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Posted in Blog on October 9, 2019   |  by Gary Burger


The Court of Appeals affirmed the Trial Court's judgment and denied all six points raised by the Missouri Department of Corrections. Here is a link to the opinion. Here's a link to the Post article on the opinion. Here are my 16 favorite quotes from the opinion:

  1. Here, viewing the facts in the light most favorable to DOC, it is undisputed that the officers are “on duty and expected to respond” if incidents of “offenders confronting staff and becoming physical” occur at any time after they go into the facility.
  2. When they are on the premises, officers are “expected to act as a prison guard” during their pre-shift and post-shift required activities. Officers must “pay attention to the offenders absolutely at all times[.]” Inside the premises, it is imperative that the officers are “going to be mindful of [offenders’] behavior.”
  3. Officers “have to monitor and pay attention to offenders walking to their post and walking back[.]” Officers are trained to be careful during pre- and post-shift activity and shift change time because they know those are the times that prisoners often take action, such as escape attempts and staging fights to divert officers’ attention.
  4. Given DOC’s undisputed knowledge of, and expectation for, the officers’ requirement to utilize their training to guard against prisoner fights and escape attempts during shift changes, we conclude that the preliminary and postliminary activities of the officers are not “pre” or “post” at all; instead, these shift change activities are “integral and indispensable” to the officers’ “principal activities” for which they are hired by DOC, that is, guarding against and protecting the public from prison riots and escape attempts.
  5. According to Supreme Court precedent, these activities are, indeed, part of the officers’ “principal activities” of employment by DOC and must be compensated pursuant to FLSA. Integrity Staffing Sols., Inc., 135 S. Ct. at 519. Further, at minimum, the officers are “required by [their] employer to report at a particular hour at [the] place where [they] perform[] [their] principal activity,” and the officers are “there at that hour ready and willing to work.” 29 C.F.R. § 790.7(h).
  6. The officers are “on duty and expected to respond[,]” “act[ing] as a prison guard[,]” whether or not offenders take action requiring officers’ intervention. In other words, the officers are “waiting for work[,]” at all times from the moment they arrive at the premises, which is, as such, “integral and indispensable to [their] principal activities.” Integrity Staffing Sols., Inc., 135 S. Ct. at 519.
  7. Here, the most dangerous, relevant, and integral part of the officers’ “extra work” is the transition from entering the correctional facility and arriving at their shift post—where the threat of prison riots and attempted escapes are real, formidable, and of such nature as to require diligent attention and readiness to intervene.
  8. This “extra work” is daily. It is not a ten minute or less daily activity; instead, combined with the entire pre/post shift “extra work” in the aggregate, the officers are spending thirty minutes per day on this “extra work.” Hence, both substantively and quantitatively, the “extra work” demanded of the officers simply cannot be categorized as de minimis.
  9. DOC conveniently ignores the circuit court’s authority to administer the rules of discovery and its broad discretion to strike experts and their corresponding opinions not timely disclosed—which is the authority that we conclude was properly exercised by the circuit court below.
  10. Here, approximately six years after the present lawsuit had been pending, seven months after the officers had disclosed their expert witness on damages and made such expert available for deposition, a month after the circuit court had closed discovery (with an order stating “no further discovery”) after extensive pre-trial discovery and numerous DOC motions for trial continuance (all of which were granted), and weeks before trial was scheduled to commence, DOC produced a twenty-page affidavit and over 1000 pages of supporting documentation from its rebuttal expert witness, Dr. Hanvey.
  11. At a hearing in which one of the issues related to a motion to strike expert witness testimony was the issue of DOC’s late expert witness disclosure, the circuit court noted its frustration with DOC’s late disclosure, expressed disbelief that DOC would not have thought it important to have their expert witness “on line and ready to go” years earlier, and noted disdain for DOC’s admission that the 1000 pages of expert witness supporting documentation should have been produced months earlier and prior to the close of discovery.
  12. The DOC contends that the declaratory judgment was duplicative of the breach of contract award. This is patently not so, given that the breach of contract judgment was for damages incurred due to DOC’s breach of the contract up to the point of the judgment, whereas the declaratory judgment clarified the parties’ rights under the contract and obligations moving forward under that contract following the date of the judgment.
  13. The declaratory judgment clarified the parties’ rights and obligations under the contract, including DOC’s obligation to pay the officers for work, including pre- and post-shift activities. DOC’s refusal to so pay and refusal to record time in a manner to properly calculate such pay made the declaratory judgment’s order for adequate timekeeping and future obligation to pay pursuant to the contract “necessary to effectuate” the judgment.
  14. Finally, DOC argues in conclusory fashion and without citation to legal authority nor any argument demonstrating how principles of law interact with the facts of the case, that enacting a timekeeping system within the timeline set by the circuit court’s judgment was “unachievable” and that any funds ordered to be paid were not presently appropriated by the legislature.
  15. “If a party does not support contentions with relevant authority or argument beyond conclusory statements, the point is deemed abandoned.” Frazier v. City of Kansas City, 467 S.W.3d 327, 346 (Mo. App. W.D. 2015) (internal quotation marks omitted).
  16. The judgment is affirmed.