Von Friewalde v. The Boeing Company , 339 F. App'x 448 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 4, 2009
No. 08-50316 Charles R. Fulbruge III
Clerk
William VON FRIEWALDE, Dave HARTMAN, Mark COMPAS, Robert
BEVINS, et al.
Plaintiffs-Appellants
v.
BOEING AEROSPACE OPERATIONS, INC., d/b/a BOEING LOGISTICS
SUPPORT SYSTEMS
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
(5:06-VCV-236)
Before GARWOOD, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellants, approximately eighty current and former employees
of defendant-appellee, Boeing Aerospace Operations, Inc., d/b/a Boeing Logistics
Support Systems (Boeing), appeal the summary judgment dismissal of their
collective action alleging that Boeing withheld overtime pay in violation of
section 207 of the Fair Labor Standards Act (FLSA). 29 U.S.C. § 207. We hold
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR . R. 47.5.4.
that opt-in appellants Edward Montelongo and Jesus Lozano have presented
sufficient evidence to preclude summary judgment, therefore we VACATE and
REMAND the dismissal of their claims. However, we AFFIRM the district
court’s dismissal of all other claims.
I. FACTS AND PROCEEDINGS BELOW
Appellants were employed at a Boeing facility in San Antonio, Texas
dedicated to maintaining and repairing military aircraft. Appellants worked as
mechanics; quality inspectors; “tool control attendants” charged with dispensing
and inventorying specialized tools from the “tool crib”; and ramp operators
responsible for ushering aircraft in and out of the facility.
Boeing used a computer program known as “AutoTime” to monitor
employee hours and job performance. For attendance purposes, employees were
required to scan a personalized identification badge at the beginning and end of
each workday at any of the numerous computers located throughout the facility.1
Under this system, employees had to “clock in” any time within thirty minutes
prior to their assigned shift and “clock out” any time within eighteen minutes
after their shift, but they were only paid for the set number of hours covered by
their shift. So long as the employees clocked in and out within these “grace
periods,” AutoTime automatically erased their actual clock-in/out times.
However, if an employee clocked in before this 30 minute grace period his actual
clock in time would register in the computer and he would automatically be
awarded (in addition to his regular shift time) compensable time for the entire
period between his clock in and the beginning of his regular shift time.
Similarly, if an employee clocked out after the 18 minute grace period his actual
1
Additionally, employees used those same computers to “scan labor,” which required
them to scan their badges and enter work order numbers at the start and finish of each
particular task assigned to them.
2
clock out time would register in the computer and he would automatically be
awarded (in addition to his regular shift time) compensable time for the entire
period between the end of his regular shift time and his clock out. Company
policy, of which appellants were informed and aware, forbade work without
overtime authorization during these grace periods when they were clocked-in but
not on-shift. After clocking in, appellants’ only duty was to report to their work
stations by the start of their shifts. Appellants were also instructed to cease
working fifteen to thirty minutes before the end of their shifts to allow time for
cleaning up, putting away tools, and entering time and job data on company
computers.
The four named appellants (Von Friewalde, Hartman, Compas and Bevins)
filed this collective action in the Western District of Texas, claiming that Boeing
unlawfully denied them and their fellow employees compensation for overtime
work in violation of section 207 of the FLSA. Subject to Boeing’s right to later
seek decertification, the parties entered into a conditional agreement certifying
the collective action under 29 U.S.C. § 216(b), which allows one or more
employees to bring suit on behalf of other “similarly situated” employees with
their written consent. Pursuant to this agreement, the parties notified potential
plaintiffs of the suit, and approximately seventy-six other current and former
Boeing employees opted into the collective action. Appellants sought overtime
wages for the following activities allegedly performed outside of their actual shift
times: walking between their lockers and their work stations; obtaining and
inventorying tools; donning and doffing ordinary protective gear such as safety
glasses and hearing protection; and entering time and performing other work-
3
related tasks on Boeing’s computers.2
Boeing filed a motion for summary judgment and a motion to decertify the
collective action. On March 8, 2008, the district court granted Boeing’s motion
for summary judgment, finding that appellants had failed to raise a fact issue
as to whether Boeing had actual or constructive knowledge that appellants had
performed uncompensated overtime work. As a consequence, the court
dismissed Boeing’s motion to decertify the collective action as moot. On March
13, 2008, appellants filed a motion for rehearing, which, because it was filed
within ten days of the judgment, the district court treated as a F ED. R. C IV. P.
59(e) motion to alter or amend the judgment. On June 10, 2008, the district
court denied appellants’ motion, upholding its prior decision and additionally
finding that the activities for which appellants sought overtime pay were non-
compensable as a matter of law. Appellants timely filed this appeal.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo under the same legal
standards applied by the district court. Harvill v. Westward Commc’ns, LLC,
433 F.3d 428, 433–34 (5th Cir. 2005). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c). “Fact questions are viewed
in the light most favorable to the nonmovant and questions of law are reviewed
2
Appellants’ original complaint also asserted that Boeing’s “9/80 program” violated
the FLSA, because they were required to work over forty hours on some weeks without
receiving overtime pay. Under the 9/80 program, employees still worked eighty hours
every two weeks, but they were required to do so over a period of nine days rather than
ten, working extra hours on most days and taking off every other Friday. However,
plaintiffs later amended their complaint and abandoned this claim, purportedly in
response to an Opinion Letter issued by the Department of Labor finding that the 9/80
work schedule did not violate the FLSA’s overtime provisions.
4
de novo.” Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995). At
least as to issues on which the nonmoving party would bear the burden of proof
at trial, “‘i]f the record, taken as a whole, could not lead a rational trier of fact
to find for the non-moving party, then there is no genuine issue for trial.’”
Harvill at 433.
III. DISCUSSION
The FLSA mandates that “no employer shall employ any of his employees
. . . for a workweek longer than forty hours unless such employee receives
compensation for 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). Moreover, the FLSA generally requires employers to pay
employees for all hours worked. See 29 U.S.C. §§ 206, 207; Alvarez v. IBP, Inc.,
339 F.3d 894, 902 (9th Cir. 2003), aff’d, 126 S.Ct. 514 (2006). However, not all
activities performed in the workplace are necessarily compensable under the
FLSA. See 29 U.S.C. § 254(a). Therefore, as a threshold matter, we must first
consider whether any of the “work” for which appellants seek overtime pay was
compensable as a matter of law.3
A. Compensability
For the purposes of summary judgment, the district court assumed that
at least some of the activities for which appellants sought overtime pay were
3
We will assume that the uncompensated activities in this suit constitute “work”
under the FLSA, which the Supreme Court has broadly defined 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.’” IBP, Inc. v.
Alvarez, 126 S.Ct. 514, 519 (2006) (quoting Tenn. Coal, Iron & R. Co. v. Muscoda Local No.
123, 64 S.Ct. 698, 703 (1944)). In fact, the Court has clarified that even “‘exertion’ [is] not
in fact necessary for an activity to constitute ‘work’ under the FLSA,” for an employee may
be hired “‘to do nothing, or to do nothing but wait for something to happen.’” Id. (quoting
Armour & Co. v. Wantock, 65 S.Ct. 165, 168 (1944)).
5
compensable. However, upon denying appellants’ motion for rehearing, the
district court ultimately concluded that the following activities were non-
compensable as a matter of law: “(1) obtaining tool bags; (2) donning safety
glasses and hearing protection; (3) walking to and from lockers; (4) signing on
to and using company computers; and (5) cleaning up their designated work
locations at the end of their shifts.”
In Anderson v. Mount Clemens Pottery Co., the Supreme Court held that,
subject to a de minimis exception, certain preliminary activities such as donning
work clothing and walking between the clock-in station and an employee’s work
station were compensable under the FLSA. 66 S.Ct. 1187, 1195 (1946).
Believing that the FLSA had been “interpreted judicially in disregard of long-
established customs, practices, and contracts between employers and
employees,” Congress responded by passing the Portal-to-Portal Act of 1947. See
29 U.S.C. § 251. The Portal-to-Portal Act amended the FLSA to specifically
relieve employers of the obligation to compensate employees for
“(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.”
Id. § 254(a). In Steiner v. Mitchell, the Supreme Court determined that
preliminary or postliminary activities are compensable if they are not
specifically excluded under section 254(a)(1) and are “an integral and
indispensable part of the principal activities for which covered workmen are
employed.” 76 S.Ct. 330, 335 (1956). “To be ‘integral and indispensable,’ an
6
activity must be necessary to the principal work performed and done for the
benefit of the employer.” Alvarez, 339 F.3d at 902–03 (citing, inter alia, Dunlop
v. City Elec., Inc., 527 F.2d 394, 398 (5th Cir. 1976)). However, even if an
activity might otherwise be compensable, we may disregard de minimis claims
“‘concern[ing] only a few seconds or minutes of work beyond the scheduled
working hours.’” Id. at 903 (quoting Anderson, 66 S.Ct. at 1195). As the Ninth
Circuit said in Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984), “[m]ost
courts have found daily periods of approximately 10 minutes de minimus even
though otherwise compensable.” Id. at 1062. See also Anderson v. Pilgrim’s
Pride Corp., 147 F. Supp. 2d 556, 564 (E.D. Tex. 2001) (same), aff’d, 44 Fed
App’x 652 (5th Cir. 2002 (affirmed “essentially for the reasons stated by the
careful opinion of Judge Hanna”).
We agree with the district court that obtaining standard tool bags (located
in easily accessible cabinets near appellants’ lockers), clocking in and out on
AutoTime (a process that normally took seconds), and donning and doffing
generic safety gear (e.g., hearing and eye protection) involved a de minimis
amount of time and therefore were non-compensable activities under the FLSA.
See id.; see also Anderson, 66 S.Ct. at 1195. We also hold that the time
appellants spent walking to and from their lockers at the beginning and end of
each shift was non-compensable, as the Portal-to-Portal Act specifically provides
that walking before and after the performance of an employee’s principal
activities is non-compensable.4 See 29 U.S.C. § 254(a)(1). And, we also agree
with the Second Circuit – and with the district court here – that donning and
4
We recognize that, under the “continuous workday” rule, “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 covered by the FLSA.” Alvarez, 126 S.Ct. at
525; see 29 U.S.C. § 254(a)(1). Here, however, appellants seek compensation for time spent
walking before and after they performed their principal activities each day.
7
doffing of generic protection gear such as safety glasses and hearing protection,
are in any event “non-compensable, preliminary tasks” under the Portal-to-
Portal Act. See Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594 (2d Cir.
2007).
However, we conclude that the following activities, if actually proven to
involve more than a de minimis amount of time, were compensable as a matter
of law: performing substantive tasks on Boeing computers, such as checking
work-related emails and conducting research pertinent to job assignments;
checking specialized tools in and out of the tool crib and, for those working as
tool control attendants, preparing the tool crib prior to the shift and putting
away tools at the close of the shift; and cleaning up work stations at the end of
the shift. As these activities were necessary to appellants’ principal duties and
were performed for Boeing’s benefit, they were “integral and indispensable” to
appellants’ jobs. See Alvarez, 339 F.3d at 902–03. Therefore, the district court
erred to the extent that it held that these activities were not compensable as a
matter of law.
Our determination that some of the complained-of activities are
compensable does not necessarily mean that appellants are entitled to recover
under the FLSA. Appellants must still meet their burden of proving that they
performed these activities “off the clock” and were not adequately paid for their
efforts.
B. Summary Judgment Evidence
An employee seeking unpaid overtime compensation under the FLSA must
first demonstrate that he “performed work for which he was not properly
compensated.” Anderson, 66 S.Ct. at 1192. This may prove difficult where the
employer has failed to keep accurate or adequate records, as appellants argue
is the case here due to Boeing’s use of AutoTime. See id. In such a situation,
8
however, “[t]he solution . . . is not to penalize the employee by denying him any
recovery on the ground that he is unable to prove the precise extent of
uncompensated work.” Id. Rather, an employee is deemed to have met his
burden
if he proves that he has in fact performed work for which he was
improperly compensated and if he produces sufficient evidence to
show the amount and extent of that work as a matter of just and
reasonable inference. The burden then shifts to the employer to
come forward with evidence of the precise amount of work
performed or with evidence to negative the reasonableness of the
inference to be drawn from the employee’s evidence. If the employer
fails to produce such evidence, the court may then award damages
to the employee, even though the result be only approximate.
Id.; see also Harvill, 433 F.3d at 441.
Further, an employee must prove that he was “employed” during the time
for which he seeks overtime compensation, which requires a showing that the
employer had either actual or constructive knowledge that he was working
overtime. Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995).
Constructive knowledge exists if by “exercising reasonable diligence” an
employer would become aware that an employee is working overtime. Brennan
v. Gen. Motors Acceptance Corp., 482 F.2d 825, 827 (5th Cir. 1973). “‘An
employer who is armed with [knowledge that an employee is working overtime]
cannot stand idly by and allow an employee to perform overtime work without
proper compensation, even if the employee does not make a claim for the
overtime compensation.’” Newton, 47 F.3d at 748 (alteration in original)
(quoting Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.
1981)); see also 29 C.F.R. § 785.11 (“Work not requested but suffered or
permitted is work time.”). However, if the “‘employee fails to notify the employer
or deliberately prevents the employer from acquiring knowledge of the overtime
9
work, the employer’s failure to pay for the overtime hours is not a violation of
§ 207.’” Newton, 47 F.3d at 748 (quoting Forrester, 646 F.3d at 414); see also
Harvill, 433 F.3d at 441.
The district court determined that appellants had failed to raise a genuine
issue of material fact as to whether Boeing had actual or constructive knowledge
that appellants were working unpaid overtime; therefore, the court granted
Boeing’s motion for summary judgment. The primary evidence presented by
appellants in this case was the deposition testimony of three named appellants,
two opt-in appellants, and several Boeing managers. None of the other
appellants testified, nor did appellants provide any substantive answers to
Boeing’s interrogatories.
Appellants allege that there exists a “common nucleus of liability facts”
among all of their claims. After reviewing the evidence, we disagree. Indeed,
unlike the employees in Anderson and Alvarez, the details surrounding each of
their claims vary in significant ways, such that few if any of the appellants are
“similarly situated” for the purposes of the FLSA. See 29 U.S.C. § 216(b).
Therefore, we address each appellant’s claim individually. Moreover, we
conclude that the claims of all those appellants who have not produced any
evidence at all, including named appellant Mark Compas and all but two of the
opt-in appellants, necessarily fail. Those appellants had numerous opportunities
to provide deposition testimony, affidavits, documents, or answers to
interrogatories in support of their claims.5 As it stands, we know nothing of
those appellants other than their names and the fact that they were allegedly
5
Appellants had ample time to come forward with evidence in support of their
claims, as the deadline for completing discovery was at their requests extended on multiple
occasions. In response to Boeing’s interrogatories, appellants repeatedly stated that they
were “in the process of attempting to determine the requested information and will
continue to obtain and supplement this information,” yet they never did so.
10
employed in some unidentified capacity by Boeing when AutoTime was in use.
Therefore, we affirm the district court’s dismissal of their claims. As to those
appellants who submitted depositions (or other summary judgment evidence),
we review the relevant portions of their evidence here.
i. Deposition Testimony
Named appellant Robert Bevins worked as a mechanic and ramp operator
at Boeing. Bevins stated that, generally speaking, he considered the time
between clocking in and the start of his shift to be his own personal time.
However, Bevins testified that occasionally when working as a ramp operator,
he and his fellow crewmen would be instructed to start work approximately
fifteen minutes before their shift when an aircraft arrived at the facility early.
According to Bevins, this occurred perhaps five times over a six-year period.
Bevins also testified that, over the course of approximately a decade, he was
forced on two or three occasions to start work ten to fifteen minutes early to take
care of potentially hazardous situations (e.g., an engine suspended from a cable)
that were left by workmen on the preceding shift. Additionally, Bevins stated
that occasionally managers would begin crew meetings five to ten minutes before
a shift, but when crew members complained, the managers would nearly always
wait until the start of the shift to commence. Finally, Bevins testified that he
was forced to stay fifteen to twenty-five minutes late twice to search for a lost
tool and approximately four times (of unestimated length) to place protective
covers on airplane engines. Bevins did not request overtime compensation on
any of these occasions.
Named appellant Dave Hartman worked as a quality inspector at Boeing,
where he was responsible for inspecting the mechanics’ work. Hartman testified
that when he was required to stay late, he would normally send an email to his
manager, who would approve the overtime work. Upon a couple of occasions
11
when he was not paid for an unestimated amount of overtime, Hartman
complained to Boeing’s ethics department, which “blew [him] off.” Hartman also
stated that on most days he did not work late, but when he was specifically
asked to by his managers, he was compensated for it. Finally, Hartman said
that, on his own initiative, he would often check his work email on company
computers five to ten minutes before his shift without telling his superiors.
Named appellant William Von Friewalde, who worked as a mechanic,
claimed that he should be paid fifteen minutes of overtime per day based upon
the average amount of time that he was clocked-in but not on-shift. However,
it is apparent from his testimony that he was not always performing
compensable activities during those grace periods for which he now seeks
compensation. While some of his post-shift time may have been spent
performing compensable activities such as cleaning up his work station, the only
consistent pre-shift activities that Von Friewalde complained of were obtaining
his tool bag and his personal safety equipment before each shift, both of which
we have concluded involve a de minimis amount of time and are non-
compensable. When pressed for more specifics about his overtime claims, Von
Friewalde stated that on the three or four occasions when he did inform the
Boeing Human Relations department that he was not being paid for overtime
work, they told him that his time was “locked” in the computer and could not be
changed. Von Friewalde estimated that the total amount of overtime at issue
in all these discussions was at most half an hour, which he accumulated over a
year-long period. Additionally, Von Friewalde stated that most of his
supervisors would ensure that he was paid overtime if he told them he had
worked extra hours. However, he also testified that most of the time he would
not request overtime for the extra five to ten minutes he spent cleaning up at the
end of a shift, because to do so involved too much effort on a regular basis and
12
felt like “chasing a rabbit.” Finally, Von Friewalde alleged that some of his
managers physically erased his overtime hours, though he could not provide any
details as to how much time was deleted or when or how often that occurred.
Edward Montelongo, an opt-in appellant, was also a mechanic at Boeing.
Montelongo testified that when he performed overtime work specifically at his
manager’s request (i.e., when he was instructed to come into work early, when
planes would arrive before the scheduled shift, or when a particular task could
not be completed by the end of the shift), he was not always compensated. When
he complained to his managers, they assured him that they would “take care of
it” but never followed through. He testified that on a number of occasions his
managers knowingly required him to work anywhere from half an hour to two
hours of overtime for which he was never paid.6
Jesus Lozano, an opt-in appellant who worked as a tool control attendant
in the tool crib, presented the most satisfactory evidence of any appellant.
Unlike any of the other appellants, Lozano kept track of his time over a three to
four year period and submitted spreadsheets to the district court purportedly
indicating when he performed and was paid for the overtime and when he was
not paid for overtime performed. In order to produce a general estimate of his
unpaid overtime, Lozano reviewed his spreadsheets covering one month and
calculated approximately five hours of overtime for which he was never paid.
Although Lozano was not allowed to dispense tools prior to the start of the shift,
he testified that he consistently had to begin work ten to twenty minutes early
to prepare the tool crib for the start of the shift, when the mechanics would come
to obtain their tools. Therefore, Lozano attempted to arrive early enough every
6
Because AutoTime automatically registers overtime when an employee clocks in
more than thirty minutes prior to a shift, we note that this apparently would have required
his managers to manually erase Montelongo’s time.
13
day to clock in at least a little more than thirty minutes before his shift, so that
AutoTime would automatically record his overtime. As a result, Lozano
admitted that he received overtime pay “almost every day.” However, when he
failed to clock in before the start of the thirty-minute grace period, Lozano
generally did not inform his superiors (allegedly because they told him not to
bother) and therefore lost that overtime. In addition, Lozano stated that on most
days, he was able to close up the tool crib promptly at the end of his shift.
However, often he had to stay several minutes late to receive and inventory tools
when the mechanics were running behind schedule. Lozano stated that when
he complained to his manager about not being paid overtime, his manager took
no action other than to advise him to leave as quickly as possible at the end of
the shift. However, Lozano did admit that at least one of his managers
authorized overtime freely when notified.
For their own part, all of Boeing’s managers who were deposed testified
that they always paid overtime when it was pre-authorized or when an employee
informed them that he or she had worked extra time. One manager, Wallace
Hatcher, stated that although he would approve overtime after-the-fact when
requested, he would discourage his employees from working unauthorized
overtime. Hatcher stated that it was not uncommon for some employees to work
on company computers prior to the start of their shift for their own convenience,
but he indicated that those employees could have waited until they were on the
clock to perform those tasks. He also admitted to having on some occasions
erased unauthorized overtime on some employees’ timecards that had registered
automatically when they clocked out after the eighteen-minute grace period at
the end of their shifts.
Another manager, Jesus Morales, stated that it was sometimes impossible
for the mechanics to stop work with enough time to clean up before the shift’s
14
end, because they were required to leave the workplace in a safe condition.
Morales and another manager, Robert Ryan, testified that they would always
authorize overtime when their employees requested it but that employees would
often work several minutes past their shifts without asking for overtime.
Morales believed that most employees did not consider it worthwhile to go
through the trouble of seeking overtime authorization for just a few minutes of
extra work.
ii. Analysis
We conclude that, for several reasons, appellants Bevins, Hartman, and
Von Friewalde have failed to present sufficient evidence to permit a reasonable
factfinder to conclude that they had met their burden under the FLSA. First of
all, their claims rest upon an amount of unpaid overtime that is de minimis as
a matter of law. See Anderson, 66 S.Ct. at 1195 (“[I]t is appropriate to apply a
de minimis doctrine so that insubstantial and insignificant periods of time spent
in preliminary activities need not be included in the statutory workweek.”); see
also Alvarez, 339 F.3d at 903. In Anderson and Alvarez, the workers produced
evidence that they regularly engaged in the same compensable activities day
after day yet were never paid for their efforts. See Anderson, 66 S.Ct. at1190–91; see also Alvarez, 339 F.3d at 898–99. Therefore, the accumulated
amount of unpaid overtime was substantial, and a factfinder could reasonably
infer the amount of damages based upon the activities in question and the
number of days worked. Here, in contrast, neither Bevins, Hartman, nor Von
Friewalde proved that they regularly performed compensable activities without
being paid. Rather, on random occasions occurring perhaps a handful of times
over the course of a year or more, they allegedly worked overtime amounting to
some small portion of an hour without compensation. Their testimony reveals
the de minimis nature of their claims and does not constitute “sufficient evidence
15
to show the amount and extent of that work as a matter of just and reasonable
inference” under the standard laid out in Anderson. See 66 S.Ct. at 1192.
Moreover, these appellants admitted that, on the vast majority of
occasions, they were paid when they notified their superiors that they had
worked overtime. Their claims largely arise from days on which they failed to
inform their managers that they had been forced to stay a few minutes late to
finish cleaning up, return tools, etc. While an employer may not “stand idly by”
without paying an employee that he knows or should know is working overtime,
an employee has a duty to notify his employer when he is working extra hours.
See Newton, 47 F.3d at 748. Further, it is undisputed that all of Boeing’s
employees were aware of its policy prohibiting overtime work without
authorization, and we have expressly rejected the notion that an employer does
“not have the right to require an employee to adhere to its procedures for
claiming overtime.” Id. at 749. Therefore, in the case of Hartman for instance,
Boeing is not responsible for paying for the few moments he voluntarily spent
checking work emails prior to his shift without notifying his manager. More
broadly speaking, Boeing cannot be held liable for the sporadic occasions when
its employees chose to start work early or were forced by circumstances (perhaps
of their own making) to work a few minutes late but never informed their
superiors.
In the case of Von Friewalde, his claim that he worked on average fifteen
minutes of unpaid overtime per day is, on its face, substantial enough to
overcome the de minimis rule. However, Von Friewalde’s testimony does not
establish that he was performing an extra fifteen minutes of compensable work
each day, but rather only that he was clocked-in for an extra fifteen minutes. As
the district court observed, “[t]he clock-in and clock-out times do not show what
the employee was actually doing during those times, and they are not evidence
16
of actual or constructive knowledge that compensable work was being
performed.” Von Friewalde’s testimony does not support the conclusion that he
should be paid for all of the time he was clocked-in but not on-shift; nor does it
contain, or furnish any basis for inferring, any reasonable estimate of the
amount of time worked on such occasions. Further, Von Friewalde admitted
that he normally did not notify his superiors that he was working overtime.
And, when he did request overtime but they still refused to pay him, the amount
of time involved was de minimis.
In Lindow, “[a]s a general rule, the [employer] corps did not pay overtime
for intervals of less than fifteen minutes.” Id., 738 F.2d at 1063. In denying
recovery for pre-shift compensable activities, the Ninth Circuit observed:
There was also a wide variance in the amount of pre-shift time
spent on compensable activities as opposed to social activities.
Although plaintiffs spent an average of 7 to 8 minutes a day reading
the log book and exchanging information, they did not always
perform these duties before their shifts. The Corps would have had
difficulty monitoring this pre-shift activity. Moreover, although
plaintiffs reported early on a regular basis, they did not regularly
engage in compensable activities. The district court found that
‘most employees came in about 15 minutes early, and sometimes
spent a portion of this time reading the log book or exchanging
information.’ Although plaintiffs’ aggregate claim may be
substantial, we conclude that their claim is de minimus because of
the administrative difficulty of recording the time and the
irregularity of the additional pre-shift work.
...
Occasionally, a lockage would occur at the time of a shift change and
early arriving employees would be sent to the locks to relieve the
operator. This practice enabled the departing employee to avoid
having to work past the scheduled shift.
The district court found that an employee was asked to relieve
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the previous operator only once or twice a month, and that it took 5
to 15 minutes to relieve an operator. It properly concluded that this
claim was de minimus. The aggregate amount of time involved was
insignificant and the practice was irregular.
Id. at 1063-64. Much of the foregoing is analogous to most of the claims here and
properly supports their denial.
On the other hand, we conclude that Montelongo has created a fact issue
as to whether Boeing violated the FLSA in failing to pay him overtime. Unlike
the other appellants discussed above, Montelongo claims to have worked a
substantial amount of overtime without pay, up to two hours on some days,
which rises above the de minimis threshold. Additionally, he performed this
work at his managers’ request, and he notified them directly when he was never
paid for his efforts. Therefore, because his managers were clearly aware that
Montelongo was working overtime, Boeing’s policy against unauthorized
overtime offers no defense.
We also conclude that Lozano has presented sufficient evidence to create
a fact issue as to whether he performed uncompensated overtime work of which
his superiors knew or should have known. Lozano testified that he consistently
performed overtime work for which he was not compensated, and he was the
only appellant to submit any sort of documentary evidence in support of his
claim. Unlike the other appellants in this collective action, for whom unpaid
overtime was a seemingly random and rare event, Lozano was forced to start
work early and to finish late on a daily basis. Apparently, the Boeing policy
against working during the pre- and post-shift grace periods did not apply to tool
control attendants, who were expected to use that time to prepare the tool crib
before the shift and to put away everyone’s tools at the end of the shift. It is also
clear from Lozano’s testimony that his superiors knew or should have known
that he was working extra hours on the days for which he did not receive
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overtime.
Thus, for summary judgment purposes, we hold that opt-in appellants
Montelongo and Lozano have adequately demonstrated that they performed a
more substantial than de minimus amount of uncompensated overtime work and
have produced “sufficient evidence to show the amount and extent of that work
as a matter of just and reasonable inference.” See Anderson, 66 S.Ct. at 1192.
Therefore, the district court erred in dismissing their claims at this stage of the
proceedings. However, we conclude that all of the other appellants have failed
to present any evidence sufficient to support a judgment for recovery in their
favor under the FLSA and that hence summary judgment was properly granted
dismissing their claims. Most appellants, including Compas and almost all of
the opt-ins, failed to present any evidence at all. As to named appellants Bevins,
Hartman, and Von Friewalde, their claims fail for a number of reasons: either
they worked a de minimis amount of overtime, they failed to notify their
superiors, or they performed overtime work on their own initiative in
contravention of Boeing’s overtime policy.
IV. CONCLUSION
We hold that appellants Montelongo and Lozano have presented sufficient
evidence to create a fact issue. Therefore, we VACATE and REMAND as to their
claims. However, as we find that all of the other appellants in this collective
action have failed to present any sufficient evidence to justify recovery and that
summary judgment was properly granted against them, we AFFIRM the district
court’s dismissal of their claims.
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