Prior to that
date, plaintiff never requested that she be placed on no-work status,
allegedly because she was not aware of how such a request was made.
(Defs. Rule 56.1 Stmt. ¶ 11.) Plaintiff contends that when she
inquired about no-work status, she was informed by her union
representative that no policy existed. (Capasso Dep. at 42-43.)
In early 1999, pursuant to Order 99-06, O'Donnell designated the
authority to Deputy Chief Corcoran and Assistant Chief Coppola to
determine whether to grant no-work status to individual police officers.
(Defs. Rule 56.1 Stmt. ¶ 11.) Corcoran testified that the only
guidelines used to make such a determination are contained in Order 99-06
(5)(g). Upon receiving a request for no-work status from an officer or
the Police Benevolence Association, Coppola would review the Daily
Absentee Report and, together with Corcoran, make a determination with
respect to the request. (Corcoran Dep. at 29; Coppola Dep. at 25-26, 29.)
The Daily Absentee Report contains, inter alia, the name of the
employee, the sick reporting location, an indication as to whether the
employee received an investigatory phone call and the nature of the
injury or illness.
Plaintiff filed the instant action on July 12, 2000. Plaintiff argues
that Order 99-06 requires plaintiff to remain at her residence
twenty-four hours a day, seven days a week unless permission to leave is
granted by the Communications Desk Supervisor. To the extent that
plaintiff is confined to her home in excess of her normal tour of duty,
plaintiff alleges that she is entitled to overtime pay under the FLSA.
(Am. Complt. ¶¶ 18-25.) Plaintiff further alleges that Order 99-06 is
facially unconstitutional and that, with respect to no-work status,
defendants treated plaintiff differently from similarly situated MTA
police officers in violation of the Fourteenth Amendment and the NYSHRL.
(Id. ¶¶ 26-47.) Finally, plaintiff contends that defendants'
confinement policy caused her severe mental, emotional and physical
distress, in violation of FELA. (Am. Complt. ¶¶ 48-61.)
I. Summary Judgment Standard
Defendants move for summary judgment pursuant to FED. R. CIV. P. 56.
Summary judgment may be granted "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." FED. R. CIV. P. 56(c). The burden rests on the moving
party to demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ticali v. Roman
Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 254 (E.D.N.Y. 1999). A
genuine factual issue exists if there is sufficient evidence favoring the
nonmovant for a reasonable jury to return a verdict in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ticali, 41 F.
Supp. 2d at 254. In deciding whether summary judgment is appropriate, the
court resolves all ambiguities and draws all permissible factual
inferences against the movant. See Anderson, 477 U.S. at 255. Summary
judgment is warranted when the nonmovant has no evidentiary support for
an essential element on which it bears the burden of proof Celotex, 477
U.S. at 322-23; Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022 (2d
II. FLSA Overtime Claim
The FLSA was enacted to ensure that employees are fairly compensated.
See Reich v. New York City Transit Auth.,
45 F.3d 646 (2d Cir. 1995). The
statute requires that employers pay overtime at a rate of not less than
one and one-half times the employee's regular rate for hours worked in
excess of forty per week. See 29 U.S.C. § 207 (a). Compensable "work"
under the FLSA is defined as "physical or mental exertion (whether
burdensome or not) controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer and his
business." Holzapfel v. Town of Newburgh, 145 F.3d 516, 522 (2d Cir.
1998) (quoting Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123,
321 U.S. 590, 598 (1944)).
As an initial matter, plaintiff argues that the determination of what
constitutes "work" is an issue of fact to be resolved by the factfinder.
However, the Second Circuit has stated that "whether plaintiff is
entitled to overtime pay is a mixed question of law and fact." Id. at
521. The first issue to address is whether the alleged activity could
potentially constitute "work" under the FLSA. This is an issue of law to
be determined by the trial judge. See id. ("the trial judge [is]
responsible for determining as a matter of law whether plaintiff's
activities could potentially constitute `work.'"); see also Monserrate
v. City of New York, No. 99 Civ. 12173, 2000 WL 1741673, at *1 (S.D.N Y
Nov. 27, 2000). Once decided, the factfinder must "decide as a question
of fact, not only how much of plaintiff's time . . . [falls] within the
court's definition of "work' and would be compensable, but also how much
of that time was spent with the employer's actual or constructive
knowledge." Holzapfel, 145 F.3d at 521. Accordingly, this Court is
required to determine, as a matter of law, whether plaintiff's alleged
time at her sick location constitutes compensable "work" under the FLSA.
Plaintiff alleges that she was required by Order 99-06 to remain in her
home at all times. Plaintiff argues that the time confined to her home
constitutes compensable "work" under the FLSA because it was required by
the MTA and because it primarily served defendant's interests in managing
their sick leave policy. In Monserrate, the court confronted a nearly
identical situation. There, police officers employed by the City of New
York were afforded unlimited paid sick leave provided that they remained
in their homes for the entire twenty-four hour work day associated with
their shifts. See Monserrate, 2000 WL 1741673, at *1. The court adopted
the reasoning advanced by the Sixth and Seventh Circuits in concluding
that the time expended at home pursuant to the sick leave policy was not
compensable "work." See id.; Aiken v. City of Memphis, 190 F.3d 753 (6th
Cir. 1999); Debraska v. City of Milwaukee, 189 F.3d 650 (7th Cir. 1999).
In Debraska, the court held that "sick and injured officers are not fit
to work, are not `engaged to wait' at home for work, and therefore are
not working." 189 F.3d at 651. The court in Aiken went one step further
and considered with the definition of "work" in 29 C.F.R. § 553.22 1
(c)-(d) supported the plaintiffs' claims:
29 C.F.R. § 553.221 (c) provides that "[t]ime
spent away from the employer's premises under
conditions that are so circumscribed that they
restrict the employee from effectively using the time
for personal pursuits also constitutes compensable
hours of work." . . . The court held that requiring
the plaintiffs to remain at home on sick days was not
"so onerous as to prevent employees from effectively
using the time for personal pursuits." Aiken, 190 F.3d
Monserrate, 2000 WL 1741673, at *2.