Gamble et al v. Minnesota State-Operated Services et al

Filing 301

MEMORANDUM OPINION AND ORDER denying 260 Motion for Partial Summary Judgment; granting 262 Motion for Summary Judgment; denying as moot 263 Motion to Exclude Expert Testimony. (Written Opinion) Signed by Chief Judge John R. Tunheim on 6/30/2021. (HMA)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DAVID LE ROY GAMBLE, JR., CYRUS
PATRICK GLADDEN, II, DAVID JAMES
JANNETTA, JERRAD WILLIAM WAILAND,
and CLARENCE ANTONIA WASHINGTON,
and all others similarly situated,

Civil No. 16-2720 (JRT/KMM)

Plaintiffs,
v.
MINNESOTA STATE-OPERATED SERVICES,
MINNESOTA STATE INDUSTRIES,
MINNESOTA SEX OFFENDER PROGRAM,
DEPARTMENT OF HUMAN SERVICES, THE
STATE OF MINNESOTA, EMILY JOHNSON
PIPER, and JODI HARPSTEAD, in her
official capacity,

MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND DENYING
PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT

Defendants.

Charlie R. Alden, GILBERT ALDEN BARBOSA PLLC, 2801 Cliff Road East, Suite
200, Burnsville, MN 55337, for plaintiffs.
Kathryn Iverson Landrum, MINNESOTA ATTORNEY GENERAL’S OFFICE, 445
Minnesota Street, Suite 1100, St. Paul, MN 55101, for defendants.
Plaintiffs, civil detainees in the Minnesota Sex Offender Program (“MSOP”) and
participants in MSOP’s Vocational Work Program (“VWP” or “Program”), initiated this
case against MSOP, claiming that the Program constitutes employment under the Fair
Labor Standards Act (“FLSA”) and MSOP improperly withholds a portion of their wages.

Defendants have filed a Motion for Summary Judgment, and Plaintiffs have filed a partial
Motion for Summary Judgment as to Defendants’ liability. Because there remains no
genuine dispute of material fact that the VWP is not employment as defined in the FLSA,
the Court will grant Defendants’ Motion and deny Plaintiffs’ Motion. Further, the Court
will deny Plaintiffs’ Motion because Defendants are immune from liability under the
Portal-to-Portal Act.
BACKGROUND
I.

FACTUAL BACKGROUND
A.

MSOP Vocational Work Program

Plaintiffs are MSOP detainees who participate in the VWP. (Decl. Charlie Hoffman
(“1st Hoffman Decl.”) ¶ 26, Ex. 3 at 24, Oct. 5, 2020, Docket No. 272-1.) VWP participants
are paid Minnesota’s minimum wage of $10.00 per hour, but a portion of their earnings
is withheld to offset the VWP’s costs, pursuant to Minnesota Statute § 246B.06,
subdivision 6. (See Decl. Shirley Jacobson (“Jacobson Decl.”) ¶ 2, Oct. 5, 2020, Docket No.
273.)
Placements in the Program fall under two categories: labor positions maintaining
the facilities and assignments in the Minnesota State Industry (“MSI”) shops. MSOP’s
facility in St. Peter has a horticultural program, a “warehouse and distribution” for various
government agencies, as well as wood, upholstery, and digital-print shops. (1st Decl.
Kathryn Iverson Landrum (“1st Landrum Decl.”) ¶ 2, Ex. A (“1st Hoffman Dep. Excerpts”) at
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46:15–20, 47:3–15, Oct. 5, 2020, Docket No. 269-1.) MSOP’s Moose Lake facility has a
sign shop, a horticultural program, and “a warehouse and distribution” for government
agencies. (1st Hoffman Dep. Excerpts at 46:25–47:15.) MSI shops do not provide goods
or services to the private sector and the cost to operate the programs exceeds sales. (1st
Hoffman Decl. ¶ 3; 2nd Decl. Charlie Hoffman (“2nd Hoffman Decl.”) ¶¶ 2–4, Oct. 26, 2020,
Docket No. 283.) MSI’s net profits “must be used for the benefit of the civilly committed
sex offenders as it relates to building education and self-sufficient skills.” Minn. Stat.
§ 246B.06, subd. 1(b).
The VWP is not self-sufficient; taxpayer dollars fund VWP staff and detainees’
salaries, (Jacobson Decl. ¶ 4), and the Program operates at a deficit. (2nd Hoffman Decl.
¶¶ 2–4.) MSOP’s operating costs would not increase if the Program ceased to exist,
because it is expensive to operate and does not make money. (2nd Hoffman Decl. ¶ 7.)
MSOP does not rely on the VWP to maintain its facilities. For example, MSOP has
continued operating throughout the COVID-19 pandemic, despite the fact that the
number of Program placements has decreased and that MSOP also reduced its staff. (1st
Hoffman Dep. Excerpts at 216:10–21.) Plaintiffs assert that union employees have taken

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over their former VWP placements, but submit no admissible evidence to support their
view, and MSOP denies that any such replacement has occurred. (2nd Hoffman Decl. ¶ 8.)
B.

Detainee Treatment and Participation in the VWP

As of October 2020, 397 out of MSOP’s 736 detainees participated in the Program.
(1st Hoffman Decl. ¶ 4.) A detainee’s primary therapist must consider him “vocationally
ready” in order receive a placement in the VWP. (Id. ¶ 5.) MSOP’s Vocational Planning
Committee places detainees in the VWP according to their treatment needs, not their
qualifications. (Id. ¶ 8.) Enough placements are available for all detainees who want to
participate and are able to do so. (2nd Decl. Kathryn Iverson Landrum ¶ 2, Ex. A (“2nd
Hoffman Dep. Excerpts”) at 120:17–22, Oct. 26, 2020, Docket No. 282-1.) Plaintiffs
present no evidence that a vocationally-ready detainee seeking a placement has been
denied one. Detainees can be suspended but not terminated from their placements. (1st
Hoffman Decl. ¶ 18.)
To incentivize detainee participation in sex-offender treatment, detainees become
eligible for more hours in the VWP as they progress through treatment. (See 1st Landrum
Decl. ¶ 3, Ex. B (“Herbert Dep.”) at 79:13–15, Oct. 5, 2020, Docket No. 269-1.) For
example, detainees who choose not to participate in sex-offender treatment may
participate in the Program up to 8 hours per week, while detainees in Phase III of
treatment may participate up to 30 hours per week. (1st Hoffman Decl. ¶ 26, Ex. 3 at 27,
Oct. 5, 2020, Docket No. 272-1.) Additionally, as detainees progress through treatment,
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their take-home pay increases. (1st Hoffman Decl. ¶ 11.) Detainees opting out of sexoffender treatment and those in Phases I or II keep 50 percent of the Minnesota state
minimum wage, whereas detainees in Phase III keep 75 percent. (Id.)
Detainees’ participation in the VWP is communicated to MSOP staff and is
incorporated into detainees’ sex-offender treatment plans.

(Decl. Jannine Herbert

(“Herbert Decl.”) ¶¶ 11–14, Oct. 5, 2020, Docket No. 271; 1st Landrum Decl. ¶ 7, Ex. F
(“Johnston Dep.) at 45:9–46:23, Oct. 5, 2020, Docket No. 269-1.) MSOP employees
working with the Program are considered part of the “treatment team,” and are trained
to assist detainees in their treatment goals. See Minn. R. 9515.3070. (2nd Hoffman Decl.
¶ 8; see also Herbert Dep. at 108:5–09:3; Johnston Dep. at 33:20–34:3, 39:4–9.) VWP
staff must have post-secondary education in the behavioral sciences, social work, or
nursing, or have at least 2000 hours of direct employment working with a population
similar to MSOP’s. Minn. R. 9515.3060, subp. 2(C).
Defendants also disclosed expert witnesses who have opined that the Program is
a component of sex-offender treatment. (See 1st Landrum Decl. ¶ 10, Ex. I (“Expert
Disclosures”), Oct. 5, 2020, Docket No. 269-1.) For example, Defendants’ expert Pamela
Yates concluded that MSOP has built vocational rehabilitation services into its model and
that the VWP is intentionally integrated with the treatment provided at MSOP. (Expert
Disclosures, Ex. A at 169–70.) Nicole Hawkins, an expert witness and clinical supervisor

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with the Minnesota Department of Human Services, opined that vocational programming
enhances treatment within MSOP. (Expert Disclosures, Ex. B ¶¶ 1, 3–6.)
C.

MSOP Cost of Care

Along with treatment, Minnesota Regulations mandate that MSOP must provide
detainees a basic standard of living, which includes three meals a day, beds, bedding,
linens, and laundry services. Minn. R. 4665.1900, 4665.2000, 4665.2800, 4665.5500.
MSOP must also provide dental and optometry care for detainees, and all detainees must
apply for government-funded health insurance. (1st Decl. James Berg (“Berg Decl.”) ¶ 3,
Oct. 5, 2020, Docket No. 270.) Additionally, although not required by state regulation,
MSOP provides access to televisions, computers, a library, and a gym, recreational
options, spiritual services, and degree and certification programs. (Johnston Dep. at
65:11–19; 1st Landrum Decl. ¶ 4, Ex. C (“Mesojedec Dep.”) at 30:12-21, 49:6-19, Oct. 5,
2020, Docket No. 269-1; Berg Decl. ¶ 5.) However, detainees have testified that they
reject MSOP’s offerings in favor of purchasing their own food items, toiletries, and
clothing. (See, e.g., Aff. Charlie R. Alden ¶ 8, Ex. F at 56:14–59:14, Oct. 5, 2020, Docket
No. 259.)
Adults in Minnesota correctional institutions, including MSOP detainees, may be
required to “pay all or a part of the cost of their board, room, clothing, medical, dental
and other correctional services.” Minn. Stat. § 243.23, subd. 2. Upon admission to MSOP,
detainees disclose personal financial information to determine whether they can afford
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to contribute toward their cost of care and, if so, how much. See id. § 246.51, subd. 1a.
If a detainee refuses to provide such information, the statute provides that the detainee
or their relatives are liable for the full cost of their care until sufficient information is
provided. Id.
When a detainee is deemed able to pay, the Minnesota Department of Human
Services bills MSOP detainees $393.00 per day for the cost of their care. (Jacobson Decl.
¶ 6.) Money withheld from detainees’ VWP wages is not deducted from the cost-of-care
amount they individually owe to MSOP; rather, the withholding, which can be “up to 50
percent of any payments made to an individual,” goes toward “reducing state costs
associated with operating [MSOP].”

Minn. Stat. § 246B.06, subd. 6.

The DHS

Commissioner may pursue a civil action to recover the amount a detainee owes for costof-care when a detainee is provisionally discharged, or upon a detainee’s death, from a
detainee’s estate or relative. Id. §§ 246.511, 246.52.
Since August 2013, MSOP has received a total of $12,308.93 in cost-of-care
payments, from seven detainees, none of whom are Plaintiffs here. (Jacobson Decl. ¶ 7.)
No current detainee pays for cost of care, no named or sample Plaintiff has paid any
amount toward their cost of care, and MSOP has never received cost-of-care payments

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from a detainee’s estate or relative following a detainee’s death. 1 (Jacobson Decl. ¶¶ 9–
10.) Indeed, Shirley Jacobson, MSOP’s CFO of Direct Care and Treatment since 2016, has
never initiated a court action to obtain cost-of-care payment during her tenure.
(Jacobson Decl. ¶ 9.)
II.

PROCEDURAL HISTORY
On August 12, 2016, Plaintiffs filed a Complaint against Defendants, pursuant to 42

U.S.C. § 1983, alleging that they are entitled to the federal minimum wage under the FLSA
and that MSOP improperly deducts a portion of their wages. (Compl., Aug. 12, 2016,
Docket No. 1; Am. Compl. ¶¶ 125–27, June 14, 2017, Docket No. 79.) Plaintiffs also
asserted claims for violation of the Rehabilitation Act, and violations of the Fourteenth
Amendment Equal Protection Clause, Fourteenth Amendment Due Process Clause, and
Thirteenth Amendment prohibition on involuntary servitude. (Am. Compl. ¶¶ 128–54.)
Plaintiffs seek actual and liquidated damages, as well as declaratory relief enjoining

Although Plaintiff Jannetta testified that two MSOP detainees received inheritances “which
[MSOP] took” and that another detainee’s parents pay for his cost of care (Aff. David Jannetta
¶¶ 8–10, Nov. 9, 2020, Docket No. 294), Plaintiff Janetta’s testimony on this matter is
unsupported by other evidence and alone is insufficient to create a genuine dispute of material
fact at summary judgment.
1

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Defendants from violating the FLSA and ordering MSOP to pay VWP participants the
federal minimum wage and withhold no portion of their wages. (Id. at 54–55.)
On December 22, 2016, Defendants filed a Motion to Dismiss. (Mot. Dismiss, Dec.
22, 2016, Docket No. 38.) On September 28, 2017, the Court granted, in part, Defendants’
Motion to Dismiss the Amended Complaint, and denied the motion only with regard to
Plaintiffs’ FLSA claim. Gamble v. Minnesota State-Operated Servs., No. 16-2720, 2017 WL
4325702, at *7 (D. Minn. Sept. 28, 2017).
On January 26, 2018, the class action opt-in Plaintiffs filed a Notice of Consent
under 29 U.S.C. § 216. (Mot. Conditional Certification, Jan. 26, 2018, Docket No. 134.) On
January 24, 2019, the Court granted their motion to conditionally certify a collective
action. (Order, Jan. 24, 2019, Docket No. 191.)
On October 5, 2020, the parties filed motions for summary judgment, pursuant to
Federal Rule of Civil Procedure 56(a). (Pls.’ Mot. Summ. J, Oct. 5, 2020, Docket No. 260;
Defs.’ Mot. Summ. J., Oct. 5, 2020, Docket No. 262.) Plaintiffs have moved for summary
judgment only as to liability, while Defendants have moved for summary judgment on all
claims or, alternatively, to decertify the class. Defendants have also moved to exclude

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the testimony of Plaintiffs’ expert, Karen Fisher. (Mot. Exclude, Oct. 5, 2020, Docket No.
263.) The parties primarily dispute whether the VWP is “employment” under the FLSA.
DISCUSSION
I.

STANDARD OF REVIEW
Summary judgment is appropriate when there are no genuine issues of material

fact, and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit, and
a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A court considering a motion for summary judgment must view the facts in the light most
favorable to the nonmoving party and give that party the benefit of all reasonable
inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
The nonmoving party may not rest on mere allegations or denials but must show,
through the presentation of admissible evidence, that specific facts exist creating a
genuine issue for trial. Anderson, 477 U.S. at 256 (discussing Fed. R. Civ. P. 56(e)). The
nonmoving party also may not “merely point to unsupported self-serving allegations, but
must substantiate [its] allegations with sufficient probative evidence that would permit a
finding in [its] favor without resort to speculation, conjecture, or fantasy.” Reed v. City of
St. Charles, 561 F.3d 788, 790–91 (8th Cir. 2009) (quotations omitted). “The mere
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existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252. At the summary judgment stage, the Court may not make
credibility determinations or weigh the evidence before it. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000).
II.

ANALYSIS
A.

Fair Labor Standards Act

The issue before the Court is whether the FLSA applies to MSOP detainees’
participation in the VWP. The FLSA provides that employees receive a minimum wage.
29 U.S.C. §§ 206, 207, 214, 215. One of the FLSA’s purposes is to provide employees “the
minimum standard of living necessary for health, efficiency, and general well-being[.]” Id.
§ 202(a).
Plaintiffs have not presented any authority finding that civil detainees participating
in a voluntary work program are considered employees under the FLSA, and despite
extensive searching, the Court could not find any such case. While the Eighth Circuit has
not ruled on this issue, other circuits have found that civilly committed sex offenders are
not covered under the FLSA. Most recently, the Fourth Circuit determined that FLSA did
not apply because a civilly committed person was not working to make a profit for the
Bureau of Prisons and there was no bargained-for exchange, and the facility provided
necessities for the detainees. Matherly v. Andrews, 859 F.3d 264, 278 (4th Cir. 2017).
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Likewise, the First Circuit found that civil detainees were not subject to the FLSA because
they were detained to protect society, and a minimum wage was not required to fulfill
the FLSA’s purpose because the detainees were cared for by the state. Miller v. Dukakis,
961 F.2d 7, 9 (1st Cir. 1992). The Seventh Circuit cited Miller in finding that the FLSA did
not apply to work performed by civilly committed persons because the work was not
critical to provide for their wellbeing. Sanders v. Hayden, 544 F.3d 812, 814 (7th Cir. 2008).
While Plaintiffs cite Gonzales v. Mayberg in support of their Motion, Gonzales is
factually distinguishable and not as favorable as Plaintiffs assert. No. 07-6248, 2009 WL
2382686, at *4 (C.D. Cal. July 31, 2009). In Gonzales, the court rejected the idea that the
plaintiffs could not be considered employees under the FLSA merely because they were
civilly committed sex offenders, but dismissed their claim due to sovereign immunity. Id.
at *5. Therefore, Gonzales is unpersuasive, and Plaintiffs have failed to establish any legal
precedent for their claim.
1.

Economic-Reality Test

Finding no supporting precedent, the Court considers the merits of Plaintiffs’
theory. To determine whether a plaintiff is an “employee” under the FLSA, courts
evaluate the “economic reality” of the parties’ relationship based on the totality of the
circumstances. Barnett v. Young Men’s Christian Ass’n, Inc., No. 98–3625, 1999 WL

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110547, at *1 (8th Cir. Mar. 4, 1999); see also Karlson v. Action Process Serv. & Private
Investigations, LLC, 860 F.3d 1089, 1092 (8th Cir. 2017).
The fact that an employer does not provide an employee his or her “basic needs”
weighs in favor of finding an employer-employee relationship under the FLSA; the
employee needs a minimum wage to purchase the basic necessities. See 29 U.S.C.
§ 202(a); Villarreal v. Woodham, 113 F.3d 202, 205–206 (11th Cir. 1997); cf. Cody v. Hillard,
599 F. Supp. 1025, 1048 (D.S.D. 1984), aff’d, 799 F.2d 447 (8th Cir. 1986), on reh’g, 830
F.2d 912 (8th Cir. 1987). One reason that Plaintiffs’ FLSA claim survived Defendants’ Rule
12 motion was Plaintiffs’ allegation that MSOP does not provide for their basic needs. See
Gamble, 2017 WL 4325702, at *3.
But with discovery complete, Plaintiffs have failed to demonstrate that there is a
material fact in dispute regarding whether MSOP provides for their basic needs.
Minnesota regulations require that MSOP provide detainees a basic standard of living
including meals, beds and bedding, and laundry. See Minn. R. 4665.1900, 4665.2000,
4665.2800, 4665.5500. Plaintiffs do not contest that MSOP provides the required items,
but maintain that detainees reject MSOP provisions in lieu of purchasing their own food,
toiletries, and clothing, and thus Plaintiffs end up paying for their own basic needs.
The fact that detainees sometimes purchase items to supplement or replace
MSOP’s offerings does not mean that MSOP fails to meet their basic needs. Although
MSOP’s provisions may be rudimentary, Plaintiffs present no evidence that their basic
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needs are unmet. See Martin v. Benson, 827 F. Supp. 2d 1022, 1029 (D. Minn. 2011)
(concluding that, because MSOP detainees’ “basic needs are met by the State,” the
Program did not warrant FLSA coverage).

The issue of whether Minnesota’s

Administrative Rules are sufficient to ensure that MSOP detainees’ basic needs are met is
not before the Court.
At the motion to dismiss stage, the Court found that Plaintiffs pled a plausible FLSA
claim in part because they alleged that they must repay MSOP for their cost of care.
Gamble, 2017 WL 4325702, at *3. Indeed, adults in Minnesota correctional institutions,
including MSOP detainees, may be required to “pay all or a part of the cost of their board,
room, clothing, medical, dental and other correctional services.” Minn. Stat. § 243.23,
subd. 2. The DHS Commissioner may pursue a civil action to recover the amount a
detainee owes for cost-of-care when a detainee is provisionally discharged, or upon a
detainee’s death, from a detainee’s estate or relative. Id. §§ 246.511, 246.52.
Yet there is no evidence that MSOP pursues current or former detainees to recover
cost-of-care payments. First, although MSOP has received over $12,000 in cost of care
payments since August 2013, no portion of that was from Plaintiffs, and Plaintiffs have
not shown through admissible evidence that any of them pay their cost of care. Without
more, the fact that Minnesota law allows MSOP and other correctional facilities to seek
cost-of-care payments is insufficient to show that MSOP does not provide for detainees’
basic needs. Thus, there is no material fact in dispute as to whether MSOP meets its
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detainees’ basic needs, which weighs against finding an employer-employee relationship
under the FLSA.
2.

Benefit to MSOP

Plaintiffs also argue that an employer-employee relationship exists because the
VWP confers a benefit on MSOP. Plaintiffs first contend that the MSI sign shop generates
a profit for MSOP, creating an employer-employee relationship under the FLSA. But
Plaintiffs’ unsupported testimony that MSI generates a profit through the VWP does not
create a genuine dispute of material fact. Defendants have testified that, if the VWP
ceased to exist, MSOP’s operating costs would not increase because MSOP would have to
hire workers or pay hired wages; rather, the Program is expensive to operate and
generates no money. Even if the Program did generate money, state law provides that
MSI net profits be used for the benefit of MSOP detainees. See Minn. Stat. § 246B.06,
subd. 1(b).
Plaintiffs merely speculate that their work through the VWP confers a benefit on
MSOP by maintaining its facilities—for example, shoveling snow, preparing food, and
mowing the lawn. Thus, Plaintiffs imply that MSOP saves money through assigning VWP
placements to these tasks. But even if Plaintiffs offered evidence to support this
assumption, they provide no legal authority supporting their theory that a nominal
benefit in a custodial setting has a bearing on an FLSA analysis. Furthermore, contrary to
Plaintiff’s assertions, MSOP’s continued operations during the COVID-19 pandemic
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despite cuts to Program placements illustrates that MSOP is not dependent on VWP
participants for maintenance.
Moreover, Plaintiffs submit no evidence or authority for the Court to distinguish
Martin, which found that no employer-employee relationship existed between MSOP and
the VWP participants, because the VWP “has few of the ‘indicia of traditional, free market
employment’ covered by the FLSA” and MSI does not compete with businesses in the
general labor market. 827 F. Supp. 2d at 1028–29 (quoting Henthorn v. Dep’t of Navy, 29
F.3d 682, 686 (D.C. Cir. 1994)). Thus, Plaintiffs’ assertion that their work benefits MSOP
is insufficient to create a dispute of material fact. See Reed, 561 F.3d at 790–91.
In sum, considering the totality of the circumstances under the economic-reality
test, Plaintiffs fail to show that there is any material fact in dispute, and the Court
therefore finds that Plaintiffs cannot establish that they are employees within the
meaning of the FLSA.
3.

Sex-Offender Treatment

Additionally, Plaintiffs assert that the VWP does not constitute sex-offender
treatment, yet concede that whether the Program is treatment is irrelevant to the
question of whether participation in the program is employment under the FLSA.
Defendants have presented expert testimony that the VWP is a component of treatment,
and Minnesota law dictates that the VWP’s purpose is sex-offender treatment. See Minn.
Stat. §§ 246B.05 subd. 1 (“The vocational work program is an extension of therapeutic
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treatment[.]”); id. § 246B.06, subd. 1(a) (“The commissioner may establish vocational
activities for sex offender treatment[.]”). Further, all VWP staff members are trained on
how to interact with people with sexual psychopathic personalities and sex offenders.
See Minn. R. 9515.3070. Plaintiffs dispute that participation in VWP is part of their
treatment, but Plaintiffs’ own opinion testimony is insufficient evidence to establish that
the Program is not treatment. Thus, even if determining whether the VWP is part of sexoffender treatment were relevant to the overarching question of whether participation
in the VWP is employment under the FLSA, Plaintiffs’ argument is unavailing.
B.

Portal-to-Portal Act

Finally, even if Plaintiffs could demonstrate that a material fact in dispute
precludes summary judgment, Plaintiffs’ Motion cannot succeed because the Portal-toPortal Act shields Defendants from liability. The Portal-to-Portal Act protects defendants
who plead and prove that an “act or omission was in good faith conformity with and in
reliance on any written administrative regulation, order, ruling, approval, or
interpretation.” 29 U.S.C. § 259.
As noted above, the Court held in Martin that MSOP detainees’ work within the
VWP was not employment as defined in the FLSA. 827 F. Supp. 2d at 1029. Under the
Portal-to-Portal Act, it was reasonable for MSOP to rely on a binding court opinion. See
29 U.S.C. § 259. Because Martin was binding authority, MSOP need not have sought a
Department of Labor opinion, as Plaintiffs suggest, because such an opinion would have
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been supplanted by binding court authority and would not have bound the Court in the
present matter. See Perez v. Contingent Care, LLC, 820 F.3d 288, 293 n.4 (8th Cir. 2016)
(citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Additionally, Minnesota law
explains that the VWP is part of sex-offender treatment. Minn. Stat. § 246B.06, subds. 6–
7. Thus, Defendants are immune from liability for Plaintiffs’ FLSA claim because the wage
withholding policy conformed, in good faith, with binding authority regarding application
of the FLSA to the VWP.
CONCLUSION
Plaintiffs fail to demonstrate that there is any material fact in dispute to preclude
summary judgment in regard to the FLSA claim, and Defendants’ Motion is granted. In
any event, Plaintiffs’ Motion fails because Defendants are entitled to immunity under the
Portal-to-Portal Act.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Plaintiffs’ Motion for Partial Summary Judgment [Docket No. 260] is
DENIED;

2.

Defendants’ Motion for Summary Judgment [Docket No. 262] is GRANTED;

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3.

Because the Court did not consider Ms. Fisher’s testimony and the Court
granted Defendants’ Motion for Summary Judgment, Defendant’s Motion
to Exclude Expert Testimony [Docket No. 263] is DENIED as moot; and

4.

The action is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: June 30, 2021
at Minneapolis, Minnesota.

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___

JOHN R. TUNHEIM
Chief Judge
United States District Court

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