Bridges v. Empire Scaffold, L.L.C., 16-41493

• Decision Date: 09 November 2017
• Docket Number: No. 16-41493,16-41493
• Citation: 875 F.3d 222
• Parties: Darwin Keith BRIDGES; Rodrigo Gonzalez ; Jesus Alanis, Plaintiffs–Appellants v. EMPIRE SCAFFOLD, L.L.C., Defendant–Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

875 F.3d 222

Darwin Keith BRIDGES; Rodrigo Gonzalez ; Jesus Alanis, Plaintiffs–Appellants

v.EMPIRE SCAFFOLD, L.L.C., Defendant–Appellee

No. 16-41493

United States Court of Appeals, Fifth Circuit.

November 9, 2017

John G. Werner, Mark William Frasher, Reaud, Morgan & Quinn, L.L.P., Beaumont, TX, for Plaintiffs–Appellants.

Patricia Jeanne Hill, Yash Dave, Esq., Smith, Gambrell & Russell, L.L.P., Jacksonville, FL, for Defendant–Appellee.

Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.

KING, Circuit Judge:

Defendant–Appellee Empire Scaffold, LLC, employed Plaintiffs–Appellants Darwin Keith Bridges, Rodrigo Gonzalez, and Jesus Alanis to erect and dismantle scaffolding for the Motiva Crude Expansion Project. Bridges, Gonzalez, and Alanis sued Empire for failing to compensate them for pre-shift wait time under the Fair Labor Standards Act. The district court granted summary judgment to Empire, effectively holding that the pre-shift wait time at issue here is excluded from compensation under the Portal-to-Portal Act. We AFFIRM.

I.

Motiva Enterprises, LLC ("Motiva"), is an oil refining and marketing joint venture that is owned by affiliates of Shell Oil Company and Saudi Aramco. Motiva undertook the Crude Expansion Project ("CEP") in order to expand its Port Arthur Refinery and more than double the refinery’s previous capacity. At its peak, the project involved more than 14,000 workers. From approximately December 2010 to May 2012, Empire Scaffold, LLC ("Empire"), was hired to erect and dismantle scaffolding at the refinery as a part of the CEP.¹ Empire’s employees worked in teams with six to ten individuals. Empire compensated its employees for scheduled shift times of 7:00 a.m. to 5:30 p.m. on Monday through Thursday and 7:00 a.m. to 3:30 p.m. on Friday.

Empire required its employees to take buses from the Port Arthur Road Parking Lot to the refinery on a first-come, first-serve basis between 5:00 a.m. and 6:15 a.m. Empire’s policy was that an employee who missed the last bus at 6:15 a.m. would not be able to work until the next day. Empire did not allow the employees to access the refinery by any other means, such as riding in another contractor’s van. The purpose of this policy was to prevent chaos and congestion of vehicles at the refinery, as well as to keep the refinery secure. The bus ride to the refinery took approximately 20 to 30 minutes. The bus dropped the employees off at Empire’s lunch tents, which were about three-quarters of a mile inside the refinery and a few hundred yards away from the live units where the employees performed scaffolding. Empire required its employees to sign in at the lunch tents. Empire did not mandate anything else—such as work at the live units, safety meetings, or completing the job safety analysis paperwork—prior to 7:00 a.m. At 7:00 a.m., a horn sounded, commencing the shift time. Empire required its employees to wear personal protection equipment ("PPE") upon reporting to work at the live units. The PPE included hard hats, goggles, fire-retardant clothing, steel-toed boots, H₂S monitors,² and safety glasses.

In November 2012, Empire’s employees and hundreds of workers for other contractors and subcontractors related to the CEP commenced litigation against their employers. These workers generally asserted that, in violation of the Fair Labor Standards Act of 1938 ("FLSA"), they were not paid for compensable time. In May 2013, the district court severed some of the claims related to the CEP and created the instant action against Empire. In the Fourth Amended Complaint, Darwin Keith Bridges, Rodrigo Gonzalez, and Jesus Alanis were listed as plaintiffs in this action, along with sixty other workers. About ten months after the severance, the district court referred the case to a magistrate judge.

The workers then filed a motion for partial summary judgment, arguing that as a matter of law, Empire violated the FLSA by failing to compensate its workers for pre-shift time and to properly record their work hours. Empire also filed for summary judgment, contending that (1) it is not required under the FLSA and Portal-to-Portal Act of 1947 to compensate its workers for time spent riding the bus to the CEP, for pre- and post-shift activities, and for pre-shift wait time; (2) its record-keeping was proper; (3) the workers had not met their burden of proof with respect to their claims and damages; and (4) summary judgment was appropriate for workers who did not claim that they performed certain work activities outside of their shifts.

In March 2016, the magistrate judge recommended that (1) summary judgment be granted against all of the workers’ claims, except for Rene Chaires’s claim, for compensable time riding the bus to the CEP, (2) summary judgment be granted against all of the workers’ claims for time spent donning and doffing PPE, (3) summary judgment be granted in favor of Empire on the improper timekeeping claim, and (4) summary judgment be denied with respect to all of the workers’ claims—except for the claims of Bridges, Gonzalez, and Alanis—for compensation for pre- and post-shift activities. Specifically, with respect to Bridges, Gonzalez, and Alanis, the magistrate judge found that they did not engage in pre-shift activities that could be considered compensable, such as scaffolding at the live units, attending safety meetings, and preparing job safety analysis paperwork. Both sides objected on several issues, but the district court adopted the magistrate judge’s report and recommendation, overruling all objections.

In April 2016, Bridges, Gonzalez, and Alanis appealed the district court’s decision, but this court, in August 2016, dismissed the appeal for lack of jurisdiction because final judgment had not been entered. Subsequently, they sought reconsideration of the district court’s grant of summary judgment in favor of Empire or, alternatively, entry of final judgment as to their claims. The district court denied their motion for reconsideration but issued final judgment with respect to their claims. Bridges, Gonzalez, and Alanis then timely appealed. They now argue that their pre-shift wait time at the refinery is compensable under the FLSA.

II.

The issue in this case is whether the Portal-to-Portal Act excludes the pre-shift wait time of Bridges, Gonzalez, and Alanis from being compensable under the FLSA. We review the district court’s grant of summary judgment de novo. Halle v. Galliano Marine Serv., L.L.C. , 855 F.3d 290, 293 (5th Cir. 2017) (citing Smith v. Reg’l Transit Auth. , 827 F.3d 412, 417 (5th Cir. 2016) ). Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. "The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We begin with an articulation of the relevant substantive law.

Enacted in 1938, the FLSA established a minimum wage and overtime compensation for each hour worked over 40 hours in each workweek. 29 U.S.C. §§ 206(a), 207(a). Employers that violate these provisions can be held civilly liable for back-pay, liquidated damages, and attorney’s fees. Id. §§ 216(b)–(c). As the FLSA did not define "work" or "workweek," the Supreme Court issued two decisions in the 1940s that interpreted these terms broadly. See Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 690–91, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) (defining "workweek" to include "all time during which an employee is necessarily required to be on the employer’s premises"); Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123 , 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944) (defining "work" as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business"). In 1947, Congress passed the Portal-to-Portal Act in order to curb the flood of litigation that followed these decisions. See Integrity Staffing Sols., Inc. v. Busk , ––– U.S. ––––, 135 S.Ct. 513, 516–17, 190 L.Ed.2d 410 (2014). This Act exempts employers from liability for claims based on the following activities:

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said 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).

In Steiner v. Mitchell , 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), the Supreme Court determined that the Portal-to-Portal Act does not exempt "activities performed either before or after the regular work shift ... if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by" § 254(a)(1) (i.e., walking, riding, or traveling to and from the place of performance). Id. at 256, 76 S.Ct. 330. The Court has interpreted the term "principal activity or activities" in the statute to include all activities that are an "integral and indispensable part of the principal activities." Busk , 135 S.Ct. at 517 (quoting IBP, Inc. v. Alvarez , 546 U.S. 21, 29–30, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) ); see also 29 C.F.R. § 790.8(b) (embracing this interpretation of the term). "An activity is therefore integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to...