Julie Alexander, Carmel G. Abbate, Bozeman Anderson v. City of Chicago, a Municipal Corporation

994 F.2d 333

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 17, 1993
• Docket: 92-1441, 92-1442 and 92-1448
• Status: Published

Opinions

CUDAHY, Circuit Judge.

A group of Chicago police officers alleged that the extent of the restrictions applied to their half-hour meal breaks required that they be compensated for such breaks under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219. The district court granted the City’s motion for judgment on the pleadings in the first of three related cases and subsequently dismissed the companion cases. The officers appeal. We reverse.

I.

Under section 7(a) of the Fair Labor Standards Act (FLSA), employers must pay overtime to employees who work more than forty hours weekly. 29 U.S.C. § 207(a). An exception to that jorovision, embodied in section 7(k) of the FLSA, 29 U.S.C. § 207(k), allows public law enforcement and fire departments to declare work periods from seven to 28 consecutive days; under that scheme, employees working within a 28-day work period are entitled to overtime if they work more than 171 hours. The City of Chicago, which has elected to use the permitted exemption, allows its police officers overtime at time and a half of their pay for any hours over 171 in a 28-day period. The officers work shifts of 8.5 hours, which includes one uncompensated half-hour meal period.

Twenty current and former Chicago police officers initiated this action in state court in November 1989 alleging that the rules and restrictions applied to their half-hour meal periods necessitated that those periods be counted as compensable hours within the tour of duty pursuant to the FLSA. Leahy v. City of Chicago, 785 F.Supp. 724 (N.D.Ill.1992).

Specifically, the plaintiffs’ complaint puts forth an extensive list of requirements to which the officers must adhere during their meal breaks: officers must receive permission — frequently denied — to take a meal period, and cannot take that period during the last hour of a shift assignment; they must remain within their district; they must remain in full uniform while adhering to myriad regulations regarding conduct while in uniform; officers are not permitted to take meals at locations other than establishments serving food and those in two-person units must take meals together; officers must be available to terminate their meals upon request; no more than two officers may be present in the same establishment; officers must refrain from conduct that the department deems inappropriate for an officer, apparently including playing golf, reading nondepartmental publications, resting and napping; officers must refrain from drinking alcohol; they must respond to emergencies and requests for assistance by the public; and they must either spend the period where they can be reached by phone, or, if assigned to portable units, keep the units with them. Officers also are subject to report and review by inspectors during meal periods. In limited circumstances, officers can request prior permission to disregard some of the above-noted restrictions, such as that prohibiting more than two officers from eating at the same place.

The action was removed to federal court and about 5,600 other police officers joined the original plaintiffs in the first case, Leahy v. City of Chicago, 785 F.Supp. 724 (N.D.Ill.1992). Others who missed the cutoff date for joining the action filed separate complaints in Alexander v. City of Chicago and Accosta v. City of Chicago. The complaints allege the same restrictions; amended complaints in the Alexander and Accosta actions also allege that requests by the public for assistance and information and interruptions by supervisors and inspectors occur regularly and frequently.

The City moved in the Leahy case for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The distinct court granted the City’s motion for judgment on the pleadings and then granted the City’s motions to dismiss the Alexander and Accosta complaints for failure to state a claim. This appeal consolidates the three separate cases.

II.

We review de novo the district court’s order granting the motion for judgment on the pleadings. There remains some confusion, however, regarding the nature of the district court’s inquiry — that is, whether the case is governed by the standard for motions to dismiss or should instead be treated as a motion for summary judgment.¹ In United States v. Wood, 925 F.2d 1580 (7th Cir.1991), this court held, seemingly without qualification, that a 12(c) motion for judgment on the pleadings is subject to the same standard as a rule 12(b)(6) motion to dismiss. Id. at 1581. In that event, the district court, viewing all facts in a light most favorable to the non-moving party, may grant the motion only if “it is beyond doubt that the non-movant can plead no facts that would support his claim for relief.” Id. (citing Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.1989)); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The district court may not look beyond the pleadings, and all uncontested allegations to which the parties had an opportunity to respond are taken as true. Wood, 925 F.2d at 1581.

The defendant counters that judgment on the pleadings is, in the context of this case, more like summary judgment than like a motion to dismiss. Notwithstanding Wood,2 there may be some validity to this argument. In National Fidelity Life Insurance Co. v. Karaganis, 811 F.2d 357 (7th Cir.1987), this court required a party moving for judgment on the pleadings to establish that there were no material issues of fact to be resolved and that it was entitled to judgment as a matter of law. Id. at 358; see also 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1368 at 530 (1990) (noting that courts will not grant a rule 12(c) motion if a material issue of fact exists); id. § 1369 at 535 (stating that the standard courts apply for summary judgment and for judgment on the pleadings “appears to be identical”).

A defendant may use a rule 12(c) motion after the close of the pleadings to raise various rule 12(b) defenses regarding procedural defects, in which case courts apply the same standard applicable to the corresponding 12(b) motion. Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.1989); 5A Wright & Miller, § 1367 at 516 (noting that rule 12(c) can serve as an “auxiliary device” for asserting such defenses). Here, however, the City seems to use rule 12(c) in its customary application to attempt to dispose of the case on the basis of the underlying substantive merits. Defendant’s Br. at 16, 20; see also 5A Wright & Miller, § 1367 at 509, 515 (stating that rule 12(c) is “primarily addressed to” this function). We therefore believe the appropriate standard is that applicable to summary judgment, except that the court may consider only the contents of the pleadings. Karaganis, 811 F.2d at 358. Thus, we take all well-pleaded allegations in the plaintiffs’ pleadings to be true, and we view the facts and inferences to be drawn from those allegations in the light most favorable to the plaintiffs. Republic Steel Corp. v. Pennsylvania Eng’g Corp., 785 F.2d 174, 177 n. 2 (7th Cir.1986). We will not affirm the granting of the City’s 12(c) motion unless no genuine issues of material fact remain to be resolved and unless the City is entitled to judgment as a matter of law. Karaganis, 811 F.2d at 358.

III.

Although the FLSA does not define “work,” its federal regulations set out the circumstances in which meal periods can be excluded from hours worked. Section 785.-19(a) provides:

(a) Bona fide meal periods. Bona fide meal periods are not work time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals.... The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.

19 C.F.R. § 785.19(a). For those agencies using the 7(k) exemption, section 553.223(b) provides that meal time may be excluded from hours worked on tours of duty of less than 24 hours

provided that the employee is completely relieved from duty during the meal period, and all the other tests in § 785.19 of this title are met. On the other hand, where law enforcement personnel are required to remain on call in barracks or similar quarters, or are engaged in extended surveillance activities (e.g., “stakeouts”), they are not considered to be completely relieved from duty, and any such meal periods would be compensable.

29 C.F.R. § 553.223(b).

The district court, in ascertaining whether the officers’ mealtimes here are compensable work time under the FLSA, looked only to the more specific regulation, section 553.-223(b), .and the examples furnished there. Deciding that the Chicago officers’ mealtimes “in no way resemble” section 553.223’s examples involving stakeouts or confinement to barracks, the district court concluded that they are not compensable and that judgment on the pleadings was proper. Leahy, 785 F.Supp. at 730. This approach apparently derived from language in the Fifth Circuit case the district court relied on most heavily, Lee v. Coahoma County, 937 F.2d 220 (5th Cir.1991), which similarly noted that the meal breaks at issue “in no way resemble [the section 553.223] example.” Id at 225.

The district court’s approach falters in two ways. First, the interplay between the federal regulations is more complex than the district court acknowledges. There is no reason to assume section 553.223(b) is separate and distinct from section 785.19(a); in fact, section 558.223(b) incorporates “all the other tests in § 785.19.” 29 C.F.R. § 553.-223(b). A recent Tenth Circuit case, Lamon v. City of Shawnee,3 972 F.2d 1145 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1414, 122 L.Ed.2d 785 (1993), found some significance in the differences between the two regulations, but explicitly stated that its contrasting of the two sections did not mean that the “completely relieved of duty” standard is necessarily different for each section.⁴ Id. at 1158 n. 18; see also Kohlheim v. Glynn County, 915 F.2d 1473, 1477 (11th Cir.1990). As a district court within the Tenth Circuit recently observed, Lamon “strongly implies that the ‘completely relieved from duty’ standard appearing in both § 553.223(b) and § 785.19 has the same meaning.” Brinkman v. Department of Corrections, 804 F.Supp. 163, 171 (D.Kan.1992).⁵

The examination of compensability should not turn on a crabbed comparison between the mealtime restrictions and the necessarily arbitrary, and certainly not all-encompassing, examples in the regulations. The appropriate standard is instead the one articulated in Lamon — a standard that sensibly integrates developing case law with the regulations’ language and purpose. Under Lamon, a law enforcement employee is completely relieved from duty during a meal period “when the employee’s time is not spent predominantly for the benefit of the employer,” 972 F.2d at 1155, 1157; stated differently, the “FLSA requires remuneration for meal periods during which a police officer is unable comfortably and adequately to pass the mealtime because the officer’s time or attention is devoted primarily to official responsibilities.” Id. at 1155-56; see also Armitage v. City of Emporia, 982 F.2d 430 (10th Cir.1992) (adopting Lamon standard).

The second and more important problem with the decision below is that it does not acknowledge the basic posture of the cases it relies upon and, in particular, the great extent to which resolution of these cases depends upon the specific circumstances surrounding departmental policies regulating meal periods. No case that we are aware of involving law enforcement personnel treats compensability as a matter for judgment on the pleadings. Nearly all of the cases, involving facts generally comparable to those before us, have let the matter go to trial (either with a jury or to the court).⁶

In Lamon, for example, the Tenth Circuit reversed a jury verdict in favor of the plaintiffs on the basis of inadequate jury instructions.⁷ The court gave no indication, however, that the evidence did not support the verdict or that a properly instructed jury that reached the same verdict at a new trial would not be upheld. Indeed, the Lamon court specifically stated that it did “not find that the evidence points but one way and is susceptible to no reasonable inference supporting the Plaintiffs’ claim,” adding that “there was sufficient evidence upon which a jury could properly have returned a verdict for the Plaintiffs on this issue.” 972 F.2d at 1156. Accordingly, the court concluded that “the trial court did not err in submitting to the jury the issue of the compensability of meal periods.” Id. at 1159.

The restrictions on the Lamon plaintiffs’ meal periods essentially replicate those alleged in the present case. .See id. at 1156. On their half-hour meal breaks, the City of Shawnee’s police officers were required either to leave a telephone number where they could be reached or to monitor a portable radio. They had to react to emergency calls, answer to personnel shortages, respond to citizen requests, confront crimes committed in their presence and act in a responsible and professional manner. Meal locations were restricted to the city limits, or, with approval, locations close to the city, and the officers were not allowed to conduct personal business errands during their meal breaks. Id. These restrictions cannot fairly be characterized as tighter than or substantively different from those alleged by the plaintiffs here. Thus, if the Lamon restrictions constituted sufficient evidence upon which a properly instructed jury could have returned a verdict for the plaintiffs, id., judgment on the pleadings cannot be warranted on the facts before us.

In addition to Lamon, we also regard as instructive the District of Kansas’s comprehensive analysis of the mealtime compensa-bility issue in Wahl v. City of Wichita, 725 F.Supp. 1133 (D.Kan.1989).⁸ The restrictions in the present case, while akin to those in Lamon, appear to be more inhibiting than those in Wahl. In Wahl, the officers were subject to- geographical limitations, were required to answer emergency calls and to respond to crimes and citizen inquiries and were restricted both in what they could read and in the personal activities or errands they could perform. Id. at 1136-37. Unlike the plaintiffs in the case before us, however, the officers in the Wahl case were not required to remain in full uniform or hence to comply with all the associated regulations of uniformed conduct, although changing out of uniform was admittedly impractical on a short lunch period. Id. Moreover, more than two officers — but not more than “a few” — could visit the same restaurant at once. The Wahl case also does not indicate that the officers were prohibited from taking meals at locations other than establishments serving food, although they were prohibited from taking meals in a tavern, private club or pool hall. Id. at 1136.

Wahl is unique among the reported cases on this narrow issue in that it arose prior to trial, on summary judgment. The case, however, follows a special pattern among summary judgment cases in that the parties filed cross motions for summary judgment and generated a complete record of uncontrovert-ed facts by submitting affidavits, depositions and answers to interrogatories. Looking to section 785.19(a)’s standard as the appropriate statement of the law, the Wahl court concluded that the plaintiffs clearly were not completely relieved of their duties. Id. at 1139. The court stated that “[w]hat matters in meal period cases is whether the employee is subject to real limitations on his personal freedom which inure to the benefit of his employer.” Id. at 1144. Moreover,

[t]he rules of the city, both written and unwritten, and the practical constraints arising from the limited length of the break, combine to ensure the city of a reserve of uniformed officers, immediately available for emergency service. The restrictions on the plaintiffs are designed to maximize the public appearance of the officers’ readiness. The city receives the advantages of improved public relations and the elimination of the need to hire additional officers. But as these benefits accrue to the city, the officers are faced with corresponding limitations on their personal freedom.

Id.; cf. Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944) (stating that “[rjeadiness to serve may be hired, quite as much as service itself’).

In the case before us, a judge or a jury as factfinder might ultimately find for the defendant. That, however, differs vastly from ruling for the defendant on the pleadings.⁹ It is not possible in the case before us or in comparable circumstances in the other reported cases to resolve factual issues and apply the appropriate standard to those facts at this early stage as a matter of law. This is not to say that resolution of the FLSA mealtime compensability issue in the countless factual configurations that might arise will always require a trial. What is required is sufficient development of the facts to enable a capable application of the appropriate predominant benefit standard, including a determination of whether the officers are unable to pass the mealtime comfortably because their time or attention is devoted primarily to official responsibilities.¹⁰ See La-mon, 972 F.2d at 1155-56.

Moreover, although the extent to which police officers receive regular compensation whenever they actually are disturbed by official duties is not a fact of record here, we could not infer from the existence of such a policy that officers who are not affirmatively called back to duty are necessarily completely relieved of duty.¹¹ There is a universe of possibilities about when a meal is “interrupted” so as to require compensation. At this point we can only speculate about the frequency of communication to police officers at mealtime, the frequency and extent of interruptions, the effect of the various restrictions on an otherwise uninterrupted meal period and a variety of other factual matters. The pleadings alone simply do not reveal to what extent the officers’ attention was turned to official duties.

Finally, although only the Alexander and Accosta amended complaints — but not the Leahy complaint — specifically allege, in addition to the basic restrictions, that supervisors’ interruptions and requests by the public for assistance and information occur on a regular and frequent basis, we note that the absence of this exact language in 'the Leahy complaint does not alter our analysis with respect to those particular plaintiffs. The complaint’s comprehensive catalog of restrictions makes clear without any supplementary magic, words that further development of the particular factual circumstances is needed before a court or jury can judge whether the officers’ mealtimes are spent predominantly for the department’s benefit and whether officers are unable to comfortably and adequately pass the mealtime because their time or attention is devoted primarily to official responsibilities. See La-man, 972 F.2d at 1155-57. Federal notice pleading requires no more. See Fed.R.Civ.P. 8(a). When all reasonable inferences are drawn in favor of the officers, the allegations in each of the three complaints are sufficient to raise a viable claim, the merits of which cannot be resolved as a matter of law on these limited facts.¹²

IV.

This case is appropriately resolved by allowing the trier of fact to judge, after sufficient development of the factual circumstances, whether the officers were completely relieved of duty under the standard articulated in the recent Lamon case. For the foregoing reasons, we Reverse the district court’s entry of judgment on the pleadings and Remand for further proceedings consistent with this opinion.

1 . The district court may have found rule 12(c)'s application perplexing as well; its original opinion had to be revised to indicate the correct motion it was granting. Compare Leahy v. City of Chicago, No. 89 C 9354, 1992 U.S. Dist. LEXIS 265 at *18 (N.D.Ill. Jan. 9, 1992) (granting "motion for summary judgment") with Leahy v. City of Chicago, 785 F.Supp. 724, 730 (N.D.Ill.1992) (granting "motion for judgment on the pleadings”).

2 . The City argues that the Wood court did not intend to work any change in the law governing rule 12(c) motions. See Defendant's Br. at 16 n. 4. Indeed, the case that the Wood court cites as authority for its statement regarding the use of the 12(b)(6) standard — Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.1989) — clearly limited the application of the standard for motions to dismiss in rule 12(c) cases to situations in which-the movant specifically asserted 12(b) defenses. Id.; see also discussion infra.

3 . Lamon, which involved restrictions quite similar to those alleged in the present case, was decided after the district court issued its opinion in this case. The district court did, however, dismiss as distinguishable the lower court decision in Lamon because, in part, "there existed a genuine issue of material fact as to whether the officers had been completely relieved of duty.” Leahy, 785 F.Supp. at 729. The court did not explain how, on analogous facts, no such genuine fact issue exists in the case before us.

4 . The dissent’s characterization of Lamon as "relying on the Secretary's examples in section 553.-223(b)” is misleading. In articulating the predominant benefit test that derives from the FLSA's traditional application in other contexts, see, e.g. Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 468, 89 L.Ed. 118 (1944), the Lamon court clearly did not envision section 553.223(b)'s examples as defining that standard. The Lamon court’s refusal to decide the case as a matter of law on the same essential facts as we have here demonstrates that its understanding of the examples and ours are akin.

5 . Elaborating, the Brinkman court noted that [t]he two distinctions observed between § 553.-223(b) and § 785.19 are insubstantial reasons for reading identical words differently in almost indistinguishable contexts. No. rationale for having a less rigorous meal period standard for an employee covered under § 207(k) is offered in Lamon. Section 207(k) obviously is intended to address the unique employment circumstances of a law enforcement officer, fire fighter, or corrections officer. Presumably, the same circumstances justify taking the same approach to meal period times for those similarly employed whether covered by § 207(k) or not.

804 F.Supp. at 171.

6 .See, e.g., Armitage v. City of Emporia, 982 F.2d 430 (10th Cir.1992) (bench trial); Lee v. Coahoma County, 937 F.2d 220 (5th Cir.1991) (bench trial). One case resolves the issue prior to trial on cross motions for summary judgment— though with more extensive development of the facts .than has been possible here. Wahl v. City of Wichita, 725 F.Supp. 1133 (D.Kan.1989). That court concluded that mealtimes are com-pensable in light of an array of restrictions similar to but arguably less constraining than those imposed on Chicago officers. See discussion infra pages 328-39.

7 . The Lamon court stated that the challenged instruction "countenanced the misapprehension that the performance of any official duty, no matter how insignificant, during meal periods rendered the time compensable." 972 F.2d at 1158.

8 . Although the district court in the present case found Wahl to be among the two most authoritative cases, the court rejected Wahl because it was not a circuit court opinion and because it did not involve a section 7(k) employer. Leahy, 785 F.Supp. at 729-30 (finding Wahl "factually analogous”). Informed in part by our view that sections 553.223(b) and 785.19(a) generally address the same "completely relieved from duty” standard, see supra note 5 and accompanying text, we find that, in major part, the Wahl court’s careful analysis of the compensability question is especially helpful to our task.

The case the district court ultimately relied on as most authoritative, on the other hand — a Fifth Circuit case that specifically applies section 553.-223(b) — confined its examination of the meal periods’ compensability to one paragraph with virtually no analysis. Lee v. Coahoma County, 937 F.2d 220 (5th Cir.1991). In Lee, unlike the present case, the deputies were allowed to take their breaks wherever they pleased, though they would radio out once they reached their destination and were called back in an occasional emergency. Id. at 225. The Lee court, concluding that the fact findings supported the district court's fact conclusion that such meal periods are not com-pensable, noted merely that the meal breaks at issue were not like those in the section 553.223 examples. Id. at 225. We find that the authoritative value of Lee is impaired by its perfunctory analysis.

9 . The dissent, by asserting that the plaintiffs arc not entitled to “automatic compensation” for their meal periods, post at 342, seems to suggest that the plaintiffs claim entitlement to win here and now. The issue at this stage, however, is whether additional factual development is essential to a proper decision.

10 . The dissent gives great weight to the court’s ruling against the plaintiffs as a matter of law in Armitage v. City of Emporia, 982 F.2d 430 (10th Cir.1992), where the detectives could not conduct personal errands during lunch and were required to respond to citizen inquiries and act professionally. But of course the Armitage court had the benefit of a complete trial record. The Lamon predominant benefit test — while conceivably applicable purely as a matter of law in some instances — necessarily involves some informed appraisal of how the particular mealtime limitations actually affected the officers' mealtimes. Looking only to the pleadings in the present case, a court cannot competently rule as a matter of law that officers spent or did not spend their mealtime predominantly for the benefit of the employer or that their time or attention was or was not devoted primarily to official responsibilities.

11 .On a related issue, we are not persuaded by the defendants' argument that the collective bargaining agreement between the City and its police officers obviates the officers’ claim by confirming those parties' understanding that meal periods arc not working time within the FLSA. Although a factfinder might consider such an agreement as one among many factors in determining whether the officers were completely relieved of duty, it certainly does not outright preclude the officers’ claim.

12 . The City itself does not argue that the omissions in the Leahy complaint distinguish it from the other two complaints. In fact, it contends that the frequency of interruptions is irrelevant. Def.Br. at 19-20.