Watkins v. The City of Montgomery

Filing 92

MEMORANDUM OPINION AND ORDER denying 65 MOTION for Summary Judgment. Signed by Honorable Judge Mark E. Fuller on 1/29/2013. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ROOSEVELT WATKINS, et al.,
Plaintiffs,
v.
CITY OF MONTGOMERY,
Defendant.

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CASE NO. 2:11-cv-158-MEF
(WO – Publish)

MEMORANDUM OPINION AND ORDER
Roosevelt Watkins (“Watkins”), a Lieutenant in the Division of Fire Suppression
(“Suppression Division”) of the Montgomery Fire Department (“MFD”), brings this
collective action pursuant to the Fair Labor Standards Act, 29 U.S.C. § 207(a) (hereinafter
“FLSA” or the “Act”), against his employer, the City of Montgomery (the “City”), seeking
overtime compensation to which he claims he is entitled. Specifically, Watkins contends that
he is entitled to overtime compensation as a non-exempt “first responder,” pursuant to the
Department of Labor’s (“DOL”) “first responder” regulation, 29 C.F.R. § 541.3(b). This
cause is now before the Court on the Motion for Summary Judgment (Doc. #65) filed by the
City on October 25, 2012. For the reasons set forth in this Memorandum Opinion and Order,
the motion is due to be DENIED.
I. PROCEDURAL BACKGROUND
On March 7, 2011, Watkins filed suit against the City of Montgomery, alleging that,
at all times relevant to this action, the City employed him as a Fire Suppression Lieutenant

with the MFD Suppression Division. He further alleges that the City failed to pay him
mandatory overtime compensation for each hour he worked in excess of 106 hours in a
fourteen-day pay period, as required by the FLSA. See 29 U.S.C. § 207(k). The City asserts
affirmative defenses under the executive and administrative exemptions to the FLSA’s
overtime requirements. See 29 U.S.C. § 213(a)(1).
On July 14, 2011, Watkins moved to have this matter conditionally certified as a
collective action pursuant to 29 U.S.C. § 216(b). (Doc. #47.) Over the City’s objection, the
Court conditionally certified this matter as a collective action (see Order, Doc. #51),1 and
several other MFD Fire Suppression Lieutenants have since joined this lawsuit.2
In its Motion for Summary Judgment, the City argues that it is entitled to judgment
as a matter of law because Plaintiffs fall within the executive and administrative exemptions
to the FLSA overtime pay requirements. Having carefully considered the submissions in
support of and in opposition to the City’s motion, as well as the applicable law and the record
as a whole, the Court disagrees, and the motion is due to be DENIED.
II. JURISDICTION AND VENUE
Jurisdiction over the claims in this action is proper under 28 U.S.C. § 1331 (federal

1

Although the Court conditionally certified as a class all Fire Suppression Lieutenants
who worked for the City dating back to February 22, 2005, at that time the Court refused to express
an opinion on the merits of the City’s argument that the three-year statute of limitations under the
FLSA should preclude recovery for any claims arising before March 8, 2008, finding that issue more
appropriately suited for the summary judgment stage of the proceedings. (Doc. #51, at 4–5.)
2

The Court will refer in this opinion to the claims and contentions of all plaintiffs
collectively and will refer to those individuals as “Plaintiffs.”

2

question) and 29 U.S.C. § 216(b), the collective action provision of the FLSA. The parties
do not contest personal jurisdiction or venue, and the Court finds adequate allegations in
support of both.
III. SUMMARY JUDGMENT STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine [dispute] as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Id. at 323. The movant can meet this burden
by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving 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.
Entitlement to an overtime exemption under the FLSA is an affirmative defense upon
which a defendant bears the burden of proof. Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1269 (11th Cir. 2008). A defendant may prevail on a motion for summary on an
affirmative defense, such as an entitlement to an exemption under the FLSA, when it has
produced “credible evidence . . . that would entitle it to a directed verdict if not controverted
3

at trial.” See Celotex, 477 U.S. at 331. The Supreme Court has established that an
exemption from coverage under the FLSA must be narrowly construed. Phillips, Inc. v.
Walling, 324 U.S. 490, 493 (1945); see also Morgan, 551 F.3d at 1269. The overtime
exemptions under the FLSA are to be applied only to those employees who are “plainly and
unmistakably” within the terms and spirit of the Act. Phillips, 324 U.S. at 493.
Once 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
interrogatories, and admissions on file, designate specific facts showing that there is a
genuine issue for trial.” Id. at 324 (internal quotations omitted). To avoid summary
judgment, the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” 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 the non-movant and must draw all justifiable
inferences from the evidence in the non-moving party’s favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). After the non-moving party has responded to the motion for
summary judgment, the court must grant summary judgment if there is no genuine dispute
of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c).

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IV. FACTS
The Court has carefully considered all the evidence submitted in support of and in
opposition to the motion. The submissions of the parties, viewed in the light most favorable
to the Plaintiffs, establish the following relevant facts:
The Montgomery Fire Department is headed by the Fire Chief, who is the highest
ranking officer. The Deputy Fire Chief (“Deputy Chief”) reports directly to the Fire Chief
and is responsible for managing the day-to-day operations of the MFD by writing policies
and procedures, operating guidelines, and rules and regulations; assisting in making
personnel and apparatus assignments; and purchasing apparatus. The Deputy Chief also
supervises the six Assistant Fire Chiefs, each of whom is responsible for one of the MFD’s
six operating divisions: Administrative Division, Training Division, Emergency Medical
Services Division, Special Operations Division, Inspections and Investigations Division, and
the Fire Suppression Division. K. Bolling (“Chief Bolling”) has served as the Assistant Fire
Chief over the Fire Suppression Division since November 2008.3
Watkins is employed as a Fire Suppression Lieutenant in the MFD’s Fire Suppression
Division. The Suppression Division handles the day-to-day fire-fighting operations of the
MFD. The Suppression Division is made up of twenty-two fire companies, each of which
is assigned one captain and two lieutenants.4 The twenty-two companies are housed in

3

C.E. Walker (“Chief Walker”) held this position before Chief Bolling.

4

Each captain and the lieutenants rotate shifts every third day. As a result, a
captain is generally never on shift with a lieutenant for a particular company.
5

fifteen stations located throughout the City of Montgomery. The City is further divided into
four districts, each of which is managed by three District Chiefs.5
Each fire company operates on a repeating cycle of three twenty-four-hour shifts at
each fire station—“A” shift, “B” shift, and “C” shift. (Def.’s Ex. I, Aff. of J.L. Petrey, at ¶
5, Doc. #66-9.) Each shift is assigned to operate one of three apparatuses—a fire engine
(also called a pumper truck), a ladder truck, or a heavy rescue truck. (Def.’s Ex. I, at ¶ 5.)
Each company assigned to a particular apparatus includes one captain and two lieutenants,
each of whom supervises a different shift of their company. (Def.’s Ex. I, at ¶ 5.) Fire
Suppression Lieutenants have command of their fire companies during their assigned shifts.
(Def.’s Ex. I, at ¶ 5.) There are also four District Chiefs on duty during each twenty-four
hour shift, and they usually visit each station under their command during their shifts.
(Def.’s Ex. I, at ¶ 6.)
It is undisputed that when Fire Suppression Lieutenants are on duty, they are the
highest ranking officers in charge of their assigned company, and it is their duty to supervise
the other firefighters in their company while at the fire station and when responding to
emergency calls. (Def.’s Ex. I, at ¶ 6.) The job description of a Fire Suppression Lieutenant
characterizes their work as “skilled firefighting work and supervisory work directing
activities of a fire company during an assigned shift or special division work.” (Def.’s Ex.
A, at 1, Doc. #66-1.) Fire Suppression Lieutenants are not required to perform manual-labor

5

There are twelve District Chiefs in the MFD Suppression Division. (Def.’s Br. in
Support, Doc. #66, at 3 n.1.)

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tasks, such as cutting grass at the fire stations and cleaning the station floors, but are required
to participate in all physical training activities with their companies and to maintain good
physical condition. (Def.’s Ex. I, at ¶¶ 6–7.) Fire Suppression Lieutenants have the duty of
recommending whether employees in their companies receive merit raises and promotions
and are required to perform evaluations on employees throughout the year. (Def.’s Ex. I, at
¶ 8.)
While on duty, Fire Suppression Lieutenants are responsible for responding to every
emergency call to which their station is dispatched. (See Pls.’ Exs. F–M, Affs. of Fire
Suppression Lieutenants, Docs. ##68-6–68-14.) When responding to emergency calls, Fire
Suppression Lieutenants determine the size of the unit necessary to combat the fire or
emergency, communicate that determination to the MFD, supervise the officer driving the
truck to the scene, and command the emergency scene until relieved by their superior
officers—typically the District Chiefs. After being relieved, Fire Suppression Lieutenants
direct their companies in fire suppression or rescue operations and directly participate in
those operations as needed. (Def.’s Ex. I, at ¶ 9; Def.’s Ex. J, at ¶ 9, Doc. #66-10.) Fire
Suppression Lieutenants are required to carry a full complement of firefighting gear: a fire
helmet, protective hood, coat, pants, boots, gloves, a spanner wrench,6 and a self-contained
breathing apparatus. (Pls.’ Ex. F, Aff. of Watkins, at ¶ 9, Doc. #68-6.)
The City has adopted a fourteen-day work period in which pay, overtime, and

6

A spanner wrench is a multi-function tool specially designed for fire-fighting that, among
other things, is used to tighten fire hose couplings.

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compensatory time is calculated. In between each twenty-four hour shift, Fire Suppression
Lieutenants receive forty-eight hours “off.” Due to this repeating schedule, Fire Suppression
Lieutenants’ normal tour of duty requires them to work 104, 112, and 120 hours in successive
pay periods.
In October 2004, the City began paying Fire Suppression Lieutenants overtime for
hours worked in excess of 106 hours during a single pay period pursuant to the newly
promulgated first responder regulation.7 However, on February 22, 2005, then-Fire Chief
John McKee distributed a memorandum to all MFD employees stating that “[a]fter
consultations with the Department of Labor,” the MFD had decided to classify all Fire
Lieutenants except those employed as Fire Medic Lieutenants as exempt employees and to
stop paying them overtime. (Pls.’ Ex. V, Doc. #68-22.) It is undisputed that no employee
of the City ever consulted with the United States Department of Labor (“DOL”) regarding
Plaintiffs’ classification as first responders (Def.’s Resp. to Pl.’s Mot. to Facilitate Class
Notice, Doc. #50, at 5). There is also no evidence showing that the City ever sought an
opinion letter from the DOL on Plaintiffs’ first responder classification.
Since March 2005, the City has not paid Fire Suppression Lieutenants overtime pay
for all hours worked in excess of 106 hours each two-week pay period.

7

29 C.F.R. § 541.3(b)(1).

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V. DISCUSSION
A.

Applicable Law
1.

Overview of the Fair Labor Standards Act and Its Executive and
Administrative Exemptions

The FLSA governs minimum wage and overtime requirements for employees covered
under the Act. The FLSA requires that overtime be paid to covered employees at the rate of
one and one-half times an employee’s base rate of pay for hours worked in excess of the
statutorily set 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, however, provides an exemption to the typical forty-hour workweek for
“any employee in fire protection activities or any employee in law enforcement activities.”
29 U.S.C. § 207(k). In certain circumstances, this exemption allows public agencies
employing persons engaged in fire protection or law enforcement activities to calculate an
employee’s hours for overtime purposes according to work periods of twenty-eight days,
rather than on a weekly basis, and sets a calculable threshold for the commencement of
compensation at an overtime rate.

See 29 U.S.C. § 207(k). Under the regulations

interpreting § 207(k), which were promulgated by the DOL, employees engaged in fireprotection activities must be given overtime pay for all time worked beyond 106 hours each
fourteen days. 29 C.F.R. § 553.230(c).
However, the FLSA provides for an exemption to the overtime requirement for
persons “employed in a bona fide executive, administrative, or professional capacity.” 29

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U.S.C. § 213(a)(1). As stated above, these exemptions “are to be construed narrowly, and
the employer shoulders the burden of establishing that it is entitled to an exemption.”
Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1156 (11th Cir. 2008)
(internal quotation marks and citation omitted).
Under the DOL regulations, an employee can be classified as a bona fide executive
if: (1) he is “[c]ompensated on a salary basis at a rate of not less than $455 per week”; (2) his
“primary duty is management of the enterprise in which [he] is employed or of a customarily
recognized department or subdivision thereof”; (3) he “customarily and regularly directs the
work of two or more other employees”; and (4) he “has the authority to hire or fire other
employees,” or his “suggestions and recommendations as to the hiring, firing, advancement,
promotion[,] or any other change of status of other employees are given particular weight.”
29 C.F.R. § 541.100(a).
An employee falls within the administrative exemption if: (1) he is “[c]ompensated
on a salary basis at a rate of not less than $455 per week”; (2) his “primary duty is the
performance of office or non-manual work directly related to the management or general
business operations of the employer or the employer’s customers”; and (3) his “primary duty
includes the exercise of discretion and independent judgment with respect to matters of
significance.” 29 C.F.R. § 541.200(a).
The regulations define “primary duty” as “the principal, main, major or most
important duty that the employee performs.” 29 C.F.R. § 541.700(a). A court must base its
determination of an employee’s primary duty under either of these exemptions “on all the
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facts in a particular case, with the major emphasis on the character of the employee’s job as
a whole.” 29 C.F.R. § 541.700(a); see also Barreto v. Davie Marketplace, LLC, 331 Fed.
App’x 672 (11th Cir. 2009) (applying this principle). Relevant factors to be considered in
this analysis include, but are not limited to: “the relative importance of the exempt duties as
compared with other types of duties; the amount of time spent performing exempt work; the
employee’s relative freedom from direct supervision; and the relationship between the
employee’s salary and the wages paid to other employees for the kind of nonexempt work
performed by the employee.” 29 C.F.R. § 541.700(a).
The Eleventh Circuit has noted that the amount of time an employee spends
performing exempt tasks, although a relevant factor, “is not dispositive of the primary duty
issue.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1270 (11th Cir. 2008); see also
29 C.F.R. § 541.700(a). An employee will generally satisfy the primary duty requirement
if he spends more than half of his time performing exempt tasks. 29 C.F.R. § 541.700(b).
Nevertheless, “[e]mployees who do not spend more than 50 percent of their time performing
exempt duties may . . . meet the primary duty requirement if the other factors support such
a conclusion.” Id.
2.

First Responder Regulation

In 2004, after notice and comment rule-making, the DOL enacted regulations,
including the first responder regulation at issue in this case, which narrowed the scope of the

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executive and administrative exemptions.8 See 69 Fed. Reg. 22122, 22122 & 22130 (Apr.
23, 2004).9
The first responder regulation, 29 C.F.R. § 541.3(b), provides that these “white collar”
exemptions “do not apply to fire fighters, paramedics, emergency medical technicians,
ambulance personnel, rescue workers, hazardous materials workers and similar employees,
regardless of rank or pay level, who perform work such as preventing, controlling or

8

The Court affords the DOL’s regulation controlling weight. See Chevron U.S.A., Inc.
v. Natural Res. Defense Council, 467 U.S. 837, 843–44 (1984) (“If Congress has explicitly left a gap
for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific
provision of the statute by regulation. Such legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the statute.”); Gregory v. First Title
of Am., Inc., 555 F.3d 1300, 1302 (11th Cir. 2009) (stating that the FLSA regulations, “promulgated
pursuant to an express delegation of legislative authority, are to be given controlling weight unless
found to be arbitrary, capricious, or contrary to the statute”). The Court also affords considerable
deference to the DOL’s interpretation of the first responder regulation, because the DOL is the
agency responsible for implementing the FLSA, Patel v. Quality Inn South, 846 F.2d 700, 703 (11th
Cir. 1988). The Court is obligated to afford the agency’s interpretation deference even if that
interpretation is articulated in a legal brief, so long as they are not “plainly erroneous or inconsistent
with the regulations being interpreted.” See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158,
171 (2007) (“Where . . . an agency’s course of action indicates that the interpretation of its own
regulation reflects its considered views[,] . . . we have accepted that interpretation as the agency’s
own, even if the agency set those views forth in a legal brief.”) (citing Auer v. Robbins, 519 U.S.
452, 461 (1997)).
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The preamble of the regulation stated:

The minimum wage and overtime pay requirements of the Fair Labor Standards Act
(FLSA) are among the nation’s most important worker protections. These
protections have been severely eroded, however, because the Department of Labor
has not updated the regulations defining and delimiting the exemptions for “white
collar” executive, administrative and professional employees. By way of this
rulemaking, the Department seeks to restore the overtime protections intended by the
FLSA.
69 Fed. Reg. at 22122.

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extinguishing fires of any type [or]rescuing fire, crime or accident victims . . . .” 29 C.F.R.
541.3(b)(1) (emphasis added).
The preamble expressly addressed the DOL’s reasons for promulgating the first
responder regulation:
The current regulations do not explicitly address the exempt status of police
officers, fire fighters, paramedics or EMTs. This silence in the current
regulations has resulted in significant federal court litigation to determine
whether such employees meet the requirements for exemption as executive,
administrative or professional employees. Most of the courts facing this issue
have held that police officers, fire fighters, paramedics and EMTs and similar
employees are not exempt because they usually cannot meet the requirements
for exemption as executive or administrative employees . . . . The [DOL] has
no intention of departing from this established case law. Rather, for the first
time, the [DOL] intends to make clear in these revisions . . . that such police
officers, fire fighters, paramedics, EMTs and other first responders are entitled
to overtime pay. Police sergeants, for example, are entitled to overtime pay
even if they direct the work of other police officers because their primary duty
is not management or directly related to management or general business
operations . . .
69 Fed. Reg. at 22129 (emphasis in original).
The preamble to the 2004 revisions also noted that several federal courts had ruled
that “high-level police and fire officials” were exempt only if the employee’s primary duty
was performing managerial tasks, including:
evaluating personnel performance; enforcing and imposing penalties for
violations of the rules and regulations; making recommendations as to hiring,
promotion, discipline or termination; coordinating and implementing training
programs; maintaining company payroll and personnel records; handling
community complaints, including determining whether to refer such
complaints to internal affairs for further investigation; preparing budgets and
controlling expenditures; ensuring operational readiness through supervision
and inspection of personnel, equipment and quarters; deciding how and where
to allocate personnel; managing the distribution of equipment; maintaining
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inventory of property and supplies; and directing operations at crime, fire or
accident scenes, including deciding whether additional personnel or equipment
is needed.
69 Fed. Reg. at 22130 (collecting cases).
The Eleventh Circuit has yet to interpret and apply this regulation. However, the
United States Court of Appeals for the Second Circuit recently examined the applicability
of the first responder regulation to sergeants with the New York Police Department who had
been denied overtime pay on the basis of the executive exemption. See Mullins v. New York,
653 F.3d 104 (2d Cir. 2011). In Mullins, the Second Circuit found that (1) the first responder
regulation was ambiguous when read in light of the bona fide executive exemption and its
interpreting regulation, 29 C.F.R. § 541.102, defining the primary duty of “management,”
id. at 113; (2) the Secretary of the DOL’s interpretation of the regulation—that the first
responder regulation did not “purport to make all police officers non-exempt,” but that the
“determining factor [of first responders’ exempt status] remains their primary duty,” id. at
110—was not plainly erroneous or inconsistent with the regulation, id. at 117; and (3) the
DOL’s interpretation was entitled to controlling deference. Id.
In accepting the Secretary’s interpretation, the Second Circuit concluded that courts
must consider whether the management and supervisory work performed by the categories
of employees listed in the first responder regulation is performed as part of the employees’
duties as first responders. Id. at 116. In reaching its conclusion that the police sergeants’
primary duty was law enforcement, not management, the Second Circuit highlighted the
DOL’s view that “giving direction and exercising discretion while performing field law
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enforcement work do not transform [the sergeants’] non-management primary duty [into] a
management primary duty.” Id. at 118 (quoting DOL Amicus Br. at 11) (internal quotation
marks omitted).
Ultimately, the Second Circuit held that, when an employee’s management or
supervisory tasks are performed while exercising their first responder duties, the employee’s
supervision should not be deemed management under the executive exemption; however,
when management tasks are “performed by high-level personnel who typically d[o] not
engage in any front-line activities,” those duties would still be considered management. See
id. The Court believes that the Second Circuit’s holding is consistent with the DOL’s
regulation. See 29 C.F.R. § 541.3(b)(2)–(3) (“Such employees do not qualify as exempt
executive employees because their primary duty is not management of the enterprise . . . .
[Nor do they] qualify as exempt administrative employees because their primary duty is not
the performance of work directly related to the management or general business operations
of the employer[.]”).10
Plaintiffs argue that the first responder regulation at 29 C.F.R. § 541.3(b) should
control the Court’s decision in this case, because their primary duty is fighting fires rather
than managing “the enterprise in which [they] are employed or a customarily recognized
10

A district court in the Sixth Circuit (which, like the Eleventh Circuit, has yet to interpret
and apply the first responder regulation) has very recently relied on the Second Circuit’s
interpretation of the first responder regulation in applying the regulation to a factually similar case
to the one at bar. See Barrows v. City of Chattanooga, No. 1:10-cv-280, 2012 WL 5451525, at *6–7
(E.D. Tenn. Nov. 7, 2012) (concluding there was factual dispute over whether fire captains’ primary
duty was controlling or extinguishing fires or management and denying defendant’s motion for
summary judgment on basis of the executive and administrative exemptions).

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department or subdivision” of that enterprise. 29 C.F.R. § 541.3(b)(2). The Court does not
accept the Plaintiffs’ argument that the first responder regulation supplants the executive and
administrative exemptions and their interpreting regulations. Instead, in light of the wellreasoned conclusion reached by the Second Circuit in Mullins and the DOL’s interpretation
of the first responder regulation as to police officers who perform law enforcement work in
the field, the Court concludes that the first responder regulation must be applied “in
conjunction with” the executive and administrative exemptions. Barrows, 2012 WL
5451525, at *7; see also Mullins, 653 F.3d at 110 (“The regulation applies to any officer
who, regardless of rank or pay-level, performs the types of duties enumerated in section
541.3(b)(1), and therefore must inform any analysis when the employees at issue are police
officers who perform law enforcement work in the field.” (quoting DOL’s Amicus Br. at 3)
(internal quotation marks omitted)).
B.

Plaintiffs’ Exempt Status
In its Motion for Summary Judgment, the City argues that: (1) Plaintiffs are subject

to the executive exemption because their primary duties are managing and directing the
firefighters under their command; and (2) Plaintiffs are subject to the administrative
exemption because their primary duties are related to the general business operations of the
fire company and because they exercise discretion and independent judgment as to daily
operations, emergency situations, and staffing decisions.
In response, Plaintiffs contend that they are non-exempt first responders under the
language of § 541.3(b) because their primary duty is “preventing, controlling, or
16

extinguishing fires and rescuing fire or accident victims.” (Pls.’ Br., at 16, Doc. #73.) In
other words, Plaintiffs argue that there is at least a genuine dispute of material fact as to
whether Plaintiffs can be classified as exempt from the FLSA’s overtime requirements under
either the administrative or executive exemptions or as non-exempt under the first responder
regulation at 29 C.F.R. § 541.3(b). The Court agrees with Plaintiffs that the dispositive
question to be answered in this case is whether their primary duty is as first responders or as
exempt executive or administrative employees.
The record evidence shows that Plaintiffs’ duties as Fire Suppression Lieutenants
include both first responder tasks and managerial and administrative tasks. The MFD’s job
description for Fire Suppression Lieutenants and the Plaintiffs’ sworn affidavits show that
Plaintiffs are “fire fighters . . . who perform work such as preventing, controlling or
extinguishing fires of any type [or] rescuing fire, crime or accident victims . . . .” 29 C.F.R.
541.3(b)(1). (See Def.’s Ex. A, at 1, Doc. #66-1 (“This is skilled firefighting work and
supervisory work directing activities of a fire company . . . .); Watkins Aff., Pls.’ Ex. F, at
¶ 10, Doc. #68-6 (“When I am on duty, I respond to every [emergency] call to which my
company is dispatched. At an emergency scene[,] I perform emergency operations including
search and rescue operations [and] extinguishing fires . . . .”)).
The City contends, however, that the majority of Plaintiffs’ duties were management
duties: conducting trainings, preparing employee evaluations, setting daily schedules, and
directing the activities of the company at the fire station. The City presented evidence that
a very small percentage of Plaintiffs’ time—not more than three to four hours per shift—was
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spent responding to emergency calls. However, even if Plaintiffs spent only a small
percentage of each shift responding to emergency calls, the percentage of time spent on
exempt duties does not decide the primary duty question if the other relevant factors—such
as the employee’s relative freedom from supervision and the relative importance of the
exempt duties in relations to the non-exempt duties—support the conclusion that Plaintiffs
are first responders. See 29 C.F.R. § 700.
As to the level of discretion possessed by Fire Suppression Lieutenants, Plaintiffs
presented evidence that their duties were not relatively free from supervision and that they
had very little discretion in the exercise of their duties, even when supervising their fire
company. Plaintiffs argue that their decisions were largely constricted by the Rules and
Regulations of the MFD and that they did not have the discretion to assign tasks, determine
what topics would be covered in the trainings or the daily schedule for their company, or take
disciplinary actions. Plaintiffs have presented evidence showing that the day-to-day fire
station tasks were assigned by the Captains prior to the start of the shift and that the
firefighters knew prior to the start of their shifts which tasks they were responsible for. (Pls.’
Ex. D, MFD Rules and Regulations, Doc. #68-4, at 9; Pls.’ Ex. F, Watkins Aff., at ¶ 13, Doc.
#68-6). While there is evidence that Plaintiffs exercised the most discretion in the direction
of their company while responding to emergency calls, the supervisory nature of Plaintiffs’
work when fighting fires does not preclude application of the first responder regulation. The
regulation states, in pertinent part, that a “fire fighter whose primary duty is to investigate
crimes or fight fires is not exempt under section 13(a)(1) of the [FLSA] merely because the
18

. . . fire fighter also directs the work of other employees in . . . fighting a fire.” 29 C.F.R. §
541.3(b)(2).
When considering the relative importance of Plaintiffs’ first responder duties as
compared with their managerial or administrative tasks, the Court finds that a reasonable
juror could conclude that this factor weighs in favor of characterizing the Plaintiffs as first
responders rather than exempt executive or administrative employees. The Plaintiffs
presented evidence that they are required to maintain good physical condition and to carry
the same firefighting gear as the rest of their company. These facts, along with the very first
sentence of the MFD’s job description, which characterizes a Fire Suppression Lieutenant’s
work as “skilled firefighting work and supervisory work directing activities of a fire company
. . . ” supports the Court’s conclusion that there is a disputed issue of fact as to whether
Plaintiffs should be classified as executive and administrative exempt employees or nonexempt first responders.
As to the relationship between the salary of Fire Suppression Lieutenants and the
salary and wages paid to other non-exempt employees performing the same type of work, the
City directs the Court to the City of Montgomery Pay Plan (“Pay Plan”). (Def.’s Ex. B, Doc.
#66-2).

As evidence that Plaintiffs receive extra compensation for their additional

management duties, the City points out that Fire Suppression Lieutenants receive a higher
annualized salary than the lower-ranking firefighters they supervise. However, the Pay Plan
does not appear to take into account the extra overtime wages that the lower-ranking
firefighters receive because they are classified as non-exempt first responders. In sum, the
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City has provided no concrete comparison of the total wages received by Plaintiffs and the
firefighters they supervise. Thus, the Court concludes that this factor does not weigh in favor
of Plaintiffs’ primary duty being managerial.
Because the Court concludes there is an issue of disputed fact on whether the primary
duty of a Fire Suppression Lieutenant is one of a first responder or one of an exempt
executive or administrative employee, the Court finds that Defendant’s Motion for Summary
Judgment is due to be denied.
C.

Applicable Statute of Limitations
The statute of limitations for overtime claims under the FLSA is generally two years,

but if a claim is one “arising out of a willful violation,” another year is added to it. 29 U.S.C.
§ 255(a).

To establish such a willful violation, “the employee must prove by a

preponderance of the evidence that his employer either knew that its conduct was prohibited
by the statute or showed reckless disregard about whether it was.” Alvarez Perez v.
Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1162–63 (11th Cir. 2008) (citing
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)) (emphasis added). The Code
of Federal Regulations defines reckless disregard in this context to be “failure to make
adequate inquiry into whether conduct is in compliance with the [FLSA].” 5 C.F.R. §
551.104.
The City is not seeking summary judgment on the issue of whether the appropriate
limitations period to be applied in this case is the two-year limitations period, rather than the
three-year period for a “willful violation” under 29 U.S.C. § 255(a). (See Def.’s Br. in
20

Support, at 32, Doc. #66.)11 Instead, the City requests a ruling from the Court that any claims
arising before March 7, 2008, three years before the filing of this lawsuit, are barred by even
the most generous limitations period under the FLSA. Plaintiffs respond that the limitations
period should be tolled from February 22, 2005, until July 12, 2011,12 under the doctrines of
equitable tolling and equitable estoppel, which would essentially extend the limitations
periods for claims in this lawsuit to seven years.
Before tolling the applicable statute of limitations under the FLSA, the Court must
find that extraordinary circumstances exist to justify applying this equitable principle. See
Jackson v. Astrue, 506 F.3d 1349, 1353–54 (11th Cir. 2007) (“Equitable tolling is appropriate
in situations where the defendant misleads the plaintiff, allowing the statutory period to
lapse; or when the plaintiff has no reasonable way of discovering the wrong perpetrated
against her.” (quoting Cabello v. Fernandez-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005)).
The Eleventh Circuit has noted that “the equitable tolling doctrine [is] most often applied
. . . in the situation in which a defendant’s fraudulent deceptions leave a plaintiff ignorant of
the facts or even existence of his claim.” In re Int’l Admin. Servs., Inc., 408 F.3d 689, 701
(11th Cir. 2005) (citing Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946)). In such a
11

Even if the undisputed evidence before the Court had established a violation of the
FLSA in this case, the issue of whether such a violation was “willful” would pass summary
judgment. Indeed, the fact-specific inquiry as to whether such a violation was willful is generally
best left to the jury. See McGuire v. Hillsborough Cnty., Fla., 511 F. Supp. 2d 1211, 1218 (M.D.
Fla. 2007).
12

July 12, 2011, is the date that Plaintiffs allege that the City of Montgomery disclosed
through its discovery responses that no City employee had ever consulted with the DOL before
Chief McKee distributed the February 22, 2005, memorandum to the MFD.

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situation, the limitations period is tolled until a plaintiff discovers the fraud. Id.
The Eleventh Circuit has recognized two sets of circumstances in which the principle
of equitable tolling has generally been applied: (1) “when the fraud goes undiscovered
because the defendant has taken positive steps after the commission of the fraud to keep it
concealed, then the statute of limitations is tolled until the plaintiff actually discovers the
fraud” and (2) “[when] the defendant has not actively concealed the fraud, and the plaintiff
[has] exercise[d] due diligence in an attempt to discover the fraud.” In re Int’l Admin. Servs.,
408 F.3d at 701. In the second set of circumstances, “[t]he limitations clock starts ticking
when the plaintiff obtains—or should have obtained—knowledge of the underlying fraud.”
Id.
On a motion for summary judgment, the moving party bears the initial burden of
directing the Court to the undisputed facts which entitle it to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323; Morton’s Mkt., Inc. v. Gustafson’s
Dairy, Inc., 198 F.3d 823, 832 (11th. Cir. 1999). In other words, for Plaintiffs to be limited
to a three-year limitations period, the City must show that Plaintiffs “either knew of their
claim or had notice sufficient to prompt them to investigate and that, had they done so
diligently, they would have discovered the basis for their claims.” Morton’s Mkt., 198 F.3d
at 832 (11th Cir. 1999). The Eleventh Circuit has instructed that:
In determining whether there is an issue of fact for trial regarding plaintiffs
claim of fraudulent concealment, we must resolve all doubt against the moving
party. . . . This standard is applied with particular stringency where it is
claimed that the defendant’s conduct prevented the plaintiff from discovering
his claim prior to the expiration of the limitations period.
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Id. The related issues of when a plaintiff is on “notice” of his claim, and when a plaintiff,
who is exercising due diligence, should have known of the basis for his claims, have
generally been held to be questions of fact for the jury. Id.
In sum, before the Court can determine that equitable tolling is not warranted, the City
must direct the Court to undisputed facts in the record which “demonstrate conclusively that
plaintiffs had notice of their claims, and that, had they exercised reasonable diligence, they
would have discovered adequate grounds” for filing their lawsuit during the limitations
period. Id. (emphasis added). “It is not enough for summary judgment to point to facts
which might have caused a plaintiff to inquire, or could have led to evidence supporting his
claim.” Id. at 832–33.
Plaintiffs allege that Chief McKee’s representation in his February 22, 2005,
memorandum that the City had consulted with the DOL before reclassifying Plaintiffs as
exempt employees (see Pls.’ Ex. V, Doc. # 68-22), was a fraud which prevented them from
discovering their overtime claims under the FLSA before the applicable limitations period
expired. The City has pointed to no facts showing conclusively that Plaintiffs should have
somehow discovered their claims between the date of the February 22, 2005, memorandum
and July 12, 2011, the date the City disclosed that it had never consulted the DOL regarding
the Fire Suppression Lieutenants’ status as non-exempt first responders. In light of the
foregoing, and taking the facts in the light most favorable to Plaintiffs, the Court concludes
that the City has not met its burden to preclude application of equitable tolling. Indeed, the
evidence shows that there is a disputed issue of fact as to whether the City misrepresented
23

and concealed the basis for its decision to stop paying Plaintiffs overtime—that it had
consulted with the DOL regarding Plaintiffs’ exempt status—and whether this
misrepresentation prevented Plaintiffs from discovering their claims.13
VI. CONCLUSION
Having reviewed and applied the relevant law to the facts of this case, the Court finds
that there are disputed issues of material fact and that the City is not entitled to judgment as
a matter of law.

Accordingly, it is hereby ORDERED that the City of Montgomery’s

Motion for Summary Judgment (Doc. #65) is DENIED.
DONE this the 29th day of January, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

13

Because the Court has concluded that there is a disputed issue of fact as to whether the
applicable limitations period should be equitably tolled, the Court finds no need to analyze the
merits of Plaintiffs’ equitable estoppel argument.

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