Opinion
04 Civ. 8484 (SCR).
April 14, 2006
MEMORANDUM DECISION AND ORDER
James Gorman ("Plaintiff") brings this case individually and on behalf of others similarly situated for compensatory and liquidated damages for unpaid overtime, pursuant to the Fair Labor Standards Act ("FLSA"). He claims that his employer, Entergy Nuclear Operations, Inc. ("Defendant"), should compensate him for the time he spends, both before and after work, completing activities required by the Nuclear Regulatory Commission and Defendant, including passing through a radiation detector and an explosive material detector.
Defendant now moves to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff moves to amend his complaint for the second time. For the reasons set forth below, Defendant's motion is granted and Plaintiff's motion is denied.
I. Background
The following are the facts as set forth in Plaintiff's complaint.
Plaintiff works for Defendant at the Indian Point Energy Center ("IPEC") as an hourly nonexempt union employee covered by the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"). IPEC is under the jurisdiction of the Nuclear Regulatory Commission.
Defendant purchased IPEC from Consolidated Edison Corporation, Inc. The terms and conditions of Plaintiff's employment are set forth in a negotiated collective bargaining agreement between Defendant and the Utility Workers' Union of America, Local 1-2.
Plaintiff argues that as an "integral and indispensable qualification" of his job, he must be free of explosive material, radiological substances, false personal identification, and drugs or alcohol. (Am. Compl. ¶ 14.) Because of these requirements, he must perform the following tasks before he can begin his job:
1. Wait in line of traffic outside an entrance of IPEC before badge inspection;
2. Pass through badge inspection, which includes a check of the rear seat and floors for unauthorized items and passengers;
3. Allow for random vehicle inspection, if selected, this includes an inspection of the engine, trunk, glove compartment, seats, and under vehicle;
4. Park his vehicle;
5. Walk to Command Post;
6. While at Command Post, pass through radiation detector, metal detector, and explosive material detector;
7. Swipe ID badge and place hand in box for electronic identification;
8. Proceed to locker room to obtain required clothing, including "metal capped safety shoes," safety glasses, and helmet; and
9. Walk to work site.
(Am. Compl. ¶ 15.) At the end of his shift, Plaintiff has to perform some of these activities in reverse, except the radiation detector is a different machine and it takes longer for each individual to pass through. Id.
From September 6, 2001 until October 11, 2004, these procedures took twenty-four minutes before each shift and six minutes after each shift. On October 11, 2004, a new security entrance was opened. As a result, from October 11, 2004 to the present, these procedures took approximately twelve minutes before each shift and six minutes at the end of each shift. This time was not recorded by Defendant for payroll purposes.
II. Discussion A. Standard of Review
In evaluating a motion to dismiss, a court "must view all allegations raised in the complaint in the light most favorable to the non-moving party . . . and `must accept as true all factual allegations in the complaint.'" Newman Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163 (1993)) (citation omitted). In doing so, a court is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The court's consideration is limited to the factual allegations in plaintiffs' complaint, documents attached to the complaint as exhibits or incorporated into the complaint by reference, matters of which judicial notice may be taken, and "documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)).
A court must deny a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Stewart v. Jackson Nash, 976 F.2d 86, 87 (2d Cir. 1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Because the complaint must allege facts which confer a cognizable right of action, "`[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" York v. Ass'n of the Bar, 286 F.3d 122, 125 (2d Cir. 2002) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Plaintiff first argues that Defendant's motion should be denied because Defendant improperly converted the motion to one for summary judgment and did not provide a statement of material facts as required by Local Civil Rule 56.1. According to Plaintiff, Defendant converted the motion when it referred to Gorman v. Consolidated Edison Corp., Inc., No. 02-2800 (CM). In that case, Plaintiff is suing Defendant's predecessor. Judge Smith recommended that Plaintiff not be allowed to amend his complaint to add claims identical to the claims at issue here because such amendment would fail to state a claim. Judge McMahon agreed with Judge Smith and denied Plaintiff's motion to amend because the proposed amendments would be futile.
Plaintiff's argument is without merit. This Court may consider Judge McMahon's and Judge Smith's opinions in considering Defendant's motion to dismiss. "It is well established that a district court may rely on matters of public record in deciding a motion to dismiss under Rule 12(b)(6), including case law and statutes." Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998); see also Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004); Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991).
Moreover, this Court, in deciding this motion, did not consider Judge McMahon's and Judge Smith's opinions.
B. Defendant's Motion to Dismiss
"The FLSA was enacted to give `specific minimum 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."'" Kavanagh v. Grand Union Co., Inc., 192 F.3d 269, 271 (2d Cir. 1999) (quoting Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739 (1981) overruled on other grounds, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)) (emphasis removed). In the years immediately after the FLSA was enacted, the Supreme Court broadly interpreted the terms "work" and "employment." Most notably, the Court, in Anderson v. Mt. Clemens Pottery Co., held that the FLSA required employers to compensate employees for preliminary work activities, including walking from the factory gate to the workbench and changing into work clothes. 328 U.S. 680, 692-93 (1946).
In response to Anderson, Congress passed the Portal-to-Portal Act in an attempt "to delineate certain activities which did not constitute work, and therefore did not require compensation." Reich v. New York City Transit Authority, 45 F.3d 646 (1995). 649 (2d Cir. 1995). The Portal-to-Portal Act "narrowed the coverage of the FLSA by excepting two activities that had been treated as compensable under [the Supreme Court's] cases: walking on the employer's premises to and from the actual place of performance of the principal activity of the employee, and activities that are `preliminary or postliminary' to that principal activity." IBP, Inc. v. Alvarez, 126 S.Ct. 514, 520 (2005); see also 29 U.S.C. § 254(a).
"Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended . . . on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947 — (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." 29 U.S.C. § 254(a).
Since the enactment of the Portal-to-Portal Act, the Department of Labor and the Supreme Court have attempted to illuminate the meaning of "principal activity." The regulations define "principal activities" as "activities which the employee is `employed to perform.'" 29 C.F.R. § 790.8(a). In two cases decided on the same day, the Supreme Court further clarified the concept of principal activities. In Steiner v. Mitchell, 350 U.S. 247, 248 (1956), the Court held that "activities, such as the donning and doffing of specialized protective gear, that are `performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1).'" IBP, Inc., 126 S.Ct. at 521 (quoting Steiner, 350 U.S. at 248). In Mitchell v. King Packing Co., the Court held that employees of a meat packing company must be compensated for the time they spent sharpening their knives before or after their shifts because sharpening the knives was "an integral part of and indispensable to the various butchering activities for which they were principally employed." 350 U.S. 260, 261-63 (1956); see also § 790.8(b) (stating that the term principal activities "includes all activities which are an integral part of a principal activity").
Activities that are an integral part of a principal activity "are those closely related activities which are indispensable to its performance." § 790.8(b). As an example, the regulations describe an employee who must put on certain clothes to perform his or her job:
If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer's premises at the beginning and end of the workday would be an integral part of the employee's principal activity. . . . However, activities such as checking in and out and waiting in line to do so would not ordinarily be regarded as integral parts of the principal activity or activities.
§ 790.8(c). The Department of Labor has further stressed that "checking in and out and waiting in line to do so, changing clothes, washing up or showering, and waiting in line to receive pay checks" are non-compensable, preliminary or postliminary activities. § 790.7(g). Further, "the employee's travel on the employer's premises until he reaches his workbench or other place where he commences the performance of the principal activity or activities, and the return travel from that place at the end of the workday" is also not an integral part of the employee's principal activity. § 790.7(e).
Again, the regulations clarify that "[w]ashing up after work, like the changing of clothes, may in certain situations be so directly related to the specific work the employee is employed to perform that it would be regarded as an integral part of the employee's `principal activity.'" § 790.7(g).
The regulations distinguish between being "engaged to wait" and waiting "to be engaged." 29 C.F.R. § 790.7(h). The former is compensable, while the latter is not. Id.
Plaintiff argues that he should be compensated for the very activities that are explicitly not compensable under the law. No reasonable jury could find that the activities that Plaintiff wishes to be compensated for, including checking in and checking out, waiting in line to check in or check out, and walking to a locker room to change into work clothes are compensable activities that are integral to the performance of his principal activity. Plaintiff has presented absolutely no cases or regulations that would allow this Court to reach any other conclusion. The Plaintiff also has not presented any arguments or facts from which this Court could find that Plaintiff has a unique situation where these preshift activities are so directly related to his specific work that they are an integral part of his principal activity. Notably, Plaintiff's complaint does not even mention what kind of work Plaintiff does at IPEC. The time spent complying with the plant's security procedures are connected to maintaining the security of the plant and are not directly connected with Plaintiff's principal activity. This conclusion is strengthened by the fact that all people who enter the plant, visitors and employees alike, must go through the same process that Plaintiff does. (Pl.'s Mem. at 11.) Complying with these procedures is not preparatory preshift work akin to the meat cutters sharpening knives in King Packing Co, the battery workers putting on specialized protective gear in Steiner, the truck drivers inspecting their trucks for safety concerns in Barrentine v. Arkansas-Best Freight System, Inc., 750 F.2d 47 (8th Cir. 1984), or a radiological technologist turning on and preparing a x-ray processing machine in Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706, 715 (2d Cir. 2001). To hold otherwise would be to return to the Supreme Court's expansive definition of work in Anderson that Congress explicitly rejected. Cf. IBP, Inc., 126 S.Ct. at 527 ("We discern no limiting principle that would allow us to conclude that the waiting time in dispute here is a `principal activity' . . . without also leading to the logical (but untenable) conclusion that the walking time at issue in Anderson would be a `principal activity' . . . and would thus be unaffected by the Portal-to-Portal Act.").
"The Supreme Court has recognized that `FLSA claims typically involve complex mixed questions of fact and law. . . .'" Singh v. City of New York, ___ F. Supp. 2d. ___, 2005 WL 3215140, at *6 (S.D.N.Y. Nov. 29, 2005) (quoting Barrentine, 450 U.S. at 743). In this circuit, a trial judge must determine, as a matter of law, whether the activities at issue could constitute "work." See Holzapfel v. Town of Newburgh, 145 F.3d 516, 521 (2d Cir. 1998). Because this Court finds that the activities at issue are not work for the purposes of the FLSA, no further analysis is necessary.
He argues that as an "integral and indispensable qualification" of his job, he must be free of explosive material, radiological substances, false personal identification, and drugs or alcohol. Yet many jobs in many industries have the same requirements. If this Court found for Plaintiff, it would dramatically expand the types of activities, currently considered preliminary, that an employer would be liable for under the FLSA.
While the time that Plaintiff spends donning required clothing, including "metal capped safety shoes," safety glasses, and a helmet does gives this Court brief pause, (Am. Compl. ¶ 15). we ultimately conclude that the FLSA does not require Defendant to compensate Plaintiff for that time spent. Both the Department of Labor and the Supreme Court have distinguished between putting on specialized protective gear and simply changing clothes. According to the regulations, typically, changing clothes is a non-compensable. preliminary or postliminary activity. See, e.g., § 790.7(g). In Steiner, the Court was faced with the question of whether workers in a battery plant had a right to compensation for the time spent "changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to provide. . . ." 350 U.S. at 248. "After distinguishing `changing clothes and showering under normal conditions' and stressing the important health and safety risks associated with the production of batteries, the Court endorsed the Court of Appeals' conclusion that these activities were compensable under the FLSA." IBP, Inc., 126 S.Ct. at 521 (quoting Steiner, 350 U.S. at 249, 256). Unlike the clothes worn by workers in a chemical plant, § 790.8(c), the clothes worn by workers in a battery plant, Steiner, 350 U.S. at 248, and the equipment worn by workers in a meat processing plant. IBP, Inc., 126 S.Ct. at 521-22, steel-toed boots, safety glasses and a helmet are not specialized protective gear. Anyone could purchase them at an ordinary hardware store.
While the complaint only describes the time it takes to obtain the protective gear, this Court will construe Plaintiff's complaint to also include the time spent putting on the gear because the Supreme Court has explicitly held that the time spent waiting to obtain protective gear is not compensable. IBP. Inc., 126 S.Ct. at 527.
Moreover, even if this Court found that putting on steel-toed boots, a helmet, and safety-glasses is an integral and indispensable part of Plaintiff's principal activity, the time Plaintiff spends doing so is de minimis, and. therefore, non-compensable. See New York City Transit Authority, 45 F.3d at 652 (quoting Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir. 1984) (finding that employees should not be compensated for the average of seven to eight minutes of pre-shift activities that occurred)).
Plaintiff argues that the Supreme Court's recent decision in IBP, Inc. v. Alvarez is controlling on this case. The Court's decision, however, does not change the above analysis, and, in fact, strengthens it.
In IBP, the Court held that "any activity that is `integral and indispensable' to a `principal activity' is itself a `principal activity.'" IBP, Inc., 126 S.Ct. at 525. The Court further held that "any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is . . . covered by the FLSA." Id. Thus, the Court found that an employer had to pay employees for the time they spent donning and doffing specialized protective gear as well as for the time they spent, postdonning and predoffing, walking to and from their worksites. Id. at 521. While waiting to doff protective gear is compensable, the time spent waiting to don is not. Id. at 527.
Thus, the Court noted that "[w]alking to [the place where individuals change clothes] before starting work is excluded from FLSA coverage, but the statutory text does not exclude walking from that place to another area within the plant immediately after the workday has commenced." IBP, Inc., 126 S.Ct. at 524.
In reaching its holding, the Court specifically noted that "the fact that certain preshift activities arc necessary for employees to engage in their principal activities does not mean that those preshift activities are `integral and indispensable' to a `principal activity' under Steiner." Id. Thus, the fact that Plaintiff must engage in "certain preshift activities," including to waiting in line to enter the plant grounds, having his car searched, parking his car, walking to a security check point, getting screened, walking to a locker room to obtain work boots, safety glasses, and a helmet, and walking to his work site, does not automatically make those activities "integral and indispensable" to his "principal activity." Rather, because Plaintiff has not presented anything, aside from conclusory allegations, demonstrating that these preshift activities are "integral and indispensable" to his "principal activity," this Court can only conclude that the activities at issue are preliminary, and. therefore, non-compensable.
Plaintiff also argue that this Court, in Haight v. The Wackenhut Corporation, No. 03-9870 (SCR), has already ruled that overtime claims identical to the ones at issue here "are properly before this Court." (Pl.'s Mem. at 1.) In that decision, however, this Court considered whether the plaintiff's claims should be dismissed because of a failure to exhaust contractual grievances and arbitration procedures and remedies. This Court concluded that the plaintiff was not required to exhausted the grievance and arbitration procedures. This Court made no rulings about the merits of any overtime claims.
As Plaintiff's sole federal claim is dismissed, this Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claim. 28 U.S.C. § 1367(c) (2000); First Capital Asset Management, Inc. v. Satinwood, Inc., 385 F.3d 159, 182-83 (2d Cir. 2004) ("The exercise of supplemental jurisdiction is left to the discretion of the district court. . . . [I]f the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." (citations and quotation marks omitted)).
C. Plaintiff's Motion to Amend Complaint
Plaintiff wishes to serve a second amended complaint that "further clarifies the preliminary and postliminary activities which are integral and indispensable to the performance of said principal activities." (Pl.'s Mem. at 2.) Defendant argues that Plaintiff's motion should be denied because the changes that Plaintiff wishes to make are futile.
This Court agrees with Defendant. Plaintiff's proposed changes, which add details about the procedures he is required to perform, do not alter the non-compensable nature of the activities Plaintiff is required to perform before and after work. Plaintiff's motion is denied on futility grounds. See, e.g., DeMaria v. Andersen, 318 F.3d 170, 182 (2d Cir. 2003).
III. Conclusion
For the reasons set forth above. Defendants' motion is granted and Plaintiff's motion is denied. The Clerk of the Court is directed to close this case.
It is so ordered.