Waymire v. Miami County Sheriff's Office
DECISION AND ENTRY: (1) GRANTING PLAINTIFFS MOTION FOR LEAVE TO SUPPLEMENT HER DISCOVERY RESPONSES (Doc. 37 ); (2) DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT (Doc. 31 ); AND (3) DENYING PLAINTIFFS CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 33 ). Signed by Magistrate Judge Michael J. Newman on 3/29/17. (pb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:15-cv-159
Magistrate Judge Michael J. Newman
DECISION AND ENTRY: (1) GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
SUPPLEMENT HER DISCOVERY RESPONSES (Doc. 37); (2) DENYING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 31); AND (3) DENYING
PLAINTIFF’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 33)
This civil consent case is before the Court on the following three motions: (1) Plaintiff’s
motion for leave to supplement her discovery responses (doc. 37); (2) Defendant’s motion for
summary judgment (doc. 31); and (3) Plaintiff’s cross-motion for partial summary judgment
(doc. 33). The Court has carefully considered all of the documents before it, and the parties’
motions are now ripe for decision.
NATURE OF THE PROCEEDINGS AND UNDISPUTED FACTS
Plaintiff served as a member of the Miami County Sheriff’s Office K-9 Unit from 1995
until 2014. She was charged with caring for, maintaining, and housing K-9 Officer Nero seven
days a week starting in 2004. Defendant required Plaintiff to ensure that K-9 Officer Nero was
nourished, in good health and ready and available for service at a moment’s notice.
Plaintiff had four agreements with Defendant pertaining to her employment: (1) the
Sherriff’s Office Personnel Policy Manual that Plaintiff agreed in writing to follow (doc. 34-6);
(2) a collective bargaining agreement (“CBA”) (doc. 34-4); (3) a March 1996 written agreement
between Plaintiff and Sheriff Cox (doc. 34-3); and (4) a subsequent 1996 oral agreement
between Plaintiff and Defendant. Only the latter two agreements dealt directly with Plaintiff’s
compensation for caring for her assigned K-9 officer.
It is undisputed that under the March 1996 written agreement, Plaintiff was assigned a
department vehicle to drive to and from work in exchange for caring for her then-assigned K-9
officer, a dog who was not K-9 Officer Nero. It is also undisputed that the parties orally agreed
in 1996 that plaintiff was able to leave a half hour early on on-duty days with no reduction in pay
in order to partially compensate her for off-duty time spent caring for K-9 Officer Nero.
Plaintiff initiated this case on May 1, 2015. Her complaint contained a single cause of
action alleging that Defendant failed to pay her overtime for off-duty care of K-9 Officer Nero in
violation of the Fair Labor Standards Act (“FLSA”). Plaintiff claims unpaid overtime from May
1, 2012 through her last day as a K-9 Deputy on April 20, 2014, with the exception of when she
was on injury leave with full compensation from September 11, 2013 through January 6, 2014.
PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT HER DISCOVERY
Plaintiff filed her motion for leave to supplement two interrogatory answers in response
to Defendant’s request -- in its memorandum in opposition to Plaintiff’s motion for partial
summary judgment -- to strike two of Plaintiff’s declarations filed in support of her cross-motion
for summary judgment. Doc. 44 at PageID 1514-15. Specifically, Defendant seeks to strike the
following: (1) Joseph Mahan’s declaration (allegedly because he was not disclosed in
interrogatory answers as a witness) and (2) the part of Plaintiff’s declaration that conflicts with a
prior interrogatory answer she gave regarding the number of uncompensated overtime hours she
worked caring for K-9 Officer Nero while off duty . Id.
In her motion to supplement, Plaintiff argues that the facts at issue -- that Mr. Mahan
possessed information relevant to the litigation, and that Plaintiff performed four hours of
uncompensated work on on-duty days and two hours of uncompensated work on off-duty days -were made known to Defendant during Plaintiff’s May 9, 2016 deposition. Doc. 44 at PageID
1514-15. Plaintiff did not file her proposed supplemental answers to interrogatories in her
motion to supplement, but Plaintiff implicitly seeks to supplement two of her December 4, 2015
responses to Defendant’s interrogatories in order to incorporate her deposition testimony. See
doc. 37 at PageID 1379. First, Plaintiff seeks to supplement her response to interrogatory #3
(which requested that Plaintiff identify all persons she intended to call as a witness, both lay and
expert, at trial) to include Mr. Mahan. Id. Second, Plaintiff seeks to supplement her response to
interrogatory #8 (which requested that Plaintiff itemize and set forth the calculation of all
compensation, overtime, and back pay relative to the number of hours claimed for
uncompensated work time) to now reflect her deposition testimony “that she spent four hours per
day caring for K-9 Officer Nero on her on-duty days and two hours per day caring for him on her
non-duty days.” See id. at 1379 (citing doc. 30-1 at PageID 98; Waymire Dep. Tr. P. 18).1
Under Rule 26(e), a party who has made a Rule 26(a) disclosure or responded to
discovery requests must provide timely supplementation “if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other parties during the discovery process
or in writing.” Fed. R. Civ. P. 26(e)(1)(A).
The Court is aware that on August 16, 2016, Plaintiff served Defense counsel with Plaintiff’s
Supplemental Responses to Defendant’s Miami County Sheriff’s Office First Set of Interrogatories. Doc.
41-1 at PageID 1447. However, because these supplemental responses were not filed in any pleading, the
Court has limited its review of Plaintiff’s motion to supplement to the information provided by Plaintiff in
her memorandum in support of her motion filed on July 28, 2016. See doc. 37.
In regards to interrogatory #3, the Court agrees with Plaintiff that she made the identity
and the significance of Mr. Mahan’s knowledge known to Defendant during her deposition. See
doc. 37 at PageID 1379. Plaintiff testified at her deposition that she had an oral agreement with
Chief Deputy Mahan, who acknowledged that she was spending in excess of the compensated
time of thirty minutes per day after her shift caring for K-9 Officer Nero. Doc. 37 at PageID
1379 (citing doc. 30-1 at PageID 103-104; Waymire Dep. Tr. P. 41-43). Therefore, Plaintiff’s
deposition testimony “otherwise made known” to Defendant that Mr. Mahan was an individual
with knowledge significant to this litigation, and thus, meets the requirements of Fed. R. Civ. P.
26(e)(1)(A). See Sjostrand v. Ohio State Univ., No. 2:11-cv-00462, 2014 WL 4417767, at *2
(S.D. Ohio September 8, 2014) (holding that the phrase “made known to the other party”
requires that the opposing party had reason to know that the undisclosed witness at issue had
“knowledge supporting the opposing party’s litigation position”); see also Harding v. Cianbro
Corp., 436 F.Supp.2d 153, 163 (D. Me. 2006) (finding that where the identity of a witness was
made known to opposing counsel during the course of discovery, formal supplementation was
unnecessary). Moreover, the Court also notes that interrogatory #3 asked for identification of
witnesses to be used at trial, and that Mr. Mahan’s declaration has been offered as evidence in
support of Plaintiff’s motion for partial summary judgment, not trial. See docs. 33-7 and 41-1 at
In regards to interrogatory #8, the Court agrees with Plaintiff that her deposition
testimony -- “that she spent four hours per day caring for K-9 Officer Nero on her on-duty days
and two hours per day caring for him on her non-duty days” -- made the “corrective information”
(for her calculation of all compensation, overtime, and back pay relative to the number of hours
claimed for uncompensated work time) “known” to Defendant as required by Fed. R. Civ. P.
26(e)(1)(A). The undersigned finds that it was not necessary for Plaintiff to file a separate
pleading alerting Defendant to the supplemental information. See Coleman v. Keebler Co., 997
F. Supp. 1102, 1107 (N.D. Ind. 1998) (finding the duty to supplement “does not require an
application of form over substance”).
Accordingly, the Court GRANTS Plaintiff’s motion to supplement in so much as it
reflects Plaintiff’s deposition statements discussed above. See doc. 30-1 at PageID 98, 103-4;
Waymire Dep. Tr. P. 18, 41-43.
CROSS-MOTIONS FOR SUMMARY JUDGMENT
Standard of Review
A motion for summary judgment should be granted if the evidence submitted to the court
demonstrates that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“Summary judgment is only appropriate ‘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.’” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007)
(quoting Fed. R. Civ. P. 56(c)).
“Weighing of the evidence or making credibility
determinations are prohibited at summary judgment -- rather, all facts must be viewed in the
light most favorable to the non-moving party.” Id. “[T]he standards upon which the [C]ourt
evaluates the motions for summary judgment does not change simply because the parties
present cross-motions.” Taft Broad. Co. v. U.S., 929 F.2d 240, 248 (6th Cir. 1991) (internal
When a party without the burden of proof -- typically a defendant -- seeks summary
judgment, that party bears the initial burden of pointing to an absence of evidence supporting
the nonmoving party’s case, but need not support its motion with affidavits or other materials
“negating” the opponent’s claim. See Morris v. Oldham County Fiscal Court, 201 F.3d 784,
787 (6th Cir. 2000). Once “a motion for summary judgment is properly made and supported,
an opposing party may not rely merely on allegations or denials in its own pleading[.]”
Viergutz v. Lucent Tech., Inc., 375 F. App’x 482, 485 (6th Cir. 2010) (citation omitted).
Instead, the party opposing summary judgment “must -- by affidavits or as otherwise provided
in [Rule 56] -- set out specific facts showing a genuine issue for trial.” Id. (citation omitted).
A moving party with the burden of proof -- typically the plaintiff -- faces a
“substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). As held by
the Sixth Circuit, when the party with the burden of proof moves for summary judgment, he or
she “must show that the record contains evidence satisfying the burden of persuasion and that
the evidence is so powerful that no reasonable jury would be free to disbelieve it.” Id.
The Fair Labor Standards Act
The FLSA, when reduced to its essential form, requires employers to compensate
employees for all hours worked.
Fair Labor Standards Act of 1938, § 1 et seq.,
29 U.S.C. § 201 et seq. The purpose of the FLSA is to set limits on minimum wages and the
number of hours an employee is permitted to work before the employer is required to pay
overtime. 29 U.S.C. §§ 206-07. The FLSA requires employers to pay their employees “at a rate
not less than one and one-half times the regular rate” for work exceeding forty hours per week.
29 U.S.C. § 207(a)(1). Employers who fail to do so may be liable to their affected employees “in
the amount of their . . . unpaid overtime compensation” and “in an additional equal amount as
liquidated damages.” 29 U.S.C. § 216(b).
“The legislative debates indicate that the prime purpose of the legislation was to aid the
unprotected, unorganized and lowest paid of the nation’s working population; that is, those
employees who lacked sufficient bargaining power to secure for themselves a minimum
subsistence wage.” Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945). The FLSA
entrusted enforcement to those employees: “If there shall occur violations of either the wages or
hours, the employees can themselves . . . maintain an action in any court to recover the wages
due them . . . . [Section 216 of the FLSA] puts directly into the hands of the employees who are
affected by violation the means and ability to assert and enforce their own rights . . . .” Id. at 706
To prevail in an FLSA overtime suit, a plaintiff must prove, by a preponderance of the
evidence, that he or she “performed work for which he [or she] was not properly compensated.”
Integrity Staffing Solutions, Inc. v. Busk, ––– U.S. –––, 135 S.Ct. 513, 516-17 (2014) (citing
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). As the Supreme Court has
noted, “[t]he remedial nature of this statute and the great public policy which it embodies,
however, militate against making that burden an impossible hurdle for the employee.” Mt.
Clemens Pottery Co., 328 U.S. at 687.
Defendant’s Motion for Summary Judgment
Defendant makes five arguments in support of its motion for summary judgment on
Plaintiff’s FLSA claim for unpaid overtime compensation related to her training and care of K-9
Officer Nero: (1) Plaintiff fails to name a party capable of being sued; (2) Plaintiff’s failure to
document and submit for payment all of her hours worked precludes her from recovering under
the FLSA; (3) the arbitration procedure contained in Plaintiff’s CBA is the sole forum in which
she may seek redress of her FLSA rights ; (4) Plaintiff did not work in excess of the applicable
hours in the 28-day work period under 29 U.S.C. § 207(k) of the FLSA; and (5) Plaintiff’s care
of K-9 Officer Nero did not constitute compensable “work” under the FLSA. As explained in
more detail below, the Court finds Defendant’s arguments unpersuasive and therefore denies
Defendant’s motion for summary judgment.
Whether Plaintiff Fails to Name a Party Capable of Being Sued
In its prior Order denying Defendant’s motion to dismiss, the Court found that Defendant
forfeited the defense of lack of capacity to be sued because it failed to timely raise that defense.
See doc. 28. Therefore, that ruling is the law of the case, and Defendant’s motion for summary
judgment as to this issue is denied. See Dixie Fuel Co., LLC v. Dir., Office of Workers’ Comp.
Programs, 820 F.3d 833, 843 (6th Cir. 2016)( “Under the law of the case doctrine, findings made
at one stage in the litigation should not be reconsidered at subsequent stages of that same
Whether Plaintiff’s Alleged Failure to Document and Submit for Payment
All of Her Hours Worked Off Duty Precludes Her From Recovering Under
Citing to the Sixth Circuit’s decision in White v. Baptist Mem’l Health Care Corp. for
support, Defendant argues that it provided Plaintiff a “reasonable process” for her to report
uncompensated work time, and her failure to utilize this procedure prevents Plaintiff from now
collecting alleged unpaid compensation under the FLSA. Doc. 44 at PageID 1525; 699 F.3d 869
(6th Cir. 2012) (holding that if an employer established a reasonable process for an employee to
report uncompensated work time, the employer is not liable for non-payment if the employee
fails to follow the established process). Defendant claims that the Sherriff’s Office Personnel
Policy Manual (the “Manual”), which Plaintiff agreed in writing to comply with, required
Plaintiff to accurately record the time she worked on-duty and off-duty caring for K-9 Officer
Nero. Doc. 40 at PageID 1431. Specifically, Defendant cites to Section 4.05 of the Manual,
which states in pertinent part:
Payment of Wages is dependent on the proper recording of the time spent
at the worksite in providing services to the employer and the public-atlarge. In order to accurately record the amount of time worked, time
records are utilized in documenting the number of hours worked by an
It is the responsibility of every employee individually to report their own
starting and ending times for each shift of work so that wages can be
determined. Failure to do so will result in the loss of pay for the shift or
work in question unless extenuating circumstances exists. In addition,
failure to report time worked, misrepresentation of time worked, the
altering of any time record or allowing a time records to be altered by
others may result in discipline.
Doc. 34-6 at PageID 552. Defendant argues that Plaintiff is not entitled to compensation for any
time she failed to report because the reporting policy quoted above was reasonable, and it is
undisputed that Plaintiff did not record the number of hours she worked off duty while caring for
K-9 Officer Nero. Doc. 40 at PageID 1431.
In order to prevail on this point, Defendant invites this Court to find, as a matter of law,
that the Manual clearly applies to Plaintiff’s work while off-duty. The Court declines to so find.
Indeed, if anything, the verbiage from Section 4.05 of the Manual strongly suggests that it was
meant to govern only how Plaintiff was to report her hours worked while on duty and does not
apply to her work while off duty. C.f. White, 699 F.3d at 896 (finding an employer not liable for
non-payment under the FLSA where an employer had established a reasonable process for an
employee to report uncompensated work time while on duty and the employee failed to report
the on-duty worktime he later claimed was uncompensated).
Specifically, the Manual’s
provision -- that employees are to record their “time spent at the work site” and report “their
starting and ending times of each shift” -- suggests that this policy was to apply to employees’
on-duty work only. Doc. 36 at PageID 843 (citing doc. 34-6 at PageID 552). At a minimum,
there is a genuine issue of material fact as to whether the Manual was meant to apply to
Plaintiff’s off-duty work spent caring for K-9 Officer Nero.
This is particularly true since, absent a clear and reasonable policy to the contrary, the
FLSA charges employers, such as Defendant, with the task of maintaining “proper records of
wages, hours and other conditions and practices of employment.” Mt. Clemens Pottery Co., 328
U.S. at 686-87. Under the FLSA, employers, not employees, are seen as being “in [the] position
to know and to produce the most probative facts concerning the nature and amount of work
Accordingly, Defendant’s motion for summary judgment based on Plaintiff’s alleged
failure to document and submit for payment all of her hours worked off duty is DENIED.
Whether the Arbitration Procedure Contained in Plaintiff’s CBA is the Sole
Forum in Which Plaintiff May Seek Redress of Her FLSA Rights
Defendant next argues that summary judgment should be granted in its favor because the
sole forum in which Plaintiff may seek redress of her FLSA rights is the arbitration procedure
contained in her CBA. Doc. 31 at PageID 191, 199; doc. 34-4 at PageID 432-36.
While a collective bargaining agreement may indeed require arbitration of statutory
claims (like Plaintiff’s FLSA claims), thereby baring employees from suing in court, a collective
bargaining agreement “may only do so if the agreement’s arbitration provision expressly covers
statutory rights.” Campbell v. Kelly, No. 3:09-cv-435, 2011 WL 3862019, at *9 (S.D. Ohio Aug.
31, 2011) (citing 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 263-65 (2009)) (emphasis added).
Here, Plaintiff’s CBA does not expressly cover statutory rights (and Defendant does not
Thus, Plaintiff’s failure to use her CBA arbitration procedure is
inconsequential, and Defendant’s request for summary judgment based on this ground is
Whether 29 U.S.C. § 207(k) of the FLSA Applies to Plaintiff, and If So,
Whether Plaintiff Worked In Excess of The Hours in the Applicable 28-Day
29 U.S.C. §207(a) of the FLSA requires employers to pay overtime to employees who
work more than 40 hours per week. 29 U.S.C. § 207(a). 29 U.S.C. § 207(k), however, contains
a partial exemption from the overtime provisions of § 207(a) in that public agencies, such as
Defendant, may establish a “work period” that lasts from seven to twenty-eight days for
employees engaged in law enforcement or fire protection activities. In such a circumstance, only
employees who work more than 171 hours in a twenty-eight day work period are entitled to
overtime pay. 29 U.S.C. § 207(k)(1); 29 C.F.R. §§ 553.201(a), 553.230; Franklin v. City of
Kettering, 246 F.3d 531, 533-34 (6th Cir. 2001).
Under §207(k), public agencies must pay overtime only when employees have “tours of
duty which in the aggregate exceed” 171 hours in a twenty-eight day period. 29 U.S.C. § 207(k).
Additionally, the regulations specifically caution that a work period is not the same as a work
week or pay period. The burden is on the employer to prove it has adopted a §207(k) work-week
exemption. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974).
In the present case, it is undisputed that Plaintiff’s employment is governed by her CBA.
Doc. 31 at PageID 190; doc. 39 at PageID 1421. The Court further finds that it is undisputed that
Section 16.1 of the CBA applies § 207(k) to Plaintiff’s employment.2 In accordance with
§ 207(k), the Court finds that Plaintiff’s CBA entitled her to overtime for any time “worked in
Section 16.1, states in pertinent part that “in cases of Department of Labor complaints, Title 29
USC Section 207(k) shall be utilized for the purposes of determining the Employer’s compliance with the
Fair Labor Standards Act (FLSA).” Doc. 34-4 at PageID 445.
excess of eight and one-half (8 ½) hours per day or one-hundred and sixty-one and one-half (161
½) hours during a twenty-eight (28) day work period.” Doc. 34-4 at PageID 445.
Defendant argues that it is entitled to summary judgment, pursuant to § 207(k), because
Plaintiff’s estimation of the overtime she is owed is based on a 40-hour work week rather than
the 161 ½ hours per 28-day work period that governed her employment under the CBA. Doc. 40
at PageID 1430.
Specifically, Defendant claims that Plaintiff’s estimation of how much
overtime compensation she is owed “fails to prove by a preponderance of the evidence that she
performed work in excess of the applicable 28-day work period for which she was properly
compensated” entitling Defendant to judgment as a matter of law. Id.
In a case where the employer fails to maintain adequate and accurate records, as
Defendant admits here, a Plaintiff must prove, by a preponderance of the evidence, that she
“performed work for which [she] was not properly compensated.” Moran v. Al Basit LLC, 788
F.3d 201, 205 (6th Cir. 2015) (citing Mt. Clemens Pottery, 328 U.S. at 687). However, the Sixth
Circuit has made clear that, at the summary judgment stage, a Plaintiff’s testimony as to how
much uncompensated work she performed is enough to meet her burden. Accord Moran, 788
F.3d at 205.
Consequently, Plaintiff’s estimation, that on average she was not compensated for 28
hours of off-duty work per week, is enough to create a genuine issue of material fact as to
whether she is owed overtime under § 207(k). Accordingly, Defendant’s motion for summary
judgment on this basis is DENIED. See Moran, 788 F.3d at 204-05.
Whether Plaintiff’s Off-Duty Care of K-9 Officer Nero Is Compensable
“Work” Under the FLSA
The Sixth Circuit addressed a case similar to the present matter in Brock v. City of
Cincinnati, where the Court reviewed claims brought under the FLSA by police officers seeking
back wages for time spent providing off-duty care for dogs in their k-9 unit. 236 F.3d 793 (6th
Cir. 2001). The Sixth Circuit identified three relevant inquiries to be made in addressing the
amount of compensable off-duty hours under the FLSA:
1) How much of the time spent by handlers in caring for their canine charges
while off-duty is compensable “work” under the FLSA? 2) Is that amount of time
de minimis, so that the FLSA does not mandate compensation? 3) Have the
parties reached a reasonable agreement to compensate the handlers for non-de
minimis time spent in “work” under the FLSA?
Id. at 800. As explained in more detail below, the Court finds that there is a genuine issue of
material fact on each of the three Brock inquiries.
“Work” Under the FLSA
The Sixth Circuit enunciated a tripartite definition of “work” as physical or mental
exertion that is: “(1) ‘required or suffered’ by the employer; (2) ‘pursued necessarily and
primarily for the benefit of the employer and [the employer’s] business’; and (3), as to activity
performed off-duty, is ‘an integral and indispensable part of the principal activities for which
covered [employees] are employed.’” Campbell, 2011 WL 3862019, at *9 (citing Brock, 236
F.3d at 800).
As to the first element, the Manual undisputedly required Plaintiff to care for K-9 Officer
Nero before shifts, during shifts, after shifts, and on days off. Doc. 34-6. Therefore, Plaintiff’s
off-duty activities caring for K-9 Officer Nero satisfy the first prong of the Brock “work”
As to the second element, Defendant argues that the time Plaintiff spent taking care of
K-9 Officer Nero “was not primarily for the benefit of the Sheriff’s office.” Doc. 31 at PageID
195. Specifically, Defendant claims that Plaintiff would have performed “the same daily dog
duties” caring for her own dog, Spike, regardless of whether she was responsible for caring for
K-9 Officer Nero. Id. Defendant even goes so far as to argue that K-9 Officer Nero was
“friends” with Spike and therefore Plaintiff’s care of K-9 Officer Nero actually benefited
Plaintiff by providing a playmate for Spike. Plaintiff claims that all of the duties she performed
to ensure that K-9 Officer Nero was nourished, in good health, and ready for active service were
performed necessarily and primarily for the benefit of Defendant. Doc. 36 at PageID 846. Alas,
there is a genuine issue of material fact as to whether an appreciable share of Plaintiff’s activities
related to caring for K-9 Officer Nero was done necessarily and primarily for the benefit of
Finally, as to the third element, Defendant argues that Plaintiff’s off-duty care of K-9
Officer Nero was not an integral part of her principal activities as a police officer. In Brock,
however, the Court found that the municipal defendant’s requirement that officers “take [their]
canines home with them, look after them at all times, keep them well-nourished and in good
health, and have them ready for recall to active service at a moment’s notice” made the off-duty
K-9 officers’ care an integral part of the plaintiffs’ jobs as police officers. Brock, 236 F.3d at
804. Here, the Manual contains similar mandates requiring Plaintiff to directly supervise the K-9
officer at all times, keep the K-9 officer trained to its fullest ability, and remain responsible for
grooming and daily care of the K-9 officer.
See doc. 33-4 at PageID 374.
circumstances, there is a genuine issue of material fact as to whether Plaintiff’s off-duty care of
K-9 Officer Nero was an integral part of her principal activities as a police officer. Campbell,
2011 WL 3862019, at *9 (citing Brock, 236 F.3d at 802-04).
In sum, the evidence shows that there are genuine issues of material fact as to whether
Plaintiff’s off-duty care of K-9 Officer Nero meets each of the elements for compensable “work”
under the FLSA, and entry of summary judgment on this basis, therefore, is DENIED.
The De Minimis Work Doctrine
Even if some of Plaintiff’s activities qualify as “work” under the FLSA, “work” is not
compensable if the amount of work is de minimis. Brock, 263 F.3d at 804. Brock referenced the
following three factors to determine whether otherwise compensable “work” is de minimis: (1)
the size of the claim in the aggregate; (2) whether the claimant performed the work on a regular
basis; and (3) the practical administrative difficulty of recording the additional time. Brock, 263
F.3d at 804 (citing Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir. 1984)).
The Sixth Circuit found that the hour a day spent off-duty by the officers in Brock caring
for their respective K-9 officers was not de minimis. Brock, 236 F.3d at 804. The Court
reasoned that although the nature of the officers’ at-home care was not easily monitored, such an
administrative difficulty was outweighed by the total amount of time spent and the regularity of
which the officers cared for their K-9 officers. Id.
As in Brock, Plaintiff’s claim for uncompensated off-duty work -- four hours of
uncompensated work on on-duty days and two hours of uncompensated work on off-duty days -well exceeds a de minimus amount. Doc. 44 at PageID 1514-15. This Court presumes, like the
Sixth Circuit in Brock, that regardless of which party would have been responsible for requiring
or attempting it, meaningful monitoring of Plaintiff’s at-home K-9 duties would have proven
“difficult, expensive, and intrusive.” Brock, 263 F.3d at 804.
Therefore, Plaintiff’s evidence is at least sufficient to create a genuine issue of material
fact as to whether the regularity and amount of her uncompensated work in the aggregate is not
de minimus. Thus, Defendant’s motion for summary judgment as it relates to the de minimus
doctrine is DENIED.
Reasonableness of The Agreement
In regards to the “reasonableness” of an agreement to compensate k-9 handlers for non de
minimus “work,” the Brock Court explained that “[b]ecause of the difficulty in determining the
exact hours worked in circumstances where unsupervised employees can divide their time
between ‘work’ and personal pursuits, ‘any reasonable agreement of the parties which takes into
account all of the pertinent facts will be accepted.’”
Brock, 236 F.3d at 806 (citing
29 C.F.R. § 785.23).
In the present mater, it is undisputed that Plaintiff entered into a written agreement and
subsequent verbal agreement with the Sheriff’s Office upon accepting a K-9 duty position in
1996. Doc. 31 at PageID 190; doc. 36 at PageID 838. The written 1996 agreement consisted of
a memorandum sent by Sheriff Cox to Plaintiff, which she signed. Doc. 34-3. The agreement
stated in pertinent part:
Since you are now certified as the department K-9 officer, and your dog is
now certified, it is time to address the use of the vehicle that has been equipped
for your use and has been assigned to you.
As a tradeoff for allowing you the permanent use of this vehicle, to
respond from your home, would be that the Miami County Sheriff’s Office would
not owe you any monetary amount for the care and the maintenance of the dog.
Doc. 34 at PageID 1. It is further undisputed that the parties entered into an oral agreement
shortly following the written agreement. Doc. 33 at PageID 280; doc. 31 at PageID 190.
The Court finds that, as a matter of law, both agreements are unclear as to the intent of
the parties to apply the agreement to only Plaintiff’s assigned K-9 officer at the time of the
agreement or all other K-9 officers Plaintiff may have been assigned for the duration of her
employment with Defendant. Specifically, the 1996 written agreement uses phrases such as “the
dog” and “your dog.” It is undisputed that K-9 Officer Nero, the only dog related to Plaintiff’s
FLSA claim in this case, became a Miami County Sheriff Department K-9 Officer eight years
after the creation of the 1996 written agreement. Doc. 36 at PageID 835. Therefore, a genuine
issue of material fact exists as to the parties’ intent to apply the 1996 written agreement to
Plaintiff’s care of K-9 Officer Nero.
The 1996 written agreement does not include an integration clause, and therefore, parole
evidence as to the parties’ intent is appropriate. Aero Fulfillment Services Corp. v. Orcale Corp.,
186 F. Supp. 3d 764, 771 (S.D. Ohio 2016) (holding that under Ohio law, when a written
agreement is ambiguous and not fully integrated, i.e. does not contain the full understanding of
the parties, the law permits consideration of parole evidence to determine party intent). Parole
evidence, which has not been offered by either party on the issue above in their summary
judgment pleadings, would be appropriate at trial to determine the parties’ intent.
In addition, neither party has set out in any detail the terms of the 1996 oral agreement
reached subsequent to the written agreement other than a general averment that Plaintiff was able
to leave a half hour early on on-duty days with no reduction in pay. Doc. 31 at PageID 190; doc.
36 at PageID 838. Defendant claims that Plaintiff was already obligated to do all the care and
maintenance of K-9 Officer Nero pursuant to the 1996 written agreement. Doc. 31 at PageID
190. Therefore, there is a genuine issue of material fact as to whether the subsequent oral
agreement is supported by inadequate. See Wright v. Bank of America, N.A., 517 Fed. App’x
304, 307 (6th Cir. 2013) (holding that under Ohio law, a valid contract requires mutual
In light of the foregoing, there are genuine issues of material fact as to what the parties
agreed to in their 1996 written agreement and subsequent oral agreement, as well as whether the
oral agreement is supported by mutual consideration. At this time, and on the record now before
the Court, the meaning and applicability of the agreements cannot be assessed. Because of the
aforementioned genuine issues of material fact existing at this stage of the proceedings, the
reasonableness of the agreements cannot be addressed and Defendant’s motion for summary
judgment on this ground is DENIED.
Plaintiff’s Cross-Motion for Summary Judgment
Plaintiff seeks partial summary judgment as to liability on Count I of her complaint,
claiming violations of the FLSA, with the exact amount of unpaid wages, liquidated damages,
and attorney’s fees to be determined at trial. Doc. 33 at PageID 274. In support of her motion,
Plaintiff argues the following: (1) she regularly worked in excess of 161 ½ hours in a 28-day
work period without the required overtime compensation; (2) her care and maintenance of K-9
Officer Nero was compensable time; (3) Defendant was aware that Plaintiff was performing athome care and maintenance of K-9 Officer Nero without compensation; (4) her unpaid overtime
is more than de minimus; (5) the 1996 written agreement and subsequent oral agreement are
unreasonable; (6) due to Defendant’s willful failure to comply with the FLSA, a three-year
statute of limitations should apply to her FLSA action; and (7) Defendant is not entitled to a
good faith defense.3
In regards to Plaintiff’s arguments 1-5, the Court has already addressed each above as
they related to Defendant’s motion for summary judgment and found that a genuine issue of
In Plaintiff’s reply brief filed in support of her motion for partial summary judgment (doc. 39),
Plaintiff asked that the last four pages of Defendant’s memorandum in opposition to her motion for partial
summary judgment (doc. 35) be stricken due to Defendant’s failure to comply with the requirements of
Local Rule 7.2 (3). Doc. 39 at PageID at 1420. On September 15, 2016, the Court granted Defendant’s
unopposed motion to amend their memorandum in opposition to Plaintiff’s cross motion for partial
summary judgment. (Doc. 43). On October 14, 2015, Defendant filed an amended memorandum in
opposition to Plaintiff’s cross-motion for partial summary judgment (doc. 44), which complied with the
requirements of Local Rule 7.2 (3), making Plaintiff’s cross-motion to strike moot.
material fact existed for all five. Consequently, Plaintiff has not met her substantially higher
burden required to obtain summary judgment, and therefore, Plaintiff’s cross motion for partial
summary judgment as it pertains to arguments 1-5 is DENIED.
Plaintiff argues that a three-year statute of limitations, rather than a two-year statute of
limitations, should apply to her FLSA claim because Defendant “willfully” violated the FLSA.
Doc. 33 (citing 29 U.S.C. § 255(a)). Plaintiff also states in her memorandum in support of her
motion for partial summary judgment that she is entitled to liquidated damages as a matter of
law, and that Defendant’s potential “good faith” defense is not applicable.
29 U.S.C. § 255(a) makes clear the issue of willfulness is only ripe for discussion once an
employer is found to have violated 29 U.S.C. §§ 206 or 207. Similarly, 29 U.S.C. § 206(b)
makes clear that the issue of liquidated damages and any associated good faith defense is only
ripe for discussion once an employer is found to have violated 29 U.S.C. §§ 206 or 207. Since
this Court has found that there is a genuine issue of material fact as to whether such FLSA
violations have occurred under §§ 206 or 207, Plaintiff’s request for a ruling as a matter of law
as to willfulness, liquidated damages, and any associated defenses is DENIED.
For the foregoing reasons, the undersigned GRANTS Plaintiff’s cross-motion for leave
to supplement her discovery responses (doc. 37), DENIES Defendant’s motion for summary
judgment (doc. 31), and DENIES Plaintiff’s cross-motion for partial summary judgment (doc.
33). The Court will set this case for trial by separate order.
IT IS SO ORDERED.
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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