Dino et al v. Commonwealth of Pennsylvania, Department of Corrections et al

Filing 79

ORDER 1)the plaintiffs request for discovery from the defendants of disciplinary suspensions of persons in the sixteen classifications provided for in the Suspension Policy, as cited above, is DENIED.2)having resolved the motion (Doc. No. 67) referred to the undersigned, (Doc. No. 68) the case is to be returned to the Chief Judge. Signed by Magistrate Judge Malachy E. Mannion on 9/23/11. (bs, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAY T. DINO, et al.,

:

Plaintiffs

:

v.

CIVIL ACTION NO. 1:08-1493

:

(KANE, C.J.)
(MANNION, M.J.)

COMM. of PENNSYLVANIA, et al., :
Defendants

:
ORDER

On May 5, 2011, the instant action was referred to the undersigned for
the purpose of holding a discovery conference to assist counsel in resolving
discovery disputes which had arisen between the parties. (Doc. No. 68). That
conference was held on May 19, 2011, at which the court orally decided a
majority of the discovery issues presented to the court as reflected on the
record. (Doc. No. 75).
The sole discovery issue remaining for consideration by the
undersigned is whether the plaintiffs are entitled to have the defendants
produce a log of disciplinary suspensions for all employees listed in the
sixteen classifications of individuals provided for in Section 4.1.1 of the
Department of Corrections’ Human Resources and Labor Relations
Procedures Manual, Section 5, Suspension Without Pay for Exempt
Employees Under the Fair Labor Standards Act.

After hearing the parties’ positions on the issue at the discovery
conference, the court agreed with the defense and indicated that it would not
require them to produce anything other than the information related to the
plaintiff class, including information with respect to whether individuals were
suspended as well as the backup material that would describe why they were
suspended and how the suspension came about. (Doc. No. 75, pp. 39-45).
However, upon request of the plaintiffs, the court agreed to allow briefing on
the matter. Letter briefs have been received from the plaintiffs, (Doc. No. 74),
and the defendants, (Doc. No. 76).
Upon review of the briefs filed in this matter, the court stands by its
original ruling and will deny the plaintiffs’ request to have the defendants
produce a log of disciplinary suspensions for all employees listed in the
sixteen classifications. In their brief, the plaintiffs argue that, in 2002, the
Department of Corrections, (“DOC”), issued a policy, (“Suspension Policy”),
which governs disciplinary suspensions of sixteen classifications of
management employees, including Correctional Officer 3, (“CO3s”), and
Correctional Officer 4, (“CO4s”). In this action where the plaintiff class
consists only of individuals in the CO3 classification, the plaintiffs sought
discovery from the defendants relating to the disciplinary suspensions of
persons in each of the sixteen classifications. The defendants agreed to
2

produce the data for members of the plaintiff class, but not the other
classifications.
The plaintiffs argue that a key issue in this litigation is the applicability
of one or more exemptions under the Fair Labor Standards Act, (“FLSA”), to
the plaintiff class, and that application of any exemption is a matter of
affirmative defense on which the employer has the burden of proof. The
plaintiffs argue that one of the factors that govern whether an employer has
an “actual practice” of making improper deductions is whether the employer
has a clearly communicated policy permitting or prohibiting improper
deductions. See 29 C.F.R. §541.603. The plaintiffs argue that the Suspension
Policy at issue permits disciplinary suspensions of persons in the sixteen
classifications of any length, for any reason, and therefore is a “clearly
communicated policy permitting” improper deductions. However, this is only
one of several factors set forth in §541.603, and the plaintiffs argue that
because the burden of proving an exemption is the defendants’ to carry, a
broad limitation of discovery on this issue will “unfairly handcuff the Plaintiffs
from contesting Defendant’s assertion of the affirmative defense.”
The plaintiffs argue that information regarding the suspensions in all
sixteen classifications is essential for three reasons: (1) what managers
impose such discipline and where this discipline is imposed may shed light on
3

the practices that prevail from one institution to another; (2) CO4s are a level
above CO3s and report in the same chain of command to managers in
common and, therefore, a manager who imposes a three-day suspension
upon a CO4 for an offense that does not satisfy an exception under
§541.602(b)1, would likely impose a similar penalty on a CO3; and (3) even
as to those CO3s who are not members of the plaintiff class, the principal
factor is whether there is an “actual practice” of making improper deductions
and the regulations, including 29 C.F.R. §541.603(b)2, require looking beyond

1

Although there are several exceptions set forth in §541.602(b), the
plaintiffs argue that the most relevant for purposes of the instant action allow
for the deduction from the pay of exempt employees for “penalties imposed
in good faith for infractions of safety rules of major significance” and “unpaid
disciplinary suspensions of one or more full days imposed in good faith for
infractions of workplace conduct rules [that are] imposed pursuant to a written
policy applicable to all employees.” See 29 C.F.R. §§541.602(b)(4), (5).
2

This section provides:
(b) If the facts demonstrate that the employer has an actual
practice of making improper deductions, the exemption is lost
during the time period in which the improper deductions were
made for employees in the same job classification working for the
same managers responsible for the actual improper deductions.
Employees in different job classifications or who work for different
managers do not lose their status as exempt employees. Thus,
for example, if a manager at a company facility routinely docks
the pay of engineers at that facility for partial-day personal
absences, then all engineers at that facility whose pay could have
been improperly docked by the manager would lose the
exemption; engineers at other facilities or working for other
(continued...)
4

the immediately affected employees.
In response, the defendants argue that the opt-in class at hand includes
only one job classification, the CO3s, and that information related to all other
job classifications is irrelevant. The defendants argue that they have already
produced information related to any disciplinary suspensions of the opt-in
class members on which the plaintiffs can rely in attempting to prove that the
DOC has not complied with the FLSA and applicable regulations.
As to any classification other than the CO3s of which the plaintiff class
consists, the defendants argue that, under the FLSA’s regulations, an
employer who improperly suspends otherwise-exempt employees in a
particular job classification may jeopardize the applicability of an exemption
to

other

employees

in

the

same

job

classification.

29

C.F.R.

§541.603(a)(emphasis added). The defendants argue that those exemptions
are only jeopardized within one job classification at a time regardless of how
broad an employer’s policy may be. The court agrees. In fact, the regulations
specifically provide that, when employees in one job classification are
improperly suspended, “[e]mployees in different job classifications or who
work for different managers do not lose their status as exempt employee.” Id.

2

(...continued)
managers, however, would remain exempt.
5

Thus, the practices which occurred with respect to the classifications outside
of the CO3 classification would have no relevance here.
Further, the defendants argue that approximately 250 CO3s out of a
potential class of nearly 800 have opted into this litigation. The defendants
argue that they have produced documents related to any suspension of the
plaintiff class for the three year period prior to the plaintiffs joining the instant
lawsuit. The defendants argue, and the court agrees, that the suspension
information for the opt-in plaintiffs is sufficient to determine whether the DOC
had or has an “actual practice” of improperly suspending CO3s.
Finally, the defendants argue that this case has been conditionally
certified as a collective action to determine whether the claims of a class of
employees should be litigated collectively and not as separate claims.
Approximately 250 employees have opted into the plaintiff class out of a
potential 800 employees. The defendants should not be required to produce
information regarding the employment circumstances of the entire potential
class of nearly 800 employees when the information relating to the
suspensions of those who have not opted into the plaintiff class is irrelevant
to the collective action analysis.
For all of the foregoing reasons, the plaintiffs’ request to compel the
defendants to provide a log of disciplinary suspensions for all employees
6

listed in the sixteen classifications of individuals provided for in Section 4.1.1
of the Department of Corrections’ Human Resources and Labor Relations
Procedures Manual, Section 5, Suspension Without Pay for Exempt
Employees Under the Fair Labor Standards Act, will be denied.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1)

the plaintiffs’ request for discovery from the defendants of
disciplinary suspensions of persons in the sixteen
classifications provided for in the Suspension Policy, as
cited above, is DENIED.

2)

having resolved the motion (Doc. No. 67) referred to the
undersigned, (Doc. No. 68) the case is to be returned to the Chief
Judge.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States Magistrate Judge

Dated: September 23, 2011
O :\shared\O RDERS\2008 O RDERS\08-1493-05.wpd

7