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 from those utilized with Mid-American's horticultural products. And fifth, there are the personal services performed for Mr. Van Wingerden, Mid-American's sole shareholder and president.
The mere fact that Mid-American handles plants that are brought in from other sources is not controlling -- contrary to plaintiffs' argument. Both the "finished" and "pre-finished" products that are brought in from other sources, whether held for a relatively short period of time prior to resale or not, are purchased by Mid-American. Because title is passed to Mid-American on these products, Mid-American may not be acting solely as a jobber, warehouser, or retailer with respect to these products. See, e.g., Wirtz v. Tyson's Poultry, Inc., 355 F.2d 255, 259-58, 261 (8th Cir. 1966) (making this distinction). If further agricultural activities are being performed on these products, then Mid-American would be dealing with these products as a normal part of its agricultural or horticultural function within the meaning of primary agriculture. Wirtz v. Tyson's, 355 F.2d at 261; Damutz v. William Pinchbeck, Inc., 158 F.2d 882 (2d Cir. 1946); see Farmers Reservoir, 337 U.S. at 761. Thus, the exemption would apply when Mid-American further cultivates incoming plants.
If, however, incoming products are immediately resold without any further agricultural work performed on them, as plaintiffs contend, then the exemption does not apply. See Marshall, 552 F.2d at 125-26. Mid-American's business with respect to reselling plants that have no further agricultural work performed on them becomes an independent productive activity. See Farmers Reservoir, 337 U.S. at 761. For example, if mature or substantially mature plants are received and only re-potted for resale, then no horticultural functions are performed on the plants as contemplated by the statute. Mid-American would merely be packaging, preserving, and reselling plants "farmed" by other farmers. Accordingly, the plaintiffs would be entitled to overtime wages for the weeks in which they worked overtime if they performed labor with respect to those "non-exempt" goods.
In making this determination, however, it is necessary to consider all of the facts and circumstances, such as, but not limited to, whether the work performed on the plants is calculated to produce growth, or whether the work is designed to care for and preserve the plants while they are on the grower's premises awaiting resale.
Watering, fertilizing, inspecting, cleaning, grooming, and spraying these plants does not, as a matter of law, make the activity primary agriculture without further factual development. Also, work performed on plants purchased from other producers in order to make up for temporary shortages falls within the secondary definition of agriculture and the exemption could still apply. Wirtz v. Jackson & Perkins Co., 312 F.2d 48, 51 (2d Cir. 1963).
With respect to the "hard goods," many of these goods, like soil, fertilizer, and planters, may be considered incident to or in conjunction with Mid-American's farming operations and thus considered secondary agriculture if they were utilized with the products grown by Mid-American. See 29 C.F.R. §§ 780.137 and 780.141. Nonetheless, some representative plaintiffs have indicated that, on a daily basis, they unloaded or transported goods such as soil, fertilizer, glass and ceramic planters and vases which arrived at the greenhouse, and that these "hard goods" were placed on a customer display shelf or sold directly to customers. Therefore, the use of these products may not have been incident to the growth of Mid-American's plants but were, on the contrary, separate from the farming functions of Mid-American. See Dozier v. I. W. Chance Nurseries, Inc., 80 Lab. Cas. (CCH) P 33,485 (M.D. Tenn. 1976) (sixty percent of sales derived from lawn and garden tools and other non-horticultural supplies; work on these items not incidental and thus not performed within the meaning of secondary agriculture); see also Dole v. West Extension Irrigation Dist., 909 F.2d 349 (9th Cir. 1990) (three percent of water handled by irrigation company used for non-agricultural purposes and thus exemption did not apply); Brennan v. Sugar Cane Growers Cooperative, 486 F.2d 1006 (5th Cir. 1973) (unquantifiable amount of steam produced by employees was transferred to an adjacent facility and thus defeated exemption).
As for personal services performed by Mid-American employees, those services are akin to maintenance work and clerical activities such that they fall under the definition of secondary agriculture, as long as they are performed on the Mid-American greenhouse premises and for the purpose of improving the Mid-American greenhouse operations.
In light of the above discussion, the court finds that there exist genuine issues of fact concerning these issues which precludes summary judgment. See Fed. R. Civ. P. 56(c). The facts are not free from dispute as to how long incoming goods remained with Mid-American and as to exactly what type of farming activity, if any, Mid-American employees performed on the "pre-finished" or "finished" plants. Some representative plaintiffs have indicated that they performed work on plants that were mature and immediately resold without any further activity performed on them. Further, some representative plaintiffs have indicated that work was performed daily on the "hard goods" which did not correspond with the agricultural responsibilities of Mid-American's work on its own products or on other primary agricultural work performed on "prefinished" plants as discussed above, but were sold and utilized separate from the agricultural work as a distinct enterprise. Mid-American, which bears the burden of demonstrating the exemption, has not demonstrated by producing uncontested facts that plaintiffs did not perform work that could be considered "non-exempt." As a result, summary judgment in favor of Mid-American is not appropriate. Protracted discovery has taken place in this case. The assigned magistrate judge has conducted numerous hearings. Both sides have had generous opportunities to develop the facts. Additional discovery into the facts would be unavailing.
Another ground for summary judgment urged by Mid-American is based on a de minimus theory. That is, because the amount of any non-exempt goods or work at the greenhouse is so minimal, the agricultural exemption should not be destroyed. Mid-American claims that it is not in dispute that one percent of the products sold by Mid-American are non-exempt. Plaintiffs have, nonetheless, disputed this figure. Regardless of the viability of the de minimus theory, the court finds that the facts are not undisputed regarding the percentage of work performed at the greenhouse that is not exempt. Because the record is not fully developed with regard to the de minimus theory, the court will not reach the issue.
For the above stated reasons, both motions for summary judgment are denied.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court