Judge wood cries “Fowl” on judge Posner’s chicken suit opinion

This case involves a claim by employees of a poultry processing plant in Chicago that the employer violated overtime provisions of federal and state law by not paying the employees for the time they take, before and after lunch breaks, to don and doff the sanitary protective clothing required for their jobs. The district court granted summary judgment for the employer and the employees appealed.

A key issue in the case was just how long the donning and doffing take. On appeal, Judge Posner observed that the question is “difficult to answer in the usual way of judicial fact determination [because the] plaintiffs would testify that it takes 10 to 15 minutes, the employer that it takes only 2 to 3 minutes, and how would a judge or jury know who was telling the truth?”

In that regard, Judge Posner noted that the “limitations of the trial process as a method of finding certain types of fact must be recognized.” But Judge Posner refuses to be limited by the trial process. Here is one approach to overcoming those limitations, in Judge Posner’s own words:

One of us decided to experiment with a novel approach. It involved first identifying the clothing/equipment that the defendant’s plants use and buying it (it is inexpensive) from the supplier. Upon arrival of the clothing/equipment three members of the court’s staff donned/doffed it as they would do if they were workers at the plant. Their endeavors were videotaped. The videotape automatically recorded the time consumed in donning and doffing and also enabled verification that the “workers” were neither rushing nor dawdling. The videotape reveals that the average time it takes to remove the clothing/equipment is 15 seconds and the average time to put it on is 95 seconds. The total, 110 seconds, is less than two minutes, even though the “actors” had never worked in a poultry processing plant and were therefore inexperienced donners/doffers of the items in question.

This was not “evidence”—the intention was to satisfy curiosity rather than to engage in appellate factfinding—but it is information that confirms the common sense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break.

In something of a preemptive defense of the above-described “chicken suit” experiment, Judge Posner said this:

Regarding the propriety of visual imagery in a judicial opinion, we note the Supreme Court’s reference in a footnote in its Sandifer opinion to a photograph in our opinion. The Court (which affirmed our decision unanimously) said: “the opinion of the Court of Appeals provides a photograph of a male model wearing the jacket, pants, hardhat, snood, gloves, boots, and glasses. 678 F.3d, at 593.” 134 S.Ct. at 874 n. 2. There is no note of disapproval, even though the photograph was not in evidence.

In any event, Judge Posner thinks of his approach as “[c]ommon sense . . . in adjudication.” Because the amount of time necessary to don and doff the “chicken suit” is de minimus so that the employer and the union must have “agreed not to count the tiny donning/doffing times as compensated work,” the court affirmed the entry of summary judgment in favor of the employer.

Judge Wood dissented, partly because she found the donning and doffing experiment “beyond the proper appellate role” by essentially taking a contested issue of material fact out of the process in the course of a summary judgment proceeding. In that respect, Judge Wood was “startled, to say the least, to think that an appellate court would resolve such a dispute based on a post-argument experiment conducted in chambers by a judge.” Judge Wood continued:

As the majority concedes, this cannot be considered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment proceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have already shown to be inconsistent with government regulations for hygiene within a meat processing plant.

Inasmuch as the case came before the court on a grant of summary judgment, Judge Wood found it significant that “the amount of time at issue is a question that must be developed at trial; no amount of common sense, internet research, or personal experience can substitute for that.”

Mitchell v. JCG Indus., Inc., 2014 WL 1027714 (7th Cir. 2014).