Cremeens v. The City of Montgomery
MEMORANDUM OPINION AND ORDER as follows: (1) The 36 Motion for Summary Judgment is GRANTED; (2) The pretrial conference set for 10/15/09 and trial set for 11/9/09 are CANCELLED; and (3) A separate judgment will be entered in Defendant's favor taxing costs against Plaintiffs. Signed by Hon. Chief Judge Mark E. Fuller on 10/7/2009. (cb, )
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION G A R Y CREMEENS, P L A IN T IF F , v. C IT Y OF MONTGOMERY, D EFEN D A N T. ) ) ) ) ) ) ) ) )
C A S E NO. 2:08-cv-546-MEF (WO - PUBLISH)
M E M O R A N D U M OPINION AND ORDER G a ry Cremeens ("Cremeens"), an Arson Investigator for the City of Montgomery (" M o n tg o m e ry" ) Fire Department, brings this collective action pursuant to the Fair Labor S ta n d a rd s Act, 29 U.S.C. § 201 et seq., (hereinafter "FLSA") seeking overtime compensation to which he claims entitlement. Specifically, Cremeens contends that he is entitled to be c o m p e n s a te d as a law enforcement officer rather than as a firefighter. This cause is now b e f o re the Court on the Motion for Summary Judgment (Doc. # 36) filed by Montgomery on J u ly 10, 2009. For the reasons set forth in this Memorandum Opinion and Order, the motion is due to be GRANTED. JURISDICTION AND VENUE J u ris d ic tio n over the claims in this lawsuit is proper under 28 U.S.C. § 1331 (federal q u e s tio n ) and 29 U.S.C. § 216(b).1 The parties do not contest personal jurisdiction or venue,
Although Cremeens invokes this Court's subject matter jurisdiction pursuant to 28 U .S .C . § 1331, the Court also plainly has subject matter jurisdiction pursuant to 29 U.S.C.
and the Court finds adequate allegations in support of both. P R O C E D U R A L BACKGROUND O n July 11, 2008, Cremeens filed suit against Montgomery. He alleged that at all tim e s relevant to the suit, Montgomery had employed him as an "Arson Investigator" for the M o n tg o m e ry Fire/Rescue Bureau of Investigations. He further alleged that Montgomery had f a ile d to pay mandatory overtime compensation in compliance with 29 U.S.C. § 207. In A u g u s t of 2008, Cremeen moved to have the class conditionally certified as a collective a c tio n pursuant to 29 U.S.C. § 216(b). Over Montgomery's objections, this motion was g ra n te d . Several other individuals Montgomery employed as Arson Investigators filed n o tic e s of their consent to became party plaintiffs and joined this lawsuit. Accordingly, the C o u rt will refer in this opinion to the claims and contentions of all plaintiffs collectively and re f e r to those individuals as "Plaintiffs." Montgomery extended an offer of judgment to Plaintiffs with respect to a subset of th e ir claims in late June of 2009. This resulted in an agreed settlement of those claims and a Joint Motion for Approval of Partial Settlement. The Court granted that motion on July 23, 2009. Montgomery has filed a motion for summary judgment in which its seeks judgment a s a matter of law on the Plaintiffs' remaining claims to overtime compensation. Plaintiffs o p p o se that motion. The Court has carefully considered all submissions in support of and
§ 216(b) as well. 2
in opposition to the motion, as well as, the applicable law. SUMMARY JUDGMENT STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tr e tt, 477 U.S. 317, 322 (1986). The party asking for summary judgment "always bears t h e initial responsibility of informing the district court of the basis for its motion, and id e n tif yin g those portions of `the pleadings, depositions, answers to interrogatories, and a d m is sio n s on file, together with the affidavits, if any,' which it believes demonstrate the a b s e n c e of a genuine issue of material fact." Id. at 323. The movant can meet this burden b y presenting evidence showing there is no dispute of material fact, or by showing the nonm o v in g party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to in te rro g a to rie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a c ts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the
other hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the n o n m o v in g party has responded to the motion for summary judgment, the court must grant s u m m a r y judgment if there is no genuine issue of material fact and the moving party is e n title d to judgment as a matter of law. See Fed. R. Civ. P. 56(c). N A R R A T I V E STATEMENT OF FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to the plaintiffs, the non-moving parties, establish the following relevant f a c ts : T h e Montgomery Fire Department is subdivided into several operating divisions. Those divisions include the following: Administrative Division, Training Division, Special O p e ra tio n s Division, Fire Suppression Division, the Medic Division, and the Fire In v e s tig a tio n s Division.2 Assistant Fire Chief William Davis ("Davis") is currently in charge o f the Fire Investigations Division. Cremeens is employed in the Fire Investigation Division a s a Fire Investigator. His fellow Fire Investigators3 have all filed their consent to be made
The Fire Investigations Division has also been known as the Arson Division at v a rio u s times. Those opt-in plaintiffs are: Larry Coleman, Doyle Campbell, Larry McNeill, Mark W illia m s , William "Buddy" Fulton, Darryl Bryant, and Cecil Guthrie. 4
party plaintiffs in this action. F ire Investigators, who have also been known as Arson Investigators, are employed in the Fire Investigation Division. Like firefighters employed in the Fire Suppression d i v is io n , Fire Investigators work shifts of twenty-four continuous hours with intervals of f o rty-e ig h t hours between shifts. When they are working a shift, Fire Investigators are re q u ire d to remain at the station on call and to respond to any fire calls to which they may be d is p a tc h e d . They are free to occupy themselves as they wish from 6:00 p.m. until 8:00 a.m. o n each of their on-duty shifts, except once every two weeks they are required to perform n ig h tc lu b inspections after 10:00 p.m.4 Like other employees of the Fire Department
w o rk in g in other divisions, but holding similar rank and experience, Fire Investigators hold th e formal job title of Fire Lieutenant. At any time, the Fire Chief has the ability to reassign a Fire Inspector to work in another division such as the Fire Suppression Division or the M e d ic Division. B e g in n in g in 2005, the Montgomery Fire Department instituted a rule that employees m u s t attain the rank of Fire Lieutenant in order to gain an assignment to the Fire In v e s tig a tio n Division. All firefighters work in the Fire Suppression Division, usually for a period of several years, to obtain the rank of Fire Lieutenant before seeking the additional
The purpose of the nightclub inspections is to prevent fires in nightclubs and to e n s u re the protection of patrons and neighbors of nightclubs. During these inspections, Fire In v e s tig a to rs check the emergency exits to make sure that they are unobstructed, ascertain th a t the exit markings are properly visible, enforce the occupancy limits, and otherwise check f o r hazards in the nightclub. 5
specialized training required to work as a Fire Investigator. Not surprisingly, Cremeens and th e opt-in plaintiffs worked in the Fire Suppression Division prior to being assigned to the F ire Investigation Division. Fire Investigators receive training in both fire suppression and law enforcement. All F ire Investigators are required to graduate from the Montgomery Fire Academy, to obtain a F ire f ig h te r I/II certificate from the Alabama Fire College, and to complete an EMT basic c e rtif ic a tio n . Additionally, Fire Investigators are required to attend and graduate from a f o rty-f iv e hour Fire Investigator class at the Alabama Fire College and a Fire Investigation c la s s at the National Fire Academy. Furthermore, Fire Investigators are required to have a tte n d e d and graduated from the Montgomery Police Academy and to have obtained c e rtif ic a tio n from the Alabama Peace Officer's Standards Training Commission. Fire In v e s tig a to rs have full authority to make arrests without calling the Montgomery Police D e p a rtm e n t. In order to maintain their assignment to the Fire Investigations Division, Fire In v e s tig a to rs are required to attend monthly fire suppression drills at the Montgomery Fire A c a d e m y5 and to maintain their certification from the Alabama Peace Officer's Standards T ra in in g Commission, which requires that they complete 12 hours of continuing education
The requirement that all Fire Investigators attend monthly fire suppression drills was a d d e d in April of 2008. At that same time, the Montgomery Fire Department also began to re q u ire Fire Investigators to participate in the continuing training program which requires th a t they serve a minimum of 60 hours per year in a fire suppression company or 30 hours p e r year in a fire suppression company and 30 hours per year on a medic truck if they are p a ra m e d ic qualified. 6
and that they pass a firearms qualification each year. In addition to standard firefighting g e a r, Fire Inspectors are also equipped with special items pertinent to their law enforcement f u n c tio n . Davis admits that the majority of Fire Investigator's duties are law enforcement duties a n d that the majority of time in a Fire Investigator's shift is spent doing investigative work, m o s t of which is law enforcement work. He admits that the Fire Investigators are a law e n f o rc e m e n t team. It is also undisputed, however, that Fire Investigators receive the same f ire f ig h te r training relating to necessary and proper procedures for attacking and e x tin g u is h in g fires that is required of members of the Suppression Division. Moreover, it is undisputed that Fire Investigators are subject to being directed to engage in fire s u p p re s s io n activities by either a superior officer or an on-scene fire commander and would b e disciplined if they failed to comply with such direction. Indeed, Fire Investigators must re s p o n d to certain types of fires. They have a responsibility to engage in fire suppression a c tiv itie s in certain emergency situations. Manpower shortages in the Fire Suppression D iv is io n have resulted in temporary assignment of Fire Investigators to work in Fire S u p p re s s io n on occasion. Montgomery has adopted a fourteen day work period in which pay, overtime, and c o m p e n s a to ry time is calculated. For at least the last three years, Montgomery has paid its F ire Investigators at a rate of one and one half times the regular rate at which they are e m p lo ye d for all hours in excess 106 hours per two-week pay period.
DISCUSSION T h e FLSA governs minimum wage and overtime requirements for employees covered u n d e r the act. The FLSA requires overtime pay to covered employees at the rate of one and o n e half times an employee's base rate of pay for hours worked in excess of the statutorily s e t amount; most employees covered by the FLSA are entitled to overtime compensation for " a workweek longer than forty hours." 29 U.S.C. § 207(a)(1). Section 207(k) of the FLSA, h o w e v e r, provides an exemption to the strict forty hour workweek for "any employee in fire p ro te c tio n activities or any employee in law enforcement activities" in certain circumstances. 29 U.S.C. § 207(k). This exemption allows public agencies employing persons engaged in f ire protection activities or law enforcement activities to calculate an employee's hours for o v e rtim e purposes according to work periods of twenty-eight days rather than on a weekly b a s is and sets a calculable threshold for the commencement of compensation at an overtime ra te . See 29 U.S.C. § 207(k). Under the Department of Labor promulgated regulations, employees engaged in fire p ro te c tio n activities must be given overtime pay for all time worked beyond 106 hours each f o u rte e n days. 29 C.F.R. § 553.230(c). However, these same regulations provide that e m p l o ye e s engaged in law enforcement activities must be given overtime pay for all time w o rk e d beyond 86 hours each fourteen days. 29 C.F.R. § 553.230(c). The difference in the n u m b e r of hours which must be worked before an employee must be given overtime pay le a d s Cremeens to contend that he and the other Fire Investigators are engaged in law
enforcement activities and have consequently been underpaid because Montgomery has c o m p e n s a te d them as if they were engaged in fire protection activities. Prior to 1999, this section of the FLSA did not itself define the meaning of several of th e key terms used in it such as "engaged in fire protection" or "engaged in law enforcement a c tiv itie s ." The Department of Labor filed this void with various regulations defining fire p ro te c tio n or law enforcement activities; addressing the proper classification of employees w h o engaged in fire protection or law enforcement activities, but who also engaged in other w o rk during slack times; and explaining how to properly classify employees who engaged in both fire protection and law enforcement activities. See, e.g., 29 C.F.R.§§ 553.110, 5 5 3 .2 1 1 , 553.212, 553.213. In 1999, Congress amended the FLSA to add a statutory definition of "employee in f ire protection activities." This amendment added 29 U.S.C. § 203(y) which currently states: " E m p lo ye e in fire protection activities" means an employee, including a f ire f ig h te r, paramedic, emergency medical technician, rescue worker, a m b u la n c e personnel, or hazardous materials worker, who (1) is trained in fire suppression, has the legal authority and re s p o n s ib ility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and (2) is engaged in the prevention, control, and extinguishment o f fires or response to emergency situations where life, property, o r the environment is at risk. 29 U.S.C. 203(y). Unfortunately, the Department of Labor has not revised its regulations s in c e this key legislative change despite the obvious conflict between the regulations and the 9
new statutory definition. See, e.g., McGavock v. City of Water Valley, Miss., 452 F.3d 423, 4 2 6 (5th Cir. 2006). C o n s e q u e n tly, a number of courts, including the Eleventh Circuit Court o f Appeals, have been called upon to address this tension in the law. In Huff v. Dekalb County, Ga., 516 F.3d 1273 (11th Cir. 2008), a group of current and f o rm e r firefighter/paramedics and fire medics employed by a county fire department sued the c o u n ty and its fire chief alleging failure to pay overtime wages in violation of the FLSA. The E le v e n th Circuit affirmed the district court's decision to grant the fire department's motion f o r summary judgment because it properly found that the plaintiffs met the definition of e m p lo ye e s in fire protection activities as defined in 29 U.S.C. § 203(y). Id. at 1277-82. In re a c h in g this holding, the Eleventh Circuit specifically rejected the plaintiffs' urging to apply th e regulatory definition of employee engaged in fire protection activities set forth at 29 C .F .R . § 553.210 and the "80/20 Rule" set forth at 29 C.F.R. § 553.212, which provided that o th e rw is e exempt employees may not be considered employees engaged in fire protection a c tiv itie s if they spend more than twenty percent of their working time engaged in activities n o t related to fire suppression. Id. at 1277-78. Following the lead of the Fifth Circuit Court o f Appeals in McGavock, the Eleventh Circuit held that the enactment of § 203(y) rendered b o th the regulatory definition set forth at 29 C.F.R. § 553.210 and its "subsidiary regulation" (th e "80/20 Rule" set forth at 29 C.F.R. § 553.212) obsolete and without effect. Id. at 1278. Thus, the only relevant inquiry was whether the plaintiffs met the statutory definition set f o r t h in § 203(y). Id. Despite the fact that these employees rarely or in some cases never
engaged in fire suppression, the Court found that they had been properly compensated b e c a u s e they nevertheless met the criteria set forth in § 203(y). Id. at 1278-1282. In less th a n a year, the Eleventh Circuit again decided a case raising these issues and once again it h e ld that "the congressional enactment of § 203(y) in 1999 rendered § 553.212 and the 80/20 R u le in § 553.212 obsolete." Gonzalez v. City of Deerfield Beach, Fla., 549 F.3d 1331, 1336 (1 1 th Cir. 2008). The instant case presents an apparent question of first impression regarding the c o n tin u e d vitality of another of the "subsidiary regulations" promulgated by the Department o f Labor prior to the Congressional enactment of § 203(y). Specifically, the regulation at is su e in this action is the one which addresses "dual assignment." See 29 C.F.R. § 553.213. That regulation recognizes that the maximum hour standards under § 207(k) are different for e m p lo ye e s engaged in fire protection and for employees engaged in law enforcement and p ro v id e s that [f]or those employees who perform both fire protection and law e n f o rc e m e n t activities, the applicable standard is the one which a p p lie s to the activity in which the employee spends the majority o f work time during the work period. 2 9 C.F.R. § 553.213(b). Thus, this regulation recognizes what might be called a 51% rule f o r deciding whether to treat such dual employees under the maximum hour standards for e m p lo ye e s engaged in fire protection or those for employees engaged in law enforcement. Cremeens argues for the application of 29 C.F.R. § 553.213(b) to this case and a f in d in g that because the majority of his time is spent working in law enforcement activities 11
he should be subject to the maximum hour standards for employees engaged in law e n f o rc e m e n t. Had Congress not enacted § 203(y) such an argument would clearly be a p e rs u a s iv e one. In the wake of the enactment of § 203(y), the Court is compelled to a c k n o w le d g e the inherent conflict between the statutory definition of "employee in fire p r o t e c t i o n activities" and the dual employee rule set forth in 29 C.F.R. § 553.213(b). It is c le a r that § 203(y) supplants the definition set forth in § 553.210. Indeed, as previously d is c u s se d , the Eleventh Circuit and other courts have previously recognized this. Furthermore, it is clear that the rule in this circuit is that the subsidiary regulation (§ 553.212) s e ttin g forth the so called 80/20 rule is obsolete because it has also been supplanted by the d e f in itio n set forth in § 203(y). Now, this Court faces the question of whether § 553.213 is a ls o a regulation that is subsidiary to § 553.210 and obsolete because it is in conflict with the s ta tu to ry definition provided by § 203(y). The Court finds that is in fact the case. The dual a s s ig n m e n t regulation at issue specifically invokes the definitions set forth in §§ 553.210 and 5 5 3 .2 1 1 . See 29 C.F.R. § 553.213(a). Furthermore, just as the 80/20 rule further refined the d e f in itio n of an employee engaged in fire protection activities, it is necessary to recognize th a t § 533.213(b) also further refined that definition by excluding persons who don't spend th e majority of their time in that capacity because of their additional law enforcement r e s p o n s i b ilitie s . Certainly, Congress knew how to include such limitations as these in d ra f tin g the definition of "employee in fire protection activities" to be included in the statute. Rather than including such limitations, however, Congress elected instead to cast a broader
net. The inherent conflict created by this election compels the finding that, like §§ 553.210 a n d 553.212, § 553.213(b) is also obsolete because the new statutory definition has s u p p la n te d it. Indeed, this case provides a nice illustration of why there exists an inherent conflict b e tw e e n § 553.213(b) and § 203(y). There is no real dispute in this case that Cremeens and th e other Fire Investigators satisfy § 203(y)'s statutory definition of employees in fire p ro te c tio n activities; nevertheless, it is also true that it cannot be said that they spend the m a jo rity of their time in fire protection activities. If this Court were to apply § 553.213(b), it would be compelled to find that despite meeting the statutory definition they were not e n g a g e d in fire protection activities because the definition had been further narrowed by the D e p a rtm e n t of Labor regulations. The regulations may not conflict with or supercede the e x p re s s e d Congressional intention in statute in furtherance of which they were promulgated. T h e re f o re , the Court holds that the dispositive issue before it is whether Cremeens and th e opt-in plaintiffs meet the definition set forth in § 203(y). If they do, the Court is c o m p e lle d to find that they have been properly compensated under the FLSA now that M o n tg o m e ry has corrected its previous error and paid them overtime paid for hours worked in excess of 106 hours every 14 days.6 The Court begins by noting that nowhere has C re m e e n s contended that he and the other Fire Investigators do not meet the definition set
See Joint Motion for Approval of Partial Settlement (Doc. # 38) and Order A p p ro v in g Partial Settlement (Doc. # 41). 13
forth in § 203(y). Indeed, the undisputed evidence before this Court, even when viewed in th e light most favorable to Cremeens, establishes that Montgomery's Fire Investigators do m e e t every aspect of the statutory definition of "employee in fire protection activities" set f o rth in 29 U.S.C. § 203(y). Because they are employees engaged in fire protection activities, th e maximum hour standards applicable to them are set forth in 29 C.F.R. § 553.230(a). It is undisputed that they have now been compensated in accordance with those standards. For th is reason, the Court finds that the motion for summary judgment is due to be GRANTED a n d Montgomery is entitled to judgment as a matter of law. CONCLUSION H a v in g reviewed and applied the relevant law to the undisputed facts of this case, the C o u rt is persuaded that no genuine issue exists as to any material fact. Furthermore, the C o u rt finds that Montgomery is entitled to judgment as a matter of law on all of Plaintiffs' re m a in in g claims. Accordingly, it is hereby ORDERED as follows: (1 ) The Motion for Summary Judgment (Doc. # 36) filed by Defendant on July 10, 2 0 0 9 is GRANTED. (2 ) The pretrial conference and trial in this cause are hereby CANCELLED. (3 ) A separate judgment will be entered in Defendant's favor taxing costs against P la in tif f s . Done this the 7th day of October, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 14
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