Aitken v. United States

• Decision Date: 25 August 2022
• Docket Number: 19-520C
• Parties: KATHY AITKEN, et al., Plaintiffs, v. THE UNITED STATES, Defendant
• Court: U.S. Claims Court

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

No. 19-520C

United States Court of Federal Claims

August 25, 2022

Reissued: September 30, 2022 ^[*]

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

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 under the Fair Labor Standards Act ("FLSA") and other forms of relief

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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

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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.

1. 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).

2. 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 Decl. ¶ 16).

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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.).

3. 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.).

4. 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 69, 102-03.

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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...