HUGHES et al v. THE TOWNSHIP OF FRANKLIN
Filing
68
MEMORANDUM OPINION FILED. Signed by Magistrate Judge Ann Marie Donio on 12/23/15. (js)
[Doc. No. 58]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ESTELLE HUGHES, et al.,
Plaintiffs,
Civil No. 13-3761 (AMD)
v.
THE TOWNSHIP OF FRANKLIN,
Defendant.
MEMORANDUM OPINION
This matter comes before the Court by way of motion for
summary
judgment
filed
by
Defendant
the
Township
of
Franklin
(hereinafter, “Defendant” or “township”). (See Motion for Summary
Judgment (hereinafter, “Def.’s Mot.) [Doc. No. 58].) Plaintiffs
Estelle Hughes, Frances Gaetano, Thomas Little, Vincent Parisi,
Michael Marsh, and James Rausch (hereinafter, “Plaintiffs”) have
opposed the motion. (See Brief in Opposition (hereinafter, Pls.’
Opp’n) [Doc. No. 63].) The Court has considered the parties’
submissions and decides this matter pursuant to Federal Rule of
Civil Procedure 78(b). 1 For the reasons that follow, Defendant’s
1
The parties consented to this Court’s jurisdiction pursuant to
28 U.S.C. § 636(c)(1), Federal Rule of Civil Procedure 73(b), and
Rule 73.1 of the Local Civil Rules for the United States District
motion for summary judgment is granted in part and denied in
part.
In
enforcement
allege
this
action,
officers
that
for
Defendant
Plaintiffs,
the
current
Township
“fail[ed]
and
of
and
former
Franklin,
refus[ed]
law
generally
to
properly
compensate Plaintiffs for” otherwise compensable pre-shift work,
in accordance with an “established” practice incorporated into
the
parties’
collective
officers
“to
report”
shift.” 2
(Amended
bargaining
ten
Complaint
minutes
[Doc.
agreement
prior
No.
to
3],
that
“their
¶¶
required
scheduled
25-28,
63-64.)
Specifically, Plaintiffs allege that “[d]efendant’s violations of
the FLSA include but are not limited to: (1) unlawfully requiring
Plaintiffs to report to work [ten] minutes in advance of their
officially assigned shift and not paying them at all for this
required time at regular rates of pay and/or overtime rates of
pay; (2) requiring and/or permitting Plaintiffs to work beyond
the end of their shift without compensation and without paying
Plaintiffs
for
properly
calculated
regular
rate
wages
and/or
overtime rate compensation; and (3) failing and/or refusing to
pay Plaintiffs for duty work performed on the way to the police
station pre-shift start time.” (Id. at ¶ 63.) Plaintiffs seek
Court, District of New Jersey. (See Order/Consent to Jurisdiction
by a US Magistrate Judge [Doc. No. 17], Dec. 4, 2013.)
2 On June 18, 2013, Plaintiffs filed the initial complaint in
this action (see Complaint [Doc. No. 1]), followed by an amended
complaint on June 19, 2013. (See Amended Complaint [Doc. No. 3].)
2
civil damages in accordance with Plaintiffs’ monetary loss. (Id.
at ¶ 64.) Plaintiffs also allege that the pre-shift requirement,
set
forth
in
bargaining
Article
IX,
agreement,
¶
C(1) 3
required
of
the
parties’
Plaintiffs
collective
to
perform
uncompensated work in violation of the Fair Labor Standards Act,
29 U.S.C. §§ 201, et seq. (hereinafter, “the FLSA” or “the Act”).
(Id.
at
¶¶
29-57.)
Consequently,
Plaintiffs
seek
declaratory
judgment concerning the “invalid, illegal[,] and unenforceable”
nature
of
Defendant’s
“practices
and
policies”
set
forth
in
Article IX, ¶ C(1). (Id. at ¶ 67.) Plaintiffs also “claim that
they have been forced to use accrued compensatory time or lose it
and seek damages associated with the forced use of compensatory
time, and that they have been forced to lose earned compensatory
time,”
consequently,
Plaintiffs
“seek
a
declaration
from
the
Court that the forced use of compensatory time is illegal in that
it violates the FLSA.” (Id. at ¶ 4.)
On April 14, 2014, the Court ordered that the action be
“conditionally
designated
as
a
3
collective
action
under
the
Article IX, ¶ C(1) of the CBA provides that “[t]he regular
schedule for employees will be at the discretion of the Chief of
Police or his/her designee and will generally be an eight (8),
ten (10) or twelve (12) hour shift with the following exceptions:
1. A ‘duty day’ begins at ten (10) minutes prior to the start of
the shift and ends on the hour, either eight (8) hours and ten
(10) minutes later, ten (10) hours and ten (10) minutes later or
twelve (12) hours and ten (10) minutes later or when the officer
is relieved, whichever is sooner. Specifically, officers shall be
prepared to assume normal patrol duties ten (10) minutes prior to
the hour.” (See Exhibit B [Doc. No. 58-2], 20-21 on the docket.)
3
FLSA.” 4 (Memorandum Opinion and Order [Doc. No. 25] 15, Apr. 14,
2014.) Plaintiffs Michael Marsh and James Rausch were added to
the action as opt-in plaintiffs on August 6, 2014. (See Order
[Doc. No. 41], Aug. 6, 2014.) Fact discovery concluded on March
16,
2015
(see
Amended
Scheduling
Order
[Doc.
No.
54]),
and
Defendant timely filed the present motion. (See Def.’s Mot. [Doc.
No. 58].)
Defendant’s motion for summary judgment presents three
arguments: (1) that “[t]he Franklin Township Police Department
[(hereinafter,
§
“FTPD”)]
207(k)”;
(2)
that
compensated
for
muster
properly
“Franklin
time
as
operates
Township
a
under
Police
component
of
29
U.S.C.
Officers
are
their
base
salaries”; and (3) that “[t]he use of Franklin Township Police
vehicles by Township Police Officers for commuting to and from
the police station is not compensable time under federal law.”
(See Def.’s Brief [Doc. No. 58-4], 4, 8, 13.) Plaintiffs argue
that Defendant’s motion should be denied because there are issues
4
The FLSA generally permits actions to proceed on a collective
basis provided that the plaintiffs demonstrate that they are
similarly situated to the putative collective action plaintiffs.
Specifically, § 216(b) of the Act sets forth the “collective
action” mechanism, which enables an employee alleging a FLSA
violation to bring an action on “behalf of himself” and other
“similarly situated” employees, subject to the requirement that
each party plaintiff consents in writing to join the action and
files such express, written consent “in the court in which [the]
action is brought.” 29 U.S.C. § 216(b). A similarly situated
employee must therefore affirmatively “opt in” to an ongoing FLSA
suit. Id.
4
of material fact as to: (1) “what constitutes a ‘work period’”;
(2)
“whether
encompassed
the
within
mandatory
the
pre-shift
police
preparation
officers’
base
time
was
salary”;
(3)
“whether the officers were relieved from duty before the end of
their shifts”; and (4) “whether the Chief of Police modified the
‘duty day’ and the use of patrol vehicles before and after the
officer’s shift work.” (Pls.’ Opp’n [Doc. No. 63-1], 3.)
The following facts are not in dispute: 5
1.
The
Township
of
Franklin
(“Franklin
Township or “township”) is a municipality
organized under the laws of New Jersey.
[citation omitted] 6
5
Pursuant to Local Civil Rule 56.1(a), a party moving for
summary judgment must provide a statement setting forth “material
facts as to which there does not exist a genuine issue[.]” L. CIV.
R. 56.1(a). The opponent of summary judgment “shall furnish, with
its opposition papers, a responsive statement of material facts,
addressing each paragraph of the movant’s statement, indicating
agreement or disagreement and, if not agreed, stating each
material fact in dispute and citing to the affidavits and other
documents submitted in connection with the motion[.]” Id. “[A]ny
material fact not disputed shall be deemed undisputed for
purposes of the summary judgment motion.” Id. The opponent “may
also furnish a supplemental statement of disputed material facts
. . . if necessary to substantiate the factual basis for
opposition.” Id. In this case, Plaintiffs admitted to paragraphs
1, 2, 3, 4, 5, 6, 9, 12, 14, 15, 25, 29, 30, 32, 33, 34, 35, 36,
38, 39, 40, 41, 42, 43, 44, and 45 of Defendant’s Statement of
Material Facts. Plaintiffs admitted to paragraphs 26, 27, and 28
to the extent that those paragraphs applied to Plaintiffs, but
asserted that they lacked knowledge as to other officers.
Plaintiffs admitted to paragraphs 7, 8, 11, 19, 20, and provided
additional
explanations
with
those
admissions.
Plaintiffs
admitted to paragraph 21 to the extent that the “CBA so provides
for such a situation, however, the situation did not occur.”
Plaintiffs denied the remaining paragraphs.
6 The parties undisputed material facts are from the following
exhibits: Amended Complaint [Doc. No. 58-2], Exhibit A; Portion
5
2.
The
township
maintains
a
police
department
(“police
department
or
“department”), with all sworn and civilian
members of the department being employees of
the township. [citation omitted]
3. The township has a Collective Bargaining
Agreement (“CBA”) with the New Jersey State
Policemen’s
Benevolent
Association,
PBA
Local 122, covering certain sworn members of
the department. . . . [citation omitted]
4. The CBA relevant to this case covers
patrol officers and detectives up to and
including the rank of corporal. [citation
omitted]
5. PBA Local 122 has been the exclusive
representative of the police officers and
detectives in the police department of the
Township
of
Franklin
for
collective
negotiations since 2000. Prior to then PBA
Local 178 was the exclusive representative
of the township police. [citation omitted]
6. Per the CBA, Franklin Township police
officers are paid on a two-week cycle. The
base contract amount is divided by 26 and
every pay check consists of 1/26th of the
base amount. [citation omitted]
7.
The
straight
dividing
[citation
longevity
CBA
provides
that
the
regular
time rate of pay is computed by
the annual base salary by 2080.
omitted]. The base salary includes
pay. [citation omitted]
of the relevant CBA [Doc. No. 58-2], Exhibit B; Deposition of
Franklin Township Police Chief Michael Rock [Doc. No. 58-2],
Exhibit C; Affidavit of Franklin Township Police Chief Michael
Rock [Doc. No. 58-2], Exhibit D; and Supplemental Affidavit of
Police Chief Michael Rock [Doc. No. 58-3], Exhibit E. (See Def.’s
Statement of Material Facts [Doc. No. 58-1]; see also Pls.’
Statement of Material Facts [Doc. No. 63].)
6
8.
The
CBA
defines
overtime
as
all
authorized hours of work in excess of 168
hours in a 28 day work cycle or work in
excess of the normal work hours in any
shift. [citation omitted]
9. The CBA provides that the overtime rate
of pay is computed by dividing the sum of
the
annual
base
salary
plus
college
incentive by 2,080 and multiplying by 1.5.
[citation omitted]
. . . .
11. At all times relevant to this case,
Franklin
Township
police
officers
were
required to complete a monthly time sheet. 7
12. The monthly time sheet lists each shift
worked by the officer and the duration of
the shift. The monthly time sheet also lists
time other than regular work time . . . .
[citation omitted]
. . . .
14. Per the CBA, the regular shifts for
Franklin Township police officers may be
eight (8), ten (10) or twelve (12) hour
shifts. [citation omitted]
15. At all times relevant to this case, all
Franklin Township police officers assigned to
patrol
worked
12-hour
shifts.
[citation
omitted]
. . . .
19. A duty day is defined by the CBA as
beginning 10 minutes prior to the start of
7
Franklin Township Police Chief Michael Rock (hereinafter,
“Chief Rock”) testified that these monthly time sheets were not
used by payroll, but were “an internal document that the police
department uses to keep track of officers’ time[.]” (See
Deposition of Chief Rock (hereinafter, “Rock Deposition”) [Doc.
No. 58-2], Exhibit C, 31:12-16, 31 on the docket.)
7
the shift and ending on the hour. [citation
omitted]
20. Per the CBA, a duty day for an officer
working a 12-hour shift would be 12 hours
and 10 minutes or whenever the officer is
relieved, whichever is sooner. [citation
omitted]
21. The CBA thus provides that an officer
may work less than a full shift and still be
paid for the full shift, if he or she is
relieved prior to the formal end of the
shift. [citation omitted]
. . . .
25. As early as January 1997, Franklin
Township and its police department have had
contracts providing for muster time and the
ability of officers to leave when relieved,
even if earlier than the formal end of the
shift. [citation omitted]
26. No Franklin Township police officer has
challenged the muster time provision prior
to the present lawsuit. [citation omitted]
27. No Franklin Township police officer has
ever been disciplined for failing to arrive
ready for duty 10 minutes before the start
of his or her shift. [citation omitted]
28. No Franklin Township police officer has
ever lost pay for failing to arrive ready
for duty 10 minutes before the start of his
or her shift. [citation omitted]
29. The current chief of the Franklin
Township
Police
Department,
a
27-year
veteran of the force, is not aware of any
voucher seeking overtime for authorized or
emergency time ever being denied. [citation
omitted]
30. The current chief of the Franklin
Township Police Department is not aware of
8
any grievance being filed by a township
police
officer
based
on
overtime
compensation
being
denied.
[citations
omitted]
. . . .
32. Franklin Township police officers who
are residents of the township are permitted,
but not required, to use their police
cruisers to travel between their home and
the police station at the start and end of
their shifts. [citation omitted]
33. The police cruisers are to remain at the
officers’ homes and not used for personal
business. [citation omitted]
34. When an officer leaves home to report
for duty he or she must notify dispatch that
the officer has left home for the police
station. [citation omitted]
35. When an officer arrives at home at the
end of the shift he or she must again notify
dispatch. [citation omitted]
36. The purpose of notifying dispatch as
described in paragraphs 12 and 13 is so the
police department knows where the police
cruisers
are
at
all
times.
[citation
omitted]
. . . .
38. If an emergency occurs during commute
time
that
requires
additional
manpower,
dispatch may call an officer’s car and
request that the officer assist in the call.
Should that happen, the officer is entitled
to compensation and is expected to turn in a
payroll
voucher
for
such
compensation.
[citation omitted]
39. In Franklin Township, overtime may be
paid in cash or in compensatory time.
[citation omitted]
9
40. At all times relevant to her involvement
in the case, plaintiff Estelle Hughes was a
sworn
police
officer
of
the
Franklin
Township Police Department and engaged in
law
enforcement
activities.
[citation
omitted]
41. At all times relevant to his involvement
in this case, plaintiff Francesco Gaetano
was a sworn police officer of the Franklin
Township Police Department and engaged in
law
enforcement
activities.
[citation
omitted]
42. At all times relevant to his involvement
in this case, plaintiff Thomas Little was a
sworn
police
officer
of
the
Franklin
Township Police Department and engaged in
law
enforcement
activities.
[citation
omitted]
43. At all times relevant to his involvement
in this case, plaintiff Vincent Parisi was a
sworn
police
officer
of
the
Franklin
Township Police Department and engaged in
law
enforcement
activities.
[citation
omitted]
44. At all times relevant to his involvement
in this case, plaintiff Michael Marsh was a
sworn
police
officer
of
the
Franklin
Township Police Department and engaged in
law
enforcement
activities.
[citation
omitted]
45. At all times relevant to his involvement
[in] this case, plaintiff James Rausch was a
sworn
police
officer
of
the
Franklin
Township Police Department and engaged in
law
enforcement
activities.
[citation
omitted]
10
(Def.’s Statement of Material Facts (hereinafter, “Def.’s Facts”)
[Doc. No. 58-1]; Pls.’ Response to Statement of Material Facts
(hereinafter, “Pls.’s Facts”) [Doc. No. 63].)
A court may grant summary judgment “‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together
with
the
affidavits,
if
any,
show
that
there
is
no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56 (c)).
A genuine issue of material fact exists only if “the evidence is
such
that
a
reasonable
jury
could
return
a
verdict
for
the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is “material” if it “might affect the outcome
of the suit under the governing law.” Id. “Factual disputes that
are irrelevant or unnecessary will not be counted.” Id.
The
“identifying
moving
those
party
portions
bears
of
‘the
the
initial
pleadings,
burden
of
depositions,
answers to interrogatories, and admissions on file, together with
the
affidavits,
if
any,’
which
it
believes
demonstrate
the
absence of a genuine issue of material fact.” Celotex Corp., 477
U.S. at 323. “[W]ith respect to an issue on which the nonmoving
party bears the burden of proof . . . the burden on the moving
party may be discharged by ‘showing’ – that is, pointing out to
11
the district court – that there is an absence of evidence to
support the nonmoving party’s case.” Id. at 325.
Once a moving party satisfies its burden, the party
opposing summary judgment must then “‘set forth specific facts
showing that there is a genuine issue for trial.’” Anderson, 477
U.S. at 248 (quoting FED. R. CIV. P. 56(e)). A non-moving party
must present more than “‘bare assertions, conclusory allegations
or suspicions’ to show the existence of a genuine issue.” McCabe
v.
Ernst
&
Young,
LLP,
494
F.3d
418,
436-37
(3d
Cir.
2007)
(quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d
Cir. 2005)); see also Anderson, 477 U.S. at 249-50. The Court
must view the evidence in a light most favorable to the nonmoving party and any “justifiable inferences” shall be extended
to the non-moving party.” Anderson, 477 U.S. at 255.
An employee who files a claim under the FLSA bears “the
burden of proving that he performed work for which he was not
properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687 (1946), superseded by statute, Portal-to-Portal Act
of 1947, as recognized in IBP Inc. v. Alvarez, 546 U.S. 21, 21920 (2005). Under the FLSA, employers are required to keep records
of,
inter
alia,
“the
wages,
hours,
and
other
conditions
and
practices of employment.” 29 U.S.C. § 211 (c). Therefore, “[w]hen
the employer has kept proper and accurate records the employee
may easily discharge his burden by securing the production of
12
those records.” 8 Mt. Clemens, 328 U.S. at 687. “In the absence of
adequate
employer
required
by
the
records
FLSA,
of
the
employees’
solution
is
wages
not
and
to
hours,
penalize
as
the
employees by denying recovery based on an inability to prove the
extent of undercompensated work, but rather to allow the employee
. . . to submit sufficient evidence from which violations of the
Act
and
Martin
the
v.
amount
Selker
of
Bros.,
an
award may
949
F.2d
be
1286,
reasonably
1297
(3d
inferred.”
Cir.
1991)
(citing Mt. Clemens, 328 U.S. at 687); see also Reich v. Gateway
Press, Inc., 13 F.3d 685, 700 (3d Cir. 1994) (stating “it is
settled that the burden (with respect to a given employee) is met
if it is proved that the employee has in fact performed work for
which he was improperly compensated and if the employee produces
sufficient evidence to show the amount and extent of that work as
a matter of just and reasonable inference”). To meet this burden
8
The Court notes that no employer records have been provided in
either party’s submissions with respect to the pending motion
despite the undisputed fact that “[a]t all times relevant to this
case, Franklin Township police officers were required to complete
a monthly time sheet.” (See Def.’s Facts [Doc. No. 58-1], ¶ 11;
see also Pls.’ Facts [Doc. No. 63], ¶ 11.) Consequently, for
purposes of the present motion the time sheet records do not
discharge Defendant’s burden. See Kolesnikow v. Hudson Valley
Hosp. Ctr., 622 F. Supp. 2d 98, 118 (S.D.N.Y. 2009) (stating, in
considering a FLSA overtime claim that “[t]he [c]ourt will assume
for the purpose of deciding this motion that [the employer]’s
records were not accurate and that [the employee] may therefore
meet her burden by proving that she worked hours for which she
was not compensated, and by producing sufficient evidence to show
the amount and extent of that work as a matter of just and
reasonable inference” (citations and quotation marks omitted)).
13
“[i]t is not necessary for every single affected employee to
testify,” rather “[t]he testimony and evidence of representative
employees
practice
may
of
establish
FLSA
prima
facie
violations.”
proof
Martin,
of
949
a
F.
pattern
2d.
at
and
1298
(citations omitted); but see Rosano v. Twp. of Teaneck, 754 F.3d
177, 189 (3d Cir. 2014) (noting that “[a]n estimation of damage,
which fails to set forth the proper method of calculation and
does
not
account
for
day-to-day
differences
in
officer
scheduling, hardly provides a foundation for an inquiring court
to reasonably infer FLSA violations or the amount of an award”
(citation and quotation marks omitted)).
In
certain
circumstances
courts
have
found
that
plaintiff’s testimony alone is sufficient to establish a just and
reasonable
inference
as
to
the
extent
of
the
unpaid
work
performed. See Rong Chen v. Century Buffet & Rest., No. 09-1687,
2012 WL 113539, at *7 (D.N.J. Jan. 12, 2012) (finding that the
plaintiffs had provided sufficient evidence to support a just and
reasonable inference that they had performed work for which they
were
not
properly
compensated
where
the
plaintiffs
and
the
defendant testified that that the “[p]laintiffs regularly worked
11 to 12 hours [per day] six days per week, totaling a minimum of
68 hours worked weekly” and provided testimony “that [they] never
received any overtime pay for this work”); see also Rivera v.
Ndola Pharm. Corp., 497 F. Supp. 2d 381, 389-90 (E.D.N.Y. 2007)
14
(finding that the plaintiff met her burden where, in the absence
of
employer
records,
she
testified
to
her
wages,
her
normal
hours, and the number of hours that she worked beyond the normal
schedule
during
the
period
relevant
to
the
case);
but
see
Kolesnikow, 622 F. Supp. 2d at 119 (noting that “[w]hile there
are cases in which FLSA plaintiffs have defeated summary judgment
motions
based
on
their
own
testimony,
those
plaintiffs
have
offered credible testimony approximating the number of hours they
worked without pay”); see also Adami v. Cardo Windows, Inc., No.
12-2804, 2015 WL 1471844, at *10 (D.N.J. Mar. 31, 2015) (finding
that the plaintiffs had not met their burden because “[a]s in
Kolesnikow, [it was] not a case where [the] [p]laintiffs have
offered
credible
testimony
approximating
the
number
of
uncompensated overtime hours”).
If
the
employee satisfies
this burden,
the
employer
then must “come forward with evidence of the precise amount of
work performed or with evidence to negative the reasonableness of
the inference to be drawn from the employee’s evidence.” Mt.
Clemens, 328 U.S. at 687-88. In the event the employer does not
come forward with such evidence, the court may “award damages to
the employee, even though the result be only approximate.” Id. at
688.
The
“[t]he
Court
Franklin
turns
Township
first
Police
15
to
Defendant’s
Department
argument
properly
that
operates
under 29 U.S.C. § 207(k)” and has a 28-day recurring work period.
(See Brief [Doc. No. 58-4], 4, 8.) Unless a statutory exception
applies, the FLSA requires employers to compensate employees at a
rate “not less than one and one-half times the regular rate at
which [they] are employed” for any hours worked in excess of
forty hours during a work week. See 29 U.S.C. § 207(a). Section
207(k) provides an exemption that eases the requirements of §
207(a)
for
protection
“[e]mployment
or
law
by
public
enforcement
agency
activities.”
engaged
See
28
in
fire
U.S.C.
§
207(k). The exception “‘accommodates the inherently unpredictable
nature of firefighting and police work by permitting employers to
adopt work periods longer than one week.’” Rosano, 754 F.3d at
185 (quoting O’Brien v. Town of Agawam, 350 F.3d 279, 290 (1st
Cir. 2003)). To qualify for the § 207(k) exemption, “(1)‘the
employees at issue must be engaged in fire protection or law
enforcement
within
the
meaning
of
the
statute
and
(2)
the
employer must have established a qualifying work period.’” Id. at
186 (quoting Calvao v. Town of Framingham, 599 F.3d 10, 14 (1st
Cir. 2010)).
A
public
agency
qualifies
for
this
exception
if
it
adopts a work period between seven and twenty-eight days. See 28
U.S.C. § 207(k). If the public agency adopts a 7-day work period,
it need not pay overtime compensation to its law enforcement
employees until they have worked over forty-three hours in a 716
day work period. See 29 C.F.R. § 553.230(c). If the public agency
adopts
a
14-day
work
period,
it
need
not
pay
overtime
compensation to its law enforcement employees until they have
worked more than eighty-six hours in a 14-day period. See id. If
a public agency adopts a 28-day work period, it need not pay
overtime compensation to its law enforcement employees until they
have worked more than 171 hours in a 28-day period. See id. An
employer,
§
however,
207(k)
mandates
“may
opt
without
to
pay
its
forfeiting
employees
the
more
benefits
than
of
the
to
any
exemption.” Calvao, 599 F.3d at 15 (citations omitted).
A
“work
period”
under
§
207(k)
“refers
established regularly recurring period of work.” See 29 C.F.R.
§
553.224(a).
Additionally,
“[a]n
employer
may
have
one
work
period applicable to all employees, or different work periods for
different
employees
or
groups
of
employees.”
See
29
C.F.R.
§ 553.224(b). Pursuant to the applicable regulations the work
period “need not coincide with the duty cycle or pay period or
with a particular day of the week or an hour of the day.” See id.
It is the “cycle of days actually worked that is controlling.”
McGrath v. City of Phila., 864 F.Supp. 466, 478 (E.D. Pa. 1994);
see also Caminiti v. Cty. of Essex, No. 04-4276, 2007 WL 2226005,
at *8 (D.N.J. July 31, 2007) (observing that “[a] work period is
generally categorized by the cycles of days worked and the amount
of days off”). The applicable contract “may well be probative of
17
the type of work period under which the city has chosen to pay
its employees.” See Birdwell v. City of Gadsden, 970 F.2d 802,
806 (11th Cir. 1992). Additionally, although the “‘establishment’
of a [§ 20]7(k) work period may be manifested by an appropriate
public declaration of intent to adopt a work period of between 7
and
28
days,”
McGrath,
864
F.Supp.
at
476
(emphasis
added),
“employers seeking to qualify for the § 207(k) exemption need not
express an intent to qualify for or operate under the exemption.”
Rosano, 754 F.3d at 186. Rather, “[e]mployers must only meet the
factual criteria set forth in § 207(k).” Id.
Ultimately, “[w]hether the employer has proved that he
has adopted a [§ 207(k)] work period is a question for the jury.”
Birdwell, 970 F.2d at 805 (citations omitted); see also Caminiti,
2007 WL 2226005, at *9 (noting “courts have strongly urged that
the
question
of
whether
a
[§]
207(k)
exemption
has
been
established should be left to the jury”); but see McGrath, 864
F.Supp.
at
478
undisputed,
may
whether
employer
“[u]nder
an
such
(reasoning
support
that
only
“a
one
adopted
a
circumstances,
it
[§
certain
inference
20]7(k)
would
be
set
of
with
work
facts,
if
respect
to
period”
appropriate
for
and
the
court to decide the [§ 20]7(k) issue by way of summary judgment”
(internal citation omitted)).
Employers bear the burden of proving the applicability
of an FLSA exception. Corning Glass Works v. Brennan, 417 U.S.
18
188, 196-97 (1974); see also Guthrie v. Lady Jane Collieries,
Inc., 722 F.2d 1141, 1143 (3d Cir. 1983) (stating “[t]he burden
of proof is on the employer to establish an exemption” to the
FLSA). FLSA “exemptions are to be narrowly construed against the
employers seeking to assert them.” Arnold v. Ben Kanowsky, Inc.,
361 U.S. 388, 392 (1960). The Third Circuit has stated that “[a]n
employer seeking to apply an exemption to the FLSA must prove
that
the
employee
and/or
employer
comes
‘plainly
and
unmistakably’ within the exemption’s terms.” Lawrence v. City of
Phila., 527 F.3d 299, 310 (3d Cir. 2008) (quoting Arnold, 361
U.S. at 392).
The parties do not dispute that Defendant is a public
agency or that Plaintiffs are engaged in law enforcement. (See
Def.’s Facts [Doc. No. 58-1], ¶¶ 1-2, 35-40; see also Pls.’ Facts
[Doc.
No.
therefore,
63],
¶¶
1-2,
are whether
35-40.)
Defendant
The
has
only
remaining
established
a
issues,
qualifying
work period and, if so, its length, and it is Defendant’s burden
of proof as to these issues. See Corning Glass Works, 417 U.S. at
196-97; see also Guthrie, 722 F.2d 1143. With respect to those
Plaintiffs who worked 12-hour shifts, the parties dispute the
length of the § 207(k) qualifying work period, and with respect
to
Plaintiff
Gaetano,
who
worked
8-hour
shifts,
the
parties
dispute that a § 207(k) qualifying work period exists. The Court
19
will first address the parties’ arguments with respect to the 12hour shift Plaintiffs.
Defendant argues that with respect to those Plaintiffs
who work 12-hour shifts, FTPD operates on a 28-day work period.
(See
Brief
[Doc.
No.
58-4],
7-8.)
To
support
this
argument,
Defendant cites to the Supplemental Affidavit of Chief Rock who
certifies
that
“Franklin
Township
police
officers
assign
to
patrol work [fourteen] 12-hour shifts in a 28-day work cycle.”
(See Exhibit E [Doc. No. 58-3], ¶ 9.) Specifically, Chief Rock
certifies
that “Franklin
Township
police
officers
assigned
to
patrol work 2 days, are off 2 days, work 3 days, are off 2 days,
work 2 days, and are off 3 days” and that “[t]he pattern repeats
for the remaining time in the 28-day work cycle.” (See id. at ¶
10.) Defendant also cites to the overtime provision of the CBA,
under which “overtime is based, in part, on 168 hours worked in a
28-day cycle,” to support its argument. (See Brief [Doc. No. 584], 7 (emphasis added) (citing Exhibit B [Doc. No. 58-2], 20 on
the docket).)
Plaintiffs argue that with respect to those Plaintiffs
who work 12-hour shifts, FTPD operates on a 14-day work period.
(See Pls.’ Opp’n [Doc. No. 63-1], 9.) To support this argument
Plaintiffs note first that the CBA does not include the word
“‘working
period’”
“[r]esolution
or
and
that
[o]rdinance”
Defendant
which
20
has
“announces
not
the
passed
a
‘regular
recurring’
working
period.”
(See
id.)
Plaintiff
Michael
Marsh
certifies that “[a]s a patrolman, [he] was required to work a 14day work period, seven (7) days on shift and seven (7) days off.”
(Certification of Plaintiff Michael J. Marsh, Jr. (hereinafter,
“Marsh Certification”) [Doc. No. 63-3], ¶ 5.) Plaintiffs maintain
that
the
FTPD’s
undisputed
2-week
pay
period,
supports
their
argument that Defendant has established a 14-day work period.
(See Def.’s Facts [Doc. No. 58-1], ¶ 6; see also Pls.’ Facts
[Doc. No. 63], ¶¶ 6, 16(b).)
Plaintiffs also argue that the testimony of Chief Rock
also supports the argument that Defendant has not established a
§ 207(k) 28-day work period. Specifically, Chief Rock testified
that while officers were required to keep monthly time sheets,
these time sheets were submitted each month, not every twentyeight days, and that payroll did not keep a 28-day pay cycle.
(See Rock Deposition [Doc. No. 58-2], 52:9-18, 36 on the docket.)
Additionally Plaintiffs argue that the “idea” of the FTPD 28-day
work
period
response
“originated”
to
counsel’s
at
Chief
inquiry
Rock’s
deposition,
regarding
the
CBA
when
in
overtime
provision which provides in part that officers are entitled to
overtime for all hours worked in excess of 168 hours in a 28-day
work cycle that he did not “have any understanding as to where
the
168
hours
was
derived.”
(See
Pls.’
Facts [Doc.
No.
¶ 16(a) (citing Rock Deposition [Doc. No. 58-2], 50:7-13).)
21
63],
Defendant argues with respect to Plaintiff Gaetano, who
worked as a detective and a corporal, that “[t]he statute and
regulations permit a regularly recurring work period of [seven]
days” and “[t]hus, Franklin Township complies with all statutory
requirements to operate under 29 U.S.C. § 207(k) with regard to
its police officers, including [P]laintiffs.” (Reply Brief [Doc.
No.
66],
2-3.)
Plaintiffs
argue
with
respect
to
Plaintiff
Gaetano, that the FTPD never implemented a § 207(k) qualifying
work period for his position and therefore, that “[h]e qualifies
for overtime rate payment for work in excess of 40 hours per
week” pursuant to 29 U.S.C. § 207(a)(1). (Pls.’ Opp’n [Doc. No.
63-1],
9.)
In
support
of
their
argument,
Plaintiffs
cite
to
Plaintiff Gaetano’s certification, in which he avers that during
times relevant to the present case, he was “assigned to work 8hour
shifts,
(Certification
5-days
of
a
week
Francesco
with
Gaetano
weekends
off
(hereinafter,
shift.”
“Gaetano
Certification” [Doc. No. 63-4], ¶ 7.) Gaetano certifies that he
“was permitted to work any combination of an 8-hour day which
[he] usually satisfied by working either 7 a.m. to 3 p.m., or 8
a.m. to 4 p.m. and even 9 a.m. to 5 p.m. Monday through Friday.”
(Id.)
After reviewing the summary judgment record, the Court
finds
that
there
remain
genuine
issues
of
material
fact
precluding entry of summary judgment. With respect to the 12-hour
22
shift
Plaintiffs,
Plaintiffs’
evidence
of
the
relevant
pay
schedule, monthly time sheets, lack of a defined work period in
the CBA, and Plaintiff Marsh’s certification that he worked a
fourteen-day work period, although not dispositive, could lead a
reasonable juror to conclude that Defendant did not establish a
28-day work period. This is an issue that is properly left to the
jury. See Singer v. City of Waco, 324 F.3d 813, 818 (5th Cir.
2003)
(reasoning
that
in
a
case
where
a
city
argued
it
established a 28-day work period and its firefighter employees
argued it established a 14-day work period, the issue of “whether
the [c]ity established a 14-day or a 28-day work period[] is a
question of fact, and was properly submitted to the jury”). With
respect to Plaintiff Gaetano, the Court concludes that based on
the
evidence
reasonable
of
juror
Plaintiff
could
Gaetano’s
conclude
that
weekly
work
Plaintiff
schedule,
Gaetano
had
a
a
“traditional workweek requiring overtime after 40 hours” and that
with
respect
to
Plaintiff
Gaetano,
whether
Defendant
has
established that it has “adopted a [§ 20]7(k) work period is a
question for the jury.” Birdwell, 970 F.2d at 805. Consequently,
the Court finds that the issue of whether Defendant has adopted a
qualifying § 207(k) work period cannot be resolved by way of
summary judgment and the Court denies Defendant’s motion on this
ground.
23
The
“Franklin
Court
turns
Township
next
Police
to
Officers
Defendant’s
are
argument
compensated
for
that
muster
time 9 as a component of their base salaries.” (See Brief [Doc.
No. 58-4], 8.) While “federal law governs the construction of a
collective bargaining agreement [], traditional rules of contract
interpretation
apply
when
not
inconsistent
with
federal
labor
law.” Rosano, 754 F.3d 177 (citing In re Teamsters Indus. Emps.
Welfare Fund, 989 F.2d 132, 135 (3d Cir. 1993)). The Supreme
Court
has
reasoned
though,
that
“[a]
collective
bargaining
agreement is not an ordinary contract for the purchase of goods
and
services,
nor
is
it
governed
by
the
same old
common-law
concepts, which control such private contracts. Transp.-Commc’n
Emps. Union v. Union Pac. R.R. Co., 385 U.S. 157, 160-61 (1966)
(citations
omitted).
Furthermore,
“[t]he
collective
agreement
covers the whole employment relationship. It calls into being a
new common law – the common law of a particular industry.” Id. at
161.
“[T]o
consider
interpret
the
scope
such
of
an
agreement,
other
related
it
is
necessary
collective
to
bargaining
agreements, as well as the practice, usage and custom pertaining
to all such agreements.” Id.; see also Babcock v. Butler Cty.,
806 F.3d 153, 158 (3d Cir. 2015) (observing that in FLSA cases a
collective bargaining agreement is “one relevant – though not
9
Defendant defines “muster time” as “time officers spend prior
to the start of their tours of duty.” (Brief [Doc. No. 58-4], 4.)
24
dispositive
–
factor”
in
determining
whether
officers
are
entitled to pay during a meal break).
The FLSA requires employers to pay employees for all
work performed. See 29 U.S.C. §§ 206, 207. “[E]ven where [a] lack
of
accurate
records
grows
out
of
a
bona
fide
mistake
as
to
whether certain activities or non-activities constitute work, the
employer,
having
received
the
benefits
of
such
work,
cannot
object to the payment for the work on the most accurate basis
possible under the circumstances.” Mt. Clemens, 328 U.S. at 688;
see also Kuebel v. Black & Decker, Inc., 643 F.3d 352, 361 (2d
Cir. 2011) (observing “[t]o establish liability under the FLSA on
a
claim
for
unpaid
overtime,
a
plaintiff
must
prove
that
he
performed work for which he was not properly compensated, and
that the employer had actual or constructive knowledge of that
work”). As noted supra, to recover damages under the FLSA in the
absence of employer records, an employee must show “he [or she]
has
in
fact
performed
work
for
which
he
was
not
properly
compensated, and produce sufficient evidence to show the amount
and
extent
of
that
work
as
a
matter
of
just
and
reasonable
inference.” Martin, 949 F.2d at 1298.
The first count of Plaintiffs’ complaint alleges, in
part, that Defendant “require[es] Plaintiffs to report to work 10
minutes
in
advance
of
their
officially
assigned
shift”
and
“require[es] and/or permit[s] Plaintiffs to work beyond the end
25
of
their
shift”
without
compensation.
(See
Amended
Complaint
[Doc. No. 3], ¶ 63.) With respect to this portion of Plaintiffs’
complaint, Defendant argues “Franklin Township Police Officers
are compensated for muster time as a component of their base
salaries.” (See Brief [Doc. No. 58-4], 13.) Defendant argues that
“the Third Circuit has recognized that muster time . . . may be a
component of the negotiated salary for police officers.” (Id. at
8 (citing Rosano, 754 F.3d at 192).) Defendants further assert
that here, as in Rosano “muster time is included in the officers’
negotiated
base
salary”
because
the
relevant
CBA
language
“provides for an officer leaving early but still being credited
and paid for a full shift.” (Id. at 10, 13.) Defendant maintains,
also, that if Franklin Township patrol officers work “beyond the
12 hours of their shifts” they “are entitled to overtime upon
submission of a voucher.” (Id. at 12.)
Plaintiffs maintain the present case is distinguishable
from Rosano 10 because the CBA and factual circumstances considered
10
In Rosano, the governing CBA had a provision which required
officers to report for muster time ten minutes prior to the start
of an “eight-hour tour” and remain for muster time for ten
minutes at the conclusion of the tour. 754 F.3d at 182. In
Rosano, the plaintiffs, who were current and former police
officers, filed a complaint against the township seeking
compensation under the FLSA for time spent during muster time.
Id. at 183. The Third Circuit affirmed the district court’s grant
of summary judgment to the defendant with respect to the
plaintiffs’ muster time argument finding, in the “matter of
contract interpretation” that “muster time was a component of an
officer’s daily tour schedule.” Id. at 190-92. As noted by
26
by the Rosano court are not identical to the circumstances in the
present
case.
(Pls.’
Opp’n
[Doc.
No.
63-1],
10,
13-14.)
Plaintiffs argue that there is no evidence that any plaintiff was
“relieved earlier than her/his shift and worked less than a 12
hour or 8 hour day to compensate for the early-in time.” 11 (Id. at
14.) Plaintiffs argue that they are entitled to overtime pay for
any time worked in excess of a normal shift, but assert that they
“did not submit vouchers for such overtime because they were not
aware they could do so.” (Id. at 14-15.) Plaintiffs also argue
that because “the bookkeeping and timekeeping responsibilities
belong to the employer, not the employee . . . Plaintiffs are
entitled to pursue their claim for reimbursement of all time for
which they were not compensated.” (Id. at 15-16.)
The relevant portion of the CBA provides:
Plaintiffs, the language of the CBA considered in Rosano and the
CBA the Court is considering here are not identical.
11 The Court notes that Plaintiffs argue, for the first time in
their opposition brief, that patrol officers were required to
report to work thirty minutes prior to the start of their shifts
and that detectives and corporals were required to report to work
ten minutes prior to the start of their shifts. (See Pls.’ Opp’n
[Doc. No. 63-1], 10.) In its reply brief, Defendant disputes
Plaintiffs’ argument that certain officers were required to
report to work thirty minutes prior to the start of their shifts.
(See Reply Brief [Doc. No. 66], 8.) In support of this argument
Defendant has provided two certifications from FTPD employees.
(See Exhibit A [Doc. No. 66-1], Affidavits of Kenneth Crescitelli
and Vincent DiPietro.) Here, the Court will address only
Defendant’s argument with respect to the ten minutes of muster
time cited in Plaintiffs’ Amended Complaint (see generally
Amended Complaint [Doc. No. 3]), contained in the CBA, and
addressed by Defendant’s motion for summary judgment. (See Brief
[Doc. No. 58-4], 8-13.)
27
The regular schedule for employees will be
at the discretion of the Chief of Police or
his/her designee and will generally be an
eight (8), ten (10) or twelve (12) hour
shift with the following exceptions:
A ‘duty day’ begins at ten (10)
minutes prior to the start of the
shift and ends on the hour, either
eight (8) hours and ten (10)
minutes later, ten (10) hours and
ten
(10)
minutes
later[,]
or
twelve (12) hours and ten (10)
minutes later or when the officer
is relieved, whichever is sooner.
Specifically, officers shall be
prepared to assume normal patrol
duties ten (10) minutes prior to
the hour.
(See
Exhibit
B
[Doc.
No.
58-2],
21
on
the
docket
(emphasis
added) (setting forth Article IX, ¶ C(1) of the CBA).) Chief
Rock
testified
that
for
a
12-hour
shift,
an
officer
is
not
“expect[ed] to work a minimum of 12 hours [and] 10 minutes” but
rather
that
the
“[i]f
the
officer
is
relieved
sooner,
[the
officer] may work less.” (See Rock Deposition [Doc. No. 58-2],
41:5-11, 34 on the docket.) Chief Rock also testified that if an
officer worked ten minutes in excess of a 12-hour shift, the
officer
would
be
entitled
to
overtime
compensation,
if
the
officer “fill[s] out [a] voucher to get paid.” 12 (See id. at
12
Plaintiffs also all certify that “[w]e did not submit vouchers
for overtime because we were not aware we could do so and assumed
vouchers were for pre-authorized overtime tasks, events or
expenses such as traffic details, third party paid vendor events
or shortage of staff call-ins on days off.” (See Marsh
Certification
[Doc.
No.
63-3],
¶
23;
see
also
Gaetano
28
42:11-18,
34
on
the
docket.)
Plaintiffs
do
not
dispute
that
pursuant to the CBA, an officer working a 12-hour shift would be
relieved
from
whenever
the
Pls.’
Facts
however,
duty
either
officer
[Doc.
that
is
No.
despite
after
12
relieved,
63],
this
¶
hours
and
whichever
20.)
10
is
sooner.
Plaintiffs
provision
they
minutes
all
have
or
(See
certify,
never
been
relieved early from duty. (See Marsh Certification [Doc. No. 633], ¶ 15; see also Gaetano Certification) [Doc. No. 63-4], ¶ 18;
see also Hughes Certification [Doc. No. 63-5] ¶ 9; see also
Rausch
Certification
Certification”
[Doc.
[Doc.
No.
No.
63-6],
63-7],
¶
¶
14;
14;
see
see
also
also
Little
“Parisi
Certification” [Doc. No. 63-8], ¶ 14.)
After
reviewing
the
summary
judgment
record,
the
Court finds that there remain genuine issues of material fact
precluding entry of summary judgment. Specifically, with respect
to the CBA’s “muster time” provision, Plaintiffs’ certifications
that they were never relieved early from a shift, although not
dispositive, could lead a reasonable juror to conclude that the
“muster time” provision is not contemplated as a component of
Certification) [Doc. No. 63-4], ¶ 25; see also Certification of
Plaintiff Estelle M. Hughes (hereinafter, “Hughes Certification”)
[Doc. No. 63-5] ¶ 22; see also Certification of Plaintiff James
M. Rausch, Jr. (hereinafter, “Rausch Certification”) [Doc. No.
63-6], ¶ 22; see also Certification of Plaintiff Thomas C. Little
(hereinafter, “Little Certification”) [Doc. No. 63-7], ¶ 22; see
also Certification of Plaintiff Vincent C. Parisi (hereinafter,
“Parisi Certification”) [Doc. No. 63-8], ¶ 22.)
29
the officers’ base salaries, and that the officers are entitled
to compensation for their shifts. Consequently, the Court finds
that the issue of whether “muster time” is contemplated as a
component of the officers’ base salaries cannot be resolved by
way of summary judgment and the Court denies Defendant’s motion
on this ground.
The Court turns next to Defendant’s argument that “the
use
of
Franklin
Township
police
vehicles
by
township
police
officers for commuting to and from the police station is not
compensable time under federal law.” (See Def.’s Brief [Doc. No.
58-4], 13.) The first count of Plaintiffs’ complaint alleges, in
part, that Defendant has violated the FLSA by “failing and/or
refusing to pay Plaintiffs for duty work performed on the way to
the
police
station
pre-shift
start
time.”
(Amended
Complaint
[Doc. No. 3], ¶ 63.) Under most circumstances, employers are not
required
traveling
employment
to
to
compensate
and
or
from
for
employees
the
actual
“activities
for
“walking,
place
which
are
of
riding,
or
performance”
of
preliminary
to
or
postliminary to said principal activity or activities.” 29 U.S.C.
§
254(a)(1)-(2);
see
also
Steiner
v.
Mitchell,
350
U.S.
247
(1956) (holding “activities performed either before or after the
regular work shift . . . are compensable under the portal-toportal
provisions
activities
are
an
of
the
Fair
integral
Labor
and
30
Standards
indispensable
Act
part
if
of
those
the
principal activities for which covered workmen are employed and
are not specifically excluded by [the Act]”).
Pursuant to 29 C.F.R. § 553.221(f),
[a] police officer who has completed his or
her tour of duty and who is given a patrol
car to drive home and use on personal
business, is not working during travel time
even where the radio must be left on so that
the officer can respond to emergency calls.
Of course, the time spent in responding to
such calls is compensable.
Defendant
argues
that
its
policy
with
respect
to
officers’ use of police cruisers to commute complies with the
FLSA and that Plaintiffs have offered no evidence to establish
that they are not compensated if they have answered a call when
commuting. (Brief [Doc. No. 58-4], 17.)
Franklin Township has a policy whereby officers who are
township residents may use police cruisers to commute to and from
the police station. (See Def.’s Facts Doc. No. 58-1], ¶ 32; see
also Pls.’ Facts [Doc. No. 63], ¶ 32.) Pursuant to the policy,
all officers are required to notify dispatch when they leave and
arrive at home. (See Def.’s Facts [Doc. No. 58-1], ¶¶ 34-36; see
also Pls.’ Facts [Doc. No. 63], ¶¶ 34-36.) If an emergency occurs
during an officer’s commute, “dispatch may call an officer’s car
and request that the officer assist in the call” and if that
happens, “the officer is entitled to compensation and is expected
to turn in a payroll voucher for such compensation.” (See Def.’s
31
Facts [Doc. No. 58-1], ¶ 38; see also Pls.’ Facts [Doc. No. 63],
¶ 38.)
Plaintiffs do not seek reimbursement for all time they
have spent commuting to and from the police station, rather they
“seek reimbursement for time worked when responding to the calls
that they did receive on their way to work or from the police
station” and argue they “have never before sought reimbursement
for this time because they were unaware that under the FLSA such
time
is
compensable.”
(Pls.’
Opp’n
[Doc.
No.
63-1],
18.)
Specifically, Plaintiffs argue “[t]here are no signs, no manuals,
no literature within the department which describes what does
and/or does not constitute overtime.” (Id.) The only evidence
Plaintiffs
provide
to
support
this
argument
is
the
following
paragraphs in each certification:
The
other
Plaintiffs
involved
in
this
litigation and I can cumulatively recall at
least twenty (20) occasions which we have
responded to police matters while operating
our patrol vehicles on the way to or on the
way home from the Franklin Township Police
Department within the relevant period for
which we have not been compensated at base
pay, regular rate of pay or overtime pay.
(See Marsh Certification [Doc. No. 63-3], ¶ 22; see also Gaetano
Certification
[Doc.
No.
63-4],
¶
24;
see
also
Hughes
Certification [Doc. No. 63-5] ¶ 21; see also Rausch Certification
[Doc. No. 63-6], ¶ 21; see also Little Certification [Doc. No.
32
63-7],
¶
21;
see
also
The
Court
Parisi
Certification
[Doc.
No.
63-8],
¶ 21.)
finds
Plaintiffs
identical
certifications
have failed to provide sufficient evidence from which the Court
can
reasonably
infer
the
amount
of
time
Plaintiffs
spent
responding to emergency calls while commuting. See Martin, 949
F.2d at 1291. This vague “estimation of damages” which “does not
account for day-to-day differences in officer scheduling, hardly
provides
a
foundation
for
an
inquiring
court
to
‘reasonably
infer[]’ FLSA violations or the amount of an award.” Rosano, 754
F.3d at 189 (alterations in original)(quoting Martin, 949 F.2d at
1297).
In considering the summary judgment record, the Court
finds,
that
with
respect
to
Plaintiffs’
claim
that
Defendant
violated the FLSA by “failing and/or refusing to pay Plaintiffs
for duty work performed on the way to the police station preshift time (see Amended Complaint [Doc. No. 3], ¶ 63.), that
Defendant has established “an absence of evidence to support the
[Plaintiffs’]
sufficient
case,”
evidence
and
that
Plaintiffs
a
material
have
failed
issue
of
to
present
fact
exits.
Consequently, the Court finds Defendant is entitled to summary
judgment on this issue. 13
13
To the extent Plaintiffs argue Defendant’s “motion does not
substantively
address
all
of
the
claims
raised
in
the
33
Consequently, for the reasons set forth, and for good
cause shown, Defendant’s motion for summary judgment [Doc. No.
58] is granted in part and denied in part. An appropriate order
will be entered.
Date: December 23, 2015
s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
[c]omplaint” (Pls.’ Opp’n [Doc. No. 63-1], 18), the Court notes
that this Opinion addresses only those arguments raised by
Defendant’s motion [Doc. No. 58].
34
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