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AHERN v. NEW YORK

December 8, 1992

JOHN F. AHERN, et al, Plaintiffs,
v.
THE STATE OF NEW YORK, THE DIVISION OF THE NEW YORK STATE POLICE, and THOMAS A. CONSTANTINE, as Superintendent of the Division of the New York State Police, Defendants, 89-CV-956. GERALD J. LONG, PAUL L. PIWINSKI, DENIS J. DONOVAN, ROBERT P. FAYNOR, JOHN J. TONZI, DONALD E. BRANDSTETTER, DOUGLAS C. FIELD, Individually and on behalf of others similarly situated, Plaintiffs, v. THOMAS CONSTANTINE, Superintendent New York State Police, NEW YORK STATE POLICE and THE STATE OF NEW YORK, Defendants, 89-CV-887. JOHN M. MORAN, et al, Plaintiffs, v. STATE OF NEW YORK, Defendant, 89-CV-1235. LYNN MARTIN, Secretary of Labor UNITED STATES DEPARTMENT OF LABOR, Plaintiff, v. STATE OF NEW YORK, Defendant, 89-CV-1110.


CHOLAKIS


The opinion of the court was delivered by: CON. G. CHOLAKIS

CON. G. CHOLAKIS, D.J.

MEMORANDUM

 For the convenience of the Court and the parties, this Memorandum addresses the issues in the above-captioned matters. At issue in each case is whether the members of the New York State Police Bureau of Criminal Investigation (BCI) fall within the "administrative or executive employee" exception to the federal Fair Labor Standards Act of 1938 (FLSA), codified as amended at 29 U.S.C. § 201 et seq. Individual members of the BCI (the private plaintiffs) commenced several civil actions against defendant Thomas Constantine in his capacity as Superintendent of the New York State Police, and against the State Police and the State of New York, alleging that the State's failure to pay them overtime violates the FLSA. In addition, the Secretary of Labor has filed suit against the State under the FLSA with respect to the identical practices of the State Police. The private plaintiffs have consolidated their respective motion papers. *fn1"

 Several dichotomies characterize these cases. First, there are two relevant exemptions from the duty to pay overtime that the State claims apply to the cases: the administrative exemption, found at 29 C.F.R. § 541.2, and the executive exemption, found at 29 C.F.R. § 541.1. *fn2" Second, there are two classes of BCI police officers: "Investigators" and "Senior Investigators." The third dichotomy involves a distinction between the "production" work of the employer (in this case, the State Police) and its "administrative operations." See 29 C.F.R. § 541.205(a) (Secretary's interpretation of administrative exemption). The Department of Labor uses the production/administration dichotomy to identify which employees fall within the administrative exemption to the FLSA, and which may claim overtime pay.

 After extensive discovery, the private plaintiffs and the Secretary of Labor moved for partial summary judgment ultimately to determine whether the State has violated the overtime pay provisions of the FLSA, and more specifically, to determine whether the State may claim the administrative and executive exemptions. *fn3" Conversely, the State has made a cross-motion for summary judgment, seeking a ruling that the plaintiff BCI members are exempt from overtime provisions of the FLSA, or that applying the Act to the State Police would offend the State's sovereignty, as guaranteed under the Tenth and Eleventh Amendments to the United States Constitution.

 Summary Judgment Standards

 When considering a motion for summary judgment, the Court first aims to determine whether any genuine issues of material fact remain such as would justify a trial on the merits. The Court does not resolve factual disputes, but rather identifies them. If the Court concludes that no triable issues of fact remain, the Court will proceed to resolve the controversy by applying the law to the undisputed facts. See FED.R.CIV.P. 56.

 The parties' respective burdens also inform the Court's inquiry on a motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Under the applicable law, the State -- as the party claiming the exemption from the FLSA -- bears the burden of proving its entitlement to the exemption. Martin v. Malcolm Pirnie, Inc. 949 F.2d 611, 615 (2d Cir. 1991). Employees are presumptively entitled to overtime compensation for the hours they work in excess of the statutory maximum. Accordingly, if the State cannot show facts that would justify its claim of an exemption, summary judgment in favor of the plaintiffs would be appropriate. Celotex, 477 U.S. at 323-24 ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses . . .").

 Because the State has raised several constitutional objections, it might make sense to address them before engaging in the summary judgment inquiry. A bona fide constitutional impediment to the application of the FLSA would render any factual dispute immaterial. Nevertheless, in light of the longstanding principle that courts must strive to avoid reaching constitutional issues if possible, the Court will first address the plaintiffs' statutory claims before considering, if necessary, the State's Tenth and Eleventh Amendment defenses.

 Statutory and Regulatory Provisions

 At the outset, an evaluation of the applicable law will enable the Court to assess which facts are material, and of those, which are in dispute.

 All plaintiffs in this case rely on 29 U.S.C. § 207, which provides for pay at one and one-half times the employee's regular pay rate for each hour that an employee works in excess of the statutory 40 hour workweek. *fn5" Similarly, the State relies on the exemptions from the overtime provision that Congress authorized the Secretary to "define and delimit" by regulation. See 29 U.S.C. § 213(a)(1). *fn6" These regulations appear at 29 C.F.R. §§ 541.1 and 541.2.

 The State claims that all of its Investigators and Senior Investigators are exempt from the overtime provisions under the administrative exemption and that some of the Senior Investigators fall within the executive exemptions from the FLSA. *fn7"

 Executive Exemption

 The Secretary has defined the executive exemption as follows:

 The term "employee employed in a bona fide executive capacity" in section 13(a)(1) of the Act shall mean any employee:

 (a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and

 (b) Who customarily or regularly directs the work of two or more other employees therein; and

 (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and

 (d) Who customarily and regularly exercises discretionary powers; and

 (e) Who does not devote more than 20 percent . . . of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section; and

 (f) Who is compensated for his services on a salary basis at a rate of not less than $ 155 per week . . . Provided, That an employee who is compensated on a salary basis at a rate of not less than $ 250 per week . . . and whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all the requirements of this section.

 29 C.F.R. § 541.1. Because the regulation is written in the conjunctive, an employer must establish that an employee meets each of the requirements before the employer is entitled to claim the exemption. However, because the BCI Investigators and Senior Investigators earned more than $ 250 each week during the relevant period, the "short test" found at 29 C.F.R. 541.1(f) applies. See Exhibits in Support of Plaintiffs' Motion for Partial Summary Judgment at Exh. 22-23 (compensation tables in collective bargaining agreement). In light of special constraints that attend government employers, *fn8" the Secretary of Labor does not contest that the BCI members are "salaried" and therefore that the State must meet only the short test. For purposes of this motion, the Court will assume that the short test applies to the determination of both the executive and administrative exemptions.

 Thus, under the regulations, the job-related activities of the employees -- their primary duties -- become material facts. The applicability of the executive exemption depends upon whether the "primary duty" of the Senior Investigators consists of management, rather than investigations. The question of the primary duties of the Senior Investigators is, of course, a question of historical fact.

 The Secretary argues that a genuine factual dispute remains because the sworn statements of several BCI Senior Investigators indicate that they spend the majority of their time investigating crimes, as opposed to managing other crime investigators. See Exhibits to Plaintiff's Statement in Response to Defendant's Rule 10(J) Statement of Facts (Secretary's response to Defendant's cross-motion). These statements of the Senior Investigators contradict the State's assertion that "the primary duty of a Senior Investigator is supervision and management of the particular unit assigned." Defendants' 10J Statement at P 126. The Superintendent of the State Police affirms that "the primary duty of a Senior Investigator is supervision and management of the particular unit assigned." Affidavit of Thomas A. Constantine at PP 58-66. Undoubtedly, there is a factual dispute about the primary duties of the Senior Investigators.

 The same factual dispute pervades the private plaintiffs' case with respect to the activities of the Senior Investigators. For example, the private plaintiffs rely on the Deposition of Captain Thomas Fazio for the assertion that Senior Investigators assigned to the Drug Enforcement Task Force spend a majority of their time doing "hands on work," as opposed to managing other Investigators. See Fazio Deposition at 25. But Captain Fazio's statements concerning the allocation of the Senior Investigators' activities between investigations and management were indefinite. In response to a question asking him how much time the Senior Investigators spend doing hands-on work, he said only "I would say a major part, but I couldn't give you a percentage . . . I'd say the major is more than half. I couldn't give an estimate on it." The statements of Superintendent Constantine, concerning the responsibilities and activities of the Senior Investigators, conflict with the plaintiffs' assertions that Senior Investigators primarily perform hands-on work, as opposed to administrative or supervisory work.

 Moreover, some of the submissions that the parties rely on combine data for both Investigators and Senior Investigators. For example, the State Police apparently conducted a time management study which required members of the BCI to fill out a card everyday, indicating the time they expended in each of several categories of activities. The resulting data, however, clumps the responses of the Senior Investigators together with those of the Investigators. This study, therefore, offers no insight into the primary duties of either class of Investigator.

 In sum, genuine issues of material fact remain with respect to the activities of the Senior Investigators. Summary judgment, therefore, is not warranted on the issue of the applicability of the ...


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