The opinion of the court was delivered by: D. Brooks Smith, District Judge.
MEMORANDUM OPINION and ORDER
The evidence adduced through discovery shows that
plaintiff-RPWs work eightythree hours every two-week pay period,
dkt. no. 33, exh. F at 84, as follows: A shift begins on
Wednesday at 3:00 P.M. and concludes the following Wednesday at
10:00 A.M.*fn2 Id. Employees are required to sleep on company
premises from 11:00 P.M. to 7:00 A.M. so that they are available
to attend to their clients' special needs during the night. They
are also considered "on call" between the hours of 9:00 A.M. and
3:00 P.M., although they are free to leave the premises or
otherwise attend to personal business during that time and are
not subject to discipline if they are unavailable. At the
conclusion of the one-week shift, employees are off for the
following week. Id. at 88.
Defendant does not compensate its employees for on-call time, a
policy not in dispute in this litigation, nor is sleep time-the
point of contention here-normally compensated. The exception,
asserts defendant, is that employees are fully compensated for
any hours during which their sleep is interrupted during the
night by client needs, id. at 138; moreover, if the
interruption cumulatively exceeds three hours (meaning less than
five hours sleep), employees are compensated as if they had
worked the entire eight hours, id. at 141; dkt. no. 33, exh. G
at 74-75. Plaintiffs dispute this, claiming that defendant did
not pay at all for interruptions shorter than three hours and
told employees not to submit overnight hours, dkt. no. 33, exh. H
at 23-27, 90-91, 94-95; exh. I at 34-37; as further support, they
rely in part on defendant's identical answers to interrogatories
1 and 13, which support the conclusion that nighttime
interruptions would not be paid unless the employee got less that
five hours total sleep. See dkt. no. 35, exh. 9 ¶ 13; exh. 16 ¶
1. This was corroborated by the testimony of Roland Domoski, dkt.
no. 33, exh. M at 26-27.
Defendant's Executive Director, Arlene Balch, testified that
she explained the policy on sleep time to prospective new hires
during the interview process, dkt. no. 33, exh. F at 96-97, 100;
accord dkt. no. 33, exh. J at 16; exh M at 30, 32; exh. N at
12; exh. T at 15, 21; this was also corroborated by Program
Specialist Cathy Moyer, dkt. no. 33, exh. G at 11-12, although
plaintiff Reese testified that she was only informed of the
policy on or after her first day of work, at orientation. Dkt.
no. 33, exh. J at 56-57. Balch also "corrected" her response to
Interrogatory 1 to reflect that any sleep period overtime would
be compensated, not just interruptions over three hours.*fn3
In addition, Balch explained that new employees, including
plaintiffs, were required to (and did) sign an acknowledgment
form reciting that they received copies of these policies and
that sleep time was not compensable unless they were actually
required to work.*fn4 Dkt. no. 33, exh. F at 72-73, 96-97; exh.
H at 55-57; exh. I at 16; exh. J at 27-29; exh. V (signed
acknowledgments); see also Exh. AA (actual manuals). Shannon,
in fact, acknowledged that her complaint was not with the written
policy, but that defendant was breaching it by not paying
overtime for sleep interruptions. Dkt. no. 33, exh. H at 100-03.
Finally, company policy was reviewed every year during in-service
training, Dkt. no. 33, exh. F at 96-97; exh. G at 15-16; exh. M
at 32; exh. P at 33; exh. W (attendance records), although
plaintiff Maureen Shannon denies this, dkt. no. 33, exh. H at
16-17.*fn5 As part of an employee satisfaction survey,
plaintiffs Maureen Shannon and Kim Yingling expressed "strong
agreement" and "agreement," respectively, to a question asking
whether personnel policies and procedures were made available and
explained in a clear manner. Dkt. no. 33, exh. Z.
The majority of witnesses who were deposed testified that they
were paid for all instances of documented overtime during the
sleep interval, and were never instructed not to turn in such
time. See, e.g., dkt. no. 33, exh. K at 17; exh. L at 36; exh.
M at 31; exh. N at 22, 33-34; exh. O at 17-19; exh. P at 25-28,
30-32; exh. R at 16-17; exh. T at 17-21. Plaintiffs as well
submitted numerous instances of overtime, which were duly paid.
Indeed, all three plaintiffs testified that their sleep was
interrupted every night and throughout the night. Dkt. no. 33,
exh. H at 92; exh. I at 85; exh. J at 45. Nevertheless, Shannon
submitted sleep period overtime only rarely because, according to
her testimony, she was told by Arlene Balch that such overtime
was not in the budget and she should not seek it. Dkt. no. 33,
exh. H at 27-28, 99. The same contention is made for plaintiffs
Yingling and Reese. Dkt. no. 33, exh. I at 36 (Yingling, no money
in budget.); exh. J at 58-60 (Reese, similar). On one occasion,
Reese submitted 2.5 hours because she was "fed up with being
constantly interrupted in the middle of the night and not getting
paid for it[,]" but was paid for only one hour. Dkt. no. 33, exh.
J at 62-64.
Summary judgment is appropriate where admissible evidence fails
to demonstrate a genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). If the nonmoving party bears the burden of persuasion at
trial, the moving party must show that the nonmoving party's
evidence is insufficient to carry that burden. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The nonmoving party can create a genuine issue of
material fact by pointing to evidence in the record sufficient to
support a verdict in its favor at trial. Brewer v. Quaker State
Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995).
Alternatively, "the burden on the moving party may be discharged
by showing . . . that there is an absence of evidence to support
the nonmoving party's case." Celotex, 477 U.S. at 325, 106
S.Ct. 2548 (internal quotation marks omitted). "[S]ince a
complete failure of proof concerning an essential element,"
id. at 323-24, 106 S.Ct. 2548, on which a party bears the
burden of proof at trial establishes that the moving party is
"entitled to a judgment as a matter of law," the nonmoving party
must establish the existence of every element essential to its
case. Id. Such evidence must be significantly probative and
more than "merely colorable." Armbruster v. Unisys Corp.,
32 F.3d 768, 777 (3d Cir. 1994).
Once the moving party has satisfied its burden, the nonmoving
party is required by Fed.R.Civ.P. 56(e) to establish that there
remains a genuine issue of material fact. Clark v. Clabaugh,
20 F.3d 1290, 1294 (3d Cir. 1994). The nonmovant "may not rest upon
mere allegation or denials of his pleadings, but must set forth
specific facts showing that there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). A fact is material if it "might
affect the outcome of the suit under the governing law . . ."
id. at 248, 106 S.Ct. 2505, and is genuine "if the evidence is
such that a reasonable [factfinder] could return a verdict for
the nonmoving party." Id. at 248, 257, 106 S.Ct. 2505.
In determining whether a nonmovant has established the
existence of a genuine issue of material fact requiring trial,
the evidence of the nonmovant must "be believed and all
justifiable inferences are to be drawn in [her] favor." Id. at
255, 106 S.Ct. 2505. Whether an inference is justifiable,
however, depends on the evidence adduced. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 595-96, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986). An inference based upon
speculation or conjecture does not create a material factual
dispute sufficient to defeat summary judgment. Robertson v.
Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990).
Likewise, "simply show[ing] that there is some metaphysical doubt
as to the material facts" does not establish a genuine issue for
trial. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.
The Wage and Hour Division of the Department of Labor has set
forth certain interpretive rules applicable to the issue of sleep
time compensation. See 29 C.F.R. § 785.21, 785.22, 785.23.
These rules, which merely state the agency's position on what the
underlying statute means in particular contexts, do not have the
force of law and it is not precisely settled whether the
interpretations embodied therein are entitled to substantial
deference under Chevron*fn6 or some lesser quantum of
consideration. Compare Ingram v. County of Bucks, 144 F.3d 265,
268 (3d Cir. 1998) (applying "substantial deference" and citing,
inter alia, Elizabeth Blackwell Health Ctr. v. Knoll,
61 F.3d 170, 182 (3d Cir. 1995) (applying Chevron deference to agency
interpretive rule)) with Martin v. Cooper Elec. Supply Co.,
940 F.2d 896, 900 (3d Cir. 1991) (interpretation "constitute[s] the
agency's `body of experience and informed judgment' about the
statute and . . . should be given `considerable and in some cases
decisive weight'") (citing Skidmore v. Swift & Co.,
323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), no discussion of
Chevron). At a minimum, these interpretive rules are a
substantial resource of agency expertise "to which courts and
litigants may properly resort for guidance." Skidmore,
323 U.S. 134, 140, 65 S.Ct. 161 (1944)*fn7; accord Beaston v. Scotland
School for Veterans' Children, ...