Naylor et al v. Securiguard, Inc. et al

Filing 50

ORDER granting 35 Motion for Summary Judgment. Signed by District Judge Carlton W. Reeves on 5/12/2014. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DONALD R. NAYLOR, et al.

PLAINTIFFS

v.

NO. 3:13-cv-944-CWR-FKB

SECURIGUARD, INC., et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiffs, current and former security guard employees (collectively, “Plaintiffs”) of
defendant Securiguard, Inc. (“Securiguard”), bringing this action against Securiguard and several
individual defendants, Patricia Marvil, John Oxedine, and Oscar Holt (collectively,
“Defendants”), seek to recover alleged unpaid overtime wages and liquidated damages under the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Plaintiffs filed their first complaint
on October 9, 2011, and have twice amended their complaint to include all present parties. The
Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331, which states that “district
courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”
This case is now before the Court on the Defendants’ motion for summary judgment,
Docket No. 35. Plaintiffs have filed a response, to which the Defendants have submitted a
rebuttal. After considering the parties’ arguments and the applicable authorities, the motion for
summary judgment will be granted.
I. Background
Plaintiffs are employees of Securiguard, which provides professional armed and unarmed
security guard service to select government and private industry sites within the United States.

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Securiguard employed Plaintiffs at the Naval Air Station (“NAS”) in Meridian, Mississippi, at
different periods of time between 2008 until the present. Second Amended Compl., at 2. The
following are the undisputed facts.
Plaintiffs’ main duty was to guard the four gate entries at NAS during certain time
periods: 1) Main Gate (seven days per week, 24 hours per day); 2) Flightline Gate (seven days
per week, 24 hours per day); Truck Gate – Monday though Friday, 5:30a.m. to 3:30 p.m.); and
the 4) Housing Gate (seven days per week, 6:00 a.m. to 10:00 p.m.). Docket No. 36-1, Exhibit 1,
at 2.
As security guards, Plaintiffs were required to stand seven hours at their posts. Id. at 3.
Securiguard provided Plaintiffs two unpaid 30 minute “meal periods” in which to have lunch;
Plaintiffs had discretion to use these periods concurrently or separately throughout their
workday. Second Amended Compl., at 3. During these meal periods, a Relief Officer1 (RO)
filled in Plaintiffs’ duties while Plaintiffs, who were not allowed to eat their meals at their post or
in their vehicle, were required to leave their post in a Securiguard security vehicle, Docket No.
36-1, Exhibit 1, at 3. Because they were confined to NAS’s premises, there were only six
locations where Plaintiffs could eat: 1) the Old Security Building; 2) the New Security Building;
3) the Fire Station; 4) Mom’s Diner; 5) the Bowling Alley; and 6) the Storage Unit. See
Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, Docket No. 43, at 5. When
they took their meal period, Plaintiffs were required to wear their weapons, uniforms, bullet
proof vests, and gun belt. Id.

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According to Defendants, Plaintiffs meal breaks started “from the second they stepped off the post to the
second they returned to the post.” Id.

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Plaintiffs argue that Defendants’ failure to pay them for their meal periods2 amounts to a
violation of the FLSA. Plaintiffs request relief in the form of backpay for unpaid wages and
overtime, liquidated damages, legal fees and all other costs and expenses. Id. at 4.
II. Summary Judgment Standard
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). When confronted with these motions, the Court focuses on “genuine” disputes of
“material” facts. A dispute is genuine “if the evidence supporting its resolution in favor of the
party opposing summary judgment, together with any inferences in such party's favor that the
evidence allows, would be sufficient to support a verdict in favor of that party.” St. Amant v.
Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987). A fact is material if it might affect the outcome of
the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by “citing to particular parts of materials in the record.” Fed.R.Civ.P.
56(c)(1)(A). The Court “views the evidence and draw reasonable inferences in the light most
favorable to the non-movant.” Maddox v. Townsend & Sons, Inc., 639 F.3d 214, 216 (5th Cir.
2011).
III. Discussion

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Plaintiffs also originally alleged that Defendants owed them back wages for pre-shift and post-shift
work. Id. at 3. According to Defendants, Plaintiffs have acknowledged that they were actually
compensated for this work and therefore these claims have been dropped. See Mem. in Support of
Defendants’ Mot. for Summary Judgment., Docket No. 36, at 1-2. Because Plaintiffs have not denied
Defendants’ assertion, the claim for back wages in pre-shift and post-shift work is dismissed. See
Covington v. Kemp, 4:10-cv-213-CWR-FKB, 2012 WL 2415188, at *7 (S.D. Miss. June 26, 2012) (in the
face of dispositive motion where plaintiff failed to respond to arguments by defendant, court determined
that plaintiff abandoned those claims).
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In their second amended complaint, Plaintiffs alleged that Defendants violated the FLSA
because Plaintiffs were not compensated for their 30 minute lunch breaks despite the fact that
they were required to stay in their uniforms, wear their weapons, and remain on the employer’s
premises.3 Plaintiffs have since narrowed their focus and assert that they are entitled to
compensation primarily because Securiguard imposed a driving duty on them during their meal
time. Plaintiffs’ sole contention, therefore, is that the requirement that they drive away from their
posts for meal time cuts into their 30 minute break (depending at which gate they were working,
Plaintiffs’ argue, a round trip from a particular gate to a specific lunch destination could take
anywhere between 2 to 23 minutes). See Plaintiffs’ Response to Defendants’ Motion for
Summary Judgment, Docket No. 43, at 5. Plaintiffs argue that by forcing them to drive away
from their work stations, instead of allowing them, for example, to take a meal break at their
work stations, Securiguard deprived them of their full 30 minutes to eat.4 Id.
The FLSA requires that overtime wages be paid for all hours worked in excess of forty
hours per week. 29 U.S.C. § 207(a)(1). The act “does not require that an employer provide meal
or rest periods.” Nelson v. Waste Management of Alameda County, Inc., No. C99-120SI, 2000
WL 868523, at *3 (N.D. Cal. June 19, 2000). “Bona fide meal periods are not worktime.” 29
C.F.R. § 785.19. “For the period to be classified as meal time, an employee ‘must be completely

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Defendant pointed out that Plaintiffs, in their response brief, concede that courts have ruled that these
restrictions, without more, do not violate federal labor laws. See Defendants’ Rebuttal to Plaintiffs’
Opposition to Defendants’ Motion for Summary Judgment, Docket No. 44, at 2 (citing Plaintiffs’
Response to Defendants’ Motion for Summary Judgment, Docket No. 43, at 3). See also Alexander v.
City of Chicago, 994 F.2d 333, 336-39 (7th Cir. 1993); Lamon v. City of Shawnee, 972 F.2d 1145, 1156
(10th Cir. 1992); Avery v. City of Talladega, 24 F.3d 1337, 1347 (11th Cir. 1994).
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Plaintiffs also stated that if they wanted to bring their own meal, they had to leave it in the Security
Building. Id. at 6. Once their break began, they were forced to drive from their post to the Security
Building and eat in the break room. Id.

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relieved from duty for purposes of eating regular meals.’” Hartsell v. Dr. Pepper Bottling Co. of
Texas, 207 F.3d 269, 274 (5th Cir. 2000).
The Fifth Circuit Court of Appeals has applied the “predominant benefit” test in
determining whether a meal break is compensable. Id. According to the Fifth Circuit,
The critical question is whether the meal period is used predominantly or
primarily for the benefit of the employer or for the benefit of the
employee. The employer bears the burden to show that meal time qualifies
for this exception from compensation. Whether meal time is
predominantly for the benefit of the employer is a question of fact that is
ordinarily resolved by the trier of fact after hearing all of the evidence.
Bernard v. IBP, Inc. of Nebraska, 154 F.3d 259, 264-65 (5th Cir. 1998). Courts have considered
several factors when applying this test: the limitations and restrictions placed upon the
employees; the extent to which those restrictions benefit the employer; the duties for which the
employee is held responsible during the meal period; and the frequency in which meal periods
are interrupted. Bernard, 154 F.3d at 266 (citing Roy v. Cnty. of Lexington, S. Carolina, 141
F.3d 533, 545-46 (4th Cir. 1998); (Reich v. S. New England Telecommunications Corp., 121 F.3d
58, 65 (2d Cir. 1997); Lamon v. City of Shawnee, Kan., 972 F.2d 1145, 1157-58 (10th Cir.
1992)). “[I]t is the frequency and extent of mealtime interruptions, rather than their mere
possibility, that will influence the ultimate determination of overtime entitlement.” 3
Emp.Coord.Compensation § 23.11 (2014) (citing Albee v. Village of Bartlett, Ill., 861 F.Suppp.
680, 685-87 (N.D. Ill. 1994)).
The Fifth Circuit has found meal periods to be compensable when employers have
imposed substantial duties or restrictions on the employee. Bernard, 154 F.3d 259; see also
Hartsell, 207 F.3d 269 (where Court upheld district court’s finding that the meal time was spent
predominantly for employer because employees’ testimony stated they rarely took their breaks
because of work demands). In Bernard v. IBP Inc., maintenance workers at a meat packing plant
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sought compensation for their meal breaks. The Fifth Circuit affirmed a jury verdict in favor of
the aggrieved employees, concluding that the meals breaks were predominantly for the
employer’s benefit because: (1) the workers were prohibited from leaving the work site; (2) they
were required to wear their radios and tolls during lunch; and, most notably, (3) the workers’
breaks were frequently interrupted by work duties. Id., 154 F.3d at 259.
Here, Plaintiffs argue that the one requirement that they drive the security vehicles away
from their gate “cut[s] significantly into [their] meal break.” Plaintiffs contend that Securiguard
imposed this driving duty for their benefit in order to avoid any perception to the public that
guards are not working. Docket No. 43, at 7. However, in applying the predominant benefit test
to the facts of this case, the Court is not convinced that Securiguard’s driving requirement inured
primarily to its benefit. The idea that a company’s policy of requiring employees to use company
vehicles on lunch breaks can hardly be construed as a work duty.5 Securiguard’s requirement that
Plaintiffs drive away from the work station is too insubstantial to be compensable. See Roy, 141
F.3d at 545-46 (finding meal periods not compensable when employees could only be interrupted
in emergencies and were in fact interrupted 27% of the time). Plaintiffs only duty as Securiguard
employees was to guard the gates, a duty that they were entirely relieved from by “relief”
officers. In fact, these relief officers made it possible for Plaintiffs to use their meal time for their
own purposes without any interruption. Plaintiffs have presented no evidence that they were
routinely called away from their meal period for the benefit of the employer.
Plaintiffs claim that they would have had more time during their breaks if they were
allowed to eat at their posts, and that round trip travel time for some locations nearly consumed
the duration of their breaks. To support this point, Plaintiffs provided a chart illustrating that it
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Plaintiffs argue that driving during their meal time shortened their breaks while ignoring the fact that
driving provides them transportation to an appropriate lunch destination more efficiently.
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takes 23 minutes round trip to drive from the Housing Gate to Mom’s Diner. See Docket No. 43,
at 5. Assuming this is true, the fact that it may take longer for some guards to travel from one
specific gate to a specific lunch location, does not negate the fact that there are nearby alternative
locations available, which may be shorter. For example, Plaintiffs’ “round trip driving times”
chart shows that it takes 10.5 minutes round trip to get from the Housing Gate to the New
Security Building. Id. Moreover, Plaintiffs fail to acknowledge that, at their discretion, they may
combine their two 30-minute breaks, thereby providing a full one-hour meal period. They make
no complaint whatsoever that an hour does not provide them with enough time for the meal
period. In any case, under the predominant benefit test, Plaintiffs’ meal period is not considered
compensable just because they did not have every single second available to them. The test
hinges on whether meal time is predominantly for the benefit of Securiguard or for the benefit of
Plaintiffs. Based on the evidence before the Court, there is no genuine dispute that the meal
period is for the benefit of the employees.
Securiguard’s driving requirement does not place a significant restriction on Plaintiffs’
meal time. Nor does it primarily benefit Securiguard. Plaintiffs were completely relieved of their
duties, their break period was not interrupted by work demands, and they were allowed sufficient
time to eat. For these reasons, summary judgment for Defendants shall be GRANTED.
SO ORDERED, this the 12th day of May, 2014.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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