The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JUSTIN BAUGHMAN, et al, on
:
behalf of himself and those
similarly situated
Plaintiffs, : Case No. 3:19-cv-8
v. JUDGE WALTER H. RICE
KTH PARTS INDUSTRIES, INC., :
Defendant.
DECISION AND ENTRY SUSTAINING DEFENDANT’S MOTION TO
DISMISS PLAINTIFFS’ DONNING AND DOFFING CLAIMS (DOC.
#31); DISMISSAL OF THESE CLAIMS IS WITHOUT PREJUDICE;
PLAINTIFFS GRANTED LEAVE TO FILE SECOND AMENDED
COMPLAINT WITHIN 14 DAYS OF THIS DECISION AND ENTRY
SUBJECT TO THE STRICTURES OF FED R. CIV. P. 11
Defendant, KTH Parts Industries, Inc, (“KTH”), has filed a “Partial Motion to
Dismiss Plaintiffs’ Donning and Doffing Claims,” Doc. #31, (“motion to dismiss”)
pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs have filed a response in opposition,
Doc. #39, KTH has filed a reply, Doc. #41, and Plaintiffs have filed a sur-reply, Doc.
#42. The matter is now ripe for consideration.
I. Allegations of the First Amended Complaint, Doc. #26
For purposes of ruling on KTH’s motion to dismiss, the factual allegations in
the First Amended Collective and Class Action Complaint for Violations of the Fair
Labor Standards Act and Ohio Law, (“First Amended Complaint”), Doc. #26, are
assumed to be true.
KTH is an Ohio corporation located in St. Paris, Ohio. It designs, develops
and manufactures automotive parts. Doc. #26, PageID#431. The work at KTH
begins with the processing of raw material in the blanking department followed
by laser welding, stamping, spot welding and delivery of the product. . Plaintiff,
Justin Baughman, (“Baughman”), worked at KTH in the position of crane operator
from approximately November, 2016 until March, 2018 and in KTH’s welding
department. ., PageID##430. Plaintiff, Austin Fields, (“Fields”) worked as a
production associate from approximately November, 2016 until August, 2018. .,
PageID#431. Both Baughman and Fields were hourly, non-exempt employees of
Defendant, as defined in the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C.
§§ 201, et seq., and as defined under the Ohio Constitution and state law.1
Plaintiffs bring the action individually as well as on behalf of other similarly
situated employees of KTH.
KTH compensated Plaintiffs and its hourly, non-exempt employees based
on their “scheduled shifts rather than for all of the time they are working.” ,
1 In addition to alleging violations under the FLSA, the First Amended Complaint also
alleges violations under the Ohio Minimum Fair Wage Standards Act, O.R.C. 4111.03
(“the Ohio Wage Act”); the Ohio Prompt Pay Act (“OPPA”), Ohio Rev. Code § 4113.15;
and Ohio’s Recordkeeping laws, Ohio Rev. Code §§ 4111.08, 4111.14(G) & (H), and Article
II, Section 34a of the Ohio Constitution (“Ohio’s Recordkeeping laws”). The alleged
violations of the Ohio Constitution and state law are referred to in the First Amended
Complaint collectively as “the Ohio Acts.”
PageID#434. Plaintiffs allege that they and other similarly situated employees
were denied overtime compensation for time spent donning and doffing personal
protective equipment (“PPE”). The relevant factual allegations concerning
Plaintiffs’ donning and doffing claims are set forth below.
19. When Plaintiffs and similarly situated employees arrived at the
worksite, they are required to put on personal protective equipment
(“PPE”) such as sleeves, gloves, eye protection, and a uniform. The
PPE is required for Plaintiffs and similarly situated employees to
perform their job duties and to encourage workplace safety. Donning
PPE is the first principal activity performed by Plaintiffs and other
similarly situated employees for each workday.
20. However, they have to don PPE prior to clocking in, so none of
that time is captured by Defendant’s timeclock system, resulting in
unpaid overtime compensation because it does not compensate its
employees for any such time.
., PageID##432-434.
After donning the PPE, the employee clocks in using a personal
identification code on the timeclock that is located immediately in front of the
factory floor door and begins work on the factory floor. ., PageID#433. After the
employees clock out, they are finished performing their job duties and exit the
factory floor. ., PageID#434. Plaintiffs allege that even though the employees
continue working beyond their scheduled shifts, as reflected on the time clock
records, they are only compensated for their scheduled shift. .
II. Standard of Review
Federal Rule of Civil Procedure 8(a) provides that a complaint must contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” The complaint must provide the defendant with “fair notice of what the. . .
claim is and the grounds upon which it rests.” , 550
U.S. 544, 555 (2007) (quoting , 355 U.S. 41, 47 (1957)).
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a
complaint on the basis that it “fail[s] to state a claim upon which relief can be
granted.” The moving party bears the burden of showing that the opposing party
has failed to adequately state a claim for relief. , 487 F.3d
471, 476 (6th Cir. 2007) (citing , 946 F.2d 451, 454-55 (6th Cir.
1991)). The purpose of a motion to dismiss under Rule 12(b)(6) Ais to allow a
defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief
even if everything alleged in the complaint is true.@ , 988 F.2d 635,
638 (6th Cir. 1993). In ruling on a 12(b)(6) motion, a court must “construe the
complaint in the light most favorable to the plaintiff, accept its allegations as true,
and draw all reasonable inferences in favor of the plaintiff.”
695 F.3d 531, 538 (6th Cir. 2012) (quoting , 487 F.3d at 476).
Nevertheless, to survive a motion to dismiss under Rule 12(b)(6), the complaint
must contain “enough facts to state a claim to relief that is plausible on its face.”
, 550 U.S. at 570. Unless the facts alleged show that the plaintiff’s claim
crosses “the line from conceivable to plausible, [the] complaint must be
dismissed.” Although this standard does not require “detailed factual
allegations,” it does require more than “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” at 555. “Rule 8 . . . does not
unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.@ , 556 U.S. 662, 678-79 (2009). Legal conclusions
Amust be supported by factual allegations@ that give rise to an inference that the
defendant is, in fact, liable for the misconduct alleged. . at 679.
III. Legal Analysis
A. Introduction
The issue before this Court is whether the First Amended Complaint alleges
a compensable donning and doffing claim under the FLSA and the Ohio Acts.
Defendant argues that Plaintiffs’ donning and doffing claim must be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) since the First Amended Complaint does not
allege that a law, a rule or the nature of the work require that the donning and
doffing need to occur on KTH’s premises and that it cannot be done at home. In
support of its motion to dismiss Plaintiffs’ donning and doffing claims, Defendant
cites to two cases from the Ninth Circuit, , 598 F.3d 1217
(9th Cir. 2010) and , 468 Fed. Appx. 773 (9th Cir. 2012).
Defendant argues that these two cases and a May 31, 2006, Department of Labor
(“DOL”) memorandum, (“2006 DOL Memorandum”), cited in , require
dismissal of these claims.
In response to Defendant’s motion, Plaintiffs assert that they have a
compensable donning and doffing claim under the FLSA and that KTH’s case
authority is “non-binding” on this Court and predates the Supreme Court
“integral and indispensable test” announced in
, 574 U.S. 27, 36, 135 S.Ct. 513, 519 (2014). They argue that Defendant’s
motion should be overruled, because their First Amended Complaint alleges that
(1) after they arrive at KTH they are required to put on PPE2; (2) the PPE is required
to perform their job duties and to encourage workplace safety; and (3) the
donning and doffing of the PPE was “integral and indispensable” to their principal
employment activities. Doc. #26, PageID##432, 435, 439. They further contend that
29 C.F.R. § 1910.132, the federal regulation regarding compliance with the
Occupational Safety and Health Administration (“OSHA”) of the DOL, requires
PPE. Finally, they argue that KTH’s argument that the donning and doffing must
occur at the worksite imposes a “heightened standard” in pleading that is not
required.
For the reasons set forth below, the Court sustains Defendant’s motion to
dismiss Plaintiffs’ donning and doffing claim and grants Plaintiffs leave to amend
their Complaint within 14 days of the filing of this Decision and Entry, subject to
the strictures of Fed. R. Civ. P. 11.
2 Plaintiffs allege that the PPE consists of “shoes, gloves, eye protection and a uniform.”
Doc. #26, PageID#432.
B. To State a Donning and Doffing Claim Upon Which Relief Can be
Granted Under the FLSA and Ohio Law, a Plaintiff Must Allege Facts
that the PPE Can Only be Donned and Doffed at Work and Not at Home
and that the Required PPE is Not “Clothing,” as Defined by
571 U.S. 220 (2014)
The FLSA requires employers to pay employees for each hour worked in
excess of 40 hours per week at a rate of one and a half times the employees’
regular wages, 29 U.S.C. § 207(a). Because “work” was not defined by Congress
in the FLSA and was interpreted broadly by the courts, the FLSA was amended in
1947 by the Portal-to-Portal Act, 29 U.S.C. § 251 et seq. Under this amendment,
employers are exempted from overtime liability for employee activities that are
considered preliminary to or postliminary to the employee’s principal activity or
activities. , 574 U.S. at 32-33. Despite this amendment, donning
and doffing claims can be compensable under the FLSA.
In , 350 U.S. 247, 252–253, 76 S.Ct. 330 (1956), the
Supreme Court considered a donning and doffing claim involving workers in a
battery production plant. As a result of their work, the employees were exposed
to toxic and caustic material and were required to shower and change clothes at
the end of each shift. The Court held that “activities performed either before or
after the regular work shift, on or off the production line, are compensable under
the portal-to-portal provisions of the Fair Labor Standards Act, if those activities
are an integral and indispensable part of the principal activities . . .” . at 256. The
Supreme Court concluded that “it would be difficult to conjure up an instance
where changing clothes and showering are more clearly an integral and
indispensable part of the principal activity of the employment than in the case of
these employees.” . Similarly, in ., 350 U.S. 260
(1956), the Court found that time spent by slaughterhouse employees to sharpen
knives before or after work or during their lunch break was integral and
indispensable to their principal activities and compensable under the portal-to-
portal provisions of the FLSA.
In 2014, the Supreme Court decided and examined
whether a work activity that involved security screenings for hourly warehouse
workers that occurred post-shift were “integral and indispensable” and thus
compensable under the FLSA, as amended by the Portal-to-Portal Act. In
reversing the Ninth Circuit and holding that the security screenings were
”noncompensable postliminary activities,” the Court stated that security
screenings were not “an intrinsic element of retrieving products from warehouse
shelves or packaging them for shipment. And Integrity Staffing could have
eliminated the screenings altogether without impairing the employees' ability to
complete their work.” . at 35. The Supreme Court noted that “focusing on
whether an employer required a particular activity” or whether the activity “is for
the benefit of the employer” was error. . at 36.3
3 In ., 619 F.3d 604 (6th Cir. 2010), a case involving donning and
doffing of mandatory food safety uniforms, protective equipment and for time spent
walking to and from the changing area and time clock, the Sixth Circuit adopted a three-
part test to determine if the employee’s activity was “integral and indispensable.” The
Plaintiffs argue that because they have pled that the donning and doffing of
the PPE is required by KTH and is “integral and indispensable” to their activities
as employees, they have stated a donning and doffing claim under the FLSA.
Under 29 U.S.C. § 203(o)4 of the FLSA, however, time spent putting on “clothes” is
excluded from the definition of “work,” unless it is agreed to in a collective
bargaining agreement. As an exclusion under the FLSA, Plaintiffs bear the
burden of proof. ., 619 F.3d at 611-612 (because the
“changing clothes” provision is under the definitions set forth in § 203, the
plaintiff bears the burden to prove that the time should not be excluded under §
203(o)).
In ., 571 U.S. 220, 134 S.Ct. 870 (2014), the Court
examined the meaning of § 203(o) of the FLSA and the issue of whether PPE was
“clothing.” The plaintiff argued that due to hazards at the steel plants they were
required to wear PPE and were entitled to backpay for the time spent donning and
doffing this equipment. U.S. Steel contended that the donning and doffing of PPE
constituted “changing clothes” under the FLSA and was excluded by a custom or
test included whether the employer required or benefitted from the employee activity,
two parts later rejected by . The only part of the test that
remains after is whether an activity is “necessary” for an employee to
complete their duties.
4 § 203(o) Hours Worked.— In determining for the purposes of sections 206 and 207 of
this title the hours for which an employee is employed, there shall be excluded any time
spent in changing clothes or washing at the beginning or end of each workday which was
excluded from measured working time during the week involved by the express terms of
or by custom or practice under a bona fide collective-bargaining agreement applicable to
the particular employee.
practice of non-compensation in connection with the collective-bargaining
agreements. In affirming the defendant’s motion for summary judgment, the
Supreme Court held that time spent by steelworkers in the donning or doffing of
their flame-retardant jacket, pants, hood, hardhat, snood, wristlets, work gloves,
leggings, and metatarsal boots, “the protective gear at issue,” “qualifies as
‘changing clothes’ within the meaning of § 203(o).”5 . at 879
In , 598 F.3d 1217, a case relied upon by KTH, police officers
sought compensation for uniforms and related gear that were donned and doffed
at home. They argued that the donning and doffing was integral and
indispensable to their principal activities as police officers. The district court
granted the defendant’s motion for summary judgment and the Ninth Circuit
affirmed finding that the plaintiffs donning and doffing claim was not
compensable pursuant to the FLSA as amended by the portal-to-portal provisions.
In reaching its decision, the court relied on a 2006 DOL Memorandum
finding that it was entitled to deference under ., 323 U.S.
134, 65 S.Ct. 161 (1944) (rulings, interpretations and opinions of the Administrator
under the FLSA, while not controlling, “constitute a body of experience and
5 The Court in determined that glasses, earplugs and a respirator were not
“clothing” but agreed with the District Court that ”’the time expended by each employee
donning and doffing’ safety glasses and earplugs ‘is minimal,’ (citation omitted).” . at
235-236. The Court also agreed with the District Court that respirators “‘are kept and put
on as needed at job locations’ which would render the time spent donning and doffing
them part of an employee's normal workday and thus beyond the scope of § 203(o).” .
informed judgment to which courts and litigants may properly resort for
guidance.”). . at 140. The 2006 DOL Memorandum stated that
donning and doffing of required gear is within the continuous
workday only when the employer or the nature of the job mandates
that it take place on the employer's premises. It is our longstanding
position that if employees have the option and ability to change into
the required gear at home, changing into that gear is not a principal
activity, even when it takes place at the plant.
Wage & Hour Adv. Mem. No.2006–2, at 3 (May 31, 2006). . at 1228; See , 468
Fed. Appx. 773, 774 (“[W]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations,”(citation omitted), the plaintiffs
failed to cure the defects in their second amended complaint and “did not state
whether the donning and doffing of their uniforms and safety equipment at work
was required by ‘law, rule, their employer, or the nature of their work.’”).
Based upon the above analysis, Plaintiffs have failed to state a donning and
doffing claim upon which relief can be granted. Although Plaintiffs allege that
when employees arrive at KTH “they are required to put on personal protective
equipment (“PPE”) such as sleeves, gloves, eye protection, and a uniform” and
that the PPE is “required for Plaintiffs and similarly situated employees to perform
their job duties and to encourage workplace safety,” these are conclusory
allegations. , 550 U.S. at 555. Without more facts, Plaintiffs’ PPE, with
the possible exception of the “eye protection,”6 constitutes “clothing” and is non-
compensable as clothing under § 203(o). , 571 U.S. at 234-235. Plaintiffs’
6 n. 4.
response in opposition argues that OSHA requires businesses such as KTH to
have its employees wear PPE when the workplace is determined to be hazardous
or likely to be hazardous. Doc. #39, PageID#653. Plaintiffs’ First Amended
Complaint, however, alleges no facts in support of this assertion. Moreover,
under the 2006 DOL Memorandum, to which the Court gives deference,
., 532 (6th Cir. 2017) ( deference given to DOL Field
Operations Handbook), even assuming that the PPE is not ordinary “clothing”
under and § 203(o) analysis, Plaintiffs must still allege facts establishing
that the donning and doffing of the PPE, the “required gear” in the DOL 2006
Memorandum, cannot be done at home. ,
, Case No. 2:18-cv-212, 2019 WL 1255551 (S.D. OH March 19, 2019)
(C.J. Marbley) (dismissing amended complaint without prejudice for failing to
allege that defendants require employees to wear PPE different from ordinary
clothing and that it can only be donned and doffed at the workplace).
Finally, although Defendant only asserts a motion to dismiss Plaintiffs’
donning and doffing claim under the FLSA, the Court finds that Plaintiffs’ donning
and doffing claim under Ohio law, O.R.C. § 4113.03, the Ohio Wage Act, is also
subject to dismissal for failure to state a claim. Under O.R.C. § 4111.03, employers
are required to pay employees overtime compensation “in the manner and
methods provided in and subject to the exemptions of section 7 and section 13 of
the ‘Fair Labor Standards Act of 1938,’ ... .” O.R.C. § 4111.03
(emphasis added). Although Ohio has not formally adopted the portal-to-portal
provisions of the FLSA, the Portal-to-Portal Act is an amendment to Section 7 of
the FLSA and thus binding upon Ohio law. /ntegrity Staffing, 574 U.S. at 29.
IV. Conclusion
For the reasons set forth above, Defendant’s Motion to Dismiss Plaintiffs’
Donning and Doffing Claims, Doc. #31, is SUSTAINED. All other claims alleged in
the First Amended Complaint, Doc. #26, under the FLSA and the Ohio Acts,
remain pending.
The Court's dismissal of Plaintiffs’ federal and state donning and doffing
claims in the First Amended Complaint, Doc. #26, is without prejudice to the filing
of a Second Amended Complaint within 14 days of this Decision and Entry,
subject to the strictures of Fed. R. Civ. P. 11.
Date: March 31, 2021 Ecol tena? =. Soe revit Jade Meeaethonaton □□□□
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
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