Peg Bouaphakeo v. Tyson Foods, Inc.

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 12-3753
___________________________

Peg Bouaphakeo; Javier Frayre; Jose A. Garcia; Mario Martinez; Jesus A. Montes;
Heribento Renteria, on behalf of themselves and all other similarly situated individuals

lllllllllllllllllllll Plaintiffs - Appellees

v.

Tyson Foods, Inc.

lllllllllllllllllllll Defendant - Appellant
____________

Appeal from United States District Court
for the Northern District of Iowa - Sioux City
____________

Submitted: February 11, 2014
Filed: August 25, 2014
____________

Before SMITH, BEAM, and BENTON, Circuit Judges.
____________

BENTON, Circuit Judge.

Peg Bouaphakeo and other named plaintiffs are employees of Tyson Foods,
Inc. They represent a class of employees at Tyson’s meat-processing facility in Storm
Lake, Iowa. They sued Tyson for not paying wages due under the Fair Labor
Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., and the Iowa Wage Payment
Collection Law (IWPCL), Iowa Code 91A.1 et seq. A jury returned a verdict for the
class. Tyson appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

The employees are current and former “gang-time” employees at Tyson’s
facility. The background is similar to that in Lopez v. Tyson Foods, Inc., 690 F.3d
869, 873-75 (8th Cir. 2012) (adapted to the facts of this case):

To calculate the employees’ compensable working time, Tyson measures
“gang time”—when the employees are at their working stations and the
production line is moving. The employees claim Tyson failed to provide
FLSA overtime compensation for donning (putting on) personal
protective equipment (PPE) and clothing before production and again
after lunch, and for doffing (taking off) PPE and clothing before lunch
and again after production. The PPE and clothing worn by individual
employees vary depending on their role in the process. Tyson classifies
items of PPE and clothing as either “unique” or “non-unique” to the
meat-processing industry. . . . The employees also seek compensation
for transporting the items from lockers to the production floor.

In addition to “gang time,” Tyson adds “K-code” time to each
employee’s paycheck. Before 2007, Tyson paid four minutes of K-code
time per day to each [employee in a department where knives were used]
in order to compensate for the donning and doffing of unique items.
From [February] 2007 to [June] 2010, Tyson added [several minutes]
per day for pre-and post-shift walking time required of the employee. .
. . Tyson does not record the actual time that employees perform any of
these tasks.

....

The FLSA prohibits the employment of any person “for a workweek
longer than forty hours unless such employee receives compensation for
his employment in excess of the hours above specified at a rate not less

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than one and one-half times the regular rate at which he is employed.”
29 U.S.C. § 207(a)(1); IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005). An
employee who sues for unpaid overtime “has the burden of proving that
he performed work for which he was not properly compensated.”
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946),
superseded by statute on other grounds, Portal-to-Portal Act of 1947,
Pub. L. No. 80-49, 61 Stat. 84; Fast v. Applebee’s Int’l, Inc., 638 F.3d
872, 881 (8th Cir. 2011). “Neither ‘work’ nor ‘workweek’ is defined in
the statute.” Alvarez, 546 U.S. at 25. At one time, the Supreme Court
defined work as “physical or mental exertion (whether burdensome or
not) controlled or required by the employer and pursued necessarily and
primarily for the benefit of the employer and his business.” Tennessee
Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598
(1944), superseded by statute on other grounds, Portal-to-Portal Act of
1947, Pub. L. No. 80-49, 61 Stat. 84. The Court then “clarified that
‘exertion’ was not in fact necessary for an activity to constitute ‘work’
under the FLSA.” Alvarez, 546 U.S. at 25, citing Armour & Co. v.
Wantock, 323 U.S. 126, 133 (1944).

Whether an employee’s activity is “work” does not end the
compensability analysis. In the Portal-to-Portal Act, Congress excluded
some activities that might otherwise constitute work from the FLSA.
The Act excepts two categories:

(1) walking, riding, or traveling to and from the actual place of
performance of the principal activity or activities which such
employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said
principal activity or activities, which occur either prior to the time
on any particular workday at which such employee commences,
or subsequent to the time on any particular workday at which he
ceases, such principal activity or activities.

29 U.S.C. § 254(a); Alvarez, 546 U.S. at 26-28. “[A]ctivities performed
either before or after the regular work shift, on or off the production
line, are compensable . . . if those activities are an integral and

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 indispensable part of the principal activities for which covered
workmen are employed and are not specifically excluded by [29 U.S.C.
§ 254(a)(1)].” Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (emphasis
added). And, “any activity that is ‘integral and indispensable’ to a
‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. §
254(a)].” Alvarez, 546 U.S. at 37.

The Department of Labor has a “continuous workday rule,” generally
defining an employee’s “workday” as “the period between the
commencement and completion on the same workday of an employee’s
principal activity or activities.” 29 C.F.R. § 790.6(b); Alvarez, 546 U.S.
at 29, 37 (describing and applying the continuous workday rule).
During the continuous workday, the compensability of all activities that
otherwise satisfy the requirements of the FLSA is not affected by the
Portal-to-Portal Act’s exceptions. In Alvarez, the Supreme Court held
that “during a continuous workday, any walking time that occurs after
the beginning of the employee’s first principal activity and before the
end of the employee’s last principal activity is excluded from the scope
of [the Portal-to-Portal Act], and as a result is covered by the FLSA.”
Alvarez, 546 U.S. at 37.

The employees sued in 2007, claiming that Tyson’s K-code time was
insufficient to cover compensable pre- and post-production line activities, violating
the FLSA and IWPCL. The district court1 certified the FLSA claim as a collective
action and the IWPCL claim as a Rule 23 class action.2 During a nine-day trial,

1
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa. The case was later transferred to the Honorable John A.
Jarvey, United States District Judge for the Southern District of Iowa.
2
See Salazar v. Agriprocessors, Inc., 527 F. Supp. 2d 873, 884 (N.D. Iowa
2007) (finding, in a similar donning and doffing case, that “there is no novel issue of
state law in the IWPCL Claim, nor is there a difference in the terms of proof required
by the FLSA Claim and the IWPCL Claim. There are no issues of first impression
in the IWPCL Claim that the Iowa courts would be better suited to answer. . . . [T]he
substance and basis of the FLSA Claim and the IWPCL Claim is virtually

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plaintiffs proved liability and damages by using individual timesheets, along with
average donning, doffing, and walking times calculated from 744 employee
observations. The jury returned a verdict for the class of $2,892,378.70. With
liquidated damages, the final judgment totaled $5,785,757.40.

II.

Tyson argues that the district court erred in certifying the FLSA collective
action—under 29 U.S.C. § 216(b)—and the IWPCL class—under Rule 23.3 Class
certification is reviewed for abuse of discretion. Avritt v. Reliastar Life Ins. Co., 615
F.3d 1023, 1029 (8th Cir. 2010) (reviewing class certification under Rule 23 for
abuse of discretion); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1219 (11th
Cir. 2001) (“The decision to create an opt-in class under § 216(b), like the decision
on class certification under Rule 23, remains soundly within the discretion of the
district court.”). A district court may certify a class under Rule 23(b) if “questions
of law or fact common to class members predominate over any questions affecting
only individual members,” and “a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b). The
FLSA allows named plaintiffs to sue “for and in behalf of . . . themselves and other
employees similarly situated.” 29 U.S.C. § 216(b). Plaintiffs may be similarly

indistinguishable, that is, the claims involve identical facts and highly similar legal
theories.”) (internal quotations removed). See generally Lindsay v. Gov’t Emps. Ins.
Co., 448 F.3d 416, 425 (D.C. Cir. 2006) (finding “state law claims essentially
replicate the FLSA claims” in an overtime case).
3
The district court conditionally certified the FLSA class, and many employees
opted in. See Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013)
(finding that “employees . . . become parties to a collective action . . . by filing written
consent with the court” after conditional certification). While the district court never
revisited the conditional certification, the parties treat the FLSA certification as
unconditional.

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situated when “they suffer from a single, FLSA-violating policy, and when proof of
that policy or of conduct in conformity with that policy proves a violation as to all the
plaintiffs.” O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir. 2009).
A court may consider “(1) disparate factual and employment settings of the individual
plaintiffs; (2) the various defenses available to defendant which appear to be
individual to each plaintiff; [and] (3) fairness and procedural considerations.”
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001).4

According to Tyson, factual differences between plaintiffs—differences in PPE
and clothing between positions, the individual routines of employees, and variation
in duties and management among departments—make class certification improper.
These differences, Tyson says, do not allow the class action to “generate common
answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541, 2551 (2011). See Luiken v. Domino’s Pizza, LLC, 705 F.3d 370,
374-76 (8th Cir. 2013) (applying Dukes and reversing certification when the
interaction between individual customers and employees meant liability was
“dominated by individual issues”); Bennett v. Nucor Corp., 656 F.3d 802, 815 (8th
Cir. 2011) (denying certification when there were “stark inter-departmental variations
in job titles, functions performed, and equipment used”). Unlike Dukes, Tyson had
a specific company policy—the payment of K-code time for donning, doffing, and
walking—that applied to all class members. Unlike Dukes, class members worked
at the same plant and used similar equipment. The time study showed that donning

4
FLSA collective actions and Rule 23 class actions have separate procedures,
such as the “opt in” requirement to an FLSA collective action and the “opt out”
requirement for a Rule 23 class action. See Symczyk, 133 S. Ct. at 1529 (finding Rule
23 precedent inapposite when considering the mootness of an FLSA action with no
“opt in” parties). Contrary to the dissent’s statement, the Supreme Court in Symczyk
did not find that these actions “may not be procedurally homogenized for trial” or “do
not lend themselves to inextricably intertwined trials.” Neither party complains of
procedural error from “homogenizing” the claims at trial.

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and doffing all equipment, plus walking, took an average of 18 minutes in the
fabrication department and 21 minutes in the kill department. True, applying Tyson’s
K-code policy and expert testimony to “generate . . . answers” for individual overtime
claims did require inference, but this inference is allowable under Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946) (allowing liability based on “just and
reasonable inference” when complete records do not exist). While individual
plaintiffs varied in their donning and doffing routines, their complaint is not
“dominated by individual issues” such that “the varied circumstances . . . prevent ‘one
stroke’ determination.” Luiken, 705 F.3d at 374, 376, quoting Dukes, 131 S. Ct. at
2551. The district court did not abuse its discretion in certifying the class.

Tyson also contends that the class should be decertified because evidence at
trial showed that some class members did not work overtime and would receive no
FLSA damages even if Tyson under-compensated their donning, doffing, and
walking. See In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 616 (8th
Cir. 2011) (“A district court may not certify a class . . . ‘if it contains members who
lack standing.’”), quoting Avritt, 615 F.3d at 1034; Blades v. Monsanto Co., 400 F.3d
562, 571 (8th Cir. 2005) (when “not every member of the proposed classes can prove
with common evidence that they suffered impact from the alleged conspiracy . . .
damages to all class members must be shown to justify the class action”). Cf.
Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 774 (7th Cir. 2013) (finding
certification improper when piece-rate system varied pay from worker-to-worker, use
of an average conferred a “windfall” on some class members, and employees had
incentive to under-report time). Tyson exaggerates the authority for its contention.
See Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013) (allowing variation in
damages unless “individual damage calculations . . . overwhelm questions common
to the class”); Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct.
1184, 1191 (2013) (“Rule 23(b)(3) requires a showing that questions common to the
class predominate, not that those questions will be answered, on the merits, in favor
of the class.”) (second emphasis added); DeBoer v. Mellon Mortg. Co., 64 F.3d 1171,

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1174 (8th Cir. 1995) (“The fact that individuals . . . will have . . . claims of differing
strengths does not impact on the commonality of the class as structured.”); Mejdrech
v. Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003) (“If there are genuinely
common issues, issues identical across all the claimants, issues moreover the accuracy
of the resolution of which is unlikely to be enhanced by repeated proceedings, then
it makes good sense, especially when the class is large, to resolve those issues in one
fell swoop.”).5

At any rate, at Tyson’s request, the jury was instructed, “Any employee who
has already received full compensation for all activities you may find to be
compensable is not entitled to recover any damages.” Tyson’s instruction directed
the jury to treat plaintiffs with no damages as class members. It is “fundamental that
where the defendant . . . ‘invited error’ there can be no reversible error.” United
States v. Beason, 220 F.3d 964, 968 (8th Cir. 2000), quoting United States v. Steele,
610 F.2d 504, 505 (8th Cir. 1979).

5
The dissent says that the class fails because commonality under Rule 23
“requires . . . that all class members suffered the same injury,” and that “the locution
‘injury’ includes the measure of a class member’s individual damages.” Individual
damage calculations, however, are permissible if they do not “overwhelm questions
common to the class.” Comcast, 133 S. Ct. at 1433. The district court found the
differences between gang-time employees “small” and allowed individual damage
calculations based on undisputed employee timesheets. This was not an abuse of
discretion.

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 III.

Tyson believes that plaintiffs improperly relied on a formula to prove liability.
In Dukes, the Supreme Court disapproved of “Trial by Formula.”

A sample set of the class members would be selected, as to whom
liability for sex discrimination and the backpay owing as a result would
be determined in depositions supervised by a master. The percentage of
claims determined to be valid would then be applied to the entire
remaining class, and the number of (presumptively) valid claims thus
derived would be multiplied by the average backpay award in the sample
set to arrive at the entire class recovery—without further individualized
proceedings.

Dukes, 131 S. Ct. at 2561. Here, plaintiffs do not prove liability only for a sample
set of class members. They prove liability for the class as a whole, using employee
time records to establish individual damages. Using statistics or samples in litigation
is not necessarily trial by formula. See Comcast, 133 S. Ct. at 1434 (considering
expert’s multiple-regression model); Perez v. Mountaire Farms, Inc., 650 F.3d 350,
372 (4th Cir. 2011) (favoring “a calculation based on the summation of mean times”
to represent “the amount of time that employees working at the plant actually spend
donning and doffing”). Cf. Martinez v. Ryan, 132 S. Ct. 1309, 1325 n.5 (2012)
(relying on “a sample of federal habeas cases”).

Plaintiffs do rely on inference from average donning, doffing, and walking
times, but they apply this analysis to each class member individually. Using this
representative evidence is comparable to a jury applying testimony from named
plaintiffs to find classwide liability. See Fed. R. Civ. P. 23 (allowing representative
parties when their claims “are typical of the claims or defenses of the class” and they
“fairly and adequately protect the interests of the class”). For the donning, doffing,
and walking in Mt. Clemens, testimony from eight employees established liability for
300 similarly situated workers. Mt. Clemens, 328 U.S. at 684; Mt. Clemens Pottery

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Co. v. Anderson, 149 F.2d 461, 462 (6th Cir. 1945) (discussing testimony). To prove
damages, the Court remanded for “the determination of the amount of walking time
involved and the amount of preliminary activities performed” based on “whatever
reasonable inferences can be drawn from the employees’ evidence.” Mt. Clemens,
328 U.S. at 693-94.

Tyson claims that plaintiffs presented insufficient evidence to prove damages
classwide. See Murray v. Stuckey’s, Inc., 939 F.2d 614, 621 (8th Cir. 1991)
(“[P]laintiffs’ evidence failed to show, for each individual plaintiff, ‘that he has in
fact performed work for which he was improperly compensated.’”), quoting Mt.
Clemens, 328 U.S. at 687; Marshall v. Truman Arnold Distrib. Co., Inc., 640 F.2d
906, 911 (8th Cir. 1981) (requiring further evidence from non-testifying employees
before awarding damages when earnings projections were substantially rebutted by
cross-examination). Cf. Dukes, 131 S. Ct. at 2560 (requiring “individualized
determinations of each employee’s eligibility for backpay” as a procedural
prerequisite for certification under Title VII). This court “will not reverse a jury
verdict for insufficient evidence unless ‘after viewing the evidence in the light most
favorable to the verdict, [it concludes] that no reasonable juror could have returned
a verdict for the non-moving party.’” Denesha v. Farmers Ins. Exch., 161 F.3d 491,
497 (8th Cir. 1998), quoting Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir. 1997)
(en banc). See Sandifer v. United States Steel Corp., 134 S. Ct. 870, 880 (2014)
(agreeing “with the basic perception of the Courts of Appeals that it is most unlikely
Congress meant [the FLSA] to convert federal judges into time-study professionals”).
Tyson has no evidence of the specific time each class member spent donning, doffing,
and walking. “[W]hen an employer has failed to keep proper records, courts should
not hesitate to award damages based on the ‘just and reasonable inference’ from the
evidence presented.” Reich v. Stewart, 121 F.3d 400, 406 (8th Cir. 1997), quoting
Martin v. Tony & Susan Alamo Found., 952 F.2d 1050, 1052 (8th Cir. 1992)
(allowing “pattern or practice” evidence when defendant provided “self-serving,

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unsubstantiated approximations” of employee hours), citing Mt. Clemens, 328 U.S.
at 687-88.

To prove damages, plaintiffs use individual timesheets, along with average
times calculated from a sample of 744 observations of employee donning, doffing,
and walking. Plaintiffs’ expert testified that the sample was large for this type of
study, representative, and approximately random. He testified that the study used
“accepted procedure in industrial engineering.” Tyson’s Director of Human
Resources testified that K-code time did not include the donning and doffing of much
non-unique PPE. Pay data—which came directly from Tyson—showed the amount
of K-code time each individual received. Sufficient evidence existed to support a
“reasonable inference” of classwide liability. Mt. Clemens, 328 U.S. at 687.

Tyson asserts that even if sufficient evidence supported damages, plaintiffs’
claims still fail because it is uncertain if any uncompensated work was performed,
citing Carmody v. Kansas City Board of Police Commissioners, 713 F.3d 401, 406
(8th Cir. 2013) (“Anderson [v. Mt. Clemens Pottery Co.] only applies where the
existence of damages is certain. . . . Anderson allows uncertainty only for the amount
of damages.”). In Carmody, the plaintiffs did not “produce[] evidence indicating any
hours worked over forty hours per week . . . were never paid.” Id. The plaintiffs “did
not provide any evidence of actual damages because the testimony contained no
reference to overtime hours that violated the FLSA.” Id. at 407. Here, Tyson
stipulates that “workers at the Storm Lake plant tend to work a significant amount of
overtime on a weekly basis.” Plaintiffs show uncompensated overtime work by
applying average donning, doffing, and walking times to employee timesheets. The

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evidence is “susceptible to [the] reasonable inference” that the jury’s verdict is
correct. Troknya v. Cleveland Chiropractic Clinic, 280 F.3d 1200, 1206 (8th Cir.
2002).6

*******

The judgment is affirmed.

BEAM, Circuit Judge, dissenting.

For two independent but somewhat factually related reasons, this case should
be reversed, remanded and dismissed. First, under the circumstances of this
litigation, neither the putative Fair Labor Standards Act (FLSA) collective action (the
so-called federal class) nor the purported Iowa Wage Payment Collection Law
(IWPCL) Rule 23(b)(3) class (the so-called state class) were eligible for class
certification, either as a matter of fact or a matter of law. Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2551 (2011); O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d
567, 583-84 (6th Cir. 2009); Thiessen v. General Elec. Capital Corp., 267 F.3d 1095,
1102-03 (10th Cir. 2001). Second, Rule 23 state-law-based class actions are
fundamentally different than collective actions authorized under the FLSA and may

6
Tyson also argues that the jury failed to follow the directions of plaintiffs’
damages expert, who testified that the jury could choose only “all or nothing” of her
model. A jury is not required to follow an expert’s conclusion. See Children’s
Broad. Corp. v. The Walt Disney Co., 357 F.3d 860, 866 (8th Cir. 2004).

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not be procedurally homogenized for trial as done in this case.7 Genesis Healthcare
Corp. v. Symczyk, 133 S. Ct. 1523, 1529 (2013).

I. BACKGROUND

This litigation generally involves hourly production employees of Tyson Foods
at its Storm Lake, Iowa, meat-processing facility. But, the dispute more basically
involves six named (lead) plaintiff employees from the kill, cut and retrim
departments of the Storm Lake operation who were paid their wages using, in part,
Tyson's "gang-time" compensation system but who also claim to have been owed
overtime pay resulting from disparate compensable work activities occurring at times
other than while earning daily "gang time" kill, cut and retrim department production
line compensation. The six attempt to assert two separate collective actions–a federal
statutory action asserting violations of the FLSA, 29 U.S.C. §§ 201-219, and a state
statutory action separately based upon the IWPCL, Iowa Code Chapter 91A.

This case was originally assigned to the Honorable Mark Bennett who
conditionally "certified" a federal collective action class pursuant to 29 U.S.C. §
216(b) and a purported IWPCL state law class pursuant to Federal Rule of Civil

7
In its footnote 2, the court takes issue with this observation. In support, the
court cites Salazar v. AgriProcessors, Inc., 527 F. Supp. 2d 873 (N.D. Iowa 2007),
and Lindsay v. Government Employees Insurance Co., 448 F.3d 416 (D.C. Cir. 2006).
Although subject matter jurisdiction was not in dispute in this case, Salazar and
Lindsay deal with whether a federal cause of action (the FLSA) and a state cause of
action (the IWPCL) "derive" sufficiently from the same "common nucleus of
operative facts" that, when joined, they form part of a case and controversy under
Article III of the United States Constitution. Lindsay, 448 F.3d at 424 (quotation
omitted), Salazar, 527 F. Supp. 2d at 880 (quotation omitted); See 28 U.S.C. §
1367(a). But, "case and controversy" standing is not the fundamental issue here. The
question is whether the separate federal and state claims were sufficiently identical
to be presented to the jury, as here, as one amalgamated cause of action. In my view,
Supreme Court precedent indicates they were not.

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Procedure 23(b)(3). Then, because the Honorable John Jarvey was already assigned
to several comparable cases involving Tyson, including a case involving Tyson
employees at Columbus Junction, Iowa, Guyton v. Tyson, No. 3:07-cv-00088-JAJ-
TJS (S.D. Iowa) (a companion case on appeal), this matter was transferred to Judge
Jarvey for further pretrial and post-trial proceedings and for trial. The case has now
been litigated and is before this panel on appeal.

II. DISCUSSION

1. The Classes

A. The Federal FLSA Class

A collective action to recover damages permitted by the FLSA "may be
maintained against any employer . . . in any Federal or State court of competent
jurisdiction by anyone or more employees for and in behalf of himself or themselves
and other employees similarly situated." 29 U.S.C. § 216(b). However, "[n]o
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." Id.

The six named lead plaintiff employees who sought to establish this collective
action bore the "burden of showing that the opt-in [consenting] plaintiffs are similarly
situated to the lead plaintiffs." O'Brien, 575 F.3d at 584. Judge Bennett, apparently
recognizing the likely existence of numerous factors unrelated to the "gang-time" pay
used to determine a given Tyson employee's regular wages–factors amply established
by the evidence at trial–certified a "conditional" FLSA class consisting of employees
from the kill, cut and retrim departments at the Tyson plant paid through the so-called
gang-time compensation system within a discrete time period set forth in the
certification. Indeed, the conditional certification related only to the three

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departments and the gang-time pay earned in the production line in those
departments. No other regular or overtime pay calculation factors discussed at the
merits portion of the trial (such as: individual employment codes, specific duties,
wage-rate variations, knife wielding protections, sanitary clothing and equipment,
part-time work, illness, injury, shift differentials, and routine production line
overtime) were in any way incorporated as limitations on the use of the FLSA
conditional class. The record reveals that this "conditional" designation was never
withdrawn or modified at any time during or after the trial. According to the joint
stipulation of facts by the parties, there were 444 employees who consented to be a
part of this FLSA collective action class including the six named lead plaintiffs.

B. The IWPCL State Class

"'In order to obtain class certification, a plaintiff has the burden of showing that
the class should be certified and that the requirements of Rule 23 are met.'" Luiken
v. Domino's Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013) (quoting Coleman v.
Watt, 40 F.3d 255, 258 (8th Cir. 1994)). Judge Bennett, at the request of the same six
named plaintiffs who sought creation of and joined the FLSA collective class,
ultimately certified what he termed a "modified" 3,344-person putative Rule 23 state
law class consisting of all "current and former employees of Tyson's Storm Lake,
Iowa, processing facility who have been employed at any time from February 7, 2005,
to the present, and who are or were paid under a 'gang-time' compensation system in
the Kill, Cut or Retrim departments." This certification also included no other
limiting or enhancing overtime pay calculation elements. The record discloses that
this certification was likewise never further embellished or modified during or after
trial.

The "gang-time system of payment" as referred to by Judge Bennett and
defined by the evidence is a system where employees are paid from the time their
production line starts to the time their production line ends. There is no contention

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by the named plaintiffs that the Storm Lake Tyson employees did not receive all
wages due and owing for time worked during the production line gang-time pay
periods. So, standing by itself, as it does in the class certifications, the gang-time
production line classification means little in the context of proving at trial through
evidence common to the class the overtime pay claims of the 3,344 members of the
allegedly underpaid overtime class. Supreme Court and Eighth Circuit precedent
demands otherwise. See Dukes, 131 S. Ct. at 2549-50 (discussing the requirements
of class certification); see also Lopez v. Tyson Foods, Inc., 690 F.3d 869, 874 (8th
Cir. 2012) (an employee who sues for unpaid overtime has the burden of proving he
performed work for which he was not properly compensated).

To be certified for purposes of Rule 23(a), the collective groupings, that is the
putative classes, must have been such that Tyson was positioned to assert its
legitimately held common-to-the-class defenses against all members of the group who
claimed to have earned unpaid overtime wages. See Fed. R. Civ. P. 23(a)(3). In this
same context, the class must have been limited to Tyson employees who could and
did establish entitlement to overtime pay resulting from overtime work performed
during compensable time, that is, work performed at times other than production line
gang-time pay periods–periods for which all class members were already routinely,
regularly, and unquestionably paid by Tyson in accordance with the law.

"In order to obtain class certification, a plaintiff has the burden of showing that
the class should be certified and that the requirements of Rule 23 are met." Luiken,
705 F.3d at 372 (quotation omitted). While a Rule 23(b)(3) class was purportedly
certified, any Rule 23 class may only be lawfully certified if the "trial court is
satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been
satisfied." Dukes, 131 S. Ct. at 2551 (quotation omitted). Actual, not presumed,
conformance with Rule 23(a) remains indispensable. Id. Frequently, as in this case,
"'rigorous analysis' will entail some overlap with the merits of the plaintiff's
underlying claim." Id. Rule 23(a)'s four bedrock requirements are numerosity,

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commonality, typicality and adequate representation (here, a named plaintiff with
standing). Commonality requires the plaintiff to demonstrate at the time of the merits
hearing on the underlying claim–that all class members suffered the same injury.
Dukes, 131 S. Ct. at 2551. So, if the locution "injury" includes the measure of a class
member's individual damages, as I believe it does, this class fails on that score alone.

The court majority apparently sees a pathway around plaintiffs' legal dilemma
arising from the above-noted class formulation failures. Although acknowledging
that class certification is improper when a "windfall" is conferred on some class
members, ante at 7, the court makes the following observation:

At any rate, at Tyson's request, the jury was instructed, "Any employee
who has already received full compensation for all activities you may
find to be compensable is not entitled to recover any damages." Tyson's
instruction directed the jury to treat plaintiffs with no damages as class
members. It is "fundamental that where the defendant . . . 'invited error'
there can be no reversible error." United States v. Beason, 220 F.3d
964, 968 (8th Cir. 2000) (quoting United States v. Steele, 610 F.2d 504,
505 (8th Cir. 1979)).

Ante at 8.

Thus, says the court, Tyson "directed the jury to treat plaintiffs with no
damages as class members." However, Tyson made no such class membership
directive to the jury through its instructional request and Beason and Steele are
wholly inapposite as case precedent for the court's faulty premise. The cases deal
only with run-of-the-mill evidentiary matters, not waivers of legal principles. Beason
simply opened the door to the making of a Bruton exception by permitting an
admission from a non-testifying co-defendant, and Steele admitted otherwise
inadmissible hearsay evidence to clarify and rebut an issue opened by the criminal
defendant's cross-examination. Tyson, after vigorously resisting class action

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formulations at every turn in this litigation, and being denied, properly requested an
instruction that the plaintiffs be held to their evidentiary burdens of proof.

C. The Merits

Fundamentally, as previously noted, this case emerges from two separate
causes of action brought through a single federal court complaint–a federal law cause
of action alleging liability leading to damages arising from violation of the FLSA and
a state law cause of action alleging liability and damages arising from violation of the
IWPCL. The burden of proof on all issues of statutory liability, injury and measure
of damages rests squarely upon the shoulders of the named plaintiffs. Lopez, 690
F.3d at 874. In this case, gang-time pay is not in dispute. The plaintiffs contend, as
does the court majority, that the overtime pay dispute involves time spent by a class
of Tyson employees in doffing and donning various sanitary and personal protection
equipment before and after the gang-time production line work has been completed
each day.

Tyson's Storm Lake employees are required to wear a different combination of
sanitary and protective gear. Those employees wearing knives to use in conjunction
with their particular duties on a particular day are required to wear a combination of
a plastic belly guard, mesh apron, mesh sleeve, plexiglass arm guard, mesh glove,
Polar glove, membrane skinner gloves, Polar sleeves, "steel" for maintaining the
knives and knife scabbards ("knife related gear"). Other workers are required to wear
a hard hat, hairnet, beard net, earplugs, ear muffs, rubber or cotton gloves, and rubber
or plastic aprons ("sanitary gear").

From 1998 until February 4, 2007, Tyson paid four extra minutes beyond
production line time for all production employees, referred to as "K-Code" time.
From February 4, 2007, to June 28, 2010, Tyson ceased paying non-knife-wielding
employees for the time donning and doffing sanitary gear. From February 4, 2007,

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to June 28, 2010, Tyson paid knife-wielding employees between 4 to 8 minutes of K-
Code time, depending on the job, and employees who did not have a knife did not
receive K-Code time payments.

Plaintiffs offered evidence at trial concerning a sample of putative class
employees from Dr. Kenneth Mericle and Dr. Liesl Fox. Fox's calculation testimony
fed off of Mericle's evidence concerning Rule 23 class damages for overtime pay.
Fox testified, assuming Mericle's evidence was true, that at least 212 members of the
purported class did not suffer any damages because the doffing and donning time, less
the K-Code time "would not have been enough to kick them into overtime." Further,
while the plaintiffs' evidence generally indicated some individual overtime damages
ranging from a few cents to several thousand dollars, there were at least 509 workers
whose injuries ranged from $0.27 to less than $100. And, the record discloses that
the jury in returning only a single gross amount of damages verdict, as instructed,
discounted plaintiffs' evidence by more than half, likely indicating that more than half
of the putative class suffered either no damages or only a de minimis injury measured
in cents rather than dollars. In spite of having the burden of proof, there was no
evidence adduced by plaintiffs that established the number of purported class member
employees fully compensated or not fully compensated by the K-Code payments
already paid by Tyson. It is evident, however, that many class employees fit within
each category and all were apparently included as beneficiaries of the single damages
verdict returned by the jury.

Rule 23(a)(2) contemplates that "there are questions of law or fact common to
the class." "Commonality requires the plaintiff to demonstrate that the class members
have suffered the same injury. This does not mean merely that they have all suffered
a violation of the same provision of law." Dukes, 131 S. Ct. at 2551 (quotation and
citation omitted). Rather, "[t]heir claims must depend upon a common contention.
. . . . That common contention, moreover, must be of such a nature that it is capable
of class-wide resolution–which means that determination of its truth or falsity will

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resolve an issue that is central to the validity of each one of the claims in one stroke."
Id. "What matters to class certification . . . is not the raising of common 'questions'
. . . but, rather the capacity of a class-wide proceeding to generate common answers
apt to drive the resolution of the litigation." Id. (first alteration and italics in original)
(quotation omitted). That was not the case here. While it is true that all class
members were subject to a common policy–gang-time payment–there is no "common
answer," arising from the evidence concerning the individual overtime pay questions
at issue in this case. Thus, this case with these classes cannot be resolved in "one
stroke," given the differences in donning and doffing times, K-Code payments,
abbreviated gang time shifts, absenteeism, sickness, vacation and a myriad of other
relevant factors. The "rigorous" analysis of class certification in this case, which
overlaps with the merits as required by Dukes, 131 S. Ct. at 2551, clearly discloses
that the Rule 23 class claim does not comply with either rule or precedent and should
have been decertified.

Finally, the wisdom of the Supreme Court's statement in Symczyk, 133 S. Ct.
at 1520, that Rule 23 class actions and collective actions under the FLSA are
fundamentally different and thus do not lend themselves to inextricably intertwined
trials, as here, is well dramatized by this case.8 Here we have undifferentiated

8
In footnotes 3 and 4, the court again takes issue with this contention.
Interestingly, in doing so, the court cites Symczyk, a case that clearly holds to the
contrary. In Symczyk, the Supreme Court, in discussing an FLSA mootness issue and
the applicability, or not, of Rule 23 class action cases to that particular question,
stated: "Rule 23 actions are fundamentally different from collective actions under the
FLSA." 133 S. Ct. at 1529. And then more to the point here, the Supreme Court held
that although a putative class acquires "independent legal status once it is certified
under Rule 23[, u]nder the FLSA, by contrast, 'conditional certification' does not
produce a class with an independent legal status, or join additional parties to the
action. The sole consequence of conditional certification is the sending of court-
approved notification to employees." Id. at 1530. Thus, the FLSA class in this case
never progressed beyond "conditional" status and could not, as a matter of law, have

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presentations of evidence, including significant numbers of the putative classes
suffering no injury and members of the entire classes suffering wide variations in
damages, ultimately resulting in a single-sum class-wide verdict from which each
purported class member, damaged or not, will receive a pro-rata portion of the jury's
one-figure verdict. Assuming that the district court could now re-open the
proceedings in an effort to deal with an individual plaintiff's damages using the
Mericle/Fox evidence, the exercise would be laborious, virtually unguided, and well
outside of the limiting parameters the Supreme Court has, as a matter of law, placed
upon use of the Rule 23 class action machinery.

III. CONCLUSION

From this result, I dissent.
______________________________

been joined with the supposed Rule 23 class in an actionable claim of any kind,
however the parties may have chosen to treat this conditional effort, which treatment
is unclear from the record.

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