420 F.3d 981 (9th Cir. 2005), 03-55505, Cleveland v. City of Los Angeles

Docket Nº:03-55505.
Citation:420 F.3d 981
Party Name:Cedrick CLEVELAND; Juan M. Achan; Luis F. Aldana; Dennis M. Archie; Anthony Arnado; Dennis Barnes; Jennifer Lynn Boscoe; Jason Braff; Brian T. Brooks; Jaime L. Brown; Michael E. Brown; Joshua L. Burton; Christopher Lee Carpenter; Armando Carranza; Heywood Cheng; Braxton Clark; Paul W. Clark; Ruel A. Cole; Juan R. Colson; Raymond R. Crawford; James
Case Date:August 22, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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420 F.3d 981 (9th Cir. 2005)

Cedrick CLEVELAND; Juan M. Achan; Luis F. Aldana; Dennis M. Archie; Anthony Arnado; Dennis Barnes; Jennifer Lynn Boscoe; Jason Braff; Brian T. Brooks; Jaime L. Brown; Michael E. Brown; Joshua L. Burton; Christopher Lee Carpenter; Armando Carranza; Heywood Cheng; Braxton Clark; Paul W. Clark; Ruel A. Cole; Juan R. Colson; Raymond R. Crawford; James D. Crites; Armando C. Cuevas; Douglas Dilks; Jeff M. Dodd; Dan Dragotto; Brian C. Dudley; William A. Dunn; Steve J. Encinias; Anthony Charles Ferro; Guadalupe G. Flores; Mark Wray Flot; Larry R. Ford; Timothy P. Freeman; Raymond A. Gallegos; Danny William Garrett; James David Gibson; Mark Glenchur; James R. Goldsworthy; Jeffrey G. Gonzalez; Christian P. Granucci; Edward J. Gutierrez; Benjamin R. Guzman; Josel Guzman; Sir R. Habersham, IV; Anthony Hardaway; Huston Herman; Alfred B. Hernandez, III; Rene Herrera; Ricky M. Herrera; Larry Hoerner; Kory Wayne Jackson; Larry Jackson; Roderic A. Jackson; Ronnie R. Jimenez; Jayson A. Johnson; Keith M. Johnson; Kevin Malcolm Johnson; Donald R. Jones; Garabed Karaoglanian; Kenneth L. Knighten; Joseph D. Lankau; Dale A. Lecesne; Robert Ledesma; Brian M. Lee; Robert W. MacInnes; David Malafronte; Joe G. Manzo; Dexter G. McDaniel; Michelle Marie McKee; Timothy K. McKee; Laurinda Meade; Joseph Menton; Christopher J. Moffatt; Donta T. Montgomery; Cecil Morris; Roger D. Morris; Carl S. Moskovitz, II; Aaron G. Mungaray; Alan C. Naeole; Donald P. Nash, II; James Nordquist; Dennis A. Ohligshlager; Drew Oliphant; Tyrone O'Shea; Patrick T. Oyama; Roy Allen Paige; David Pass; Norman M. Pate; Steven Keith Phillips; Brandi Pilato; William Ramsey; Steven G. Ravitz; Louis D. Richard; David T. Riles; John Rodriguez; Mark L. Rousseau; Brent Ruff Shannon K. Saffo; Paul T. Semerjian; Richard Dwight Senneff; George Carr Smith, III; Stanley E. Smith; Paul E. Sorum; Brent Spankroy; Joseph St. George; Thomas W. Stafford; Carey Steiner; Dennis C. Stone; Michael J. Taylor; Michael D. Tobey; Abel J. Torres; Louis Torres; Catherine A. Utterback; John P. Vigil; Victor M. Villa; Donell C. Wible; Kenneth Wigchert; Erik D. Williams; Mark R. Woolf, Plaintiffs-Appellees,


CITY OF LOS ANGELES, a Municipal corporation, Defendant-Appellant.

No. 03-55505.

United States Court of Appeals, Ninth Circuit.

August 22, 2005.

Argued and Submitted December 6, 2004—Pasadena, California

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Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, Chief Judge, Presiding, D.C. No. CV-99-09175-CBM.

Before: James R. Browning, Harry Pregerson, and Marsha S. Berzon, Circuit Judges.


Barry R. Levy (argued), and Karen M. Bray (briefed), Horvitz & Levy, Encino, California, for the defendant-appellant.

Alan S. Kaufman, Chamberlain, Kaufman & Jones, Albany, New York, for the plaintiffs-appellees.


PREGERSON, Circuit Judge:

This case involves the application of the Fair Labor Standards Act's ("FLSA") overtime exemption for an "employee engaged in fire protection activities." 29 U.S.C. § 207(k). Unless an exemption applies, the FLSA requires that employees be compensated at a rate of one-and-one-half times their regular hourly rate for all hours worked in excess of forty in one week. We must determine whether the fire protection exemption should be applied to dual function paramedics, individuals trained in both fire suppression and advanced life saving. This issue is of first impression in the Ninth Circuit.

We have jurisdiction under 28 U.S.C. § 1291. For the reasons set forth below, we affirm the district court, finding that no exemption applies.

I. Factual Background

Plaintiffs are 119 employees of Defendant City of Los Angeles (the "City"). They are employed as "dual function" or "cross-trained" firefighters/paramedics ("dual function paramedics"). This means that Plaintiffs are fully trained and certified in both fire suppression skills and advanced life support paramedics. The City also employs "single function" paramedics who are not trained in fire suppression.

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Plaintiffs work a rotating schedule that results in nine scheduled twenty-four-hour shifts every twenty-seven days, for a total of 216 hours per work period. During periods relevant to this case, Plaintiffs were assigned to work as paramedics on "paramedic ambulances." While staffing paramedic ambulances, Plaintiffs were responsible for providing medical care, transporting patients to hospitals, maintaining the ambulances, and completing related paperwork. Paramedic ambulances are usually staffed by two employees. This may include two single function paramedics, two dual function paramedics, or one of each. Dual function and single function paramedics assigned to paramedic ambulances perform the same job — that is, they provide medical care and transport assistance.

Paramedic ambulances are not designed to provide fire protection services. They do not carry water, hoses, pumps, ladders, or fire suppression breathing equipment, nor do they carry any specialized extrication equipment, aside from a crow bar and a lock cutter. All personnel at a fire scene are expected to wear fire protection gear, except paramedics on paramedic ambulances, who are dispatched only to perform medical services. Paramedic ambulances are not dispatched to every fire call, but are instead dispatched only when there appears to be a need for advanced life support medical services. Further, when they arrive at fire scenes, paramedics treat injured people, standby for patient care, and take exhausted firefighters to the hospital; they do not assist with any fire suppression.

If there is no injury, and the incident commander does not see the need for the paramedic ambulance to stand by, the incident commander has the discretion to release the paramedic ambulance from the scene to be available for other calls.

Paramedic ambulances are rarely dispatched to fire scenes, so such dispatches make up a very small portion of Plaintiffs' work. Plaintiffs testified that they are sent to fire scenes an average of one to two times per year, and only to perform medical functions. There is no evidence that any Plaintiff (or any other dual function paramedic) has ever been ordered to perform fire suppression by an incident commander when assigned to a paramedic ambulance. Dual function paramedics may volunteer to assist firefighters at a fire scene, but if they do not volunteer, they are not subject to discipline.

Plaintiffs assigned to paramedic ambulances do not perform environmental rescues;1 such rescues are performed by fire suppression personnel assigned to vehicles with the necessary equipment. Plaintiffs are sometimes dispatched to crime scenes and vehicle accidents for the purpose of providing medical services. Nevertheless, Plaintiffs respond to a considerably greater number of purely medical emergencies than they do to fires, traffic accidents, or crime scenes. Because paramedics are called away from the fire station more frequently than firefighters, dual function paramedics often miss required fire suppression training sessions.

II. Statutory and Regulatory Background

The Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201-19, provides for the payment of premium overtime compensation at one and one-half times the regular rate when an employee works more than forty hours in a seven-day

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week. See 29 U.S.C. § 207(a).2 Section 207(k) provides an exemption for law enforcement and fire protection employees. See 29 U.S.C. § 207(k).3 Under this exemption, an employer must compensate fire protection employees with payment of premium overtime payment only after 204 hours of work within a twenty-seven-day period. See § 207(k)(2). The City has relied on § 207(k)'s exemption to pay Plaintiffs as employees in fire protection activities. Classified as such, Plaintiffs received overtime pay only if they worked more than 204 hours in a twenty seven-day work-period.

A. Regulatory Interpretation of the FLSA

At the time that Plaintiffs filed their complaint, the FLSA did not define an "employee in . . . fire protection activity." Guidance for defining this term came from Department of Labor ("DOL") regulations, available in the Code of Federal Regulations. See 29 C.F.R. § 553. Section 553.210 provides a four-part test for determining whether an employee is engaged in a "fire protection activity." 29 C.F.R. § 553.210(a).4 The last full sentence of this regulation specifically includes ambulance and rescue service workers who form

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an "integral part" of an agency's fire protection activities. This sentence is followed by an explicit cross-reference to 29 C.F.R. §...

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