Singh v. City of New York

524 F.3d 361

Rajkumar SINGH, Thomas S. Matthews, Vivek N. Patil, Trushant Shah, Faramarz Robeny and Fredo Joseph, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Appellee.

Docket No. 06-2969-cv.

United States Court of Appeals, Second Circuit.

Argued: October 1, 2007.

Decided: April 29, 2008.

Michael J. Andrews, New York, NY, for plaintiffs-appellants.

Ronald E. Sternberg (Michael A. Cardozo, Corporation Counsel of the City of New York, Leonard Koerner, on the brief) New York City Law Department, New York, NY, for defendant-appellee.

Before: NEWMAN, SOTOMAYOR and WESLEY, Circuit Judges.

SOTOMAYOR, Circuit Judge:

This case requires us to decide whether the City of New York ("City") fire alarm inspectors must be compensated under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., for all or part of their commuting time from home to work and back because they are required by their employer to carry and keep safe necessary inspection documents during their commutes. Plaintiffs-appellants Rajkumar Singh, Thomas S. Matthews, Vivek N. Patil, Trushant Shah, Faramarz Robeny and Fredo Joseph (collectively the "plaintiffs") appeal from a June 2, 2006 judgment of the United States District Court for the Southern District of New York (Castel, J.), granting summary judgment in favor of the defendant-appellee City and denying the plaintiffs' cross-motion for summary judgment. We hold that, in the particular circumstances of this case, the mere carrying of inspection documents without any other active employment-related responsibilities while commuting is not work under the FLSA, except to the extent that it increases the duration of the commute. The record shows that any increase in commuting time in this case is de minimis as a matter of law and thus not compensable under the FLSA. Therefore, we affirm the district court's grant of summary judgment, concluding that none of the plaintiffs' commuting time is compensable under the FLSA. In addition, we conclude that Singh's First Amendment retaliation claim is without merit because his speech was not a matter of public concern and was made only in his capacity as an employee and not as a citizen.

BACKGROUND

For purposes of this appeal, we accept as true the plaintiffs' version of the facts and all other undisputed facts. The plaintiffs are employed by the City as inspectors within the Fire Alarm Inspection Unit ("FAIU") in the New York Fire Department. As field inspectors, the plaintiffs perform fire alarm inspections throughout the five boroughs of New York City. Based on a collective bargaining agreement, they are paid to complete a thirty-five hour work week, from 9:00 a.m. to 4:30 p.m. on Monday through Friday, including a half-hour break for lunch.

Field inspections generally take place Monday through Thursday, with each inspector completing approximately five "scheduled" and sixteen "unscheduled" inspections each week. On Friday mornings, inspectors normally report to FAIU headquarters to return completed inspection files for the past week and pick up new inspection files for the coming week. These files generally include documents describing the floor plans and fire alarm history of the buildings to be inspected; various inspection checklists, forms, and reports; and any correspondence between building owners and City agencies. Inspectors are responsible for keeping these documents safe from the time they pick them up on Friday morning until the time they return them on the following Friday. The plaintiffs estimate that the collective weight of these weekly assigned materials is between fifteen and twenty pounds.

The present dispute arises from the City's requirement that inspectors carry these inspection files without pay in an FAIU-provided briefcase during their commutes from home to work and back. In order to improve efficiency and maximize revenue-generating hours,¹ the City does not permit inspectors to store their documents overnight at FAIU headquarters or to start or end their workday at headquarters. Instead, the City requires inspectors to report directly to their first inspection site at 9:00 a.m. with all necessary inspection materials and to sign out at the end of the day at the closest firehouse. Inspectors who report to inspection sites without the proper inspection files or who fail to keep the inspection files safe during the week are subject to discipline by the FAIU.

The plaintiffs assert that carrying and keeping safe inspection files affects their commutes in various ways and that they should therefore be compensated for their time and effort. For example, Matthews and Shah testified that carrying documents caused them occasionally to miss a bus or train. Patil and Robeny similarly testified that carrying the briefcase slowed down their walk to the subway station. Joseph testified that the briefcase slowed his commute by "give or take" ten minutes, although he admitted it was difficult to specify an exact number. Singh testified that carrying the documents caused him occasionally to miss the subway and that, as a result, he had to plan for twenty or thirty minutes extra time for his commute each way. Singh further testified that he would sometimes take the subway in the opposite direction of where he was heading in order to board a train with fewer people and more space for his briefcase. In addition, several inspectors complained that keeping the documents safe after work hours was inconvenient, preventing them from attending social events because they had to go directly home in order to ensure the safety of the documents. The plaintiffs do not assert that they were assigned any other employment-related tasks during their commutes.

Separately, Singh contends that the City violated his First Amendment rights when it suspended him without pay for thirty days in alleged retaliation for voicing concerns regarding the City's above-described policy as well as its policy of retaining inspectors in "provisional" status for longer than nine months. Singh complained to various supervisors and fire department officials on several occasions in 2000 and 2001 about the requirement that inspectors transport and safeguard inspection documents, stating his belief that the practice violated the FLSA. Following those complaints, on April 2, 2001, Singh reported to his first inspection site without inspection documents. Henry Gittlitz, then-FAIU manager, informed Singh that his actions were a "dereliction of duty" and cautioned that any repeat behavior would result in administrative charges. In June 2001, Singh wrote on his time sheets that his workday began and ended at home. Deputy Chief Fire Inspector Barrington Brown directed Singh to discontinue this practice and informed him that his behavior could lead to administrative and criminal charges. Singh was later suspended for thirty days without pay on July 13, 2001. The fire department provided Singh with a memorandum detailing the five charges against him on August 6, 2001. This litigation began shortly thereafter.

The district court granted summary judgment in favor of the City on both the FLSA and the First Amendment retaliation claims. See Singh v. City of New York, 418 F.Supp.2d 390 (S.D.N.Y.2005). On the FLSA claim, the district court noted that ordinary commuting time is not compensable under the FLSA because the Portal-to-Portal Act, 29 U.S.C. § 251 et seq., specifically excludes "traveling to and from the actual place of performance of the principal activity [of employment]," Singh, 418 F.Supp.2d at 396, but any work completed during a commute that is "integral and indispensable" to a principal activity of employment falls outside that exclusion, id. at 397. The court then found that even if carrying and possessing inspection files was necessary for the inspectors to perform their jobs, "that fact without more does not make this activity `integral and indispensable' to the principal activity of the inspections." Id. at 399. The district court further concluded that any additional commuting time as a result of carrying the briefcases was de minimis as a matter of law. Id. at 400. Finally, the district court rejected Singh's First Amendment retaliation claim, explaining that his speech was not constitutionally protected because Singh voiced concerns only as an employee upon matters of personal interest and not as a citizen upon matters of public concern.² Id. at 404-05.

DISCUSSION

On appeal, the plaintiffs argue that the district court erred in concluding: (1) that their commuting time was not compensable under the FLSA; and (2) that Singh's retaliation claim fails because he did not engage in protected speech on a matter of public concern. This Court reviews a district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party and resolving all factual ambiguities in its favor. See Buffalo Teachers Fed'n v. Tobe, 464 F.3d 362, 367 (2d Cir.2006). Summary judgment is appropriate only if we conclude that the case presents "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

I. FLSA Claim

We analyze the plaintiffs' FLSA claim in two parts: whether the plaintiffs are entitled to compensation for their entire commute because the City requires them to carry inspection documents during their commute; and if not, whether the plaintiffs are entitled to compensation for any additional commuting time resulting from the City's policy.

A. All Commuting Time

The FLSA "guarantee[s] compensation for all work or employment engaged in by employees covered by the Act." Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Though Congress has never explicitly defined what constitutes work under the FLSA, the Supreme Court has generally described work as "physical or mental exertion (whether burdensome...