Aitken v. United States ( 2022 )

In the United States Court of Federal Claims
No. 19-520C
(Filed Under Seal: August 25, 2022)
(Reissued: September 30, 2022)*
FOR PUBLICATION
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KATHY AITKEN, et al., *
*
Plaintiffs, *
*
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
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Molly A. Elkin, McGillivary Steele Elkin LLP, Washington, D.C., for Plaintiffs.
With her on briefs were T. Reid Coploff and Sarah M. Block, McGillivary Steele Elkin
LLP, Washington, D.C.
Bret R. Vallacher, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for Defendant,
United States. With him on briefs were Brian M. Boynton, Acting Assistant Attorney
General, Robert E. Kirschman, Jr., Director, Martin F. Hockey, Jr., Acting Director,
Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., as well Nathan M.
Atkinson, Assistant General Counsel, Employment Law Branch, Federal Bureau of
Prisons, United States Department of Justice, Kansas City, KS.
OPINION AND ORDER
Plaintiffs — current and former Federal Bureau of Prisons employees at
Federal Correctional Institution Otisville (“FCI Otisville” or “the Prison”) — seek
overtime pay under the Fair Labor Standards Act (“FLSA”) and other forms of relief
* Pursuant to the protective order in this case, the Court initially filed this opinion under seal on
August 25, 2022, for the parties to propose redactions of confidential or proprietary information. The
parties were directed to propose redactions by September 8, 2022. Per the Court’s order of August 31,
2022, (ECF 53), the parties were granted an extension to September 22, 2022 to propose redactions.
Proposed redactions were received from the Defendant and no redactions were received from the
Plaintiff. The Court has incorporated Defendant’s proposed redactions and makes them with bracketed
ellipses (“[. . .]” below.
related to uncompensated pre- and post-shift work. The parties’ cross-motions for
summary judgment are ripe for disposition.1
Although there are some issues where there is no genuine dispute of material
fact and judgment as a matter of law is possible, there are also several factual
disputes that prevent granting either motion in full. See RCFC 56. Accordingly,
Plaintiffs’ motion is DENIED, and Defendant’s motion is GRANTED IN PART and
DENIED IN PART.
BACKGROUND
FCI Otisville includes a medium-security facility that houses approximately
800 inmates convicted of federal crimes. Pls.’ Mem. App. A at 66–68 (ECF 28-1)
(Whinnery Dep.); Def.’s App. at 656 (ECF 31-2) (O’Kane Decl. ¶ 5).2 Plaintiffs’
“primary job duty” there is to maintain the safety and security of the inmates, staff,
and Prison. Pls.’ Mem. App. A at 73, 79, 88, 150 (Whinnery Dep.). One of their
responsibilities is to inspect for contraband, confiscate contraband, and prevent
contraband from entering FCI Otisville. Id. at 96, 105–06. Another is to correct
inmate violations of Prison rules. Id. at 89–91.
As relevant to this case, Plaintiffs’ workdays are organized by 8-hour assigned
shifts at certain posts that are staffed for 16 or 24 hours per day. E.g., Pls.’ App. B at
3–4 (ECF 28-2) (Buckingham Decl. ¶¶ 4–5).3 Different posts entail different specific
activities and responsibilities. In general, Plaintiffs must be at their posts by the
beginning of the shift, e.g., id. at 7 (Buckingham Decl. ¶ 17), and remain at their posts
until relieved by an incoming officer, Pls.’ Mem. App. A at 122 (Whinnery Dep.). The
shifts do not overlap. E.g., Pls.’ App. B at 4 (Buckingham Decl. ¶¶ 6–7).
For each shift there is a certain amount of pre- and post-shift activity that is
not compensated, but which Plaintiffs contend should be treated as work. The pre-
and post-shift activities at issue include (1) pre-shift security screening, (2) donning
a duty belt with various attached items, (3) clearing the “sally port” and picking up
equipment, (4) walking to the employee’s assigned post, (5) completing equipment
and information exchanges, and (6) leaving the post at the end of the day. Except for
1 Pls.’ Mot. for Part. Summ. J. (ECF 27) (“Pls.’ Mot.”) and Pls.’ Mem. ISO Mot. for Part. Summ. J. (ECF
28) (“Pls.’ Mem.”); Def.’s Cross-Mot. for Part. Summ. J. & Resp. to Pls.’ Part. Mot. for Summ. J. (ECF
31) (“Def.’s Cross-Mot.”); Pls.’ Reply & Opp. to Def.’s Cross-Mot. for Part. Summ. J. (ECF 35) (“Pls.’
Reply”); Def.’s Reply ISO Cross-Mot. for Part. Summ. J. (ECF 38) (“Def.’s Reply”). I heard oral
argument on March 31, 2022. Tr. of Oral Arg. (ECF 50) (“Tr.”).
2 All citations to the Plaintiffs’ Appendices are to the ECF-stamped page numbers with the particular
deposition or declaration noted in parentheses. Citations to Defendant’s Appendix are to the page
numbers at the bottom of the Appendix’s pages (which, in the Appendix, are designated as “A__”).
3 Not all posts in the Prison are covered by Plaintiffs’ claims.
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one issue described below, the parties agree that Plaintiffs are not compensated for
their time in those activities.
The parties disagree on how much time those activities require. Plaintiffs’
declarants claim that the uncompensated activities take approximately 30 minutes
per day. Pls.’ App. B at 14–15 (Buckingham Decl. ¶ 40) (35 minutes); id. at 29
(Conklin Decl. ¶ 38) (35 minutes); id. at 43–44 (Hackett Decl. ¶ 40) (25 minutes); id.
at 54–55 (Hagenburg Decl. ¶ 31) (30 minutes); id. at 67 (McPhillips Decl. ¶ 37) (20
minutes); id. at 78–79 (Skelly Decl. ¶ 33) (25 minutes); id. at 94–95 (Smith Decl. ¶ 42)
(30 minutes); id. at 106–07 (Tufano Decl. ¶ 33) (25 minutes). Defendant cites video
analyses purporting to show that Plaintiffs’ pre- and post-shift time in the Prison is
in fact much shorter, Def.’s App. at 620–53 (Susney Decl.), though Plaintiffs dispute
whether the analyses used reliable methods. Pls.’ Reply at 33–37.
The relevant facts describing each pre- and post-shift activity are as follows.
Security Screening
On arrival at the Prison, Plaintiffs must pass through a screening site. Pls.’
Mem. App. A at 105, 142–43 (Whinnery Dep.). Screening involves walking through a
metal detector and passing other items on a conveyor belt through an x-ray machine.
E.g., Pls.’ App. B at 7–8 (Buckingham Decl. ¶ 20); Pls.’ Mem. App. A at 142–43
(Whinnery Dep.). The purpose of the security screening is to prevent contraband from
entering the Prison. Pls.’ Mem. App. A at 105–06 (Whinnery Dep.); see also, e.g., Pls.’
App. B at 8 (Buckingham Decl. ¶ 21).
Donning the Duty Belt
Before beginning work, Plaintiffs must be able to attach their equipment to
their persons. The parties seem to agree — and the record bears out — that an officer
must eventually have a belt on, and that the metal chits Plaintiffs use to check out
equipment cannot be worn through the metal detector at the security screening. Pls.’
Mem. App. A at 99–100, 104 (Whinnery Dep.); see also, e.g., Pls.’ App. B at 8–9
(Buckingham Decl. ¶¶ 23–24). But the record is ambiguous as to many other details.
The parties disagree, among other things, about exactly where donning takes
place. Plaintiffs point to evidence that the duty belt is passed through the security x-
ray, Pls.’ Mem. App. A at 99–100 (Whinnery Dep.), and that they must don their duty
belts before entering the secure confines of the Prison because it is unsafe to carry
the duty belt without securing it, e.g., Pls.’ App. B at 9 (Buckingham Decl. ¶ 24).
Defendant responds that Plaintiffs sometimes carry their duty belts after passing
through security on their way to their duty posts, Def.’s App. at 98 (Whinnery Dep.),
or could — at least in theory — wear the belts through security, id. at 658 (O’Kane
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Decl. ¶ 16). The parties also disagree about whether the belt itself and the attached
clips and chits constitute a piece of specialized equipment. Id. at 97–98 (Whinnery
Dep.); id. at 658 (O’Kane Decl. ¶ 14); Pls.’ Reply App. A at 21–22, 38; Pls.’ Mem. App.
A at 155–56 (Whinnery Dep.).
Clearing the Sally Port
After clearing the screening site, Plaintiffs proceed to the “A-1 sally port” which
“is the primary entry and exit point at the secured perimeter” of the Prison. Pls.’
Mem. App. A at 133 (Whinnery Dep.); e.g., Pls.’ App. B at 9 (Buckingham Decl. ¶ 24).
Once there, Plaintiffs are identified by other officers in the Control Center and flip
their accountability chits, which signal that a given officer has entered the Prison.
Pls.’ Mem. App. A at 109–11 (Whinnery Dep.); id. at 5 (Dumont Dep.). After clearing
the sally port, Plaintiffs walk to the Administration Building. Pls.’ Mem. App. A at
110–11 (Whinnery Dep.).
Proceeding to the Duty Post
When assigned to shifts at the Control Center, Plaintiffs enter the
Administration Building through another sally port. E.g., Pls.’ App. B at 10
(Buckingham Decl. ¶ 27).4 When assigned to other duty posts, however, Plaintiffs
pass through a different sally port to the Prison’s secure compound. Pls.’ Mem. App.
A at 10–12 (Dumont Dep.); e.g., Pls.’ App. B at 11 (Buckingham Decl. ¶ 30). Once on
the compound, Plaintiffs are locked inside the Prison with the inmates. E.g., id.
Plaintiffs must maintain “constant vigilance” while proceeding to their duty posts.
Pls.’ Mem. App. A at 113–14 (Whinnery Dep.). For some duty posts, Plaintiffs must
go through an additional sally port or secure door when they arrive. Pls.’ Mem. App.
A at 15, 21 (Dumont Dep.); id. at 108 (Whinnery Dep.).
The parties disagree about what the walk involves and how much Plaintiffs
interact with inmates on the way. Plaintiffs point to evidence that they have
“frequent direct contact with” inmates during the walk, see Pls.’ Mem. App. A at 126
(Whinnery Dep.), including correcting inmate behavior, id. at 92–96; e.g., Pls.’ App.
B at 12–13 (Buckingham Decl. ¶¶ 32, 37). But other evidence could show that because
of the schedules for inmate movement and shift transitions, Plaintiffs generally
would not be on the compound at the same time as inmates, Def.’s App. at 508–14,
541, 575, 584 (post orders); Pls.’ Mem. App. A at 72–73, 76–77 (Whinnery Dep.), and
that in any event correcting inmate behavior does not take any extra time, Def.’s App.
at 107–08 (Whinnery Dep.). It may also be that at certain times, Plaintiffs can avoid
interacting with inmates entirely by taking certain routes through the Prison. Id. at
4When assigned to the “J Unit” Control post, Plaintiffs go through a different sally port. Pls.’ App. B
at 14 (Buckingham Decl. ¶ 39); Pls.’ Mem. App. A at 143–44 (Whinnery Dep.); Tr. at 13.
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69, 102–03. While Plaintiffs claim that they are required to respond to body alarms
that sound if there is an emergency, Pls.’ Mem. App. A at 115, 147–48 (Whinnery
Dep.); see, e.g., Pls.’ App. B at 12 (Buckingham Decl. ¶¶ 33), other evidence suggests
that if Plaintiffs did respond to such alarms outside their scheduled shifts, they would
be compensated for their time. Def.’s App. at 101 (Whinnery Dep.).
Plaintiffs claim that they stop at the Lieutenant’s office, where they receive “a
briefing from [their] supervisor and check in regarding the previous shift.” E.g., Pls.’
App. B at 11 (Buckingham Decl. ¶ 31). The Lieutenant’s office is also where Plaintiffs
perform certain administrative functions, such as checking their work mailboxes and
completing overtime slips. Id.; Pls.’ Mem. App. A at 9–10 (Dumont Dep.). Defendant
responds that stopping in the Lieutenant’s office is not required, Def.’s App. at 7–9
(Dumont Dep.), and unnecessary because there are other ways to obtain the
information, such as by reviewing an electronic logbook called [. . .] that contains
briefings from the Lieutenant(s) and information about incidents that occurred on
posts. Id. at 80–81 (Whinnery Dep.); id. at 12–13 (Dumont Dep.). Defendant also cites
evidence that Plaintiffs are not required to check their mailboxes, Def.’s App. at 9
(Dumont Dep.); id. at 575 (post order), that they will receive overtime pay whether or
not they complete the slips, id. at 34 (Meyers Dep.), and that they need not return
the slips in-person to the Lieutenant’s office, id. at 89 (Whinnery Dep.).
Equipment and Information Exchange
At most posts, shift transitions involve an exchange of equipment
including [. . .] with the outgoing officer. Pls.’ Mem. App. A at 119–20 (Whinnery
Dep.); Pls.’ App. B at 12–13 (Buckingham Decl. ¶ 35).5 Only one officer is paid during
the exchange. Pls.’ Mem. at 16; Def.’s Cross-Mot. at 10.
[. . .]. See Def.’s App. at 67, 88 (Whinnery Dep.); Pls.’ Mem. App. A at 102
(Whinnery Dep.). [. . .]. E.g., Pls.’ App. B at 9–12 (Buckingham Decl. ¶¶ 26, 30, 35).
The parties disagree about whether the equipment exchange for 16-hour posts
is compensated. Defendant points to the Prison’s post orders as evidence that
Plaintiffs are allowed compensated time during their shifts for exchanges when
assigned to 16-hour posts. Def.’s App. at 508, 573, 575, 584, 597; Tr. at 105–07.
Plaintiffs’ declarations assert that the post orders have not been applied according to
their terms. Pls.’ App. B at 14–15 (Buckingham Decl. ¶ 40); id. at 29 (Conklin Decl.
¶ 38); see Tr. at 63–65, 131–32.
5 The exchanges for officers assigned to the Control Center and the J Unit Control post appear to
involve an inventory of equipment maintained at the post. E.g., Pls.’ App. B at 10, 14 (Buckingham
Decl. ¶¶ 27, 39); id. at 43 (Hackett Decl. ¶ 38).
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During the equipment exchange, the outgoing officer tells the incoming officer
about any safety and security issues. E.g., Pls.’ App. B at 13 (Buckingham Decl. ¶ 36).
Defendant does not dispute that some kind of exchange occurs, Def.’s Cross-Mot. at
9, but contends that it is unnecessary because the information can be obtained
through [. . .], Def.’s App. at 80–81 (Whinnery Dep.); id. at 12–13 (Dumont Dep.), and
because it is unproductive, id. at 70 (Whinnery Dep.) (describing the information
exchange as a “BS session”).
Post-Shift Activities
When the shift is over and a new officer arrives, Plaintiffs exchange equipment
with the incoming officer, proceed through the A-1 sally port, and exit the Prison. Pls.’
Mem. App. A at 56–57 (Juenger Dep.). They do not pass through a security screening
on the way out. Id. at 57. Exiting the Prison involves activities similar to Plaintiffs’
walks to their duty posts at the start of their shifts, e.g., Pls.’ App. B at 13–14
(Buckingham Decl. ¶¶ 37–38), and the parties dispute the details of the walk in
similar terms. Pls.’ Mem. App. A at 72–73, 92–96, 126 (Whinnery Dep.); e.g., Pls.’
App. B at 12–13 (Buckingham Decl. ¶¶ 32, 37); Def.’s App. at 508–14, 541, 575, 584
(post orders); id. at 107–08 (Whinnery Dep.).
DISCUSSION
I. Jurisdiction
The United States Court of Federal Claims has jurisdiction under the Tucker
Act to adjudicate “any claim against the United States founded … upon … any Act of
Congress or any regulation of an executive department … in cases not sounding in
tort.” 28 U.S.C. § 1491(a)(1). Because the Tucker Act is “a jurisdictional statute [that]
does not create any substantive right enforceable against the United States for money
damages,” United States v. Testan, 424 U.S. 392, 398 (1976) (citing Eastport S.S.
Corp. v. United States, 178 Ct. Cl. 599, 605–07 (1967)), parties asserting Tucker Act
jurisdiction must “identify a substantive right for money damages against the United
States separate from the Tucker Act itself.” Todd v. United States, 386 F.3d 1091,
1094 (Fed. Cir. 2004). That requires a “money-mandating” source of law, i.e., a statute
or regulation that “can fairly be interpreted as mandating compensation by the
Federal Government for the damage sustained and is reasonably amenable to the
reading that it mandates a right of recovery in damages.” Jan’s Helicopter Serv., Inc.
v. F.A.A., 525 F.3d 1299, 1307 (Fed. Cir. 2008) (quotes and citations omitted) (quoting
United States v. Mitchell, 463 U.S. 206, 217 (1983), and United States v. White
Mountain Apache Tribe, 537 U.S. 465, 473 (2003)).
Plaintiffs’ claims for unpaid overtime and liquidated damages arise under
FLSA, which is a money-mandating source of law. See Abbey v. United States, 745
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F.3d 1363, 1369 (Fed. Cir. 2014). Because Plaintiffs are government employees
seeking backpay and related relief, see Pls.’ App. B at 3 (Buckingham Decl. ¶ 1); id.
at 18 (Conklin Decl. ¶ 1); id. at 33 (Hackett Decl. ¶ 1); id. at 47 (Hagenburg Decl. ¶
1); id. at 57 (McPhillips Decl. ¶ 1); id. at 70 (Skelly Decl. ¶ 1); id. at 82 (Smith Decl.
¶ 1), they have standing to raise those claims.
Defendant has not objected to any Plaintiff’s claims on statute of limitations
grounds. But “the special statute of limitations governing the Court of Federal Claims
requires” that timeliness be considered a jurisdictional question, calling for “sua
sponte consideration.” John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 132
(2008). FLSA claims must be brought within two years of alleged violations, or within
three years if the violations were willful. 29 U.S.C. § 255(a). Plaintiffs claim that the
alleged violations were willful, and at least some Plaintiffs declare that they have
worked at the Prison since April 9, 2016, three years before the Complaint was filed.
See Pls.’ App. B at 3 (Buckingham Decl. ¶ 2); id. at 18 (Conklin Decl. ¶ 2); id. at 47(Hagenburg Decl. ¶ 2); id. at 57 (McPhillips Decl. ¶ 2); id. at 70 (Skelly Decl. ¶ 2); id.
at 82 (Smith Decl. ¶ 2). Plaintiffs have therefore established claims within the statute
of limitations for purposes of the present motions.6
II. Merits
A. Legal Standards
1. Summary Judgment
Plaintiffs seek summary judgment as to liability, and Defendant seeks
summary judgment and dismissal of the case. I consider the motions under RCFC 56,
which is modeled on the analogous federal rule.7 A party seeking summary judgment
must show “that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” RCFC 56(a). “[A]ll evidence must be
viewed in the light most favorable to the nonmoving party, and all reasonable factual
inferences should be drawn in favor of the nonmoving party.” Dairyland Power Co-
op. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986), and Adickes v. S.H. Kress & Co., 398 U.S. 144,
158–59 (1970)). Summary judgment should be granted “against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
6Each Plaintiff will need to establish his exact dates of employment in order to recover at trial.
7Kraft, Inc. v. United States, 85 F.3d 602, 605 n.6 (Fed. Cir.) (“The precedent interpreting the Federal
Rules of Civil Procedure applies with equal force to the comparable Rules of the Court of Federal
Claims.”), modified on denial of reh’g, 96 F.3d 1428 (Fed. Cir. 1996).
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Cross-motions for summary judgment should be evaluated as independent
motions. “[T]he court must evaluate each party’s motion on its own merits, taking
care in each instance to draw all reasonable inferences against the party whose
motion is under consideration.” Mingus Constructors, Inc. v. United States, 812 F.2d
1387, 1391 (Fed. Cir. 1987) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 313–
14 (2d Cir. 1981)). “[T]he court is not relieved of its responsibility to determine the
appropriateness of summary disposition in a particular case” even if the parties agree
that no material facts are disputed and summary disposition is appropriate. Williams
v. United States, 144 Fed. Cl. 218, 230 (2019) (citing Prineville Sawmill Co. v. United
States, 859 F.2d 905, 911 (Fed. Cir. 1988)).
2. FLSA and Compensable Work
Under FLSA, employees are entitled to compensation for hours worked,
including work “suffer[ed] or permit[ted]” by their employer. See 29 U.S.C. §§ 203(g),
207(a)(1); see also 5 C.F.R. § 551.401(a). The Portal-to-Portal Act clarifies that
compensable hours do not include travel and other “activities which are preliminary
to or postliminary to [the employee’s] 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). But if an employee performs
his principal activities, including tasks integral and indispensable to his work, before
or after his shift — and if the time he spends is more than de minimis —
compensation is generally required.8
Only time that federal employees spend on their principal activities is
compensable. Office of Personnel Management (“OPM”) regulations preclude
compensation for “[t]ime spent in preliminary or postliminary activities … even if it
occurs between periods of activity that are compensable as hours of work.” 5 C.F.R.
8Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 33 (2014) (quoting IBP, Inc. v. Alvarez, 546 U.S. 21,
29–30 (2005) (itself quoting Steiner v. Mitchell, 350 U.S. 247, 252–53 (1956))); Bobo v. United States,
136 F.3d 1465, 1468 (Fed. Cir. 1998); 5 C.F.R. § 551.412(a)(1) (requiring compensation for activities
taking more than ten minutes per workday that are “closely related to an employee’s principal
activities, and … indispensable to the performance of the principal activities”). The governing
regulation, promulgated by the Office of Personnel Management, diverges slightly from the Supreme
Court’s formulation by substituting the phrase “closely related” for “integral.” Compare 5 C.F.R.
§ 551.412(a)(1), with Integrity Staffing, 574 U.S. at 33. Integrity Staffing appears to address the
relationship between “closely related” and “integral” by quoting a Department of Labor interpretation
of the Portal-to-Portal Act: “Among the activities included as an integral part of a principal activity
are those closely related activities which are indispensable to its performance.” 574 U.S. at 35 (quoting
29 C.F.R. §790.8(c)). Because the “integral and indispensable” test is the Supreme Court’s gloss on the
Portal-to-Portal Act, the regulation might be in conflict with the statute if it means something
different. I will therefore assume that the regulation’s standard is identical to what the Supreme Court
has derived from the Portal-to-Portal Act.
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§ 551.412(b). That distinguishes the law applicable in this case from private sector
employment disputes governed by the “continuous workday rule,” under which all
time between the first and last principal activity of the day must generally be
compensated. See Bridges v. United States, 156 Fed. Cl. 129, 134 (2021), appeal filed,
No. 22-1140 (Fed. Cir. Nov. 10, 2021).
“Principal activities” include the work an employee is “employed to perform,”
29 U.S.C. § 254(a)(1), plus “all activities which are an ‘integral and indispensable part
of the principal activities.’” Integrity Staffing, 574 U.S. at 33 (quoting IBP, 546 U.S.
at 29–30). An activity is integral and indispensable to the employee’s principal
activities — and thus part of the principal activities, see IBP, 546 U.S. at 33 — “if it
is an intrinsic element of those activities and one with which the employee cannot
dispense if he is to perform his principal activities.” Integrity Staffing, 574 U.S. at 33.
To meet that test, it is not enough that a given activity is required by the employer
or done for the employer’s benefit. Id. at 36. Rather, the question is whether the
activities are “tied to” — that is, integral and indispensable to — “the productive work
that the employee is employed to perform.” Id.
A few examples illustrate the “integral and indispensable” test. On the one
hand, time meatpackers spend on knife-sharpening is integral and indispensable to
their work, because without it they could not cut meat safely and efficiently. Id. at 34
(citing Mitchell v. King Packing Co., 350 U.S. 260, 262 (1956)). Time battery plant
employees spend “showering and changing clothes” to protect themselves against
chemicals that are “toxic to human beings” is integral and indispensable to their work
as well: Poisoned employees cannot do their jobs. Id. (quoting Steiner, 350 U.S. at
249). On the other hand, time spent waiting to don protective gear is “two steps
removed from the productive activity,” and therefore not integral and indispensable.
IBP, 546 U.S. at 42. Most relevant to this case, the Supreme Court has also excluded
time warehouse employees spend being screened for theft after their shifts: The
employees’ principal activity was not “to undergo security screenings, but to retrieve
products from warehouse shelves and package those products for shipment,” so “[t]he
security screenings … were not ‘integral and indispensable’ to the employees’
duties[.]” Integrity Staffing, 574 U.S. at 35.
In addition, as mentioned, even pre- and post-shift time spent on “integral and
indispensable” activities must be more than de minimis to be compensable. Periods
of time adding up to less than 10 minutes per workday are de minimis, and therefore
noncompensable. 5 C.F.R. § 551.412(a)(1); see Bull v. United States, 68 Fed. Cl. 212,
244 n.25, decision clarified, 68 Fed. Cl. 276 (2005), aff’d, 479 F.3d 1365 (Fed. Cir.
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2007); Riggs v. United States, 21 Cl. Ct. 664, 682 (1990).9 The Federal Circuit has also
indicated that in some circumstances, periods of time longer than 10 minutes can be
de minimis too. See Carlsen v. United States, 521 F.3d 1371, 1380 (Fed. Cir. 2008), as
corrected on reh’g (Apr. 29, 2008) (“While it is true that the period that is normally
regarded as the cut-off for de minimis overtime is 10 minutes, that number has not
been treated as a rigid maximum.”) (citation omitted).
B. Plaintiffs’ Pre- and Post-Shift Time
To decide whether Defendant violated FLSA by failing to pay Plaintiffs’
overtime, I must determine whether the activities Plaintiffs completed were
(1) integral and indispensable to their principal activities and (2) more than de
minimis. I discuss Plaintiffs’ various activities to ascertain whether there are any
disputed questions of material fact regarding their compensability under FLSA.
Security Screening
The first activity at issue is the security screening Plaintiffs undergo when
they arrive at work. Pls.’ Mem. App. A at 97 (Whinnery Dep.). The purpose of the
security screening is to prevent contraband from entering the Prison. Id. I have twice
granted motions to dismiss FLSA claims by prison employees for time spent in
security screenings because the time was not “integral and indispensable” to their
principal activities. Alkire v. United States, 158 Fed. Cl. 380, 391 (2022); Medrano v.
United States, 159 Fed. Cl. 537, 545 (2022). The same result is required at summary
judgment on the facts presented here.
The security screenings are not the “principal activity or activities which
[Plaintiffs are] employed to perform.” 29 U.S.C. § 254(a)(1). Plaintiffs’ “primary job
duty,” rather, is to maintain the safety and security of the inmates, staff, and Prison.
Pls.’ Mem. App. A at 73, 79, 88, 150 (Whinnery Dep.). An aspect of ensuring safety
and security is that Plaintiffs inspect for contraband, confiscate contraband, and
prevent contraband from entering FCI Otisville, id. at 96, 105–06, but like the
employees in Integrity Staffing, Plaintiffs have no evidence that they are “employ[ed]
… to undergo security screenings,” 574 U.S. at 35, or that there is anything
“productive” about the security screenings. Id. at 36.
Nor is there evidence that security screenings are integral or indispensable to
Plaintiffs’ work, as the Supreme Court has defined the Portal-to-Portal Act
9Plaintiffs belatedly claim that 5 C.F.R. § 551.412(a)(1) and 5 C.F.R. § 551.412(b) are inconsistent
with DOL regulations to the disadvantage of covered federal employees, Tr. at 33–38; Pls.’ Reply at
29–30, but have not yet adequately presented the argument that either provision is invalid. See, e.g.,
Bridges, 156 Fed. Cl. at 134 n.4.
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standard.10 One consequence of the Portal-to-Portal Act is to separate “activities that
are essentially part of the ingress and egress process” from “activities that constitute
the actual ‘work of consequence performed for an employer[.]’” Integrity Staffing, 574
U.S. at 38 (Sotomayor, J., concurring) (quoting 29 C.F.R. § 790.8(a)). Pre-shift
security screenings, like post-shift screenings for employee theft and other arrival
and departure processes, “fall on the ‘preliminary or postliminary’ side of this line.”
Id. at 38–39 (alteration omitted).
The facts give no basis for finding that undergoing a security screening is an
“intrinsic element” of maintaining safety inside the Prison any more than the
screening in Integrity Staffing was an intrinsic element of handling products inside a
warehouse. There is no dispute that excluding contraband from the Prison and
confiscating it when found is an “important aspect of Plaintiffs’ primary job duty to
ensure safety and security.” Pls.’ Mem. at 5 (citing Pls.’ Mem. App. A at 96, 105–06
(Whinnery Dep.)). I understand that to mean employees are personally responsible
for not bringing contraband into the Prison, and that Prison guards screen visitors,
employees, and inmates for contraband. But it does not follow that being screened to
ensure compliance with contraband rules is an intrinsic part of Plaintiffs’ job.
On the contrary: Just as a theft screening is “not an intrinsic element of
retrieving products from warehouse shelves or packaging them for shipment,”
Integrity Staffing, 574 U.S. at 35, Plaintiffs point to nothing in the record suggesting
that they must spend time in screening in order to remove contraband from the
Prison, screen others for contraband, and refrain from bringing contraband in. The
screening and the job functions are distinct in every way. They are certainly not
related in the way that sharpening a knife is connected with cutting meat, or that
wearing protective gear is connected with handling dangerous chemicals. Steiner, 350
U.S. at 249–50; King Packing, 350 U.S. at 262. The screening — like other kinds of
waiting time before or after shifts — is therefore “two steps removed” from the
activities the employees are employed to perform. IBP, 546 U.S. at 42. That means
the work and the screening are not “intrinsic” to each other. See Integrity Staffing,
574 U.S. at 38 (Sotomayor, J., concurring) (observing that screenings were not
principal activities even though they “in some way related to the work that the
employees performed”).
For similar reasons, Plaintiffs’ screenings are not “indispensable” to their work
because they are not activities “with which the employee cannot dispense if he is to
10 “As explained above, an activity is not integral and indispensable to an employee’s principal
activities unless it is an intrinsic element of those activities and one with which the employee cannot
dispense if he is to perform those activities.” Integrity Staffing, 574 U.S. at 35.
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perform those activities.” Id. at 35 (majority opinion). Plaintiffs emphasize the
importance of preventing contraband from entering the Prison and argue on that
basis that contraband screenings are part of their principal activities. Pls.’ Mem. at
25–26. But it is not the screening that makes it possible for Plaintiffs to do their jobs;
rather, it is following Prison rules that forbid contraband.
Suppose two Prison employees came to work at the same duty post on the same
day, neither one carrying contraband. Even if one was screened and the other was
not, nothing in the record suggests they could not perform their own duties equally
well. Or suppose there are two hypothetical prisons, one of which screened all its
employees and one of which did not. There is no dispute that the safety and
effectiveness of the employees inside each prison would depend on whether they
introduced contraband, rather than on whether they were screened. Precisely the
same was true in Integrity Staffing: Assuming warehouse employees refrained from
stealing, whether they were screened or not at the end of their shifts makes no
difference in whether they could do their jobs. The only inference from the facts is
that like in Integrity Staffing, the Prison “could have eliminated the screenings
altogether without impairing the employees’ ability to complete their work.” 574 U.S.
at 35.11
There is no interpretation of the record that avoids Integrity Staffing. One way
to construe Plaintiffs’ argument is that a Prison employee who introduces contraband
into the Prison cannot safely do his job. Or perhaps Plaintiffs mean that an employee
cannot do his job if other employees have introduced contraband. But it is equally
obvious that the employees in Integrity Staffing could not have done their work of
“retrieving products from warehouse shelves or packaging them for shipment” if they
(or their colleagues) were stealing the products instead. Id. at 35. If that were enough
to render a screening indispensable, Integrity Staffing would have allowed the
employees’ claims to proceed.
Yet another construction of Plaintiffs’ argument is that excluding contraband
is essential to Prison management, such that managing the Prison is impossible
unless Plaintiffs are not only prohibited from bringing contraband but screened at
entry. But even that is irrelevant to the Integrity Staffing test, which focuses solely
on indispensability to “the employee.” 574 U.S. at 35 (emphasis added). A warehouse,
11That also distinguishes this case from King Packing and Steiner. A meatpacker can cut meat if he
sharpens his knives, but not if he fails to do so. King Packing, 350 U.S. at 262 (“[A] knife to be of any
practical value in a knife job has to be sharp.”) (quotes and alteration omitted). A battery plant
employee can work if he wears protective clothing, but not if he is poisoned by lead and burned by
sulphuric acid. Steiner, 350 U.S. at 249–50. In both cases, the specific use of time at issue was what
made the work possible.
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after all, could not function if its employees walked off with the merchandise. That is
presumably why the employer in Integrity Staffing required post-shift screening. Just
so here: The Prison may not be able to dispense with screenings — as opposed to only
a written policy on contraband — but nothing in the facts suggests that Plaintiffs
cannot. Id. at 33 (“It is not enough that a given activity is done for the employer’s
benefit.”).
What Integrity Staffing suggests, in other words, is a distinction between an
employee’s principal activities, the rules the employee must follow at work, and
processes the employer puts in place to enforce compliance with the rules —
particularly at ingress and egress.12 An employee might have to follow a rule at work,
and the compliance measures might be required by the employer, see Integrity
Staffing, 574 U.S. at 36, but it does not follow that the measures are indispensable to
the employee’s principal activities. Once again, compliance measures are “two steps
removed” from the work. IBP, 546 U.S. at 42.
The foregoing interpretation of Integrity Staffing tallies with the Supreme
Court’s reliance on a Department of Labor (“DOL”) opinion letter concluding that a
pre-shift search at a rocket-powder plant for “matches, spark producing devices such
as cigarette lighters, and other items which have a direct bearing on the safety of the
employees” was not compensable. See Integrity Staffing, 574 U.S. at 35–36 (citing
Dep’t of Labor, Wage & Hour Div., Opinion Letter to Dep’t of Army, Off. of Chief of
Ordnance (Apr. 18, 1951), pp. 1–2). If a pre-shift search for prohibited fire-starters at
an explosives factory is not integral or indispensable to those employees’ principal
activities, it is hard to imagine why a search for contraband at a prison would be:
Both searches are directed at excluding items that would be dangerous in the
workplace. That interpretation also tallies with the bulk of authority holding as a
matter of law (either at the pleadings or at summary judgment) that pre-shift security
screenings generally are not compensable.13
12 See Sanford v. Preferred Staffing Inc., 447 F. Supp. 3d 752, 756 (E.D. Wis. 2020) (“Plaintiffs contend
that the preliminary processes required by the Staffing Defendants are indeed integral to the principal
activities they were hired to perform. … Plaintiffs’ view again conflates the requirements an employer
imposes upon its employees with the actual work the employees are meant to perform.”); Dinkel v.
MedStar Health Inc., 99 F. Supp. 3d 37, 40 (D.D.C. 2015) (“Plaintiffs argue that they have established
that the Class members’ uniform maintenance activities were part of their principal work duties
because their job descriptions required compliance with Defendants’ dress and appearance, patient
safety and inflectional control policies. … However, a requirement to comply with these several policies
is not enough to establish uniform maintenance as a principal work activity. An activity is only
compensable as a principal activity if the employee is ‘employed to perform’ that activity.”) (quotes and
citation omitted) (quoting Integrity Staffing, 574 U.S. at 34).
13 Gorman v. Consolidated Edison Corp., 488 F.3d 586, 592–93 (2d. Cir. 2007) (pleadings); Bonilla v.
Baker Concrete Construction, Inc., 487 F.3d 1340, 1345 (11th Cir. 2007) (summary judgment); Whalen
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Plaintiffs’ principal contrary authority, Aguilar v. Management & Training
Corp., is against the weight of caselaw. 948 F.3d 1270 (10th Cir. 2020). It is also
wrongly decided. In that case, the Tenth Circuit held that a pre-shift security
screening for prison employees was part of the employees’ principal activities because
“the security screening and the officers’ work share the same purpose” and because
the screening was “tied to” the employees’ work. Id. at 1278 (quoting Integrity
Staffing, 574 U.S. at 36).
That test is incorrect. The question is not whether pre-shift activities align
with the “purpose” of employment. If it were, then virtually every pre- and post-shift
activity required by an employer would be compensable. Why would an employer
mandate a given activity in the first place if not to further the “purpose” of
employment? Integrity Staffing rejects that approach: “If the test could be satisfied
merely by the fact that an employer required an activity, it would sweep into
‘principal activities’ the very activities that the Portal-to-Portal Act was designed to
address.” 574 U.S. at 36.14
Nor is it enough for an activity to be “tied to” the employee’s work. Aguilar, 948
F.3d at 1278. The Tenth Circuit took that test from Integrity Staffing’s reference to
activities “tied to the productive work that the employee is employed to perform.” 574
U.S. at 36. But it appears to have read the Integrity Staffing Court’s language in
isolation, not in the context of a detailed explanation of what it means for pre- or post-
shift activity to be part of the employee’s principal activities. Far from merely
directing lower courts to analyze in the abstract whether an activity is “tied to” an
v. United States, 93 Fed. Cl. 579, 600 (2010) (summary judgment); Henderson v. Cuyahoga Cty., No.
1:20-CV-1351, 2020 WL 5706415, at *3 (N.D. Ohio Sept. 24, 2020) (pleadings); Cinadr v. KBR, Inc.,
No. 3:11-CV-00010, 2013 WL 12097950, at *7 (S.D. Iowa Feb. 15, 2013) (summary judgment); Ceja-
Corona v. CVS Pharmacy, Inc., No. 1:12-CV-01868, 2013 WL 796649, at *9 (E.D. Cal. Mar. 4, 2013)
(pleadings), on reconsideration in part, No. 1:12-CV-01868, 2013 WL 3282974 (E.D. Cal. July 2, 2013);
Jones v. Best Buy Co., No. CV-12-95, 2012 WL 13054831, at *2–3 (D. Minn. Apr. 12, 2012) (pleadings);
Phillips v. Washington Grp. Int’l, Inc., No. 1:09-CV-00431, 2010 WL 11561237, at *5 (N.D. Ala. Sept.
29, 2010) (summary judgment); Anderson v. Perdue Farms, Inc., 604 F. Supp. 2d 1339, 1359 (M.D. Ala.
2009) (summary judgment); Sleiman v. DHL Express, No. CIV.A. 09-0414, 2009 WL 1152187, at *4–5
(E.D. Pa. Apr. 27, 2009) (pleadings); but see Fritz v. Corizon Health, Inc., No. 6:19-CV-03365, 2020 WL
9215899, at *9 (W.D. Mo. Jan. 31, 2020) (declining to dismiss claims involving security screening for
state prison nurses).
14 That does not necessarily mean I must ignore the purpose of employment. Identifying an employee’s
“principal activities” and their relationship to other activities presumably entails understanding what
ends his employment is supposed to serve — much like interpreting statutory terms might depend on
knowing the statute’s subject matter or the problem the statute is supposed to solve. Cf. ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 20 (2012); Samuel
L. Bray, The Mischief Rule, 109 GEO. L.J. 967 (2021). The employer’s purpose, however, is not an
analytical substitute for the employee’s actual work tasks any more than a statute’s purpose displaces
its text.
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employee’s principal activities, the Court requires analyzing whether the activity is
integral and indispensable — a more focused inquiry, rooted in the words of the
Portal-to-Portal Act. The Supreme Court’s reasoning precludes the vague, atextual
search for relatedness that the Aguilar court used. See id. at 33; see also id. at 38(Sotomayor, J., concurring).
By asking the wrong questions, the Aguilar court reached the wrong answers.
The Tenth Circuit held that the screenings were “‘an intrinsic element of’ the officers’
security work” because “the security screening and the officers’ work share the same
goal,” Aguilar, 948 F.3d at 1279 (quoting Integrity Staffing, 574 U.S. at 33) — a
mistaken test that conflates the employer’s purposes with the employee’s principal
activities. The court also concluded that the screenings were “indispensable” because
“an officer cannot safely and effectively maintain custody and discipline of inmates
and provide security while also bringing weapons or contraband into the prison,” id.
(quotes and alterations omitted) — which, as explained above, confuses the
employer’s requirements for the employee with the compliance measures the
employer chooses to implement.
As a result, as a matter of law, any time Plaintiffs spend on pre-shift security
screenings is not compensable because it is not “integral and indispensable” to their
principal activities.
Donning the Duty Belt
The second activity at issue is donning a security belt and other gear. It is
undisputed that Plaintiffs need a belt with certain attachments, including metal clips
and chits, before they can obtain other equipment. Pls.’ Mem. App. A at 99–100, 104
(Whinnery Dep.); Def.’s App. at 58–59 (Whinnery Dep.); Pls.’ App. B at 8–9
(Buckingham Decl. ¶¶ 23–24). Whether that time is compensable involves questions
of fact that cannot be resolved at summary judgment.
When donning specialized equipment such as protective gear is necessary for
a job, the time spent donning is integral and indispensable to the job and therefore
compensable. IBP, 546 U.S. at 30. That rule, however, does not extend to generic
equipment, even when the generic equipment is required. The Supreme Court has
contrasted “the donning and doffing of specialized protective gear,” which can be
compensable time, see IBP, 546 U.S. at 30, with activities analogous to “changing
clothes and showering under normal conditions,” which is not, see Steiner, 350 U.S.
at 249. Some courts have distinguished between “special protective gear,” Reich v.
IBP, Inc., 38 F.3d 1123, 1126 (10th Cir. 1994), and “generic protective gear,” like “a
helmet, safety glasses and steel-toed boots,” Gorman, 488 F.3d at 594; see Reich, 38
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F.3d at 1125; see also Integrity Staffing, 574 U.S. at 36 (an activity is not integral and
indispensable “merely [because] an employer required [the] activity”).
Some of the parties’ disputes seem to be immaterial. Where Plaintiffs don their
belt — a major dispute in the briefing — might matter if the continuous workday rule
applied. In that event, if donning were Plaintiffs’ first principal activity, Plaintiffs
could then argue that everything they do afterward until their last principal activity
of the day is compensable. Pls.’ Reply at 14–15.15 But the continuous workday rule
does not apply to federal employees covered by OPM regulations, see Bridges, 156
Fed. Cl. at 134, so noncompensable activities do not become compensable merely by
virtue of taking place after a compensable activity.16 The compensability of Plaintiffs’
time has to be evaluated activity-by-activity. Because the continuous workday rule
does not apply, it is immaterial where or when Plaintiffs don their belt.
What does matter, then, is the nature of the items Plaintiffs don — because
only donning specialized equipment is compensable — and how long the donning
takes. Although a duty belt — regardless of its exact characteristics — is likely a
generic item rather than a specialized one, Def.’s App. at 658 (O’Kane Decl. ¶¶ 14,
16), the question is factual. Likewise, the parties disagree on the exact characteristics
required of the belt. Pls.’ Reply at 15–16; Def.’s Cross-Mot. at 29–30. The parties’
factual disagreements prevent me from resolving the question as a matter of law. The
same is true of the clips, chits, and chains Plaintiffs attach to their belts. Pls.’ Mem.
App. A at 98, 103 (Whinnery Dep.); Def.’s App. at 56–57 (Whinnery Dep.).
Nor does the record permit a clear conclusion about how much time donning
takes. As mentioned, pre- and post-shift activities are only compensable if they
require more than de minimis time, and the parties disagree about how long their
pre- and post-shift activities take. Def.’s Cross-Mot. at 50–57; Pls.’ Reply at 33–37.
But even eliminating certain time from Plaintiffs’ claims, it is Defendant’s burden to
show there is no question of fact that the remaining time is de minimis. Dairyland
Power, 16 F.3d at 1202. Conflicts between Plaintiffs’ declarations and Defendant’s
video analysis, and between different views of the accuracy of the video analysis, are
not suitable for summary judgment. See Jay v. Sec’y of Dep’t of Health & Hum. Servs.,
998 F.2d 979, 982 (Fed. Cir. 1993) (citing Anderson, 477 U.S. at 255). Defendant’s
argument that Plaintiffs’ time is de minimis even if longer than 10 minutes — based
on factors such as “practical administrative difficulty of recording additional time,
15 Likewise, if the security screening had involved compensable time, donning the belt would also be
compensable time under the continuous workday rule if it happened afterward.
16 That obviates the question whether a de minimis activity can start a continuous workday. See Singh
v. City of New York, 524 F.3d 361, 371 n.8 (2d Cir. 2008); but see Butler v. DirectSAT USA, LLC, 55 F.
Supp. 3d 793, 817 (D. Md. 2014),
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the aggregate amount of compensable time, and the regularity of the work,” Def.’s
Cross-Mot. at 49 (quoting Carlsen, 521 F.3d at 1380–81) — is even less amenable to
resolution at this stage.
Finally — even if Plaintiffs show that donning the belt is integral and
indispensable to their work and takes place immediately after security screening —
some subsequent pre-shift activities are noncompensable, as discussed below. If the
factual record ultimately shows that donning a belt takes a matter of moments, there
would be a legal question about whether de minimis time spent in integral and
indispensable activities can be aggregated with non-contiguous time spent on other
integral and indispensable activities during the workday. The parties have not
adequately briefed that question, so I express no view on it here.
Clearing the Sally Port
The next activity at issue is clearing the sally port. Checking in and waiting to
check in are ordinarily noncompensable as preliminary and postliminary time.
Integrity Staffing, 574 U.S. at 34 (citing DOL regulations); id. at 39 (Sotomayor, J.,
concurring) (reasoning that “checking in and out and waiting in line to do so” are
“activities that Congress clearly deemed to be preliminary or postliminary”).
Plaintiffs concede that clearing the sally port fits that description. See Tr. at 53; see
also Alkire, 158 Fed. Cl. at 395–96. There is no genuine dispute of material fact on
that question.
Plaintiffs argue instead that passing through the sally port is compensable as
part of the continuous workday. Tr. at 53. But the continuous workday rule does not
apply. Bridges, 156 Fed. Cl. at 134. Time spent passing through the sally port is
therefore non-compensable as a matter of law.
Proceeding to and from the Duty Post
The next segment of Plaintiffs’ claims involves the time they spend walking
from the sally port to duty stations (other than the Control Center), and then back to
the sally port at the end of the day. Factual disputes about that time — in addition
to the parties’ dispute about whether pre- and post-shift activities involve more than
de minimis time — preclude summary judgment for either party.
Simply walking from a check-in location to a workstation is expressly excluded
from compensation under the Portal-to-Portal Act. 29 U.S.C. § 254(a)(1); IBP, 546
U.S. at 40–41. Some cases have held that no compensation is required for time when
off-duty employees need to be on call or generally vigilant. See, e.g., Akpeneye v.
United States, 990 F.3d 1373, 1383–85 (Fed. Cir. 2021). The Eleventh Circuit,
moreover, has held that time police officers spend commuting in marked police
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vehicles is noncompensable even if they have to respond to “accidents, disabled
vehicles, flagrant safety violations, or even routine traffic violations” on the way.
Llorca v. Sheriff, Collier Cty., Fla., 893 F.3d 1319, 1327 (11th Cir. 2018). But time on
“standby status” is sometimes compensable work, see, e.g., Akpeneye, 990 F.3d at 1383
(citing Armour & Co. v. Wantock, 323 U.S. 126 (1944), and Skidmore v. Swift & Co.,
323 U.S. 134 (1944)), and of course compensable work can involve walking from place
to place.
Plaintiffs have provided evidence that when they walk from the sally port to
their duty stations, they must maintain “constant vigilance,” Pls.’ Mem. App. A at
113–14 (Whinnery Dep.), and that they must correct behavior and otherwise interact
with inmates, id. at 92–96, 126; Pls.’ App. B at 12 (Buckingham Decl. ¶¶ 32–34). If
that is true, Plaintiffs may be performing their principal duties while walking. But
Defendant disputes Plaintiffs’ characterization of their walk in several respects,
including whether Plaintiffs’ vigilance constitutes work and whether inmate
interactions actually occur. Def.’s Cross-Mot. at 38–40 (citing, inter alia, Akpeneye v.
United States, 138 Fed. Cl. 512, 521–29 (2018), aff’d, 990 F.3d 1373); Def.’s App. at
508–14 (Compound #1 Post Orders); id. at 48, 102–03 (Whinnery Dep.); Tr. at 108–
12.
The parties’ disagreement is genuine because they present contradictory
evidence. And the dispute is material because it goes to whether Plaintiffs perform
their principal activity of maintaining Prison security — i.e., whether they are
engaging in compensable activities or merely covering distance. The dispute also
bears on how to characterize Plaintiffs’ need to maintain vigilance while walking,
which may or may not be compensable depending on the specifics. Such fact-
dependent questions are unsuitable for resolution as a matter of law where the
evidence conflicts. See Cheung v. United States, 157 Fed. Cl. 508, 532 (2021) (citing
Skidmore, 323 U.S. at 133) (explaining that disputes over “whether an employee is in
on-call or on standby duty status are questions of fact”).
Relatedly, the parties dispute the facts of Plaintiffs’ stop at the Lieutenant’s
office, in particular the necessity of the stop for receiving pre-shift information. Pls.’
App. B at 11 (Buckingham Decl. ¶ 31); Pls.’ Mem. App. A at 8–9 (Dumont Dep.); Def.’s
App. at 7–9 (Dumont Dep.).17 Time in pre-shift briefings is sometimes compensable,
17 Defendant argues that Plaintiffs failed to plead claims related to time visiting the Lieutenant’s
office. Def.’s Cross-Mot. at 43–44. Although the Complaint does not mention the office visits, Plaintiffs
have not introduced new claims or claims about a new time period. See Coleman v. Bowden, 797 F.
App’x 422, 430 (11th Cir. 2019) (plaintiffs “cannot raise a new, unpled claim at the summary judgment
stage”) (emphasis added); Albrecht v. Wackenhut Corp., 379 F. App’x 65, 68 (2d Cir. 2010) (plaintiffs
cannot be compensated when “the operative complaint did not allege … failure to compensate for [a
specific] time period”) (emphasis added). Plaintiffs merely described an additional specific activity
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depending on the facts. Serna v. Bd. of Cty. Comm’rs of Rio Arriba Cty., No. CV 1:17-
00196, 2018 WL 3849878, at *5 (D.N.M. Aug. 13, 2018) (holding that pre-shift
security briefings for correctional officers were integral and indispensable); Jimenez
v. Bd. of Cty. Comm’rs of Hidalgo Cty., 697 F. App’x 597, 598–99 (10th Cir. 2017)
(reversing the district court’s summary judgment determination that the time spent
on a pre-shift briefing for a 911 dispatcher was not integral and indispensable). But
because I cannot resolve factual questions about the substance and necessity of
Plaintiffs’ visits to the Lieutenant’s office, summary judgment is inappropriate as to
that dispute as well.
Equipment and Information Exchanges
The parties do not appear to disagree that the exchange of equipment between
outgoing and incoming officers is integral and indispensable to Plaintiffs’ duties. Pls.’
Mem. at 29; Def.’s Cross-Mot at 48, 51. But as above, the parties dispute whether
Plaintiffs’ pre- and post-shift time is more than de mimimis. There appear to be
several other genuine disputes of material fact as well.
For one thing, the parties disagree about whether officers on 16-hour shifts are
compensated when they begin the exchange at the Control Center. Def.’s App. at 508,
573, 575, 584, 597 (post orders); Pls.’ App. B at 14–15 (Buckingham Decl. ¶ 40); Pls.’
App. B at 29 (Conklin Decl. ¶ 38); see Tr. at 63–65, 105–07, 131–32. The parties also
disagree about whether the information exchange at the duty post is necessary or
even productive for the incoming officer’s duties. E.g., Pls.’ App. B at 13 (Buckingham
Decl. ¶ 36); Def.’s App. at 70, 80–81 (Whinnery Dep.); id. at 12–13 (Dumont Dep.). I
cannot resolve those genuine disputes at summary judgment, and they preclude
judgment as a matter of law.
C. Liquidated Damages and Three-Year Statute of Limitations
Plaintiffs argue that they are entitled to liquidated damages and a three-year
statute of limitations. Pls.’ Mem. at 36–40. Defendant cross-moves on the same
issues. Def.’s Cross-Mot. at 62. Summary judgment is inappropriate for either side.
A FLSA plaintiff is presumptively entitled to liquidated damages when a
defendant violates FLSA. 29 U.S.C. § 216 (a defendant “shall be liable to the employee
or employees affected in the amount of … their unpaid overtime compensation … and
in an additional equal amount as liquidated damages”). A court can decline to award
during allegedly uncompensated time. Plaintiffs are not required to list every allegedly compensable
activity in which they were engaged in order to state a valid claim for overtime under FLSA. Adegbite
v. United States, 156 Fed. Cl. 495, 504 (2021) (“While each Plaintiff will need to prove the specific
overtime hours they worked without compensation to win their case, they do not need to plead each of
those hours in their Complaint.”).
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liquidated damages (or reduce the amount) if the defendant “shows to the satisfaction
of the court that the act or omission giving rise to [the FLSA] action was in good faith
and that he had reasonable grounds for believing that his act or omission was not a
violation of [FLSA].” 29 U.S.C. § 260; Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 128 n.22 (1985); Shea v. United States, 976 F.3d 1292, 1299 (Fed. Cir. 2020). To
obtain the benefit of a three-year statute of limitations, Plaintiffs must demonstrate
that Defendant willfully violated FLSA. 29 U.S.C. § 255(a). An employer has acted
willfully when he “either knew or showed reckless disregard for the matter of whether
[his] conduct was prohibited by [FLSA].” McLaughlin v. Richland Shoe Co., 486 U.S.
128, 133 (1988).
Until Plaintiff establishes that Defendant is actually liable for a FLSA
violation, there is no basis to resolve questions about Defendant’s state of mind. See
Moreno v. United States, 82 Fed. Cl. 387, 395, 398 (2008). The parties may develop
the relevant evidence on the merits as necessary.
CONCLUSION
In summary, Plaintiffs’ Motion for Partial Summary Judgment is DENIED.
Defendant’s Motion for Partial Summary Judgment is GRANTED as to Plaintiffs’
claims related to (1) the security screening, and (2) clearing the sally port. It is
DENIED in all other respects.
The parties are ORDERED to submit a joint status report proposing further
proceedings no later than September 26, 2022.
Pursuant to the Court’s October 31, 2019 Protective Order (ECF 15), this
Opinion has been issued under seal. The transcript of oral argument is under seal as
well. The parties shall have two weeks to propose redactions and, accordingly, shall
file notice of their proposed redactions no later than September 8, 2022. To aid the
Court’s evaluation of the proposed redactions and in light of the “presumption of
public access to judicial records,” Baystate Techs., Inc. v. Bowers, 283 F. App’x 808,
810 (Fed. Cir. 2008) (per curiam), each party shall file a memorandum explaining
why redactions are necessary for each item of information for which a redaction is
proposed.
IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge
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