The opinion of the court was delivered by: Walls, District Judge.
Plaintiffs, police officers with the City of New Brunswick, move for
summary judgment and an award of unpaid overtime wages, liquidated
damages, and attorneys' fees. The defendant City cross-moves to dismiss
the complaint for failure to state a claim for relief. While these
motions were pending, plaintiffs moved for temporary restraints and
requested a hearing regarding the issuance of a permanent injunction. The
court heard oral argument on May 16, 2000.
This action stems from the plaintiffs' work at "extra-duty jobs," which
arise when a non-governmental outside vendor or contractor seeks a police
officer for services. The defendant City oversees this program: it
maintains an "Extra Duty Job Coordinator" who takes requests from outside
vendors and assigns officers who are interested in the work. Plaintiffs
are paid by the City for these overtime assignments.
1. Conversion to Motion for Summary Judgment
As said, the City styled its motion as one to dismiss the complaint
pursuant to Fed. R.Civ.P. 12(b)(6). However, the defendant's argument
rests largely on the certifications of New Brunswick Director of Police
Michael Beltranena, Jr. and Detective David Martella, Extra-Duty
Coordinator. See Def. Br. Exh. A; Def. Reply Br. Exh. A.
Fed.R.Civ.P. 12(b) directs:
If, on a motion . . . to dismiss for failure of the
pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to
and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as
provided in [Fed.R.Civ.P.] 56, and all parties shall
be given reasonable opportunity to present all
material made pertinent to such a motion made
pertinent to such a motion by Rule 56.
This court has complete discretion to accept such materials beyond the
pleadings. Morse v. Lower Merion School Dist., 132 F.3d 902, 905 n. 3 (3rd
Cir. 1997); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil 2d § 1366 at 491 (1990). However, should it so
choose, the court is required to convert the motion to one for summary
judgment and provide the parties notice and a reasonable opportunity to
present all relevant material. See, e.g., In re Rockefeller Center
Properties Sec. Litig., 184 F.3d 280, 287-289 (3rd Cir. 1999); Rose v.
Bartle, 871 F.2d 331, 339-343 (3rd Cir. 1989).
Here both parties have submitted extra-pleading materials; the
plaintiffs respond to the City's motion to dismiss with the Supplemental
Affidavit of Jeff Dockhorn.
The court finds that consideration of these materials will facilitate
the resolution of this action, particularly the issue, whether plaintiffs
on extra-duty assignment are "employees" of defendant within the meaning
of the FLSA. Accordingly, the court by letter on April 27, 2000 notified
the parties that the defendant's Rule 12(b)(6) motion would be converted
to one for summary judgment pursuant to Fed. R.Civ.P. 56, and authorized
both sides to submit additional evidence.
2. Summary Judgment Standard
Summary judgment is appropriate where the moving party establishes that
"there is no genuine issue as to any material fact and that [it] is
entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). A
factual dispute between the parties will not defeat a motion for summary
judgment unless it is both genuine and material. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). A factual dispute is genuine if a reasonable jury could return a
verdict for the non-movant and it is material if, under the substantive
law, it would affect the outcome of the suit. See Anderson, 477 U.S. at
248, 106 S.Ct. 2505. The moving party must show that if the evidentiary
material of record were reduced to admissible evidence in court, it would
be insufficient to permit the nonmoving party to carry its burden of
proof. See Celotex v. Catrett, 477 U.S. 317, 318, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).
Once the moving party has carried its burden under Rule 56, "its
opponent must do more than simply show that there is some metaphysical
doubt as to the material facts in question." Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). The opposing party must set forth specific facts showing a
genuine issue for trial and may not rest upon the mere allegations or
denials of its pleadings. See Sound Ship Building Corp. v. Bethlehem
Steel Co., 533 F.2d 96, 99 (3rd Cir. 1976), cert. denied, 429 U.S. 860,
97 S.Ct. 161, 50 L.Ed.2d 137 (1976). At the summary judgment stage the
court's function is not to weigh the evidence and determine the truth of
the matter, but rather to determine whether there is a genuine issue for
trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In doing so, the
court must construe the facts and inferences in the light most favorable
to the non-moving party. See Wahl v. Rexnord, Inc. 624 F.2d 1169, 1181
(3rd Cir. 1980).
3. Whether Plaintiffs are "Employees" Under the FLSA
The defendant City first contends that, during the times plaintiffs
worked at extra-duty job assignments, they were independent contractors
in relation to it. As non-employees, plaintiffs would not be protected by
The definitions of "employee" and "employer" in the federal statute are
notoriously circular: 29 U.S.C. § 203 (e)(1) defines "employee" as
"any individual employed by an employer," and § 203(d) in turn
explains that an "employer" "includes any person acting directly or
indirectly in the interest of an employer in relation to an employee. .
. ." Finally, "employ" is defined as "to suffer or permit to work."
29 U.S.C. § 203 (g).
Faced with this lack of clarity, defendant turns to the Tenth Circuit
decision, Baker v. Flint Eng'g, 137 F.3d 1436 (10th Cir. 1998), which
deployed an "economic realities" test to determine if individuals were
employees under the FLSA. Its focus was on "whether the individual is
economically dependent on the business to which he renders service . . .
or is, as a matter of economic fact, in business for himself." Id. at
1440 (citations to Tenth Circuit decisions omitted). Back home, the Third
Circuit has adopted a test crafted by the Ninth Circuit, Donovan v.
Sureway Cleaners, 656 F.2d 1368 (9th Cir. 1981), which weighed six
"itemized factors" with an additional consideration:
1) [T]he degree of the alleged employer's right to
control the manner in which the work is to be
performed; 2) the alleged employee's opportunity for
profit or loss depending upon his managerial skill; 3)
the alleged employee's investment in equipment or
materials required for his task, or his employment of
helpers; 4) whether the service rendered requires a
special skill; 5) the degree of permanence of the
working relationship; 6) whether the service rendered
is an integral part of the alleged employer's
business. . . . In addition, Sureway Cleaners
instructs that neither the presence nor absence of any
particular factor is dispositive and that courts
should examine the "circumstances of the whole
activity," [citing Rutherford Food Corp. v. McComb,
331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed. 1772
(1947)] and should consider whether, as a matter of
economic reality, the individuals "are dependent upon
the business to which they render service."
Donovan v. DialAmerica Marketing, Inc., 757 F.2d 1376, 1382 (3rd Cir.
1985); see also Martin v. Selker Bros., Inc., 949 F.2d 1286, 1293 (3rd
Cir. 1991) (citing DialAmerica). It is clear that this court may not
accept without further inquiry the defendant's assertion that extra-duty
plaintiffs were independent contractors: "Where the work done, in its
essence, follows the usual path of an employee, putting on an
`independent contractor' label does not take the worker from the
protection of the Act." Rutherford Food Corp. v. McComb, 331 U.S. 722,
729, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947).
The court acknowledges the defendant's reliance on Jean Anderson
Hierarchy of Agents v. Allstate Life Ins. Co., 2 F. Supp.2d 688 (E.D.Pa.
1998). See Def. Br. at 3. There the Eastern District of Pennsylvania
cited Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344,
117 L.Ed.2d 581 (1992), for the guide that "where [a] statute does not
helpfully define the term `employee,' courts are to
use a common-law agency test to determine employee status." Jean
Anderson, 2 F. Supp.2d at 693. Yet the Darden decision reached only the
definition of "employee" under ERISA — and expressly held that the
comparatively expansive definition under the FLSA "stretches the meaning
of `employee' to cover some parties who might not qualify as such under a
strict application of traditional agency law principles." 503 U.S. at
326-27, 112 S.Ct. 1344. Because both the Supreme Court and the Third
Circuit have addressed the FLSA definition of "employee," this court does
not share the defendant's reliance on a common law agency approach. See,
e.g., Rutherford, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772;
DialAmerica, 757 F.2d 1376.
Factually, the defendant argues that when the plaintiffs serve at
extra-duty assignments, they are under the control of outside entities,
and the New Brunswick Police Department has "no say in the length of the
employment, the location of the employment, nor . . . the number of hours
required by the assignment. . . . The Department merely provides the
personnel needed." Def. Br. at 1; see also Beltranena Cert. ¶¶ 2, 5,
6. It is undisputed that no formal contract is entered between the City
and the outside vendor. Def. Br. at 1. Further, the City contended at
oral argument that the outside vendors, not the Police Department,
control the existence, duration, and type of extra-duty assignments.
Plaintiffs counter that the City is "inextricably involved" in the
extra-duty job assignment process: when an outside vendor or contractor
seeks an officer for services, it contacts the Police Department and, a
police personnel Extra-Duty Job Coordinator locates an available officer
from a master list maintained. Dockhorn Suppl. Aff. ¶ 3. When an
officer agrees to fulfill an extra-duty assignment, the officer first
reports to the Desk Sergeant and then travels in uniform with full gear
and active radio to the off-site location. "This is mandatory, since if
there is an accident or a robbery in the officer's location, even though
on extra-duty status, he must respond to the scene." Id. Further, another
police personnel, a Road Sergeant, visits extra-duty officers during their
shifts to ensure that they are uniformed and performing their duties, and
that the job is in compliance with local ordinances. Id. ¶ 4. The
plaintiffs raise two additional points to demonstrate the City's level of
involvement. First, they claim that pursuant to New Brunswick Police
Department General Order No. 3.10(1)(a)(5), officers working extra-duty
jobs are considered to have "on-duty" status. Id. ¶ 3. Second, they
evidence that for each hour an officer works at extra-duty, the City
deducts a portion of the officer's pay as "administrative costs." The
City's "cut" ...