United States District Court, E.D. Wisconsin
RYAN DEKEYSER, THOMAS COOPER, HARLEY GRANIUS, AND CARLOS LOPEZ, on behalf of themselves and others similarly situated, Plaintiffs,
THYSSENKRUPP WAUPACA, INC., d/b/a Waupaca Foundry, Inc., Defendant
Ryan DeKeyser, Thomas Cooper, Harley Granius, Carlo Lantz,
Plaintiffs: Anne T Regan, John Gordon Rudd, Jr, LEAD
ATTORNEYS, Zimmerman Reed PLLP, Minneapolis, MN; Kelly A
Lelo, T Joseph Snodgrass, LEAD ATTORNEYS, Shawn M Raiter,
Larson King LLP, St Paul, MN; Patricia Agnes Bloodgood,
Zwerling Schachter & Zwerling LLP, New York, NY.
Thyssenkrupp Waupaca Inc, doing business as Waupaca Foundry
Inc, Defendant: Joseph Louis Olson, Paul E Benson, LEAD
ATTORNEYS, Mitchell W Quick, Michael Best & Friedrich LLP,
AND ORDER GRANTING MOTION TO CERTIFY CLASS AND DENYING MOTION
TO DE-CERTIFY CLASS
C. Griesbach, Chief United States District Judge.
are past and current workers in Defendant Waupaca Foundry
Inc.'s iron foundries who seek to be paid for time spent
" donning and doffing" (changing into and out of)
work clothes and protective gear, and for time spent
showering after their shifts in facilities provided by
Waupaca. In 2012, I granted summary judgment in favor of
Waupaca on Plaintiffs' claims for unpaid wages and
overtime under the Fair Labor Standard Act and its
Wisconsin-law counterpart. ECF Nos. 427 & 437. The Seventh
Circuit reversed, concluding summary judgment was not proper
based on a factual dispute as to whether such changing and
showering were " required by the nature of the
work" in the foundries, and thus compensable under these
laws. DeKeyser v. Thyssenkrupp Waupaca, Inc., 735
F.3d 568, 571 (7th Cir. 2013).
case is back before me on Plaintiffs' motion to certify
the Wisconsin law claims as a class action under Federal Rule
of Civil Procedure 23, and on Waupaca's motion to
de-certify the previously " conditionally"
certified FLSA collective action, under 29 U.S.C. §
216(b). For the reasons below, Plaintiffs' motion will be
granted and Waupaca's motion granted-in-part and
case involves six iron foundries, three located in two plants
in Waupaca, Wisconsin (" Plant 1" and " Plant
2/3" ), and one located in each of the cities of
Marinette, Wisconsin (" Plant 4" ), Tell City,
Indiana (" Plant 5" ), and Etowah, Tennessee
(" Plant 6" ). Plaintiffs asserted the FLSA claims
on behalf of all " similarly situated" workers in
these foundries, and they asserted the Wisconsin law claims
on behalf of similarly situated workers in the Wisconsin
foundries. This Court previously conditionally certified a
collective action under the FLSA, 29 U.S.C. § 216(b),
based on a preliminary showing that the Plaintiffs were
indeed similarly situated to the proposed FLSA class members.
ECF No. 91 at 4 (describing two-step approach to
certification of FLSA collective action). The proposed class
(hereinafter " the FLSA class" ) was defined as all
non-exempt, hourly paid, production workers employed by
Waupaca at the six foundries at any time since December 18,
2005. ECF Nos. 91 at 9; 94 at 1. Notices were disbursed, 486
individuals opted into the FLSA class, and 4 subsequently
withdrew, leaving the FLSA class comprised of 482 current or
former workers. Def.'s Br. in Supp. of Mot. to De-Certify
at 3 & n.2, ECF No. 554. These workers perform many different
jobs in different departments of the foundries. Waupaca seeks
de-certification of the FLSA class.
oppose Waupaca's motion to decertify the FLSA class and
have filed their own motion to certify a Rule 23 class
including production workers in the four Wisconsin foundries.
Plaintiffs define the proposed class (hereinafter " the
Wisconsin class" ) as follows: " All persons who
are or were employed by Waupaca Foundry at any time after
June 4, 2006, as nonexempt, hourly paid, production employees
(defined as employees in the Millroom, Coreroom, Disa,
Shakeout, Melt, Maintenance, and Melt Maintenance
departments) at plants located in Waupaca, Wisconsin, or
Marinette, Wisconsin, and who are not or have not been paid
for their on-site donning, doffing, or showering." ECF
No. 547 at 1. Plaintiffs submit that this class includes
4,104 workers. Pls.' Br. in Supp. Mot. for Class Cert. at
15, ECF No. 438.
Wisconsin Class/Rule 23
A district court may certify a class of plaintiffs if the
putative class satisfies all four requirements of Federal
Rule of Civil Procedure 23(a)--numerosity, commonality,
typicality, and adequacy of representation--and any one of
the conditions of Rule 23(b)." Siegel v. Shell Oil
Co., 612 F.3d 932, 935 (7th Cir. 2010). The party
seeking certification bears the burden of demonstrating
compliance with Rule 23. Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d
374 (2011). Here, Plaintiffs seek certification under both
Rule 23(b)(2) and Rule 23(b)(3), discussed below.
Plaintiffs estimate the Wisconsin class includes more than
4,000 workers, the numerosity requirement (" the class
is so numerous that joinder of all members is
impracticable" ) is not in dispute.
commonality requirement is that " there are questions of
law or fact common to the class." Fed.R.Civ.P. 23(a)(2).
Even a single such common question is enough to satisfy Rule
23(a)(2), and the existence of a mixture of common and
individual questions presents an issue of whether common
questions " predominate" over individual questions
under Rule 23(b)(3), not an issue of commonality under Rule
23(a)(2). SeeWal-Mart Stores, 131 S.Ct. at
2556. At the same time, the Supreme Court has warned that
because any competently crafted class complaint literally
raises common ...