Ball v. District of Columbia, Civ. A. No. 91-1633.

Decision Date22 May 1992
Docket NumberCiv. A. No. 91-1633.
Citation795 F. Supp. 461
CourtU.S. District Court — District of Columbia
PartiesCharles Henry BALL, Jr., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.

COPYRIGHT MATERIAL OMITTED

Ira M. Lechner, Washington, D.C., for plaintiffs.

O. Gregory Lewis, Asst. Corp. Counsel, Office of the Corp. Counsel of the District of Columbia, Washington, D.C., for defendant.

MEMORANDUM OPINION

SPORKIN, District Judge.

Plaintiffs in this case are firefighters who work at St. Elizabeth's Hospital. They brought this suit alleging that the District of Columbia ("the District") has violated the Fair Labor Standards Act (FLSA) and several local statutes. They are seeking back pay and liquidated damages. Among the causes of action in the complaint, two are central and have been challenged by the District on their merits. They are as follows: (1) what rate of standby duty pay are the plaintiffs entitled to receive; and (2) how many hours per week must the plaintiffs work before they are paid at overtime rates. The District has opposed the remaining eight causes of action on jurisdictional grounds. The parties have filed cross motions for summary judgment. The Court held a hearing on the motions. As there are no issues of material fact in dispute, the Court is now prepared to rule on the motions. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

I. FACTS

The plaintiffs are professional firefighters who work exclusively at St. Elizabeth's Hospital. Before October 1, 1987, when St. Elizabeth's was a federal facility, they were federal employees. After October 1, 1987, when control of the hospital was transferred from the federal government to the District of Columbia, the firefighters became District of Columbia employees. From October 1, 1987 until December 4, 1988, the St. Elizabeth's firefighters were deemed employees of the District Fire Department. However, on December 4, 1988, responsibility for the firefighters was transferred from the District Fire Department to the Commission on Mental Health Services. From that time forward, the St. Elizabeth's firefighters have been employees of the Commission on Mental Health Services.

Plaintiffs first claim concerns their standby duty pay. When the plaintiffs were federal employees, each pay period certain ones of them received a basic salary as well as 25% of that salary in standby duty pay.1 When they became District employees, the standby duty pay was reduced to 15% of their basic salary. Plaintiffs claim that the reduction in standby duty pay violated the law, and they are now seeking an award of back pay.

Plaintiffs second claim concerns overtime pay. The plaintiffs currently work twenty-four hours on duty followed by forty-eight hours off. They are paid at the overtime rate only when they work more than 212 hours in a twenty-eight day period. This is the same threshold the District government uses for firefighters in the District Fire Department pursuant to a specific exemption provision of the Fair Labor Standards Act. See 29 U.S.C. § 207(k). Plaintiffs claim that this provision does not apply to them because they are not employees of an organized fire department. As such, they contend that they should receive overtime pay when they work more than forty hours per week as required by the Fair Labor Standards Act because the firefighters exception does not apply. They are seeking a declaratory judgment to that effect as well as back pay.

Plaintiffs also raise eight additional claims, all alleging that the District has failed to compensate them properly in some respect. The defendant does not address these claims individually and instead argues that they are personnel matters over which the Court should not exercise jurisdiction.

II. LEGAL ANALYSIS
A. Rate of Standby Duty Pay

In the law which transferred control over St. Elizabeth's to the District of Columbia government, Congress stated explicitly that no transferred employee was to "suffer a loss in the basic rate of pay or in seniority." 24 U.S.C. § 225e(a)(4). When the plaintiffs became District employees, their base salary remained the same, but their standby duty pay was reduced from 25% to 15% of their salary. The plaintiffs argue that this reduction violates the statute.

Exactly what is meant by "basic rate of pay" is a question of statutory interpretation. There is no legislative history interpreting the phrase, and the Court is not aware of any cases that interpret this language. When faced with such a question, courts rely on the plain meaning of the statute. See American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). In this statute the plain meaning of "basic rate of pay" suggests the pay regularly received by an employee for the standard work week or other pay period. Cf. Lanehart v. Horner, 818 F.2d 1574, 1581 (Fed.Cir.1987) (construing term "pay" in context of leave with pay statutes). It implies that an employee may also receive "non-basic" pay when additional hours are worked or when the employee performs unusual services during a pay period. For firefighters, standby duty pay does constitute part of the basic rate of pay.

Firefighters, like police officers and other emergency service personnel, work unusual schedules. Not only do they work longer tours of duty and more hours per week, on average, than other employees, they also are required to work nights, weekends, and holidays. To compensate for this unusual schedule, it is common for firefighters to receive a percentage of their base salary as extra premium or standby duty pay. For firefighters, the additional payment is a part of their "basic rate of pay." The plaintiffs receive standby duty pay in every paycheck. It does not vary with the number or type of hours worked. The fact that it is calculated as a percentage of salary or that it is sometimes called "premium" pay, see e.g., 29 U.S.C. § 207(e)(5), does not prevent it from being part of the basic rate of pay.

The District of Columbia advances two grounds for its claim that it has not reduced the plaintiffs' "basic rate of pay." First, the District contends that the firefighters at St. Elizabeth's work fewer hours per pay period since the transfer of this function from the federal government to the District Government. Therefore, the District claims their basic rate of pay has not decreased because even with the reduction in the rate of standby duty pay from 25% to 15%, they have been earning more per hour than they did when they were federal employees. See Defendant's Memorandum of Points and Authorities in Support of Motion of Defendant District of Columbia for Summary Judgment, 8. Second, the District asserts that under District pay scales these employees get higher salaries than they received under federal pay scales. See Affidavit of Clara Orino, ¶ 5 ("The basic pay of each plaintiff was increased upon the initiation of his employment with the District of Columbia."); Defendant's Memorandum of Points and Authorities in Support of Motion of Defendant District of Columbia for Summary Judgment, 8. The District argues that plaintiffs' basic rate of pay has not decreased because the total pay package the plaintiffs receive has actually risen.

Both of these arguments are rationalizations. The statutory language makes the basic rate of pay inviolate. The defendant has not offered a shred of evidence that Congress ever contemplated an interpretation that would allow the District to reduce the plaintiffs' rate of standby duty pay. The Court rejects the defendant's interpretation as a post hoc attempt to justify an unauthorized reduction in pay. The statute does not talk about adjusting number of hours worked or preserving the absolute amount employees are paid. The statute prohibits the District from reducing their existing "basic rate of pay," meaning the salary and the rate of standby duty pay, that the plaintiffs were paid as federal employees.

The plaintiffs are entitled to the protection Congress intended to give them when it passed the law transferring their employment to the District government. The Court will enter a judgment in favor of the plaintiffs on this cause of action and will order the defendant to provide the plaintiffs with the difference between the 15% standby duty pay they actually received and the 25% standby duty pay they were entitled to receive under the transfer statute. The plaintiffs will receive everything they are owed from the date the hospital was transferred, October 1, 1987.

B. Overtime Hours

The general rule under the Fair Labor Standards Act is that employees are to receive overtime compensation when they work more than forty hours per week. See 29 U.S.C. § 207(a). The Act, though, specifies certain exceptions for some categories of employees. One such exception, 29 U.S.C. § 207(k) applies to "any employee in fire protection activities or any employee in law enforcement activities" who works for a public agency. According to the regulation defining the phrase "employee in fire protection activities" one must be "employed by an organized fire department or fire protection district" in order to fall into this category. 29 C.F.R. § 553.210(a). One must also (1) be properly trained to fight fires as required by law; (2) be legally authorized and responsible for fighting fires; and (3) actually engaged in fire protection activities. Id. Where fire protection personnel fall under this exception, the employing government must pay overtime only after the employee has worked in excess of 212 hours in a 28-day period.2 The regulations are entitled to deference unless the Court determines they are unreasonable. See Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

The parties agree that the plaintiffs in this case are employees of the Commission on Mental Health Services. They were removed from the District of...

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