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holding that the "window of correction is not available to employers who exhibit no intention of paying the relevant employees on a salary basis" (citing Klem, 208 F.3d at 1092)
Summary of this case from Torres v. Gristede's Operating Corp.Opinion
91 Civ. 2567 (JFK), 91 Civ. 7343 (JFK), 91 Civ. 7755 (JFK).
September 24, 2001
Bernstein Lipsett, Of Counsel: Jules Bernstein, Linda Lipsett, Washington, D.C., ROBERT N. FELIX, ESQ., New York, New York, For Plaintiffs in KELLY v. CITY OF NEW YORK.
Bernstein Lipsett, Of Counsel: Jules Bernstein, Linda Lipsett, Washington, D.C., Garber, Klein Nelson, Lake Success, New York, Of Counsel: Alan M. Nelson, For Plaintiffs in ABRAMO v. CITY OF NEW YORK.
Bernstein Lipsett, Of Counsel: Jules Bernstein, Linda Lipsett, Washington, D.C., Garber, Klein Nelson, Lake Success, New York, Of Counsel: Alan M. Nelson, For Plaintiffs in MERINGOLO v. CITY OF NEW YORK.
MICHAEL D. HESS, Corporation Counsel of the City of New York, Of Counsel: Marilyn Richter, New York, New York, For Defendants in KELLY v. CITY OF NEW YORK, ABRAMO v. CITY OF NEW YORK, and MERINGOLO v. CITY OF NEW YORK.
OPINION and ORDER
Before the Court are motions, pursuant to Fed.R.Civ.P. 59(e), Fed.R.Civ.P. 60(b)(6), and Local Civil Rule 6.3, for reconsideration of this Court's August 15, 2000 Opinion granting summary judgment to the Defendants in each of the above three cases. For the reasons stated below, Plaintiffs' motion for reconsideration in Kelly v. City of New York, 91 Civ. 2567 ("Kelly") is denied. Plaintiffs' motions for reconsideration in Abramo v. City of New York, 91 Civ. 7343 ("Abramo"), and Meringolo v. City of New York, 91 Civ. 7755 ("Meringolo"), are granted, but, after reconsideration, the Court adheres to its earlier decisions.
BACKGROUND
The Plaintiffs in Kelly are or were employed as Captains and "other positions" in the New York City Police Department ("NYPD") during some or all pay periods from April 15, 1988 through June 16, 1998. Plaintiffs inAbramo, are or were employed as Sergeants and "other positions" in the NYPD during some or all pay periods from April 15, 1988 through June 16, 1998. Plaintiffs in Meringolo are or were employed as Corrections Captains by the Defendant New York City Department of Correction ("DOC") during some or all pay periods from November 15, 1988 through the present. The Plaintiffs brought these cases seeking unpaid overtime payments to which they felt they were entitled under the Fair Labor Standards Act ("FLSA").
On November 28, 1995, Judge Kevin Thomas Duffy issued decisions in each of these cases, granting Plaintiffs' motions for partial summary judgment on the issue of liability in light of certain admissions made by the Defendants. See Meringolo v. City of New York, 908 F. Supp. 160, 169 (S.D.N.Y. 1995); see also Abramo v. City of New York, 1995 WL 702352 (S.D.N.Y. Nov. 28, 1995); Kelly v. City of New York, 1995 WL 702350 (S.D.N.Y. Nov. 28, 1995). On February 19, 1997, the Supreme Court decidedAuer v. Robbins, 519 U.S. 452 (1997), which established that Defendants' admissions in these cases were no longer dispositive on the issue of liability. As a result, in an Order dated May 11, 1998, the November 28, 1995 decisions were vacated and this Court ordered discovery to resume regarding the issue of whether the Plaintiffs were compensated in a fashion which exempted them from FLSA overtime regulations.
These cases were reassigned from Judge Duffy to this Court on September 10, 1996.
After the completion of this discovery, Plaintiffs in each case again filed motions for partial summary judgment on the issue of liability under the FLSA; Defendants cross-moved for summary judgment, seeking dismissal of each of the three Complaints. In an Opinion and Order dated August 15, 2000, this Court denied Plaintiffs' motions and granted Defendants' motions for summary judgment. See Kelly v. City of New York, 2000 WL 1154062 (S.D.N.Y. Aug. 15, 2000) ("August 15, 2000 Opinion"). In the motions now before the Court, Plaintiffs seek to amend or vacate the August 15, 2000 Opinion, arguing that there has been an intervening change in controlling law.
Plaintiffs initially sought to stay the judgment in these cases pending the outcome of an appeal of Yourman v. Giuliani, 91 Civ 2197 (LAP), 1999 WL 799803 (S.D.N.Y. Oct. 7, 1999), on which this Court relied in its August 15, 2000 Opinion. On October 2, 2000, the Second Circuit issued its Opinion, reversing Yourman in part, vacating the judgment and remanding for further proceedings. See Yourman v. Giuliani, 229 F.3d 124 (2d Cir. 2000). On October 20, 2000, this Court issued an Order deeming Plaintiffs' Motions for a stay withdrawn and granting Plaintiffs leave to file motions for reconsideration in light of the Second Circuit's Opinion in Yourman.
DISCUSSION
1. EXEMPT STATUS UNDER THE FLSA: THE SALARY BASIS TESTThe FLSA requires covered employers to pay their employees overtime wages, at the rate of time and a half, for hours worked in excess of 40 hours worked in a single week. See 29 U.S.C. § 207. Under the FLSA, however, employees who are "employed in a bona fide executive, administrative, or professional capacity . . . as such terms are defined and delimited . . . by regulations of the Secretary [of Labor]" are exempt from this overtime requirement. See 29 U.S.C. § 213 (a)(1). The Secretary of Labor's regulations provide, in pertinent part, that for an employee to be exempt from the overtime provisions as "a bona fide executive" the employee must be paid on a "salary basis." 29 C.F.R. § 541.1 (f). The regulations provide that an employee will be considered to be paid on a salary basis:
Because the FLSA is a remedial statute, this exemption is to be narrowly construed and the employer bears the burden of showing that the exemption applies to its employees. See Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991) (citations omitted); Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 250 (S.D.N.Y. 1997).
The regulations establish both a salary test and a duties test for determining whether an employee is employed "in a bona fide executive, administrative or professional capacity." 29 C.F.R. § 541.1. However, only the second element of the salary test is at issue here, requiring that the employee be paid on a "salary basis." The first element of the salary test requires that the exempt employee receive no less than a specified level of compensation.
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, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to . . . exceptions the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked . . . [A]n employee need not be paid for any workweek in which he performs no work.
29 C.F.R. § 118 (a).
In Auer v. Robbins, 519 U.S. 452 (1997), the Supreme Court announced the proper standard for determining whether an employee's compensation is "subject to reduction" and therefore fails to satisfy the salary-basis test: Exempt status should be denied "when employees are covered by a policy that permits disciplinary or other deductions in pay 'as a practical matter.'" 519 U.S. at 461. That standard is met "if there is either an actual practice of making such deductions or an employment policy that creates a 'significant likelihood' of such deductions." See id. "[E]mployees whose pay is adjusted for disciplinary reasons do not deserve exempt status because true . . . 'executive, administrative, or professional' employees are not 'disciplined' by piecemeal deductions from their pay." See id. at 456.
This interpretation of the "salary basis" test was set forth by the Secretary of Labor in an amicus brief filed at the request of the Supreme Court. The Court held that, because the Secretary's interpretation was not "plainly erroneous or inconsistent with the regulations," it was controlling. See Auer, 519 U.S. at 461.
"A finding of 'significant likelihood' pursuant to Auer requires the existence of a 'clear and particularized policy — one which 'effectively communicates' that deductions will be made in specified circumstances." Ahern v. County of Nassau, 118 F.3d 118, 121 (2d Cir. 1997) (quoting Auer) (emphasis in the original).
Not all impermissible deductions result in loss of exempt status. If an impermissible deduction "is inadvertent, or is made for reasons other than the lack of work, the exemption will not be considered to have been lost if the employer reimburses the employee for such deductions and promises to comply in the future." 29 C.F.R. § 541.118 (a)(6). This so — called window of correction is not available to employers who exhibit no intention of paying the relevant employees on a salary basis, however. See Klem v. County of Santa Clara, 208 F.3d 1085, 1092 (9th Cir. 2000).
Plaintiffs in the instant cases maintain that their compensation was "subject to reduction" during the relevant time periods in violation of the salary basis test, alleging that there were numerous instances in which correction captains and NYPD sergeants, lieutenants, captains and deputy inspectors suffered disciplinary split week suspensions and concomitant reductions in pay in violation of the salary-basis test. In its August 15, 2000 Opinion, following Auer and Ahern v. County of Nassau, 118 F.3d 118, 121-22 (2d Cir. 1997), this Court found that neither the NYPD nor the DOC had "clear and particularized" employment policies which effectively communicated that there was a significant likelihood that improper deductions would be made from the Plaintiffs' pay. See 2000 WL 1154062 at *8, *10. The Court also determined that neither the NYPD nor the DOC employed actual practices of making improper deductions from Plaintiffs' salaries, and accordingly granted summary judgment for the Defendants in all three cases. See id. at *27.
In determining that there was no actual practice of making improper deductions, this Court relied in part on Judge Preska's decision inYourman v. Giuliani, 1999 WL 799803 (S.D.N.Y. Oct. 7, 1999), a case which has since been reversed, in part, by the Second Circuit. See Yourman v. Giuliani, 229 F.3d 124 (2d Cir. 2000), cert. denied, 121 S.Ct. 1362, 149 L.Ed.2d 291 (2001). Plaintiffs now argue that since the Second Circuit has rejected Judge Preska's actual practice analysis, this Court should reconsider and then vacate or amend its earlier decisions.
2. STANDARDS FOR GRANTING MOTIONS FOR RECONSIDERATION
Plaintiffs have brought the instant motions for reconsideration pursuant to Fed.R.Civ.P. 59(e) ("Rule 59(e)"), Fed.R.Civ.P. 60 (b)(6) ("Rule 60(b)(6)"), and Rule 6.3 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 6.3"). Since motions pursuant to Rule 59(e) and Local Rule 6.3 must be brought within 10 days after entry of judgment, and district courts do not have the power to extend this deadline, see Fed.R.Civ.P. 6(b), the Court finds that Plaintiffs' motions pursuant to these Rules are untimely. Plaintiffs' motions pursuant to Rule 60 (b)(6) are timely, however, since such motions must simply be made "within a reasonable time," Fed.R.Civ.P. 60(b), and the instant motions were filed within the time frame established by this Court.
Defendants in all three cases maintain that Plaintiffs' Rule 60(b)(6) motions are nevertheless improper because an intervening change in controlling law does not provide a basis for relief under Rule 60 (b)(6). The Court disagrees. Federal Rule 60(b)(6) provides that a "court may relieve a party . . . from a final judgment, order or proceeding for . . . any . . . reason justifying relief," Fed.R.Civ.P. 60(b)(6), providing the movant can demonstrate "extraordinary circumstances." DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994). In the interest of securing the finality of litigation, courts are reluctant to revisit long closed judgments, even in the face of a change in the controlling law, see DeWeerth, 38 F.3d at 1272, and "intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)," Agostini v. Felton, 521 U.S. 203, 239 (1997). Under certain circumstances, however, such relief is warranted. See Cornell v. Nix, 119 F.3d 1329, 1332 (8th Cir. 1997); see also DeMaio v. Mitchell, 93 Civ. 1229, 1998 WL 9226 at *1 (N.D.N.Y. Jan. 7, 1998) (noting that one of the grounds which justify reconsideration under Rule 60(b)(6) is an intervening change in controlling law).
The Second Circuit's opinion in Yourman, issued barely two months after this Court's August 15, 2000 Opinion, immediately called into question the validity of some aspects of that Opinion. The Yourman Court, while not changing the law relating to exemptions from FLSA overtime provisions, detailed the kind of analysis courts should undertake in order to determine whether employers were complying with the law. Under the circumstances it is appropriate for this Court to review its decisions to determine whether, in light of Yourman, its original analysis was sufficiently complete. See Cespedes v. Coughlin, 969 F. Supp. 254, 255 (S.D.N.Y. 1997) (granting relief pursuant to Rule 60(b)(6), in light of two recent Second Circuit opinions which "cast serious doubt upon the continued validity" of the earlier opinion). Accordingly, this Court will consider Plaintiffs' motions pursuant to Rule 60(b)(6).
3. THE SECOND CIRCUIT'S DECISION IN YOURMAN v. GIULIANI
Plaintiffs in Yourman v. Giuliani, employees in managerial positions at various New York City agencies, brought that action seeking unpaid overtime compensation to which they felt they were entitled under the FLSA. In a decision dated October 7, 1999, Judge Preska granted summary judgment for the Defendants in that case, finding, inter alia, that there was no actual practice of imposing improper pay deductions since impermissible deductions were imposed on a very small percentage of the employees which Defendants had classified as exempt.
On appeal, the Second Circuit found that, while the percentage of improper deductions imposed was one factor to consider when determining whether an actual practice of making improper pay deductions existed, it was not enough to simply consider that one factor. The Circuit Court noted that if impermissible pay deductions are imposed only sporadically, their imposition upon a relatively high percentage of exempt employees does not necessarily indicate that an employer has an actual practice of imposing such deductions. Similarly, the Court of Appeals noted that an employer could have an actual practice of imposing improper pay deductions without imposing those deductions on a large proportion of its supposedly exempt workforce. See Yourman, 229 F.3d at 130.
According to the Second Circuit, an employer who regularly docked the pay of employees arriving five hours late for work could have more of an "actual practice" of improper deductions than an employer who sporadically docked the pay of employees arriving five minutes late, even though the second employer might have docked the pay of a far greater percentage of his exempt workforce. See Yourman, 229 F.3d at 130.
In order to determine whether an employer has classified employees as exempt from overtime pay regulations while not paying those employees on a salary basis, the Second Circuit outlined several factors which, in addition to the percentage of employees suffering improper pay deductions, could be relevant to the existence of an actual practice of imposing impermissible deductions, including: "the number of times that other forms of discipline are imposed, the number of employee infractions warranting discipline, the existence of policies favoring or disfavoring pay deductions, and the degree of discretion held by the disciplining authority." Id. The Court of Appeals instructed the district court to consider all these factors on remand, in addition to any other factors the district court found relevant. Id. at 131.
The Plaintiffs in all three cases maintain that the Yourman Court found that the City's change in policy regarding compliance with FLSA regulations raised a genuine issue of material fact which precluded the grant of summary judgment, but this is a misreading of Yourman. While the Court of Appeals did find that in light of the citywide memorandum detailing the change of policy there might be a genuine issue of material fact, Yourman, 229 F.3d at 131, that fact concerned the issue of whether the district court's analysis should proceed on an agency-by-agency basis or on a citywide basis, an issue not presented in the instant cases. Judge Preska had found that the City's change in policy did not indicate that the earlier policy was in violation of the FLSA, and the Court of Appeals affirmed her determination that "there was no genuine issue of material fact as to the existence of an employment policy creating a "significant likelihood" of impermissible pay deductions." Id. at 128.
4. RECONSIDERATION OF THIS COURT'S AUGUST 15, 2000 OPINION IN LIGHT OF YOURMAN
Following Kelly v. City of Mount Vernon, 162 F.3d 765, 769 (2d Cir. 1998), this Court found that determinations regarding the exempt status of Plaintiffs in the instant cases must be made within each employment category, see 2000 WL 1154062 at *11, a finding which Yourman does not contradict. Therefore the Court will consider the claims of each category of Plaintiffs in turn.
A. Correction Captains
In its August 15, 2000 Opinion, this Court found that there were sixteen impermissible split week suspensions over a ten year period imposed on correction captains, involving roughly 0.2% of the number of employees in that employment category. Given this low percentage of impermissible deductions, in addition to other factors, this Court found that there was no actual practice in the DOC of imposing improper deductions on correction captains. See August 15, 2000 Opinion, 2000 WL 1154062 at *25. The Court did not rely solely on the mechanical calculation of the percentage of impermissible deductions, but, in light of Yourman, the Meringolo Plaintiffs' motion for reconsideration is granted, and the Court will now explicitly conduct the multi-factor analysis mandated by the Second Circuit.
Plaintiffs had alleged there were 45 improper deductions, but this Court found that all but sixteen fell within the exception which permits penalties imposed for "infractions of safety rules of major significance." 29 C.F.R. § 541.118.
According to the Court of Appeals, when determining whether a category of employees is exempt from FLSA overtime payment requirements, the "object of the inquiry [is to determine] whether the employer's practices reflect an 'objective intention' to pay its employees on a salaried basis." Yourman, 229 F.3d at 130. Courts should assess an employer's intent by analyzing all relevant factors, including the percentage of employees subject to impermissible pay deductions, "the number of times that other forms of discipline are imposed, the number of employee infractions warranting discipline, the existence of policies favoring or disfavoring pay deductions, and the degree of discretion held by the disciplining authority." Id. An analysis of these factors in the instant case reveals that the DOC did exhibit the intention of paying correction captains on a salaried basis and so this Court's grant of summary judgment was proper.
In Meringolo, the percentage of employees subjected to improper deductions was extremely small — a mere 0.2%. Furthermore, according to the sworn statement of William J. Fraser ("Fraser"), the Chief of Department of the DOC, correction captains were normally disciplined for minor rule infractions under the Command Discipline Directive; the penalties available under this directive did not include suspensions without pay or docking of salary. Fraser Decl. ¶ 7-8, 17. Cases involving serious allegations were adjudicated through the formal disciplinary process, at the conclusion of which the Commissioner of Correction determined guilt. No specific penalty was established for any specific misconduct, and the Commissioner had the discretion to set the appropriate penalty on a case by case basis. Id. at ¶ 6.
Command Discipline penalties include reprimands, loss of vacation days or compensatory time, revocation of permission to engage in outside employment, change of assignment and/or loss of a steady tour within the Command. Fraser Decl. Exhibit C, § V.
There was no policy at the DOC favoring disciplinary pay deductions, and, according to Fraser, the "overwhelming majority" of suspensions without pay were imposed not as a result of DOC mandates but as discretionary accommodations resulting from negotiations between the individual correction captains and the Department. Id. at ¶ 20. The Fraser declaration does not include actual numbers of different types of discipline imposed, but Plaintiffs do not dispute Defendants' contention that in the vast majority of cases requiring disciplinary action the penalties imposed did not violate the FLSA, and improper suspensions were imposed only under highly unusual circumstances.
Furthermore, in order to assess the employer's intent in this case, unlike in Yourman, one must consider the effect of 29 C.F.R. § 541.118 (a)(5), which provides that "[p]enalties imposed in good faith for infractions of safety rules of major significance will not affect the employee's salaried status." The DOC maintains that suspensions without pay were typically imposed or negotiated only in response to serious, safety-related misconduct, and therefore did not affect the exempt status of correction captains. See Fraser Decl. at ¶ 8. This Court ultimately found, contrary to Defendants' contentions, that sixteen of the forty-five suspensions identified by Plaintiffs did not properly fall under this exception.
The conduct which led to the suspensions, though reprehensible, did not pose a danger to the employer's property or to the safety of other employees in the manner contemplated by the exception.
Nevertheless, the Defendants' position that any violation of the DOC's rules has a potential safety impact on both inmates and the staff was not unreasonable, and, since the key to the inquiry before the Court is the determination of "whether the employer's practices reflect an 'objective intention' to pay its employees on a salaried basis,"Yourman, 229 F.3d at 130, the fact that the DOC reasonably believed that the suspensions did not violate the FLSA indicates that it did intend to comply with the appropriate regulations. Viewed in light of all the evidence, the existence of these sixteen isolated instances of impermissible deductions over a ten year period simply does not demonstrate that the Defendants did not intend to treat correction captains as exempt employees. As noted earlier, Defendants can preserve Plaintiffs' exempt status by reimbursing the sixteen individuals who suffered improper pay deductions and promising to comply with the regulations in the future. 29 C.F.R. § 541.118 (a)(6). While this window of correction is not available to employers who have a practice or policy of imposing improper pay deductions, see Klem, 208 F.3d at 1092, there is no evidence that Defendants in this case were merely attempting to "comply retroactively with the regulations, . . . thereby obtain[ing] an exemption for a class of employees that it actually never paid on a salaried basis." Id.
This view was shared by Judge Duffy, who wrote in an earlier Opinion in this case that "every policy promulgated by the DOC has a potential impact on the safety of prisoners and the correction officers themselves . . . . [A] violation of any rule, no matter how insignificant to a lay person, has the potential of causing a breach in the integrity of the safety of correctional institutions." Meringolo v. City of New York, 908 F. Supp. 160, 169 (S.D.N.Y. 1995).
Plaintiffs argue that this Court should, in light of the Secretary of Labor's amicus brief in Yourman, consider whether the existence of the DOC's policy permitting split-week suspensions without pay, although insufficiently particularized to effectively communicate to employees that deductions would be imposed in certain circumstances, is relevant in determining whether there exists an actual practice of imposing improper deductions. First of all, although courts owe deference to the Secretary's interpretation of his own regulations, see Auer, 519 U.S. at 461, the Secretary's brief does not constitute a change in controlling law. Nevertheless, the Court has considered the issue and has determined that, in the instant case, the fact that the DOC had a policy which theoretically exposed Correction Captains to impermissible pay deductions does not alter the foregoing analysis. Similarly, earlier statements made by Defendants to the effect that Plaintiffs were subject to the same disciplinary regime as applied to rank and file correction officers do not undermine the conclusion that there was no actual DOC practice of imposing improper deductions. The very fact that there were split-week suspensions without pay illustrates that DOC policy in effect at the time did not forbid such penalties; although there was a theoretical possibility of improper suspensions, the isolated instances in which such suspensions were imposed do not constitute an actual practice.
In this case, all the evidence before the Court supports the conclusion that the DOC did consider correction captains executive employees, and its practices clearly reflected an objective intention to pay Plaintiffs on a salaried basis. Minor infractions of DOC rules did not result in improper pay deductions. Plaintiffs were very rarely suspended without pay, and then only under circumstances in which there was a reasonable, if sometimes mistaken, belief on the part of the DOC that there had been an infraction of a safety rule of major significance. There was no pattern of impermissible deductions, and the majority of suspensions were imposed after negotiations with the correction captains or their lawyers. Since Plaintiffs have raised no genuine issue of material fact which could indicate that the DOC exhibited an intention to pay Correction Captains on a non-salary basis, the Court adheres to its earlier decision denying Plaintiffs' Motion for Summary Judgment on liability and granting Summary Judgment to the Defendants.
B. Police Sergeants
In its August 15, 2000 Opinion, this Court found that there were thirty-eight improper pay deductions over a ten year period imposed on NYPD sergeants, involving roughly 0.09% of the number of employees in that employment category. Given this low percentage of impermissible deductions, in addition to other factors, this Court found that there was no actual practice in the NYPD of imposing improper deductions on police sergeants. See August 15, 2000 Opinion, 2000 WL 1154062 at *19. Again, the Court did not rely solely on the mechanical calculation of the percentage of impermissible deductions, but, in light of Yourman, theAbramo Plaintiffs' motion for reconsideration is granted, and the Court will now explicitly conduct the multi-factor analysis mandated by the Second Circuit.
Plaintiffs had alleged there were sixty-four improper deductions, but this Court found that all but thirty-eight fell within the exception which permits penalties imposed for "infractions of safety rules of major significance." 29 C.F.R. § 541.118.
Considering the factors outlined in Yourman, it is clear that Defendants did exhibit an objective intention to pay Police Sergeants on a salaried basis. While the total number of improper suspensions was relatively high, the percentage of exempt employees suffering improper pay deductions, 0.09%, was even smaller than that in Meringolo. According to the sworn statement of Kevin Lubin, an Assistant Commissioner of the NYPD, "it is not the practice of the NYPD to suspend sergeants for minor violations. Such violations are normally dealt with by a warning, a reprimand or the loss of a few vacation days." Lubin Decl. ¶ 29. Suspensions are generally imposed only in instances where Sergeants are accused or found guilty of serious, safety-related misconduct, id. at ¶ 30, and, as in Meringolo, the majority of suspensions resulted from negotiations between the Sergeants involved and the NYPD. Had such agreements not been entered into, many of these cases would have resulted in termination. Id. at ¶ 35. While the Lubin declaration does not detail actual numbers of different types of disciplinary action imposed, it is clear that the total number of infractions warranting discipline was far greater than the number of cases resulting in suspensions.
Furthermore, the NYPD maintains that "serious misconduct by a sergeant is, given the nature of a sergeant's job duties, almost always safety-related," id. at ¶ 32, and argues that the cases in which sergeants faced split-week suspensions without pay fell under the exception for "[p]enalties imposed in good faith for infractions of safety rules of major significance." 29 C.F.R. § 541.118 (a)(5). The Court ultimately found that, in thirty-eight instances, the suspensions did not fall within that exception. Nevertheless, given the need to maintain a paramilitary chain of command within the NYPD, and given the negative effect that one sergeant's wrongdoing may have on relations between police and the public, it was not unreasonable for the NYPD to view these offenses, which included allegations of police brutality (resulting in the death of a prisoner), off-duty driving while intoxicated, and various criminal activities, as infractions of safety rules of major significance. The reasonableness of the NYPD's position is not relevant to determining whether the suspensions were proper, but it is relevant in assessing the NYPD's intent.
As the Second Circuit noted in Yourman, a relatively large number of sporadically imposed improper deductions does not necessarily establish that there is an actual practice of imposing such deductions. See Yourman, 229 F.3d at 130. In this case, all the evidence before the Court supports the conclusion that the NYPD did consider sergeants executive employees, and that its practices clearly reflected an objective intention to pay Plaintiffs on a salaried basis. Minor infractions of NYPD rules did not result in improper pay deductions. Plaintiffs were rarely suspended without pay, and then only under circumstances in which there was a reasonable, if sometimes mistaken, belief on the part of the NYPD that there had been an infraction of a safety rule of major significance. There was no pattern of impermissible deductions, and the majority of suspensions were imposed after negotiations with the sergeants or their lawyers. And, as has been noted, regulations provide a window of correction for employers who sincerely intended to treat employees as exempt but who, either inadvertently or for some reason other than the lack of available work, imposed improper pay deductions.See 29 C.F.R. § 541.118 (a)(6). Since Plaintiffs have raised no genuine issue of material fact which could indicate that the NYPD exhibited an intention to pay sergeants on a non-salary basis, the Court adheres to its earlier decision denying Plaintiffs' Motion for Summary Judgment on liability and granting Summary Judgment to the Defendants on the claims raised by sergeants.
Abramo Plaintiffs have also argued that the existence of a policy permitting improper pay deductions is relevant to the determination of whether the NYPD had an actual policy of imposing such deductions. For the reasons outlined above in the discussion of the Meringolo case, the Court rejects Plaintiffs' arguments.
C. Lieutenants
Although the Court considered the claims asserted on behalf of police lieutenants in its August 15, 2000 Opinion, it is not clear whether police lieutenants are included in either the Kelly case or in the Abramo case. Defendants maintain that the lieutenants have never sued, that nowhere in the Complaints in either case were any allegations regarding lieutenants made, and that the Court should therefore not address Plaintiffs arguments regarding police lieutenants. Indeed, Judge Duffy's decisions in Kelly and Abramo do not mention any plaintiff lieutenants. Plaintiffs, however, argue that, since the Complaint in Kelly provides that it was brought on behalf of captains "and other positions" and theAbramo Complaint provides that it is brought on behalf of sergeants and "other positions," claims on behalf of lieutenants could be addressed as part of either case. The Court will consider the claims presented on behalf of lieutenants as part of the Abramo case.In its August 15, 2000 Opinion, this Court found that there were six improper pay deductions over a ten year period imposed on NYPD lieutenants, a group which included between 829 and 1,072 employees. See August 15, 2000 Opinion, 2000 WL 1154062 at *21. Again, it is obvious from the evidence before the Court that these isolated instances of improper deductions do not indicate that the NYPD intended to treat its lieutenants as non-salaried employees. Lieutenants have greater and broader responsibilities than sergeants, see Beirne Decl. ¶ 8, and they are disciplined according to the same policies, under which they can receive penalties which include reprimands, the loss of vacation days or the loss of compensatory time. A very small proportion of lieutenants were subjected to impermissible suspensions; there was no pattern to the imposition of those suspensions except for the fact that, as was the case with the sergeants, the NYPD only suspended lieutenants for what were believed to be infractions of safety rules of major significance.
Plaintiffs had alleged there were ten improper deductions, but this Court found that four fell within the exception which permits penalties imposed for "infractions of safety rules of major significance." 29 C.F.R. § 541.118.
Defendants had argued that all ten of the suspensions imposed were proper under 29 C.F.R. § 541.118 (a)(5). After reviewing the record, and for the reasons discussed above with regards to police sergeants, the Court finds that this position, though mistaken, was reasonable. Six isolated instances of improper suspensions, imposed under the good faith belief that the lieutenants' conduct constituted infractions which would fall under the regulatory exception, cannot cast a doubt upon the NYPD's intent to treat lieutenants as executive employees. The NYPD should be permitted to utilize the window of correction provision of 29 C.F.R. § 541.118 (a)(6) to preserve the exempt status of police lieutenants. Accordingly, this Court finds that there is sufficient evidence before the Court to determine that NYPD "practices reflect an 'objective intention' to pay its employees on a salaried basis,"Yourman, 229 F.3d at 130. Since Plaintiff has not raised any genuine issues of material fact regarding this issue, this Court's grant of Summary Judgment for the Defendants in Abramo was proper with respect to claims on behalf of lieutenants.
D. Police Captains and Deputy Inspectors
In its August 15, 2000 Opinion, this Court found that only one Police Captain suffered an improper deduction in pay during the ten year period considered. As was the case in Auer, 519 U.S. at 462, the employee involved had been charged with misconduct which could have resulted in termination, and had negotiated an agreement which included a pay deduction but which preserved his pension. See August 15, 2000 Opinion, 2000 WL 1154062 at *13. Both the Supreme Court decision in Auer and the Second Circuit decision in Ahern clearly state that one improper deduction under unusual circumstances is insufficient to establish an actual practice of making improper deductions. See Auer, 519 U.S. at 462; see also Ahern, 118 F.3d at 121. The facts in Kelly are analogous to those in Auer, and this Court, expressly relying both on the Second Circuit's decision in Ahern and on the sworn statement by the Assistant Commissioner that the general practice of the NYPD was not to impose any discipline on Police Captains for minor infractions, found that there was no actual practice within the NYPD of improperly docking the pay of Police Captains or Deputy Inspectors.
Two allegedly improper deductions were found to be inadvertent and two were found to fall under the exception which permits penalties imposed for "infractions of safety rules of major significance." 29 C.F.R. § 541.118.
Since this Court did not rely on the methodology rejected by theYourman Court in its decision in Kelly, there has been no change in intervening law requiring reconsideration of this Court's August 15, 2000 Opinion in that case. The Court of Appeals in Yourman did not reverse the clear holdings of both Auer and Ahern that a single deduction under unusual circumstances does not constitute an actual practice of impermissible deductions, and Plaintiffs never even addressed Defendants' arguments that Auer and Ahern controlled. The complex analysis mandated by Yourman is necessary only in situations where the number of impermissible deductions makes it unclear whether there has been an actual practice of impermissible pay deductions.
The Court did compare the number of impermissible deductions to the number of employees, but only in dicta, noting that because of the low ratio of improper dockings the determination that there was no actual practice would stand even if the Court had erred in finding that two alleged instances of impermissible pay deductions fell within the exception for safety rules of major significance.
While, as Plaintiffs point out, actual deductions are not required under in order to find that an employee has lost his exempt status, that is only true if there is a "particularized policy" which "'effectively communicates' that deductions will be made in specified circumstances."Auer, 519 U.S. at 461. This Court has already held that there is no such policy in the NYPD, and the Second Circuit upheld similar reasoning by Judge Preska. See Yourman, 229 F.3d at 129. Absent a particularized policy mandating impermissible deductions, Plaintiffs in Kelly must show that there is an actual practice of docking employees' pay improperly, something which, under Auer and Ahern, the Kelly Plaintiffs have not shown.
Since there has been no change in the controlling law, and Plaintiffs cite no other compelling reason to vacate this Court's August 15, 2000 Opinion, the Kelly Plaintiffs' motion pursuant to Rule 60(b)(6) is hereby denied.
5. PLAINTIFFS' ADDITIONAL ASSERTION THAT DISCOVERY SHOULD BE EXTENDED
Plaintiffs also argue that, following Yourman, they are entitled to conduct discovery dating back to April 1986, the date when the FLSA was first held applicable to public sector employers. The Court disagrees. While the Second Circuit did hold that under the circumstances presented in Yourman such discovery was relevant to establishing whether there was an actual practice of imposing improper pay deductions, see Yourman, 229 F.3d at 132-33, it did not mandate that such discovery be conducted in every case. Discovery in this case has already spanned ten years, much longer than the two years of discovery considered in Yourman, and long enough to provide enough evidence for this Court to make a determination regarding the existence of an actual practice of improper pay deductions. Throughout the long course of this litigation, the Plaintiffs, familiar with the litigation in Yourman, knew that they could request this additional discovery; they chose not to do so, illustrating that even they felt that this additional information was not particularly probative in these cases. Permitting the additional discovery would only serve to extend this litigation. Since the Court has been able to analyze fully the Defendants' policies and practices given the extensive discovery already before it, and since Plaintiffs never sought this discovery before, the Court declines to reopen discovery now.
CONCLUSION
For the reasons outlined above, Plaintiffs' motion for reconsideration in Kelly v. City of New York, 91 Civ. 2567 ("Kelly") is denied. Plaintiffs' motions for reconsideration in Abramo v. City of New York, 91 Civ. 7343 ("Abramo"), and Meringolo v. City of New York, 91 Civ. 7755 ("Meringolo"), are granted, but, after reconsideration, the Court adheres to its earlier decisions which denied Plaintiffs' Motions for Partial Summary Judgment and granted Defendants' Motions for Summary Judgment.
SO ORDERED.