Michael Stuntz v. Lion Elastomers, L.L.C.

Case: 19-40336 Document: 00515575568 Page: 1 Date Filed: 09/23/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 23, 2020
No. 19-40336
Lyle W. Cayce
Clerk
MICHAEL DAVID STUNTZ, Individually and on Behalf of All Those
Similarly Situated,
Plaintiff - Appellant
v.
LION ELASTOMERS, L.L.C.; ASHLAND ELASTOMERS, L.L.C.,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:14-CV-173
Before SMITH, GRAVES, and HO, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:*
Plaintiff-Appellant Michael Stuntz filed this suit, individually and on
behalf of all those similarly situated, against Ashland Elastomers, L.L.C.
(“Ashland”), ISP Synthetic Elastomers, L.L.C. (“ISP”), and Lion Elastomers,
L.L.C. (“Lion”) for violations of unpaid overtime under the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq (“FLSA”). Stuntz also asserted a
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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retaliation claim under FLSA. For the following reasons, we affirm the district
court’s grant of summary judgment in favor of Defendants.
I. BACKGROUND
A. Factual History
Defendants ISP, Ashland, and Lion successively owned an elastomers
and synthetic rubber manufacturing plant located in Port Neches, Texas
between 2009 and 2014. Originally, ISP operated the facility until Ashland
purchased the assets of the facility in 2013. After this lawsuit was filed, Lion
purchased the assets in 2014.
Throughout the plant’s change in ownership, Stuntz worked in the
plant’s production unit with approximately 250 employees. Stuntz was also a
member of the Steelworkers Union Local 228 (“the Union”), the collective
bargaining representative of the production unit employees. The unionized
employees are subject to a collective bargaining agreement (“CBA”) negotiated
by Ashland and the Negotiating Committee, which acted on behalf of the
Union.
Production unit employees worked 12-hour shifts, rotating between the
day shift (5:00 a.m. to 5:00 p.m.) and night shift (5:00 p.m. to 5:00 a.m.).
Employees reported that they arrived anywhere from 5 minutes to 30 minutes
early—between 4:30 and 5:00—to make the “early relief” period which was “off
the clock” and not mandatory. Stuntz maintains that during the “early relief”
period, employees would (1) don, doff, and store personal protective equipment
(“PPE”) and shower off chemicals; (2) meet with co-workers to discuss plant
operations and safety issues for that day; and (3) receive instructions from
foremen supervisors.
On May 28, 2013, Stuntz and other Union members filed a written
grievance charging Ashland with FLSA violations for unpaid overtime during
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“early relief” periods. The grievance demanded that Ashland “cease and desist
from violating the Collective Bargaining Agreement” and requested
alternative dispute resolution per the CBA’s procedures. A few days later,
Ashland responded stating that because the alleged violations in the grievance
were not subject to the CBA, the Union should instead direct its complaint to
the appropriate federal office administering FLSA.
Later that summer, Ashland changed its mind, explaining that it wanted
to avoid time-consuming, costly litigation through a Department of Labor
charge. Ashland engaged in several discussions with the Union over the
grievance on “early relief” practices and unpaid overtime. Several individuals
were involved in these meetings, including:
− Ashland’s management team—Scott Hardegree (Plant Manager),
Trudy Lord (Human Resource Manager), and Tom Rogers
(Operations/Production Manager)
− Unionized employees—Stuntz, Dwayne Newman, Joe Wells, Joseph
Colone, and Ernie Knod—who were members of the Union’s
Negotiating Committee (sometimes referred to as the Workers’
Committee)1
− Richard Landry, the Local Business Agent and Director of the
Steelworkers District 13 (representing multiple union sites in
addition to Steelworkers Union Local 228)
1 Stuntz stated that he, Newman, Knod, Wells, and Colone were members of the
Workers’ Committee in 2013 (at the time the Early Relief Payout was negotiated). Stuntz
also explained that Newman acted as president (or spokesman) of the Workers’ Committee
when Wells was absent at meetings. Stuntz explained that the president is elected by union
members to have the authority to negotiate and interpret the CBA.
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Subsequent to these meetings, Ashland agreed to a payout (“the Early
Relief Payout2”) and distributed checks with a document entitled “Questions &
Answers: Pay Correction and Change in Pay Rules—Operators,” explaining to
employees that the overtime payment was due to an “early relief” (or “30
minute change point rule”) agreement between prior owners of the plant and
the Union. Because Ashland could not “prove that [employees were] paid for
all the time worked,” Ashland agreed to go “back three years, the required
repayment period for intentional violations of the Fair Labor Standards Act,”
and pay employees overtime based on “in and out punches.” See 29 U.S.C.
§ 255(a). These back wages were calculated using the employees’ actual punch
times at the plant’s main gate entrance (“punch to punch”) but excluded six
minutes per day to account for the time employees spent walking between the
main gate and their workstations. Ashland then took the back wages owed and
doubled the amount as a penalty (or liquidated damages) for Ashland’s failure
to pay the amount accurately at the time of pay. See 29 U.S.C. § 216(b).
The Early Relief Payout document also notified employees of new pay
rules taking effect on September 15, 2013—(1) gate time clocks would be used
for entry and exit from the plant; (2) assigned time clocks would be located
closer to workstations to eliminate the need for any adjustments to punch
times used for compensation; (3) the “30 minute change point rule” would be
officially eliminated; and (4) employees would be paid punch to punch with a
1/10 hour (or 6 minute) rounding rule. After the initial payout, the Union
complained that the payout amounts did not accurately reflect the Early Relief
2 We note that Appellant refers to this payout as Ashland’s response to the grievance
or FLSA claim; Defendants refer to it as the Wage Agreement; and the district court also
referred to it as the Wage Agreement. Because of the nature of this dispute, we refer to it as
the Early Relief Payout.
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Payout formula derived from the Q&A document. Ashland agreed to issue a
second round of checks to address these concerns.
Ten months later, after filing the present lawsuit, Stuntz, who had
worked at the plant for over four years, was terminated by Lion on January
27, 2015 for repeated violations of the Attendance Policy.3
B. Procedural History
Stuntz filed this FLSA collective action for (1) accurate and complete
payouts still owed under the Early Relief Payout and (2) compensation for time
spent after the Early Relief Payout for donning and doffing PPE and other
work activities such as meeting with coworkers and receiving safety
instructions.4 Stuntz also alleged an individual retaliation claim against
Ashland and Lion for his termination after filing this FLSA action.
The district court conditionally certified the class under FLSA as all
current and former employees (1) who worked at the Defendants’ plant at any
time during the prior three years, and “who reported to and badged in the plant
3 The Attendance Policy explains that absences or tardiness become “excessive” and
subject to written discipline when employees collect three absences in a 60-day period, four
absences in a 180-day period, two tardies in a 30-day period, or four tardies in 60-day period.
During his last weeks of employment, Stuntz was on a last chance agreement where he
agreed that he would be fired upon another violation of the attendance policy. The
disciplinary log and written notices documented Stuntz’s violations and warnings, including
an August 26, 2014 written warning for being tardy twice in 30 days; a September 8, 2014
written warning for safety violation; and a September 26, 2014 warning for being tardy on
three occasions in 60 days.
4 Plaintiffs’ second claim—compensation of the “early shift relief practice”—is
separate and apart from the first claim specifically brought under the Early Relief Payout.
Plaintiffs claimed that after the time clocks were moved (per the Early Relief Payout),
employees were “permitted and practically required to report to the worksite before the start
of the pay period during and after which they are on the plant worksite and working prior to
the start of the pay period—including but not necessarily limited to donning PPE, conducting
work meetings, receiving work instructions from foremen and being engaged to wait to
perform other work activities.”
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prior to the start of their pay period and either [a] donned the necessary PPE
at the bathhouse, or [b] were already donned in the necessary PPE ready to
begin work prior to the start of their pay period” and/or (2) “who remained at
the plant after the end of their shift to doff prior to leaving the Plant.”
The parties filed multiple motions for summary judgment. The
Magistrate Judge recommended (1) granting Defendants’ motions for
summary judgment on the “early shift relief” claims arising from the Early
Relief Payout on the ground that those claims are “preempted” by § 301 of the
Labor Management Relations Act (“LMRA”); (2) granting Defendants’ motions
for partial summary judgment on post-Early Relief Payout claims for “early
shift relief”, donning and doffing, and other work activities because that time
spent is de minimis; and (3) denying Plaintiffs’ motion for partial summary
judgment on continuing record keeping violations after the Early Relief Payout
and relocation of clocks.
The Magistrate Judge also recommended granting Lion’s and Ashland’s
separate motions for partial summary judgment on Stuntz’s individual
retaliation claim.
The district court adopted both the Magistrate Judge’s report and
recommendations and entered a final judgment disposing of all claims.
Appellant filed a timely notice of appeal.5
II. STANDARD OF REVIEW
We review “summary judgment de novo, using the same standards as
the district court.” Haggard v. Bank of Ozarks Inc., 668 F.3d 196, 199 (5th Cir.
2012). We “refrain from making credibility determination or from weighing the
evidence.” Deville v. Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009) (quoting
5Appellant is abandoning the state law claims pursued and dismissed in district court.
The only remaining claims are the FLSA claims and Stuntz’s individual retaliation claim.
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Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)).
Summary judgment is proper when “there is no genuine dispute as to any
material fact and . . . the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “All of the evidence introduced and all of the factual
inferences from the evidence are viewed in a light most favorable to the party
opposing the motion and all reasonable doubts about the facts should be
resolved in favor of the nonmoving party.” Terrebonne Parish Sch. Bd. v. Mobil
Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002). “A genuine issue of material fact
exists if the record, taken as a whole, could lead a rational trier of fact to find
for the non-moving party.” Id. at 877–78. Material facts are those that “might
affect the outcome of the suit under the governing law.” Leasehold Expense
Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 456 (5th Cir. 2003) (internal
citation omitted).
III. DISCUSSION
A. The Early Relief Payout and Release of FLSA Claims
Appellant maintains that he may sue for alleged FLSA violations covered
by the Early Relief Payout because employees have still not received the proper
compensation owed under that agreement. The parties dispute whether the
Early Relief Payout is part of or “inextricably intertwined” with the CBA and
whether the LMRA therefore “preempts” Appellant’s FLSA claims. But this is
not the right terminology or framework for determining the viability of
Appellant’s FLSA claims in the aftermath of the Early Relief Payout. Instead,
we need only determine whether the Early Relief Payout constitutes a valid
“release” of Appellant’s FLSA claims, and therefore, whether any purported
violation of the settlement agreement—the Early Relief Payout—must be
brought under the LMRA.
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1. Relevant Law
“The FLSA requires any employee working over 40 hours in a week to be
paid overtime, premium compensation at the rate of one and one-half times
their ‘regular rate’ of pay.” York v. City of Wichita Falls, 48 F.3d 919, 921 (5th
Cir. 1995) (citing 29 U.S.C. § 207(a)(1)). Under FLSA, employers and
employees may make “reasonable provisions of contract [to guide] the
computation of work hours where precisely accurate computation is difficult or
impossible.” See Tennessee Coal, Iron & Railway Co. v. Muscoda Local No. 123,
321 U.S. 590, 603 (1944), superseded by statute on other grounds.
Section 301 of the LMRA, by contrast, allows federal courts to resolve
disputes involving a “violation of contracts between an employer and a labor
organization representing employees[.]” 29 U.S.C. § 185(a) (emphasis added).
“Settlement agreements between employers and labor unions are included
within this definition [of contracts].” Dall v. Albertson’s, Inc., 234 F. App’x 446,
447 (9th Cir. 2007). Such agreements need not be reduced to writing nor
resolve all “substantive terms, including wage rates and workplace conditions.”
See Int’l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers-Local 1603 v. Transue & Williams Corp., 879 F.2d 1388, 1392 (6th Cir.
1989) (citations omitted) (noting that “the technical rules of commercial
contract law need not be strictly applied to labor contracts”).
As federal law, the LMRA also governs agreements involving “state-law
rights and obligations that do not exist independently of private agreements,
and [that] as a result can be waived or altered by agreement of private parties.”
See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985); McKnight v.
Dresser, Inc., 676 F.3d 426, 433 (5th Cir. 2012). So “when resolution of a
state-law claim is substantially dependent upon analysis of the terms of an
agreement made between the parties in a labor contract, that claim must
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either be treated as a § 301 claim . . . or dismissed as pre-empted by federal
labor-contract law.” Allis-Chalmers, 471 U.S. at 220. And when determining
whether a state law claim has been preempted by the LMRA, the relevant
question is “whether evaluation of the . . . claim is inextricably intertwined
with consideration of the terms of the labor contract.” Id. at 213.
It was under this test that Appellees obtained summary judgment on
Appellant’s state law claims. But as the state law claims regarding Appellees’
alleged violation of the Early Relief Payout have been disposed of, the
Allis-Chalmers case law and associated “preemption” analysis are inapposite.
“[T]he plaintiff has asserted claims for violation of federal law, rather than
state law, and thus the doctrine of preemption under the LMRA does not
apply.” Citchens v. Bellsouth Telecomm., Inc., 1997 WL 570855 at *2 (N.D.
Miss. Sept. 3, 1997). Here, all we need to decide is whether the Early Relief
Payout is a valid “release” of Appellant’s FLSA claims—and thus whether
Appellant has lost any right to (re-)litigate them under the FLSA.
We have held that when a private settlement agreement between a union
and an employer resolves “a bona fide dispute as to the amount of hours worked
or compensation due,” individual union members’ substantive FLSA rights
may be validly “released” under that agreement. Martin v. Spring Break '83
Prods., L.L.C., 688 F.3d 247, 255 (5th Cir. 2012); see also Martinez v. Bohls
Bearing Equip. Co., 361 F. Supp. 2d 608, 631 (W.D. Tex. 2005) (“[P]arties may
reach private compromises as to FLSA claims where there is a bona fide
dispute as to the amount of hours worked or compensation due. A release of a
party’s rights under the FLSA is enforceable under such circumstances.”
(emphasis added)). In such a circumstance, “FLSA rights [are] not waived, but
instead, validated through a settlement of a bona fide dispute.” Martin, 688
F.3d at 257. In determining whether a settlement agreement has released
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individual plaintiffs’ FLSA claims, we have considered whether the union had
the authority to negotiate on behalf of the plaintiffs and whether the plaintiffs
have “received and accepted full payment for the FLSA claims.” Id. at 254. We
have deemed it immaterial whether the individual union members personally
signed on to the settlement agreement. Id.
2. Discussion
On May 28, 2013, the Union filed a grievance, alleging that the unpaid
“early relief” period violated the FLSA, and requested the “rights in alternate
[sic] dispute resolution.” “As a general rule in cases to which federal law
applies, federal labor policy requires that individual employees wishing to
assert contract grievances must attempt use of the contract grievance
procedure agreed upon by employer and union as the mode of redress.”
Republic Steel v. Maddox, 379 U.S. 650, 652 (1965).
As discussed above, a union’s settlement agreement may resolve
individual FLSA claims, so long as the agreement “validated” the rights by
bona fide settlement and not waiver. Martin, 688 F.3d at 257. Accordingly, a
union and an employer may validate substantive FLSA claims such that
individual employees are subsequently barred from bringing those
already-resolved FLSA claims under the FLSA.
Here, the extensive record reveals that the Early Relief Payout was
indeed a legitimate, authorized—albeit somewhat unwritten—agreement that
served as a settlement of the grievance over the alleged FLSA violations.
“Under the CBA, [Ashland] recognized ‘the Union as exclusive representative
of the employees in the bargaining unit.’” Id. at 249. “In addition, the CBA
outlined the procedure for Union members to follow when filing grievances
against [Ashland].” Id. Each step of this procedure implies that an informal
agreement settling a grievance could be reached in its early stages. For
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example, Ashland could choose to “accept” the grievance by “adjust[ing] to the
satisfaction of the employee,” or otherwise a “settlement [may be] reached.”
Pursuant to these procedures, the Union filed a grievance over the FLSA
violations, “demand[ing] that the Company cease and desist from violating the
Collective Bargaining Agreement, that the incident(s) be rectified, that proper
compensation, including benefits and overtime, at the applicable rate of pay,
be paid for all losses; and further that those affected be made whole in every
respect.”
It is undisputed that Ashland met with Union representatives on
multiple occasions over the grievance. After those meetings, Ashland agreed to
the Early Relief Payout, reflecting Ashland’s determination that it could not
“prove that [employees were] paid for all the time worked,” and thus purported
to provide employees with double backpay for the last three years. Along with
the Early Relief Payout document sent to employees was “enclosed [a] check[]
[and] calculation worksheet.” “Appellants accepted and cashed settlement
payments.” Id. at 257. Subsequently, the Union sent a letter to Ashland,
asserting that Ashland issued payout amounts that did not accurately reflect
the Early Relief Payout formula. The Union stated it would “move forward if
Ashland fails . . . to comply and make the Employees ‘whole’ [within the
following few weeks],” taking such failure as “cause to take this matter to the
DOL in a formal complaint.” Ashland soon announced a “pay correction” and
issued a second round of checks. It does not appear that the Union itself took
further issue with the grievance. Despite the parties’ conflicting impressions
of their negotiations, these ceased to matter once the Union and Ashland
entered into the Early Relief Payout, an informal agreement under which
Ashland would—in the Union’s own terms—“accurately compensate workers
under the agreed terms of this issue by the Union and the Company.”
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It is indisputable that the parties to the Early Relief Payout—one of
whom the CBA authorized to negotiate such grievances on Appellant’s behalf—
understood the agreement to resolve Appellant’s FLSA claims. Further, the
Early Relief Payout is “an enforceable resolution of those FLSA claims
predicated on a bona fide dispute about time worked and not as a compromise
of guaranteed FLSA substantive rights themselves.” Id. at 255. Under the
informal settlement, Appellant’s FLSA rights were adhered to and addressed
by the Union and Ashland, not waived or bargained away. Id. at 257. Because
the record lends to summary disposition of this issue, we conclude as a matter
of law that the Early Relief Payout was an enforceable settlement and valid
release of the FLSA claims that it purported to resolve. Thus, Appellant no
longer has recourse under the FLSA for those alleged FLSA violations covered
by the Early Relief Payout. Any claim regarding an alleged violation of the
settlement agreement must be brought pursuant to § 301 of the LMRA, which
governs “contracts between an employer and a labor organization.” 29 U.S.C.
§ 185(a).
B. “Post-Early Relief Payout” Claims for Shift Relief, Donning and
Doffing PPE, and “Off the Clock” Activities
Per the Early Relief Payout, early shift relief was discontinued as of
September 15, 2013. Appellant argues that despite the relocation of time clocks
closer to workstations, employees still engage in the practice of “early shift
relief” that should be compensated under FLSA. Appellant also seeks
compensation under FLSA for “donning and doffing PPE” and other “off the
clock” activities. Defendants maintain that any time spent during the “early
relief,” “donning and doffing,” and “off the clock” periods is de minimis.
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The Portal–to–Portal Act “narrows the scope of compensable activities”
under FLSA, exempting employers from liability for claims based on the
following activities:
(1) walking, riding, or traveling to and from the actual place of
performance of the principal activity or activities which such
employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said
principal activity or activities,
which occur either prior to the time on any particular workday at
which such employee commences, or subsequent to the time on any
particular workday at which he ceases, such principal activity or
activities.
Bridges v. Empire Scaffold, L.L.C., 875 F.3d 222, 225 (5th Cir. 2017) (quoting
29 U.S.C. § 254(a)). “An activity is therefore 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 Sols., Inc. v. Busk,
574 U.S. 27, 33 (2014) (emphasis added).
“It is only when an employee is required to give up a substantial measure
of his time and effort that compensable working time is involved.” Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946), superseded by statute on
other grounds. Therefore, “[w]hen the matter in issue concerns only a few
seconds or minutes of work beyond the scheduled working hours, such trifles
may be disregarded” as de minimis. Id. “[I]n determining whether otherwise
compensable time is de minimis,” the Ninth Circuit has distilled three factors
for courts to consider: “(1) the practical administrative difficulty of recording
the additional time; (2) the aggregate amount of compensable time; and (3) the
regularity of the additional work.” Rutti v. Lojack Corp., 596 F.3d 1046, 1057
(9th Cir. 2010) (quoting Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir.
1984)).
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1. Early Relief Activities
The district court found the Plaintiffs’ “early relief” activities to be de
minimis by relying on its decision in Hesseltine v. Goodyear Tire & Rubber Co.,
391 F. Supp. 2d 509, 519–20 (E.D. Tex. 2005). In Hesseltine, the court analyzed
“mandatory” person-to-person shift relief for employees working 12-hour work
shifts. Id. at 512. The employer’s pay policy explained that “shift relief” must
be “made within a half hour window prior to regular start time.” Id. Because
employees alleged working “ten to fifteen minutes or more” during shift relief,
the district court ruled that the time was “de minimis as a matter of law” and
only “equivalent of 1.4% to 2.1% of work time on a twelve-hour shift.” Id. at
520.
Similarly, Plaintiffs also worked 12-hour shifts and testified that it took
sometimes as little as five minutes and up to 20 minutes to “make relief.” Due
to the variance in time spent on “early relief,” Ashland maintains it relocated
clocks per the Early Relief Payout to manage administrative difficulties in
consistently recording employee times. The district court concluded that even
when calculating Plaintiffs’ relief time as 15 minutes, that time “would be
considered de minimis because it constitutes only 2% of the entire work shift.”
On appeal, Appellant notably does not take issue with the holding of
Hesseltine. Instead, Appellant only argues that Hesseltine is distinguishable
because (1) Ashland once determined that early shift relief was compensable
under FLSA and (2) Defendants should now be barred from arguing that time
is de minimis based on the doctrines of unclean hands and waiver. However,
Appellant cites to no legal authority for the argument that a manager’s prior
statements about what he or she perceived to be protected under FLSA
overcomes a finding as a matter of law that the early relief activities are de
minimis. Accordingly, we find no error in the district court’s determination
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which is well supported by the employees’ testimony that relief time lasts a few
minutes and by the de minimis determinations of most courts. See Von
Friewalde v. Boeing Aerospace Operations, Inc., 339 F. App’x 448, 454 (5th Cir.
2009) (acknowledging that “most courts have found daily periods of
approximately 10 minutes de minimis even though otherwise compensable”)
(citation omitted).
2. Donning and Doffing PPE
The district court determined that Plaintiffs’ donning and doffing claims
are not compensable due to 29 U.S.C. § 203(o) of the FLSA and because such
time is de minimis. Section 203(o) provides “the time spent changing clothes is
to be excluded from the measured working time [for purposes of § 207] if it has
been excluded by custom or practice under a bona fide collective bargaining
agreement.” Allen v. McWane, Inc., 593 F.3d 449, 453 (5th Cir. 2010) (citing
Bejil v. Ethicon, Inc., 269 F.3d 477, 479 (5th Cir. 2001)) (per curiam). “Simply
put, the statute provides that the compensability of time spent changing
clothes or washing is a subject appropriately committed to collective
bargaining.” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 226 (2014).
Plaintiffs’ personal protective equipment (“PPE”) is “comprised of steel-
toe boots, fire-retardant clothing, gloves, hard hats, and safety glasses,” which
the district court properly considered as “clothes” for purposes of Section
203(o). See also Bejil, 269 F.3d at 480 n.3 (finding that lab coats, shoe coverings,
and hair or beard coverings fall under the definition of “clothes” in § 203(o))
(citing Webster’s Third New Int’l Dictionary (1986) (defining “clothing” as
“covering for the human body or garments in general”)).
Defendants maintain that for at least twenty-six years, it has been the
custom and practice to not compensate employees for donning and doffing PPE.
As support, they cite to several versions of the Union’s CBAs, none of which
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described compensation for donning and doffing before and after work shifts.
James Mosley, a production manager, started work at the plant in October
1990 and noted that production union employees were never paid for time
spent putting on or taking off their PPE before and after shifts. Lord, the
director of human resources, also stated that since 2001 she is not aware of any
rule requiring employees to shower, change clothes, and put on PPE at the
plant. Production unit employees had the option to do those activities at their
homes.
On appeal, Appellant cites to Ashland’s Early Relief Payout to pay wages
based on “punch to punch minus 6 minutes” which some employees assumed
or believed “covered [their] activities at the bathhouse.” However, employees
have not been entitled to additional FLSA compensation for the extra eight to
ten minutes of clothes changing time that they requested during collective
bargaining negotiations, but which was not incorporated into the executed
CBA. Hoover v. Wyandotte Chemicals Corporation, 455 F.2d 387 (5th Cir.
1972). Even when an “employer had agreed to pay for changing time, where
the employees raised the issue during CBA negotiations but there was no
change in practice by the employer or change to the CBA on the issue, the
relevant custom of non-payment for clothes changing time over fifteen minutes
remained unaltered.” Allen, 593 F.3d at 455 (summarizing Hoover, 455 F.2d at
389). Although the employees believed that the Early Relief Payout
compensated for past donning and doffing, such speculation does not overcome
the evidence of a more than 25-year practice of non-compensation, the clear
absence of compensation for donning and doffing in any of the CBA’s terms,
and the Early Relief Payout’s calculation terms that used employees’ punch to
punch time but excluded “the amount of time that it would have taken [the
employee] to get to and from [his] worksite from the main gate.”
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Alternatively, the district court determined that the time spent donning
and doffing generic PPE is not integral and indispensable to a principal
activity. See Von Friewalde, 339 F. App’x at 454. Indeed, employees admitted
their option of either taking the PPE home or leaving them at the facility. See
Bamonte v. City of Mesa, 598 F.3d 1217, 1232 (9th Cir. 2010) (holding that
donning and doffing police uniforms and related gear was not compensable as
officers could change at home and there was “[n]o requirement of law, rule, the
employer, or the nature of the work [that] mandate[d] donning and doffing at
the employer’s premises”); Gorman v. Consol. Edison Corp., 488 F.3d 586, 594
(2d Cir. 2007) (noting that a helmet, safety glasses, and steel-toed boots may
be indispensable to plaintiffs’ principal activities without being integral); Reich
v. IBP, Inc., 38 F.3d 1123, 1126 (10th Cir. 1994) (holding that donning and
doffing safety glasses, earplugs, a hard hat, and safety shoes were “essential to
the job” but not “required by the employer” making them “preliminary” and
“postliminary” activities falling outside of FLSA). Thus, Appellant’s donning
and doffing of PPE are not compensable under the FLSA. Cf. Steiner v.
Mitchell, 350 U.S. 247, 251 (1956) (noting that clothes-changing and showering
activities of the employees who worked in a “battery plant using dangerously
caustic and toxic materials” are integral and indispensable part of their
principal activities).
Lastly, we note that one employee testified that donning PPE usually
took between “five and ten minutes”; but if laundry services were delayed or
employees had to go to the front gate to get an alternate pair of coveralls,
donning could sometimes take as long as “30 minutes.” The same employee
also stated that when doffing dirty clothes, some employees leave them for
laundry services and that showering could take between ten to twenty minutes
onsite. These events occurred “maybe once, maybe twice” a week but normally
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workers left with their coveralls. However, even on the days when laundry
delayed access to PPE, the “time appellants spent walking to and from their
lockers at the beginning and end of each shift [is] non-compensable, as the
Portal–to–Portal Act specifically provides that walking before and after the
performance of an employee’s principal activities is non-compensable.” Von
Friewalde, 339 F. App’x at 454. Appellant also does not dispute that changing
generic protection gear, despite the plant’s use of laundry services, is still in
any event a “‘non-compensable, preliminary task[ ]’ under the Portal–to–Portal
Act.” Id. (citing Gorman, 488 F.3d at 594). Thus, the district court properly
dismissed the donning and doffing claims.
3. “Off the Clock” Activities
Lastly, Appellant seeks compensation for other activities including
“meetings with co-workers and receiving instructions from supervisors.”
Appellant relies only on vague testimony that employees sometimes received
job assignments from foremen during early relief. However, the district court
noted that one employee admitted that foremen “would not give instructions
before an employee punched in the time clock” and would not “talk to anybody
[at work] unless they came to [the foremen].” Employees also testified that
receiving instructions from foremen involved conversations that could last “a
minute” or “three minutes,” and in some cases, only three to four seconds.
Typically, any exchange of information or directions was limited to a
sentence—“I need you to go to C and D lines” or “You go to D Building.” Because
the time spent during these “off the clock” activities lasted between a few
seconds to at most three minutes, the district court properly concluded that
such time is de minimis. See Vega v. Gasper, 36 F.3d 417, 425 (5th Cir. 1994)
(receiving work assignment instructions from supervisors about where an
employee was going to work that day prior to the beginning of a shift was not
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compensable); Chambers v. Sears Roebuck & Co., 428 Fed. Appx. 400, 417 (5th
Cir. 2011) (receiving work assignments on the way to work is not compensable).
In sum, we find no error in the district court’s dismissal of FLSA claims
for shift relief practice, donning and doffing PPE, and off the clock activities as
de minimis and not compensable under FLSA.
C. Stuntz’s Individual FLSA Retaliation Claim
Stuntz individually appeals the district court’s determination that no
triable issue of fact exists as to his FLSA retaliation claims against Ashland
and Lion. We disagree with Stuntz’s contention as explained below.
FLSA makes it unlawful for an employer “to discharge or in any other
manner discriminate against any employee because such employee has filed
any complaint or instituted or caused to be instituted any proceeding under
this chapter.” 29 U.S.C. § 215(a)(3). “As with most federal employment statutes
that require a showing of improper motive for which direct evidence is usually
lacking, courts evaluate FLSA retaliation claims relying on circumstantial
evidence under the evidentiary framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” Starnes v. Wallace, 849 F.3d 627, 631 (5th Cir.
2017).
1. Stuntz’s Prima Facie Case
Under McDonnell-Douglas, the plaintiff first carries the burden of
establishing a prima facie case for retaliation. The plaintiff must show “(1)
participation in a protected activity under the FLSA; (2) an adverse
employment action; and (3) a causal link between the activity and the adverse
action.” Id. The parties do not dispute that Stuntz engaged in a protected
activity by filing the instant FLSA action in March 2014 against Defendants,
and Lion agrees that Stuntz’s termination is an adverse employment action.
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Ashland disputes whether Stuntz’s accumulation of verbal and written
warnings constitutes an adverse employment action. Stuntz maintains that
prior to his lawsuit, he was considered a top employee at Ashland. It was only
after Stuntz filed the FLSA action that Ashland began disciplining him for
conduct, such as being tardy and missing work due to illness, that went
without consequence in the past. Between the period of filing the FLSA action
and Lion’s purchase of the facility, Stuntz argues his accumulation of
disciplinary violations forced him to choose between signing a Last Chance
Agreement (“LCA”) or accepting immediate termination.
In response, Ashland contends that Stuntz had been disciplined before
he filed the grievance and FLSA action. In fact, in July 2011, Stuntz was
warned for two incidents of failing to show up to work and failing to contact his
appropriate supervisor. In December 2013, Ashland also issued a verbal
“performance correction notice” due to Stuntz’s failure to follow safety
procedures.
“We have held that adverse employment actions consist of ‘ultimate
employment decisions’ such as hiring, firing, demoting, promoting, granting
leave, and compensating.” Thompson v. City of Waco, Texas, 764 F.3d 500, 503
(5th Cir. 2014) (quoting McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th
Cir. 2007)). Stuntz critically does not dispute the factual findings in his written
warnings for violations of the Attendance Policy and safety procedures.
Moreover, the accumulation of these written and verbal warnings did not
result in an adverse employment decision; instead, Stuntz was given a last
chance to correct his workplace behavior through the LCA. See also Thomas v.
Texas Dep’t of Criminal Justice, 220 F.3d 389, 394 n.2 (5th Cir. 2000) (finding
two instances of formal discipline did not constitute an adverse employment
action); cf. Alston v. Miss. Dep’t of Transp., 804 F. App’x 225, 227 (5th Cir. 2020)
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(holding that plaintiff demonstrated an adverse employment action through
her “suspens[ion] without pay” instead of her three written reprimands
successively issued after she filed an internal grievance).
Because Stuntz cannot demonstrate that he suffered an adverse
employment action from Ashland, we need not examine the causal prong of the
McDonnel-Douglas prima facie case, and we affirm the district court’s
dismissal of Stuntz’s retaliation claim against Ashland. However, we still must
analyze the retaliation claim against Lion. Stuntz and Lion do not contest the
protected activity and adverse employment action prongs, leaving only the
causation prong of the McDonnel-Douglas prima facie case. Indeed, the prima
facie case’s causal link inquiry and pretext inquiry overlap, but the prima facie
case has a “much less stringent” causation standard. Starnes, 849 F.3d at 635.
To avoid repetitive analysis and “[b]ecause our review of the district court’s
decision is de novo,” we move on to our “analysis of whether [Lion] met its
burden to introduce evidence of a legitimate, nonretaliatory reason for
[Stuntz’s termination].” Hernandez v. Metro. Transit Auth. of Harris Cty., 673
F. App’x 414, 420 (5th Cir. 2016).
2. Legitimate, Non-Discriminatory Reason
To satisfy its burden of articulating a legitimate, nonretaliatory reason
for the adverse action, “[t]he defendant may meet this burden by presenting
evidence that ‘if believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment action.’” Nichols
v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 506–08 (1993)). Lion has met its burden by
pointing out that through a “no call/no show” violation on January 23, 2015,
Stuntz willfully violated his LCA, which was signed by the parties and included
an express condition of “immediate discharge” for any violation, “no matter
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how minor the infraction,” of “Company rules, policies and procedures,
including those relating to attendance.”
3. Pretext
Lion’s non-discriminatory reason for Stuntz’s termination shifts the
burden back to Stuntz to identify evidence from which a jury could conclude
that Lion’s proffered reason is a pretext for retaliation. See Fairchild v. All Am.
Check Cashing, Inc., 815 F.3d 959, 967 (5th Cir. 2016) (noting that the
employee “must put forward evidence rebutting each of the nondiscriminatory
reasons the employer articulates”). On appeal, Stuntz maintains that pretext
can be demonstrated based on (1) Lion’s alleged disparate treatment of fellow
employee Jonathan Moore, who violated similar attendance policies; (2)
disparaging remarks by Hardegree (Plant Manager) and Rogers
(Operations/Production Manager) that evidence animus toward Stuntz and his
FLSA action; (3) Lion’s failure to examine the medical reason behind Stuntz’s
failure to call in and report to work on January 23, 2015, and (4) the temporal
proximity of filing his FLSA action and termination.
First, Stuntz makes no argument as to why Jonathan Moore is similarly
situated “under nearly identical circumstances” for his comparator evidence of
disparate treatment. Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir.
2009) (explaining that this requirement is necessary because “employees who
have different work responsibilities or who are subjected to adverse
employment action for dissimilar violations are not similarly situated”) (citing
Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir.1991) and then citing
Smith v. Wal–Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir.1990)). As
the district court correctly observed, Moore, unlike Stuntz, was not subject to
an LCA at the time of his attendance policy violation and it was Moore’s first
violation. After Moore actually signed an LCA, Moore, like Stuntz, was
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terminated for violating a condition of the LCA. Thus, Stuntz’s claim of
disparate treatment as compared to Moore does not establish pretext.6
Second, Stuntz points to Rogers’ statements about the FLSA action
during negotiation meetings. However, Stuntz does not claim error, nor do we
find an abuse of discretion, in the district court’s determination that Rogers’
statements allegedly made during negotiation meetings and written down by
Lord (the human resources director) are inadmissible hearsay. The district
court also noted that Rogers clarified his comments later during a deposition,
explaining that he thought the FLSA action was “high profile” because of the
large presence of Union members. Stuntz also cannot rely on Hardegee’s one
out-of-context remark to demonstrate pretext because Hardegee explained
that the lawsuit did not “ma[ke him] behave any different [sic]” because he
“pride[d] [him]self on being able to separate personal and business.” Although
comments may demonstrate “pretext” if they “show retaliatory animus” and
“were made by the individual primarily responsible for the retaliatory
conduct,” Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 582 (5th Cir.
2004), the “value of such remarks is dependent upon the content of the remarks
and the speaker.” Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225–26
n.9 (5th Cir. 2000) (noting that animus and pretext were demonstrated
through the employers’ constant reference to an employee as “old bitch”).
Stuntz also fails to demonstrate that Hardegee was “principally responsible”
for Stuntz’s termination. Id. at 226.
Third, Stuntz argues Lion’s failure to use discretionary authority to
review his medical records and excuse the absence that led to his termination
6 To the extent that Stuntz maintains he was unpunished for prior misconduct
between 2011 and 2013 as further evidence of “disparate treatment,” the dates he relies on
predate Lion’s purchase of the plant facility in December 2014.
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is also evidence of pretext. The Attendance Policy explicitly states that “[t]he
procedures . . . allow for the Supervisors’ discretion and judgement in
evaluating individual situations,” but the policy also clearly notes that the
plant views “no call, no show” violations “as a more flagrant abuse” and “may
choose to administer more stringent discipline by skipping a discipline step(s).”
Even with this discretionary language and Stuntz’s multiple “no call, no show”
violations, the facility supervisors still gave Stuntz an LCA and written notice
of potential termination based on subsequent workplace violations.
Finally, for temporal proximity “to be persuasive evidence” of causation
and pretext, the time between the complaint and termination “must be very
close” especially when temporal proximity is offered “alone.” Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 807–08 (5th Cir. 2007). With temporal
proximity as his last chance to demonstrate pretext, Stuntz argues that his
protected activity began at the earliest on May 28, 2013 (the filing of the
grievance) and at the latest on March 21, 2014 (the filing of the FLSA action).
Stuntz’s discharge in January 2015 occurred ten months after the date he filed
the lawsuit. We have held that a “three and a half month time span” between
a complaint and termination failed to satisfy temporal proximity, id at 807,
and we hold the same here for Stuntz’s ten month time span. Cf. Garcia v.
Prof’l Contract Servs., Inc., 938 F.3d 236, 245 (5th Cir. 2019) (finding inference
of pretext when plaintiff demonstrated temporal proximity, disparate
treatment of a similarly situated employee, and harassment from a supervisor
after the company learned of the protected activity).
In sum, because there is no dispute that Ashland did not take an adverse
employment action and that Lion’s legitimate, nondiscriminatory reason for
terminating Stuntz was not pretextual, the district court properly granted
summary judgment in Defendants’ favor.
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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Defendants.
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