Christian v. City of Gladstone, Mo.
| Decision Date | 17 March 1997 |
| Docket Number | 96-1777,Nos. 96-1646,s. 96-1646 |
| Parties | 133 Lab.Cas. P 33,508, 3 Wage & Hour Cas.2d (BNA) 1441 Kevin D. CHRISTIAN; Brian Helland; Larry Kipping, Appellees/Cross-Appellants, v. The CITY OF GLADSTONE, MISSOURI, Appellant/Cross-Appellee. The Missouri Municipal League, Amicus Curiae. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Stanley E. Craven, Kansas City, MO, argued, for appellant.
Scott J. Sullivan, Liberty, MO, argued (James F. Ralls, Jr. and John B. Reddoch, on the briefs), for appellee.
Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM, 1 District Judge.
The City of Gladstone appeals from a judgment awarding backpay and attorney fees to three public safety officer paramedics who cross-appeal the amount of their award. The paramedics claim that under § 207(a) of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, they are entitled to overtime pay for any hours worked in excess of forty hours each week. The City argues that the FLSA does not require overtime pay for the paramedics because they fit within a statutory exception under § 207(k) for employees in fire protection activities. The district court granted summary judgment for the paramedics, concluding that the City had not established the partial overtime exception, but awarding them less overtime pay than they sought. We reverse.
The parties have stipulated the facts. The City has created a Public Safety Department to unify the emergency response for fires, medical emergencies, and police calls, as well as the administrative support for those services. The Department is divided into four bureaus: administrative, support services, law enforcement, and fire/emergency medical services (fire/ems). Employees in the law enforcement and fire/ems bureaus are cross-trained so that they may respond to a variety of emergency situations. The fire/ems bureau employs sixteen public safety officers who are trained and certified as firefighters, seven of whom are also cross-trained as paramedics.
The paramedics in the fire/ems bureau respond to fire alarms, accident scenes, and medical emergencies. They are available to respond to all fire calls, and they are dispatched to approximately 50% of total fire alarms each year, including since 1992 all fire alarms where a fire is confirmed and some still alarms where the cause of the alarm is unknown. They are responsible for fighting fires when they arrive at the scene, but they leave when they can in order to be available for other calls. Fire alarms make up about 11% of their calls, car accidents about 9%, and the remaining calls are other accidents and medical emergencies.
Because the work involves considerable time waiting for calls, the City uses a scheduling system of rotating shifts in the fire/ems bureau. The public safety officers and paramedics are on duty 24 hours and then have 48 hours off, working a total of nine days in a twenty-seven day period. This scheduling permits the employees of the fire/ems bureau to eat, relax, and sleep while waiting for calls, as well as to perform other necessary support services such as training and maintaining equipment.
Three of the seven paramedics in the fire/ems bureau sued the City, alleging that the City failed to pay them overtime for hours worked in excess of forty hours each week. The City contended that under § 207(k) it was not required to pay overtime based on a forty hour workweek because the paramedics were employees in fire protection activities and were thus permitted to work 212 hours in a 28 day period before being entitled to overtime. The district court concluded that although the paramedics were engaged in fire protection activities, they did not fall under the exception because they spent more than 20% of their time on activities unrelated to fire calls.
The first issue raised on appeal is whether the district court erred in concluding that the paramedics were employees in fire protection activities as defined in § 207(k). The paramedics argue that they are not because they do not respond to all still alarms, spend less time on fire calls than medical calls, and attend to more medical emergencies than fire alarms or car accidents. The City counters that the paramedics are fire protection employees because they are responsible for fighting fires and their paramedic activities are substantially related to firefighting. A grant of summary judgment is reviewed de novo. Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir.1994).
The FLSA generally requires employers to pay employees overtime compensation for any hours worked in excess of forty hours each week. 29 U.S.C. § 207(a). Because the nature of emergency service work does not fit the normal pattern of forty hour workweeks, Congress enacted § 207(k). This section provides a partial overtime pay exception for "any employee in fire protection activities or any employee in law enforcement activities" and permits them to work a total of 212 hours during a work period of 28 days before being entitled to overtime compensation. S.Rep. No. 93-690, at 24 (1974) U.S. Code Cong. & Admin. News 1974 at 2811; see S.Rep. No. 99-159, at 5 (1985) U.S. Code Cong. & Admin. News 1985 pp. 651-653. This allows the use of rotating schedules where employees work 24 hours and then have 48 hours off.
The statutory section creating a partial overtime exception does not itself define what is meant by "employee in fire protection activities," but the related regulations provide a definition. The term includes
any employee (1) who is employed by an organized fire department or fire protection district; (2) who has been trained to the extent required by State statute or local ordinance; (3) who has the legal authority and responsibility to engage in the prevention, control or extinguishment of a fire of any type; and (4) who performs activities which are required for, and directly concerned with, the prevention, control or extinguishment of fires, including such incidental non-firefighting functions as housekeeping, equipment maintenance, lecturing, attending community fire drills and inspecting homes and schools for fire hazards.... The term would also include rescue and ambulance service personnel if such personnel form an integral part of the public agency's fire protection activities. See § 553.215.
The district court concluded the paramedics did not meet the four-part test because the City had not established that the paramedics have the legal duty and responsibility to fight fires or that they perform activities concerned with fire suppression and prevention. It went on to consider the additional definition in the regulations which states that the section includes "rescue and ambulance service personnel if such personnel form an integral part of the public agency's fire protection activities." The City argues that the paramedics meet the four-part test, but the paramedics respond that fighting fires is not their primary duty.
The paramedics concede they meet the first two parts of the test in § 553.210(a): they are employed by an organized fire department and have been certified by the state of Missouri to fight fires. The stipulated facts also show that the paramedics have the legal authority and responsibility to fight fires (part three) and that they perform activities required for firefighting (part four). They are thus employees "in fire protection activities."
A central consideration under the test is whether an employee actually fights fires. See Carlson v. City of Minneapolis, 925 F.2d 264, 265 (8th Cir.1991) (per curiam) (). Paramedics who are not permitted to fight fires or enter a burning building and who are only dispatched to fires to treat injured individuals are not engaged in fire protection activities under the four-part test. Nalley v. Baltimore, 796 F.Supp. 194, 200 (D.Md.1992). The paramedics here are sworn firefighters, however, and they respond to every fire alarm where a fire has been confirmed, as well as some alarms where a fire has not been confirmed, amounting to approximately 50% of all fire alarms each year. They fight fires at those alarms, constitute over 40% of the public safety officers in the fire/ems bureau and on each shift, and perform fire protection support services such as equipment maintenance and training. The four-part test has no requirement that firefighting be the employees' only or primary duty, and the fact that the paramedics are also able to provide medical services while at fires and elsewhere does not eliminate their responsibility for firefighting. These paramedics are employees in fire protection activities under the four-part test in § 553.210(a), and whether they fit within the statutory exception under any alternative test does not therefore need to be considered. 2
Another section of the regulations specifically provides that employees engaged in firefighting may also do a certain amount of other work and remain within the statutory exception to overtime pay, but if more than 20% of the work is in "nonexempt activities" the employees may be entitled to overtime. 29 C.F.R. § 553.212(a). Section 553.212(a) states that:
Employees engaged in fire protection or law enforcement activities as described in § 553.210 and 553.211, may also engage in some nonexempt work which is not performed as an incident to or in conjunction with their fire protection or law enforcement activities.... A person who spends more than 20 percent of his/her working time in nonexempt activities is not considered to be an employee engaged in fire protection or law enforcement activities for purposes of this part.
29 C.F.R. § 553.212(a). Nonexempt work is not defined, but the regulation gives an example of such work as "firefighters who work for forest...
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