The opinion of the court was delivered by: David G. Larimer United States District Judge
The three named plaintiffs, on behalf of a class alleged to be similarly situated, bring this action against defendants, Unity Health Systems and two of its officers (collectively "Unity"), alleging that Unity violated the Fair Labor Standards Act, 29 U.S.C. §201 et seq. ("FLSA") and New York Labor Law §650 et seq., by misclassifying the plaintiffs as exempt "bona fide professionals" and failing to pay them for overtime hours at the requisite rate. The plaintiffs were employed by Unity as Primary Therapists ("PT"s), in the area of mental health counseling and therapy.
On the same day it answered the complaint, Unity moved for summary judgment pursuant to Fed. R. Civ. Proc 56, on the grounds that the undisputed facts establish that the plaintiffs were correctly classified as exempt under the FLSA. Plaintiffs oppose the motion, and have cross moved to strike certain evidence submitted by Unity in its reply. While no discovery has taken place, the material facts are undisputed. For the reasons set forth below, I find that the undisputed facts establish that the plaintiffs were correctly classified as learned professionals for purposes of the FLSA and New York Labor Law, and that Unity's reply papers and supporting evidence were in response to new issues raised by plaintiff in its responding papers. Unity's motion for summary judgment (Dkt. #5) is therefore granted, and plaintiffs' cross motion to strike (Dkt. #21) is denied.
I. Unity's Motion for Summary Judgment
Unity argues that the undisputed evidence satisfies the two-prong test for determining whether an individual is an exempt, "bona fide professional" under the FLSA.*fn1 That test requires that: (1) the employee must be paid on a salary basis, at least $455 per week (as defined by FLSA guidelines); and (2) to be considered a "learned professional," the employee's "primary" duty must be "the performance of work . . . [r]equiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction . . ." 29 C.F.R. §§ 541.300, 541.301 (defining the "learned professional" exemption).
In order to be considered "salaried" employees pursuant to the FLSA, employees must receive the same pay each period "which amount is not subject to reduction because of variations in the quality or quantity of work performed." 29 C.F.R. §541.602. Unity contends that the first prong of the learned professional test -- the salary prong -- is easily met for the plaintiffs, because they were compensated on a salary basis, above the statutory threshold dollar amount. In support of this contention, Unity has submitted time and payment records for each of the plaintiffs, which demonstrate that, with the exception of one employee's FLSA-compliant medical leave, plaintiffs received the same pay each period, regardless of the quality or quantity of work performed, in excess of $455 per week.
Plaintiffs do not dispute that they were paid the same amount regardless of the quantity or quality of work performed, or that their salaries meet and exceed the statutory threshold amount: rather, they contend that if had they worked fewer than forty hours, and in the absence of any already-earned paid time off ("PTO"), Unity theoretically might have paid them less than usual. Plaintiffs also argue that certain communications from Unity to the plaintiffs, such as pay stubs which listed "hourly rates" and a "Personnel Action Notification" announcing a raise that contained references to "[y]our new hourly rate of pay and annual salary," are indicative of an hourly rate of pay -- or at least create a question of fact as to whether plaintiffs were salaried or hourly employees.
Unity maintains that these "hourly rate" references are not evidence that employees were non-salaried, or that their pay was subject to a reduction if the plaintiffs worked fewer than forty hours per week. Rather, Unity characterizes its simultaneous use of the terms "hourly rate" and "annual salary" as the result of an "administrative convenience" employed by Unity, whereby annual salaries are converted to hourly rates internally, solely for administrative purposes.
Despite Unity's use of potentially confusing references to an "hourly rate" in its payroll statements to the plaintiffs, the focus of the FLSA, and this Court's inquiry, is whether the plaintiffs were actually paid on a salary or hourly basis, and not how they may have interpreted their employer's contemporaneous use of "salary" and "hours" terminology. The time and payroll records submitted by Unity, the completeness and veracity of which are undisputed, conclusively establish that the plaintiffs, at all relevant times, were -- to the penny -- paid precisely the same amount every pay period, "which amount [was] not [reduced] because of variations in the quality or quantity of work performed." 29 C.F.R. §541.602. While plaintiffs may question whether Unity might theoretically have been able to reduce their pay had they worked fewer than forty hours, there is no evidence that Unity ever retained, exercised, or purported to have any such authority or intent, and rank speculation is insufficient to create a material issue of fact. The undisputed evidence indicates that the plaintiffs were, in fact, salaried employees, and thus, the first prong of the bona fide professional test has been met.
The "advanced knowledge" requirement for learned professionals requires that the employee's "primary" duty be "the performance of work . . . [r]equiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction." 29 C.F.R. §541.300(a)(2)(I).
Plaintiffs claim that their primary duties as PTs did not require knowledge in an advanced field, because they were unable to make medical diagnoses, had limited input into treatment plans, and could not implement treatment plans by themselves. They state that, at most, a PT prepared initial assessments from which doctors or psychiatrists could make diagnoses, and made suggestions to doctors and psychiatrists about treatment plans. Plaintiffs emphasize that their authority was limited to assessment and proposal, and that their suggestions could be altered, rejected or even ignored by treating physicians and psychiatrists, or overruled by supervisors at weekly meetings. Plaintiffs flatly contend that their lack of authority to make diagnoses or dictate treatment plans takes them out of the realm of "learned professional."
As Unity points out, however, the absence of authority to diagnose or unilaterally prescribe a treatment plan is not determinative of whether an employee is a "learned professional," and the duties of PTs undisputedly were not limited solely to assessment and proposal, but included direct patient contact and leadership of group therapy sessions. The proper focus of the analysis is not upon the authority given to the employee, but whether the employee's primary duties, whatever they may be, require "knowledge of an advanced type in a field . . .customarily acquired by a prolonged course of specialized intellectual instruction."29 C.F.R. §541.300(a)(2)(I). On this basis, the learned professional exemption has been applied by courts to a number of medical and social-services jobs not involving diagnosis and sole control over treatment, such as school athletic trainers who help to rehabilitate injuries, nurses, and a truancy prevention case manager who assesses children and families and recommends ...