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Gibbs v. City of New York

United States District Court, S.D. New York

January 23, 2015

CITY OF NEW YORK, POLICE COMMISSIONER WILLIAM J. BRATTON, of the Police Department of the City of New York, POLICE OFFICER KARL SCHAEFFER, individually, POLICE OFFICER KARL SCHAEFFER, in his official capacity, POLICE OFFICER EDITH MIRANDA, individually, POLICE OFFICER EDITH MIRANDA, in her official capacity, SERGEANT DANIEL J. SWEENEY, individually, and SERGEANT DANIEL J. SWEENEY, in his official capacity, Defendants

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[Copyrighted Material Omitted]

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For Gwendolyn A. Gibbs, Lanita Drew, Plaintiffs: Steven Edward Sykes, LEAD ATTORNEY, New York, NY.

For City of New York, Police Officer Karl Schaeffer, individually, Police Officer Karl Schaeffer, in his official capacity, Police Officer Edith Miranda, individually, Police Officer Edith Miranda, in her official capacity, Sergeant Daniel J. Sweeney, individually, Sergeant Daniel J. Sweeney, in his official capacity, Defendants: Yuval Rubinstein, New York City Law Department, New York, NY.

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Ronnie Abrams, United States District Judge.

When an employer requires an employee to attend alcohol counseling and treatment sessions as a condition of keeping her job, must the employer compensate the employee for the time she spends in counseling and treatment? That is the central question in this lawsuit, in which Plaintiffs Gwendolyn A. Gibbs and Lanita Drew claim that the failure of their employer, the New York City Police Department (" NYPD" ), to compensate them for attending such sessions runs afoul of the Fair Labor Standards Act, 29 U.S.C. § § 201 et seq. (" FLSA" or " Act" ). Defendants City of New York, NYPD, Police Commissioner William J. Bratton,[1] Police Officer Karl Schaeffer, Police Officer Edith Miranda, and Sergeant Daniel J. Sweeney (collectively, " Defendants" ) argue otherwise and now move for summary judgment.

Defendants first assert that, as a matter of law, Plaintiffs' attendance at the alcohol treatment and counseling sessions is not " work" within the meaning of the FLSA and that Plaintiffs are thus owed no compensation. They further argue that, in any event, some of Plaintiffs' claims are time-barred under the FLSA and must be dismissed on that basis as well.[2] Because the Court agrees with Defendants that, in the context of this case, the counseling and treatment sessions did not constitute compensable " work" for purposes of the FLSA, Defendants' motion is GRANTED. In light of its disposition with respect to the first question, the Court need not consider Defendants' second argument.


The crux of this case involves the consequences under the FLSA of employee referrals by the NYPD to its Counseling Services Unit (" CSU" ) and other alcohol counseling and treatment providers, such as Alcoholics Anonymous (" AA" ). The facts with respect to both Gibbs and Drew track the same broad outline: Each was identified by the NYPD as having a problem with alcohol use, although in both cases, Plaintiffs disputed--and continue to

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dispute--such characterization as false.[4] Next, each Plaintiff was required by the NYPD to attend mandatory alcohol treatment and counseling sessions, or else face disciplinary action including, potentially, termination. The counseling fell into three categories: inpatient counseling at a residential alcohol treatment facility, outpatient counseling during regular work hours provided by the CSU, and outpatient counseling provided by third-parties after regular work hours. Gibbs attended all three types of types of counseling, while Drew attended only the latter two. Ultimately, Gibbs' employment with the NYPD was terminated when she refused to continue counseling. Drew completed the required counseling program and remained employed with the NYPD as of the date this motion was brought.

A. The NYPD's Counseling Services Unit

The CSU exists to assist NYPD employees who have been identified as having drug or alcohol problems. Employees can be referred to the CSU by, among others, their commanding officers, by the NYPD's Medical Division, or by a family member or friend. Employees may also refer themselves. The CSU is certified by state authorities as an authorized outpatient treatment center. Defendant Daniel Sweeney served as the acting commander of the CSU when the facts underlying this case took place.

Once an employee is referred to the CSU, a counselor will meet with the employee to determine whether she has a problem with alcohol use. The counselor inquires into the nature of the employee's alcohol use by asking questions about matters such as dates and frequency, whether there is a family history of drinking, whether the employee had a progression in drinking, if the employee has experienced blackouts, and whether the employee has become sick before or after drinking. The counselor may also contact families, friends, and others to obtain a " global assessment" of the employee's alcohol use. (Schaeffer Dep. at 30:16-22.)

The goal of that assessment is to understand how the use of alcohol impacts the employee's employment, family life, financial situation, and personal life, and to determine whether the alcohol use is problematic. Once the assessment is complete, the CSU counselor discusses with supervisors whether the employee needs treatment and, if so, what treatment would be appropriate. In making that determination, the CSU staff is guided by the American Psychological Association's Diagnostic and Statistical Manual (" DSM" ).

B. Plaintiff Gibbs

Gibbs was hired by the NYPD in 2009 and began working at the 63rd Precinct as a police administrative aide in January 2010. In that capacity, she performed clerical duties, such as answering the phone, completing accident reports, and taking money orders. On June 9, 2010, Gibbs' supervisor referred her to the CSU. The report, essentially in its entirety, stated: " [Gibbs] has been at work on several occasions with AOB [alcohol on breath]. On the last incident, 3 co-workers ... reported that they all smelled AOB from [Gibbs]." (Decl. of Yuval Rubinstein (" Rubinstein Decl." ) (Dkt. 42) Ex. H). All three of these employees later testified that they made no such report. (Jones Dep. at 24:9-22; Como Dep. 17:14-18:2,

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19:20-20:7; 20:19-21:8; Benjamin Dep. 19:19-21, 21:4-10.)

Gibbs reported to the CSU four days later, where she was met by Defendant Karl Schaeffer, who introduced himself as a CSU counselor. Gibbs told Schaeffer that she drank when she " feel[s] like it." (Gibbs. Dep. at 26:25-27:3.) His report of that meeting stated in part:

1. Client reports drinking an unknown amount of cognac almost every day, after she would return home from work, for the past few years. ( Tolerance )
2. Client reports drinking in the morning for the past few months. Client further reports that it keeps her calm ( Withdrawal )
3. Prior to this interview, the client reported that she had a drink this morning and had drunk the night prior. ( Great deal of time spent in using alcohol or recovering from its effects )

( Rubinstein Decl. Ex. I.) Schaeffer ultimately concluded that Gibbs was alcohol dependent pursuant to the DSM.

Schaeffer then informed Gibbs that she would be referred for 28 days of inpatient counseling. Gibbs responded that she was not going and, in later conversations, elaborated that she did not need counseling and that she could not go because of concerns about who would care for her ill father. Eventually, upon threat of suspension or termination, Gibbs agreed she would participate in an inpatient program at the Long Island Center for Recovery (" LICR" ).

Gibbs arrived at LICR on June 16, 2010. She was diagnosed upon admission as alcohol dependent. While at LICR, Gibbs attended group meetings to discuss topics such as her feelings. She was also given personal time to herself. She was discharged on June 24. The discharge summary stated that her prognosis was " extremely poor: the client needs to get open, honest, and willing." (Rubinstein Decl. Ex. J.) During the time at LICR, she was paid her regular salary, without overtime.

After her discharge, Gibbs returned to the CSU where she met again with Schaeffer. Asked about her time at LICR, Gibbs said it was " it was pretty nice." (Gibbs Dep. at 65:17-18.) Schaeffer then discussed Gibbs' treatment plan. Gibbs was to meet with Schaeffer for individual counseling for one hour each week and attend a group session for women at the CSU for two-and-a-half hours each week. In addition, Gibbs was to attend three AA meetings per week and, beginning in late July 2010, attend outpatient ...

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