McIntyre v. DIV. OF YOUTH REHAB. SERVICES

• Decision Date: 13 July 1992
• Docket Number: Civ. A. No. 91-125-JLL.
• Citation: 795 F. Supp. 668
• Parties: Roy McINTYRE, Plaintiff, v. DIVISION OF YOUTH REHABILITATION SERVICES, DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, STATE OF DELAWARE, Defendant.
• Court: U.S. District Court — District of Delaware

795 F. Supp. 668

Roy McINTYRE, Plaintiff, v. DIVISION OF YOUTH REHABILITATION SERVICES, DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, STATE OF DELAWARE, Defendant.

Civ. A. No. 91-125-JLL.

United States District Court, D. Delaware.

July 13, 1992.

COPYRIGHT MATERIAL OMITTED

Jeffrey M. Weiner of Weiner & Weir, Wilmington, Del., for plaintiff.

W. Michael Tupman of the Delaware Dept. of Justice, Wilmington, Del., for defendant.

MEMORANDUM OPINION

LATCHUM, Senior District Judge.

The plaintiff has brought this suit to recover unpaid on-call duty pay as wages, liquidated damages, attorney's fees, and costs under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201-219 ("FLSA"). (Docket Item "D.I." 54 at Exhibit "Ex." A, ¶ 3.) The State of Delaware ("State") filed a motion pursuant to Rules 12(b)(6) and Rule 56 of the Federal Rules of Civil Procedure to dismiss part of the complaint for failure to state a claim and for summary judgment against the plaintiff on the remainder of the complaint. (D.I. 44.)

I. FACTS

The Delaware Department of Correction hired Roy McIntyre ("McIntyre") on or about June 26, 1978, to serve as a Juvenile Field Investigator. (D.I. 54 at Ex. A, ¶ 6.) On July 1, 1982, the State Personnel Office ("SPO") reclassified the plaintiff's position to an Internal Affairs Officer. (D.I. 52 at 3; D.I. 54 at Ex. B.) On July 1, 1984, the position of Internal Affairs Officer was transferred from the Delaware Department of Correction to the Division of Youth Rehabilitation Services ("Division") of the Delaware Department of Services for Children, Youth and Their Families ("Department"). (D.I. 54 at Ex. A, ¶ 8; id. at Ex. D, ¶ 8.) His primary responsibility has been the background investigation of prospective employees. Sometimes McIntyre also must retrieve juveniles AWOL from court-ordered placement, make arrests, and investigate alleged criminal behavior by staff or residents of the Division's programs. (D.I. 47 at ¶ 3.)

The Division informed McIntyre that, in addition to his normal work week, he would be required to be "on call," meaning that he should be ready to respond to a call at any time of the day or week. (D.I. 54 at Ex. EE, ¶¶ 2-3.) Unhappy with this responsibility, McIntyre sought pay for his on-call status. Director Cox told the plaintiff that an ongoing comprehensive review would consider the possibility of pay for on-call duty. (Id. at Ex. EE, ¶ 9.) On July 2, 1986, Director Cox sent a memorandum to the SPO requesting hazard pay and compensation for the plaintiff's on-call duties. (Id. at Ex. E.) Director Cox then attempted to have his position reclassified and interpreted his job dimensions for the purpose of reviewing his job classification. (Id. at Exs. H & EE, ¶ 12.) His request for reclassification was denied. (Id. at Exs. I & EE, ¶ 13.) McIntyre appealed, but the SPO refused to regrade or reclassify his position. (Id. at Exs. J, K, & EE, ¶¶ 14-15.)

When it became clear that the State would not give additional pay, McIntyre sought removal from on-call duties. In response to the plaintiff's requested removal from on-call duty on August 29, 1989, (id. at Exs. L & EE, ¶ 17), Director Cox again requested some type of compensation for the plaintiff's on-call status. (Id. at Exs. M & EE, ¶ 18.) By memorandum, McIntyre made a second request on November 13, 1989. (Id. at Exs. N & EE, ¶ 19.) Charles Hayward, Secretary of the Department, requested that the SPO review McIntyre's classification. Although this memorandum demonstrated an understanding that his classification was exempt from the FLSA and afforded him no compensation for his on-call status, Hayward appealed to the SPO on the basis of the nature of the plaintiff's duties and the difficulty of awarding compensation time. (Id. at Ex. O.) In a memorandum dated March 22, 1990, the new Director of the Division, Director McCarthy, told the plaintiff that the SPO had denied his request for standby duty pay because "the SPO has confirmed that the designation of your position as exempt from the FLSA is appropriate." (Id. at Ex. P; D.I. 47 at ¶ 6.) Although the SPO denied any pay for standby duty, it granted McIntyre the option of compensation in cash or compensatory time for any overtime work actually performed. (D.I. 47 at ¶ 6.)

According to Director McCarthy, McIntyre had told him that "Mr. Cox relieved him of on-call responsibilities just prior to his leaving";¹ Director McCarthy wrote to program directors at Ferris School to inform them that "Mr. McIntyre should not be considered on-call on a regular basis." (D.I. 54 at Ex. Q.) McIntyre marked in his diary records for November 30, 1989: "24 hour on call status temp. lifted by D. Cox this p.m." (D.I. 49 at Ex. 23.) According to a contemporaneous memorandum written by Director McCarthy, "Mr. McIntyre had agreed to be available for consultation by phone if a situation arises which requires an after-hours response. However, the decision as to whether Mr. McIntyre will respond in person shall be Mr. McIntyre's alone." (D.I. 54 at Ex. Q.)

On June 14, 1990, Secretary Hayward submitted a proposal for providing some added compensation "in an equitable fashion" for "FLSA exempt employees required to provide stand-by services." (D.I. 49 at Ex. 10.) Under the proposal, one hour of compensation would be provided for every eight hours spent on standby service on weekends and weekdays and for every four hours spent on standby during holidays. (Id.) On June 29, 1990, SPO Director Fallis responded. He stated the SPO's position that the law requires no additional pay because the employees at issue are professionals and therefore exempt from the FLSA and because employees carrying beepers, who are free to pursue their own interests on their own time, are not entitled to compensation for that time under the FLSA. (D.I. 54 at Ex. S.) He rejected Hayward's proposal as unnecessary, stating that the requirement that these employees be available is part of their overall duties. (Id.) Despite the SPO Director's memo stating that Department employees required to wear beepers need not and should not be compensated, McIntyre "questioned whether he is in fact required to wear a beeper and to return to duty upon contact" on the grounds that it was not listed in his existing job specifications.² (Id. at Ex. T.) In light of this conflict, Director McCarthy wished to "bring this to a final resolution" and asked whether McIntyre could be required to wear a beeper. (Id.) Once again, Personnel Officer Carol Martin stated the SPO position that McIntyre's classification was exempt as a professional position. (Id. at Ex. U.) On October 23, 1990, Director McCarthy informed McIntyre that he would be required to wear a pager and respond to calls after-hours and would receive cash or compensatory time only if actually paged and required to respond. (Id. at Ex. V.)

The Division has never paid or agreed to pay McIntyre for on-call standby. McIntyre earned compensation time for any overtime work actually performed, and, since March 1990, he has had the option to be paid cash for such work at straight time. (D.I. 46 at ¶ 7.) On July 1, 1991, the SPO regraded McIntyre's position to a lower level under the State's graded compensation system, at which time he became entitled to compensation for overtime worked at time and one-half pay. (D.I. 46 at ¶ 8; D.I. 49 at Ex. 5.) When called back, the Division required the plaintiff to have his security equipment and his State vehicle, which is equipped with a security cage. (D.I. 54 at Ex. EE, ¶ 4.) Because the Division restricted the use of the State vehicle to travelling to and from work, McIntyre states that he was limited in the distance he could travel from his home to visit friends or family. (Id. at Ex. EE, ¶¶ 4-5.) McIntyre also complains that his on-call status prevented him from drinking alcoholic beverages until recently and forced him to decline secondary part-time employment with two limousine companies and an armored car company, each of which would have required him to leave the area. (Id. at Ex. EE ¶¶ 6-7.)

Aside from these restrictions, McIntyre has been free to go about his own personal business as he pleases. His callbacks requiring him to report to work during this period have been infrequent. The only evidence submitted regarding the number of such callbacks indicates that there were only a handful of callbacks each year.³ (D.I. 45, ¶¶ 5 & 13; D.I. 57 at ¶ 6 & Ex. 39.) McIntyre states that he also "receives calls throughout the week, most of which do not necessitate an actual physical response on his part." (D.I. 53 at ¶ 16.)

Since the Division has restored the plaintiff's on-call status, the burden of the on-call duty on McIntyre has decreased in certain respects. The Division has replaced the previous on-call system with a beeper. With the beeper, McIntyre can remain within approximately thirty miles of his workplace.⁴ In addition, McIntyre can request temporary relief from his on-call duties for social reasons or for vacation, by making a written request in advance. (D.I. 47 at ¶ 13.) The Division has also developed a plan of support involving the State Police in case McIntyre is unavailable. (Id.) In 1991, the Division granted eleven requests by McIntyre to be temporarily relieved of on-call status under this system. (Id. at ¶ 15; see also D.I. 49 at Exs. 17-22.)

II. PROCEDURAL STANDARDS

The Division has moved to dismiss part of the complaint and for summary judgment as a matter of law on the remainder of the complaint. (D.I. 44.) The standard for deciding a motion to dismiss is whether, taking all factual allegations as true, it is beyond doubt that the plaintiff can prove no set of facts to support his claim which would entitle him to relief. Fed.R.Civ.P. 12(b)(6); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Procter & Gamble Co. v. Nabisco Brands, Inc., 125 F.R.D. 405, 412 (D.Del.1987) (c...