Akpeneye v. United States

• Decision Date: 25 June 2018
• Docket Number: No. 15-732C,15-732C
• Parties: TEJERE J. AKPENEYE et al., Plaintiffs, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

TEJERE J. AKPENEYE et al., Plaintiffs, v. THE UNITED STATES, Defendant.

No. 15-732C

United States Court of Federal Claims

June 25, 2018

Motions for Partial Summary Judgment; Fair Labor Standards Act; Bona Fide Meal Break; Portal-to-Portal Act; Donning and Doffing; Overtime; Police Officers

Stephen G. DeNigris, Albany, NY, for plaintiffs.

Sarah Choi, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

Plaintiffs—current and former Pentagon Force Protection Agency ("PFPA") officers—allege that they are entitled to overtime compensation for time spent (1) working during their meal breaks and (2) donning and doffing their uniform and equipment. They seek to recover this unpaid overtime pay and other damages pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201-219, as amended by the Portal-to-Portal Act of 1947 ("Portal Act"), id. § 251-262. For reasons that will be addressed below, currently before the court are the claims of twenty sample plaintiffs ("plaintiffs"). Both parties have moved for summary judgment; plaintiffs seek partial summary judgment and defendant seeks summary judgment on all issues. For the reasons stated below, the court (1) grants defendant's summary judgment motion as it pertains to compensation for meal breaks and denies plaintiffs' motion on that issue, and (2) denies both parties' motions as they relate to the donning-and-doffing claim.

I. FACTUAL BACKGROUND

Except where noted, the facts relevant to the parties' motions for summary judgment are not in dispute.¹ The facts are derived from the appendices attached to the parties' briefs, whichinclude documentary evidence; sworn statements from plaintiffs as a group, one of the named plaintiffs individually, and another from the PFPA's assistant chief of police; and transcripts from the depositions of plaintiffs and the PFPA's Chief Officer, Woodrow Kusse (who testified as a representative of the PFPA under Rule 30(b)(6) of the Rules of the United States Court of Federal Claims).²

A. Job Location and Responsibilities

PFPA officers are generally responsible for security and law enforcement at the Pentagon reservation. See Answer ¶ 18. The Pentagon reservation covers approximately 238 acres and consists of administrative, transit, support, and industrial spaces. Def.'s Mot. Summ. J. ("Def.'s Mot.") App. 1 (Plummer Decl. ¶ 4). The Pentagon reservation includes the Pentagon, which houses a "shopping mall with retail stores, cafeterias, food courts, and fast food operations," as well as amenities such as a dry cleaner, post office, and fitness center. Id.

At the Pentagon reservation, PFPA officers are tasked with enforcing laws and regulations that are designed to protect people, safeguard property, and prevent breaches of the peace. Answer ¶ 19. As part of the job, officers are required to (1) perform inspections, (2) carry out surveillance, (3) protect officials at the Pentagon reservation, and (4) respond to (and contain) threats. Id. ¶¶ 20-21; Am. Compl. ¶¶ 20-21. Depending on where they are assigned, officers are responsible for making arrests, investigating complaints and accidents, responding to emergencies, patrolling specific areas, answering questions from the public, completing online-training courses, screening people and their bags, and monitoring vehicles that are coming and going. Pls.' Mot. App. 33 (Kusse Dep. 31:1-9) (arrests and investigations); id. at 109 (Kusse Dep. 107:4-19) (questions); Pls.' Resp. App. 13 (Antoine Dep. 45:11-14) (screening); id. at 55 (Allen Dep. 13:12-15) (vehicles); id. at 171 (Baker Dep. 35:6-10) (patrol); id. at 949 (Alpha-K Dep. 88:3-6) (emergencies); id. at 931 (Alpha-K Dep. 16:4-6) (training).

B. Work Schedule

The officers' work schedules are determined based on platoon assignment. Each officer is assigned to one of six platoons, and the assignment determines when the officer's shift starts and whether the shift is 8.5 or 12.5 hours long.³ Def.'s Mot. App. 1-2 (Plummer Decl. ¶ 6). Officers assigned to an 8.5-hour shift work for ten days during the biweekly pay period while those with the 12.5-hour shift work seven days during the same pay period. Pls.' Resp. App. 183 (Baker Dep. 82:18-83:4, 85:8-14). If an officer works more than the normal hours, the officer can request overtime. Def.'s Mot. App. 3 (Plummer Decl. ¶ 16). Some plaintiffs testified that their requests for overtime pay have never been denied. E.g., Pls.' Resp. App. 451 (Clute Dep. 40:13-15).

C. Start of Shift

Every officer's shift starts at roll call, which occurs in the Pentagon's Library and Conference Center. Def.'s Mot. App. 3 (Plummer Decl. ¶ 21) (shift start); Pls.' Mot. App. 47 (Kusse Dep. 45:9-15) (location). During roll call, officers are provided important details concerning their duties and schedule for the day. Def.'s Mot. App. 2 (Plummer Decl. ¶¶ 7-8).

1. Uniform

At the beginning of roll call, officers must be in their standard uniform. Id. at 3 (Plummer Decl. ¶ 21). The PFPA requires the standard uniform because officers must present a professional appearance; the uniform guidelines were established because officers need "to present a professional public perception . . . ." Pls.' Mot. App. 236 (PFPA memorandum on uniforms). Indeed, "[t]he quasi-military nature of policing and the need for visibility in the basic police function requires uniformity in appearance." Def.'s Mot. App. 16 (uniform policy).

The standard uniform generally consists of both clothing and equipment. Specifically, the officers' standard uniform consists of a specific clothing (pants, shirt, boots, and badge); baton; gun belt; gas mask; trauma kit; pepper spray dispenser; bulletproof vest; pair of handcuffs; sidearm and ammunition; and pair of puncture proof gloves.⁴ Pls.' Mot. App. 214-15 (Pls.' Decl. ¶ 3). Other than the clothing (including the badge) and bulletproof vest, the components of the standard uniform are either carried or included on a duty belt worn by the officers. See id. at 62 (Kusse Dep. 60:11-19). Other than the standard uniform, plaintiffs are not required to have or wear any other items during roll call. Pls.' Resp. App. 452 (Clute Dep. 44:3-5). Indeed, an officer stationed at a post requiring special gear that is not part of the standard uniform, such as a tactical service weapon, can retrieve the item after roll call from either a post lockbox or an armory located next to the roll call room. Def.'s Mot. App. 4 (Plummer Decl. ¶ 24).

Prior to mid-September 2001, officers could not don or doff part of their standard uniform at home because their sidearms were kept at the Pentagon's armory. See Pls.' Mot. App. 261 (Miller Decl. ¶¶ 9, 13). But in the days after the September 11, 2001 terrorist attack at the Pentagon, officers received permission—later codified in a PFPA regulation—to keep their sidearm when they went home. Id. at 42 (Kusse Dep. 40:3-15). The PFPA implemented this policy so that officers could (1) report to duty armed and ready to respond to emergencies and (2) stay safe during their travel to and from work in their standard uniform. Id. at 242 (PFPA weapon regulation). Some officers have chosen to don and doff the standard uniform at home for convenience. E.g., Pls.' Resp. App. 363 (Byrnes 116:12-22); see also id. at 501 (Cousin Dep. 84:10-18) (explaining that some officers change at home because they have a long commute). When they do so, donning the clothing takes ten minutes and donning the equipment takes an additional ten minutes, with an equal amount of time to doff. See Pls.' Mot. App. 215 (Pls.' Decl. ¶ 5). Some officers, however, have chosen to don and doff their entire standard uniform at the Pentagon reservation. See id. Plaintiffs choosing to do so expressed a concern that wearing their uniform to work was unsafe, e.g., Pls.' Resp. App. 897 (Bell Dep. 77:12-18); see also id. at 501 (Cousins Dep. 83:18-84:9) (expressing concern regarding people breaking into officers' cars and taking the gun or body armor), with one plaintiff testifying that the PFPA even advised officers to avoid driving in their uniform because of safety concerns, id. at 405 (Bradley Dep. 84:18-85:6). If an officer chooses to don and doff the standard uniform at the Pentagon reservation, then the donning and doffing process takes at least an additional ten minutes—five extra minutes to retrieve a side arm from the armory and at least that long to return it. Pls.' Mot. App. 215 (Pls.' Decl. ¶¶ 4, 6).

2. Post Location

An officer is not always assigned to the same post; officers rotate among different assignments. See, e.g., Pls.' Resp. App. 508 (Cousins Dep. 111:10-16). During roll call, officers are provided with details regarding their job for the day. Officers are given a "beat sheet" showing where they will be working that day and when they can take their breaks. Def.'s Mot. App. 2 (Plummer Decl. ¶¶ 7-8). The officers may be assigned to an interior post, an exterior post, or a patrol unit. Pls.' Mot. App. 28 (Kusse Dep. 26:3-20); see also Pls.' Resp. App. 56-57 (Allen Dep. 17:16-18:17). If not assigned one of those posts, an officer may be a "breaker"; breakers work at different posts during a shift because their job is to take the place of an officer during his or her break. Pls.' Resp. App. 119-20 (Akpeneye Dep. 33:19-34:4). Officers might have to drive to a post if it is located on the Pentagon reservation but not inside or next to the Pentagon. Id. at 59-60 (Allen Dep. 28:10-29:22, 30:9-18).

Officers are provided time to get to their post following roll call. Depending on the platoon assignment, officers are required to be at their post either thirty minutes or one hour after the start of their shift (not the end of roll call). Def.'s Mot. App. 3 (Plummer Decl. ¶ 22). Because the roll call process lasts between ten and fifteen minutes, Pls.' Resp. App. 453 (Clute Dep. 46:18-20), officers have between fifteen and fifty minutes to get to their posts after roll call, see D...