United States Court of Appeals

For the First Circuit

No. 01-1980

KAREN LYNN BIENKOWSKI, DAVID EBERLE,

DELIA ANN HOYE AND EDWARD MCDONALD,

Plaintiffs, Appellees,

v.

NORTHEASTERN UNIVERSITY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Selya, Circuit Judges.

Judith A. Malone, with whom Krista Green Pratt, Palmer & Dodge

LLP and William H. Hulsey, Office of the University Counsel, were

on brief, for appellant.

Scott A. Lathrop, with whom Scott A. Lathrop & Associates, was

on brief, for appellees.

April 8, 2002
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TORRUELLA, Circuit Judge. This is a dispute arising

under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19.

The plaintiffs-appellees, campus police officers at Northeastern

University, sued their employer to recover overtime payment for

time they spent in classes for certification as emergency medical

technicians (EMTs). On cross-motions for summary judgment, the

district court ruled in favor of the employees and awarded damages.

The employer appealed the finding of liability, arguing

that our precedent applying the Portal-to-Portal Act of 1947, 29

U.S.C. §§ 251-62, forecloses liability in this case. We agree and

reverse the judgment of the district court with instructions to

enter judgment in favor of the employer.

I. FACTS AND PROCEDURAL HISTORY

The parties submitted cross-motions for summary judgment

based on the following set of stipulated facts:

Plaintiffs-appellees, Karen Lynn Bienkowski, David

Eberle, Delia Ann Hoye, and Edward McDonald, were at all relevant

times employed as police officers for the defendant, Northeastern

University, and were compensated on an hourly basis.

Defendant-appellant Northeastern University

(Northeastern) is a private not-for-profit university located in

Boston, Massachusetts.

As a condition of employment, Northeastern required

Bienkowski, Eberle, Hoye, and McDonald to receive and retain

certification as Massachusetts-registered EMTs within one year of

their appointment as probationary police officers. At the time the
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plaintiffs were hired as police officers, they were required to

sign a letter acknowledging that: "[e]mployees must receive and

retain certification as a Massachusetts registered emergency

medical technician within one year of appointment." The training

for which the plaintiffs seek compensation occurred during their

probationary periods. They performed no EMT services prior to

receiving their certifications.

Pursuant to Massachusetts statutes, regulations, and

Department of Public Health standards, initial certification as an

EMT requires approximately 110 hours of classroom work as well as

10 hours of in-hospital observation time, practical exams, and

written exams. Mass. Gen. Laws ch. 111C, § 9; Mass. Regs. Code

tit. 105, §§ 170.810, 170.910. This certification is good for two

years. To maintain certification after two years, EMTs must

complete additional refresher training.

Courses leading to EMT certification were offered at

various locations and times throughout the Commonwealth of

Massachusetts. Northeastern also offered the EMT courses.

In order to fulfill the foregoing requirements, the

plaintiffs attended EMT courses from January 7, 1997, through

April 3, 1997. In addition, all of the plaintiffs completed 10

hours of in-hospital observation, attended EMT review classes, took

the EMT practical exam, and sat for the EMT written exam. The

plaintiffs elected to take the courses at Northeastern, where they

were entitled to tuition remission.
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For the majority of the time, the classes, in-hospital

observations, and exams occurred outside of the plaintiffs' regular

working hours. The plaintiffs performed no work for Northeastern

while they attended these classes. Following their certification

as EMTs, the plaintiffs were required to provide copies of their

certifications to Northeastern.

Pursuant to a collective bargaining agreement, each

plaintiff received an $850 stipend on receipt of the EMT

certification. Other than this stipend, the plaintiffs received

no compensation for attending the EMT courses, in-hospital

observations, or time spent taking examinations. Northeastern

compensated the plaintiffs only for those hours when the classes,

in-hospital observations or exams took place during the plaintiffs'

working hours.

Following their certification as EMTs, the plaintiffs

used their EMT skills while on the job at Northeastern. Bienkowski

recalled handling various medical emergencies, such as broken feet,

heart attacks, diabetic shock, and sports injuries. Prior to their

certification, the plaintiffs performed no EMT work.

Following their certification as EMTs, Northeastern once

or twice a week assigned the plaintiffs to be attendants or drivers

on its ambulances as part of their regular paid duties as

Northeastern police officers. Under Massachusetts law, one has to

be a certified EMT to work on an ambulance. Mass. Gen. Laws ch.

111C, § 9.
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The district court, concluding that the time spent in EMT

training was an integral and indispensable part of the principal

activities for which covered workers are employed, ruled in favor

of the plaintiffs on their overtime claims under the FLSA. In a

later ruling, the court found that the FLSA violation was not

willful and, therefore, did not warrant the imposition of multiple

damages. This appeal followed.

II. ANALYSIS

A. Standard of review

A motion for summary judgment can only be allowed if "the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). In ruling on the motion the district court must view "the

facts in the light most favorable to the non-moving party, drawing

all reasonable inferences in that party's favor." Barbour v.

Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995).

The standards are the same where, as here, both parties

have moved for summary judgment. "The court must rule on each

party's motion on an individual and separate basis, determining,

for each side, whether a judgment may be entered in accordance with

the Rule 56 standard." 10A Charles Alan Wright, Arthur R. Miller

& Mary Kay Kane, Federal Practice and Procedure § 2720, at 335-36

(3d ed. 1998).
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On appeal, we review the district court's ruling on

cross-motions for summary judgment de novo. Wightman v.

Springfield Term. Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996).

B. Portal-to-Portal Act

The FLSA requires employers to compensate employees for

all "hours worked." 29 U.S.C. § 201. However, the Portal-toPortal Act provides, in part, that an employer need not pay an

employee for activities that are "preliminary or postliminary" to

the principal activity or activities the employee is employed to

perform. Id. § 254(a)(2). The Supreme Court has interpreted the

mandate of the Portal-to-Portal Act to mean that "that activities

performed either before or after the regular work shift, on or off

the production line, are compensable . . . if those activities are

an integral and indispensable part of the principal activities for

which covered workmen are employed." Steiner v. Mitchell, 350 U.S.

247, 256 (1956).

In arguing that the district court erroneously concluded

that EMT training was an integral and indispensable part of the

plaintiffs' work as Northeastern police officers, the defendant

places great emphasis on a decision of this court, Ballou v.

General Electric Company, 433 F.2d 109, 111 (1st Cir. 1970).

In Ballou, apprentices in a program run by the employer

sought compensation for time spent attending classes conducted offsite by independent educational institutions. The apprentices were

required by their employment contracts to prepare for, attend, and

make satisfactory progress in these classes. An apprentice who
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failed to keep these conditions was subject to dismissal. For the

most part, the off-site classwork did not relate directly to the

skills apprentices received in on-the-job training; its approach

was more theoretical, providing the apprentices with an academic

understanding of the skills they were developing. Id. at 110.

We concluded in Ballou that the time spent in such

classes was not compensable. We rejected the notion that the

training was integral and indispensable to the employees' principal

activities simply because the employee could be terminated for

failing to complete it in a satisfactory manner. Id. at 111. We

noted also that, under settled Supreme Court precedent, employers

who furnished training to potential employees were not required

under the FLSA to compensate trainees for time spent in the

training program. Id. (citing Walling v. Portland Terminal Co.,

330 U.S. 148 (1947), and Walling v. Nashville, Chattanooga & St.

Louis Ry., 330 U.S. 158 (1947)). Because these cases required

individuals to be compensated only for their activity as workers,

rather than as students, we concluded that the employer's decision

to hire its employees before the completion of training did not

obligate it to compensate them for the time spent in their status

as students after their hiring. Id. at 112.

We find our reasoning in Ballou dispositive in this case

as well. Here there is no question that, during the EMT training

sessions, the employees perform no productive work for the

employer. Nor is there any question that, rather than providing

such training to its employees during their period of probationary
1 29 C.F.R. § 785.32 provides: 

As an enforcement policy, time spent in an organized

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employment, Northeastern could simply make the successful

attainment of an EMT certificate a precondition of employment.

Thus, we will not hold Northeastern liable for overtime pay for

time its employees spend as students, rather than as workers,

simply because Northeastern has decided to hire its employees on a

probationary basis until they complete the training required to

hold the job on a permanent basis.

Plaintiffs respond that despite Ballou, the training is

compensable under the Department of Labor (DOL) regulations

implementing the FLSA. Once of those regulations, 29 C.F.R. §

785.27, makes training non-compensable if, inter alia, it is both

voluntary and unrelated to the employee's job -- conditions that do

not appear to be satisfied here. But we doubt that the regulation

was meant to cover the peculiar situation presented here -- that

is, where the training is not continuing education relating to

existing job duties, but instead a pre-condition for employment

which the employer tolerantly allows to be satisfied while the

employee is working on a probationary basis. And in the event the

regulation was intended to apply to such situations, it would be

inconsistent with Ballou's reading of the statute and precedent.

The plaintiffs also attempt to distinguish Ballou on the

ground that it involved an apprenticeship program, which receives

separate treatment under the DOL regulations. See 29 C.F.R. §

785.32.1 Although we noted in Ballou that the regulation's
program of related, supplemental instruction by employees

working under bona fide apprenticeship programs may be

excluded from working time if the following criteria are

met:

(a) The apprentice is employed under a written

apprenticeship agreement or program which substantially

meets the fundamental standards of the Bureau of

Apprenticeship and Training of the U.S. Department of

Labor; and

(b) Such time does not involve productive work or

performance of the apprentice's regular duties. If the

above criteria are met the time spent in such related

supplemental training shall not be counted as hours

worked unless the written agreement specifically provides

that it is hours worked. The mere payment or agreement to

pay for time spent in related instruction does not

constitute an agreement that such time is hours worked.

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apprenticeship provision "bolstered" our holding, 433 F.2d at 112,

we gave no indication that our conclusion depended upon it.

Instead, our holding in Ballou relies on the statutory language of

the Portal-to-Portal Act and the controlling decisions interpreting

the provisions of the FLSA.

Because the time spent by the plaintiffs in EMT training

is not an integral and indispensable part of the principal

activities for which they are employed, we conclude that the

Portal-to-Portal Act precludes a finding of liability on the part

of Northeastern.

III. CONCLUSION

The judgment of the district court is reversed, and the

case is remanded with instructions to enter judgment in favor of

the defendant.