De Asencio v. Tyson Foods, Inc.

Decision Date08 September 2003
Docket NumberNo. 02-3719.,02-3719.
Citation342 F.3d 301
PartiesMelania Felix DE ASENCIO; Manuel A. Gutierrez; Asela Ruiz; Eusebia Ruiz; Luis A. Vigo; Luz Cordova; Hector Pantajos, on Behalf of Themselves and All Other Similarly Situated Individuals v. TYSON FOODS, INC., Appellant.
CourtU.S. Court of Appeals — Third Circuit

Michael J. Mueller, (Argued), Akin, Gump, Strauss, Hauer & Feld, Washington, DC, for Appellant.

Frederick P. Santarelli, (Argued), Thomas J. Elliott, Eric L. Young, Elliott, Reihner, Siedzikowski & Egan, Blue Bell, PA, for Appellees.

Before: SCIRICA, Chief Judge,* AMBRO and GARTH, Circuit Judges.


SCIRICA, Chief Judge.

In a labor dispute over unpaid wages, plaintiffs gained certification of an opt-in class under the Fair Labor Standards Act and then sought certification of a Fed. R.Civ.P. 23(b)(3) opt-out class under the Pennsylvania Wage Payment & Collection Law. The District Court granted the Rule 23 certification. At issue is whether the District Court should have exercised supplemental jurisdiction over the state-law class under 28 U.S.C. § 1367.


Plaintiffs are hourly employees at defendant Tyson Foods' two chicken-processing plants in New Holland, Pennsylvania (Lancaster County). Plant One employees work on the production line slaughtering birds and producing meat for direct sale or further processing. Those at Plant Two process the chicken meat, producing prepared, packed chicken products, like chicken nuggets, chicken tenders, chicken patties, and Buffalo wings.

Animal flesh, blood, and fecal matter are present throughout both plants. To protect against disease and safety hazards, Tyson employees are required to perform "donning, doffing, and sanitizing" activities. This entails putting on protective clothing-like hairnets, earplugs, safety goggles, cotton smocks, gloves, and plastic aprons — before the start of their shift, and rinsing their clothing and washing their hands at the end of their shift. Employees receive two unpaid 30-minute meal periods per shift, and must don, doff, and sanitize at the beginning and end of these breaks.1

Tyson ordinarily does not pay its employees for time spent donning and doffing.2 The plaintiff employees are not organized nor do they work under a written contract. There is no collective bargaining.


In August 2000, plaintiffs filed suit against Tyson under both federal law (the Fair Labor Standards Act, 29 U.S.C. §§ 201-219) and state law (the Pennsylvania Wage Payment & Collection Law, 43 P.S. §§ 260.1-260.45) on behalf of themselves and similarly situated co-workers at Tyson's chicken processing complex.

On October 4, plaintiffs sought collective treatment of their FLSA action under the federal statute's opt-in provisions. 29 U.S.C. § 216(b) ("[N]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought."). Plaintiffs did not seek class certification on the state-law WPCL action at that time.

On January 31, 2001, the District Court granted plaintiffs' request to issue notice to prospective class members under the FLSA action. The court's notice stated, in part, "The Court has not yet determined that the claims under the Pennsylvania WPCL can be pursued as a class action, and thus your right to participate in that claim will depend on a later decision by the Court."

On March 15, Tyson mailed out the notice to 3,400 prospective FLSA class members. On June 21, Tyson filed a motion to close the class period. At that time, 502 current and former employees — or 15 percent of the allegedly eligible class — had elected to join the FLSA action by filing written consent forms. Plaintiffs contested the motion to close, claiming that a substantial number of prospective plaintiffs never received notice and that Tyson improperly discouraged its current and former employees from participating in the action. The record showed that 783 putative FLSA class members never received notice of the opt-in action because Tyson mailed the notice to the wrong address.3

On July 24, the District Court closed the class period and denied plaintiffs' motion to reissue notice. The class consisted of 504 current and former employees. The District Court later dismissed, on summary judgment, the claims of 57 of those employees as barred by the statute of limitations. All parties acknowledge that the current size of the FLSA class is 447 persons.

On December 31, the District Court closed discovery. Nearly two months later, on February 22, 2002, plaintiffs filed a motion to certify the supplemental state-law WPCL action under Fed.R.Civ.P. 23. Plaintiffs' motion for class treatment under the supplemental state-law action was filed 17 months after their motion to certify the federal FLSA action. The District Court heard arguments on whether plaintiffs could bring a WPCL action because they had not pleaded a contract claim, the predicate for a WPCL action. On May 14, plaintiffs argued for the first time that the WPCL action was grounded in an implied contract between Tyson and its hourly employees.4

On July 17, despite Tyson's objections that the WPCL certification motion was late and that the implied contract argument was new, the District Court granted plaintiffs' motion to certify the state WPCL action under Fed.R.Civ.P. 23(b)(3).5 The state-law class, an opt-out class, consisted of approximately 4,100 persons, including approximately 700 employees hired after notice was sent to the FLSA class.

The District Court had subject matter jurisdiction over plaintiffs' FLSA action under 28 U.S.C. § 1331 and exercised supplemental jurisdiction over plaintiffs' state-law action under 28 U.S.C. § 1367. Tyson disputes the District Court's exercise of supplemental jurisdiction. Tyson petitioned for leave to appeal the certification order under Fed.R.Civ.P. 23(f), which was granted. We have jurisdiction over the interlocutory appeal under 28 U.S.C. § 1292(e) and Fed.R.Civ.P. 23(f).


In 1938, Congress enacted the Fair Labor Standards Act to govern the maintenance of standard hour and wage practices. The FLSA requires employers to pay their employees at least a specified minimum hourly wage for work performed, 29 U.S.C. § 206, and to pay one and one-half times the employee's regular rate of pay for hours worked in excess of forty hours per week, 29 U.S.C. § 207. Employers who violate these provisions are "liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b).

The legislation propelled thousands of portal-to-portal lawsuits. The term "portal to portal" represents an employee's work day from starting time to quitting time. Jewell Ridge Coal Corp. v. United Mine Workers, 325 U.S. 161, 188, 65 S.Ct. 1063, 89 L.Ed. 1534 (1945) (Jackson, J., dissenting); Connors v. Beth Energy Mines, Inc., 920 F.2d 205, 208 (3d Cir. 1990) (work day was eight hours from portal-to-portal including thirty minutes for lunch). Between July 1, 1946 and January 31, 1947, employees around the country filed 1,913 such actions under the FLSA. 93 Cong. Rec. 2,082 (1947).

The dramatic increase in these suits was a result of the Supreme Court's decision in Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), which expanded the scope of compensable "working time" for FLSA purposes. See 93 Cong. Rec. 2,089 (1947) ("[W]hat is the cause of this widespread litigation? The immediate incident which apparently brought this vast flood of litigation upon our nation was the decision of the Supreme Court [in Anderson ]."). Responding to this increase in litigation, Congress sought "to define and limit the jurisdiction of the courts" through the Portal-to-Portal Act, Pub.L. No. 80-49, ch. 52, § 1(b)(3), 61 Stat. 85 (1947). 93 Cong. Rec. 2,087 (1947) ("[T]he attention of the Senate is called to a dramatic influx of litigation, involving vast alleged liability, which has suddenly entered the Federal courts of the Nation."). Noting the "immensity of the [litigation] problem," id. at 2,082, Congress attempted to strike a balance to maintain employees' rights but curb the number of lawsuits. Under the Portal-to-Portal Act, an FLSA action for overtime pay could be maintained by "one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). But the statute contained an express opt-in provision: "No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id.

Because the Portal-to-Portal Act amendment changed participation in an FLSA class from "opt-out" to "opt-in," FLSA plaintiffs could not certify a class under Fed.R.Civ.P. 23, even though federal subject matter jurisdiction obtained. E.g., Lusardi v. Lechner, 855 F.2d 1062, 1068 n. 8 (3d Cir.1988) ("Courts have generally recognized that Rule 23 class actions may not be used under FLSA § 16(b)."); 5 James Wm. Moore et al., Moore's Federal Practice § 23.06[1] (3d ed. 2003) ("Rule 23 is inapplicable to class proceedings under the FLSA."). The principal difference between FLSA class actions and Fed. R.Civ.P. 23 class actions is that prospective plaintiffs under the FLSA must consent to join the class.

As noted, plaintiffs here obtained federal court jurisdiction when they filed a FLSA action, alleging that Tyson was liable to pay its employees for time spent donning and doffing. The District Court ordered notice to prospective class members and later certified a class of 504 persons who consented in writing to become party plaintiffs.6 The certification of this class is not...

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