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HELLMERS v. TOWN OF VESTAL

June 27, 1997

GARY HELLMERS, Plaintiff, against TOWN OF VESTAL, NEW YORK, Defendant.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND1

 Plaintiff Gary Hellmers brings suit under the Fair Labor Standards Act ("FLSA"), 29 U. S. C. § 201 et seq., against his employer to recover overtime compensation. Hellmers asserts, inter alia, that as a Town of Vestal Police Officer, he is entitled to overtime compensation for "off-duty" time spent caring and maintaining his police dog; that the statute of limitations is three years in connection with Plaintiff's canine-activities; that the Defendant's restrictions on the use of compensatory time violates the FLSA; and that he is entitled to liquidated damages under the FLSA.

 Hellmers, a police officer employed by the Town of Vestal, served as a police dog handler and member of the canine ("K-9") unit of the Vestal Police Department ("VPD") from 1983 until July 1996. During this period, Hellmers reported to his regular shifts with his police dog "Bry", a long-haired German Shepherd. Bry was a "utility" or "patrol" dog, as well as a tracking, evidence, narcotics, and cadaver detection police dog.

 From the time Hellmers joined the K-9 unit until it was disbanded in July, 1996, Bry lived with Hellmers at his residence, both in the home and in a kennel located outside the home. During that time, Hellmers was responsible for the care, training, and maintenance of the police dog, and Defendant paid for the dog food, shampoo, and veterinary bills. In connection with the care, training, and maintenance of the police dog, Hellmers avers that he performed the following canine activities during "off-the-clock" time: grooming, bathing, exercising, cleaning the dog's living quarters, feeding and watering, training, and cleaning equipment.

 During the week of August 24, 1993, Hellmers states that he informed VPD Chief of Police Kenneth Stica that he thought he was entitled to compensation for the off the clock time spent dealing with the police dog. When no changes were made to the VPD's compensation practices, Hellmers filed the instant suit.

 Presently before the Court are Defendant's Motion and Plaintiff's Cross-Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Essentially, the parties seek summary judgment on the issue of whether the time spent performing specific activities "off-the-clock" count as "hours worked" under the FLSA. If these hours count as hours worked under the FLSA, then to the extent these hours exceed forty hours per week, Plaintiff seeks time-and-a-half pay for the overtime. Plaintiff also requests summary judgment on the issue of whether he is entitled to liquidated damages under the FLSA.

 II. DISCUSSION

 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may grant summary judgment if it appears "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is the substantive law that will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).

 Furthermore, in an effort to aid the disposition of summary judgment motions, the Local Rules of the Northern District of New York require:

 
On a motion for summary judgment pursuant to Fed. R. Civ. P. 56, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue, with specific citations to the record where such facts are set forth. The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue, with specific citations to the record where the factual issues arise.. All material facts set forth in the statement served by the moving party shall be deemed admitted unless controverted by the statement served by the opposing party. The motion for summary judgment shall be denied if the moving party fails to file and serve the statement required by this paragraph.

 N.D.N.Y.L.R. 7.1(f) (emphasis added). In the absence of this mandatory short and concise statement, the motion shall either be denied or the facts deemed admitted.

 If compliance with Local Rule 7.1(f) can be accomplished with such a minimal statement, any benefits inuring from Rule 7.1(f) would be completely eviscerated. Rule 7.1(f) was drafted to force litigants to focus sharply on the specific factual issues in dispute. By doing this, and providing precise citation to the record where the disputed facts are located, both the parties and the Court can move immediately to the gravamen of the case; absent this forced focus, the parties' briefs can remain, as is often the case, as "two ships passing in the night."

 Thus, because Defendant has failed to comply with Rule 7.1(f), its motion for Summary Judgment is DENIED. Furthermore, as evidenced by the submissions of the parties, there is little agreement as to the applicable law in this case. For this reason, the Court will address some of the legal standards at issue to provide the parties with guidance at trial.

 A. Were Plaintiff's Activities Compensable under the FLSA?

 Section 207 of the FLSA provides in relevant part that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of [forty] hours . . . at a rate not less than one and one-half times the regular rate at which he is employed." 29 U. S. C. § 207(a). The purpose of the FLSA, passed in 1938, was to "guarantee[] compensation for all work or employment engaged in by employees covered by the Act." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 88 L. Ed. 949, 64 S. Ct. 698 (1944). However, under the FLSA "employees are entitled to compensation only for 'work'." Reich v. New York City Trans. Auth., 45 F.3d 646, 651 (2d Cir. 1995). While Congress made clear that employers are required to compensate employees, Congress left unclear "the contours of the type of 'work' or 'employment' that merit[s] such compensation." Reich, 45 F.3d at 649. In 1944, the Supreme Court defined the term "work" as an activity involving "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal, 321 U.S. at 598. Two years later, the Court further interpreted the FLSA to require compensation for other activities such as walking from the factory gate to the workbench and changing into work clothes. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692-93, 90 L. Ed. 1515, 66 S. Ct. 1187 (1946).

 The expansive reading of the FLSA in Anderson v. Mt. Clemens Pottery triggered a 1947 amendment to the FLSA titled the Portal-to-Portal Act, 29 U. S. C. § 251 et. seq. Congress passed the Portal-to-Portal Act in order to "relieve employers from liability for preliminaries, most of them relatively effortless, that were thought to fall outside the conventional expectations and customs of compensation." Reich, 45 F.3d at 649. Under the Portal-to-Portal Act, employees are not entitled to FLSA compensation 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" or for "activities which are preliminary to or postliminary to said principal activity or activities." 29 U. S. C. §§ 254(a)(1)-(2).

 The shift in congressional focus from the term "work" to the slightly less ambiguous phrase "principal activity or activities that an employee is hired to perform," has done little to clarify the present issue. As a result, in Steiner v. Mitchell, 350 U.S. 247, 100 L. Ed. 267, 76 S. Ct. 330 (1956), the Supreme Court held that a given activity constitutes a "principal activity," as opposed to a noncompensable preliminary or postliminary task, if it is "an integral and indispensable part of the principal activities for which covered workmen are employed." 350 U.S. at 256; see also Reich, 45 F.3d at 649-50.

 After reviewing the history of the FLSA and cases interpreting its compensation provisions, the Second Circuit recently concluded in Reich v. New York City Transit Authority :

 
The more the preliminary (or postliminary) activity is undertaken for the employer's benefit, the more indispensable it is to the primary goal of the employee's work, and the less choice the employee has in the matter, the more likely such work will be found to be compensable. Commuting and similar activities are generally not compensable. The ability of the employer to maintain records of such time expended is a factor. And, where the compensable preliminary work is truly minimal, it is the policy of the law to disregard it.

 45 F.3d at 650. The Reich court also noted that the Portal-to-Portal Act does not exempt from compensation "real work assignments" that occur outside the main part of the workday. Reich, 45 F.3d at 651.

 Consequently, an activity constitutes "work," and is compensable under the FLSA, if it involves "physical or mental exertion (whether burdensome or not)," or the loss of an employee's time, that is "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Reich, 45 F.3d at 651 (quoting Tennessee ...


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