653 F.3d 104 (2nd Cir. 2011), 09-3435-cv, Mullins v. City of New York

Docket Nº:09-3435-cv.
Citation:653 F.3d 104
Opinion Judge:PER CURIAM:
Party Name:Edward D. MULLINS, et al., Plaintiffs-Appellants, v. CITY OF NEW YORK, Defendant-Appellee.
Attorney:Stephen P. Younger (Catherine A. Williams, A. Leah Vickers, Patterson Belknap Webb & Tyler LLP, New York, NY; Gregory K. McGillivary, Woodley & McGillivary, Washington D.C.; Andrew Quinn, Quinn & Mellea, White Plains, NY, on the brief), Patterson Belknap Webb & Tyler, LLP, New York, NY, for Plain...
Judge Panel:Before: NEWMAN, CALABRESI, KATZMANN, Circuit Judges.
Case Date:August 05, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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653 F.3d 104 (2nd Cir. 2011)

Edward D. MULLINS, et al., Plaintiffs-Appellants,


CITY OF NEW YORK, Defendant-Appellee.

No. 09-3435-cv.

United States Court of Appeals, Second Circuit.

August 5, 2011

Argued: Nov. 22, 2010.

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Stephen P. Younger (Catherine A. Williams, A. Leah Vickers, Patterson Belknap Webb & Tyler LLP, New York, NY; Gregory K. McGillivary, Woodley & McGillivary, Washington D.C.; Andrew Quinn, Quinn & Mellea, White Plains, NY, on the brief), Patterson Belknap Webb & Tyler, LLP, New York, NY, for Plaintiffs-Appellants.

Karen M. Griffin, Assistant Corporation Counsel (Francis F. Caputo, James Lemonedes, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellee.

M. Patricia Smith, Solicitor of Labor; Jennifer S. Brand, Associate Solicitor; Paul L. Frieden, Counsel for Appellate Litigation; Dean A. Romhilt, for amicus curiae U.S. Department of Labor.

Before: NEWMAN, CALABRESI, KATZMANN, Circuit Judges.


On April 19, 2004, Plaintiffs-Appellants, sergeants in the New York City Police Department (" NYPD" ), brought this lawsuit alleging denial of overtime pay under the Fair Labor Standards Act of 1938 (" FLSA" or " Act" ), 29 U.S.C. § 201 et seq., for the period covering April 19, 2001 to the present. They now appeal from a July 20, 2009 judgment of the United States District Court for the Southern District of New York (Scheindlin, J. ) in favor of defendant-appellee City of New York (" the City" ) and seek review of, inter alia, the district court's November 6, 2007 Opinion and Order denying their motion for summary judgment and sua sponte granting partial summary judgment in favor of the City. The Department of Labor (" DOL" ), appearing as amicus curiae at this Court's invitation, has provided its interpretation of the Act's overtime pay regulations pertinent to this case. When an agency's regulations

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are ambiguous, a court must defer to the agency's interpretation of its own regulations, unless that interpretation is " plainly erroneous or inconsistent with the regulation[s] or there is any other reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question." See Talk Am., Inc. v. Michigan Bell Tel. Co. dba AT & T Michigan, __ U.S. __, 131 S.Ct. 2254, 2261, 180 L.Ed.2d 96 (2011) (internal quotation marks omitted). This appeal primarily requires us to determine whether the DOL's interpretation of its regulations is " plainly erroneous or inconsistent with the regulation[s]." Id. In our limited role, we conclude that the DOL's interpretation is not " plainly erroneous or inconsistent" with the pertinent FLSA regulations and thus is entitled to controlling deference. Applying that interpretation to the facts of this case, we conclude that the primary duty of sergeants is not " management" and therefore plaintiffs do not qualify for the " bona fide executive" exemption from the FLSA's overtime pay requirements. Accordingly, we reverse the district court's judgment and remand the case to the district court with instructions to enter judgment in favor of plaintiffs and for further proceedings not inconsistent with this opinion.


I. The FLSA's Overtime Pay Requirement

Subject to certain exceptions, the FLSA mandates overtime pay for employees who work more than 40 hours per week. Specifically, section 7(a)(1) of the Act provides that

no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

See 29 U.S.C. § 207(a)(1). Relevant here is the Act's exemption in section 13(a)(1) from the overtime requirement for workers who are " employed in a bona fide executive ... capacity." 29 U.S.C. § 213(a)(1).

Until August 23, 2004, this exemption relieved employers from the otherwise applicable obligation to pay overtime wages if the employer could demonstrate, inter alia, that the relevant employees (1) earned at least $250 per week, (2) had a " primary" duty of " management," and (3) had a primary duty that included customarily and regularly directing the work of two or more employees. 29 C.F.R. § 541.1(f) (2003). This was known as the " short test" for determining whether an employee was considered an exempt executive. 1

" Primary duty" is defined by the regulations as " the principal, main, major or most important duty that the employee performs." 29 C.F.R. § 541.700(a). To determine whether plaintiffs' performance of these exempt activities constitutes their " primary duty," a court must consider " the character of an employee's job as a whole." Id.

Factors to consider when determining the primary duty of an employee include,

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but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.


The relevant regulations define " management" as including, but not limited to,

activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; ... providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.

29 C.F.R. § 541.102.

On April 23, 2004, the United States Secretary of Labor (" Secretary" ) issued revisions to the Part 541 regulations, which took effect on August 23, 2004. Under the revised version of the regulations, an exempt " executive" is an employee

(1) Compensated on a salary basis at a rate of not less than $455 per week ...; (2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (3) Who customarily and regularly directs the work of two or more other employees; and (4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

29 C.F.R. § 541.100(a).

In addition to revising the executive exemption in 2004, the DOL promulgated additional provisions defining the scope of the FLSA exemptions. One of these provisions was the so-called " first responder" regulation. The regulation provides, in relevant part, that the executive exemption does not apply to

police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

29 C.F.R. § 541.3(b)(1).

The first responder regulation further provides that

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[s]uch employees do not qualify as exempt executive employees because their primary duty is not management of the enterprise in which the employee is employed or a customarily recognized department or subdivision thereof as required under § 541.100. Thus, for example, a police officer or fire fighter whose primary duty is to investigate crimes or fight fires is not exempt under section 13(a)(1) of the Act merely because the police officer or fire fighter also directs the work of other employees in the conduct of an investigation or fighting a fire.

Id. § 541.3(b)(2).

II. Plaintiffs' Duties

Plaintiffs are more than 4,000 sergeants in the NYPD who brought this action on April 19, 2004, asserting their entitlement to overtime pay requirements pursuant to the FLSA for the time period of April 19, 2001 to the present. The parties do not dispute the basic facts concerning NYPD sergeants' duties. Given the large number of plaintiffs, the parties, at the direction of the district court, identified a short list of deponents (also referred to as " test plaintiffs" ) representing sixteen job categories, which were in turn organized into three groups.

The first group of test plaintiffs included the following six categories of sergeants:

• Housing Patrol Unit sergeants, who patrol public housing facilities and accompany police officers in conducting patrols of public housing buildings for criminal activity. App. II 377 ¶ 9.

• Bike Unit sergeants, who patrol housing developments on bike or foot for suspicious activity. Id. ¶ 10.

• Anti-Crime...

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