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Hicks v. Ampacet Ohio, LLC

United States District Court, S.D. Ohio, Eastern Division

March 31, 2017

Bobby Hicks, et al., Plaintiffs,
v.
Ampacet Ohio, LLC, et al., Defendants.

          Magistrate Judge, Deavers

          OPINION AND ORDER

          MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

         This is a putative collective action under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA") and the Ohio Fair Minimum Wage Standards Act, Ohio Rev. Code Ann. §4111.01, et seq. ("OFMWSA"), which alleges that Ampacet Ohio, LLC and Ampacet Sales Corporation (collectively, "Defendants") failed to pay overtime compensation to employees for time spent at mandatory pre-shift meetings and mandatory post-shift showers in violation of the FLSA and OFMWSA. Defendants now move for summary judgment on these claims. ECF No. 24. Bobby Hicks, Bryan Fleshman, and Lisa Miller (collectively, "Plaintiffs"), move to conditionally certify a class, move to stay this action pursuant to Federal Rule of Civil Procedure 56(d), and move for a protective order. ECF Nos. 2, 28 & 30. For the reasons that follow, Defendants' motion for summary judgment and Plaintiffs' motion for a protective order are DENIED without prejudice, Plaintiffs' motion to stay is GRANTED, and Plaintiffs' motion to conditionally certify is GRANTED.

         I. Background

         In May of 1999, Defendant Ampacet Ohio, LLC ("Ampacet Ohio"), which is in the business of manufacturing and supplying color and additive masterbatches to the thermoplastics industry, purchased a plant located in Heath, Ohio ("the Heath Plant"). Am. Compl. ¶¶ 17-18, ECF No. 19; First Benvie[1] Decl. ¶ 3, ECF No. 15-1.[2] In connection with its business, Ampacet Ohio employs Production Technicians ("PTs") who, inter alia, operate machinery and package materials at the Heath Plant. Am. Compl. ¶ 20, ECF No. 19. In performing these duties, PTs are required to handle chemicals and dyes used to add color to plastics. Id. Ampacet Ohio currently employs thirty-two PTs at the Heath Plant, including Plaintiffs. First Benvie Decl. ¶ 25, ECF No. 15-1.[3] See also Am. Compl. ¶¶ 14-16, ECF No. 19 (stating that Plaintiffs Hicks and Miller began working for Defendants in or around 1996 and that Plaintiff Fleshman began working for Defendants in or around 2000).

         PTs are paid on an hourly basis. Id. at ¶ 48. When arriving at and departing from work, PTs, including Plaintiffs, are required to clock in and clock out using a finger-scanning device. Id. at ¶ 21. Since at least February 28, 2013, through the present, Plaintiffs normally work five days a week on the third shift, which lasts from 11:00 p.m. until 7:00 a.m. Id. at ¶ 33. Although Defendants pay them for eight hours of work each day, Plaintiffs are actually required to work more than that, from approximately 10:45 p.m. until 7:15 a.m. each day. Id. at ¶ 34. Specifically, Plaintiffs and other PTs attend fifteen-minute meetings conducted by Health Plant management prior to the start of their shift each day, which are not compensable. Id. at ¶¶ 23-26, 35. In addition, at the conclusion of their shifts, Plaintiffs and other PTs shower in the Defendants' locker rooms for their own safety due to the handling of chemicals during their shifts. Id. at ¶¶ 28-30, 45-47. While Defendants previously paid for the fifteen minutes spent showering post-shift, in or around 2008, Defendants advised PTs that this time would no longer be compensable. Id. at ¶¶ 31-32. In short, according to Plaintiffs, it is Defendants' policy at the Heath Plant to not pay overtime compensation to any PTs for time spent in the pre-shift meetings and for the post-shift showering in excess of forty hours per week. Id. at ¶¶ 51, 61.

         On February 29, 2016, Plaintiffs filed the instant action, alleging that Defendants violated Plaintiffs' rights under the FLSA and the OFMWSA by failing to compensate Plaintiffs for overtime pay. Compl., ECF No. 1. Plaintiffs bring this action on behalf of themselves and other similarly-situated persons of the proposed opt-in class, which includes the following:

All current and former Plant Employees employed by Defendants, at their Heath, Ohio location, for 3 years prior to the date of filing this Complaint who were paid hourly and have not been paid overtime pay for all hours worked in a week in excess of forty for the time spent at mandatory 15-minute pre-shift and for the mandatory post- shift showering, (hereinafter "Plant Employees").

Am. Compl. ¶ 51, ECF No. 19.[4]

         After filing the action, Plaintiffs moved to conditionally certify the proposed FLSA class. ECF No. 2. Defendants have moved for summary judgment on Plaintiffs' claims, ECF No. 24, and, in response, Plaintiffs move to stay this action. ECF No. 28. Plaintiffs also move for a protective order. The Court will address each of the motions, which are fully briefed and ripe for resolution, in turn.

         II. Summary Judgment and Federal Rule of Civil Procedure 56(d)

         In moving for summary judgment, Defendants argue that, pursuant to the Portal-to-Portal Act, 29 U.S.C. § 254, ef seq., and as interpreted by Integrity Staffing Solutions, Inc. v. Busk, ___ U.S. ___, 135 S.Ct. 513 (2014), the PTs' pre- shift meetings and post-shift showers are not compensable because these activities are not "integral and indispensable" to the principal activities that the PTs are paid to perform. The Portal-to-Portal Act exempts employers from liability for future claims based on, inter alia, "activities which are preliminary to or postliminary to" an employee's "principal activity or activities." 29 U.S.C. § 254(a)(2). The term "principal activity or activities" "embraces all activities which are an 'integral and indispensable part of the principal activities!.]'" IBP, Inc. v. Alvarez, 546 U.S. 21, 28-30 (2005) (quoting Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956)). "An activity is ... integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities." Integrity Staffing, 135 S.Ct. at 517.

         Here, the parties disagree as to whether the pre-shift meetings and post-shift showers are "integral and indispensable" to the PTs' "principal activities"- and therefore are compensable-and as to whether discovery is necessary to resolve this dispute. In support of their motion for summary judgment, Defendants refer to a description of PTs' job duties. See PT Job Description PAGEID # 89, ECF No. 14-1. Defendants also refer to declarations from twenty-four of the thirty-two current PTs regarding, inter alia, job duties, pre-shift meetings, and post-shift showers. See PT Decls., ECF No. 14 (collectively, "PT Declarations").[5] As to post-shift showers, Defendants summarized the PT Declarations as follows:

All twenty four of the PTs who provided declarations under penalty of perjury agreed that post-shift showers are optional, not mandatory. All of them stated that no manager had ever told them that post-shift showers were mandatory. They explained that they were not aware of any chemicals that required them to shower, that they did not know of any reason why employees would need to shower at the Heath plant rather than at home, and that it was possible to safely and effectively perform their job the next day if they chose not to shower after the end of their shift. Nearly all [twenty three] of them explained that they could get just as clean by showering at home rather than in the plant, and that they could eat or drink after merely washing their hands (not showering). Seven PTs stated that they do not take post-shift showers at all. (One even stated in 20 years working at the plant he had never showered at the facility.) Among the [fifteen] PTs who do regularly shower at the plant, they all stated that they were aware of other PTs who chose not to shower at the plant. Even though the test of compensability does not require that activities be for the benefit of the employee to be non-compensable, several[6] PTs also indicated that the showers are available for the benefit of the PTs-not for Ampacet's benefit-because employees who do not shower may track color dust into their car or homes. No employee-including Plaintiffs-has ever been disciplined for failing to shower after the conclusion of his or her shift. . . . Most importantly, 23 PTs stated in their declarations that post-shift showers are not integral and indispensable to their principal activities, and that they are able to perform their principal activities without taking post-shift showers.

Def. Mot. 13, ECF No. 24 (footnotes with citations omitted) (emphasis in original).

         Similarly, Defendants also summarized the PT Declarations as to pre-shift meetings:

All twenty four PTs who signed declarations described principal activities that do not include pre-shift meetings. Twenty three of the PTs testified that it is not necessary for them to attend pre-shift meetings in order to be able to perform their jobs. Many [twenty three] of them explained that the information discussed at the pre-shift meetings can easily be obtained by looking at the "Daily Notes" document posted on the production floor or having a short conversation with a co-worker or the floor supervisor. In fact, many [twelve] PTs stated that they have performed their principal activities without difficulty after missing a pre-shift meeting.

Id. at 16 (footnotes with citations omitted).

         Defendants go on to argue that, contrary to Plaintiffs' allegations, this evidence establishes that the pre-shift meetings and post-shift showers are not mandatory- And even if these activities were mandatory, that fact alone does not automatically render them compensable. Instead, Defendants argue, the sole question is whether the activities are ones that the PTs cannot dispense with if they are to perform their principal activities. Defendants contend that the PT Declarations establish that pre-shift meetings and post-shift showers are not integral and indispensable to their principal activities.

         In response to Defendants' motion for summary judgment, Plaintiffs move for a stay pursuant to Federal Rule of Civil Procedure 56(d), which establishes the procedure that must be followed when a party determines that additional discovery is necessary to respond to a motion for summary judgment:

When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take ...

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