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December 18, 1996

JOHN F. ROGERS, et al., Plaintiffs, against THE CITY OF TROY NEW YORK; DAVID M. GRANDEAU, in his official capacity as City Manager of the City of Troy, New York, Defendants.

The opinion of the court was delivered by: MCAVOY


 This case is brought by ninety-five (95) Troy, New York police officers pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. The plaintiffs seek "injunctive and declaratory relief and to recover unpaid minimum wages that allegedly are owed to the plaintiffs by defendants as well as liquidated damages plus reasonable attorneys' fees, costs and expenses." Complaint at P 1.

 The crux of the dispute is the institution of a "lag" period with respect to the day on which the officers received their paychecks from the City. In essence, as a cost saving measure, the City phased-in, over an eight week period, a bi-weekly payroll system rather than the then weekly payroll system. The result to the plaintiffs was that rather than be paid on the last day of their respective pay period, the officers, after a series of one day push backs of the actual date pay was received, were now to receive their pay on the Friday following the last day of the pay period. The affected employees were notified of the proposed change on or about September 23, 1994. The process of changing the payment date began on October 7, 1994, and the bi-weekly payment practice was fully established by December 2, 1994. *fn1"

 It is the plaintiffs position that the institution of a bi-weekly payroll system violates the Fair Labor Standards Act. More specifically, the plaintiffs argue, in support of a motion for partial summary judgment, that by the implementation of a one week lag, the defendants made five late/delayed payments and failed to pay the plaintiffs for one week worked in the year 1994. *fn2" They argue that the lag period violates the Fair Labor Standards Act, because a delayed payment is identical to no payment. In addition, the plaintiffs argue that the City is collaterally estopped, by virtue of the state court judgment, from relitigating the issue of what day is the proper payday. Finally, the plaintiffs argue that certain public policy reasons mandate the finding in this case that a weekly pay period is proper. The plaintiffs seek liquidated damages equal to their weekly pay for each of the five weeks that the City allegedly violated the Fair Labor Standards Act.

 The defendants argue that the plaintiffs have not pleaded in their Complaint the claim argued on summary judgment. More particularly, the defendants claim that the Complaint sets forth a claim for a single withholding of one week's pay. However, the defendants claim that the plaintiffs assert a wholly new and different claim for relief in the motion for partial summary judgment. Thus, the defendants argue that the plaintiffs are precluded from recovery on this motion. Without citing a single authority, the defendants claim that collateral estoppel does not apply. Finally, the defendants argue that the Fair Labor Standards Act does not prohibit an employer from changing the date on which an employee is paid. Thus, they conclude that the City did not violate the Act when it changed the date on which the plaintiff police officers were paid.


 The first issue for the Court to determine is if the claim at issue in this motion was pleaded in the Complaint. If so, the Court will examine the next threshold issue, collateral estoppel. If necessary, the Court will then turn to considering the issues specifically relating to the Fair Labor Standards Act ("FLSA").

 A. Sufficiency of Complaint in Relation to the Present Motion

 The defendants argue that the "claim" asserted in this motion is not a claim alleged in the plaintiffs' Complaint, and thus, the Court cannot entertain the motion, much less grant the relief sought. More specifically, the defendants argue that the Complaint states that the defendants violated the FLSA by withholding one week's pay from them, and thereby depriving the plaintiffs of minimum wages for that week. However, in the instant motion, the plaintiffs seem to argue that they are entitled to liquidated damages as provided in the FLSA for five weeks in which they were paid late. For that reason, the defendants argue that the plaintiffs have failed to plead the claim raised in the instant motion, and that the claim pleaded in the Complaint has been abandoned. For the following reasons, the Court disagrees with the defendants.

 "Federal pleading is by statement of claim, not by legal theory." Newman v. Silver, 713 F.2d 14, 15 n. 1 (2d Cir. 1983); Fed. R. Civ. P. 8(a); see also Gins v. Mauser Plumbing Supply Co., 148 F.2d 974, 976 (2d Cir.1945) (Clark, J.) ("particular legal theories of counsel yield to the court's duty to grant the relief to which the prevailing party is entitled, whether demanded or not"). The plaintiffs have pleaded a claim for a violation of the FLSA, 29 U.S.C. § 201 et seq. The fact that the Complaint states one week and the motion states five weeks for the time frame of the alleged violation is irrelevant to the claim, as it does not change the issue raised, to wit, whether the City violated the FLSA when it unilaterally changed to a biweekly payment system. This seeming discrepancy in the claims as pleaded and argued relates solely to the amount of damages potentially available to the plaintiffs if they prevail.

 Fed. R. Civ. P. 54(c) provides that "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings." Pursuant to the Federal Rules, the "one week""five weeks" discrepancy is irrelevant to the issue of whether the issue pleaded in the Complaint and that argued in the instant motion are dissimilar. Accordingly, the defendants claim that the plaintiffs abandoned the claim asserted in the Complaint by raising a different claim in the instant motion is of no moment.

 B. Standard for a Summary Judgment Motion

 The standard for granting a motion for summary judgment is well-settled. Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. See, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e). There must be more than a "metaphysical doubt as to the material facts." Delaware & Hudson Rwy. Co. v. Conrail Corp., 902 F.2d 174, 178 (2d Cir. 1990), quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "In considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994), quoting 10A C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2721 at 40 (2d ed. 1983). However, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Azrielli, 21 F.3d at 517. Any assessments of credibility and all choices between available inferences are matters to be left for a jury, not matters to be decided by the Court on summary judgment. Id. ; See, e.g., Fed. R. Civ. P. 56(e), 1963 Advisory Committee Note. "Only when reasonable minds could not differ as to the import of the evidence is summary judgement proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991). It is with the foregoing standards in mind that the Court turns to the issues presented.

 C. Collateral Estoppel

 It is the plaintiffs' position that the defendants must be precluded from relitigating the propriety of the City's change of the pay period, as that issue was already decided by the state courts. The defendants, without elaboration, state that this case raises a completely different claim from that raised in the state court, and thus, collateral estoppel does not preclude ...

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