Bolick v. Brevard County Sheriff's Dept.

Decision Date27 August 1996
Docket NumberNo. 94-1175-Civ-Orl-22.,94-1175-Civ-Orl-22.
Citation937 F. Supp. 1560
PartiesJames G. BOLICK, et al., Plaintiffs, v. BREVARD COUNTY SHERIFF'S DEPARTMENT, Defendant.
CourtU.S. District Court — Middle District of Florida



Jack R. Elliott, Broad & Cassel, Orlando, FL, Mark L. Miller, Miller & Meade, Louisville, KY, for James G. Bolick, Thom Fair.

James G. Brown, Dorothy F. Green, Brown & Green, P.A., Orlando, FL, for Brevard County Sheriff's Department.


GLAZEBROOK, United States Magistrate Judge.

This cause came on for oral argument on August 26, 1996 on the following motions filed by defendant Brevard County Sheriff's Department, and on those motions it is ORDERED:


The deputy sheriffs, agents, bailiffs, and corrections officers of the Brevard County Sheriff's Department "the Department" are the guardians of justice in Brevard County, Florida. They are sworn to stand bravely between the citizens of Brevard County and the injurious forces of crime, violence, narcotics, and fraud. To that end, they have undertaken with pride and dedication to work long and often dangerous shifts, and to protect the citizens using all resources at their disposal — including dogs, motorcycles, patrol cars, and weapons. This is not disputed.

Some sixty-one law enforcement officers have complained, however, that they are not being paid for work during meal breaks; for overtime; for transporting, care, exercise, cleaning, and training police dogs which the deputies own; for cleaning and maintaining police motorcycles and patrol cars at their homes; and for assisting the victims of Hurricane Andrew. Second Amended Complaint, Docket No. 67; Joint Pretrial Statement, Docket No. 280 at 1-7. Several deputies also claim that the Brevard County Sheriff's Department caused them emotional distress by retaliating against them for demanding additional pay. Second Amended Complaint, Docket No. 67 at 10, 11, 13, 15, 16; Joint Pretrial Statement, Docket No. 280 at 3. The Department seeks summary judgment as to several issues arising under the Fair Labor Standards Act, 29 U.S.C. §§ 206-07 "FLSA".


Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing the Court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Jeffery v. Sarasota White Sox, 64 F.3d 590, 593-94 (11th Cir.1995); Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). A moving party discharges its burden on a motion for summary judgment by showing the Court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54. Rule 56 permits the moving party to discharge its burden with or without supporting affidavits and to move for summary judgment on the case as a whole or on any claim. Id. When a moving party has discharged its burden, the non-moving party must then "go beyond the pleadings," and by its own affidavits or by "depositions, answers to interrogatories, and admissions on file," designate specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553.

In determining whether the moving party has met its burden of establishing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, the Court must draw inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor. Spence v. Zimmerman, 873 F.2d 256 (11th Cir.1989); Samples on Behalf of Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988). The Eleventh Circuit has explained the reasonableness standard:

in deciding whether an inference is reasonable, the Court must "cull the universe of possible inferences from the facts established by weighing each against the abstract standard of reasonableness." citation omitted. The opposing party's inferences need not be more probable than those inferences in favor of the movant to create a factual dispute, so long as they reasonably may be drawn from the facts. When more than one inference reasonably can be drawn, it is for the trier of fact to determine the proper one.

Jeffery v. Sarasota White Sox, 64 F.3d 590, 594 (11th Cir.1995), quoting WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988).

Thus, if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant the summary judgment motion. Augusta Iron and Steel Works v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.1988). A dispute about a material fact is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2512. On a summary judgment motion the Court may not weigh the credibility of the parties. See Rollins v. TechSouth, Inc., 833 F.2d 1525, 1531 (11th Cir.1987). If the determination of the case rests on which competing version of the facts or events is true, the case should be presented to the trier of fact. Id.


Thirteen plaintiffs seek compensation for the time spent in transporting dogs which plaintiffs own but lease to the Department's canine unit. The Department moves for a partial summary judgment on the ground that, as a matter of law, law enforcement officers in a canine unit are not entitled to compensation for time spent transporting their dogs between home and work. Plaintiffs oppose summary judgment on the ground that deputies perform compensable principal activities at home, therefore "commuting" to work is in fact travel between two places of principal activity. Docket No. 210 at 3. Plaintiffs' argument lacks merit.

A. The Law

Transport time is not compensable under the FLSA. The Portal-to-Portal Amendment to the FLSA provides, in pertinent part, that:

No employer shall be subject to any liability ... on account of the failure of such employer to pay an employee ... for 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.

29 U.S.C. § 254(a)(1). Additionally, an employee need not be compensated for activities that are "preliminary to or postliminary to" the "principal activity or activities." 29 U.S.C. § 254(a)(2). An exception to this provision exists, however, if the employer is otherwise required to compensate its employees for such work by custom, contract, or practice. 29 U.S.C. § 254(b). Thus, whether an activity is compensable, depends on whether the activity is a principal activity or preliminary or postliminary activity.

As a general rule, the time spent transporting police dogs between home and work is not compensable under the FLSA. Truslow v. Spotsylvania County Sheriff, 783 F.Supp. 274, 277 n. 5 (E.D.Va.1992) (no compensation for time spent by deputy and the dogs commuting to or from work, training sessions, and canine demonstrations), affirmed, 993 F.2d 1539 (4th Cir.1993); Reich v. New York City Transit Authority, 45 F.3d 646, 648, 652 (2d Cir.1995) (even de minimus time spent during the commute while engaged in actual dog-care work is not compensable). If plaintiffs are simply commuting to work as they otherwise would, but with the addition of an extra passenger in the form of a dog, such travel time does not constitute compensable work time under the FLSA. Summary judgment for the employer is appropriate where there is insufficient evidence that transporting the dogs restricts or hampers the plaintiffs' routine. Levering v. District of Columbia, 869 F.Supp. 24, 29 (D.D.C. 1994). Employees should not be compensated for doing what they would have to do anyway — getting themselves to work. Andrews v. DuBois, 888 F.Supp. 213 (D.Mass. 1995).

B. Application to Plaintiffs

Thirteen PlaintiffsFrederick L. Abbey, Walter E. Adams, James R. Bergenholtz, Michael E. Homer, R. Allen Lee, Richard M. Otranto, Debra D. Sherrod, Robert R. Stouch, Wade H. Walker, III, Doug Cornett, Joseph C. Jenkins, John L. Sperling and Gary R. Hunt — owned dogs which they leased to the Department for law enforcement purposes. The dogs lived with plaintiffs, and plaintiffs transported them between their homes and the Department before and after plaintiffs' shifts in the patrol cars. Plaintiffs seek compensation for this transport time.

The record shows that the dogs are merely four-legged passengers in plaintiffs' cars each day. No significant time or effort is expended in caring for them on the ride to and from work. Plaintiffs were under no restrictions or limitations with respect to their ability to conduct personal activities with the dogs in the car during the commute. The Department has no custom, contract, or practice of compensating officers for transport time. Thus, the time spent in...

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