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January 27, 2000


The opinion of the court was delivered by: D. Brooks Smith, District Judge.



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, ...

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