Get in that Chicken Suit! The Role of Facts Outside the Court Record in Appellate Review

The qualifications for a clerkship with a federal circuit judge are steep: high class ranking from a top law school, significant law review experience, recommendations from well-respected faculty, etc. Now another qualification may be added to that list: the ability to don and doff poultry sanitary gear in less than two minutes.

Such was the “experiment” performed by court staff at the United States Court of Appeals for the Seventh Circuit to help decide a case styled Mitchell v. JCG Industries, Inc. The majority opinion in that case, written by Judge Posner and joined by Judge Kanne, and its reference to that “experiment” has triggered a debate about whether and how appellate court judges should consider facts outside the court record in making their decisions. The lawsuit was brought by two employees of a poultry processing plant who claimed that their employer’s refusal to compensate them for the time they spent changing clothes before and after their lunch breaks violated an overtime provision of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

The employees were line workers who were required to stand next to a conveyor belt and perform various operations on chicken carcasses, such as deboning and evisceration, as each carcass arrived in front of him and her on the moving belt. For safety reasons, the employees were required to put on a sterilized jacket, plastic apron, cut-resistant gloves, plastic sleeves, earplugs and a hairnet. The employer required the employees to remove this gear at the start of their 30-minute lunch break and to put it back on before returning to work. The employees claimed that it took 10-15 minutes of their lunch break to change out of and back into this sanitary gear. The employer said it took only 2-3 minutes.

In his majority opinion, Judge Posner rejects the employees’ claim that their employer’s refusal to pay for the time it took to change clothes violated the Fair Labor Standards Act. Citing 29 C.F.R. § 785.19(a), the court holds that “bona fide meal periods are not worktime”. The court notes that the employees conceded that the lunch breaks, during which the clothes changing occurred, were “bona fide meal periods”. The appellate court also holds that the Act under 29 U.S.C.§ 203(o) excludes “any time spent in changing clothes” from the calculation of worktime.

Judge Posner’s opinion, however, then provides what he describes as “alternative” grounds in support of the decision. He indicates that the legal doctrine of de minimis non curat lex—the law doesn’t care about trifles—also would apply to the employees’ claims. This doctrine would apply under the Act when the “harm is small but measuring it for purposes of calculating a remedy would be difficult, time-consuming, and uncertain, hence not worthwhile given that smallness.”

The majority opinion in Mitchell holds that it is “inconceivable” that the employees’ wardrobe changes would consume a “substantial measure” of their lunch breaks. The problem, according to Judge Posner, is that the traditional trial process is ill-equipped to handle this issue:

The district judge did not opine on how long the donning and doffing take, a question difficult to answer in the usual way of judicial fact determination. 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? The plaintiffs could be filmed changing, but their incentive would be to dawdle; the company could doubtless find a few speed demons among the workers. The limitations of the trial process as a method of finding certain types of fact must be recognized.

This is not a new theme for Judge Posner. In his recent book, Reflections on Judging, Judge Posner argues that the traditional trial process has a “heavy emphasis on live testimony”; an “ungrounded faith in the ability of judges or jurors to determine ‘credibility’ from the body language and voice tones and hesitations of a witness”; and a “discomfort with empirical methodology”. These limitations, he contends, “makes it difficult for judges to gauge the consequences of deciding a case one way or the other”.

Judge Posner concedes in Reflections that appellate courts should not “make its decision turn” on a fact outside the court record unless that fact is “incontestable”. If the outcome of the case depends on contested facts, what he calls “adjudicative facts”, Judge Posner seems to agree in his book, albeit reluctantly, that the resolution of those facts should be left exclusively to the traditional trial process.

On the other hand, he argues in Reflections that appellate court judges should look outside the record for “background facts”. He explains that background facts are those “designed to increase the reader’s understanding of a case by placing the adjudicative facts in an illuminating context”. In other words, he says that background facts “make a judicial opinion come alive”. These types of facts, he writes in Reflections, are of “particular significance” with respect to the technological or commercial setting of a case.

Making a judicial opinion “come alive” is exactly what the Seventh Circuit does in Mitchell. Judge Posner notes in his majority opinion that the court had an “intuition” that the poultry workers’ changing out of and back into their sanitary gear could not have consumed half of their lunch break. To verify that intuition, the court put some of its staff to work:

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.

In her dissent, Chief Judge Wood was horrified. “I am 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.” She continues: “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.”

In response, Judge Posner argues that his “experiment” did not resolve any factual questions better left to the trial process:

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. (If it did, the lunch break might well not be bona fide; but as we said the plaintiffs do not argue that it is not bona fide.) The intuition is compelling; no reasonable jury could find that workers spend half their lunch break taking off and putting on a lab coat, an apron, a hairnet, plastic sleeves, earplugs, and gloves. What a reasonable jury could not find does not create a triable issue of fact.

Judge Posner argues that his “novel approach” simply confirms the de minimis nature of the wardrobe changes in this case. Or, to use the explanation from Reflections, the results of the experiment in chambers (i.e. background facts) simply “make” the “judicial opinion come alive”.

Of course, the line between background and adjudicative facts, as this case illustrates, can be a fuzzy one. Nevertheless, as Judge Posner concludes in Mitchell: “Common sense has a place in adjudication.”

You can find a link to the Seventh Circuit’s opinion in Mitchell v. JCG Industries, Inc. here.

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Kerri Forsythe

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