9 F.3d 924 (11th Cir. 1993), 92-4557, Wouters v. Martin County, Fla.

Docket Nº:92-4557.
Citation:9 F.3d 924
Party Name:1 Wage & Hour Cas. 2d (BNA) 1335 Richard WOUTERS, Timothy H. Walker, Karin T. Klause, David Vity, Janet S. Zoldak, Frank R. Pino, Ranae D. Cerezo, Wade H. Mallard, Mark R. Bents, David L. Zarker, Stephen G. Smith, Terry N. Wilkes, Jr., Errol L. Wright, Jr., Rebecca L. Pickering, Daniel Wouters, Karen S. Jordan, Richard M. Wilde, Georgene Bailes, Ca
Case Date:December 21, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 924

9 F.3d 924 (11th Cir. 1993)

1 Wage & Hour Cas. 2d (BNA) 1335

Richard WOUTERS, Timothy H. Walker, Karin T. Klause, David

Vity, Janet S. Zoldak, Frank R. Pino, Ranae D. Cerezo, Wade

H. Mallard, Mark R. Bents, David L. Zarker, Stephen G.

Smith, Terry N. Wilkes, Jr., Errol L. Wright, Jr., Rebecca

L. Pickering, Daniel Wouters, Karen S. Jordan, Richard M.

Wilde, Georgene Bailes, Carlton L. Jones, Mark D. Hellstrom,

William Mahneke, James D. Kay, Joseph V. Ferrara, William M.

Godfrey, Moetahar Padellan, Marc Ducote, Shannon K. Walker,

Mark L. Whitlock, and Anne Davis, Plaintiffs-Appellants,

Cross-Appellees,

v.

MARTIN COUNTY, FLORIDA, Defendant-Appellee, Cross-Appellee.

No. 92-4557.

United States Court of Appeals, Eleventh Circuit

December 21, 1993

Page 925

[Copyrighted Material Omitted]

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        Ben R. Patterson, Tallahassee, FL, for appellants.

        Joseph J. Mancini, J. David Richeson, Ft. Pierce, FL, for appellee.

        Appeals from the United States District Court for the Southern District of Florida.

        Before FAY and CARNES, Circuit Judges and JOHNSON, Senior Circuit Judge.

        FAY, Circuit Judge:

        Plaintiffs, employees of the Martin County Department of Public Safety, appeal the district court's dismissal of several plaintiffs, denial of their motion for partial summary judgment, and grant of summary judgment in favor of defendant Martin County on the employees' suit to recover overtime compensation allegedly due to them under the Fair Labor Standards Act of 1938 1 ("FLSA"). We REVERSE the order of dismissal as to fourteen plaintiffs, VACATE the order granting summary judgment, and REMAND for further consideration.

       I. BACKGROUND

  1. Facts

            Plaintiffs are current or former Emergency Medical Services ("EMS") personnel, working as either paramedics ("PMs") or Emergency Medical Technicians ("EMTs"). Their suit alleges entitlement to overtime compensation for all hours worked in excess of forty per week, pursuant to the FLSA section 7(a). Alternatively, plaintiffs claim that if, as argued by defendant, they fall under any exemption provided by the Act, it should be that for law enforcement officers, entitling them to overtime after forty-three hours of work per week.

            Instead, defendant classifies plaintiffs as firefighters who fall under the exemption found in the FLSA section 7(k) and are entitled to overtime only after working fifty-three hours in a week. Simultaneously, defendant argues that plaintiffs spend all their time providing emergency medical rescue services, and this work qualifies as law enforcement and fire protection activity under section 7(k) of the FLSA. (R.V5-90-8).

            Firefighters and EMS personnel comprise the county's emergency response system. EMS personnel work in eleven paramedic stations located throughout the County and in six of the fourteen county fire stations. Typically, plaintiffs respond to emergencies in their assigned ambulances. At one fire station, the paramedic rides to emergencies on the fire truck. Plaintiffs' shifts match the "twenty-four hours on, forty-eight hours off" schedule followed by firefighters. 2

            EMS personnel provide emergency treatment to victims of fires, accidents, crimes, hazardous materials incidents, natural disasters and a variety of medical crises. They do not handle routine matters like patient transfers. All working hours are dedicated to emergency response, vehicle or equipment maintenance, training, facility housekeeping, or being available at the station for dispatches to emergencies. EMS personnel do not perform duties unrelated to their EMS work.

            Firefighters and EMS personnel possess different skills. EMTs and PMs are not necessarily firefighters. However, nearly all firefighters are certified EMTs, trained in extrication techniques, and basic life saving and support procedures. Paramedics have EMT training, but are also certified to administer

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    Advanced Life Support ("ALS"). 3 Because neither firefighters nor EMTs may conduct ALS functions, paramedics are regularly jointly dispatched to certain fire protection emergencies. EMTs are also automatically dispatched to these calls because they work in teams with paramedics. Defendant asserts that the county's emergency response effectiveness depends on joint action by the various components of the system.

            Defendant maintains computerized records on the frequency and nature of calls answered by firefighters and EMS units, and relies on the figures for firefighter responses from 1989 to 1991 in presenting its case. Although defendant maintains that firefighters and EMS personnel may work jointly on many types of calls, the only dispatches that are "clearly joint response" are those involving structure fires, vehicle accidents, and medical assists. 4 (Wolfberg Aff. at 7-8). Based on these figures, Defendant asserts that over half of the 4648 legitimate firefighter calls during the target years were joint responses with EMS workers. 5 The same affiant who provided this explanation of the computer printouts said in deposition that "routine dual responses" also occur for hazardous materials situations and aircraft standby calls. These two additional categories add only seventy-three joint dispatches for 1989, ten for 1990, and fourteen for 1991. The County agrees that approximately 20% of all EMS calls during the target years were unrelated to fire calls. (Wolfberg Depo. at 74.)

            Plaintiffs also use the county's computer printouts but focus on the figures for EMS dispatches. EMS personnel responded to 26,647 calls from 1989 through 1991. Plaintiffs' calculations result in far higher estimates of non-firefighter related EMS calls than one derives from defendant's figures. 6 One method of calculation accepts the county's focus on the firefighter call breakdown, adding firefighter calls to structure fires, medical assists, vehicle accidents, hazardous situations, and aircraft standbys. This yields a total of 7440 routine EMS dispatches with firefighters. If divided by the total number of EMS calls, even this methodology suggests that only 27.92% of all EMS calls were routine dispatches with firefighters. Thus, according to plaintiffs, 72.08% of the work performed by EMTs falls outside the fire protection category.

            EMS dual response with police officers takes place for automobile accidents, stabbings, rapes, poisonings, suicide attempts, drownings, gunshot wounds, assaults, dead persons, mentally ill persons and overdoses. (Wolfberg Depo. at 51.) From 1989 through 1991, there were 5872 such calls, representing 22.03% of all EMS dispatches. The total number of police dispatches to these calls was not in the record.

            Neither party clearly addresses the percentage of EMS calls handled alone, that is, without either police or fire dispatch. We note that by combining the police co-response figure of 22.03% with the firefighter co-response figure of 27.92%, we reach a figure of 49.95% of all EMS calls involving routine dispatch to either police or fire activity. Consequently, it appears that EMS personnel

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    function autonomously in 50% of their calls. 7

            Before this litigation, plaintiffs and firefighters were assigned to different divisions; they were subsequently placed in a single Emergency Services Division. EMS personnel and firefighters belong to different unions and have different retirement plans. Different radio frequencies serve the two groups. The record does not reflect whether these dispatch channels emanate from a shared dispatch center. Nor does the record reflect whether police and EMS employees belong to the same union or benefit from shared radio dispatch facilities or frequencies. The record further fails to clarify whether EMS employees' radios can reach firefighter or police channels although transmissions are separate, or the significance of each of these possible links between EMS, police, and firefighter services.

  2. Procedural History

            During discovery the district court determined that fourteen plaintiffs failed to properly respond to interrogatories despite two court orders directing their compliance. Defendant eventually obtained the answers during plaintiffs' depositions. The court dismissed these plaintiffs from the suit pursuant to defendant's motion for sanctions under Fed.R.Civ.P. 37(b)(2)(C).

            Plaintiffs filed a motion for partial summary judgment as to liability, and defendant filed a motion for summary judgment. The district court granted defendant's motion finding that as a matter of law the County did not violate the overtime exemption found in 29 U.S.C. Sec. 207(k). Wouters v. Martin County, 793 F.Supp. 310 (S.D.Fla.1992). Plaintiffs allege that the district court erred because (1) the material facts do not show that the paramedics were properly classified under the firefighter exemption; (2) even if the County was entitled to a partial overtime exemption, material facts remain in dispute regarding the type of exemption applicable, and (3) dismissing fourteen plaintiffs for failure to respond properly to interrogatories was an abuse of discretion. The county cross-appeals on the trial court's failure to rule on the issue of the "good faith" defense contained in 29 U.S.C. Sec. 259.

           II. STANDARD OF REVIEW

            We review a district court's grant of summary judgment de novo. Brown v. Crawford, 906 F.2d 667, 669 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991). The "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56 advisory committee's...

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