Nichols v. City of Chicago, 89 C 3526.

Decision Date21 April 1992
Docket NumberNo. 89 C 3526.,89 C 3526.
PartiesRaymond J. NICHOLS, et al., Plaintiffs, v. CITY OF CHICAGO, Defendant.
CourtU.S. District Court — Northern District of Illinois

Patricia A. Collins, Stephen J. Feinberg, Marvin Gittler, Asher, Gittler, Greenfield, Cohen & D'Alba, Chicago, Ill., for plaintiffs.

Kelly R. Welsh, Mary L. Smith, Susan R. Lichtenstein, Jennifer J. Ranger, Eileen L. Bell, City of Chicago, Law Dept., Corp. Counsel, Mary Lane Mikva, Stephen G. Seliger, Ltd., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

This is an action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 207 et seq. Plaintiffs are police officers who are canine handlers for the City of Chicago. Plaintiffs are required to board their dogs at their homes and feed, exercise and groom the dogs during their off-duty hours. Plaintiffs claim that the time spent in these activities is compensable under the FLSA. The City of Chicago ("City"), defendant in this action, has moved for summary judgment arguing the plaintiffs' home dog-care activities are specifically excluded from compensation under the FLSA by the Portal to Portal Amendment.1 For the reasons set forth below, the City's motion is denied.

I. FACTS

The parties do not dispute the relevant facts of this case. Plaintiffs all volunteered for canine patrol duty with the City of Chicago Police Department ("CPD"). Upon completing training with their designated canine, plaintiffs are assigned to various canine patrol units with the CPD or are detailed to several federal agencies.2 Generally, plaintiffs work eight to eight and one-half hour shifts. One to two hours per shift are not spent on canine patrol activities but are allotted for travel time to and from plaintiffs' homes. Stipulation of Uncontested Facts, ¶¶ 17, 24, 34, 39, 46-47. At the end of the work shift, plaintiffs are required to take their assigned police dogs home. City's Rule 12(m) Statement, ¶ 5.3 The City does not provide a central kennel for its police dogs. The City does provide a kennel to be used at the police officers' home, dog food and veterinary care. Stipulation of Uncontested Facts, ¶ 12. The City provides various instruction manuals regarding home dog care.4 The City's instruction manuals dictate how the canine patrol officers should regularly brush and groom the police dog, check the police dogs for parasites, clean the police dog's kennel and care for any injury the police dog may sustain. Plaintiffs contend that the off-duty dog-care activities they are required to perform are activities for which they must be compensated, under the FLSA, either at regular or overtime pay rates. The City disagrees stating the off-duty home dog-care activities are excluded from FLSA coverage by the Portal Amendment.

I. DISCUSSION
A. Standard of Review

A motion for summary judgment must be granted 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). A party opposing a motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.1989). A genuine issue of material fact exists only where there is sufficient evidence favoring the non-moving party to support a jury verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). All reasonable factual inferences must be viewed in favor of the non-moving party. Holland v. Jefferson Nat'l. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989). If the evidence presented by the non-movant is merely colorable or is not sufficiently probative, summary judgment is appropriate. Wolf v. Fitchburg, 870 F.2d 1327, 1330 (7th Cir.1989). With this standard in mind, we consider the City's motion drawing all reasonable factual inferences in the plaintiffs' favor.

B. Compensation under the Fair Labor Standards Act

Section 7(a)(1)5 of the FLSA states, in relevant part:

Except as otherwise provided in this section, no employer shall employ any of his employees ... for a work week 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.

Section 7(k) of the FLSA partially exempts employees engaged in law enforcement6 from the requirements of section 7(a) because police officers generally work in shifts or tours.7 Under section 7(a)(1), an employee must work 160 hours per 28 day period (or 40 hours in a workweek) before the employer must pay overtime. A law enforcement employee must work 171 hours per 28 day period (or 42 and ¾ hours in a workweek) before the public agency must pay overtime. 29 C.F.R. § 553.230; Spires v. Ben Hill County, 745 F.Supp. 690, 697 n. 11 (M.D.Ga.1990). The parties agree that the claim before this court is not that they have not been paid appropriately and completely for time they spend during their tour of duty and for all overtime unrelated to dog care. Plaintiffs' 12(n) Statement, at ¶ 22, 29; City's 12(m) Statement, at ¶ 6.

The Portal Amendment was enacted to close a loop-hole in the FLSA. Following the enacting of the FLSA, a flood of law-suits were filed by employees against their employers seeking compensation for time spent travelling to and from their places of employment (so-called portal-to-portal activities). The Portal Amendment, as adopted by Congress, virtually wiped out all portal-to-portal claims existing at that time. See 29 U.S.C. § 252 (claims prior to May 14, 1947 eliminated unless activity was compensable by contract, custom, or practice).

Section 4 of the Portal Amendment, which controls all claims after May 14, 1947, excluded from FLSA coverage (and thus made noncompensable):

a) walking, riding or traveling to and from the actual place of performance of the principal activity, or activities which such employee is employed to perform, and
b) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time or any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

Thus, activities found to be preliminary or postliminary to an employee's principal activity are explicitly made noncompensable under the FLSA by section 4(b) of the Portal Amendment. The City contends that the plaintiffs' home dog-care activities in this case are preliminary or postliminary to the plaintiffs' principal activities as canine patrol police officers. Thus, the City concludes that the plaintiffs' home dog-care activities are excluded from FLSA coverage. The plaintiffs contend that their off-duty home dog-care activities are integrally related to their principal activities so as to be considered a part of the plaintiffs' principal activities. The plaintiffs' argument tracks the Supreme Court's decision in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), where the Court stated that "activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the FLSA if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1)." Steiner, 350 U.S. at 256, 76 S.Ct. at 335.

Having reviewed the City's motion for summary judgment, the plaintiffs' response and the parties' affidavits and exhibits, the court concludes that the City is not entitled to summary judgment. Whether an activity is preliminary or postliminary to a principal activity is a question of fact. See Blum v. Great Lakes Carbon Corp., 418 F.2d 283, 286 (5th Cir.), cert. denied, 397 U.S. 1040, 90 S.Ct. 1361, 25 L.Ed.2d 651 (1969) (question of fact); Mitchell v. Southeastern Carbon Paper Co., 228 F.2d 934, 938-39 (5th Cir.1955) (same); Carter v. Panama Canal Co., 314 F.Supp. 386, 391 (D.D.C.1970), affirmed, 463 F.2d 1289 (D.C.Cir.1972), cert. denied, 409 U.S. 1012, 93 S.Ct. 441, 34 L.Ed.2d 306 (1972) (same). But see Ballou v. General Electric Co., 433 F.2d 109, 111 (1st Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971) (question of law).8 The court will not enter summary judgment when the principal issue disputed by the parties is a question of fact.9 Even if the parties did not dispute the factual basis of this issue, however, the court concludes that the relevant law does not support the City's position.

In Dunlop v. City Elec., Inc., 527 F.2d 394 (5th Cir.1976), the Fifth Circuit determined that the test to determine whether an activity is integrally related to an employee's principal activity is whether the activity is performed regularly by the employees within the course of the employer's business. Dunlop, 527 F.2d at 401. The Dunlop court stated that it was determinative that the activity is "necessary to the business and is performed by the employees, primarily for the benefit of the employer." Dunlop, 527 F.2d at 400-01; Cf. Blum, 418 F.2d at 287 (employee practice of relieving out-going shift 30 minutes early not compensable under Portal Amendment because no benefit inured to employer from practice); Jackson v. Air Reduction Co., 402 F.2d 521, 523 (6th Cir.1968) (same). The Dunlop court found that the pre-shift activities of electricians, such as the filling out of time and material sheets and fueling, loading and cleaning of trucks were not exempted by the Portal Amendment. The court determined...

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