Akpeneye v. United States ( 2019 )

In the United States Court of Federal Claims
No. 15-732C
(Filed: December 19, 2019)
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TEJERE J. AKPENEYE et al., *
*
Plaintiffs, *
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Trial; Fair Labor Standards Act; Portal-to-
v. *
Portal Act; Donning and Doffing;
*
Overtime; Police Officers
THE UNITED STATES, *
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Defendant. *
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Stephen G. DeNigris, Albany, NY, for plaintiffs.
Rebecca S. Kruser, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Chief Judge
Current and former Pentagon Force Protection Agency (“PFPA”) officers filed the instant
lawsuit in which they allege that they are entitled to compensation for their meal-break periods
and the time they take to don and doff their uniforms and equipment. They seek to recover
unpaid overtime pay and other damages pursuant to the Fair Labor Standards Act of 1938
(“FLSA”), 29 U.S.C. §§ 201-219 (2012), as amended by the Portal-to-Portal Act of 1947
(“Portal Act”), id. §§ 251-262. The court held a trial on the donning-and-doffing claim asserted
by fifteen sample plaintiffs and received posttrial briefing from the parties. In light of the facts
established during the trial, the court concludes that plaintiffs have not established a FLSA
violation.
I. Procedural History
A group of current and former PFPA officers, on behalf of themselves and similarly
situated employees, filed a complaint that they styled as an FLSA collective action. They then
filed an amended complaint in which they assert two claims. Both claims are premised on the
PFPA allegedly violating the FLSA by failing to pay officers for all the time they worked. In the
first claim, the officers allege that they are entitled to compensation under the FLSA for their
meal breaks. For the second claim, the officers allege that they must be compensated under the
FLSA for the time they spend donning and doffing their uniforms and equipment. To remedy
those alleged FLSA violations, the officers request that the court (1) allow the case to proceed as
a collective action; (2) order an accounting of the officers’ lost wages; (3) enjoin the PFPA from
continuing to commit the alleged unlawful practices; and (4) order the payment of unpaid
overtime, liquidated damages, and statutory penalties, as well as costs, interest, and attorney’s
fees.
After defendant filed its answer, the court accepted the parties’ proposal to bifurcate the
litigation. The first phase would involve the parties selecting sample plaintiffs and litigating
those officers’ claims. During the second phase, the court would determine whether the sample
plaintiffs are representative of the remaining officers such that the decision reached during the
first stage should be applied to the officers whose claims were not adjudicated during that stage.
The parties subsequently selected twenty sample plaintiffs: Tejere Akpeneye; Jonathan
Allen; Sahr Alphaek; Jacque Alston; Wayne Antoine; Carl Aslaksen; Michael Baker;
Christopher Baldwin; Rochelle Banks; Curtis Bass; Zanda Bell; James Bouyer, Jr.; George
Burns; Ryan Case; Jeffrey Clute; David Cousins; Dexter Cumberbatch; Brandyn Fox; Jeffrey
Johnson; and Maia Nowell.1 The parties then engaged in discovery with respect to those
plaintiffs. During discovery, the parties agreed to substitute Bradley Byrnes as a sample plaintiff
in place of Christopher Baldwin.
After the completion of discovery, the parties filed cross-motions for summary judgment.
The court denied plaintiffs’ motion for summary judgment in its entirety, granted defendant’s
motion for summary judgment on the meal-break claim, and denied defendant’s motion with
respect to the donning-and-doffing claim. Thus, plaintiffs’ donning-and-doffing claim was the
only remaining claim for trial. Subsequently, at the parties’ request, the court dismissed the
donning-and-doffing claim asserted by Officers Bass, Bell, and Baker and removed Officer
Alphaek from the group of sample plaintiffs.
The court held a trial on the sample plaintiffs’ donning-and-doffing claim from April 1,
2019, to April 5, 2019, and from April 8, 2019, to April 9, 2019. During the trial, the court
granted plaintiffs’ motion to dismiss Officer Clute’s claim, make Officer Chrislina Marshall a
sample plaintiff, and remove Officer Rochelle Banks from the list of sample plaintiffs.
Plaintiffs, therefore, proceeded through the trial with fifteen sample plaintiffs: Officers
Akpeneye, Allen, Alston, Antoine, Aslaksen, Bouyer, Burns, Byrnes, Case, Cousins,
Cumberbatch, Fox, Johnson, Marshall, and Nowell.2 The court heard closing argument on
December 18, 2019.
1
Officer Alphaek’s last name has been spelled as “Alpha-K” in some filings, but the
court uses “Alphaek” because that is how his name appears in the amended complaint.
Similarly, Officer Aslaksen’s last name has been spelled as “Arlarken” in some filings, but, as
reflected in the trial transcript (“Tr.”), he testified that the correct spelling is “Aslaksen.” Tr. 32
(Aslaksen). Additionally, the court notes that Officer Nowell was identified in the operative
complaint as Officer Bradley, but she testified during the trial that she changed her last name to
“Bradley” after getting married in June 2017. Id. at 729 (Nowell).
2
In addition to the sample plaintiffs, the court heard testimony from Frank Miller (a
former PFPA officer who is not a sample plaintiff), Chief Woodrow Kusse, Assistant Chief
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II. FACTS
This section contains the court’s findings of fact, with respect to the sample plaintiffs, as
required by Rule 52(a)(1) of the Rules of the United States Court of Federal Claims. The court
derives these facts from the parties’ Joint Stipulation of Facts (“Jt. Stip.”), the transcript of
testimony elicited during the trial, and the exhibits admitted into evidence during the trial (“DX”
or “JX”).
A. Duties and Authority
Plaintiffs are PFPA police officers.3 See Jt. Stip. ¶ 4. The PFPA “is a law enforcement
agency within the [United States] Department of Defense” (“DOD”) and is “charged with
protecting and safeguarding designated DOD personnel, resources, and facilities.” Id. ¶ 1.
PFPA officers “enforce laws enacted for the protection of persons and property, prevent breaches
of the peace and suppress affrays or unlawful assemblies, and enforce rules or regulations with
respect to such persons and property within the PFPA’s jurisdiction.” Id. ¶ 5. They may be
required to “contain, control, and neutralize any threat to the safety and welfare of the DOD
community or property in the event of sabotage attempts, armed intrusion, hostage taking, sniper
or terrorist attacks, weapons of mass destruction, civil disobedience, barricade attempts or
chemical accidents.” Id. ¶ 6. “Officers may also be required to carry out surveillance, perform
inspections, and ensure the security and protection of [United States] Government officials on
the Pentagon Reservation and other assigned locations in the Washington, D.C. Metropolitan
area.” Id. ¶ 7. The Pentagon Reservation encompasses “approximately 238 acres and includes
the Pentagon building [(“Pentagon”)], administrative offices, public transit, parking, support,
industrial land uses, and green and open spaces.” Id. ¶ 9.
Plaintiffs’ police authority is limited outside of the PFPA’s jurisdiction. See JX 5 at 1;
see also id. (noting that, when not within the PFPA’s jurisdiction, PFPA officers must “respect
host agencies’ authority and jurisdiction, and limit their law enforcement actions”). Officers
commuting with their PFPA-issued firearm (“firearm”) “may take immediate action to protect
the health, safety, or welfare of a person from serious breaches of the peace . . . .” Id. at 10; see
also id. (forbidding commuting officers from “effectuat[ing] traffic stops or tak[ing] police
action for traffic infractions[,] . . . unless circumstances arise in which a traffic situation involves
a serious breach of the peace”). Officers may take such action in Virginia under “limited
Conservator of the Peace authority” but can only act with the “same authority as a private
citizen” while in Maryland or Pennsylvania. Id. The PFPA warns officers that, if they “exceed
Gerald Plummer, and Major Steven Taylor. Mr. Miller testified for the sample plaintiffs, while
the others testified for the defendant.
3
Although the parties stipulated before trial that “[p]laintiffs are current and former
PFPA police officers,” Jt. Stip. ¶ 4, the sample plaintiffs testified during the trial that they are
currently PFPA officers, see, e.g., Tr. 776 (Marshall), and plaintiffs’ counsel suggested the same
during his opening argument, see id. at 9 (plaintiffs’ counsel) (discussing plaintiffs’ practices in
the present tense).
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their authority,” then they “subject both themselves and the Government to unnecessary liability”
and “may be subject to criminal prosecution or administrative action.” Id. at 2; accord id. at 10
(“PFPA employees must recognize their intervention in situations while off-duty . . . could result
in potential civil liability on the part of the Government and on the part of the PFPA officer
personally.”). The PFPA further notes that officers are protected from tort liability when they
take[] reasonable action, including the use of force, to (1) protect individuals from
a crime of violence; (2) provide immediate assistance to individuals who have
suffered or who have been threatened with bodily harm; or (3) to prevent the
escape of individuals who the [officer] reasonably believes to have committed a
crime of violence in the employee’s presence.
Id. at 10. But that immunity only applies if the officer acts to “protect the victim of a crime of
violence, rather than as an affirmative act to enforce State or local law.” Id.
B. Work Schedule and Compensation
Officers are assigned to work eighty hours per two-week pay period. E.g., Tr. 33
(Aslaksen). They work those hours in shifts of varying lengths. Jt. Stip. ¶ 8. For each shift,
officers are assigned to a specific duty or post. Id. ¶ 9. Most of those posts are on the Pentagon
Reservation. Id. Officers begin their shifts at roll call in the Pentagon Library and Conference
Center before going to their posts.4 Id. ¶¶ 28, 30; Tr. 1041 (Kusse). They must be in their
uniforms and have their equipment at the start of their shift.5 Jt. Stip. ¶ 28.
For their shifts, officers are compensated pursuant to an Administratively Determined pay
scale and are eligible for overtime compensation if they work longer than scheduled. See id.
¶¶ 12-13. They are paid for their time from the start of their shift—which is normally the time
roll call is scheduled to start—until the end of their shift. See id. ¶ 31; see also supra note 4
(noting that Officer Marshall does not begin her shift at roll call). They are not paid to don and
doff their uniforms and equipment. Tr. 1045 (Kusse).
C. Uniforms and Equipment
Officers must be in uniform and have certain equipment while working during their shift,
Jt. Stip. ¶ 14, because of the “quasi-military nature of policing and the need for visibility in the
basic police function,” DX 1 at 1; see also JX 1 at 1 (noting that uniforms are necessary “to
4
Despite the parties stipulating that “[r]oll call marks the beginning of every shift,” Jt.
Stip. ¶ 28, the trial testimony reflects at least one exception to that rule, see Tr. 780 (Marshall).
For reasons that are not clear from the transcript, Officer Marshall has not attended roll call for
the last ten years and instead starts her shift at her post—the Court Liaison and Evidence
Buildings. Id.
5
Officers may be assigned to a post requiring special equipment, but they do not need
that equipment at roll call. See, e.g., Tr. 506 (Cumberbatch).
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maintain a professional appearance”). The PFPA permits officers to don and doff their uniforms
and equipment at home or at the Pentagon. Jt. Stip. ¶ 29. The PFPA provides locker rooms in
the Pentagon that are located a few feet away from the armory and where roll call is conducted.
Id. ¶¶ 29, 33. In the locker rooms, officers may get dressed (or undressed) and store their food,
uniforms, equipment—with the exception of their firearm—and personal items. Id. ¶ 29; JX 3 at
2.
1. Uniform Components and Policy
PFPA officers have two types of uniforms—a Class A uniform and a Class B uniform.
Jt. Stip. ¶ 16. The Class A Uniform consists of:
(1) either a short-sleeved or long-sleeved shirt (or long-sleeved shirt with a
sweater), depending on the time of year; (2) a duty jacket; (3) a navy blue eight-
point hat, and (4) a black nylon or leather belt. Officers wearing a “Class A
Uniform” must also wear their issued badge and brass nameplate. The “Class A
Uniform” has optional items that officers may wear at their discretion, such as a
dress blouse, a marksmanship badge, award pins, and a whistle with a chain.
Id. ¶ 17 (citations omitted). In contrast, “[t]he ‘Class B Uniform’ consists of a two-piece blue
work uniform with optional baseball cap[;] . . . [the uniform] includes either a long- or short-
sleeved shirt and trousers, and, depending on the weather, a sweater or turtleneck.”6 Id. ¶ 18.
Regardless of the uniform type, officers must also wear “either black military-style lace-up
oxford shoes or boots.” Id. ¶ 20.
Although they can take their uniform home, see id. ¶ 29, officers cannot release their
uniform to “any outside third party commercial service to launder, repair or dry clean their
uniforms.” JX 2. They may, however, launder their uniforms at home, Tr. 908 (Case), or give
their uniforms to the on-site dry cleaners at the Pentagon, id.; accord JX 2.
2. Equipment Components and Policy
In addition to their uniforms, officers must wear a duty belt and a protective vest (“vest”),
with exceptions being made for the latter in certain circumstances.7 Jt. Stip. ¶¶ 22, 24. Officers
are required to have the following items on their duty belt: firearm and holster (unless the officer
is assigned to light duty), handcuffs with case, collapsible baton and holder, PFPA-issued
Oleoresin Capsicum spray and holster, magazine pouch with three .40 S&W magazines (13
6
For the sake of clarity, the court will use “uniform” to refer to both the Class A and
Class B uniform.
7
The duty belt is different from the belt that is a part of the Class A Uniform. Tr. 478
(Cumberbatch).
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rounds each), and belt-loop holder for their radio case.8 Id. ¶ 22; Tr. 868 (Johnson) (noting that
officers on light duty are not allowed to have a firearm). Officers may, but are not required to,
have the following items on their duty belt: flashlight and holder; key holders; second set of
handcuffs; pager and pager case; and cellular phone and case. Jt. Stip. ¶ 23.
While not on duty, officers must either leave their firearm at the Pentagon armory or take
the weapon home. Tr. 1043 (Kusse). Officers who store their firearm at the armory are required
to pick it up before the start of their shift.9 See id. at 747 (Nowell).
The PFPA has a firearms policy that specifies three relevant conditions for officers who
commute with their firearms. See generally JX 3. First, they must store the firearms in a
specified manner during their commute. Id. at 6. An officer “must carry the service weapon on
the [officer’s] person, if in uniform. If the [officer] is not in uniform, the service weapon must
be carried concealed in a holster designed for the weapon, or secured in the ‘life jacket’ locking
device within a carrying bag.” Id. Second, the officer must safeguard his or her firearm at
home; as soon as the officer arrives home, the officer is required to place the firearm in an
“agency furnished service-weapon locking device,” put the firearm in a lockbox, and keep the
“lockbox in a secure area . . . .” Id. at 7. Third, an officer commuting with his or her firearm can
only “travel directly between their permanent residence and duty station” except for “momentary
and brief stops that are incidental to their commute.” Id. at 5. Such stops include, but are not
limited to, “voting, refueling, picking-up dry cleaning, picking-up take-out food, stopping at
convenience stores, [and] picking up children from school and or daycare.” Id. Officers may not
stop to engage in off-duty employment, purchase or consume alcohol, visit businesses where the
primary business is alcohol or adult entertainment, or participate in an activity that would reflect
unfavorably upon the officer of the PFPA. Id. at 5-6.
3. Plaintiffs’ Firearm Practices
Most PFPA officers commute with their firearms. Tr. at 1047 (Kusse) (estimating that
ninety percent of officers commute with their firearm). Indeed, Officers Fox, Case, Allen,
Alston, Byrnes, Bouyer, Antoine, Aslaksen, and Cumberbatch travel to and from the Pentagon
with their firearms. Id. at 61 (Aslaksen), 237 (Alston), 289 (Allen), 401 (Bouyer), 496
(Cumberbatch), 521 (Fox), 650 (Antoine), 707 (Byrnes), 922 (Case). Officer Nowell also
commutes with her firearm unless she is travelling out of town or going somewhere not
permitted by the firearms policy. Id. at 746, 753 (Nowell). Officer Johnson commuted with his
firearm in the past, but no longer does so because he is assigned to a position—light duty—that
does not include a service weapon. Id. at 868 (Johnson). Officers Cousins and Marshall also
8
Officers were previously required to have disposable rubber gloves, a CPR pocket
mask, and a holder for that mask on their duty belt. Jt. Stip. ¶ 22 n.3. But the PFPA changed its
policy; officers are no longer required to have the CPR items, and officers merely need to have
the access to gloves while on duty. Id.
9
Officer Marshall is an exception to the rule; she is allowed to store her firearm at her
post, the evidence vault. Tr. 810 (Marshall).
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previously came to work with their firearms, but they now store their firearms at the Pentagon.
Id. at 810-11 (Marshall), 975 (Cousins). Officers Burns and Akpeneye do not commute with
their firearms. Tr. 79 (Akpeneye), 143 (Burns).
4. Plaintiffs’ Donning-and-Doffing Practices
The sample plaintiffs differ in where they don and doff the uniforms and equipment, as
well as in their rationales for their practices. Officer Akpeneye dons and doffs at the Pentagon
because of the weapons policy. Id. at 121 (Akpeneye). He does not want to be in his uniform
without his firearm, and he does not want to commute with his firearm because of the travel
restrictions that would apply. Id. at 121-22.
Officer Allen normally dons and doffs at the Pentagon but will get dressed at home if he
is behind schedule. Id. at 293-94, 313 (Allen). He prefers to put on his uniform and equipment
at the Pentagon because of safety considerations; specifically, Officer Allen is concerned that he
is a target for antipolice violence if he commutes in his uniform. Id. at 313-14. He also changes
at the Pentagon because of his belief that officers, pursuant to PFPA policy, are subject to
restrictions on what they can do and where they can go while commuting in uniform. Id. at 314.
But see id. at 315 (acknowledging that the travel restrictions he identified apply if an officer
commutes with his or her firearm). Officer Allen’s personal vehicle has a Thin Blue Line
sticker, which makes him identifiable as a police officer. Id. at 376-77.
Officer Alston dons and doffs at home some days and at the Pentagon on other days. Id.
at 236 (Alston). He prefers, however, to change at the Pentagon because he (1) is more
comfortable driving in civilian clothes, (2) does not have to worry that he will wrinkle his
uniform while commuting, and (3) is concerned that being in uniform during his commute poses
a risk to his safety. Id.
Officer Antoine generally dons and doffs his shirt and pants at home while completing
the rest of the process—putting on the duty belt and vest—at the Pentagon.10 Id. at 641
(Antoine); see also id. at 663 (noting that he has, on occasion, come to work in civilian clothes
and changed entirely at the Pentagon). At the end of his shift, he takes his duty belt and vest
home with him rather than going to the locker room to doff any equipment. See id. at 663-64
(noting that he typically goes directly to his vehicle rather than stopping by the locker room). He
prefers to primarily don and doff at home because (1) he needs to take his children to school, and
(2) his post is far away from the locker room such that it is quicker to just go home. Id. at 666.
Officer Antoine commutes in his uniform despite being concerned that his safety is endangered if
the public identifies him as an officer while he is in transit. See id. at 680 (indicating that he
would have safety concerns if he did not cover up his shirt). He ameliorates those concerns by
commuting with a jacket over his uniform. Id.
10
Officer Antoine, however, changed at the Pentagon when he was assigned to a
different post. Tr. 664-66 (Antoine).
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Officer Aslaksen dons and doffs in the Pentagon locker room. Id. at 41-42 (Aslaksen).
He prefers to change in the locker room because the PFPA made that area available, and he has
safety concerns regarding commuting in uniform based on his knowledge of officers at the
California Department of Corrections (his prior employer) being targeted when they were off
duty but still in their uniforms. Id. at 45-46. Despite his concerns with respect to being targeted
for being a police officer, Officer Aslaksen previously made himself identifiable as a police
officer while off duty by commuting in a vehicle with a Thin Blue Line sticker. Id. at 65.
Officer Bouyer changes at the Pentagon. Id. at 430 (Bouyer). He chooses to dress there
based on concerns that commuting in uniform places him in danger because (1) some people do
not like police officers, and (2) he has limited police powers outside of the Pentagon
Reservation. Id. at 430-31.
Officer Burns typically dons and doffs at the Pentagon, but he has worn his uniform
home on some occasions. Id. at 143, 173-74 (Burns). He too prefers to change at work due to
safety concerns related to being identified as a police officer while off duty in public. Id. at 165.
Despite that concern, Officer Burns drives to work in a vehicle with a Thin Blue Line sticker
even though people may identify him as a police officer because of that sticker. Id. at 178.
Officer Byrnes dons and doffs his uniform and vest at home, but deals with the duty belt
in the Pentagon parking lot. Id. at 697-98 (Byrnes). He used to wear a shirt or something else to
cover his uniform while he was commuting, but he has not done so in quite a while. Id. at 719.
He commutes in a vehicle with a Thin Blue Line tow hitch, which makes him identifiable as a
police officer when he is off duty. See id. at 720-721.
Officer Case dons and doffs at work, but he frequently dressed at home prior to 2013. Id.
at 921-22 (Case). He changed his donning-and-doffing practice in 2013 because he began
working at a post where he is relieved early but has to remain at the Pentagon until his shift is
over. Id. at 907-08, 910. He uses the time between being relieved and the end of his shift to
change out of his uniform. Id. at 909-10.
Officer Cousins generally dons and doffs in the Pentagon locker room, but he also
dresses at home some days. Id. at 941, 983 (Cousins). He does not bring his equipment home
(with the exception of his radio battery) because he lives thirty-five miles from the Pentagon. Id.
at 984. He also prefers to dress at the Pentagon because of safety concerns; he is afraid of being
targeted or ambushed if he wears his uniform while off duty. Id. at 969.
Officer Cumberbatch sometimes dons and doffs at home and other times dresses at the
Pentagon. Id. at 464 (Cumberbatch). But he rarely comes to work in full civilian attire. See id.
at 498-99 (explaining that he will come to work in entirely civilian clothes on the “rare occasion”
when he does not have a clean uniform). He generally finishes getting ready at the Pentagon
after arriving dressed in his uniform pants and (1) vest and shirt, which he conceals under a
hooded sweatshirt or civilian jacket, id. at 464, 497; or (2) vest, which he covers with a t-shirt, id.
at 465, 498. See also id. at 498 (agreeing that the main difference is whether he arrives at the
Pentagon wearing the shirt that is part of his uniform). Although his practices vary, he chooses
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his specific routine to account for activities he may want to do after work and manage safety
concerns he has related to being identified as a police officer. Id. at 490, 492, 497.
Officer Fox also changes at his home and the Pentagon. Id. at 519 (Fox). He dons and
doffs at the Pentagon 75% of the time and at home the other 25% of the time. Id. at 520. He
dresses at home if he has the next day off, is relieved late from his post, has something going on
with his family, or needs to get home immediately. Id. at 519.
Officer Johnson dons and doffs at home. Id. at 865 (Johnson). He changes there because
it is more convenient; he does not want to go to work earlier than necessary, and he lives close
enough to the Pentagon that he can go home to change if he wants to go out after work without
wearing his uniform. Id. Additionally, Officer Johnson chooses to don and doff at home
because he does not have children, so there is less risk associated with storing his firearm at
home. Id.
Officer Marshall commuted in her uniform at the beginning of her career. Id. at 811
(Marshall). But she now dons and doffs at the Pentagon because she changes into gym clothes
and exercises towards the end of her shift. Id. She did not change her routine because of safety
concerns. Id. at 815. She commutes in a vehicle with a Thin Blue Line sticker, which makes her
identifiable as a police officer. See id. at 814-15.
Officer Nowell dons and doffs at the Pentagon. Id. at 732 (Nowell). She dresses in the
locker room because of safety concerns. Id. at 754. Officer Nowell does not feel safe
commuting in her uniform because she is aware of non-PFPA officers who have been the target
of violent attacks. Id. at 754, 762-63. Officer Nowell also believes she is safer dressing at the
Pentagon because she feels obligated to provide police assistance while in uniform but is
concerned that others will not recognize her as an officer due to her car not having any
identifying markers. Id. at 754.
In sum, plaintiffs embrace a diverse range of donning-and-doffing practices. Some
change only at the Pentagon, one does so only at home, and others either vary their practice or
complete part of the process at home and the remainder at the Pentagon. For some plaintiffs,
their practices have not been consistent over time as they altered their routine over time in
response to changing circumstances. Plaintiffs’ explanations for their routines are equally
diverse; specifically, plaintiffs identified comfort, convenience, post location, safety concerns,
jurisdictional limitations, and other considerations. Plaintiffs are all in agreement, however, that
they are not required to change at work but rather can choose where they don or doff based on
their personal preference. E.g., id. at 124 (Akpeneye).
III. LEGAL STANDARD
The question in this case is whether plaintiffs are entitled to overtime compensation for
the time they spend donning and doffing their uniform and equipment when those activities are
performed before or after their shifts. The answer depends on the FLSA (as amended) and the
applicable regulatory guidance. See IBP, Inc. v. Alvarez, 546 U.S. 21, 24 (2005) (reviewing the
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FLSA); Bamonte v. City of Mesa, 598 F.3d 1217, 1220-23 (9th Cir. 2010) (reviewing the FLSA
and regulatory guidance).
A. The FLSA and the Portal Act
The FLSA governs, among other things, overtime compensation. 29 U.S.C. §§ 201-217;
see also Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602 (1944)
(stating that the FLSA’s purpose is to “guarantee[] compensation for all work . . . engaged in by
[covered] employees”). Under that law, it is illegal for an employer to “employ” an employee
for a workweek of more than forty hours unless the employee receives overtime compensation
for the time spent employed in excess of forty hours. 29 U.S.C. § 207(a). Police officers,
however, are treated differently; a public agency cannot lawfully “employ” a police officer for
more than 171 hours over a twenty-eight day pay period (or a proportional number of hours for
shorter pay periods) unless the officer is paid overtime for the excess hours. Id.; 29 C.F.R.
§ 553.201 (2015); see also 29 U.S.C. § 207(k) (authorizing the Secretary of Labor to promulgate
regulations setting the number of hours police officers must work to receive overtime). Officers’
eligibility for overtime, therefore, depends on how many hours they are employed. See 29
U.S.C. § 207(a)(1) (explaining that overtime depends on how long an employer “employs” the
employee). In this respect, “‘[e]mploy’ includes to suffer or permit to work.” Id. § 203(g).
Congress did not define “work” within the FLSA. See id. § 203 (definitions). The
United States Supreme Court (“Supreme Court”) filled that gap by defining the term as any
“physical or mental exertion (whether burdensome or not) controlled or required by the employer
and pursed necessarily and primarily for the benefit of the employer and his business.” Alvarez,
546 U.S. at 25 (quoting Tennessee Coal, 321 U.S. at 598). Guided by that definition, the
Supreme Court held that employees were entitled to compensation for activities that were
preliminary or postliminary to the principal activity for which they are employed. Id. at 27.
Congress responded to the Supreme Court’s interpretation of the FLSA by passing the
Portal Act, which amends the FLSA and creates an exception to the FLSA’s general rule that
employees must be paid for all work. See Bobo v. United States, 136 F.3d 1465, 1467 (Fed. Cir.
1998); see also 29 U.S.C. § 251(a) (noting Congress’s finding that that the FLSA “has been
interpreted judicially” in a manner that “creat[es] wholly unexpected liability”). The Portal Act
is primarily concerned with defining the beginning and ending of the workday, Alvarez, 546 U.S.
at 34-37; Congress “distinguish[ed] between activities that are essentially part of the ingress and
egress process, on the one hand, and activities that constitute the actual ‘work of consequence
performed for an employer,’ on the other hand.” Integrity Staffing Solutions, Inc. v. Busk, 574
U.S. 27 (2014) (Sotomayor, J., concurring) (quoting 28 C.F.R. § 790.8 (2014)). Specifically,
Congress eliminated employers’ responsibility to compensate employees for “activities which
are preliminary 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); accord Alvarez, 546 U.S. at 26-27. But that limiting principle does not relieve
employers from the obligation to pay for some activities performed before or after a shift. See
Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956). Indeed, activities performed by an employee
“before or after the regular work shift” that are “an integral and indispensable part of the
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principal activities” of the employee are themselves “principal activities” and, thus, are not
excluded from FLSA coverage by the Portal Act. Id.; accord Alvarez, 546 U.S. at 29-30.
Even if employees are performing otherwise compensable work, they are not entitled to
overtime compensation for preshift or postshift activities that require a de minimis amount of
time. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) (noting that the
FLSA does not require employers to pay employees for “a few seconds or minutes of work
beyond the scheduled working hours”). While “the period that is normally regarded as the cut-
off for de minimis overtime is 10 minutes, that number has not been treated as a rigid
maximum.” Carlsen v. United States, 521 F.3d 1371, 1380 (Fed. Cir. 2008). Indeed, activities
that require even more time can still be de minimis depending on “the practical administrative
difficulty of recording additional time, the aggregate amount of compensable time, and the
regularity of the work.” Id.
In sum, there is a three-part test for determining whether an employee is entitled to
overtime compensation for an activity performed before or after a shift. The employee must be
engaged in an activity that (1) constitutes work, (2) is a principal activity (which is satisfied if the
activity is integral and indispensable to a principal activity), and (3) requires more than a de
minimis amount of time. Bamonte, 598 F.3d at 1224; see also Abbey v. United States, 124 Fed.
Cl. 397, 401 (2015). The employee bears the burden of establishing all three elements. Whalen
v. United States, 93 Fed. Cl. 579, 587 (2010).
B. Regulatory Guidance
There is regulatory guidance that fleshes out the contours of the FLSA as amended by the
Portal Act. As a general matter, the United States Office of Personnel Management’s (“OPM”)
regulations concerning compensation apply to plaintiffs because they are federal employees. 29
U.S.C. § 204(f). Because the OPM’s application of the FLSA must be consistent with the United
States Department of Labor’s (“DOL”) interpretation, courts addressing federal employees’
FLSA claims have also considered the DOL’s reading of the FLSA. See Billings v. United
States, 322 F.3d 1328, 1334 (Fed. Cir. 2003) (noting that the OPM’s guidance must be in
harmony with the FLSA’s purpose and DOL regulations); Havrilla v. United States, 125 Fed. Cl.
454, 463 (2016) (reviewing DOL and OPM regulations when evaluating the claims of federal
employees). The DOL’s interpretation of the FLSA, therefore, is relevant to the instant case.
The DOL has issued guidance on when donning and doffing qualifies as a principal
activity. See Akpeneye v. United States, 138 Fed. Cl. 512, 542 (2018) (collecting DOL
publications). Most recently, the DOL reiterated in an advisory memorandum its “longstanding
position that if employees have the option and ability to change into the required gear at home,
changing into that gear is not a principal activity, even when it takes place at the plant.” U.S.
Dep’t of Labor, Wage & Hour Div., Wage & Hour Advisory Memorandum No. 2006-2, at 3
(May 31, 2006) (“DOL Memorandum” or “Memorandum”). This interpretation, however, lacks
the force of law because it appears in an advisory opinion. See Christensen v. Harris Cty., 529
U.S. 576, 587 (2000); accord Bamonte, 598 F.3d at 1223 (concluding that the DOL’s statements
on compensation under the Portal Act lack the force of law because they are “general policy
statements”). The DOL’s position, nonetheless, reflects “a body of experience and informed
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judgment to which courts and litigants may properly resort for guidance,” Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944), and is “entitled to respect . . . to the extent that [it] ha[s] the
‘power to persuade,’” Christensen, 529 U.S. at 587 (quoting Skidmore, 323 U.S. at 134). The
court, as explained in its prior summary judgment decision in this case, is persuaded that the
DOL’s interpretation in the Memorandum accurately reflects the law and has adopted it.11
Akpeneye, 138 Fed. Cl. at 542. In sum, employees are not engaged in a principal activity when
they don and doff their uniforms or equipment if they have the option and ability to dress at
home.
IV. ANALYSIS
Plaintiffs’ success in this case is contingent on them establishing that donning and
doffing constitutes work, is a principal activity, and requires more than a de minimis amount of
time. Bamonte, 598 F.3d at 1224; see also Whalen, 93 Fed. Cl. at 587 (noting the burden).
Because their claim fails if they fail to establish each of those elements, the court need not
address the elements in order or necessarily address all of them. See Bamonte, 598 F.3d at 1224.
As such, the court begins by evaluating whether plaintiffs have established that donning and
doffing is a principal activity because that is the primary area of disagreement between the
parties.
The DOL Memorandum is the starting point for the principal activity analysis. Pursuant
to the Memorandum, employees who don and doff at the workplace are not engaged in a
principal activity if they have the option and ability to do so at home. DOL Memorandum 3.
And, as relevant here, employees have the option and ability to don and doff at home if they
change clothes at work as a matter of preference rather than because of a law, a regulation, an
employer policy, or the nature of the work. Bamonte, 598 F.3d at 1231. The court concludes
that the sample plaintiffs have the option and ability to change at home because (1) the PFPA
permits it, and (2) eleven of the sample plaintiffs acknowledge that they currently fully or
partially dress at home at least some of the time (or have done so in the past). The fact that a
significant number of the sample plaintiffs don and doff, at least in part or on occasion, at home
undermines any notion that the option to change at home is illusory. Moreover, the court’s
conclusion is buttressed by the fact that the sample plaintiffs acknowledge that they choose
where to change based on their personal preference. Even if the sample plaintiffs had not
explicitly acknowledged that their decision was a matter of personal preference, the officers who
11
The court is not breaking new ground by following the DOL’s interpretation; indeed,
other courts have also focused on the DOL’s position when considering whether employees are
entitled to compensation when they can don and doff at home. E.g., Bamonte, 598 F.3d at 1228
(“We are similarly persuaded that the 2006 DOL memorandum . . . should be considered in our
resolution of this case.”); Lesane v. Winter, 866 F. Supp. 2d 1, 6 (D.D.C. 2011) (“The Court sees
no reason to disagree with the DOL’s view that employees who genuinely have the ‘option and
ability’ to change clothes at home should not be compensated for the time it takes to do so.”);
Haight v. The Wackenhut Corp., 692 F. Supp. 2d 339, 345 (S.D.N.Y. 2010) (deeming “[m]ost
significant[]” the fact that security officers “are not required to change on [the] employer’s
premises and have the option of changing at home”).
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change at work testified that they do so for reasons—concerns over safety, restrictions, and
liability—that reflect their own preferences rather than mandates. See id. (explaining that police
officers are choosing where to dress based on their preferences when they decline to change at
home because of safety, comfort, and exposure concerns). In short, the sample plaintiffs are not
engaged in a principal activity when they don and doff because they have the option and ability
to do so at home.
Plaintiffs’ counterarguments are not convincing. First, relying on Perez v. Mountaire
Farms, Inc., 610 F. Supp. 2d 499 (D. Md. 2009), plaintiffs argue that their option to change at
home is illusory because the PFPA provides locker rooms, supplies the uniforms and equipment,
and offers cleaning services for the uniforms. Plaintiffs’ reliance on Perez is misplaced because
the decision is distinguishable. Perez involved employees of a chicken processing plant who
sought compensation for the time they spent donning and doffing their uniforms and protective
equipment. Id. at 502-03. The district court in Perez held that the employees lacked a
meaningful opportunity to change at home because (1) “it would be onerous and . . . impractical
for employees to take home [their protective equipment],” (2) “it is wholly illogical for
employees to take home smocks soiled with chicken blood and fat,” and (3) “no witnesses . . .
testified that [employees taking home their uniforms] is a normal occurrence.”12 Id. at 519-20.
None of those circumstances is present here. First, the court, having viewed the uniform and
equipment during the trial, finds that it would not be onerous or impractical to take both to and
from the Pentagon. Indeed, the sample plaintiffs did not testify that doing so would be onerous
or impractical, there is ample testimony reflecting that officers found it possible to take their
uniform and/or equipment home, and the fact that some officers change at home further
undermines any notion that doing so is unrealistic. Second, the sample plaintiffs’ uniforms are
not, as a matter of course, covered in blood or other unsanitary products at the end of their shift.
Third, the sample plaintiffs testified that there are a number of officers who dress at home either
regularly or periodically. In short, the sample plaintiffs do not advance their cause by relying on
the Perez decision.
Plaintiffs next argue that the option to change at home is illusory because off-duty
officers in uniform have safety concerns, are subject to travel restrictions, face liability risks, and
must mislead the public if they dress at home. The court is not swayed. The sample plaintiffs
12
The district court, in passing, attributed some significance to the fact that the employer
had installed lockers: “If changing at home were a bona fide option, there would be no real need
for employee lockers or for [the employer] to incur the cost of installing them.” Perez, 610 F.
Supp. 2d at 519. It is unclear from the opinion whether the aforementioned statement is dicta or
holding. See id. at 519-20 (discussing a variety of reasons why the employees lacked the option
and ability to change at home). To the extent that the statement is part of the holding, the court
does not agree with the reasoning. The mere existence of lockers does not indicate that
employees lack the ability to change at home; an employer may install lockers to provide
employees with the option to dress at work (which would arguably be impossible without a
locker to store clothes) or store items such as food during the shift. Moreover, the district court’s
determination that the existence of the lockers is significant must be read in the context of facts
that, as discussed below, are materially different than the instant case.
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may have well-founded concerns that commuting in their uniforms is a safety risk because of the
dangers associated with being identifiable as an officer while off duty.13 But those concerns are
of no import to whether they have a meaningful ability to change at home. An officer’s decision
to dress at the Pentagon because of concerns that it is not safe to commute in uniform reflects
that officer’s preference, which does not render illusory the option to dress at home. See
Bamonte, 598 F.3d at 1231 (noting that officers choosing to not dress at home due to “safety
concerns” are making a decision based on “preferences rather than mandates” such that they
“retain the option and ability to don and doff . . . at home”). Moreover, plaintiffs’ focus on those
safety concerns is also misplaced because the option to change at home is not illusory if officers
can mitigate their concerns by covering up their uniform, see Dager v. City of Phoenix, 646 F.
Supp. 2d 1085, 1100 (D. Ariz. 2009) (declining to compensate police officers for their commute
time because “officers concerned about being identified or harassed while off duty can easily
cover their uniforms during their commutes”), and the sample plaintiffs acknowledge that they
can conceal their uniform while commuting.
Plaintiffs’ focus on the travel restrictions is also unpersuasive. As an initial matter,
plaintiffs argue that they lack a meaningful option to change at home because they are subject to
travel restrictions while in uniform. But the evidence introduced during the trial reflects that,
pursuant to the weapons policy, officers are only so limited if they travel with their firearms—
whether the officers are in uniform is of no import.14 The court, therefore, focuses its inquiry on
the consequences of the weapon policy. There is no indication that officers are deprived of a
meaningful ability to don and doff at home because of that policy. Indeed, the idea that officers
feel constrained to donning and doffing at the Pentagon based on a desire to freely travel after
their shifts is belied by the fact that most plaintiffs subject themselves to travel restrictions by
13
The court need not and does not make a finding with respect to whether the sample
plaintiffs have safety concerns. There is conflicting testimony on the issue. Indeed, some
officers testified that there are safety risks associated with being identifiable as an officer while
off duty but also acknowledged commuting in their uniform and/or driving a car with a decal
associated with police officers.
14
To support their understanding that officers in uniform must commute with their
firearms, plaintiffs direct the court to a portion of the weapons policy in which the PFPA states
that officers in transit “must carry the [firearm] on the employee’s person, if in uniform. If the
employee is not in uniform, the service weapon must be carried concealed in a holster . . . or
secured in the ‘life jacket’ locking device . . . .” JX 3 at 6. Plaintiffs’ understanding is
seemingly guided by the first sentence in which the PFPA described how officers must carry
their firearm if in uniform. Plaintiffs’ interpretation is problematic because, when applied in
connection with the next sentence in which the PFPA describes how officers not in uniform must
travel with their firearms, the result is a requirement that all officers commute with their firearms
regardless of whether they are in uniform. But plaintiffs explicitly acknowledged during trial
that was not the case as some of the sample plaintiffs leave their firearms at the Pentagon after
their shifts. Thus, the court reads the quoted language as the PFPA explaining how each officer
must secure his or her firearm when travelling with it rather than imposing a requirement to
travel with the firearm.
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commuting with their firearms. Even if officers were influenced by the policy when deciding
where to don and doff, they are not deprived of a meaningful option to dress at home because of
the travel restrictions. See Musticchi v. City of Little Rock, Ark., 734 F. Supp. 2d 621, 626
(E.D. Ark. 2010) (holding that officers are not entitled to compensation for donning and doffing
their uniform despite “restriction[s on] officers’ travel once they are in uniform”); cf. Bobo, 136
F.3d at 1468 (analyzing whether agents spent a de minimis amount of time on work activities
during their commute and noting that “the prohibition on personal stops during [agents’]
commute[s] . . . does not make their time compensable”).
Plaintiffs also argue that they lack a meaningful ability to change at home because they
face potential civil liability if they commute in their uniforms. Specifically, they assert that the
public expects uniformed officers to provide police assistance in certain circumstances, and
officers could be subject to civil liability for providing such assistance during their commutes
because they have limited authority when they are not within the PFPA’s jurisdiction. Otherwise
stated, plaintiffs contend that they cannot dress at home because they are concerned that they will
accede to public expectations and then exceed their own authority when they provide assistance.
This argument is unpersuasive for a multitude of reasons. First, plaintiffs do not identify any
officer who testified that he or she decided where to change based on liability concerns.15
Second, a significant number of the sample plaintiffs commute in their uniform, which
undermines the notion that officers’ option to dress at home is illusory. Third, plaintiffs could
mitigate their concerns by covering up their uniform during their commute because they would
no longer be identifiable as police officers. Fourth, plaintiffs fail to explain why they cannot act
within their authority if they stop to assist people who need help.
Plaintiffs further argue that the option to dress at home is illusory because those who
commute in their uniforms must engage in subterfuge. Specifically, plaintiffs contend that it is
unacceptable to require officers to mislead the public by presenting themselves as police officers
with the attendant power even though they lack meaningful authority outside of the PFPA’s
jurisdiction. But the sample plaintiffs did not testify that they considered the opinions of others
when deciding where to dress, and they could mitigate any concerns with respect to misleading
the public by covering up their shirt while commuting. See Dager, 646 F. Supp. 2d at 1100
(noting that officers could avoid being identified by covering up their uniforms during their
commute).
Even if each of the aforementioned considerations is not enough in isolation, plaintiffs
argue that they are deprived of a meaningful option to dress at home based on the combined
effect of their safety concerns, travel restrictions, liability risks, and apprehension over
misleading the public. Plaintiffs’ contention is again undermined by the fact that many of the
15
Officer Bouyer, who plaintiffs rely on in support of their argument, testified that he
chooses to dress at work because officers have limited jurisdiction but did not frame his concerns
around the concept of liability. Tr. 430-31 (Bouyer). When asked why he dressed at work, he
responded: “For me, safety as far as wearing my uniform, because we have a limited jurisdiction
and not everybody loves police officers. It’s just a safety thing for me.” Id. In short, Officer
Bouyer dresses at home because he is concerned for his safety rather than due to worries
regarding being held personally liable for helping others.
-15-
sample plaintiffs change at home at least in part and on occasion. Additionally, plaintiffs fail to
demonstrate how their decisions, even if influenced by all of the noted considerations, on where
to don and doff are the product of anything other than their preferences. Indeed, they fail to
identify any mandate that flows from the law, employer, or nature of the work that prevents them
from dressing at home. Moreover, the sample plaintiffs’ safety, liability, and honesty concerns
are easily mitigated by covering up their uniforms, while the travel restrictions seemingly have
no deterrent effect as most officers willingly subject themselves to those limits by commuting
with their firearms. In short, plaintiffs still have the meaningful option and ability to dress at
home despite the combined effect of the aforementioned considerations.
In sum, the sample plaintiffs are not engaged in a principal activity when they don and
doff their uniforms and equipment because they have the option and ability to do so at home.
Thus, the sample plaintiffs are not entitled to overtime compensation for the time they spend
donning and doffing.
V. CONCLUSION
The court is grateful for plaintiffs’ service as PFPA officers. Unquestionably, they are
valiant public servants who every day place their lives on the line while safeguarding America’s
military installations. The court, unfortunately, cannot award compensation based on nobility.
Here, plaintiffs are requesting overtime compensation for the time they spend donning and
doffing their uniform and equipment before and after their shifts. But, pursuant to the facts
elicited during the trial, the sample plaintiffs are not engaged in a principal activity when they
are putting on or taking off their uniforms and equipment such that the time for those activities is
not compensable. Simply stated, the sample plaintiffs are not engaged in a compensable activity
under the FLSA, as amended by the Portal Act, when they are changing. Accordingly, the court
DISMISSES the sample plaintiffs’ claims. The parties shall file a joint status report by no later
than Friday, January 31, 2020, in which they suggest a process for the second phase of the
litigation.16
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Chief Judge
16
Based on the court’s holding as to the sample plaintiffs, the most efficient course of
action may be for the parties to request that the court direct the entry of judgment for defendant
with respect to all of the plaintiffs’ claims.
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