Jeffrey Allen v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-1029

JEFFREY ALLEN, et al.,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 C 3183 — Sidney I. Schenkier, Magistrate Judge.

____________________

ARGUED APRIL 6, 2017 — DECIDED AUGUST 3, 2017

____________________

Before EASTERBROOK, MANION, and HAMILTON, Circuit

Judges.

HAMILTON, Circuit Judge. This appeal arises from a Fair La-

bor Standards Act collective action. Plaintiffs are current and

former members of the Chicago Police Department’s Bureau

of Organized Crime who claim that the Bureau did not com-

pensate them for work they did off-duty on their mobile elec-

tronic devices (BlackBerrys). The case was tried to the court,

Magistrate Judge Schenkier, presiding by consent under 28

2 No. 16-1029

U.S.C. § 636(c). The judge issued detailed findings of fact and

conclusions of law in favor of the Bureau, finding that it did

not prevent plaintiffs from requesting payment for such non-

scheduled overtime work and did not know that plaintiffs

were not being paid for it. Plaintiffs appeal, but we find no

persuasive reason to upset the judgment of the district court.

We affirm the judgment for the Bureau.

I. The Fair Labor Standards Act

We begin by explaining the standards that apply under the

Fair Labor Standards Act when an employer asserts that it did

not know of the overtime work for which employees claim

they were not paid. The Act, codified as 29 U.S.C. § 201 et seq.,

requires employers to pay covered employees at one-and-a-

half times their usual pay rate if they are employed for longer

than a certain hourly threshold. That threshold is usually

forty hours per week. § 207(a)(1). For law enforcement em-

ployees like these plaintiffs, the threshold is one hundred and

seventy-one hours per twenty-eight day period. § 207(a)(1) &

(k); 29 C.F.R. § 553.230(b).

The statute defines “employ” broadly, as “to suffer or per-

mit to work.” § 203(g). That broad definition is central to the

purpose of the Act. It helps prevent evasion by employers

who might seek to issue formal written policies limiting over-

time that are widely violated, or who might deliberately close

their eyes to overtime work their employees are doing. See

Kellar v. Summit Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011)

(employer cannot “sit back and accept” work without com-

pensating it, even if employer has rules against overtime

work), quoting 29 C.F.R. § 785.13. Employers must, as a result,

pay for all work they know about, even if they did not ask for

the work, even if they did not want the work done, and even

No. 16-1029 3

if they had a rule against doing the work. Id., citing Chao v.

Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008). If the

employer does not want to pay overtime, its management

must “exercise its control and see that the work is not per-

formed.” 29 C.F.R. § 785.13.

That strict rule has a limit, however. It “stops short of re-

quiring the employer to pay for work it did not know about,

and had no reason to know about.” Kellar, 664 F.3d at 177. The

employer’s knowledge can be either actual or constructive. Id.

An employer has constructive knowledge of an employee’s

work if it should have acquired knowledge of that work

through reasonable diligence. Hertz v. Woodbury County, 566

F.3d 775, 781 (8th Cir. 2009).

One way an employer can exercise diligence is by estab-

lishing a reasonable process for an employee to report uncom-

pensated work time. That principle has been at least implicit

in our cases. In Gaines v. K-Five Construction Corp., 742 F.3d

256, 271 (7th Cir. 2014), for example, we affirmed summary

judgment for an employer that did not know the plaintiff was

working overtime. We reasoned, in part, that although the

employer gave its employees a form on which to record their

time, the plaintiff did not use the form as intended: he noted

the overtime in a margin note on the wrong part of the form

and omitted it when completing the appropriate section. That

misuse prevented an inference that the employer knew about

the overtime. Id.

The Sixth and Ninth Circuits have been more explicit, af-

firming summary judgment for employers who set up pro-

cesses for reporting overtime that the plaintiffs did not use.

White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 876

(6th Cir. 2012) (affirming summary judgment for employer:

4 No. 16-1029

“When the employee fails to follow reasonable time reporting

procedures she prevents the employer from knowing its obli-

gation to compensate the employee … .”); Forrester v. Roth’s

I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981) (affirming

summary judgment for employer: “where an employer has no

knowledge that an employee is engaging in overtime work

and that employee … deliberately prevents the employer

from acquiring knowledge … , the employer’s failure to pay

… is not a violation of [§] 207”). We agree with their reason-

ing.

But an employer’s formal policy or process for reporting

overtime will not protect the employer if the employer pre-

vents or discourages accurate reporting in practice. White, 699

F.3d at 876 (distinguishing cases “where the employer pre-

vented the employees from reporting overtime”). Such em-

ployer misbehavior might be overt. In Allen v. Board of Public

Education, 495 F.3d 1306, 1316 (11th Cir. 2007), for example,

plaintiff-employees were told that they should not record

their overtime hours and that their employer would not pay

overtime. Accurate time sheets were rejected, torn up, or ed-

ited. Or the employer might be more subtle. In Brennan v. Gen-

eral Motors Acceptance Corp., 482 F.2d 825, 827 (5th Cir. 1973),

the employees’ jobs demanded “long and irregular hours,”

but their supervisors “insisted that all work be completed

within certain defined time limits.” The employer’s practices

effectively “squelched truthful responses” in overtime re-

ports. Id. at 827–28.

II. Factual and Procedural Background

With that legal background, we turn to the facts of this

case, which comes to us following a trial to the court. We

No. 16-1029 5

therefore review the district court’s factual findings deferen-

tially, and our account of the facts tracks its factual findings.

See Fed. R. Civ. P. 52(a)(6) (“Findings of fact … must not be set

aside unless clearly erroneous … .”). We focus especially on

the court’s findings about the Bureau’s knowledge of plain-

tiffs’ overtime reporting, the issue central to the district court’s

decision and this appeal.

This case was brought by Jeffrey Allen and fifty-one other

opt-in plaintiffs. Plaintiffs are current or former members of

the Chicago Police Department’s Bureau of Organized Crime.

(Although the City of Chicago is the defendant here, the focus

is on practices specific to the Bureau, though we must con-

sider some actions of the larger Chicago Police Department.)

The Bureau is a prestigious assignment for Chicago police of-

ficers. Its members conduct sophisticated investigations into,

for example, gangs, narcotics trafficking, and human traffick-

ing. Although members have scheduled shifts, the nature of

their work sometimes requires them to work outside their

shifts during what would otherwise be off-duty time. The po-

lice department issued plaintiffs mobile electronic devices

(BlackBerrys), which they sometimes used in their off-duty

work. This suit is over whether they were appropriately com-

pensated for off-duty work on their BlackBerrys.

The police department has a process that officers use to

obtain overtime compensation: they submit “time due slips”

to their supervisors. The slips are small; there is some space

for explaining what work was done, and officers usually put

a short, vague phrase in the space. The slip does not ask how

the work was done, and officers do not typically include that

information. Supervisors approve the time, and the slips are

sent to payroll and processed. Plaintiffs regularly used that

6 No. 16-1029

system; the fifty-two plaintiffs collectively reported and re-

ceived pay for three to four thousand overtime hours per year

from 2011 to 2014. But during the period relevant to this suit,

many plaintiffs did not submit slips for off-duty work done

on mobile electronic devices.

The central question in the trial court was whether plain-

tiffs were prevented or discouraged from submitting slips by

an unwritten policy of the Bureau’s.1 The district court certi-

fied an FLSA collective action before discovery, then after dis-

covery refused to decertify the collective action, denied sum-

mary judgment, and held a bench trial. After a six-day bench

trial, the court ruled for the Bureau in a thorough memoran-

dum opinion.

The court resolved several preliminary questions before

addressing whether the Bureau had the unwritten policy

plaintiffs alleged. The court agreed with plaintiffs that some

of their off-duty BlackBerry activity was work that was com-

pensable under the FLSA. It acknowledged evidence that Bu-

reau supervisors knew plaintiffs sometimes worked off-duty

on their BlackBerrys. But the court also found that the super-

visors did not know or have reason to know that plaintiffs

were not submitting slips and therefore were not being paid

for that work. Although supervisors in theory could have

checked what they knew of plaintiffs’ off-duty work against

the time slips they approved, the court found that requiring

them to do so would be impractical: supervisors approved a

1 Plaintiffs tell us that they did not specify whether the policy was

written or unwritten; they attribute the “unwritten policy” framing to the

district court. Plaintiffs’ complaint did not refer to an unwritten policy,

but their response to the Bureau’s decertification motion did, as did their

pre- and post-trial proposed findings of fact.

No. 16-1029 7

large number of slips per day, and slips were sometimes sub-

mitted and reviewed well after the work was performed.

Also, the court found, plaintiffs never told their supervisors

that they were not being paid for such work.

The court then turned to the central question: whether

plaintiffs had shown the existence of an unwritten policy not

to compensate them for off-duty work performed on their

BlackBerrys. It considered four categories of plaintiffs’ evi-

dence of such a policy: evidence of (1) a Bureau-wide belief

that officers should not turn in slips for BlackBerry work; (2)

written policies to that effect; (3) pressure to reduce overtime

in general; and (4) pressure not to seek compensation for

BlackBerry work in particular.

On the first point, the evidence was in conflict. Some plain-

tiffs testified that the Bureau’s culture would frown on sub-

mitting slips for BlackBerry work. But other Bureau officers,

including some plaintiffs, submitted slips for such work and

were never denied compensation. Some supervisors know-

ingly approved slips submitted for such work; others proba-

bly did so without knowing it since the slips did not indicate

whether the work was done on a BlackBerry or not. No one

ever told plaintiffs not to submit slips for that work, and no

one was ever reprimanded or disciplined for submitting such

slips. All told, the court concluded, the evidence did not bear

out the common culture plaintiffs alleged.

Plaintiffs’ second point focused on four documents. The

first was a “General Order” issued by the Chicago Police De-

partment in October 2010. The order established “guidelines

and responsibilities” for officers using department-issued

electronic devices. The order said that officers were not re-

quired to use such devices while off-duty. It said that officers

8 No. 16-1029

would not be compensated for such use except in two circum-

stances: if the officer was on a “call-back” assignment (a term

defined in collective bargaining agreements) or if a superior

directed and authorized overtime for the work. The order also

introduced the second significant document, a “Compliance

Statement,” to be signed when an officer received a device. By

signing, the officer acknowledged that he would “not be com-

pensated” for accessing the device off-duty except under the

same circumstances explained in the order.

In 2013, the Department issued another General Order on

the same topic. It repeated many of the 2010 Order’s points

word-for-word. But instead of saying that officers would “not

be compensated” for off-duty device use except under certain

circumstances, it said that off-duty officers “will not use” de-

vices except under those circumstances. The Bureau’s chief is-

sued a memorandum to the Bureau’s deputy chief and com-

manders reiterating that the 2013 General Order applied to

the Bureau, although he did not distribute the memorandum

to lower-ranking officers.

The district court wrestled with the orders, noting confu-

sion about what they were meant to accomplish and express-

ing disappointment that the Bureau never made a “simple

written statement” on compensation of BlackBerry work. De-

spite the confusion, the court made two important findings.

First, it rejected plaintiffs’ trial position on the orders. Plain-

tiffs contended that the orders required them either to obtain

a supervisor’s approval before working overtime or to forgo

compensation. The court disagreed, noting that the orders de-

scribed themselves as “guidelines” and that neither plaintiffs

nor the Bureau ever acted as though the orders required pre-

No. 16-1029 9

approval of overtime. Second, in a lesson that might not sur-

prise students of organizational behavior, the court found that

the orders actually had no effect on plaintiffs or their supervi-

sors. The judge emphasized the uniform testimony to that ef-

fect, as well as the witnesses’ incomplete and inconsistent un-

derstandings of the orders’ meaning. As a result, the judge

found that the orders neither created a policy not to compen-

sate plaintiffs nor reaffirmed an existing unwritten policy.

The third and fourth categories of plaintiffs’ evidence

posed fewer problems. The district court noted testimony that

the Bureau sporadically tried to reduce its officers’ overtime.

Supervisors occasionally discussed the topic and sent emails

to their subordinates about reducing overtime requests. This

was not a concerted effort, and it was unsuccessful. Total over-

time in the Bureau did not decrease, and plaintiffs’ overtime

increased over the relevant period. No plaintiff changed how

he or she handled overtime slips for BlackBerry work because

of these efforts. Nor did Bureau supervisors deter submission

of slips for BlackBerry work. Plaintiffs cited two examples of

alleged pressure, but both addressed overtime generally, not

BlackBerry work specifically, and neither became common

knowledge. Plaintiffs also emphasized that their supervisors

did not tell them to submit slips for BlackBerry work, but the

court found that the Bureau’s overtime procedure did not re-

quire such directions. Officers usually submitted slips with-

out being told to do so.

After its discussion of plaintiffs’ arguments and the evi-

dence, the court found that plaintiffs had not shown that the

Bureau maintained an unwritten policy to deny them com-

pensation for off-duty BlackBerry work. It ruled in the Bu-

reau’s favor.

10 No. 16-1029

III. Analysis

Plaintiffs convinced the district court that they worked

overtime on their BlackBerrys. But plaintiffs also had to show

that the Bureau actually or constructively knew they were not

reporting that work. According to the district court, they

failed. We review the court’s legal conclusions de novo and its

factual findings for clear error. Isby v. Brown, 856 F.3d 508, 521

(7th Cir. 2017), citing Ernst v. City of Chicago, 837 F.3d 788, 795–

96 (7th Cir. 2016).

Plaintiffs make two legal arguments: (1) that the district

court’s decision is unprecedented; and (2) that the district

court misapplied the constructive knowledge standard. But

their primary arguments are factual; they take an “any of the

above” approach to challenging the district court, arguing

that the Bureau actually knew about their underreporting, or

should have known, or caused it. Because they rely on the

same evidence to support each theory, we consider the theo-

ries together, although we do not consider several arguments

made for the first time on appeal.

A. Legal Error

Plaintiffs believe three of the district court’s findings make

this case unique: (1) that plaintiffs performed compensable

off-duty work; (2) that their supervisors knew about the work;

and (3) that their supervisors neither knew nor should have

known the plaintiffs were not compensated for that work. No

case in this or any other circuit, they claim, shares those fea-

tures. That is not correct. The district court cited such a case,

which plaintiffs do not attempt to distinguish: White v. Baptist

Memorial Health Care Corp. The plaintiff in that case, a nurse,

was not compensated for her meal breaks because she usually

No. 16-1029 11

did not work during them. 699 F.3d at 872. If the meal break

was interrupted by work, she and her co-workers were sup-

posed to record their work in a log book to be paid for the

time. The employer also had a procedure employees could

use to report payroll errors. The plaintiff did not use either

process but later sued to be paid for interrupted meal breaks.

Id. at 872–73. Even though she sometimes told her supervisors

that she worked during her meal breaks, the district court

granted summary judgment for the employer and the Sixth

Circuit affirmed. The court reasoned that the plaintiff never

told anyone that she was not being paid for missing her meal

breaks, even though her employer had a reporting system and

did not prevent her using it. Id. at 876–77.

White parallels what the district court found happened

here. Plaintiffs in this case, like the nurse in White, worked

time they were not scheduled to work, sometimes with their

supervisors’ knowledge. They had a way to report that time,

but they did not use it, through no fault of the employer, ac-

cording to the district court’s factual findings. Reasonable dil-

igence did not, in the district court’s view, require the em-

ployer to investigate further. Since, as we explain below, we

see no clear error in that view of the facts, we see no legal error

in reaching the same conclusion as the White court.2

Plaintiffs also claim that the district court misapplied the

concept of constructive knowledge, but they are not clear

about what the court’s error was. Plaintiffs seem to contend

2 The White panel was divided on whether the case should have been

resolved on summary judgment. See White, 699 F.3d at 879–84 (Moore, J.,

dissenting). In this case the trial record reveals genuine issues of material

fact that could not have supported summary judgment.

12 No. 16-1029

that constructive knowledge should be found whenever the

employer could have known about uncompensated work

through, for example, examining all its records. In this case,

the Bureau could have discovered plaintiffs’ uncompensated

BlackBerry work by comparing the time slips to call and email

records the BlackBerrys generated, and so (plaintiffs reason)

it should be deemed to have had constructive knowledge of

the unpaid work.

The Bureau contends that we need not address that argu-

ment. It reads White to hold that an employer’s constructive

knowledge is categorically irrelevant if its employee has in-

tentionally falsified his time records. White did not go that far.

It held that “if an employer establishes a reasonable process

for an employee to report uncompensated work time the em-

ployer is not liable for non-payment if the employee fails to

follow the established process.” Id. at 876. But White distin-

guished cases in which “the employer prevented the employ-

ees from reporting overtime or were otherwise notified of the

employees’ unreported work,” and listed several such cases.

Id. (collecting cases). The Bureau believes the court’s “other-

wise notified” language means that only an employer’s actual

knowledge suffices. But White’s list of example cases included

Reich v. Dep’t of Conservation & Natural Resources, 28 F.3d 1076,

1083–84 (11th Cir. 1994), which the White court characterized

as a case in which the “employer had constructive

knowledge.” 699 F.3d at 876. That undercuts the Bureau’s

broad interpretation.

Moreover, such a broad interpretation of White equates

reasonable diligence with a reasonable reporting process, im-

plying that all an employer ever needs to do is establish a rea-

No. 16-1029 13

sonable process for reporting overtime. We see no need to cre-

ate such a blanket rule. The requirements of reasonable dili-

gence depend on the facts of each case. White did not change

that, and neither do we.

Nor do we accept plaintiffs’ position, which would break

still more sharply with established precedent. The reasonable

diligence standard asks what the employer should have

known, not what “it could have known.” Hertz, 566 F.3d at

782, citing Reich v. Stewart, 121 F.3d 400, 407 (8th Cir. 1997);

Craig v. Bridges Brothers Trucking LLC, 823 F.3d 382, 392 (6th

Cir. 2016) (“Some cases may lend themselves to a finding that

access to records would provide constructive knowledge of

unpaid overtime work, but that is not a foregone conclu-

sion.”) (quotation omitted); Newton v. City of Henderson, 47

F.3d 746, 749 (5th Cir. 1995) (holding, as a matter of law, that

employer’s access to records reflecting uncompensated over-

time “does not constitute constructive knowledge”). The dis-

trict court applied that standard correctly here.

B. Waiver

It is “well settled that arguments presented for the first

time on appeal are waived.” Bailey v. International Brotherhood

of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Help-

ers, Local 374, 175 F.3d 526, 529 (7th Cir. 1999). That rule serves

several important purposes, including that it keeps appellate

courts from resolving questions “that require the factfinding

abilities of the district judge.” Id. at 530. The rule also protects

both parties’ ability to present evidence in support of their po-

sitions. See Singleton v. Wulff, 428 U.S. 106, 119–21 (1976) (re-

versing “unacceptable” appellate court decision to proceed to

merits questions not considered in trial court in part because

14 No. 16-1029

losing party “has had no opportunity” to offer evidence or ar-

guments); cf. Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015) (di-

vided panel debating appropriateness of appellate court con-

ducting its own factual research), rehearing en banc denied

by equally divided court, 2015 WL 10767326 (7th Cir. Dec. 7,

2015).

On appeal, plaintiffs have argued new factual theories, in-

cluding interpretations of the evidence not argued to the dis-

trict court.3 They argue, correctly, that we have discretion to

consider arguments raised for the first time on appeal. See

County of McHenry v. Insurance Co. of the West, 438 F.3d 813,

820 (7th Cir. 2006). We use that discretion rarely, however,

when the waiver “has caused no one—not the district judge,

not us, not the appellee—any harm of which the law ought to

take note.” Amcast Industrial Corp. v. Detrex Corp., 2 F.3d 746,

749 (7th Cir. 1993). We may use it “to entertain arguments that

turn on pure issues of law,” particularly arguments that

would have been foreclosed in the district court by binding

precedent. Hively v. Ivy Tech Community College of Indiana, 853

F.3d 339, 351 (7th Cir. 2017) (en banc). Plaintiffs’ arguments

are not in that category. They would require us in effect to re-

try the case on a cold record. We do not consider them.

That decision covers two of plaintiffs’ arguments. They ar-

gued on appeal that their complaint gave the Bureau actual

knowledge that they were working without compensation;

they did not make that argument to the district court. They

3The Bureau raised the waiver issue in its appellate briefing; in their

reply, plaintiffs asserted that the allegedly waived issues “were raised, of-

ten repeatedly, during the trial.” They did not cite the record to support

that claim, and our review of the record produced no support for it.

No. 16-1029 15

also argued on appeal that the Bureau’s culture discouraged

compensation for all “not significant” overtime—short-dura-

tion work, work on administrative tasks, and work performed

from home. But in the district court, they argued only that the

Bureau discouraged compensation for work done on a Black-

Berry. They did qualify that argument, conceding that the Bu-

reau would compensate certain kinds of BlackBerry work, in-

cluding long stretches of work. But the broader argument that

all insignificant overtime was forbidden is new on appeal.

C. Factual Errors?

We turn to the factual arguments that are properly before

us. Plaintiffs argue that the district court got the facts of this

case wrong—that it clearly erred by holding that the Bureau

did not actually or constructively know they were underre-

porting their overtime or pressure them to do so.

We reject these arguments. First, plaintiffs emphasize that

the Bureau knew they worked overtime on their BlackBerrys.

As we have explained, that point does not win the case. The

district court agreed that the Bureau knew about at least some

off-duty BlackBerry work. But it also found that the Bureau

did not know that such work was not being reported and

paid. Repeating the former point does not respond to the lat-

ter.

Second, plaintiffs emphasize that their supervisors did not

tell them to submit slips for BlackBerry work. But supervisors

did not give those instructions for any particular type of work.

As the district court found, plaintiffs and other officers knew

the procedures for claiming overtime pay and used them

without regular reminders.

16 No. 16-1029

Third, plaintiffs point out that supervisors remembered

approving very few slips for BlackBerry work and that the Bu-

reau was not able to produce many slips submitted for that

work. True, but as the district court found, that was because

slips need not and usually did not say how work was done.

Fourth, plaintiffs argue that the Bureau could and should

have cross-referenced slips that had been submitted against

either phone records or supervisors’ knowledge of overtime

to ensure that its employees were reporting their time cor-

rectly. Plaintiffs cite supervisors who said that they regularly

looked at slips and called plaintiffs’ proposal “possible.”

Those citations in plaintiffs’ appellate brief edit out contrary

testimony describing plaintiffs’ proposal as “burdensome”

and “an impossible task.”4 Given that testimony, the district

4Elsewhere in their brief, plaintiffs selectively quote a former chief of

the Bureau. The witness explained that when he was non-exempt, he

sometimes would not submit overtime slips for short work sessions. He

was asked if that was how to get ahead in the Chicago Police Department.

Plaintiffs quote part of his reply, implying his answer was equivocal

agreement: “I think you get ahead by, if you want to—I think it’s just hard

work. And if that’s part of hard work in getting the job done, maybe.” But

his full reply was, “No, I don’t think so. I mean, I don’t think anyone—

honestly, I don’t think anyone really keeps that close a track of that. I think

you get ahead by, if you want to—I think it’s just hard work. And if that’s

part of hard work in getting the job done, maybe. But just the fact that, oh,

I worked overtime, didn’t put a slip in, there’s guys in these units, Detec-

tive Division and in Organized Crime, that have prolific amounts of over-

time, and they still get promoted and get ahead.” This court has cautioned

counsel to be conscientious when editing quotations to avoid giving the

appearance of trying to mislead the court. See Cleveland Hair Clinic, Inc. v.

Puig, 200 F.3d 1063, 1069 (7th Cir. 2000); United States v. Burrell, 963 F.2d

976, 983–84 (7th Cir. 1992); Duggan v. Board of Education of East Chicago

Heights, 818 F.2d 1291, 1297 n.14 (7th Cir. 1987).

No. 16-1029 17

court reasonably found that plaintiffs’ proposal was “ex-

tremely impractical.”

Finally, plaintiffs attempt to undercut the force or credibil-

ity of various evidence, pointing out, for example, that one

supervisor testified that her subordinate submitted slips for

phone calls but did not produce those slips, that another tes-

tified about a misdated slip and others submitted recently,

and that a third was not sure whether his subordinate’s off-

duty phone calls were made on his BlackBerry. Plaintiffs also

point out that the district court mistakenly implied that a par-

ticular person testified when in fact someone else testified

about him. This is not the stuff from which clear errors are

made. We do not sit to re-weigh the district court’s plausible

findings about credibility, much less the occasional scrivener’s

error. See TABFG, LLC v. Pfeil, 746 F.3d 820, 823 (7th Cir. 2014)

(clear error standard requires special deference to the district

court’s determinations of credibility); Fyrnetics (Hong Kong)

Ltd. v. Quantum Group, Inc., 293 F.3d 1023, 1028 (7th Cir. 2002)

(clear error standard does not permit reversal based on re-

weighing evidence), quoting Anderson v. Bessemer City, 470

U.S. 564, 573–74 (1985).

We do not mean to imply that plaintiffs had no evidence

in their favor. As the district court found, “many plaintiffs

credibly testified that they did not submit” slips for off-duty

BlackBerry work. Some said that was because of the Bureau’s

culture or out of concern for their positions. One plaintiff, a

supervisor, told his subordinates that others might frown on

such slips. We are especially troubled by the 2010 General Or-

der and the accompanying compliance statement, which an-

nounced that employees “will not be compensated” for Black-

18 No. 16-1029

Berry work except under certain circumstances. That lan-

guage appears to run flatly contrary to the Bureau’s FLSA ob-

ligations.5 The Bureau says that the order still permitted com-

pensation in most circumstances, but that argument is cold

comfort: the Bureau cannot refuse to compensate any of its

employees’ work. If the Bureau had won summary judgment,

or judgment as a matter of law, this appeal would present

very different issues.

But having correctly proceeded to trial, the district court

was not obliged to resolve conflicts in the evidence in plain-

tiffs’ favor. And there were conflicts in the evidence. While

witnesses blamed the Bureau for their reluctance to submit

overtime slips, they could not point to anything the Bureau

did to cause that reluctance—not instructions, discipline, or

reprimands. Some officers did submit slips for BlackBerry

work, and the Bureau paid them.6 As for the General Orders,

5 The trial testimony also reflected some employee confusion about

the circumstances in which they needed to submit slips. One can certainly

argue that an employer has not created a reasonable reporting system—

has not been reasonably diligent—if its employees do not know when to

use that system. See Craig, 823 F.3d at 390 (reversing summary judgment

for employer in part because it was “unclear whether Craig even knew

she was allowed to petition for overtime compensation at all”). But that

was not plaintiffs’ theory at trial, so the district court did not and we do

not draw any conclusions from that testimony.

6 Plaintiffs explain this evidence with a more elaborate version of their

unwritten-policy theory. On this account, the Bureau’s unwritten policy

had (at least) two exceptions: it would pay for BlackBerry work so long as

the work session was long enough or the work was part of an “official

assignment” (an undefined term). At some point, elaborating a theory to

avoid bad facts looks like post hoc rationalization—the equivalent of Ptol-

emaians adopting epicycles to fit their geocentric theory to inconvenient

No. 16-1029 19

the district court found that no plaintiff stopped submitting

slips and no supervisor refused to approve slips because of

them. Plaintiffs point to no contrary evidence on appeal. As

unfortunate as the Bureau’s phrasing was in the General Or-

der, we are not “left with the definite and firm conviction that

a mistake has been committed.” Furry v. United States, 712 F.3d

988, 992 (7th Cir. 2013) (defining clear error) (citation omitted).

The judgment of the district court is AFFIRMED.

facts instead of adopting Copernican heliocentrism. The court was not

obliged to accept plaintiffs’ explanations.