SUSAN WEBBER WRIGHT, District Judge.
Plaintiff Thomas J. Musticchi, a police officer within the City of Little Rock, Arkansas Police Department ("LRPD"), brings this collective class action against the City of Little Rock ("City") pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., for the alleged failure of the City to pay LRPD officers properly time and one-half their regular rates of pay for all hours worked in excess of forty hours per week. Before the Court is the City's motion for summary judgment and Plaintiff's motion for partial summary judgment. After careful consideration, and for the reasons that follow, the Court grants the City's motion for summary judgment except as to the travel time and meal break claims. The Court will withhold ruling on those claims until Plaintiff has had an opportunity to file a brief in response to Defendant's motion for summary judgment on those claims. The Court denies Plaintiff's motion for partial summary judgment and motion for voluntary dismissal.
The LRPD requires patrol officers to wear a "Class B" uniform compromised of the following elements: an undershirt or turtleneck, a uniform shirt, ballistic vest, shoulder patch, shoes or boots, trousers, socks, badge, name tag and a Sam Browne duty belt. Along with their uniform officers are required to have certain equipment items which attach to their duty belt including a gun holster, gun, ammunition, ammunition holders, clips, or magazines, handcuffs, handcuff case, tear gas canister, baton ring, radio, and a radio case. The LRPD requires officers to keep their uniforms neat, clean and in good repair but gives the individual officer discretion as to
Plaintiff bring this lawsuit individually and on behalf of all other similarly situated individuals, charging that officers worked in excess of forty (40) hours without receiving overtime compensation since they were not paid for donning and doffing their uniform at the beginning and end of every shift. Plaintiffs also allege that officers are entitled to overtime for maintaining equipment including but not limited to polishing their shoes and duty belts, maintaining their duty weapons and ballistic vests and for the cleaning of their safety vests and radios. Plaintiffs claims that Defendant was well aware that officers were spending large amounts of time performing primary work duties without receiving compensation. Plaintiffs allege that this violates the FLSA. By way of relief, Plaintiffs seeks compensatory damages and court and attorney's fees.
Defendant moves for summary judgment with respect to Plaintiffs' claims pursuant to § 201 on the grounds that donning and doffing the uniform and its maintenance are preliminary and postliminary activities and therefore are not compensable under the Portal-to-Portal Act, 29 U.S.C. § 251, et. seq. Defendant further alleges that changing into and out of the uniform is not compensable under 29 U.S.C. § 203(o) and that certain activities performed by officers are de minimis and therefore not compensable. Finally, Defendant alleges that the statute of limitations precludes recovery by certain individual plaintiffs.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party may not rest on mere allegations or denials of his pleading but must "come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)).
"[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir.1995). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citations omitted).
The FLSA requires that "employers must pay employees for all hours
The Supreme Court first addressed whether the donning and doffing of a uniform is compensable in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). During the course of performing their job, workers in a battery plant were exposed to toxic materials and therefore were "compelled by circumstances, including vital considerations of health and hygiene to change clothes and to shower in facilities which state law requires their employer to provide." Id. at 248, 76 S.Ct. 330. Since showering and changing were "integral" and "indispensable" to the workers' principal activity the Supreme Court held that they were entitled to compensation for the activities under the FLSA. Id. at 256, 76 S.Ct. 330.
The issue of whether an employee must be compensated for changing was further addressed by the Ninth Circuit in Alvarez, supra. Workers at a meat processing plaint were required to change into their specialized protective clothing and safety gear in locker rooms on the plant's premises. The Ninth Circuit held that since "the donning and doffing of this gear on the ... plant's premises is required by law, by rules of IBP, and by the nature of the work, this donning and doffing is necessary to the principal work performed." Alvarez, 339 F.3d at 903. (internal quotation marks omitted). The court added that in order for an activity to be considered "integral and indispensable" it must be done for the benefit of the employer and be necessary for the principal work the employee performs. Id. at 902-03.
Following Steiner, the Department of Labor ("DOL") issued guidelines discussing when the changing of clothes is integral to an employee's activity and therefore compensable under the Portal-to-Portal Act. The DOL stated that:
29 C.F.R. § 790.8(c) (footnote references and internal quotation marks omitted). While this policy statement is not entitled to deference it is entitled to respect so long as it has the "power to persuade." Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).
Neither the Eighth Circuit nor any district court in the Eight Circuit has addressed
Neither the law nor the LRPD requires officers to change at the station. Instead, the LRPD gives officers the option to change at home or at changing facilities provided by the LRPD. However, most officers choose to don and doff at home. Def's. Mot. Summ. J., Ex. B (Thomas Aff.) at ¶ 11. Plaintiff argues that the uniform is an integral and indispensable element of being a patrol officer and that the changing of the uniform is done for the benefit of the LRPD. However, Plaintiff can show no evidence why the process of donning and doffing of the uniform and safety equipment must be done at work in order to ensure that an officer can effectively do his job. Undoubtedly, the requirement of showering and changing at work in order to preserve health and safety, see Steiner 350 U.S. at 247, 76 S.Ct. 330, and the donning and doffing of specialized equipment at work for sanitation purposes, see Alvarez, 339 F.3d at 903, are an integral and indispensable part of the principal activity. These requirements are not only mandated by law but were done for the benefit of the employer and employee. In comparison, the process of LRPD officers donning and doffing the uniform at work does not ensure compliance with the law or give any benefit to the employer. Instead, officers acknowledge that when they or their fellow officers do choose to change at the station they primarily do so for their own benefit. See Def's. Mot. Summ. J., Ex. F (Musticchi Dep. 34:11-19)(gun belt uncomfortable to put on at home, tears up the seat in his car;) Ex. H (Winfrey Dep. 21:22, 22:1-5)(don and doff after using the station gym). Cf., Bamonte, 598 F.3d at 1226 (officers "urged compensability primarily for reasons that were of sole benefit to employee").
While Plaintiff also argues that the LRPD restricts officers' travel once they are in uniform this fact is also not persuasive. Officers are not precluded from changing at the station and may do so if they want to go out into the community after their shift. In addition, if an officer performs law enforcement duty while traveling to and from work while in their uniform they are entitled to overtime compensation. See Def's. Mot. Summ. J., Ex. B (Thomas Aff.) at ¶ 15.
In making his argument Plaintiff heavily relies on Lemmon v. City of San Leandro, 538 F.Supp.2d 1200 (N.D.Cal.2007) and Nolan v. City of Los Angeles, 2009 U.S. Dist. LEXIS 70764 (C.D.Cal.2009). However, the Court not only believes that the
Furthermore, compensating LRPD officers for donning and doffing uniforms would greatly undermine the purpose of the Portal-to-Portal Act as stated in 29 U.S.C. § 251:
Considering whether the officers are required to change at their employer's is consistent with Congress' purpose in passing the Portal-to-Portal Act because it protects the LRPD from suddenly being forced to compensate the officers. See, Bamonte, 598 F.3d at 1231. In the present case, Plaintiff seeks windfall payments for donning and doffing, an activity that is beyond what was agreed to between the City and Fraternal Order of Police. Compensating the officers would not only interfere with this voluntary collective bargaining agreement but it would also create great uncertainty for the City with the potential to greatly deprive the Public Treasury. Therefore, this type of case is a perfect example of the type of claim that Congress wanted to avoid when they enacted the Portal-to-Portal Act.
Aside from the Portal-to-Portal Act, Defendant argues that the City is entitled to summary judgment pursuant to 29 U.S.C. § 203(o). This section excludes from the definition of hours worked "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 agreement applicable to the particular employee." 29 U.S.C. § 203(o)(2007). Thus, as the Supreme Court has stated, even if changing clothing was integral and indispensable to an employee's work and therefore compensable under the Portal-to-Portal Act, an employer can opt out of paying for such activity pursuant to their collective bargaining agreement. Livadas v. Bradshaw, 512 U.S. 107, 113, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994).
The City recognizes the Fraternal Order of Police, Lodge #17 ("FOP") as the exclusive representative agent for purposes of collective bargaining to establish wages, benefits, grievance procedures, and other conditions of employment for LRPD officers. Def's. Mot. Summ. J., Ex. A (Gilchrist Aff.) at ¶ 4-5. For over 30 years the City has not compensated officers for donning and doffing their uniforms or safety equipment. Id., Ex. B (Thomas Aff.) at ¶ 18.
Clothes as used in § 203(o), encompasses the entire uniform worn by LRPD officers with the possible exception of safety equipment. The Eighth Circuit has not addressed whether "changing clothing" includes safety gear. However, other circuits have addressed the question of whether safety gear ought to be encompassed by the term clothing. The Ninth Circuit in Alvarez held that safety gear does not "plainly and unmistakably fit within § 203(o)'s clothing term. 339 F.3d at 905."
The Court agrees with the interpretation of clothing as set forth by the DOL and the Fifth, Eleventh and Fourth Circuits and finds that clothes as used in § 203(o) includes safety equipment.
For the past 32 years the City has not compensated officers for donning and doffing their uniform and equipment. Defendant argues that regardless whether this issue has been raised during negotiations a custom or practice of not compensating officers for changing has been established.
While the Eighth Circuit has not directly addressed the issue whether the parties must raise a matter in negotiations in order to establish a custom, it has acknowledged that:
Several other circuits are in agreement that a custom or practice can be established through acquiescence. In Turner v. City of Philadelphia, 262 F.3d 222 (3rd Cir.2001), the Third Circuit found that even though correctional officers had not raised the issue of compensation for donning and doffing, a custom had nevertheless been established through "a prolonged period of acquiescence," as the Department of Correction had a 30-year-old policy of non-compensability. The Eleventh Circuit came to a similar conclusion in Anderson, supra, holding that a ten-year practice of not compensating employees for changing clothes "satisfies the custom or practice requirement." Anderson, 488 F.3d at 959. Finally, the Fifth Circuit in Allen v. McWane, Inc, 593 F.3d 449 (5th Cir.2010), held that regardless of whether the parties had negotiated over-payment for changing clothes, acquiescence for non-payment can occur over a long period of time.
The Court finds that such acquiescence has occurred in this case. It is undisputed that since at least 1978 Statements of Agreement have been in place between the City and the FOP and that these agreements govern wages, benefits, grievance procedures and other conditions of employment. In addition, it is undisputed that since 1978, a period of over 32 years, the City has not compensated police officers for donning and doffing police uniforms and safety equipment. Furthermore it is clear that during negotiations for the past three Statements of Agreement, a period of ten years, the FOP has never requested compensation for donning and doffing the uniform and safety gear. Absence of negotiation over compensation for donning and doffing does not equate to ignorance of the policy and instead suggests that officers have acquiesced to the practice. See Anderson, 488 F.3d at 959. Plaintiff also argues that there has not been acquiescence by LRPD officers because officers sued over similar issues in Treece v. City of Little Rock, 923 F.Supp. 1122 (E.D.Ark.1996). However, Plaintiff misconstrues the issues in that case, as the officers in Treece did not sue over donning and doffing of uniforms and safety equipment. Therefore, the Court finds that a period of 32 years of non-compensability for changing into and out the uniform is sufficient to establish a custom or practice.
Since uniforms and protective gear constitute clothes and because there is a custom of non-payment for changing into and out of uniforms under a bona fide collective bargaining agreement, Defendant is entitled to summary judgment pursuant to § 203(o).
The Supreme Court has long recognized that employees are not entitled to
The Second Circuit has recognized that "indispensable is not synonymous with integral. Indispensable means necessary.... Integral means, inter alia, essential to completeness; organically joined or linked composed of constituents parts making a whole." Gorman v. Consolidated Edison Corp. 488 F.3d 586, 592 (2d Cir.2007)(internal quotations and citations omitted). The court added that "[s]harpening the knife is integral to carving a carcass, Mitchell v. King Packing Co., 350 U.S. 260, 263, 76 S.Ct. 337, 100 L.Ed. 282 (1956); powering up and testing an x-ray machine is integral to taking x-rays, Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 717-18 (2d Cir.2001); and feeding, training and walking the dog is integral to the work of a K-9 officer, Reich v. N.Y. City Transit Auth., 45 F.3d 646 (2d Cir.1995)." Id. Relying on Gorman, the Ninth Circuit in Bamonte stated that if "an activity is indispensable [it] does not necessarily mean that the activity is integral to the work performed." Bamonte, 598 F.3d at 1232. Thus, if an activity is not essential to complete the employee's principal task the employee is not entitled to compensation for the activity pursuant to the Portal-to-Portal Act.
Officers of the LRPD are required to keep their uniform and equipment in good repair but are given the discretion of how often and how to maintain their equipment. While polishing and cleaning may be a necessary or an indispensable component of being a LRPD officer, unlike a butcher sharpening a knife or an x-ray technician powering and testing an x-ray machine, LRPD officers can successfully perform their jobs without polishing and cleaning their uniform and equipment. Therefore, these activities are not integral or "essential to completeness" and are instead preliminary or postliminary activities. The officers demonstrate that polishing and cleaning is not an "integral" activity in order to adequately perform their job, since the time and frequency they spent doing so dramatically varies.
It is doubtful that the City ever contemplated paying officers for activities such as shining their shoes and polishing their duty belts and allowing Plaintiff to recover
Since polishing and cleaning are preliminary and postliminary activities and because compensating Plaintiff for such activity would be contrary to Congress' intent pursuant to the Portal-to-Portal Act Defendant is entitled to summary judgment.
The Supreme Court first recognized the de minimis doctrine in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). In Anderson, pottery factory workers argued inter alia that they were not paid for the time spent walking around the premises. In deciding whether the workers could be paid for the time they spent walking the Supreme Court outlined the de minimis doctrine stating:
The Supreme Court added that when deciding whether the walking time was de minimis that "compensable working time was limited to the minimum time necessarily spent in walking at an ordinary rate along the most direct route . . ." Id. (emphasis added). Thus, when deciding whether an activity should be considered de minimis the court must look at the minimum time it takes to complete the task.
Most federal courts after Anderson have found a time period of ten minutes or less per day to be de minimis. See e.g., E.I. du Pont De Nemours & Co. v. Harrup, 227 F.2d 133, 135-36; Green v. Planters Nut & Chocolate Co., 177 F.2d 187, 188 (4th Cir.1949) (ten minutes employees spent before work at the their work station de minimis); Carter v. Panama Canal Co., 314 F.Supp. 386, 392 (D.D.C.1970), aff'd 463 F.2d 1289 (D.C.Cir.1972) (holding that the 2 to 15 minutes required to place a check mark by name and walk to duty de minimis).
The DOL has also recognized the de minimis doctrine and has provided guidelines as to when the doctrine should apply:
29 C.F.R. § 785.47 (internal citations omitted).
Clearly cleaning radios, wiping safety vests and oiling handcuffs are de minimis activities because they take less than ten minutes, in fact they take less than a minute, and the officers themselves acknowledge that they do not perform these activities on a regular basis.
Plaintiff also seeks compensation for maintaining ballistic vests. The officers disagree about the time it takes to maintain the ballistic vest.
When officers disassemble the vest in order to wash it, they remove the strike plate from the inner compartment, unzip the compartment in the front and the back, pull the pieces of Velcro on the front compartment from the two pieces of Velcro on the front main compartment of the carrier and then remove the front panel from the carrier's front compartment. Officers repeat virtually the same process with the rear panel where they pull the two pieces of Velcro on the rear and separate them from the two piece of Velcro in the rear main compartment of the carrier and then remove the rear panel from the carrier's rear compartment. After washing the carrier portion and wiping the Kevlar portion, officers reassemble the vest by placing the strike plate in the inner compartment placing the front panel inside the front main compartment of the carrier and attaching the Velcro strips at each shoulder and placing the rear panel inside the rear compartment of the carrier and attaching the Velcro strips at each shoulder.
Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In holding that there was no genuine issue of material fact the Supreme Court heavily relied on the fact that there was a videotape capturing the events in question which clearly contradicted the story told by the respondent. The Supreme Court concluded that "[r]espondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him." Scott, 550 U.S. at 380, 127 S.Ct. 1769.
While the officers in this case disagree about the time it takes to assemble and disassemble the vest,
While the Court believes that there is no genuine issue of material fact as to the time it takes to assemble and disassemble the vest even if these specific officers do take more than ten minutes to assemble and disassemble the vest, pursuant to the standard outlined in Anderson, the Court must look at the minimum time it takes to assemble and disassemble the vest. Anderson, 328 U.S. at 692. Compensating officers who take longer to complete the task would reward workers who are less efficient and encourage workers to work slower in the future. Instead, because officers can assemble and disassemble the vest in less than two minutes the activity must be considered de minimis.
Finding that maintaining the ballistic vest is de minimis is consistent with the standards outlined by the Supreme Court in Anderson and the DOL. There is no regularity as to the time the officers spent cleaning their vests
Finally, Plaintiff alleges that the class is entitled to overtime for maintaining their weapons. Again, the officers disagree as to the time and frequency they maintain their weapons. Officer Winfrey testified that he removes the bullets of his magazine once a year and that the process takes ten to fifteen minutes. Def's. Mot. Summ. J., Ex. H (Winfrey Dep.) at 25:8-22. Officer Ready testified that this process takes fifteen to twenty minutes and she does this process once a week. Id. Ex. G (Ready Dep.) at 21:2-11. In addition she claimed she cleaned her weapon once a week and that took her twenty to thirty minutes. Id. at 21:11-15. Officer Musticchi testified that he cleaned and reloaded his weapon once a week and that the process took him five to ten minutes. Id. Ex. F (Musticchi Dep.) at 39:24-25-40:1-5. However, pursuant to the standard outlined in Anderson the Court will again look at the minimum time it takes to clean the weapon and remove the bullets from the magazine. It is clear according to testimony that cleaning the weapon is de minimis since the process can be accomplished in ten minutes or less. In addition, the process of removing the bullets out of the magazine is also de minimis since the process takes around ten minutes. The Court will not reward those employees who take more than the time required to complete the task nor will it penalize those employees who can complete the process efficiently. Thus, the Court finds that no reasonable jury could find that these activities are not de minimis. In addition the Court finds this ruling to be consistent with the standards outlined in Anderson and by the DOL since even if an officer takes longer than ten minutes to a weapon it would be extremely difficult to record these activities for payroll purposes since the officers themselves demonstrate that the time and frequency that officers of the LRPD performs these activities dramatically varies. Therefore, Defendant is entitled to summary judgment for maintaining and cleaning weapons.
Plaintiff moves for voluntary dismissal without prejudice of his claims for compensation for time spent commuting to work at any time a LRPD officer is within the Little Rock city limits and during an officer's lunch break, or lack thereof. Plaintiff says he wishes to dismiss these claims in order to "narrow certain issues." Defendant objects to dismissal without prejudice.
Under Fed.R.Civ.P. 41(a)(2), a plaintiff who wishes to dismiss an action after an answer has been filed must obtain an order of the district court unless all the parties stipulate to the dismissal. Dismissal is within the discretion of the trial court, and the court may impose terms and conditions on the dismissal. In determining whether to grant a plaintiff's motion for voluntary dismissal, a district court should consider the following factors: (1) whether the plaintiff has presented a proper explanation for the desire to dismiss; (2) whether the defendant has expended considerable effort and expense in preparing for trial; (3) whether the plaintiff exhibited "excessive delay and lack of diligence" in prosecuting the case; and (4) whether the defendant has filed a motion for summary judgment. Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir.1987). The Court also considers whether the dismissal would "result in a waste of judicial time and effort." Hamm v. Rhone-Poulenc
Defendant has expended considerable effort and expenses in preparing for trial, including the hiring of an expert, and filed a motion for summary judgment. Plaintiff fails to present a proper explanation for his desire to dismiss the claims. In light of the Court's findings on Plaintiff's other claims, it is doubtful he would be successful on the claims he seeks to voluntarily dismiss. However, Plaintiff did not brief his response to the City's motion for summary judgment on the travel time and meal break claims, apparently because the motion for voluntary dismissal was pending.
For the reasons set forth above Defendant's motion for summary judgment [docket entry 64] is granted in part at this time. Plaintiff's motion for voluntary dismissal [docket entry 68] and motion for partial summary judgment [docket entry 71] are denied.
