Bouaphakeo v. Tyson Foods, Inc., No. 12–3753.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBENTON
Citation765 F.3d 791
PartiesPeg BOUAPHAKEO; Javier Frayre; Jose A. Garcia; Mario Martinez; Jesus A. Montes; Heribento Renteria, on behalf of themselves and all other similarly situated individuals, Plaintiffs–Appellees v. TYSON FOODS, INC., Defendant–Appellant.
Docket NumberNo. 12–3753.
Decision Date25 August 2014

765 F.3d 791

Peg BOUAPHAKEO; Javier Frayre; Jose A. Garcia; Mario Martinez; Jesus A. Montes; Heribento Renteria, on behalf of themselves and all other similarly situated individuals, Plaintiffs–Appellees
v.
TYSON FOODS, INC., Defendant–Appellant.

No. 12–3753.

United States Court of Appeals,
Eighth Circuit.

Submitted: Feb. 11, 2014.
Filed: Aug. 25, 2014.


[765 F.3d 794]


Michael J. Mueller, argued, Washington, DC, (Thomas Edwin Johnson, Allison Balus, Omaha, NE, Thomas Walsh, Saint Louis, MO, Evangeline C. Paschal, Washington, DC, Emily Burkhardt Vicente, Los Angeles, CA, on the brief), for appellant.

Robert L. Wiggins, Jr., argued Birmingham, AL, (William Michael Hamilton, Nashville, TN, Brian P. McCafferty, Blue Bell, PA, Daniel Arciniegas, Candis A. McGowan, Birmingham, AL, Roger K. Doolittle, Jackson, MS, on the brief) for appellee.


Before SMITH, BEAM, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Peg Bouaphakeo and other named plaintiffs are employees of Tyson Foods, Inc. They represent a class of employees at Tyson's meat-processing facility in Storm Lake, Iowa. They sued Tyson for not paying wages due under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., and the Iowa Wage Payment Collection Law (IWPCL), Iowa Code 91A.1 et seq. A jury returned a verdict for the class. Tyson appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

The employees are current and former “gang-time” employees at Tyson's facility. The background is similar to that in Lopez v. Tyson Foods, Inc., 690 F.3d 869, 873–75 (8th Cir.2012) (adapted to the facts of this case):

To calculate the employees' compensable working time, Tyson measures “gang time”—when the employees are at their working stations and the production line is moving. The employees claim Tyson failed to provide FLSA overtime compensation for donning (putting on) personal protective equipment (PPE) and clothing before production and again after lunch, and for doffing (taking off) PPE and clothing before lunch and again after production. The PPE and clothing worn by individual employees vary depending on their role in the process. Tyson classifies items of PPE and clothing as either “unique” or “non-unique” to the meat-processing industry.... The employees also seek compensation for transporting the items from lockers to the production floor.

In addition to “gang time,” Tyson adds “K-code” time to each employee's paycheck. Before 2007, Tyson paid four minutes of K-code time per day to each [employee in a department where knives were used] in order to compensate for the donning and doffing of unique items. From [February] 2007 to [June] 2010, Tyson added [several minutes] per day for pre-and post-shift walking time required of the employee.... Tyson does not record the actual time that employees perform any of these tasks.

....

The FLSA prohibits the employment of any person “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);

[765 F.3d 795]

IBP, Inc. v. Alvarez, 546 U.S. 21, 25 [126 S.Ct. 514, 163 L.Ed.2d 288] (2005). An employee who sues for unpaid overtime “has the burden of proving that he performed work for which he was not properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87 [66 S.Ct. 1187, 90 L.Ed. 1515] (1946), superseded by statute on other grounds, Portal–to–Portal Act of 1947, Pub.L. No. 80–49, 61 Stat. 84; Fast v. Applebee's Int'l, Inc., 638 F.3d 872, 881 (8th Cir.2011). “Neither ‘work’ nor ‘workweek’ is defined in the statute.” Alvarez, 546 U.S. at 25 [126 S.Ct. 514]. At one time, the Supreme Court defined work as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 [64 S.Ct. 698, 88 L.Ed. 949] (1944), superseded by statute on other grounds, Portal–to–Portal Act of 1947, Pub.L. No. 80–49, 61 Stat. 84. The Court then “clarified that ‘exertion’ was not in fact necessary for an activity to constitute ‘work’ under the FLSA.” Alvarez, 546 U.S. at 25 [126 S.Ct. 514], citing Armour & Co. v. Wantock, 323 U.S. 126, 133 [65 S.Ct. 165, 89 L.Ed. 118] (1944).

Whether an employee's activity is “work” does not end the compensability analysis. In the Portal–to–Portal Act, Congress excluded some activities that might otherwise constitute work from the FLSA. The Act excepts two categories:

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

29 U.S.C. § 254(a); Alvarez, 546 U.S. at 26–28, 126 S.Ct. 514. “[A]ctivities performed either before or after the regular work shift, on or off the production line, are compensable ... if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by [29 U.S.C. § 254(a)(1) ].” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956) (emphasis added). And, “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. § 254(a) ].” Alvarez, 546 U.S. at 37, 126 S.Ct. 514.

The Department of Labor has a “continuous workday rule,” generally defining an employee's “workday” as “the period between the commencement and completion on the same workday of an employee's principal activity or activities.” 29 C.F.R. § 790.6(b); Alvarez, 546 U.S. at 29, 37 [126 S.Ct. 514] (describing and applying the continuous workday rule). During the continuous workday, the compensability of all activities that otherwise satisfy the requirements of the FLSA is not affected by the Portal–to–Portal Act's exceptions. In Alvarez, the Supreme Court held that “during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of [the Portal–to–Portal Act], and as a

[765 F.3d 796]

result is covered by the FLSA.” Alvarez, 546 U.S. at 37 [126 S.Ct. 514].

The employees sued in 2007, claiming that Tyson's K-code time was insufficient to cover compensable pre- and post-production line activities, violating the FLSA and IWPCL. The district court 1 certified the FLSA claim as a collective action and the IWPCL claim as a Rule 23 class action.2 During a nine-day trial, plaintiffs proved liability and damages by using individual timesheets, along with average donning, doffing, and walking times calculated from 744 employee observations. The jury returned a verdict for the class of $2,892,378.70. With liquidated damages, the final judgment totaled $5,785,757.40.

II.

Tyson argues that the district court erred in certifying the FLSA collective action—under 29 U.S.C. § 216(b)—and the IWPCL class—under Rule 23.3 Class certification is reviewed for abuse of discretion. Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029 (8th Cir.2010) (reviewing class certification under Rule 23 for abuse of discretion); Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.2001) (“The decision to create an opt-in class under § 216(b), like the decision on class certification under Rule 23, remains soundly within the discretion of the district court.”). A district court may certify a class under Rule 23(b) if “questions of law or fact common to class members predominate over any questions affecting only individual members,” and “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b). The FLSA allows named plaintiffs to sue “for and in behalf of ... themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Plaintiffs may be similarly situated when “they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir.2009). A court may consider “(1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations.” Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001).4

[765 F.3d 797]

According to Tyson, factual differences between plaintiffs—differences in PPE and clothing between positions, the individual routines of employees, and variation in duties and management among departments—make class certification improper. These differences, Tyson says, do not allow the class action to “generate common answers apt to drive the resolution of the litigation.” Wal–Mart Stores, Inc. v. Dukes, –––U.S. ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). See Luiken v. Domino's Pizza, LLC, 705 F.3d 370, 374–76 (8th Cir.2013) (applying Dukes and reversing certification when the interaction between individual customers and employees meant liability was “dominated by individual issues”); Bennett v. Nucor Corp., 656 F.3d 802, 815 (8th Cir.2011) (denying certification when there were “stark inter-departmental variations in job titles, functions performed, and equipment used”). Unlike Dukes, Tyson had a specific company policy—the payment of K-code time for donning, doffing, and...

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85 practice notes
  • Zanders v. Wells Fargo Bank N.A., No. 4:14–cv–00288–JEG–RAW.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • October 28, 2014
    ...district court's decision in Bouaphakeo, the case was transferred to the Southern District of Iowa. See Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 801 (8th Cir.2014) [hereinafter Bouaphakeo II ]. The Bouaphakeo case proceeded to trial and the jury was permitted to consider the FLSA clai......
  • Pietrzycki v. Heights Tower Serv., Inc., No. 14 C 6546
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 29, 2017
    ...800 F.3d 1094, 1099 (9th Cir. 2015) ; Guyton v. Tyson Foods, Inc. , 767 F.3d 754, 758 (8th Cir. 2014) ; Bouaphakeo v. Tyson Foods, Inc. , 765 F.3d 791, 795 (8th Cir. 2014). The PPA accomplishes this by immunizing employers from liability related to "two categories of activities that had bee......
  • Campbell v. City of L. A., No. 15-56990
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2018
    ...resolving the common issue that does exist, and that must be answered in the first instance. See, e.g. , Bouaphakeo v. Tyson Foods, Inc. , 765 F.3d 791, 797 (8th Cir. 2014), aff'd , ––– U.S. ––––, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016). Nor are individualized damages calculations inherently......
  • Crowe v. Examworks, Inc., CIVIL ACTION NO. 13-10249-DPW
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 30, 2015
    ...who have no legal right to damages—may be certified is an issue before the Supreme Court this term. See Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th Cir.2014), cert. granted, ––– U.S. ––––, 135 S.Ct. 2806, ––– L.Ed.2d –––– (Mem.) (June 8, 2015) (No. 14–1146).30 The plaintiffs have not......
  • Request a trial to view additional results
85 cases
  • Zanders v. Wells Fargo Bank N.A., No. 4:14–cv–00288–JEG–RAW.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • October 28, 2014
    ...district court's decision in Bouaphakeo, the case was transferred to the Southern District of Iowa. See Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 801 (8th Cir.2014) [hereinafter Bouaphakeo II ]. The Bouaphakeo case proceeded to trial and the jury was permitted to consider the FLSA clai......
  • Pietrzycki v. Heights Tower Serv., Inc., No. 14 C 6546
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 29, 2017
    ...800 F.3d 1094, 1099 (9th Cir. 2015) ; Guyton v. Tyson Foods, Inc. , 767 F.3d 754, 758 (8th Cir. 2014) ; Bouaphakeo v. Tyson Foods, Inc. , 765 F.3d 791, 795 (8th Cir. 2014). The PPA accomplishes this by immunizing employers from liability related to "two categories of activities that had bee......
  • Campbell v. City of L. A., No. 15-56990
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2018
    ...resolving the common issue that does exist, and that must be answered in the first instance. See, e.g. , Bouaphakeo v. Tyson Foods, Inc. , 765 F.3d 791, 797 (8th Cir. 2014), aff'd , ––– U.S. ––––, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016). Nor are individualized damages calculations inherently......
  • Crowe v. Examworks, Inc., CIVIL ACTION NO. 13-10249-DPW
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 30, 2015
    ...who have no legal right to damages—may be certified is an issue before the Supreme Court this term. See Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th Cir.2014), cert. granted, ––– U.S. ––––, 135 S.Ct. 2806, ––– L.Ed.2d –––– (Mem.) (June 8, 2015) (No. 14–1146).30 The plaintiffs have not......
  • Request a trial to view additional results

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