Watkins v. The City of Montgomery
ORDER ON PRETRIAL HEARING directing that: (1) The jury selection and trial of this cause, which is to last (4) days, are set for February 25, 2013, at 10:00 a.m. at the United States Courthouse in Montgomery Alabama; (2) A trial docket will be mailed to counsel for each party approximately three (3) weeks prior to the start of the trial term; (3) The parties are to file their pre-trial briefs, if any, by February 18, 2013; (4) Each party shall have available at the time of trial, for use by the court (the Judge, the courtroom deputy clerk, and the law clerk), three (3) copies of the Exhibit List and a sufficient number of copies of each photostatically reproducible exhibit for opposing counsel, the courtroom deputy clerk, the law clerk, and the Judge to each have a set of the exhibits; (5) All deadlines not otherwise affected by this order will remain as set forth in the 41 Amended Uniform Scheduling Order; (6) All understandings, agreements, deadlines, and stipulations contained in this Pretrial Order shall be binding on all parties unless this Order be hereafter modified by Order of the Court; (7) Trial in this case shall be bifurcated between the issues of liability and damages, as further set out. Signed by Honorable Judge Mark E. Fuller on 2/5/13. (Furnished to Calendar/WR)(scn, )
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
THE CITY OF MONTGOMERY,
CASE NO. 2:11-cv-0158-MEF
(WO – Do not publish)
ORDER ON PRETRIAL HEARING
A pretrial conference was held in the above case on January 24, 2013, at which time
the following proceedings were held and actions taken:
PARTIES AND TRIAL COUNSEL: The parties and their designated trial
counsel are correctly named as set out below:
Plaintiff, Roosevelt Watkins
Opt-in Plaintiff, 1Richard Brackin
W. Lee Gresham, III.
HENINGER GARRISON DAVIS
2224 1st Avenue North
Birmingham, Alabama 35203
(205) 326-3332 (Fax)
William R. Davis
DAVIS & HERRINGTON
Park Place Center
8650 Minnie Brown Road, Suite 150
Montgomery, Alabama 36117
(334) 215-4459 (Fax)
Opt-in Plaintiff, Quentin Burke
(Same as above)
Opt-in Plaintiff, Richard Carr
Opt-in Plaintiff, Carlos Carlisle
Opt-in Plaintiff, Brian Clements
Opt-in Plaintiff, Larry Coleman
Opt-in Plaintiff, Russ Collier
Opt-in Plaintiff, Dustin Davenport
Opt-in Plaintiff, Ed Daniel
Opt-in Plaintiff, Darren Keith Davis
Opt-in Plaintiff, Michael Shane Davis
Opt-in Plaintiff, Herman Dudley
Opt-in Plaintiff, Bart Estes
Opt-in Plaintiff, Brent Farthing
Opt-in Plaintiff, Charles Ford, Jr.
Opt-in Plaintiff, William Fulton, III
Opt-in Plaintiff, Rickey Garmon
Opt-in Plaintiff, Anthony Glasgow
Opt-in Plaintiff, Richard Glaze
Opt-in Plaintiff, Tony Garner
Opt-in Plaintiff, Kenneth Gray
Opt-in Plaintiff, Michael Hamil
Opt-in Plaintiff, S.M. Harris, Jr.
Opt-in Plaintiff, James Hart
Opt-in Plaintiff, Marc Hayes
Opt-in Plaintiff, Timothy Heath
(Same as above)
Opt-in Plaintiff, Randy Hill
Opt-in Plaintiff, W.L. House
Opt-in Plaintiff, Myron James
Opt-in Plaintiff, Rickey Johnson
Opt-in Plaintiff, James Jordan
Opt-in Plaintiff, Steven Kilpatrick
Opt-in Plaintiff, Stephen Lewis
Opt-in Plaintiff, Alan Madore
Opt-in Plaintiff, Jacob Money
Opt-in Plaintiff, Jerry D. Moon
Opt-in Plaintiff, David Moore
Opt-in Plaintiff, Michael D. Murphy
Opt-in Plaintiff, Donald Pickens
Opt-in Plaintiff, William Savage
Opt-in Plaintiff, Robert Sides
Opt-in Plaintiff, James Smith
Opt-in Plaintiff, Eddie Stephens
Opt-in Plaintiff, Toney Stephens
Opt-in Plaintiff, John Swindle
Opt-in Plaintiff, Samuel Matthew Thames
Opt-in Plaintiff, M.D. Thomas, Sr.
Opt-in Plaintiff, Adrian Thrasher
Opt-in Plaintiff, Greg Treloar
Opt-in Plaintiff, Shane White
Opt-in Plaintiff, Kenneth Wilhoit
Opt-in Plaintiff, Jason Williams
Opt-in Plaintiff, James Witcher
Defendant, The City of Montgomery
Wallace D. Mills
323 Adams Avenue
Montgomery, Alabama 36104
COUNSEL APPEARING AT PRETRIAL HEARING: Counsel appearing at the PreTrial Conference is the same as those listed above.
JURISDICTION AND VENUE:
Plaintiffs’ claims arise under the Fair Labor Standards Act, as amended,
29 U.S.C. §§ 201 et seq. (hereinafter “FLSA”).
Venue in the Middle District of Alabama is proper under 28 U.S.C. §
1391(b) and 1391(c) in that Defendant does business in this district and
a substantial part of the conduct giving rise to the claims occurred in
Subject matter jurisdiction exists on the basis of federal question
jurisdiction under 29 U.S.C. §§ 201 et seq. and 28 U.S.C. § 1331.
All jurisdictional and procedural requirements prerequisite to
maintaining this action have been met.
PLEADINGS: The following pleadings and amendments were allowed:
(a) Plaintiffs Complaint (Doc. #1).
(b) Defendant’s Answer to Plaintiffs’ Complaint (Doc. #7).
(c) Plaintiffs’ First Amended Complaint (Doc. #31).
(d) Defendant’s Answer to First Amended Complaint (Doc. #35).
CONTENTIONS OF THE PARTIES:
(1) “The Fair Labor Standards Act was designed to extend the frontiers
of social progress by insuring to all able-bodied working men and
women a fair day’s pay for a fair day’s work.” Gregory v. First Title
of Am., Inc., 555 F.3d 1300, 1307 (11th Cir. 2009) (quoting A.H.
Phillips, Inc., 324 U.S. 490, 493 (1945)).
(2) “There can be no doubt that the purpose of the FLSA was and is to
protect interstate employees by denying their employers the tool of
toying with workers’ wages when battling in the competitive
market.” Martinez v. Behring’s Bearings Serv., Inc., 501 F.2d 104,
107 (5th Cir. 1974).
(3) “The [Fair Labor Standards Act] should be interpreted liberally in
the [Plaintiffs’] favor.” Birdwell v. City of Gadsden, 970 F.2d 802,
805 (11th Cir. 1992); Mitchell v. Lubin, McGaughy & Assocs., 358
U.S. 207, 211 (1959).
(4) To accomplish this, 29 U.S.C. § 207(a) “requires [that] [the City]
pay their employees at the enhanced rate of time-and-a-half when
their work week exceeds 40 hours.” Cremeens v. City of
Montgomery, 602 F.3d 1224 (11th Cir. 2010).
(5) The FLSA also creates a number of exemptions for specific workers
for whom a different maximum hour threshold applies before
overtime pay is required. One such partial exemption exists for
certain public safety employees who engage in “fire protection
activities”. 29 U.S.C. § 207(k). Pursuant to § 207(k), Defendant
need not provide overtime compensation to “fire protection
employees” until more than 212 hours are worked during a twentyeight day period. Id. Under the United States Department of
Labor’s (“DOL”) regulations, the maximum hours “law
enforcement” employees may be required to work, during a fourteen
(14) day work cycle, without overtime pay is one-hundred-six
(106). 29 C.F.R. § 553.230.
(6) The City classifies Plaintiffs under the FLSA’s definition of “fire
protection employees” meaning they (1) are trained in fire
suppression; (2) have the legal authority and responsibility to
engage in fire suppression; (3) are employed by a municipal fire
department; (4) engage in the prevention, control, and
extinguishment of fires; and/or (5) respond to emergency situations
where life, property, or the environment is at risk. 29 U.S.C. §
(7) Plaintiffs therefore claim that because they meet the statutory
definition of a “fire protection” employee and the regulatory
definition of a “first responder,” the City of Montgomery should
have paid them overtime compensation at a rate of time and onehalf for all hours worked in excess of one-hundred six (106).
(8) The Department of Labor updated and revised its regulations
implementing the FLSA in August of 2004. The intent behind the
revisions was to “restore” the “severely eroded” overtime
protections intended by the FLSA and to “ensure that employees
could understand their rights, employers could understand their
legal obligations and the DOL could vigorously enforce the law.”
69 Fed.Reg 22122.
(9) As part of its 2004 revisions, the DOL promulgated, for the first
time, what is commonly referred to as the “First Responder”
regulation. 29 C.F.R. § 541.3.
(10) The purpose behind the addition of the “First Responder” regulation
was to explicitly address the application of overtime exemptions to
first responders and to “make clear” that employees, regardless of
rank or pay level, who engage in the prevention, control; or
extinguishment of fires and the rescue of fire victims….” “are
entitled to overtime pay.” 69 Fed. Reg 22129 (emphasis added).
(11) Plaintiffs meet the regulatory definition of a “First Responder” in
that they prevent, control and/or extinguish fires and rescue fire
victims. See 29 C.F.R § 541.
(12) The “First Responder” regulation specifically states that firefighters
do not qualify as exempt executives “because their primary duty is
not management of the enterprise in which [Plaintiffs are] employed
or a customarily recognized department or subdivision thereof.” 29
C.F.R. § 541.3(b)(2) (emphasis added).
(13) The “First Responder” regulation also states that firefighters do not
qualify as exempt administrators “because their primary duty is not
the performance of work directly related to the management or
general business operations of the [the City] or the [City’s]
customers.” 29 C.F.R. § 541.3(b)(3) (emphasis added).
(14) The “First Responder” regulation explains that “a. . . fire fighter
whose primary duty is to. . . . fight fires is not exempt . . merely
because the. . . fire fighter also directs the work of other employees
in the conduct of . . . fighting a fire.” 29 C.F.R. § 541.3(b)(2); see
also, Amicus Brief of the Department of Labor in Mullins v. City of
New York, 523 F. Supp. 2d 339 (S.D. N.Y. 2007); Amicus Brief of
the Department of Labor to the Second Circuit Court of Appeals in
Mullins v. City of New York, 53 F.3d 104 (2d Cir. 2011); and
Mullins v. City of New York, 53 F.3d 104 (2d Cir. 2011) (the fact
Plaintiffs give direction while performing fire prevention work does
not transform their duty of suppressing fire into one of
(15) Plaintiffs seek the payment of back overtime wages for all hours
worked over one-hundred six (106), liquidated damages, and such
other relief as previously requested in this case.
(16) Defendant’s conduct of failing to properly classify and compensate
Plaintiffs’ with overtime as is required by the “First Responders”
was willful. Defendant knew, or showed reckless disregard for, the
fact that its conduct was forbidden by the FLSA and the “First
Responder” regulation. Ojeda-Sanchez v. Bland Farms, LLC, 2012
U.S. App. LEXIS 24586 (11th Cir. 2012); Morgan v. Family Dollar
Stores, 551 F.3d 1233, 1283 (11th Cir. Ala. 2008).
(17) Defendant did not act in “good-faith” with respect to the
classification and pay practices due to there being no evidence that
its failure to compensate Plaintiffs as “First Responders” were taken
in good faith and was in conformity with and in reliance on a
written administrative interpretation from the Department of Labor.
29 U.S.C. § 259; Cole v. Farm Fresh Poultry, Inc., 824 F.2d 923,
926 (11th Cir. 1987).
(18) The City cannot prove both that it acted with a good faith belief that
its policy and practice of not paying Plaintiffs’ overtime
compensation as “First Responders” was in compliance with the
FLSA and the Department of Labors’ regulations and that it had
reasonable grounds for its belief. Ojeda-Sanchez v. Bland Farms,
LLC, 2012 U.S. App. LEXIS 24586 (11th Cir. 2012) (citing
Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1272 (11th
(19) The City intentionally misled Plaintiffs by stating the Department
of Labor had been contacted and that said consultation revealed that
Fire Suppression Lieutenants and Captains were not due to be paid
overtime wages as “First Responders.”
(20) Defendant concealed the fact it had never contacted the Department
of Labor and despite Plaintiffs’ exercise in due diligence they did
not discover the falsity of the City’s representations. As a result, the
applicable statute of limitations should be tolled.
(21) “Both the diligent and the non-diligent plaintiff are protected from
the expiration of claims the factual basis for which was shrouded by
the veil of fraudulent concealment.” Morton’s Mkt., Inc. v.
Gustafson’s Dairy, Inc., 198 F.3d 823, 832 (11th Cir. 1999).
(22) The issue of when Plaintiffs were on notice of their FLSA claims is
a question of fact for the jury to decide. Morton’s Mkt., 198 F.3d at
828 (11th Cir. 1999).
(23) In order to defeat Plaintiffs' tolling argument the City must
conclusively “show that [P]laintiffs knew of their claims or had
notice sufficient to prompt them to investigate and that, had they
done so diligently, they would have discovered the basis of their
claims.” Morton’s Market, 198 F.3d at 832.
(24) Defendant has the burden of proving by "clear and affirmative
evidence" any exemption to the FLSA’s overtime requirements by
showing Plaintiffs satisfy each element of the exemptions it asserts.
Huff v. Dekalb Cnty., 516 F.3d 1273, 1278 (11th Cir. 2008).
(25) Exemptions are only to be applied to those clearly and unmistakably
within the terms and spirit of the exemption.” Brock v. Norman’s
Country Mkt., Inc., 835 F.2d 823, 826 (11th Cir. 1988) (citation and
internal quotation marks omitted).
An exemption “analysis specifically require[s] an examination
beyond [Plaintiffs’] job title to the specific duties performed by the
[Plaintiffs].” Barreto v. Davie Marketplace, LLC, 331 Fed. App’x
672 (11th Cir. 2009).
(27) “It is necessary to focus on [Plaintiffs’] day-to-day activities in
order to determine whether [they] are subject to the administrative
or executive exemptions.” Ale v. Tennessee Valley Authority, 269
F.3d 682 (6th Cir. 2001). Therefore, “[t]he key to a determination
of whether [Plaintiffs are] covered by an exemption to the FLSA
overtime requirements does not depend on . . . an employer's
general characterization of a particular job. What is important is
what [Plaintiffs] actually do on a day-to-day basis.” Id.
(28) To defeat Plaintiffs’ claims for overtime wages, the City must
demonstrate Plaintiffs’ primary duty is not the prevention, control,
or extinguishment of fires and/or the rescue of fire victims. The
City cannot however, meet this burden by labeling Plaintiffs “in
charge” as this type of "categorical approach" and slapping on of a
“talismanic phrase” has been rejected. Morgan v. Family Dollar
Stores, 551 F.3d 1233, 1272 (11th Cir. 2008).
(29) Plaintiffs perform the production activities of the Montgomery Fire
Department which are those duties directly related to the
prevention, control or extinguishment of fires and rescue of fire
(30) “Production activities in the context of municipal service activities
are activities that appear to be related to the primary service goal of
the agency.” Smith v. City of Jackson, 954 F.2d 296, 299 (5th Cir.
(31) “The production activities of a municipal fire department are those
related to the prevention and suppression of fires.” Monroe
Firefighters Association v. City of Monroe, 600 F. Supp.2d 790, 802
(W.D. La. 2009).
(32) The time spent by Plaintiffs’ waiting to respond to calls, engaging
in physical training, eating, and sleeping assumes the character of
the work Plaintiffs perform once dispatched to an emergency scene
which in Plaintiffs’ case is the manual labor of preventing,
controlling and/or extinguishing fires and rescuing of fire victims.
Debrecht v. Osceola Cnty., 243 F.Supp.2d 1364, 1373 (M.D. Fla.
2003) (holding an employee’s nonexempt time assumes the
character of the work performed once dispatched to an emergency
scene) (citing Smith v. City of Jackson, 954 F.2d 296, 299 (5th Cir.
(33) Defendant is in violation of the FLSA’s recording keeping
requirements set out in 29 U.S.C. § 211(c) and 29 C.F.R. § 516.2.
(34) The City has a duty and is required to make, keep, and preserve
records of Plaintiffs’ wages, hours, and other conditions and
practices of employment” since “[it] is in a superior position to
know and produce the most probative facts concerning the nature
and amount of work performed by Plaintiffs. Allen v. Bd. of Pub.
Educ. for Bibb Cnty., 495 F.3d 1306, 2007 WL 2332506, at *6
(11th Cir. Aug. 17, 2007) (citing Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 687, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946)).
(35) To be in compliance with the Department of Labor’s record keeping
provision, the City must maintain and preserve records indicating
among other things, (1) the time of day and day of week on which
Plaintiffs' workweek begins; (2) Plaintiffs' regular hourly rate of
pay for any workweek in which overtime compensation is due; (3)
the hours worked each workday and total hours worked each
workweek by Plaintiffs; (3) the total daily or weekly straight-time
earnings or wages due for hours Plaintiffs worked during the
workday or workweek, exclusive of premium overtime
compensation; and (4) the total premium pay for overtime hours.
29 C.F.R. § 516.2(a)(1)-(12).
(36) Defendant has violated the Department of Labor’s record keeping
requirements due to the fact it has failed to maintain a record
indicating the hours Plaintiffs worked each workday, the total hours
worked each week and Plaintiffs’ regular rate of pay. Klinedinst v.
Swift Invs., Inc., 260 F.3d 1251, 1257 (11th Cir. 2001) (employer
obligated to maintain records of the “hours worked each workday
and total hours worked each workweek.”)
(37) The legal consequence of the City’s failure to create and maintain
legally required records is that an award of damages to Plaintiffs
can be rendered, even though the result might only be an
approximate. Donovan v. New Floridian Hotel, Inc., 676 F.2d 468,
471 (11th Cir. 1982); Lyles v. Burt’s Butcher Shoppe & Eatery, Inc.,
2011 U.S. Dist. LEXIS 119286, *16-17 (M.D. Ga. Oct. 17, 2011).
(38) Plaintiffs have proven that they performed therefore the City must
“come forward with evidence of the precise amount of work
performed or with evidence to negative the reasonableness of the
inference to be drawn from the Plaintiffs’ testimony. In the event
the City fails to do so, damages may be still be awarded Plaintiffs
even though said damages are only approximate.” Contreras v.
Lara's Trucks, Inc., 2013 U.S. Dist. LEXIS 5516, *7-8 (N.D. Ga.
Jan. 11, 2013).
(39) Each Plaintiff contests any defense or position contained in the City
of Montgomery’s contentions in this Pretrial Order or in other parts
of this Order that were not timely or properly raised by the City in
its Answers and/or at the appropriate stage of this case prior to entry
of this Order. No Plaintiff consents to the enlargement of any
defense or contention by the Defendant that was not previously
raised or properly preserved.
(1) Defendant contends that at all times material to the case, Defendants
paid Plaintiffs as fire protection employees under the § 207(k) partial
exemption based upon an established two-week pay and work
period; that Plaintiffs were and are fire protection employees.
Defendants paid Plaintiffs as exempt employees under the § 213(a)
exemption for executive employees; that Plaintiffs are, in fact,
executive employees as defined by the Fair Labor Standards Act and
interpretive regulations and, therefore, Sections 206 and 207 of the
Fair Labor Standards Act do not apply to said plaintiffs.
Defendant did not make any decision or take any act to pay Plaintiffs
under either the § 207(k) or § 213(a) exemptions in bad faith.
Defendant made all decisions and took all actions material to the
case and to the § 207(k) and § 213(a) exemptions in good faith.
STIPULATIONS BY AND BETWEEN THE PARTIES:
(a) The term “Plaintiffs” references and includes Roosevelt Watkins and all
the opt-in Plaintiffs who have filed a Consent to Become a Party Plaintiff
and are listed above.
The Division of Suppression operates the pumper and ladder trucks and
handles the day-to-day fire side of the Montgomery Fire Department.
The Division of Suppression has one (1) Assistant Chief, Kenneth Bolling,
to whom twelve (12) subordinate District Chiefs report.
The Division of Suppression is divided into four (4) geographical fire
districts with each having three (3) District Chiefs assigned to it.
Due to rotating shifts, Plaintiffs’ normal tour of duty requires them to
work 104, 112, and 120 hours in successive work periods.
(f) The City classifies Plaintiffs as “fire protection employees” under 29
U.S.C. § 203(y).
(g) Plaintiffs are trained in fire suppression.
(h) All documents produced by the City of Montgomery are business records.
(i) Plaintiffs customarily and regularly direct the work of two or more other
(j) Plaintiffs are compensated by the City of Montgomery at a rate of not less
than $455.00 per week.
Plaintiffs receive the same amount of pay for their regular tour of duty
every two weeks.
IT IS ORDERED THAT:
The jury selection and trial of this cause, which is to last (4) days, are set for
February 25, 2013, at 10:00 a.m. at the United States Courthouse in Montgomery Alabama;
A trial docket will be mailed to counsel for each party approximately three (3)
weeks prior to the start of the trial term;
The parties are to file their pre-trial briefs, if any, by February 18, 2013;
Each party shall have available at the time of trial, for use by the court (the
Judge, the courtroom deputy clerk, and the law clerk), three (3) copies of the Exhibit List and
a sufficient number of copies of each photostatically reproducible exhibit for opposing
counsel, the courtroom deputy clerk, the law clerk, and the Judge to each have a set of the
All deadlines not otherwise affected by this order will remain as set forth in the
Amended Uniform Scheduling Order (Doc. #41) entered by the court on September 30, 2011;
All understandings, agreements, deadlines, and stipulations contained in this
Pretrial Order shall be binding on all parties unless this Order be hereafter modified by Order
of the Court.
(7) Trial in this case shall be bifurcated between the issues of liability and damages.
DONE this the 5th day of February, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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