Andrews v. DuBois

• Decision Date: 03 May 1995
• Docket Number: Civ. A. No. 93-11338-WGY.
• Citation: 888 F. Supp. 213
• Parties: Derrick ANDREWS, Douglas P. Armey, Douglas L. Bower, Jr., Darlene A. Bowman, Stephen L. Chita, Thomas James Cooper, Alan F. Cunha, Jr., Kenneth J. Dawson, George S. Durrance, John W. Durrance, Jon Foresman, Susan E. Garcia, Ronald Gendron, Joseph P. Gonsalves, Franklin D.R. Goodman, Jr., Robert Gould, Paula Gouras, Raymond Harvey, Peter R. Ingersoll, Edward M. Johansen, Jr., Michael Kimber, Christopher F. Lakey, Virginia M. Lavoie, Terry Rooney, Anita N. Smith, Charles P. Smith, Christopher A. Souza, Leo C. Stevens, Bruce A. Szkil, Robert F. Thomas, John L. Troio, and Vincent P. Valley, Plaintiffs, v. Larry DUBOIS, as he is the Commissioner of the Department of Correction, Department of Correction, Mark Robinson, as he is Secretary of the Office of Administration and Finance, and The Office of Administration and Finance, Defendants.
• Court: U.S. District Court — District of Massachusetts

888 F. Supp. 213

Derrick ANDREWS, Douglas P. Armey, Douglas L. Bower, Jr., Darlene A. Bowman, Stephen L. Chita, Thomas James Cooper, Alan F. Cunha, Jr., Kenneth J. Dawson, George S. Durrance, John W. Durrance, Jon Foresman, Susan E. Garcia, Ronald Gendron, Joseph P. Gonsalves, Franklin D.R. Goodman, Jr., Robert Gould, Paula Gouras, Raymond Harvey, Peter R. Ingersoll, Edward M. Johansen, Jr., Michael Kimber, Christopher F. Lakey, Virginia M. Lavoie, Terry Rooney, Anita N. Smith, Charles P. Smith, Christopher A. Souza, Leo C. Stevens, Bruce A. Szkil, Robert F. Thomas, John L. Troio, and Vincent P. Valley, Plaintiffs, v. Larry DUBOIS, as he is the Commissioner of the Department of Correction, Department of Correction, Mark Robinson, as he is Secretary of the Office of Administration and Finance, and The Office of Administration and Finance, Defendants.

Civ. A. No. 93-11338-WGY.

United States District Court, D. Massachusetts.

May 3, 1995.

Matthew E. Dwyer, Lawrence P. Higgins, Grady and Dwyer, Boston, MA, for plaintiffs.

John W. Durrance, Leominster, MA, pro se.

Judy A. Levenson, Attorney General's Office, Boston, MA, for defendants.

MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiffs here move for partial summary judgment as to liability. Their motion presents two issues of first impression in the First Circuit, viz. (a) whether time spent by correctional officers caring for police dogs at home is compensable work time under the Fair Labor Standards Act, and (b) whether time spent by correctional officers transporting the dogs to and from the prisons they patrol is compensable under the Fair Labor Standards Act. If either issue is decided in the affirmative, the Court will then decide whether as matter of law correctional officers are entitled to a two- or three-year statute of limitations period and whether they are entitled to liquidated damages.

I. BACKGROUND

The plaintiffs, correctional officers at the Massachusetts Department of Correction (the "officers" or the "employees"), bring this suit against their employer (the "Department of Correction" or the "Department")¹ under the Fair Labor Standards Act, 29 U.S.C.A. § 216(b) (West Supp.1993), as amended by the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq. (West 1985) (collectively, the "Act"), to recover overtime compensation due for hours worked in excess of forty hours per week.

At various times from June 17, 1990 to March 9, 1994, the correctional officers were employed by the Department's canine unit.² Plaintiffs' Memorandum of Law in Opposition to Defendants' Cross Motion for Partial Summary Judgment ("Opposition to Cross Motion") at 2.³ As part of their responsibilities, the employees kept one or more dogs — which are the property of the Department of Correction—at their homes. The dogs were domiciled with their respective officers seven days a week including holidays and vacations. See Plaintiffs' Joint Affidavit in Support of Their Motion for Summary Judgment ("Joint Affidavit") ¶¶ 8, 9, 11. Officers enrolled in the home domicile program were responsible, on a daily basis, for the proper care, grooming, cleaning, feeding, exercising, and training of their dogs.⁴ The officers were required to transport the dogs to and from the correctional facilities each day that they were scheduled to work. See Joint Affidavit ¶ 19. Some of the officers were given Department vehicles for the purpose of transporting the dogs, for which the Department paid the cost of gasoline and maintenance. Others used their own vehicles to transport the dogs. The officers allege that it was customary for authorized officials in the Department to take the dogs, then in their home custody, to unscheduled, emergency situations involving substantial demands on the affected officers' time. Employees were also responsible for taking the dogs in their home custody for veterinary care and to attend regularly scheduled canine demonstrations.

The officers allege that on average they spent three to four hours per day — above and beyond their regular eight hour shifts — both taking care of the dogs and transporting the dogs to and from the correctional facilities. They now seek overtime compensation for this "work" performed outside their regularly scheduled shifts.

The officers have moved for partial summary judgment as to liability, statute of limitations, and damages. The Department cross-moved for partial summary judgment on the officers' claim for overtime pay for the time spent commuting to and from work with the dogs, arguing that under the Act commuting time is not compensable as matter of law.

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). "The moving party is entitled to judgment as a matter of law if the nonmoving party does not adduce enough evidence to permit a reasonable trier of fact to find for the nonmoving party on any element essential to its claim." Milton v. Van Dorn Co., 961 F.2d 965, 969 (1st Cir.1992). In making this determination, the court must "scrutinize the summary judgment record in the light most congenial to the nonmovant and indulge all reasonable inferences in that party's favor." Vasapolli v. Rostoff, 39 F.3d 27, 32 (1st Cir. 1994).

B. Time Spent Caring for the Dogs

The Fair Labor Standards Act requires covered employers to compensate employees at, at least, a minimum wage for all hours worked. 29 U.S.C.A. § 206(a) (West 1978 & Supp.1993); see Graham v. City of Chicago, 828 F.Supp. 576, 578-79 (N.D.Ill. 1993). The Act requires that when an employee works more than forty hours per week, the employee must be compensated at a rate of one-and-one-half times the regular rate of payment. 29 U.S.C.A. § 207(a) (West Supp.1993). The Act states, however, that

no employer shall be subject to any liability ... on account of the failure of such employer to pay an employee ... for activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on 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.

29 U.S.C.A. § 254(a)(2) (West 1985) (emphasis added). Thus, the first question before the Court is whether time spent caring for police dogs at home is a principal activity of the officers' jobs or merely a preliminary or postliminary activity.⁵ The term "principal activity" has been interpreted by the Supreme Court to include any activity that is "an integral and indispensable part of the principal activities for which covered workmen are employed ..." Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 335, 100 L.Ed. 267 (1956) (employees working in battery manufacturing plant in which toxic materials were used and who were compelled by considerations of health and hygiene to change clothes before and after work and to shower after work were engaging in principal activities that must be compensated under the Act). In Steiner, the Court stated that the activities which are integral and indispensable are those that (1) "are made necessary by the nature of the work performed;" (2) "fulfill mutual obligations between employers and their employees;" (3) "directly benefit the employers in the operation of their business;" and (4) "are so closely related to other duties performed by the employees as to be an integral part thereof." Id. at 252-53, 76 S.Ct. at 333-34. In other words, the test for principal activities and integral and indispensable parts of such activities is whether they are "performed as part of the regular work of the employees in the ordinary course of business." Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir. 1976).

Here, the principal activities for which the officers are employed are canine-assisted vehicle and foot patrol of state correctional institutions and canine-assisted response to emergency situations. See Joint Affidavit ¶ 4. In this regard, the canines are security equipment without which the officers' principal activities could not be performed. Feeding, grooming, and walking the dogs are therefore indispensable (albeit incidental) parts of maintaining the dogs as law enforcement tools; they are activities that are closely related to the work duties of a canine officer. See Steiner, 350 U.S. at 252-53, 76 S.Ct. at 333-34. Moreover, time spent feeding, grooming, and walking the dogs is time the officers do not have to themselves. Thus, this Court rules that these activities are performed as part of the regular work of the canine officers in the ordinary course of business, and are therefore not preliminary or postliminary activities. See Dunlop, 527 F.2d at 401. Time spent on these activities is time spent working.

Significantly, the majority of courts that have applied the Steiner test to the question of canine home care have likewise determined that time spent caring for police dogs is an integral and indispensable part of the officers' regular work. See Reich v. New York City Transit Auth., 45 F.3d 646, 650-51 (2d Cir.1995) (walking, feeding, grooming, training, and cleaning up after police dogs are integral and indispensable parts of handler's principal activities and are compensable under the FLSA); Udvari v. United States, 28 Fed.Cl. 137, 139-40 (1993) (time spent caring for police canines may be compensable work but claim barred by statute of limitations); Truslow v. Spotsylvania County Sheriff, 783 F.Supp. 274, 279 (E.D.Va.1992) (granting plaintiff's motion for summary judgment on issue of liability because attendance at canine training sessions, unscheduled emergency canine calls, and required attendance at canine demonstrations are "plainly" integral and indispensable...