Graham v. City of Chicago, 92 C 3364.

• Decision Date: 21 July 1993
• Docket Number: No. 92 C 3364.,92 C 3364.
• Citation: 828 F. Supp. 576
• Parties: George GRAHAM, Thomas Kinsella, Jerome Pluta, Warren Rylko, Robert Herr, Martin Gainer and Joseph Paluch, Plaintiffs, v. CITY OF CHICAGO, Defendant.
• Court: U.S. District Court — Northern District of Illinois

828 F. Supp. 576

George GRAHAM, Thomas Kinsella, Jerome Pluta, Warren Rylko, Robert Herr, Martin Gainer and Joseph Paluch, Plaintiffs, v. CITY OF CHICAGO, Defendant.

No. 92 C 3364.

United States District Court, N.D. Illinois, E.D.

July 21, 1993.

COPYRIGHT MATERIAL OMITTED

Patricia Anne Collins, Stephen Jay Feinberg, Marvin Gittler, Asher, Gittler, Greenfield, Cohen & D'Alba, Chicago, IL, for plaintiffs.

Kathryn Zeledon Nelson, Jennifer Anne Naber, City of Chicago, Law Dept. Corp. Counsel, Frank B. Garrett, III, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

This matter is before us upon the Defendant's Motion for Summary Judgment and the Plaintiffs' Partial Motion for Summary Judgment on the Question of Liability. For the reasons set forth below, the City's motion is granted in part and denied in part. The Plaintiffs' motion is granted.

Background

This is an action under the Fair Labor Standards Act "FLSA". See 29 U.S.C. §§ 201 et seq. The Plaintiffs are Chicago Police Officers assigned to canine duties and attached to either the Narcotics Division of the force or to the federal Drug Enforcement Administration. Plaintiffs are required to board their dogs at their homes and feed, exercise and groom the dogs during their off-duty hours. The City does provide a kennel to be used at the police officers' home, dog food and veterinary care. Thus, the officers are required to transport the dogs to and from work in unmarked police cars, and are required to drive directly to and from work.

Plaintiffs claim that the time spent transporting the dogs to and from work is compensable under the FLSA as amended by the Portal to Portal Act. See 29 U.S.C. § 254. Defendant City argues that the mere presence of the dogs in the cars does not transform otherwise noncompensable travel time to compensable work time. In the alternative, the City argues that a portion of the Plaintiffs' claims are barred by the applicable statute of limitations.

Findings of Fact and Conclusions of Law

For defendants to prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, must 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). At this stage, we do not weigh evidence or determine the truth of asserted matters. We simply determine whether there is a genuine issue for trial, i.e., "whether a proper jury question was presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If the nonmoving party bears "the burden of proof at trial on a dispositive issue, however ... the nonmoving party is required to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `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), quoting Fed.R.Civ.P. 56(e). Summary judgment may be issued on the question of liability alone. Fed.R.Civ.P. 56(c).

I. Whether the Time Spent Traveling is Compensable Work

The issue presented to us today is not one of great legal complexity. The Fair Labor Standards Act, when reduced to its essential form, merely requires employers to compensate employees for all hours worked. See 29 U.S.C. § 201 et seq. The City argues that the time spent by the officers traveling to and from work does not constitute hours worked under the FLSA.¹

We note that claims regarding compensation of dog handlers in law enforcement are enjoying a surge in popularity lately. Several courts have indicated that the time spent caring for police canines at home may be compensable work under the FLSA. See, e.g., Udvari v. United States, 28 Fed.Cl. 137 (Ct.Fed.Cl.1993); Truslow v. Spotsylvania County Sheriff, 783 F.Supp. 274, 279 (E.D.Va.1992), aff'd, 993 F.2d 1539 (4th Cir. 1993) (unpublished disposition, text in Westlaw); Amshey v. United States, Claims Ct. No. 583-86C (Cl.Ct. filed Aug. 14, 1989).

A judge in this district recently addressed the issue in Nichols v. City of Chicago, 789 F.Supp. 1438 (N.D.Ill.1992) (Alesia, J.) After Judge Alesia refused to grant summary judgment to the City on issue of whether time spent caring for dogs at home was compensable, the parties reached a settlement compensating the officers for the time spent caring for the dogs at home. The present case is essentially constructed upon the same arguments that were presented in Nichols, and involves some of the same plaintiffs. Here, the Plaintiffs seek to extend the definition of work time beyond home care of the animals to cover transporting them as well.

Though several courts have addressed the issue of home care for police canines, the issue of whether transporting the animals to and from work is compensable has not been squarely addressed. Though one court has decided that such activities are not compensable as a matter of law, the issue was addressed only briefly in a footnote. See Truslow, 783 F.Supp. at 277 n. 5 (deciding, without analysis, that time spent traveling to and from work with dog was not compensable).

Certainly, time spent in ordinary home to work travel is not compensable work time. See, e.g., 29 U.S.C. § 254(a)(1); 29 C.F.R. § 785.35. However, the Department of Labor has taken the position that the time spent by canine unit officers commuting with their dogs is more than ordinary commuting and compensable under the FLSA. See Martin v. New York City Transit Auth., 148 F.R.D. 56 (E.D.N.Y.1993) (Orenstein, M.J.). Unfortunately, the litigation has not progressed to the point where it would be of any guidance to us here beyond revealing the view of the Department of Labor. See id. (discussing discovery disputes in a colorful opinion laced with dog references such as "on a short lease," "dogma" and "barking up the wrong tree.") We shall take judicial notice of the DOL's position in the New York litigation. See, e.g. Kramer v. Time-Warner, 937 F.2d 767, 774 (2d Cir.1991) ("Courts routinely take judicial notice of documents filed in other courts...."); PMC, Inc. v. Sherwin-Williams, No. 93 C 1379 at 5-6, 1993 WL 259442 (N.D.Ill. filed July 6, 1993) (Plunkett, J.) (same).

Despite the lack of authority on this question, however, we read the case law and regulations in this area as leading to only one conclusion. Time spent transporting the canines is compensable under the FLSA under the facts presented to us today.

A. The Portal to Portal Act

The Portal to Portal Act was enacted in 1947 to close a loop-hole in the FLSA. Through that loophole swam a deluge of law-suits filed by employees seeking compensation for time spent commuting or performing other "portal-to-portal" activities. The Portal to Portal Act neatly eliminated this problem, or so it seemed at that time, by voiding all such claims that had arisen to that point except in narrow circumstances and providing detailed guidelines for future cases. 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 Act, which controls all claims after May 14, 1947, excluded from FLSA coverage (and thus made noncompensable): (1) 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 (2) 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. See 29 U.S.C. § 254(a).² Accordingly, while the employer must compensate the employee for work performed as a part of his principal activity, activities found to be "preliminary or postliminary" to an employee's principal activity are explicitly made noncompensable under the FLSA by section 4 of the Portal to Portal Act. 29 U.S.C. § 254(a)(1). Naturally, the effect of this language is a new flood of litigation over what is preliminary or postliminary as opposed to what is, in fact, an integral part of the principal activity itself.

In the present case, Defendant contends that the Plaintiffs' travel time is not converted to compensable work time by the mere presence of the dogs. Rather, the City argues that it is preliminary or postliminary to the plaintiffs' principal activities as canine police officers and hence excluded from FLSA coverage. The Plaintiffs contend that their commuting time with the dogs is so integrally related to their principal activities as to be considered a part of their principal activities.

1. The Case Law and DOL Regulations

There is not a great deal of explicit statutory language or legislative history to enlighten our inquiry. However, the case law and regulations put flesh upon the skeletal legislative history of the Portal to Portal Act, and together they form the basis for our decision in this matter.

a. The Cases

The Plaintiffs' argument here, as in Nichols, tracks the Supreme Court's decision in the seminal case of Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). In Steiner, 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.

Section 4(a)(1) explicitly excludes ordinary commuting time from FLSA coverage. Thus, the question...