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Alexander v. Caraustar Indus., Inc.

United States District Court, N.D. Illinois, Eastern Division

March 19, 2013

DONALD ALEXANDER, et al., Plaintiffs,
v.
CARAUSTAR INDUSTRIES, INC., et al, Defendants

For Donald Alexander, FRANCISCO TORRES, Jorge Ortega, Maria Maldonado, Julieta Granados, Veronica Gonzalez, Sofia Gonzalez, Santa Castellanos, Edgar Camacho, Plaintiffs: Aaron Benjamin Maduff, Walker R. Lawrence, Maduff & Maduff, LLC, Chicago, IL.

For Caraustar Industries, Inc., Caraustar Custom Packaging Group Inc., Defendants: Cardelle Bratton Spangler, Michael Lawrence Mulhern, LEAD ATTORNEYS, Daniel John Fazio, Winston & Strawn LLP, Chicago, IL.

OPINION

Page 948

Jeffrey N. Cole, UNITED STATES MAGISTRATE JUDGE.

MEMORANDUM OPINION AND ORDER

Introduction

Defendant Caraustar Industries, Inc., is the parent company of defendant Caraustar Custom Packing Group, Inc., which, in turn, runs Chicago Carton, a paperboard products manufacturing facility on Chicago's west side. The plaintiffs are several employees of that facility who claim they were underpaid for the hours they worked.

In their complaint, they alleged that although they were required to arrive before their shifts started and stay after their shifts ended in order to put on required protective gear - what the parties call " donning and doffing" - and discuss certain things to ensure a smooth shift transition, they were not paid overtime for these activities. ( Complaint, ¶ ¶ 13-18). They further alleged that although they were required to clock in a minimum of 10 minutes before their shifts were scheduled to start, they were not paid for this extra time. ( Complaint, ¶ ¶ 22-23). If they clocked in even 1 minute after their shift

Page 949

was scheduled to begin, defendants docked them a full 15 minutes pay. ( Complaint, ¶ 24). If an employee was not relieved on time and had to continue working at their station, they were not paid overtime until an hour elapsed. ( Complaint, ¶ 25). The plaintiffs filed sworn declarations in support of their motion for conditional certification [Dkt. #22] which detailed their additional, uncompensated work duties. We have summarized the allegations in the following Table:

Plaintiff

Alexander

Camacho

S.Gonzalez

V.Gonzalez

(Def.Ex. 2)

(Def.Ex. 3)

(Def.Ex. 4)

(Def.Ex. 5)

Pre-Shift

15 minutes

5-10

10 minutes

10 minutes

Donning

minutes

Pre-Shift

5 minutes

5 minutes

5 minutes

Walking

Pre-Shift

10 minutes

5 minutes

5 minutes

5 minutes

Change

Post-Shift

15 minutes

15 minutes

Tasks

per week

per week

Post-Shift

5-20

5 minutes

5 minutes

5 minutes

Change

minutes

Post-Shift

5 minutes

5 minutes

5 minutes

Walking

Post-Shift

15 minutes

5-10

10 minutes

10 minutes

Doffing

minutes

Post-Shift

10-20

Paperwork

minutes

Monday

10-30

10 minutes

Safety

minutes

Meeting

Weekly

30 minutes

Meeting

Wednesday

Plaintiff

Grenados

Maldanado

Ortega

Torres

(Def.Ex. 6)

(Def.Ex. 7)

(Def.Ex. 8)

(Def.Ex. 9)

Pre-Shift

7 minutes

10 minutes

5 minutes

15 minutes

Donning

Pre-Shift

5 minutes

5 minutes

5 minutes

5 minutes

Walking

Pre-Shift

5 minutes

5 minutes

5 minutes

10 minutes

Change

Post-Shift

15 minutes

15 minutes

Tasks

per week

per week*

Post-Shift

5 minutes

5 minutes

5 minutes

10 minutes

Change

Post-Shift

5 minutes

5 minutes

5 minutes

5 minutes

Walking

Post-Shift

7 minutes

10 minutes

10 minutes

15 minutes

Doffing

Post-Shift

Paperwork

Monday

15 minutes

Safety

Meeting

Weekly

15 minutes

15 minutes

Meeting

Thursday

Essentially, the plaintiffs complain that they were paid by the shift rather than by the hour, and that as a consequence they generally worked many more than forty hours a week, but were only paid for forty hours. They bring claims under the Fair Labor Standards Act (" FLSA" ) and the Illinois Minimum Wage Law (" IMWL" ). Both sides have filed motions for summary judgment. The defendants seek judgment on the entire case, the plaintiffs on just a portion. The defendants argue that donning and doffing of eyeglasses, earplugs, and shoes and walking to work stations are not compensable as a matter of law. They also contend that they are entitled to an offset for any unpaid, compensable time because the plaintiffs were given a 30-minute paid lunch period every day. Finally, the defendants submit that time records and the plaintiff's own testimony reveal, as a matter of law, that plaintiffs are not entitled to any overtime pay.

But the conspicuous feature of the defendants' presentation is the vigorously advanced contention that the plaintiffs have perjured themselves by making repeated, knowingly false statements under oath in pre-deposition, sworn declarations regarding their claims and that as a consequence of their perjury their claims should be dismissed as a sanction under the court's inherent authority to impose the drastic sanction of dismissal when a litigant engages in conduct that abuses the judicial process. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). See infra at 17-18. The plaintiffs do not deny that the declarations

Page 950

were false, but insist that at all times they have acted in good faith and that they did not perjure themselves.[1]

The plaintiffs' motion for summary judgment addresses the sole issue of the offset for the paid lunch periods. They argue that because the defendants and they treat the 30-minute lunch period as " hours worked," it must be included in calculating the 40-hour a week requirement for overtime compensation.

Local Rule 56.1

As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. " For litigants appearing in the Northern District of Illinois, the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for summary judgment." Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012). The party opposing summary judgment must respond to the movant's statement of proposed material facts, and that response must contain both " a response to each numbered paragraph in the moving party's statement," Local Rule 56.1(b)(3)(B), and a separate statement " consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment," Local Rule 56.1(b)(3)(C); Sojka, 686 F.3d at 398; Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008). Each response, and each asserted fact, must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005).

The district court is entitled to expect strict compliance with the rule. Shaffer v. American Medical Ass'n, 662 F.3d 439, 442 (7th Cir. 2011); Benuzzi v. Board of Educ. of City of Chicago, 647 F.3d 652, 654 (7th Cir. 2011). Responses and facts that are not set out and appropriately supported in an opponent's Rule 56.1 response will not be considered, see Shaffer, 662 F.3d at 442 (court need not consider any fact not contained in the parties' Rule 56.1 statements); Bay Area Business Council, 423 F.3d at 633 (court properly disregarded affidavits not referenced in 56.1 submission), and the movant's version of the facts - if compliant with the rule - will be deemed admitted. Local Rule 56.1(b)(3)(C); Rao v. BP Products North America, Inc., 589 F.3d 389, 393 (7th Cir. 2009); Montano, 535 F.3d at 569; Cracco, 559 F.3d at 632.

Factual Background

At Chicago Carton, hourly manufacturing employees like the plaintiffs were typically scheduled to work one of three shifts: (a) first shift, from 6:00 a.m. to 2:00 p.m.; (b) second shift, from 2:00 p.m. to 10:00 p.m. or (c) third shift, from 10:00 p.m. to 6:00 a.m. These shifts generally operated continuously, beginning at 6:00 a.m. on Mondays and concluding at 6:00 a.m. on Saturday mornings, with shifts occasionally scheduled for Saturdays and/or Sundays. For purposes of calculating overtime, the workweek began at 6:00 a.m. on Sunday morning and ended at 5:59 a.m. on Sunday morning. ( Defendants' Local Rule 56.1 Statement of Material Facts ( Def.St. " ), ¶ 6; Plaintiff's Response to Portions of Def.St. (" Pl.Rsp. " ), ¶ 6). All of the plaintiffs, except Donald Alexander, worked on manufacturing machines located on the plant floor, where they typically would replace an employee on their machine from the previous shift, and would

Page 951

typically be replaced by another employee on their machines at the end of their shifts. ( Def.St., ¶ 7; Pl.Rsp., ¶ 7). Mr. Alexander was a maintenance mechanic. ( Def.St., Ex. 2, ¶ 3).

Chicago Carton requires employees to wear four items of personal protective equipment (" PPE" ) prior to entering the plant floor: a hairnet, earplugs, goggles, and steel-toed shoes. While the hairnet is not technically " protective" gear, it is required because the facility manufactures products used by the food industry. Chicago Carton provides a locker room and lockers for those employees who choose to change clothes at the facility or to store their personal belongings during the work day. The locker room is located on the second level above the plant floor. Chicago Carton does not require employees to don or doff this PPE at the facility (or in the locker room), but permits them to do so at their homes, in their cars, or wherever else they so choose. ( Def.St., ¶ ¶ 8-11). Significantly, the named plaintiffs all swore in their declarations that all defendants' employees were required to change on site. ( Def.St., ¶ 23; Exs. 2-9, ¶ 15). All those plaintiffs who were later deposed had to change their stories to match reality. ( Def.St., ¶ 10; Ex. 10, at 66-67, 89-92, 188-93; Ex. 11, at 47, 50-51, 113; Ex. 12, at 97-100, 329-31).

As can be seen from the chart detailing the plaintiffs' sworn declarations, supra, at 2, the time plaintiffs had to spend performing uncompensated tasks, donning and doffing protective gear, was a major portion of their lawsuit. The plaintiffs averred that it daily took them between 24 to 40 minutes to put on and take off their safety glasses, hairnets, earplugs, and steel-toed boots and walk to and from their stations. See Table, supra at 2. For other employees, the ritual was not nearly so time-consuming, and their testimony accords with common experience. Marques Bienaime swore it took him no more than 30 seconds to put on and take off all of his protective gear and less than a minute to walk to and from the locker room to his machine. ( Def.St., ¶ 9; Ex. 14, ¶ ¶ 4, 8). Enrique Garcia spends about a minute putting on his boots in the locker room, then puts on the rest of his protective gear on the way to his machine. It takes him 30 seconds. He spends another 30 seconds taking it off after his shift as he walks to the locker room, where he takes off his boots. ( Def.St., ¶ 9; Ex. 15, ¶ ¶ 4-5, 8). Lee Globke puts on and takes off his boots at home; the rest of his gear he dons and doffs in about 30 seconds. ( Def.St., ¶ 9; Ex. 16, ¶ ¶ 3, 6). For Kina Martin, putting on all her gear including boots takes about one minute. ( Def.St., ¶ 9; Ex. 17, ¶ 3). Carmen Rivera puts on and takes off her boots at home. Donning the rest of her protective gear takes less than a minute; doffing it takes less than 30 seconds. ( Def.St., ¶ 9; Ex. 18, ¶ ¶ 4, 8). Finally, Steven Shelley puts on and takes off his boots at home; donning and doffing the rest of his protective gear takes about 30 seconds. ( Def.St., ¶ 9; Ex. 19, ¶ ¶ 4, 8). The plaintiffs were either outliers who were severely challenged by the prospect of slipping on and off just four items of protective gear, or they were blatantly lying.

Plaintiffs do not challenge the accuracy of the other employees's testimony. Instead, they submit it is not relevant because they are not plaintiffs in this case. ( Pl.Rsp., ¶ 9). But it most certainly is relevant to the plausibility of the plaintiff's testimony. While judges cannot make credibility determinations in summary judgment cases, they are not required to accept as true testimony in pre-summary judgment declarations that the plaintiffs, themselves, have conceded is untrue. Moreover, the motion to dismiss on the

Page 952

basis of perjury is not governed by strict summary judgment principles.

Common sense and human experience, see infra at 19, compel the conclusion that the plaintiffs' declarations - which they ultimately were forced to concede were untrue - were, in fact, knowingly false when they were made. This conclusion is buttressed by the fact that the other employees are able to don and doff in 2.5% to 4% of the time the plaintiffs initially swore it took them. If plaintiffs were to be believed, in every pay period they were spending as many as six and a half hours more than their coworkers putting on and taking off ear plugs, glasses, hairnets and boots. Relatively speaking, when we are talking about tasks that take a matter of seconds, that's not a slight difference that can be accounted for by an uncertain memory or an unintentional exaggeration.

As it happens, when some of the plaintiffs were finally deposed, it became clear that they had lied - " under penalty of perjury pursuant to 28 U.S.C. § 1746" - in their declarations. We begin with Mr. Alexander. In his declaration, Mr. Alexander said he spent 30 minutes every day, putting on and taking off his ear plugs, goggles, hairnet, and boots. ( Def.St., ¶ 27; Ex. 2, ¶ 24). At his deposition, he pared that down by quite a bit. He testified that it actually only took him about 5 minutes to put on and take off his shoes and seconds for everything else; about one-third the time he had sworn to earlier. ( Def.St., ¶ ¶ 28-29; Ex. 10, at 71-72, 130-31). Mr. Alexander worked for defendants for 9 years, and his overtime rate was $33.00 per hour, ( Def.St., Ex. 2, ¶ ¶ 2, 4), but it would appear that his claim covers five years: 2006 through 2010. As such, he attempted to pad his claim to reap an additional $13,200 in damages.

When questioned about the discrepancy at his deposition, Mr. Alexander replied, " I don't know what to say about that, man. You know?" ( Def.St., ¶ 29; Ex. 10, at 305-06). In their Local Rule 56.1 response, the plaintiffs simply say, " Disputed," and point back to Mr. Alexander's pre-deposition declaration. ( Pl.Rsp., ¶ 29). If plaintiffs are attempting to say that, because Mr. Alexander changed his story at his deposition, there is a disputed issue of material fact as to how long he spent donning and doffing, that contention is untenable. It has it has been well-settled for years that plaintiffs cannot create issues of fact by contradicting themselves with post-deposition affidavits. Holloway v. Delaware County Sheriff, 700 F.3d 1063, 1075 (7th Cir. 2012); Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir.1996). Here, the contradictions are with pre-deposition affidavits - which have now been admitted to be false - and that is manifestly not a basis for creating an issue of fact. And finally, apart from all this, even in summary judgment cases, summary judgment is not to be defeated merely because a party makes some factual claim. The nonmoving party " must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue' for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Mr. Alexander also tried to pad his compensable time beyond his donning and doffing claim by asserting in his pre-deposition declaration that every day, beginning in January 2010, he was required to fill out paperwork for 10 to 20 minutes and was owed overtime pay for that as well. ( Def.St., ¶ 26; Ex. 2, ¶ ¶ 23-24). At his deposition, however, he admitted that he didn't have to do this. ( Def.St. ...


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