Levering v. District of Columbia, Civ. A. No. 94-1272 (JHG).

• Decision Date: 29 November 1994
• Docket Number: Civ. A. No. 94-1272 (JHG).
• Citation: 869 F. Supp. 24
• Parties: Donald E. LEVERING, Jr., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

869 F. Supp. 24

Donald E. LEVERING, Jr., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.

Civ. A. No. 94-1272 (JHG).

United States District Court, District of Columbia.

November 29, 1994.

Kenneth Edward Labowitz, Young, Goldman & Van Beek, Alexandria, VA, for plaintiffs Donald E. Levering, Jr., Roberto Acevedo, Darryl Barney, Donald L. Beach, Eric A. Beale, William C. Bell, Michael C. Bernier, David G. Blue, Elysia E.R. Branson, Roy E. Brown, William H. Buss, Marcos Cabrales, Wai Ming Chung, Edward E. Curley, Daniel A. Dugan, Robert G. Fulton, Jose E. Garibay, Valori E. Gray, William C. Gregory, Barbara A. Hale, Sheryl R. Harley, James E. Hassen, Edward L. Hensel, III, Harry Thomas Hill, David Hobbs, Paul E. Hustler, Frederick H. Lewis, Wyllie Mitchell, Jr., Robert J. Morris, II, Samuel H. Newman, Jr., Joseph P. Roche, Russell L. Rummel, James H. Shields, Grant R. Sullivan, Timothy Veney, David P. Willis, Sr.

Michael Francis Wasserman, Office of Corp. Counsel, D.C., Washington, DC, for defendant District of Columbia.

MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Plaintiffs brought this action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., seeking overtime compensation for time spent caring for and transporting canine detachment dogs in plaintiffs' capacity as members of the canine detachment of the Metropolitan Police Department of the District of Columbia ("MPDC"). Presently pending are cross-motions for summary judgment. For the reasons set forth below, plaintiffs' motion is granted in part and denied in part, and defendant's motion is granted.

I. Background

The 36 plaintiffs in this case were, at the time of the filing of the complaint, officers of the MPDC assigned to the canine detachment. In order to become part of the canine detachment, officers must have an approved facility to keep a dog and have use of a vehicle suitable for transporting a dog to and from the officer's work assignment. The officers are responsible for exercising, feeding, and otherwise caring for the dogs on a daily basis, regardless of whether the officer is assigned for duty on any given day. Each officer is also responsible for transporting the dogs in the officer's vehicle between the officer's residence and work assignment.

Pursuant to a 1989 directive from then-Chief of Police Isaac Fulwood, Jr., officers in the MPDC canine detachment receive 15 minutes per day in overtime compensation for caring for their dogs.¹ However, plaintiffs allege that they spend considerably longer than 15 minutes caring for their dogs each day. In addition, the plaintiffs seek compensation for time spent transporting the dogs between work and home. The officers are not currently compensated for this activity.

II. Analysis

Summary judgment is appropriate when there is "no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial — whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. at 2513. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by its 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).

Plaintiffs seek summary judgment as to liability, statute of limitations, and measure of damages. Defendant, in turn, has moved for partial summary judgment as to defendant's liability for time spent transporting the dogs. The Court's analysis of each of these issues is set forth separately below.

A. Liability for Canine Care

The Fair Labor Standards Act requires employers to compensate employees for "activities performed either before or after the regular work shift ... if those activities are an integral and indispensable part of the principal activities for which covered workers are employed." Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956) (emphasis added). Overtime must be paid "at a rate not less than one and one-half times the regular rate at which a worker is employed" for hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). Law enforcement personnel are subject to somewhat different standards than other employees with respect to how overtime is calculated. 29 U.S.C. § 207(k).

Plaintiffs urge the Court to find as a matter of law that the District of Columbia ("District") is required under the Fair Labor Standards Act to compensate plaintiffs for the actual time spent caring for the canine detachment dogs. Plaintiffs allege that time spent feeding, exercising, and otherwise caring for the dogs exceeds the 15 minutes per day for which plaintiffs currently are compensated. Accordingly, plaintiffs seek back wages for the time spent caring for their animals in excess of 15 minutes per day.

The District counterargues that plaintiffs have not met their burden of proving that the actual time spent caring for the dogs exceeds 15 minutes per day.² The District further argues that the plaintiffs have offered no evidence to show that the District has "required, suffered, or permitted its dog handlers to spend more than fifteen minutes a day caring for their dogs at home". Def. Opp. at 2.

The Court is persuaded, despite the sparse record presently before the Court, that plaintiffs are entitled to compensation under the Fair Labor Standards Act for the actual time spent exercising, feeding, and otherwise caring for the canine detachment dogs. The evidence offered by plaintiffs demonstrates that care of these animals is plainly a part of the officers' duties. See Affidavit of Donald E. Levering ("Levering") at ¶¶ 2-3; Memorandum to Chief of Police dated November 8, 1989 ("officers who are assigned canine duty ... have the added responsibility of caring for their dogs while in an off-duty capacity"). While the officers might at times be able to groom, exercise, and provide some care for the dogs while on regular work time, some of their duties clearly spill over into non-work hours. Moreover, on holidays and other days on which the officers are not assigned to work, all canine care necessarily takes place outside of regular working hours. Thus, the Court finds that feeding, exercising, and caring for the dogs by officers assigned to the canine detachment constitutes an "integral and indispensable part" of the officers' work activities, and, as such, time spent on those activities is compensable under the Fair Labor Standards Act. The Court notes that at least one other court considering this issue has found that time spent caring for police dogs is compensable under the FLSA. See Truslow v. Spotsylvania County Sheriff, 783 F.Supp. 274, 279 (E.D.Va.1992) ("As an integral and indispensable part of the principal activities of a canine deputy, off-duty time spent caring for canine unit dogs must be compensated as hours worked in accordance with the FLSA").

Liability for time spent caring for the canine detachment dogs having been established, the question then becomes the amount of time per day for which plaintiffs are to be compensated. Plaintiffs have brought to the Court's attention the practices of police departments in other jurisdictions, which compensate canine handlers up to 90 minutes per day for canine care. Pl.Mem. at 8. However, the Court must make its determination with respect to the instant plaintiffs based on the evidence available in the record in this case. That evidence is sparse, and consists of a single affidavit from plaintiff Donald Levering. Levering estimates that he spends a minimum of 30 minutes each day caring for his dog. Levering Aff. at ¶ 4. Levering also states in his affidavit that "some officers spend at least 45 minutes per day and perhaps longer", based on his observations and conversations with other officers. Id.

Plaintiffs have urged the Court to find the appropriate rate of compensation to be at least 45 minutes per day, Pl.Mot. at 3. However, the only evidence presented as to the specific amount of time spent on canine care by a plaintiff in this case is contained in the Levering Affidavit, in which Levering states that he spends at least 30 minutes each day on canine care. This evidence is undisputed by defendant. Accordingly, the Court finds that plaintiffs are entitled to 30 minutes compensation per day for the care, feeding, and grooming of the canine detachment dogs.³

B. Liability for Canine Transportation

Plaintiffs also seek compensation for time spent transporting the canine detachment dogs in the officers' vehicles from their residences to work. Plaintiffs point to a number of decisions in which other federal courts have found canine transportation time to be compensable. See Graham v. City of Chicago, 828 F.Supp. 576 (N.D.Ill.1993); Reich v. New York City Transit Authority, 839 F.Supp. 171 (E.D.N.Y.1993). But see Truslow v. Spotsylvania County Sheriff, 783 F.Supp. 274, 277 n. 5 (E.D.Va.1992) (holding as a matter of law that defendants were not required to compensate plaintiff for time spent commuting to or from work.)

Defendant counters in its cross-motion that compensation for travel time is barred by section 4 of the Portal to Portal Act. That Act exempts employers from having to compensate employees for time spent "walking, riding, or traveling to and from the actual place of...