Acosta v. Tyson Foods, Inc.

800 F.3d 468

Manuel ACOSTA, on Behalf of Himself and All Other Similarly Situated Individuals; Luis Montoya, On Behalf Of Himself And All Other Similarly Situated Individuals; Martin Hinojosa, On Behalf Of Himself And All Other Similarly Situated Individuals, Plaintiffs–Appellees

v.TYSON FOODS, INC., doing business as Tyson Fresh Meats, Defendant–Appellant.

No. 14–1582.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 15, 2015.

Filed: Aug. 26, 2015.

Rehearing and Rehearing En Banc Denied Oct. 1, 2015.

Robert L. Wiggins, Jr., argued, Birmingham, AL, (Jay Madison Smith, Sioux City, IA., Brian P. McCafferty, Blue Bell, PA., Candis A. McGowan, Daniel Arciniegas, Birmingham, AL., Roger K. Doolittle, Jackson, MS., Michael Hamilton, Nashville, TN, on the brief), for Plaintiffs–Appellees.

Michael J. Mueller, argued, Washington, DC, (Thomas Edwin Johnson, Allison Balus, Omaha, NE., Thomas Walsh, Saint Louis, MO., Evangeline C. Paschal, Washington, DC., Emily Burkhardt Vicente, Los Angeles, CA, on the brief), for Defendant–Appellant.

Before COLLOTON, BEAM, and KELLY, Circuit Judges.

Opinion

COLLOTON, Circuit Judge.

Manuel Acosta, Luis Montoya, and Martin Hinojosa sued Tyson Foods, Inc. on behalf of a class of employees at Tyson's pork processing plant in Madison, Nebraska. They claim that Tyson failed to pay certain wages due, in violation of the Nebraska Wage Payment and Collection Act, Neb.Rev.Stat. § 48–1228 et seq., and the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. The district court certified a class consisting of current and former hourly employees of Tyson's Madison facility, who “are or were paid under a ‘gang time’ compensation system in the Kill, Cut or Conversion Departments.” The court then granted summary judgment in favor of the plaintiffs on most liability issues, and awarded nearly $19 million to the class after a bench trial on damages and Tyson's defense of good faith. Tyson appeals the class certification, the summary judgment ruling, and several issues related to the bench trial. We conclude that Tyson is entitled to judgment as a matter of law on both the federal and state claims, and we therefore reverse the judgment.

I.

Tyson owns and operates a pork processing facility in Madison, Nebraska. Hourly production employees at the Madison facility are generally divided into “slaughter” and “processing” departments. Tyson compensates the employees for time spent on the actual production line, known as “gang time.” In addition to “gang time,” Tyson pays employees for a number of minutes per day, known as “K-code time,” for certain pre- and post-shift activity. These activities include the donning and doffing of personal protective equipment and clothing, cleaning and maintaining equipment and clothing, and walking to and from the production line, lockers, and wash stations. The extent of the pre- and post-shift activities required of employees varies based on their job classification.

Before 2007, pursuant to a settlement between Tyson's predecessor and the Department of Labor, all employees who used knives were paid for four minutes of K-code time to compensate for time spent donning and doffing protective equipment particular to knife users. In January 2007, Tyson revised its policy to provide compensation for zero to eight minutes of K-code time to employees depending on their position. Knife users received pay for four to eight minutes of K-code time. Tyson circulated a memorandum to this effect to all employees.

In 2010, Tyson again revised its compensation policy and circulated another memorandum explaining the changes and clarifying how employees would be paid for K-code time. Effective February 1, 2010, employees at the Madison plant received twenty minutes of paid time, in addition to “gang time,” to compensate for pre- and post-shift and break time activity. Some employees received pay for another one to four minutes, depending on the particular equipment required for their position.

The employees brought suit in 2008 under the Nebraska Wage Payment and Collection Act, claiming that Tyson failed to pay them adequately for the pre-and post-shift and break time activities. They also pleaded what is known as a “collective action” under the federal Fair Labor Standards Act for unpaid overtime wages on behalf of themselves and other employees similarly situated.See 29 U.S.C. § 216(b). The district court certified the Collection Act claim as a class action under Federal Rule of Civil Procedure 23. As for the FLSA claims, none of the plaintiffs timely filed consent in writing to become a party, pursuant to 29 U.S.C. §§ 216(b) and 256, and the district court never certified a collective action.

Tyson moved for summary judgment on the state law claim, arguing that employees failed to prove an agreement to pay the wages at issue, as required by the Collection Act. The district court rejected Tyson's argument, reasoning that “hourly production employees” can use the Collection Act as a mechanism for collecting any wages that were due and unpaid. The district court granted the employees' cross-motion for summary judgment on all liability issues except for Tyson's defense of good faith under 29 U.S.C. § 259(a). The case proceeded to trial on the good faith defense and damages.

Before trial, Tyson moved to dismiss the FLSA claims brought by Acosta, Montoya, and Hinojosa for failure to file a timely consent to the collective action as required by 29 U.S.C. § 216(b). Tyson also argued that Montoya and Hinojosa should be dismissed as parties for failure to participate in discovery. In a response, Montoya and Hinojosa conceded that their FLSA claims should be dismissed, but asked the court to allow them to proceed as absent class members on the state law claim. The district court denied Tyson's motion to dismiss Acosta's FLSA claim and allowed Montoya and Hinojosa to proceed on the state law claim.

After a seven-day bench trial, the court rejected Tyson's good faith defense and awarded compensatory damages of $6,258,329.74 and liquidated damages of $12,516,659.48, for a total award to the employees of $18,774,989.22. Tyson appeals, challenging the denial of its motion for summary judgment and several issues related to the class certification and trial.

II.

A.

We first address Tyson's contention that the district court should have dismissed Acosta's FLSA claim for failure to file a timely consent. Tyson argues that because Acosta pleaded a collective action under the FLSA, he could not proceed as a party plaintiff to that action without giving timely consent in writing. Acosta did file a consent to join the FLSA collective action on January 1, 2013, but he did so well after the statute of limitations expired in July 2009. See 29 U.S.C. § 255(a).

The FLSA sets forth the consent requirement:

An action ... may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). Acosta argues that he was not required to file a written consent, because the FLSA claim was an individual action brought for only himself, not a collective action also maintained on behalf of other employees similarly situated. See, e.g., Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1134–35 (5th Cir.1984) ; Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir.1978).

We conclude that Acosta was required to file a timely consent, because his complaint alleged a collective action. The complaint was styled as a “Class Action and Collective Action Complaint.” R. Doc. 1. The employees brought the claims “by themselves and on behalf of other similarly situated individuals. ” Id. (emphasis added). In their prayer for relief, the employees asked the court to “permit this action to go forward as a ‘collective action’ pursuant to 29 U.S.C. § 216(b).” In a Joint Planning Report filed with the court, the parties specified that any motion for conditional certification of a collective action would be filed by December 15, 2008. The employees never moved for conditional certification, but they did file fifty-five consents to join the FLSA collective action on January 29, 2009. In response, Tyson filed an opposition to conditional certification on February 16, 2009. Acosta never amended his complaint to allege an individual action.

Acosta argues that his complaint “commenced” an individual action, and no collective action was ever commenced because the required consents were never filed. That contention rings hollow when the complaint on file continued to allege a collective action, and Acosta filed consents from other employees several weeks after the deadline for a certification motion—a filing that would have been nonsensical if the complaint alleged an individual action. Acosta never made clear that he intended to convert the collective action pleaded in the complaint into an individual action on behalf of himself alone. Therefore, Acosta was required to file a written consent to proceed as a party plaintiff. Because he failed to do so before the statute of limitations expired, the district court should have dismissed Acosta's claim under the FLSA. See Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101–02 (7th Cir.2004).

B.

Tyson also challenges the judgment in favor of the employees under the Nebraska Wage Payment and Collection Act. The Collection Act provides a cause of action for employees to recover unpaid wages. Neb.Rev.Stat. § 48–1231(1). “Wages” are defined as “compensation for labor or services rendered by an employee ... when previously agreed to and conditions stipulated have been met.” Neb.Rev.Stat. § 48–1229(6) (emphasis added). In other words, the Collection Act allows an employee to recover only those wages that an employer previously...