Rodriguez v. Whiting Farms, Inc.

Decision Date10 February 2004
Docket NumberNo. 02-1483.,02-1483.
Citation360 F.3d 1180
PartiesEladio RODRIGUEZ, individually; Martin Gomez, individually, Plaintiffs-Appellants, v. WHITING FARMS, INC.; Thomas Whiting, individually, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Patricia L. Medige, Colorado Legal Services, Denver, CO, for Plaintiffs-Appellants.

Sam D. Starritt (and Michael C. Santo, on the brief), Dufford, Waldeck, Milburn & Krohn, L.L.P., Grand Junction, CO, for Defendants-Appellees.

Before KELLY, HARTZ, Circuit Judges and CASSELL*, District Judge.

Paul KELLY, Jr., Circuit Judge.

Plaintiffs-Appellants Eladio Rodriguez and Martin Gomez brought this suit against their former employer, Thomas Whiting and Whiting Farms, Inc. (hereinafter collectively referred to as "Whiting Farms"), claiming Whiting Farms failed to pay them overtime as required under the Fair Labor Standards Act (the "FLSA" or the "Act"). Whiting Farms argues it is exempt from paying Rodriguez and Gomez overtime under the FLSA agricultural exemption, which provides an exemption to the overtime wage requirements for "any employee employed in agriculture." 29 U.S.C. § 213(b)(12). Rodriguez and Gomez filed a motion for summary judgment on the issue of whether they performed nonagricultural jobs and thus were entitled to overtime pay under the FLSA. Whiting Farms also moved for summary judgment on all issues. The district court determined Rodriguez and Gomez were engaged in agricultural work and therefore were not entitled to overtime under the agricultural exemption. The district court granted Whiting Farms's motion for summary judgment and awarded costs to Whiting Farms. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


The facts in this case are not disputed. Thomas Whiting is the president and owner of Whiting Farms, Inc. Whiting Farms breeds and raises chickens for their feathers, which are removed in pelts, packaged, and sold to a distributor for eventual use in fly-tying. All of the poultry production takes place on four ranches owned or leased by Whiting Farms, Aplt. Br. at 7, and Whiting Farms only processes chickens raised on its own farms, Aplee. Br. at 3. In 2000, Whiting Farms processed 120,000-125,000 chickens. Id. at 4.

Whiting Farms breeds the chickens, pedigrees the eggs, hatches them, broods the chickens, and raises them for approximately one year, after which the chickens are processed for their feathers. Aplt. Br. at 6. Once the chickens have reached approximately fifty weeks old, they are euthanized, left to cool overnight, and processed. Skinners first cut off the necks and heads of the chickens, which are then washed and dried. Fifteen to twenty percent of the pelts are dyed at this stage, before the necks are skinned. After washing and spinning, the necks are skinned by removing the skin and attached feathers (known as a "cape"). The capes are placed on cardboard sheets and placed in a room that is between seventy-five and eighty degrees to cure for two weeks. Id. at 9-10.

While the heads and necks are washed and dried, the skinners skin the back of the bird, known as the "saddle." The saddles are also placed on cardboard by "putter-uppers." The saddles are cured for one to two weeks in a heated room prior to washing, and overall they are cured between three and four months. The saddles are cured in a hotter room for a longer period due to the higher overall fat content. Id. at 10-11.

After curing, the saddles are trimmed by "trimmers" to remove peripheral skin. The capes are also trimmed into a rounder shape and excess feathers are removed. Both capes and saddles are graded and either packaged individually or placed in bulk storage. Aplt. Br. at 11. The pelts, also called "hackle," have an almost indefinite shelf life when stored properly. Whiting Farms produces hackle year round, with some decrease in production during the late summer and early fall. Id.

Rodriguez and Gomez worked for Whiting Farms as skinners and trimmers. They regularly worked more than forty hours per week and were not paid time-and-one-half, or overtime, for those hours over forty worked in a single workweek. Rodriguez and Gomez brought this suit against Thomas Whiting and Whiting Farms, Inc. seeking payment of past overtime wages.

After granting summary judgment for Whiting Farms, the court awarded Whiting Farms costs under Fed.R.Civ.P. 54(d)(1). Aplt. Br., Ex. A at 19. The court clerk taxed costs of $3,128.18 against Rodriguez and Gomez and entered judgment for that amount. They filed a motion seeking retaxation of costs, citing "their indigence and the close and difficult nature of the questions presented by this case as bases for their request." Id., Ex. C at 1. The court denied the motion but stayed the collection of costs pending appeal. Id. at 3.

Rodriguez and Gomez assert the district court erred in (1) holding Whiting Farms exempt under the agricultural exemption to the FLSA and (2) awarding costs to Whiting Farms.

A. Application of the Agricultural Exemption

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We review a grant of summary judgment de novo, applying the same legal standards applied by the district court. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). In addition, exemptions under the FLSA "are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960); see also Sanders v. Elephant Butte Irrigation Dist., 112 F.3d 468, 471 (10th Cir.1997). Thus Whiting Farms bears the burden of showing its processing activities fit "plainly and unmistakably" within the terms and spirit of the agricultural exemption.

1. The Fair Labor Standards Act and the Agricultural Exemption

The Fair Labor Standards Act establishes various labor requirements, such as a minimum wage and overtime pay, for employees "in those workweeks when they are engaged in interstate or foreign commerce or in the production of goods for such commerce." 29 C.F.R. § 780.1. One of the Act's requirements is the payment to employees of "one and one-half times the regular rate" for hours worked in excess of forty in a single workweek. 29 U.S.C. § 207(a)(1); see also id. § 215(a)(2) (making it unlawful for any person to violate the provisions of § 207). Employers must satisfy the Act's requirements unless the Act provides an applicable exemption. One such exemption exists for "any employee employed in agriculture." Id. § 213(b)(12). Agriculture is defined at 29 U.S.C. § 203(f) (emphasis added):

"Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities ..., the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

This definition of agriculture contains two distinct branches, and "includes farming in both a primary and a secondary sense." Bayside Enters., Inc. v. NLRB, 429 U.S. 298, 300, 97 S.Ct. 576, 50 L.Ed.2d 494 (1977); see Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 762-63, 69 S.Ct. 1274, 93 L.Ed. 1672 (1949); NLRB v. Karl's Farm Dairy, Inc., 570 F.2d 903, 905 (10th Cir.1978); 29 C.F.R. § 780.105. The first contains the primary meaning of agriculture, which includes "farming in all its branches" and includes "the raising of ... poultry." 29 U.S.C. § 203(f). The definition also includes a second, broader meaning of agriculture. This secondary meaning includes other practices that do not themselves fit within the primary meaning of agriculture, but that are nevertheless "performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." Id. The agricultural exemption was meant to apply broadly and to "embrace the whole field of agriculture," but "it was meant to apply only to agriculture;" thus the critical issue is what is and what is not included within that term. Maneja v. Waialua Agric. Co., 349 U.S. 254, 260, 75 S.Ct. 719, 99 L.Ed. 1040 (1955).

2. Application of Exemption to Whiting Farms

Rodriguez and Gomez do not dispute that the handling of live chickens on Whiting Farms constitutes agricultural work under the primary definition of agriculture. Aplt. Br. at 5. By definition, the statute includes the raising of poultry, 29 U.S.C. § 203(f), which includes the "breeding, hatching, propagating, feeding, and general care of poultry." 29 C.F.R. § 780.125(b); see also Holly Farms Corp. v. NLRB, 517 U.S. 392, 399, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996) ("Primary farming includes the raising of poultry."). Rodriguez and Gomez argue, however, that the processing of hackle following slaughter is not included under the definition of agriculture, and thus the agricultural exemption is inapplicable. It is true "[s]laughtering, which is the antithesis of `raising,' is not included" in the primary definition of agriculture. § 780.125(b). Slaughtering nevertheless will constitute agriculture if it comes "within the secondary meaning of the term `agriculture.'" Id. Thus Whiting Farms argues the skinning and trimming of chickens on its farm fits within the secondary definition of agriculture.

To constitute secondary farming, the practice must be (1) "performed by a...

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