schedule is mandatory in other cases. Consequently, the Accident Policy does not permit a clear inference that sergeants or lieutenants will receive partial-week suspensions without pay "in specified circumstances." Auer, 117 S. Ct. at 911.
The Fitness Policy, broadly worded like the Accident Policy to cover all sworn personnel regardless of salary status, also fails to tie partial-week suspensions without pay to certain actions by sergeants and lieutenants. It states only that progressive discipline "may be applied" to sworn personnel who do not meet the fitness test standards. Progressive discipline, in turn, is comprised of "steps" that begin with a verbal warning and end with suspensions. Although partial-week suspensions without pay are possible sanctions, the policy neither requires them for sergeants and lieutenants nor mandates them for a particular violation, either in number or severity. Again, the policy provisions on partial-week suspensions without pay could easily refer only to test failures on the part of lower-ranked officers. The fact that no police officer at the rank of sergeant or higher has ever been suspended without pay under this policy is additional proof that it is not "significantly likely" to be invoked against those employees.
The plaintiffs' position is even weaker in light of the SOS's compliance review process and the 1993 Merit Compensation Progressive Disciplinary Policy. Both reduce even further the likelihood that SOS sergeants and lieutenants will receive improper partial-week suspensions. The Merit Compensation Policy applies to employees at plaintiffs' rank, and requires suspensions without pay for those employees to be imposed in work-week increments -- which is consistent with FLSA. Although the Accident and Fitness policies' disciplinary provisions remain in effect, Director of Personnel Prose testified that the Merit Compensation Policy's full-week constraint supersedes any other policy's contrary disciplinary provisions. Prose, who retains ultimate authority for approving suspensions, related an instance in which she refused to process partial-week suspensions recommended by Police Director Pecoraro for this very reason. Moreover, Prose testified that even before 1993 office practice was to suspend Merit Compensation employees only for full work weeks -- a practice enforced by FLSA compliance review in the Personnel Department's Technical Services Division. Her testimony was corroborated by SOS Chief Labor negotiator William Rolando, who assisted in drafting the 1993 Merit Employee Progressive Discipline policy, and explained that it simply memorialized the existing practice of confining Merit Compensation employee suspensions to full weeks.
Faced with very similar facts, post-Auer decisions have reached the same result as we do. In Stanley v. City of Tracy, 120 F.3d 179 (9th Cir. 1997), plaintiffs contested their exempt status based on City policies providing for partial-week disciplinary suspensions without pay. The court rebuffed the plaintiffs' interpretation, finding no significant likelihood that they would receive such discipline because the policies applied, as in Auer, to both salaried and non-salaried employees. Id. at 184. Of special importance was the fact that the City had in place FLSA compliance review procedures that subjected all disciplinary suspensions to the scrutiny of legal counsel or the Personnel Advisory Board. Id. In addition, the City had recently become aware that FLSA required full-week suspensions for exempt employees. Id. "With this awareness on the part of the City, and with the City's practice of reviewing all suspensions for statutory compliance before implementation, it is not 'significantly likely' that salaried personnel would ever have been subject to a suspension inconsistent with their salaried status." Id. Along the same lines, the court in Ahern v. County of Nassau, 118 F.3d 118, 120 (2d Cir. 1997), relied on the defendant Police Commissioner's statement that his "general practice was not to impose fines" on salaried employees. We lend the same credence to the SOS's compliance review process and SOS officials' testimony about general office practice.
Besides pointing to the five 1990-1991 suspensions in this case (whose effect we address next under the "actual practice" prong of the Auer test), plaintiffs offer little to support their argument that the two Police Department policies create a significant likelihood of improper discipline. They cite no legal authority for their position, other than the Seventh Circuit's decision in Bankston v. Illinois, 60 F.3d 1249 (7th Cir. 1995), which applied the theoretical possibility standard rejected in Auer. Nor do they present evidence that contradicts the defendants' testimony regarding compliance review and office practice. Instead, plaintiffs resort to arguing that the Auer test requires a factual inquiry inappropriate for summary judgment. But this argument fails because several courts have granted summary judgment using the Auer test, making it clear that whether a policy presents a significant likelihood of monetary discipline for a particular class of employees is a legal issue ripe at the summary judgment stage. See Balgowan v. State of New Jersey, 115 F.3d 214 (3d Cir. 1997); Childers v. City of Eugene, 120 F.3d 944 (9th Cir. 1997); Carpenter v. City & County of Denver, Colo., 115 F.3d 765 (10th Cir. 1997). In the absence of opposing authority or proof, we find that the defendants have met their burden of proving that the Accident and Fitness policies do not destroy the plaintiffs' exempt status under the first prong of the Auer test.
II. Plaintiffs Cannot Show an Actual Practice of Disciplinary Deductions Based on the Five Suspensions in This Case
An actual practice of suspending sergeants and lieutenants without pay for less than a week would still prevent summary judgment. See Auer, 117 S. Ct. at 911. Plaintiffs claim that the four 1991 partial work-week suspensions of SOS sergeants under the Accident Policy, as well as Juliano's 1990 suspension spanning two partial work weeks, establish an actual practice of deductions sufficient to remove the FLSA exemption from the entire class of SOS sergeants and lieutenants. Defendants respond that none of the four 1991 suspensions actually resulted in pay deductions because all the sergeants chose to work an extra day instead. They also point out that Juliano's suspension lasted five days; they consider the split work week irrelevant. We need not reach the defendants' arguments, however, because we find that 1) the five isolated partial-week suspensions in this case do not amount to an "actual practice" eviscerating all high-ranking officers' exemptions, and 2) the defendants have preserved these employees' exempt status in any event by complying with the DOL regulations' "window of correction."
The regulations provide that if a deduction is made under circumstances indicating that "there was no intention to pay the employee on a salary basis," then the exemption is "[not] applicable to him during the entire period when such deductions were being made." 29 C.F.R. § 541.118(6). The effect of any improper deduction "will depend upon the facts in the particular case." Id. In its brief to the Supreme Court in Auer, the Secretary of Labor elaborated on this language,
explaining that the most important "fact" is frequency:
On the one hand, for example, when there is evidence that improper deductions have been taken with some frequency for violations of a work rule by employees having a particular rank, it is fair to conclude that all employees in that rank are "subject to" such deductions. On the other hand, when such deductions have not occurred or have only occurred in idiosyncratic or unusual circumstances, that conclusion generally would not be warranted.