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Chester Marshall and v. Amsted Rail Company

October 31, 2012

CHESTER MARSHALL AND RICHARD WHITBY, INDIVIDUALLY AND ON BEHALF OF A CLASS OF OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
AMSTED RAIL COMPANY, INC., DEFENDANT.



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

MEMORANDUM AND ORDER

A. Introduction

In this lawsuit under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, et seq., conditionally certified as a collective action, 478 hourly-paid employees at a local manufacturing plant seek to recover unpaid wages and overtime compensation from their employer, Amsted Rail Company, Inc. The amended complaint alleges that Amsted owes Plaintiffs pay for time spent on certain pre-shift and post-shift activities, such as donning and doffing protective equipment, obtaining and storing tools, and preparing and cleaning their work areas.

A September 2011 Order ruled on Amsted's motion for summary judgment directed at the claims for donning and doffing personal protective equipment (PPE). The undersigned Judge granted that motion in part, concluding that Plaintiffs' claims for compensation based on time donning and doffing PPE were barred by § 203(o) of the FLSA.*fn1

Following the Seventh Circuit Court of Appeals decision in an FLSA donningand-doffing case in May 2012, the undersigned Judge granted summary judgment for Amsted on a second basis -- finding that because the time spent donning and doffing PPE fell under § 203(o), it cannot -- as a matter of law -- constitute a "principal activity" which starts or ends the compensable workday under the FLSA. See Doc. 204 and Sandifer v. United States Steel Corp., 678 F.3d 590 (7th Cir. 2012).

Now before the Court is Amsted's July 16, 2012 motion for summary judgment, which has been extensively briefed by counsel and ripened with the filing of a reply on September 6, 2012 (see Docs. 212, 213, 218, 224). For the reasons stated below, the Court DENIES Amsted's motion for summary judgment.

B. Applicable Legal Standards

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment should be granted if the record "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a).

In assessing a summary judgment motion, the district court must construe all facts in the light most favorable to, and draw all legitimate inferences in favor of, the non-movant. Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011); Spivey v. Adaptive Marketing, LLC, 622 F.3d 816, 822 (7th Cir. 2010); Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010). But once the movant challenges the factual support and legal soundness of the plaintiff's claim, the plaintiff acquires the burden of demonstrating that a genuine fact issue remains for trial. Marcatante, 657 F.3d at 440, citing Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 787 (7th Cir. 2007). See also Reget, 595 F.3d at 695.

A genuine issue of material fact remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, to survive summary judgment, the plaintiff must produce admissible evidence on which a jury could find in his favor. Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).

C. Analysis

The FLSA requires employers to pay overtime to employees who work over 40 hours in a work week. 29 U.S.C. 207(a). The employee bears the burden to prove that he performed overtime work for which he was not compensated. Kellar v. Summit Seating, Inc., 664 F.3d 169, 173 (7th Cir. 2011).*fn2 Not all work-related activities count as "work" that must be compensated under the FLSA. Musch v. Domtar Industries, Inc., 587 F.3d 857, 859 (7th Cir. 2009).

For example, in 1947, Congress amended the FLSA by passing the Portal-to-Portal Act, 29 U.S.C. 251, et seq., which, inter alia, excluded from compensable time activities that are preliminary or postliminary to an employee's "principal activity." As a general rule, employers do not have to pay employees for time spent performing preliminary or postliminary tasks. See Musch, 587 F.3d at 859; 29 U.S.C. 254(a). Case law interpreting (and regulations promulgated under) the Portal-to-Portal Act have clarified that, under normal conditions, activities like showering or changing clothes are not compensable, but they can be compensable if they are integral and indispensable to the principal activity for which the employee is covered. See, e.g., Steiner v. Mitchell, 350 U.S. 247, 256 (1956); 29 C.F.R. 790.7(g), 790.8(c).

Turning to the case sub judice, Amsted employees are not paid on the basis of their clock-in and clock-out times. They are paid based on their scheduled shifts. Amsted permits employees to clock in up to 29 minutes before their shift and to clock out up to 29 minutes after their shift. Workers can use six different time clocks throughout the facility and are not specifically instructed as to when and where to clock in or out. However, they must be at their department, ready for work, when their shift begins. Employee practices differ widely as to how and when they clock in and clock out ...


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