Guinan v. Boehringer Ingelheim Vetmedica, Inc., C10–3007–MWB.

• Court: United States District Courts. 8th Circuit. Northern District of Iowa
• Citation: 803 F.Supp.2d 984
• Docket Number: No. C10–3007–MWB.,C10–3007–MWB.
• Parties: Tammy GUINAN, Maggie Flint, Jill McCaleb and Keith Clark, Individually, and on Behalf of Others Similarly Situated, Plaintiffs, v. BOEHRINGER INGELHEIM VETMEDICA, INC., a Delaware Corporation, Defendant.
• Decision Date: 25 July 2011

803 F.Supp.2d 984

Tammy GUINAN, Maggie Flint, Jill McCaleb and Keith Clark, Individually, and on Behalf of Others Similarly Situated, Plaintiffs,
v.
BOEHRINGER INGELHEIM VETMEDICA, INC., a Delaware Corporation, Defendant.

No. C10–3007–MWB.

United States District Court,N.D. Iowa,Central Division.

July 25, 2011.

[803 F.Supp.2d 986]

J. Barton Goplerud, Michael P. Mallaney, Hudson, Mallaney, Shindler & Anderson, P.C., West Des Moines, IA, Elizabeth A. Fegan, Timothy P. Mahoney, Hagens Berman Sobol Shapiro, LLP, Oak Park, IL, for Plaintiffs.

Eric R. Magnus, Robert W. Capobianco, Stephen X. Munger, Jackson Lewis LLP, Atlanta, GA, Frank M. Liberatore,

[803 F.Supp.2d 987]

Jared L. Bryan, Samantha N. Hoffman, Jackson Lewis, LLP, Newport Beach, CA, Kenneth M. Wentz, III, Jackson Lewis, LLP, Omaha, NE, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTION TO STRIKE AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT MARK W. BENNETT, District Judge.

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                ¦TABLE OF CONTENTS¦
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I. INTRODUCTION AND BACKGROUND 987
                

 A. Factual Background 987
                 B. Procedural Background 989
                

II. WHAT RECORD CAN BE CONSIDERED? 990
                

 A. Standards For Motion To Strike 990
                 B. Plaintiffs' Motion To Strike 990
                

III. MOTION FOR SUMMARY JUDGMENT 992
                

 A. Summary Judgment Standards 992
                 B. Analysis 993
                

 1. Overview of the IWPCL 993
                 2. FLSA § 203( o )'s exclusion of time 994
                

 a. Burden of proof 995
                 b. Changing Clothes 996
                 c. Custom or practice 1000
                

IV. CONCLUSION 1001
                

Plaintiffs have brought claims on behalf of hourly employees at defendant's Fort Dodge Health Production Facilities in Fort Dodge, Iowa. Plaintiffs claim that defendant's failure to compensate donning and doffing time violates the Iowa Wage Payment and Collections Law, IOWA CODE § 91A.1 et seq. Defendant moved for summary judgment on a number of affirmative defenses, requiring me to decide, inter alia, whether donning and doffing workers' personal protective equipment is “changing clothes” under the Fair Labor Standards Act, 29 U.S.C. § 203( o ), the statute plaintiffs rely upon to establish a violation of the Iowa Wage Payment and Collections Law.

I. INTRODUCTION AND BACKGROUND A. Factual Background

The summary judgment record reveals the following facts are undisputed. Plaintiffs Tammy Guinan, Maggie Flint, Jill McCaleb and Keith Clark are current or former hourly, non-exempt production employees of defendant Boehringer Ingelheim Vetmedica, Inc. (“BIVI”) at its Fort Dodge Health Production Facilities (“FD”) in Fort Dodge, Iowa. FD is owned and operated by BIVI.

FD manufactures and packages pharmaceutical and biological products for livestock and pets. At its Riverside facility, FD manufactures pharmaceutical products and does packaging. At its Fifth Street facility, FD manufactures vaccines and conducts research and development.

The United Food and Commercial Workers Union Local 6 (“UFCW”) has represented workers at FD since at least 1995. Plaintiffs worked pursuant to collective bargaining agreements (“CBAs”) between the UFCW and FD. The current CBA runs from September 1, 2007 to September 1, 2013. The previous CBA ran

[803 F.Supp.2d 988]

from September 1, 2001 to September 1, 2007. The CBA prior to that ran from July 27, 1995 to September 1, 2001.

Most FD maintenance and production employees are required to wear the following personal protective equipment (“PPE”) at all times: safety glasses with side shields, face shields, safety goggles, hair nets, beard covers, standard work scrubs or uniforms, coveralls, booties, and steel-toed boots or other specified footwear. Other PPE worn by FD maintenance and production employees is put on or taken off after the employees enter their specific work areas on paid time. This PPE includes: hard hats, welding helmets, hearing protection, respirators, dust and/or surgical masks, lab coats, flame-resistant uniforms, disposable undergarments, chemical resistant aprons, retrieval harnesses, welding aprons or jackets, chemical resistant gloves, thermal resistant gloves, cut resistant gloves, rubber overboots, booties, disposable socks, Tyvek chemical/bacterial resistant overalls and self-contained breathing apparatuses.

Plaintiffs clock-in prior to the beginning of their shifts. They then walk to their lockers, doff their non-work clothes, don their required work attire, and then don PPE. Plaintiffs then walk to their assigned area. Plaintiffs are required to be in their production or other assigned area wearing their PPE at the beginning of their shifts. Plaintiffs are permitted to stop working five minutes prior to the end of their shifts, return the PPE, clean up, walk to their lockers and change into their non-work clothes before clocking out. Plaintiffs are paid for this time.

FD has not paid plaintiffs for any pre-shift donning activities. Since at least September 2, 2001, FD has permitted plaintiffs to leave their posts five minutes early for post-shift doffing (“The five minute gowning/clean-up period”). During that time, FD has paid plaintiffs to the end of their shifts. The five minute gowning/clean-up period is provided for in both the 2001 and 2007 CBAs. Those CBAs contain the following provision:

18.3 A five (5) minute gowning/clean-up period will be permitted at the end of each assigned daily work schedule. It is understood that no employee is considered to be released from daily assignment until the end of the daily work schedule, and are expected to not clock out until the end of each daily assignment. In addition, it is expected that each employee will have clocked in prior to or at the start of each scheduled daily assignment and at their respective work area, ready to commence their duties at the start of their daily work assignment. The time clock at or closest to the assigned work area shall be the time of record. For the purpose of the attendance policy, a five (5) minute period will be allowed before an employee receives an incident. * Note this is not intended to happen on a regular basis.

Exhibit 1, Article 18.3 at 32; Exhibit 2, Article 18.3 at 24. In addition, the 2007 CBA contains the following provision:

18.4 Said rest periods and periods of gowning/clean-up are without reduction in pay. And gowning/clean-up period are only applicable to those employees who are required to wear assigned gowns and/or uniforms. For employees who have gowning requirements, a reasonable amount of time for gowning and travel will be allowed, as established by the department.

Exhibit 1, Article 18.4 at 32.

The CBAs between the UFCW and FD contained a grievance and arbitration procedure. The grievance history maintained by FD shows no grievance or arbitration over any pre-shift or post-shift donning or doffing activities by plaintiffs since at least 1998. The UFCW has been aware of FD's

[803 F.Supp.2d 989]

practice and custom of non-payment for pre-shift donning activities since at least 1995. At no time since 1995 has the UFCW proposed pay for pre-shift donning activities in any negotiations with FD. In negotiations, the UFCW proposed and FD agreed to the five minute gowning/clean-up period.

B. Procedural Background

On August 9, 2010, plaintiffs filed an Amended Complaint raising claims for unpaid wages for donning and doffing activities under the Iowa Wage Payment and Collections Law (“IWPCL”), Iowa Code § 91A.1 et seq.¹ Specifically, they seek relief for BIVI's failure to pay them for their time spent donning and doffing PPE and walking to and from their workstations before and after their shifts and during their unpaid breaks. On August 23, 2010, BIVI filed its Amended Answer to the Amended Complaint denying these allegations and asserting twenty-eight affirmative defenses. BIVI has moved for summary judgment on five of its affirmative defenses, its second, nineteenth, twentieth, twenty-first and twenty-second defenses. In its second affirmative defense, BIVI asserts, “Plaintiffs' claims are barred to the extent that Plaintiffs have failed to plead a prima facie case arising under the Iowa Wage Payment Collection Act, Iowa Code Sections 91A, et seq.” Amended Ans. at 7. BIVI's nineteenth affirmative defense states: “Time spent donning and doffing standard safety equipment is not compensable under the Iowa Wage Payment Collection Act.” Amended Ans. at 10. For its twentieth affirmative defense, BIVI asserts: “The alleged activities of waiting, donning, doffing and walking are not compensable under the Iowa Wage Payment Collection Act.” Amended Ans. at 10. BIVI's twenty-first affirmative defense states:

Plaintiffs' claims, and those claims of any other person on whose behalf Plaintiffs seek to assert a claim under the Iowa Wage Payment Collection Act, for pre- or post-shift clothes changing and washing time are barred in that they do not meet the definition of hours worked under any state or federal applicable law.Amended Ans. at 10. BIVI asserts as its twenty-second affirmative defense that: “Plaintiffs' claims, and those claims of any other person on whose behalf Plaintiffs seek to assert a claim under the Iowa Wage Payment Collection Act, are preempted by federal law.” Amended Ans. at 10.

On March 15, 2011, plaintiffs filed their resistance to BIVI's Motion For Summary Judgment. Also on March 15, 2011, plaintiffs filed a Motion to Strike Portion of Declarations Of Amy Heide–Fischer. In their motion, plaintiffs seek to strike three declarations of Heide–Fischer submitted by BIVI on the ground that her declarations do not reflect she has sufficient personal knowledge to support her statements since she has only been employed by BIVI or its predecessor since 2000. On March 31, 2011, BIVI resisted plaintiffs' Motion to Strike. In its resistance, BIVI contends Heide–Fischer's review of company records provides an adequate basis for the admissibility of the statements contained in Heide–Fischer's declaration. BIVI argues plaintiffs' objection to Heide–Fischer's testimony goes to the weight of such...