Jerzak v. City of South Bend

• Decision Date: 15 January 1998
• Docket Number: No. 3:96 CV 0925 AS.,3:96 CV 0925 AS.
• Citation: 996 F.Supp. 840
• Parties: Gary JERZAK, Plaintiff, v. CITY OF SOUTH BEND and South Bend Police Department, Defendant.
• Court: U.S. District Court — Northern District of Indiana

996 F.Supp. 840

Gary JERZAK, Plaintiff, v. CITY OF SOUTH BEND and South Bend Police Department, Defendant.

No. 3:96 CV 0925 AS.

United States District Court, N.D. Indiana, South Bend Division.

January 15, 1998.

COPYRIGHT MATERIAL OMITTED

Debra Voltz-Miller, South Bend, IN, for Plaintiff.

Thomas L Bodnar, Richard A Nussbaum, II, South Bend, IN, for Defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

This cause is before the Court on Plaintiff's Motion for Summary Judgment and Defendant's Second Motion for Partial Summary Judgment. The Court heard oral argument on December 2, 1997. Having considered all relevant information the Court rules as follows.

JURISDICTION

Jurisdiction is proper pursuant to: 28 U.S.C. § 1331, Federal question jurisdiction; the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq.; and, the Portal to Portal Act of 1947, 29 U.S.C. § 251 et seq.

BACKGROUND

Plaintiff, Gary Jerzak (Jerzak) has been employed by defendants, the South Bend Police Department and City of South Bend (collectively, Department) from July 12, 1989 to present. Between September of 1992 and January 24, 1996, Jerzak was assigned to the canine (K-9) unit of the Department. Max was the canine assigned to Jerzak. The time spent on the care of Max during Jerzak's assignment in the K-9 unit is the basis of this action.

Jerzak filed his complaint on December 31, 1996 alleging that the Department failed to properly compensate him for numerous overtime hours he was required to spend caring for Max. He alleges he spent 603 overtime hours in 1994, 594.50 overtime hours in 1995, and 204 overtime hours in 1996. Jerzak claims he is entitled to one and one half times his regular rate of pay for this time. According to Jerzak, these overtime hours were incurred transporting Max to and from work, transporting Max to and from the vet, driving to purchase food and supplies for Max, grooming, feeding and exercising Max, cleaning his squad car, and cleaning his house. Additionally, Jerzak claims that the Department willfully failed to pay him the overtime due. Jerzak requests summary judgment as to all issues claiming he is entitled to judgment as a matter of law.

In response, the Department argues that while Jerzak was assigned to K-9 patrol he was only required to work a seven hour shift. The Department paid Jerzak for eight hours, however, with the understanding that the additional hour per day was allotted for the care of Max. Therefore, the Department asserts that Jerzak had sufficient compensated time in which to care for Max. Additionally, Department points out that Jerzak never complained that the time required for Max's care exceeded the allowable hour, nor did he submit the required overtime forms requesting payment for any additional time spent during the years he was assigned to K-9.¹ The Department further argues that because Jerzak worked on a twenty-seven day cycle (nine day work weeks with six days on and three off) pursuant to 29 C.F.R. 553.230, no overtime was required unless an he worked more than 165 hours during the twenty-seven day cycle. The Department asserts that Juezak's hours did not exceed this amount and therefore he is not entitled to overtime. Alternatively, even if Jerzak did spend more than the compensated hour in caring for Max the Department argues that typically, the amount of time was de minimus and therefore noncompensable. The Department concedes that issues of fact remain regarding the period between February 13, 1996 and May 3, 1996. Finally, the Department claims that its conduct was not willful therefore the two year statute of limitations applies which precludes any claims asserted by Jerzak that occurred prior to December 31, 1994. The Department seeks partial summary judgment as to the issue of the applicable statute of limitations and as to all claims except those arising between March 13 and June 1, 1994, June 29 through September 17, 1994, December 8, 1994 to January 3, 1995, May 19 through June 14, 1995, September 4 to September 30, 1995 and February 13, 1996 and May 3, 1996. (Def. Brief at 7).

SUMMARY JUDGMENT STANDARD

Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there exists 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; Russo v. Health, Welfare & Pension Fund, Local 705, 984 F.2d 762 (7th Cir.1993). A thorough discussion of Rule 56 can be found in a trilogy of cases decided in 1986 by the Supreme Court of the United States.² See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56.

The initial burden is on the moving party to demonstrate, "with or without supporting affidavits," the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56). A question of material fact is a question which will be outcome determinative of an issue in the case. The Supreme Court has instructed that the facts material in a specific case shall be determined by the substantive law controlling the given case or issue. Anderson, 477 U.S. at 248. Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate `specific facts shows that there is a genuine [material] issue for trial.'" Id. The nonmoving party cannot rest on its pleadings, Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir. 1994); Hughes v. Joliet Correctional Ctr., 931 F.2d 425, 428 (7th Cir.1991), nor may that party rely upon conclusory allegations in affidavits. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir.1992).

During its summary judgment analysis, the court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Smith v. Fruin, 28 F.3d 646, 650 (7th Cir.1994), cert. denied, 513 U.S. 1083, 115 S.Ct. 735, 130 L.Ed.2d 638 (1995); Brennan v. Daley, 929 F.2d 346, 348 (7th Cir.1991), reh'g denied, 1993 WL 518446. Furthermore, it is required to analyze summary judgment motions under the standard of proof relevant to the case or issue. Anderson, 477 U.S. at 252-55.

Where, as here, cross-motions for summary judgment have been submitted by the parties, the court is not required to grant judgment as a matter of law for one side or the other. Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993); Judsen Rubber Works, Inc. v. Manufacturing, Prod. & Serv. Workers Union Local No. 24, 889 F.Supp. 1057, 1060 (N.D.Ill.1995). Rather, the court must evaluate each party's motion on its own merits, resolving factual uncertainties and drawing all reasonable inferences against the party whose motion is under consideration. Heublein, 996 F.2d at 1461; Judsen, 889 F.Supp. at 1060; Buttitta v. City of Chicago, 803 F.Supp. 213, 217 (N.D.Ill.1992), aff'd, 9 F.3d 1198 (7th Cir. 1993).

DISCUSSION

Jerzak brings his claims under the Fair Labor Standards Act and the Portal to Portal Act alleging that he is entitled to $26,825.82 in compensation for overtime hours worked between January 1, 1994 and January 24, 1996. He additionally claims he is entitled to $26,825.82 in liquidated damages.

The Department counters that Jerzak is not entitled to additional compensation for his care of Max. He was allotted one hour of paid time per day for this purpose. Furthermore, the Department did not know Jerzak used additional time to care for Max as Jerzak never notified the Department that care of Max required more than the allotted hour and never submitted any overtime forms properly requesting overtime pay for that time. Alternatively, Department argues that if Jerzak did actually work additional time, the de minimus doctrine applies and renders any theoretically compensable activities that Jerzak performed non-compensable.

I. FAIR LABOR STANDARDS ACT

The Fair Labor Standards Act (FLSA), when reduced to its essential form, merely requires employers to compensate employees for all hours worked. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C. § 201 et seq.; Graham v. City of Chicago, 828 F.Supp. 576 (N.D.Ill.1993). The purpose of the FLSA was to set limits on minimum wages and the number of hours an employee is permitted to work before the employer is required to pay overtime. 29 U.S.C. §§ 206-207; Bolick v. Brevard County Sheriff's Dep't, 937 F.Supp. 1560 (M.D.Fla.1996). Initially, the FLSA was inapplicable to public employees. In 1974 Congress extended the FLSA to the public sector. This extension was challenged on Tenth Amendment grounds but was upheld by the Supreme Court in Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). It is a fact that an employer who knows or should have known that an employee is or was working overtime is obligated to pay overtime. Moreover, an employer who is armed with this knowledge cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation. Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981); Mumbower v. Callicott, 526 F.2d 1183 (8th Cir.1975).

Under the FLSA, an employee who brings suit for unpaid overtime compensation bears the burden of proving, with definite and certain evidence, that he performed work for which he was not properly compensated. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,...