                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 13-2036
                       ___________________________

Maria Guyton; Dionicio Canuzal, on behalf of themselves and all others similarly
                            situated individuals

                     lllllllllllllllllllll Plaintiffs - Appellants

                                          v.

          Tyson Foods, Inc., doing business as Tyson Fresh Meats, Inc.

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                    Appeal from United States District Court
                  for the Southern District of Iowa - Davenport
                                 ____________

                          Submitted: February 11, 2014
                             Filed: August 25, 2014
                                 ____________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

      Maria Guyton and Dionicio Canuzal are employees of Tyson Foods, Inc. They
represent a class of employees at Tyson’s meat-processing facility in Columbus
Junction, Iowa. They sued Tyson for not paying wages due under the Fair Labor
Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., and the Iowa Wage Payment
Collection Law (IWPCL), Iowa Code 91A.1 et seq. A jury returned a verdict for
Tyson. The employees appeal. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.

                                        I.

       The employees are current and former “gang-time” employees at Tyson’s
facility. The background is similar to that in Lopez v. Tyson Foods, Inc., 690 F.3d
869, 873-75 (8th Cir. 2012) (adapted to the facts of this case):

      To calculate the employees’ compensable working time, Tyson measures
      “gang time”—when the employees are at their working stations and the
      production line is moving. The employees claim Tyson failed to provide
      FLSA overtime compensation for donning (putting on) personal
      protective equipment (PPE) and clothing before production and again
      after lunch, and for doffing (taking off) PPE and clothing before lunch
      and again after production. The PPE and clothing worn by individual
      employees vary depending on their role in the process. Tyson classifies
      items of PPE and clothing as either “unique” or “non-unique” to the
      meat-processing industry. . . . The employees also seek compensation
      for transporting the items from lockers to the production floor.

      In addition to “gang time,” Tyson adds “K-code” time to each
      employee’s paycheck. Before 2007, Tyson paid four minutes of K-code
      time per day to each [employee in a department where knives were used]
      in order to compensate for the donning and doffing of unique items.
      From [February] 2007 to March 2010, Tyson added [several minutes]
      per day for pre- and post-shift walking time required of the employee.
      Since March 2010, Tyson has paid 20 to [22] minutes per day in order
      to compensate for all contested activities. Tyson does not record the
      actual time that employees perform any of these tasks.

                                       ....

      The FLSA prohibits the employment of any person “for a workweek
      longer than forty hours unless such employee receives compensation for

                                        -2-
his employment in excess of the hours above specified at a rate not less
than one and one-half times the regular rate at which he is employed.”
29 U.S.C. § 207(a)(1); IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005). An
employee who sues for unpaid overtime “has the burden of proving that
he performed work for which he was not properly compensated.”
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946),
superseded by statute on other grounds, Portal-to-Portal Act of 1947,
Pub. L. No. 80-49, 61 Stat. 84; Fast v. Applebee’s Int’l, Inc., 638 F.3d
872, 881 (8th Cir. 2011). “Neither ‘work’ nor ‘workweek’ is defined in
the statute.” Alvarez, 546 U.S. at 25. At one time, the Supreme Court
defined work as “physical or mental exertion (whether burdensome or
not) controlled or required by the employer and pursued necessarily and
primarily for the benefit of the employer and his business.” Tennessee
Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598
(1944), superseded by statute on other grounds, Portal-to-Portal Act of
1947, Pub. L. No. 80-49, 61 Stat. 84. The Court then “clarified that
‘exertion’ was not in fact necessary for an activity to constitute ‘work’
under the FLSA.” Alvarez, 546 U.S. at 25, citing Armour & Co. v.
Wantock, 323 U.S. 126, 133 (1944).

Whether an employee’s activity is “work” does not end the
compensability analysis. In the Portal-to-Portal Act, Congress excluded
some activities that might otherwise constitute work from the FLSA.
The Act excepts two categories:

      (1) walking, riding, or traveling to and from the actual place of
      performance of the principal activity or activities which such
      employee is employed to perform, and

      (2) activities which are preliminary to or postliminary to said
      principal activity or activities, which occur either prior to the time
      on any particular workday at which such employee commences,
      or subsequent to the time on any particular workday at which he
      ceases, such principal activity or activities.

29 U.S.C. § 254(a); Alvarez, 546 U.S. at 26-28. “[A]ctivities performed
either before or after the regular work shift, on or off the production

                                   -3-
      line, are compensable . . . if those activities are an integral and
      indispensable part of the principal activities for which covered
      workmen are employed and are not specifically excluded by [29 U.S.C.
      § 254(a)(1)].” Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (emphasis
      added). And, “any activity that is ‘integral and indispensable’ to a
      ‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. §
      254(a)].” Alvarez, 546 U.S. at 37.

      The Department of Labor has a “continuous workday rule,” generally
      defining an employee’s “workday” as “the period between the
      commencement and completion on the same workday of an employee’s
      principal activity or activities.” 29 C.F.R. § 790.6(b); Alvarez, 546 U.S.
      at 29, 37 (describing and applying the continuous workday rule).
      During the continuous workday, the compensability of all activities that
      otherwise satisfy the requirements of the FLSA is not affected by the
      Portal-to-Portal Act’s exceptions. In Alvarez, the Supreme Court held
      that “during a continuous workday, any walking time that occurs after
      the beginning of the employee’s first principal activity and before the
      end of the employee’s last principal activity is excluded from the scope
      of [the Portal-to-Portal Act], and as a result is covered by the FLSA.”
      Alvarez, 546 U.S. at 37.

       The employees sued in 2007, claiming that Tyson’s K-code time was
insufficient to cover compensable pre- and post-production line activities, violating
the FLSA and IWPCL. The district court1 certified the FLSA claim as a collective
action and the IWPCL claim as a Rule 23 class action. The parties agree that the
elements are the same for both claims. The district court granted Tyson summary
judgment that pre- and post-production activities during a 35-minute meal period are
not compensable. On other claims, after an eleven-day trial, the jury returned a
verdict for Tyson. The verdict form contained the following question:



      1
       The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

                                         -4-
                                    Question No. 1

      Did the plaintiffs prove their FLSA and Iowa claims on a class-wide
      basis for pre-shift and/or post-shift donning and doffing of the items at
      issue in this case because:

             It is “work” within the
             meaning of the FLSA                 ______ YES ______ NO

             It is integral and indispensable
             to a principal activity,             ______ YES ______ NO
             such that it starts and ends
             the “continuous workday.”

      If your answer to both parts of Question No. 1 is “NO” then do not
      answer any more questions and sign the verdict form.

        The jury marked “Yes” to sub-part one, and “No” to sub-part two. In response
to later questions, the jury found that a de minimis exception did not apply, that
plaintiffs failed to prove damages, and that Tyson acted in good faith under 29 U.S.C.
§ 259(a). Plaintiffs appeal, arguing that the district court erred in submitting the case
to a jury, in denying plaintiffs judgment as a matter of law, in excluding documentary
evidence at trial, and in granting Tyson summary judgment on the meal-period claim.

                                           II.

      Plaintiffs argue that Tyson is estopped from re-litigating the compensability of
donning and doffing “unique” items related to knife use by IBP, Inc. v. Alvarez, 546
U.S. 21 (2005) and Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir. 1994). When
mutuality does not exist in a collateral estoppel claim, this court gives “deference to

                                          -5-
the district court’s evaluation of the overall fairness to the litigants.” Liberty Mut.
Ins. Co. v. FAG Bearings Corp., 335 F.3d 752, 757-58 (8th Cir. 2003). The Supreme
Court in Alvarez held that walking time to and from the production floor, after
donning “special safety gear,” was compensable. Alvarez, 546 U.S. at 34. See De
Asencio v. Tyson Foods, Inc., 500 F.3d 361, 371 (3d Cir. 2007) (“[T]he Court [in
Alvarez] could not have concluded that walking and waiting time are compensable
under the Portal-to-Portal Act if they were not work themselves.”). The court in
Reich ruled that time spent donning and doffing unique PPE associated with knife use
was compensable. Reich, 38 F.3d at 1127. It also ruled that time spent donning and
doffing non-unique gear was not compensable—“although essential to the job, and
required by the employer, any time spent on these items is not work.” Id. at 1126.

       Here, the class included all gang-time employees—those who used knives and
associated unique gear, and those who did not. Testimony showed that employees
rotated through knife and non-knife positions. At any time, 35 to 40 percent of
employees did not use knives. In their proposed verdict form and their expert’s
damages model, plaintiffs did not distinguish between those using knives and those
who did not. Post Reich and Alvarez, this court held that employees “bore the burden
of proving they performed uncompensated work” when “donning and doffing non-
unique items.” Lopez, 690 F.3d at 883. Since plaintiffs must prove their case on a
classwide basis, the district court did not err in failing to give Reich and Alvarez
preclusive effect. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2555 (2011)
(requiring evidence that plaintiffs’ claims “can be proved on a classwide basis” for
class certification).2


      2
       Plaintiffs similarly argue that Reich and Alvarez, together with the “continuous
workday” rule, render compensable the donning and doffing of non-unique gear.
This argument applies only to non-unique gear donned after, or doffed before, unique
gear. It thus suffers from the same “classwide basis” deficiency as the collateral
estoppel claim. See Dukes, 131 S. Ct. at 2555.

                                         -6-
       According to plaintiffs, the district court erred in letting the jury decide that
donning, doffing, and walking were not “integral and indispensable to a principal
activity,” citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) (“The
question whether their particular activities excluded them from the overtime benefits
of the FLSA is a question of law.”). See Jarrett v. ERC Props., Inc., 211 F.3d 1078,
1081 (8th Cir. 2000) (“Disputes regarding the nature of an employee’s duties are
questions of fact, but the ultimate question whether an employee is exempt under the
FLSA is an issue of law.”).

       At trial, plaintiffs did not object to letting the jury decide the “integral and
indispensable” claim, writing “no objection to sub-part two of Question No. 1” on
their response to the proposed verdict form.3 When a party fails to object to a jury
instruction, this court reviews for sufficiency of the evidence. Jarrett, 211 F.3d at
1081-82, applying Icicle Seafoods, 475 U.S. at 714. This court “will not reverse a
jury verdict for insufficient evidence unless ‘after viewing the evidence in the light
most favorable to the verdict, [it concludes] that no reasonable juror could have
returned a verdict for the non-moving party.’” Denesha v. Farmers Ins. Exch., 161
F.3d 491, 497 (8th Cir. 1998), quoting Ryther v. KARE 11, 108 F.3d 832, 836 (8th
Cir. 1997) (en banc). Testimony showed that for some positions all equipment could
be worn to and from home. Some equipment was optional, and could be worn for the
employee’s comfort at work. Many positions did not require protective gear
associated with knife use. Sufficient evidence existed that the disputed activities
were not integral and indispensable classwide.

      3
        Plaintiffs later petitioned the court to phrase sub-part two as, “It occurs during
the ‘continuous workday.’” The “continuous workday” is “the period between the
commencement and completion on the same workday of an employee’s principal
activity or activities.” 29 C.F.R. § 790.6(b). An activity that is “integral and
indispensable” to a principal activity is itself a principal activity. Alvarez, 546 U.S.
at 37. Under Alvarez, plaintiffs’ proposed wording of sub-part two is not
substantively different than the wording used by the district court in the final verdict
form.

                                           -7-
       Plaintiffs contend, “Such questions of law must be decided by the Court so that
the coverage of the statute applies equally across all Tyson plants through the
principles of stare decisis.” Plaintiffs previously opposed consolidated proceedings
against Tyson. There, plaintiffs stated: “While the Complaints in each of the
‘donning and doffing’ cases . . . contain similar allegations, . . . the factual similarities
are superficial. The cases . . . must be litigated on a plant-by-plant basis.” Plaintiffs
pointed to “types of personal protective equipment and clothing worn at the specific
plant . . . and local policies, practices, and procedure concerning unpaid time.”
Plaintiffs noted that time studies “at each specific plant location” would “take into
account the processing line configuration, locker room locations [and] walking
distances.” Memorandum of Plaintiffs at 4, In re: Tyson Foods, Inc., Meat
Processing Facilities Fair Labor Standards Act (FLSA) Litig., 581 F. Supp. 2d.
1374 (J.P.M.L. 2008). Based on plaintiffs’ claims, the plants are not so similar as to
prevent plant-specific litigation.

       Plaintiffs also attack the jury’s response to Question No. 1 as
inconsistent—that any activity found to be “work” must be “integral and
indispensable.” Plaintiffs did not object to the separation of “work” and “integral and
indispensable” in the sub-parts of Question No. 1. Nor did they object to the separate
definitions of “hours worked” and “integral and indispensable” in Jury Instruction
No. 5.4 At oral argument, plaintiffs acknowledged that these definitions distinguished
between activities that were “work” and activities that were “integral and

       4
        Jury Instruction No. 5 defines “hours worked” as “all time spent by an
employee that is . . . required by the employer and is done primarily for the benefit
of the employer.” On the same page, Instruction No. 5 states, “To determine whether
an activity is integral and indispensable, you must find that (1) the activity is required
by the employer; (2) the activity is necessary to the employee’s principal activities;
and (3) it is for the primary benefit of the employer” (emphasis added). According
to these instructions, the jury can find an activity was “work,” yet not “integral and
indispensable,” by finding it was not “necessary to the employee’s principal
activities.” Plaintiffs did not object to these parts of Instruction No. 5.

                                            -8-
indispensable.” Plaintiffs’ argument also ignores the Portal-to-Portal Act, which
allows some “work” to be non-compensable. Lopez, 690 F.3d at 874 (“Whether an
employee’s activity is ‘work’ does not end the compensability analysis. In the Portal-
to-Portal Act, Congress excluded some activities that might otherwise constitute work
from the FLSA.”). The district court properly ruled that the verdict was not
inconsistent.

                                         III.

       Plaintiffs claim that they deserve some damages as a matter of law, since knife-
users were not compensated for walking time until over a year after the Supreme
Court’s decision in Alvarez. True, individual damage calculations may vary among
class members. See Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013)
(allowing variation in damages unless “individual damage calculations . . .
overwhelm questions common to the class”); Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 687 (1946) (allowing damage calculations based on “just and
reasonable inference”). But, plaintiffs argue on appeal that the jury’s finding of no
damages is “only incorrect if the answer to Question 1 was erroneous as a matter of
law pursuant to Alvarez, Reich, or the weight of the evidence.” As discussed above,
the district court did not err in denying preclusive effect to Reich and Alvarez, and
sufficient evidence supported the jury’s finding that the disputed activities were not
“integral and indispensable” classwide. Even if the jury’s answer to Question No. 1
was erroneous as a matter of law, plaintiffs’ expert agreed that her study was a “rush
job,” and that her calculations did not distinguish between those using knives and
those who did not. Sufficient evidence supports a finding that plaintiffs failed to
prove damages for knife users.




                                         -9-
                                          IV.

       The jury found that Tyson acted in good faith under 29 U.S.C. § 259(a).
Plaintiffs believe that the trial court should have decided the good faith question as
a matter of law. See Hultgren v. County of Lancaster, Neb., 913 F.2d 498, 507-08
(8th Cir. 1990) (deciding a § 259 dispute as a matter of law); Cole v. Farm Fresh
Poultry, Inc., 824 F.2d 923, 926 (11th Cir. 1987) (“A court must also find that the
employer acted in actual conformity with and in reliance on the written agency
interpretation.”) (internal quotations omitted). But see Martinez v. Phillips
Petroleum Co., 283 F. Supp. 514, 527 (D. Idaho 1968) (“[T]he issue of good faith
is essentially a question of fact.”), aff’d, 424 F.2d 547, 548 (9th Cir. 1970) (affirming
“for the reasons stated by the district judge”). But cf. Jarrett, 211 F.3d at 1084
(finding that under 29 U.S.C. § 260, “a district court’s finding of employer good faith
in the face of a jury’s presumptively contrary finding . . . requires close scrutiny on
appeal”). However, the jury’s other findings—that the disputed activities were not
integral and indispensable, and that plaintiffs failed to prove damages—render any
error harmless.

       According to plaintiffs, allowing the jury to hear evidence on Tyson’s good
faith defense prejudiced their other claims. The jury was instructed on Reich and
Alvarez as part of the good faith claim, but were told this could “only be used by you
to decide the issues presented by the good faith defense.” “A jury is presumed to
follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000).

                                           V.

        Plaintiffs claim that the district court erred in excluding documentary evidence
at trial. Plaintiffs asked a witness about an amicus brief by the Department of Labor
in Alvarez, but the brief was not accepted into evidence. The district court found the
brief prejudicial, containing “every single thing . . . excluded” from trial. Review of

                                          -10-
evidentiary rulings is “highly deferential.” Lucas v. Jerusalem Cafe, LLC, 721 F.3d
927, 939 (8th Cir. 2013). Plaintiffs do not show an abuse of discretion in excluding
the written document.

                                          VI.

       Plaintiffs object to the district court’s grant of summary judgment that time
spent donning and doffing during a 35-minute meal period is not compensable.
Summary judgment is subject to de novo review, drawing all reasonable inferences
from the record in favor of the nonmoving party. Wenzel v. Missouri-American
Water Co., 404 F.3d 1038, 1039 (8th Cir. 2005). While “[i]n essence, a claim for
unpaid mealtime work is no different than other overtime claims,” Hertz v. Woodbury
Cnty., Iowa, 566 F.3d 775, 783 (8th Cir. 2009), this court uses a
“predominantly-for-the-benefit-of-the-employer standard” for mealtime claims under
the FLSA. Lopez, 690 F.3d at 881, citing Henson v. Pulaski Cnty. Sheriff Dep’t, 6
F.3d 531, 533-35 (8th Cir. 1993). Applying the predominant-benefit test to donning
and doffing claims, this court analyzes the “meal period as a whole.” Lopez, 690 F.3d
at 880-81 (approving a jury instruction: “Whether an employee is entitled to
mealtime compensation depends on whether the meal period as a whole was spent
‘predominantly for the benefit of the employer’ or whether the employee was able to
use the meal period effectively for his or her own purposes”) (emphasis added). See
Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 216 n.4 (4th Cir. 2009)
(“[T]he employees seek compensation for the time they spend during their lunch
breaks donning and doffing a few items, washing, and walking to and from the
cafeteria. This time is non-compensable, however, because it is part of a bona fide
meal period.”) (emphasis added); Perez v. Mountaire Farms, Inc., 650 F.3d 350, 372
(4th Cir. 2011) (applying Sepulveda).

       Plaintiffs rely on a different outcome in parallel proceedings against Tyson, but
the district courts there analyzed meal-period donning and doffing alone, rather than

                                         -11-
as part of the meal period as a whole. Gomez v. Tyson Foods, Inc., No. 8:08CV21,
2013 WL 7045055, at *11 (D. Neb. Feb. 11, 2013) (“When employees seek
compensation only for the time periods in which the acts of donning and doffing
occur, the court is not confronted with the issue of whether the entire meal period
predominately benefits the employer.”); Acosta v. Tyson Foods, Inc., No. 8:08CV86,
2012 WL 6552772, at *12 (D. Neb. Dec. 14, 2012) (“Any benefit that inures to the
employees in that they can dine without blood and meat products on their clothing is
vastly overshadowed by the benefits to the employer in maintaining a sanitary
production facility. The court finds that these donning and doffing activities
predominantly benefit the employer.”). Here, it is undisputed that the entire meal
period, other than a brief time spent donning and doffing, is uninterrupted.
Employees can wear much protective clothing in the cafeteria. The meal period as
a whole is for the benefit of the employees.

      Plaintiffs argue that the meal period is for Tyson’s benefit, as USDA inspectors
leave during this period and the production line is sanitized. The cause for the meal-
period is irrelevant—the effect of the meal-period for employees is decisive. See 29
C.F.R. § 785.19 (focusing on need of the employee to rest and eat during meal
periods). Summary judgment was appropriate that donning and doffing during the
35-minute meal period is not compensable.

                                    *******

      The judgment is affirmed.

      BEAM, Circuit Judge, concurring in the judgment.
                    ______________________________




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