STEWART et al v. PEMBERTON TOWNSHIP et al

Filing 175

MEMORANDUM. Signed by Judge Harvey Bartle (EDPA), III on 8/26/2020. (rss, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
THOMAS STEWART II, et al.
v.
PEMBERTON TOWNSHIP, et al.

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CIVIL ACTION

NO. 14-6810

MEMORANDUM
Bartle, J.

August 26, 2020

Plaintiffs are 32 law enforcement officers1 who bring
this action against defendants Pemberton Township in Burlington
County, New Jersey (“Township”) and Mayor David A. Patriarca, in
his official capacity only (“defendants”) alleging a violation
of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq.
(“FLSA”) and retaliation.

Plaintiffs, who at the time were all

employed by the Township as members of its Police Department,
allege that defendants failed to pay them overtime wages for pre
and post shift work between November 2011 and October 2014 and
then retaliated against them after they filed their initial

Plaintiffs in this action are: Thomas Stewart II, Peter
Delagraza, Michael Geibel, Shannon Fallen, Robert A. Shinn,
Jason Luis, Arthur H. Shinn, John Hall, Daniel Matthews, Anthony
Luster, Wayne Davis, Vincent Cestare, Jason M. Gant, Michael C.
Brewer, Bruce Phillips, Sean Smith, Shannon Lagaff, Thomas
Lucas, Edward N. White, Andre Byrd, David Geibel, Perry J.
Doyle, Robert Hood, Kenneth M. Volk, John P. Laffan, Johnathan
R. Glass, Shaun Meyers, Michael Bennett, David Sawyer, Charles
Bennett, Stephen Price, and Justin Kreig.
1

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complaint in this court on October 30, 2014.2

Before the Court

is the motion of defendants for summary judgment under Rule 56
of the Federal Rules of Civil Procedure.
I
Under Rule 56 of the Federal Rules of Civil Procedure,
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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).

A dispute is genuine if the evidence is such that a

reasonable factfinder could return a verdict for the nonmoving
party.
(1986).

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
“The mere existence of a scintilla of evidence in

support of the [nonmoving party]’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for [that party].”

Id. at 252.

We view the

facts and draw all inferences in favor of the nonmoving party.
See In re Flat Glass Antitrust Litig., 385 F.3d 350, 357
(3d Cir. 2004).
II
The following facts are undisputed.

Plaintiffs were

all law enforcement officers with the Township Police

Plaintiffs are now on their fourth amended complaint.
Doc. # 127.
2

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See

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Department.3

They were also members of the Policemen’s

Benevolent Association Local 260 (the “PBA”).

The PBA and the

Township entered into two successive collective negotiation
agreements (“CNA”) which set the terms and conditions of
plaintiffs’ employment.

The first applicable CNA was in effect

as of January 1, 2010 through December 31, 2013 and the second
CNA from January 1, 2014 through December 31, 2017.

The CNAs

included a “grievance and arbitration procedure concerning the
improper application, interpretation or violation of [CNA] or
administrative policies and practices.”
The Township has maintained a timeclock4 policy since
June 10, 2010, prohibiting pre and post shift work.

It states,

in relevant part:
Employees are required to ‘clock in’ and
‘clock out’ at their scheduled times.
As a convenience to employees, employees may
clock in up to 7 minutes prior to the start
of their scheduled work time. However,
employees shall not engage in any work
during that time. In such cases, the
employee will not be compensated for the
It has been reported to the Court that as of October 2,
2019, Patrolmen Robert Shinn, Edward White, Andrew Byrd, , Wayne
Davis, Thomas Stewart, II, David Geibel, ,Jr., Daniel Matthews,
Kenneth Volk, Shaun Myers, Arthur Shinn, and Justin Kreig
retired from the Township Police Department and Patrolmen
Charles Bennett, Michael Bennett and Jason Kreig resigned from
the Township Police Department.
3

The parties use “timeclock policy” and “timecard policy”
interchangeably to describe the Township’s policies to clock in
and clock out of a scheduled shift.
4

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time on the clock until the start of the
employee’s scheduled work time.
Likewise, employees may clock out up to 7
minutes after the end of their scheduled
work time. However, employees shall not
engage in any work during the time after the
end of their shift. In such cases, the
employee will not be compensated for the
time on the clock after the end of the
employee’s scheduled work time.
In both cases, an employee will be
compensated for work performed before and
after the employee’s scheduled work time
only for actual work (and subject to the
rounding policy). Actual work may only be
performed if overtime has been expressly
approved by the employee’s supervisor in
accordance with overtime approval
procedures. [Emphasis added].
The timeclock policy was incorporated into the CNAs by
reference.
In 2000, before the implementation of the 2010
timeclock policy, the Township had put in place a policy which
required pre and post shift work.

It provided that:

Prior to the start of each shift the officer
assigned to patrol duties and in a vehicle
equipped with MVR [Mobile Vision Recording]
equipment shall determine whether the MVR
equipment is working satisfactorily and
shall bring any problems to the attention of
the shift supervisor.
The policy was updated in 2006:
Prior to the start of each shift the officer
assigned to patrol duties and in a vehicle
equipped with Arbitrator video recording
system shall determine whether the MVR
equipment is working satisfactorily and
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shall bring any problems to the attention of
the shift supervisor. The functional check
shall include both audio and video
components.
Robert Lewandowski, who was the chief of the Police Department
between November of 2007 and July of 2010, testified that at
that time it was “cultural knowledge” that officers were
expected to prepare their vehicle and equipment before the
scheduled start of their shift.
On or about October 31, 2013, Patrolman Hood, one of
the plaintiffs in this case, was injured while walking out of
the police station to set up his vehicle before his shift
started.

Following this incident, the Township Administrator,

Dennis Gonzalez, made inquiries of the Police Department to
determine how and why Patrolman Hood was performing pre-shift
work.

Following the Hood incident, PBA’s attorney, Christopher

Gray, also plaintiffs’ attorney in this case, emailed the
Township’s Labor Counsel on November 8, 2013.

He wrote that

patrol officers will:
show up for work and clock in at 7:00. They
will be in uniform with their equipment belt
on and will then set up their vehicles after
7:00 . . . Officers will not perform any
work functions prior to or after 7:00 shift
change.
As noted above, plaintiffs filed their initial
complaint against defendants in this court on October 30, 2014.
On November 5, 2014, the Township changed schedules for patrol
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police officers from twelve to eight-hour shifts.

Two days

later, the police locker room was temporarily unavailable to
officers because of renovations.

On November 7, 2014, Chief

Jantas issued a special order, updating the regulations of the
police department to state:
No member shall perform, and no Sergeant O/C
shall permit, any member to perform any
actual work, or function that maybe
considered and/or construed to be work
related prior to the precise starting time
of any shift or after the precise ending
time of any shift.
A few days later, on November 10, 2014, the Township issued a
press release after the complaint was filed, calling the lawsuit
“frivolous” and denying any allegations in the complaint.

The

press release stated that, “the residents of Pemberton Township
deserve much better than the nonsense filed by the 33
plaintiffs” and that the Township planned to defend the lawsuit
“vigorously.”

The following week, on or about November 13,

2014, the Township filed “internal affairs complaints”5 against
plaintiffs.

No action was ever taken on these complaints.
III

Defendants first assert that summary judgment should
be granted because plaintiffs failed to file grievances about

The complaint and the summary judgment briefs do not
include an explanation of procedures or statutory basis for
these complaints.
5

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their pay under the procedures provided in the CNAs.

The CNAs

specify that a grievance is “a complaint that there has been an
improper application, interpretation, or violation of this
Agreement or administrative policies and practices.”

The CNAs

also set forth a process to be followed in order to file a
grievance.

Ultimately, if the grievance cannot be resolved, it

must be submitted for arbitration.

According to defendants,

plaintiffs’ complaint is “indisputably related to the
interpretation of the CNAs” and should therefore, have been
addressed through the outlined grievance and arbitration
procedure and, not a FLSA claim filed in court.
Congress enacted the FLSA in 1938 for the purpose of
rectifying labor conditions which were “detrimental to the
maintenance of the minimum standard of living necessary for
health, efficiency, and general well-being of workers.”
U.S.C. § 202.

See 29

As a result, the FLSA was designed to give

specific protections to individual workers and to ensure that
each employee covered by the Act would receive “a fair day’s pay
for a fair day’s work” and would be protected from “the evil of
overwork as well as underpay.”

Barrentine v. Arkansas-Best

Freight Sys., Inc., 450 U.S. 728, 739 (1981) (internal citations
and quotations omitted).

The FLSA generally requires employers

to pay overtime compensation after an employee works more than
40 hours in a single week.

See 29 U.S.C. § 207(a)(1).
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Plaintiffs contend that the FLSA allows them to file
their complaint directly in federal court because the “FLSA
trumps collective bargaining agreements.”

According to

plaintiffs, the “arbitration process would fail to properly
redress [their] concerns” and arbitration of the issues raised
would be “futile” since an arbitrator cannot strike any
provisions of a contract or award counsel fees.
The FLSA provides “minimum substantive guarantees to
individual workers.”

Barrentine, 450 U.S. at 737 (1981).

The

Supreme Court has explained that it has:
frequently emphasized the nonwaivable nature
of an individual employee’s right to a
minimum wage and to overtime pay under the
Act. Thus, we have held that FLSA rights
cannot be abridged by contract or otherwise
waived because this would nullify the
purposes of the statute and thwart the
legislative policies it was designed to
effectuate.
Id. at 1444–45 (internal quotations and citations omitted).
Furthermore, the Court stated that “arbitrators very often are
powerless to grant the aggrieved employees as broad a range of
relief.

Under the FLSA, courts can award actual and liquidated

damages, reasonable attorney's fees, and costs.”

Id. at 1447.

Defendants’ reliance on Vadino v. A. Valey Engineers,
903 F.2d 253 (3d Cir. 1990) is misplaced.

In Vadino, plaintiff

brought suit under both the Labor Management Relations Act and
the FLSA.

He claimed first that he was paid less than what was
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provided for in the collective bargaining agreement (“CBA”).

He

asserted that he was entitled to a journeyman’s pay rate under
the CBA but was being paid at the apprentice’s rate.
addition, he claimed that he was due overtime pay.

In
The Court of

Appeals held that the rate of pay due to plaintiff was a matter
that must initially be decided pursuant to the terms of the CBA.
His FLSA claim would then be dependent on the resolution of his
rate of pay.

In contrast, the plaintiff patrol officers here do

not dispute their rate of pay, only the issue of overtime.
The grievance procedure under the CNA does not and
cannot limit plaintiffs’ ability to seek redress in federal
court for an FLSA violation.

Barrentine, 450 U.S. at 728.

Accordingly, the motion of defendants for summary judgment for
failure to arbitrate under the grievance procedures of the CNAs
will be denied.
IV
Next, defendants assert that summary judgment should
be granted on the merits as to plaintiffs’ claim for violation
of the FLSA.

Defendants argue that:

(1) the Township’s 2010

timeclock policy against pre and post shift work meets FLSA
requirements; and (2) the pre-2010 policies requiring such work
are irrelevant to the FLSA claims.

Plaintiffs counter that the

Police Department’s implementation of the timeclock policy
violated the FLSA.

According to plaintiffs, superiors at the
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police department were aware that officers were engaging in pre
and post shift work and deliberately disregarded the timeclock
policy.
The FLSA requires that unless exempted, an employee
who works “a workweek longer than forty hours” must be paid at
least one and one-half times the employee’s regular rate for the
work performed over forty hours.

See 29 U.S.C. § 207.

An

employee who is not paid for this excess time may bring suit
under the FLSA.

See 29 U.S.C. § 216(b).

Significantly, the

Department of Labor regulations provide that, “[w]ork not
requested but suffered or permitted is work time.”
C.F.R. § 785.11.

See 29

If the employer “knows or has reason to

believe that the work is being performed, [the employer] must
count the time as hours worked.”

See 29 C.F.R. § 785.12.

The

regulations also state that:
In all such cases it is the duty of the
management to exercise its control and see
that the work is not performed if it does
not want it to be performed. It cannot sit
back and accept the benefits without
compensating for them. The mere promulgation
of a rule against such work is not enough.
Management has the power to enforce the rule
and must make every effort to do so.
See 29 C.F.R. § 785.13.
Plaintiffs maintain that the Township and the leaders
at the Police Department were aware that officers were doing pre
and post shift work from November 2011 through October 2014 and
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intentionally disregarded the 2010 timeclock policy which
prohibited such pre and post shift work.

Robert Lewandowski,

who was the Chief of the Police Department between November of
2007 and July of 2010, testified that it was “cultural
knowledge” that officers were expected to prepare their vehicle
and equipment before the scheduled start of their shift.

Even

after the timeclock policy was implemented in June 2010,
plaintiffs have testified that Chief Lewandowski and Chief
Jantas were aware of and encouraged officers to disregard the
timeclock policy during their respective time as Chiefs.

Two

plaintiffs have testified that officers were told to clock in
within seven minutes of their scheduled shift and to ready their
vehicles before the start of their shift.

Plaintiff Michael

Geibel testified that David Jantas, who was Police Chief since
July 2010, was specifically aware that officers were doing pre
and post shift work.

According to Geibel, on one occasion, when

discussing pre and post shift work, Jantas told him: “they [the
Township] can make the policies, but I run the day-to-day
operations and we are going to do what we have to do to make it
work.”
In contrast, defendants have provided evidence that
they were not aware of and did not condone pre and post shift
work.

Chief Jantas testified that prior to the Hood incident,

he was not “aware of any practice or efforts by officers that
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did any work prior to the start of their work.”

He also

testified that he “was never put under undue pressure to be in
early” from his superiors when he first began working in 1994.
Lt. Bogdanowitz also testified that, “officers are not mandated
in any way to perform duty off the clock.”

Similarly, when

asked at his deposition whether he was aware of any claim that
officers were working prior to the start of their scheduled
shift, Dennis Gonzalez, the Township Administrator, testified
that he “was not aware” of anything of this sort.
After Patrolman Hood’s accident on October 31, 2013,
Gonzalez investigated the matter and informed Chief Jantas that
if officers were coming in early, that practice had to
“absolutely stop.”

Gonzalez contends that it was not until

Patrolman Hood’s accident that he first became aware that some
officers were doing pre and post shift work and “took immediate
action to investigate.”

He directed Chief Jantas to “explicitly

prohibit” others from violating the policy.
In sum, there is evidence that patrol officers were
doing pre and post shift work without extra pay during the
period of November 2011 through October 2014.

The testimony is

conflicting on the crucial question of whether the Township knew
or had reason to believe that this work was being performed up
through November 8, 2013.

Simply because such work was

prohibited on paper or not mandated does not answer that
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question.

Genuine disputes of material fact exist to whether

the Township knew about or had reason to believe that pre and
post shift work was occurring from 2011 through November 8,
2013, despite a policy to the contrary.

See 29 C.F.R. § 785.12.

As noted above, on November 8, 2013, shortly after
Hood’s accident, Christopher Gray, the attorney for the PBA,
informed the Township that officers would not be doing any pre
or post shift work thereafter.

Plaintiffs point to no evidence

that the Township knew or had reason to believe that officers
were continuing to perform work pre and post shift after the
Union’s attorney told the Township that such work would not take
place.6
Accordingly, the motion of defendants for summary
judgment on the FLSA claim under Rule 56 of the Federal Rules of
Civil Procedure will be denied for any claim of damages on or
before November 8, 2013 but granted for any claim of damages
after November 8, 2013.

Our Court of Appeals has observed that, “[j]udges are not
like pigs, hunting for truffles buried in briefs.” United
States v. Starnes, 583 F.3d 196, 216 (3d Cir. 2009)
(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir.1991) (internal quotation marks omitted)). If additional
factual support for plaintiffs’ claim exists in the record, it
was incumbent upon them to direct the Court’s attention to those
facts.
6

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V
Finally, plaintiffs claim that defendants retaliated
against them for filing their initial complaint under the FLSA
in this court on October 30, 2014.

Where there is no direct

evidence of retaliation, as here, claims alleging retaliation
are analyzed under the McDonnell Douglas burden-shifting
framework.

Cononie v. Allegheny Gen. Hosp., 29 Fed. Appx. 94,

95 (3d Cir. 2002).
establish that:

Under this framework, plaintiffs must first

(1) they engaged in a protected activity; (2)

the employer took an adverse employment action against them; and
(3) there was a causal connection between their participation in
the protected activity and the adverse employment action.

Young

v. City of Phila. Police Dep’t, 651 F. App’x 90, 95 (3d Cir.
2016).
If plaintiffs succeed in making out a prima facie
case, the burden of production then shifts to defendants to come
forward with a legitimate, nondiscriminatory reason for the
alleged retaliatory conduct.

See Scheidemantle v. Slippery Rock

Univ., 470 F.3d 535, 539 (3d Cir. 2006).

If defendants are able

to provide such a reason, the burden of production shifts back
to plaintiffs to produce evidence that the proffered reason is
merely a pretext for actual discrimination.

See Fuentes v.

Perskie, 32 F.3d 759, 763-64 (3d Cir. 1994) (citing St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993)).
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At all

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times the ultimate burden of persuasion rests with the
plaintiffs.

See id. at 763 (citing Texas Dep't of Comm. Affairs

v. Burdine, 450 U.S. at 253, 254, 256 (1981)).
Plaintiffs allege that defendants retaliated against
them for filing their initial complaint on October 30, 2014 by:
(1) changing patrol shifts for officers from twelve-hours to
eight-hours; (2) removing access to their locker room for a
period of time; (3) filing internal complaints against them; and
(4) issuing a “misstatement of fact press release.”

Defendants

do not challenge plaintiffs with respect to the prima facie
case.

Instead defendants maintain that there were legitimate

business purposes for their actions.
Defendants rely on undisputed evidence that the change
from a twelve to eight-hour shift was within the authority of
the Township.

Such a change had been part of an ongoing policy

discussion that had contemplated such a move since 2009.

While

the twelve-hour shift had been negotiated by the PBA, Section VI
of the CNA in effect at the time provides that work schedules
would be at the “Township’s discretion.”

The CNA further

states, in relevant part, that:
The Township herby retains and reserves unto
itself, without limitations, all powers,
rights . . . [t]o the executive management
and administrative control of the Township
Governments and its properties and
facilities and the activities of its
employees.
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The mayor asked Chief Jantas to conduct research and look into
changing patrol schedules to save money in overtime costs.
According to the record, the change in shift hours was
associated with “manpower” and “feasibility” issues with the
Police Department.

Plaintiffs have offered no contrary

evidence.
Defendants here presented evidence that access to the
“locker room was never actually removed,” but temporarily
suspended for renovations.

The mayor testified that it was done

to “eliminat[e] extraneous access” and to stop “officers [from]
com[ing] in whenever they wanted to.”

Again, this evidence is

undisputed.
Defendants also claim that the “internal affairs
complaints”7 were “filed in order to address ongoing policy
violations, not in retaliation to plaintiffs’ complaint.”
According to defendants, the Township does not have the
authority to compel officers to follow its timeclock policy.
The internal complaints were an attempt to resolve this issue
and the “best” avenue to “force” the Police Chief to conduct an

As noted above, the complaint and the summary judgment
briefs do not include an explanation of procedures under which
these complaints were filed. Dennis Gonzalez testified that the
complaints were filed “under the internal affairs guidelines,”
but there is no further description of the “internal affairs
complaints.”
7

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investigation into the pre and post shift work practice.

In any

event, no action was taken against plaintiffs as a result of the
internal affairs complaints and plaintiffs did not suffer any
adverse employment action.

Plaintiffs offer no evidence to the

contrary or show that the Township had no legal right to file
internal affairs complaints.
Finally, plaintiffs assert that defendants retaliated
by circulating “a false press release attacking the plaintiffs
in an attempt to smear [them].”

Press releases are legitimate

means for local government agencies to share information and
updates with their constituents.

The press release here, not

surprisingly, presents the defendants’ side of the story and
includes a statement that the “frivolous lawsuit shall be
defended vigorously.”

While it is strongly worded, it is

clearly not retaliatory conduct.
If defendants are able to provide a legitimate
business reason for the alleged retaliatory actions, then the
burden of production shifts back to plaintiffs to produce
evidence that the proffered reason is merely a pretext for
actual discrimination.

See Fuentes v. Perskie, 32 F.3d 759,

763-64 (3d Cir. 1994).

To show pretext, plaintiffs must point

to some evidence, direct or circumstantial, from which a
factfinder could reasonably either: (1) disbelieve the
employer’s articulated legitimate reasons; or (2) believe that
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an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action.

Id.

at 764.
Plaintiffs have failed to produce any evidence to
create a genuine dispute of material fact regarding whether the
reasons offered by defendants for the alleged retaliatory
conduct were pretextual.

Plaintiffs claim that each alleged

retaliatory action “was done for the purpose to punish and
attempt to discredit the [p]laintiffs merely for filing the
complaint.”

However, based on the evidence provided, no

reasonable factfinder could conclude that the alleged actions
were taken for any reason other than the legitimate business
reasons presented by the defendants or that plaintiffs suffered
any damages as a result.
Accordingly, the Court will grant the motion of
defendants for summary judgment as to plaintiffs’ claim for
retaliation under the FLSA.

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