Albanese v. Bergen County

• Decision Date: 31 December 1997
• Docket Number: No. Civ.A. 96-2168.,Civ.A. 96-2168.
• Citation: 991 F.Supp. 410
• Parties: Robert J. ALBANESE, William A. Byrnes, John Davis, Guy Garner, Richard Turre, and Raymond A. Noll, Plaintiffs, v. BERGEN COUNTY, NEW JERSEY, and Bergen County Sheriff's Department, Defendants.
• Court: U.S. District Court — District of New Jersey

991 F.Supp. 410

Robert J. ALBANESE, William A. Byrnes, John Davis, Guy Garner, Richard Turre, and Raymond A. Noll, Plaintiffs, v. BERGEN COUNTY, NEW JERSEY, and Bergen County Sheriff's Department, Defendants.

No. Civ.A. 96-2168.

United States District Court, D. New Jersey.

December 31, 1997.

As Amended January 14, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William H. Roth, Lisa A. Frey, Kelly & Roth, Metuchen, NJ, Alan S. Kaufman, Chamberlain & Kaufman, Albany, NY, for Plaintiffs.

Edwin C. Eastwood, North Bergen, NJ, for Defendants.

OPINION

WOLIN, District Judge.

Robert Albanese, William Byrnes, John Davis, Guy Garner, Raymond Noll, and Richard Turre ("plaintiffs") are or were dog handlers for the Bergen County Sheriff's Department. They seek to recover overtime compensation from Bergen County and the Bergen County Sheriff's Department ("defendants")¹ for the time they had to spend caring for and maintaining their dogs, uniforms, and guns. One plaintiff also seeks overtime compensation for the time he spent as a Drug Abuse Resistance Education officer. Plaintiffs move the Court to enter summary judgment on issues related to liability pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants cross-move to dismiss plaintiff Byrnes's claim that he should receive overtime compensation for the time he spent making presentations to children on preventing the use of drugs. They also move to exclude plaintiff's expert report. The Court has decided this motion without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure.

BACKGROUND

Plaintiffs are or were employed as Sheriff's Officers or Corrections Officers for the Bergen County Sheriff's Department in Bergen County, New Jersey. (Pls.Decls. ¶ 2).² Plaintiffs' regularly scheduled shifts required them to work thirty-two or forty hours for a seven-day period. (Pls.Decls. ¶ 3). When plaintiffs worked more than eight hours in a day or forty hours in a week, they became eligible for and received overtime compensation at a rate of time and one-half. (Pls.Decls. ¶ 3). Plaintiffs received that rate for the overtime they performed "on the clock." (Pls.Decls. ¶ 3).

At some point in their respective employments for defendants, plaintiffs became police dog ("K-9") handlers: Albanese (1988 until March 1996); Byrnes (October 1992 until January 1995); Davis (September 1989 until September 1995); Garner (December 1990 until the present); Noll (September 1988 until February 1997); Turee (1989 until May 1997). (Pls.Decls. ¶ 4). After being selected as K-9 handlers, defendants assigned plaintiffs dogs, and plaintiffs and their dogs attended rudimentary K-9 training. (Pls.Decls. ¶ 8). At the training, instructors taught plaintiffs "the basics of police K-9 patrol work including care and maintenance of the dog, as well as obedience training, agility training, tracking, criminal apprehension, article searches, building searches, and narcotics detection." (Pls Decl. ¶ 8).³ The instructors told plaintiffs that basic training was only initial training, and advised them that they would have to reinforce the training on a regular basis to make the dogs proficient. (Pls.Decls. ¶ 8).

Moreover, the instructors explained that after plaintiffs completed training, they should house their dogs at home in order to build the bond between them and the dogs and because that practice would make them and the dogs better teams. (Gailes dep. 24:8-16). Although K-9 handlers had the choice of taking their dogs home or leaving them at the kennel, ninety percent of the handlers elected to have their dogs live with them at home. (Duffy dep. 111:18-21 115:14-25). In general, plaintiffs housed their dogs with them at their homes. (Pls.Decls. ¶ 10). After Albanese's first dog died, he kept his second dog in the kennel. (Albanese Decl. ¶ 10). Garner left one of his two dogs at the kennel and brought the other one home with him. (Garner Decl. ¶ 10).

The Bergen County Sheriff's Department expected that plaintiffs would follow and apply the training they received as well as maintain the good health of their dogs. (Benedetto dep. 124:11-24; Alpert dep. 51:23-25). Plaintiffs never received instructions from the Sheriff's Department about how much time to spend caring for their dogs. (Gailes 55:13-17).

During their positions as K-9 handlers, defendants paid for the food, equipment, and veterinary expenses associated with the use of the police dogs. In addition to housing their dogs, plaintiffs performed the work necessary for caring for and maintaining their dogs. (Pls.Decls. ¶ 5). Such work included feeding, exercising, training, bathing, grooming, and cleaning the areas where the police dogs lived and the vehicles used to transport the dogs. (Pls. Decls. ¶¶ 5, 11; Noll Decl. ¶ 12).

Plaintiffs also arrived early for work so that they could drop the dogs off at the kennel before reporting for their assignments. On the occasions when the dogs remained in the kennel for the day, plaintiffs often had to spend time beyond their shifts tending to their dogs and cleaning the kennel. (Albanese Decl. ¶¶ 32-35; Byrnes Decl. ¶¶ 31-34; Davis Decl. ¶¶ 27-28; Garner Decl. ¶¶ 29-31; Noll Decl. ¶ 30; Turre Decl. ¶¶ 33-34). There were, however, times when plaintiff's superiors permitted them to perform some of these tasks during their regular hours. (Byrnes Decl. ¶¶ 33-34; Garnes Decl. ¶ 30; Noll Decl. ¶ 30; Turre Decl. ¶ 33).

Many of the hours spent on that work occurred during "off the clock" time, i.e., time that did not count as hours worked. (Pls.Decls. ¶ 5). Plaintiffs claim that they spent "many hours over and above" their scheduled hours caring for, maintaining, and training their dogs. (Pls.Decls. ¶ 7). They assert that they performed much of that work after they had worked forty hours, but that they did not receive overtime compensation at a rate of time and one-half. (Pls.Decls. ¶ 7). Additionally, Noll, acting under the direction of Sergeant Bradley, located, obtained, and trained his second dog on his off-duty time. (Noll Decl. ¶¶ 9, 33).

The Police Benevolence Association and defendants negotiated and placed into the collective bargaining agreement a yearly stipend to compensate plaintiffs for the additional work they performed as K-9 handlers. (Alpert dep. 58:22 to 59:2). The stipend was $1050 in 1991, $1100 in 1992, and $1150 from 1993 through 1996. (Pls.Decls. ¶ 6). Those dollar amounts were not derived from any actual time plaintiffs spent. (Terhune dep. 205:22 to 206:3; Alpert dep. 58:17-21). Bergen County added the stipend to plaintiffs' base salaries so that it would be included in the calculation of their hourly rates. (Pls.Decls. ¶ 6).

Plaintiffs' supervisors, Sergeant Gailes, Captain Benedetto, Sheriff Terhune, Undersheriff Bolton, Undersheriff Alpert, and Captain Duffy, were aware that plaintiffs were spending time above and beyond their scheduled forty hours in order to attend to their dogs. (Gailes dep. 47-50; Pl.Ex. B; Benedetto dep. 128:4-7; Terhune dep. 204:21-24; Bolton dep. 257:5-11; Alpert dep. 52:2-6; Duffy dep. 116:2-5). In fact, Captain Benedetto admitted at his deposition that he had conversations with numerous K-9 officers about being compensated on an hourly basis for their overtime work instead of receiving the stipend. (Benedetto dep. 152:14 to 154:11). In 1992 to early 1993, plaintiffs recorded the overtime they spent in the kennels in a logbook. (Gailes dep. 57:25 to 58:18; Duffy dep. 102:13-15; 106:4-10). Captain Duffy ordered Sergeant Gailes to instruct plaintiffs to stop making entries in the logbook because plaintiffs were filling out daily activity sheets, which made the logbook redundant. (Duffy dep. 102:25 to 103:16).

In early 1993, Sergeant Gailes, who was the supervisor for the Correction Division K-9 handlers, approved overtime compensation for Albanese, Byrnes, and Turre for the time they spent in the kennels beyond their scheduled hours. (Albanese Decl. ¶ 45; Byrnes Decl. ¶ 43; Turre Decl. ¶ 38). Captain Benedetto ordered Gailes to stop paying overtime compensation when he learned that Gailes had instituted the policy without proper authority. (Benedetto dep. 165:16-25). During their conversation, Gailes told Benedetto that the "Garcia" decision⁴ permitted public employees to be compensated for any work they performed for their jobs. (Gailes dep. 34:9 to 35:7).

In May 1993, Sheriff Terhune met with many of the K-9 handlers, including every plaintiff except for Davis, to discuss the goals of the unit and the amount of overtime the handlers spent caring for and maintaining their dogs. The handlers requested that they be paid overtime for their off the clock work, which amounted to two hours a day. After Terhune denied their request, the handlers informed him of the "Garcia" decision as well as the lawsuits against the Port Authority and Atlantic City in which K-9 handlers received overtime compensation. Terhune stated that those cases did not apply to their department, and asked that a memorandum be submitted detailing the off the clock work performed by the handlers. On May 25, 1993, Sergeant Gailes submitted a report to Terhune explaining that feeding, grooming, cleaning, exercising, and training the dog took two hours a day. (Albanese Decl. ¶ 46; Byrnes Decl. ¶ 44; Garner Decl. ¶ 40; Noll Decl. ¶ 36; Turre Decl. ¶ 39; Pl. Ex. B; Gailes dep. 38:7 to 41:9; Terhune dep. 196:1 to 198:18). Gailes sent copies of the report to Benedetto, Duffy, and Lieutenants Hessian and Douglas, but he never received a response. (Gailes dep. 41:10-19; 63:23 to 64:6).

Although he had no idea how long it took plaintiffs to care for and maintain their dogs and had never been a K-9 handler, Sheriff Terhune testified at his deposition that walking, feeding, grooming, and cleaning up after the dog should take five to ten minutes. (Terhune dep. 222:2-18; 218:10-11). He also stated that plaintiffs' and Sergeant Gailes's claim that those...