Gerard ROSANO; John Abraham, and all persons similarly situated; Rolando Acosta; Michael Adomilli; Mark Adomilli; Douglas Alcott; Tanya Balser; Anthony Biondi; Ronald Boswell; Kevin Brennan; Anthony Brezi; William Brittingham; Sara Brittingham; Ross Burns; Christopher Buscavage; Raymond Byrne; Joseph Careccio; Robert Carney; Thomas Caruso; Michael Chaloub; Harold Clark; Glenn Coley; Kenneth Croonquist; Robert Croonquist; William Croonquist; Michael Crowley; Daniel Dalessio; Michael Danenza; James Deanni; Armand Divite; Kenneth Egbert; John Faggello; Michael Falvey; Michael Ferrante; Paul Finkler; Thomas Finley; Mark Fisco; Patrick Forrest; Daniel Garcia; John Garcia; Robert Gloria; Jose Gonzalez; Walter Haase; Edward Hahn; Harry Harrison; Robert Harvey; Jason Hosey; John Hyland; Kimberly Johnson; Dean Kazinci; Edward Kazmierczak; Gregory Kerrison; Dennis Kleiber; Seth Kriegel; Christopher Kurschner; Eddy Lievano; Ralph Locke; Zoraida Lopez; Craig Luebeck; Kevin Marrero; Andrew McGurr; Lamon Meeks; Robert Mehnert; Thomas Melvin; George Miros; Michael Moliere; George Molina; Randy Morales; Charles Mulligan; John Nogueras; James O‘Brien; Glenn O‘Reilly; Spence Osaigbovo; Angel Pagan; Arno Peters; Stephen Ramirez; Keith Richter; Michael Richter; Justin Rodriguez; Gregory Rucker; Rodney Ryland; Saul Santiago; Gabriel Santiago; Thomas Sullivan; Michael Sunga; Scott Tesser; James Thompson; Veronica Thornton; Thomas Tully; Percy West; Jeanette Williams; George Wright, Appellants v. TOWNSHIP OF TEANECK, a political subdivision of the State of New Jersey.
No. 13-1263
United States Court of Appeals, Third Circuit
Argued Oct. 29, 2013. Filed: June 10, 2014.
754 F.3d 177
The Funds also appeal the District Court‘s dismissal of their control person liability and insider trading claims. We conclude the District Court correctly dismissed those claims for failure to adequately plead a predicate Exchange Act violation.
Section 20(a) of the Exchange Act creates a cause of action against individuals who exercise control over a “controlled person,” including a corporation, who has committed a section 10(b) violation.
Similarly, section 20A of the Exchange Act provides that a corporate insider who trades stock “while in possession of material, nonpublic information” is liable to any person who traded contemporaneously with the insider, provided there is an independent Exchange Act violation.
V.
For the foregoing reasons, we will affirm the judgment of the District Court granting defendants’ Rule 12(b)(6) motion to dismiss.
Marcia J. Tapia, Esq., Argued, Loccke, Correia, Schlager, Limsky & Bukosky, Hackensack, NJ, Counsel for Appellants.
Before: McKEE, Chief Judge, FISHER and SLOVITER, Circuit Judges.
OPINION
FISHER, Circuit Judge.
This case arises from an action brought by eighty-eight current and former police officers (“Appellants“) employed by the Township of Teaneck (“Teaneck“) in Teaneck, New Jersey. Appellants contended that Teaneck violated the Fair Labor Standards Act (“FLSA“),
I. BACKGROUND
A. Factual Background
The Teaneck Policemen‘s Benevolent Association, Local 215, which represents Teaneck police officers, and the Superior Officer‘s Association, which represents Teaneck sergeants, lieutenants, and captains, have negotiated jointly with Teaneck since 1979. The present dispute has its origins in a collective bargaining agreement (the “Agreement“) that was in effect for an original term of January 1, 2004 to December 31, 2007, and which remained in effect through June 2011 due to an impasse in negotiations.
1. Overtime Compensation
The Agreement provides that police officers work established and regularly recurring work periods of either seven or nine days. These periods combine so that police officers are required to work an average of 39.25 hours per week over the course of a calendar year. Officers work under either a “Six and Three” or a “Five and Two” plan. Those working under the “Six and Three” plan work six eight-hour tours over six consecutive days and then have three consecutive days off. Those under the “Five and Two” plan work five eight-hour tours over five consecutive days and then have two consecutive days off.
If an officer performs work in excess of his or her normal hours in any tour of duty, that work is considered overtime which is compensated at a rate of time and one-half. The Agreement provides for the accrual of overtime pay in blocks based on the amount of time worked after a regular tour. For example, if an officer works less than 31 minutes past his scheduled tour, hе receives no overtime; if the officer works between 31 minutes and 44 minutes past his scheduled tour, he receives 30 minutes of overtime; if he works between 45 and 52 minutes past his scheduled tour, he receives 45 minutes of overtime; and if he works between 53 and 59 minutes past his scheduled tour, he receives one hour of overtime. Any overtime beyond one hour accrues in blocks of 15 minutes.
2. Muster Time
The Agreement also provides for inspection and roll call, or “muster time,” which takes place ten minutes prior to the start of officers’ tours and ten minutes at the end of their tours. Officers are required to report for muster time dressed and prepared for duty. The effect of muster time is that for each eight-hour tour, officers may work for eight hours and twenty
3. Donning & Doffing
The Agreement also sets forth specific uniform and equiрment requirements to which Teaneck police officers must adhere while on duty. The uniform components of individual police officers depend on whether the officer is assigned to the “Uniform Division” or the “Non-Uniform Division.”
Regardless of assignment, there is no rule, regulation, or other policy requiring that police officers don or doff their uniform at Teaneck Police Headquarters. However, some officers choose to don and doff partially at home and partially at work, and some choose to don and doff completely at Teaneck‘s headquarters, either in the locker rooms or their personal offices. The option to change at work is primarily for the benefit of police officers who have indicated concerns regarding:
(1) the risk of loss or theft of uniforms and gear at home; (2) potential access to the gear by family members; (3) distractions at home that might interfere with the donning process; (4) safety concerns with performing firearm checks at home; (5) discomfort associated with wearing the gear while commuting; (6) the increased risk of being identified as a police officer while off-duty; and (7) potential exposure of family members to contaminants and bodily fluids.
App. at 115.
The Agreement, as well as all prior collective bargaining agreements between the parties, is silent as to whether Teaneck officers are entitled to compensation for time spent donning and doffing. Additionally, the officers’ unions have never requested, through contract negotiations or other means, compensation for time spent donning and doffing.
B. Procedural Background
On December 16, 2009, Local 215 filed a complaint against the Township of Teaneck under the FLSA to recover unpaid compensation for: (1) overtime; (2) time spent during muster time; and (3) time spent donning and doffing uniforms and equipment each day. On June 9, 2010, an amended complaint was filed which removed Local 215 as a party to the suit and left only the officers, in their individual capacitiеs, as plaintiffs.
Teaneck subsequently filed a motion to dismiss, but the motion was terminated when the District Court stayed the case and directed the parties to mediation. Following an unsuccessful mediation, the District Court held a pre-trial conference, at which Teaneck moved under
The spreadsheet identified the dates each officer worked and those in which the officer was in uniform and not in uniform. It assumed that each officer worked eight hours, plus 20 minutes in muster time, plus 30 minutes daily donning and doffing for uniformed officers and 15 minutes daily donning and doffing for non-uniformed officers. Thus, according to the officers, they were entitled to оvertime compensa-
Thereafter, the parties filed cross-motions for summary judgment. The District Court granted Teaneck‘s motion and denied the officers’ motion on December 28, 2012. In regards to the officers’ overtime claim, the Court concluded that Teaneck qualified for an exemption to the general overtime provisions of
The officers’ timely notice of appeal to this Court fоllowed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under
We exercise plenary review over a district court‘s grant of summary judgment. Madison v. Res. for Human Dev., Inc., 233 F.3d 175, 180 (3d Cir.2000). Summary judgment will be proper “if the pleadings, depositions, answers to interrogatories ... 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.”
Our review of a district court‘s interpretation of the FLSA is plenary. Id.
III. DISCUSSION
Appellants’ challenge to the District Court‘s order is based upon a series of alleged factual and legal errors. Specifically, Appellants argue that the District Court erred in finding that: (1) Teaneck qualified for an exemption to the general overtime provisions, pursuant to
A. Overtime Compensation
1. The § 207(k) Exemption
Under the FLSA, employers are generally required to pay employees at overtime rates for work in excess of forty hours per workweek.
The exemption operates mainly “to soften the impact of the FLSA‘s overtime provisions on public employers ... [by] rais[ing] the average number of hours the employer can require [employees] to work without triggering overtime require- ment[s].” O‘Brien v. Town of Agawam, 350 F.3d 279, 290 (1st Cir.2003); see also Lawrence v. City of Philadelphia, 527 F.3d 299, 303 (3d Cir.2008) (recognizing that
In the instant case, neither party disputes that Teaneck police officers are еngaged in law enforcement within the meaning of the FLSA; thus, the only issue before us is whether Teaneck established a qualifying work period. Appellants argue that it was error for the District Court to conclude that Teaneck qualified for and established a valid
This question presents an issue of statutory interpretation. “As with any question of statutory interpretation, our analysis begins with the plain language of the statute.” Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). We note first that the text of
Appellants urge that two district court cases, O‘Hara v. Menino, 312 F.Supp.2d 99 (D.Mass.2004) and Ackley v. Department of Corrections, 844 F.Supp. 680, 687 (D.Kan.1994), support a different outcome. In O‘Hara, a group of police officers brought an action against the city in which they worked, alleging violations of the FLSA regarding overtime compensation. 312 F.Supp.2d at 103. The district court in that case concluded that the city was not entitled to the
Similarly, in Ackley, the district court held that the defendant had not met its burden of proving that it adopted a
Neither O‘Hara nor Ackley alter our analysis. Appellants’ reliance on O‘Hara, as well as the footnote citing to a First Circuit decision, is unpersuasive and foreclosed by more recent case law from the First Circuit, which rejects the notion that an employer is required to expressly state its intent to adopt a
Appellants’ reliance on Ackley is also foreclosed by more recent case law from the Tenth Circuit, which rejects a requirement that an employer expressly intend to adopt a
Finally, we note that our holding here is in accordance with that of our sister Circuits. All courts of appeals to consider this issue have held that, in order for an employer to qualify for the
2. Calculation of Overtime Damages
When an employee brings a claim under the FLSA, he ordinarily bears “the burden of proving that he performed work for which he was not properly compensated.” Anderson v. Mt. Clemens Pottery, 328 U.S. 680, 687 (1946), superseded by statute, Portal-to-Portal Act of 1947,
Appellants argue that the District Court erroneously applied the burden of proof standard when it concluded that they failed to establish overtime damages. Appellants argue that Teaneck‘s records were so inaccurate as to render the proper calculation of damages impossible and, therefore, the burden of proof should have been shifted to Teaneck to rebut Appellants’ proffered evidence. Teaneck, on the other hand, argues that it did maintain adequate employment records. Teaneck points out, however, that the District Court‘s entry of summary judgment resulted not from a failure to shift the burden of proof, but from Appellants’ failure to set forth any evidence of alleged uncompensated overtime, whether it be actual or estimated.
We agree with Teaneck‘s characterization of the District Court‘s opinion. The District Court highlighted the fact that the only evidence submitted by the officers of alleged overtime damages was a spreadsheet, which based its calculations on the assumption that overtime accrued for any time worked beyond an eight-hour tour. As the District Court correctly observed, such a framework does not provide any basis for discerning whether the hours worked by each individual officer exceeded
To be clear, the spreadsheet did indeed provide an estimation of muster time and time spent donning and doffing, but it failed to make clear whether each officer worked the entirety of his or her tour or how that tour fit into each officer‘s broader work period. Such a failure proves key here. The uncontested facts demonstrate that: (1) a Tour Commander handwrites each officer‘s scheduled hours on a “Daily Blotter“, App. at 97; (2) the Daily Blotter records regularly scheduled hours, as well as muster time, overtime worked on a given day, sick time, vacation days or time due, and any shift exchanges among officers, id.; (3) Teaneck maintains, in addition to the Daily Blotter, records of the time officers actually work overtime pursu- ant to the Agreement, App. at 106; (4) when officers work overtime, they are required to punch a timecard, after which approval is obtained by a superior officer and eventually the Chief officer, id.; (5) officers are permitted to “sign out” with the Tour Commander during the last ten minutes of their eight hour and twenty minute tour, but still receive credit for the full eight hours and twenty minutes; and (6) Teaneck maintains overtime records, which refleсt the reason for the overtime, necessary approvals for it, the method of compensation for it, and the overtime both worked and paid pursuant to the Agreement, id.
Despite all of the above information, Appellants conceded that not a single officer was able to provide an estimate of his or her uncompensated overtime damages or time worked for which they believe they were not compensated. App. at 116. They also conceded that they were unable to provide any documentation that could be used to refute the hours set forth in Teaneck‘s records. Id. Amidst all of their concessions, Appellants do not argue that they lacked access to the records maintained by Teaneck, nor are there any allegations that Teaneck withheld those records.3 Absent any evidence to support the officers’ estimates of their overtime damages, Appellants’ calculations on the sprеadsheet become mere speculation, and are insufficient to support the requisite inference necessary to meet their burden. Martin, 949 F.2d at 1297 (the employee must “submit sufficient evidence from which violations of the [FLSA] and the amount of an award may be reasonably inferred.“) (emphasis added). Because
B. Muster Time
Appellants next argue that the District Court incorrectly interpreted the Agreement in reaching the conclusion that Teaneck officers are compensated for muster time as a component of their base salaries. They contend that the Agreement provides that officers are paid based upon an eight-hour tour of duty and, therefore, the additional twenty minutes of daily muster time constitutes time for which they are uncompensated. Teaneck, on the other hand, argues that officers are paid fоr muster time as a component of their base salaries, and that officers have always been aware of this arrangement. Teaneck points out that the parties have negotiated terms of employment and compensation for years through collective bargaining and it would make little sense for the officers to repeatedly enter into an agreement under which they performed uncompensated work. This dispute, as the District Court correctly observed, presents a matter of contract interpretation.
Although federal law governs the construction of a collective bargaining agreement (“CBA“), traditional rules of contract interpretation apply when not in- consistent with federal labor law. Teamsters Indus. Emps. Welfare Fund v. Rolls-Royce Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir.1993). “[W]here a court is called on to interpret a [CBA] it is generally appropriate for the court to look beyond the face of the [CBA].” Se. Pennsylvania Transp. Auth. v. Bhd. of R.R. Signalmen, 882 F.2d 778, 784 (3d Cir.1989). The Supreme Court has affirmed this method of interpretation because:
A [CBA] 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. It is a generalized code to govern a myriad of cases which the draftsman cannot wholly anticipate. The collective agreement covers the whole employment relationship. It calls into being a new common law—the common law of a particular industry.
Transp.-Commc‘n Emps. Union v. Union Pac. R.R., 385 U.S. 157, 161 (1966) (citations and internal quotation marks omitted). Thus, when interpreting such agreements, “it is necessary to consider the scope of other related [CBAs], as well as practice, usage and custom pertaining to all such agreements.” Id.
Appellants set forth a number of arguments to support their position that muster time constitutes time for which officers are uncompensated. None of those argu-
The same can be said for Appellants’ next argument. Appellants claim that the Agreement provides for overtime based on an eight-hour day, rather than an eight-hour and twenty-minute day. Appellants point out that the Agreement provides for full overtime compensation once officers reach the overtime threshold; thus, it defies reason that Teaneck would pay twice for time it already deems compensated. Again, this argument fails to prove one way or another whether muster time is compensated as a component of the officers’ base salaries. The mere fact that the parties may hаve negotiated a generous overtime compensation package once a threshold timeframe is met provides little assistance in analyzing the question of muster time compensation.
Finally, Appellants direct our attention to two cases which they believe support their position that muster time should be compensated separately from their regular work schedules. See O‘Brien v. Town of Agawam, 350 F.3d 279, 298 (1st Cir.2003) (concluding that roll-call pay had to be included in officers’ weekly hours worked under the FLSA and compensated as overtime since it pushed the officers’ weekly hours worked over the forty-hour threshold); Barvinchak v. Ind. Reg‘l Med. Ctr., 2007 WL 2903911, 2007 U.S. Dist. LEXIS 72805 (W.D.Pa. Sept. 28, 2007) (analyzing the viability of a claim for straight time compensation under the FLSA where the plaintiff has worked overtime under
Turning to the Agreement in the instant matter, we think it is clear that muster time was contemplated as a component of the officers’ base salaries. Article VII of the Agreement sets forth that “[a] normal tour of duty shall be an eight (8) hour time division of the day for the purposes of assignment.” See App. at 96 (emphasis added). That same section goes on to state that “[e]mployees will report for duty ten (10) minutes prior to the start of their tour ... and ... will be dismissed from duty ten (10) minutes after the end of their tour.” Id. The only reasonable interpretation of this language is that an officer‘s work schedule, on any given day, is eight hours and twenty minutes. Such a reading would therefore encompass the tour of duty, the assignment, and pre- and post-tour muster time. This reading of the Agreement lends itself to the conclusion that muster time is a required component of an officer‘s daily tour schedule, a fact that both parties were aware of at the time employment-related negotiations took place.
We note that our conclusion is reinforced by the parties’ extensive history of collective-bargaining negotiations, which began in 1979 and continued every few years thereafter. There is no indication that muster time has ever been treated as a separate entity from an officer‘s normal tour of duty, or that it was ever compensated separately. Nor is there any indication that the officers disputed the arrangement. Taking the Agreement as a whole, combined with the actions of both parties over the course of thirty years, we conclude that Teaneck officers are compensated for muster time as a component of their negotiated salaries. Accordingly, we will affirm the District Court‘s grant of summary judgment as it relates to Appellants’ claim regarding muster time.
C. Donning and Doffing
Appellants assert various arguments regarding their donning and doffing claim, including allegations that the District Court: (1) failed to consider that their uniforms are necessary to the principal work performed by the officers; (2) erred in holding that the uniforms are not for the benefit of the employer; (3) erred in concluding that
Section 203(o) of the FLSA sets forth that, when determining hours worked for purposes of the wage and hour laws:
[T]here shall be excluded any time spent in changing clothes or washing at the
beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.
1. The Agreement
We note first that the express terms of the Agreement in this case are silent as to whether Teaneck officers are entitled to compensation for time spent donning and doffing. We, therefore, must determine whether there is a “custom or practice” under the Agreement of excluding change time from compensable hours worked.
We confronted this issue head on in Turner v. City of Philadelphia. In that case, 200 current and former corrections officers brought a class action suit against the City of Philadelphia and the City Prisons Commissioner seeking overtime compensation under the FLSA for the time they spent changing into and out of their uniforms. 262 F.3d at 224. The express terms of the applicable CBA between the parties did not mention an exclusion of change time from hours worked and, therefore, the dispositive issue was whether there was a “custom or practice undеr a bona fide collective-bargaining agreement” in the corrections system of excluding change time from compensable hours worked. Id. at 225. We concluded that there was. Id. at 227. In reaching this conclusion, we highlighted the district court‘s reliance on the following undisputed facts: (1) the employer had not compensated corrections officers for change time for over thirty years; (2) every agreement between the officers and the employer had been silent as to compensation for uniform change time; (3) the union never made any requests for a uniform maintenance allowance or overtime compensation for mandatory pre-shift roll calls; and (4) the union never filed a grievance or demand for arbitration based on a lack of compensation for change time. Id. at 225. Because the facts established the officers’ long-standing acquiescence to a “custom or practice” of the non-compensability of change time, we affirmed the district court‘s conclusion. Id. at 227.
The instant case is factually similar to Turner. The record demonstrates that the relationship between Teaneck and its police officers has been governed by CBAs for the past thirty years. App. at 88. During that time, and over the course of various periods of negotiation, none of the agreements have compensated police officers for change time. App. at 116. The record makes clear that the police officers’ unions neither requested compensation for change time during those negotiations, nor did they even consider raising the issue. Id. Indeed, Appellants concede that Teaneck officers were aware that Teaneck had a policy of not providing additional compensation for donning and doffing and the unions never even filed a grievance or demand for arbitration based on such non-compensability. Id. Those facts certainly establish a longstanding acquiescence on the part of the officers and the unions to а “custom or practice” of non-compensability of change time. Because the facts indicate that there is a custom or practice under a
2. Time Spent “Changing Clothes”
The Supreme Court recently defined the term “clothes,” as used in
Where a court assesses the compensability of particular items for purposes of
The question for courts is whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’ If an employee devotes the vast majority of the time in question to putting on and off equipment or other nonclothes items ... the entire period would not qualify as ‘time spent in changing clothes’ under
§ 203(o) , even if some clothes items were donned and doffed as well. But if the vast majority of the time is spent in donning and doffing ‘clothes’ as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.
Sandifer, 134 S.Ct. at 881 (emphasis in original).
Applying the foregoing princiрles to the facts of this case, we hold that Appellants’ donning and doffing of the uniforms and equipment at issue qualifies as “changing clothes” within the meaning of
In sum, we conclude that there is a custom or practice under a bona fide CBA of not compensating Teaneck officers for time spent donning and doffing, and that the vast majority of the time in question is spent changing “clothes,” as defined by the Supreme Court. Because both elements necessary for application of the
IV. CONCLUSION
For the reasons set forth above, we will affirm the order of the District Court.