Scott v. City of New York
| Decision Date | 28 August 2008 |
| Docket Number | No. 02 Civ. 9530(SAS).,02 Civ. 9530(SAS). |
| Citation | 592 F.Supp.2d 386 |
| Parties | Keenan M. SCOTT, et al., Plaintiffs, v. CITY OF NEW YORK and the New York City Police Department, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Thomas P. Puccio, Esq., Law Offices of Thomas P. Puccio, New York, NY, Gary A. Orseck, Esq., Lawrence S. Robbins, Esq., Damon W. Taaffe, Esq., Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, Will Aitchison, Esq., Mark A. Crabtree, Esq., Aitchison & Vick, Inc., Portland, OR, John T. Brennan, Esq., Law Offices of John T. Brennan, Brooklyn, NY, for Plaintiffs.
Lorie E. Almon, Esq., Gerald L. Maatman, Jr., Esq., Peter A. Walker, Esq., Robert S. Whitman, Esq., Seyfarth Shaw LLP, New York, NY, Georgia Pestana, Assistant Corporation Counsel, New York, NY, for Defendants.
I. INTRODUCTION
Over fifteen thousand current and former New York City police officers and detectives ("plaintiffs") assert that the City of New York and the New York City Police Department ("NYPD") (collectively "defendants") systematically violate plaintiffs' overtime rights under the Fair Labor Standards Act ("FLSA").1 This lawsuit addresses the policies and practices of the nation's largest police department, and plaintiffs claim hundreds of millions of dollars in damages based on defendants' failures concerning the accrual, use, and payment of overtime.
After more than five years of litigation, the parties have cross-moved for summary judgment. Defendants have moved for judgment on all claims, while plaintiffs have moved for judgment on all of their claims with the exception of two sub-categories within the second of their five claims. In addition, plaintiffs have moved to strike one of defendants' affirmative defenses as a matter of law. For the reasons that follow, plaintiffs' motion is granted in part and denied in part, and defendants' motion is granted in part and denied in part.
II. BACKGROUND
Plaintiffs filed their initial complaint on November 27, 2002, and an amended complaint on February 24, 2003. The amended complaint asserts five distinct claims. First, plaintiffs claim that defendants have a routine practice of denying requests to use accrued compensatory time off without complying with FLSA's requirements (the "denial of use" claim).2 Second, plaintiffs claim that several of defendants' policies unlawfully force plaintiffs to accept compensatory time rather than cash overtime (the "forced accrual" claim).3 Third, plaintiffs claim that some regular work schedules contain overtime, for which they are not compensated (the "chart" claim).4 Fourth, plaintiffs claim that defendants improperly exclude shift differentials and longevity pay when calculating FLSA overtime rates (the "regular rate" claim).5 Fifth, plaintiffs claim that defendants impermissibly fail to compensate for overtime amounting to less than fifteen minutes (the "failure to pay" claim).6
On June 23, 2004, this Court denied defendants' motion to dismiss the denial of use claim, as well as defendants' motion to join plaintiffs' unions as necessary parties.7 On December 27, 2004, this Court denied defendants' motion to dismiss the chart claim, the regular rate claim, and the failure to pay claim.8 Large-scale discovery then proceeded, including numerous depositions and document productions,9 as well as a jointly-conducted survey of a random sample of plaintiffs.10
For ease of understanding I will outline each element of the parties' respective motions. Plaintiffs request summary judgment on the denial of use claim, on three separate grounds: (1) defendants' admitted failure to provide acceptable alternative dates when denying a compensatory time request violates the statutory requirement that requests be granted within a "reasonable time," (2) defendants' admitted refusal to call in officers to work overtime to cover for officers using compensatory time precludes the defendants from asserting that any denial is based on the need to prevent an "undue disruption" of police services, and (3) defendants' admitted delegation of discretion to front-line supervisors to grant or deny compensatory time precludes reliance on the "undue disruption" defense.11 Plaintiffs also request partial summary judgment on the forced accrual claim, arguing that defendants' admitted policy of offering some optional overtime assignments only for compensatory time—without a cash overtime option—violates their Collective Bargaining Agreements ("CBAs"), which, in turn, would violate the FLSA.12 Plaintiffs next request summary judgment on the chart claim, based on defendants admitted failure to provide overtime compensation when regular duty charts exceed FLSA's hour caps in a single work period.13 Plaintiffs then request summary judgment on the regular rate claim, due to defendants' admitted failure to include shift differentials and changes in longevity pay when calculating the rate upon which cash overtime payments are based.14 Plaintiffs also request summary judgment on the failure to pay claim, based on defendants' admitted failure to compensate for overtime amounting to less than fifteen minutes in a single shift.15 Finally, plaintiffs move to strike defendants' meal period defense— an affirmative defense that recognition of plaintiffs' meal periods as non-working time changes the FLSA calculus sufficiently to counterbalance the chart, regular rate, and failure to pay claims—based on the claim that officers' meal periods are in fact working time.16
Defendants seek summary judgment on plaintiffs' denial of use claim, arguing that established NYPD policies and practices require denying requests for compensatory time when granting the request would cause an undue disruption or—in the alternative—that plaintiffs' have failed to exhaust grievance procedures outlined in the CBAs.17 Next defendants request summary judgment on the forced accrual claim, based on the legal claim that voluntary overtime offered only for compensatory time does not violate FLSA and the factual claims that the NYPD does not have a cap on cash overtime nor a restriction on cash overtime in the year prior to an officer's retirement.18 Defendants then request summary judgment on all of plaintiffs' remaining claims, asserting that any minor deficiency in the calculation of overtime hours and overtime payments is offset either by prior inclusion of meal periods in payroll calculations—which defendants claim are in fact non-working hours under FLSA19—or by overtime payments awarded under the CBAs but not required by FLSA.20 Finally, defendants claim that even if they are not entitled to credit sufficient to offset such minor deficiencies, their admitted failure to compensate for overtime of less than fifteen minutes is excused as de minimis.21
Plaintiffs include more than fifteen thousand New York City police officers and detectives.23 Defendants are the City of New York and the NYPD, public employers of tens of thousands of employees.24 The terms and conditions of plaintiffs' employment by defendants are set forth in the CBAs reached by their unions.25 Work schedules under the CBAs are set forth in twenty-eight day "charts," which consist of a recurring schedule of work shifts ("tours") and scheduled days off.26 This four-week calendar conforms to the twenty-eight day FLSA work period that the NYPD has elected to utilize to determine FLSA overtime.27 When NYPD officers are compensated for overtime, they are either credited one and one-half hours of compensatory time off for each hour of overtime worked, or they are paid at one and one-half times the NYPD's calculation of the officer's regular rate of pay.28
The CBAs contain a mandatory seven-step grievance procedure, terminating in binding arbitration.29 Five discrete categories of complaints are subject to this contractual mechanism: (1) violations and misinterpretations of the CBA, (2) violation of NYPD regulations concerning employment, (3) violations of NYPD regulations concerning interrogation of officers, (4) violations concerning internal promotion mechanisms, and (5) assignment to duties differing from an officer's job specification.30 Plaintiffs do not dispute defendants' assertion that contractual grievance procedures were not exhausted.31
When reported, plaintiffs' time worked—to the minute—is logged into defendants' payroll system.32 This time includes meal breaks, for which officers receive full compensation at either the regular or overtime rate.33 Under NYPD regulations, officers receive a meal period of one hour per tour,34 although they remain "on duty" during that time.35 Longstanding NYPD practice includes meal periods in the tabulation of hours worked, for both contractual and FLSA overtime purposes.36 During meal breaks, officers are required to remain within their command area, maintain radio contact, respond to emergencies, and generally "remain alert."37 However, they are removed from the dispatch queue—directing most radio traffic to other officers—and some are permitted to engage in personal business.38 Sometimes officers are forced to miss their meal period entirely due to duties that arise.39 Nevertheless, most officers reported in the joint survey that active interruption of meal periods is infrequent.40
Plaintiffs are compensated for contract overtime only when their total overtime exceeds fifteen minutes in a single tour.41 Although defendants currently record overtime increments of less than fifteen minutes for "tracking purposes,"42 it is disputed whether officers are routinely permitted to enter overtime of less than fifteen minutes towards the FLSA threshold.43 Moreover, one combination of tours within a single chart...
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