Abattoir, specifically on the kill floor, in the cut room, in the grinding room, in order fulfillment, or on the loading docks of the Red Meat Abattoir; (3) were paid an hourly rate; and (4) worked more than forty hours in a work week without being paid overtime compensation.
Based on the record, it is unclear when Plaintiffs mailed the Notice to all potential opt-in Plaintiffs. For purposes of this Order, the Court will construe the relevant employment period to be from April 1, 2014 to April 1, 2017. As the first opt-in form was filed on May 5, 2014, the April 1st date is a reasonable approximation of the beginning of the class period as defined in the conditional certification.
(Doc. 30 at 8.) Approximately forty employees filed opt-in notices to be part of the class. (See Doc. 84 at 12.) After the opt-in period ended on November 3, 2017, Plaintiff Taylor filed a Second Amended Complaint, listing Terry Barrows and Layton Ferrell Duke as named plaintiffs. (Doc. 55.)
On February 14, 2019, Defendant filed Motions for Decertification and Summary Judgment (Docs. 71, 77.) Plaintiffs filed a Motion for Partial Summary Judgment (Doc. 72) that same day. The Motions have been fully briefed and are ripe for review. See M.D. Ga. L.R. 7.3.1(A).
LEGAL STANDARD
Federal Rule of Civil Procedure 56 allows a party to move for summary judgment when the party contends that no genuine issue of material fact remains, and the party is entitled to judgment as a matter of law. "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Maddox v. Stephens , 727 F.3d 1109, 1118 (11th Cir. 2013). "A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor." Chapman v. AI Transp. , 229 F.3d 1012, 1023 (11th Cir. 2000).
"An issue of fact is ‘material’ if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997) (citations omitted). "It is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Tipton v. Bergrohr GMBH-Siegen , 965 F.2d 994, 998 (11th Cir. 1992) (citation omitted). The Court views all evidence and factual inferences drawn therefrom in the light most favorable to the nonmoving party and determines whether that evidence could reasonably sustain a jury verdict in its favor. See Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Allen , 121 F.3d at 646 (citations omitted).
The movant bears the initial burden of showing, by reference to the record, that there is no genuine issue of material fact. See Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ; Barreto v. Davie Marketplace, LLC , 331 F. App'x 672, 673 (11th Cir. 2009). The movant can meet this burden by demonstrating that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. See Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 ; Barreto , 331 F. App'x at 673 (citation omitted). Local Rule 56 further requires that "[a]ll documents and other record materials relied upon by a party moving for or opposing a motion for summary judgment be clearly identified for the court." M.D. Ga. L.R. 56. "Material facts not supported by specific citation to particular parts of materials in the record and statements in the form of issues or legal conclusions (rather than material facts) will not be considered by the court." Id.
"When that burden has been met, the burden shifts to the nonmovant ... to go beyond the pleadings and to present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating specific facts showing a genuine issue for trial." Lamar v. Wells Fargo Bank , 597 F. App'x 555, 557 (11th Cir. 2014) (citations omitted). "All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate." M.D. Ga. L.R. 56; see also Mason v. George , 24 F. Supp. 3d 1254, 1260 (M.D. Ga. 2014).
Notably, "cross-motions for summary judgment ‘must be considered separately,’ and ‘each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.’ " Progressive Nw. Ins. Co. v. Boyden , 2017 WL 1045061, at *3 (M.D. Ala. Mar. 17, 2017) (first quoting Shaw Constructors v. ICF Kaiser Engineers, Inc. , 395 F.3d 533, 538–39 (5th Cir. 2004) ; and then citing Bricklayers, Masons & Plasterers Int'l Union of Am. v. Stuart Plastering Co. , 512 F.2d 1017, 1023 (5th Cir. 1975) ; and then citing Ga. St. Conf. of NAACP v. Fayette Cty. Bd. of Comm'rs , 775 F.3d 1336, 1345 (11th Cir. 2015) ). Thus, where "the parties disagree as to the facts and take inconsistent legal theories the mere filing of cross motions for summary judgment does not warrant the entry of such judgment." Shook v. United States , 713 F.2d 662, 665 (11th Cir. 1983).
FACTUAL BACKGROUND
I. History of White Oak
Defendant White Oak Pastures (White Oak) is a 3,000-acre farm in Bluffton, Georgia. (Doc. 86 ¶ 1.) , The Harris family has owned the farm for more than 150 years, and Will Harris currently owns and operates it. (Id. ¶ 2; Doc. 89 ¶ 2.) Since its inception in 1866, the Harris family has continually used the land for cattle grazing. (Doc. 86 ¶¶ 2–3; Doc. 89 ¶ 2.) In addition to its cattle business, Defendant cultivates crops and raises other livestock. (Doc. 86 ¶¶ 6, 8.) Defendant sells several products from the farm such as the following: certified organic fruits, vegetables, pecans, artisan goods including soaps and leather goods, and grass-fed or pasture-raised meat like beef, pork, and lamb. (Id. ¶¶ 8–10.)
The relevant facts come from the Parties' statements of material facts and responses thereto, and the record in this case (Docs. 72-2, 77-2, 86, 87, 89). Where relevant, this factual summary also contains undisputed facts derived from the pleadings, the discovery and disclosure materials on file, and any declarations, all of which are construed in the light most favorable to Plaintiff as the non-moving party. See Fed. R. Civ. P. 56 ; Celotex , 477 U.S. at 323, 106 S.Ct. 2548.
While the facts draw from both Plaintiffs and Defendant's undisputed statements of material facts, it nonetheless considers the Parties' Motions separately. See Progressive Nw. Ins. Co. , 2017 WL 1045061, at *3.
Before 2007, Defendant's cattle business focused on selling cattle for slaughter within the "industrial beef complex," a system in which calves are born and weaned at one location, sold and transported to a stocker operation to be fattened, and then transported to a feedlot where they finish their growth and are slaughtered. (Id. ¶¶ 11–13.) In this system, the slaughterhouses do not own the cattle and charge the owners a fee for slaughter. (Id. ¶¶ 18, 70.) Additionally, the slaughter process is automated and mechanized to maximize production. (Id. ¶ 18.) Cattle are generally truck-hauled long distances, fattened in confined feedlots for days or months, and then slaughtered using an automated assembly line. (Id. ¶¶ 68, 75.) Industrialized slaughterhouses may slaughter several thousand cattle per day. (Id. ¶ 74.)
In 2007, Defendant stopped shipping cattle to industrialized slaughterhouses based on animal welfare and environmental concerns. (Id. ¶¶ 14, 17.) Defendant began construction on a Red Meat Abattoir (RMA) to slaughter cattle using manual and humane methods. (Id. ¶¶ 14, 17, 31.) In 2008, Defendant opened the RMA, becoming one of a handful of similar farm-based slaughterhouses in the country. (Id. ¶¶ 21, 72.)
II. RMA Employees and Operations
Defendant employs approximately 35 workers at the RMA, accounting for roughly 25% of its total workforce. (Id. ¶ 79; Doc. 89 ¶ 59.) Each day, RMA employees manually slaughter approximately 29 cattle one at a time, with saws, knives, scissors, and blades and use a hand chain to move the cattle through the three stages of the RMA: the kill or slaughter room, cut or fabrication room, and further processing or grind room. (Doc. 77-1 at 18–19; Doc. 86 ¶¶ 24–25, 74–75; Doc. 89 ¶ 16.) After slaughter, employees behead, skin, and disembowel the carcass. (Doc. 89 ¶ 20.) They send the hide and eviscerate out of the RMA to be used on other parts of the farm. (Id. ¶ 22; Doc. 74 at 113:15–114:20.) RMA employees trim and debone the carcass and grind the trimmings. (Doc. 89 ¶¶ 25, 28.) Other RMA employees then package, wrap, seal, and prepare the meat for shipping. (Id. ¶¶ 26, 28.) Some RMA employees also fulfilled orders, cleaned the RMA or offices, and worked on the loading or shipping docks. (Doc. 71-2 ¶ 8; Doc. 74 at 117:5–17, 121:2–11, 235; Doc. 77-7 at 9:9–10, 11:9–21; Doc. 77-9 at 14:4–9, 16:16–21; Doc. 77-11 at 15:24–16:7, 19:22–20:14; Doc. 77-13 at 9:2–3, 11:6–7.)While the Parties dos not provide a general description for all employees who fulfill orders, an order fulfillment supervisor is expected to "[k]eep product organized and counted," "[p]ick and pack orders to the specifications provided," "[c]heck picked orders for accuracy," and "[m]aintain inventory system set in place." (Doc. 74 at 235.) The Parties also do not provide a job description for working on the loading or shipping docks. Based on the record, however, working on the shipping dock entails putting the packaged meat onto a truck to be delivered to a buyer and working on the loading dock entails loading trucks. (Id. at 117:5–17, 121:2–11; Doc. 77-11 at 15:24–16:7, 19:22–20:14.)
Defendant markets and sells the meat from the RMA under White Oak's name. (Doc. 86 ¶ 78.) While some RMA employees occasionally perform other tasks, such as tending to livestock or fertilizing the fields, none feeds or delivers cattle to the RMA. (Doc. 74 at 142:13–20; Doc. 77-2 ¶ 82.) Except for the operations manager, RMA employees are hourly employees and do not receive overtime when they work over forty hours per week. (Doc. 89 ¶¶ 61, 70.)
Travis Taylor, Terry Barrows, Brandon Cody Milburn, and Layton Ferrell Duke (collectively Plaintiffs) were primarily employed in the RMA. (Doc. 77-6 at 18:5–15; Doc. 77-7 at 9:17–11:21; Doc. 77-10 at 13:19–20; Doc. 79 at 11:16–25.) Taylor was employed as a meat cutter working in the RMA's cutting room although he also periodically tended to White Oak's rabbits. (Doc. 77-10 at 11:19–21, 13:8–20.) He was employed by Defendant from around October 2010 until October 2014. (Id. at 9:14–16, 16:21–22.) Similarly, Barrows worked in the RMA's cutting and grinding rooms. (Doc. 77-6 at 18:5–15.) Outside of his typical workday, Barrows also periodically performed other tasks such as milking goats and making cheese and yogurt. (Id. at 19:2–12.) Barrows estimates he was employed by Defendant from January 2011 until late November 2015. (Id. at 11:3–6, 14:7–8.) Milburn worked on the kill floor and in the cutting and grinding rooms. (Doc. 77-7 at 9:17–11:21.) Milburn was employed by Defendant from "some point" in 2009 to September 2015. (Id. at 9:6–7; 15:12–18.) He also performed order fulfillment. (Id. at 11:9–24.) Duke worked in the RMA's slaughter, cutting, and grinding rooms, and he also periodically helped with testing and ordering supplies. (Doc. 79 at 11:5–12:4.) Duke does not remember the dates his employment began or ended at White Oak. (Id. at 9:15–19; 22:25–23:2.)
III. Cattle Slaughtered at the RMA
Before fall 2014, Defendant's regular practice was to purchase cattle directly from other farmers to be slaughtered in the RMA either the same day of purchase or within a few days of purchase. (Doc. 74 at 28:6–29:6.) Presently, Defendant only slaughters cattle that it owns, and they are all slaughtered at the RMA. (Doc. 86 ¶¶ 23–24.) At any given time, Defendant owns approximately 2,000 to 3,000 head of cattle. (Id. ¶ 6.) Approximately 10–12% of these cattle are born at White Oak, and Defendant purchases the remainder from nearby farms. (Id. ¶ 46; Doc. 89 ¶ 32.) The Global Animal Partnership (GAP) has certified that Defendant's cattle are humanely treated. (Doc. 86 ¶ 34.) In accordance with this certification, Defendant's cattle are antibiotic-free and hormone-free, grass-fed, pasture-raised, and humanely slaughtered at Defendant's farm. (Id. ¶¶ 33–37, 47.) While Defendant does not send employees to supervise or oversee the cattle its purchases from nearby farms, it only buys GAP-certified cattle. (Doc. 74 at 130:18–131:10; Doc. 89 ¶ 45.)
Defendant describes the handling of purchased cattle as follows. Purchased cattle are quarantined for two weeks and then integrated into the main herd. (Doc. 89 ¶ 38.) Approximately every four weeks, the cattle in the main herd are sorted based on fat cover to determine which cattle are ready for slaughter. (Id. ¶ 55.) Defendant, however, does not track the cattle once they are integrated into the main herd. (Doc. 86 ¶ 53.) Thus, there is no way to distinguish between purchased cattle and those born on the farm. (Id. ) At the time of slaughter, cattle are not weighed, and their ages are not known because the determinative factor for selection is fat cover. (Doc. 74 at 35:21–36:7; Doc. 89 ¶ 58.) Cattle may be selected for slaughter in the monthly sort immediately following the quarantine period. (Doc. 86 ¶ 55–56.) After the cattle are selected, they are slaughtered within approximately thirty days. (Id. ¶ 56.) According to Defendant, therefore, purchased cattle spend at least four weeks grazing at White Oak. (Id. ¶ 57.)
Plaintiffs assert, to the contrary, that Defendant is still purchasing cattle for same day slaughter. (Doc. 86 ¶¶ 8, 23, 39.) Plaintiffs Cody Milburn, Terry Barrows, Layton Ferrell Duke, and Travis Taylor, each of whom worked in the RMA, contend that most of the cattle that were processed in the RMA were raised on other farms. (Doc. 14-3 ¶ 12, 14-4 ¶ 6, 17-2 ¶ 14; Doc. 17-4 ¶ 10.) Plaintiffs Milburn and Taylor also assert that the cattle processed in the RMA were initially killed and processed elsewhere, primarily from MSM Meat in Colquitt, Georgia. (Doc. 14-3 ¶ 8, Doc. 17-2 ¶ 9.) The four did not state exactly when they observed these same-day slaughter practices, but amongst the four, they were employed by Defendant from some point in 2009 through November 2015. (See Doc. 77-6 at 11:3–6, 14:7–8; Doc. 77-7 at 9:6–7, 15:12–18; Doc. 77-10 at 9:14–16, 16:21–22.) Moreover, on January 6, 2015, counsel for Defendant wrote a letter to the DOL stating, "Some of the purchased adult cattle are slaughtered upon delivery to the Farm, and some are turned out into the pastures for some period of time until they are ready for slaughter." (Doc. 72-2 at 14.)
While Defendant does not weigh the cattle at slaughter, it does track the number of cattle and the total weight of each purchase. (Doc. 86 ¶ 60.) The U.S. Department of Agriculture (USDA) publishes the yearly-average weight at which cows are slaughtered, and grass-fed cattle gain approximately 1.5 pounds per day. (Id. ¶¶ 59, 62.) Based on this data, Defendant calculated the estimated number of days purchased cattle spend at the farm before slaughter for the relevant years:
| Year of Purchase | Average Weight (pounds) at Purchase | Estimated Average Days on Pasture |
|---|---|---|
| 2014 | 1167 | 121 |
| 2015 | 1231 | 79 |
| 2016 | 1207 | 94 |
| 2017 | 1203 | 98 |
(Id. ¶ 63.) Based on these estimates, White Oak asserts that purchased cattle spend approximately two to four months grazing at White Oak before slaughter. (Id. ¶ 64.) Because Defendant does not weigh the cattle at slaughter, RMA manager Justin Wiley does not know the exact weight at which cattle are slaughtered. (Doc. 76 at 29:1–9.) He does know, however, the "hanging weight" of cattle at slaughter, which is typically around 600 pounds. (Id. at 29: 10–13.) When asked to estimate the cattle's typical slaughter weight, based on the hanging weight, Wiley guessed that cattle are slaughtered at approximately 1,050 pounds. (Id. at 29:14–19.)
IV. The Relationship between the RMA and White Oak
The RMA is in a free-standing 6,000-square foot building comprising 0.0045% of Defendant's total land. (Doc. 86 ¶¶ 22, 29.) It is centrally located amidst the poultry abattoir, irrigation wastewater facilities, green house, farm store, restaurant, and gardens. (Id. ) Waste from the RMA supports the farm. (Id. ¶ 41.) The eviscerate and blood from slaughtered cattle are composted and used to fertilize Defendant's fields and pastures. (Id. ) Similarly, the RMA's wastewater is recycled and used to water the fields and pastures. (Id. ¶ 42.) The RMA is dependent on the farm's ability to convert the RMA's waste into nutrients for the soil. (Id. ¶ 44.) Defendant invested $3,047,706 into the RMA and $15,459,102 into the rest of the farm, excluding purchased inventory of farm animals. (Id. ¶¶ 84–85.)
The RMA's finances are substantially comingled with the whole of the farm. (See id. ¶ 76.) All farm products, including the beef from the RMA, are sold under the White Oak name. (Id. ¶ 78.) While Defendant maintains separate records for cattle purchases, the RMA does not maintain separate financial books or bank accounts, and its revenue is intermingled with that of the entire farm. (Id. ¶¶ 76–77.) Defendant treats RMA employees as White Oak employees and, likewise, pays them out of Defendant's general payroll account. (Id. ¶ 80.) Defendant pays the expenses for the RMA from White Oak accounts and collects RMA-generated revenue. (Id. ¶ 77.) The RMA represents 19.7% of Defendant's total capital expenditures, and the RMA employee payroll represents 31% of Defendant's total employee payroll. (Id. ¶¶ 86–87.) The RMA and White Oak are also a single entity for tax purposes. (Id. ¶¶ 90–91.) Defendant files a single tax return for White Oak, including the RMA, and is designated as a Georgia Agriculture Tax Exempted farm. (Id. ) Approximately 25% of White Oak employees work in the RMA, and the total hours RMA employees work constitute approximately one-third of the total hours all White Oak employees work. (Id. ¶¶ 79, 88–89.)
V. Department of Labor Investigation
In the summer of 2014, the DOL investigated Defendant's employee pay practices between September 4, 2012 and September 3, 2014. (Doc. 72-2 at 17.) The question of the status of RMA employees arose out of the investigation. (Id. ) In a letter to the DOL, Defendant generally stated that it believes the agriculture exemption applies to the RMA employees and does not believe any overtime amounts are owed. (Id. at 20, 22.) Still, to resolve the issue, Defendant proposed to start paying RMA employees overtime going forward but not give any backpay. (Id. at 20.) There is no evidence that the DOL and Defendant reached an agreement, and Defendant currently does not pay RMA employees overtime. (Doc. 89 ¶ 74.)
DISCUSSION
I. Defendant's Motion for Summary Judgment
Defendant moves for summary judgment on the grounds that Plaintiffs are not entitled to overtime pay because they are employed in agriculture. (Doc. 71-1 at 14–16.) While the FLSA mandates that employers pay employees who work more than forty hours per week at a rate of 1.5 times their regular hourly rate, it exempts "any employee with respect to his employment in agriculture by a farmer ...." 29 U.S.C. §§ 207, 213(b)(13). The FLSA defines "agriculture" as:
farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in [the Agricultural Marketing Act] ), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.
29 U.S.C. § 203(f) (internal quotation marks omitted). Thus, the Supreme Court has recognized that the FLSA delineates two branches of agricultural exemptions. Farmers Reservoir & Irrigation Co. v. McComb , 337 U.S. 755, 762, 69 S.Ct. 1274, 93 L.Ed. 1672 (1949). The primary agricultural exemption refers to "farming in all its branches," which includes the raising of livestock and production of agricultural commodities. Id. The secondary meaning of agriculture is "broader" and includes "any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently to or in conjunction with ‘such’ farming operations." Id. at 762–63, 69 S.Ct. 1274 (quoting 29 U.S.C. § 203(f) ); see also Ares v. Manuel Diaz Farms, Inc. , 318 F.3d 1054, 1056 (11th Cir. 2003) (delineating the two branches of the agricultural exemption). Defendant argues that Plaintiffs are not covered by the FLSA's overtime requirement because they engage in both primary and secondary agriculture. (Doc. 77-1.) Because Defendant seeks to claim an FLSA exemption, it ultimately "bears the burden of establishing that [Plaintiffs are] exempt ...." See Pioch v. IBEX Eng'g Servs., Inc. , 825 F.3d 1264, 1268 (11th Cir. 2016).
A. Primary Agricultural Exemption
Defendant argues that Plaintiffs engage in primary agriculture because they produce an agricultural commodity. (Doc. 77-1 at 7–11.) Specifically, Defendant argues that slaughtering and butchering cattle constitute the production of an agricultural commodity in the form of raw beef as "the ordinary meaning of the term agricultural commodity includes meat." (Doc. 77 at 7.) Plaintiffs argue Defendant does not engage in primary agriculture because Defendant does not raise most of its cattle. (Doc. 85 at 8–9.) Moreover, Plaintiffs argue that Defendant processes cattle rather than produces cattle as defined by 29 C.F.R. § 780.117. (Id. )
The federal regulations expressly state, "To constitute agriculture, slaughtering must come within the secondary meaning of the term agriculture." 29 C.F.R. § 780.125. While specifically referring to the poultry production, these regulations are equally applicable to the slaughter of cattle and production of raw cuts of beef. See Rodriguez v. Whiting Farms, Inc. , 360 F.3d 1180, 1188 (10th Cir. 2004) ("The regulations themselves recognize that the exemptions, ‘because of their relationship to one another, should be construed together insofar as possible so that they form a consistent whole.’ " (quoting 29 C.F.R. § 780.9 )).
Defendant's RMA business does not constitute primary agriculture as it does, in fact, process—not produce—cattle. Defendant asserts RMA employees prepare the cattle for market. (Doc. 77-1 at 15.) "[O]perations which are merely preliminary, preparatory, or incidental to the operations whereby [agricultural] commodities are actually produced are not within the term[ ] ‘production’...." 29 C.F.R. § 780.117(a) (alterations in original). "The [word] ‘production’ describe[s] actual raising operations which are normally intended or expected to produce specific agricultural ... commodities." Id. (alterations in original). "Processing," however, includes activities such as beheading, skinning, and trimming. Whiting Farms, Inc. , 360 F.3d at 1183. See also Holly Farms Corp. v. N.L.R.B. , 517 U.S. 392, 116 S.Ct. 1396, 1403, 134 L.Ed.2d 593 (1996) (holding National Labor Relations Board reasonably found that employees who collected for slaughter chickens raised by independent growers served slaughtering and processing operations rather than farming operations). Furthermore, Defendant's interpretation of production "would render unnecessary" the secondary branch of the agricultural exemption, which "Congress clearly intended to be a very elaborate and comprehensive definition of agriculture." 29 C.F.R. § 780.117(b). Thus, Plaintiffs' labor of slaughtering and butchering cattle does not constitute primary agriculture.
B. Secondary Agricultural Exemption
Defendant also argues that Plaintiffs fall within the FLSA's secondary agricultural exemption. (Doc. 77-1 at 7–11.) Specifically, Defendant claims the work Plaintiffs perform in the RMA—slaughtering, cutting, and grinding cattle—is exempt because it constitutes "preparation for market." (Id. at 15.) Plaintiffs argue their work in the RMA is not considered "preparation for market" because they "significantly change the raw and natural state of the ... cattle ... from living animals to hamburger." (Doc. 85 at 16.) Citing 29 C.F.R. § 780.151, Plaintiffs also argue the regulations do not include "slaughtering" as an activity that can be performed as "preparation for market." (Id. at 15–16.) The secondary agricultural exemption is more broadly defined than the primary agricultural exemption. "Under the FLSA, ‘secondary agriculture’ consists of ‘any practices ... performed by a farmer or on a farm as incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.’ " Rodriguez v. Pure Beauty Farms, Inc. , 503 F. App'x 772, 774 (11th Cir. 2013) (quoting 29 U.S.C. § 203(f) ). To determine whether the secondary agricultural exemption applies to Plaintiffs, the Court first analyzes whether Plaintiffs' slaughtering, cutting, and grinding activities are "preparation for market" for purposes of the FLSA.
1. Whether slaughtering, cutting, and grinding activities at the RMA are "preparation for market"
[Preparation for market] includes the operations normally performed upon farm commodities to prepare them for the farmer's market. The farmer's market normally means the wholesaler, processor, or distributing agency to which the farmer delivers his products. "Preparation for market" clearly has reference to activities which precede "delivery to market." It is not, however, synonymous with "preparation for sale." The term must be treated differently with respect to various commodities. It is emphasized that "preparation for market," like other practices, must be performed "by a farmer or on a farm as an incident to or in conjunction with such farming operations" in order to be within section 3(f).
29 C.F.R. § 780.150 (alteration in original). 29 C.F.R. § 780.151 lists several activities that, "among others ... may be performed in the ‘preparation for market’ ... and may come within section 3(f)." (punctuation omitted). Thus, Congress did not intend for § 780.151 to be an exhaustive list of activities that involve preparation for market, leaving room for case law to complement the regulation.
Various cases illustrate that "preparation for market" involves gathering, processing, packaging, and shipping agricultural commodities to be sold. See Larson v. Ives Dairy Co. , 154 F.2d 701, 702 (5th Cir. 1946) (holding processing, packaging, and transporting milk and cream to market is agricultural labor for purposes of the Social Security Act (SSA)); Pacheco v. Whiting Farms, Inc. , 365 F.3d 1199, 1204–05 (10th Cir. 2004) (finding the way farm processed chicken pelts "appears to fall directly in line with the preparation for market ..." under FLSA); Mitchell v. Hornbuckle , 155 F. Supp. 205, 206 (M.D. Ga. 1957) (suggesting preparation for market includes delivering plants to a packing shed, and gathering, packing, and shipping plants to places where they are to be sold); Goldberg v. Crowley Ridge Fruit and Vegetable Growers Ass'n , 295 F.2d 7, 11 (8th Cir. 1961) (stating Hornbuckle involved a packing shed "where everything done was directed to ‘preparation for market (and) delivery to market or to carriers for transportation to market (by a farmer)’ of his own produce"). As explained above, beheading, skinning, and trimming constitute "processing."
The definition of "agricultural labor" for purposes of the SSA is very similar to that of the FLSA. Chester C. Fosgate Co. v. United States , 125 F.2d 775, 777 n.1 (5th Cir. 1942) ; N.L.R.B. v. John W. Campbell, Inc. , 159 F.2d 184, 186 (5th Cir. 1947) (using the definition of "agricultural labor" under the SSA and FLSA to define the term under the National Labor Relations Act because of the similarities of the three Acts).
The RMA activities involving slaughtering, cutting, and grinding are similar in nature to the aforementioned processing activities in that, while the form is changed from a living animal to various cuts of beef, the RMA activities do not substantially change the physical content or chemical makeup of the cattle. In Mitchell v. Budd , 350 U.S. 473, 475, 76 S.Ct. 527, 100 L.Ed. 565 (1956), the Supreme Court found that an operation for bulking tobacco was not "preparation for market" because the process substantially changed physical and chemical properties of tobacco by improving color, increasing combustibility, and eliminating rawness and harshness of the freshly cured leaf. But see Whiting Farms, Inc. , 360 F.3d at 1183, 1186–88 (finding employees prepared chicken pelts for market where they cut off the necks and heads of the chickens and skinned and trimmed the chickens to process the pelts for eventual sale); Pacheco , 365 F.3d at 1204 ("Defendants' employees who skin and trim the chickens begin preparing the pelts for market."). The work done by the RMA employees during the slaughtering process merely changes the form—not the physical content or chemical makeup—of the cattle. While the Tenth Circuit noted that, "[a] change to the ‘raw or natural state of the commodity ... may be a strong indication that the practice is not within the scope of agriculture’ ... but is ‘more akin to manufacturing,’ " it also acknowledges that "[s]ome change from the raw or natural state in preparation for market must be included in secondary farming based on the examples in the regulations." Whiting Farms, Inc. , 360 F.3d at 1188 (citations omitted) (alteration in original). Thus, "we must look at the degree of change to determine if the [slaughtering, cutting and grinding done by the RMA employees] constitute[ ] manufacturing." Id. (alterations in original). The slaughtering, cutting, and grinding done in the RMA does not alter the properties of the cattle, rather, it merely changes the form. Thus, while there is some change from the raw or natural state, the meat "itself is preserved in much the same state as it was prior to processing." Id.
Moreover, the commodity here is not, as Plaintiff would argue, a "living animal," Doc. 85 at 16, rather it is the beef or meat of the cattle. Courts are instructed to recognize the purpose of the operation when conducting the secondary agriculture analysis. See Whiting Farms, Inc. , 360 F.3d at 1187 (recognizing distinction between operation that raised chickens for feathers and one that raised chickens for their meat). While the grinding of the beef changes it in some ways from its natural state, the process at the RMA does not involve any additives or manufacturing processes which alter the fundamental physical chemical properties of the beef. See, e.g., Maneja v. Waialua Agric. Co. , 349 U.S. 254, 257, 264–65, 268, 75 S.Ct. 719, 99 L.Ed. 1040 (1955) (finding sugar mill changed "freshly cut sugar cane" from its "extremely perishable," raw and natural state by processing cane into raw sugar and molasses); Donovan v. Frezzo Bros., Inc. , 678 F.2d 1166, 1168, 1171 (3d Cir. 1982) (finding mushroom compost was not agriculture commodity where process involved combining raw materials with water, heating compost, and adding gypsum to increase aeration and reduce greasiness, reduce the pH level, retain nitrogen, and act as nutrient for mushrooms). Thus, slaughtering, cutting, and grinding cattle can constitute "preparation for market" for purposes of 29 C.F.R. § 780.150.
Still, Defendant must meet three additional requirements to prove Plaintiffs' activities are in fact preparation for market within the secondary agriculture exemption. The first is that RMA activities "must be performed either by a farmer or on a farm." Pure Beauty Farms, Inc. , 503 F. App'x at 774 (alterations in original). Next, the subject activities "must be performed either in connection with the farmer's own farming operations or in connection with farming operations conducted on the farm where the [activities] [are] performed." Id. at 774–75 (alterations in original). Finally, RMA activities "must be performed as an incident to or in conjunction with the farming operations." Id. at 775 (alterations in original).
The work performed by the Plaintiffs is done at the RMA, which the parties admit is on the White Oak farm. (Doc. 85 at 5; Doc. 86 ¶¶ 1, 22, 24–29.) The packaging of the meat to be sold also happens at the RMA and on the farm. (Doc. 86 ¶¶ 28–29.) Accordingly, the "on the farm" requirement is met.
2. Whether Plaintiffs' work at the RMA is performed in connection with Defendant's farming operations
The next question is whether the RMA activities are "performed either in connection with the farmer's own farming operations or in connection with farming operations conducted on the farm where the [activities] [are] performed." Pure Beauty Farms, Inc. , 503 F. App'x at 774–75 (alterations in original) (citing 29 C.F.R. § 780.137 (stating practices must be performed "in connection with the farming operations of the same farmer who performs the practices")). It is on this requirement that Defendant's claim fails.
Defendant claims that it raises the livestock slaughtered in the RMA, but there is a question as to whether White Oak raises all of the livestock processed through the RMA. As explained in 29 C.F.R. § 780.141,
No practice performed with respect to farm commodities is within the language under discussion by reason of its performance on a farm unless all of such commodities are the products of that farm. Thus, the performance on a farm of any practice, such as packing or storing, which may be incidental to farming operations cannot constitute a basis for considering the employees engaged in agriculture if the practice is performed upon any commodities that have been produced elsewhere than on such farm (see Mitchell v. Hunt , 263 F. 2d 913 [ (5th Cir. 1959) ] ). The construction by an independent contractor of granary on a farm is not connected with "such" farming operations if the farmer for whom it is built intends to use the structure for storing grain produced on other farms.... The fact that such a practice pertains to farming operations generally or to those performed on a number of farms, rather than to those performed on the same farm only, is sufficient to take it outside the scope of the statutory language.
(emphasis added). Thus, in order for the activities of the RMA to be considered as "performed either in connection with the farmer's own farming operations or in connection with farming operations conducted on the farm where the activities are performed.," Pure Beauty Farms, Inc. at 774–75,, all of the cattle slaughtered in the RMA must have been raised by White Oak. See Marshall v. Gulf & W. Indus., Inc. , 552 F.2d 124, 126 (5th Cir. 1977) (finding employees who packaged tomatoes grown by both their farm and independent farmers were not exempt under § 3(f)); Mateo-Evangelio v. Triple J Produce, Inc. , 2016 WL 183485, *8–9 (E.D.N.C. Jan. 14, 2016) (holding defendants owed plaintiff overtime pay because he regularly processed and packed sweet potatoes that were unrelated to defendants' farming operations).
The "fattening, feeding, and general care of livestock" can constitute the "raising" of livestock, and the "fact that the livestock is purchased to be fattened and is not bred on the premises does not characterize the fattening as something other than the ‘raising’ of livestock." 29 CFR § 780.121. However, the "feeding and care of livestock does not necessarily or under all circumstances constitute the ‘raising’ of such livestock." Id. For example, cattle kept "in the pens of stockyards or the corrals of meat packing plants where they are confined for a period of a few days while en route to slaughter" are not "raised" by the stockyards or corrals. Id. Likewise, any cattle that were purchased for White Oak for immediate slaughter would not be considered to have been raised by White Oak. See Adkins v. Mid-Am. Growers, Inc. , 167 F.3d 355, 357 (7th Cir. 1999) (holding flower producer's activities are non-exempt as to 2% of plants producer buys and sells, sometimes almost immediately, even though it grows the other 98%); Adkins v. Mid-Am. Growers, Inc. , 141 F.R.D. 466, 470 (N.D. Ill. 1992) (holding "where employees work in a facility that processes the products of their own employers, as well as other farmers, they are not engaged in work covered by the exemption for secondary agriculture"); Martinez v. Deaf Smith Cty. Grain Processors, Inc. , 583 F.Supp. 1200, 1202, 1204 (N.D. Tex. 1984) (holding farm owner could not apply agriculture exemption to his employee because employee processed corn that was both grown on the farm and purchased from other farms).
Defendant bears the burden of proving that the exemption applies. Pioch , 825 F.3d at 1268. Thus, Defendant bears the burden of establishing that all of the cattle slaughtered in the RMA were raised by White Oak. There is a genuine issue of material fact as to whether all of the cattle slaughtered in the RMA were raised by White Oak. According to Will Harris, White Oak's owner and Defendant's Rule 30(b)(6) witness, during part of the relevant period, up until the fall of 2014 (the exact date is unclear), Defendant purchased cattle directly for slaughter. (Doc. 74 at 28:13–15.) Moreover, again while the exact dates are unknown, Plaintiffs Milburn and Barrows declared that "most of the cattle that were produced in the RMA were from [or raised on] other farms." (Doc. 14-3 ¶ 12; Doc. 14-4 ¶ 6.) Plaintiff Duke declared that "[m]ost of the cattle that were processed in the red meat abattoir were trucked in from other states or other farms. These trucks came in almost every day." (Doc. 17-4 ¶ 10.) Plaintiff Taylor also declared that the RMA ground and packaged meat that was slaughtered and processed elsewhere." (Doc. 17-2 ¶ 14.) And, in a letter to the DOL dated January 6, 2015, counsel for Defendant wrote that "some of the purchased adult cattle are slaughtered upon delivery to the farm." (Doc. 85 at 5 n.2.) Certainly, these cattle would not be considered to have been raised by Defendant.
It is not clear whether Milburn, Barrows, Duke, and Taylor are referring to the period before or after the fall of 2014 as they did not set forth the dates during which the practices they described took place. Milburn was employed by Defendant from "some point" in 2009 until September of 2015, but he is not entirely sure of the date he resigned. (Doc. 77-7 at 9:6–7, 15:12–18.) Similarly, Barrows estimates he was employed by Defendant from January 2011 until late November 2015. (Doc. 77-6 at 11:3–6, 14:7–8.) Taylor was employed by Defendant from around October 2010 until October 2014. (Doc. 77-10 at 9:14–16, 16:21–22.) Duke does not know his employment dates. (Doc. 79 at 9:15–19; 22:25–23:2.) For purposes of this analysis, construing the facts in the light most favorable to the nonmoving party, the Court construes this testimony to apply to the period up to fall 2015.
Furthermore, the evidence relied on by Defendant to establish this point is in large part conjecture, unclear, and does not speak to the entire period at issue. The evidence also conflicts with other testimony Defendant presents regarding the cattle's slaughter weight. In his deposition, Justin Wiley guesses the average weight of the cattle that are slaughtered is 1,050 pounds. (Doc. 77-13 at 29:1–19.) But Will Harris and Brian Sapp, the Director of Operations at White Oak, state in their respective deposition and affidavit that White Oak slaughters cattle once they weigh between 1300 and 1400 pounds. (Doc. 74 at 19:1–10; Doc. 77-4 ¶¶ 28, 30, 36.) The Court cannot resolve Defendant's conflicting evidence at this stage. Strickland v. Norfolk S. Ry. Co. , 692 F.3d 1151, 1162 (11th Cir. 2012) (holding a contradiction arising from a "dialectical misunderstanding" is "an issue of credibility or go[es] to the weight of the evidence") (quoting Tippens v. Celotex Corp. , 805 F.2d 949, 953 (11th Cir. 1986) ); Kennett-Murray Corp. v. Bone , 622 F.2d 887, 895 (5th Cir. 1980) (holding conflicts between a party's deposition and affidavit present questions of credibility requiring jury resolution).
Accordingly, as there is a genuine issue as to whether all of the cattle processed through the RMA are raised by Defendant, Defendant has not carried its burden of showing that the work performed at the RMA is performed in connection with Defendant's farming operations and that the secondary agriculture exemption applies to Plaintiffs. Thus, Defendant is not entitled to summary judgment.
II. Plaintiffs' Motion for Partial Summary Judgment
Plaintiffs argue they are entitled to summary judgment because they are not exempt under the FLSA, and Defendant willfully refused to pay them for their overtime work. (Doc. 72-1 at 5, 13.) They also seek liquidated damages for the alleged willful violation. (Id. at 15–16.) As explained above, the FLSA exempts workers engaged in primary and secondary agriculture. Plaintiffs assert they perform neither.
A. Agricultural Exemption
Plaintiffs argue their work at the RMA is not primary or secondary agricultural activity because, among other things, Defendant does not raise all of the cows processed in the RMA. (Doc. 72-2 at 6–10.) As discussed above, the activities of the RMA do not fall under the primary agriculture exemption. Furthermore, there is a genuine issue of material fact as to whether all of the cows processed by the RMA after the fall of 2014 were raised by White Oak. Accordingly, there is a genuine issue of material fact as to whether the secondary exemption applies. Thus, Plaintiffs are not entitled to summary judgment.
B. Willful Violation of FLSA
The question of willfulness is not an appropriate issue for summary judgment, and the question of liquidated damages is premature. Alvarez Perez v. Sanford-Orlando Kennel Club, Inc. , 515 F.3d 1150, 1163 (11th Cir. 2008) ; see also Davila v. Menendez , 717 F.3d 1179, 1185 (11th Cir. 2013) (holding district court erred by refusing to submit issue of willfulness to jury). Accordingly, Plaintiffs are not entitled to summary judgment on this issue.
III. Motion for Decertification
"[T]o maintain a collective action under the FLSA, plaintiffs must demonstrate that they are similarly situated." Morgan v. Family Dollar Stores, Inc. , 551 F.3d 1233, 1258 (11th Cir. 2008). The Eleventh Circuit has adopted a two-step approach for class certification in FLSA collective actions. Id. at 1260. At the first step, a district court determines whether a collective action should be certified at the notice stage. Id. A plaintiff need only show a "reasonable basis for his claim that there are other similarly situated employees." Id. The Court granted Plaintiff Taylor's Motion for Certification at the first stage and conditionally certified the class. (Doc. 30.)
The second step generally "is triggered by [a defendant's] motion for decertification." Morgan , 551 F.3d at 1261. At this step, discovery has closed, and a district court has a more complete record; thus, the standard for class certification is less lenient. Id. Accordingly, "[t]he second stage requires more than ‘allegations and affidavits’ to maintain certification." Tanner v. Tpusa, Inc. , 2015 WL 6940118, at *4 (M.D. Ga. Nov. 9, 2015) (quoting Morgan, 551 F.3d at 1261 ). While there is not a "precise definition" of how similarly situated employees must be at the second step, the Eleventh Circuit has held that "as more legally significant differences appear amongst the opt-ins, the less likely it is that the group of employees is similarly situated." Morgan , 551 F.3d at 1259, 1261. In making this determination, courts consider several factors: (1) the "disparate factual and employment settings of the individual plaintiffs"; (2) "the various defenses available to defendant[s] [that] appear to be individual to each plaintiff"; and (3) "fairness and procedural considerations." Id. (internal punctuation omitted). See also Rindfleisch v. Gentiva Health Servs., Inc. , 22 F. Supp. 3d 1295, 1303 (N.D. Ga. 2014) ("[A]s a general rule, a group of opt-in plaintiffs cannot be similarly situated for purposes of a collective action when individual determinations regarding liability must be made.").
A. Disparate Factual and Employment Settings of Individual Plaintiffs
Plaintiffs do not have similar factual and employment settings. Several considerations help inform whether disparate factual and employment settings exist among individual Plaintiffs: (1) whether all plaintiffs held the same job titles; (2) whether the plaintiffs worked in the same geographic location; (3) whether the alleged violations occurred during the same time period; (4) whether the same policies and practices governed plaintiffs and whether the same decision-maker established these policies and practices in the same manner; and (5) the extent to which the alleged violations are similar. Whineglass v. Smith , 2013 WL 2237841, *7 (M.D. Fla. May 21, 2013) ; Stone v. First Union Corp. , 203 F.R.D. 532, 542–43 (S.D. Fla. 2001) (citing Grayson v. K Mart Corp. , 79 F.3d 1086, 1090, 1097–99 (11th Cir. 1996) ; Hipp v. Liberty Nat. Life Ins. Co. , 252 F.3d 1208, 1219 (11th Cir. 2001) ).
Here, Plaintiffs had different job responsibilities and experienced the alleged violation during different time periods. Defendant claims some RMA employees processed cows by slaughtering, cutting, or grinding them while others worked in support of the RMA by fulfilling orders. (Doc. 71-1 at 7.) In their Response, Plaintiffs acknowledge this distinction in duties, but they argue that the distinction is irrelevant because the claims of the entire class do not depend on the work that each member of the class performed because all Plaintiffs were considered "red meat plant workers." (Doc. 84 at 1; 7–8.) The distinction, however, is extremely relevant as it demonstrates that Plaintiffs are not similarly situated. Even if all RMA employees are "red meat plant workers," their responsibilities are as, if not more, relevant than their titles for purposes of determining similarity. See, e.g., Bradford v. Bed Bath & Beyond Inc. , 184 F. Supp. 2d 1342, 1345 (N.D. Ga. 2002) (finding the similarity of Plaintiffs' job duties to be the determinative issue for the defendant's motion for decertification). Slaughtering, cutting, and grinding cows is dissimilar to fulfilling orders, or working on the loading or shipping docks. (See Doc. 71-1 at 2–3.) Depending on the employee's level, the responsibilities of an employee in order fulfilment can involve "[keeping] product organized and counted," "[picking] and pack[ing] orders to the specifications provided," "[checking] picked orders for accuracy," and "[maintaining] inventory system set in place." (Doc. 74 at 235.) Working on the docks entails putting packaged meat onto a truck to be delivered to buyers and loading and unloading trucks. (Id. at 117:5–17, 121:2–11; Doc. 71-1 at 2.)
Defendant also argues that either some Plaintiffs did not work overtime during the relevant time period or Plaintiffs will need to present individualized evidence at trial to prove which employees did work overtime. (Doc. 71-1 at 6.) Specifically, Defendant claims at least two opt-in Plaintiffs did not work for White Oak during the applicable statute of limitations period. (Id. ) In response, Plaintiffs argue the appropriate remedy is for Defendant to remove any time-barred claims through a motion for summary judgment as opposed to a motion for decertification. (Doc. 84 at 1–3.) "[T]he fact that some Plaintiffs did not actually work overtime hours, creates a disparate factual setting among the individual Plaintiffs as the issue of liability is not susceptible to common proof." Rindfleisch , 22 F. Supp. 3d at 1303. "Put more simply, the Court cannot envision a more pertinent disparate factual setting, for purposes of the similarly situated inquiry, among a group of Plaintiffs than the fact that some members of the group do not actually have a viable claim in the action at issue." Id. ; see also Babineau v. Fed. Exp. Corp. , 576 F.3d 1183, 1191–92 (11th Cir. 2009) (finding district court reasonably denied certification after finding the need to determine whether employees actually worked during relevant periods); Klay v. Humana, Inc. , 382 F.3d 1241, 1255 (11th Cir. 2004) (holding certification is inappropriate if the "plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims ...."), abrogated in part on other grounds by Bridge v. Phx. Bond & Indem. Co. , 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008).
Further, creating a sub-class of Plaintiffs who did not work overtime will not create commonality among the remaining Plaintiffs with various job responsibilities during the time frame at issue. See In re Silicone Gel Breast Implant Prods. Liab. Litig. , 2010 WL 11506713, at *44 (N.D. Ala. May 19, 2010) ("[T]he mandate to sub-class is relevant only as a safety-valve against class counsel subordinating the interests of some class members to benefit others, including non-class members ....") (citing Ortiz v. Fibreboard Corp. , 527 U.S. 815, 864–65, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) ). While the cases Plaintiffs cite demonstrate that Defendant can move for summary judgment as to a subclass of Plaintiffs with time-barred claims, they do not prohibit Defendant from seeking to decertify the class on these same grounds. See Pendlebury v. Starbucks Coffee Co. , 2008 WL 113667, at *1–2 (S.D. Fla. Jan. 8, 2008) (standing only for the proposition that summary judgment can be granted to a portion of a class with distinguishable commonalities); Gutescu v. Carey Int'l Inc. , 2004 WL 5333763, at *4 (S.D. Fla. Feb. 25, 2004) (granting summary judgment against subclass of plaintiffs with time-barred claims).
B. Defenses Individual to Each Plaintiff
Fact-intensive defenses that depend on the details of a specific job duty and the actual work the employee performs weigh in favor of decertification. See Morgan , 551 F.3d at 1263 (finding individual defense factor in favor of decertification because the defense was "an inherently fact-based inquiry" as to each employee) (citing Rodriguez v. Farm Stores Grocery, Inc. , 518 F.3d 1259, 1263 (11th Cir. 2008) ). Here, the ultimate issue is whether the FLSA exempts Plaintiffs from being entitled to overtime pay. (See Doc. 71-1 at 5.) As part of its defense, Defendant claims, and Plaintiffs do not dispute, that the RMA employees performed different jobs which would result in different classifications. (See id. at 7; Doc. 84 at 7–8.) As a result, some employees may be exempt and others may not. Furthermore, the same employee might perform exempt work on some days and non-exempt work on other days. For example, some RMA employees were responsible for fulfilling orders. (Doc. 71-1 at 7; Doc. 84 at 7–8.) Whether the FLSA exempts an employee who performs clerical work like fulfilling orders is a fact-intensive inquiry that requires an individual analysis. See Hodgson v. Ewing , 451 F.2d 526, 529 (5th Cir. 1971) ("Clerical ... work [is] incidental to agricultural production under the facts presented and [is] exempt only if ordinarily done by a farmer or on a farm.") (alteration in original); Larson , 154 F.2d at 702 (holding clerical workers who kept records and accounts of business operations were not exempt agricultural laborers). Thus, the individual defense factor weighs in favor of decertification.
C. Fairness and Procedural Concerns
Plaintiffs filed their action under 29 U.S.C. § 216(b). (Doc. 25 ¶ 19.) When considering fairness and procedural concerns, courts analyze the similarity of the class, individualized factors relating to the plaintiffs, and the purposes of § 216(b) actions under the FLSA, which primarily is to limit Plaintiffs' burden by combining resources and efficiently resolving common issues of law and fact that originate from the same alleged conduct. Morgan , 551 F.3d at 1264 (citing Hoffmann-La Roche, Inc. v. Sperling , 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ). As explained above, the class is not factually similar, and Plaintiffs require individualized defenses. The dissimilarities require Defendant to apply different legal principles to the various Plaintiffs. Thus, fairness and procedural concerns weigh in favor of decertification.
Based on the information the Parties presented regarding Defendant's Motion for Class Decertification (Doc. 71), the RMA employees are not similarly situated. Specifically, disparate factual and employment settings exist among the class, Plaintiffs require individual defenses, and the class has uncommon issues of law and fact. Therefore, it is appropriate to decertify the class at this point.
CONCLUSION
For the reasons set forth above, Defendant's Motion for Decertification (Doc. 71) is GRANTED . Defendant's Motion for Summary Judgment (Doc. 77) is DENIED . Plaintiffs' Motion for Partial Summary Judgment (Doc. 72) is DENIED .
SO ORDERED , this 27th day of March, 2020.