Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___ (2016)




NOTE:?Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U.?S. 321 .


TYSON FOODS, INC. v. BOUAPHAKEO et?al., individually and on behalf of all others similarly situated

Certiorari to the United States Court of Appeals for the Eighth Circuit

No. 14?1146.?Argued November 10, 2015?Decided March 22, 2016


Respondents, employees of petitioner Tyson Foods, work in the kill, cut, and retrim departments of a pork processing plant in Iowa. Respondents? work requires them to wear protective gear, but the exact composition of the gear depends on the tasks a worker performs on a given day. Petitioner compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities. Respondents filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous work and that petitioner?s policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). Respondents also raised a claim under an Iowa wage law. They sought certification of their state claims as a class action under Federal Rule of Civil Procedure 23 and certification of their FLSA claims as a ?collective action.? See 29 U.?S.?C. ?216. Petitioner objected to certification of both classes, arguing that, because of the variance in protective gear each employee wore, the employees? claims were not sufficiently similar to be resolved on a classwide basis. The District Court concluded that common questions, such as whether donning and doffing protective gear was compensable under the FLSA, were susceptible to classwide resolution even if not all of the workers wore the same gear. To recover for a violation of the FLSA?s overtime provision, the employees had to show that they each worked more than 40 hours a week, inclusive of the time spent donning and doffing. Because petitioner failed to keep records of this time, the employees primarily relied on a study performed by an industrial relations expert, Dr. Kenneth Mericle. Mericle conducted videotaped observations analyzing how long various donning and doffing activities took, and then averaged the time taken to produce an estimate of 18 minutes a day for the cut and retrim departments and 21.25 minutes for the kill department. These estimates were then added to the timesheets of each employee to ascertain which class members worked more than 40 hours a week and the value of classwide recovery. Petitioner argued that the varying amounts of time it took employees to don and doff different protective gear made reliance on Mericle?s sample improper, and that its use would lead to recovery for individuals who, in fact, had not worked the requisite 40 hours. The jury awarded the class about $2.9 million in unpaid wages. The award has not yet been disbursed to individual employees. The Eighth Circuit affirmed the judgment and the award.

Held:?The District Court did not err in certifying and maintaining the class. Pp.?8?17.

(a)?Before certifying a class under Rule 23(b)(3), a district court must find that ?questions of law or fact common to class members predominate over any questions affecting only individual members.? The parties agree that the most significant question common to the class is whether donning and doffing protective gear is compensable under the FLSA. Petitioner claims, however, that individual inquiries into the time each worker spent donning and doffing predominate over this common question. Respondents argue that individual inquiries are unnecessary because it can be assumed each employee donned and doffed for the same average time observed in Mericle?s sample.

Whether and when statistical evidence such as Mericle?s sample can be used to establish classwide liability depends on the purpose for which the evidence is being introduced and on ?the elements of the underlying cause of action,? Erica P. John Fund, Inc. v.Halliburton Co., 563 U.S. 804 . Because a representative sample may be the only feasible way to establish liability, it cannot be deemed improper merely because the claim is brought on behalf of a class. Respondents can show that Mericle?s sample is a permissible means of establishing hours worked in a class action by showing that each class member could have relied on that sample to establish liability had each brought an individual action.

Anderson v. Mt. Clemens Pottery Co., 328 U.?S. 680 , shows why Mericle?s sample was permissible in the circumstances of this case. There, where an employer violated its statutory duty to keep proper records, the Court concluded the employees could meet their burden by proving that they in fact ?performed work for which [they were] improperly compensated and .?.?. produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.? Id., at 687. Here, similarly, respondents sought to introduce a representative sample to fill an evidentiary gap created by the employer?s failure to keep adequate records. Had the employees proceeded with individual lawsuits, each employee likely would have had to introduce Mericle?s study to prove the hours he or she worked. The representative evidence was a permissible means of showing individual hours worked.

This holding is in accord with Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 , where the underlying question was, as here, whether the sample at issue could have been used to establish liability in an individual action. There, the employees were not similarly situated, so none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. In contrast, the employees here, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced Mericle?s study in a series of individual suits.

This case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the ability to use a representative sample to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, inferring the hours an employee has worked from a study such as Mericle?s has been permitted by the Court so long as the study is otherwise admissible. Mt. Clemens, supra, at 687. Pp.?8?15.

(b)?Petitioner contends that respondents are required to demonstrate that uninjured class members will not recover damages here. That question is not yet fairly presented by this case, because the damages award has not yet been disbursed and the record does not indicate how it will be disbursed. Petitioner may raise a challenge to the allocation method when the case returns to the District Court for disbursal of the award. Pp.?15?17.

765 F.?3d 791, affirmed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Roberts, C.?J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C.?J., filed a concurring opinion, in which Alito, J., joined as to Part II. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.