Not a Lexis Advance subscriber? Try it out for free.

Labor and Employment Law

U.S. Supreme Court Hears Oral Arguments in Donning, Doffing Appeal

 WASHINGTON, D.C. — (Mealey’s) A class action is appropriate only when classwide injury may be determined in a single stroke, the attorney representing Tyson Foods Inc. in a donning and doffing dispute argued this morning before the U.S. Supreme Court (Tyson Foods, Inc. v. Peg Bouaphakeo, et al., No. 14-1146, U.S. Sup.).

Carter G. Phillips of Sidley Austin in Washington, D.C., argued on behalf of Tyson that the trial court, and then a divided Eighth Circuit U.S. Court of Appeals erred in certifying a class of workers and awarding damages to that class, which was seeking pay for overtime activities that included donning and doffing, because not all workers were able to prove that they worked more than 40 hours per week.

David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington told the high court on behalf of the workers that the “fulcrum” of the case was actually whether donning and doffing gear for every single worker in the class was compensable as the jury found that the vast majority of the class members were already working overtime before the donning and doffing time was even considered.

And averaging the time was appropriate in this case “because the workers were rotating among different assignments. Some of them might start the day in a non-knife capacity, and so putting on all the protective gear before they started their shift didn’t make sense. They would carry it to the production line. They would be pulled off the production line, told you’re going to be in a knife capacity, get your gear on. They would put their gear on at that time,” Frederick argued.

Class Complaint

Peg Bouaphakeo, Mario Martinez, Javier Frayre, Heribento Renteria, Jesus A. Montes and Jose A. Garcia filed a class and collective action against Tyson in the U.S. District Court for the Northern District of Iowa. They were certified as representatives of a class of similarly situated employees claiming violations of the Fair Labor Standards Act (FLSA) based on Tyson’s failure to pay them overtime for activities, including donning and doffing before and after their shifts.

After a nine-day jury trial, the jury awarded the plaintiffs $2,892,378.70. With liquidated damages, the final judgment totaled $5,785,757.40.

Tyson appealed to the Eighth Circuit U.S. Court of Appeals. On Aug. 25, a split Eighth Circuit panel affirmed the judgment.

The Eighth Circuit majority ruled that the plaintiffs provided sufficient evidence, including individual timesheets and average times calculated from a sample of 744 observations, to support a “reasonable inference” of classwide liability. Judge Duane Benton authored the majority’s opinion, and Judge Walter I. Smith joined in the opinion.

Judge C. Arlen Beam dissented, opining that the case should be reversed, remanded and dismissed for two independent reasons. “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) [subscribers can access an enhanced version of this opinion: | Lexis Advance]; O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 583-84 (6th Cir. 2009) [ | Lexis Advance]; Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir. 2001) [ | Lexis Advance]. Second, Rule 23 state-law-based class actions are fundamentally different than collective actions authorized under the FLSA and may not be procedurally homogenized for trial as done in this case. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1529 (2013) [ | Lexis Advance],” Judge Beam noted.

Tyson filed its petition in the high court on March 19. The petition was granted June 8. The question presented has two parts. The first is “[w]hether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.”  The second is “[w]hether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.”

United States’ Argument

Assistant to the Solicitor General Elizabeth B. Prelogar in Washington presented oral arguments to the U.S. Supreme Court on behalf of the United States supporting the workers.

“The jury was told in this case that they could only rely on representative evidence if all of the employees performed substantially similar activities, and that substantial similarity is what we think is the proper standard to determine whether an inference here would be just and reasonable,” she argued.

When asked by Justice Anthony M. Kennedy whether it would be a closer and more difficult case if it were a Federal Rule of Civil Procedure 23 action and the FLSA were not involved, Prelogar answered, “Yes. I think it would be much closer. . . . And here, I think that this really gets to the point that the dispute here doesn’t turn on a freestanding Rule 23 requirement. It . . . turns on the [Anderson v.] Mt. Clemens [Pottery Co. (328 U.S. 680 [1946])] standard [ | Lexis Advance]. And Mt. Clemens does adopt a special rule tailored to the fact that there is a recordkeeping violation in this case that prevents the employees from being able to prove their claims with more precise evidence.”


Phillips, Joseph R. Guerra, C. Frederick Beckner III and Kathleen M. Mueller of Sidley Austin and Michael J. Mueller, Emily B. Vicente and Evangeline C. Paschal of Hunton & Williams, all in Washington, represent Tyson.

Frederick, Derek T. Ho and Matthew A. Seligman of Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington; Robert L. Wiggins Jr. of Wiggins, Childs, Pantazis, Fisher & Goldfarb in Birmingham, Ala.; Scott Michelman, Scott L. Nelson and Allison M. Zieve of Public Citizen Litigation Group in Washington; and Eric Schnapper of University of Washington School of Law in Seattle represent the respondents.

Mary-Christine Sungaila of Haynes & Boone in Costa Mesa, Calif., and Martin S. Kaufman of Atlantic Legal Foundation in Larchmont, N.Y., filed an amicus brief on behalf of Atlantic Legal Foundation and International Association of Defense Counsel. Ashley C. Parrish and Nikesh Jindal of King & Spalding in Washington; Kathryn C. Todd and Warren Postman of U.S. Chamber Litigation Center Inc. in Washington; Maria Ghazal of Business Roundtable in Washington; and Deborah R. White of Retail Litigation Center Inc. in Arlington, Va., filed an amicus brief on behalf of The Chamber of Commerce of the United States of America, Business Roundtable, Retail Litigation Center Inc. and the National Federation of Independent Small Business Legal Center. John P. Sweeney of Bradley Arant Boult Cummings in Washington, William M. Jay of Goodwin Procter in Washington and Joshua M. Daniels of Goodwin Procter in Boston filed an amicus brief on behalf of DRI-The Voice of the Defense Bar.

Philip S. Goldberg and Cary Silverman of Shook, Hardy & Bacon in Washington filed an amicus brief on behalf of National Association of Manufacturers, Alliance of Automobile Manufacturers, Association of Home Appliance Manufacturers, American Tort Reform Association, American Petroleum Institute and Metals Service Center Institute. Timothy Sandefur and Anastasia P. Boden of Pacific Legal Foundation in Sacramento, Calif., filed an amicus brief on behalf of Pacific Legal Foundation. Allan Erbsen of University of Minnesota Law School in Minneapolis filed an amicus brief on behalf of civil procedure scholars.

For all of your legal news needs, please visit subscribers may search all Mealey Publications.

Non-subscribers may search for Mealey Publications stories and documents at or visit

For more information about LexisNexis products and solutions, please connect with us through our corporate site.