Renfro v. City of Emporia, Kan.

Citation729 F. Supp. 747
Decision Date05 January 1990
Docket NumberCiv. A. No. 87-4038-S.
PartiesWilliam C. RENFRO, Alan R. Metchley and William L. Olson; Timothy L. Webb; Alan R. Metchley; Rick A. Clark; Gary W. Brammer; Lyle G. Armitage, IV; Larry D. Bess; Kelly R. Riggs; Bobby W. Fancher; Steven F. Kuhlmann; Charles A. Smith; Jesse C. Shaver; Gilbert Herrera; Keith L. Peres; David V. Kelly; Terence L. Kramer; William C. Renfro; James L. Wells; William L. Olson; Thomas A. Andrews; Jeffrey D. Hutcherson; E. Gene Bryant; Jerry Schrock; Cleo C. Strassey, Jr.; Maxwell A. Sielert; Richard L. Brickell; Larry D. Howard; Donald D. Cook, Jr.; David E. Cox; Richard M. Schlup, Jr.; Robert Binder; James A. Schuhardt; Thomas L. Alexander; James L. Compton; Plaintiffs, v. CITY OF EMPORIA, KANSAS, Defendant.
CourtU.S. District Court — District of Kansas

Thomas A. Woodley, Gregory K. McGillivary, Mulholland & Hickey, Washington, D.C., Joseph W. Moreland, Blake & Uhlig, P.A., Kansas City, Kan., for plaintiffs.

Dale W. Bell, Guy, Helbert, Bell & Smith, Emporia, Kan., for defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendant's motion for summary judgment. Plaintiffs have moved for partial summary judgment on the issue of defendant's liability. Defendant has also moved for leave to file certain original depositions and exhibits thereto with the court. Upon examination of defendant's motion for leave to file these depositions, the court finds that such filing is not necessary to its decision in this matter; accordingly, defendant's request is denied. D.Kan. 210(g).

Plaintiffs, who are or were employed with the City of Emporia, Kansas Fire Department (hereafter, "firefighters"), filed this action on January 30, 1987, alleging that defendant City of Emporia (hereafter, "City") has failed to pay them overtime compensation for their rotational, on-call hours. Firefighters seek a declaratory judgment under 28 U.S.C. § 2201 and 2202, and compensation and other relief under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (hereinafter, "the Act" or the "FLSA"). The issue before the court on the parties' cross-motions is whether the firefighters' on-call hours constitute compensable hours worked under the FLSA.

The relevant facts are largely undisputed and may be briefly summarized as follows. The City of Emporia Fire Department employs forty-seven fire department personnel: four staff, nine officers and thirty-three firefighters. The normal number of persons scheduled per shift are: station one: one captain, one lieutenant and eight firefighters; station two: one captain, one engineer, and two firefighters. Firefighters are currently scheduled in nineteen day cycles of one hundred forty-four hours, with three shifts and ten firefighters per shift. Each firefighter is assigned a call-back number and is subject to call-back on a rotation basis on the day following a tour of duty; five firefighters are scheduled for mandatory call-back for station one and three for station two. The mandatory call-back periods are 24-hours in length. On-call personnel are called in when the number of people on duty falls below minimum staffing levels. According to the Emporia Manpower Strength Study for 1986, 44% of the time Emporia was operating its fire department at minimum acceptable staffing levels. Thus, if a unit was called out during those periods, additional personnel on call-back or on-call status could be called in to the station.

The firefighter on top of the call-back list will be called in more often than others, perhaps an average of four times per shift. The firefighters are currently called in via a paging system which has been in use since August 1986. One officer and eight firefighters are on mandatory call per day. When a firefighter is actually called in, overtime compensation is paid. Following a call, a firefighter can leave the station as soon as other personnel are back at the station, or otherwise available, or after receiving approval from the officer in charge. Call-ins range from zero to thirteen per day, but average approximately four or five per day; plaintiffs uniformly estimate call-ins average three to five per day and the average duration of a call-back at one hour. Firefighters are allowed to trade their mandatory on-call shifts with other firefighters; plaintiffs contend that as a practical matter such trades are rare and difficult to accomplish.

Firefighters who are subject to mandatory callback need not remain on the station-house premises but must be able to reach the firestation within twenty minutes of the time they are contacted. Firefighters who are assigned to mandatory on-call time and who miss or are late for a call-back receive a "white slip." A white slip is a form of discipline which is considered in employee evaluations and may result in disciplinary action, including possible termination, if four or more white slips are received in a four month period. In addition to a white slip, firefighters who are late in responding to a page may also receive some form of extra duty, e.g., waxing fire trucks. Plaintiffs contend that firefighters are basically restricted to the city limits because of the distance limits of the pagers. Firefighters on mandatory call cannot use alcohol. Defendant contends that at the present time, eleven of the plaintiffs have secondary employment and engage in those occupations during their on-call time; plaintiffs contend that the "vast majority of firefighters cannot work while on call," given the requirements of on-call status (e.g., firefighters must be able to hear the pager, respond within 20 minutes, and remain at the station an hour or more when called in). Although on-call firefighters are free to engage in a variety of personal activities during their on-call time, plaintiffs contend that their personal activities are restricted while they are on on-call status (e.g., they must be able to hear the pager; they are hesitant to engage in group activities or activities which require expenditure of money since they might be called in at any time; they might have to hire babysitters while on call; they cannot leave town on trips).

After the City of Emporia became subject to FLSA requirements for its employees in April 1986, a task force was created to assess the impact of FLSA requirements on the City. Although firefighters were given the opportunity to discuss the on-call time issue with the task force, no agreement was reached between Emporia and the firefighters regarding on-call time compensation. Emporia maintains that its current policy of only compensating firefighters for those hours when firefighters are actually called in to the station does not violate FLSA requirements because firefighters are not required to remain on the premises while they are on-call and because the firefighters are free to engage in personal activities during their on-call time, subject only to the requirement that they get to the stationhouse within twenty minutes of being paged. The firefighters contend that the FLSA requires compensation for mandatory on-call time under the circumstances of this case.

A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue of material fact. This burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "A party opposing a properly supported motion for summary judgment may not rest on mere facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985).

In its summary judgment motion, Emporia makes three arguments in favor of its contention that the firefighters' mandatory on-call time is non-compensable. First, on-call firefighters are not required to remain on the premises; Emporia contends that the on-call time is used primarily for the firefighters' personal benefit. Second, Emporia argues that the firefighters and the City have an implied agreement that compensation will not be paid for the on-call time for which the firefighters are not actually called in to the station. Defendant's third and final argument is that application of the FLSA to wages and hours of municipal firefighters "is a violation of traditional concepts of federalism unduly interfering with legitimate, traditional, local governmental entities;" accordingly, defendant requests that this court make a determination prohibiting the application of FLSA requirements in this case. Plaintiffs also move for summary judgment on the issue of defendant's liability under the FLSA.

As a threshold issue, the court will address defendant's argument that application of FLSA requirements to municipal firefighters is contrary to the Tenth Amendment. In Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), the United States Supreme...

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