     09-4449-cv
     Albrecht, et al. v. The Wackenhut Corporation



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 28 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                ROGER J. MINER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       RODERICK ALBRECHT, et al.,
14
15                    Plaintiffs-Appellants,
16
17                    -v.-                                         09-4449-cv
18
19       THE WACKENHUT CORPORATION,
20
21                Defendant-Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       APPEARING FOR APPELLANTS:              Joseph B. Rizzo, Gallo &
25                                              Iacovangelo LLP, Rochester, NY.
26



                                                  1
 1   APPEARING FOR APPELLEE:    Robert A. LaBerge (Christa R.
 2                              Cook, on the brief), Bond,
 3                              Schoeneck & King, PLLC,
 4                              Syracuse, NY.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Western District of New York (Telesca, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Plaintiffs-appellants are current and former security
14   guards appealing from a judgment of the United States
15   District Court for the Western District of New York
16   (Telesca, J.), which dismissed their suit under the Fair
17   Labor Standards Act, as amended, 29 U.S.C. §§ 201 et seq.
18   (the “FLSA”). The district court granted summary judgment
19   in favor of defendant-appellee The Wackenhut Corporation and
20   denied Plaintiffs’ cross-motion for partial summary
21   judgment. We assume the parties’ familiarity with the
22   underlying facts, the procedural history, and the issues
23   presented for review.
24
25        The district court reasoned that the time spent arming
26   up before a shift and arming down after a shift was non-
27   compensable under the FLSA because (i) arming up is a
28   preliminary activity (and arming down is a postliminary
29   activity) under the Portal-to-Portal Act, 29 U.S.C. §§ 251
30   et seq., and (ii) in the alternative, the time spent arming
31   up and down is de minimis. Following de novo review, see
32   Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009), we affirm
33   on the ground that the time spent arming up and down is non-
34   compensable as a de minimis principal activity. 1


         1
           To the extent that Plaintiffs include donning and
     doffing their uniforms and equipment as a component of
     arming up and down, we conclude that the donning and doffing
     in this case is non-compensable as a preliminary/
     postliminary activity. See Steiner v. Mitchell, 350 U.S.
     247, 248-49, 254 (1956) (distinguishing the non-compensable
     preliminary/postliminary activity of “changing clothes and
     showering under normal conditions,” from the compensable
     activity of changing clothes and showering where workers who
     “make extensive use of dangerously caustic and toxic
     materials . . . are compelled by circumstances, including

                                  2
 1        On appeal, Plaintiffs rely chiefly on four employee
 2   affidavits submitted in the district court. These
 3   affidavits state that “the average time required to obtain
 4   ammunition, a gun belt, a radio pouch, a bandolier, a
 5   firearm, a vital key, and a radio, and to report to an
 6   assigned post,” takes 8-15 minutes, 10-15 minutes, or 12-15
 7   minutes. The critical inquiry, however, focuses more
 8   narrowly on the time spent obtaining/returning the firearm
 9   and radio. Assuming this is a principal activity, it is
10   non-compensable (along with the immediately proximate
11   activities) if obtaining/returning the firearm and radio is
12   de minimis. See Reich v. N.Y. City Transit Auth., 45 F.3d
13   646, 652 (2d Cir. 1995) (“When the matter in issue concerns
14   only a few seconds or minutes of work beyond the scheduled
15   working hours, such trifles may be disregarded. . . . It is
16   only when an employee is required to give up a substantial
17   measure of his time and effort that compensable working time
18   is involved.” (quoting Anderson v. Mt. Clemens Pottery Co.,
19   328 U.S. 680, 692 (1946))); see also Singh v. City of N.Y.,
20   524 F.3d 361, 371 n.8 (2d Cir. 2008) (“[A] de minimis
21   principal activity does not trigger the continuous workday
22   rule.”). 2
23
24        We conclude that the time spent obtaining/returning the
25   firearm and radio is de minimis. The affidavits explain:
26
27            The time required to obtain our required equipment
28            varies depending upon a number of factors, for
29            example, whether there is a line to obtain
30            firearms and/or radios, whether a supervisor is
31            present in the armory to distribute vital keys and
32            firearms, whether there are radios available,



     vital considerations of health [and] hygiene, to change
     clothes and to shower in facilities which state law requires
     their employer to provide”); see also 29 C.F.R. § 790.7(g)
     (classifying “changing clothes” as a preliminary/
     postliminary activity).
         2
           Of course, the time spent waiting in line to obtain
     the firearm is non-compensable irrespective of whether the
     time spent obtaining the firearm is de minimis. See IBP,
     Inc. v. Alvarez, 546 U.S. 21, 42 (2005) (holding that the
     Portal-to-Portal Act “excludes from the scope of the FLSA
     the time employees spend waiting to don the first piece of
     gear that marks the beginning of the continuous workday”).

                                  3
 1            whether other radio traffic delays radio checks
 2            with BRAVO alarm station, and/or whether
 3            particular radio devices and/or accessories (i.e.,
 4            two-wire systems or lapel microphones) are
 5            operating.
 6
 7   These affidavits do not contradict (i) the deposition
 8   testimony of certain Plaintiffs that obtaining the firearm
 9   and radio “could take,” “would take,” or “took”
10   approximately 30-90 seconds, or (ii) the Reply Declaration
11   of Christopher R. Hook, Wackenhut’s Security Operations
12   Supervisor at the Ginna facility, which explained that the
13   “alleged radio issues or difficulties occur only
14   infrequently and take only a matter of seconds to address;
15   for example, dealing with radio traffic at the BRAVO alarm
16   station would not take more than five seconds to address.”
17   Accordingly, Plaintiffs fail to present a genuine issue of
18   material fact about the time spent obtaining/returning the
19   firearm and radio. The 30-90 seconds spent engaging in this
20   principal activity before and after each shift therefore is
21   de minimis. We affirm the district court’s ruling that the
22   time spent obtaining/returning the firearm and radio is non-
23   compensable. We further affirm the district court’s
24   conclusion that the time spent walking between the armory
25   and an assigned post is non-compensable.
26
27        Finally, Plaintiffs forfeited their argument regarding
28   the purported requirement to report to an assigned post 15
29   minutes before the start of a scheduled shift. The
30   affidavits explain:
31
32            [A]t all relevant times, up to approximately
33            March, 2006, security personnel were required by
34            Wackenhut to report to their assigned post fifteen
35            (15) minutes prior to the commencement of their
36            shift. For example, if a shift was to commence at
37            2:30 p.m., the security employee was required to
38            report at 2:15 p.m. Security personnel were not,
39            however, compensated until the actual commencement
40            of the shift.
41
42   Such waiting may well be compensable. See Reich, 45 F.3d at
43   651 (“To be sure, on occasions, courts have found that
44   compensable work can occur despite absence of exertion,
45   where, for example, employees have been required to stand by
46   and wait for the employer’s benefit.”). But here, the
47   operative complaint did not allege Wackenhut’s failure to

                                  4
 1   compensate for this time period. The complaint explicitly
 2   references only “periods of time for arming up and checking
 3   through security and arming down.” The express reference to
 4   “checking through security” undermines any argument that
 5   arming up and down is a term so broad as to include all pre-
 6   shift and post-shift activities. Plaintiffs’ belated
 7   attempt to graft this waiting time onto the process of
 8   arming up and down therefore is precluded.
 9
10        We have considered all of Plaintiffs’ contentions on
11   this appeal and find them to be without merit. Accordingly,
12   we hereby AFFIRM the judgment of the district court.
13
14
15                              FOR THE COURT:
16                              CATHERINE O’HAGAN WOLFE, CLERK
17




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