       In the United States Court of Federal Claims
                                      No. 14-0204C
                                 (Filed: March 14, 2016)

                                             )    Keywords: Motion for Summary
 JOHN G. HAVRILLA, et al.,                   )    Judgment; Fair Labor Standards Act;
                                             )    29 U.S.C. § 207(a); Meal Breaks;
                       Plaintiffs,           )    Predominant Benefit Analysis; De
                                             )    Minimis Interruptions
 v.                                          )
                                             )
 THE UNITED STATES OF AMERICA,               )
                                             )
                       Defendant.            )
                                             )

David Ricksecker, with whom were Gregory K. McGillivary and Theodore Reid Coploff,
Woodley & McGillivary LLP, Washington, DC, for Plaintiffs.

Jana Moses, Trial Attorney, Commercial Litigation Branch, with whom were Steven J.
Gillingham, Assistant Director, Robert E. Kirschman, Jr., Director, and Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, United States Department of Justice,
Washington, DC, for Defendant.

                                OPINION AND ORDER

KAPLAN, Judge.

       Plaintiffs in this case are five employees of the United States Navy who work as
“small arms repairers” at Joint Base Pearl Harbor-Hickam in Honolulu, Hawaii (Pearl
Harbor-Hickam or “the base”). They brought this action pursuant to section 207(a) of the
Fair Labor Standards Act (FLSA) claiming entitlement to backpay, liquidated damages,
and other relief for overtime work they allegedly performed during their daily unpaid 30-
minute meal period. See 29 U.S.C. § 207(a); see also Compl. ¶¶ 7–17, ECF No. 1.

        Currently before the Court is Plaintiffs’ motion for partial summary judgment
pursuant to Rule 56(a) of the Rules of the Court of Federal Claims (RCFC). The
government has opposed Plaintiffs’ motion and seeks an entry of summary judgment in
its favor. For the reasons set forth below, Plaintiffs’ motion for partial summary judgment
is GRANTED-IN-PART and DENIED-IN-PART. The government’s motion for
summary judgment is DENIED.
                                     BACKGROUND1

I.     Overview of Duties of Small Arms Repairers

       As noted, Plaintiffs are all currently employed as small arms repairers by the
Department of the Navy, Pearl Harbor-Hickam Police Department. They each staff one of
two “ready for issue” (RFI) rooms that are located in two separate buildings on the base.
Boyman Dep. 21, Pls.’ App. 21.2

        Ready for issue rooms hold weapons as well as other equipment used by both
civilian and military police officers employed or stationed at the base. See OPNAVINST
5530.13C at DEF-4, Pls.’ App. 728 (defining “ready for issue storage” as “storage as
specified in this instruction of a relatively small amount of weapons and ammunition for
duty section police, security guards and response forces so that they are available for
ready access”). Therefore, an RFI must be available and manned around the clock.
Friedel Dep. 12, Pls.’ App 135.

         The weapons issued through the RFI at Pearl Harbor-Hickam include 9 mm
pistols, M240 machine guns, M4 assault rifles, and shotguns. Id. at 28, Pls.’ App. 151;
see also Tulewa-Gibbs Dep. 42, Pls.’ App. 670. The RFI also issues and stores equipment
such as speed radar devices, breathalyzers, and night vision goggles, among other items.
Tulewa-Gibbs Dep. 31, Pls.’ App. 659.

        According to Plaintiffs’ undisputed testimony, the duties of the small arms
repairers include guarding the RFI; performing inventories of weapons, ammunition and
equipment; handling the check-in and check-out of weapons and equipment; maintaining
supplies in the RFI; and cleaning the RFI. Trice Dep. 60–61, Pls.’ App. 592–93; Tulewa-
Gibbs Dep. 23–24, 59–60, Pls.’ App. 651–52, 687–88; Hooker Dep. 12, 70, Pls.’ App.

1
  The facts in this section are based on the affidavits, declarations, deposition transcripts,
and other documentary evidence supplied by the parties in support of their summary
judgment motions. Citations to deposition transcripts include the name of the witness, the
page number within that witness’s deposition transcript, and the corresponding page
number within the Plaintiffs’ Appendix (which contains all the transcripts relied on by
both the Plaintiffs and the government). For example, “Friedel Dep. 28, Pls.’ App. 151”
means that the witness testifying was Chief Petty Officer Edward Friedel, and that the
referenced testimony can be found on page 28 of the transcript of his deposition, which is
also page 151 of the Plaintiffs’ Appendix. Where a fact is in dispute, it is noted.
2
  Plaintiffs Havrilla, Kamlangek, Trice, and Tulewa-Gibbs are assigned to the main RFI,
which is located in Building 278. Friedel Dep. 11, 16, Pls.’ App. 134, 139; Trice Dep. 7,
Pls.’ App. 539; Tulewa-Gibbs Dep. 10, Pls.’ App. 638; Boyman Dep. 21–22, Pls.’ App.
21–22. Plaintiff Erroll Hooker is assigned to the second RFI, which is located in Building
600 at West Loch Annex. Friedel Dep. 16, Pls.’ App. 139; Hooker Dep. 16, Pls.’ App.
328; Boyman Dep. 21, Pls.’ App. 21. Prior to March 2013, Mr. Hooker was also assigned
to the RFI in Building 278. Hooker Dep. 14, Pls.’ App. 326.



                                              2
324, 382; Havrilla Dep. 16, Pls.’ App. 191; Kamlangek Dep. 39, Pls.’ App. 469; see also
Position Description, Pls.’ App. 709–14; Def.’s Proposed Findings of Uncontroverted
Fact (Def.’s Proposed Findings) No. 10, Def.’s Ex. 1 at 2 (noting that “Plaintiffs’
responsibilities include guarding the RFI [and] issuing, maintaining, and receiving
weapons and other equipment”); Boyman Dep. 80, Pls.’ App. 80.

        Similarly, Plaintiffs’ position description (PD) states that small arms repairers are
“responsible for the accountability, issue, receipt, cleanliness, minor maintenance, and
serviceability of all weapons and ammunition located in the Installation Security
Department RFI as well as any non-lethal weapons, personal protective equipment and
law enforcement related equipment for which custody is assigned.” Pls.’ App. 710. The
PD specifies that a small arms repairer “issues, receives, maintains, and restocks
weapons, ammunition, non-lethal weapons, and personal protective equipment to security
and law enforcement personnel as directed.” Id. It further states that small arms repairers
“perform[] frequent inventories” of weapons and other equipment in the RFI and are
responsible for “routine non-depot level maintenance of weapons” as well as records
management. Id. They must “maintain[] inventory levels of ammunition, gun cleaning
supplies, targets, range apparatus and safety equipment, reordering when necessary.” Id.
Finally, the PD specifies that small arms repairers are required to be armed at all times
while on duty. Id.

         Small arms repairers at Pearl Harbor-Hickam are assigned to one of three 8.5-
hour shifts that are scheduled for every 24-hour period. Friedel Decl., Def.’s Ex. 10 at
563 ¶ 5; Boyman Dep. 24–25, Pls.’s App 24–25. The shifts overlap by 30 minutes to
allow the small arms repairers uninterrupted time to perform an inventory each time there
is a shift change, as required by OPNAVINST 5530.13C ch. 2 § 0204. See Pls.’ App.
740; see also Boyman Dep. 18–19, 62–63, Pls.’ App. 18–19, 62–63. At Building 278,
inventory typically takes 20 to 30 minutes. Trice Dep. 46, Pls.’ App. 578; Tulewa-Gibbs
Dep. 24–25, Pls.’ App. 652–53. At Building 600, where fewer weapons are stored, the
inventory typically takes 15 minutes. Hooker Dep. 42, Pls.’ App. 354. Once the
overlapping period ends, a small arms repairer generally works alone in the RFI.

        Members of the base’s police department do not take their weapons home.
Therefore, they must go to the RFI at the beginning of their shifts to receive their
weapons, and then must return their weapons to the RFI before departing. Friedel Dep.
36–37, Pls.’ App. 159–60. As a result, each shift that the small arms repairer works
experiences one or two rush periods, during which Plaintiffs check-in and check-out
weapons and other small equipment on a continuous basis for approximately one hour.
Kamlangek Dep. 53–56, 63–64, Pls.’ App. 483–86, 493–94; Hooker Dep. 44, Pls.’ App.
356. Employees also come to the RFI sporadically outside of these rush periods to get
weapons and equipment, or to secure replacement batteries. Def.’s Ex. 10 at ¶ 5.
Typically, Plaintiffs check-in and check-out up to twenty weapons or pieces of equipment
per shift during non-rush periods. See, e.g., Trice Dep. 54, Pls.’ App. 586; Hooker Dep.
48, 50–51, Pls.’ App. 360, 362–63; Tulewa-Gibbs Dep. 29–30, Pls.’ App. 657–58. It
takes approximately two minutes to check-in or check-out a weapon. Hooker Dep. 46,
Pls.’ App. 358; Trice Dep. 54, Pls.’ App. 586. It takes approximately a minute or less to
issue a replacement battery. Trice Dep. 66–67, Pls.’App. 598–99; Kamlangek Dep. 53,


                                              3
94–95, Pls.’ App. 483, 524–25; Hooker Dep. 109–110, Pls.’ App. 421–22; Tulewa-Gibbs
Dep. 31–32, Pls.’ App. 659–60.

        As of July 2015, Plaintiffs were required to clean and maintain all the weapons in
the RFI within a two-week timeframe. Friedel Decl., Def.’s Ex. 10 at 564 ¶ 7. Prior to
July 2015, the maintenance schedule was on a monthly timetable. Id. Cleaning the
weapons mostly involves wiping them down, which takes approximately two to five
minutes for each weapon. Id. There is no daily quota imposed on the cleaning and
maintenance of the weapons in the RFI. Id. Plaintiffs manage their own time during each
shift regarding cleaning the weapons within the two-week maintenance schedule. Id. ¶ 8.

II.    Guard Duties

        The RFI is staffed 24 hours a day, seven days a week by either a small arms
repairer, a police officer, or a guard. Friedel Dep. 12, 14, Pls.’ App. 135, 137; Boyman
Dep. 23, 48, Pls.’ App. 23, 48. All of the weapons and equipment in the RFI must be
under proper watch at all times. Friedel Dep. 11, Pls.’ App. 134 (“An RFI is not 100
percent secure, so there has to be someone on watch 24 hours a day.”). Therefore, as
noted, small arms repairers are required to be armed, and both the Plaintiffs and the
government agree that one of their most important responsibilities is to “guard” the RFI
during their shifts. See Pls.’ Mem. of Points and Authorities in Supp. of Pls.’ Mot. for
Partial Summ. J. (Pls.’ Mem.) at 4–5, ECF No 20-1; Def.’s Opp’n to Pls.’ Mot. for Partial
Summ. J. and Cross-Mot. for Summ. J. (Def.’s Opp’n) at 5, ECF No. 27; see also Trice
Dep. 73, Pls.’ App. 605; Tulewa-Gibbs Dep. 60, Pls.’ App. 688; Boyman Dep. 84, Pls.’
App. 84.

        According to the testimony of Mr. Havrilla, the RFI at which he works is
approximately 600–750 square feet in size. Havrilla Dep. 89–90, Pls.’ App. 264–65.
There is a single entrance door to the RFI, and there are three windows. Two of the
windows are always locked; the third may be opened to allow the pick-up and return of
weapons and other equipment. Id. at 90, Pls.’ App. 265. The door is always kept locked,
except when it is necessary to briefly open it because the particular weapon or piece of
equipment being picked up or returned does not fit through the window. Id. When a small
arms repairer leaves the RFI to use the restroom, he closes the window of the RFI, puts
up a sign saying he will be right back, and locks the RFI, keeping the key with him. Id. at
95–96, Pls.’ App. 270–71; see also Trice Dep. 35, Pls.’ App. 567; Tulewa-Gibbs Dep.
60–61, Pls.’ App. 688–89; Boyman Dep. 65, Pls.’ App. 65; Hooker Dep. 74, Pls.’ App.
386.

        The rules and regulations for physical security of arms, ammunition, and
explosives are set forth in OPNAV Instruction 5530.13C. Pls.’ App. 715–826; see also
Friedel Dep. 37–38, Pls.’ App. 160–61. Under the Instruction, “an armed guard or
watchstander, with communication equipment to summon assistance,” must “be within
sight of the storage container or [RFI] area(s) at all times.” OPNAVINST 5530.13C ch. 2
§ 0204(b), Pls.’ App. 740. Further “[t]he guard or watchstanders’ other duties, such as
monitoring alarms, must not interfere with the ability to control access to the weapons.”
Id. Finally, the Instruction states that access to the area must be “strictly limited.” Id.


                                             4
        According to Chief Petty Officer Edward Friedel, small arms repairers must
maintain “constant surveillance” of the weapons in the RFI. Friedel Dep. 40, Pls.’ App.
163. “Constant surveillance” means “maintaining continuous visibility of an item(s) or
area, or of all means of access to the area, directly by personnel.” OPNAVINST
5530.13C at DEF-2, Pls.’ App. 726; see also Friedel Dep. 40, Pls.’ App. 163.

III.   Meal Periods

        As noted above, Plaintiffs’ scheduled shifts are 8.5 hours long.3 One half-hour of
each shift is designated as an unpaid meal period. Therefore, Plaintiffs receive 8 hours of
pay for each 8.5-hour shift that they work.

        Plaintiffs are not required to take their meal periods at a specific time. Friedel
Dep. 26–27, Pls.’ App. 149–50. Plaintiffs’ deposition testimony indicates that they
generally eat their meals during non-rush periods. Havrilla Dep. 121, Pls.’ App. 296; see
also Friedel Dep. 25–26, Pls.’ App. 147–48. But regardless of when Plaintiffs choose to
eat their meals, they are not relieved from their posts during that period, but are required
to remain in or within sight of the RFI.4 Tulewa-Gibbs Dep. 50, Pls.’ App. 678; Havrilla
Dep. 23–24, 121, Pls.’ App. 198–99, 296; Kamlangek Dep. 91, Pls.’ App. 521; Hooker
Dep. 90, Pls.’ App. 402. The general practice, therefore, is that small arms repairers eat
lunch in the RFI. Friedel Dep. 24–25, Pls.’ App. 147–48; Havrilla Dep. 121, Pls.’ App.
296.

       Plaintiffs are required to continue to guard the weapons and other equipment in
the RFI and to provide assistance to law enforcement officers who come to the RFI’s
window throughout their shifts, including through their half-hour unpaid meal period.
Trice Dep. 62, Pls.’ App. 594; Hooker Dep. 109, Pls.’ App. 421; Friedel Dep. 24–25,
Pls.’ App. 147–48. Although the number of such requests for assistance varies, on
average one to three people will come to the RFI window to get weapons or equipment
while a small arms repairer is eating a meal in the RFI. Trice Dep. 65–66, Pls.’ App. 597–

3
  Civilian police and guards employed by the defendant at Joint Base Pearl Harbor-
Hickam receive 30 minutes of overtime pay each shift for working all 8.5 hours. Hooker
Dep. 112, Pls.’ App. 424; Boyman Dep. 70–71, Pls.’ App. 70–71; Havrilla Dep. 129–30,
Pls.’ App. 304–05. According to Plaintiffs, when police and guards work shifts in the RFI
for 8.5 hours, they are paid for 8.5 hours, including 30 minutes of overtime. Hooker Dep.
112–13, Pls.’ App. 424–25; Havrilla Dep. 129–30, Pls.’ App. 304–05. The base’s Senior
Civilian Security Officer, Brian Boyman, acknowledged this practice, attributing it to the
settlement of a union grievance. Boyman Dep. 70, Pls.’ App. 70.
4
  The government submitted a declaration from Chief Friedel which indicated that
Plaintiffs also had the option of eating their lunches in a break room adjacent to the RFI,
so long as they kept the RFI in view and under constant surveillance. Def.’s Ex. 10 at 564
¶ 9. Plaintiffs deny that they have ever been advised that they have the option of eating
their meals in the break room. See Kamlangek Dep. 91, Pls.’ App. 521; Trice Dep. 62,
Pls.’ App. 594.



                                              5
98; Hooker Dep. 110, Pls.’ App. 412; Kamlangek Dep. 70, Pls.’ App. 500. These
interruptions are brief—lasting one or two minutes. Trice Dep. 67, Pls.’ App. 599.

         There is a refrigerator and a microwave in the RFI. Friedel Decl., Def.’s Ex. 10 at
564 ¶ 10. There is also a television with cable channels and a computer with internet
access. Havrilla Dep. 91–92, Pls.’ App. 266–67. According to the government, “[d]uring
meal periods, [P]laintiffs may eat, read, use the telephone, watch television, use the
computer, or generally utilize the time to pursue other personal interests, e.g., playing
musical instruments.” Def.’s Proposed Findings No. 23, Def.’s Ex. 1 at 4 (citing
Kamlangek Dep. 59, Pls.’ App. 489; Hooker Dep. 71–73, Pls.’ App. 383–85); see also
Molettieri Decl., Def.’s Ex. 11 ¶ 7; Boyman Decl., Def.’s Ex. 12 at 569 ¶ 8. Plaintiffs do
not dispute this assertion but emphasize that even as they are pursuing these other
activities, they must also perform their duties of guarding the RFI and responding to
requests for assistance from personnel seeking to check out or check in weapons and
equipment. Pls.’ Reply to Def.’s Opp’n to Pls.’ Summ. J. Mot. and Opp’n to Def.’s
Cross-Mot. for Summ. J. (Pls.’ Reply) at 4, ECF No. 28.

        There is some dispute in the record as to whether the Plaintiffs have ever been
advised that they are required to take a meal break and whether there exists (and/or
whether Plaintiffs have ever been made aware of) a process for Plaintiffs to request to be
relieved in order to leave the RFI during their meal breaks. Plaintiffs claim that they have
never been given any direction that they must take a meal period and also that they have
never been told about any process for them to ask to be relieved during their lunch
periods. Tulewa-Gibbs Dep. 60, 69, Pls.’ App. 688, 697; Hooker Dep. 89, Pls.’ App. 401;
Kamlangek Dep. 49, 91–92, Pls.’ App. 479, 521–22; Havrilla Dep. 99–101, Pls.’ App.
273, 275–76.

        The government contends, on the other hand, that during their orientation,
Plaintiffs were explicitly directed that they were required to take a half-hour meal period
during their shifts. Def.’s Proposed Findings No. 19, Def.’s Ex. 1 at 3; Boyman Dep. 45,
Pls.’ App. 45. It also contends that Plaintiffs are expected to notify their supervisors if
they do not get a meal break. Def.’s Proposed Findings No. 28, Def.’s Ex. 1 at 4 (citing
Boyman Dep. 53, Pls.’ App. 53). Further, as the government notes, at least one Plaintiff,
Mr. Hooker, has several times been relieved and given permission by his watch
commander to leave the RFI for a meal break. Def.’s Opp’n at 22; see also Hooker Dep.
74–80, Pls.’ App. 386–92. In addition, Officer Boyman, testified that he had observed
employees turning their keys in to the watch commander and heading off to McDonald’s
for lunch. Boyman Dep. 58, Pls.’ App. 58. Finally, David Molettieri, the base’s former
Non-Guard Service Administrative Supervisor, asserted in a declaration that he has
observed the small arms repairers leaving to make food runs, which he understood was
approved by their supervisor. Def.’s Ex. 11 at 567. The logbooks produced by the
government in discovery, however, do not reveal any occasions in which the Plaintiffs
were relieved for meal periods during their shifts. See Logbook Examples, Pls.’ App.
827–56.




                                             6
IV.    Plaintiffs’ Communication of their Concerns and Management’s Response

        Plaintiffs’ chain of command begins with their first line supervisor, Chief Friedel.
Boyman Dep. 13, Pls.’ App. 13; Friedel Dep. 47, Pls.’ App. 170. Above Chief Friedel, on
the military side of the chain of command, are a Lieutenant Commander, a Lieutenant
Colonel, and the Joint Base Commander. Friedel Dep. 47, Pls.’ App. 170. Plaintiffs are
also supervised on each shift by a civilian watch commander and/or a shift sergeant.
Boyman Dep. 80–82, Pls.’ App. 80–82; Hooker Dep. 12–13, Pls.’ App. 424–25;
Kamlangek Dep. 37–38, Pls.’ App. 467–68.

         According to Plaintiffs, they raised issues with their supervisors about their
unpaid meal periods on a number of occasions. Plaintiff Robert Trice, for example,
testified that he complained to Chief Friedel regarding the Navy’s failure to provide him
with a duty-free meal period. Trice Dep. 38, 89–90, Pls.’ App. 570, 621–22. According to
Mr. Trice, Chief Friedel responded that it was “out of his hands” and that he “couldn’t do
anything about it.” Id. at 90, Pls.’ App. 622. Mr. Trice further stated that he also
complained to Chief Friedel’s predecessor, Chief Ware, about not getting a duty-free, 30-
minute meal period, and asked if the small arms repairers could be relieved so that they
could have a duty-free meal period. Id. at 40–41, 68–71, Pls.’ App. 572–73, 600–03. He
states that Chief Ware also told him that that there was “nothing he could do.” Id. at 68–
71, Pls.’ App. 600–03.

        Plaintiff Trice testified that he also asked supervisor David Molettieri if he should
be paid for an additional 30 minutes per day and that Mr. Molettieri told him that the
Navy would not pay the small arms repairers for working during their meal periods. Id. at
72–74, Pls.’ App. 604–06. According to Mr. Trice, Mr. Molettieri told him that was “just
the way it is” and that he was “not going to get paid” for his additional work. Id. at 74–
75, Pls.’ App. 606–07. Plaintiff Trice also complained to another former supervisor,
Chief Snyder, that he was working 8.5 hours and only being paid for 8 hours. Id. at 86–
87, Pls.’ App. 618–19. Chief Snyder told Plaintiff Trice that there was “nothing he was
able to do” about it. Id.

         Similarly, Plaintiff Tulewa-Gibbs testified that he asked Chief Snyder why he was
not being relieved or paid for the time he spent working during his meal period. Tulewa-
Gibbs Dep. 47–48, Pls.’ App. 675–76. Chief Snyder allegedly told Mr. Tulewa-Gibbs
that it was “out of his hands.” Id. at 49, Pls.’ App. 677. According to Mr. Tulewa-Gibbs,
he also asked Mr. Molettieri why he was not being relieved to take a meal period and was
told that the small arms repairers should ask the watch captains, but that if he “couldn’t
work something out with the watch captains, [he] couldn’t be relieved.” Id. at 57, Pls.’
App. 685. Subsequently, Mr. Tulewa-Gibbs asked Watch Commander Captain Souza if
he could be relieved from the RFI so that he could take lunch. Id. at 50, Pls.’ App. 678.
Captain Souza told Mr. Tulewa-Gibbs that she did not have the personnel to relieve the
small arms repairers. Id. at 58, Pls.’ App. 686. Mr. Tulewa-Gibbs also notified another
supervisor, Lieutenant Bright, that he was working through his meal period each shift and
was not being relieved for lunch. Id. at 54, Pls.’ App. 682.




                                              7
        Plaintiff Hooker testified that he told Chief Friedel that he was working through
his lunch and that, in his view, he should be paid for his meal period. Hooker Dep. 114–
15, Pls.’ App. 426–27. Mr. Hooker also complained to Chief Friedel about the fact that
guards were getting paid for 8.5 hours when assigned to the RFI while the small arms
repairers were not, notwithstanding that the small arms repairers performed the same
tasks as the guards and were also tasked with cleaning and maintaining the weapons. Id.

        Plaintiff Havrilla testified that when he first began as a small arms repairer he
specifically asked the watch commander, Captain Tanaka, why he was only being paid
for 8 hours when he was working 8.5 hours. He states that Captain Tanaka told him “that
those were my duty hours and there wasn’t a whole lot he could do about the way the
computer interpreted the work hours, because he inputs the time into the computer and he
said that’s the way it is.” Havrilla Dep. 99, Pls.’ App. 274; see also id. at 122–23, Pls.’
App. 297–98.

        Plaintiff Peerawut Kamlangek testified that he told Chief Snyder that he was
working during his lunch and wanted to be paid for that work time. Kamlangek Dep. 85,
Pls.’ App. 515. According to Mr. Kamlangek, Chief Snyder said he would “look into” the
issue, but that he did not make any changes. Id. at 87, Pls.’ App. 517.

        Senior Civilian Security Officer Boyman testified that small arms repairers were
to notify their supervisor if they were not relieved for a meal period in order to receive
compensation. Boyman Dep. 55, Pls.’ App. 55. He further stated that, in his view, if the
small arms repairer did not notify his supervisor that he had not been relieved for lunch,
the Navy had no obligation to provide compensation. Id. at 56, Pls.’ App. 56. Officer
Boyman further testified that he understood that if a supervisor observed the small arms
repairer working during his lunch, the supervisor had no duty to ensure that the employee
was compensated for that work time. Id. at 56–57, Pls.’ App. 56–57. Similarly, Officer
Boyman testified that unless there was an emergency or an employee notified his
supervisor that he worked through his meal period, the employee did not need to be paid
for the time that he worked during his meal period, even if the employee’s supervisor was
aware that the employee performed uncompensated work. Id. at 93–95, Pls.’ App. 93–95.

V.     The Navy’s Actions to Ensure Compliance with the FLSA

        Chief Friedel testified that he has never received any training in the Fair Labor
Standards Act. Friedel Dep. 9–10, Pls.’ App. 132–33. Similarly, Officer Boyman, who
was designated as the official responsible for FLSA compliance at the base, testified that
he had never had any formal FLSA training, although he had received one hour of
informal training concerning FLSA exemption issues in the month prior to his deposition.
Boyman Dep. 14, 16, Pls.’ App. 14, 16. Officer Boyman also testified that he did not
know whether the Navy had ever sought a legal opinion regarding whether the small arms
repairers should be compensated for their 30-minute meal period. Id. at 89, Pls.’ App. 89.

       In a declaration, Mr. Molettieri, asserted that in 2012 he reviewed Office of
Personnel Management (OPM) regulations and concluded that the small arms repairers
were not entitled to overtime compensation for their 30-minute meal periods because, in


                                             8
his view, they had been offered an opportunity to have “uninterrupted meal periods.”
Def.’s Ex. 11 at 567 ¶ 4. The declaration does not indicate whether or not Mr. Molettieri
is trained or otherwise qualified to interpret the FLSA. Plaintiffs, however, have
submitted an excerpt from a transcript of testimony that Mr. Molettieri gave in another
matter in 2014, in which he stated that he could not recall ever receiving such training.
See Suppl. App. to Pls.’ Mot. for Partial Summ. J. (Pls.’ Suppl. App.) 888, ECF No. 28-1.

VI.    This Action

        Plaintiffs brought this action on March 12, 2014. They claim that the Navy
willfully violated the FLSA by allegedly requiring them to work through their half-hour
unpaid meal periods without providing them with overtime compensation (or indeed any
compensation) for such work. They seek an award of backpay and liquidated damages for
the three-year period prior to the filing of this suit.

         After a period of discovery, Plaintiffs filed a motion for partial summary
judgment as to liability on September 30, 2015. ECF No. 20. The government, in turn,
filed a cross-motion for summary judgment on November 30, 2015, contending that
Plaintiffs are not entitled to compensation for the additional half-hour per day set aside
for a meal period. ECF No. 27. Oral argument was held on the cross-motions on March 2,
2016, and they are now ripe for disposition.

                                      DISCUSSION

I.     Jurisdiction

        The Tucker Act grants the Court of Federal Claims jurisdiction over non-tort
monetary claims “against the United States founded . . . upon . . . any Act of Congress.”
28 U.S.C. § 1491(a)(1). It is well established that a claim against the government under
the monetary-damages provision of the FLSA, 29 U.S.C. § 216(b), is within this Court’s
Tucker Act jurisdiction. E.g., Abbey v. United States, 745 F.3d 1363, 1369 (Fed. Cir.
2014). Accordingly, this Court has jurisdiction over Plaintiffs’ FLSA claims in this
matter.

II.    Summary Judgment Standards

        In accordance with RCFC 56(a), summary judgment may be granted “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” A fact is material if it “might affect the outcome
of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine if it “may reasonably be resolved in favor of either party.” Id.
at 250.

        The moving party bears the burden of establishing the absence of any genuine
issue of material fact, and all significant doubts regarding factual issues must be resolved
in favor of the party opposing summary judgment. Mingus Constructors, Inc. v. United
States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Summary judgment may be entered against
a party that fails to make a showing sufficient to establish the existence of an element


                                             9
essential to its case, and on which that party will bear the burden of proof at trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The fact that both parties have
moved for summary judgment does not mean that the court must grant judgment as a
matter of law for one side or the other; summary judgment in favor of either party is not
proper if disputes remain as to material facts.” Mingus Constructors, Inc., 812 F.2d at
1391. Further, the court should act with caution in granting summary judgment and may
deny summary judgment “where there is reason to believe that the better course would be
to proceed to a full trial.” Anderson, 477 U.S. at 255.

III.   The Plaintiffs are Entitled to Summary Judgment as to Their Claim that the
       Navy Violated the FLSA By Automatically Deducting One Half-Hour From
       Plaintiffs’ Shifts for an Unpaid Meal Break

        29 U.S.C. § 207(a)(1) provides that “no employer shall employ any of his
employees who in any workweek is engaged in commerce . . . for a workweek longer
than forty hours unless such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than one and one-half times the
regular rate at which he is employed.” “Employ” includes to suffer or permit to work. Id.
§ 203(g). In this case, Plaintiffs’ central assertion is that Pearl Harbor-Hickam’s unpaid
meal break policy is a per se violation of the FLSA because the small arms repairers are
suffered or permitted to work throughout their 8.5-hour shifts but are only paid for 8
hours of work.

        The government, on the other hand, contends that the Plaintiffs are due no
compensation for their 30-minute meal periods. It argues that the Plaintiffs have “ample
time” during their work day to take a meal break and that any work-related interruptions
to Plaintiffs’ half-hour meal break were de minimis in nature and therefore not
compensable. According to the government, the half-hour meal break should not be
considered hours of work because the benefit of Plaintiffs’ time during the break does not
inure predominantly to the Navy; rather, according to the government, Plaintiffs are free
to engage in a variety of purely personal pursuits during their meal breaks so long as they
remain in or within sight of the RFI to guard its contents and respond to infrequent
requests for assistance.

        For the reasons set forth below, the Court concludes that the Navy suffered or
permitted the Plaintiffs to work throughout their entire 8.5-hour shifts, including the half-
hour period that the Navy automatically deducted as an unpaid meal period. Accordingly,
the Plaintiffs are entitled to summary judgment as to their claim that the Navy violated
the FLSA by failing to compensate them for work performed throughout their shifts,
including the half-hour automatically deducted meal period.

       A.      Plaintiffs Performed Work Throughout Their Entire Shifts, Including
               the Half-Hour “Meal Break”

       As noted, the FLSA requires employers to pay overtime compensation for work
performed in excess of a forty-hour workweek. Id. § 207(a)(1). The FLSA does not
contain any definition of the term “work,” but the term’s meaning can be derived from


                                             10
the case law and applicable regulations. In Armour & Co. v. Wantock, the Supreme Court
observed that “work or employment . . . as those words are commonly used” means
“physical or mental exertion (whether burdensome or not) controlled or required by the
employer and pursued necessarily and primarily for the benefit of the employer and his
business.” 323 U.S. 126 at 132 (1944) (quoting Tenn. Coal, Iron & R.R. Co. v. Muscoda
Local No. 123, 321 U.S. 590, 598 (1944)). The Court further observed that the issue of
whether an employee was performing compensable “work” at any particular time is
highly fact specific and depends upon an examination of the totality of the circumstances.
See id. at 133; see also Skidmore v. Swift, 323 U.S. 134, 136–37 (1944) (“Whether in a
concrete case such time falls within or without the Act is a question of fact to be resolved
by appropriate findings of the trial court.”).

        The Office of Personnel Management is responsible for administering the FLSA
in the federal sector. 29 U.S.C. § 204(f); see also Billings v. United States, 322 F.3d
1328, 1331 (Fed. Cir. 2003). OPM’s regulations are required to “harmonize with the
statute’s ‘origin and purpose’ . . . as well as with the Secretary of Labor’s regulations.”
Billings, 322 F.3d at 1334 (Fed. Cir. 2003) (omission in original) (quoting Zumerling v.
Devine, 769 F.2d 745, 750 (Fed. Cir. 1985)).

        Pursuant to OPM’s regulations, “[h]ours of work means all time spent by an
employee performing an activity for the benefit of an agency and under the control or
direction of the agency.” 5 C.F.R. § 551.104. Such time includes: “(1) [t]ime during
which an employee is required to be on duty; (2) [t]ime during which an employee is
suffered or permitted to work; and (3) [w]aiting time or idle time which is under the
control of an agency and which is for the benefit of an agency.” Id. § 551.401(a).

        OPM has not issued any regulations that govern the application of these general
principles to unpaid meal periods. The Department of Labor (DOL), however, has issued
such a regulation—29 C.F.R. § 785.19. That regulation, entitled “Meal,” states as
follows:

       Bona fide meal periods are not worktime. Bona fide meal periods do not
       include coffee breaks or time for snacks. These are rest periods. The
       employee must be completely relieved from duty for the purposes of eating
       regular meals. Ordinarily 30 minutes or more is long enough for a bona fide
       meal period. A shorter period may be long enough under special conditions.
       The employee is not relieved if he is required to perform any duties, whether
       active or inactive, while eating.

Id. § 785.19(a). It is beyond dispute that Plaintiffs would prevail on their motion for
partial summary judgment if the Court applied the standard articulated in DOL’s
regulation because Plaintiffs are not “completely relieved from duty” during their meal
periods. To the contrary (other than bathroom breaks) they are required to remain in or




                                             11
within sight of the RFI throughout their entire 8.5-hour shift to guard it and to issue and
receive weapons and other equipment.5

        As DOL itself has acknowledged, however, the “ultimate decisions on
interpretations of the [FLSA] are made by the courts.” 29 C.F.R. § 785.2 (citing
Skidmore, 323 U.S. at 140 (holding that the DOL Administrator’s interpretations
“constitute a body of experience and informed judgment to which courts and litigants
may properly resort for guidance”)). Moreover, the circuit courts of appeals that have
considered the issue have rejected the “complete relief” standard articulated by
section 785.19. Instead, they have adopted a standard consistent with Skidmore and other
FLSA precedent that examines the totality of the circumstances to determine whether the
employee spends his meal period engaged in activities that are predominantly for his own
benefit or activities that instead inure predominantly to the benefit of his employer. E.g.,
Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 64 (2d Cir. 1997); Roy v. Cty. of
Lexington, 141 F.3d 533, 540–41 (4th Cir. 1998); Bernard v. IBP, Inc., 154 F.3d 259,
264–65 (5th Cir. 1998); Hill v. United States, 751 F.2d 810, 814 (6th Cir. 1984);
Alexander v. City of Chicago, 994 F.2d 333, 337 (7th Cir. 1993); Henson v. Pulaski Cty.
Sheriff Dep’t, 6 F.3d 531, 534 (8th Cir. 1993); Lamon v. City of Shawnee, 972 F.2d
1145, 1155–56 (10th Cir. 1992); Kohlheim v. Glynn Cty., 915 F.2d 1473, 1477 & n.19
(11th Cir. 1990).

        The circuits are split as to whether the employer bears the burden of showing that
the meal time predominantly benefits the employee or vice versa. Naylor v. Securiguard,
Inc., 801 F.3d 501, 508 (5th Cir. 2015) (employer has burden); Roy, 141 F.3d at 544
(same); Hertz v. Woodbury Cty., 566 F.3d 775, 783–84 (8th Cir. 2009) (burden of proof
on employee); Ruffin v. Motor City Casino, 775 F.3d 807, 811 (6th Cir. 2015) (same). In
this case, regardless of which party bears the burden of proof, the Court concludes that
the undisputed facts establish that Plaintiffs are required to spend their entire shift,
including their half-hour “meal break,” engaged in activities that predominantly benefit
their employer. Therefore, the Court concludes that, as a matter of law, Plaintiffs are
entitled to compensation for the half-hour “meal breaks” during which they are required
to remain in the RFI (or in an immediately adjacent break room) to guard the RFI and
respond to requests to return or check out weapons and equipment.

        To begin with, there is no dispute that under Navy policy, unless specifically
relieved of duty by a supervisor, Plaintiffs are not permitted to leave the RFI for any
period of time during their 8.5-hour shifts, except to take brief bathroom breaks. Nor is it
disputed that Plaintiffs are required not only to remain at their worksites, but also to
perform two core duties of their positions—guarding the RFI and responding to requests

5
 As noted above, the parties dispute whether Plaintiffs have the option of taking their
meal breaks in an adjacent break room, rather than in the RFI. The Court does not
consider this factual dispute a material one, as the government concedes that even if
Plaintiffs choose to use the break room, they must continue to keep the RFI under
surveillance and be available to assist officers seeking to return or check out weapons and
equipment. See Oral Argument at 34:50–35:10 (Mar. 2, 2016).



                                             12
to check in and check out weapons and equipment—throughout their entire 8.5-hour
shifts. This policy predominantly benefits the Navy because it enables the Navy to enjoy
the full 8.5 hours of labor required to run the RFI without diverting additional personnel
to relieve Plaintiffs.

         In that respect, the Court finds distinguishable cases in which courts have
declined to order overtime pay to security guards who are required to remain on the
employer’s premises during their unpaid meal breaks and to carry a radio or be otherwise
available for emergency calls. E.g., Agner v. United States, 8 Cl. Ct. 635, 638 (1985)
aff’d, 795 F.2d 1017 (Fed. Cir. 1986) (“[T]he mere fact that an employee is required to
eat lunch on the employer’s premises and to be on a duty status, subject to emergency
call during such period, does not convert this private leisure time into compensable time.”
(alteration in original) (quoting Baylor v. United States, 198 Ct. Cl. 331, 364 (1972))).
Plaintiffs here are not merely required to remain on their employer’s premises—i.e., the
base; they are required to remain at their worksite, the RFI.

        Further, Plaintiffs are not free to engage in personal pursuits in the same sense as
the security guards who remained on call throughout their meal periods to respond to
emergencies. Rather, Plaintiffs are confined to the RFI (or its immediate vicinity) and are
required to perform essentially the same duties that they perform for the rest of their
shifts during their supposed meal breaks. Thus, Plaintiffs are not merely “on call” during
their meal breaks; they are on duty. The Navy, in other words, has imposed the
requirement that Plaintiffs remain in the RFI “as an indirect or round-about way of
extracting unpaid work from [them].” Ruffin v. MotorCity Casino, 775 F.3d 807, 814
(6th Cir. 2015).

        The government emphasizes that despite the fact that Plaintiffs are required to
remain in the RFI for their entire shifts, during non-rush times they are interrupted only
infrequently to respond to requests to return or check out weapons. According to the
government, these interruptions are “de minimis” and do not require that the meal period
be treated as work time for purposes of the FLSA. Def.’s Opp’n at 10. The problem with
this argument is that, under the circumstances of this case, the time Plaintiffs spend
“waiting” to be interrupted (whether by a potential intruder or a police officer seeking to
return or receive a weapon or equipment) is itself time spent working. As the Supreme
Court observed in Armour:

       [A]n employer, if he chooses, may hire a man to do nothing, or to do nothing
       but wait for something to happen. Refraining from other activity often is a
       factor of instant readiness to serve, and idleness plays a part in all
       employments in a stand-by capacity. Readiness to serve may be hired, quite
       as much as service itself, and time spent lying in wait for threats to the safety
       of the employer’s property may be treated by the parties as a benefit to the
       employer.

323 U.S. at 133; see also Skidmore, 323 U.S. at 135 (distinguishing between employees
who have been “engaged to wait” and those who are “wait[ing] to be engaged”); Myracle
v. Gen. Elec. Co., 33 F.3d 55, at *5 (6th Cir. 1994) (observing that “the crucial question


                                              13
is whether Plaintiffs are engaging in substantial duties during their meal periods,” and
noting that “substantial duties need not be more than waiting for something to happen, or
‘[r]eadiness to serve’” (alteration in original) (quoting Armour, 323 U.S. at 133)); 5
C.F.R. § 551.401(a) (hours of work includes “[w]aiting time or idle time which is under
the control of an agency and which is for the benefit of an agency”).

        In this case, an integral part of Plaintiffs’ jobs is to “wait for something to
happen,” whether it be a threat to the RFI’s security or a request for assistance from an
officer or officers in need of weapons or equipment. See Armour, 323 U.S. at 133. A
determination of whether Plaintiffs are working during their ostensible “meal breaks”
does not, therefore, depend upon how often that “something” actually does happen.
Indeed, the upshot of the government’s argument that Plaintiffs are not performing any
“work” during these unpaid “meal breaks” is that Plaintiffs are not performing work
during any of the “non-rush” hours of their shifts unless they are cleaning or maintaining
the weapons.

        Further, the fact that the Navy supplied a television set and a computer for
Plaintiffs’ use in the RFI does not transform their time confined to the RFI into time that
predominantly benefits Plaintiffs, as opposed to the Navy. Indeed, there is nothing in the
record that suggests that Plaintiffs are precluded from watching television or using the
computer during any part of their shifts when guarding the RFI or otherwise waiting to
provide assistance to base law enforcement personnel.

         Finally, the Court finds it significant that if the Navy did not require Plaintiffs to
remain in the RFI for their entire shifts to guard it and assist law enforcement officers
seeking to return or check out weapons and equipment, the Navy would have had to hire
someone else to perform those duties. In short, “[b]y not compensating these workers,
[the Navy] is effectively receiving free labor.” Reich, 121 F.3d at 65. Because the
undisputed facts in this case establish that Plaintiffs’ entire 8.5-hour shifts are spent in
activities that predominantly benefit the Navy, rather than the Plaintiffs, the Court
concludes that the entirety of the shifts constituted compensable work time.

        B.      The Navy Suffered and Permitted Plaintiffs’ Work

        The government contends that even if the Court finds that Plaintiffs were
performing work throughout their 8.5-hour shifts, Plaintiffs have not shown that the Navy
knew or should have known that such work was being performed. In other words,
according to the government, Plaintiffs have not demonstrated that they were “suffered or
permitted to work” within the meaning of the FLSA. See 5 C.F.R. § 551.104 (defining
“suffered or permitted work” as “any work performed by an employee for the benefit of
an agency, whether requested or not, provided the employee’s supervisor knows or has
reason to believe that the work is being performed and has an opportunity to prevent the
work from being performed”).

        The government’s argument on this point is essentially that the Navy was not
aware that Plaintiffs were working through their meal breaks because Plaintiffs made no
“actual statements to supervisors that they had missed meal breaks, and, therefore, were


                                              14
entitled to overtime compensation.” Def.’s Opp’n at 18. But contrary to the government’s
argument, it is undisputed that Plaintiffs explicitly complained to supervisors on a
number of occasions that they were being required to work 8.5 hours for only 8 hours of
pay.

        More to the point, even if Plaintiffs had never raised the issue, the government’s
argument that Plaintiffs were not suffered or permitted to work lacks merit for the same
reason that its argument regarding the compensability of the “meal breaks” lacks merit.
The question for purposes of determining whether the Navy suffered or permitted
Plaintiffs to work is whether the Navy knew (or should have known) that Plaintiffs were
in the RFI throughout their entire 8.5-hour shifts, guarding it and responding to requests
to return or check out weapons and equipment. It is not disputed that Plaintiffs
supervisors knew this; indeed, it was Navy policy that Plaintiffs could leave the RFI only
if they specifically obtained relief from a supervisor.

        In short, to the extent that Navy officials can be said to have been ignorant of the
fact that Plaintiffs were “working” through their entire shifts, such ignorance was a
reflection of their misapprehension of the law—that is, their failure to appreciate that
guarding the RFI and being available to respond to requests for assistance constitutes
“work” under the FLSA. Therefore, the Court GRANTS Plaintiffs’ motion for summary
judgment as to the government’s liability to provide overtime compensation to Plaintiffs
under the FLSA for work performed throughout their shifts, with no automatic half-hour
deduction for an unpaid meal period.

       C.      Plaintiffs are Entitled to Summary Judgment as to their Request for
               an Award of Liquidated Damages

        Pursuant to 29 U.S.C. § 216, damages for violations of the overtime provisions of
the FLSA include “unpaid overtime compensation . . . [and] an additional equal amount
as liquidated damages.” However, “if the employer shows to the satisfaction of the court
that the act or omission giving rise to [the violation of the FLSA] . . . was in good faith
and that [the employer] had reasonable grounds for believing that [its] act or omission
was not a violation of the [FLSA], the court may, in its sound discretion, award no
liquidated damages or award any amount thereof not to exceed the amount specified in
section 216.” Id. § 260.

        “Liquidated damages under the FLSA are considered compensatory rather than
punitive in nature.” Reich, 121 F.3d at 71 (citing Brooklyn Sav. Bank v. O’Neil, 324 U.S.
697, 707 (1945)). “[U]nder 29 U.S.C. § 216(b), the presumption is that Plaintiffs are
entitled to liquidated damages.” Abbey v. United States, 106 Fed. Cl. 254, 265 (2012),
vac’d on other grounds, 745 F.3d 1363 (Fed. Cir. 2014). Thus, “[t]he burden rests on the
government to establish its good faith and the reasonable grounds for its decision.”
Adams v. United States, 350 F.3d 1216, 1226 (Fed. Cir. 2003).

        “The ‘good faith’ referred to in section 260 means ‘an honest intention to
ascertain what the [FLSA] requires and to act in accordance with it.’” Beebe v. United
States, 640 F.2d 1283, 1295 (Ct. Cl. 1981) (quoting Addison v. Huron Stevedoring Corp.,


                                             15
204 F.2d 88, 93 (2d Cir. 1953), cert. denied 346 U.S. 877 (1953)). “Whether an honest
intention existed, necessitates a subjective inquiry.” Id. The determination as to whether
the employer had reasonable grounds for believing that his act or omission was in
compliance with the Act, on the other hand, involves an objective standard. Id. “Proof
that the law is uncertain, ambiguous or complex may provide reasonable grounds for an
employer’s belief that he is in conformity with the Act, even though his belief is
erroneous.” Id.

        In support of its contention that the Navy acted in good faith and that it had
reasonable grounds for believing that its meal break policy complied with the Act, the
government relies entirely on the declaration of Mr. Molettieri. Def.’s Ex. 11 at 566–67.
Mr. Molettieri states that his responsibilities included “interviewing, hiring employees,
ensuring employees are provided proper training, hearing and resolving employee
grievances, and collecting, reviewing, documenting and recording employee time cards
from their Operational Supervisors.” Id. at 566 ¶ 1. According to Mr. Molettieri, in 2012
the small arms repairers “generally inquired about entitlement to overtime pay for their
30-minute meal periods.” Id. at 567 ¶ 4. Mr. Molettieri states that he “consulted with each
of them with relevant regulations, including [the] Office of Personnel Management’s
regulations, and informed the weapons handlers that they were not entitled to overtime
pay for their 30-minute meal periods.” Id. He explains that “this was due to all of them
being afford [sic] the opportunity to have uninterrupted meal time periods which is the
main reason to qualify or not qualify meal time period compensation.” Id.

         As noted above, it is appropriate to enter summary judgment against a party “that
fails to make a showing sufficient to establish the existence of an element essential to its
case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at
322. Here, the government has failed to make a showing sufficient to establish that it had
“reasonable grounds for believing that its act or omission was in compliance with the
Act.” See 29 U.S.C. § 260.

        First, the government has presented no evidence that Mr. Molettieri is the base’s
expert in FLSA matters or even that he has received any training in its requirements.
Indeed, in responding to Plaintiffs’ request under RCFC 30(b)(6), the government
designated Officer Boyman, and not Mr. Molettieri, as the person responsible for
ensuring the base’s compliance with the FLSA. See Pls.’ Suppl. App. 891. Further,
Plaintiffs have introduced excerpts of testimony by Mr. Molettieri in 2014 in another
proceeding in which he acknowledges that he is not an “HR expert” and that he had not
received any training in the FLSA. Pls.’ Suppl. App. 887–88.

         In addition to failing to show that Mr. Molettieri was competent to interpret the
FLSA, his declaration is less than informative with respect to the precise legal basis for
his conclusion that Plaintiffs were not entitled to overtime pay for the half-hour of their
shifts that the Navy designated as an unpaid meal break. Mr. Molettieri states only that he
consulted “relevant regulations, including [the] Office of Personnel Management’s
regulations.” Def.’s Ex. 11 at 567 ¶ 4. But he does not identify which OPM regulation he
relied upon and, in fact, there are no OPM regulations that specifically address
entitlement to compensation for meal breaks.


                                             16
        Moreover, the case law is settled that employees must receive compensation
where the time attributed to their unpaid meal breaks was spent predominantly for their
employer’s benefit; there is no ambiguity in the law. To be sure, the question of whether
a meal break was spent predominantly for an employer’s benefit is a fact-specific one.
But there is nothing in Mr. Molettieri’s declaration to reflect that he even attempted such
a fact-specific inquiry, much less anything explaining why such an inquiry would have
led him to conclude that Plaintiffs could be denied compensation under the facts of this
case. To the contrary, his declaration simply contains an elliptical conclusion that
Plaintiffs were not entitled to overtime pay “due to all of them being afford [sic] the
opportunity to have uninterrupted meal time periods which is the main reason to qualify
or not qualify meal time period compensation.” Id.

        In short, the record contains insufficient evidence to show that the Navy had
reasonable grounds for believing that its policies complied with the FLSA. Because the
government bears the burden of proof on that issue for purposes of making the liquidated
damages determination, the Court GRANTS Plaintiffs’ motion for summary judgment on
the issue of entitlement to liquidated damages.

        IV.     Summary Judgment is Not Proper as to Whether or Not the Navy’s

                Violation was Willful within the Meaning of 29 U.S.C. § 255


        The statute of limitations for bringing a claim under the FLSA is generally two
years. 29 U.S.C. § 255(a). A three-year limitations period applies, however, if a
plaintiff’s claim arises out of an employer’s “willful” violation of the FLSA. Id. Unlike
the allocation of burdens with respect to liquidated damages, “the employee bears the
burden of proving the willfulness of the employer’s FLSA violations.” Adams, 350 F.3d
at 1229.

       To determine whether an employer has committed a willful violation of the
FLSA, the court examines whether “the employer either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by the statute.”
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). “[C]onduct that is not
merely negligent” is required, and “[i]f an employer acts unreasonably, but not
recklessly, in determining its legal obligation,” its action is not considered willful. Id. at
133 n.13.

         The Court concludes that it would not be appropriate to enter summary judgment
for either party with respect to the issue of willfulness. On the one hand, there is ample
evidence in the record currently before the Court to suggest that the Navy personnel who
were apparently responsible for ensuring FLSA compliance at the base were poorly
trained for the task, and that Plaintiffs’ supervisors were equally uninformed. The record
also shows that Plaintiffs complained to a number of Navy supervisors about the Navy’s
failure to compensate them for their half-hour meal period and that no relief was
forthcoming. But there is no evidence in the record that the individuals to whom
Plaintiffs complained (or any other Navy officials) actually knew that Plaintiffs were


                                              17
legally entitled to such compensation. The only piece of information that arguably
suggests such knowledge is the fact that—apparently as a result of the settlement of a
grievance—the Navy does provide 8.5 hours of compensation to security guards who on
occasion substitute for small arms repairers. The record, however, does not reveal either
the circumstances surrounding the grievances or the Navy’s justification for the
apparently disparate treatment of Plaintiffs.

        In addition, the record before the Court on summary judgment does not enable the
Court to determine whether or not the Navy acted with reckless disregard for its
obligations because the Court cannot discern what actions, if any, Plaintiffs’ supervisors
took in response to Plaintiffs’ complaints. Nor does the record indicate whether
Plaintiffs’ supervisors received instructions about how to respond to employees asserting
that they were not being properly compensated. Instead, the record includes testimony by
Plaintiffs that their supervisors responded to their complaints with words to the effect that
there was nothing to be done or that the matter was out of their hands. In some instances,
Plaintiffs allege, the supervisors told Plaintiffs that they would “look into it” but then
never got back to Plaintiffs. In order to determine whether the Navy acted with a reckless
disregard for its obligations, more detail and clarity is needed regarding what steps the
supervisors or others took (or did not take) in response to Plaintiffs’ complaints.

        Finally, because intent is an element of the willfulness decision, “the state of mind
of the government actors must be explored, and the court must have an opportunity to
assess the credibility of those testifying about that state of mind.” Moreno v. United
States, 82 Fed. Cl. 387, 398 (2008). Because “[t]he court is not permitted to resolve such
credibility issues at the summary judgment stage . . . a trial is necessary to explore the
state of mind of the decision makers in this case.” Id.

        In short, the record is insufficient at this time to permit entry of summary
judgment for either Plaintiff or the government as to whether the Navy acted with
reckless disregard for its FLSA obligations. Accordingly, the Court DENIES both
parties’ motions for summary judgment with respect to the willfulness of the
government’s FLSA violations.

                                      CONCLUSION


      For the reasons set forth above, Plaintiffs’ motion for partial summary judgment
is GRANTED-IN-PART as to the government’s liability for backpay and liquidated
damages under the FLSA. Plaintiffs’ motion is DENIED with respect to the issue of
whether the FLSA violation was willful within the meaning of 29 U.S.C. § 255. The
government’s motion for summary judgment is DENIED.

       The parties shall file a joint status report within 30 days of the date of this Order,
proposing a schedule for further proceedings in this case.




                                              18
IT IS SO ORDERED.


                         s/ Elaine D. Kaplan
                         ELAINE D. KAPLAN
                         Judge




                    19
