UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
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
MEMORANDUM OPINION AND ORDER
Thirty-nine current and former employees of the Police Department of the Village of Bartlett ("Bartlett") seek a declaratory judgment that Bartlett has violated (1) certain contractual obligations and (2) the overtime provisions of the Fair Labor Standards Act ("FLSA") by imposing various restrictions on its employees' daily half-hour lunch breaks -- restrictions that assertedly transform the employees' free time into compensable work time. Bartlett has responded with a Fed. R. Civ. P. ("Rule") 56 motion for summary judgment, which is now fully briefed and ripe for decision. For the reasons stated in this memorandum opinion and order, Bartlett's motion is granted in its entirety and this action is dismissed.
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")
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)")
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.
For the first 15 minutes of every shift, all patrol officers, sergeants and CSOs participate in roll call, where the patrol officers (in order determined by seniority) and then the sergeants schedule their meal break times for the day (D. 12(m) P 21). Detectives are not present at roll call and can take their meal breaks at any time during their shifts (id. P 22). Clerks are also scheduled for a meal break during each shift, either by the sergeant working their shift or at a time that clerks themselves select (id. P 49).
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).
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.
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).
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);
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
-- 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.
Patrol Officers and Detectives
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.
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)).
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.
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:
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, 766 S.W.2d 531, 537 (Tex. Ct. App. 1989).
It must be kept in mind, of course, that the compensability question involves a congeries of factors -- not just the frequency of interruptions. To that end it is highly significant that any time a patrol officer or detective is actually forced to forgo any part of a meal because of an interruption, Bartlett either reschedules (conditions permitting) another full 30-minute break -- regardless of the time elapsed on the previous one -- or else compensates him or her for the entire period upon written submission of a compensation request (D. 12(m) PP 40-46).
In an effort to respond on that score, P. Mem. 10 says (again mischaracterizing the actual evidence):
However, officers generally testified that it was their practice, and perhaps an almost universal practice, not to submit overtime cards if they missed part of their 30 minute lunch period but were able to consume a meal. Even Acting Chief Palmer admitted this. (Palmer dep. p. 28).
But quite apart from the fact that Bartlett really cannot be faulted for the manner in which such choices may have been exercised by individual personnel on their own,
what is far more significant is that the non-supervisory members of the department were affirmatively urged to submit such overtime cards (Palmer Dep. 28 ("They are encouraged to. They are told to. They have been told at staff meetings."); Kopanitsanos Dep. 25) and that shift sergeants even solicit such requests when they know that a patrol officer's break has been interrupted (id.; Vergin Dep. 18). Such encouragement is confirmed at the other end as well -- by the testimony of numerous patrol officers and detectives (Gost Dep. 11-12; Stickling Dep. 10; Nicholas Dep. 14; Sales Dep. 10; Vergin Dep. 18). And as already stated, Bartlett's practice has in fact resulted in a great many requests by officers for overtime payment. From January 1990 through March 1993 patrol officers, detectives and CSOs submitted 138 cards, every one of which was honored (GR 12(m) P 47; Norris Aff. PP 3-4 and D. Ex. R1).
Thus the evidence reflects (a) that interruptions are extremely infrequent in the first place (see Bagrowski, 845 F. Supp. at 1119), (b) that interrupted lunch periods are often simply rescheduled for another time, obviating any need to apply for overtime in any case (D. 12(m) PP 40-41),
and (c) that for any lunches that cannot be rescheduled, overtime has been granted on request without exception. On those facts it cannot fairly be said that patrol officers' and detective lunch periods are spent predominantly for Bartlett's benefit.
Nor is that conclusion altered by reference to the other mealtime constraints about which the patrol officers and detectives complain here. Though they contend that their time is not really their own (so as to trigger compensability under the principle stated in such cases as Armitage, 982 F.2d at 432), the evidence -- as contrasted with counsel's arguments -- shows the patrol officers and detectives exercising substantial free control over their meal breaks (see Cloutier, 834 F. Supp. at 371-72).
Aside from the already-discussed emergency-recall scenario, patrol officers on meal breaks have been and continue to be largely free to do as they please. So long as the patrol officers monitor their radios, they need not tell anyone where they intend to go during their breaks (Leonas Dep. 10). As Gost Dep. 13 put it, "I don't patrol. I don't drive. I don't look for situations when I'm on lunch." Sales Dep. 5 adds that he prefers to stay in the station away from potential problems when he is in his break-time "lax mode." And the detectives are not subject to the radio-monitoring requirement at all.
In addition to eating lunch, the employees may choose to run errands to take care of personal business (Perry Dep. 5; Vergin Dep. 14) or to go home (Perry Dep. 4; Stichtling Dep. 5) or to the house of a friend or relative (Gost Dep. 6) -- and as for lunch itself, they may choose to eat virtually anywhere, including restaurants in town (Knight Dep. 6; Stichtling Dep. 6). Others sometimes elect to eat in their cars (Leonas Dep. 20; Gost Dep. 18). They may watch a Bears game (Gost Dep. 18; Knight Dep. 7), communicate with others (Knight Dep. 7), read a book, magazine or newspaper (Sales Dep. 5, 7; Gost Dep. 5; Stichtling Dep. 7; Vergin Dep. 14),
or simply stay away from all potential situations and relax in the station (Perry Dep. 4; Sales Dep. 5-6; Knight Dep. 6; Vergin Dep. 11).
Except for taverns, they are basically permitted to go anywhere they desire within the village (D 12(m) P 26). Indeed, they are permitted to use their police vehicles to get them to their lunch time destinations or to conduct personal business, such as drive-through banking (D. 12(m) P 29; Palmer Aff. P 16; in that respect, see Bagrowski, 845 F. Supp. at 1118).
What has been said to this point dispatches as unfounded the major strands of the relationship that might even arguably confer a right to compensation for the lunch periods. But P. Mem. 9 lists a number of other purported break-time restrictions that, according to the employees, ostensibly call for the conclusion that their time is spent primarily for Bartlett's benefit. Little discussion is needed to dispose of those contentions as well.
First, the fact that the patrol officers (but not the detectives) must remain in their standard uniforms -- which includes their gun belts (P. 12(n) P 10) -- does not make a difference (see Department of Labor Opinion Letter; Avery, 24 F.3d at 1347; University Park, 766 S.W.2d at 532). And the reason is obvious: By the very nature of their job, patrol officers may be required to respond to short-notice crises without the delay that would be entailed by having to change back into their uniforms.
It is frankly absurd for the employees to complain that "usually an officer cannot take lunch with another officer" (P. Mem. 9; P. 12(n) P 16) -- a limitation that is inherently compelled by the limited numbers of personnel and by the need to have some of them on active duty at all times -- just as there is no substance to the objection that officers are not permitted to leave town during their half-hour breaks ( Avery, 24 F.2d at 1347; University Park, 766 S.W.2d at 532). Moreover, D. 12(m) P 31 (uncontroverted by the employees) explains that sergeants have "routinely" granted exceptions when there are requests for permission to leave the village limits for meals nearby.
As for the other criticisms leveled against the applicable restrictions,
the rules established by Bartlett are certainly no more stringent (and in some instances are conspicuously less so) than those in other cases in which municipalities have prevailed as a matter of law. For example, Avery, 24 F.3d at 1347 has explained in language that might well have been written for this case (footnote and citation to Lamon omitted):
The City undoubtedly benefits from the restrictions it imposes on the plaintiffs' meal breaks, but the fact that the City benefits from the restrictions does not mean that the plaintiffs' meal breaks are predominantly for the City's benefit. The overwhelming testimony of the patrol officers and patrol lieutenants themselves is that they are free to spend their meal breaks in any way they wish so long as they remain in uniform, leave their radios on, and do not leave the jurisdiction. The detectives need simply leave a phone number where they can be reached in case of an emergency. The plaintiffs may return home, stop at the bank, pick up their dry cleaning, or run other personal errands. In sum, the plaintiffs are able to "comfortably and adequately pass[ ] the mealtime." No reasonable jury could find that the plaintiffs' meal periods generally are spent predominantly for the benefit of the City. Therefore, the district court correctly held that the meal periods are not compensable under the FLSA . . . .
And relatedly Henson, 6 F.3d at 536 has said:
The only potential restrictions on the officers' use of their meal periods for their own purposes arise from the possibility that citizens might ask them questions and from the monitoring of their radios for emergency calls to return to service. We conclude that these restrictions could not support a finding that the patrol officers spend their meal breaks predominantly for the benefit of their employer. The officers have a full thirty minutes to use for their own purposes and in which to travel to any desired location, subject only to the possibility of being recalled in an emergency. Because the employees' evidence does not create a genuine issue of material fact, we affirm the summary judgment in favor of the police department.
Accord, Armitage, 982 F.2d at 432-33; Bagrowski, 845 F. Supp. at 1118-20; Cloutier, 834 F. Supp. at 371-72; Hill v. United States, 751 F.2d 810, 811-15 (6th Cir. 1985) (letter carriers' mealtimes); Birdwell v. City of Gadsden, 970 F.2d 802, 807-10 (11th Cir. 1992) (detectives' on-call time).
In sum, it would be unreasonable to read the evidence as creating a material factual dispute under the principles voiced in Alexander and like cases. Summary judgment is therefore mandated against the patrol officers' and detectives' FLSA claims.
Because Bartlett's three CSOs (Guasaferri, Misheikis and Whitaker) have been subject to essentially the same restrictions and privileges as the just-discussed sworn personnel (D. Mem. 6 n.3), the same conclusion follows as to them. Nothing has been brought to this Court's attention to suggest otherwise.
Misheikis Dep. 8-9 is illustrative:
Q: Are you ever called back to active duty?
A: Yes, I am.
Q: How often?
A: Not very often at all.
Q: And when you are called back, is your lunch period rescheduled?
A: Most of the time, yes.
Q: In those times that it's not rescheduled, do you submit overtime cards?
Q: And are you paid?
A: Yes, I am.
Q: Have you ever been denied overtime when you submitted a card?
Mr. Perry: That's it for me.
Again Bartlett prevails as a matter of law.
P. Mem. 21 precedes its discussion of Bartlett's clerks with a caption that essentially acknowledges that those employees have an even weaker case for compensation than the sworn personnel.
It is true that clerks must also remain ready to return to active duty in the event of emergency, but interruptions of that nature are unsurprisingly infrequent (D. 12(m) P 55; Albee Dep. 20-21 ("Maybe once a month")). Such other claimed inconveniences as requests for assistance or questions from members of the public are also relatively uncommon and usually do not last more than a few minutes anyway (D. 12(m) P 54; Bourgerie Dep. 9-10; and see the de minimis rule cited in Hill, 751 F.2d at 815).
Clerks enjoy the already-discussed right to reschedule any lunch that is cut short (D. 12(m) P 56) or, failing that, to put in for overtime (id. P 57). No clerk has ever been denied such a request (id. P 59), and from January 1990 through March 1993 clerks have submitted and have been paid for 20 such requests (id. P 60).
It is also undisputed that clerks are just as free to engage in personal pursuits during their lunches as the rest of the Bartlett force -- and they do (D. 12(m) PP 50-51; Albee Dep. 16-18; Bourgerie Dep. 13; Scianna Dep. 12-13). Just one stay-on-the-premises requirement applies exclusively to clerks: They are not allowed to lunch outside the building when a single clerk is on duty. But that does not alter the result (19 C.F.R. § 785.19(b) says "It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period"; accord, Bagrowski, 845 F. Supp. at 1120 n.4). Bartlett is entitled to summary judgment against the clerks as well ( Kaczmerak v. Mount Sinai Medical Ctr., 1988 U.S. Dist. LEXIS 18680, 28 Wage & Hour Cas. (BNA) 1165, 1166-67 (E.D. Wis. 1988)).
Any discussion of the factual aspects of the sergeants' claim can be deferred to the section dealing with their contractual right of recovery, for their FLSA claims are barred by limitations. That is so because Section 255(a) bars claims not commenced within two years after the cause of action has accrued.
Because Bartlett began to pay its sergeants for their lunch breaks in 1990, this 1993 lawsuit on their part is out of time. Indeed, their Memorandum was devoid of any response to the argument at D. Mem. 9 n.5 in that regard.
Each of the FLSA claims has succumbed on analysis, though not all for the same reasons. Complaint Count II is therefore dismissed with prejudice.
Breach of Contract Claims
Complaint Count I rests on identically-worded provisions in two documents promulgated by Bartlett effective October 15, 1985: its Administrative Policy #11 and General Order No. 8505 (collectively the "Policies"). They set out Bartlett's efforts to set out the impact of the then-newly-issued Department of Labor FLSA regulations on various subjects, including lunch periods:
In its recent decision, Garcia v. San Antonio Metropolitan Transit Authority, [469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985)], the United States Supreme Court ruled that local governments are subject to the provisions of the [FLSA].
The U.S. Department of Labor has issued enforcement and compliance regulations to which the Village of Bartlett will adhere.
The following information in the PROCEDURES section will outline the effect of this ruling on the Village of Bartlett.
* * *
Sworn Police Officers: Police Officers will be scheduled for a 30 minute uninterrupted lunch period during each duty shift. The Officer will be free to utilize this time as his/her own and will not be expected to perform any work during the lunch period. An Officer is expected to maintain radio contact with DuComm in the case an emergency arises and the Officer is called to respond.
Periodic radio contact is not considered an interruption unless such contact requires the Officer to leave his/her lunch period to perform a duty. In the event the lunch interruption occurs, an Officer may be rescheduled for another lunch period during the shift if possible. In the event another lunch cannot be scheduled, the time will be considered as paid time at straight time.
The Officer is required to remain on the beat so that the Officer may remain on duty until lunch and return to duty immediately following lunch.
Civilian Police Department: Every employee will be scheduled for an uninterrupted lunch period (30 minutes) during each shift. The employee will not perform any work during the lunch period. If the lunch period is interrupted, it will be rescheduled for a new 30 minutes or considered hours worked.
Bartlett takes issue with the sufficiency of the Policies' language to create a contractual obligation within the boundaries marked out by the seminal decision in Duldulao v. Saint Mary of Nazareth Hosp., 115 Ill. 2d 482, 490, 505 N.E.2d 314, 318, 106 Ill. Dec. 8 (1987):
First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee's continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.
But Bartlett is wrong. Its Policies do contain such a clear promise, one that plainly conveys the idea of an offer and was disseminated to the employees in the requisite manner, and one that the employees could unquestionably be said to have accepted by continuing work.
As a backstop position, D. Mem. 4 urges that "the policies do no more than reflect the Village's legal obligations under FLSA."
While the Policies do begin with the preface that they will outline the effect on Bartlett of the applicability of FLSA, the employees have it right when they say that the specific measures that Bartlett adopted in that respect were a matter of its own choice. Because Bartlett could have complied in any of a number of ways (such as by setting different types of restrictions or by simply paying for all lunches), the precise promises that it did choose to make were a product of its own independent decisionmaking and were thus enforceable offers that, when accepted, became enforceable commitments.
But just as the employees are plainly right in their ability to invoke the Policies' promises as a contractual matter, so they are plainly wrong in their characterization of those promises. P. Mem. 8 contends that Bartlett has guaranteed "the right to be completely free from police responsibility during the lunch break," and P. Mem. 12 says that "General Order 85-05 seems to be a global prohibition of work of any kind during the lunch break." Nothing in the language of Bartlett's offer even suggests (let alone actually promises) that employees will be "completely free from police responsibility" or "work of any kind. " Instead the Policies expressly contemplate ongoing radio contact and geographic restrictions ("on the beat") -- and each of the two references to an "uninterrupted lunch period" (one as to sworn personnel and the other as to civilian employees) is expressly coupled with provisions spelling out the consequences of any interruption: the rescheduling of lunch if possible and, if not, payment at straight time.
Thus Bartlett's contractual undertakings are certainly no greater than those already analyzed in the FLSA section of this opinion.
And it therefore follows that the contract claims of four categories of employees (patrol officers, detectives, CSOs and clerks) necessarily fail for the reasons already discussed. Just as they were unsuccessful in attempting to demonstrate that their meal breaks were spent predominantly or primarily for the benefit of Bartlett, those employees have been at least equally unable to demonstrate that they were not "free to utilize this time as [their] own" -- certainly in the manner in which that last phrase is cabined by the other provisions of the Policies discussed in the preceding paragraph. In sum, those four categories of employees have no ground to assert that they have been contractually promised anything beyond what has already been found insufficient to warrant compensation under FLSA.
Bartlett's sergeants' contractual claims, however, pose the need to take a closer look at the precise content of Bartlett's promise as embodied in the Policies. Because the sergeants are responsible for coordinating entire shifts (Carlson Dep. 32; Nicholas Dep. 11), they regularly spend portions of their lunches monitoring their radios. Carlson Dep. 30-32 explained:
I was constantly getting calls [at home during lunch] from officers for information, officers requesting to do things as per orders, go out of their beats -- requesting permission, and calls from the dispatch system about reassigning calls, or which car should she send to back up another officer.
* * *
With the -- well on lunch I have to constantly monitor, try to monitor all radio traffic. We had cases where the dispatch system was assigning wrong cars, wrong beat cars to wrong areas because the area was growing so fast and changing so fast the system wasn't quite keeping up, and they were assigning inappropriate backup cars. . . . So I had to monitor this to make adjustments.
Carlson went on to describe those interruptions as occurring "almost daily" (id.). To much the same effect (though not characterizing the interruptions in as much detail or as being quite so extensive), see Kopanitsanos Dep. 12-13 and 23-24 and Nicholas Dep. 12-13. All those versions must of course be credited on the current motion.
Because the sergeants' FLSA claims have been barred by the statutory limitations period, there is no occasion to parse the FLSA standard to examine whether such interruptions rendered the sergeants' meal times "predominantly for the benefit of the employer" or caused the sergeants' time to be "devoted primarily to official responsibilities" ( Alexander, 994 F.2d at 337).
Instead the sergeants' contract claim poses the question whether Bartlett has reneged on the promises that it made in the Policies, promises that have not been rendered unenforceable by the ten-year period applicable to written contracts under 735 ILCS 5/13-206.
In that respect the key to the issue lies in the Policies' express limitation on the concept that the police personnel "will be scheduled for an uninterrupted lunch period":
Periodic radio contact is not considered an interruption unless such contact requires the Officer to leave his/her lunch period to perform a duty.
Clearly the sergeants have not shown that Bartlett has violated that pledge. Indeed, the very burden about which they complain is that imposed by periodic radio contact
-- something that is unambiguously exempted from the coverage of Bartlett's promise unless the officer is compelled to leave lunch to perform his or her duty. No evidence whatever has been tendered that such was the case or, if it were, that the sergeants were not provided with the contractual alternatives of either rescheduling their meal periods or receiving the monetary equivalent.
In summary, the sergeants have failed to create a reasonable inference that Bartlett has broken its promise to them as framed in the Policies. Accordingly they, like the employees in the other four categories, have failed on their contract Count I as a matter of law.
There is no genuine issue of material fact as to any of the claims of any of the plaintiff employees,
and Bartlett is entitled to a judgment as a matter of law. This action is dismissed with prejudice in its entirety.
Milton I. Shadur
Senior United States District Judge
Date: August 15, 1994