Albrecht v. The Wackenhut Corp. ( 2010 )

09-4449-cv
Albrecht, et al. v. The Wackenhut Corporation
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28 th day of May, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROGER J. MINER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
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13 RODERICK ALBRECHT, et al.,
14
15 Plaintiffs-Appellants,
16
17 -v.- 09-4449-cv
18
19 THE WACKENHUT CORPORATION,
20
21 Defendant-Appellee.
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23
24 APPEARING FOR APPELLANTS: Joseph B. Rizzo, Gallo &
25 Iacovangelo LLP, Rochester, NY.
26
1
1 APPEARING FOR APPELLEE: Robert A. LaBerge (Christa R.
2 Cook, on the brief), Bond,
3 Schoeneck & King, PLLC,
4 Syracuse, NY.
5
6 Appeal from a judgment of the United States District
7 Court for the Western District of New York (Telesca, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Plaintiffs-appellants are current and former security
14 guards appealing from a judgment of the United States
15 District Court for the Western District of New York
16 (Telesca, J.), which dismissed their suit under the Fair
17 Labor Standards Act, as amended, 29 U.S.C. §§ 201 et seq.
18 (the “FLSA”). The district court granted summary judgment
19 in favor of defendant-appellee The Wackenhut Corporation and
20 denied Plaintiffs’ cross-motion for partial summary
21 judgment. We assume the parties’ familiarity with the
22 underlying facts, the procedural history, and the issues
23 presented for review.
24
25 The district court reasoned that the time spent arming
26 up before a shift and arming down after a shift was non-
27 compensable under the FLSA because (i) arming up is a
28 preliminary activity (and arming down is a postliminary
29 activity) under the Portal-to-Portal Act, 29 U.S.C. §§ 25130 et seq., and (ii) in the alternative, the time spent arming
31 up and down is de minimis. Following de novo review, see
32 Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009), we affirm
33 on the ground that the time spent arming up and down is non-
34 compensable as a de minimis principal activity. 1
1
To the extent that Plaintiffs include donning and
doffing their uniforms and equipment as a component of
arming up and down, we conclude that the donning and doffing
in this case is non-compensable as a preliminary/
postliminary activity. See Steiner v. Mitchell, 350 U.S.
247, 248-49, 254 (1956) (distinguishing the non-compensable
preliminary/postliminary activity of “changing clothes and
showering under normal conditions,” from the compensable
activity of changing clothes and showering where workers who
“make extensive use of dangerously caustic and toxic
materials . . . are compelled by circumstances, including
2
1 On appeal, Plaintiffs rely chiefly on four employee
2 affidavits submitted in the district court. These
3 affidavits state that “the average time required to obtain
4 ammunition, a gun belt, a radio pouch, a bandolier, a
5 firearm, a vital key, and a radio, and to report to an
6 assigned post,” takes 8-15 minutes, 10-15 minutes, or 12-15
7 minutes. The critical inquiry, however, focuses more
8 narrowly on the time spent obtaining/returning the firearm
9 and radio. Assuming this is a principal activity, it is
10 non-compensable (along with the immediately proximate
11 activities) if obtaining/returning the firearm and radio is
12 de minimis. See Reich v. N.Y. City Transit Auth., 45 F.3d
13 646, 652 (2d Cir. 1995) (“When the matter in issue concerns
14 only a few seconds or minutes of work beyond the scheduled
15 working hours, such trifles may be disregarded. . . . It is
16 only when an employee is required to give up a substantial
17 measure of his time and effort that compensable working time
18 is involved.” (quoting Anderson v. Mt. Clemens Pottery Co.,
19 328 U.S. 680, 692 (1946))); see also Singh v. City of N.Y.,
20 524 F.3d 361, 371 n.8 (2d Cir. 2008) (“[A] de minimis
21 principal activity does not trigger the continuous workday
22 rule.”). 2
23
24 We conclude that the time spent obtaining/returning the
25 firearm and radio is de minimis. The affidavits explain:
26
27 The time required to obtain our required equipment
28 varies depending upon a number of factors, for
29 example, whether there is a line to obtain
30 firearms and/or radios, whether a supervisor is
31 present in the armory to distribute vital keys and
32 firearms, whether there are radios available,
vital considerations of health [and] hygiene, to change
clothes and to shower in facilities which state law requires
their employer to provide”); see also 29 C.F.R. § 790.7(g)
(classifying “changing clothes” as a preliminary/
postliminary activity).
2
Of course, the time spent waiting in line to obtain
the firearm is non-compensable irrespective of whether the
time spent obtaining the firearm is de minimis. See IBP,
Inc. v. Alvarez, 546 U.S. 21, 42 (2005) (holding that the
Portal-to-Portal Act “excludes from the scope of the FLSA
the time employees spend waiting to don the first piece of
gear that marks the beginning of the continuous workday”).
3
1 whether other radio traffic delays radio checks
2 with BRAVO alarm station, and/or whether
3 particular radio devices and/or accessories (i.e.,
4 two-wire systems or lapel microphones) are
5 operating.
6
7 These affidavits do not contradict (i) the deposition
8 testimony of certain Plaintiffs that obtaining the firearm
9 and radio “could take,” “would take,” or “took”
10 approximately 30-90 seconds, or (ii) the Reply Declaration
11 of Christopher R. Hook, Wackenhut’s Security Operations
12 Supervisor at the Ginna facility, which explained that the
13 “alleged radio issues or difficulties occur only
14 infrequently and take only a matter of seconds to address;
15 for example, dealing with radio traffic at the BRAVO alarm
16 station would not take more than five seconds to address.”
17 Accordingly, Plaintiffs fail to present a genuine issue of
18 material fact about the time spent obtaining/returning the
19 firearm and radio. The 30-90 seconds spent engaging in this
20 principal activity before and after each shift therefore is
21 de minimis. We affirm the district court’s ruling that the
22 time spent obtaining/returning the firearm and radio is non-
23 compensable. We further affirm the district court’s
24 conclusion that the time spent walking between the armory
25 and an assigned post is non-compensable.
26
27 Finally, Plaintiffs forfeited their argument regarding
28 the purported requirement to report to an assigned post 15
29 minutes before the start of a scheduled shift. The
30 affidavits explain:
31
32 [A]t all relevant times, up to approximately
33 March, 2006, security personnel were required by
34 Wackenhut to report to their assigned post fifteen
35 (15) minutes prior to the commencement of their
36 shift. For example, if a shift was to commence at
37 2:30 p.m., the security employee was required to
38 report at 2:15 p.m. Security personnel were not,
39 however, compensated until the actual commencement
40 of the shift.
41
42 Such waiting may well be compensable. See Reich, 45 F.3d at
43 651 (“To be sure, on occasions, courts have found that
44 compensable work can occur despite absence of exertion,
45 where, for example, employees have been required to stand by
46 and wait for the employer’s benefit.”). But here, the
47 operative complaint did not allege Wackenhut’s failure to
4
1 compensate for this time period. The complaint explicitly
2 references only “periods of time for arming up and checking
3 through security and arming down.” The express reference to
4 “checking through security” undermines any argument that
5 arming up and down is a term so broad as to include all pre-
6 shift and post-shift activities. Plaintiffs’ belated
7 attempt to graft this waiting time onto the process of
8 arming up and down therefore is precluded.
9
10 We have considered all of Plaintiffs’ contentions on
11 this appeal and find them to be without merit. Accordingly,
12 we hereby AFFIRM the judgment of the district court.
13
14
15 FOR THE COURT:
16 CATHERINE O’HAGAN WOLFE, CLERK
17
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