Benavides et al v. City of Austin
Filing
131
MEMORANDUM OPINION AND ORDER ON MOTIONS FOR ENTRY OF JUDGMENT AFTER JURY TRIAL. Signed by Judge Lee Yeakel. (td)
-
IN THE UNITED STATES DISTRICT COURT2O!3 JL
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
V
MIKE BENAVIDES, VICTORIA
BRANNING, WALTER BRANNING,
KURTIS BROWN, THOMAS BRYAN,
PETE DIDONATO, SUSAN ERWIN,
BRYAN FITZPATRICK, CATHERINE
GERAC, CAROL PIERCE, COREY
RICKETSON, TEMPLE THOMAS,
GARY WADHAM, GREGORY WELLER,
DANI WINKLER, MICHAEL WRIGHT,
GLENN ANDERSON, PAUL ALVAREZ,
JANELLE BOONE, MICHAEL
BROADWATER, JOHNNIE HALL,
ERIC JAKUBAUSKAS, MARK
KARONIKA, DAVID LINDSLEY,
JASON MARTIN, MARK
MONTGOMERY, GLEN WOSKY,
MICHAEL WRIGHT, AMELIA ZAPATA,
LANDON WILLHOITE, AND EDWARD
JOHNS,
PLAINTIFFS,
20
r:
t:
39
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
V.
§
CAUSE NO. A-i 1-CV-438-LY
§
CITY OF AUSTIN,
§
DEFENDANT.
§
MEMORANDUM OPINION AND ORDER
ON MOTIONS FOR ENTRY OF JUDGMENT AFTER JURY TRIAL
Before the court are Plaintiffs' Motion for Entry of Partial Judgment on Jury Verdict.
Renewed Motion for Partial Judgment as a Matter of Law, Request for a New Trial, and Motion to
Reconsider Summary Judgment, filed December 10, 2012 (Clerk's Doc. No. 127) and Defendant's
Response to Plaintiffs' Motion for Partial Judgment on Jury Verdict, Renewed Motion for Partial
Judgment as a Matter of Law, Request for New Trial, and Motion to Reconsider Summary Judgment.
filed December 17, 2012 (Clerk's Doc. No. 128). Also before the court are Defendant's Motion for
Entry of Judgment and Renewed Motion for Judgment as a Matter of Law, filed December 10, 2012
(Clerk's Doc. No. 126) and Plaintiffs' Response to Defendant's Motion for Entry of Judgment and
Renewed Motion for Judgment as a Matter of Law, filed December 17, 2012 (Clerk's Doe. No. 129).
The court has also received the parties' joint Advisory to the Court, filed December 20, 2012 (Clerk's
Doe. No. 130) and Plaintiffs' February 7, 2013 letter regarding supplemental authority in support of
Plaintiffs' motion.
Following a jury trial on all issues of liability in this case, the parties present the court with
opposing post-verdict motions seeking entry of judgment in their favor and other relief. Having
considered the motions, responses, related filings, the entire case file, the evidence adduced at trial.
and the governing law, the court is of the opinion that the jury's findings should be adopted by the
court and judgment rendered in favor of Plaintiffs.
I. Procedural Background
Plaintiffsa
group of current and former employees of the City of Austin's Emergency
Medical Services Department ("EMS")originally brought this action on August 27, 2007, in state
district court, against their employer, the City of Austin. See Benavides v. The City ofAustin, Texas,
No. D-1-GN-07-001263 (201st Dist. Ct., Travis County, Tex.). The City removed the ease to this
court on May 25, 2011. Plaintiffs filed a separate but related action in state court on May 13, 2011.
which the City removed to this court on June 8, 2011. See Alvarez v. City ofAustin, Texas, No. D-lGN-11-001429 (200th Dist. Ct., Travis County, Tex.). This court consolidated the two cases on
August 16,2012. After consolidation, Plaintiffs filed a Third Amended Complaint (Clerk's Doe. No.
85), containing the entirety of their allegations.
Plaintiffs contend the City willfully violated the overtime requirements of the Fair Labor
Standards Act (the Act) by failing to compensate them at one and one-half times their regular rate for
2
hours over 40 worked in each work week. See 29 U.S.C.
§
207(a). Plaintiffs seek declaratory and
injunctive relief, back pay for underpayment of wages, an equal amount as liquidated damages,
attorney fees, and costs.
The City admits Plaintiffs are employees covered by the Act who have worked in excess of
40 hours per week during one or more weeks during the relevant period of employment. However.
the City asserts Plaintiffs are exempt from the Act's overtime requirements under the statutory
exemptions for employees working in a bonajIde executive or administrative capacity. See 29 U.S.C.
§
213(a)(l); 29 C.F.R.
§
541.708. This court has jurisdiction over the federal question presented by
Plaintiffs' claims. 28 U.S.C.
§
1331; 29 U.S.C.
§
216.
Before consolidation, the City filed three motions for summary judgment. The first motion
sought summary judgment on statute-of-limitations grounds, arguing the suit should be dismissed
because Plaintiffs did not serve the City with process until April 29, 2011, approximately four years
after they filed their state-court petition. The court granted the motion in part, ordering that Plaintiffs
take nothing on their claims accruing before April 26, 2009, if any violation of the City was found
to be nonwiliful, or April 26, 2008, if any violation of the City was found to be willful.'
The City then filed identical motions for summary judgment in the two cases, seeking
judgment as a matter of law. The City argued that no genuine dispute of material fact remained on
the question of whether it properly classified Plaintiffs as exempt executives and administrators and
'Any action for unpaid overtime compensation arising under the Fair Labor Standards Act
must be commenced within two years after the cause of action accrued or within three years if there
is a willful violation of the Act. 29 U.S.C. § 255(a). Under the Act, a separate cause of action
accrues at each regular payday immediately following the work period during which the services
were rendered for which the wage or overtime compensation is claimed. J-Jaiferty v. Pulse Drug Co.,
821 F.2d 261, 271 (5th Cir. 1987).
3
there was no evidence of a willful violation of the Act. The court granted the motion in part and
dismissed the claims of two Plaintiffs:
Eric Jakubauskas, in his role as Special Operations
Commander, and Mark Montgomery, in his role as Emergency Management Commander. The court
concluded there was no evidence of a willful violation of the Act and dismissed Plaintiffs' claims to
that effect. The court's order thereby defined the relevant statutory period as beginning April 26,
2009, and continuing thereafter.
After the court's order on the motions for summary judgment, all remaining Plaintiffs in this
case are current or former "Field Commanders" with EMS, except for Scott Lindsley, who serves as
EMS's "Fleet and Facilities Commander." The claims of these Plaintiffs proceeded to trial. On the
parties' joint motion, the court bifurcated the case into separate liability and damages phases. From
November 5, 2012, to November 13, 2012, the court held a jury trial on the City's liability for
Plaintiffs' claimed overtime compensation. The parties waived their right to a jury with respect to
damages and agreed to present all damages issues to the court if trial resulted in a finding of the City's
liability.
At trial, the City claimed the "Field Commanders" are exempt from overtime compensation
because they are
§
bonafide
213(a)(1); 29 C.F.R.
§
administrators, executives, or a combination of the two.
See
29 U.S.C.
541.708. The City claimed Lindsley is exempt as a bona/Ide administrator
only. The jury returned its verdict on November 15, 2012. The verdict resolved various fact issues
essential to the ultimate legal question of whether Plaintiffs are exempt employees under the Act.
The majority of the jury's findings favor the City's position that Plaintiffs are exempt. Yet one
critical jury finding favors Plaintiffs' position that they are nonexempt. At the close of the trial, the
court ordered the parties to file post-verdict motions for entry ofjudgment.
The parties' opposing post-verdict motions seek judgment on the jury verdict as to those
findings that favor their respective positions and judgment as a matter of law on the issues the jury
resolved against them. Plaintiffs also request reconsideration of the court's summary judgment
against Plaintiffs Jakubauskas and Montgomery and, alternatively, a new trial. The court first
addresses the parties' motions for judgment as a matter of law.
II. Legal Standard
A motion forjudgment as a matter of law in an action tried by ajury is a challenge to the legal
sufficiency of the evidence supporting the jury's verdict. Allstate Ins. Co.
v.
Receivable Fin. Co.,
LLC, 501 F.3d 398, 405 (5th Cir. 2007). A motion forjudgment as a matter of law should be granted
only if "there is no legally sufficient evidentiary basis for a reasonable jury to find for a party" or "the
facts and inferences point so strongly in favor of the movant that a rational jury could not reach a
contrary verdict." Id. (quoting FED.
R.
Civ. P. 50(a); Thomas v. Tex. Dep 't of Criminal ,Justice,
220
F.3d 389, 392 (5th Cir.2000)).
In considering such a motion, the court must consider all the evidence before thejury. Reeves
v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51
(2000).
When reviewing the evidence,
the court must draw all reasonable inferences in favor of the nonmovant and the court cannot weigh
the evidence or make credibility determinations. Id. at 151. However, a jury verdict should be
overturned "if the jury's factual findings are not supported by substantial evidence or if the legal
conclusions implied from the jury's verdict cannot in law be supported by those findings. Am. Home
Assur. Co.
v.
United Space Alliance, LLC, 378 F.3d 482, 486-87 (5th Cir. 2004).
5
III. Analysis
A.
Executive and Administrative Exemptions
The Act requires employers to compensate covered employees at one and one-half times the
regular rate for hours worked in excess of 40 hours during a seven-day workweek. Allen v. Mc Wane,
Inc., 593 F.3d 449, 453 (5th Cir. 2010) (citing 29 U.S.C.
§
207(a)).
The Act exempts those employees working in a bonajIde executive or administrative capacity.
Cheatam
v.
Allstate Ins. Co., 465 F.3d 578, 584 (5th Cir. 2006) (citing 29 U.S.C.
§
213(a)(l)). The
decision whether an employee is exempt under the Act is primarily a question of fact. Id. However,
the ultimate decision on exemption is a question of law for the court to decide. Lott
v.
Howard
Wilson Chrysler-Plymouth, 203 F.3d 326, 331(5th Cir. 2000). Exemptions are construed narrowly,
and the burden of proof lies with the employer. Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir.
2001). Because the parties agree that Plaintiffs have stated
aprimafacie case of entitlement
to
overtime compensation, the City bears the burden of proof on the only liability issues in this case:
whether Plaintiffs are exempt executives or administrators. See id.
The regulations governing the executive exemption provide that an employee is employed in
a "bona fide executive capacity" if the employee: (1) is "compensated on a salary basis at a rate of
not less than $455 per week"; (2) has the "primary duty" of "management of the enterprise in which
the employee is employed or of a customarily recognized department or subdivision thereof'; (3)
"customarily and regularly directs the work of two or more other employees"; and (4) either 'has the
authority to hire or fire other employees" or the employee's "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).
r4
An employee falls within the administrative exemption if: (1) the employee is "compensated
on a salary basis at a rate of not less than $455 per week"; (2) the employee has the "primary duty"
of "the performance of officer or non-manual work directly related to the management or genera!
business operations of the employer or the employer's customers"; and (3) that "primary duty
includes the exercise ofdiscretion and independentjudgment with respect to matters of significance."
Id. § 541.200(a).
B.
Jury Verdict
The parties stipulated that each Field Commander "customarily and regularly direct[s] the
work of two or more employees," thereby agreeing that the Field Commanders satisfy the third
element ofthe executive exemption.
See
id.
§
541 .100(a)(3). The parties also agree that all P!aintiffs
earned more than $455 per week during the relevant period, for purposes of the first element of the
executive and administrative exemptions.
See
id.
§
541.l00(a)(1), 541.200(a)(1). Whether any
Plaintiff is truly paid on a "salary basis," however, is contested.
remaining elements of the exemptions:
See
id.
The parties also dispute the
(1) whether the Field Commanders' primary duty is
management or first response; (2) whether the Field Commanders' suggestions as to hiring and firing
are given "particular weight"; (3) whether any Plaintiff has the primary duty of "office or non-manual
work"; and (4) whether that primary duty includes "the exercise of discretion and independent
judgment" with respect to "matters of significance." Id.
7
§
541.100(a), 541 .200(a).
The court charged thej ury with questions tracking the contested elements of the exemptions.2
2The verdict form and the jury's answers read as follows:
QUESTION ONE
Do you find, by a preponderance of the evidence, that Plaintiffs who serve as Field
Commanders are paid on a salary basis?
Please answer "Yes" or "No."
Answer: NO
QUESTION TWO
Do you find, by a preponderance of the evidence, that the primary duty of Plaintiffs who
serve as Field Commanders is:
(a) Management of Austin-Travis County Emergency Medical Service or a department or
subdivision thereof; or
(b) Office or nonmanual work directly related to the management or general business
operations of Austin-Travis County Emergency Medical Service or its customers; or
(c) A combination of (a) and (b)?
Please answer "Yes" or "No."
Answer: YES
QUESTION THREE
Do you find, by a preponderance of the evidence, that Plaintiffs who serve as Field
Commanders have the authority to make suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other employees that are given particular
weight?
Please answer "Yes" or "No."
Answer: YES
QUESTION FOUR
Do you find, by a preponderance of the evidence, that primary duty of Plaintiffs who serve
as Field Commanders includes the exercise of discretion and independent judgment with respect to
matters of significance?
Please answer "Yes" or "No."
Answer: YES
QUESTION FIVE
Do you find, by a preponderance of the evidence, that Scott Lindsley is paid on a salary
basis?
Thejury found that the City failed to prove that Plaintiffs were compensated on a "salary basis." The
jury returned a verdict for the City on all other questions, finding that the Field Commanders' primary
duty was management of EMS, office or nonmanual work, or a combination of the two; that the Field
Commanders have the authority to make suggestions as to hiring, firing, and promotion that are given
particular weight; and that the Field Commanders' primary duty includes the exercise of discretion
and independentjudgment with respect to matters of significance. As to Lindsley, thejury found that
his primary duty is office or nonmanual work and that this duty includes the exercise of discretion
and independentjudgment with respect to matters of significance. Because the City bears the burden
to establish each element of the claimed exemptions, a ruling adopting all of the jury's fact findings
would result in entry ofjudgment in Plaintiffs' favor.
See Vela, 276
F.3d at
666.
Please answer "Yes" or "No."
Answer: NO
QUESTION SIX
Do you find, by a preponderance of the evidence, that the primary duty of Plaintiff Scott
Lindsley is office or nonmanual work directly related to the management or general business
operations of Austin-Travis County Emergency Medical Service or its customers?
Please answer "Yes" or "No."
Answer: YES
QUESTION SEVEN
Do you find, by a preponderance of the evidence, that Plaintiff Scott Lindsley 's primary duty
includes the exercise of discretion and independentjudgment with respect to matters of significance?
Please answer "Yes" or "No."
Answer: YES
Salary Basis
C.
The City moves for judgment as a matter of law on the salary-basis issue as to all Plaintiffs.
The City's motion first argues that the salary-basis issue should not have been presented to the jury.
The City believes Plaintiffs admitted they are paid on a salary basis during discovery through their
response to the City's request for admissions and that this court granted the City summary judgment
on the salary-basis issue prior to trial. The court has repeatedly rejected this argument, both before,
during, and at the close of trial, and again rejects it here. Plaintiffs' admission that they "earned at
least $455 per week in salary" is not an admission that they were paid on a "salary basis," as the term
is defined in the governing regulations. Nowhere in the City's request for admissions did the relevant
term of art "salary basis" appear. Contextually, in the request for admission, "salary" means no more
than "pay." A reasonable person reading the request would not consider it to invoke the language of
the Act. The City seeks a "gotcha," to which it is not entitled.
Nor did the court grant the City summary judgment on the salary-basis issue. Although Rule
56
permits a party to move for summary judgment on a claim or a part of a claim, the City did not
move for summary judgment on apart of its claimed exemption.
See FED. R.
Civ. P. 56(a). Rather.
it moved for complete summary judgment on the basis that no genuine dispute remained as to
whether Plaintiffs were exempt under the Act. As to the majority of Plaintiffs, summary judgment
was denied.
When a court denies summary judgment, the claimant still bears the burden of
introducing evidence at trial on every essential element of its claim.
Tel.
Co., 64
F.3d 742, 747-48 (1st Cir.
1995).
See Rivera-F/ores
v.
Puerto Rico
The fact that Plaintiffs did not proffer evidence on the
salary-basis issues at the summary-judgment stage but defeated the City's motion for summary
judgment with evidence of a genuine dispute on the primary-duty issues does not relieve the City of
11
its burden to prove all elements of its claimed exemptions. The court therefore denies the City's
motion for judgment as a matter of law on this basis.
The City also challenges the sufficiency of the evidence to support the jury's finding with
respect to the salary-basis issue. Specifically, the City contends the jury's finding cannot stand in
light of the City's status as a public employer and the unique regulations governing such employers.
See
29 C.F.R.
§
541.7 10. This court disagrees.
The jury found that the City failed to prove, by a preponderance of the evidence, that it pays
Plaintiffs on a salary basis. An employee is paid on a "salary basis" if the employee "regularly
receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all
or part of the employee's compensation, which amount is not subject to reduction because of
variations in the quality or quantity of the work performed." Id.
§
541.602(a). Although employers
may, in some circumstances, make deductions from that salary and not lose a claimed
exemption,3
the ultimate question is always whether the employer intended to pay the employee on a salary, as
opposed to an hourly, basis.
See
Defining and Delimiting the Exemptions for Executive,
Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,177
(Apr. 23, 2004) ("{B]ona fide executives, administrators or professional.
.
.
are not paid by the hour
3All employers may make deductions when an exempt employee is absent from work for
one or more full days for personal reasons, other than sickness or disability." 29 C.F.R. §
541.602(b)(1). Additionally, deductions may be made for absences of more than one full day
"occasioned by sickness or disability" if the deduction is made "in accordance with a bona fide plan,
policy or practice of providing compensation for loss of salary occasioned by such sickness or
disability." Id. § 541.602(b)(2). Furthermore, "{e]xempt employees need not be paid for any
workweek in which they perform no work." Id. § 541.602(a). Public employers may deduct pay for
absences of less than one full day if the employee "is paid according to . . . a policy or practice
established pursuant to principles of public accountability, under which the employee accrues
personal leave and sick leave and which requires the public agency employee's pay to be reduced
or such employee to be placed on leave without pay . . . when accrued leave is not used by an
employee. . . ." Id. § 541.710(a).
11
or task, but for the general value of services performed."). The City bears the burden of proof on this
issue.
See Vela,
276 F.3d at 666.
The City fails to convince the court that the evidence introduced at trial so strongly favors the
City's position that there is "no legally sufficient evidentiary basis" for the jury's finding. A list ate Ins.
Co., 501 F.3d at 405. The evidence presented by the City at trial on the salary-basis issue is scant.
In fact, the only affirmative evidence put forth by the City on the issue was the testimony of Sylvia
Flores, former assistant director of the City's Human Resources Department.
Flores testified generally that the City maintains a payroll system that reduces all City
employees' compensation to an hourly rate in order to track the number of hours worked. Flores also
explained the City's policy ofpublic accountability, which requires employees to accrue and use leave
time in order to be paid when taking time off work. When questioned on cross examination, Flores
agreed that Plaintiffs must work a full 48 hours in a week or use "leave time" in order to receive their
full weekly salary. Although this testimony generally comports with the regulatory exceptions
governing public employers, the City still must prove Plaintiffs "otherwise satisfy the salary basis
requirements" before these exceptions apply.
See 29
C.F.R.
§
541.710(a). Flores's testimony does
not provide any evidence that the City intended to treat Plaintiffs any differently than an hourly
employee. Nor does the City's motion identify any other evidence to that end.
Rather, the City devotes the majority of its motion to attempting to convince the court that the
deductions from Plaintiffs' pay under the City's "zero time," "light duty," and "shift bidding" policies
were permitted under the regulatory exceptions for public
employers.4
Again, the City puts the cart
4"Zero time" refers to the policy that Commanders reporting late to a scheduled shift are not
compensated for the amount of time not worked. "Light duty" refers to the policy of placing
Commanders on a reduced schedule as a result of an injury or medical condition. Commanders are
not compensated for any hours not worked during such an assignment. "Shift bidding" refers to the
12
before the horse. Over the course of trial, the City did not produce evidence expressing Plaintiffs'
compensation in any terms other than as an hourly rate. The EMS pay schedules and pay records all
express Plaintiffs' pay by the hour. In light of this evidence, the City's "zero-time," "light-duty." and
"shift-bidding" policies, even if permissible exceptions to the salary-basis requirement, nonetheless
reinforce the direct relationship between the number of hours Plaintiffs work and the compensation
they receive.
The fact that the regulations permit the computation of an employee's earnings on an hourly
basis in some instances does not entitle the City to judgment as a matter of law. The regulations
provide that "[aln exempt employee's earnings may be computed on an hourly, a daily or a shift basis,
without losing the exemption or violating the salary basis requirement," so long as the "employment
arrangement includes a guarantee of at least the minimum weekly required amount paid on a salary
basis regardless of the number of hours, days or shifts worked
.
.
.
." 29 C.F.R.
§
541.604(b). No
witness testified at trial that Plaintiffs are guaranteed a salary of any kind. In fact, Flores and all
Plaintiffs testified directly to the contrary. Furthermore, Assistant Director of Field Operations James
Shamard admitted at trial that the City had made errors by improperly reducing pay to Plaintiffs who
worked fewer than 48 hours in a week. The jury could have chosen to disbelieve the City's action
was error.
In summary, the court has thoroughly reviewed the record and can find no evidence to suggest
that Plaintiffs' pay is based on any factor other than the number of hours worked, Because the jury
policy that Commanders select their own shifts, which sometimes results in a conflict. If a
Commander is scheduled to work fewer than the regularly scheduled 48 hours per week due to such
a conflict, the Commander will receive a commensurate reduction in pay. Under all of these
policies, Commanders may use leave time or work additional hours to receive pay for the full 48
hour work week.
13
heard no evidence that Plaintiffs were treated any differently than an hourly employee, there was a
"legally sufficient evidentiary basis" for finding the City failed to prove the salary-basis element of
its affirmative defense.
See Allstate Ins.
Co., 501 F.3d at 405. Therefore, the City is not entitled to
judgment as a matter of law on this issue, and the court will adopt the jury's finding.
B.
Primary Duty
Plaintiffs argue there is insufficient evidence to support the jury finding that Plaintiffs
primary duties are managerial and administrative. Plaintiffs specifically contend they are primarily
first responders, not managers and administrators, and therefore entitled to overtime compensation
pursuant to the Department of Labor's "first responder" regulation.
See 29
C.F.R.
§
541.3(b).
Having considered all of the evidence in the light most favorable to the City, as is required when
reviewing a motion for judgment as a matter of law, the court is of the opinion the motion should be
denied.
See Reeves,
530 U.S. at 151.
The regulations define "primary duty" as "the principal, main, major or most important duty
that the employee performs." Id.
§
54 1.700(a). "Determination of an employee's primary duty must
be based on all the facts in a particular case, with the major emphasis on the character of the
employee's job as a whole." Id. The court therefore looks both to the structure of the EMS
Department, as well as the various duties and responsibilities of Plaintiffs, in determining whether
the jury had a sufficient evidentiary basis for concluding Plaintiffs are primarily managers and
administrators.
The City's EMS Department is headed by Director Ernesto Rodriguez, who is the highest
ranking departmental official. Assistant Director of Field Operations James Shamard reports to the
Director and is responsible for overseeing two Operations Managers, who in turn oversee the Field
Commanders. The Field Commanders each supervise 12 to 16 subordinate paramedics, captains, and
14
EMTs in one of six assigned districts. Field Commanders work two 24-hour shifts per week, along
with their subordinates, and are the highest ranking officers in the field.
The evidence introduced at trial establishes that there are significant differences between the
roles and responsibilities of Field Commanders and their nonexempt subordinates. First, paramedics,
captains, and EMTs all drive ambulances, whereas Field Commanders are issued command vehicles
that, although equipped with medical equipment, do not have the capacity to transport patients to the
hospital. Paramedics are on call for the entirety of their shifts, dispatched to virtually all calls, and
have no choice but to respond. Field Commanders, on the other hand, are dispatched only to certain
types of calls and always have discretion to take themselves out of service once an ambulance arrives
on the
scene.5
Field Commanders also have discretion to self assign to calls and may do so for
reasons other than providing medical care. When they do so, they are taken out of the 'dispatch
matrix" unless they choose to remain available. Importantly, Field Commanders may choose to
remove themselves completely from the dispatch matrix, whereas ambulance crews on duty must
always be ready to respond.
Field Commanders render medical care much less frequently than the paramedics, captains.
and EMTs they supervise. Of the over 100,000 emergency responses by EMS each year, Field
Commanders were dispatched to fewer than 3,000 calls and self assigned to only 2,000 more. Despite
the fact that 30,000 of these responses were the more serious Priority
I
and Priority 2 calls, Field
Commanders were only dispatched as the closest vehicles to these calls between 500 and 800 times
per year. Field Commanders were dispatched to cardiac-arrest calls with even less frequency. This
data is consistent with Plaintiffs' testimony that, on an average shift, Field Commanders respond to
5Field Commanders are dispatched to all cardiac-arrest calls, as well as "Priority I" and
"Priority 2" calls if they are nearest to the scene by a predetermined amount of time.
15
approximately four to six calls, whereas their subordinates respond to approximately
12 to 1 8 calls.
When Field Commanders respond to these calls, it is undisputed that they frequently engage in the
same or nearly the same types of duties as medics, such as chest compressions, insertion of
intravenous lines, and the administration of medication. However, Field Commanders also frequently
perform nonmedical duties such as coordinating resources among emergency-response agencies.
directing incoming vehicles and personnel, and arranging for patient transportation.
The evidence also demonstrates that when Field Commanders are not responding to a call,
they are responsible for many managerial and administrative duties that are not shared by their
subordinates. These duties include ensuring their crews are available and ready to respond to calls,
have received adequate training, and have access to functional and adequate medical equipment and
ambulances.
Field Commanders are also responsible for evaluating personnel performance.
responding to community complaints, maintaining personnel records, initiating disciplinary action
for violations of EMS operational policies and procedures, and making recommendations on
promotions and other personnel actions. Aside from these responsibilities, Field Commanders spend
considerable time traveling from station to station to check on, observe, and visit with their crews.
The evidence as to Lindsley, the only Plaintiff who is not a Field Commander, establishes that
he is assigned to EMS's Fleet and Maintenance Division, which supports the Field Division.
Lindsley is not a part of the dispatch matrix and does not drive the command vehicle issued to Field
Commanders. His responsibilities include advising EMS on building and locating new EMS stations.
ensuring new EMS vehicles are being designed and constructed pursuant to City requirements, and
setting standards and directives as to the EMS fleet. Lindsley testified that he picks up Field
Commander shifts "from time to time" and seeks overtime compensation for this work.
16
Viewing this evidence as a whole, the court is of the opinion there was a sufficient evidentiary
basis for the jury to find that the Field Commanders' primary duty is management of EMS. office or
nonmanual work, or a combination of the two, and that Lindsley's primary duty is office or
nonmanual work. The regulations define "management" as such activities as training employees,
directing the work of employees, evaluating the work of employees, determining the materials or
techniques to be used, planning and controlling the budget, maintaining records for use in supervision
or control, disciplining employees, and apportioning work among employees. Id.
541.102.
§
Administrative duties include work in areas like accounting, insurance, marketing, human resources,
labor relations, and database administration. Id.
§
541.20 1(b). Field Commanders engage in many
of these activities on a daily basis, and EMS documents introduced at trial, which outline job
expectations and responsibilities, lend additional support to the jury's conclusion that the City relies
on Plaintiffs primarily to manage the large, otherwise unsupervised, field staff for the entire EMS
department.
See Daiheim
v.
KDFW-TV, 918 F.2d 1220, 1227 (5th Cir. 1990) ("[T]he employee's
primary duty will usually be what she does that is of principal value to the employer
......
Lindsley's own testimony was sufficient in itself to establish that he is primarily an administrator.
Plaintiffs argue the first-responder regulation compels a finding to the contrary. This court
disagrees. The first-responder regulation alters the primary-duty test as applied to employees engaged
primarily in first-response work.
See
29 C.F.R.
administrative exemptions "do not apply to
.
.
.
technicians, ambulance personnel, rescue workers,.
pay level, who perform work such as
.
.
.
§
541.3(b)(l) (providing that executive and
fire fighters, paramedics, emergency medical
. .
and similar employees, regardless of rank or
rescuing fire, crime or accident victims
.
.
.
."). The
regulation explains that "[s]uch employees do not qualify as exempt executive employees because
their primary duty is not management of the enterprise in which the employee is employed or a
17
customarily recognized department or subdivision thereof.
.
.
." Id. § 541 .3(b)(2). To that end, "a
police officer or fire fighter whose primary duty is to investigate crimes or fight fires is not exempt
merely because the police officer or fire fighter also directs the work of other employees in the
conduct of an investigation or fighting a fire." Id.
In other words, the first-responder regulation alters the primary-duty inquiry in one significant
respect. "[A]lthough 'directing the work of employees' is normally a managerial duty, it is not a
managerial duty when it is performed concurrently with front-line law enforcement work." Maestas
v.
Day & Zimmerman, LLC, 664 F.3d 822, 829 (10th Cir. 2012). This does not mean that all
emergency officials are automatically nonexempt. High-level police, fire, and emergency officials
may still be exempt employees if their primary duty is not first-response work but rather managerial
and administrative tasks. See Defining and Delimiting the Exemptions for Executive, Administrative.
Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,130 (Apr. 23, 2004)
(listing such duties as including, among others, "evaluating personnel performance; enforcing and
imposing penalties for violations of the rules and regulations;.
. . .
handling community complaints")
Thus, the fact-sensitive primary-duty inquiry remains dispositive. See Brief for Sec'y of Labor as
Amicus Curiae Supporting Appellants, at 5, Mu//ins
v.
City of New York, 653 F.3d 104 (2d Cir.
2011).
The evidence demonstrates that Field Commanders have first-responder duties and that these
duties are significant. However, the jury heard ample evidence that the Field Commanders engage
in many of the activities listed as management in the regulations. See 29 C.F.R.
§
54 1.102;
541.201(b). And the City's witnessesRodriguez, Shamard, and Director of Field Operations James
Hawleyall testified that these duties were ofgreater importance to the overall structure and function
of EMS than Plaintiffs' first-response work. The jury clearly found this testimony to be credible.
18
The fact that the representative Field Commanders testified they spend only two to three hours
per day on their administrative duties does not contradict the verdict. The percentage of time spent
on exempt versus nonexempt duties is not determinative of which duty is primary. See id.
§
54 1.700(b). Rather, it is but one factor among many that guides the primary-duty inquiry. Id.
§
541.700(a) (listing other factors as "the relative importance of the exempt duties as compared with
other types of duties;
.
.
.
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")
Furthermore, the jury had a sufficient basis to conclude that Plaintiffs' supervisory and
managerial responsibilities were not merely performed concurrently with "front-line" first-response
work so as not to be considered management under the first-responder regulation. See id.
§
541.3(b);
Maestas, 664 F.3d at 829. In this respect, the Field Commanders are distinguishable from the police
sergeants at issue in Mullins v. City ofNew York, which the Second Circuit found to be exempt as a
matter of law under the first-responder regulation. See 653 F.3d 104 (2d Cir. 2011). Unlike
Plaintiffs, the police sergeants were the second-lowest ranking officers in the NYPD, dispatched to
all arrests in their unit and required to respond to all such calls. Id. at 108-09. The sergeants' exempt
work consisted almost exclusively of supervision of lower-ranking officers while concurrently
performing such duties. Id. at 118-19. The evidence here demonstrates that Field Commanders do
significant management and administrative work separate and apart from the supervisory work they
may do during the approximately four to six calls to which they respond each shift.
In summary, the facts do not point so strongly in Plaintiffs' favor that a rational jury had no
choice but to conclude Plaintiffs are primarily first responders. See Allstate Ins. Co., 501 F.3d at 405.
Accordingly, Plaintiffs are not entitled to judgment as a matter of law, and the court will adopt the
jury's factual findings on the primary-duty issues.
Remaining Elements of the Administrative and Executive Exemptions
C.
Neither party challenges the sufficiency of the evidence as to the jury's remaining factual
findings. Having reviewed the record, the court agrees that there is more than ample evidence to
support the jury's finding that the Field Commanders have the authority to make suggestions as to
hiring, firing, and promotion that are given particular weight and that all Plaintiffs' primary duties
includes the exercise of discretion and independentjudgment with respect to matters of significance.
See
29 C.F.R.
§ §
541.100(a), (b). Accordingly, the court will also adopt these fact findings.
IV. Remaining Motions
In addition to the parties' motions for judgment as a matter of law, Plaintiffs move the court
for two additional rulings. First, Plaintiffs contend that if they are not entitled to judgment on the
issue of the City's liability under the Act, the court should grant them a new trial. In light of the
court's conclusion that the City failed to prove an essential element of its affirmative defense to
Plaintiffs' overtime-compensation claims, Plaintiffs are entitled to judgment as to the City's liability
under the Act. Therefore, the court will dismiss Plaintiffs alternative motion for a new trial.
Plaintiffs also request the court's reconsideration of its summary judgment against Plaintifis
Jakubauskas and Montgomery on the ground that the salary-basis issue affects all Plaintiffs.
Although the court has discretion to revise an interlocutory order, such as a partial summary
judgment, at any time prior to final judgment, the court declines to do so here, See Calpetco 1981
v.
Marshall Exploration, Inc., 989 F.2d 1408, 1414 (5th Cir. 1993). Plaintiffs had the opportunity
to contest the salary-basis issue at the summary-judgment stage, but chose to challenge the City's
20
motion on other grounds. The fact that the salary-basis issues became disputed at trial does not entitle
Plaintiffs to reverse their litigation strategy. The City had no reason to introduce any evidence as to
Jakubauskas and Montgomery being paid on a salary-basis at trial, and the court will not hold the City
liable for these Plaintiffs' claimed overtime compensation.
Accordingly, the motion for
reconsideration will be denied.
V. Conclusion
After careful consideration of the entirety of the evidence in this case, the court concludes that
the Defendant City of Austin violated the Fair Labor Standards Act by failing to pay Plaintiffs one
and one-half times their regular rate of pay for all hours worked over 40 in a work week. The court
will deny the parties' motions for judgment as a matter of law, adopt the jury verdict, and render
judgment as to the City's liability in Plaintiffs' favor. Additionally, the court will dismiss Plaintiffs'
motion for a new trial and deny Plaintiffs' motion for reconsideration of its partial summary
judgment. These rulings requires further proceedings on the issue of damages to the bench, and the
court will set a scheduling conference regarding the damages phase of this litigation. Finally, the
court will dismiss the City's pending Motion for Judgment on Partial Findings on Good Faith without
prejudice to refihing after the scheduling conference ordered herein.
IT IS THEREFORE ORIWRED that Plaintiffs' Motion for Entry of Partial Judgment on
Jury Verdict (Clerk's Doc. No. 127) is GRANTED to the following extent: the court hereby adopts
the jury's finding that the City failed to prove it pays Plaintiffs on a salary basis.
IT IS FURTHER ORDERED that Plaintiffs' Renewed Motion for Partial Judgment as a
Matter of Law (Clerk's Doc. No. 127) is DENIED.
21
IT IS FURTHER ORDERED that Plaintiffs' Request for a New Trial (Clerk's Doe. No.
127) is DISMISSED.
IT IS FURTHER ORDERED that Plaintiffs' Motion to Reconsider Summary Judgment
(Clerk's Doe. No. 127) is DENIED.
IT IS FURTHER ORDERED that Defendant's Motion for Entry of Judgment (Clerk's Doe.
No. 126) is GRANTED to the following extent: the court hereby adopts the jury's findings that
Plaintiffs' primary duties are managerial, administrative, or a combination of the two; that the Field
Commanders have the authority to make suggestions as to hiring, firing, and promotion that are given
particular weight; and that all Plaintiffs' primary duties includes the exercise of discretion and
independent judgment with respect to matters of significance.
IT IS FURTHER ORDERED that Defendant's Renewed Motion for Judgment as a Matter
of Law (Clerk's Doe. No. 126) is DENIED.
IT IS FURTHER ORDERED that this case is SET for a SCHEDULING CONFERENCE
on Thursday, June 27,2013, at 10:00 a.m., Courtroom 7, Seventh Floor, United States Courthouse,
501 W. 5th Street, Austin, Texas 78701.
IT IS FINALLY ORDERED that Defendant's Motion for Judgment on Partial Findings on
Good Faith (Clerk's Doe. No. 107) is DISMISSED WITHOUT PREJUDICE.
SIGNED this
day of June, 2013.
TED STAT
22
DIS
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?