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Chester Marshall and Richard Whitby, Individually and On Behalf of A Class of Others Similarly Situated v. Amsted Rail Company

November 11, 2011


The opinion of the court was delivered by: Reagan, District Judge:


This Fair Labor Standards Act collective action is brought by 488 hourly workers at a Granite City, Illinois plant (Plaintiffs) who allege entitlement to unpaid wages and overtime compensation from their employer (Amsted). Amsted pays hourly employees based on their scheduled shift times, rather than their actual hours worked. Plaintiffs allege that during the time period relevant to this lawsuit, Amsted required them to work before and after their paid shifts without compensation. The pre-shift work included donning protective gear, obtaining tools, supplies and tool repairs, testing equipment, and organizing their work areas. The post-shift work included shutting down machinery, storing tools, cleaning work areas for the following day or shift, shoveling sand, blowing debris off themselves, and doffing protective gear.

Plaintiffs maintain that these tasks were integral and indispensable to the performance of their assigned duties, meriting compensation. Plaintiffs seek to recover compensatory damages (the unpaid wages and overtime compensation), plus liquidated damages, attorney's fees and costs under § 16(b) of the FLSA, and pre-judgment and post-judgment interest.

Amsted moved for partially summary judgment, focusing on the claims relating to donning and doffing personal protective equipment (PPE). The motion advanced two arguments: (1) Plaintiffs' claims for compensation based on time spent donning and doffing PPE are barred by § 203(o) of FLSA, and (2) because the time donning and doffing PPE falls under § 203(o), it cannot constitute a "principal activity" under the FLSA as a matter of law.

On September 20, 2011, the undersigned Judge partially granted and partially denied Amsted's motion. As to the part granted, the Court concluded: "Amsted has shown a 'custom or practice under a bona fide collective-bargaining agreement' applicable to these employees, triggering application of § 203(o). Thus, § 203(o) excludes the time spent donning and doffing the PPE from the 'hours worked' by Plaintiffs" (Doc. 180, pp. 22-23). As to the part of Amsted's motion denied, the undersigned rejected Amsted's argument that once an activity is deemed non-compensable under § 203(o), it as a matter of law cannot constitute a principal activity under the FLSA which starts or ends the continuous (compensable) workday.

The September 20th Order recognized that the issue on which this Court denied summary judgment has been certified for interlocutory appeal to the United States Court of Appeals for the Seventh Circuit. See Sandifer v. U.S. Steel Corp., 2009 WL 3430222 (N.D. Ind. 2009), and 2010 WL 61971 (N.D. Ind. 2010). Now before the Court is Amsted's motion to certify an interlocutory appeal of the undersigned Judge's ruling and to stay this case pending resolution thereof (Doc. 185).

Analysis begins with the proposition that, as a general rule, appellate courts may only hear appeals from "final decisions" of district courts. 28 U.S.C. 1291. Several narrow exceptions to the rule exist, however, one of which is invoked by Defendant Amsted here -- 28 U.S.C. 1292(b).

Section 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order..

In enacting § 1292(b), Congress "chose to confer on district courts first line discretion to allow interlocutory appeals." Swint v. Chambers County Com'n, 514 U.S. 35, 46-47 (1995). However, Congress "carefully confined the availability of such review," and "even if the district judge certifies the order under § 1292(b), the appellant still 'has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Coopers & Lybrand v. Livesay, 437 U.S. 463, 474-75 (1978).

In Ahrenholz v. Board of Trustees of University of Illinois, 219 F.3d 674, 675-76 (7th Cir. 2000), the Court neatly summarized § 1292(b)'s requirements:

There are four statutory criteria for the grant of a section 1292(b) petition .. there must be a question of law, it must be controlling, it must be contestable, and its resolution must promise to speed up the litigation..

There is also a non-statutory requirement -- that the petition for interlocutory appeal was filed in the district court within a reasonable time after entry of the order sought to be appealed. Ahrenholz, 219 F.3d at 676, citing Richardson Electronics, Ltd. v. Panache Broadcasting of Pennsylvania, Inc., 202 F.3d 957, 958 (7th Cir. 2000). The Seventh Circuit emphasized in Ahrenholz: "Unless all these criteria are satisfied, the district court may not and should not certify its order . under section 1292(b)." Id. (emphasis in original).

United States Supreme Court Justice Breyer pointed out in Johnson v. Jones, 515 U.S. 304, 309 (1995), that interlocutory appellate review can unnecessarily delay trial proceedings while "adding costs and diminishing coherence," but it also can "simplify, or more appropriately direct, the future course of litigation, . thereby reduc[ing] the burdens of future proceedings." So, turning to the statutory and non-statutory prerequisites for ยง 1292(b) ...

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