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Anthony Lesane, et al. v. Donald C. Winter

December 30, 2011

ANTHONY LESANE, ET AL. PLAINTIFFS,
v.
DONALD C. WINTER, SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Anthony Lesane and 19 other Navy police officers bring this collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., alleging that they are entitled to compensation for the time it takes them to don and doff their uniforms, protective gear, and firearms.*fn1 Currently before the Court is [32] Defendant Secretary of the Navy's ("Navy") motion for summary judgment. For the reasons set forth below, the Court will deny the Navy's motion.

BACKGROUND

Plaintiffs are police officers with the Office of Naval Intelligence ("ONI") who patrol the Naval Maritime Intelligence Center ("NMIC") in Suitland, Maryland. Three shifts of police officers patrol NMIC around the clock. The day shift runs from 6:00 a.m. to 2:30 p.m.; the "swing shift" runs from 2:00 p.m. to 10:30 p.m.; and the night shift runs from 10:00 p.m. to 6:30 a.m. Def.'s Sealed Mem. in Supp. of Mot. for Summ. J. ("Def.'s MSJ") [Docket 32], Lawton Decl. ("Lawton Decl.") ¶ 3.

By the beginning of a shift, an officer must be wearing a uniform and carrying protective gear. Under ONI Police Standard Operating Procedure No. 33, the uniform consists of appropriate footwear, an undershirt, socks, a turtleneck or long-sleeved shirt and tie, ONI-issued pants, a nameplate, rank insignia, and optional headwear. Def.'s MSJ, Ex. 1. The protective gear includes a flashlight and a "Sam Brown belt," or a duty belt, which contains a radio case, pepper mace, a baton strap, a magazine pouch, handcuffs, a holster, and a first responder's pouch. Id. Officers are also required to wear a ballistics vest. Id.

Officers are given the option of putting on their uniforms and protective gear in a locker room at the Security Operations Center at NMIC, or at home. Id. at 284; Lawton Decl. ¶ 9; Def.'s MSJ, Ex. 2, Pls.' Supp. Ans. to Def.'s First Set of Disc. Requests, Nos. 1-2. If an officer puts on her uniform at home, however, she must cover the uniform insignia until she arrives at NMIC. Def.'s MSJ, Ex. 1. The evidence in the record indicates that most of the officers don their uniforms at home, but put on their protective gear at NMIC. Def.'s MSJ, Ex. 3 (statements from 18 plaintiffs). A few officers don most of the uniform at home, but put on the uniform shirt and protective gear at NMIC. See id. (statements of Officers Hillard, Pittman, L. Boomer). Finally, a few officers choose to don the entire uniform, and all of the protective gear, at NMIC. See id.; Armwood Depo. at 13-14 (statements of Officers Cooper and Armwood). None of the plaintiffs who submitted evidence put on the protective gear at home.

The officers are also required to carry a Navy-issued firearm during their shifts. Lawton Decl., Exs. 1 & 2. Firearms and ammunition cannot be taken home, so the officers must obtain them at the beginning of each shift from the NMIC armory. Lawton Decl. ¶ 10. Standard Operating Procedure 20 governs the procedure for obtaining weapons. Lawton Decl., Exs. 1 and

2. Under SOP 20, the procedure runs as follows: An "issuing officer" hands the receiving officer three duty magazines; the receiving officer places two of the magazines in the magazine pouch in the utility belt. Lawton Decl. ¶ 11. The issuing officer obtains the assigned weapon for the receiving officer, locks the slide to the rear, verifies that the magazine well and chambers are empty and that the weapon has the action open, and hands the weapon to the receiving officer. Id. The receiving officer inspects the weapon and re-verifies that the action is open and that the magazine well and chamber are empty. Id. After the issuing officer approves, the receiving officer inserts a magazine into the magazine well, releases the slide stop, ensures the safety is on, decocks the handgun, and holsters it. Id. If an officer is on an assignment that requires carrying a shotgun, the officer obtains the shotgun at the same time as the handgun. W. Boomer Depo. at 25-26; Lesane Depo. at 39.

After receiving the assigned weapon or weapons, the officers walk to the roll call room for a briefing, which typically lasts around 15 minutes. Lawton Decl. ¶ 4. The officers then walk to their assigned posts and relieve the officers from the outgoing shift. Id. ¶ 13. All of the posts can be reached in five minutes or less. Id. Thus, the incoming officers will usually relieve the outgoing officers by 20 minutes past the hour. Id. ¶ 14. The outgoing officers then return to the Security Operations Center and turn in their weapons in a process that is essentially the reverse of the arming-up process. Id. ¶ 12. The officers may then take off their protective gear and change back into civilian clothes either at NMIC or at home. Def.'s MSJ, Ex. 3 (officers' statements describing doffing process).

Plaintiffs are not paid for the time they spend donning their uniforms and protective gear and obtaining their assigned weapons. As explained below, it is not clear whether they are paid for doffing their weapons, gear, and uniforms. On May 13, 2009, plaintiffs filed this collective action under the FLSA, 29 U.S.C. § 201 et seq., claiming that they should be compensated for the time spent on those activities. Compl. [Docket 1].

STANDARD OF REVIEW

"Whether an activity is preliminary or postliminary to principal activities for purposes of § 254(a)(2) of the Portal-to-Portal Act is a mixed question of law and fact because the precise nature of the employee's duties is a question of fact, while application of the FLSA to those duties is a question of law." Baker v. Barnard Constr. Co., Inc., 146 F.3d 1214, 1216 (10th Cir. 1998); see also Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 741 n.19, 743 (1981).

Summary judgment is appropriate when the materials in the record show 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. In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. Thus, the non-moving party cannot rely on mere speculation or compilation of inferences to defeat a motion for summary judgment. See Hutchinson v. Cent. Intelligence Agency, 393 F.3d 226, 229 (D.C. Cir. 2005). Nor can the non-moving party rely on conclusory statements with no evidentiary basis to establish a genuine issue of material ...


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