Perez v. The City of New York

15‐315
Perez v. The City of New York
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2015 3
(Argued: November 30, 2015 Final Submission: January 22, 2016 4
Decided: August 2, 2016) 5
Docket No. 15‐315 6
7
Henry Perez, Baselice Ralph, Juan Bayron, Jerry Cordero, Ronald Eason, Donald 8
Koonce, Joseph Oro, Ruben Rios, Jr., Pedro Rosado, and Derek G. Walther, on 9
behalf of themselves and others similarly situated, 10
Plaintiffs‐Appellants, 11
v. 12
The City of New York, Mayor Bill de Blasio, The New York City Department of 13
Parks & Recreation, and Mitchell J. Silver, in his official capacity as 14
Commissioner of the Department of Parks & Recreation, 15
Defendants‐Appellees.* 16
17
Before: S ACK, C HIN, and L OHIER , Circuit Judges. 18
Current and former Assistant Urban Park Rangers employed by New York 19
Cityʹs Department of Parks & Recreation filed a collective action in the United 20
States District Court for the Southern District of New York alleging violations of 21
the Fair Labor Standards Act, including the Departmentʹs refusal to compensate 22
them for time spent putting on and taking off (ʺdonning and doffingʺ) required 23
uniforms. The district court (Shira A. Scheindlin, Judge) granted partial summary 24
* The Clerk of Court is respectfully directed to amend the official caption as set forth
above.

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judgment for the defendants and, without further proceedings, closed the case. 1
We conclude that the district court erred both in granting partial summary 2
judgment and in closing the case while several claims remained unresolved. The 3
judgment of the district court is therefore vacated and the cause remanded for 4
further proceedings. 5
VACATED and REMANDED. 6
JAMES REIF (Amelia K. Tuminaro, on the 7
brief), Gladstein, Reif & Meginniss, LLP, 8
New York, NY, for Plaintiffs‐Appellants. 9
DEVIN SLACK, of counsel, for Zachary W. 10
Carter, Corporation Counsel of the City of 11
New York, New York, NY, for Defendants‐ 12
Appellees. 13
RACHEL GOLDBERG, Senior Attorney 14
(Jennifer S. Brand, Associate Solicitor, Paul 15
L. Frieden, Counsel for Appellate 16
Litigation, Mary E. McDonald, Senior 17
Attorney, on the brief), for M. Patricia Smith, 18
Solicitor of Labor, U.S. Department of 19
Labor, Washington, DC, for Amicus Curiae 20
the Secretary of Labor in support of Plaintiffs‐ 21
Appellants. 22
S ACK, Circuit Judge: 23
The Fair Labor Standards Act of 1938 (ʺFLSAʺ), 29 U.S.C. § 201 et seq., 24
regulates the manner in which many New York City employees must be paid. 25
The statute defines certain employment‐related activities as compensable and 26

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sets parameters for both regular and overtime wages. In this case, several active 1
and former Assistant Urban Park Rangers (ʺAUPRsʺ) employed by the Cityʹs 2
Department of Parks & Recreation (ʺParks Departmentʺ) allege that they, and 3
others similarly situated, were not paid in accordance with the FLSAʹs 4
requirements. 5
BACKGROUND 6
AUPRs are employed to perform a range of public services in the Cityʹs 7
parks. For the purposes of this appeal, the defendants accept the plaintiffsʹ 8
assertion that those services include: ʺproviding directions and other information 9
to persons seeking to use parks or pools; providing assistance to those persons 10
involved in accidents or those who may be victims of unlawful activity and 11
investigating such accidents or activity; implementing crowd control procedures 12
at special events; providing safety and educational information to the public; and 13
issuing summonses to or making arrests of persons suspected of unlawful 14
conductʺ under ʺlaws, including New York City rules and regulations, governing 15
use of the parks and pools.ʺ Appellantsʹ Br. at 10; see Appelleeʹs Br. at 10‐11. 16
During a shift, AUPRs are required to wear uniforms comprising both 17
professional clothing and equipment. The professional clothing includes ʺolive 18

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drabʺ pants and jacket, ʺʹSmokey the Bearʹ style hats,ʺ and various Parks 1
Department insignias, while the equipment includes a bulletproof vest and a 2
utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, 3
a summons book, and a tape recorder. Appʹx 213‐14 (official Parks Department 4
uniform policy). The plaintiffsʹ estimates of the time needed to don and doff 5
those uniforms each day (that is, to put them on before a shift and take them off 6
afterward) range from approximately five to thirty minutes. 7
The plaintiffs claim that the defendants — the Parks Department and its 8
Commissioner, along with the City and its mayor — provided inadequate 9
compensation for their work as AUPRs in four respects: (1) by failing to pay 10
wages for compensable activities that the plaintiffs performed immediately 11
before and after their regularly scheduled shifts, including donning and doffing 12
their uniforms; (2) by failing to pay wages for compensable activities that the 13
plaintiffs performed during lunch breaks; (3) by providing one hour, rather than 14
one hour and a half, of compensatory leave for each hour of overtime that the 15
plaintiffs worked; and (4) by providing compensatory leave, rather than 16
monetary payment, for overtime that the plaintiffs worked after individually 17
accruing 480 hours of compensatory leave. The defendants counter that, to the 18

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extent the FLSA applied to the plaintiffs and their employment, their 1
compensation complied with the statute. 2
After the close of discovery, the defendants moved for partial summary 3
judgment on several discrete issues. First, they argued that the plaintiffsʹ 4
donning and doffing of uniforms were not compensable activities under the 5
FLSA, for three independent reasons: (i) the activities were not ʺintegral and 6
indispensableʺ to the plaintiffsʹ principal activities during a shift; (ii) the time 7
spent donning and doffing should be discounted as de minimis; and (iii) in any 8
event, that time was rendered non‐compensable by the plaintiffsʹ collective 9
bargaining agreement. Second, the defendants contended that any claim 10
premised on work performed before June 22, 2009, was barred by the FLSAʹs 11
limitations period. Third, they asserted that the plaintiffs were not entitled to 12
compensation for the overtime they allegedly worked before and after their 13
shifts, or during meal breaks, because they did not adequately report it. Finally, 14
the defendants argued that the Parks Department was not a proper party to the 15
lawsuit. 16
In its January 15, 2015 decision, the district court (Shira A. Scheindlin, 17
Judge) concluded as a matter of law that the plaintiffsʹ donning and doffing of 18

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uniforms were not compensable activities under the FLSA because they did not 1
qualify as integral and indispensable to the plaintiffsʹ principal activities. Perez v. 2
City of New York, No. 12 Civ. 4914, 2015 WL 424394, at *5, 2015 U.S. Dist. LEXIS 3
13425, at *16 (S.D.N.Y. Jan. 15, 2015). The court granted partial summary 4
judgment for the defendants on that basis alone, without reaching the additional 5
arguments made in the motion. See id. The court then ordered the case closed. 6
Id. The plaintiffs timely appealed, arguing that the district court erroneously 7
granted partial summary judgment on the compensability of their donning and 8
doffing and prematurely closed the case. 9
DISCUSSION 10
We vacate the district courtʹs decision and remand for further proceedings. 11
On the current record, we cannot conclude as a matter of law that the plaintiffsʹ 12
donning and doffing of uniforms were not integral and indispensable to their 13
principal activities as AUPRs — the sole ground on which the district court 14
granted partial summary judgment. We therefore remand to allow the district 15
court to decide, in the first instance, whether the plaintiffsʹ donning and doffing 16
are nevertheless non‐compensable as a matter of law under the de minimis 17
doctrine or the terms of a collective bargaining agreement. The district court 18

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should also resolve the issues that the defendants raise as to their entitlement to 1
partial summary judgment on other aspects of the plaintiffsʹ claims, which the 2
January 15, 2015 decision erroneously failed to reach. Absent another appeal or 3
additional motions by the parties that dispose of the action in its entirety, the 4
case should then proceed to trial. 5
I. Donning and Doffing 6
A. ʺIntegral and Indispensableʺ 7
The FLSA generally mandates compensation for ʺthe principal activity or 8
activities which [an] employee is employed to perform,ʺ 29 U.S.C. § 254(a)(1), 9
including tasks — even those completed outside a regularly scheduled shift — 10
that are ʺan integral and indispensable part of the principal activities,ʺ IBP, Inc. v. 11
Alvarez, 546 U.S. 21, 30 (2005) (quoting Steiner v. Mitchell, 350 U.S. 247, 256 12
(1956)). But the FLSA does not require payment for time spent on ʺactivities 13
which are preliminary to or postliminary toʺ an employeeʹs principal activities. 14
29 U.S.C. § 254(a)(2). The parties dispute which standard applies to the plaintiffsʹ 15
donning and doffing of uniforms: The plaintiffs characterize those tasks as 16
integral and indispensable to (and thus part of) their principal activities as 17

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AUPRs, while the defendants describe them as preliminary or ʺpostliminaryʺ1 to 1
all principal activities. The district court concluded that the defendants were 2
correct as a matter of law. After reviewing the record de novo,2 we disagree. 3
An activity qualifies as ʺintegralʺ if it is ʺintrinsically ʹconnected withʹʺ a 4
principal activity that an employee was hired to perform. Gorman v. Consol. 5
Edison Corp., 488 F.3d 586, 591 (2d Cir. 2007) (quoting Mitchell v. King Packing Co., 6
350 U.S. 260, 262 (1956)). And an activity is ʺindispensableʺ if it is ʺnecessaryʺ to 7
the performance of a principal activity. Id. at 592. An activity is therefore 8
ʺintegral and indispensable to the principal activities that an employee is 9
employed to perform if it is an intrinsic element of those activities and one with 10
which the employee cannot dispense if he is to perform his principal activities.ʺ 11
Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513, 517 (2014). 12
Although this standard is markedly ʺfact‐dependent,ʺ Kuebel v. Black & 13
Decker Inc., 643 F.3d 352, 359 (2d Cir. 2011), prior decisions have identified 14
several considerations that may serve as useful guideposts for its application. As 15
1 For a commentary on the statuteʹs use of the word ʺpostliminaryʺ, see Eugene
Volokh, Postliminary:, Volokh Conspiracy (Aug. 21, 2009, 2:12 PM),
http://volokh.com/2009/08/21/postliminary/, archived at https://perma.cc/SE2J‐YKVN.
2 ʺWe review de novo a district courtʹs grant of summary judgment, drawing all
reasonable factual inferences in the non‐moving partyʹs favor . . . .ʺ Velazco v. Columbus
Citizens Found., 778 F.3d 409, 410 (2d Cir. 2015).

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we have explained, ʺ[t]he more the [pre‐ or post‐shift] activity is undertaken for 1
the employerʹs benefit, the more indispensable it is to the primary goal of the 2
employeeʹs work, and the less choice the employee has in the matter, the more 3
likely such work will be found to be compensable.ʺ Reich v. N.Y.C. Transit Auth., 4
45 F.3d 646, 650 (2d Cir. 1995). Relatedly, an employerʹs requirement that pre‐ or 5
post‐shift activities take place at the workplace may indicate that the activities 6
are integral and indispensable to an employeeʹs duties. See Alvarez v. IBP, Inc., 7
339 F.3d 894, 903 (9th Cir. 2003) (concluding that donning and doffing of 8
protective gear were integral and indispensable activities in part because they 9
had to be performed at the workplace), affʹd, 546 U.S. 21 (2005); cf. Bamonte v. City 10
of Mesa, 598 F.3d 1217, 1231 (9th Cir. 2010) (concluding that donning and doffing 11
of police uniforms were not integral and indispensable activities in part because 12
they were ʺnot required by law, rule, the employer or the nature of the police 13
officersʹ work to be performed at the employerʹs premisesʺ). 14
Applying those principles, this Court and others have concluded that an 15
employeeʹs pre‐ and post‐shift preparation of items used to perform principal 16
activities can qualify as integral and indispensable. In King Packing, for example, 17
the Supreme Court held that a slaughterhouse employeeʹs knife sharpening was 18

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integral and indispensable to the principal activity of butchering. See 350 U.S. at 1
263. Similarly, in Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706 2
(2d Cir. 2001), we concluded that a reasonable factfinder might classify a 3
radiological technicianʹs powering up and testing of an x‐ray machine as integral 4
and indispensable to the principal activity of taking x‐rays, see id. at 717‐18. And 5
in Reich, we decided that a K‐9 officerʹs feeding, walking, and training of his dog 6
was integral and indispensable to his principal law enforcement activities. See 45 7
F.3d at 650‐52. All of these activities occurred before or after regularly scheduled 8
shifts, or during lunch breaks. 9
Courts have also concluded that an employeeʹs pre‐ and post‐shift efforts 10
to protect against heightened workplace dangers can qualify as integral and 11
indispensable. In Steiner, the Supreme Court decided that employees who 12
worked in a battery plant should be compensated under the FLSA for the time 13
they spent showering and changing clothes at the workplace after a shift. Those 14
tasks, the Court reasoned, were integral and indispensable to the employeesʹ 15
principal activities because they prevented lead poisoning, an acute danger 16
attendant to work in the plant. See 350 U.S. at 249‐53, 256. Similarly, in Alvarez, 17
the Ninth Circuit concluded that slaughterhouse employeesʹ donning and 18

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doffing of protective equipment, including ʺmetal‐mesh gear,ʺ qualified as 1
integral and indispensable to their butchering work. See 339 F.3d at 898 n.2, 2
902‐04. And in Gorman, we acknowledged that an employeeʹs efforts to protect 3
against ʺworkplace dangers that transcend ordinary risksʺ may qualify as 4
integral and indispensable, although we concluded that employees at a nuclear 5
power plant did not protect against such heightened dangers merely by donning 6
and doffing ʺgenericʺ helmets, safety glasses, and steel‐toed boots. See 488 F.3d 7
at 592‐94. 8
With those precedents in mind, and viewing the record in the light most 9
favorable to the plaintiffs, we think that a reasonable factfinder could conclude 10
that the plaintiffsʹ donning and doffing of uniforms are integral and 11
indispensable to their principal activities as AUPRs. Several relevant 12
considerations point in that direction. 13
As an initial matter, the donning and doffing of an AUPRʹs uniform are 14
activities ʺundertaken for the employerʹs benefit,ʺ with no choice on the 15
employeeʹs behalf. Reich, 45 F.3d at 650. The Parks Department prescribes the 16
components of the uniform in painstaking detail, and AUPRs may be disciplined 17
for non‐compliance. See Appʹx 213‐16, 218. Relatedly, substantial evidence in the 18

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record indicates — and we therefore assume at this stage of the proceedings — 1
that the Parks Department requires AUPRs to don and doff their uniforms at the 2
workplace, see id. 245‐57, another factor that suggests those tasks may qualify as 3
integral and indispensable, see Alvarez, 339 F.3d at 903. 4
More fundamentally, the uniforms appear to be vital to ʺthe primary 5
goal[s] of [the plaintiffsʹ] workʺ during a shift. See Reich, 45 F.3d at 650. To begin 6
with, an AUPRʹs utility belt holds items used to perform law‐enforcement duties. 7
A summons book is, of course, necessary for the issuance of summonses. A 8
baton, mace, and handcuffs, in turn, may be critical in effecting an arrest. And a 9
radio and flashlight may prove crucial in tracking suspects and coordinating 10
with other municipal employees. We are inclined to classify these items as tools 11
of an AUPRʹs trade, arguably analogous to a butcherʹs knife, a radiological 12
technicianʹs x‐ray machine, or a K‐9 officerʹs dog. In keeping with King Packing, 13
Kosakow, and Reich, therefore, we think that a reasonable factfinder could 14
conclude that the donning and doffing of an AUPRʹs utility belt are integral and 15
indispensable tasks. 16
An AUPRʹs bulletproof vest more closely resembles the type of protective 17
gear analyzed in Gorman and Alvarez. Like the helmets, safety glasses, and metal 18

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mesh at issue in those decisions, the vest is not a tool used to perform principal 1
activities; rather, the record indicates that it functions solely to protect against 2
risks collateral to those activities. We recognized in Gorman that the use of such 3
protective gear may be integral and indispensable to an employeeʹs principal 4
activities where it guards against ʺworkplace dangers that transcend ordinary 5
risks.ʺ 488 F.3d at 593. The risk of sustaining gunfire while enforcing municipal 6
laws is not, in our view, an ordinary risk of employment. Under Gorman, 7
therefore, the donning and doffing of an AUPRʹs bulletproof vest also may 8
qualify as integral and indispensable.3 9
Professional clothing appears to be comparably essential to an AUPRʹs 10
work. Uniforms generally serve to identify employees to others, and for many 11
jobs (waiting tables, for example) that function may be a mere convenience. In 12
the case of law‐enforcement personnel, however, identification to the public is 13
more fundamentally intertwined with the objectives of employment. According 14
3 As tools used to perform relatively dangerous law‐enforcement tasks more
effectively, a baton, mace, and handcuffs also afford a degree of protection to an AUPR.
In that sense, they might be analyzed, at least in part, under Gormanʹs framework. We
think the rubric established by Kosakow and Reich, which applies to tools of the trade, is
more apt — and, as we have explained, it suffices to demonstrate that an AUPRʹs baton,
mace, and handcuffs may qualify as integral and indispensable to her principal
activities. But our decision does not foreclose the factfinder, on remand, from
considering the significance of the protective dimension of these items under Gorman.

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to the declarations of former AUPRs, it is professional Parks Department 1
clothing, with its recognizable color scheme and insignias, that not only attracts 2
citizens in need of assistance but also establishes an AUPRʹs authority to 3
investigate violations, issue summonses, make arrests, and otherwise intervene 4
in emergency situations. See Declaration of Marlena Poelz‐Giga dated May 16, 5
2014 (ʺPoelz‐Giga Decl.ʺ) ¶ 12, Appʹx 194; Declaration of Ralph Baselice dated 6
May 13, 2014 (ʺBaselice Decl.ʺ) ¶ 8, Appʹx 230. Without such a visible signal of 7
authority, an AUPRʹs efforts to instruct the public and enforce park rules, 8
perhaps with force, could be ineffective and even perilous — the AUPR might be 9
mistaken for a citizen breaking the law rather than a government official 10
enforcing it. See Lemmon v. City of San Leandro, 538 F. Supp. 2d 1200, 1205 (N.D. 11
Cal. 2007) (ʺ[W]hen determining if the uniform is necessary to the work of a 12
police officer, it is of great consequence that these ʹclothesʹ are of a particular 13
color and design that afford the wearer special powers and deference in our 14
society.ʺ). Moreover, evidence in the record indicates that ʺParks Department 15
supervisors frequently tell AUPRs that [their] role is to be a highly visible 16
uniformed presence in New York City.ʺ Poelz‐Giga Decl. ¶ 12, Appʹx 194; see also 17
Baselice Decl. ¶ 8, Appʹx 230. That instruction blurs the distinction between 18

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wearing the uniform and performing the job. For these reasons, the donning and 1
doffing of an AUPRʹs professional clothing, no less than her equipment, could 2
reasonably be viewed as integral and indispensable to her principal activities. 3
We therefore cannot conclude, as a matter of law, that the plaintiffsʹ 4
donning and doffing of uniforms are not integral and indispensable to their 5
principal activities as AUPRs. In deciding otherwise, the district court erred in 6
three respects. First, it mistakenly classified the plaintiffsʹ uniforms, in their 7
entirety, as serving solely to protect against workplace hazards. In fact, only an 8
AUPRʹs bulletproof vest fits that description. As noted, certain other parts of the 9
uniform — including the baton, mace, and handcuffs — may offer a degree of 10
protection. But these items are not solely protective; they also function as tools of 11
the trade used to perform law‐enforcement tasks, including arrests. The district 12
court erroneously failed to analyze the legal significance of that distinct type of 13
utility. 14
Second, the court mistakenly characterized the protective elements of an 15
AUPRʹs uniform as comparably ʺgenericʺ to the helmets, safety glasses, and steel‐ 16
toed boots at issue in Gorman. Those items qualified as generic because they 17
were widely available to the public and commonly worn in a range of settings. 18

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The same cannot be said of an AUPRʹs bulletproof vest, baton, mace, or 1
handcuffs, all of which are relatively specialized products available only from 2
select sources and used primarily by law enforcement and security personnel. 3
Compounding those errors, the district court misconstrued Gorman as 4
establishing that generic protective gear is never integral and indispensable to an 5
employeeʹs principal activities. Gorman did not endorse any such categorical 6
rule. The Court there held that nuclear power plant employeesʹ donning and 7
doffing of helmets, safety glasses, and steel‐toed boots did not qualify as integral 8
and indispensable because the items at issue guarded against only routine 9
workplace risks. See 488 F.3d at 592‐93. The generic nature of the items may 10
have pointed toward that ultimate conclusion, because generic equipment is 11
more likely than specialized equipment to address workplace conditions that are 12
commonplace. But the itemsʹ generic nature did not establish, as a matter of law, 13
that they guarded against only routine risks. As Steiner demonstrates, items as 14
generic as a shower and a change of clothes can, in certain circumstances, 15
neutralize extreme threats to worker safety. See 350 U.S. at 252‐53, 256. To 16
decide whether the use of protective gear qualifies as integral and indispensable, 17
therefore, courts always must determine whether the gear — however generic or 18

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specialized — guards against ʺworkplace dangersʺ that accompany the 1
employeeʹs principal activities and ʺtranscend ordinary risks.ʺ Gorman, 488 F.3d 2
at 593. This inquiry requires a fact‐intensive examination of the gear at issue, the 3
employeeʹs principal activities, and the relationship between them. 4
B. The De Minimis Doctrine and the Plaintiffsʹ Collective Bargaining 5
Agreement 6
7
In their motion for partial summary judgment, the defendants argued that 8
the plaintiffsʹ donning and doffing of uniforms would be non‐compensable on 9
two additional, independent grounds: that the time spent on those activities 10
qualified as de minimis, see Reich, 45 F.3d at 652‐53 (describing and applying the de 11
minimis doctrine); and that, in any event, the time was rendered non‐ 12
compensable by the plaintiffsʹ collective bargaining agreement, see 29 U.S.C. 13
§ 203(o) (providing that when tabulating ʺthe [compensable] hours for which an 14
employee is employed, there shall be excluded any time spent in changing 15
clothes or washing at the beginning or end of each workday which was excluded 16
from measured working time during the week involved by the express terms of 17
or by custom or practice under a bona fide collective‐bargaining agreement 18
applicable to the particular employeeʺ). Because the success of both of these 19
arguments is fact‐dependent, we leave it to the district court, on remand, to 20

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address them in the first instance. In doing so, the court may expand, as in its 1
discretion may be necessary, the factual analysis contained in the January 15, 2
2015 decision. 3
II. Remaining Arguments for Partial Summary Judgment 4
The defendants also sought partial summary judgment on three additional 5
issues that the district court has not yet addressed: that any claim premised on 6
work performed before June 22, 2009 is barred by the FLSAʹs limitations period; 7
that the plaintiffs were not entitled to compensation for purported overtime 8
hours that they did not adequately report; and that the Parks Department is not a 9
proper defendant. On remand, the court should also address those issues in the 10
first instance. Again, the court may expand the factual analysis contained in the 11
January 15, 2015 decision as it deems necessary. 12
CONCLUSION 13
For the foregoing reasons, we VACATE the district courtʹs January 15, 2015 14
decision granting partial summary judgment for the defendants and REMAND 15
for further proceedings consistent with this opinion. 16

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