15‐315 Perez v. The City of New York
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2015 4 (Argued: November 30, 2015 Final Submission: January 22, 2016 5 Decided: August 2, 2016) 6 Docket No. 15‐315
7 8 Henry Perez, Baselice Ralph, Juan Bayron, Jerry Cordero, Ronald Eason, Donald 9 Koonce, Joseph Oro, Ruben Rios, Jr., Pedro Rosado, and Derek G. Walther, on 10 behalf of themselves and others similarly situated, 11 Plaintiffs‐Appellants,
12 v.
13 The City of New York, Mayor Bill de Blasio, The New York City Department of 14 Parks & Recreation, and Mitchell J. Silver, in his official capacity as 15 Commissioner of the Department of Parks & Recreation, 16 Defendants‐Appellees.* 17 18 Before: SACK, CHIN, and LOHIER, Circuit Judges.
19 Current and former Assistant Urban Park Rangers employed by New York
20 Cityʹs Department of Parks & Recreation filed a collective action in the United
21 States District Court for the Southern District of New York alleging violations of
22 the Fair Labor Standards Act, including the Departmentʹs refusal to compensate
23 them for time spent putting on and taking off (ʺdonning and doffingʺ) required
24 uniforms. The district court (Shira A. Scheindlin, Judge) granted partial summary
The Clerk of Court is respectfully directed to amend the official caption as set forth *
above. 1 judgment for the defendants and, without further proceedings, closed the case.
2 We conclude that the district court erred both in granting partial summary
3 judgment and in closing the case while several claims remained unresolved. The
4 judgment of the district court is therefore vacated and the cause remanded for
5 further proceedings.
6 VACATED and REMANDED.
7 JAMES REIF (Amelia K. Tuminaro, on the 8 brief), Gladstein, Reif & Meginniss, LLP, 9 New York, NY, for Plaintiffs‐Appellants. 10 DEVIN SLACK, of counsel, for Zachary W. 11 Carter, Corporation Counsel of the City of 12 New York, New York, NY, for Defendants‐ 13 Appellees. 14 RACHEL GOLDBERG, Senior Attorney 15 (Jennifer S. Brand, Associate Solicitor, Paul 16 L. Frieden, Counsel for Appellate 17 Litigation, Mary E. McDonald, Senior 18 Attorney, on the brief), for M. Patricia Smith, 19 Solicitor of Labor, U.S. Department of 20 Labor, Washington, DC, for Amicus Curiae 21 the Secretary of Labor in support of Plaintiffs‐ 22 Appellants. 23 SACK, Circuit Judge:
24 The Fair Labor Standards Act of 1938 (ʺFLSAʺ), 29 U.S.C. § 201 et seq.,
25 regulates the manner in which many New York City employees must be paid.
26 The statute defines certain employment‐related activities as compensable and
1 sets parameters for both regular and overtime wages. In this case, several active
2 and former Assistant Urban Park Rangers (ʺAUPRsʺ) employed by the Cityʹs
3 Department of Parks & Recreation (ʺParks Departmentʺ) allege that they, and
4 others similarly situated, were not paid in accordance with the FLSAʹs
5 requirements.
6 BACKGROUND
7 AUPRs are employed to perform a range of public services in the Cityʹs
8 parks. For the purposes of this appeal, the defendants accept the plaintiffsʹ
9 assertion that those services include: ʺproviding directions and other information
10 to persons seeking to use parks or pools; providing assistance to those persons
11 involved in accidents or those who may be victims of unlawful activity and
12 investigating such accidents or activity; implementing crowd control procedures
13 at special events; providing safety and educational information to the public; and
14 issuing summonses to or making arrests of persons suspected of unlawful
15 conductʺ under ʺlaws, including New York City rules and regulations, governing
16 use of the parks and pools.ʺ Appellantsʹ Br. at 10; see Appelleeʹs Br. at 10‐11.
17 During a shift, AUPRs are required to wear uniforms comprising both
18 professional clothing and equipment. The professional clothing includes ʺolive
1 drabʺ pants and jacket, ʺʹSmokey the Bearʹ style hats,ʺ and various Parks
2 Department insignias, while the equipment includes a bulletproof vest and a
3 utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace,
4 a summons book, and a tape recorder. Appʹx 213‐14 (official Parks Department
5 uniform policy). The plaintiffsʹ estimates of the time needed to don and doff
6 those uniforms each day (that is, to put them on before a shift and take them off
7 afterward) range from approximately five to thirty minutes.
8 The plaintiffs claim that the defendants — the Parks Department and its
9 Commissioner, along with the City and its mayor — provided inadequate
10 compensation for their work as AUPRs in four respects: (1) by failing to pay
11 wages for compensable activities that the plaintiffs performed immediately
12 before and after their regularly scheduled shifts, including donning and doffing
13 their uniforms; (2) by failing to pay wages for compensable activities that the
14 plaintiffs performed during lunch breaks; (3) by providing one hour, rather than
15 one hour and a half, of compensatory leave for each hour of overtime that the
16 plaintiffs worked; and (4) by providing compensatory leave, rather than
17 monetary payment, for overtime that the plaintiffs worked after individually
18 accruing 480 hours of compensatory leave. The defendants counter that, to the
1 extent the FLSA applied to the plaintiffs and their employment, their
2 compensation complied with the statute.
3 After the close of discovery, the defendants moved for partial summary
4 judgment on several discrete issues. First, they argued that the plaintiffsʹ
5 donning and doffing of uniforms were not compensable activities under the
6 FLSA, for three independent reasons: (i) the activities were not ʺintegral and
7 indispensableʺ to the plaintiffsʹ principal activities during a shift; (ii) the time
8 spent donning and doffing should be discounted as de minimis; and (iii) in any
9 event, that time was rendered non‐compensable by the plaintiffsʹ collective
10 bargaining agreement. Second, the defendants contended that any claim
11 premised on work performed before June 22, 2009, was barred by the FLSAʹs
12 limitations period. Third, they asserted that the plaintiffs were not entitled to
13 compensation for the overtime they allegedly worked before and after their
14 shifts, or during meal breaks, because they did not adequately report it. Finally,
15 the defendants argued that the Parks Department was not a proper party to the
16 lawsuit.
17 In its January 15, 2015 decision, the district court (Shira A. Scheindlin,
18 Judge) concluded as a matter of law that the plaintiffsʹ donning and doffing of
1 uniforms were not compensable activities under the FLSA because they did not
2 qualify as integral and indispensable to the plaintiffsʹ principal activities. Perez v.
3 City of New York, No. 12 Civ. 4914, 2015 WL 424394, at *5, 2015 U.S. Dist. LEXIS
4 13425, at *16 (S.D.N.Y. Jan. 15, 2015). The court granted partial summary
5 judgment for the defendants on that basis alone, without reaching the additional
6 arguments made in the motion. See id. The court then ordered the case closed.
7 Id. The plaintiffs timely appealed, arguing that the district court erroneously
8 granted partial summary judgment on the compensability of their donning and
9 doffing and prematurely closed the case.
10 DISCUSSION
11 We vacate the district courtʹs decision and remand for further proceedings.
12 On the current record, we cannot conclude as a matter of law that the plaintiffsʹ
13 donning and doffing of uniforms were not integral and indispensable to their
14 principal activities as AUPRs — the sole ground on which the district court
15 granted partial summary judgment. We therefore remand to allow the district
16 court to decide, in the first instance, whether the plaintiffsʹ donning and doffing
17 are nevertheless non‐compensable as a matter of law under the de minimis
18 doctrine or the terms of a collective bargaining agreement. The district court
1 should also resolve the issues that the defendants raise as to their entitlement to
2 partial summary judgment on other aspects of the plaintiffsʹ claims, which the
3 January 15, 2015 decision erroneously failed to reach. Absent another appeal or
4 additional motions by the parties that dispose of the action in its entirety, the
5 case should then proceed to trial.
6 I. Donning and Doffing
7 A. ʺIntegral and Indispensableʺ
8 The FLSA generally mandates compensation for ʺthe principal activity or
9 activities which [an] employee is employed to perform,ʺ 29 U.S.C. § 254(a)(1),
10 including tasks — even those completed outside a regularly scheduled shift —
11 that are ʺan integral and indispensable part of the principal activities,ʺ IBP, Inc. v.
12 Alvarez, 546 U.S. 21, 30 (2005) (quoting Steiner v. Mitchell, 350 U.S. 247, 256
13 (1956)). But the FLSA does not require payment for time spent on ʺactivities
14 which are preliminary to or postliminary toʺ an employeeʹs principal activities.
15 29 U.S.C. § 254(a)(2). The parties dispute which standard applies to the plaintiffsʹ
16 donning and doffing of uniforms: The plaintiffs characterize those tasks as
17 integral and indispensable to (and thus part of) their principal activities as
1 AUPRs, while the defendants describe them as preliminary or ʺpostliminaryʺ1 to
2 all principal activities. The district court concluded that the defendants were
3 correct as a matter of law. After reviewing the record de novo,2 we disagree.
4 An activity qualifies as ʺintegralʺ if it is ʺintrinsically ʹconnected withʹʺ a
5 principal activity that an employee was hired to perform. Gorman v. Consol.
6 Edison Corp., 488 F.3d 586, 591 (2d Cir. 2007) (quoting Mitchell v. King Packing Co.,
7 350 U.S. 260, 262 (1956)). And an activity is ʺindispensableʺ if it is ʺnecessaryʺ to
8 the performance of a principal activity. Id. at 592. An activity is therefore
9 ʺintegral and indispensable to the principal activities that an employee is
10 employed to perform if it is an intrinsic element of those activities and one with
11 which the employee cannot dispense if he is to perform his principal activities.ʺ
12 Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513, 517 (2014).
13 Although this standard is markedly ʺfact‐dependent,ʺ Kuebel v. Black &
14 Decker Inc., 643 F.3d 352, 359 (2d Cir. 2011), prior decisions have identified
15 several considerations that may serve as useful guideposts for its application. As
For a commentary on the statuteʹs use of the word ʺpostliminaryʺ, see Eugene 1
Volokh, Postliminary:, Volokh Conspiracy (Aug. 21, 2009, 2:12 PM), http://volokh.com/2009/08/21/postliminary/, archived at https://perma.cc/SE2J‐YKVN. 2 ʺWe review de novo a district courtʹs grant of summary judgment, drawing all
reasonable factual inferences in the non‐moving partyʹs favor . . . .ʺ Velazco v. Columbus Citizens Found., 778 F.3d 409, 410 (2d Cir. 2015).
1 we have explained, ʺ[t]he more the [pre‐ or post‐shift] activity is undertaken for
2 the employerʹs benefit, the more indispensable it is to the primary goal of the
3 employeeʹs work, and the less choice the employee has in the matter, the more
4 likely such work will be found to be compensable.ʺ Reich v. N.Y.C. Transit Auth.,
5 45 F.3d 646, 650 (2d Cir. 1995). Relatedly, an employerʹs requirement that pre‐ or
6 post‐shift activities take place at the workplace may indicate that the activities
7 are integral and indispensable to an employeeʹs duties. See Alvarez v. IBP, Inc.,
8 339 F.3d 894, 903 (9th Cir. 2003) (concluding that donning and doffing of
9 protective gear were integral and indispensable activities in part because they
10 had to be performed at the workplace), affʹd, 546 U.S. 21 (2005); cf. Bamonte v. City
11 of Mesa, 598 F.3d 1217, 1231 (9th Cir. 2010) (concluding that donning and doffing
12 of police uniforms were not integral and indispensable activities in part because
13 they were ʺnot required by law, rule, the employer or the nature of the police
14 officersʹ work to be performed at the employerʹs premisesʺ).
15 Applying those principles, this Court and others have concluded that an
16 employeeʹs pre‐ and post‐shift preparation of items used to perform principal
17 activities can qualify as integral and indispensable. In King Packing, for example,
18 the Supreme Court held that a slaughterhouse employeeʹs knife sharpening was
1 integral and indispensable to the principal activity of butchering. See 350 U.S. at
2 263. Similarly, in Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706
3 (2d Cir. 2001), we concluded that a reasonable factfinder might classify a
4 radiological technicianʹs powering up and testing of an x‐ray machine as integral
5 and indispensable to the principal activity of taking x‐rays, see id. at 717‐18. And
6 in Reich, we decided that a K‐9 officerʹs feeding, walking, and training of his dog
7 was integral and indispensable to his principal law enforcement activities. See 45
8 F.3d at 650‐52. All of these activities occurred before or after regularly scheduled
9 shifts, or during lunch breaks.
10 Courts have also concluded that an employeeʹs pre‐ and post‐shift efforts
11 to protect against heightened workplace dangers can qualify as integral and
12 indispensable. In Steiner, the Supreme Court decided that employees who
13 worked in a battery plant should be compensated under the FLSA for the time
14 they spent showering and changing clothes at the workplace after a shift. Those
15 tasks, the Court reasoned, were integral and indispensable to the employeesʹ
16 principal activities because they prevented lead poisoning, an acute danger
17 attendant to work in the plant. See 350 U.S. at 249‐53, 256. Similarly, in Alvarez,
18 the Ninth Circuit concluded that slaughterhouse employeesʹ donning and
1 doffing of protective equipment, including ʺmetal‐mesh gear,ʺ qualified as
2 integral and indispensable to their butchering work. See 339 F.3d at 898 n.2,
3 902‐04. And in Gorman, we acknowledged that an employeeʹs efforts to protect
4 against ʺworkplace dangers that transcend ordinary risksʺ may qualify as
5 integral and indispensable, although we concluded that employees at a nuclear
6 power plant did not protect against such heightened dangers merely by donning
7 and doffing ʺgenericʺ helmets, safety glasses, and steel‐toed boots. See 488 F.3d
8 at 592‐94.
9 With those precedents in mind, and viewing the record in the light most
10 favorable to the plaintiffs, we think that a reasonable factfinder could conclude
11 that the plaintiffsʹ donning and doffing of uniforms are integral and
12 indispensable to their principal activities as AUPRs. Several relevant
13 considerations point in that direction.
14 As an initial matter, the donning and doffing of an AUPRʹs uniform are
15 activities ʺundertaken for the employerʹs benefit,ʺ with no choice on the
16 employeeʹs behalf. Reich, 45 F.3d at 650. The Parks Department prescribes the
17 components of the uniform in painstaking detail, and AUPRs may be disciplined
18 for non‐compliance. See Appʹx 213‐16, 218. Relatedly, substantial evidence in the
1 record indicates — and we therefore assume at this stage of the proceedings —
2 that the Parks Department requires AUPRs to don and doff their uniforms at the
3 workplace, see id. 245‐57, another factor that suggests those tasks may qualify as
4 integral and indispensable, see Alvarez, 339 F.3d at 903.
5 More fundamentally, the uniforms appear to be vital to ʺthe primary
6 goal[s] of [the plaintiffsʹ] workʺ during a shift. See Reich, 45 F.3d at 650. To begin
7 with, an AUPRʹs utility belt holds items used to perform law‐enforcement duties.
8 A summons book is, of course, necessary for the issuance of summonses. A
9 baton, mace, and handcuffs, in turn, may be critical in effecting an arrest. And a
10 radio and flashlight may prove crucial in tracking suspects and coordinating
11 with other municipal employees. We are inclined to classify these items as tools
12 of an AUPRʹs trade, arguably analogous to a butcherʹs knife, a radiological
13 technicianʹs x‐ray machine, or a K‐9 officerʹs dog. In keeping with King Packing,
14 Kosakow, and Reich, therefore, we think that a reasonable factfinder could
15 conclude that the donning and doffing of an AUPRʹs utility belt are integral and
16 indispensable tasks.
17 An AUPRʹs bulletproof vest more closely resembles the type of protective
18 gear analyzed in Gorman and Alvarez. Like the helmets, safety glasses, and metal
1 mesh at issue in those decisions, the vest is not a tool used to perform principal
2 activities; rather, the record indicates that it functions solely to protect against
3 risks collateral to those activities. We recognized in Gorman that the use of such
4 protective gear may be integral and indispensable to an employeeʹs principal
5 activities where it guards against ʺworkplace dangers that transcend ordinary
6 risks.ʺ 488 F.3d at 593. The risk of sustaining gunfire while enforcing municipal
7 laws is not, in our view, an ordinary risk of employment. Under Gorman,
8 therefore, the donning and doffing of an AUPRʹs bulletproof vest also may
9 qualify as integral and indispensable.3
10 Professional clothing appears to be comparably essential to an AUPRʹs
11 work. Uniforms generally serve to identify employees to others, and for many
12 jobs (waiting tables, for example) that function may be a mere convenience. In
13 the case of law‐enforcement personnel, however, identification to the public is
14 more fundamentally intertwined with the objectives of employment. According
As tools used to perform relatively dangerous law‐enforcement tasks more 3
effectively, a baton, mace, and handcuffs also afford a degree of protection to an AUPR. In that sense, they might be analyzed, at least in part, under Gormanʹs framework. We think the rubric established by Kosakow and Reich, which applies to tools of the trade, is more apt — and, as we have explained, it suffices to demonstrate that an AUPRʹs baton, mace, and handcuffs may qualify as integral and indispensable to her principal activities. But our decision does not foreclose the factfinder, on remand, from considering the significance of the protective dimension of these items under Gorman.
1 to the declarations of former AUPRs, it is professional Parks Department
2 clothing, with its recognizable color scheme and insignias, that not only attracts
3 citizens in need of assistance but also establishes an AUPRʹs authority to
4 investigate violations, issue summonses, make arrests, and otherwise intervene
5 in emergency situations. See Declaration of Marlena Poelz‐Giga dated May 16,
6 2014 (ʺPoelz‐Giga Decl.ʺ) ¶ 12, Appʹx 194; Declaration of Ralph Baselice dated
7 May 13, 2014 (ʺBaselice Decl.ʺ) ¶ 8, Appʹx 230. Without such a visible signal of
8 authority, an AUPRʹs efforts to instruct the public and enforce park rules,
9 perhaps with force, could be ineffective and even perilous — the AUPR might be
10 mistaken for a citizen breaking the law rather than a government official
11 enforcing it. See Lemmon v. City of San Leandro, 538 F. Supp. 2d 1200, 1205 (N.D.
12 Cal. 2007) (ʺ[W]hen determining if the uniform is necessary to the work of a
13 police officer, it is of great consequence that these ʹclothesʹ are of a particular
14 color and design that afford the wearer special powers and deference in our
15 society.ʺ). Moreover, evidence in the record indicates that ʺParks Department
16 supervisors frequently tell AUPRs that [their] role is to be a highly visible
17 uniformed presence in New York City.ʺ Poelz‐Giga Decl. ¶ 12, Appʹx 194; see also
18 Baselice Decl. ¶ 8, Appʹx 230. That instruction blurs the distinction between
1 wearing the uniform and performing the job. For these reasons, the donning and
2 doffing of an AUPRʹs professional clothing, no less than her equipment, could
3 reasonably be viewed as integral and indispensable to her principal activities.
4 We therefore cannot conclude, as a matter of law, that the plaintiffsʹ
5 donning and doffing of uniforms are not integral and indispensable to their
6 principal activities as AUPRs. In deciding otherwise, the district court erred in
7 three respects. First, it mistakenly classified the plaintiffsʹ uniforms, in their
8 entirety, as serving solely to protect against workplace hazards. In fact, only an
9 AUPRʹs bulletproof vest fits that description. As noted, certain other parts of the
10 uniform — including the baton, mace, and handcuffs — may offer a degree of
11 protection. But these items are not solely protective; they also function as tools of
12 the trade used to perform law‐enforcement tasks, including arrests. The district
13 court erroneously failed to analyze the legal significance of that distinct type of
14 utility.
15 Second, the court mistakenly characterized the protective elements of an
16 AUPRʹs uniform as comparably ʺgenericʺ to the helmets, safety glasses, and steel‐
17 toed boots at issue in Gorman. Those items qualified as generic because they
18 were widely available to the public and commonly worn in a range of settings.
1 The same cannot be said of an AUPRʹs bulletproof vest, baton, mace, or
2 handcuffs, all of which are relatively specialized products available only from
3 select sources and used primarily by law enforcement and security personnel.
4 Compounding those errors, the district court misconstrued Gorman as
5 establishing that generic protective gear is never integral and indispensable to an
6 employeeʹs principal activities. Gorman did not endorse any such categorical
7 rule. The Court there held that nuclear power plant employeesʹ donning and
8 doffing of helmets, safety glasses, and steel‐toed boots did not qualify as integral
9 and indispensable because the items at issue guarded against only routine
10 workplace risks. See 488 F.3d at 592‐93. The generic nature of the items may
11 have pointed toward that ultimate conclusion, because generic equipment is
12 more likely than specialized equipment to address workplace conditions that are
13 commonplace. But the itemsʹ generic nature did not establish, as a matter of law,
14 that they guarded against only routine risks. As Steiner demonstrates, items as
15 generic as a shower and a change of clothes can, in certain circumstances,
16 neutralize extreme threats to worker safety. See 350 U.S. at 252‐53, 256. To
17 decide whether the use of protective gear qualifies as integral and indispensable,
18 therefore, courts always must determine whether the gear — however generic or
1 specialized — guards against ʺworkplace dangersʺ that accompany the
2 employeeʹs principal activities and ʺtranscend ordinary risks.ʺ Gorman, 488 F.3d
3 at 593. This inquiry requires a fact‐intensive examination of the gear at issue, the
4 employeeʹs principal activities, and the relationship between them.
5 B. The De Minimis Doctrine and the Plaintiffsʹ Collective Bargaining 6 Agreement 7 8 In their motion for partial summary judgment, the defendants argued that
9 the plaintiffsʹ donning and doffing of uniforms would be non‐compensable on
10 two additional, independent grounds: that the time spent on those activities
11 qualified as de minimis, see Reich, 45 F.3d at 652‐53 (describing and applying the de
12 minimis doctrine); and that, in any event, the time was rendered non‐
13 compensable by the plaintiffsʹ collective bargaining agreement, see 29 U.S.C.
14 § 203(o) (providing that when tabulating ʺthe [compensable] hours for which an
15 employee is employed, there shall be excluded any time spent in changing
16 clothes or washing at the beginning or end of each workday which was excluded
17 from measured working time during the week involved by the express terms of
18 or by custom or practice under a bona fide collective‐bargaining agreement
19 applicable to the particular employeeʺ). Because the success of both of these
20 arguments is fact‐dependent, we leave it to the district court, on remand, to
1 address them in the first instance. In doing so, the court may expand, as in its
2 discretion may be necessary, the factual analysis contained in the January 15,
3 2015 decision.
4 II. Remaining Arguments for Partial Summary Judgment
5 The defendants also sought partial summary judgment on three additional
6 issues that the district court has not yet addressed: that any claim premised on
7 work performed before June 22, 2009 is barred by the FLSAʹs limitations period;
8 that the plaintiffs were not entitled to compensation for purported overtime
9 hours that they did not adequately report; and that the Parks Department is not a
10 proper defendant. On remand, the court should also address those issues in the
11 first instance. Again, the court may expand the factual analysis contained in the
12 January 15, 2015 decision as it deems necessary.
13 CONCLUSION
14 For the foregoing reasons, we VACATE the district courtʹs January 15, 2015
15 decision granting partial summary judgment for the defendants and REMAND
16 for further proceedings consistent with this opinion.