Perez v. The City of New York, No. 15-315 (2d Cir. 2016)
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Several active and former Assistant Urban Park Rangers (AUPRs) employed by the City's Parks Department alleged that they, and others similarly situated, were not paid in accordance with the requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq. The district court granted partial summary judgment for defendants and closed the case without further proceedings. The court vacated and remanded for further proceedings. On the current record, the court could not conclude as a matter of law that plaintiffsʹ donning and doffing of uniforms were not integral and indispensable to their principal activities as AUPRs - the sole ground on which the district court granted partial summary judgment. Therefore, the court remanded to allow the district court to decide, in the first instance, whether plaintiffsʹ donning and doffing are nevertheless non‐compensable as a matter of law under the de minimis doctrine or the terms of a collective bargaining agreement. The district court should also resolve the issues that defendants raise as to their entitlement to partial summary judgment on other aspects of plaintiffsʹ claims, which the district court's decision erroneously failed to reach. Absent another appeal or additional motions by the parties that dispose of the action in its entirety, the case should then proceed to trial.
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15 315 Perez v. The City of New York 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2015 4 (Argued: November 30, 2015 Final Submission: January 22, 2016 5 Decided: August 2, 2016) 6 Docket No. 15 315 7 8 9 10 11 Henry Perez, Baselice Ralph, Juan Bayron, Jerry Cordero, Ronald Eason, Donald Koonce, Joseph Oro, Ruben Rios, Jr., Pedro Rosado, and Derek G. Walther, on behalf of themselves and others similarly situated, Plaintiffs Appellants, 12 v. 13 14 15 16 The City of New York, Mayor Bill de Blasio, The New York City Department of Parks & Recreation, and Mitchell J. Silver, in his official capacity as Commissioner of the Department of Parks & Recreation, Defendants Appellees.* 17 18 Before: SACK, CHIN, and LOHIER, Circuit Judges. Current and former Assistant Urban Park Rangers employed by New York 19 20 City s Department of Parks & Recreation filed a collective action in the United 21 States District Court for the Southern District of New York alleging violations of 22 the Fair Labor Standards Act, including the Department s refusal to compensate 23 them for time spent putting on and taking off ( donning and doffing ) required 24 uniforms. The district court (Shira A. Scheindlin, Judge) granted partial summary The Clerk of Court is respectfully directed to amend the official caption as set forth above. * 1 judgment for the defendants and, without further proceedings, closed the case. 2 We conclude that the district court erred both in granting partial summary 3 judgment and in closing the case while several claims remained unresolved. The 4 judgment of the district court is therefore vacated and the cause remanded for 5 further proceedings. VACATED and REMANDED. 6 JAMES REIF (Amelia K. Tuminaro, on the brief), Gladstein, Reif & Meginniss, LLP, New York, NY, for Plaintiffs Appellants. 7 8 9 10 11 12 13 DEVIN SLACK, of counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants Appellees. 14 15 16 17 18 19 20 21 22 RACHEL GOLDBERG, Senior Attorney (Jennifer S. Brand, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, Mary E. McDonald, Senior Attorney, on the brief), for M. Patricia Smith, Solicitor of Labor, U.S. Department of Labor, Washington, DC, for Amicus Curiae the Secretary of Labor in support of Plaintiffs Appellants. 23 SACK, Circuit Judge: The Fair Labor Standards Act of 1938 ( FLSA ), 29 U.S.C. § 201 et seq., 24 25 regulates the manner in which many New York City employees must be paid. 26 The statute defines certain employment related activities as compensable and 2 1 sets parameters for both regular and overtime wages. In this case, several active 2 and former Assistant Urban Park Rangers ( AUPRs ) employed by the City s 3 Department of Parks & Recreation ( Parks Department ) allege that they, and 4 others similarly situated, were not paid in accordance with the FLSA s 5 requirements. BACKGROUND 6 AUPRs are employed to perform a range of public services in the City s 7 8 parks. For the purposes of this appeal, the defendants accept the plaintiffs 9 assertion that those services include: providing directions and other information 10 to persons seeking to use parks or pools; providing assistance to those persons 11 involved in accidents or those who may be victims of unlawful activity and 12 investigating such accidents or activity; implementing crowd control procedures 13 at special events; providing safety and educational information to the public; and 14 issuing summonses to or making arrests of persons suspected of unlawful 15 conduct under laws, including New York City rules and regulations, governing 16 use of the parks and pools. Appellants Br. at 10; see Appellee s Br. at 10 11. 17 During a shift, AUPRs are required to wear uniforms comprising both 18 professional clothing and equipment. The professional clothing includes olive 3 1 drab pants and jacket, Smokey the Bear style hats, and various Parks 2 Department insignias, while the equipment includes a bulletproof vest and a 3 utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, 4 a summons book, and a tape recorder. App x 213 14 (official Parks Department 5 uniform policy). The plaintiffs estimates of the time needed to don and doff 6 those uniforms each day (that is, to put them on before a shift and take them off 7 afterward) range from approximately five to thirty minutes. The plaintiffs claim that the defendants — the Parks Department and its 8 9 Commissioner, along with the City and its mayor — provided inadequate 10 compensation for their work as AUPRs in four respects: (1) by failing to pay 11 wages for compensable activities that the plaintiffs performed immediately 12 before and after their regularly scheduled shifts, including donning and doffing 13 their uniforms; (2) by failing to pay wages for compensable activities that the 14 plaintiffs performed during lunch breaks; (3) by providing one hour, rather than 15 one hour and a half, of compensatory leave for each hour of overtime that the 16 plaintiffs worked; and (4) by providing compensatory leave, rather than 17 monetary payment, for overtime that the plaintiffs worked after individually 18 accruing 480 hours of compensatory leave. The defendants counter that, to the 4 1 extent the FLSA applied to the plaintiffs and their employment, their 2 compensation complied with the statute. After the close of discovery, the defendants moved for partial summary 3 4 judgment on several discrete issues. First, they argued that the plaintiffs 5 donning and doffing of uniforms were not compensable activities under the 6 FLSA, for three independent reasons: (i) the activities were not integral and 7 indispensable to the plaintiffs principal activities during a shift; (ii) the time 8 spent donning and doffing should be discounted as de minimis; and (iii) in any 9 event, that time was rendered non compensable by the plaintiffs collective 10 bargaining agreement. Second, the defendants contended that any claim 11 premised on work performed before June 22, 2009, was barred by the FLSA s 12 limitations period. Third, they asserted that the plaintiffs were not entitled to 13 compensation for the overtime they allegedly worked before and after their 14 shifts, or during meal breaks, because they did not adequately report it. Finally, 15 the defendants argued that the Parks Department was not a proper party to the 16 lawsuit. In its January 15, 2015 decision, the district court (Shira A. Scheindlin, 17 18 Judge) concluded as a matter of law that the plaintiffs donning and doffing of 5 1 uniforms were not compensable activities under the FLSA because they did not 2 qualify as integral and indispensable to the plaintiffs principal activities. Perez v. 3 City of New York, No. 12 Civ. 4914, 2015 WL 424394, at *5, 2015 U.S. Dist. LEXIS 4 13425, at *16 (S.D.N.Y. Jan. 15, 2015). The court granted partial summary 5 judgment for the defendants on that basis alone, without reaching the additional 6 arguments made in the motion. See id. The court then ordered the case closed. 7 Id. The plaintiffs timely appealed, arguing that the district court erroneously 8 granted partial summary judgment on the compensability of their donning and 9 doffing and prematurely closed the case. DISCUSSION 10 We vacate the district court s decision and remand for further proceedings. 11 12 On the current record, we cannot conclude as a matter of law that the plaintiffs 13 donning and doffing of uniforms were not integral and indispensable to their 14 principal activities as AUPRs — the sole ground on which the district court 15 granted partial summary judgment. We therefore remand to allow the district 16 court to decide, in the first instance, whether the plaintiffs donning and doffing 17 are nevertheless non compensable as a matter of law under the de minimis 18 doctrine or the terms of a collective bargaining agreement. The district court 6 1 should also resolve the issues that the defendants raise as to their entitlement to 2 partial summary judgment on other aspects of the plaintiffs claims, which the 3 January 15, 2015 decision erroneously failed to reach. Absent another appeal or 4 additional motions by the parties that dispose of the action in its entirety, the 5 case should then proceed to trial. 6 I. Donning and Doffing 7 A. The FLSA generally mandates compensation for the principal activity or 8 9 Integral and Indispensable activities which [an] employee is employed to perform, 29 U.S.C. § 254(a)(1), 10 including tasks — even those completed outside a regularly scheduled shift — 11 that are an integral and indispensable part of the principal activities, IBP, Inc. v. 12 Alvarez, 546 U.S. 21, 30 (2005) (quoting Steiner v. Mitchell, 350 U.S. 247, 256 13 (1956)). But the FLSA does not require payment for time spent on activities 14 which are preliminary to or postliminary to an employee s principal activities. 15 29 U.S.C. § 254(a)(2). The parties dispute which standard applies to the plaintiffs 16 donning and doffing of uniforms: The plaintiffs characterize those tasks as 17 integral and indispensable to (and thus part of) their principal activities as 7 1 AUPRs, while the defendants describe them as preliminary or postliminary 1 to 2 all principal activities. The district court concluded that the defendants were 3 correct as a matter of law. After reviewing the record de novo,2 we disagree. An activity qualifies as integral if it is intrinsically connected with a 4 5 principal activity that an employee was hired to perform. Gorman v. Consol. 6 Edison Corp., 488 F.3d 586, 591 (2d Cir. 2007) (quoting Mitchell v. King Packing Co., 7 350 U.S. 260, 262 (1956)). And an activity is indispensable if it is necessary to 8 the performance of a principal activity. Id. at 592. An activity is therefore 9 integral and indispensable to the principal activities that an employee is 10 employed to perform if it is an intrinsic element of those activities and one with 11 which the employee cannot dispense if he is to perform his principal activities. 12 Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513, 517 (2014). Although this standard is markedly fact dependent, Kuebel v. Black & 13 14 Decker Inc., 643 F.3d 352, 359 (2d Cir. 2011), prior decisions have identified 15 several considerations that may serve as useful guideposts for its application. As For a commentary on the statute s use of the word postliminary , see Eugene Volokh, Postliminary:, Volokh Conspiracy (Aug. 21, 2009, 2:12 PM), http://volokh.com/2009/08/21/postliminary/, archived at https://perma.cc/SE2J YKVN. 2 We review de novo a district court s grant of summary judgment, drawing all reasonable factual inferences in the non moving party s favor . . . . Velazco v. Columbus Citizens Found., 778 F.3d 409, 410 (2d Cir. 2015). 1 8 1 we have explained, [t]he more the [pre or post shift] activity is undertaken for 2 the employer s benefit, the more indispensable it is to the primary goal of the 3 employee s work, and the less choice the employee has in the matter, the more 4 likely such work will be found to be compensable. Reich v. N.Y.C. Transit Auth., 5 45 F.3d 646, 650 (2d Cir. 1995). Relatedly, an employer s requirement that pre or 6 post shift activities take place at the workplace may indicate that the activities 7 are integral and indispensable to an employee s duties. See Alvarez v. IBP, Inc., 8 339 F.3d 894, 903 (9th Cir. 2003) (concluding that donning and doffing of 9 protective gear were integral and indispensable activities in part because they 10 had to be performed at the workplace), aff d, 546 U.S. 21 (2005); cf. Bamonte v. City 11 of Mesa, 598 F.3d 1217, 1231 (9th Cir. 2010) (concluding that donning and doffing 12 of police uniforms were not integral and indispensable activities in part because 13 they were not required by law, rule, the employer or the nature of the police 14 officers work to be performed at the employer s premises ). Applying those principles, this Court and others have concluded that an 15 16 employee s pre and post shift preparation of items used to perform principal 17 activities can qualify as integral and indispensable. In King Packing, for example, 18 the Supreme Court held that a slaughterhouse employee s knife sharpening was 9 1 integral and indispensable to the principal activity of butchering. See 350 U.S. at 2 263. Similarly, in Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706 3 (2d Cir. 2001), we concluded that a reasonable factfinder might classify a 4 radiological technician s powering up and testing of an x ray machine as integral 5 and indispensable to the principal activity of taking x rays, see id. at 717 18. And 6 in Reich, we decided that a K 9 officer s feeding, walking, and training of his dog 7 was integral and indispensable to his principal law enforcement activities. See 45 8 F.3d at 650 52. All of these activities occurred before or after regularly scheduled 9 shifts, or during lunch breaks. Courts have also concluded that an employee s pre and post shift efforts 10 11 to protect against heightened workplace dangers can qualify as integral and 12 indispensable. In Steiner, the Supreme Court decided that employees who 13 worked in a battery plant should be compensated under the FLSA for the time 14 they spent showering and changing clothes at the workplace after a shift. Those 15 tasks, the Court reasoned, were integral and indispensable to the employees 16 principal activities because they prevented lead poisoning, an acute danger 17 attendant to work in the plant. See 350 U.S. at 249 53, 256. Similarly, in Alvarez, 18 the Ninth Circuit concluded that slaughterhouse employees donning and 10 1 doffing of protective equipment, including metal mesh gear, qualified as 2 integral and indispensable to their butchering work. See 339 F.3d at 898 n.2, 3 902 04. And in Gorman, we acknowledged that an employee s efforts to protect 4 against workplace dangers that transcend ordinary risks may qualify as 5 integral and indispensable, although we concluded that employees at a nuclear 6 power plant did not protect against such heightened dangers merely by donning 7 and doffing generic helmets, safety glasses, and steel toed boots. See 488 F.3d 8 at 592 94. 9 With those precedents in mind, and viewing the record in the light most 10 favorable to the plaintiffs, we think that a reasonable factfinder could conclude 11 that the plaintiffs donning and doffing of uniforms are integral and 12 indispensable to their principal activities as AUPRs. Several relevant 13 considerations point in that direction. As an initial matter, the donning and doffing of an AUPR s uniform are 14 15 activities undertaken for the employer s benefit, with no choice on the 16 employee s behalf. Reich, 45 F.3d at 650. The Parks Department prescribes the 17 components of the uniform in painstaking detail, and AUPRs may be disciplined 18 for non compliance. See App x 213 16, 218. Relatedly, substantial evidence in the 11 1 record indicates — and we therefore assume at this stage of the proceedings — 2 that the Parks Department requires AUPRs to don and doff their uniforms at the 3 workplace, see id. 245 57, another factor that suggests those tasks may qualify as 4 integral and indispensable, see Alvarez, 339 F.3d at 903. 5 More fundamentally, the uniforms appear to be vital to the primary 6 goal[s] of [the plaintiffs ] work during a shift. See Reich, 45 F.3d at 650. To begin 7 with, an AUPR s utility belt holds items used to perform law enforcement duties. 8 A summons book is, of course, necessary for the issuance of summonses. A 9 baton, mace, and handcuffs, in turn, may be critical in effecting an arrest. And a 10 radio and flashlight may prove crucial in tracking suspects and coordinating 11 with other municipal employees. We are inclined to classify these items as tools 12 of an AUPR s trade, arguably analogous to a butcher s knife, a radiological 13 technician s x ray machine, or a K 9 officer s dog. In keeping with King Packing, 14 Kosakow, and Reich, therefore, we think that a reasonable factfinder could 15 conclude that the donning and doffing of an AUPR s utility belt are integral and 16 indispensable tasks. An AUPR s bulletproof vest more closely resembles the type of protective 17 18 gear analyzed in Gorman and Alvarez. Like the helmets, safety glasses, and metal 12 1 mesh at issue in those decisions, the vest is not a tool used to perform principal 2 activities; rather, the record indicates that it functions solely to protect against 3 risks collateral to those activities. We recognized in Gorman that the use of such 4 protective gear may be integral and indispensable to an employee s principal 5 activities where it guards against workplace dangers that transcend ordinary 6 risks. 488 F.3d at 593. The risk of sustaining gunfire while enforcing municipal 7 laws is not, in our view, an ordinary risk of employment. Under Gorman, 8 therefore, the donning and doffing of an AUPR s bulletproof vest also may 9 qualify as integral and indispensable.3 Professional clothing appears to be comparably essential to an AUPR s 10 11 work. Uniforms generally serve to identify employees to others, and for many 12 jobs (waiting tables, for example) that function may be a mere convenience. In 13 the case of law enforcement personnel, however, identification to the public is 14 more fundamentally intertwined with the objectives of employment. According As tools used to perform relatively dangerous law enforcement tasks more effectively, a baton, mace, and handcuffs also afford a degree of protection to an AUPR. In that sense, they might be analyzed, at least in part, under Gorman s framework. We think the rubric established by Kosakow and Reich, which applies to tools of the trade, is more apt — and, as we have explained, it suffices to demonstrate that an AUPR s baton, mace, and handcuffs may qualify as integral and indispensable to her principal activities. But our decision does not foreclose the factfinder, on remand, from considering the significance of the protective dimension of these items under Gorman. 3 13 1 to the declarations of former AUPRs, it is professional Parks Department 2 clothing, with its recognizable color scheme and insignias, that not only attracts 3 citizens in need of assistance but also establishes an AUPR s authority to 4 investigate violations, issue summonses, make arrests, and otherwise intervene 5 in emergency situations. See Declaration of Marlena Poelz Giga dated May 16, 6 2014 ( Poelz Giga Decl. ) ¶ 12, App x 194; Declaration of Ralph Baselice dated 7 May 13, 2014 ( Baselice Decl. ) ¶ 8, App x 230. Without such a visible signal of 8 authority, an AUPR s efforts to instruct the public and enforce park rules, 9 perhaps with force, could be ineffective and even perilous — the AUPR might be 10 mistaken for a citizen breaking the law rather than a government official 11 enforcing it. See Lemmon v. City of San Leandro, 538 F. Supp. 2d 1200, 1205 (N.D. 12 Cal. 2007) ( [W]hen determining if the uniform is necessary to the work of a 13 police officer, it is of great consequence that these clothes are of a particular 14 color and design that afford the wearer special powers and deference in our 15 society. ). Moreover, evidence in the record indicates that Parks Department 16 supervisors frequently tell AUPRs that [their] role is to be a highly visible 17 uniformed presence in New York City. Poelz Giga Decl. ¶ 12, App x 194; see also 18 Baselice Decl. ¶ 8, App x 230. That instruction blurs the distinction between 14 1 wearing the uniform and performing the job. For these reasons, the donning and 2 doffing of an AUPR s professional clothing, no less than her equipment, could 3 reasonably be viewed as integral and indispensable to her principal activities. We therefore cannot conclude, as a matter of law, that the plaintiffs 4 5 donning and doffing of uniforms are not integral and indispensable to their 6 principal activities as AUPRs. In deciding otherwise, the district court erred in 7 three respects. First, it mistakenly classified the plaintiffs uniforms, in their 8 entirety, as serving solely to protect against workplace hazards. In fact, only an 9 AUPR s bulletproof vest fits that description. As noted, certain other parts of the 10 uniform — including the baton, mace, and handcuffs — may offer a degree of 11 protection. But these items are not solely protective; they also function as tools of 12 the trade used to perform law enforcement tasks, including arrests. The district 13 court erroneously failed to analyze the legal significance of that distinct type of 14 utility. Second, the court mistakenly characterized the protective elements of an 15 16 AUPR s uniform as comparably generic to the helmets, safety glasses, and steel 17 toed boots at issue in Gorman. Those items qualified as generic because they 18 were widely available to the public and commonly worn in a range of settings. 15 1 The same cannot be said of an AUPR s bulletproof vest, baton, mace, or 2 handcuffs, all of which are relatively specialized products available only from 3 select sources and used primarily by law enforcement and security personnel. Compounding those errors, the district court misconstrued Gorman as 4 5 establishing that generic protective gear is never integral and indispensable to an 6 employee s principal activities. Gorman did not endorse any such categorical 7 rule. The Court there held that nuclear power plant employees donning and 8 doffing of helmets, safety glasses, and steel toed boots did not qualify as integral 9 and indispensable because the items at issue guarded against only routine 10 workplace risks. See 488 F.3d at 592 93. The generic nature of the items may 11 have pointed toward that ultimate conclusion, because generic equipment is 12 more likely than specialized equipment to address workplace conditions that are 13 commonplace. But the items generic nature did not establish, as a matter of law, 14 that they guarded against only routine risks. As Steiner demonstrates, items as 15 generic as a shower and a change of clothes can, in certain circumstances, 16 neutralize extreme threats to worker safety. See 350 U.S. at 252 53, 256. To 17 decide whether the use of protective gear qualifies as integral and indispensable, 18 therefore, courts always must determine whether the gear — however generic or 16 1 specialized — guards against workplace dangers that accompany the 2 employee s principal activities and transcend ordinary risks. Gorman, 488 F.3d 3 at 593. This inquiry requires a fact intensive examination of the gear at issue, the 4 employee s principal activities, and the relationship between them. 5 6 7 8 9 B. The De Minimis Doctrine and the Plaintiffs Collective Bargaining Agreement In their motion for partial summary judgment, the defendants argued that the plaintiffs donning and doffing of uniforms would be non compensable on 10 two additional, independent grounds: that the time spent on those activities 11 qualified as de minimis, see Reich, 45 F.3d at 652 53 (describing and applying the de 12 minimis doctrine); and that, in any event, the time was rendered non 13 compensable by the plaintiffs collective bargaining agreement, see 29 U.S.C. 14 § 203(o) (providing that when tabulating the [compensable] hours for which an 15 employee is employed, there shall be excluded any time spent in changing 16 clothes or washing at the beginning or end of each workday which was excluded 17 from measured working time during the week involved by the express terms of 18 or by custom or practice under a bona fide collective bargaining agreement 19 applicable to the particular employee ). Because the success of both of these 20 arguments is fact dependent, we leave it to the district court, on remand, to 17 1 address them in the first instance. In doing so, the court may expand, as in its 2 discretion may be necessary, the factual analysis contained in the January 15, 3 2015 decision. 4 II. Remaining Arguments for Partial Summary Judgment The defendants also sought partial summary judgment on three additional 5 6 issues that the district court has not yet addressed: that any claim premised on 7 work performed before June 22, 2009 is barred by the FLSA s limitations period; 8 that the plaintiffs were not entitled to compensation for purported overtime 9 hours that they did not adequately report; and that the Parks Department is not a 10 proper defendant. On remand, the court should also address those issues in the 11 first instance. Again, the court may expand the factual analysis contained in the 12 January 15, 2015 decision as it deems necessary. CONCLUSION 13 For the foregoing reasons, we VACATE the district court s January 15, 2015 14 15 decision granting partial summary judgment for the defendants and REMAND 16 for further proceedings consistent with this opinion. 18
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