Clark v. Delaware Valley School District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

REBECCA CLARK, SCOTT, :

SIEGFRIED, and IVAN : No. 3:18-cv-00660

SANTIAGO, :

:

Plaintiffs, :

:

v. : (SAPORITO, M.J.)

:

DELAWARE VALLEY :

SCHOOL, :

:

Defendant. :

MEMORANDUM

This matter is before the court on the cross motions for partial

summary judgment filed by the defendant, Delaware Valley School

District, and by the plaintiffs. (Doc. 20; Doc. 22). On March 23, 2018, the

plaintiffs initiated this action by filing a complaint seeking relief under

the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. and under the

Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann.

§ 260.1.

I. Statement of Facts

The defendant Delaware Valley School District (the “District”) is a

school district within the Middle District of Pennsylvania where its

principal place of business is located in Milford, Pennsylvania. The

District authorized the creation of a school police force in the fall of 2007.

The plaintiffs are Rebecca Clark, Scott Siegfried, and Ivan Santiago, and

at all relevant times, they were school police officers employed by the

District. The plaintiffs regularly worked five eight-hour shifts weekly,

plus an uncompensated half-hour lunch each day, and the plaintiffs were

not completely released from their duties during the lunch half-hour. In

late November 2017, the police officers began working eight-hour days,

rather than the eight and one-half hour days. In addition, the plaintiffs

were not provided lockers and as a result they were required to spend

approximately thirty minutes of uncompensated time daily changing into

and out of their uniforms and protective gear before and after work.

Plaintiff Clark alleged that she accumulated approximately 120 of

uncompensated lunch time while the plaintiffs Siegfried and Santiago

accumulated approximately 285 hours of uncompensated lunch time

through March 23, 2018. The plaintiff Clark accumulated approximately

100 hours of uncompensated time dedicated to covering special events

while the plaintiffs Siegfried and Santiago accumulated approximately

180 hours of uncompensated time dedicated to covering special events.

Plaintiff Clark has accumulated 52 hours of uncompensated time

donning and doffing her uniform and gear while plaintiffs Siegfried and

Santiago have accumulated approximately 270 hours of uncompensated

time donning and doffing their uniforms and protective gear. All three

plaintiffs accumulated approximately 75 hours of uncompensated travel

time going to and returning from uncompensated after-school events.

The plaintiffs’ complaint consists of a claim for unpaid overtime

compensation, an additional amount as liquidated damages, reasonable

attorneys’ fees and costs under the Fair Labor Standards Act, 29 U.S.C.

§ 201, et seq., and under the Pennsylvania Wage Payment and Collection

Law, 43 Pa. Cons. Stat. Ann. § 260.1. The plaintiffs alleged that on

November 22, 2017, the District provided the plaintiffs with a

memorandum dated February 15, 2007 which stated that the plaintiffs

are exempt employees under the FLSA.

The District filed its motion for partial summary judgment seeking

determinations from this court that (1) the FLSA does not apply to this

case until August 22, 2016, because prior to that date, the plaintiffs were

part of a school police force of less than five officers; (2) The plaintiffs’

claims for liquidated damages are precluded because the district

reasonably sought out the advice of counsel, explained the facts to

counsel, and relied on counsel’s advice in maintaining the plaintiff’s

classification as exempt employees; and (3) that the plaintiffs be

precluded from seeking damages for time related to “donning and doffing”

their uniforms and gear.

II. Legal Standards

Under Rule 56 of the Federal Rules of Civil Procedure, summary

judgment should be granted only if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A dispute of material fact is “genuine” only if the evidence “is such

that a reasonable jury could return a verdict for the non-moving party.”

Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all

inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the

movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell

Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

The party seeking summary judgment “bears the initial

responsibility of informing the district court of the basis for its motion,”

and demonstrating the absence of a genuine dispute of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must set forth specific facts, supported

by the record, demonstrating that “the evidence presents a sufficient

disagreement to require submission to the jury.” Anderson, 477 U.S. at

251–52.

“The rule is no different where there are cross-motions for summary

judgment.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.

2008).

Cross-motions are no more than a claim by each side

that it alone is entitled to summary judgment, and the

making of such inherently contradictory claims does

not constitute an agreement that if one is rejected the

other is necessarily justified or that the losing party

waives judicial consideration and determination

whether genuine issues of material fact exist.

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968). Thus,

“when presented with cross motions for summary judgment, the Court

must consider the motions separately, and view the evidence presented

for each motion in the light most favorable to the nonmoving party.”

Borrell v. Bloomsburg Univ., 63 F. Supp. 3d. 418, 433 (M.D. Pa. 2014)

(citation omitted). “[E]ach movant must demonstrate that no genuine

issue of material fact exists; if both parties fail to carry their respective

burdens, the court must deny [both] motions. Quarles v. Palakovich, 736

F. Supp. 2d 941, 946 (M.D. Pa. 2010) (citing Facenda v. N.F.L. Films,

Inc., 542 F.3d 1007, 1023 (3d Cir. 2008)).

III. Discussion

A. The District’s Motion for Partial Summary Judgment

The District seeks the following rulings from the court: (1) The

FLSA does not apply to this case until August 22, 2016, because before

that date the plaintiffs were members of the school police force which

consisted of less than five officers; (2) the plaintiffs’ claims for liquidated

damages are precluded because the District reasonably sought the advice

of counsel and relied on counsel’s advice when it classified the plaintiffs

as exempt employees; and (3) the plaintiffs are precluded from seeking

damages for time related to “donning and doffing” of their uniforms and

gear.

1. The Application of the FLSA

The Fair Labor Standards Act (“FLSA”) was enacted in 1938 to

protect covered workers from substandard wages and oppressive working

hours. Tyger v. Precision Drilling Corp., 308 F. Supp. 3d 831, 840 (M.D.

Pa. 2018) (citations omitted). To accomplish this goal, “[t]he FLSA

establishes federal minimum-wage, maximum-hour, and overtime

guarantees that cannot be modified by contract.” Id. Among these

guarantees is a section stipulating that covered employers may not

employ any employee “for a workweek longer than forty hours unless

such employee receives compensation for his employment . . . at a rate

not less than one and one-half times the regular rate at which he is

employed.” Id. An employer who violates this section may be held liable

for backpay, liquidated damages, and attorney's fees.

The District maintains that its school police force was comprised of

less than five officers until August 22, 2016, and therefore the FLSA’s

maximum hour requirements in any workweek did not apply until that

date. The plaintiffs argue that the District employed five officers at all

times material to the plaintiffs’ complaint, i.e. March 23, 2015, through

August 22, 2016. The FLSA states in pertinent part as follows:

The provisions of [29 U.S.C. § 207] shall not apply

with respect to—

(20) Any employee of a public agency who in any

workweek . . . is employed in law enforcement

activities . . . if the public agency employs during

the workweek less than 5 employees . . . in law

enforcement activities. . . .

29 U.S.C. § 213(b)(20).

Before a public employer may qualify for the § 207(k) exemption,

however, two things must be true: “(1) the employees at issue must be

engaged in fire protection or law enforcement within the meaning of the

statute and (2) the employer must have established a qualifying work

period.” Calvao v. Town of Framingham, 599 F.3d 10, 14 (1st Cir. 2010)

(citing O’Brien v. Town of Agawam, 350 F.3d 279, 290 (1st Cir. 2003)).

The employer bears the burden of proving that these conditions are

satisfied. Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1143 (3d

Cir. 1983) (noting that “[t]he burden of proof is on the employer to

establish an [FLSA] exemption”); see also Arnold v. Ben Kanowsky, Inc.,

361 U.S. 388, 392 (1960). To meet this burden, the employer must

demonstrate “that the employee and/or employer come ‘plainly and

unmistakably’ within the exemption’s terms.” Lawrence, 527 F.3d at 310

(observing that FLSA exemptions should be construed narrowly and

against the employer (citing Arnold, 361 U.S. at 392)).

The District contends that its school police force was comprised of

only four officers at its inception in 2007: Mark Moglia (Chief),

Christopher Burns, plaintiff Santiago, and plaintiff Siegfried, all of whom

were initially appointed by the board. The District maintains that when

Officer Burns resigned in January of 2011, its police force was reduced to

three members. A replacement for Officer Burns was not hired until

February 2013, when Officer Martin Gaughan joined the police force,

bringing it back to a total of four officers. The District maintains that

only with the appointment of plaintiff Clark and Officer Paul Cavallaro

in August 2016, bringing the total size of the District’s police force to six

officers, did it meet the five-or-more-officers threshold.

The plaintiffs assert that Michael Chlebowski was also a duly

sworn school police officer from 2007 through the present, thereby

bringing the school police force to a total of five or more members during

the entire relevant period. (Doc. 28, at 8). The plaintiffs offer the

declaration of plaintiff Siegfried wherein he stated that at the time of his

appointment as a school police officer in 2007, Chlebowski was a sworn

school police officer. (Doc. 26-1, at 1). Chlebowski’s duties were mainly

traffic control, but Siegfried stated that Chlebowski assists in

maintaining good order in the schools, he wears a “badge, and other

School Police accoutrements.” (Id.). Thus, the resolution of this section

of the motion hinges on whether Chlebowski was engaged in law

enforcement activities.

In determining what constitutes law enforcement activities, we are

guided by the Office of Personnel Management’s (OPM) rules as to what

constitutes law enforcement activities in 5 C.F.R. § 551.216(b) which is

set out as follows:

b) Law enforcement activities. Law enforcement

activities involve work directly and primarily

concerned with:

(1) Patrol and control functions that include

patrolling an area to enforce law and order and to

protect the lives, property, and civil rights of

individuals through the prevention and detection

of criminal acts; responding to complaints,

violations, accidents, and emergencies;

investigating for clues at the scene of a crime,

interviewing witnesses, and evaluating evidence

to locate suspects; and apprehending and

arresting persons suspected of, or wanted for,

criminal violations under a statutorily prescribed

arrest authority;

(2) Executing the orders of a Federal court,

including serving civil writs and criminal

warrants issued by Federal courts; tracing and

arresting persons wanted by warrants; and seizing

and disposing of property under court orders;

(3) Planning and conducting investigations

relating to alleged or suspected violations of

criminal laws, including the arrest of suspected or

wanted persons under a statutorily prescribed

arrest authority;

(4) Security functions in a correctional institution

involving direct custody and safeguarding of

inmates charged with or convicted of violations of

criminal laws; or

(5) Rescue and ambulance functions that provide

the primary (i.e., the first called) service in

connection with law enforcement activities

described above.

In determining whether Chlebowski is engaged in law enforcement

activities, we look to 5 C.F.R. § 551.216(c)(2) which states, in pertinent

part, as follows:

c) Engaged in law enforcement activities. The

following employees are engaged in law

enforcement activities for the purpose of

determining possible application of section 7(k) of

the Act as provided for in § 551.501(a)(1) and (5)

and § 551.541:

* * * *

(2) Employees whose primary duties involve patrol

and control functions performed for the purpose of

detecting and apprehending persons suspected of

violating criminal laws;

In support of its motion on this issue, the District offers the Board

Meeting Minutes for April 6, 2006, which reflects that Chlebowski was

hired on April 6, 2006, for the position of “Traffic Control.” (Doc. 29-1, at

1-2). The Board Meeting Minutes of July 14, 2016, submitted by the

District show that Chlebowski resigned from his position effective June

10, 2016 (Doc. 29-2, at 1, 3), and he was subsequently rehired to the same

position on October 20, 2016, in a part time capacity. In addition, the

District posits that the job description for Chlebowski’s traffic control

officer position is fundamentally different from the qualifications,

requirements, essential functions, and duties of a school police officer.

(Doc. 29, at 6; Doc. 29-4; Doc. 23-6, at 100-04). While the District’s

contention has some merit, there is an overlap in some of the functions of

both positions. Both positions require reporting to and evaluation by the

Director of Administrative Services with the additional reporting to and

evaluation by the Chief of School Police for the school police officer

position. (Doc. 29-4; Doc. 23-6, at 100, 104). The “qualifications” of the

traffic control officer position are contained in the qualifications for a

school police officer, but additionally, the school police officer position

requires: a demonstrated working knowledge of investigative, interview

techniques, and supervisory skills; five years of law enforcement

experience; and Pennsylvania Act 120 certification. (Id.). Eight of the

nine “requirements” of a traffic control officer are contained in the eleven

requirements of a school police officer. (Doc. 29-4, at 1; Doc. 23-6, at 100,

103). Many of the “essential functions” and “duties” are different between

the two positions; however, the job description of traffic control officer

contains the following “duties:”

1. Control and direct motor vehicle traffic both

into and within the school campuses.

2. Assist other school officials with traffic flow

and/or parking at school events.

3. Report to school officials any unsafe or reckless

drivers, and any other unusual or suspicious

activities.

4. Maintain parking space use and report any

issues to appropriate authorities.

5. Complete any other tasks as assigned by

appropriate school officials.

(Doc. 29-4). Thus, we find that the District has not met its burden plainly

and unmistakably to show that it is entitled to the exemption’s terms,

and therefore there is a genuine issue of fact whether Chlebowski’s duties

fall within the control and patrol function contained in OPM’s guidelines

for what constitutes law enforcement activity.

Both job descriptions contain the same notice that the “job

description does not state or imply that these are the only duties to be

performed by the employee occupying this position,” and that other duties

requested by the administrator or supervisor may be required to be

performed. (Doc. 23-6, at 104; Doc. 29-4, at 2).

The District submitted the October 20, 2017, memorandum

prepared by the District Director of Administrative Services, Christopher

Lordi, to show that Chlebowski was not included on the list of recipients

of the memorandum. (Doc. 23-6, at 105-07). The District contends that

the purpose of the memorandum was to “provide further clarification for

the Officers concerning their job description, duties, and work plan. . . .”

(Doc. 29, at 6-7). We are not persuaded by this argument. A review of

the memorandum does not reflect the purpose of its preparation or its

submission to the recipients listed thereon. Mr. Lordi testified at his

deposition1 that the memorandum came about upon request of the

officers in November or December 2016 for clarification purposes. (Doc.

26-1, at 37). We note that the memorandum contains the requirement

that 1,580 hours must be worked for each school year which is equal to

1 We note that the plaintiffs conducted this deposition under Fed. R. Civ.

P. 30(b)(6). The state of the record reflects that the District has not

conducted any discovery under the Federal Rules of Civil Procedure.

190 days plus 60 event hours. The job descriptions submitted do not

contain that requirement. Further, Mr. Lordi was not asked about

Chlebowski or the job description of traffic control officer by either

counsel at his deposition.

Under these circumstances, the District’s motion for partial

summary judgment on this issue must be denied.

2. Liquidated Damages

Next, the District moves the court for summary judgment on the

plaintiffs’ claims for liquidated damages. The District asserts that the

plaintiffs are not entitled to liquidated damages because it reasonably

relied on the advice of counsel in maintaining the plaintiffs’ exempt

status based upon a Department of Labor opinion letter dated February

15, 2007. In response, the plaintiffs contend that the District made no

effort to determine the application of the FLSA despite complaints that

the Act was being violated.

The FLSA provides that “[a]n employer who violates the [overtime]

provisions of . . . section 207 . . . shall be liable to the employee or

employees affected in the amount of . . . their unpaid overtime

compensation, . . . and in an additional equal amount as liquidated

damages. . . .” 29 U.S.C. § 216(b). The liquidated damages provision

amounts to a Congressional recognition that failure to pay the statutory

minimum and overtime wages may be so detrimental to the maintenance

of the minimum standard of living “necessary for health, efficiency and

general well-being of workers” that double payment must be made to

compensate employees for losses they might suffer by not receiving their

lawful pay when it was due. See Brooks v. Vill. of Ridgefield Park, 185

F.3d 130, 137 (3d Cir. 1999); see also Brooklyn Sav. Bank v. O’Neil, 324

U.S. 697, 707 (1945); Martin v. Cooper Elec. Supply Co., 940 F.2d 896,

907 (3d Cir. 1991).

Congress subsequently mitigated the harshness of the liquidated

damage provision of Section 216(b) with the enactment of Section 260 of

the Portal-to-Portal Act. Brooks, 185 F.3d at 137. This section permits

the district court in its sound discretion to withhold or reduce the amount

of liquidated damages “if the employer shows to the satisfaction of the

court that the act or omission giving rise to such action was in good faith

and that he had reasonable grounds for believing that his act or omission

was not a violation of the [FLSA].” 29 U.S.C. § 260. In Martin, the Third

Circuit Court of Appeals explained:

The good faith requirement is a subjective one that

“requires that the employer have an honest

intention to ascertain and follow the dictates of the

Act.”. . . The reasonableness requirement imposes

an objective standard by which to judge the

employer’s conduct. . . . Ignorance alone will not

exonerate the employer under the objective

reasonableness test. . . .

If the employer fails to come forward with plain

and substantial evidence to satisfy the good faith

and reasonableness requirements, the district

court is without discretion to deny liquidated

damages.

Martin, 940 F.2d at 907-08 (quoting Williams v. Tri–County Growers,

Inc., 747 F.2d 121, 129 (3d Cir.1984)) (emphasis in original).

In support of its position that the District acted in good faith and

reasonably relied upon the advice of counsel in maintaining the plaintiffs’

exempt status classification, the District submits that the contents of

emails between the District’s superintendent and its labor counsel, which

were produced to the plaintiffs, show the District’s candor in describing

the plaintiffs’ pay structure, work schedule, duties, and the District’s

willingness to schedule a follow-up telephone call with its labor counsel.

(Doc. 21, at 17). In addition, the District contends that its labor counsel

provided the District with a Department of Labor opinion letter

regarding the exempt status issue and counsel’s ultimate opinion that

the plaintiffs are exempt employees. (Id. at 18). Finally, the District

maintains that Mr. Lordi’s deposition testimony demonstrated that the

District relied on the advice of its labor counsel. (Id.).

We begin our analysis with emails between the District’s

superintendent and its labor counsel. The superintendent emailed labor

counsel November 6, 2017, at 1:52 p.m. and informed him that some of

the school police officers “have been badgering us to give them something

in writing that better details their work requirements.” (Doc. 21-11, at

7). He further informed counsel that Mr. Lordi and the Chief of the school

police force put together the “attached memo” and worked on revising the

job description. The superintendent asked counsel two questions: [(1)]

“Are we saying anything we shouldn’t say or maybe say in a better way?

[(2)] What other legal issues might arise from our efforts to quantify

things in a memo that might come back to haunt us?” (Id.). The following

morning, the superintendent emailed counsel again at 8:15 a.m. and

asked if “any hours over 8 worked in a day are at an overtime rate or can

they be straight hours toward the 60 hours they need to work during a

year?” (Doc. 21-10, at 2). Counsel responded at 12:05 p.m. that he was

available to speak on Thursday [November 9, 2017,] between 11:00 a.m.

and 3:00 p.m. They agreed to speak that day at 11:00 a.m.

The District argues that its labor counsel provided it with the

“Department of Labor opinion regarding the exempt status of school

police (albeit, in a different jurisdiction) and his ultimate opinion that the

Plaintiffs here are exempt employees.” (Doc. 21, at 18). We have

reviewed the DOL opinion letter and note the following: (1) it is dated

February 15, 2007; (2) it contains no addressee; (3) it concerned whether

school resource officers, whose primary duty is to provide safety and

security of the students, staff, and property within a school system,

qualify for an administrative exemption under the FLSA; (4) the letter

found that the school resource officers “perform office or non-manual

work because an SRO’s typical work day consists of working in an office

writing reports or performing similar deskwork, performing training, and

providing recommendations and advice to faculty and staff.” (Doc. 21-11,

at 4); and (5) the primary duty of the SRO is office work. Under that

backdrop, the Department of Labor opined that the school resource

officers qualified for an administrative exemption. Further, the letter did

not contain the facts of the instant matter, school resource officers are

different than school police officers as testified to by Mr. Lordi, and the

letter was not requested by the District from the Department of Labor.

The email from labor counsel to the superintendent (November 9,

2017, at 11:10 a.m.) does not contain his opinion, but rather, only a web

address to access the DOL opinion letter. The state of the record is devoid

of any formal advice that labor counsel gave to the superintendent other

than forwarding the DOL opinion letter. Nor does the record indicate

whether labor counsel answered the questions asked of him by the

superintendent in his emails to counsel. The District further asserts that

it relied upon the labor counsel’s advice and refers us to Mr. Lordi’s

deposition testimony. (Doc. 21, at 18). In fact, Mr. Lordi testified that

the [DOL] letter was acquired by counsel at the end of September or

beginning of October 2017 regarding the school police officers and the

preparation of his memo. (Doc. 21-6, at 58). Nowhere in the referenced

testimony does it state that the District relied upon counsel’s opinion. We

have not been provided with any discovery from the District to ascertain

the understanding of the superintendent or to review the advice of labor

counsel. In fact, when questioned about the email exchange of November

7, 2017, between the superintendent and labor counsel, Mr. Lordi

testified that it was “sent to the wrong Chris” and he saw it for the first

time at his deposition which was taken on March 7, 2019. (Id. at 62).

Under these circumstances, we must deny the motion on this issue.

3. Donning and Doffing of Uniforms and Gear

The District argues that the plaintiffs should not be compensated

for donning and doffing their uniforms and gear because school police

officers are not required to change into or out of their uniforms and gear

at the District. The plaintiffs contend that donning and doffing uniforms

and gear are an integral and indispensable part of the principal activities

for which the officers are employed.

It is undisputed that the plaintiffs are required to be in uniform

while on duty and that there is no requirement that they change at the

District. (Doc. 20-1 ¶¶ 27, 29; Doc. 26 ¶¶ 27, 29). The District contends

that the plaintiffs have the option to change into their uniforms and gear

in their respective offices, which the plaintiffs deny. (Doc. 20-1 ¶ 28; Doc.

26 ¶ 28). In addition, plaintiff Siegfried, in his declaration, stated that

during his tenure as a school police officer for the District, he and his

colleagues have always changed into and out of their uniforms and

equipment at their respective homes as the District has not provided a

location on school premises. (Doc. 26-1 ¶ 5). Nevertheless, the parties

agree that the Third Circuit has not specifically addressed the issue

before us. (Doc. 21, at 19; Doc. 28, at 11). The plaintiffs argue that it is

of no importance whether the officers are required to change at the

District. They rely upon Lemmon v. City of Leandro, 538 F. Supp. 2d

1200 (N.D. Cal. 2007), where a police officer brought an action against

the city and sought a declaration that the time spent donning and doffing

his uniform and attendant equipment was compensable under the FLSA.

There, the city’s police department claimed that departmental policies

allowed officers the option of donning and doffing at home. Id. 538 F.

Supp. 2d at 1202. Lemmon rejected a Department of Labor advisory

opinion which stated that if the employees have the option and ability to

change into the required gear at home, it is not a principal activity. Id.

at 1207. The court in Lemmon went on to hold that the integral and

indispensable nature of the donning and doffing makes those activities

principal to a police officer’s duties. Id. at 1208. The court found that

police uniforms themselves form part of an officer’s equipment because

they are part of a “continuum of force.” Id. at 1204. The court then

reasoned that, “unlike practically any other profession,” the police

uniform is necessary to the principal work performed and, therefore,

there is “no distinction” between an officer's clothes and his or her

protective gear. Id. at 1205. Despite evidence that the plaintiffs had the

option to change at home, the Lemmon court concluded that the fact that

“most” officers used lockers at the police station to don and doff was a

“strong indicia” that such practice was a “de facto” requirement. Id. at

1206; see also Maciel v. City of Los Angeles, 542 F. Supp. 2d 1082

(C.D.Cal. Mar. 21, 2008) (finding that “for all practical purposes” police

equipment had to be donned and doffed at the station). Finally, the court

ruled that even if the officers were given the option to change at home,

there is no explicit requirement that there be “a location limitation [in]

the analysis for finding compensability under the FLSA.” Lemmon, at

1206.

The District relies upon Bamonte v. City of Mesa, 598 F.3d 1217,

1225-26 (9th Cir. 2010), where the Ninth Circuit held that police officers’

donning and doffing of their uniforms is not compensable under the FLSA

when the police department does not require the donning and doffing to

occur at the workplace. There, the court relied upon the reasoning in

Abbe v. City of San Diego, No. 05cv1629 DMS (JMA), 2007 WL 4146696

(S.D. Cal. Nov. 9, 2007), where the court stated that:

It is important to note . . . that the relevant

inquiry is not whether the uniform itself or the

safety gear itself is indispensable to the job—they

most certainly are—but rather, the relevant

inquiry is whether the nature of the work requires

the donning and doffing process to be done on the

employer’s premises.

Id. at *7 (emphasis in the original). We find the reasoning in Bamonte to

be more persuasive than the reasoning in Lemmon. In addition, despite

the absence of precedent on this issue in this judicial circuit, we look to

the analysis the Third Circuit undertook in Rosano v. Township of

Teaneck, 754 F.3d 177 (3d Cir. 2014), where the court held that the time

spent by police officers donning and doffing uniforms and equipment was

subject to the FLSA exclusion, 29 U.S.C. § 203(o), and thus the officers

were not entitled to additional compensation for time spent changing

clothes. Rosano contained a collective bargaining agreement, the express

terms of which were silent on whether the officers were entitled to

compensation for time spent donning and doffing. So, the court analyzed

the issue by determining whether there was a “custom or practice” under

the agreement of excluding change time from compensable hours worked.

The court concluded that there was a custom or practice under a bona

fide collective bargaining agreement of not compensating the officers for

time spent donning and doffing, and that the vast majority of the time in

question was spent changing “clothes,” as defined by the Supreme Court

in Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014). Because both

elements necessary for application of the § 203(o) exclusion applied, the

Teaneck officers were precluded from seeking compensation for time

spent donning and doffing their uniforms and safety equipment.

Based upon the foregoing, we find that there is no genuine issue of

material fact whether the school police officers are entitled to

compensation for donning and doffing their uniforms and gear, and thus

the District is entitled to summary judgment on this issue.

B. The Plaintiffs’ Motion for Partial Summary Judgment

The plaintiffs have moved for partial summary judgment on four

issues: (1) Whether the District violated the FLSA by misclassifying the

plaintiffs as FLSA exempt administrative employees; (2) Whether the

District violated the FLSA’s overtime provisions by not paying the

plaintiffs one and one-half times their regular hourly rate for hours

worked over 40 in a given week; (3) Whether the District’s failure to

comply was willful; and (4) Whether the District is liable for liquidated

damages for a failure to show good faith and reasonable grounds for

violating the FLSA.

1. Administrative Exemption

The plaintiffs contend that the District misclassified them as

exempt administrative employees. The District argues that the

plaintiffs’ primary duties consisted of non-manual work thereby allowing

the District to classify them as exempt. We begin our analysis with a

review of the pertinent exemption section at issue.

(a) Minimum wage and maximum hour

requirements. The provisions of sections 6…

shall not apply with respect to—

(1) Any employee employed in a bona fide

executive, administrative, or professional

capacity …

29 U.S.C. § 213(a)(1). The administrative exemption applies to

employees who (1) earn a certain minimum salary; (2) have as their

primary duty the performance of office or non-manual work directly

related to management or business operations of the employer or the

employer’s customers; and (3) have the primary duty that includes the

exercise of discretion and independent judgment with respect to matters

of significance. 29 C.F.R. § 541.200(a). The District concedes that the

first element of the administrative exemption is not in dispute because

all three plaintiffs earn the required minimum salary. (Doc. 30, at 7 n.3).

Therefore, we focus our attention on the second and third criteria to

arrive at our decision on this issue.

“As to the administrative nature of the employee’s primary duties,

the employee’s activities must be directly related to assisting with the

operation of the business of the employer, as distinguished from, for

example, working on a manufacturing production line or selling a product

in a retail or service establishment.” O’Bryant v. City of Reading, 197

Fed. App’x 134, 136 (3d Cir. 2006). “An employee’s primary duty is

defined as work that involves over 50% of the employee’s work time.” Id.

(citing Reich v. Gateway Press, Inc., 13 F.3d 685, 699 (3d Cir.1994)).

“However, this standard is flexible, depending on the importance of the

administrative duties conducted, the frequency of use of discretionary

power, the freedom from supervision, and comparative wages” Id. at 136-

37 (citing Guthrie v. Lady Jane Collieries, 722 F.2d 1141, 1144 (3d

Cir.1983) (concluding “a sufficient presence of pertinent factors” was

enough to find managerial duties as the employee’s primary duties even

though they were performed less than 50% of the work time); Lott v.

Howard Wilson Chrysler–Plymouth, 203 F.3d 326, 331 (5th Cir.2000) (“As

a general rule, an employee’s “primary duty” involves over 50% of the

employee’s work time. And yet, flexibility is appropriate when applying

this rule.”)).

In its regulations, the Department of Labor defines “primary duty”

as:

the principal, main, major or most important duty

that the employee performs. Determination of an

employee’s primary duty must be based on all the

facts in a particular case, with the major emphasis

on the character of the employee’s job as a whole.

Factors to consider . . . include, but are not limited

to, the relative importance of the exempt duties as

compared with other types of duties; the amount

of time spent performing exempt work; the

employee’s relative freedom from direct

supervision; and the relationship between the

employee’s salary and the wages paid to other

employees for the kind of nonexempt work

performed by the employee.

29 C.F.R. § 541.700(a).

Generally speaking, “[w]hen 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.’” Rosano, 754 F.3d at 188;

Carter v. City of Philadelphia, 417 F. Supp. 3d 639, 644 (E.D. Pa. 2019).

“Because the FLSA gives no ‘textual indication’ that its exemptions

should be construed narrowly,” the Supreme Court recently held that

“there is no reason to give them anything other than a fair (rather than

a ‘narrow’) interpretation.” Encino Motorcars, LLC v. Navarro, 138 S. Ct.

1134, 1142 (2018). That is, one that is “neither narrow nor broad.” Sec’y

U.S. Dep’t of Labor v. Bristol Excavating, Inc., 935 F.3d 122, 135 (3d Cir.

2019). The question whether an employee is exempt is a mixed question

of law and fact. Pignataro v. Port Auth. of New York & New Jersey, 593

F.3d 265, 268 (3d Cir. 2010). The burden of proving these exemptions is

upon the employer, and if the record is unclear as to some exemption

requirement, the employer will be held not to have satisfied its burden.

Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 206 (1966); Martin,

940 F.2d at 900.

Here, we analyze the facts as contained in the job descriptions, the

deposition testimony of Mr. Lordi, and the declarations of the plaintiffs.

Each of the plaintiffs have submitted a declaration which itemizes

their respective duties. They all perform the following duties:

1. Patrolling the halls of the school;

2. Physically checking the door of the building;

3. Investigating complaints of contraband, including

weapons;

4. Taking contraband, including weapons, away from

students;

5. Breaking up fights;

6. Acting as school crossing guard;

7. Maintaining order in the event of an emergency;

8. Following established lock down or evacuation

procedures in the event of an emergency;

9. Maintaining order at school events;

10. Crowd control at school events;

11. Maintaining a physical presence at school events;

12. Preparing daily logs summarizing the day;

13. Acting as a truancy officer; and

14. Making arrests for summary violations and

detaining suspects for local and state law

enforcement.

(Doc. 23-2: Doc. 23-3; Doc. 23-4). With respect to Chief Moglia, Mr. Lordi

testified that the Chief does not have the ability to fire or discipline school

police officers, although he does have the ability to instruct them on how

to conduct their work. (Doc. 23-1, at 11). The Chief submits monthly

reports to Mr. Lordi that the other officers are not required to submit.

(Id. at 12). Mr. Lordi stated that the primary duty of school police officers

is the “safety and security of the students and faculty, any employee in

their building.” (Id. at 27). He further described their duties to include

monitoring their buildings to make sure entries and exits are secure

(physically patrol the buildings and view security cameras); serving as a

crossing guard; complete walking checks throughout the interior and

exterior of the buildings; being visible in the hallways (described as their

“main duty”); preparing building budgets for the drug and alcohol

education program known as D.A.R.E. (approximately $750 per officer);

assisting administrators with disciplinary issues including bus

discipline, truancy, fights (including physically breaking-up a fight), and

weapon possession; attending assemblies and other group events

(including speaking on safety topics); participate in the student assistant

program; training administrators and professional staff on lockdown and

evacuation procedures; and submitting daily logs of activity; (Id. at 24-

36).

Neither the plaintiffs nor the District offered evidence of the

percentage of time the plaintiffs spent doing the various tasks. See 29

C.F.R. § 541.700(b) (“The amount of time spent performing exempt work

can be a useful guide in determining whether exempt work is the primary

duty of an employee.”). An appropriate inquiry is to examine the

plaintiffs’ primary value to the school system. Ferrell v. Gwinnett Cty.

Bd. of Educ., 481 F. Supp. 2d 1338, 1344 (N.D. Ga. 2007) (finding school

police officers were subject to administrative exemption from FLSA’s

overtime provisions). The District asserts that the record demonstrates

that the plaintiffs’ primary duties were comprised of non-manual work

directly related to the business operations of the District which included

the exercise of discretion and independent judgment with respect to

matters of significance regarding the safety, training, and well-being of

students and faculty members. (Doc. 30, at 7). On the summary

judgment record before us, viewed in the light most favorable to the non-

moving defendant, we agree.

With respect to the issue of non-manual labor, the record shows

that the plaintiffs: (1) make sure entries and exits are secure; (2)

complete walking checks throughout the interior and exterior of the

buildings; (3) are visible in the hallways; (4) prepare building budgets for

the drug, alcohol, and safety program known as D.A.R.E.; (5) assist

administrators with disciplinary issues including bus discipline, truancy,

fights (including physically breaking-up a fight), and weapon possession;

(6) attend assemblies and other group events which include speaking on

safety topics and soliciting speakers for those events; (7) participate in

the student assistant program; (8) train administrators and professional

staff on lockdown and evacuation procedures and design protocols in the

event of District wide emergencies; and (9) teach classes to students on

issues such as safety, drugs, and gangs (D.A.R.E program). Although the

record is silent as to the amount of time the plaintiffs spent on such

matters, these duties are not typically performed by rank and file police

officers employed by ordinary law enforcement agencies, and the duties

illustrate the unique value and function that the plaintiffs provided to

the overall school system. See Ferrell, 481 F. Supp. 2d at 1344. Ferrell

is particularly instructive on this issue. There, the plaintiffs, referred to

as “school resource officers,”2 were salaried police officers employed by

the defendant school system who were responsible for proactively

preventing and responding to safety and security problems. They were

paid a salary substantially higher than the standard salary for a police

2 The position of “school resource officer” in Ferrell is different than the

“school resource officer” position described by Mr. Lordi in his deposition.

In Ferrell, the plaintiffs were employees of the school system, much like

the plaintiffs here, not employees of a municipal or state police force as

were the “school resource officers” referenced in Mr. Lordi’s testimony.

officer with comparable experience. Each plaintiff maintained an office

at a school in his cluster and spent a portion of his day in his office or the

offices and classrooms of faculty and staff, completing paperwork,

working on his computer, making telephone calls, conducting interviews,

holding meetings, and making presentations. Although those plaintiffs

had offices, they were expected to spend a majority of their time out of

the office performing other duties. Id. at 1342. In Ferrell, the court

found that the primary and most important function of the officer was to

provide for the safety and security of the people and property in their

clusters. In doing so, the court found that an officer performs the hybrid

function of an in-house law enforcement officer with certain quasi-

administrative responsibilities. Thus, many duties of those officers did

not constitute manual work. Id. at 1344. The court conceded that the

plaintiffs did perform some manual work—such as making arrests and

breaking up fights—but concluded that this did not preclude

administrative status where the bulk of the officers’ work was non-

manual. Id. at 1345. In this case, the record is silent as to how much of

the plaintiffs’ time was spent making arrests, issuing summary citations,

or breaking up fights on campus.

The plaintiffs maintain, and we agree, that the Department of

Labor’s regulations expressly state that police officers typically are not

administratively exempt because “their primary duty is not the

performance of work directly related to the management or general

business operations of the employer or the employer’s customers as

required under § 541.200.” See 29 C.F.R. § 541.3(b)(1)(3). (Doc. 27, at 9).

However, the Ferrell court was faced with the same argument and the

court addressed the issue by distinguishing police officers who work for a

law enforcement agency from police officers who are employed by a school

system, due to the difference in the nature of their respective employers’

businesses. Ferrell, 481 F. Supp. 2d at 1346; see also Martin, 940 F.2d at

903 (“[I]t is important to consider the nature of the employer’s business

when deciding whether an employee is an administrative or production

worker”). Further, the Ferrell court drew the following distinction:

[I]ndividuals whose primary duty is law

enforcement are typically found to be non-exempt

when employed by a law enforcement agency

because the employees are producing the end

product that the agency exists to produce—

security to the public. Stated another way, because

law enforcement agencies are in the business of

providing protection and security to the public,

police officers are the line workers of the police

department.

By contrast, the School System is in the business

of educating students, not providing law

enforcement. Thus, rather than producing the

School System’s end product of education,

Plaintiffs are servicing the School System’s

business of education.

Ferrell, 481 F. Supp. 2d at 1346-47. Ferrell concluded that the officers

were not “producing” the end product that a school system exists to

create—education—and they are therefore distinguishable from police

officers who work for a law enforcement agency. Id. at 1347.

In addition to determining whether the plaintiffs’ work is

considered non-manual in nature, we must also determine whether there

are disputed material facts relating to whether the plaintiffs exercised

discretion and independent judgment during their employment—the

third prong of the analysis. With respect to the third prong, the

regulations state that:

In general, the exercise of discretion and

independent judgment involves the comparison

and the evaluation of possible courses of conduct

and acting or making a decision after the various

possibilities have been considered. The term

‘matters of significance’ refers to the level of

importance or consequence of the work performed.

29 C.F.R. § 541.202(a). Section 541.202(c) further provides that “[t]he

exercise of discretion and independent judgment implies that the

employee has the authority to make an independent choice, free from

immediate direction or supervision.”

Employment that involves ‘discretion and independent judgment’

can be described by such factors as:

whether an employee exercises discretion and

independent judgment with respect to matters of

significance include, but are not limited to:

whether the employee has authority to formulate,

affect, interpret, or implement management

policies or operating practices; whether the

employee carries out major assignments in

conducting the operations of the business; whether

the employee performs work that affects business

operations to a substantial degree, even if the

employee’s assignments are related to operation of

a particular segment of the business; whether the

employee has authority to commit the employer in

matters that have significant financial impact;

whether the employee has authority to waive or

deviate from established policies and procedures

without prior approval; whether the employee has

authority to negotiate and bind the company on

significant matters; whether the employee

provides consultation or expert advice to

management; whether the employee is involved in

planning long- or short-term business objectives;

whether the employee investigates and resolves

matters of significance on behalf of management;

and whether the employee represents the company

in handling complaints, arbitrating disputes or

resolving grievances.

29 C.F.R. § 541.202(b).

The exercise of discretion and independent judgment does not

require that the decision have finality and complete absence of review.

29 C.F.R. § 541.202(c). It could take the form of a recommendation or a

decision that was revised at a higher level and still, for this purpose, be

considered an independent decision made within her discretion. Id.

Here, the school police officers gave advice to the school on safety

and security matters; served as a liaison with local law enforcement,

conduct investigations and determined whether to issue citations for

summary offenses under the Pennsylvania Crimes Code or for violations

of the Pennsylvania Truancy Law; investigate criminal law violations

and respond to police-related incidents occurring in school or on school

property; take law enforcement action as necessary and inform the

administrator as soon as practical; and meet with students and provide

law enforcement related counselling, guidance, and referrals to other

agencies as needed. (Doc. 23-1, at 101-02). As a result, the school police

officers meet the third element of the administrative capacity exemption.

Viewed in the light most favorable to the non-moving defendant,

the record sufficiently demonstrates that the plaintiffs’ primary duties

are comprised mostly of non-manual work directly related to the general

business operations of the District and include the exercise of discretion

and independent judgment with respect to matters of significance.

Therefore, the plaintiffs’ motion on this issue will be denied.

2. Remaining Issues

The plaintiffs also seek summary judgment on whether the District

violated the FLSA by failing to pay the plaintiffs overtime, whether its

failure to comply was willful, and whether it is liable for liquidated

damages for failure to demonstrate good faith and reasonable grounds for

its failure to comply. Having determined immediately above that there

remains a genuine dispute of material fact with respect to whether the

plaintiffs were correctly classified as exempt employees under the FLSA,

we find that a decision on these remaining issues would be merely

advisory, and thus we will deny the plaintiff’s motion on these issues. See

Williams v. Bier Int’l, LLC, No. 14CV03894-LTS-JCF, 2015 WL 4461668,

at *3 (S.D.N.Y. July 21, 2015); see also Jones v. Pawar Bros. Corp., ___ F.

Supp. 3d ___, 2020 WL 364168, at *10 (E.D.N.Y. Jan. 22, 2020) (“When

courts have decided the question of willfulness at the summary judgment

stage, either the FLSA violation was due to a misclassification of the

plaintiff as being exempt, or there existed no genuine dispute that the

employer had been on notice that it was subject to the FLSA.”).

IV. Conclusion

For the foregoing reasons, the defendant’s motion for partial

summary judgment (Doc. 20) will be granted in part and denied in part,

and the plaintiff’s motion for partial summary judgment (Doc. 22) will be

denied.

An appropriate order follows.

Dated: March 30, 2020 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.