145 F.3d 516 (2nd Cir. 1998), 97-7114, Holzapfel v. Town of Newburgh, N.Y.

Docket Nº:Docket No. 97-7114.
Citation:145 F.3d 516
Party Name:(BNA) 1097 Joseph H. HOLZAPFEL, And others similarly situated, Plaintiff-Appellant, v. TOWN OF NEWBURGH, NY; Charles M. Kehoe, Chief of Police, Town of Newburgh Police Department, Defendants-Appellees.
Case Date:May 27, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 516

145 F.3d 516 (2nd Cir. 1998)

(BNA) 1097

Joseph H. HOLZAPFEL, And others similarly situated,



TOWN OF NEWBURGH, NY; Charles M. Kehoe, Chief of Police,

Town of Newburgh Police Department, Defendants-Appellees.

Docket No. 97-7114.

United States Court of Appeals, Second Circuit

May 27, 1998

Argued Sept. 4, 1997.

Page 517

[Copyrighted Material Omitted]

Page 518

[Copyrighted Material Omitted]

Page 519

Alan S. Kaufman, Albany, NY (Jeffrey Chamberlain, Chamberlain and Kaufman, Albany, NY, of counsel), for Plaintiff-Appellant.

Daniel J. Schneider, Newburgh, NY (Drake, Sommers, Loeb, Tarshis & Catania, P.C., Newburgh, NY, of counsel), for Defendants-Appellees.

Before: CARDAMONE, MINER, and LEVAL, Circuit Judges.

CARDAMONE, Circuit Judge:

This appeal centers on a K-9 police officer, Joseph H. Holzapfel, who in undertaking to care and provide for the needs of his assigned police dog, claims a substantial amount of overtime for tasks he performed at home. Plaintiff alleges that although he spent 44-45 hours off-duty each week looking after his dog, "Bandit," he received only two hours per week of overtime pay pursuant to police department policy.

Holzapfel brought suit in December 1995 against his employer, the Town of Newburgh, New York, and its Chief of Police, Charles M. Kehoe, alleging violations of the overtime pay provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. Section 207(a) of that Act makes it unlawful to employ an individual "for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." Plaintiff also sought compensation for off-duty hours he spent training a fellow K-9 police officer's dog.

He appeals from a September 12, 1996 judgment entered against him in the United States District Court for the Southern District of New York (Conner, J.), following a jury trial that returned a verdict in favor of the defendants. Plaintiff also appeals from a January 16, 1997 order denying his motion for judgment as a matter of law and for a new trial. See Holzapfel v. Town of Newburgh (Holzapfel II), 950 F.Supp. 1267 (S.D.N.Y.1997).

What we are asked to decide on this appeal is captured in an aphorism: "Every dog has his day, and every man his hour." Bandit was intelligent enough to be selected as a K-9 trainee, and plaintiff has a right to seek, although not necessarily obtain, overtime pay for the hours he spent working with the dog. Underlying this claim however, is the more practical and serious question of whether a municipality that believes such dogs are useful adjuncts in crime investigation and prevention should be required, if indeed it can afford, to pay overtime for all of the at-home hours spent with them. We of course cannot answer that question. But we can provide guidance to the trial court regarding the instructions it should give the jury in this sort of case.


Plaintiff became a police officer for the Town of Newburgh in 1990. A year later, he successfully applied to Chief Kehoe to become a K-9 officer to work with specially trained police dogs. Bandit was assigned to him. Officer Holzapfel worked as a K-9 officer on active duty until he took injury leave on May 9, 1995.

  1. Care, Maintenance, and Training of "Bandit"

    Once Bandit was assigned to plaintiff, the defendant Town of Newburgh supplied training aids, toys, food, and veterinary care for the dog. It sent plaintiff and Bandit for 14 weeks of training at the Orange County K-9 Facility where instruction was given on a variety of subjects: obedience training; agility; tracking; box, article, and building searches; car stops; and criminal apprehension. At the end of the training period,

    Page 520

    instructors recommended that plaintiff continue training with the dog as much as possible.

    Bandit remained with plaintiff at home and at work. Standard operating procedures for the Town of Newburgh assigned K-9 officers responsibility for all aspects of care, maintenance and training for their dogs. The Town scheduled two days per month for retraining, at which time the instructors told plaintiff to work on problem areas between sessions. In 1994, Officer Holzapfel took Bandit back to school for training in narcotics detection and engaged in further narcotics training subsequent to receiving his certification. Plaintiff contends that, in addition to the 40-hour scheduled shifts he worked weekly for the Newburgh Police Department, he spent between 44-45 off-duty hours each week grooming, bathing, feeding, exercising, training, and cleaning up after Bandit.

    As a standard policy, the Town of Newburgh paid K-9 officers two hours of overtime each week. Pursuant to instructions, plaintiff filled out the weekly overtime slip in advance, rather than calculate the actual off-duty hours spent with Bandit after they occurred. Although Officer Holzapfel was told that he would be paid for only two overtime hours per week, he was never directed to limit his off-duty activities to those two hours for which he was compensated.

    Various members of the police department, including Chief Kehoe, were aware that K-9 officers assumed additional duties. Estimates as to the time involved varied among the trial witnesses. Chief Kehoe acknowledged that the responsibilities--exclusive of training--could add up to at least one hour per day. He was also aware that K-9 officers, including plaintiff, engaged in off-duty training, but did not know how much extra time these officers spent off-duty with their dogs.

  2. Training Officer Patricola's Dog

    Anthony Patricola was a K-9 police officer who had been assigned a dog that had flunked out of the Town of Newburgh's K-9 training school. In 1995 plaintiff attended a training class offered by the Orange County Sheriff's Department with his wife's Rottweiler. After Patricola approached him, two weeks into the class, plaintiff requested permission from the Sheriff's Department to work with Patricola's dog during the training class, and Department trainers consented.

    Officer Holzapfel then asked Chief Kehoe to be assigned to work with Officer Patricola's dog. The Chief responded that he could not pay him, but that if Holzapfel wanted to, he could switch shifts and work with the dog on his own time. Plaintiff subsequently changed his hours so as to work with both Officer Patricola's dog and his wife's dog at the training class.

  3. Proceedings in District Court

    After initiating suit, plaintiff moved unsuccessfully for summary judgment. See Holzapfel v. Town of Newburgh (Holzapfel I), 935 F.Supp. 418 (S.D.N.Y.1996). Following the trial, the district judge asked counsel for proposed jury instructions and questions, but ultimately fashioned his own. The text of the first question read:

    Has the plaintiff Joseph H. Holzapfel proved by a preponderance of the credible evidence that he spent additional time, over and above the 40 hours of regular time plus 2 hours of overtime per week for which he was compensated, in performing work which was (1) reasonably necessary to fulfill his duties of feeding, grooming, caring for and training the K-9 unit dog assigned to him and (2) which could not reasonably be performed within such 42 hours of compensated time per week? (emphasis added).

    The jury answered this first question in the negative.

    The second verdict question asked the jury:

    Has plaintiff proved by a preponderance of the credible evidence that he performed additional work in training the K-9 unit dog assigned to Police Officer Anthony Patricola at the direction of defendant Town of Newburgh Police Department or with their knowledge and acquiescence and with the reasonable expectation that he would be compensated for such work?

    Page 521

    Again, the jury answered in the negative. The remaining two questions were to be answered only if defendants were liable to plaintiff. Since the jury found no liability, the substance of these questions is not at issue on appeal.

    After the jury returned its verdict, plaintiff moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50 and for a new trial pursuant to Fed.R.Civ.P. 59. Judge Conner denied both motions.

    On appeal, plaintiff contends that the two verdict questions accompanying the trial court's instructions are contrary to principles established under the FLSA and that, therefore, he is entitled to a new trial. In addition, Holzapfel argues that he is entitled to judgment as a matter of law with respect to his claim for compensation for the time he spent training Officer Patricola's dog.


    Standard of Review

    The substance of jury instructions is reviewed de novo. See United States v. Masotto, 73 F.3d 1233, 1238 (2d Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 54, 136 L.Ed.2d 18 (1996). A jury verdict will be reversed only when an appellant can show that the instructions considered as a whole prejudiced him. See Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994). An error exists if the jury was misled about the correct legal standard or was otherwise inadequately informed regarding the controlling law, and where such error is other than harmless, a new trial is required. See id.

    First Jury Question

    I Question of Fact or Law

    Before examining the merits of this case, it must first be determined who decides what constitutes compensable work under the FLSA. Different circuits have applied different standards. Compare Nichols v. City of Chicago, 789 F.Supp. 1438, 1441 (N.D.Ill.1992) ("Whether an activity is preliminary or postliminary to a principal activity is a question of fact.") (citing Blum...

To continue reading