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 Act, which controls all claims after May 14, 1947, excluded from FLSA coverage (and thus made noncompensable): (1) 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 (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. See 29 U.S.C. § 254(a).
Accordingly, while the employer must compensate the employee for work performed as a part of his principal activity, activities found to be "preliminary or postliminary" to an employee's principal activity are explicitly made noncompensable under the FLSA by section 4 of the Portal to Portal Act. 29 U.S.C. § 254(a)(1). Naturally, the effect of this language is a new flood of litigation over what is preliminary or postliminary as opposed to what is, in fact, an integral part of the principal activity itself.
In the present case, Defendant contends that the plaintiffs' travel time is not converted to compensable work time by the mere presence of the dogs. Rather, the City argues that it is preliminary or postliminary to the plaintiffs' principal activities as canine police officers and hence excluded from FLSA coverage. The plaintiffs contend that their commuting time with the dogs is so integrally related to their principal activities as to be considered a part of their principal activities.
1. The Case Law and DOL Regulations
There is not a great deal of explicit statutory language or legislative history to enlighten our inquiry. However, the case law and regulations put flesh upon the skeletal legislative history of the Portal to Portal Act, and together they form the basis for the our decision in this matter.
a. The Cases
The Plaintiffs' argument here, as in Nichols, tracks the Supreme Court's decision in the seminal case of Steiner v. Mitchell, 350 U.S. 247, 100 L. Ed. 267, 76 S. Ct. 330 (1956). In Steiner, the Court stated that "activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the [FLSA] if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1)." Steiner, 350 U.S. at 256.
Section 4(a)(1) explicitly excludes ordinary commuting time from FLSA coverage. Thus, the question before us is whether transporting the canines transforms the Plaintiffs' noncompensable travel time to an integral part of their principal activity.
Of course, Steiner left much room for disagreement as to what is integral to an employee's principal activities. Whether the activity is a principal activity or integral to a principal activity is, then, a question to be decided on the particular facts of each case. We look to "whether [the activities] are performed as part of the regular work of the employees in the ordinary course of business." Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir. 1976). In Dunlop, the court found it crucial that the plaintiffs' pre-shift activities were "necessary to the business and [are] performed by the employees, primarily for the benefit of the employer." Dunlop, 527 F.2d at 400-01 (pre-shift activities of electricians, such as the filling out of time and material sheets and preparing trucks for work were "within the range of principal activities covered by the act and were performed at the behest and for the benefit of the employer.")
Here, the City argues that the Plaintiffs' benefit from the use of an unmarked police car to transport the dogs and themselves to and from work. However, the fact that the employees may also benefit from the activity is not determinative. To the contrary, "the activity is employment under the Act if it is done at least in part for the benefit of the employer, even though it may also be beneficial to the employee." Secretary of Labor v. E.R. Field, Inc., 495 F.2d 749, 751 (1st Cir. 1974) (driving truck carrying needed tools and supplies to job site was compensable work even though employee had no other means of getting there and would be forced to quit without the truck).
Moreover, the fact that the employee volunteers for the activity does not mean it is not compensable work under the Act. Rather, the question is whether the activity is performed with the knowledge and approval of the employer and for his benefit. E.R. Field, 495 F.2d at 751.
Thus, preliminary or postliminary activities are activities spent predominantly in the employees' own interests. See Dunlop, 527 F.2d at 398-400. Activities are classified as preliminary or postliminary only if they are "undertaken for [the employees'] own convenience, not being required by the employer and not being necessary for the performance of their duties for the employer." Dunlop, 527 F.2d at 398 (quoting Mitchell v. Southeastern Carbon Paper Co., 228 F.2d 934 (5th Cir. 1955)). See also Leone v. Mobil Oil Corp., 173 U.S. App. D.C. 204, 523 F.2d 1153 (D.C. Cir. 1975) (voluntarily accompanying OSHA inspectors on factory inspections primarily advanced employee interests and therefore was noncompensable); Hodgson v. Katz & Besthoff, 365 F. Supp. 1193 (W.D. La. 1973) (cashiers not entitled to compensation for counting cash balance before beginning regular work shifts where such work was not required by employer but was for employees' convenience); Cherup v. Pittsburgh Plate Glass Co., 350 F. Supp. 386 (N.D. W.Va. 1972) (changing clothes before shift of no significant benefit to employer and hence time spent doing so need not be compensated under the FLSA), aff'd without op., 480 F.2d 921 (4th Cir.), cert. denied, 38 L. Ed. 2d 473, 94 S. Ct. 577, 414 U.S. 1068 (1973). Activities that primarily benefit the employer are not preliminary or postliminary, regardless of when or where those activities take place. See e.g., Steiner, 350 U.S. at 247 (changing clothes and showering held to be an integral and indispensable part of principal work for battery factory workers who used toxic materials and were compelled by circumstances to change and shower in facilities that the employer was required to provide by state law); Mitchell v. King Packing Co., 350 U.S. 260, 100 L. Ed. 282, 76 S. Ct. 337 (1956) (time spent by meat company butchers sharpening their knives held to be an integral and indispensable part of principal activities); Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47 (8th Cir. 1984) (truck drivers' time spent on pre-shift safety inspections was part of principal activity), cert. denied, 471 U.S. 1054, 85 L. Ed. 2d 480, 105 S. Ct. 2116 (1985). See also Truslow, 783 F. Supp. at 278 (principal activities need not take place during the regular business day); Renfro v. City of Emporia, 729 F. Supp. 747 (D. Kan. 1990) (firefighter's mandatory on-call time compensable, even if spent at home), recons. denied, 732 F. Supp. 1116 (1990), aff'd, 948 F.2d 1529 (10th Cir. 1991).
b. The Regulations
The regulations amplify the understanding found in the caselaw. The DOL definition of a principal activity is found at 29 C.F.R. § 790.8. Under the regulations, the term "principal activity" is to be broadly construed and includes all activities of consequence which are performed for the employer, including those activities that are indispensable to the performance of productive work. 29 C.F.R. § 790.8(a). Thus, if the principal activity cannot be performed without the activity at issue, the activity at issue is not preliminary or postliminary, and thus not excluded by section 4 of the Portal to Portal Act. Further, an employee may engage in more than one "principal activity" during the work day and one activity need not predominate over all other activities to be considered a "principal activity." See 29 C.F.R. § 790.8(a).
Section 790.7 defines preliminary and postliminary activities. See 29 C.F.R. § 790.7. The varieties of life in modern society make categorical classifications impossible, of course, but the overall meaning of section 790.7 is that activities primarily related to the employer's interest are not preliminary or postliminary, regardless of where and when those activities take place. See 29 C.F.R. § 785.12 (regulations pertaining to work time apply "to work performed away from the premises or the job site, or even at home").
3. The Present Case
We hold that, in the circumstances presented to us today, time spent transporting police canines is more than merely "riding" to work, which is excluded by the Portal to Portal Act. 29 U.S.C. § 254(a)(1). Rather, it is an integral and indispensable part of the officers' principal duties as canine police officers and thus not excluded from coverage. Certainly, the officers need to get themselves to work everyday. However, when transporting the canines, they are performing an indispensable part of their principal activities that is required by their employer and which inures to the employer's benefit.
As in Dunlop, these activities are "within the range of principal activities covered by the act and [are] performed at the behest and for the benefit of the employer." Dunlop, 527 F.2d at 401. Certainly, if the City provided a central kennel for the dogs, the time spent picking up the dogs at that kennel and transporting them to work would be compensable even though it would be "riding" to work. The City may not escape liability by requiring the officers to board the dogs at home.
Further, the activities at issue do not fit the DOL's definition of "preliminary" or "postliminary" activities excluded by section 254 (a)(2). In section 790.7(b), the regulations define "preliminary activity" as "an activity engaged in before the commencement of [the] 'principal' activity or activities." 29 C.F.R. § 790.7(b). "Postliminary activity" is likewise defined as "an activity engaged in by an employee after the completion of his 'principal' activity or activities. Id.
In the present case, transporting the dogs takes place after the officers begin their principals duties and ends before they complete them. Each morning, the officers must feed the animals and prepare them for the day's work. That is clearly integral to their principal duties. See Truslow v. Spotsylvania County Sheriff, 783 F. Supp. 274, 279 (E.D. Va. 1992), aff'd, 1 Wage & Hour Cases 2d (BNA) 744, 1993 U.S. Dist. LEXIS 10142, 1993 WL 155964 (4th Cir. 1993) (unpublished disposition, text in Westlaw). Only after that is completed do the officers transport the dogs to work. Hence, transporting the dogs to work is not preliminary. For the same reason, taking them home is not postliminary because the principal activities are still ongoing: the dogs must still be fed and exercised. Clearly, transporting the dogs takes place after principal activities began and ends before principal activities are completed.
4. The Summary Judgment Standard
There is some confusion over the nature of the preliminary/postliminary activity versus principal activity question. Whether an activity is preliminary or postliminary to a principal activity is often described as a question of fact. See e.g., Blum v. Great Lakes Carbon Corp., 418 F.2d 283, 286 (5th Cir.), cert. denied, 397 U.S. 1040, 25 L. Ed. 2d 651, 90 S. Ct. 1361 (1969); Mitchell v. Southeastern Carbon Paper Co., 228 F.2d 934, 938-39 (5th Cir. 1955); Carter v. Panama Canal Co., 314 F. Supp. 386, 391 (D.D.C. 1970), aff'd, 150 U.S. App. D.C. 198, 463 F.2d 1289 (D.C.Cir. 1972), cert. denied, 409 U.S. 1012, 34 L. Ed. 2d 306, 93 S. Ct. 441 (1972). It has also been characterized as a question of law. Ballou v. General Elec. Co., 433 F.2d 109, 111 (1st Cir. 1970), cert. denied, 401 U.S. 1009, 91 S. Ct. 1253, 28 L. Ed. 2d 545 (1971). In dicta, the Supreme Court has described this issue as a mixed question of law and fact. See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 743, 67 L. Ed. 2d 641, 101 S. Ct. 1437 (1981).
We feel that the question is best described as a mixed question of law and fact. The precise nature of the Plaintiff's duties is a question of fact while the application of the FLSA to those duties is clearly a question of law.
Treating this issue as a mixed question of law and fact, we do not hesitate to grant summary judgment. A mixed question does not normally lend itself to summary disposition because there are usually questions of historical fact, credibility or demeanor, which should be resolved by the jury. In the present case, however, the salient facts concerning the plaintiffs' duties are undisputed. There are no disputes over historical facts, credibility or demeanor. All that remains is a question of the legal significance of the facts. In such a case, the law content of a mixed question predominates and the issue may be appropriate for summary judgment. See, e.g., William W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 E F.R.D. F 465, 472-73 (1984) (where historical facts are undisputed and application of law is at issue, experience of jurors is not central to proper resolution) (citations omitted).
II. The Statute of Limitations
The city argues that should we find that transporting the dogs is compensable work, a portion of Plaintiffs Graham and Kinsella's claims are barred by the statute of limitations. The Portal to Portal Act altered the FLSA statute of limitations by stating that a suit is forever barred unless "commenced" within two years of the accrual of a cause of action. See 29 U.S.C. § 255. A suit is commenced when filed or, in the case of an unnamed plaintiff in a collective or class action, the suit is considered "commenced" upon the filing of a written consent with the court. See 29 U.S.C. § 256.
The present lawsuit was filed on May 21, 1993. Hence, all claims prior to May 21, 1991, would be barred by the statute of limitations found in section 255. However, the Plaintiffs argue that this issue is not so easily resolved: Graham and Kinsella's claims extend back as least as far as 1988. See Plaintiffs' Third Amended Complaint PP 8,9.
Graham and Kinsella were both involved in the Nichols litigation and attempted to raise the travel time issue there. They argue that the statute should be tolled from the time they first brought the issue before Judge Alesia in the pretrial order on January 14, 1991, and again by motions in limine on February 13, 1991. For unknown reasons, Judge Alesia did not resolve the issue until April 29, 1992, when he ruled that the complaint could not be amended to encompass the travel time claims. The Nichols case was settled without deciding the travel time issue.
Graham and Kinsella argue the City is not prejudiced by tolling the statute because it had knowledge of the claims. Thus, the question before us is whether the Plaintiffs' belated attempts to raise the transport issue in the Nichols proceeding is sufficient to equitably toll the statute of limitations in the present case. We hold that they are not for two reasons.
First, the doctrine of equitable tolling is not directly applicable in the present case. The doctrine applies where a plaintiff, despite due diligence on his part, is unable to obtain vital information bearing on the existence of his claim. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990), cert. denied, 115 L. Ed. 2d 1079, 111 S. Ct. 2916 (1991). It does not apply where a plaintiff had the needed information but failed to properly plead his case.
Second, the Seventh Circuit has been cautious in applying equitable tolling in employment cases:
The statute of limitations is short in . . . most employment cases because delay in the bringing of suit runs up the employer's potential liability; every day is one more day of backpay entitlements. We should not trivialize the statute of limitations by promiscuous application of tolling doctrines. When we are speaking . . . of equitable tolling, we are . . . dealing with two innocent parties and in these circumstances the negligence of the party invoking the doctrine can tip the balance against its application . . . .
Cada, 920 F.2d at 453.
This matter is a simple one. Section 255 bars all claims not commenced within two years of the accrual of the cause of action. This action was commenced on May 21, 1992. Plaintiffs' belated attempts to raise these issues in other litigation is simply irrelevant. All claims prior to May 21, 1990, two years before the commencement of this action, are barred. 29 U.S.C. §§ 255, 256.
The City's Motion for Summary Judgment is granted in part and denied in part. On the issue of liability, it is denied. To the extent it seeks to bar claims arising prior to May 21, 1991, however, it is granted. Plaintiff's Motion for Partial Summary Judgment on the issue of liability is granted.
PAUL E. PLUNKETT
UNITED STATES DISTRICT JUDGE
DATED: July 21, 1993