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ALBANESE v. BERGEN COUNTY

December 31, 1997

ROBERT J. ALBANESE, WILLIAM A. BYRNES, JOHN DAVIS, GUY GARNER, RICHARD TURRE, and RAYMOND A. NOLL, Plaintiffs,
v.
BERGEN COUNTY, NEW JERSEY, and BERGEN COUNTY SHERIFF'S DEPARTMENT, Defendants.



The opinion of the court was delivered by: WOLIN

 WOLIN, District Judge

 Robert Albanese, William Byrnes, John Davis, Guy Garner, Raymond Noll, and Richard Turre ("plaintiffs") are or were dog handlers for the Bergen County Sheriff's Department. They seek to recover overtime compensation from Bergen County and the Bergen County Sheriff's Department ("defendants") *fn1" for the time they had to spend caring for and maintaining their dogs, uniforms, and guns. One plaintiff also seeks overtime compensation for the time he spent as a Drug Abuse Resistance Education officer. Plaintiffs move the Court to enter summary judgment on issues related to liability pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants cross-move to dismiss plaintiff Byrnes's claim that he should receive overtime compensation for the time he spent making presentations to children on preventing the use of drugs. They also move to exclude plaintiff's expert report. The Court has decided this motion without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure.

 BACKGROUND

 Plaintiffs are or were employed as Sheriff's Officers or Corrections Officers for the Bergen County Sheriff's Department in Bergen County, New Jersey. (Pls. Decls. P 2). *fn2" Plaintiffs' regularly scheduled shifts required them to work thirty-two or forty hours for a seven-day period. (Pls. Decls. P 3). When plaintiffs worked more than eight hours in a day or forty hours in a week, they became eligible for and received overtime compensation at a rate of time and one-half. (Pls. Decls. P 3). Plaintiffs received that rate for the overtime they performed "on the clock." (Pls. Decls. P 3).

 At some point in their respective employments for defendants, plaintiffs became police dog ("K-9") handlers: Albanese (1988 until March 1996); Byrnes (October 1992 until January 1995); Davis (September 1989 until September 1995); Garner (December 1990 until the present); Noll (September 1988 until February 1997); Turee (1989 until May 1997). (Pls. Decls. P 4). After being selected as K-9 handlers, defendants assigned plaintiffs dogs, and plaintiffs and their dogs attended rudimentary K-9 training. (Pls. Decls. P 8). At the training, instructors taught plaintiffs "the basics of police K-9 patrol work including care and maintenance of the dog, as well as obedience training, agility training, tracking, criminal apprehension, article searches, building searches, and narcotics detection." (Pls Decl. P 8). *fn3" The instructors told plaintiffs that basic training was only initial training, and advised them that they would have to reinforce the training on a regular basis to make the dogs proficient. (Pls. Decls. P 8).

 Moreover, the instructors explained that after plaintiffs completed training, they should house their dogs at home in order to build the bond between them and the dogs and because that practice would make them and the dogs better teams. (Gailes dep. 24:8-16). Although K-9 handlers had the choice of taking their dogs home or leaving them at the kennel, ninety percent of the handlers elected to have their dogs live with them at home. (Duffy dep. 111:18-21; 115:14-25). In general, plaintiffs housed their dogs with them at their homes. (Pls. Decls. P 10). After Albanese's first dog died, he kept his second dog in the kennel. (Albanese Decl. P 10). Garner left one of his two dogs at the kennel and brought the other one home with him. (Garner Decl. P 10).

 The Bergen County Sheriff's Department expected that plaintiffs would follow and apply the training they received as well as maintain the good health of their dogs. (Benedetto dep. 124:11-24; Alpert dep. 51:23-25). Plaintiffs never received instructions from the Sheriff's Department about how much time to spend caring for their dogs. (Gailes 55:13-17).

 During their positions as K-9 handlers, defendants paid for the food, equipment, and veterinary expenses associated with the use of the police dogs. In addition to housing their dogs, plaintiffs performed the work necessary for caring for and maintaining their dogs. (Pls. Decls. P 5). Such work included feeding, exercising, training, bathing, grooming, and cleaning the areas where the police dogs lived and the vehicles used to transport the dogs. (Pls. Decls. PP 5, 11; Noll Decl. P 12).

 Plaintiffs also arrived early for work so that they could drop the dogs off at the kennel before reporting for their assignments. On the occasions when the dogs remained in the kennel for the day, plaintiffs often had to spend time beyond their shifts tending to their dogs and cleaning the kennel. (Albanese Decl. PP 32-35; Byrnes Decl. PP 31-34; Davis Decl. PP 27-28; Garner Decl. PP 29-31; Noll Decl. P 30; Turre Decl. PP 33-34). There were, however, times when plaintiff's superiors permitted them to perform some of these tasks during their regular hours. (Byrnes Decl. PP 33-34; Garnes Decl. P 30; Noll Decl. P 30; Turre Decl. P 33).

 Many of the hours spent on that work occurred during "off the clock" time, i.e., time that did not count as hours worked. (Pls. Decls. P 5). Plaintiffs claim that they spent "many hours over and above" their scheduled hours caring for, maintaining, and training their dogs. (Pls. Decls. P 7). They assert that they performed much of that work after they had worked forty hours, but that they did not receive overtime compensation at a rate of time and one-half. (Pls. Decls. P 7). Additionally, Noll, acting under the direction of Sergeant Bradley, located, obtained, and trained his second dog on his off-duty time. (Noll Decl. PP 9, 33).

 The Police Benevolence Association and defendants negotiated and placed into the collective bargaining agreement a yearly stipend to compensate plaintiffs for the additional work they performed as K-9 handlers. (Alpert dep. 58:22 to 59:2). The stipend was $ 1050 in 1991, $ 1100 in 1992, and $ 1150 from 1993 through 1996. (Pls. Decl. P 6). Those dollar amounts were not derived from any actual time plaintiffs spent. (Terhune dep. 205:22 to 206:3; Alpert dep. 58:17-21). Bergen County added the stipend to plaintiffs' base salaries so that it would be included in the calculation of their hourly rates. (Pls. Decls. P 6).

 Plaintiffs' supervisors, Sergeant Gailes, Captain Benedetto, Sheriff Terhune, Undersheriff Bolton, Undersheriff Alpert, and Captain Duffy, were aware that plaintiffs were spending time above and beyond their scheduled forty hours in order to attend to their dogs. (Gailes dep. 47-50; Pl. Ex. B; Benedetto dep. 128:4-7; Terhune dep. 204:21-24; Bolton dep. 257:5-11; Alpert dep. 52:2-6; Duffy dep. 116:2-5). In fact, Captain Benedetto admitted at his deposition that he had conversations with numerous K-9 officers about being compensated on an hourly basis for their overtime work instead of receiving the stipend. (Benedetto dep. 152:14 to 154:11). In 1992 to early 1993, plaintiffs recorded the overtime they spent in the kennels in a logbook. (Gailes dep. 57:25 to 58:18; Duffy dep. 102:13-15; 106:4-10). Captain Duffy ordered Sergeant Gailes to instruct plaintiffs to stop making entries in the logbook because plaintiffs were filling out daily activity sheets, which made the logbook redundant. (Duffy dep. 102:25 to 103:16).

 In early 1993, Sergeant Gailes, who was the supervisor for the Correction Division K-9 handlers, approved overtime compensation for Albanese, Byrnes, and Turre for the time they spent in the kennels beyond their scheduled hours. (Albanese Decl. P 45; Byrnes Decl. P 43; Turre Decl. P 38). Captain Benedetto ordered Gailes to stop paying overtime compensation when he learned that Gailes had instituted the policy without proper authority. (Benedetto dep. 165:16-25). During their conversation, Gailes told Benedetto that the "Garcia" decision *fn4" permitted public employees to be compensated for any work they performed for their jobs. (Gailes dep. 34:9 to 35:7).

 In May 1993, Sheriff Terhune met with many of the K-9 handlers, including every plaintiff except for Davis, to discuss the goals of the unit and the amount of overtime the handlers spent caring for and maintaining their dogs. The handlers requested that they be paid overtime for their off the clock work, which amounted to two hours a day. After Terhune denied their request, the handlers informed him of the "Garcia" decision as well as the lawsuits against the Port Authority and Atlantic City in which K-9 handlers received overtime compensation. Terhune stated that those cases did not apply to their department, and asked that a memorandum be submitted detailing the off the clock work performed by the handlers. On May 25, 1993, Sergeant Gailes submitted a report to Terhune explaining that feeding, grooming, cleaning, exercising, and training the dog took two hours a day. (Albanese Decl. P 46; Byrnes Decl. P 44; Garner Decl. P 40; Noll Decl. P 36; Turre Decl. P 39; Pl. Ex. B; Gailes dep. 38:7 to 41:9; Terhune dep. 196:1 to 198:18). Gailes sent copies of the report to Benedetto, Duffy, and Lieutenants Hessian and Douglas, but he never received a response. (Gailes dep. 41:10-19; 63:23 to 64:6).

 Although he had no idea how long it took plaintiffs to care for and maintain their dogs and had never been a K-9 handler, Sheriff Terhune testified at his deposition that walking, feeding, grooming, and cleaning up after the dog should take five to ten minutes. (Terhune dep. 222:2-18; 218:10-11). He also stated that plaintiffs' and Sergeant Gailes's claim that those activities took two hours per day was preposterous. (Terhune dep. 215:16-25). In fact, he opined that caring for and maintaining the dogs should not take any time because plaintiffs could leave the dogs at the kennel where the on-duty officer took care of the dogs and an inmate cleaned the kennel. (Terhune dep. 219:21 to 220:3).

 After receiving a copy of the report, Captain Benedetto spoke with Captain Duffy to discuss Gailes's comments and concerns. (Benedetto dep. 158:6-8; 159:23 to 160:2). Benedetto was aware that some officers were performing K-9 related activities off duty, and following his conversation with Duffy, he instructed division commanders that plaintiffs "should be given the time to . . . meet those [K-9 related] needs during working hours, whenever it was possible. (Benedetto dep. 161:3-7). When plaintiffs could not perform those needs while on duty, they "had to do it on their own time." (Benedetto dep. 161:8-11). Benedetto testified that the stipend was used to compensate plaintiffs for performing activities while off duty. (Benedetto 161:12-16).

 Undersheriff Bolton reads the monthly updates to the service that reports on decisions relating to the Fair Labor Standards Act. (Bolton dep. 281:11 to 282:3; 283:4-6). She remembers reading the decision where K-9 handlers in Atlantic City were awarded overtime compensation. (Bolton dep. 285:2 to 286:11). She and Sheriff Terhune discussed the case and decided that it did not apply to their K-9 handlers because they had the option of housing their dogs at the kennel. (Bolton dep. 286:21-25; 288:5-20).

 Plaintiffs also claim that they should receive overtime compensation for the time they spend maintaining their guns and cleaning and maintaining their uniforms, leather gear, and brass. (Albanese Decl. PP 39-42; Byrnes Decl. PP 37-40; Garner Decl. PP 35-39; Noll Decl. P 35). Defendants required plaintiffs to keep their uniforms and leather gear clean and to maintain their firearms in operating condition. (Benedetto dep. 183:12-15 to 185:3; 185:15 to 186:19; Alpert dep. 51:9-15). Plaintiffs spent a variety of time performing these activities:

 -- cleaning brass and leather: 10 to 20 minutes per week (Albanese), 15 to 20 minutes per month (Byrnes), 30 minutes per week (Davis); 30 minutes per day (Noll);

 -- maintaining firearms: 10 to 20 minutes per month (Albanese), 30 minutes per month (Garnes). (Albanese Decl. PP 40-42; Byrnes Decl. PP 39-40; Davis Decl. P 31; Garner Decl. PP 36-39; Noll Decl. P 35). All of this time occurred off the clock.

 In addition to being a K-9 handler, Byrnes was a Drug Abuse Resistance Education ("DARE") officer, which involved making presentations to school children about drug prevention. During his time as a DARE officer, Byrnes spent one hour per week during off the clock time preparing for and scheduling his presentations. Byrnes received a stipend of approximately $ 600 for his work as a DARE officer rather than time and one-half his regular rate of pay. (Byrnes Decl. P 41; Kaufman Decl. Ex. B). Byrnes was unable to testify how much time he spent per year on his DARE activities. (Kaufman Decl. Ex. B.). Sheriff Terhune and Captain Benedetto were aware that DARE officers spent off the clock time on their presentations, and they stated that the stipend was used to compensate them for their time. (Terhune dep. 207:13 to 208:3; Benedetto dep. 144:22 to 147:5). Benedetto testified that DARE officers knew that they would have to spend their own time on their presentations. (Benedetto dep. 145:10-20).

 On May 13, 1996, plaintiffs filed a complaint in this Court seeking unpaid overtime compensation and other relief under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"), and a declaratory judgment that defendants willfully and recklessly violated the FLSA. Plaintiffs now move the Court to enter an order of summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Their motion is limited to the issue of liability under the FLSA. Thus, they seek an order stating the following: (1) the time plaintiffs spent performing various activities during off the clock time counts as hours worked under the FLSA, and that that time should be compensated as overtime to the extent the time exceeded forty hours per week; (2) plaintiffs worked overtime hours and were not compensated for them; (3) the rate of pay for overtime is one and one-half plaintiffs' regular hourly rate; (4) plaintiffs should be compensated for the actual hours they spent on their activities, and defendants' expert should not be allowed to testify on the amount of hours plaintiffs should or could have spent on their activities; (5) the statute of limitations is three years; and (6) plaintiffs are entitled to liquidated damages as provided by the FLSA. Defendants cross-move to exclude plaintiff's expert report and to dismiss Byrnes's claim for compensation for his work as a DARE officer because those activities were not alleged in plaintiffs' complaint.

 DISCUSSION

 I. Standard for Summary Judgment

 Summary judgment shall be granted 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). In making this determination, a court must draw all reasonable inferences in favor of the non-movant. See Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984). Whether a fact is "material" is determined by the substantive law defining the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); United States v. 225 Cartons, 871 F.2d 409, 419 (3d Cir. 1989).

 "At the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment must be granted if no reasonable trier of fact could find for the non-moving party. See id.

 When the non-moving party bears the burden of proof at trial, the moving party's burden can be "discharged by 'showing'--that is, pointing out to the District Court--that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party has carried its burden of establishing the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). When the non-moving party's evidence in opposition to a properly-supported motion for summary judgment is merely "colorable" or "not significantly probative," the Court may grant summary judgment. See Anderson, 477 U.S. at 249-50.

 Further, when a non-moving party who bears the burden of proof at trial has failed, in opposition to a motion for summary judgment, to raise a disputed fact issue as to any essential element of his or her claim, summary judgment should be granted because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23.

 In opposing summary judgment, a non-movant may not "rest upon mere allegations, general denials, or . . . vague statements." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.), cert. denied, 502 U.S. 940, 116 L. Ed. 2d 327, 112 S. Ct. 376 (1991); Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990) ("unsupported allegations in [a nonmovant's] memorandum and pleadings are insufficient to repel summary judgment"); see Fed. R. Civ. P. 56(e). The summary judgment procedure enables a party "who believes there is no genuine issue as to a specific fact essential to the other side's case to demand at least one sworn averment of that [specific] fact before the lengthy process of litigation continues." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 3188, 111 L. Ed. 2d 695. The "unsupported statements of counsel in memoranda submitted to the court are even less effective in meeting the requirements of Rule 56(e) than are unsupported allegations in the pleadings." Schoch, 912 F.2d at 657.

 An affidavit filed in opposition to a properly-supported motion for summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A non-movant "is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). The Court is not to presume the existence of specific facts from general averments. See id. Such an affidavit must: (1) "show affirmatively that the affiant is competent to testify to the matters stated therein;" (2) be based on "personal knowledge;" and (3) establish facts that "would be admissible at trial." Fed. R. Civ. P. 56(e); see Hlinka v. Bethlehem Steel Corp., 863 F.2d 279, 282 (3d Cir. 1988). In sum, an affidavit offered in opposition to a motion for summary judgment must establish a proper evidentiary foundation for the facts stated within it. See Williams v. Borough of West Chester, 891 F.2d 458, 471 (3d Cir. 1989) (Garth, J., concurring). Affidavits that fail to satisfy these requirements "may not be considered" on a motion for summary judgment. See Hlinka, 863 F.2d at 282-83. Moreover, "when, without a satisfactory explanation, a nonmovant's affidavit contradicts earlier deposition testimony, the district court may disregard the affidavit in determining whether a genuine issue of material fact exists." Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991).

 II. Guidelines for Interpreting the FLSA

 III. Are Plaintiffs' Activities Compensable Under the FLSA?

 a. Statutory Law, Case Law, and Administrative Rulings

 In 1938, Congress passed the FLSA "to achieve a uniform national policy of guaranteeing compensation for all work or employment engaged in by employees covered by the [FLSA]." 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). The FLSA covers employees who are "engaged in commerce or in the production of goods of commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce." See, e.g., 29 U.S.C. § 206. The FLSA mandates that employers not employ any of their employees "for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours specified 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)(1). Section 207(k) of the FLSA partially exempts law enforcement personnel from § 207(a). For law enforcement personnel to receive overtime compensation, they must work 171 hours in 28 days (or 42 and 3/4 hours per week) as opposed to 160 hours in 28 days (or 40 hours per week) for regularly covered employees. See 29 C.F.R. § 553.230; Nichols v. City of Chicago, 789 F. Supp. 1438, 1440-41 (N.D. Ill. 1992).

 Under the FLSA, the term "'employ' includes to suffer or to permit to work." 28 U.S.C. § 203(g). In the absence of a legislative definition, the Supreme Court interpreted work "as meaning 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 597. The Supreme Court's interpretation of work led to the decision in Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 90 L. Ed. 1515, 66 S. Ct. 1187 (1946), which held that the FLSA requires employers to ...


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