Bejil v. Ethicon, Inc.

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-10847

RICHARD BEJIL, JR.; DAMIEN COOPER; GWEN HARRIS;
DEBORAH K. JUAREZ; MARY LOU GARCIA; ET AL.,

Plaintiffs-Appellants,

VERSUS

ETHICON, INC.,

Defendant-Appellee.

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CARMEN AGUIRRE; SYLVIA AGUIRRE; JANIE CARDENAS;
CAROLYN J. DAVIS; BENNY T. CRUZ; ET AL.,

Plaintiffs-Appellants,

VERSUS

ETHICON, INC.,

Defendant-Appellee.

Appeal from the United States District Court
For the Northern District of Texas
October 2, 2001
Before JONES, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

Employees of Ethicon, Inc. (“Ethicon”), a maker of surgical

sutures and needles, sued Ethicon under the Fair Labor Standards

Act (“FLSA”), alleging that Ethicon illegally failed to pay them

for time spent donning and doffing clothing before and after work.

The Ethicon employees originally filed their suits as two separate

actions under the names of Richard Bejil, et al. and Carmen

Aguirre, et al., and the district court consolidated the two

actions. These unionized employees are paid wages pursuant to a

collective bargaining agreement between Ethicon and Local 514-T.

The district court granted Ethicon’s motion for summary judgment

and denied plaintiffs’ motion for partial summary judgment on the

basis that 29 U.S.C. § 203(o) was applicable. Additionally, the

district court concluded that the parties need not have addressed

the issue in collective bargaining negotiations or in the language

of their bargaining agreement for this section of the FLSA to apply

and that Ethicon’s policy was a custom and practice under the

collective bargaining agreement. The plaintiffs now challenge the

grant of summary judgment on appeal.

BACKGROUND

Over the course of the last decade, Ethicon has gradually

increased the sanitary regimen it requires of employees before

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working. Such a regimen decreases the bioload (amount of

biological materials) to which the product is exposed. In 1991, it

began requiring outer garments over street clothing and hair for

workers in certain buildings. Ethicon increased its regimen in

1997 and 1998 in order to qualify for an ISO 9000 certification,

which it needed to sell its products in Europe. By 1998, all

employees had to wear a lab coat, hair covers, facial hair covers

where applicable, and shoe covers or “dedicated shoes,” shoes kept

in an assigned shoe locker and worn only in the facility.

Employees must put on their sanitary garments before clocking

in for their shift, remove them before lunch, put them back on

before the afternoon work period, and remove and store them before

leaving. Ethicon allows 36 minutes for lunch, and six of those

minutes are paid to compensate for the time necessary to gown and

degown. The company does not, however, compensate its workers for

time spent donning and doffing protective coverings when arriving

and leaving the plant.

Ethicon and the employees’ union, the Local 514-T (the

“Union”), have addressed the issue of compensation for the time

required to don and doff protective coverings on several occasions.

In 1996-97, the Union initiated grievance proceedings to obtain a

clock in gowning areas.1 Ethicon bargained with the Union over

1
Apparently, the employees wanted a clock for punching
in so that they could be compensated for the time spent in the
gowning area.

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compensation for gowning time, and the Union eventually withdrew

its proposal. The Union resurrected the issue in 1999, requesting

back pay for the previous three years in addition to pay for

gowning time in the future. Ethicon refused and the employees

brought suit.

DISCUSSION

Standard of review

A grant of summary judgment is reviewed de novo. Hanks v.

Transcon. Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).

The party seeking summary judgment carries the burden of

demonstrating that there is an absence of evidence to support the

non-moving party’s case. Celotex v. Catrett, 477 U.S. 317, 325

(1986). After a proper motion for summary judgment has been made,

a non-movant plaintiff must bring forward sufficient evidence to

demonstrate that a genuine issue of material fact exists for every

element of a claim. Fontenot v. Upjohn Co., 780 F.2d 1190, 1196

(5th Cir. 1986). For summary judgment purposes, all evidence

produced by the non-movant is taken as true and all inferences are

drawn in the non-movant’s favor. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986); Pitts v. Shell Oil Co., 463 F.2d 331, 335

(5th Cir. 1972).

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Plaintiffs’ Waiver of Their Right to Compensation
Through Custom and Practice

Under 29 U.S.C. § 203(o), the time spent changing clothes is

to be excluded from the measured working time if it has been

excluded by custom or practice under a bona fide collective-

bargaining agreement.2 In the present case, the clothes changing

issue was discussed in negotiations between Ethicon and the Union,

but no agreement stated explicitly that the Union consented to

Ethicon’s nonpayment for the gowning time. Ethicon, however, only

need prove that the parties had a “custom or practice” of

noncompensation under the agreement. 29 U.S.C. § 203(o).

Precedent establishes that where the union and employer

discuss an issue, the result may be custom or practice, even if the

collective bargaining agreement is silent on the issue. In Arcadi

v. Nestle Food Corp., 38 F.3d 672 (2d Cir. 1994), the Second

Circuit found that where, as here, the union had requested

compensation for changing time and the employer refused, and the

final agreement did not compensate for changing time, a practice

existed. Id. at 675. Similarly, this court found a practice or

2
29 U.S.C. § 203(o) specifically states:
Hours Worked - In determining for the purposes of
sections 206 and 207 of this title the hours for which
an employee’s employed, there shall be excluded any
time spent in changing clothes or washing at the
beginning or end of each workday which was excluded
from measured working time during the week involved by
the express terms of or by custom or practice under a
bona fide collective-bargaining agreement applicable to
the particular employee.

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custom where the employer refused the union’s demand to pay for

clothes-changing time, and the collective-bargaining agreement did

not mention the issue. Hoover v. Wyandotte Chem. Corp., 455 F.2d

387, 389 (5th Cir. 1972). The court noted specifically that what

a union failed to achieve through the process of collective

bargaining would not be delivered to it under the provisions of the

Fair Labor Standards Act. Id.

In the present case, the Union raised the issue of

compensation for changing clothes in 1996-97. Ethicon then

bargained with the Union over the issue and the Union eventually

withdrew its proposal. As in Hoover, the defendants here have

shown a history of its dealings with the plaintiffs’ union and a

history of noncompensation for clothes changing before and after

work. The collective-bargaining negotiations between the Union and

Ethicon encompassed the corporation’s policy on this issue. By not

incorporating compensation for clothes changing before and after

work into the collective-bargaining agreement between Ethicon and

the Union, nonpayment became the “custom and practice.” Under the

express terms of § 203(o), therefore, that time is excluded in

computing compensation, and we need not address whether the time

would be compensable in the absence of such “custom and practice.”3

3
The plaintiffs attempt to distinguish their case by
claiming that the sanitary garments used in the present case are
not “clothes” under § 203(o) and therefore, that section should
not be applicable. The distinction plaintiffs make, however, is
nonsensical. As the district court noted, Webster’s defines

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Compensation for Hours Worked During Plaintiffs’ Meal Break

The plaintiffs contend that Ethicon forced employees to use

their thirty-minute lunch break for gowning and degowning in

violation of the FLSA. 29 C.F.R. § 785.19(a) (“The employee must

be completely relieved from duty for the purpose of eating regular

meals.”). In its findings of fact, however, the district court

found that the plaintiffs received 36 minutes for lunch, and six of

these minutes were designated as paid time for gowning and

degowning. The district court further found that although Ethicon

had set procedures in place for complaining about discrepancies in

the time actually worked and the time reported, no employee had

ever reported that Ethicon’s system of compensating employees for

a 36-minute lunch period had forced the employee to lose lunch time

due to gowning or degowning.

The plaintiffs assert that the district court erred in finding

that six minutes is an adequate amount of time of paid compensation

for changing clothes. A district court’s “findings of fact . . .

shall not be set aside unless clearly erroneous . . . .”

Fed.R.Civ.P. 52(a). "A finding is 'clearly erroneous' when

“clothing” as “covering for the human body or garments in
general.” Webster’s Third New Int’l Dictionary (1986). The
plaintiffs here put on, among other things, (1) a lab coat; (2)
dedicated shoes or shoe coverings; and (3) hair or beard
coverings. These items all appear to fall under the definition
of “clothes.”

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although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm conviction

that a mistake has been committed." United States v. United States

Gypsum Co., 333 U.S. 364, 395 (1948). We find nothing in the

record to suggest that the district court erred in its assessment

of the facts.

The Insufficiency of the Plaintiffs’ Complaint

Plaintiffs appeal the district court’s dismissal of their

motion for summary judgment based on the complaint’s failure to

sufficiently provide notice of its additional claims. Plaintiffs’

third amended complaint claimed that Ethicon’s failure to pay FLSA-

required wages was “included, but not limited to, failing to pay

them for time spent donning and doffing clean room clothing.” In

their motion for summary judgment, plaintiffs claimed, for the

first time, that they were entitled to compensation for additional

work-related activities.

Whether a complaint gives reasonable notice of a claim is a

“pure question of law.” Evans v. McClain of Ga., Inc., 131 F.3d

957, 964 n.2 (11th Cir. 1997). This court reviews questions of law

de novo. Williams v. Fab-Con, Inc., 990 F.2d 228, 230 (5th Cir.

1993). After reviewing the plaintiffs’ complaint and the record we

find that the plaintiffs did not plead their additional claims with

sufficient specificity to put Ethicon on notice, and the district

court did not err in dismissing them.

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The District Court’s Error in Unfiling Consents to Sue

The FLSA allows multiple employees to bring action against an

employer on behalf of themselves and other employees similarly

situated, but each employee must file a written consent to sue with

the court. 29 U.S.C. § 216(b). Although certain consents were

filed for individuals other than the named plaintiffs, the district

court ordered that these consents be unfiled. Plaintiffs appeal

this order. The Court need not reach this issue, however, because

we find that the district court’s grant of summary judgment was

proper and rendered the filing issue moot.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court did not err in granting summary

judgment in favor of the defendant, Ethicon. We therefore AFFIRM

the district court’s decision.

AFFIRMED.

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