Ryan DeKeyser, et al. v. ThyssenKrupp Waupaca, Inc

Before us is an appeal by the defendant

(Waupaca for short) in a class action suit brought

against it in a federal district court in Wisconsin on behalf of

a number of the workers that it employs in six foundries that

manufacture ductile and gray cast iron parts for use in the

automotive and other industries. Four of the six foundries

are located in Wisconsin, and the remaining two in Indiana

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and Tennessee. The suit alleges that Waupaca violated the

Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., by its longstanding

practice of not treating the time that its foundry

workers spend changing clothes and showering on-site at

the end of a foundry shift to be compensable “work” time.

The Act entitles employees to a minimum wage for each

hour they’re “employ[ed]” and a premium wage (1.5 times

their regular wage) for each hour they are “employ[ed]” beyond

40 hours in one work week. Id. §§ 206(a), 207(a). The

Act defines “employ” to mean “to suffer or permit to work,”

id. § 203(g), but does not define “work.” But an employee’s

activities at the beginning and end of a work shift may qualify

as compensable “work” if necessitated by the nature of

the work even if they are not required by a workplace policy,

DeKeyser v. Thyssenkrupp Waupaca, Inc., 735 F.3d 568, 570–

71 (7th Cir. 2013) (DeKeyser I)—in other words if the activities

are “an integral and indispensable part of the principal

activities for which [the workers] are employed.” Steiner v.

Mitchell, 350 U.S. 247, 256 (1956).

The plaintiffs allege that they end their shifts covered in a

layer of “foundry dust,” which can irritate the skin and

cause lung disease if inhaled. Changing clothes and showering

immediately after a shift, they argue, is indispensable to

reducing the risk that foundry work poses to their health.

The plaintiffs have also alleged violations of Wisconsin wage

law.

The Fair Labor Standards Act authorizes collective actions

by employees on behalf of “similarly situated” employees.

29 U.S.C. § 216(b). Unlike class actions under Fed.

R. Civ. P. 23, collective actions under the FLSA (which for

the sake of simplicity we’ll refer to as class actions—they are

No. 16-2159 3

very similar to the more familiar Rule 23 class actions) require

would-be members of the collectivity to opt in to (i.e.,

voluntarily join) the class. See Espenscheid v. DirectSat USA,

LLC, 705 F.3d 770, 771–72 (7th Cir. 2013). The district judge

in this case ruled that he would “conditionally certify” the

class since the plaintiffs showed a “reasonable basis” for believing

that all the class members were similarly situated—

and then, after discovery, upon a motion by the defendant

for decertification the judge would determine whether the

plaintiffs who had opted in were, in fact, similarly situated

to the existing class members.

After the district court in 2008 conditionally certified the

plaintiffs’ FLSA collective-action class (consisting of current

and former Waupaca foundry employees at any of the company’s

six foundries), several hundred current and former

Waupaca employees from all three states opted in to the

lawsuit. Waupaca responded by moving to decertify the

class. At the same time the plaintiffs, deciding to proceed

with only Waupaca’s Wisconsin employees, moved to certify

a Rule 23 class just for their Wisconsin state-law claims and

so didn’t oppose the decertification of those Indiana and

Tennessee employees who had previously opted into the

FSLA class. The district judge agreed that a class action on

behalf of just the Wisconsin plaintiffs made sense and certified

a class accordingly, denied Waupaca’s request to decertify

the entire FSLA class, and divided the FLSA class—

which included employees from Indiana and Tennessee as

well as from Wisconsin—into three subclasses, one for each

state. The judge then severed the claims of the Indiana and

Tennessee plaintiffs and transferred them to district courts in

their respective states, on the ground that they could be

more efficiently evaluated by such courts. Although this was

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not a final order, Waupaca has appealed to us from it under

Rule 23(f), which permits interlocutory appeals of classcertification

decisions.

We analyze the two classes together. See Espenscheid v.

DirectSat USA, LLC, supra, 705 F.3d at 772. The plaintiffs argue

that Waupaca should be ordered to give the class members

overtime pay and back pay for the time they have spent

or are spending on decontamination, as by changing out of

their work clothing and showering in the workplace locker

rooms immediately after their shifts. Not only does the defendant

not give these workers overtime pay (that is, pay

equal to 1.5 times of their normal pay) for the time they

spend on decontamination, it pays them nothing for this

time; it doesn’t even record the time, since it considers it

time spent in noncompensable activity. Although it approves

of the workers’ taking the safety measures we’ve

mentioned, it refuses to pay them for the time they spend

taking them.

Originally the district judge held that it was not a violation

of the Fair Labor Standards Act for Waupaca not to pay

the workers for that time and so granted summary judgment

in favor of the defendant. The plaintiffs appealed, however,

and we reversed and remanded in DeKeyser I, supra, 735 F.3d

at 572, pointing out that decontamination might indeed be

required by the “nature of [the employees’] work,” and that

the district court had erred when it “ignored the ‘sharp dispute’

in the evidence as to the health effects of chemical exposure

at Waupaca’s foundries and the impact, if any, that

showering and changing clothes would have on Waupaca

workers.” Id. at 570–71.

No. 16-2159 5

On remand the district judge ruled that the plaintiffs

would prevail if they “convince the finder of fact that changing

clothes and showering at work will significantly reduce

the risk to the health of the employee.”

Waupaca contends, though in tension with its encouraging

all its foundry workers to take the precautions noted,

that the plaintiffs haven’t met Rule 23’s requirement of identifying

questions of fact common to the class because these

precautions do not reduce the risks of foundry work to the

health of all the workers by the same amount. Waupaca insists

that to prevail a plaintiff must provide an individualized

analysis of the chemicals that he is exposed to in the

foundry and provide information about his personal medical

background that will demonstrate that changing clothes and

showering on-site would indeed significantly reduce the risk

to his health.

The company describes the plaintiffs’ evidence as “evidence

demonstrating that [the plaintiffs’] claims could not be

proven individually.” But that misunderstands both the

plaintiffs’ evidence and their evidentiary burden. Back in the

district court on remand from the earlier decision by our

court, the plaintiffs hired as an expert witness a certified industrial

hygienist named Thomas Armstrong. He presented

evidence that changing out of one’s work clothes and showering

immediately after the standard 8-hour workday in a

foundry reduce an employee’s “foundry dust” skin contamination

twelve-fold and by doing so considerably reduce the

risk that such contamination poses to an employee’s health.

He opined that because foundry dust is distributed throughout

the plant any foundry worker could reduce his risk by

changing and showering immediately at the end of his shift.

6 No. 16-2159

Dr. Armstrong acknowledged that there wasn’t enough information

to quantify the precise risks associated with

changing and showering on-site, as opposed to at home

(particularly because ethics rules forbid testing of known

carcinogens on humans), but emphasized the reduction in

risk associated with using a “dirty side/clean side” shower

and locker-room system, by which he meant a configuration

that allows employees to shed their work clothes on one side

of the shower facility, shower in the middle, and dress in

street clothes on the other side. Such a system could hardly

be replicated in the household bathrooms of Waupaca employees,

and it would reduce the risk of employees’ carrying

contaminants such as silica dust and manganese into their

vehicles and homes, where they would endanger themselves

and their families, especially children and elders.

Waupaca’s rebuttal, hinted at earlier, is that the health

risks must vary across workers because of different exposures

to chemicals and different medical histories of different

workers and that as a result some workers may derive no

significant health benefits from showering and changing

clothes right after the end of the work day in the foundry,

and therefore should not be entitled to be paid for the time

they spend doing so. But the company has not identified any

such workers. Nor has it challenged Dr. Armstrong’s expert

testimony as inadmissible under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and his report implies

that the reduction in risk from conducting the decontamination

activities at work would dwarf any variation in

risk based on particular individual exposures or medical history.

Whether a jury will credit Dr. Armstrong’s report is a

separate question, but the district court did not err in concluding

that the plaintiffs have produced common evidence

No. 16-2159 7

tending to prove their common assertion, as Rule 23 and section

216(b) require.

One more issue remains to be considered. Waupaca argues

that the district court erred by severing the FLSA

claims of the plaintiffs from Indiana and Tennessee who had

opted in to the lawsuit and transferring those claims to their

respective home districts. Although the district court’s plan

to sever and transfer was laid out in the district court’s class

certification order, Rule 23(f) appeals are limited to “those

issues related to [the] class certification decision.” Andrews v.

Chevy Chase Bank, 545 F.3d 570, 576 n. 2 (7th Cir. 2008). It’s

true that the non-Wisconsin plaintiffs had been conditionally

certified, so in a sense the district court “decertified” them

from the FLSA class. But Waupaca doesn’t challenge that aspect

of the order by arguing that the Indiana and Tennessee

plaintiffs should be added back into the FSLA class; it simply

wants the claims of the non-Wisconsin plaintiffs dismissed.

The district court’s plan to sever and transfer the

non-Wisconsin plaintiffs to their home districts does not

bear on the soundness of the class certification decision for

the Wisconsin plaintiffs, so Waupaca cannot challenge it on a

Rule 23(f) appeal, and did not obtain certification to appeal

under 28 U.S.C. § 1292(b). See Union Oil Co. of California v.

John Brown E & C, 121 F.3d 305, 311 (7th Cir. 1997). In any

event there was nothing wrong with what the district court

did—28 U.S.C. § 1404(a) gives a district court discretion to

transfer a civil action to any other district or division where

it might have been brought if the transfer is “for the convenience

of parties and witnesses, [and] in the interest of justice.”

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Unfortunately the end of this protracted litigation, which

began in June 2008—almost nine years ago—is not yet in

sight. The district court has certified the plaintiff class, now

limited to Wisconsin plaintiffs, under Rule 23 and section

216(b), but has yet to determine whether the time spent

changing clothes and showering is indeed “work” time

compensable under the FLSA or, if it is, what damages the

members of the plaintiff class are entitled to, to compensate

them for Waupaca’s failure to have paid them for that time.

Those determinations presumably will require a trial. For

now we simply affirm the district court’s certification decision.

AFFIRMED.

No. 16-2159 9

MANION, Circuit Judge, concurring. Before us on appeal is

a district court order granting Rule 23 class certification for

Wisconsin opt-ins at four Waupaca foundries located within

the Eastern District of Wisconsin and partially granting the

defendant’s motion to decertify the FLSA class for opt-ins

outside Wisconsin. I write separately for two reasons. First,

I reiterate my concerns about permitting class certification in

this case, and to examine the plaintiffs’ legal theory which

enables the Wisconsin claims to move forward on a class-wide

basis. Second, I would like to caution against overreading

today’s majority as an endorsement of a novel sever-andtransfer

procedure not before this court.

As I noted in dissent the last time this case was on appeal,

and as the majority notes today, this is an old case. DeKeyser

v. Thyssenkrupp Waupaca, 735 F.3d 568, 572 (7th Cir. 2013).

Many employees have undoubtedly left Waupaca, and it will

be extraordinarily difficult to identify which former

employees spent how much, if any, uncompensated time

donning and doffing. Individual cases would be hard enough

to prove, and determining damages for an “average” worker

will likely be next to impossible. This high evidentiary

burden is compounded by the legal theory underlying the

commonality of the class. Plaintiffs have a common claim

under Rule 23 and the FLSA only to the extent that they were

all potentially harmed by Waupaca foundries so inundated

with cupola dust that “the only reasonable thing” for each

worker to do, “given the potential of exposure to materials

known to be dangerous, is to shower and change clothes at

work.” DeKeyser v. Thyssenkrupp Waupaca, Inc., No. 08-C-0488

(E.D. Wis. March 31, 2016). As the district court further noted,

“the jury or other factfinder will not be required to accept

Plaintiff’s expert’s opinion with respect to the dangerousness

10 No. 16-2159

of working in Waupaca’s foundries.” The plaintiffs have thus

committed themselves to the claim that all workers in the four

Wisconsin plants were put in equal danger from the cupola

dust. So whether a worker did a night shift on the factory

floor or office work during the day, plaintiffs have raised class

claims certifiable under the FLSA and Rule 23. I thus agree

with the majority that the part of the district court order

granting class certification for the Wisconsin claims was

proper.1

But I caution against reading today’s decision as an

endorsement of the irregular procedure employed in the case

cited by the plaintiffs, Medina v. Happy’s Pizza Franchise, LLC,

No. 10 C 3148 (N.D. Ill. Feb. 3, 2012). In this case, the district

judge only partially decertified the Tennessee and Indiana

groups of opt-ins because the theory of certification for those

two subclasses will likely be substantially different from the

class certified for the Wisconsin plaintiffs. Those two

subclasses will have leave to amend their complaints. The

single decertify-sever-and-transfer order employed in

Medina, by contrast, would often result in the district judge

stepping outside his role as an adjudicator between two

parties. Here, FLSA subclasses are distinguished solely on the

basis of the state residency of the plaintiffs.

Thus while it probably would be an abuse of discretion to

partially decertify FLSA claims and immediately transfer those

actions in a manner unsupported by the statute, that is not

what is happening here. District judges retain “wide

1 I do not think that Waupaca’s compliance with OSHA’s mandate that

they simply recommend that their employees change clothes and shower

is really not “in tension” with its central argument that doing so was not

necessary to safely working at their foundries.

No. 16-2159 11

discretion to manage collective actions.” Alvarez v. City of

Chicago, 605 F.3d 445, 449 (7th Cir. 2010). Further, civil actions

may be transferred under 28 U.S.C. § 1404(a) for “the

convenience of the parties and witnesses [where it is] in the

interest of justice.” In this case, there has not yet been a

transfer order. These claims are going back to the district

court, where an amended complaint will be filed for each

subclass of claims. On remand, the district judge and

defendants will have a first bite at the apple in determining

whether there are sufficiently pleaded allegations to sustain a

cause of action for this subclass, and whether the subclass is

certifiable under the FLSA or Rule 23. If the district judge

determines that these cases can go forward, or decides to

certify or transfer these cases, there will be additional

opportunities to appeal. All that is before us now is the partial

decertification order: all we have decided is that the

Tennessee and Indiana subclasses do not have sufficient

claims in common with the Wisconsin subclass to proceed as

a single action. We have not decided that the Tennessee or

Indiana subclasses have sufficient internal coherence to

themselves be certifiable as classes. Such a decision, best left

for the Tennessee or Indiana district courts, is down the road.

Undoubtedly, this case is a mess, and has gone on for far

too long. While I concur that it was not an abuse of discretion

to certify the Wisconsin plaintiffs under Rule 23, or to partially

decertify the Indiana and Tennessee plaintiffs under the

FLSA, I caution against overreading today’s majority as an

endorsement of a novel procedure for avoiding local bars to

relief.

Affirmed

Thomas Armstrong, industrial hygenist