Benshoff v. City of Virginia Beach

• Decision Date: 10 June 1998
• Docket Number: No. CIV. A. 2:97CV975.,CIV. A. 2:97CV975.
• Citation: 9 F.Supp.2d 610
• Parties: Gregg Alan BENSHOFF, et al., Plaintiff, v. CITY OF VIRGINIA BEACH Defendant.
• Court: U.S. District Court — Eastern District of Virginia

Page 610

9 F.Supp.2d 610

Gregg Alan BENSHOFF, et al., Plaintiff, v. CITY OF VIRGINIA BEACH Defendant.

No. CIV. A. 2:97CV975.

United States District Court, E.D. Virginia, Norfolk Division.

June 10, 1998.

Gregory Keith McGillivary, Thomas A. Woodley, Kurt T. Rumsfeld, Mulholland & Hickey, Washington, DC, for Gregg Alan Benshoff, Zeno Nichols, Jr., Paul Robert Criswell, Jeffrey L. Floyd, George Marshall, Alan G. Taylor, Alan Paul Walters, plaintiffs.

Stanley G. Barr, Jr., Robert Jon Barry, Kaufman & Canoles, Norfolk, VA, Randall Mahlon Blow, Virginia Beach City Attorney's Office, Richard Jay Beaver, Office Of The City Attorney, Virginia Beach, VA, Lawrence Steven Emmert, Office Of The City Attorney, Virginia Beach, VA, Scott William Kezman, Kaufman & Canoles, P.C., Norfolk, VA, for City of Virginia Beach, defendants.

ORDER AND OPINION

DOUMAR, District Judge.

The plaintiffs Gregg Benshoff, et al. moved for partial summary judgment and defendant City of Virginia Beach ("City") moved for summary judgment. The parties indicated at the hearing that there were no material facts in dispute. For the reasons set forth below, the Court DENIES plaintiffs' motion for partial summary judgment and GRANTS defendant's motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Each of the plaintiffs in this action is a master firefighter employed by the City Fire Department claiming overtime pay for hours furnished to what are allegedly volunteer rescue squads. In addition to the Fire Department, the City also maintains a Department of Emergency Medical Services ("DEMS") which interacts with the Fire Department and 11 private rescue squads serving City residents.

Plaintiff Gregg Benshoff ("Benshoff") became a member of the Virginia Beach Fire Department in 1985. Before joining the Virginia Beach Fire Department, he was a volunteer firefighter in Pittsburg, Pennsylvania. Benshoff joined the Blackwater Volunteer Fire Department and Rescue Squad, Inc. ("Blackwater Squad") located in Virginia Beach in 1995. In June, 1997, Benshoff transferred to the Kempsville Rescue Squad, Inc. ("Kempsville") also located in Virginia Beach. According to Benshoff, his motivation for joining the Blackwater Squad concerned "moral issues ... I could not sit back and watch somebody suffer while I had the training to take care of that ...[a service I could perform] from the fire apparatus when I was working." Benshoff Dep. at 29. Benshoff also stated that he did not become a rescue squad member for career enhancement or promotion, but because it would "make me feel better." Id. at 30.

Plaintiff Paul Criswell ("Criswell") joined the City Fire Department in 1990. Prior to this employment, he volunteered for the Oceana Volunteer Fire Department located in Virginia Beach from 1988-1990. Criswell was already a member of the Princess Anne Courthouse Volunteer Rescue Squad and Fire Department, Inc. ("Courthouse Squad") located in Virginia Beach when he joined the City Fire Department. Criswell resigned from the Courthouse Squad and became a member of the Ocean Park Volunteer Fire and Rescue Unit, Inc. ("Ocean Park Squad") located in Virginia Beach in February 1998. According to Criswell, his motivation for becoming a rescue squad member was "[t]o make me initially more marketable to get hired with the paid fire department and to provide service to the citizens." Criswell Dep. at 59. When asked whether he would continue as a rescue squad member if he knew he would not get paid, Criswell responded "I would feel I would have no choice because of the moral issues that I have to provide the level of training that I have been trained to .... The citizens would suffer." Id. at 60-61.

Plaintiff Jeffrey Floyd ("Floyd") joined the City Fire Department in 1975. He became a member of the Courthouse Squad in 1994 but resigned from the squad in May, 1996. He states that his motivation for joining the rescue squad was because "I noticed when I would respond on fire response down here that there was a need for advance life saving ("ALS") more so down here because we're [located] in the rural part of the [county] ... and I felt that I could better my career and help the people of — citizens of Virginia Beach to go on and get ALS care so I could render that to them off the fire truck." Floyd Dep. at 85.

Plaintiff George Marshall ("Marshall") joined the City Fire Department in 1988 after working as a firefighter with the York County Fire Department for several years. Marshall was already a member of the Virginia Beach Volunteer Rescue Squad, Inc. ("Virginia Beach Squad") before he joined the City Fire Department. When asked what motivated him to become a member of the rescue squad, Marshall stated that he wanted to "[m]aintain my skills ... [a]ll my friends were members ... [t]here were not a lot of ALS providers when I first came in. So it was a — to help out." Marshall Dep. at 108-09. Marshall also declared that he thought joining the rescue squad would hinder rather than enhance his firefighting career "[b]ecause we fall into a grey area between the two departments. I never expected it to do anything for me other than to be able to help out people." Id. at 109. Marshall claims he had no expectation of being paid for his work with the rescue squad until he heard that the City was possibly violating the Fair Labor Standards Act ("FLSA"). Id.

Plaintiff Zeno Nichols, Jr. ("Nichols") joined the City Fire Department in 1972. He joined the Sandbridge Rescue and Fire, Inc. ("Sandbridge Squad") located in Virginia Beach in 1995 but transferred to the Kempsville Squad in August, 1997. His reasons for joining the rescue squad were because "too many times [I was] on a scene [that] needed a paramedic and there just wasn't one there." Nichols Dep. at 17. Nichols went on to explain that he did not expect to get paid when he volunteered for the rescue squad, that firefighters were not required to provide advance life saving service, and he did not think being a rescue squad member would be good for his career, but "good for the citizens." Nichols Dep. at 46-48.

Plaintiff Alan Taylor ("Taylor") joined the City Fire Department in 1988 after working as a volunteer for the London Bridge Volunteer Fire Department located in Virginia Beach from 1985-88. He became a member of the Courthouse Squad shortly after joining the City Fire Department in 1988, but was terminated from the rescue squad in February, 1998 for missing assigned shifts. When asked why he joined the rescue squad, Taylor stated that "I was approached by [rescue squad] members there because obviously working on the fire side, the EMS side is right there. They were having problems manning their ambulances. So they asked me if I would join to give them a hand." Taylor Dep. at 18.

Plaintiff Alan Walters ("Walters") joined the City Fire Department in 1989 after working for the Thalia Fire Station located in Virginia Beach as a volunteer for a couple of years. He became a member of the Kempsville Squad in 1989 about five months after joining the City Fire Department. He resigned from the rescue squad in August, 1997. Walter's motivation for becoming a rescue squad member was because he "like[d] knowledge; and it just gave [him] more chance to do stuff and [gave him] more knowledge." Walters Dep. at 15. Walters also stated that when he first volunteered for the rescue squad, he did not expect to get paid for the time that he spent as a volunteer. Walters Dep. at 49.

All 11 volunteer rescue squads are separately incorporated, non-profit entities. They were created years ago as volunteer citizen organizations. As required by Virginia corporation law, the rescue squads are governed by their own respective boards of directors. The City has no control over the membership of these boards; rather, the membership of the individual rescue squads elects the directors. The governing policies may be changed by these directors from time to time as with any corporation, and they can be disbanded and dissolved without City involvement. Bruce W. Edwards, the Director of the DEMS, has recognized that "the volunteer rescue squads are a separate entity. For example, I cannot tell them how they are going to fund-raise; I cannot tell them how they are going to hold their elections or set up various policies and procedures within their rescue squads when it comes to these provisions." Edwards Dep. at 54.

The Ocean Park Squad was originally incorporated in 1946 when the current City of Virginia Beach was Princess Anne County. To become a member of this organization, an applicant has to be interviewed and endorsed by at least one member of the Membership Committee and one other Full Member. Ocean Park Squad Bylaws at 4. The applicant must then receive a two-thirds vote from the membership to be accepted as a member of Ocean Park Squad. Id. To be dismissed from the Ocean Park Squad, a three-quarters vote of the Full Members is required. Ocean Park Squad Bylaws at 12. Disciplinary charges are filed with the Secretary, who then brings the matter before the Executive Board for review and possible selection for the Disciplinary Committee. Id.

The Courthouse Squad was originally incorporated in 1952 when the current City of Virginia Beach was Princess Anne County. Under its bylaws, a prospective member is presented by the Vice-President to the membership, who then votes on admitting the applicant to the Courthouse Squad as a Probationary Member. Courthouse Squad Bylaws at 6. After obtaining a city-issued ID card indicating the Probationary Member's medical certification level, the membership will vote on changing the Probationary Member's status to Operational Probationary. Id. After successful completion of the Operational Probationary Period, the membership votes on whether to admit the applicant as an Active Member. Id. Dismissal from the Courthouse Squad must be presented to the Board of Directors for review and approval. Courthouse Squad...