 


                                                     UNITED STATES DISTRICT COURT
                                                     FOR THE DISTRICT OF COLUMBIA


PEGGY DINKEL, VALARIE GADSON, and
DEIDRE BECKFORD, for themselves and all
others similarly situated,

                      Plaintiffs,
                                                                        Civil Action No. 11-00998 (CKK)
              v.

MEDSTAR HEALTH, INC., and
WASHINGTON HOSPITAL CENTER,

                      Defendants.


                                                 MEMORANDUM OPINION AND ORDER
                                                         (July 25, 2012)

              Plaintiffs, current and former employees of Washington Hospital Center (“WHC”), claim

that Defendants violated the Fair Labor Standards Act (“FLSA”) and the District of Columbia

Minimum Wage Act (“DC-MWA”) by failing to compensate them for “meal break” and

“uniform maintenance” work. This opinion resolves two motions: Defendants’ [21] Motion for

Partial Summary Judgment Concerning Plaintiffs’ Uniform Maintenance Claim (“Motion for

Summary Judgment”) and Plaintiffs’ [27] Motion under Federal Rule of Civil Procedure 56(d)

for a Continuance to Take Discovery (“Rule 56(d) Motion”). Upon careful consideration of the

parties’ submissions, the relevant authorities, and the record as a whole,1 Plaintiffs’ Rule 56(d)

Motion shall be GRANTED and Defendants’ Motion for Summary Judgment shall be DENIED

                                                            
1
  While the Court bases its decision on the record as a whole, its consideration has focused on
the parties’ memoranda and accompanying materials. See ECF Nos. [21, 26, 27, 28, 29, 31].
When citing to memoranda or other papers, the Court shall simply identify the party and docket
number and provide a brief document descriptor (e.g., “Defs.’ [21] Mem.”). In an exercise of its
discretion, the Court finds that holding oral argument would not be of assistance in rendering a
decision. See LCvR 7(f).


 
 


WITHOUT PREJUDICE. Defendants may renew their motion after merits discovery and in

accordance with a schedule set by the Court.

                                       I. BACKGROUND

       Plaintiffs Peggy Dinkel, Valarie Gadson, and Deidre Beckford, current and former WHC

employees, commenced this action on May 26, 2011, asserting claims under the FLSA and DC-

MWA on behalf of themselves and others similarly situated. See Pls.’ [1] Compl. On September

28, 2011, Marlene Barber, Adama Gibateh, Jovita Ike, Donna Lawrence, Rajini Raj, Vilasini

Sarang, and Barbara Townsend consented to join in the action as plaintiffs. See Pls.’ [16]

Consents.

       Plaintiffs claim that Defendants violated the FLSA and DC-MWA by failing to

compensate them for so-called “meal break” and “uniform maintenance” work. See Pls.’ [1]

Compl. ¶¶ 42-52. Plaintiffs’ uniform maintenance claim, the only claim subject to the pending

motions, turns on the overarching allegation that Defendants maintained and enforced policies

that required Plaintiffs to “clean and maintain all the components of their work uniform in good

and presentable condition” but failed to compensate Plaintiffs for such activities. Id. ¶ 31.

       All WHC employees are subject to Human Resource Policy 402, entitled “Dress and

Appearance.” See Defs.’ [21] Stmt. ¶ 10; Pls.’ [26-2] Stmt. ¶ 10. That policy outlines “[t]he

standards of dress and appearance . . . set[ting] forth the minimum requirements to which all

associates . . . are required to adhere.” Defs.’ [21] Stmt. Ex. C, Attach. 1 at 1. Among other

things, “[e]very associate is expected to practice daily hygiene and good grooming habits, which

includes [sic] wearing neat uniforms or clothing and shoes.” Id. at 2.

       Associates must also wear the uniform designated by departmental policy. See Defs.’

[21] Stmt. ¶ 12; Pls.’ [26-2] Stmt. ¶ 12. Nurses typically wear ciel scrubs, Emergency Services



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Technicians typically wear gray scrubs, and Unit Clerks typically wear a blazer or vest, a dress

shirt or blouse, slacks or a skirt, and a neck tie for male clerks. See Defs.’ [21] Stmt. ¶¶ 21, 24,

35; Pls.’ [26-2] Stmt. ¶¶ 21, 24, 35.

       Associates are responsible for maintaining their own uniforms. See Defs.’ [24] Stmt. ¶¶

26, 37; Pls.’ [26-2] Stmt. ¶¶ 26, 37. Defendants contend that uniforms can be machine-washed at

home with other clothing and do not require special treatment. See Defs.’ [24] Stmt. ¶¶ 27-30,

38-39. Plaintiffs respond that their uniform maintenance activities include spot cleaning,

washing, drying, and ironing their uniforms. See Pls.’ [28-1] Decls. ¶ 5; Pls.’ [31-1] Decls. ¶ 13.

Plaintiffs further claim that because their work exposes them to bacteria and germs that could be

transmitted through contact, they regularly wash their uniforms after each use and separately

from their ordinary laundry. See Pls.’ [28-1] Decls. ¶¶ 6-9. Plaintiffs estimate that these

activities subsume between one and three hours during a typical week. See id. ¶ 10.

                                         II. DISCUSSION

       Defendants contend that they are entitled to pre-discovery summary judgment on

Plaintiffs’ “uniform maintenance” claim because the limited uniform maintenance actually

required by Defendants’ policies does not qualify as compensable activity under the FLSA or

DC-MWA. This contention further divides into two basic arguments. First, Defendants argue

that uniform maintenance is not a compensable “principal” activity. See Defs.’ [21] Mem. at 6-

8; Defs.’ [29] Mem. at 2-7. Second, Defendants argue that the time spent on uniform

maintenance is de minimis. See Defs.’ [21] Mem. at 8-9.

       In response to these arguments, Plaintiffs counter in part that they should be allowed to

conduct discovery on the relationship between Defendants’ uniform maintenance policies and

their infection-control and patient-safety practices before having to defend against a motion for



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summary judgment on these grounds. Because the Court finds that Plaintiffs are entitled to

conduct discovery, Plaintiffs’ Rule 56(d) Motion shall be GRANTED and Defendants’ Motion

for Summary Judgment shall be DENIED WITHOUT PREJUDICE.

                                              * * *

       Plaintiffs seek relief under Federal Rule of Civil Procedure 56(d), which provides:

               When Facts Are Unavailable to the Nonmovant.                    If a
               nonmovant shows by affidavit or declaration that, for specified
               reasons, it cannot present facts essential to justify its opposition,
               the court may:

               (1)     defer considering the motion or deny it;

               (2)     allow time to obtain affidavits or declarations or to take
                       discovery; or

               (3)     issue any other appropriate order.

Fed. R. Civ. P. 56(d). Plaintiffs, as the parties seeking relief under Rule 56(d), bear the burden

of making the required showing. Id. The decision whether to grant or deny relief under Rule

56(d) is entrusted to the Court’s discretion, Pardo-Kronemann v. Donovan, 601 F.3d 599, 611-12

(D.C. Cir. 2010), but “[a] motion requesting time for additional discovery should be granted

‘almost as a matter of course unless the non-moving party has not diligently pursued discovery

of the evidence,’” Convertino v. U.S. Dep’t of Justice, __ F.3d __, 2012 WL 2362591, at *4

(D.C. Cir. June 22, 2012) (quoting Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir.

1995), cert. denied, 517 U.S. 1208 (1996)). That is particularly true where, as here, the court is

presented with a pre-discovery motion for summary judgment because “[s]ummary judgment . . .

is proper only after the plaintiff has been given adequate time for discovery.” Info. Handling

Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1032 (D.C. Cir. 2003) (quotation

marks omitted). With these principles in mind, the Court now applies the relevant three-part

inquiry.

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              A.             Have Plaintiffs outlined the facts they seek to discover and described why those
                             facts are necessary?

              Plaintiffs must first “outline the particular facts” that they seek to discover and “describe

why those facts are necessary to the litigation.” Convertino, 2012 WL 2362591, at *5. Here,

Plaintiffs seek to depose three of the declarants proffered by Defendants in support of their

Motion for Summary Judgment, each of whom purports to be familiar with WHC’s policies and

practices concerning uniforms, dress, and appearance, in order to probe the relationship between

Defendants’ uniform maintenance policies and their infection-control and patient-safety

practices. See Pls.’ [27-1] Decl. ¶ 2; Defs.’ [21-3, 21-4, 21-5] Decls. ¶ 2.

              Why might this be relevant? The FLSA2 requires employers to pay minimum wage for

compensable working time and an overtime premium for compensable hours worked in excess of

forty hours per week. See 29 U.S.C. §§ 206, 207. All time that an employee spends performing

his or her “principal” activities, including activities that are “integral and indispensable” to

principal activities, must be counted as compensable working time.3 See Steiner v. Mitchell, 350

U.S. 247, 249 (1956). Here, the relationship between Defendants’ uniform maintenance policies

and their infection-control and patient-safety practices has some bearing on whether Plaintiffs’

alleged uniform maintenance activities qualify as principal activities.

              For example, an activity is integral and indispensable to a principal activity, and therefore

itself a principal activity, if it is “1) necessary to the principal work performed; and 2) primarily




                                                            
2
  Neither Plaintiffs nor Defendants claim that there is any material difference between the FLSA
and DC-MWA for purposes of the pending motions.
3
  In contrast, an employee is not entitled to compensation for “activities which are preliminary
to or postliminary to said principal activities . . . .” 29 U.S.C. § 254(a)(2).

                                                               5
 
 


benefit[s] the employer.”4 Perez v. Mountaire Farms, Inc., 650 F.3d 350, 366 (4th Cir. 2011),

cert. denied, __ U.S. __, 132 S. Ct. 1634 (2012). An activity is “necessary” if it “is required by

law, by company policy, or by the nature of the work performed.” Id. Therefore, if Plaintiffs are

able to establish a sufficient nexus between their specific alleged uniform maintenance activities

and Defendants’ infection-control and patient-safety practices, that showing would be relevant to

the question of whether the activities are required by company policy or the nature of the work

performed and therefore constitute principal activities.5 For this reason, the Court shall permit

Plaintiffs to engage in discovery before having to defend against Defendants’ argument that their

uniform maintenance activities do not qualify as principal activities.

              This conclusion also counsels in favor of withholding judgment on Defendants’

alternative argument that the time spent on uniform maintenance is too de minimis to qualify as

compensable activity. See Chambers v. Sears Roebuck & Co., 428 F. App’x 400, 409 (5th Cir.

2011) (per curiam) (“[E]ven if Plaintiffs’ activities are integral and indispensable to a principal

activity, they nevertheless may be non-compensable if they are de minimis.”). If the uniform

maintenance activities identified and alleged by Plaintiffs are indeed principal activities, a fact-

finder could conclude that Plaintiffs spent as many as three hours a week performing such

activities. That much time would almost certainly preclude a defense based on the de minimis

doctrine. See Lesane v. Winter, __ F. Supp. 2d __, 2011 WL 6976649, at *7 (D.D.C. Dec. 30,

                                                            
4
  Courts have adopted varying formulations of the “integral and indispensable” standard. See,
e.g., Singh v. City of New York, 524 F.3d 361, 370 n.2 (2d Cir. 2008). The differences between
those formulations do not affect the bottom-line result here and the Court’s citation to the
formulation adopted by the Fourth Circuit should not be construed as an indication that the Court
will apply that precise formulation in the future.
5
  The Court does not opine one way or another on the merits of this relationship, though it has
some doubt that Plaintiffs will ultimately be able to show that activities like ironing meaningfully
contribute to infection control or patient safety. The answer to that question, however, must
await further development of the factual record.

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2011) (“Most courts have found that tasks that take less than 10 minutes each working day are de

minimis.”).

        B.      Have Plaintiffs explained why they could not produce the facts in opposition to
                Defendants’ motion?

        Plaintiffs must next explain why they could not produce the sought-after discovery in

opposition to Defendants’ Motion for Summary Judgment. Convertino, 2012 WL 2362591, at

*5. The answer is simple enough: although the parties have engaged in limited discovery

relating to conditional certification, they have not conducted nor has the Court required them to

conduct merits-based discovery. The Court is satisfied that Plaintiffs’ present inability to present

information is not attributable to a lack of reasonable diligence.

        C.      Have Plaintiffs shown that the information is discoverable?

        Finally, Plaintiffs “must show [that] the information is in fact discoverable.” Convertino,

2012 WL 2362591, at *5. Where, as here, no privilege or other bar to disclosure has been

asserted and the information is in the possession, custody, or control of one of the parties, this

inquiry effectively merges with the question of whether the sought-after discovery is “necessary

to the litigation.” Id. For reasons already discussed, the Court finds that Plaintiffs have made

this showing. See supra Part II.A.

                                                * * *

        In sum, the Court finds that Plaintiffs have made a sufficient showing to obtain relief

under Rule 56(d). Accordingly, Plaintiffs’ Rule 56(d) Motion shall be GRANTED and

Defendants’ Motion for Summary Judgment shall be DENIED WITHOUT PREJUDICE. See

Fed. R. Civ. P 56(d)(1) (“If a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition, the court may . . . defer




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considering the motion or deny it[.]”). Defendants may renew their motion upon further

development of the factual record.

       Before concluding, the Court pauses to emphasize that its consideration of Plaintiffs’

Rule 56(d) Motion comes at a particular time and a particular procedural posture. Most notably,

the Court has not authorized and the parties have not conducted any merits-based discovery.

This fact is critical because pre-discovery motions for summary judgment are disfavored in this

Circuit. Bourbeau v. Jonathan Woodner Co., 600 F. Supp. 2d 1, 3 (D.D.C. 2009). Discovery

allows parties to fully develop and refine their theories of the case and to marshal evidence in

support of those theories. Once a party has been afforded the benefits of discovery, a much more

particularized and thorough showing may be required to justify relief under Rule 56(d). See,

e.g., Harrison v. Office of the Architect of the Capitol, __ F.R.D. __, 2012 WL 1059087, at *1-3

(D.D.C. Mar. 29, 2012).

                              III. CONCLUSION AND ORDER

       For the reasons set forth above, it is, this 25th day of July, 2012, hereby

       ORDERED that Plaintiffs’ [27] Rule 56(d) Motion is GRANTED and Defendants’ [21]

Motion for Summary Judgment is DENIED WITHOUT PREJUDICE. Defendants may renew

their motion after merits discovery and in accordance with a schedule set by the Court.

       SO ORDERED.                                    _____/s/______________________
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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