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November 27, 1995


The opinion of the court was delivered by: DUFFY


 Plaintiffs, who are or were employed as Corrections Captains by Defendants, the City of New York (the "City") and the New York City Department of Correction, (the "DOC"), allege they are entitled to be paid overtime according to the requirements of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Plaintiffs seek declaratory judgment, injunctive relief and backpay compensation for the overtime for which they have not been paid since 1988. They allege that Defendants' treatment of Plaintiffs as salaried employees, which relieves Defendants of the obligation to pay Corrections Captains overtime pursuant to FLSA requirements, is improper under the applicable rules and regulations. Plaintiffs have moved for partial summary judgment on the issue of Defendants' liability.

 Defendants have filed a cross-motion for summary judgment. They assert that Plaintiffs are exempt from the overtime requirements of the FLSA pursuant to 29 U.S.C. § 213(a), which establishes an exemption for "bona fide executive, administrative and professional employees." Defendants also assert that even if I find that they have violated the FLSA by failing to pay Plaintiffs overtime, they have acted in good faith to conform with the rulings of the United States Department of Labor (the "DOL") and, therefore, have a complete defense pursuant to the Portal-to-Portal Act, 29 U.S.C. § 259.

 Corrections Captains are the first-line supervisors of Correction Officers. Plaintiffs are represented for collective bargaining purposes by the Corrections Captains Association, whose President is Peter Meringolo, the lead Plaintiff in this case. *fn1" The most recent contract between the Plaintiffs' union and the City covers the period from November 1, 1990 through January 31, 1992, and continues in operation until a new contract is approved. Plaintiffs receive annual salaries under this contract which far exceed the minimum salary requirements necessary to be considered salaried employees. In addition to their base annual salary, Corrections Captains receive overtime or compensatory time, at the individual captain's option, for hours worked beyond their regularly scheduled hours.

 This contract also covers the Plaintiffs' benefits and the conditions of employment, including the policies with regard to partial-day absences, absences for jury duty, attendance as a witness in court proceedings, military leave and disciplinary violations.

 The issue presented to me on summary judgment requires a determination of whether specific policies of the DOC, with regard to partial-day absences, jury duty, military leave and court appearances as witnesses, and disciplinary violations for rules other than safety rules of major significance, allow for docking of the captains' pay, and, therefore, fail "the salary basis test", which is a test promulgated by the DOL to determine whether employees qualify as "salaried".

 Corporation Counsel has made various admissions in their responses to Plaintiffs' Requests for Admissions with regard to DOC disciplinary policies whereby Corrections Captains are subject to fines or suspensions without pay for violations of rules other than safety rules of major significance. Because I must find that based on these admissions, the DOC fails the applicable tests for determining whether an employee is "salaried", partial summary judgment for Plaintiffs is granted.



 Summary judgment is appropriate only where the moving party demonstrates that there exists no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Id. A properly asserted summary judgment motion can be defeated by the non-moving party by demonstrating the existence of a material issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). To sustain this burden, the non-moving party "must 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); Williams, 781 F.2d at 323 ("Mere conclusory allegations or denials will not suffice.") In turn, the moving party may discharge its burden by pointing out to the district court -- that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. Even where evidence is offered, summary judgment may still be granted if that evidence is not significantly probative. Anderson, 477 U.S. at 249-50.

 In determining whether a genuine issue of material fact exists, the evidence must be construed and all inferences drawn in favor of the non-moving party. Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir. 1990); Williams, 781 F.2d at 323. In this case, both sides have moved for summary judgment, and the inquiry may be stated as whether the evidence, and the admitted facts are so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52.


 Plaintiffs urge application of the collateral estoppel doctrine to the question of liability under the FLSA based on Judge Preska's decision in Yourman v. Dinkins, 826 F. Supp. 736 (S.D.N.Y. 1993). In Yourman, Judge Preska granted summary judgment for Plaintiffs, who were employees designated as "managerial" by the New York City Health and Hospitals Corporation and the Board of Education of the City School District of the City of New York, and who sought overtime pay under the FLSA.

 In the Second Circuit, a four-part test is used to determine whether collateral estoppel applies:

(1) the issue in both proceedings must be identical, (2) the issue in the prior proceedings must have been actually litigated and actually decided, (3) there must have been full and fair opportunity for the litigation in the prior proceeding, and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits.

 Beck v. Levering, 947 F.2d 639, 642 (2d Cir. 1991), cert. denied, 504 U.S. 909, 112 S. Ct. 1937 (1992), quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986). Plaintiffs in the case before me are not identical to the uniformed Plaintiffs in the Yourman case. Indeed, in Yourman, Judge Preska specifically stated that she was not dealing with the members of the Corrections Department or the Police Department. Yourman, 826 F. Supp. at 737, n. 3. Yourman concerned managers employed by the Board of Education of the City of New York, the New York City Health and Hospitals Corporation and the City of New York. Plaintiffs in the action before me are uniformed captains in a paramilitary organization and have an employment agreement with the City which resulted from the collective bargaining between Plaintiffs' organized representatives and the City. The issues in this case, therefore, are not identical to those presented in Yourman and preclude application of the collateral estoppel doctrine.

 III. FLSA Exemption

 Plaintiffs seek overtime compensation under the FLSA which generally requires that employees who work more than forty hours in any given week be paid at a rate not less than one and one-half times their regular pay rate for each hour exceeding forty. *fn2" The number of hours and the period of time is different for law enforcement officers (including security personnel in correctional institutions), but the applicable principles are the same. *fn3" However, the FLSA exempts "bona fide executive, administrative, [and] professional" employees from the maximum hours and overtime provisions of the Act. 29 U.S.C. § 213(a). Because the FLSA is a remedial act, its exemptions must be narrowly construed and the employer bears the burden of showing that its employees fall within an exempted provision of the Act. Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991), cert. denied, 506 U.S. 905, 121 L. Ed. 2d 222, 113 S. Ct. 298 (1992).

 a. History of the "Salary Basis Test"

 The "duties test" concerns whether the nature of the employee's duties are appropriately considered managerial. The salary test first requires a minimum salary of between $ 155 and $ 345 per week, depending on the employee's duties. Plaintiffs easily satisfy both the minimum salary and appropriate duties tests. The only question is whether Plaintiffs in this action are properly considered exempt from the FLSA overtime requirements under the more detailed "salary basis test".

 The traditional "salary basis test" states that "an employee will be considered to be paid on a salary basis within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation . . . ." 29 C.F.R. § 541.118(a). The regulation further provides that a salaried employee's pay cannot be "subject to reduction because of variations in the quality or quantity of work performed." Id. Under the traditional salary basis test, an employer cannot claim exemption from the FLSA requirements, and must pay overtime, for employees who are subject to pay reductions for partial-day absences for personal reasons; subject to pay deductions for attendance as a ...

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