In order to be subject to disciplinary deductions as a practical matter, so that the § 213(a)(1) exemption does not apply, there must be "either an actual practice of making such deductions [for disciplinary infractions] or an employment policy that creates a significant likelihood of such deductions." Auer, 117 S. Ct. at 911; Ahern, 118 F.3d at 121. In order to create a significant likelihood of disciplinary deductions, there must be a "clear and particularized policy-one which effectively communicates that deductions will be made in specified circumstances." Ahern, 118 F.3d at 121 (quoting Auer, 117 S. Ct. at 911) (internal quotation marks omitted).
In Marden's case, there was no actual practice of making deductions from the salary of high ranking officers based on disciplinary infractions. Although plaintiff contends that disciplinary deductions have been made in the past, plaintiff has not established that such deductions were made in the case of high ranking police officers such as Marden.
The WCPA does provide that officers may be subject to a variety of disciplinary measures, including suspensions without pay. But Ahern teaches that such a general policy provision, which applies to all officers, is not sufficient to effectively communicate a significant likelihood, as required under the salary basis test, that officers of Marden's grade would be subject to deductions for specific offenses. Ahern, 118 F.3d at 122. That the pay docking provision applies to all police officers and that it is only one of many disciplinary measures means that it might not be applied to employees in plaintiff's class. Auer, 117 S. Ct. at 911. Indeed, there is no evidence that the pay docking provision has ever been applied by the Town to a high ranking police officer.
Notwithstanding the absence of an actual practice of pay docking of high level police officers, and the generality of the WCPA provision, Marden argues that his disciplinary proceeding effectively communicated to him that he faced a genuine possibility of suspension without pay. The Town Board, in notifying him of the disciplinary charges, stated that suspension without pay was among the penalties that could be imposed. Moreover, the Town Supervisor submitted a legal memorandum to the Board that arguably contemplated the possibility of a suspension without pay. Thus, plaintiff contends, aside from past practice and the WCPA, he was clearly subject to deductions in pay through an unpaid disciplinary suspension because that penalty was one that the Town Board contemplated and could, in fact, impose.
This argument, however, conflates the two separate formulations of the salary basis test. Under the first formulation, employees are nonexempt if there is an actual practice of assessing pay deductions based on disciplinary infractions. "One incident of pay docking is insufficient to establish any such practice." Ahern v. Nassau, 118 F.3d at 121. It follows, then, that one instance in which an unpaid disciplinary suspension might have been considered certainly does not constitute an "actual practice" of making such deductions.
The other formulation of the salary basis test requires that there be a policy that communicates to plaintiff that there is a "significant likelihood" of pay docking. Auer, 117 S. Ct. at 911. The fact that pay docking may have been one of the penalties contemplated during Marden's disciplinary proceeding does not establish the existence of any such policy. Furthermore, the Board's statement, in its detailing of the charges, that suspension without pay was a possible penalty, and the Town Supervisor's memorandum to the same effect both essentially recited the language of the WCPA. In sum, there was neither an actual practice of pay docking for officers in Marden's grade, nor a particularized policy that effectively communicated a significant likelihood of pay docking for specified disciplinary infractions.
For the reasons stated, plaintiff's motion for partial summary judgment is denied and defendant's motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment in favor of the defendant.
Barrington D. Parker, Jr.
Dated: White Plains, New York
January 7, 1998