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NICHOLS v. CITY OF CHICAGO

April 21, 1992

Raymond J. Nichols, et al., Plaintiffs,
v.
City of Chicago, Defendant.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Judge James H. Alesia

MEMORANDUM OPINION AND ORDER

 This is an action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 207 et seq. Plaintiffs are police officers who are canine handlers for the City of Chicago. Plaintiffs are required to board their dogs at their homes and feed, exercise and groom the dogs during their off-duty hours. Plaintiffs claim that the time spent in these activities is compensable under the FLSA. The City of Chicago ("City"), defendant in this action, has moved for summary judgment arguing the plaintiffs' home dog-care activities are specifically excluded from compensation under the FLSA by the Portal to Portal Amendment. *fn1" For the reasons set forth below, the City's motion is denied.

 I. FACTS

 The parties do not dispute the relevant facts of this case. Plaintiffs all volunteered for canine patrol duty with the City of Chicago Police Department ("CPD"). Upon completing training with their designated canine, plaintiffs are assigned to various canine patrol units with the CPD or are detailed to several federal agencies. *fn2" Generally, plaintiffs work eight to eight and one-half hour shifts. One to two hours per shift are not spent on canine patrol activities but are allotted for travel time to and from plaintiffs' homes. Stipulation of Uncontested Facts, PP17, 24, 34, 39, 46-47. At the end of the work shift, plaintiffs are required to take their assigned police dogs home. City's Rule 12(m) Statement, P5. *fn3" The City does not provide a central kennel for its police dogs. The City does provide a kennel to be used at the police officers' home, dog food and veterinary care. Stipulation of Uncontested Facts, P12. The City provides various instruction manuals regarding home dog care. *fn4" The City's instruction manuals dictate how the canine patrol officers should regularly brush and groom the police dog, check the police dogs for parasites, clean the police dog's kennel and care for any injury the police dog may sustain. Plaintiffs contend that the off-duty dog-care activities they are required to perform are activities for which they must be compensated, under the FLSA, either at regular or overtime pay rates. The City disagrees stating the off-duty home dog-care activities are excluded from FLSA coverage by the Portal Amendment.

 I. DISCUSSION

 A. Standard of Review

 A motion for summary judgment must 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). A party opposing a motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). A genuine issue of material fact exists only where there is sufficient evidence favoring the non-moving party to support a jury verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All reasonable factual inferences must be viewed in favor of the non-moving party. Holland v. Jefferson Nat'l. Life Ins. Co., Holland v. Jefferson Nat'l. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). If the evidence presented by the non-movant is merely colorable or is not sufficiently probative, summary judgment is appropriate. Wolf v. Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). With this standard in mind, we consider the City's motion drawing all reasonable factual inferences in the plaintiffs' favor.

 B. Compensation under the Fair Labor Standards Act

 Section 7(a)(1) *fn5" of the FLSA states, in relevant part:

 
Except as otherwise provided in this section, no employer shall employ any of his employees . . . for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

 The Portal Amendment was enacted to close a loop-hole in the FLSA. Following the enacting of the FLSA, a flood of lawsuits were filed by employees against their employers seeking compensation for time spent travelling to and from their places of employment (so-called portal-to-portal activities). The Portal Amendment, as adopted by Congress, virtually wiped out all portal-to-portal claims existing at that time. 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 Portal Amendment, which controls all claims after May 14, 1947, excluded from FLSA coverage (and thus made noncompensable):

 
a) 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
 
b) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time or any particular workday at which such employee commences, or subsequent to the time on any particular ...

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