Tracy et al v. City of Vancouver
Filing
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ORDER granting in part and denying in part 41 Defendant's Motion for Summary Judgment; granting in part and denying in part 28 Plaintiffs' Motion for Summary Judgment; signed by Judge Ronald B. Leighton.(DN)
HONORABLE RONALD B. LEIGHTON
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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DREW TRACY, et al.,
Plaintiffs,
v.
CASE NO. C17-5414 RBL
ORDER ON CROSS MOTIONS FOR
SUMMARY JUDGMENT
CITY OF VANCOUVER,
Defendant.
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THIS MATTER is before the Court on the City’s Motion for Summary Judgment [Dkt. #
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41] and on Plaintiffs’ Cross-Motion for Summary Judgment [Dkt. # 28]. The Plaintiffs are eight
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current and former Vancouver Fire Department Battalion Chiefs. They sued, claiming the City
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has improperly characterized them as “exempt” for purposes of the Fair Labor Standards Act.
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They claim they are “first responders,” not management, and the City owes them back pay
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(overtime) based on the hours they worked.
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The City argues that the BCs agreed (in a collective bargaining agreement) more than a
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decade ago to “trade” a reduced shift-overtime rate for other benefits, and that that agreement
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remains in force. It argues that BCs are in any event “highly compensated employees (HCEs)”
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exempt from FLSA overtime coverage. It also argues their primary duties are management, and
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ORDER ON CROSS MOTIONS FOR SUMMARY
JUDGMENT - 1
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that they spend less than 3% of their time as responding to emergency or other fire calls. Finally,
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the City argues that the FLSA two-year limitations period bars the claims of some or all of the
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BC plaintiffs.
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The BCs argue that although they are “higher” in the Fire Department’s paramilitary
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structure than Captains are, they do similar work for similar pay, and actually have less ability to
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issue discipline and to hire and fire firefighters. They claim they are “First Responders”: they
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work 24-hour shifts and their primary duty is to respond to virtually every fire call. They are
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“shift supervisors” but deny that the evidence supports the claim that they manage others, or that
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they spend a significant amount of time training subordinates.
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Each party seeks summary judgment on its own version of the case, emphasizing
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different aspects of the disputed factual record. Both tacitly acknowledge that the scope of the
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BCs’ duties presents factual questions.
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A. Summary Judgment Standard
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Summary judgment is proper “if the pleadings, the discovery and disclosure materials on
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file, and any affidavits show that there is no genuine issue as to any material fact and that the
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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether
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an issue of fact exists, the Court must view all evidence in the light most favorable to the
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nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996).
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A genuine issue of material fact exists where there is sufficient evidence for a reasonable
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factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether
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the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
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one-sided that one party must prevail as a matter of law.” Id. at 251-52. The moving party bears
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the initial burden of showing that there is no evidence that supports an element essential to the
ORDER ON CROSS MOTIONS FOR SUMMARY
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nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has
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met this burden, the nonmoving party then must show that there is a genuine issue for trial.
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Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine
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issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477
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U.S. at 323-24. There is no requirement that the moving party negate elements of the non-
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movant’s case. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). Once the moving
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party has met its burden, the non-movant must then produce concrete evidence, without merely
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relying on allegations in the pleadings, that there remain genuine factual issues. Anderson, 477
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U.S. 242, 248 (1986).
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B. The BCs primary duties are a question of fact.
The parties’ cross-motions address several issues, but the core dispute is over the BCs job
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description and duties. Each side asks the Court to determine the FLSA’s applicability as a
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matter of law. 29U.S.C. §213(a) [“Section 13(a)”] exempts from the FLSA’s overtime
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requirements those who are “bona fide executives.”
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29 CFR § 541.100 explains that such executives: make a minimum of $455 a week; are
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responsible for “management of the enterprise;” regularly direct the work of at least two others;
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and have hiring and firing authority (or, at least, input).
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At the same time, § 541.3 holds that firefighters are not exempt, regardless of their rank
or pay, where their primary duty is fighting fires.
“Highly Compensated Employees” are also exempt from Section 13(a)’s overtime
requirements:
(1) The employee receives total annual compensation of at least the
annualized earnings amount of the 90th percentile of full-time nonhourly workers
nationally; and
(2) The employee customarily and regularly performs any one or more of
the exempt duties or responsibilities of an executive[.]
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29 CFR §541.601(a) (the “HCE” test).
These authorities make only one thing clear: the BCs’ exempt status depends on their
primary duties.
Vancouver argues that the BC plaintiffs spend the “overwhelming majority” of their time
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on management tasks and emphasizes that they make more than those below them do. It also
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claims they have clear input into the Department’s hiring, firing and discipline decisions1.
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The BCs argue that their primary duty is to be first responders to emergency calls, and
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that that is not an exempt position as a matter of law. They rely on statistical data and analysis to
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demonstrate that they spend the bulk of their time training and preparing to respond to
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emergency calls, actually responding to such calls, or documenting and debriefing after them.
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They claim they do not manage others, and that they are more like the firefighters below them
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than they are the administrators (like the Division Chiefs) above them. Indeed, they emphasize
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the Captains below them have more authority to discipline hire and fire than they do.
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The BCs emphasize that the City bears the burden of proof to show they are exempt, and
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argue that on these facts, they are not exempt as executives —and exemption they claim must be
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narrowly construed. And, as the City argues, the BCs essentially argue that any fire department
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employee with any “first responder” responsibilities, even in a backup or supervisory role, is not
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exempt as a matter of law.
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The City disputes both points. They argue that the Supreme Court recently rejected the
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notion that FLSA exemptions must be narrowly construed. See Encino Motorcars, LLC v.
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Navarro, 138 S. Ct. 1134, 1142 (2018) (“Courts have no license to give the exemption anything
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A civil service commission actually does the hiring and firing. The BCs claim they have no role in such decisions;
the Captains (below them) do, instead.
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but a fair reading.”). And they argue that as HCEs, the BCs are exempt even if they do not satisfy
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all four elements of 29 CFR § 541.100’s articulation of the Section 13(a)(1) exemption. They
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argue that under equally applicable CFR § 541.601, “so long as the plaintiffs’ primary duty
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includes office or non-manual work,” they are exempt.
The parties should not be terribly surprised that the Court cannot determine as a matter of
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law (on ⁓ 220 pages of briefing—most of it intensely factual—and supported by even more
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declarations and other evidence) what aspects of the BCs job description and duties takes the
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most time, whether they meaningfully participate in hiring and firing, and whether they are or
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managers or first responders. The competing motions demonstrate forcefully that the BCs’
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primary duties—the factual basis for the cross motions—is a hotly disputed question of fact
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requiring a trial.
The parties’ cross-motions on this basis are DENIED.
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C. Tracy and Huffman were exempt when they acted as Division and Deputy Chiefs.
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The City also seeks summary judgment on a relatively discrete sub issue: whether BCs
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Tracy and Huffman are entitled to overtime for the hours they worked as Division and Deputy
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Chiefs.
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The BCs argument on this point seems to be that they are entitled to overtime when they
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are first responders, which is discussed above. Unlike the abundance of evidence about their
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firefighting duties as BCs, there is no evidence from which a jury could find that even the Chiefs
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are non-exempt. The City’s Motion on the limited question of the availability of overtime hours
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while two BCs were actually acting chiefs is GRANTED.
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D. The BCs’ claims are subject to a two-year limitations period.
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Finally, the City seeks summary judgment on its claim that the FLSA’s two-year
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limitations period, and not the three-year period applicable to “willful” violations, applies. The
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City claims the plaintiffs must show that it knew or showed reckless disregard for the matter of
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whether the FLSA was prohibited its conduct. See McLaughlin v. Richland Shoe Co., 486 U.S.
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128, 1230 (1988).
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There is no evidence that any violation was “willful,” and the Plaintiffs have not
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responded to this argument in any event The City’s Motion on the applicable two-year
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limitations period is GRANTED.
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IT IS SO ORDERED.
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Dated this 12th day of October, 2018.
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Ronald B. Leighton
United States District Judge
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