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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