Cremeens v. The City of Montgomery

Filing 55

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, )

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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. 1 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 3 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 3 2 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 4 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 5 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. 7 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 8 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 10 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 12 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 6 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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