Meeks v. Pasco County Sheriff
Filing
40
ORDER denying 32 Defendant's Motion for summary judgment; granting in part and deferring in part 33 Plaintiff's Motion for summary judgment. By September 6, 2016, Plaintiff is directed to file a reply brief, not to exceed 6 pages. By September 13, 2016, Defendant may file a sur-reply, not to exceed 6 pages. The parties must file all pretrial motions, including motions in limine, by September 19, 2016, and responses thereto must be filed by September 26, 2016. The parties' joint pretrial statement must be filed by September 29, 2016.. Signed by Judge Susan C Bucklew on 8/29/2016. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SHAWN MEEKS,
Plaintiff,
v.
Case No. 8:15-cv-1460-T-24 AEP
CHRIS NOCCO, in his official capacity
as Pasco County Sheriff,
Defendant.
______________________________/
ORDER
This cause comes before the Court on cross-motions for summary judgment (Doc. No.
32, 33) and the responses thereto (Doc. No. 38, 39). As explained below, Defendant’s motion is
denied, and Plaintiff’s motion is granted in part and deferred in part.
I. Standard of Review
Summary judgment is appropriate “if the movant shows that 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(a). The Court must draw all inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of
showing the Court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial. See id. (citation omitted). When a moving party has
discharged its burden, the non-moving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and admissions on file, designate
specific facts showing there is a genuine issue for trial. See id. (citation omitted).
II. Background1
Plaintiff Shawn Meeks was a certified law enforcement officer employed by the Pasco
County Sheriff’s Office as a Road Patrol Deputy from July 11, 2011 until he resigned on March
1, 2015. As a Road Patrol Deputy, Plaintiff generally was scheduled to work seven 12-hour
shifts each 14-day work period, with an additional hour allowed for vehicle maintenance, for a
total of 85 hours.2
While employed by the Sheriff’s Office, Plaintiff was assigned a marked agency patrol
vehicle for his use as a Road Patrol Deputy. However, because Plaintiff lived more than 15
miles outside of the Pasco County line, the Sheriff’s Office’s operating policies did not allow
him to drive his patrol vehicle home from work. As a result, Plaintiff was expected to park his
patrol vehicle at one of a number of secure locations within Pasco County. This parking policy
was designed to help keep the patrol vehicle safe and secure while unoccupied
Each morning, Plaintiff drove his personal vehicle from his home to the secure parking
location; the secure location that Plaintiff parked at was the Sheriff’s Office’s District 3 Patrol
Division Office in Trinity, Florida. Upon arrival, Plaintiff removed his patrol rifle and laptop
computer from his personal vehicle and put those items into his patrol vehicle. Once he began
driving his patrol vehicle from the secure parking lot to his patrol zone, Plaintiff was required by
operating policy of the Sheriff’s Office to turn on his police radio, to be alert and responsive to
1
The facts are largely undisputed, but to the extent that there is a dispute, the Court sets
forth the facts in the light most favorable to Defendant.
2
There are special overtime rules in place for law enforcement officers. 29 U.S.C.
§ 207(k). Law enforcement officers who work a 14-day workweek only receive overtime for
hours worked in excess of 86 hours during the 14-day workweek. 29 C.F.R. § 553.230.
2
emergencies, and to turn on his Automatic Vehicle Locator system so that dispatch would be
aware of his location for his personal safety. Plaintiff’s drive from the secure parking lot to his
patrol zone took approximately 15 to 20 minutes. However, had Plaintiff parked at one of the
various other secure parking locations within his patrol zone, he could have eliminated this 15 to
20 minute drive from the District 3 Patrol Division Office’s secure parking lot to his patrol
zone.3
While Plaintiff drove from the secure parking lot to his patrol zone, he was allowed to
stop for coffee or get his car washed, as long as he arrived at his patrol zone by the time that his
shift was scheduled to begin. For routine drives from the secure parking lot to his patrol zone
during which he handled no emergency calls from dispatch, Plaintiff was not compensated for
this 15 to 20 minute drive.
At the conclusion of his scheduled shift, Plaintiff drove back to the secure parking lot
where he parked and locked his patrol vehicle, transferred his patrol rifle and laptop to his
personal vehicle, and then drove home in his personal vehicle. If Plaintiff did not have any
paperwork or evidence that he needed to submit at the District 3 Patrol Division Office, he was
required to stay in his assigned patrol zone until the end of his scheduled shift. In such a
scenario, as long as Plaintiff did not respond to any emergency calls during his drive from his
3
The parties dispute whether Plaintiff could choose which secure parking location at
which to park his patrol vehicle. Plaintiff contends that he was directed by Lt. Eric Anthes to
park at the District 3 Patrol Division Office. Defendant contends that Plaintiff could have parked
much closer to his patrol zone by choosing a secure parking lot within his patrol zone. The
Court has accepted Defendant’s version of this disputed factual issue and notes that it does not
appear to affect the outcome of the parties’ cross-motions for summary judgment. Defendant has
not cited any case law showing that Plaintiff’s ability to choose which secure parking lot to use
in any way affects the compensability of Plaintiff’s drive time between the secure parking lot and
his patrol zone.
3
patrol zone to the secure parking lot, he was not compensated for the 15 to 20 minute drive time
from his patrol zone to the secure parking lot.4
On June 22, 2015, Plaintiff filed this lawsuit under the Fair Labor Standards Act
(“FLSA”) against Defendant Chris Nocco, in his official capacity as Pasco County Sheriff.
Specifically, Plaintiff contends that Defendant violated the FLSA’s overtime provision by failing
to pay him for the time he spent driving his patrol vehicle between Defendant’s secure parking
location and his patrol zone.
III. Cross-Motions for Summary Judgment
The parties filed cross-motions for summary judgment on the issue of the compensability
of Plaintiff’s drive time between the secure parking lot and his patrol zone. In order to resolve
this issue, the Court first considers the relevant code provisions, regulations, and case law.
The Portal-to-Portal Act, 29 U.S.C. § 251 et seq., which amends the FLSA, identifies
those employee activities which are not compensable under the FLSA. See Burton v.
Hillsborough County, Fla., 181 Fed. Appx. 829, 833 (11th Cir. 2006). Pursuant to the Portal-toPortal Act, an employer is not subject to liability under the FLSA for failure to pay employees
4
According to Defendant, if there was evidence or paperwork that Plaintiff needed to
submit back at the District 3 Patrol Division Office, then Plaintiff could leave his assigned patrol
zone prior to the end of his shift. In such a situation, if the paperwork or evidence submission
process took him beyond his scheduled shift, Plaintiff was required to report the additional time
on his time sheet so that he would be compensated for it.
Plaintiff disputes that he was allowed to report such additional time, because Defendant
would not pay overtime. The Court need not address this factual dispute, because the parties
moved for summary judgment on the issue of the compensability of Plaintiff’s drive time
between the secure parking lot and his patrol zone. Because the Court ultimately concludes that
such driving time is compensable, any additional work done by Plaintiff at the District 3 Patrol
Division Office would also be compensable. At trial, Plaintiff can submit evidence to the jury
that he did, in fact, do such additional work for which Defendant failed to compensate him.
4
overtime compensation for:
(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. For purposes of this subsection, the use of an employer's
vehicle for travel by an employee and activities performed by an
employee which are incidental to the use of such vehicle for
commuting shall not be considered part of the employee's principal
activities if [1] the use of such vehicle for travel is within the normal
commuting area for the employer's business or establishment and [2]
the use of the employer's vehicle is subject to an agreement on the
part of the employer and the employee or representative of such
employee.
29 U.S.C. § 254(a).
Thus, in order to determine the compensability of Plaintiff’s travel time between the
secure parking lot and his patrol zone under the Portal-to-Portal Act, the Court must determine
whether the acts of retrieving and returning his patrol vehicle to and from the secure parking lot
are part of his principal activities. The regulations instruct the following:
[A]n employee may, for purposes of the Portal-to-Portal Act[,] be
engaged in several “principal” activities during the workday. The
“principal” activities referred to in the statute are activities which the
employee is “employed to perform[.]” . . . The term “principal
activities” includes all activities which are an integral part of a
principal activity.” . . . Among the activities included as an integral
part of a principal activity are those closely related activities that are
indispensable to its performance.
29 C.F.R. § 790.8; see also Steiner v. Mitchell, 350 U.S. 247, 256 (1956)(stating “that activities
performed either before or after the regular work shift . . . are compensable . . . if those activities
5
are an integral and indispensable part of the principal activities for which” the employee is
employed to perform); IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005)(holding “that any activity
that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under . . .
the Portal-to-Portal Act”).
Pursuant to Burton, this Court concludes that Plaintiff’s travel time between the secure
parking lot and his patrol zone is compensable, because the acts of retrieving and returning his
patrol vehicle to and from the secure parking lot are part of his principal activities. In Burton,
the plaintiffs were county engineers who drove county-owned vehicles to public works job sites
to inspect subcontractors’ work. See Burton, 181 Fed. Appx. at 831. The plaintiffs sued the
county for unpaid overtime compensation for the time they spent driving the county-owned
vehicles between the county’s secured parking sites and their job sites. See id. Like Plaintiff in
the instant case, the plaintiffs in Burton were required to drive to a secure county parking site to
retrieve their county-owned vehicles in the morning and then to return the county-owned
vehicles to the secure county parking site in the evening. See id. The county-owned vehicles
contained the tools and equipment that the plaintiffs used to perform their jobs, and the vehicles
served as their satellite offices, where they could perform work at the job sites. See id.
The issues before the court were: (1) the definition of the term “travel” in § 254(a), and
(2) whether the plaintiffs’ travel time between the secure parking sites and job sites was
compensable. See id. at 834. The court noted that § 254(a) specifically states “that ‘the use of
an employer-owned vehicle for travel by an employee . . . shall not be considered part of the
employee's principal activities,” but the court stated that such language does not mandate that all
travel in an employer-owned vehicle is not compensable. See id. at 835. Instead, the court
6
clarified that the “travel” referred to in that part of the Portal-to-Portal Act was incidental travel,
such as work-to-home or home-to-work commuting. See id. This statutory language was meant
to show that otherwise non-compensable travel does not transform into compensable travel
simply because the employee is using an employer-owned vehicle. See id. (citation omitted).
As such, the court stated that “otherwise compensable travel time does not become noncompensable simply through the use of an employer-owned vehicle.” Id.
The court found the plaintiffs’ travel time between the secure parking sites and job sites
was compensable, stating:
[T]he employees’ workday could not begin until they arrived at the
parking site and retrieved the county vehicles—making the act of
retrieving the vehicle a “principal activity” and, therefore, the parking
site itself “a place of actual performance.” . . . Ultimately, the
employees who used the county vehicles had no choice but to begin
and end their work day not at a work site, but at a county parking
facility. And without the county vehicles the employees could not
perform the principal activities for which they were
employed—driving throughout Hillsborough County and inspecting
public works construction sites. Needless to say, getting a county
vehicle from the parking site and driving it to the first work site and
returning it to the parking site was integral and indispensable to the
plaintiffs' principal activities.
Id. at 836–37.
Based on Burton, this Court concludes that Plaintiff’s travel time between the secure
parking lot and his patrol zone is compensable, because the acts of retrieving and returning his
patrol vehicle to and from the secure parking lot are part of his principal activities. Like the
plaintiffs’ vehicles in Burton, Plaintiff’s patrol vehicle was his satellite office where he
performed his job as a Road Patrol Deputy. Arguably, Plaintiff’s patrol vehicle was the most
7
important tool he used in his job; it aided in establishing his authority as a Road Patrol Deputy.5
As such, retrieving and returning his patrol vehicle from and to the secure parking site was one
of Plaintiff’s principal activities. Therefore, the drive time between his principal activities of
retrieving/returning his patrol vehicle and patrolling within his patrol zone is compensable under
the continuous workday rule. See 29 C.F.R. § 790.6 (“Periods of time between the
commencement of the employee’s first principal activity and the completion of his last principal
activity on any workday must be included in the computation of hours worked . . . .”).
Defendant argues against this Court’s conclusion, pointing mainly to Bonilla v. Baker
Concrete Construction, Inc., 487 F.3d 1340 (11th Cir. 2007), and Integrity Staffing Solutions, Inc.
v. Busk, 135 S.Ct. 513 (2014).6 The Court is not persuaded by these cases.
5
The patrol vehicle also contained a very important tool that Plaintiff needed for his
job—the police dispatch radio. Pursuant to 29 C.F.R. § 785.38, “[w]here an employee is
required to report at a meeting place to receive instructions or to perform other work there, or to
pick up and to carry tools, the travel from the designated place to the work place is part of the
day's work, and must be counted as hours worked.” Thus, the time spent reporting to the District
3 Patrol Division Office to pick up his patrol vehicle and then driving to his patrol zone (and vice
versa) is compensable travel time.
6
Defendant also heavily relies on two other non-binding, distinguishable cases: Knight v.
Allstar Building Materials, Inc., 2009 WL 3837870 (M.D. Fla. Nov. 17, 2009), and Shearer v.
Edger Associates, Inc., 2015 WL 9274928 (M.D. Fla. Dec, 18, 2015). The Court is not
persuaded by these cases.
In Knight, the plaintiff was a carpenter’s apprentice seeking compensation for the travel
between his employer’s designated meeting place for employer-provided transportation (such as
a Publix grocery store) and his job site. See Knight, 2009 WL 3837870, at *1, 10. The plaintiff
could have driven his own vehicle to the job site. See id. at *13. The court found this travel
time to be non-compensable. See id. at *5, 14. The Knight case is distinguishable from the
instant case, because the plaintiff in Knight sought compensation for pure travel; the instant case
seeks compensation for the principal activity of retrieving/returning a patrol vehicle and the
drive time between that principal activity and the principal activity of patrolling his patrol zone.
Likewise, in Schearer, the plaintiff was a cardiac sonographer who sought overtime
compensation for her travel time between her home and her first assignment, as well as between
her last assignment and her home. See Shearer v. Edger Associates, Inc., 2015 WL 9274928, at
8
In Bonilla, an issue before the court was whether the time construction workers spent
traveling on employer-provided transportation to a secure construction site inside the airport was
compensable under the FLSA. See Bonilla, 487 F.3d at 1340–41. It was undisputed that the
employees did not perform any work while traveling on the employer-provided transportation.
See id. at 1342. The court concluded that the travel time was not compensable under the Portalto-Portal Act; it was merely travel to the employees’ actual place of performance of their
principal activity. See id at 1343.
The Bonilla court specifically distinguished the Burton case, stating:
In Burton, the county employees' duties required them to drive the
county vehicles to and from various public works locations and to
always return the county vehicle to a secured county facility
overnight. This court found that the time the employees spent driving
from the secured county location to the various work sites was
compensable under the FLSA because picking up and delivering the
county vehicles to the county lots was integral and indispensable to
the employees' principal activities. In addition, Burton found that the
vehicles served as satellite offices for those employees to do their
jobs at the various sites and tools necessary for the work were locked
in the county vehicles. In Burton, driving the vehicles was not
merely part of the employees' commute to the principal place of
performance but rather an aspect of that job performance.
Id. at 1345 n.7 (internal citations omitted). Because the facts of the instant case are so closely
aligned with Burton, this Court finds that Bonilla does not change this Court’s conclusion that
Plaintiff’s driving time between the secure parking site and his patrol zone is compensable.
Next, Defendant relies heavily on Integrity Staffing Solutions and argues that Burton’s
*1. The plaintiff argued that such travel time was compensable, because she was transporting
her mobile ultrasound machine, accessories, and laptop computer. See id. The court rejected her
argument, finding that the Portal-to-Portal Act makes clear that such travel between home and
work is not compensable. See id. at *4. The Schearer case is distinguishable from the instant
case, as the instant case does not involve travel between home and work.
9
analysis is no longer viable. In Integrity Staffing Solutions, the plaintiffs were warehouse
workers that retrieved inventory and packaged it for shipment. See Integrity Staffing Solutions,
135 S.Ct. at 515. The defendant required the plaintiffs to go through an anti-theft screening
process before leaving the warehouse each day, which took approximately twenty-five minutes
(including waiting time). See id. The issue before the Court was whether the time that the
plaintiffs spent waiting to undergo, and actually undergoing, the security screening was
compensable under the FLSA. See id. The Court held that such time was not compensable. See
id.
The Court began its analysis by pointing out that under the Portal-to-Portal Act, a
principal activity includes all activities that are an integral and indispensable part of the principal
activity. See id. at 517. The Court went on to state that “[a]n 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
perform his principal activities.” Id. The Court concluded that the security screenings were a
non-compensable, postliminary activity, because the defendant could have eliminated the
screenings without impairing the plaintiffs’ ability to complete their work. See id. at 518.
The Court went on to reject overbroad tests of compensability based solely on whether
the employer required the activity and/or whether the activity was for the benefit of the
employer. See id. at 519. Instead, the Court reiterated that the proper test is the integral and
indispensable test, which is tied to the productive work that the employee is employed to
perform. See id.
Defendant argues that based on Integrity Staffing Solutions, Burton’s analysis is no
10
longer viable. Defendant bases this argument on the fact that the Burton court pointed out that
the county required the plaintiffs to park their county-owned vehicles at the secure county lots
and that such was done for the county’s own benefit (to protect its vehicles).7 See Burton, 181
Fed. Appx. at 836–37. However, those two factors were not the sole test used by the
Burton court to conclude that the travel time was compensable. Instead, the Burton court found
that: (1) retrieving and returning the county-owned vehicles to the secure county lots was
integral and indispensable to the employees' principal activities; (2) the vehicles served as
satellite offices; and (3) driving the vehicles was not merely part of the employees' commute to
the principal place of performance, but rather, it was an aspect of that job performance. See id.
at 831, 837–38.
The Burton court’s analysis complies with the test set forth in Integrity Staffing
Solutions—that “[a]n 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 perform his principal activities.” Integrity
Staffing Solutions, 135 S.Ct at 517. The Burton court found that the activities of retrieving and
returning the county-owned vehicles was integral and indispensable to the plaintiffs’ engineering
jobs that could not be dispensed with because having the vehicle was an intrinsic element of their
jobs. Likewise, in the instant case, it is even more clear that Plaintiff’s patrol vehicle is an
intrinsic element used in his patrol duties that cannot be dispensed with if he is to perform his
7
Arguably, these two factors—that the employer required the activity and that the activity
benefitted the employer—will always be present when the activity is compensable. Therefore,
consideration of these two factors is not erroneous; it is only erroneous to rely solely on these
two factors when determining compensability.
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job. Accordingly, the Court rejects Defendant’s argument that Burton does not control this case.
Because this Court concludes that the drive time between the secure parking lot and
Plaintiff’s patrol zone is compensable, the Court denies Defendant’s motion for summary
judgment. Likewise, the Court grants Plaintiff’s motion for summary judgment on this issue. As
such, this case will proceed to trial on the issue of damages.
IV. Liquidated Damages
Plaintiff also seeks summary judgment on the issue of liquidated damages. Under the
FLSA, an employer who violates the overtime provisions is liable to the employee in the amount
of their unpaid overtime compensation and in an additional equal amount as liquidated damages.
29 U.S.C. § 216(b). However, there is a good faith defense to the award of liquidated damages
“if the employer shows to the satisfaction of the court that the act or omission giving rise to such
action was in good faith and that he had reasonable grounds for believing that his act or omission
was not a violation of the” FLSA. 29 U.S.C. § 260. Furthermore, the Eleventh Circuit has stated:
The determination of whether an employer acted in good faith and
had reasonable grounds for believing its act or omission was not a
violation of the FLSA has both a subjective and objective component.
Subjective good faith means the employer has an honest intention to
ascertain what the FLSA requires and to act in accordance with it.
Objective good faith means the employer had reasonable grounds for
believing its conduct comported with the FLSA. [G]ood faith
requires some duty to investigate potential liability under FLSA.
Friedman v. South Florida Psychiatric Associates, Inc., 139 Fed. Appx. 183, 185–86 (11th Cir.
2005)(quotation marks and internal citations omitted).
“[L]iquidated damages are mandatory absent a showing of good faith.” Spires v. Ben Hill
County, 980 F.2d 683, 689 (11th Cir. 1993)(citations omitted). “The question of whether the
good faith defense applies is an issue of mixed law and fact for the Court, not the factfinder, to
12
determine.” Silas v. Hillsborough County, 2006 WL 3133026, at *6 (M.D. Fla. Oct. 30,
2006)(citations omitted); see also Notes to Pattern Jury Instruction 1.7.1, Eleventh Circuit
Pattern Jury Instructions (Civil), 2005 edition.
Plaintiff argues that he is entitled to summary judgment on the issue of liquidated
damages, and he cites to a prior Department of Labor (“DOL”) investigation of Defendant on
this exact issue from 2011 through 2013. Defendant disputes the admissibility of this evidence
and also argues that the determination of the liquidated damages issue is premature, because
there has been no finding that Defendant violated the FLSA. However, the Court has now found
that Defendant’s policy of not compensating Plaintiff for the time he spent driving between the
secure parking lot and his patrol zone violates the FLSA. As such, the issue of liquidated
damages is ripe for consideration. However, the Court would benefit from a reply by Plaintiff
regarding whether the Court can consider the evidence of the DOL investigation due to the
hearsay objections that Defendant has raised. In addition, Defendant may file a sur-reply
addressing how its actions could be considered reasonable given the Burton case law directly on
point. Accordingly, the Court will allow the parties to file a reply brief and sur-reply brief on the
liquidated damages issue.
V. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)
Defendant’s Motion for Summary Judgment (Doc. No. 32) is DENIED.
(2)
Plaintiff’s Motion for Summary Judgment (Doc. No. 33) is GRANTED to the
extent that the Court finds that Defendant’s policy of not compensating Plaintiff
for the time he spent driving between the secure parking lot and his patrol zone
13
violates the FLSA. The Court DEFERS ruling on Plaintiff’s motion to the extent
that he raises the liquidated damages issue.
(3)
By September 6, 2016, Plaintiff is directed to file a reply brief, not to exceed 6
pages, to Defendant’s response to his request for liquidated damages; specifically,
Plaintiff should address, at a minimum, whether the Court can consider the DOL
investigation, the newspaper article, and the letters between Defendant and the
DOL. By September 13, 2016, Defendant may file a sur-reply, not to exceed 6
pages. Defendant should address, at a minimum, how its actions could be
considered reasonable given the Burton case law directly on point.
(4)
The parties must file all pretrial motions, including motions in limine, by
September 19, 2016. Each party may file one motion in limine containing all of
their arguments in a single document not to exceed 25 pages. Responses thereto
must be filed by September 26, 2016.
(5)
The parties’ joint pretrial statement must be filed by September 29, 2016.
DONE AND ORDERED at Tampa, Florida, this 29th day of August, 2016.
Copies to:
Counsel of Record
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