Dekeyser v. Thyssenkrupp Waupaca Inc. D/B/A Waupaca Foundry Inc.

• Decision Date: 29 September 2010
• Docket Number: Case No. 08–C–488.
• Citation: 747 F.Supp.2d 1043
• Parties: Ryan DeKEYSER, Thomas Cooper, Harley Granius and Carlo Lantz, on behalf of themselves and others similarly situated, Plaintiffs,v.THYSSENKRUPP WAUPACA, INC. d/b/a Waupaca Foundry, Inc., Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

747 F.Supp.2d 1043

Ryan DeKEYSER, Thomas Cooper, Harley Granius and Carlo Lantz, on behalf of themselves and others similarly situated, Plaintiffs,

v.THYSSENKRUPP WAUPACA, INC. d/b/a Waupaca Foundry, Inc., Defendant.

Case No. 08–C–488.

United States District Court, E.D. Wisconsin.

Sept. 29, 2010.

Anne T. Regan, John Gordon Rudd, Jr., Zimmerman Reed PLLP, Minneapolis, MN, Kelly A. Swanson, T. Joseph Snodgrass, Troy F. Tatting, Larson King LLP, St. Paul, MN, Patricia Agnes Bloodgood, Zwerling Schachter & Zwerling LLP, New York, NY, for Plaintiffs.Joseph Louis Olson, Paul E. Benson, Mitchell W. Quick, Michael Best & Friedrich LLP, Milwaukee, WI, for Defendant.

DECISION AND ORDER

WILLIAM C. GRIESBACH, District Judge.

Plaintiffs filed this lawsuit against their current or past employer, Defendant Thyssenkrupp Waupaca, Inc. d/b/a Waupaca Foundry, Inc. (“Waupaca”), claiming they had been denied wages for hours worked over the preceding three-year period. One of the claims Plaintiffs have brought is a collective action pursuant to the Fair Labor Standards Act of 1938 as Amended, 29 U.S.C. § 201, et seq. (“FLSA”). Plaintiffs claim that under the FLSA they are owed compensation for time spent “donning and doffing gear and equipment, showering, and walking to and from the production floor.” (Compl. ¶ 1.) The Court conditionally certified a collective class pursuant to Section 216(b) of the FLSA. Subsequently, the Court adopted Plaintiffs' proposed case management plan, which provided for a stay of discovery and a round of summary judgment briefing in order to resolve disputed legal issues. Plaintiffs filed a motion for partial summary judgment, in which they contend the undisputed facts demonstrate that their donning, doffing and showering are compensable work under the FLSA as amended by the Portal–to–Portal Act. Plaintiffs also argue that because modern technology permits Waupaca to record the time spent donning, doffing and showering, the de minimis defense asserted by Waupaca is not available as a matter of law. Finally, Plaintiffs seek summary judgment on a number of Waupaca's affirmative defenses.

Waupaca responded to Plaintiffs' motion for partial summary judgment and filed a cross-motion for summary judgment. Waupaca maintains that donning, doffing and showing are not “work” under the FLSA, and because these activities need not occur at the work site, they are not compensable. It also contends that the de minimis defense still applies and that three of its affirmative defenses to the FLSA claim are viable.

Although the Court set this case on a path for potential early and cost-efficient resolution of legal issues, the extent of the factual disputes between the parties appears significant given the motion practice subsequent to Plaintiff's filing of their motion for partial summary judgment. Both parties filed a declaration or affidavit under Fed.R.Civ.P. 56(f). Plaintiff also filed four motions invoking Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to challenge the declarations of Dr. Mark Roberts, Bryant Esch, Frederick Kohloff and Dr. Jeffrey Fernandez made in support of Waupaca's cross-motion for summary judgment. (Dkts. 204, 206, 208, 210.) For the reasons stated below, the motions for summary judgment will be denied, and the Plaintiffs' motions to exclude the declarations of Roberts, Esch, Kohloff and Fernandez will be denied.

I. BACKGROUND

Defendant Waupaca employs approximately 3,500 people and operates six foundries in Waupaca and Marinette, Wisconsin; Tell City, Indiana; and Etowah, Tennessee. (Dkt. 219 at 2.) It manufactures a variety of ductile and gray iron cast parts for use in the automotive and other industries. ( Id.) Six different current or former Waupaca foundry employees who opted into this action provided declarations in which they claim Waupaca has not paid them for all of the time they have worked. (Dkt. 153 Exs. II, JJ, KK, LL, MM, NN.) Specifically, the declarants indicate that at various times they entered one of Waupaca's foundries in their street clothes, picked up a uniform that had been laundered by a third party at Waupaca's expense, put on the uniform and such items as boots, protective glasses and earplugs, and then swiped in using their unique badge, from which point they were paid. After they swiped out at the end of the day, the declarants claim they would remove their personal protective equipment (“PPE”), deposit their soiled uniforms in a basket in the locker room, shower and change back into their street clothes. Because these activities occurred after they swiped out for the day, the declarants aver they were not compensated for the time it took to accomplish these tasks.

It is unclear whether this was something the declarants did every work day or only occasionally, as their declarations disclaim any intent to indicate the frequency with which they changed and showered in Waupaca's locker rooms. The parties do not dispute the fact that not all of Waupaca's employees donned, doffed and showered at Waupaca's plants every day. In fact, Waupaca's Director of Human Resources, Joey Leonard, claims to have observed workers entering and leaving all six of its plants wearing their work uniforms (some fire-proof) and work boots, and also observed workers leaving for the day wearing these same items. (Dkt. 177 at ¶ 6; Dkt. 219 at 7.) Further, Waupaca asserts that its staff has observed employees at all six plants putting on and taking off hard hats, safety glasses and earplugs post-swipe in, and pre-swipe out, which would mean that they were being paid during this period of time. (Dkt. 177 at ¶ 7; Dkt. 219 at 7.)

The parties dispute what PPE Waupaca employees must wear. According to Plaintiffs, all Waupaca production employees must wear a hard hat, safety glasses, earplugs, steel toed shoes, 100% cotton clothing or a uniform provided by Waupaca and gloves (for employees in two specific plants). Waupaca, on the other hand, maintains that the only items that all of its production employees must wear are steel toed shoes and 100% cotton clothing or a company-provided uniform. (Dkt. 196 at v.)

Another point of contention between the parties is whether or not Waupaca requires its production employees to don and doff their PPE and cotton clothes or uniforms and shower at Waupaca's plants. While Plaintiffs admit that Waupaca has no formal policy requiring these items to be donned at the work site, they argue that the fact Waupaca provides uniforms, a laundry service, safety glasses, boots and ear plugs, along with lockers and a locker room, suggests that Waupaca at least encourages donning these items on site. As to doffing and showering, Plaintiffs point to a September 2005 Hazard Communication from Waupaca to its employees which discusses silica. The document discusses the health risks of exposure to silica and lead, both of which are present in cupola dust, and reads as follows:

After working in a dusty area, practice good personal hygiene by showering and leaving your uniform at work. Cupola dust poses no hazard from skin contact, but showering at work will prevent the material from being tracked into your car or home. During the day, wash hands and face prior to eating, drinking, or smoking.

(Dkt. 153 Ex. U at TKW0167298; see also Dkt. 152 Ex. X at TKW0236658.) Plaintiffs also intimate that it is likely Waupaca's insurance carrier requires it to provide a place for its production employees to change and shower on site, although Waupaca has made clear in reply that its carrier does not require such amenities. (Rob Johnson Decl., ¶¶ 1–5.) It is undisputed that Waupaca provides its foundry employees the use of lockers, locker rooms and showers to allow them to change clothes and shower on site. Plaintiffs concede that certain employees may not shower on certain days, and as noted above even the six declarants themselves do not indicate how often they shower at work.

From Waupaca's point of view, it does not demand that its employees change and shower at its plants, and it is at liberty to close the locker rooms and showers as it is not required to provide these facilities.

The parties are also at loggerheads on the question of whether the nature of the work undertaken by production employees at Waupaca requires them to change clothes and shower at Waupaca's plants. Plaintiffs assert that, given the health risks associated with exposure to respirable crystalline silica, Waupaca's employees must change and shower at work; they submit that the relevant literature on industrial hygiene supports their position. Waupaca contends that this literature is distinguishable and not applicable to the operations at its plants. (Dkt. 234 at 14–15.) Waupaca's experts contend that the nature of the work does not require clothes changing and showering at the end of the work day, though Plaintiffs challenge the reliability of these opinions under Fed.R.Evid. 702 and Daubert, and seek discovery regarding the bases of these opinions.

In addition to disputing whether the nature of the work at Waupaca's facilities and Waupaca itself requires the production employees to change and shower on site, the parties dispute whether the law requires them to do so. While they have not identified a statute or regulation requiring foundry workers to change and shower at the foundry, Plaintiffs maintain that the Occupational Safety and Health Administration (“OSHA”), the National Institute for Occupational Safety and Health (“NIOSH”) and the Department of Labor (“DOL”) all recommend that foundry workers change out of work clothes at the end of their work shifts in an effort to minimize the health risks associated with exposure to respirable silica. OSHA also recommends that construction employees exposed to crystalline silica “shower if facilities are available.” (Dkt. 149, Ex. AA at 2.) Waupaca filed a declaration of ...