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LABOR: Case certified as collective action

1 Donning an item of clothing means to obtain it and put it on, while doffing means taking the
item off and storing it. See Tum v. Barber Foods, Inc., 360 F.3d 274, 283 (1st Cir. 2004), revd in
part on other grounds sub nom. IBP, Inc. v. Alvarez, 546 U.S. 21 (2005).
Martin Dominquez and Victor Castillo,
on behalf of themselves and all others
similarly situated,
Civ. No. 06-1002 (RHK/AJB)
Minnesota Beef Industries, Inc.,
Timothy B. Fleming, Keir S. Bickerstaffe, Wiggins, Childs, Quinn & Pantazis, PLLC,
Washington, D.C., Mark D. Luther, Sean J. Rice, Minneapolis, Minnesota, for Plaintiffs.
William J. Egan, Oppenheimer Wolff & Donnelly LLP, Minneapolis, Minnesota, for
Plaintiffs Martin Dominquez and Victor Castillo have sued their former employer,
Minnesota Beef Industries, Inc. (Minnesota Beef), on behalf of themselves and all others
similarly situated, alleging that the company violated the Fair Labor Standards Act, 29
U.S.C. 201 et seq (the FLSA), when it failed to pay them overtime for time spent
donning and doffing1 protective clothing. Plaintiffs now move for an Order conditionally
2 Having concluded that oral argument on Plaintiffs Motion will not materially assist the Court
in resolving the issues raised therein, the hearing in this matter scheduled for August 28, 2007, is
certifying this case as a collective action under the FLSA. For the reasons set forth
below, the Court will grant Plaintiffs Motion.2
Plaintiffs are former employees of Minnesota Beefs Buffalo Lake, Minnesota
plant. The plant processed beef, from the procurement and slaughter of cattle all the way to
the packaging and shipping of final beef products to wholesalers in the United States and
abroad. The plant closed in February 2006.
Most of Minnesota Beefs hourly employees worked in one of two locations at the
plant: the kill floor or the boning room. The kill floor is where animals were
slaughtered, eviscerated, and split, while the boning room is where animals were broken
into smaller pieces before being packaged and sold to wholesalers or other buyers. At the
time the plant closed, there were 53 hourly employees working on the kill floor and 57
hourly employees working in the boning room.
Minnesota Beef employees who worked in either of these two areas were required
to wear protective gear in order to avoid injuries and prevent the beef products from
becoming contaminated. The protective gear consisted of some combination of the
following, depending on the employees particular job duties: a hardhat; a hairnet; earplugs;
cloth gloves; cut gloves; rubber gloves; mesh gloves; arm guards; a belly guard; an apron;
3 March 8, 2003 is three years prior to the date this action was commenced. The FLSA has a
three-year statute of limitations for willful violations. 29 U.S.C. 255(a); Jarrett v. ERC Props., Inc.,
211 F.3d 1078, 1082 (8th Cir. 2000).
and a frock. Plaintiffs assert that hourly beef-production employees were required to don
this protective gear prior to their shift start times and doff the protective gear after their
shifts officially ended. In addition, Plaintiffs assert that employees were required to doff
the protective gear prior to taking breaks, and then required to don the gear when such
breaks were completed. Plaintiffs contend that neither they nor the putative class members
were compensated for the time spent donning and doffing this protective gear.
Plaintiffs move to conditionally certify this case as a collective action and request
that the Court authorize notice to be issued to potential class members. Specifically,
Plaintiffs propose the following FLSA class: All persons who worked at Minnesota Beef
Industries, Inc. as hourly wage production line employees at any time since March 8, 2003
at its Buffalo Lake, Minnesota plant.3
The FLSA provides that an action may be maintained by any . . . employee[] for and
in behalf of himself . . . and other employees similarly situated to recover damages for the
failure to pay overtime. 29 U.S.C. 216(b). Such an action is known as a collective
action. E.g., Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101 (7th Cir. 2004); Smith
v. Heartland Auto. Servs., Inc., 404 F. Supp. 2d 1144, 1149 (D. Minn. 2005) (Kyle, J.). An
FLSA collective action differs from a class action under Federal Rule of Civil Procedure
23. In a class action, a potential plaintiffs claim is automatically included in the case
unless he expressly opts out of the class. By contrast, a potential plaintiffs claim will be
included in a collective action only if he expressly opts in to the action. 29 U.S.C.
216(b) (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.); Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975);
Heartland, 404 F. Supp. 2d at 1149.
Courts may facilitate the opt-in process by authorizing the named Plaintiffs . . . to
transmit a notice [of the lawsuit] to potential class members. West v. Border Foods, Inc.,
Civ. No. 05-2325, 2006 WL 1892527, at *2 (D. Minn. July 10, 2006) (Frank, J., adopting
Report and Recommendation of Erickson, M.J.). The power to authorize notice, however,
is to be exercised . . . only in appropriate cases, and remains within the discretion of the
district court. Id. (quoting Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266 (D.
Minn. 1991)). For a district court to authorize such notice, the named plaintiffs must first
show that they are similarly situated to the employees whom [they] seek[] to represent.
Mares v. Caesars Entmt, Inc., No. 4:06-cv-0060, 2007 WL 118877, at *2 (S.D. Ind. Jan.
10, 2007); accord Heartland, 404 F. Supp. 2d at 1149. Yet, doing so is complicated by the
fact that the FLSA nowhere defines the term similarly situated. As a result, courts
generally follow a two-stage approach when deciding whether the named plaintiffs in an
FLSA action are similarly situated to other potential plaintiffs:
The first determination is made at the so-called notice stage. At the notice
stage, the district court makes a decision usually based only on the pleadings
and any affidavits which have been submitted whether notice of the action
4 In its Opposition, Minnesota Beef appears to argue otherwise. (See Mem. in Oppn at 22
(suggesting that the Court should bypass the first stage and proceed directly to the second stage of the
certification analysis because the parties have engaged in some discovery); but see id. at 20-21
(recognizing that this matter is at the notice stage).) However, based on the limited amount of
discovery that has occurred and Magistrate Judge Boylans Scheduling Order (which bifurcated
discovery for purposes of class certification), the Court concludes that this matter is at the first, or
notice, stage.
should be given to potential class members.
Because the court has minimal evidence, this determination is made
using a fairly lenient standard, and typically results in conditional certification
of a representative class. If the district court conditionally certifies the class,
putative class members are given notice and the opportunity to opt-in. The
action [then] proceeds as a [collective] action throughout discovery.
The second determination is typically precipitated by a motion for
decertification by the defendant[,] usually filed after discovery is largely
complete and the matter is ready for trial. At this stage, the court has much
more information on which to base its decision, and makes a factual
determination on the similarly situated question.
Hipp v. Liberty Natl Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001) (quoting Mooney
v. Aramco Servs. Corp., 54 F.3d 1207, 1213-14 (5th Cir. 1995)); accord West, 2006 WL
1892527, at *2; Heartland, 404 F. Supp. 2d at 1149-50.
Here, Plaintiffs seek an Order conditionally certifying this case as a collective
action, in order to notify all potential plaintiffs of the pendency of this lawsuit and to
provide them with the opportunity to opt in. Hence, the Court is at the first stage of the
two-stage process.4 Plaintiffs burden at this stage is not onerous. E.g., Hipp, 252 F.3d at
1218; Harrison v. McDonalds Corp., 411 F. Supp. 2d 862, 865 (S.D. Ohio 2005) (noting
that, at first stage, most courts agree that the standard is fairly lenient); Heartland, 404 F.
Supp. 2d at 1149 (burden at first stage is not rigorous). They need only establish a
colorable basis for their claim that the putative class members were the victims of a single
decision, policy, or plan. Frank v. Goldn Plump Poultry, Inc., Civ. No. 04-1018, 2005 WL
2240336, at *2 (D. Minn. Sept. 14, 2005) (Ericksen, J.). The Court does not make any
credibility determinations or findings of fact with respect to contrary evidence presented
by the parties at this initial stage. Id. at *3 n.2.
Plaintiffs assert that the members of the proposed class are similarly situated
because the positions and job duties of the putative class members were substantially
similar to Plaintiffs, as were the articles of clothing donned and doffed. In response,
Minnesota Beef argues that determining the amount of time taken by each employee to don
and doff his or her protective equipment requires an individualized inquiry, which renders
this case inappropriate for collective-action treatment. In addition, Minnesota Beef argues
that the proposed class is overbroad because not all employees within the class wore
protective gear and many employees indisputably were paid for time spent donning and
In Dege v. Hutchinson Technology, Inc., Civ. No. 06-3754, 2007 WL 586787 (D.
Minn. Feb. 22, 2007), another donning-and-doffing case, the defendant opposed the
plaintiffs conditional-class-certification motion with nearly identical arguments to those
raised by Minnesota Beef here. In light of the minimal burden facing the plaintiffs, District
Judge Donovan W. Frank of this Court succinctly rejected the defendants arguments and
conditionally certified the case as a collective action. The undersigned fully agrees with
and, accordingly, adopts Judge Franks opinion in Dege:
The Court finds that Plaintiffs have met their burden for purposes of conditional
class certification and notice at this initial stage of the proceedings. [The
evidence] establishes a colorable basis for [Plaintiffs] claim that the putative
class members were victims of a common practice of not compensating
employees for time spent donning and doffing protective gear. Each plaintiff
has asserted that he [was] required to work in a [room where he was] required to
don and doff protective gear. Each employee has also averred that he [was not]
compensated for the time spent donning or doffing the protective gear.
Considering Plaintiffs minimal burden at this stage of the proceedings, the
Court finds that this evidence is sufficient to establish a colorable basis for
Plaintiffs claims.
2007 WL 586787, at *2. Minnesota Beefs arguments concerning the individualized
inquiries required and the merits of Plaintiffs claims are inappropriate at this stage of the
proceeding and can be raised before the Court at the second, or decertification, stage. Id.
At this juncture, however, the Court concludes that Plaintiffs have satisfied their minimal
burden of showing that they are similarly situated to the putative class.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Plaintiffs Motion (Doc. No. 29) is GRANTED IN PART, and this matter
is conditionally certified as a collective action. Any issues raised in the Motion
concerning the form of notice to be sent to potential class members including the
contents of the notice, the deadlines set forth therein for submitting opt-ins, etc. should
be directed to Magistrate Judge Boylan.
Dated: August 21 , 2007 s/Richard H. Kyle
United States District Judge


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