
    CORA C. FARLEY v. THE UNITED STATES
    [No. 447-52.
    Decided January 11, 1955.
    Defendant’s motion for rehearing overruled April 5,1955.]
    
      
      Mr. Peter Beter for the plaintiff.
    
      Mr. Walter Eiechel, Jr., with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant. Mr. Alfred J. Kovell was on the brief,
   Jones, Chief Judge,

delivered the opinion of the court:

This is a suit for night differential and overtime pay for overtime duty which plaintiff claims she was assigned to perform.

Between September 9, 1947 and May 24, 1952, plaintiff, a classified civil service employee, was employed as a correctional officer at the Federal Reformatory for Women, Alderson, West Virginia.

Plaintiff was assigned to one of the 15 brick 2-story cottages, each of which had 30 rooms for inmates, as well as kitchen and dining and other necessary facilities.

A correctional officer, assigned to each cottage, was charged with the general care and custody of the inmates, made requisition for supplies, supervised the work of the inmates, checked them in and out of the cottage, counted them, prepared a daily report of the actual count, and prepared various monthly reports as to the activities and conduct of the inmates. She had charge of the keys at all times, whether on regular or nighttime assignment.

Among other duties the correctional officer kept the medicine cabinet locked, administered simple remedies for minor ailments and advised the officer of the day when hospitalization was needed, maintained discipline and counselled with those having emotional disturbances. At 9:30 p. m. the doors of the individual rooms were locked. The correctional officer in charge was required to remain in the cottage overnight, being furnished a bedroom where she was permitted to sleep. Pay for the room was deducted from her pay for the overnight assignment.

Each officer worked regularly five days each week, eight hours per day, a total of 40 hours per week.

In addition each officer was required to remain overnight on alternate days of her regular assignment. Each officer was required to remain two nights one week and three nights the alternate week. It is this extra period that is in controversy.

The Rules and Regulations for the Operation of Cottages provided as to this overnight service as follows:

When Correctional Officers are assigned to evening duty in a cottage they are to remain on duty (although permitted to go to sleep after 9:30) until the following morning or until they have been specifically relieved by others and the Chief Warder notified.

No compensation was paid for this overnight service.

This overnight service amounted to an average of 43 hours for each 2-week period. The nights of each week when it was performed immediately followed the full 8-hour regular day. The entire 43-hour bi-weekly service, if it be construed as a duty assignment, was in excess of the 40-hour regular weekly performance of duty.

The question is whether plaintiff was entitled to night differential and overtime pay for the 43 hours average biweekly time when she necessarily remained in charge in the cottage.

During these nighttime assignments the correctional officer was in direct charge of and responsible for the care and custody of the inmates. She was subject to calls from inmates and telephone calls from the officer of the day, the hospital and guards. She kept the keys to all the doors in the cottage and was required to lock the inmates in the rooms at 9:30 each evening, when she was permitted to retire, subject to the calls to which we have referred. There were sometimes as many as four babies in the cottage. Sometimes there would be none, due to the changes that had been made in the occupancy of the cottage. When she had calls from inmates due to illness or other distress, or was called upon to feed or care for the babies of the inmates, the plaintiff was disturbed as many as three or four times during an overnight assignment. Her telephone calls from the outside were not numerous, but any such call in an institution of this kind would naturally disturb her sleep. She had charge of the medicine cabinet and administered simple remedies, although when there was serious illness or disturbance the hospital officials would be called. Her sleep was naturally fitful and restless as she was subject to call at any time.

In these circumstances we cannot escape the conclusion that the correctional officer was on duty. The order itself stipulated that the officer should “remain on duty.” Her freedom of choice to follow her own habits was restricted for the benefit of the defendant. The plaintiff had a home, a husband and a child, but she was required to remain away from them and restricted to a cottage at a reformatory in which there were 30 inmates and sometimes extra ones sleeping in the hallway or on the porch. General Electric Co. v. Porter, 208 F. 2d 805.

Plaintiff’s claim is made under the Federal Employees Pay Act of 1945, 59 Stat. 296, as amended, 60 Stat. 218, 5 U. S. C. 911, 912, 921. Section 201 of this act requires the payment of overtime in addition to basic compensation for all hours of employment officially ordered or approved in excess of 40 hours per week, and section 301 provides for 10 percent additional in excess of the basic rate of compensation when the duty is performed during the nighttime. We quote the words of the Supreme Court in two cases as follows:

Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer. Whether time is spent predominantly for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case. [Armour & Co. v. Wantock, 323 U. S. 126, 133.]
Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged. * * * “Hours worked are not limited to the time spent in active labor but include time given by the employee to the employer * * [Skidmore v. Swift & Co., 323 U. S. 134, 137, 138.]

Defendant calls attention to the fact that the plaintiff agreed as a condition to her employment that she would perform the nighttime duty. While simple conditions incident to employment may properly be made, we do not think that an agreement to work overtime without pay can be enforced contrary to the provisions of a clear statute limiting the work to be performed to 40 hours per week and providing overtime pay for extra duty. The issue remains still the single one of whether the plaintiff was on duty in excess of 40 hours per week.

The regulation specifically requires that the officer remain on duty. It must be remembered that this service was in a reformatory where there was no freedom for recreation- or normal living habits and plaintiff was not free to engage during that period in any of the normal rounds of activity in which the average person desires to engage.

We have always heard that the way to judge the problems of another individual is, insofar as possible, to put oneself in the other’s place.

It is easy to understand how some simple requirement, such as wearing a certain kind of uniform, a badge of authority, or some other means of identification, might be construed as a condition to the right to work for an organization of this kind. But try to imagine if you can, if anyone can, a reasonable creature in being after a regular 8-hour stint, which is all the work the law allows in any one day, deciding, by choice, to spend two and one-half full nights of supposedly leisure time each week in charge of 30 people all of whom had committed offenses, some being narcotic violators, and being subject to call from inmates, and telephone calls from the officer of the day, the hospital and the guards, to say nothing of administering to minor ailments and disturbances by babies, who were too young to read and respect the signs which said “Quiet, please,” and then trying to classify it all as a simple condition of the right to work.

Then visualize working under the type of prison officials who would be so inconsiderate of the natural fatigue of an American woman of normal sensibilities after eight full hours of work, as to undertake to so classify the ordeal, and one will have a reasonably accurate picture of what actually occurred.

Defendant urges that it was provided that plaintiff might have compensatory time off for the extra duty but it seems to us she made the normal interpretation when she interpreted this as covering calls when inmates undertook to escape, or some emergency arose which called for some special activity in addition to the regular duties which she performed on call. In fact, her letter accepting the condition contained the following statement:

I hereby express my willingness to accept overtime work for emergencies on the basis of compensatory time off. [Emphasis supplied.]

The buildings were located on a campus which was surrounded by a fence which could be climbed with some effort. It was natural that some of the inmates would not be happy and would undertake to escape. The plaintiff was required by the regulations to make a report at midnight as to whether all of the inmates were safely in their quarters. This report, however, according to custom, was usually made at 9:30 p. m. There were other duties which the correctional officer was required to perform in connection with inmates who were to be released or transferred to the hospital, or for changes that might be necessary.

Considering the entire picture presented by the facts in this case we hold that plaintiff was on duty during the extra hours and is entitled to nighttime differential and overtime pay for the time when she was on duty at night in excess of 40 hours per week, less the brief periods when she is shown to have claimed and received compensatory time.

Entry of judgment is suspended pending the filing of a stipulation by the parties, or a report by the General Accounting Office showing the amount due plaintiff in accordance with this opinion.

It is so ordered.

LaramoRE, Judge; MaddeN, Judge; Whitaker, Judge; and IattletoN, Judge, concur.

FINDINGS OE FACT

The court, having considered the evidence, the report of Commissioner Eoald Hogenson, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff is a citizen of the United States and a resident of West Virginia.

2. From September 9,1947, to May 24,1952, the plaintiff was employed by the defendant in the classified civil service as a correctional officer at the Federal Beformatory for Women, Alderson, West Virginia, administered by the Bureau of Prisons, Department of Justice.

3. The plaintiff seeks to recover overtime compensation and additional “night pay differential” for the period from September 15, 1947, through May 24, 1952, pursuant to the Federal Employees Pay Act of 1945, 59 Stat. 295, as amended, 60 Stat. 218.

4. While the Federal Beformatory for Women, Alderson, West Virginia, had some maximum security quarters, it was in the main a cottage-type of correctional institution located on a campus, not surrounded by a formidable wall but by a fence which could be climbed with some effort. In addition to the various other buildings, there were 15 brick cottages of 2-story construction. Each cottage had 30 single rooms for inmates and facilities and space for cooking, dining and other necessary functions.

By shift assignments, a correctional officer was always in attendance at and in charge of a cottage. She was charged with the general care and custody of the inmates while they were in her cottage, and prepared requisitions for necessary supplies and equipment. She supervised the work of inmate crews within the cottage in housekeeping work and the preparation and service of meals. She maintained a count of her inmates, and checked them in and out of the cottage. She made entries in a log book, and was required to prepare a daily count report of the actual count of the inmates in the cottage at midnight. Actually this report was usually prepared at about 9:30 p. m. The correctional officer was further required to prepare various other monthly reports on the activities and conduct of inmates.

The correctional officer was required to retain personal possession of the keys at all times while she was in attendance at and in charge of a cottage, whether on regular or overnight assignment. Among other duties, she kept the medicine cabinet locked, administered simple medicines such as aspirin to inmates suffering from minor ailments, advised the officer of the day or the hospital whenever it appeared that an inmate needed hospitalization, maintained discipline, quieted disturbances, and counselled with those having nervous upsets or emotional disturbances.

The inmate rooms were not provided with running water or toilet facilities, but only with a night jar. The inmates were permitted to take a glass of water to their rooms at lock-up time.

5. Except for Sundays, the active day of the inmates began at &: 00 a. m. each morning. After breakfast had been prepared and served, most of the inmates were checked out of the cottage at 8:00 a. m. on work or school assignments. Some remained to perform the work details in the cottage, and occasionally an inmate remained in quarters because of illness not requiring hospitalization.

All of the inmates returned to their cottage for the noontime meal and again at 5:00 p. m. upon completion of daily assignments.

During the evening inmates were checked in and out of the cottages for recreation and class purposes. At 9:30 p. m. the inmates were required to be in their individual rooms, and their doors were locked and the lights were turned off. The correctional officer then on duty was required to remain in the cottage overnight. A bedroom was provided for her, and she was permitted to go to sleep.

6. Throughout the period of her claim, the plaintiff was regularly assigned as a correctional officer in a cottage for 2-week tours of duty, as follows:

Sunday_2:00 p. m. — 10:00 p. m.
Monday_6:00 a. m.— 2:00 p. m.
Tuesday_1:30 p. m.— 9:30 p. m.
Wednesday_6:00 a. m.— 2:00 p. m.
Saturday_1:30 p. m.-— 9: 30 p. m.
Sunday_7:00 a. m.— 3:00 p. m.
Monday_1:30 p. m.— 9:30 p. m.
Tuesday-6:00 a. m. — 2:00 p. m.
Wednesday_1:30 p. m.— 9:30 p. m.
Saturday_6:00 a. m.— 2:00 p. m.

A relief officer was on duty on Thursdays and Fridays, and the plaintiff’s schedule thus provided 40 hours of duty per week, not including the overnight time hereinafter mentioned.

7. The plaintiff, as well as others similarly employed, was required to remain overnight in the inmate cottage to which she was assigned after completing the evening tour of duty occurring on the alternate days of her 2-week schedule. The Eules and Eegulations for the Operation of Cottages provided in this regard, as follows:

When Correctional Officers are. assigned to evening duty in a cottage they are to remain on duty (although permitted to go to sleep after 9:30) until the following morning or until they have been specifically relieved by others and the Chief Warder notified.

For example, the plaintiff served her regularly scheduled evening tour from 2: 00 p. m. to 10: 00 p. m. on Sunday, the first day of the 2-week period, and was required to remain in the cottage that night until 6: 00 a. m. Monday when she commenced and performed her Monday assignment until 2: 00 p. m. At that time she went off duty for 23% hours until she started her next evening assignment at 1: 30 p. m. Tuesday, upon completion of which the overnight assignment occurred again. This procedure was repeated throughout each 2-week period, except for Thursdays and Fridays which were the plaintiff’s off-duty days.

For the typical 2-week tour of duty, the plaintiff was paid regular and night differential pay on the basis of being on duty for the 80 hours of morning and evening duty as set forth in finding 6, but she was not compensated for the time she was required to remain overnight in the cottage, which amounted in alternate weeks to 19 and 24 hours, or 43 hours per 2-week period.

For this overnight time throughout the period of her claim, the plaintiff seeks to recover overtime and night-differential compensation in an amount to be computed on further proceedings, if ordered by this Court.

8. The plaintiff was assigned at various times to each of the 15 cottages. On the overnight assignments, she retired in a room particularly reserved for the correctional officer. Sometimes this room was on the second floor next to the rooms of the inmates, and on other occasions on the first floor. The sum of $3.75 was deducted from the plaintiff’s bi-weekly earnings for use of the room on the overnight assignments. Plaintiff had a home, a husband and a child, but she was required to remain at the cottage on these nights.

The upstairs telephone was located in the officer’s room, but the downstairs one, in the hallway. Incoming telephone calls at night usually came in on this latter telephone, as it was the one on which the business of the cottage was transacted.

9. While there were no specific duties assigned to the plaintiff at night, she was in direct charge of the cottage and responsible for the care and custody of the inmates. It is reasonable to conclude that her rest was generally disturbed by these existing responsibilities and attendant circumstances.

In particular, her sleep was disturbed for the following specific reasons: (a) Calls from inmates, and (b) telephone calls from the officer of the day, the hospital, and guards.

10. The plaintiff kept no record of disturbances at night except as a matter would be significant to the relieving officer, in which event she might make a notation of a particular event in the log book. The primary purpose of the log book was to keep count of the inmates for the information of the relieving officer, and the regulations otherwise required entries of important information concerning assignments, orders from the school or medical department, notes on maintenance and repairs needed or executed, inmate behavior problems or any other items which would give the relieving officer full and accurate information regarding the cottage and its population.

It was required that the log book be kept by the telephone in the hallway, and since it was accessible to the inmates, confidential information was generally not recorded therein, but a note was left to the relieving officer as to where a written statement could be found, or an oral discussion was had with the relieving officer.

Only 22 of the log books which were made in the 15 cottages during the period of the plaintiff’s claim are still in existence. They were presented in evidence in this case. They pertain to only some of the cottages and cover only part of the time involved in the case. They contain only occasional entries of facts indicating disturbance of the rest of the correctional officer at night.

11. With respect to calls from inmates due to illness or other distress, or to feeding or care of babies of inmates, the plaintiff was disturbed as much as 3 or 4 times during an overnight assignment, and on some nights her rest was not interrupted at all.

The daily count reports were used by the institution to prepare official weekly reports, which contain among other matters, the total population of inmates and babies at the end of each day. By taking the high (H) and low (L) daily counts of each week, and computing averages thereof for each calendar year during the period of the plaintiff’s claim, the following schedule results:

Inmates Babies
Period of time (H) (L) (H) (L)
Sept. 11, 1947 to Dec. 25,1947_ 475 469 9 8
Jan. 1,1948, to Dec. 30, 1948_ 442 435 9 8
Jan. 6, 1949 to Dec. 29, 1949_ 427 414 6 6
Jan. 5,1950, to Dec. 28,1950_ 445 439 6 6
Jan. 4,1951, to Dec. 27,1951_ 434 428 7 6
Jan. 3,1952, to May 29,1952_ 456 449 8 8

The entries in the log books at some times indicated that the cottages were overcrowded, on which occasions it was necessary to have some few inmates sleep in the hallway or on the porch. Some of the inmates had been convicted of crimes of violence. The largest single group were narcotic violators, but very few of them were active addicts.

The nature of the calls from the inmates was to obtain additional water, or aspirin or some minor medicine to relieve illness, or because of emotional disturbance. On rare occasions it would be necessary to make arrangements and transfer an ill inmate to the reformatory hospital during the night. On her overnight assignments the plaintiff had as many as 4 babies locked in the rooms with their mothers, and sometimes not any. Some of the babies required feeding during the night, and the plaintiff was required to obtain the milk from the refrigerator in the kitchen.

Each cottage had a trustee inmate, called the Committee Girl, whose room was not locked. The plaintiff was aroused by the trustee or by the inmate calling out or pounding on her door.

12. Incoming telephone calls were received by the plaintiff during her overnight assignments on the average of 5 or 6 times per year from the officer of the day, 3 or 4 times per month from the reformatory guards, and 3 or 4 times per year from the reformatory hospital.

The guards called whenever there appeared to be anything suspicious about the appearance of the cottage. Sometimes they were prompted by loose screens or open doors to call the correctional officer.

The officer of the day usually telephoned a cottage during the night when escapes or attempted escapes had occurred, and the plaintiff on such occasions would proceed to make a check of her cottage.

The night calls from the hospital were for inmate technicians or nursing aids, and the plaintiff would proceed to unlock and awaken the inmate and send her on the special night assignment.

13. [Regulations promulgated by the Bureau of Prisons, dated June 6,1946, with reference to overtime pay provided in pertinent part as follows:

MEMORANDUM FOR ALL INSTITUTIONS t
By memorandum of April 26, 1946, the Department authorizes, commencing July 1,1946, arid subject to the following conditions, payment of overtime compensation in those instances when it is not possible to grant compensatory time off for overtime work arising from the custody, transportation, or surveillance of prisoners’:
1. In no case (except as hereinafter provided for personnel operating Prison buses) shall the total compensation, both basic and overtime, exceed 16 hours per day i. e., basic pay for 8 hours and overtime pay for 8 hours may be paid for the same day within the basic workweek. No overtime shall be paid, of course, unless the 40 basic workweek hours have been performed. A maximum of 16 hours overtime compensation may be paid for a calendar day after completion of the five 8-hour days of the basic workweek.
2. The authorization for payment of overtime compensation is restricted to:
a. Escape hunts * * *
b. Biots or Disturbances * * *
c. Major Plant Breakdowns * * *
d. Transporting Prisoners * * *
8. Overtime in excess of the regular established, hours of duty must be ordered in writing by the Warden of the institution or his representative.
4. The Warden shall plan in advance the selection of personnel for extra or special duty and prepare a written agreement to be kept on file in the institutions, indicating those willing to accept overtime work not in excess of 8 hours, on the basis of compensatory time off. It is expected that all employees living on the reservation will conform to this arrangement.
ifc $ ‡ Jf? #
6. Payment of overtime compensation may be made in accordance with the above provisions without referral to the Bureau or the Department for prior approval and authorization.

14. On three occasions during the period of her claim, the plaintiff was formally assigned “overtime work in excess of the administrative workweek”, for which she requested and was allowed compensatory time off. She performed overtime on October 23,1947, from 10:00 a. m. to 6: 30 p. m. in connection with the escape of two inmates, and was relieved of 8½ hours of regularly scheduled time on November 15-16,1947. Because of staff shortage, she worked overtime from 4:30 p. m. to 9:00 p. m., August 19, 1948, and was accordingly relieved of duty for hours on September 15, 1948. She was allowed ½ hour off on December 27, 1949, for preparing a released inmate to leave on the 6:03 a. m. train on December 20, 1949.

On the overnight assignments, there were occasions between 5:30 a. m., and 6: 00 a. m., when the plaintiff had to prepare an inmate for release. The plaintiff testified that sometimes there would be as much as a release every morning for three days, but “again there would not be any for a week or two.” The relieving officer was regularly scheduled to come on duty ½ hour before the expiration of the shift of the acting officer in order to permit conferences between them. The chief correctional officer instructed the plaintiff to take off the ½ hour overlap time when she had prepared an inmate for release. The plaintiff was not always able to do so, due to the necessity for conferences with the relieving officer.

The plaintiff did not request compensatory time off for such occasions when she was unable to use the % hour overlap period, or for the times when she was otherwise disturbed and performed services during the overnight assignments.

15. At the time the plaintiff commenced her employment at the Alderson reformatory, she elected in writing to accept compensatory time off for any overtime she might perform. While the plaintiff testified that she was not officially advised before commencing her employment, she was informally made aware of the overnight assignments by a friend who was already employed as a correctional officer.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover.

Entry of judgment is suspended pending the filing of a stipulation by the parties or a report by the General Accounting Office showing the amount due plaintiff in accordance with the opinion in this case.

In accordance with the opinion of the court and on a stipulation by the parties showing the amount due thereunder, it was ordered July 12, 1955, that judgment for the plaintiff be entered for $9,186.90,  