Hootselle v. Mo. Dep't of Corr., WD82229

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMark D. Pfeiffer, Judge
PartiesTHOMAS HOOTSELLE, JR., et al., individually and on behalf of all others similarly situated, and MISSOURI CORRECTIONS OFFICERS ASSOCIATION, Respondents, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellants.
Docket NumberWD82229
Decision Date08 October 2019

THOMAS HOOTSELLE, JR., et al., individually and on behalf of all others similarly situated,



October 8, 2019

Appeal from the Circuit Court of Cole County, Missouri
The Honorable Patricia S. Joyce, Judge

Before Division Two: Lisa White Hardwick, Presiding Judge, and Thomas H. Newton and Mark D. Pfeiffer, Judges

The Missouri Department of Corrections ("DOC") appeals the judgment of the Circuit Court of Cole County, Missouri, granting partial summary judgment to class plaintiffs corrections officers and their collective bargaining representative, Missouri Corrections Officers Association ("MCOA") (jointly referred to herein as "officers") on their breach of contract claim as to the issue of the compensability of the officers' pre- and post-shift required tasks; the amended judgment awarding past damages in favor of the officers in accordance with the jury

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verdict; and granting declaratory judgment ordering DOC to compensate the officers for the pre-and post-shift tasks at issue prospectively. We affirm.

Factual and Procedural Background

DOC executed a labor agreement ("CBA") with MCOA in 2007 and again in 2014. In addition, DOC promulgated a Procedure Manual ("Manual"). These collective documents govern various rights and duties of the officers and DOC ("contract").1 The CBA and Manual are both consistent in the stated purpose of ensuring compliance with the Fair Labor Standards Act2 ("FLSA"). The CBA states that the DOC "will comply with the FLSA," and the Manual states that it is intended "to ensure departmental compliance with FLSA rules[.]"

In 2012, the officers brought a class action against DOC alleging, among other things, breach of contract for failure to pay for pre- and post-shift activities performed, and for declaratory judgment regarding their right to compensation for these activities in the future under the contract. The circuit court certified a class of more than 13,000 current and former corrections officers in February of 2015, and subsequently amended the class definition in September of 2015.3

The daily pre- and post-shift activities which in the aggregate added an additional thirty minutes to the officers' daily work routine, and for which they alleged they were not being compensated include:

1) Electronically logging their arrival or departure from the facility by either scanning a Bar Coded or Radio Frequency Identification (RFID), and/or manually signing in or initialing a paper entry/exit record, and/or submitting

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to biometric identification such as a finger print or palm scanning instrument, or a combination of these things;

2) Utility officers may be required to report to the Central Observation Post to receive assignments;

3) Passing through security gates/entry-egress points, including passing through a metal detector on arrival and through an airlock when entering and exiting the security envelope;

4) Presenting themselves before a custody supervisor who communicated to the officers their daily post/duty assignment;

5) Picking up or returning equipment such as keys or radios from electronic key boxes or key/radio issue rooms;

6) Walking to and from the entry/egress points to duty post and possibly waiting in line if one has formed for any of the above activities;

7) In the case of vehicle patrol officers, inventorying the vehicle patrol's issued weapons, ammunition, and equipment prior to and at the end of each shift; and

8) Passing of pertinent information from one shift to another.

The circuit court granted the officers' motion for partial summary judgment on their breach of contract claim in August of 2018, finding there was no genuine dispute of material fact regarding the existence and terms of the contract, that the officers had performed pursuant to the contract, that DOC had breached the contract, and that the officers had been damaged by DOC's failure to compensate the officers as required pursuant to the contract. The suit then proceeded to a jury trial solely to determine the officers' damages, and the jury returned a verdict against DOC for past damages of $113,714,632. The court entered an amended judgment reflecting the jury's past damages award, as well as granting declaratory judgment for the officers as to the parties' contractual rights and obligations pursuant to the contract moving forward.

DOC timely appeals.

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DOC's first three points on appeal assert the granting of summary judgment4 in favor of class plaintiffs and denying summary judgment for DOC on plaintiffs' breach of contract claim were erroneous because (Points I and II) the class members' pre- and post-shift activities are "preliminary" and "postliminary" activities, the time spent on them is de minimis, and they are therefore not compensable under FLSA or under state laws or contracts that incorporate FLSA standards; and (Point III) private plaintiffs may not pursue a statutory or regulatory claim against the state under the guise of a breach of contract claim.

FLSA was enacted in 1938 and provided for a minimum wage and overtime compensation for hours worked in excess of forty hours per workweek. Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 135 S. Ct. 513, 516, 190 L. Ed. 2d 410 (2014) (citing §§ 6(a)(1), 7(a)(3), 52 Stat. 1062-1063). An employer found to have violated these provisions could be held civilly liable for backpay, liquidated damages, and attorney's fees. Id. (citing § 16, 52 Stat. 1069). As a result of FLSA's failure to define "work" or "workweek," and the U.S. Supreme Court's broad interpretation of those terms in subsequent decisions through early 1946, courts across the country saw a "flood of litigation" in the latter part of 1946 seeking "nearly $6 billion in back pay and liquidated damages for various preshift and postshift activities." Id. Congress reacted by passing the Portal-to-Portal Act, which exempted employers from liability for future claims based on:

(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

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(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.

Id.; 29 U.S.C. § 254(a). That said, the Supreme Court "has consistently interpreted the term principal activity or activities [to] embrac[e] all activities which are an integral and indispensable part of the principal activities." Id. (internal quotation marks omitted).

The regulations interpreting the Portal-to-Portal Act establish that "[w]here . . . an employee is required by his employer to report at a particular hour at [the] place where he performs his principal activity, if the employee is there at that hour ready and willing to work but for some reason beyond his control there is no work for him to perform until some time has elapsed, waiting for work would be an integral part of the employee's principal activities." 29 C.F.R. § 790.7(h). The regulation describes this compensable activity as being "engaged to wait." Id.

Here, viewing the facts in the light most favorable to DOC, ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993), it is undisputed that the officers are "on duty and expected to respond" if incidents of "offenders confronting staff and becoming physical" occur at any time after they go into the facility. When they are on the premises, officers are "expected to act as a prison guard" during their pre-shift and post-shift required activities. Officers must "pay attention to the offenders absolutely at all times[.]" Inside the premises, it is imperative that the officers are "going to be mindful of [offenders'] behavior." Officers "have to monitor and pay attention to offenders walking to their post and walking back[.]" Officers are trained to be careful during pre- and post-shift activity and shift

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change time because they know those are the times that prisoners often take action, such as escape attempts and staging fights to divert officers' attention.5

Given DOC's undisputed knowledge of, and expectation for, the officers' requirement to utilize their training to guard against prisoner fights and escape attempts during shift changes, we conclude that the preliminary and postliminary activities of the officers are not "pre" or "post" at all; instead, these shift change activities are "integral and indispensable" to the officers' "principal activities" for which they are hired by DOC, that is, guarding against and protecting the public from prison riots and escape attempts. According to Supreme Court precedent, these activities are, indeed, part of the officers' "principal activities" of employment by DOC and must be compensated pursuant to FLSA. Integrity Staffing Sols., Inc., 135 S. Ct. at 519.

Further, at minimum, the officers are "required by [their] employer to report at a particular hour at [the] place where [they] perform[] [their] principal activity," and the officers are "there at that hour ready and willing to work." 29 C.F.R. § 790.7(h). The officers are "on duty and expected to respond[,]" "act[ing] as a prison guard[,]" whether or not offenders take action requiring officers' intervention. In other words, the officers are "waiting for work[,]" at all times from the moment they arrive at the premises, which is, as such, "integral and indispensable to [their] principal activities." Integrity Staffing Sols., Inc., 135 S. Ct. at 519.

Likewise, DOC's argument that the pre- and post-shift activities of the officers are not compensable because they are de minimis is without merit. The de minimis...

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