Musticchi v. City of Little Rock, Ark.

• Decision Date: 24 August 2010
• Docket Number: No. 4:08cv00419 SWW,4:08cv00419 SWW
• Parties: Thomas J. MUSTICCHI, Individually and on behalf of all other similarly situated Little Rock, Arkansas police officers, Plaintiff, v. The CITY OF LITTLE ROCK, ARKANSAS, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

734 F.Supp.2d 621

Thomas J. MUSTICCHI, Individually and on behalf of all other similarly situated Little Rock, Arkansas police officers, Plaintiff,

v.The CITY OF LITTLE ROCK, ARKANSAS, Defendant.

No. 4:08cv00419 SWW.

United States District Court,

E.D. Arkansas,

Western Division.

Aug. 24, 2010.

Clark W. Mason, Attorney at Law, Little Rock, AR, James J. Thompson, Jr., Nolan E. Awbrey, Hare, Wynn, Newell & Newton, Birmingham, AL, John Paul Byrd, Hare, Wynn, Newell & Newton, Little Rock, AR, for Plaintiff.

Amy Beckman Fields, William C. Mann, III, Little Rock City Attorney's Office, Little Rock, AR, for Defendant.

MEMORANDUM OPINION AND ORDER

SUSAN WEBBER WRIGHT, District Judge.

Plaintiff Thomas J. Musticchi, a police officer within the City of Little Rock, Arkansas Police Department ("LRPD"), brings this collective class action against the City of Little Rock ("City") pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., for the alleged failure of the City to pay LRPD officers properly time and one-half their regular rates of pay for all hours worked in excess of forty hours per week. Before the Court is the City's motion for summary judgment and Plaintiff's motion for partial summary judgment. After careful consideration, and for the reasons that follow, the Court grants the City's motion for summary judgment except as to the travel time and meal break claims. The Court will withhold ruling on those claims until Plaintiff has had an opportunity to file a brief in response to Defendant's motion for summary judgment on those claims. The Court denies Plaintiff's motion for partial summary judgment and motion for voluntary dismissal.

I. Background

The LRPD requires patrol officers to wear a "Class B" uniform compromised of the following elements: an undershirt or turtleneck, a uniform shirt, ballistic vest, shoulder patch, shoes or boots, trousers, socks, badge, name tag and a Sam Browne duty belt. Along with their uniform officers are required to have certain equipment items which attach to their duty belt including a gun holster, gun, ammunition, ammunition holders, clips, or magazines, handcuffs, handcuff case, tear gas canister, baton ring, radio, and a radio case. The LRPD requires officers to keep their uniforms neat, clean and in good repair but gives the individual officer discretion as tohow to maintain their uniform. The LRPD can inspect an officer's equipment at the beginning of a shift or at the discretion of the supervising officer. The parties disagree about the time it takes to don the uniform however, both agree that the LRPD does not require officers to change into or out of their uniform at a particular place. However, officers nearly universally don and doff their uniforms and equipment at home.

Plaintiff bring this lawsuit individually and on behalf of all other similarly situated individuals, charging that officers worked in excess of forty (40) hours without receiving overtime compensation since they were not paid for donning and doffing their uniform at the beginning and end of every shift. Plaintiffs also allege that officers are entitled to overtime for maintaining equipment including but not limited to polishing their shoes and duty belts, maintaining their duty weapons and ballistic vests and for the cleaning of their safety vests and radios. Plaintiffs claims that Defendant was well aware that officers were spending large amounts of time performing primary work duties without receiving compensation. Plaintiffs allege that this violates the FLSA. By way of relief, Plaintiffs seeks compensatory damages and court and attorney's fees.

Defendant moves for summary judgment with respect to Plaintiffs' claims pursuant to § 201 on the grounds that donning and doffing the uniform and its maintenance are preliminary and postliminary activities and therefore are not compensable under the Portal-to-Portal Act, 29 U.S.C. § 251, et. seq. Defendant further alleges that changing into and out of the uniform is not compensable under 29 U.S.C. § 203( o ) and that certain activities performed by officers are de minimis and therefore not compensable. Finally, Defendant alleges that the statute of limitations precludes recovery by certain individual plaintiffs.

II. Summary Judgment Standard

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party may not rest on mere allegations or denials of his pleading but must "come forward with 'specific facts showing that there is a genuine issue for trial.' " Id. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)).

"[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir.1995). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citations omitted).

III. Analysis

The FLSA requires that "employers must pay employees for all hoursworked." Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.2003) (internal quotation marks omitted), aff'd on other grounds.IBP v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). The Supreme Court has long described work as a "physical or mental exertion ... controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). The Portal-to-Portal Act of 1947 states that employers are not required to compensate their employees for activities "which are preliminary to or postliminary to said principal activity or activities." 29 U.S.C. § 254(a).

The Supreme Court first addressed whether the donning and doffing of a uniform is compensable in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). During the course of performing their job, workers in a battery plant were exposed to toxic materials and therefore were "compelled by circumstances, including vital considerations of health and hygiene to change clothes and to shower in facilities which state law requires their employer to provide." Id. at 248, 76 S.Ct. 330. Since showering and changing were "integral" and "indispensable" to the workers' principal activity the Supreme Court held that they were entitled to compensation for the activities under the FLSA. Id. at 256, 76 S.Ct. 330.

The issue of whether an employee must be compensated for changing was further addressed by the Ninth Circuit in Alvarez, supra. Workers at a meat processing plaint were required to change into their specialized protective clothing and safety gear in locker rooms on the plant's premises. The Ninth Circuit held that since "the donning and doffing of this gear on the ... plant's premises is required by law, by rules of IBP, and by the nature of the work, this donning and doffing is necessary to the principal work performed." Alvarez, 339 F.3d at 903. (internal quotation marks omitted). The court added that in order for an activity to be considered "integral and indispensable" it must be done for the benefit of the employer and be necessary for the principal work the employee performs. Id. at 902-03.

Following Steiner, the Department of Labor ("DOL") issued guidelines discussing when the changing of clothes is integral to an employee's activity and therefore compensable under the Portal-to-Portal Act. The DOL stated that:

if an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer's premises at the beginning and end of the workday would be an integral part of the employee's activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal activities, it would be considered as preliminary or postliminary activity rater than a principal part of the activity.

29 C.F.R. § 790.8(c) (footnote references and internal quotation marks omitted). While this policy statement is not entitled to deference it is entitled to respect so long as it has the "power to persuade." Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).

A. The donning and doffing of police uniforms and protective gear are not compensable under the Portal-to-Portal-Act since neither the law nor the police department requires officers to change at the police station.

Neither the Eighth Circuit nor any district court in the Eight Circuit has addressedwhether the donning and doffing of police uniforms is compensable. However, the Ninth Circuit has held that the donning and doffing of police uniforms is not compensable under the FLSA. In Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir.2010) and Dager v. City of Phoenix, 380 Fed.Appx. 688 (9th Cir.2010), the Ninth Circuit held that because neither the law nor the cities mandated that the police officers don and doff on the employers' premises the activity was...