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Perez v. City of New York

United States District Court, S.D. New York

January 15, 2015

HENRY PEREZ, et al., on behalf of themselves and others similarly situated, Plaintiffs
THE CITY OF NEW YORK, BILL DE BLASIO, in his official capacity as Mayor, THE NEW YORK CITY DEPARTMENT OF PARKS & RECREATION, and MITCHELL J. SILVER, in his official capacity as Commissioner, Defendants

For Plaintiffs: Amelia K. Tuminaro, Esq., James M. Reif, Esq., Jane Chung, Esq., Gladstein Reif and Meginniss, New York, NY; Kenneth A. Falk, Esq., Kenneth Falk, Attorney at Law, New York, NY; Jesse D. Gribben, Esq., Steven E. Sykes, Esq., District Council 37, AFSCME, AFL-CIO, New York, NY.

For Defendants: Asad Rizvi, Andrea M. O'Connor, Kathryn E. Martin, Assistant Corporation Counsel, New York City Law Department, New York, NY; Eamonn F. Foley, Esq., New York City Transit Authority, Brooklyn, NY.


Shira A. Scheindlin, United States District Judge.

Plaintiffs, Associate Urban Park Rangers (" AUPRs") currently and previously employed by the New York City Department of Parks and Recreation, seek compensation under the Fair Labor Standards Act (" FLSA") for time spent donning and doffing their uniforms at the beginning and end of each work day. At the close of fact discovery, defendants moved for summary judgment on three grounds. First, defendants argue that the donning and doffing of AUPR uniforms is a non-compensable " preliminary or postliminary" activity. Second, defendants argue that the donning and doffing of AUPR uniforms is exempt from FLSA liability under the " changing clothes" clause of section 203(o) of the Act. Third, defendants argue that even if plaintiffs' legal position is sound, time spent donning and doffing is de minimus . For the reasons set forth below, defendants' first argument prevails, and their motion is GRANTED.[1]


The relevant facts are not dispute. First, plaintiffs are " required to wear a uniform during the performance of their job duties and responsibilities." [2] Second, in addition to wearing uniforms, plaintiffs are also required to don security equipment, including, inter alia, " a bullet proof vest and utility belt, " [3] as well as various items -- such as handcuffs and mace -- that " attach[] to the utility belt." [4] Third, changing into the full AUPR uniform, plus security equipment, takes a small but appreciable amount of time. Different plaintiffs testified to different exact amounts. But estimates range from 5-7 minutes -- on the shorter end -- to upwards of 20 minutes -- on the longer.[5]


The FLSA authorizes employees to recover against employers that unlawfully withhold compensation.[6] Under the Portal-to-Portal Act (" PPA"), however, compensation claims can only arise from employment obligations that are related to the " principal activity or activities" of employment.[7] An employment obligation that is " preliminary to or postliminary to [an employee's] principal activity or activities" cannot give rise to an FLSA claim.[8]

To define the scope of the " preliminary or postliminary" exception, the Supreme Court has fashioned a two-part test. Something is a " principal activity" of employment if it is both " integral and indispensable" to the job that an employee is hired to perform.[9] These elements are analytically distinct, and both must be satisfied for an FLSA claim to lie.

Indispensable " means 'necessary.'" [10] An activity is indispensable if the performance of one's job depends on its completion -- if the activity " cannot be dispensed with, remitted, set aside, disregarded, or neglected." [11] Integral, by contrast, " means [] 'essential to completeness.'" [12] An activity is integral if it is " specifically necessary to the completeness or integrity of the whole" [13] -- if it relates to the core purpose of employment. As the Second Circuit has explained, an activity " may be indispensable to [an employee's] principal activities without being integral." [14] For example, an activity that an employer requires its employees to perform at the start of the workday -- such as swiping a security badge -- is indispensable insofar as it is mandatory.[15] But that, alone, does not make the activity integral to the employee's job.[16] Indeed, the purpose of the PPA was to ensure that not all employment obligations give rise to FLSA liability.[17] This is why neither the mandatory nature of the activity, nor the fact that " the activity is [done] for the benefit of the employer, " is an appropriate metric for determining whether an activity is " integral" to employment.[18] Rather, the metric is whether an activity is " an intrinsic element" of an employee's job.[19]

In Steiner v. Mitchell, [20] the Supreme Court held that battery plant employees were entitled to compensation for time spent donning and doffing protective gear, due to the especially hazardous nature of their work environment. In so holding, the Court distinguished between (1) donning and doffing protective gear designed to mitigate the unique hazards of a work environment, and (2) the act of " changing clothes and showering under normal conditions" -- i.e., not uniquely hazardous -- " conditions." [21]

Against this backdrop, the Second Circuit has concluded that " [t]he donning and doffing of [] generic protective gear is not different in kind from 'changing clothes and showering under normal conditions, ' which, under Steiner, are not covered by the FLSA." [22] According to the Second Circuit, such " generic protective gear" includes (but is not limited to) " helmet[s], safety glasses, and steel-toed boots." [23] Furthermore, two trial court opinions from this District have also understood " generic protective gear" to include the uniforms and equipment donned by security workers. In Haight v. The Wackenhut Corp., [24] Judge Stephen Robinson reasoned that there was no meaningful difference between " helmet[s], safety glasses, and steel-toed boots, " and the " gun holster [and] inclement weather gear" that security officers at a nuclear facility were required to don.[25] Similarly, in Edwards v. City of New York, [26] Judge Denise Cote held -- in response to an FLSA claim almost identical to this one, brought by corrections officers rather than AUPRs -- that " [t]here is no basis to distinguish between the 'helmet, safety glasses, and steel-toed boots' found to be 'generic protective gear' in Gorman and the uniform, utility belt, and slash resistant vest" that corrections officers were required to wear.[27]


" Summary judgment is appropriate '[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.'" [28] Accordingly, summary judgment is appropriate " only where, construing all the evidence in the light most favorable to the [non-moving party] and drawing all reasonable inferences in that party's favor, there is no genuine issue as to any ...

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