13‐1651‐cv Wetzel v. Town of Orangetown

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of February, two thousand fourteen.

PRESENT: RICHARD C. WESLEY, CHRISTOPHER F. DRONEY, Circuit Judges, RONNIE ABRAMS, *

District Judge. ______________________

LORRAINE WETZEL,

Plaintiff‐Appellant,

‐v.‐ 13‐1651‐cv

TOWN OF ORANGETOWN,

Defendant‐Appellee.

* The Honorable Judge Ronnie Abrams, of the United States District Court for the Southern District of New York, sitting by designation.

1 FOR APPELLANTS: Law Offices of Maureen McNamara, West Haverstraw, NY.

FOR APPELLEES: Edward J. Phillips, Keane & Beane, P.C., White Plains, NY.

Appeal from the United States District Court for the Southern District of New York (Loretta A. Preska, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED.

Plaintiff‐Appellant Lorraine Wetzel appeals from a March 18, 2013

Memorandum and Order of the United States District Court for the Southern

District of New York (Loretta A. Preska, J.) granting summary judgment in favor

of Town of Orangetown (“Town”). Specifically, Plaintiff appeals that (1) as a

police lieutenant, she is a “salaried employee” under the Fair Labor Standards

Act,

et seq. (“FLSA”) and that (2) the Town was authorized under

(b)(5) to dock her vacation accruals for the time she spent

attending her own disciplinary hearing. We assume the parties’ familiarity with

the underlying facts, the procedural history, and the issues for review.

Under the FLSA, an individual is considered employed on a “salary basis”

if “the employee regularly receives each pay period on a weekly, or less frequent

basis, a predetermined amount constituting all or part of the employee’s

2 compensation, which amount is not subject to reduction because of variations in

the quality or quantity of the work performed.”

(a). In Auer

v. Robbins,

(1997), the Supreme Court determined that an employee

will be found to not have salaried status if “his compensation may ‘as a practical

matter’ be adjusted in ways inconsistent with” the regulation – that is, subject to

reduction because of variations in the quality or quantity of the work performed.

. This is the standard the district court applied in looking at Plaintiff’s

pay stubs and determining that she was in fact a salaried employee for the

purposes of the FLSA. Nothing submitted today, in fact or law, disputes this

finding. Accordingly, we affirm the decision of the district court on this issue.

As to salaried employees, the FLSA also permits “unpaid disciplinary

suspensions,” which must be employed through a “written policy applicable to

all employees.”

(b)(5). The Rockland County Police Act, a

written policy applicable to all employees of police departments in Rockland

County, states that a town “shall have the power to suspend, without pay,

pending the trial of charges, any member of such police department.” Rockland

County Police Act § 7 1936 N.Y. Laws 1263‐64. In its decision below, the district

court held that the combination of these statutes empowered the Town to dock

3 Plaintiff’s vacation days. Now, on appeal, Plaintiff argues that the court erred

because only the Town Board could authorize deductions of vacation accruals

and here “[i]t appears that the Police Chief may have decided to deduct vacation

accruals.” (Appellant’s Br. at 11‐17).

It is a well‐established rule that an appellate court will not consider an

issue raised for the first time on appeal. In re Nortel Networks Corp. Secs. Lit.,

(2d Cir. 2008). This general rule, however, can be disregarded in

two circumstances: (1) where consideration is necessary to avoid manifest

injustice or (2) where the issue is purely legal and there is no need for additional

fact finding. Readco, Inc. v. Marine Midland Bank,

(2d Cir. 1996).

Here, where Plaintiff has failed to raise the issue below; cannot show manifest

injustice; and where “it appears” that additional fact‐finding “may” certainly be

necessary; she has clearly waived the argument.

We have considered all of Plaintiff’s remaining arguments and find them

to be without merit. For the reasons stated above, the judgment of the district

court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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