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September 2, 1993

HAROLD ADKINS, on behalf of all other plaintiffs similarly situated, known and unknown, Plaintiffs,
MID-AMERICAN GROWERS, INC., a corporation, Defendant.

The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are cross-motions for summary judgment. For reasons that follow, the court denies both motions.


 This litigation arises from a dispute over overtime wages a class of hourly workers at defendant Mid-American Growers, Inc.'s ("Mid-American") greenhouse claim they are entitled under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). Harold Adkins filed the action as a representative suit under § 216(b) of FLSA and, after a number of parties opted in the suit, that is how the case has proceeded. *fn1"

 Mid-American owns and operates a twenty-three acre greenhouse in Granville, Illinois where it grows plants for home, office, and garden use. Mid-American produces most of its plants from seed, bulb, plant cutting, and plug/seedling. The record also reflects, however, that some "pre-finished" plants are handled by Mid-American. "Pre-finished" plants are products which begin at another greenhouse, are re-potted by Mid-American, and are grown for several more weeks to maturity before they are sold to the ultimate consumer. Additionally, some large foliage plants and combination planters consisting of multiple varieties of small foliage plants are received by Mid-American; and Mid-American handles empty pots and baskets as well as bags of soil, all of which are sold separately from living plant material.

 Mid-American's business is seasonal and its employees perform an assortment of tasks at the greenhouse. The evidence produced by both plaintiffs and defendant demonstrate that the duties of Mid-American's work force are so varied and general in nature that distinguishing duties and product contact as between individual plaintiffs is virtually impossible. The parties have instead designated nine or ten representatives of the plaintiff class and designated six specific job categories. The categories include shipping, general labor, watering/assistant grower, student, shipping/maintenance, and greenhouse coordinator.

 It is undisputed that, prior to January 1, 1992, Mid-American did not pay its employees overtime wages for hours worked in excess of forty in a week. Mid-American believed that it was exempt from the overtime requirements of the FLSA because its business is agricultural. See 29 U.S.C. § 213(b)(12). Both parties have now filed cross-motions on the issue of liability. The parties primarily address the question of whether the plaintiffs' work was exempt from the FLSA's overtime provisions. If the work was exempt, Mid-American asserts that summary judgment is appropriate in its favor. Plaintiffs contend that the court should grant summary judgment in their favor because they performed non-exempt work during the weeks they performed overtime labor.


 In an action under the FLSA for overtime wages, the plaintiff must establish a prima facie case by showing that he or she worked in excess of forty hours in a work-week. 29 U.S.C. § 207. The plaintiffs' claim is a strong one -- Mid-American admits that it did not pay overtime wages during the time-period the plaintiffs worked there, and it is not disputed that plaintiffs worked some overtime. But the plaintiffs must prove their case. In their motion for summary judgment, plaintiffs fail to demonstrate precisely that they worked in excess of forty hours in any given workweek. Further, plaintiffs fail to specify the amount of work performed, the amount of overtime work performed, and the weeks overtime work was allegedly performed. On this basis, the court cannot ascertain the amount of time worked over forty hours. The court must deny the plaintiffs' motion for summary judgment for failing to establish a prima facie case.

 Mid-American, however, filed its motion for summary judgment in order to avoid liability. To avoid liability under the FLSA, the employer bears the burden of proving that the employee performed work that is exempt from the FLSA. 29 U.S.C. § 213; see 29 C.F.R. §§ 780.2 and 780.10. If, however, during a given workweek employees are engaged in both exempt and non-exempt work, the overtime requirements of the FLSA apply to all work performed in that week. Marshall v. Gulf & Western Indus., Inc., 552 F.2d 124, 126 (5th Cir. 1977); 29 C.F.R. § 780.11.

 In this case, Mid-American asserts that the plaintiffs were employed in "agriculture" within the meaning of 29 U.S.C. § 213(b)(12) during all relevant weeks. Agriculture is broadly defined as including "farming in all its branches," which in turn includes the "production, cultivation, growing and harvesting of any agricultural or horticultural commodities . . . and any practice performed . . . as incident to or in conjunction with such farming operations . . . ." 29 U.S.C. § 203(f); Donovan v. Frezzo Bros., Inc., 678 F.2d 1166, 1168-69 (3d Cir. 1982). The definition is thus broken down into two types of agriculture: primary agriculture and secondary agriculture. Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 762-63, 93 L. Ed. 1672, 69 S. Ct. 1274 (1949). Primary agriculture means all activities which are traditionally considered agricultural like tillage, cultivation, growing, and harvesting. Marshall, 552 F.2d at 126. Secondary agriculture is comprised of those activities performed by a farmer or performed on a farm that are incident to or in conjunction with the primary farming operations of that farmer. Id. (citing Farmers Reservoir, 337 U.S. at 762-63). These include preparing products for shipment, maintenance work, and clerical activities. Hodgson v. Ewing, 451 F.2d 526, 529 (5th Cir. 1971); 29 C.F.R. §§ 780.128 and 780.158.

 Because the inquiry is into whether the employees performed exempt or non-exempt work, the question in the case is with respect to the frequency of the employees' performance of activities that are not agricultural in nature and not the frequency of Mid-American's involvement in products that may not be agricultural in nature. The focus is on the plaintiffs' contact with goods or performance of duties that can be labelled "not exempt" during weeks in which overtime work was performed. It follows then, that if all work at the Mid-American greenhouse is exempt, then none of the employees at Mid-American performed non-exempt work and summary judgment in favor of Mid-American is appropriate. If, on the other hand, some of the work on the goods handled by Mid-American is not exempt, and there exists a genuine issue of whether plaintiffs engaged in non-exempt work on a given week in which overtime is claimed, then summary judgment is not appropriate. See Fed. R. Civ. P. 56(c).

 It is undisputed that the majority of Mid-American's business is agricultural of the primary variety. The fact questions relevant to whether the plaintiffs performed other, non-agricultural duties to which the FLSA applies can be broken down into five categories for purposes of determining their legal significance. First, there are the "pre-finished" plant products that Mid-American purchases from other sources and holds for fairly long periods of time prior to resale. Second, there are "finished" flora products which are purchased and held for short periods of time prior to resale. Third, there are "hard goods" which are utilized in conjunction with the products sold by Mid-American. Fourth, there are "hard goods" which are sold separate ...

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