United States District Court, S.D. Indiana, Evansville Division
DECISION AND ORDER
WILLIAM C. GRIESBACH, CHIEF JUDGE [*] UNITED STATES DISTRICT COURT.
this lawsuit is relatively new, the history of this case
began in the Eastern District of Wisconsin in DeKeyser v.
ThyssenKrupp Waupaca Inc., No. 08-CV-488 (E.D. Wis.).
This case was brought by current and former employees of
Defendant Waupaca Foundry, seeking relief relating to time
spent changing into and out of work clothes and protective
gear as well as for time spent showering after their shifts
at Defendant's Wisconsin, Indiana, and Tennessee
facilities. On July 16, 2008, Defendant filed a motion to
dismiss, arguing (1) the FLSA preempted Plaintiffs'
Wisconsin state and common law claims; (2) there was no
private right of action to enforce record keeping violations;
(3) the complaint failed to state plausible causes of action
for unpaid wages under Wisconsin statutes; and (4) the
complaint failed to state a plausible cause of action for
breach of contract. The motion was granted as to the record
keeping claim but denied in all other respects.
case was conditionally certified in December 2008, and in
July 2012, the court granted Defendant's motion for
summary judgment, finding that Plaintiffs' time spent
engaging in on-site decontamination activities was not
compensable work under the FLSA. Plaintiffs appealed the
decision to the Seventh Circuit. In October 2013, the Seventh
Circuit reversed and remanded for further proceedings.
DeKeyser v. Thyssenkrupp Waupaca, Inc., 735 F.3d 568
(7th Cir. 2013) (DeKeyser I). On November 25, 2014,
the court issued a decision defining the legal standard it
would apply to determine whether donning and doffing clothing
and showering at Defendant's plants are activities
required by the nature of the work: “[t]o prevail at
trial, Plaintiffs must convince the finder of fact that
changing clothes and showering at work will significantly
reduce the risk to the health of the employee.”
Defendant filed a motion for reconsideration of the
court's November 25, 2014 order, arguing that the
court's legal standard was inconsistent with the Supreme
Court's recent decision in Integrity Staffing
Solutions, Inc. v. Busk, 574 U.S. ____, 135 S.Ct. 513
(2014). While the court recognized that the principles
discussed in Integrity Staffing applied to the case,
it found that the decision did not affect the legal standard
created by the court and denied the motion. Defendant
subsequently moved to certify an interlocutory appeal from
the court's decision denying reconsideration, which the
court denied on April 10, 2015.
March 31, 2016, the court granted Plaintiffs' motion to
certify the Wisconsin law claims as a class action and
granted-in-part and denied-in-part Defendant's motion to
decertify the previously conditionally certified FLSA
collective action. The court divided the FLSA class into
three sub-classes-Wisconsin workers, Indiana workers, and
Tennessee workers-and transferred the non-Wisconsin cases to
the appropriate districts. Defendant appealed the court's
certification decision to the Seventh Circuit pursuant to
Rule 23(f) of the Federal Rules of Civil Procedure. The
Seventh Circuit affirmed, finding that this court “did
not err in concluding that the plaintiffs have produced
common evidence tending to prove their common assertion, as
Rule 23 and section 216(b) require.” DeKeyser v.
ThyssenKrupp Waupaca, Inc., 860 F.3d 818, 922 (2017)
(DeKeyser II). On September 7, 2017, Plaintiffs
filed an amended complaint on behalf of the Wisconsin
plaintiffs in that case and separate complaints in the United
States District Court for the Southern District of Indiana on
behalf of the Indiana plaintiffs as well as in the United
States District Court for the Eastern District of Tennessee
on behalf of the Tennessee plaintiffs. The Indiana
plaintiffs' complaint asserts four causes of action:
violation of the Fair Labor Standards Act of 1938, failure to
pay wages in accordance with the Indiana Wage Payment
Statute, common law fraud, and common law unjust enrichment.
I was assigned to this case under a “borrowing and
lending” partnership entered into between the Southern
District of Indiana and the Eastern District of Wisconsin.
case is before the court on Defendant's motion to dismiss
Plaintiffs' complaint for failure to state a claim.
Specifically, Defendant contends (1) Plaintiffs' changing
and showering claims are noncompensable preliminary and
postliminary activities under the FLSA in light of the
Supreme Court's decision in Integrity Staffing;
(2) the FLSA preempts Plaintiffs' fraud and unjust
enrichment claims; (3) the IWPS preempts Plaintiffs'
unjust enrichment claim; and (4) Plaintiffs' fraud claim
fails as a matter of law. For the following reasons,
Defendant's motion will be granted in part and denied in
considering a motion to dismiss, the court construes the
allegations in the complaint in the light most favorable to
the plaintiff, accepts all well-pleaded facts as true, and
draws all inferences in favor of the non-moving party.
Estate of Davis v. Wells Fargo Bank, 633 F.3d 529,
533 (7th Cir. 2011). To state a cognizable claim under the
federal notice pleading system, the plaintiff is required to
provide a “short and plain statement of the claim
showing that [she] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). It is not necessary for the plaintiff to plead
specific facts and her statement need only “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). However, a complaint
that offers “labels and conclusions” or a
“formulaic recitation of the elements of a cause of
action will not do.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
555). To state a claim, a complaint must contain sufficient
factual matter, accepted as true, “that is plausible on
its face.” Id. (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
(citation omitted). “[T]he plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
current motion raises substantially similar arguments to
those asserted in its motion to dismiss and motion for
reconsideration filed in the Eastern District of Wisconsin in
DeKeyser v. Thyssenkrupp Waupaca Inc. In particular,
Defendant asserts that Plaintiffs' clothes changing and
showering claims fail as a matter of law under Integrity
Staffing. This court previously found in
DeKeyser that Integrity Staffing did not
effect the legal standard created by the court. No. 08-C-488,
ECF No. 529 at 4-5 (E.D. Wis.). Defendant also argues that
Plaintiffs' state common law claims are preempted by the
FLSA. This court denied this argument raised in
DeKeyser as well, noting that Plaintiffs' FLSA
and common law claims could coexist in the same action as
alternative theories of relief. Id., ECF No. 82 at
4-7. Plaintiffs assert that the law of the case doctrine
prevents Defendant from raising these issues in the instant
motion because the prior substantive decisions issued in
DeKeyser are binding to this case.
of the case doctrine “posits that when a court decides
upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case.”
Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 816 (1988) (quoting Arizona v. California,
460 U.S. 605, 618 (1983)); see also United States v.
Story, 137 F.3d 518, 520 (7th Cir. 1998). The doctrine
“promotes the finality and efficiency of the judicial
process by protecting against the agitation of settled
issues.” Id. (internal quotation omitted).
While the law of the case doctrine is not a “hard and
fast” rule, a party must argue that “an
intervening change in the law or other changed or special
circumstance warrants a departure.” Tice v.
American Airlines, Inc., 373 F.3d 851, 854 (7th Cir.
2004) (citation omitted). Here, the Seventh Circuit's
decision regarding certification did not discuss or mention
the issues raised in the instant motion to dismiss. Because
the Seventh Circuit did not decide these issues, the law of
the case doctrine does not apply. See Roboserve, Inc. v.
Kato Kagaku Co., Ltd., 121 F.3d 1027, 1032 (7th Cir.
1997) (“Law of the case is limited insofar as it
applies only to issues that were decided in the former
proceeding but not to questions which might have been decided
but were not.”). The court will now address the merits
of the motion.
contends Plaintiffs' FLSA claims, as they relate to
donning, doffing, and showering, fail as a matter of law
under Integrity Staffing. The issue in Integrity
Staffing was whether the time that plaintiff warehouse
workers spent waiting to undergo, and actually undergoing,
security screening required by the defendant at the ends of
their shifts was compensable by the FLSA. 135 S.Ct. at 515.
The Court began its analysis by noting that, under the
Portal-to-Portal Act, a principal activity includes all
activities that are “an integral and indispensable
part” of that activity. Id. at 517. It
concluded that an activity is “integral and
indispensable to the principal activities that an employee is
employed to perform if it is an intrinsic element of those
activities and one with which the employee cannot dispense if
he is to perform his principal activities.”
Id. Applying this test, the Court concluded the
security screenings were noncompensable postliminary
activities because they were not the principal activity the
employees were employed to perform. Id. It reasoned
that the employer-required screenings were not integral to
the work the workers were hired to perform, namely retrieving
products from warehouse shelves and packaging those products
for shipment, because they were not an intrinsic element of
those duties. Id. The Court also found that the
screenings were not indispensable because the employer could
have eliminated the screenings without impairing the
workers' ability to perform their work. Accordingly, the
Court concluded the security screenings were noncompensable
postliminary activities. Id.
asserts that in light of Integrity Staffing,
Plaintiffs' donning, doffing, and showering after their
shifts are noncompensable because they were not the principal
activity the workers were employed to perform, that is, to
make iron castings. But the mere fact that donning, doffing
and showering are not the principal activity the workers were
employed to perform does not mean they are not compensable.
Integrity Staffing did not overrule Steiner v.
Mitchell, 350 U.S. 247, 249, 251 (1956), which held that
where such activities are compelled by health concerns they
are compensable. Indeed, the Integrity Staffing
Court reaffirmed Steiner's holding that
activities related to workers safety do satisfy the
“integral and indispensable” test: “For
example, we have held compensable the time battery-plant
employees spent showering and changing clothes because the
chemicals in the plant were ‘toxic to human beings'
and the employer conceded that ‘the clothes-changing
and showering activities of the employees [were]
indispensable to the performance of their productive work and
integrally related thereto.'” Id. at 518
(alterations in original) (quoting Steiner, 350 U.S.
at 249, 251). In other words, changing and showering are
principal activities when the nature of the work creates a
significant risk to the workers' health and participating
in those decontamination activities reduces that risk.
Amended Complaint alleges that time spent showering after
their shifts is “necessary and indispensable to their
work, as the employees work with toxic or corrosive
chemicals, and are exposed to silica and other foundry dusts
that adhere to the skin and clothing, presenting a health
hazard to the employees and any family members who come into
contact with them.” Am. Compl. ¶ 160C, ECF No. 20.
To be sure, unlike Steiner, Defendant here contests
this allegation and claims that donning, doffing, and
showering are not necessary to reduce a serious health risk.
But the fact that Defendant contests Plaintiffs'
allegation is irrelevant at this stage of the proceedings. In
deciding a motion to dismiss, the court is required to accept
the well-pleaded allegations of the complaint. Estate of
Davis, 633 F.3d at 533. At this stage, the court cannot
simply reject Plaintiffs' allegations just because
Defendant denies them. Nor is the court inclined to limit
Plaintiffs' claim by holding that only end-of-shift
activities are compensable. Plaintiffs have stated a claim
under the FLSA, and that is enough to deny Defendants'
motion. As a result, Plaintiffs' FLSA claims will not be
dismissed. And because Plaintiffs' FLSA claims survive,
Defendant's Integrity Staffing challenge to
Plaintiffs' state law claims fail as well.
also asserts that Plaintiffs' state common law claims
fail as a matter of law. Defendant maintains that the FLSA
preempts Plaintiffs' fraud and unjust enrichment claims
because they are duplicative of the FLSA claim. Defendant
concedes the Seventh Circuit has not addressed the extent to
which the FLSA preempts state law claims. Def.'s Br. at
22, ECF No. 24. Instead, it argues that “district
courts in the Seventh Circuit have recognized that the FLSA
preempts duplicative state common law claims.”
Id. at 22-23 (citing DeMarco v. Nw. Mem.
Healthcare, 2011 U.S. Dist. LEXIS 88541 (N.D. Ill. Aug.
10, 2011); Deschepper v. Midwest Wine & Spirits,
Inc., 84 F.Supp.3d 767 (N.D. Ill. 2015); Richmond v.
Adv. Pain Consultants, S.C., 2015 U.S. Dist. LEXIS
109319 (N.D. Ill. Aug. 18, 2015); Kyriakoulis v. DuPage
Health Ctr., Ltd., 2011 U.S. Dist. LEXIS 63905 (N.D.
Ill. June 9, 2011); Farmer v. ...