Allen et al v. City Of Texas City

Filing 79

OPINION AND ORDER denying 52 Motion for Partial Summary Judgment; denying 54 Motion for Partial Summary Judgment; denying 71 Motion to Strike; denying 73 Motion to Strike.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

MARK ALLEN, ET AL.,
Plaintiffs
v.
CITY OF TEXAS CITY,

Defendant.

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CIVIL ACTION NO. G-10-176

OPINION AND ORDER
Before the Court, with the consent of the parties, are competing motions for partial
summary judgment (Dkt. Nos. 52, 54), to which responses (Dkt. Nos. 55, 57) and replies have
been filed. (Dkt. Nos. 69, 70).' Also before the Court are Plaintiffs' objections to the evidence
submitted by Defendant in its response and reply to the Motions (Dkt. Nos. 71, 73), to which
Defendant then responded (Dkt. No. 75, 76) and Plaintiffs replied. (Dkt. Nos. 77, 78). After
careful review of all the submissions, the Court issues this Opinion and Order.

I. BACKGROUND
Plaintiffs consists of numerous current or former firefighters employed by the City of
Texas City ("the City") who bring this action claiming that they are entitled to compensation under

Defendant also filed a "Partial Motion for Summary Judgment on Affirmative Defenses of
Unclean Hands and Estoppel, on Plaintiffs' Salaried Status Under the FLSA and on Plaintiffs' State Law
Claims" (Dkt. No. 53), however, the Court ordered this Motion be abated until the cross-motions
discussed above were ruled upon. (Dkt. No. 68).

the Fair Labor Standards Act ("FLSA") and

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142 of the Texas Local Government Code for all

hours spent attending specialized training to obtain or maintain occupational specialized
certifications2necessary to maintain their jobs.3 The parties have filed cross-motions for summary
judgment as to whether the time Plaintiffs spent attending the training should be counted as "hours
worked" under FLSA or the equivalent Texas s t a t ~ t e .The motions are ripe for consideration.
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11. SUMMARY JLTDGMENT STANDARD
The Court analyzes the motions under the well-established summary judgment standard.
FED.R. CIV.P. 56(c); see generally, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 576,586-87 (1986); Burge v. Parish

o St. Tamrnany, 187 F.3d 452, 464 (51h Cir. 1999); United States v. Arron, 954 F.2d 249, 25 1
f
(51h cir. 1992).

The City required Plaintiffs to obtain one or more of the following certifications as a condition
of initial and/or continued employment during their first probationary years' status: Basic Fire Suppression
Certification; Emergency Medical Technician Basic (EMT-B) Certification; Hazardous Materials
Technician (Hazmat) Certification; High Anglelconfined Space Rescue Certification; Water Rescue
Certification; Commercial Drivers License (Class B); Cardiopulmonary Resuscitation (CPR) Instructor;
and Fire Instructor Certification. In addition, the City resewed the discretion to require Plaintiffs to obtain
addition certifications as a condition of their continued employment and these included: Fire Inspector
Certification; Fire Investigator Certification; and Arson Investigator Certification.
There are three groups of plaintiffs in this case. First, Group A, are those who were hired after
January 1, 2001, and signed agreements that detailed numerous training requirements and the agreements
provided that the training was "voluntary" and that it was not compensable. Second, Group B, consists
of individuals hired between 1993 and 2000 who signed agreements with the City to obtain and maintain
an EMT-Basic Certification or higher and then any other certifications prescribed by the Department, but
the agreements were silent on whether any off-duty training would be compensable. Third, Group C, are
those individuals hired before 1993 who signed general agreements, but when they submitted "Request for
Training" forms they acknowledged that training was outside of their regular work hours and not
compensable. Dkt No. 52 at 7, n 1. Of the groups, it appears that Group B is not seeking compensation
for time spent on training to obtain and/or maintain a certification.
The Court allowed the parties to bifurcate consideration of the issues presented, thus, at this stage
of the proceedings, the cross-motions for summary judgment focus on the issue of whether the time spent
in certain training constitutes "hours worked" under the FLSA and $ 142.0015.

111. DISCUSSION
Under the FLSA, an employer is required, to compensate its employees for all "hours
worked" and pay not less than one and one-half times the regular rate of pay for all overtime hours
worked. 29 U.S.C.

$5 201, 207. Initially, Defendant argues that, as a local government, the

FLSA should not apply to it and, therefore, invites the Court to decline to follow the Supreme
Court's decision in Garcia v. Sun Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)
wherein it held that the FLSA applies to local governments. The Court, respectfully, declines.
Rodriguez de Quijas v. Shearson/Arnerican Express, Znc., 490 U. S. 477,484 (1989) (the Supreme
Court reserves the prerogative of overruling its own decisions and, until that prerogative is
exercised, it directs lower courts to follow controlling case law). Unless or until the Supreme
Court overrules Garcia, its holding controls and, as such, the FLSA applies to the Defendant City.
Turning back to the Act, the central issue in this case is whether the Plaintiffs' off-duty
training hours constitute "hours worked" which would be compensable. The FLSA offers no
definition of the phrase. Nonetheless, Defendant maintains other statutory andlor regulatory
exemptions support its position that the time is not compensable as hours worked.

First,

Defendant argues that the time is not compensable due to an exemption under the Portal-to-Portal
Act. The Portal-to-Portal Act, which amends the FLSA, provides, in relevant part, the following:
(a) Activities not compensable.
Except as provided in subsection (b) of this section, no employer shall be
subject to any liability or punishment under the Fair Labor Standards Act
. . . on account of the failure of such employer to pay an employee
minimum wages, or to pay an employee overtime compensation, for or on
account of any of the following activities of such employee engaged in on
or after May 14, 1947 -

(2) activities which are preliminary to or postliminary to said
principal activity or activities, which occur either prior to the time
on any particular workday at which such employee commences, or
subsequent to the time on any particular workday at which he
ceases, such principal activity or activities.
29 U.S.C. $ 254(a). Despite Defendant's arguments to the contrary, the Court finds that this
exception does not apply. In the present case, there is no dispute that the required training
involved new skills. See Atkins v. GM Corp., 701 F.2d 1124, 1129-3- (Sh Cir. 1983) ("training
class teaching an employee new skills is not preliminary to his regular eight hour shift using his
present skills" and that "study unrelated to the employee's present job is not preliminary or
postliminary to that activity."). Moreover, there is no dispute that, even without the training,
Plaintiffs could still perform their jobs. Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (while
"principal activity" is not defined, the Supreme Court has interpreted it to mean those activities
that are both an integral and indispensable part of the workmen's principal activities for which they
are employed); Dunlop v. City Elec., Znc., 527 F.2d 394, 400-01 (Sh Cir. 1976) (explaining that
"[tlhe test

...

to determine which activities are 'principal' and which are an 'integral and

indispensable part' of such activities, is . . .whether they are performed as part of the regular work
of the employees in the ordinary course of business. "). Finally, notwithstanding Defendant's
argument that the training involved here was merely a pre-requisite to the jobs involved (i.e.,
apprenticeship training or probationary training), the undisputed evidence reflects that the
required training was not limited to, and much of it, in fact, occurred outside of, the probationary
period. The evidence also reflects that some fire fighters were allowed to continue performing
their duties without completing the training. This evidence amply demonstrates that the training

was not a true pre-requisite to the job of a Texas City fire fighter. The Court, therefore, cannot
conclude that the Portal-to-Portal Act provides an exemption to Defendant.
Defendant also argues that there is regulatory support for its conclusion that the off-duty
training time is not compensable. In particular, Defendant relies on 29 C.F.R.
C.F.R.

5 553.226 and 29

5 785.27. Initially, with regard to 29 C. F.R. 5 553.226, it provides, in relevant part, the

following:
(b) While time spent in attending training required by an employer is normally
considered compensable hours of work, the following are situations where time
spent by employers of State and local governments in required training is
considered to be noncompensable:
(1) Attendance outside of regular working hours at specialized or followup
training, which is required by law for certification of public and private
sector employees within a particular governmental jurisdiction (e.g.,
certification of public and private emergency rescue workers), does not
constitute compensable hours of work for public employees within that
jurisdiction and subordinate jurisdictions.
(2) Attendance outside of regular working hours at specialized or follow-up
training, which is required for certification of employees of a governmental
jurisdiction by law of a higher level of government (e.g., where a State or
county law imposes a training obligation on city employees), does not
constitute compensable hours of work.

(3) Time spent in the training described in paragraphs (b) (1) or (2) of this
section is not compensable, even if all or part of the costs of the training is
borne by the employer.
(c) Police officers or firefighters, who are in attendance at a police or fire academy
or other training facility, are not considered to be on duty during those times when
they are not in class or at a training session, if they are free to use such time for
personal pursuits. Such free time is not compensable.
As urged by Plaintiffs, subsection (c) does have some application, albeit limited, to the
present case. In particular, it would clearly apply to an individual, such as Plaintiff William
Behan, who was sent to a fire academy yet was not compensated for the time, other than free time

for personal pursuits, that he spent in that training. However, Plaintiffs' attempt to argue that
subsection (c) has a broader application based on the phrase "or other training facility9'- broad
enough to encompasses all the other required training- lacks any supporting authority and is
simply not persuasive to this Court.
Turning to subsection (b), the Court observes that it is predicated on the fact that the
specialized training be required by law for certification to perform a particular job. This is not
the case here. The only training that is legally required to be a municipal fire fighter in Texas is
a basic structure fire suppression course, approved by the Texas Commission on Fire Protection,
and a course leading to the equivalent of an Emergency Care Attendant ("ECA") certification.

See TEX.GOV'T
CODE8 419.032; 37 TEX.ADMIN.
CODE8 423.1. Instead, the vast majority of
the training required by the Texas City Fire Department is mandated by Department policy, not
the law.5 Defendant refers to the Court to numerous DOT opinions, however, these opinions are
predicated on instances of where the law required the training, which, as discussed, is not the case
here.
Second, with regard to 29 C.F.R.

8 785.27, this regulation provides:

Attendance at lectures, meetings, training programs and similar activities
need not be counted as working time if the following four criteria are met:
(a) Attendance is outside of the employee's regular work hours;
(b) Attendance is in fact voluntary;
(c) The course, lecture, or meeting is not directly related to the employee's
job; and

Supra note 2.

(d) The employee does not perform any productive work during
such attendance.
29 C.F.R.

5 785.27. Importantly, for the training time to be not compensable, each of the four

elements must be satisfied.
The central dispute between the parties surrounds the second element-namely,
the attendance was in fact voluntary. 29 C.F.R.

whether

5 785.27. Section 785.28 clarifies that

"attendance is not voluntary, of course, if it is required by the employer" and where "the
employee is given to understand or led to believe that his present working conditions or the
continuance of his employment would be adversely affected by nonattendance." 29 C.F.R.

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785.28. In the present case, some of the Plaintiffs6 have stated that their attendance at training
during off-duty hours was not voluntary and that they only took the training because they fearedparticularly those Plaintiffs who signed the more recent Conditions of Employment
agreement -that they would be forced to resign if they did not complete the training. Defendant,
however, counters Plaintiffs' newly founded stance with evidence of the Conditions of
Employment agreement that they voluntarily entered into with Defendant and in which they agree
that the training that they would be asked to perform-all

of which was spelled out-would be

"voluntary. " In addition, for those Plaintiffs with earlier agreements that did not contain any such
agreed statement, Defendant relies on the Request for Training forms in which employees, by
Defendant also insists that
signing, agree that the training they seek to attend is vol~ntary.~
Plaintiffs offer no evidence that it took any adverse action against any of them for failing to

Supra note 3.

Defendant appears to indicate that with the earlier hired firefighters-those in Group C-it did
not impose these training requirements.

complete any required training in a timely manner. The evidence offered by the parties clearly
reflects a dispute exists between the parties regarding the voluntariness of the training. The
dispute is one that this Court believes can only be resolved by making a credibility assessment,
which is properly reserved for the finder of fact.' As such, this Court concludes summary
judgment is not proper on the issue of whether the different training was voluntary.
CONCLUSION
Accordingly, for all the foregoing reasons, it is the ORDER of this Court that the crossmotions for partial summary judgment (Dkt. Nos. 52, 54) are DENIED.
It is further ORDER of this Court that Plaintiffs' Objections (Dkt. Nos. 71, 73) to the
evidence submitted by Defendant in its response and reply is DENIED, without prejudice, to being
re-urged at trial.
DONE at Galveston, Texas, this

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day of March, 2012.

v

U TE STATES MAGISTRATE JUDGE

Plainiffs have requested a jury trial. See Dkt. No. 1 (Civil Cover Sheet).

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