Aitken v. United States

• Docket Number: 19-520C
• Decision Date: 23 May 2024
• Parties: KATHY AITKEN, et al., Plaintiffs, v. THE UNITED STATES, Defendant. Time from Lobby to Compound Average Time Per Task
• Court: U.S. Claims Court

1

KATHY AITKEN, et al., Plaintiffs,
v.
THE UNITED STATES, Defendant.

No. 19-520C

United States Court of Federal Claims

May 23, 2024

Reissued: July 18, 2024 ^[*]

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, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, Reginald T. Blades, Jr., Assistant Director, David M. Kerr, Trial Attorney, and Joshua W. Moore, Trial Attorney, 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.

FINDINGS OF FACT & CONCLUSIONS OF LAW

STEPHEN S. SCHWARTZ JUDGE

Plaintiffs, current and former Federal Bureau of Prisons employees at Federal Correctional Institution Otisville ("FCI Otisville" or "the Prison"), seek overtime pay

2

and related forms of relief under the Fair Labor Standards Act ("FLSA"). They are paid to work eight-hour shifts at designated posts, but they claim that they are also legally entitled to payment for certain activities before and after their shifts. The following are my findings of fact and conclusions of law.^[1]See RCFC 52(a).

In a nutshell, I conclude that while some of the activities at issue are part of Plaintiffs' hours of work, Plaintiffs have not shown that the time they spend on those activities exceeds the FLSA de minimis threshold.

FINDINGS OF FACT

This Court held a four-day trial at which the parties introduced the testimony of thirteen witnesses. Plaintiffs presented Officer Christian Conklin, Michelle Juenger, Officer Richard McPhillips, Officer Matthew Bunting, Lieutenant Eric Christensen, Officer Michael Buckingham, Jeremy Dumont, Officer Willie Shemanski, Supervisory Intelligence Officer Joseph Meyers, and Captain Matthew Whinnery. The government presented Lieutenant Jean Leimkuhler, Lieutenant Joseph Nalepa, and Captain Patrick O'Kane.See Transcripts (ECF 111, 112, 113, 114). The parties stipulated to a set of undisputed facts.See Joint Stipulation of Facts ("Stip.") (ECF 96). In addition, I read my observations from a site visit into the record at the beginning of trial and gave the parties the opportunity to correct my observations at the time or through the testimony of witnesses. Tr. at 9-14. The trial therefore centered on (1) describing the nature of the pre- and post-shift activities at issue, in the context of the Prison environment, and (2) measuring how long those activities took.

After trial, the parties filed a collection of admitted exhibits under seal, see Notice (ECF 115), and submitted post-trial briefs.^[2] I make the following findings of fact in light of all the evidence presented, including my evaluation of the demeanor and credibility of the witnesses.^[3]

3

I. The Prison

Plaintiffs are 195 individuals who have worked as Senior Officer or Senior Officer Specialist correctional officers, or who have been augmented^[4] to work custody roles in those positions, at FCI Otisville from April 9, 2016 to the present. Stip. ¶ 3. Correctional officers like Plaintiffs are supervised by lieutenants, who are in turn supervised by the Prison's captain. Tr. at 560 (Bunting).

FCI Otisville consists of a medium-security federal correctional institution, a [. . .], and a minimum-security satellite camp. Stip. ¶ 2. This case concerns the medium-security facility and the [. . .], which are organized as follows.

A. The Post System

Work at the Prison is divided into shifts at designated posts. Some posts, referred to as 24-hour posts, are manned around the clock; others are manned for 16 hours a day. Plaintiffs' claims relate to time before and after specific 24-hour posts at the medium-security facility and [. . .]: Control #1, Compound #1, Compound #2,^[5]Housing Units A-Side,^[6] SHU #1, SHU #2,^[7] and [. . .] Officer. Stip. ¶ 2, 7-8.^[8]

The Prison's 24-hour posts are staffed in three 8-hour shifts, with one officer per shift. Stip. ¶ 8. The shifts are Day Watch (scheduled from 8:00 a.m. to 4:00 p.m.), Evening Watch (scheduled from 4:00 p.m. to 12:00 a.m.), and Morning Watch (scheduled from 12:00 a.m. to 8:00 a.m.), except that shifts on the SHU #2 post are scheduled from 6:00 a.m. to 2:00 p.m., 2:00 p.m. to 10:00 p.m., and 10:00 p.m. to 6:00 a.m. Id. During the time period relevant to the case, there was never a scheduled overlap between shifts. Tr. at 25-26 (Conklin); Tr. at 1078 (Whinnery).

The shift changes for 24-hour posts are offset from the Prison's schedule for inmate movements and counts. Inmate movements occur on the half hour and take approximately five minutes. Tr. at 177-78 (Conklin). Between scheduled moves, inmates are usually confined to whatever location they are in. Tr. at 177 (Conklin). Inmates are confined to housing units between 3:30 p.m. and 5:00 p.m., the time

4

during which the evening watch relieves the day watch. Tr. at 139-40 (Conklin). They are also locked in their cells from 10:00 p.m. until shortly after 6:00 a.m., by which time the morning watch has taken over. Tr. at 184 (Conklin); Tr. at 537 (Bunting); Tr. at 1144-45 (O'Kane). Prisoners are supposed to be counted at 12:00 a.m., 3:00 a.m., 5:00 a.m., 4:00 p.m., and 10:00 p.m., though counts do not always begin exactly on time. JX 58 at 43; Tr. at 978 (Shemanski); Tr. at 1129-30 (Whinnery). The 12:00 a.m. and 4:00 p.m. counts coincide with shift changes.

Each post is governed by "post orders," i.e., a document describing what the officer at that post is responsible for doing during his shift. Tr. at 1184 (Whinnery); Tr. at 135 (Conklin); Tr. at 1398-1400, 1403, 1414, 1423 (O'Kane). The parties dispute whether the post orders describe Plaintiffs' duties comprehensively. Briefly, Plaintiffs contend that their job is to "maintain the safety and security of the inmates, staff, and Institution" at all times on Prison grounds, whether they are on post or not. Pls.' Post-Trial Br. at 6. The government responds that a correctional officer's duties are essentially limited to the post orders for the particular post to which he is assigned. Def.'s Post-Trial Br. at 6.

Defendant has shown, I conclude, that Plaintiffs do not execute responsibilities specific to their posts when they are not on-post.See, e.g., Tr. at 815-18 (Buckingham); Tr. at 1405-07 (O'Kane); Def.'s Post-Trial Br. at 6-7. But Plaintiffs have established as a factual matter that their duties in the Prison go beyond their post orders. The evidence shows that Plaintiffs are expected to perform security-related tasks not only in connection to their posts, but whenever necessary from the moment they arrive at the Prison until they leave. Tr. at 31 (Conklin); Tr. at 314-15 (McPhillips); Tr. at 497-98 (Bunting); Tr. at 530 (Bunting); Tr. at 653-54 (Christensen); Tr. at 756, 768 (Buckingham); Tr. at 951 (Shemanski); Tr. at 1485-86, 1539-40 (O'Kane). Besides the post orders describing particular posts, there are general post orders describing Prison operations as a whole.See, e.g., JX 58. Correctional officers also have position descriptions that mention certain job activities independent of any particular post.See JX 1; JX 2. To take two examples - discussed further below - Plaintiffs might be called upon to correct inmate behavior and respond to emergencies at any time, even when they are not at their posts. Tr. at 36, 41-42, 57, 59-60, 93-95, 122-24 (Conklin); Tr. at 324-29, 357-58, 394-95 (McPhillips); Tr. at 527-30, 537 (Bunting); Tr. at 657-58, 666-68, 695-96 (Christensen); Tr. at 766-68, 791-92 (Buckingham); Tr. at 1063-64 (Meyers); Tr. at 1086-87, 1113-14, 1128, 1148-49, 1151 (Whinnery); Tr. at 1418, 1471 (O'Kane); JX 3 at 1; JX 55 at 8; JX 58 at 6 (General Post Orders 2019). Officers' responsibilities are therefore broader than the post orders alone.

5

Pre- and post-shift officers do not have primary responsibility for Prison management. There is always an on-post correctional officer (or other Prison employee) responsible for each inmate and each part of the Prison environment. Tr. at 136-38, 176-78, 182-83 (Conklin); Tr. at 434 (McPhillips) Tr. at 527-28, 620 (Bunting); Tr. at 815-18 (Buckingham). The work officers perform on-post is thus independent in some ways from the activities they engage in beforehand and afterward. Tr. at 815-18 (Buckingham); Tr. at 1058 (Meyers); Tr. at 1406-09, 1413- 14, 1417-18, 1424, 1427-29, 1551 (O'Kane). Officers carry items before and after their shifts that they would not carry while doing their jobs, suggesting that they do not expect to work at those times. Tr. at 1059, 1061 (Meyers).

But it does not follow that correctional officers heading to or from their posts are allowed to simply treat security issues as someone else's job. The Prison environment is at least potentially dangerous at all times. JX 1 at 4-5; JX 2 at 4; Tr. at 30 (Conklin); Tr. at 324 (McPhillips); Tr. at 658 (Christensen); Tr. at 1071-72, 1074-75, 1115-16 (Whinnery); see also Tr. at 510 (Bunting).^[9] Supervision of inmates therefore has overlapping and mutually reinforcing layers, Tr. at 724 (Christensen), and all Prison employees play their part. If uniformed correctional officers^[10] do not enforce rules whenever the need presents itself, the Prison could expect progressively bigger infractions that would make it more difficult to maintain control. Tr. at 57-58 (Conklin); Tr. at 358 (McPhillips); Tr. at 530 (Bunting); Tr. at 768 (Buckingham); Tr. at 1086-87 (Whinnery); Tr. at 1366 (Nalepa); Tr. at 1485-86, 1520-21 (O'Kane). When one of the...