Date: 08-19-2014

Case Style: Adelina Garcia, et al. v. Tyson Foods, Inc.

Case Number: 12-3346

Judge: Bacharach

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Kansas (Wyandotte County)

Plaintiff's Attorney: George A. Hanson (Todd M. McGuire with him on the briefs), Stueve Siegel
Hanson LLP, Kansas City, Missouri, for Plaintiffs-Appellees.

Defendant's Attorney: Michael J. Mueller, Hunton & Williams LLP, Washington, D.C. (Craig S. O’Dear
and Terence J. Thum, Bryan Cave LLP, Kansas City, Missouri, with him on the
briefs), for Defendants-Appellants.

Description: A group of employees filed class and collective actions against Tyson
Foods, Inc., seeking unpaid wages for time spent on pre- and post-shift activities.
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After the employees obtained a sizeable verdict and fee award,1 Tyson
unsuccessfully moved for judgment as a matter of law. On appeal, Tyson: (1)
challenges the judgment and denial of the motion for judgment as a matter of law,
and (2) argues that the fee award was excessive. We reject Tyson’s contentions.
The Plaintiffs presented sufficient evidence of undercompensation and the district
court acted within its discretion in setting the fee award. Thus, we affirm.
I. Compensation for Pre- and Post-Shift Activities
Tyson produces food products and has employed all of the plaintiffs at a
production facility in Finney County, Kansas. The jobs required the Plaintiffs to
wear certain protective clothing and equipment.2 Thus, before each shift, the
Plaintiffs would put on the clothing and equipment, removing them when the shift
was over.
The Plaintiffs were paid through two systems: (1) “gang time,” which was
intended to compensate for time spent working on the production line, and (2)
“K-Code” time, which was intended to compensate for time spent on pre- and
1 The district court also assessed costs against Tyson, but the cost assessment is not
at issue.
2 These items include shin guards, mesh aprons, legging aprons, belly guards,
knives, mesh gloves, Polar gloves, Polar sleeves, plexiglass arm guards, mesh sleeves,
and knocker vests.
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post-shift activities, such as putting on protective clothing and equipment, taking
them off, and walking to and from the work stations.3
Tyson implemented the K-Code in 1998. Initially, the K-Code equaled 4
minutes and applied only to employees working in knife-wielding departments.
Tyson revised the K-Code in January 2007, making knife-wielding employees
eligible for up to 7 minutes of K-Code time. A third revision occurred in April
2010, when Tyson increased the K-Code minutes and allotted them to all hourly
production workers. Tyson eventually allotted 20-22 minutes of K-Code time for
each shift, depending on the job.
II. The Litigation
The Plaintiffs sued Tyson, invoking the Fair Labor Standards Act and the
Kansas Wage Protection Act and alleging insufficient compensation for pre- and
post-shift activities.4 The district court certified the matter as a collective action
under the Fair Labor Standards Act and a class action under the Kansas Wage
Protection Act.
3 The “K” in “K-Code” stands for “knife” because, when originally implemented,
the K-Code applied only to workers who had to carry knives. II Appellant’s App. at 152.
4 The Fair Labor Standards Act requires employers to compensate employees for
overtime work at a rate of “one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1) (2006). The Kansas Wage Protection Act requires
employers to pay “all wages due to its employees.” Kan. Stat. Ann. § 44-314(a)
(2007).
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A jury found that Tyson had undercompensated the Plaintiffs for pre- and
post-shift activities, fixing damages at $166,345 under the federal statute and at
$336,666 under the state statute.
After the district court entered judgment for the Plaintiffs, Tyson moved
for judgment as a matter of law, arguing that the evidence did not support the
verdict and that the court should have decertified the class and collective actions.
The district court denied the motion, reasoning that: (1) the Plaintiffs had
presented sufficient evidence to support the verdict, and (2) the Plaintiffs had
satisfied the legal requirements for continued certification as class and collective
actions.
The Plaintiffs filed a motion for attorneys’ fees and costs. Tyson opposed
the motion and moved to compel production of counsel’s timekeeping records.
The district court denied the motion, opting instead to review the timekeeping
records in camera. The court eventually awarded attorneys’ fees totaling
$3,389,207.41.
This appeal followed.
III. Sufficiency of Evidence
Tyson argues that the evidence was insufficient to support the verdict
because the Plaintiffs did not prove unpaid time on a class-wide basis. We
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conclude that the jury could have reasonably inferred class-wide liability based
on the trial evidence.
A. Standard for Sufficiency of the Evidence
We review the district court’s ruling de novo and will reverse only if “‘the
evidence points but one way and is susceptible to no reasonable inferences
supporting the party opposing the motion.’” Sanjuan v. IBP, Inc., 275 F.3d 1290,
1293 (10th Cir. 2002) (quoting Baty v. Willamette Indus., Inc., 172 F.3d 1232,
1241 (10th Cir. 1999)).
B. The Reasonableness of a Finding of Class-Wide Liability
For the federal and state claims, the overarching question for the jury was
whether the K-Code system had resulted in underpayment. The jury answered
this question “yes.” Our task is to determine whether this answer was reasonable
based on the evidence. It was.
The jury could have reasonably approached liability by addressing two
questions:
● Did Tyson pay its employees for all of the time they spent at work?
● If not, how much of that time was spent getting in and out of
protective clothing and equipment and walking to and from the work
stations?
To answer the first question, the jury could have relied on Tyson’s own
internal study. This study compared: (1) the number of hours for which
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employees were paid (through the combination of gang-time and K-Code time),
with (2) the total number of hours that employees spent at the work site (as
shown by their “clock in” and “clock out” times). This study showed that on
average, Tyson employees were not paid for more than 29 minutes per shift.5
The resulting question for the jury was how many of these 29+ minutes
were spent getting in and out of protective clothing and equipment and walking to
and from the work stations. To answer this question, the jury could have
5 Tyson’s study showed:
● a total of 66,871.6 hours of gang-time,
● a total of 71,399.94 hours for the time spent at the work site (based on the
times the employees “punched in” and “punched out” with time cards),
● a total of 640.57 hours that Tyson attributed to getting in and out of the
protective clothing (reflected in the K-Code), and
● a total of 7,816 shifts.
See Supp. App. at 339-41.
Thus, Tyson paid employees for 67,512.17 hours (gang time of 66,871.6 hours +
K-Code time of 640.57 hours). A total of 3,888.77 hours went uncompensated
(71,399.94 hours based on the “punch in”/“punch out” time ― 67,512.17 hours reflecting
the sum of the gang time and K-Code time). The employees were uncompensated
3,888.77 hours over the course of 7,816 shifts. Thus, for each shift, employees were not
paid 49.74% of an hour for each shift.
3,888.77 hours = 49.74% (hour/shift)
7,816 shifts
Converted to minutes, the 49.74% of an hour per shift equaled 29.84 minutes per shift.
49.74% hour/shift x 60 minutes = 29.84 minutes/shift.
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reasonably relied on employee testimony, testimony from Dr. Radwin, and
evidence involving Tyson’s increases to the K-Code.
First, the Plaintiffs presented testimony from three employees: Ms.
Adelina Garcia, Mr. Antonio Garcia, and Mr. Jeronimo Vargas-Vera. These
employees testified that they had spent 5-12 minutes each shift putting on and
taking off their protective clothing and walking to and from the work stations.
But Tyson allocated only 4 to 7 minutes for those activities from May 2003 to
April 2010.
Second, the Plaintiffs presented expert testimony from Dr. Robert Radwin,
who measured the time spent on pre- and post-shift activities for 67 employees.6
Dr. Radwin observed that the employees spent an average of 20.85 minutes on
pre- and post-shift activities.
Third, Tyson increased the K-Code at least three times between May 15,
2003, and December 31, 2010. For roughly 91% of this period (May 15, 2003, to
April 11, 2010), Tyson paid its employees 4-7 minutes of K-Code time per shift.
Though the job responsibilities did not change, Tyson later increased the K-Code
minutes.
6 Pre-shift activities were measured for 39 of the employees, and post-shift
activities were measured for the other 28 employees.
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Tyson acknowledged that the K-Code was intended to compensate
employees for certain activities before and after the shifts.7 Thus, the jury could
have inferred recognition by Tyson that until 2010, it had underestimated the time
required to get in and out of the protective clothing and equipment and to walk to
and from the work stations.
We do not know how the jury ultimately decided to find class-wide
liability. But we do know that there was a reasonable basis for the jury’s finding
of systematic undercompensation. Thus, the evidence was sufficient for the
finding of class-wide liability.
C. Liability as to Each Class Member
Though the evidence sufficed for the Plaintiffs as a group, Tyson
challenges the proof of undercompensation for each class member. This
argument is unpersuasive for three reasons: (1) such proof was unnecessary; (2)
the jury could rely on representative evidence; and (3) Tyson relies on cases that
are inapplicable.
7 Tyson denies having admitted that its K-Code changes reflected “the amount of
time spent by each class member on the subject activities.” Tyson’s Reply Br. at 7 (June
21, 2013). But Tyson did admit that it intended the K-Code time “to compensate certain
production employees for time spent conducting pre and post shift donning and doffing
of certain unique clothing and equipment.” XI Appellant’s App. at 2226-27; II
Appellant’s App. at 146, 246. And the jury could reasonably attribute the increase in KCode
minutes to recognition that the employees spent more time on pre- and post-shift
activities than Tyson had estimated. See Appellee’s Supp. App. at 385 (2010
memorandum stating that Tyson increased the K-Code minutes in 2010 “for time spent
putting on clothing and equipment, cleaning up, and walking to and from their jobs”).
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First, the Plaintiffs did not need to individualize the proof of
undercompensation once the district court ordered certification as a class action
and collective action. See First Alliance Mortg. Co. v. Lehman Commercial
Paper, Inc., 471 F.3d 977, 992 (9th Cir. 2006) (holding that the plaintiff’s
evidence of class-wide liability for fraud was sufficient, notwithstanding
variations among the communications to class members, reasoning that “[t]he
class action mechanism would be impotent if a defendant could escape much of
his potential liability for fraud by simply altering the wording or format of his
representations across the class of victims”).
Second, the jury could reasonably rely on representative evidence to
determine class-wide liability because Tyson failed to record the time actually
spent by its employees on pre- and post-shift activities. See Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946) (stating that plaintiffs under the
Fair Labor Standards Act need not “prove the precise extent of uncompensated
work” when “the employer’s records are inaccurate or inadequate”); see also
Perez v. Mountaire Farms, Inc., 650 F.3d 350, 371-72 (4th Cir. 2011) (upholding
the district court’s use of average don-and-doff times from a time-study report
authored by Dr. Radwin).
Third, Tyson relies on cases such as Wal-Mart Stores, Inc. v. Dukes, ___
U.S. ___, 131 S. Ct. 2541 (2011), Thiessen v. Gen. Elec. Corp., 267 F.3d 1095
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(10th Cir. 2001), Espenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th Cir.
2013), and Lugo v. Farmer’s Pride Inc., 737 F. Supp. 2d 291 (E.D. Pa. 2010),
which involve class certification, not sufficiency of the evidence. Because Tyson
does not appeal the district court’s certification rulings, the cited cases do not
apply.
For these reasons, we conclude that the jury could have reasonably inferred
that each class member was undercompensated.
D. Damages for Employees Who Were Not Underpaid
The jury awarded less to the Plaintiffs than they had requested. As a result,
Tyson argues that the jury must have assessed liability for some class members
who were not undercompensated. According to Tyson, this assessment was
unsupportable and the jury’s “lower” damage award means that “even more class
members would have fallen out of liability.” See Appellant’s Opening Br. at 40;
Appellant’s Reply Br. at 11. We disagree because: (1) the evidence supported a
finding of undercompensation for every class member, and (2) Tyson’s argument
rests on speculation about how the jury calculated damages.
First, as discussed above, the jury could have reasonably found
undercompensation for each class member. With this finding, the jury could have
calculated damages class-wide.
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Second, Tyson’s argument rests on speculation about how the jury
calculated damages. Such speculation is improper as long as the award is within
the range of evidence. See Questar Pipeline Co. v. Grynberg, 201 F.3d 1277,
1288-89 (10th Cir. 2000) (upholding a damage assessment that was “within the
range of evidence,” although the award was equal to the amount stated in expert
testimony that was ultimately stricken). Here, the damages award was within the
range of evidence. Thus, we cannot entertain Tyson’s speculation that the jury
might have awarded damages to some class members who had been fully
compensated.
IV. Attorneys’ Fees
The Fair Labor Standards Act provides a right to attorneys’ fees for
prevailing plaintiffs. 29 U.S.C. § 216(b) (2006). Based on this statute, the
district court awarded the Plaintiffs $3,389,207.41 in attorney fees. Tyson
appeals this award, raising three arguments: (1) Tyson was entitled to production
of itemized time records for Plaintiffs’ counsel; (2) the Plaintiffs were not
entitled to recover for time spent on unsuccessful federal theories or any of the
state claims; and (3) the fee award was too high given that the jury awarded only
8% of the damages that the Plaintiffs had sought in their closing argument.
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A. Production of Time Records
Tyson asked the district court to compel production of itemized time
records for Plaintiffs’ counsel. The district court denied the motion, opting
instead to review the records in camera, allow each side to depose someone
familiar with the adversary’s billing, and order disclosure to the adversary of
billing rates and time incurred. The district court noted that this procedure
would: (1) eliminate time spent reviewing the numerous billing documents, and
(2) allow parties to make appropriate objections based on privilege. Tyson
obtained the information ordered by the district court, but chose not to depose
anyone familiar with the Plaintiffs’ billing.
Tyson appeals, arguing that it could not respond meaningfully to the
Plaintiffs’ fee application without production of itemized time records. We
review the district court’s discovery decisions for abuse of discretion8 and will
reverse only if Tyson makes a “clear showing that the denial of discovery
resulted in actual and substantial prejudice.”9 Applying this standard, we hold
that the district court did not abuse its discretion in denying Tyson’s motion.
Under Fed. R. Civ. P. 26(b)(2)(C), “the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local rule if it
8 Ahrens v. Ford Motor Co., 340 F.3d 1142, 1145 (10th Cir. 2003).
9 Davoll v. Webb, 194 F.3d 1116, 1139 (10th Cir. 1999) (quoting Gile v.
United Airlines, Inc., 95 F.3d 492, 495 (7th Cir. 1996)).
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determines that . . . the discovery sought . . . can be obtained from some other
source that is more convenient, less burdensome, or less expensive.”
The district court set out to regulate discovery of fee information because
of ongoing litigation. This litigation involves a similar suit for
undercompensation at a Tyson facility in Emporia, Kansas. At Tyson’s request,
the district court bifurcated the litigation and tried the Finney County case before
the Emporia case. II Appellant’s App. at 225. The Emporia case had not yet
been tried when attorneys’ fees were sought for the Finney County case.
With another trial looming in the Emporia case, the Plaintiffs’ attorneys
feared that production of itemized time records for the Finney County case would
reveal legal strategies and allow Tyson to adapt its defense. To avoid this risk,
the district court crafted a procedure for defense counsel to obtain summaries,
depose a representative of the Plaintiffs, and allow in camera review of the
itemized billing records. In crafting this procedure, the district court acted within
its discretion. See Mattel, Inc. v. MGA Entm’t, Inc., 705 F.3d 1108, 1111 (9th
Cir. 2013) (upholding the district court’s in camera review of unredacted attorney
invoices because they would constitute work product and the parties had other
ongoing litigation).
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B. Fee Recovery for Time Spent on State Claims and Unsuccessful
Federal Claims
Tyson argues that the Plaintiffs were not entitled to recover fees for time
spent on any of the claims under the Kansas Wage Protection Act or the
unsuccessful claims under the Fair Labor Standards Act. The Plaintiffs had
pursued three distinct theories of underpayment: (1) failure to pay for pre- and
post-shift activities; (2) failure to pay for meal times; and (3) failure to pay for
time in rest breaks. The Plaintiffs prevailed on only the first claim: failure to
pay for pre- and post-shift activities. Tyson argues that the Plaintiffs should not
have recovered fees for time spent on the state claims or the unsuccessful federal
claims involving underpayment for meal times and rest breaks. This argument is
rejected.
We review the district court’s determination of attorneys’ fees under an
abuse-of-discretion standard. Mares v. Credit Bureau of Raton, 801 F.2d 1197,
1200-01 (10th Cir. 1986).
“Where a lawsuit consists of related claims, a plaintiff who has won
substantial relief should not have his attorney’s fee reduced simply because the
district court did not adopt each contention raised.” Hensley v. Eckerhart, 461
U.S. 424, 440 (1983). Claims are related if they are based on “a common core of
facts” or “related legal theories.” Id. at 435; Jane L. v. Bangerter, 61 F.3d 1505,
1512 (10th Cir. 1995). Conversely, a plaintiff cannot recover fees for time spent
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on unsuccessful claims that are “distinct in all respects from his successful
claims.” Hensley, 461 U.S. at 440.
The district court could reasonably infer a relation between: (1) the
successful federal claims, and (2) the state claims and the unsuccessful federal
claims. All were factually related and arose under a common legal theory:
failure to pay for some of the compensable time involving the donning and
doffing of protective gear. This legal theory provided the backdrop for various
claims that bore at least some connections.
The connections can be illustrated in:
● the claims under the Kansas Wage Protection Act,
● the claims involving failure to compensate for meal times, and
● the claims involving failure to compensate for break times.
The first example involves the Kansas Wage Protection Act. For claims
under this law, the jury’s only task was to determine whether “Tyson failed to
compensate plaintiffs as required under the Fair Labor Standards Act.” Id. at
255. The jury’s root function was the same for both statutes, and the district
court could reasonably view the federal and state claims as interrelated.
The second example involves the claims for compensation of meal times.
These claims involved the parts of the meal times spent getting in and out of the
protective clothing and equipment and walking to and from the production line.
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XII Appellant’s App. at 2328-29 (defense counsel); id. at 2334 (Plaintiffs’
counsel). These activities also underlie the Plaintiffs’ claims, which ultimately
prevailed, under the Fair Labor Standards Act. Because these activities were the
same, the district court could reasonably view the meal claims as interrelated with
the federal claims for pre- and post-shift activities (which ultimately triggered the
award of attorney fees).
The third example is the Plaintiffs’ theory involving failure to compensate
for breaks during the work day. The Plaintiffs presented this theory as a separate
basis for relief, and the jury found for Tyson on this claim. But the Plaintiffs also
presented this theory as part of the federal claims for failure to pay for pre- and
post-shift activities, alleging that Tyson stopped paying for breaks when it
increased the K-Code time for pre- and post-shift activities. II Appellant’s App.
at 153. As a result, the district court could reasonably infer a relation between
the federal claims involving failure to fully pay for: (1) pre- and post-shift
activities, and (2) breaks during the work-day.
Tyson argues that two factual and legal distinctions existed between the
successful federal claims and the claims involving meal time and break time:
● the meal-time claims had an additional element (proof that the time
spent was predominantly for the employer’s benefit), and
● the break-time claims were distinct because the Plaintiffs sought
compensation for all of the time (rather than just the time getting
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into and out of the protective clothing) and involved a separate
regulation (29 C.F.R. § 785.18).
Based on these distinctions, Tyson argues that the district court should
have viewed the claims as distinct. We disagree. The issue for the district court
was not whether there were differences between the claims. Instead, the issue
was whether the district court had discretion to regard the unsuccessful meal- and
break-claims as related to the successful claims for time spent walking and
getting into and out of the protective clothing and equipment. See Hampton v.
Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1120 (10th Cir. 2001). Based on the
existing appellate record,10 we conclude that the district court had discretion to
view the claims as interrelated: Though the claims had some factual and legal
differences, the court could reasonably conclude that the similarities justified an
award for the time spent in meals and breaks.
The court could reasonably conclude that a relation existed between: (1)
the federal claims for pre- and post-shift activities, and (2) the state claims and
the federal claims for underpayment involving meals and breaks. Thus, the court
did not abuse its discretion in allowing the Plaintiffs to recover fees for time
spent on the state claims and the unsuccessful federal claims. See Diaz v. Robert
Ruiz, Inc., 808 F.2d 427, 429 (5th Cir. 1987) (recovery of attorneys’ fees under
the Fair Labor Standards Act includes time spent on other issues when they
10 This record does not include the Plaintiffs’ itemized fee records.
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overlap); accord Williams v. Tri-County Growers, Inc., 747 F.2d 121, 136-37 (3d
Cir. 1984) (in determining the amount of attorneys’ fees available under the Fair
Labor Standards Act, the court must consider “the interrelated nature of the
lawsuit as a whole”), abrogated in part on other grounds, Martin v. Cooper Elec.
Supply Co., 940 F.2d 896, 908 n.11 (3d Cir. 1991).
C. Fee Reduction Based on a Lack of Proportion to the Damages
Award
Tyson argues that the district court should have reduced the fee award
because: (1) the jury awarded only 8% of the damages sought by the Plaintiffs in
closing argument, and (2) the fee award far exceeds the damages award. We
disagree.
In Hensley v. Eckerhart, the Supreme Court held that attorneys’ fees should
vary with the degree of success obtained, but cautioned: “There is no precise rule
or formula for making these determinations. . . . The [district] court necessarily
has discretion in making this equitable judgment.” Hensley v. Eckerhart, 461
U.S. 424, 435-37 (1983). If the Plaintiffs obtained “excellent results,” they
should fully recover their fees; conversely, if the Plaintiffs achieved only “partial
or limited success,” a full fee recovery may be “excessive.” Id. at 436.
We review the district court’s assessment of the Plaintiffs’ success for
abuse of discretion. See Flitton v. Primary Residential Mortg., Inc., 614 F.3d
1173, 1178 (10th Cir. 2010). The district court concluded that Plaintiffs’ counsel
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obtained excellent results for their clients. This conclusion fell within the district
court’s discretion. See id. at 1177-78 (upholding the district court’s decision to
award the full amount of fees requested, based on “substantial success,” even
though the plaintiff obtained only about 1.3% of the damages she had requested).
Tyson emphasizes that the fee award far exceeded the damages award. But
the fee award need not be proportionate to the damages award. See Riverside v.
Rivera, 477 U.S. 561, 576 (1986) (plurality op.) (discussing an award of
attorneys’ fees under 42 U.S.C. § 1988). Thus, the district court acted within its
discretion even though the fee award substantially exceeded the damages award.

Outcome: The district court did not err in denying Tyson’s motion for judgment as a
matter of law or in setting the amount of attorneys’ fees awarded to the Plaintiffs.
Therefore, we affirm.

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Defendant's Experts:

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