McDonald v. Kellogg Co.
|740 F.Supp.2d 1220
|16 September 2010
|Case No. 08-2473-JWL
|Joseph L. McDONALD, Mavis A. McDonald and Lyndon Ellis, Plaintiffs, v. KELLOGG COMPANY, Defendant.
|United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Heather M. Lake, Michael F. Brady, Brady & Associates Law Office, Michael A. Hodgson, Brady Law Firm, Overland Park, KS, for Plaintiffs.
Christina T. Tellado, James N. Boudreau, Greenberg Traurig LLP, Philadelphia, PA, Erin A. Webber, Littler Mendelson, P.C., Kansas City, MO, for Defendant.
Plaintiffs, individually and on behalf of others similarly situated, filed this wage and hour suit against defendant alleging violations of the overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Specifically, plaintiffs, all current or former hourly production employees at defendant's bakery facility in Kansas City, Kansas, allege that defendant failed to compensate them for time spent performing activities such as donning and doffing required uniforms and gear; gathering required materials, tools and equipment; and post-donning and pre-doffing walking to and from work stations. The parties stipulated to conditional certification and notice to the putative collective class and further agreed to a bifurcated discovery process limiting the first stage of discovery to issues relating to defendant's contention that an application of section 203( o ) of the FLSA mandates summary judgment in favor of defendant on all claims. The first phase of discovery has now closed and the parties have now filed cross-motions for summary judgment regarding the application of section 203( o ).1 As will be explained, both motions are granted in part and denied in part.
Since 2001, defendant Kellogg Company has owned and operated a bakery facility in Kansas City, Kansas. Prior to that time, the facility was owned and operated by the Keebler Company. At all times pertinent to this lawsuit, hourly production employees at the bakery facility have been represented by Local 184-L Retail, Wholesale & Department Store Union. Named plaintiffs Joseph McDonald, Mavis McDonald and Lyndon Ellis are all hourly production employees at the bakery facility in Kansas City, Kansas.
Hourly production employees at the facility work in one of five departments—Bake Shop, Production, Sanitation, Maintenance or Shipping and Receiving. Regardless of the department in which an employee works, all employees are requiredto wear a company-issued uniform consisting of a shirt, pants and shoes. Based on personal preferences, an employee may choose to wear a smock or jacket for added warmth. An employee is permitted to change into his or her uniform at home prior to coming to the facility or may utilize company locker rooms to change into his or her uniform prior to the start of his or her shift. The vast majority of employees change into their uniforms in the locker rooms at the facility, where Kellogg maintains clean uniforms for its employees in each employee's locker.
In addition to the company-issued uniform, all hourly production employees are required to wear certain company-issued accessories, including hair nets, ear plugs and safety glasses. If applicable, employees are also required to wear beard guards. Hair nets, ear plugs and beard guards are maintained in dispensers just outside the locker rooms and just outside work areas so that employees typically obtain these items after leaving the locker room while walking to their work areas. For those employees who change into their uniforms at the facility, safety glasses are maintained in the employees' lockers such that glasses, in addition to the uniform, are donned in the locker room prior to the start of the employees' shifts.
A handful of other items are maintained in employees' lockers but are not common to all employees. Certain machine operators and certain maintenance and sanitation employees are required to wear "bump caps," and those bump caps are maintained in the employees' lockers and donned in the locker room prior to the start of the employees' shifts. For those employees whose jobs require them to utilize scrapers (all employees in the sanitation department) or cutting tools (the "cheese grinder" position in the bake shop), those items are maintained in the employees' lockers and are obtained by those employees prior to the start of the employees' shifts. Finally, certain machine operators maintain their tool boxes in their lockers and, thus, obtain those tool boxes prior to the start of their shifts.
Prior to the start of an employee's shift, then, each and every hourly production employee dons (either at home or, more likely, in a company locker room) a company-issued shirt, a smock or jacket depending on personal preference, pants, work shoes and safety glasses. Depending on the employee's position, an employee may also obtain from his or her locker a bump cap, scraper, cutting tool and/or tool box. At that point, all hourly production employees exit the locker rooms and, on the way to their designated work areas on the production floor, obtain hair nets, ear plugs and, if applicable, beard guards from dispensers located on the way to each work area.
Once an hourly production employee reaches his or her designated work area, the employee "clocks in" utilizing employee time clocks that are located outside each work area. Employees, however, are not compensated beginning at the time they "clock in." Rather, defendant pays its hourly production employees on a "gang time" or "shift time" basis. By way of example, if the morning shift begins at 6:00 a.m., then the employees working the morning shift are paid beginning at 6:00 a.m. regardless of whether an individual employee clocked in at 5:52 a.m. or 6:03 a.m. Indeed, the record reflects that so long as employees clock in no more than 12 minutes prior to the start of a shift (and, to create a cushion, defendant instructs its employees not to clock in more than 10 minutes prior to the start of a shift), those minutes are automatically rounded away by defendant's timekeeping system. Thus, hourly production employeesare not compensated for many activities that occur prior to the start of their actual shift time, including time spent changing into uniforms; gathering or putting on additional items that may be kept in an employee's locker such as bump caps or tools; walking from the locker rooms to the production floor; obtaining and donning ear plugs, hair nets and beard guards; and donning and obtaining gear and tools maintained on the production floor.
In any event, after an employee "clocks in" but prior to the start of his or her particular shift, the employee may be required to don additional gear or gather additional tools or equipment at the employee's work area depending on the employee's job. In the bake shop, for example, the head mixer dons an apron at his or her work station while other employees in the bake shop might be required to don reflective safety vests. All employees in the shipping and receiving department don reflective safety vests at their work areas. Sanitation and/or maintenance employees may be required to don reflective safety vests, rubber boots, face shields, smocks and rubber gloves at their work stations. When a sanitation employee is assigned a task relating to the flour silo, that employee is required to wear a fall harness. Many employees gather—at their work areas prior to the start of their shifts—additional tools and equipment related to their particular jobs. Employees in shipping and receiving, for example, ready their forklifts and sanitation and maintenance employees might gather mops, rags, paintbrushes, paint stirrers and/or tool boxes.
At the end of the employees' shifts, employees remove and return whatever gear and tools they have obtained from their work areas, clock out and, as employees walk back to the locker rooms, they place their ear plugs, hair nets and beard guards in bins designated for those soiled items. Once the employees reach the locker rooms (assuming they change out of their uniforms at work), they change out of their uniforms and leave their safety glasses and any other items (e.g., bump cap, scraper) in their lockers. Again, because defendant pays its hourly production employees on a "shift time" basis, these employees are not compensated for the time spent after the end of a shift, including time spent removing and returning gear and tools obtained on the production floor; removing and returning ear plugs, hair nets and beard guards; walking to the locker rooms; changing out of uniforms; and removing and returning items to lockers such as bump caps or tools.
Until the filing of this lawsuit, defendant's practice (and, before it, Keebler's long-standing practice) of not compensating hourly production employees for time spent donning and doffing required uniforms and gear; gathering required materials, tools and equipment; and traveling to and from work areas has never been challenged by a union grievance or any other mechanism. The collective bargaining agreement presently in place, executed in March 2008, does not address the issue in any respect and no prior agreements have addressed the issue. Indeed, it is uncontroverted that the issue has never been raised in any fashion during union-management negotiations and there is no evidence that Local 184-L ever discussed or even considered seeking compensation for these activities.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as amatter of law." Fed. R. Civ. P. 56(c).2 In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir.2004). An issue is "genuine" if "there...
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Garcia v. Tyson Foods Inc.
...in their motion, this court has recently addressed this issue in the context of a bakery facility. See McDonald v. Kellogg Co., 740 F.Supp.2d 1220 (D.Kan.2010), vacated in part, McDonald v. Kellogg Co., 2010 WL 4386899 (D.Kan. Oct.29, 2010). In McDonald, this court rejected the narrow inter......