Bartlett et al v. City Of Chicago

Filing 257

MEMORANDUM Opinion: The Court grants the City's motion and denies the Plaintiffs' motion. It is so ordered. Signed by the Honorable Charles P. Kocoras on 10/1/2019. Civil case terminated. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT BARLETT and PATRICK
LEYDEN, individually and on behalf
of other similarly situated SWAT team
members of the Chicago Police Department,
Plaintiffs,
v.
CITY OF CHICAGO,
Defendant.

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14 C 7225

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Before the Court are Plaintiffs Robert Bartlett (“Bartlett”) and Patrick Leyden’s
(“Leyden”), individually and on behalf of other similarly situated members of the
Chicago Police Department (the “CPD”) (collectively, “Plaintiffs”) and Defendant City
of Chicago’s (the “City”) cross-motions for summary judgment pursuant to Federal
Rule of Civil Procedure 56. For the following reasons, the Court grants the City’s
motion and denies the Plaintiffs’ motion.
BACKGROUND
The following facts are taken from the record and are undisputed unless
otherwise noted.

The Parties
Plaintiffs Bartlett and Leyden are CPD officers who were both assigned to the
CPD’s Special Weapons and Tactics (“SWAT”) Unit when it became a full-time unit
in 2005. Bartlett was assigned to the SWAT Unit until April 2017. He is currently on
leave from the CPD while performing duties as a field representative for The Fraternal
Order of Police, Chicago Lodge No. 7 (“FOP”), the union that represents CPD officers
below the rank of sergeant. Leyden remains assigned to the SWAT Unit.
In addition to Bartlett and Leyden, Plaintiffs’ FLSA certified collective class
includes 76 opt-in plaintiffs, and the Rule 23 certified class consists of 102 class
members. The Plaintiffs currently work or formerly worked as operational members of
the SWAT Unit in the rank of police officer.
SWAT Background
The mission of the SWAT Unit is to provide a tactical response to critical
incidents where the potential for injury and/or loss of life is present and where the
circumstances are unusual and beyond the capabilities of normal police response.
Critical incidents include, but are not limited to, hostage situations, barricaded and/or
suicidal subjects, sniper situations, high-risk apprehension of individuals, active shooter
incidents, and incidents relating to terrorism and/or weapons of mass destruction. The
SWAT Unit also executes high-risk search warrants, provides dignitary protection, and
provides security and protection at O’Hare Airport and at large public events, including
games at the City’s professional sports stadiums and arenas.
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The SWAT Unit is based out of Homan Square, which is located at 3340 West
Fillmore, Chicago, Illinois 60624. The SWAT Unit is a volunteer unit, meaning that
CPD officers voluntarily apply for entry into the unit and are eligible to be considered
for admission only if they meet certain qualifications and pass a detailed selection
process.
The SWAT Unit has a Commanding Officer, an Assistant Commanding Officer,
supervisors (primarily sergeants), operators (who hold the rank of police officer), and
other support personnel. The SWAT Unit is comprised of four squads, and each squad
is supervised by at least one sergeant. The Commanding Officer, who has overall
command of the SWAT Unit, reports directly to the CPD’s Deputy Chief of Special
Functions.
The CPD issues each SWAT operator weapons and equipment pursuant to
SWAT Standard Operating Procedures (“SOP”). Among the issued gear are ballistic
entry vests, a radio, headset, gas mask, night vision goggles, helmet, a Glock 9mm gun,
and an M-4 carbine rifle. However, many SWAT operators have specialized roles in
addition to their basic SWAT duties, including snipers, breachers, and medics. Snipers
are strategically positioned in the field to gather intelligence and may be required to use
sharpshooting skills for a resolution.

Breachers are skilled at breaching doors,

windows, walls, and other obstructions that may be faced during a SWAT incident.
Medics provide required medical services on the scene. Given these additional roles,
specialists are required to have additional gear to perform their duties.
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The work schedule utilized by SWAT has been modified over the last several
years. For the most part, however, SWAT has maintained a schedule in which, for a
two-week period, two squads are assigned to work in “SORT cars” (Special Operations
Response Time) and the other two squads are on a training cycle.1 In the following
two-week period, the two squads switch places. If a squad is on a two-week training
cycle, it will typically train on six days and work in a SORT car on the other four work
days in that cycle.
When a squad is on its two-week SORT car cycle, the operators on that squad
report for duty at Homan Square at the beginning of each of their shift. The two SWAT
squads working SORT car shifts are broken down into different watches and shifts.
SWAT operators are provided with 15 minutes at the beginning of their shift, on the
clock, to transfer their weapons and gear into the SORT car. They then report to roll
call inside Homan Square. About 30 to 45 minutes before the end of their shift,
operators return to Homan Square and are provided with at least 15 minutes prior to the
end of their shift, on the clock, to transfer and secure their weapons and gear out of
SORT cars so that the SORT cars are available for the next shift.
Critical Incident Response and Compensation
In the event of a critical incident, on-duty SWAT operators are the first called to
respond. However, if the number of on-duty SWAT operators is insufficient, then there
Plaintiffs add that SWAT operators are also assigned to work at Chicago O’Hare International
Airport (“O’Hare”), where they report directly to the airport for duty. They also note that SWAT
training has been cancelled on occasion due to understaffing in the SWAT Unit.
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will be an off-duty call-out. When off-duty call-outs arise, operators are contacted via
their CPD-issued e-mail and telephone to be notified of the incident and to determine if
they are able to respond. When an operator responds to an off-duty call-out, the
operator is considered on duty and compensated beginning from the time he/she
responds to the e-mail or call, for driving to the scene and working at the scene, for
driving back to Homan Square afterwards, and for attending a debrief at Homan Square.
Operators are also provided with an additional 90 minutes to two hours of overtime
compensation (depending on the situation) after the debrief at Homan Square to
organize and clean their gear and weapons and to return home.
Changing Policies Regarding Gear Storage
From 2005 until March 2009, SWAT operators were not authorized to take their
rifles home while off duty. During this time period, rifles were stored on a SWAT
equipment truck that was kept at Homan Square when it was not in the field. In the
event of a critical incident, members of the SWAT support staff drove the SWAT
equipment truck to the scene of incident, and off-duty operators who responded to the
incident picked up a rifle from the SWAT equipment truck on scene.
Beginning in March 2009, this practice shifted to eliminate the reliance on the
arrival of the SWAT equipment truck. As a result, the CPD issued Special Functions
Group Unit Special Order 09-01 (“SO 09-01”), which authorized and directed operators
to bring their rifles home while off duty. SO 09-01 further dictated how the rifles must
be transported and secured. The parties dispute whether SO 09-01 required SWAT
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operators to take their rifles home or simply allowed them to do so at their choosing.
The Plaintiffs note that the process of loading/unloading and storing their gear between
their vehicle and their residence takes approximately 15 minutes.
After SO 09-01 was issued, if a SWAT operator did not feel comfortable storing
his or her rifle at home, the SWAT command staff would assist the operator in arranging
alternative storing while off duty, including at Homan Square. High-ranking officials
as well as SWAT operators were well aware of this practice to accommodate operators
who did not feel comfortable bringing their rifles home while off duty.
For example, Plaintiff Jesus Cano (“Cano”) asked Captain Mark Marianovich
(“Captain Marianovich”) if he could store his SWAT rifle at Homan Square while off
duty. Cano had young children at home and did not have a safe to properly secure his
rifle. Captain Marianovich approved the request and allowed Cano to store his rifle on
the equipment truck at Homan Square while off duty for a period of time. Cano was
still required to transport and store the remainder of his SWAT gear in his residence
while off duty so that he could respond directly to a critical incident where he would
meet up with and retrieve his M-4 from the SWAT truck. Cano testified that if he left
his rifle at Homan Square and the rifle was not yet at the scene of the incident when he
arrived, he could still participate in the mission as an operator.
Lieutenant Thomas Lamb (“Lt. Lamb”) testified that operators are authorized to
leave rifles on the SWAT equipment trucks while off duty. He estimated that, as of
May 2015, approximately five SWAT operators were storing their rifles on the SWAT
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equipment truck at Homan Square while they were off duty. If these operators
responded to an off-duty call-out, they picked up their rifles from the SWAT equipment
truck at the scene of the incident.
On May 2, 2016, Steve Georgas, the then-Deputy Chief of Special Functions
(“Georgas”) issued a memorandum to Lt. Lamb reiterating the policies regarding the
storage of SWAT weapons and gear while off duty (“Georgas Memorandum”). The
Georgas Memorandum states that SWAT operators are not required to take their
weapons and gear while commuting to and from home and work, and they are
authorized to store their weapons and gear at Homan Square while off duty. The
memorandum was e-mailed to the entire SWAT Unit and was posted in the SWAT “CO
Book,” which is accessible to operators and contains various SWAT policies,
procedures, and notifications.
In May 2017, each SWAT operator was issued a CPD “extended hours use”
vehicle (“take-home vehicle”).

On September 22, 2017, Lt. Lamb issued a

memorandum to all SWAT operators to reiterate SWAT’s policies and practices
relating to, among other issues, what operators were allowed to do with their weapons
and gear while off duty (“Lamb Memorandum”). In the Lamb Memorandum, Lt. Lamb
referred to the Georgas Memorandum and repeated that SWAT operators were allowed
to store their weapons and gear at Homan Square while off duty. However, he wrote
that if operators accepted a take-home vehicle, they were required to have their SWAT

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weapons and gear in their take-home vehicle while commuting to and from home and
work off duty.
Based on these events, the Plaintiffs filed their third amended class action
complaint on November 3, 2017, claiming that they should be compensated for the time
required to transport, load/unload, and store their gear between their vehicles and their
residences. The Plaintiffs seek relief under the Fair Labor Standards Act (the “FLSA”),
29 U.S.C. § 216(b) (Count I), the Illinois Wage Payment Collection Act (the
“IWPCA”), as amended, § 820 ILCS 115/1, et seq. (Count II), and the Illinois Minimum
Wage Law (the “IMWL”), 820 ILCS 105/4(a) (Count III) for unpaid compensation,
unpaid overtime compensation, liquidated damages, costs, attorneys’ fees, declaratory
and injunctive relief, and any such other relief the Court may deem appropriate. On
January 22, 2018, the parties filed cross-motions for summary judgment pursuant to
Federal Rule of Civil Procedure 56.
LEGAL STANDARD
For cross-motions for summary judgment, the Court must “look to the burden of
proof that each party would bear on an issue of trial; we then require that party to go
beyond the pleadings and affirmatively establish a genuine issue of material fact.”
Santanella v. Metro Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997). Our factual and
inferential construction is unaltered by the procedural nuance of cross-filings, for each
party retains their “respective burdens on cross-motions for summary judgment.”
McKinney v. Cadleway Props., Inc., 548 F.3d 496, 504 n.4 (7th Cir. 2008).
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“Cross-motions must be evaluated together, and the court may not grant summary
judgment for either side unless the admissible evidence as a whole—from both
motions—establishes that no material facts are in dispute.” Bloodworth v. Vill. of
Greendale, 475 Fed. Appx. 92, 95 (7th Cir. 2012).
DISCUSSION
The City moves for summary judgment on all counts with respect to liability, as
the parties agreed to bifurcate the assessment of liability and damages in this case. The
Plaintiffs only move for summary judgment on Counts I and III, the FLSA and IMWL
claims, respectively. The Court addresses their positions collectively for each count
below.
I. FLSA and IMWL Claims
“Courts have generally held that the IMWL parallels the FLSA, and the Illinois
Administrative Code provides that FLSA regulations provide guidance in interpreting
the IMWL. Thus, the same analysis generally applies to both the FLSA and IMWL.”
Pizano v. Big Top & Party Rentals, LLC, 2017 WL 1344526, at *1 n.1 (N.D. Ill. 2017)
(quoting Ladegaard v. Hard Rock Concrete Cutters, Inc., 2004 WL 1882449, at *4
(N.D. Ill. Aug. 18, 2004)). Accordingly, the Court will analyze the FLSA and IMWL
claims together.
“The FLSA requires employers to pay overtime to certain employees who work
more than 40 hours in a work week.” Kellar v. Summit Seating Inc., 664 F.3d 169, 173

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(7th Cir. 2011); See 29 U.S.C. § 201 et seq.. However, Congress amended the FLSA
in 1947 by passing the Portal-to-Portal Act. 29 U.S.C. § 254. This Act provides that:
[N]o employer shall be subject to any liability or punishment under the
[FLSA] on account of the failure of such employer…to pay an employee
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….
Id. at § 254(a). Department of Labor regulations further clarify that an employee’s
regular commute is not intended to be a compensable activity under the FLSA, stating:
An employee who travels from home before his regular workday and
returns to his home at the end of the workday is engaged in ordinary home
to work travel which is a normal incident of employment. This is true
whether he works at a fixed location or at different job sites. Normal travel
from home to work is not worktime.
29 C.F.R. § 785.35.
Although the default rule is that ordinary commute time is not compensable
under the FLSA, the Supreme Court has recognized an exception when the activity is
“integral and indispensable to the principal activities that an employee is employed to
perform….” Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 135 S. Ct. 513, 517
(2014). “Integral” means “necessary to the completeness or integrity of the whole;
forming an intrinsic portion or element.” Id. “Indispensable” means “a duty that cannot
be dispensed with, remitted, set aside, disregarded, or neglected.”
quotation marks omitted).

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Id. (internal

The parties agree that the Plaintiffs’ principal activity is to provide a tactical
response to high-risk critical incidents. However, the parties disagree as to whether the
transportation, loading/unloading, and storage of gear between the Plaintiffs’ vehicles
and residences is integral and indispensable to that principal activity. The Plaintiffs
maintain that this activity is integral and indispensable to their ability to maintain
“mission readiness,” meaning that they are equipped to respond to a critical incident at
any time. They aver that storing their gear at home allows them to respond directly to
the scene of an incident in the event that they are called when off-duty. The City
counters by saying that SWAT operators can perform their principal activity without
having to take their gear home when they are off-duty. The Court agrees with the City.
In the event of a critical incident, on-duty SWAT operators are tasked with
responding. If they need additional manpower to address the situation, available offduty SWAT operators are requested to respond to the scene.

Under these

circumstances, the Court appreciates that time is of the essence and efforts to accelerate
the response time promote the overall success of a SWAT team response. However,
the parties agree that off-duty SWAT operators are already compensated for this time.
They are paid from the time they receive the off-duty phone call until they return home
from the critical incident, including the time it takes to transport, load/unload, and store
their gear.
The time at issue is the off-duty efforts taken by the Plaintiffs when they are not
responding to a critical incident, but simply maintaining a state of readiness. This
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situation is akin to the Ninth Circuit’s decision in Balestrieri v. Menlo Park Fire
Protection Dist. 800 F.3d 1094 (9th Cir. 2016). There, firefighters brought an FLSA
claim seeking overtime compensation for the time spent loading and transporting their
gear to temporary duty stations. Id. at 1096–97. Similar to the Plaintiffs here, the
firefighters were paid upon receiving a phone-call to respond when they were off-duty,
but they were paid upon arrival at work if they were on-duty. Id. at 1097. The Ninth
Circuit held that the off-duty time spent loading and transporting gear to another station
was not compensable under the FLSA because it was “two steps removed” from the
firefighters’ principal activity of fire suppression. Id. at 1101. Essentially, the Court
determined that the loading and transporting of gear was “preliminary” and “not
intrinsic to” fire suppression. Id. Therefore, it was not integral and indispensable. Id.
The same rationale applies to the instant case. The Plaintiffs’ principal activity
is responding to critical incidents. However, the off-duty loading and transportation of
SWAT gear is “two steps removed” from that principal activity. Id. While keeping
SWAT gear at home may promote the overall goal of critical incident response, it is not
integral and indispensable in much the same way that a firefighter’s loading and
transporting of gear is not integral and indispensable to fire suppression. Although
these undertakings support the Plaintiffs’ ability to respond to critical incidents, that
does not mean that they are integral and indispensable. Brand v. Comcast Corp., 135
F. Supp. 3d 713, 733 (N.D. Ill. 2015) (“The fact that certain preshift activities are
necessary for employees to engage in their principal activities does not mean that those
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preshift activities are integral and indispensable to a principal activity. Nor does the
fact that a given task increases the efficiency of a principal activity mean that it is
integral and indispensable to that activity.”).
Moreover, the record evidences that SWAT operators have been able to perform
off-duty critical response efforts without having their gear at home, meaning that such
a practice is not indispensable. For example, Cano stored his SWAT rifle at Homan
Square while off duty and retrieved it from the SWAT truck upon arriving to the scene
of the critical incident. As Cano was able to fulfill his principal activity despite not
having his SWAT rifle at home, this activity is not integral and indispensable.
Having found that the transportation, loading/unloading, and storage of gear is
not integral and indispensable to a SWAT operator’s principal activity, the Court must
return to the defaults laid out in the Portal-to-Portal Act. The practical effect of granting
the Plaintiffs’ requested relief would be to compensate them for the time spent
commuting to and from work. Although the Court recognizes and applauds the
Plaintiffs’ efforts to hasten their response to critical incidents, the law prohibits a
finding that such efforts are compensable when they primarily consist of commute time.
As the Supreme Court stated, “[t]hese arguments are properly presented to the employer
at the bargaining table, not to a court in an FLSA claim.” Busk, 135 S. Ct. at 519.
Accordingly, the Court grants summary judgment in the City’s favor as to Counts I
and III.

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II. IWPCA Claim
The City next moves for summary judgment as to the Plaintiffs’ IWPCA claim
because there was no agreement between the parties that the Plaintiffs would be
compensated for the time it takes to transport their gear between their vehicles and their
residences and subsequently store it. The IWPCA gives employees “a cause of action
against employers for the timely and complete payment of earned wages.” Enger v.
Chi. Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016). However, the IWPCA
narrowly defines wages as “any compensation owed an employee by an employer
pursuant to an employment contract or agreement between the 2 parties….” 820 ILCS
115/2. “As such, to state a claim under the IWPCA, the [plaintiffs] are required to
demonstrate that they are owed compensation from defendants pursuant to an
employment agreement.” Enger, 812 F.3d at 568 (citing Dominguez v. Micro Ctr. Sales
Corp., 2012 WL 1719793 (N.D. Ill. 2012) (“[T]he IWPCA mandates overtime pay or
any other specific kind of wage only to the extent the parties’ contract or agreement
requires such pay.”)). As the Seventh Circuit has held, “the IWPCA provides no
substantive relief beyond what the underlying employment contract requires.” Enger,
812 F.3d at 570.
The Plaintiffs maintain that their IWPCA claim is based on the parties’
employment agreement, which provides for overtime compensation. They state that the
City’s approval of the Plaintiffs’ transportation and storage of their gear at home is in
essence an agreement to make this undertaking compensable.
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While the City

acknowledges that the parties have an employment agreement that provides the
Plaintiffs with a basis for overtime pay, it maintains that there was no agreement to
compensate the Plaintiffs for the disputed overtime related to the transportation and
storage of their gear. See Brown v. Lululemon Athletica, Inc., 2011 WL 741254, at *3
(N.D. Ill. 2011) (“The inference of an employment agreement between the parties is
distinct, however, from an inference that Lululemon agreed to compensate Brown for
the time she spent attending a staff meeting, taking one exercise class per week, and
listening to a motivational CD.”). Indeed, the parties’ agreement affords compensation
only for “approved overtime.” As the record and the existence of this lawsuit clearly
indicate, the City did not agree to pay the Plaintiffs overtime for the transportation and
storage of their gear. The City consistently denied the Plaintiffs’ requests for such
overtime pay, and there is no provision in the Plaintiffs’ collective bargaining
agreement that entitles them to compensation for this undertaking. Accordingly, the
IWPCA claim cannot stand, and the Court grants summary judgment in favor of the
City on Count II.

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CONCLUSION
For the aforementioned reasons, the Court grants the City’s motion and denies
the Plaintiffs’ motion. It is so ordered.

Dated: 10/1/2019

_______________________________
Charles P. Kocoras
United States District Judge

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