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August 15, 1994

JANIS M. ALBEE, et al., Plaintiff,
VILLAGE OF BARTLETT, ILLINOIS, a municipal corporation, Defendant.

The opinion of the court was delivered by: MILTON I. SHADUR

 Analysis of Bartlett's motion is made somewhat more complicated by the Complaint's linkage of the claims of five categories of Bartlett employees:

1. three types of sworn police personnel -- patrol officers, detectives and sergeants (unlike employees within the first two categories, sergeants are supervisory officers); and
2. two types of non-sworn civilian personnel -- community service officers who perform certain police duties ("CSOs") *fn1" and record clerks ("clerks").

 Because the several groups do share a number of constraints (or lack of constraints) on their activities, this opinion can and does indulge a substantial amount of collective discussion of the applicable principles. But it will also make clear where differences exist among the categories of employees.


 Until January 1990 all categories of employees at issue in this case were scheduled for 8-hour shifts with half-hour unpaid meal breaks. Then in January 1990 Bartlett's sergeants, and in May 1993 its patrol officers, were rescheduled to 12-hour shifts with a paid lunch period. Although that new arrangement renders the current dispute moot for the sergeants and patrol officers after those dates, they still seek to recover money that they claim is due them for the periods before the changes. As for the other three categories -- detectives and the two categories of unsworn personnel -- they still remain subject to the arrangement described in the first sentence of this paragraph.

 As an employer engaged in public law enforcement, Bartlett has the right under 29 U.S.C. § 207(k) ("Section 207(k)") *fn3" to eschew the standard 40-hour work week otherwise mandated by Section 207(a) and instead to substitute a different work period arrangement for its sworn personnel ( Alexander v. City of Chicago, 994 F.2d 333, 334 (7th Cir. 1993)). Bartlett has exercised that Section 207(k) option, and all of its officers, detectives and sergeants are paid at time-and-a-half for all work performed above and beyond 85-1/2 hours for any two-week period (D. 12(m) P 19). CSOs, on the other hand, do receive overtime for any hours worked in excess of 40 per week (id. P 20), and that is presumably true of clerks as well.

 As a result, the employees in all five categories were and are in fact scheduled for 30-minute meal breaks in each shift, during which time they are relieved from their normal duties and are generally free to eat or to go about whatever personal business they can conclude within Bartlett's village limits (id. PP 25-31, 50). They remain subject to several restrictions, however, the most noteworthy of which are that all of them other than detectives and clerks must remain in radio contact subject to being recalled to duty (id. P 30), while clerks must generally take their meal breaks on the Police Department premises (id. P 52). This opinion later sets out a more detailed examination of the relevant restrictions.

 Whenever an employee believes that a lunch period has been interrupted for any reason, he or she is both entitled and expected to attempt to reach the shift sergeant to have it rescheduled (id. PP 40, 56). Whenever that happens the employee has been granted a fresh 30-minute meal break if at all possible, but has been paid for overtime instead if a meal break has been missed (id. PP 41-47, 56-60). In that latter event the employees have been instructed to put in overtime cards for the entire half-hour (id. PP 42-44, 57-59). For the period between January 1990 and March 1993 fully 138 overtime cards were submitted by the patrol officers, detectives and CSOs, all of whom were then reimbursed at their overtime rates of pay (id. P 47). *fn4" During the same period, clerks submitted 20 such cards and were also compensated accordingly (id. P 60).

 This action was originally brought in the Circuit Court of Cook County via a Complaint for Declaratory Judgment and Accounting and was timely removed to this District Court. Three counts are set out in the Complaint, the first seeking a declaratory judgment that Bartlett has breached its contractual obligations assertedly created by two documents that it has promulgated, the second claiming that Bartlett has violated FLSA's overtime provisions and the third asking for an accounting. Bartlett's motion for summary judgment on the first two counts (those stating the substantive claims) will be dealt with in reverse order.

 FLSA Claims

 This Court's task in deciding whether or not the half-hour daily meal periods at issue in this case were compensable work time within the meaning of FLSA is substantially facilitated by last year's Alexander decision from our Court of Appeals. Alexander considered the claims of a group of Chicago police officers who (much like the employees in this case) felt that certain restrictions imposed on their lunch breaks justified overtime compensation. After the district court had granted the City's motion for a Rule 12(c) judgment on the pleadings, our Court of Appeals reversed and remanded for further factual development of the record.

 Despite the parallel between the types of claims involved in the two cases, Alexander does not of course control this case directly -- in principal part because of the very different posture in which the cases have presented themselves. On Alexander's Rule 12(c) motion (as on a Rule 12(b)(6) motion to dismiss) the well-pleaded allegations of plaintiffs' complaint must be taken as gospel ( Alexander, 994 F.2d at 336), while on the current Rule 56 motion this Court has been armed with the actual facts (thus causing the Complaint's allegations to drop out of consideration, see Rule 56(e)).

 To the extent that Alexander, 994 F.2d at 335-36 recognized a similarity between its Rule 12(c) context and that under Rule 56, the parallel lies only [ILLEGIBLE WORD] requirement in both situations that reasonable inferences must be drawn in favor of the nonmovants (in both instances the employees). *fn5" But the important difference is that the required reasonable inferences are drawn from two entirely different sources: in the Rule 12(c) situation, from the employees' own factually unsupported allegations ( id. at 336), but in the Rule 56 situation, from the actual facts as they have been presented in the parties' evidentiary submissions (as focused by their GR 12 statements).

 In sum, what this Court has specifically been furnished as grist for its decisional mill in this case is the "sufficient development of the facts to enable a capable application of the appropriate predominant benefit standard, including a determination of whether the officers are unable to pass the mealtime comfortably because their time or attention is devoted primarily to official responsibilities" -- the very factual development that Alexander, 994 F.2d at 339 found was lacking in that case. Alexander, id. expressly recognized that it was not holding "that resolution of the FLSA mealtime compensability issue in the countless factual configurations that might arise will always require a trial." And that determination -- whether a trial is indeed required under the specific factual configuration at issue here -- is the determination that this Court is now called upon to make, and that has frequently been made in the employer's favor by other courts acting in the summary judgment mode ( Avery v. City of Talladega, 24 F.3d 1337, 1347 (11th Cir. 1994); *fn6" Henson v. Pulaski County Sheriff Dep't, 6 F.3d 531, 535-36 (8th Cir. 1993); Bagrowski v. Maryland Port Auth., 845 F. Supp. 1116, 1118-20 (D. Md. 1994); Cloutier v. City of Phenix City, 834 F. Supp. 366, 369-72 (M.D. Ala. 1993); cf. Bright v. Houston Northwest Medical Ctr. Survivor, Inc., 934 F.2d 671 (5th Cir. 1991) (decided in the comparable context of a directed verdict; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)).

 Alexander does provide two important guides for this Court's inquiry. For one thing, it teaches that two regulations (including the specific factual examples that one of them includes) dealing with the excludability of meal periods front hours worked *fn7" -- 19 C.F.R. § 785.19(a) and, for public employers opting into Section 207(k), 29 C.F.R. § 553.223(b) -- are informative but not determinative in the evaluation ( Alexander, 994 F.2d at 336-37). Second and critically, Alexander, id. at 337 expressly holds:

The appropriate standard is instead the one articulated in Lamon [v. City of Shawnee, 972 F.2d 1145 (10th Cir. 1993)] -- a standard that sensibly integrates developing case law with the regulations' language and purpose. Under Lamon, a law enforcement employee is completely relieved from duty during a meal period "when the employee's time is not spent predominantly for the benefit of the employer," 972 F.2d at 1155, 1157; stated differently, the "FLSA requires remuneration for meal periods during which a police officer is unable comfortably and adequately to pass the mealtime because the officer's time or attention is devoted primarily to official responsibilities." Id. at 1155-56.

 That same predominantly-for-the-benefit-of-the-employer standard has also been adopted by most of the other Courts of Appeals that have considered the question (most recently Avery in the Eleventh Circuit). This opinion turns then to the analysis in those terms. *fn8"

 As for Bartlett's patrol officers and CSOs, the single most significant restriction (though not the only one) that they urge is Bartlett's reservation of the right to place emergency calls to them during their lunch breaks. *fn9" But that potential does not convert a free meal break into "time . . . spent predominantly for the benefit of the employer." As Lamon, 972 F.2d at 1157 puts it:

That a police officer is on-call and has some limited responsibilities during meal periods does not perforce mean the officer is working.

 Accord, Bagrowski, 845 F. Supp. at 1120 ("Being on-call in case of emergency, does not, in and of itself, make meal time, work time"). Alexander not only defined the already-quoted relevant standard but also emphasized the factual information that was wanting there but is present here (994 F.2d at 339-40):

There is a universe of possibilities about when a meal is "interrupted" so as to require compensation. At this point we can only speculate about the frequency of communication to police officers at mealtime, the frequency and extent of interruptions, the effect of the various restrictions on an otherwise uninterrupted meal period and a variety of other factual matters. The pleadings alone simply do not reveal to what extent the officers' attention was turned to official duties.

 As that and Judge Crabb's concurrence ( id. at 341) make plain, it is the frequency and extent of the interruptions rather than their mere possibility that informs the decision whether "the officer's time or attention is devoted primarily to official responsibilities."

 Here the patrol officers and detectives proffer no evidence that, even with the required favorable inferences, indicates that they ate subject to frequent interruptions (a sharp contrast, for example, with the situation before the district court in Lamon, 1990 U.S. Dist. LEXIS 15906, at *16-*17 (D. Kan. Oct. 4)). *fn10" Instead the contrary situation prevails: Bartlett's well substantiated allegation that the employees are called on to deal with lunch-time emergencies only a few times per month stands uncontested. *fn11" What follows is a brief summary of that substantiation.

 Bartlett's dispatchers maintain a procedure under which they route calls away from patrol officers and detectives who are on their meal breaks (D. 12(m) P 37; see Alexander, 994 F.2d at 341 (Crabb, J. concurring), stating that such a deferral procedure strengthens the presumption that emergency calls are incidental to on-call status). Such interruptions as do occur are often of short duration (Kopanitsanos Dep. 21; Perry Dep. 7). As for lunch-time interruptions arising out of questions from civilians, by definition those are largely a function of where the employee chooses to take his or her meal. Here the employees have extensive freedom to select the places that they eat -- anywhere except taverns (D. 12(m) P 34). Those who pick locations such as the center of town are obviously more likely to be approached by civilians (Gost Dep. 16) than those who lunch in more private spots such as the station house or their own homes. In any event, there has been no substantiation for any claim that the employees have been badgered by civilians to any extent even remotely approaching the point at which their time is not their own (see Bagrowski, 845 F. Supp. at 1120; United States Dep't of Labor Wage & Hour Div. Opinion Letter (July 29, 1985) ("Department of Labor Opinion Letter"), reprinted in 6A Lab. Rel. Rep. (BNA) WHM 99:5005, 5006 ("we would not consider infrequent interruptions of short duration which may occur when a citizen compliments, or asks a law enforcement employee a simple question, as nullifying the exclusion of an otherwise bona fide meal period from compensable hours of work")).

 Under the circumstances presented by the evidence in this case, it cannot be said that time spent on-call constitutes compensable work time as such. As Armitage v. City of Emporia, 982 F.2d 430, 432-33 (10th Cir.1992)(citations omitted) has explained: *fn12"

In the instant case, the detectives were allowed to do as they pleased while on call, as long as they remained sober, could be reached by beeper and were able to report to duty within twenty minutes of responding to the page. They were called in on average less than two times per week, as opposed to the twenty to thirty times per week for the firefighters in Renfro [v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991)] . . . . Although the detectives' services are certainly beneficial to the public, to require compensation under these facts would require that all on call employees be paid for standby time. This would be a major change in the law of the FLSA.

 Accord, Avery, 24 F.3d at 1347; Henson, 6 F.3d at 536; Lee v. Coahoma County, 937 F.2d 220, 225 (5th Cir. 1991); City of University Park v. University Park Police Ass'n, ...

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