Felker v. Southwestern Emergency Medical Service
| Decision Date | 31 October 2007 |
| Docket Number | No. 2:05-cv-183-WGH-LJM.,2:05-cv-183-WGH-LJM. |
| Citation | 521 F.Supp.2d 857 |
| Parties | Richard W. FELKER, Thomas W. Felker, Gina L. Bogdan and Brock Thuis, individually and on behalf of others similarly situated, Plaintiffs, v. SOUTHWESTERN EMERGENCY MEDICAL SERVICE, INC., Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
Robert Peter Kondras, Jr., Hunt Hassler & Lorenz LLP, Jason M. Saunders, Terre Haute, IN, for Plaintiffs.
Scott Craig, Cox Zwerner Gambill & Sullivan, Terre Haute, IN, for Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
This matter is before the Honorable William, G. Hussmann, Jr., United States Magistrate Judge, pursuant to consent of the parties and the Order of Reference entered by Chief Judge Larry J. McKinney on February 23, 2006. A court trial was held in Terre Haute, Indiana, on August 15, 2007. Plaintiffs were represented by counsel, Robert P. Kondras, Jr., and Jason M. Saunders. Defendant was represented by counsel, Scott Craig and Tracy Lawson.
The parties submitted their proposed Findings of Fact and Conclusions of Law on October 1, 2007. (Docket Nos. 35 and 37).
The Magistrate Judge, being duly advised, hereby enters his Findings of Fact, Conclusions of Law and Decision:
Findings of Fact Related to Jurisdiction, Venue and the Parties
1. This matter was removed to this Court by Defendant, Southwestern Emergency Medical Service, Inc. ("SEMS"), from the Greene Superior Court, as one of Plaintiffs' theories raised a question of federal law. This Court has jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 1343, 29 U.S.C. § 201 et seq., and supplemental jurisdiction over Plaintiffs' claims raised under Indiana law.
2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the alleged unlawful conduct herein was being committed in the Southern District of Indiana.
3. Plaintiff Richard W. Felker at all times relevant herein, was a resident of Greene County, Indiana, and was employed by SEMS from 2002 to 2005. At the end of his employment, he was an ALS-EMT. (See ¶ 10 below.)
4. Plaintiff Thomas W. Felker at all times relevant herein, was a resident of Greene County, Indiana, and was employed by SEMS from 2002 to 2005. At the end of his employment, he was a BLS-EMT.
5. Plaintiff Gina L. Bogdan is a resident of Sullivan County, Indiana, and was employed by SEMS for six months during 2003. At the end of her employment, she was a BLS-EMT.
6. Plaintiff Brock Thuis is a resident of Greene County, Indiana, and was employed by SEMS from 2002 to 2005. At the end of his employment, he was an ALS-EMT.
7. Defendant, SEMS, is an Indiana for-profit domestic corporation, with its principal offices located in Greene County, Indiana, at 902 E. Main Street, Jasonville, Indiana 47438. The corporation is owned by Jeffrey Lecoq.
8. The primary business of SEMS is to transport convalescent patients on a nonemergency basis from their homes, nursing homes, or other locations, to doctor and hospital visits when those patients' medical conditions do not allow for other modes of transportation.
9. Those who work as Emergency Medical Technicians ("EMTs") for SEMS are licensed by the State of Indiana as providers of emergency medical services.
10. There are several different levels of EMTs certified and recognized within the industry by the State of Indiana. An EMT's level or certification depends on the individual's training and education. The first or lowest recognized level of EMT is a "First Responder." With additional education, certification and training an individual may be certified (from lowest to highest) as an:
(a) EMT — Basic (or Basic Life Support — "BLS");
(b) EMT — Basic Advanced (or Advanced Life Support — "ALS");
(c) EMT — Intermediate; and
(d) Paramedic (the highest certified level).
11. The higher an EMT's certification or level, the more services and emergency care may be offered by the EMT. For example, an Intermediate EMT may administer medications intravenously and intubate a patient, care that lower level EMTs are not authorized to provide.
12. In addition to SEMS, Greene County is also served by Greene County Ambulance Service. Greene County Ambulance Service operates five full-time stations throughout the county.
13. SEMS is independent from, and not connected to, Greene County's emergency 911 system. SEMS uses its own dispatcher and does not receive dispatches through Greene County's emergency 911 system.
14. Because SEMS is not part of Greene County's emergency 911 system, emergency calls in the county are responded to by Greene County Ambulance Service. SEMS did and does provide back-up services for Greene County Ambulance Service. On occasions, SEMS would respond to auto accidents involving multiple injured parties (for instance, an accident on U.S. 41 involving a school bus). Those who worked for SEMS had to be prepared each day to respond to calls for emergency services.
15. During Thomas Felker's employment at SEMS, he recalled having responded to at least two accidents which occurred on highways (one accident on S.R. 59 and another on U.S. 41). Gina Bogdan recalled having responded to three automobile accidents on highways (one accident on S.R. 59, one on U.S. 41, and one on S.R. 54.) Brock Thuis only recalled having responded to one accident on a highway (an accident that occurred on Interstate 70). At least two of these responses were occasions when Plaintiffs were traveling on other SEMS business and either witnessed the accident or happened on an accident that had just occurred.
16. During Plaintiffs' employment with SEMS, SEMS was staffed by both ALS and BLS level EMTs. Generally, ALS level employees were compensated at a higher hourly rate than were BLS level employees, depending on an employee's seniority with the company. SEMS generally paid ALS employees at a higher hourly rate than BLS-EMTs because SEMS was able to bill more to patients and insurance carriers for services rendered by the more highly certified EMTs.
17. In 2004, Plaintiffs Brock Thuis, Richard Felker and Thomas Felker were all being compensated at the rate of $187.20 per 24-hour shift, or $7.80 per hour.
18. Each of the Plaintiffs in this case worked 24-hour shifts with some degree of regularity, and on at least some occasions worked more than one 24-hour shift, requiring them to work greater than 40 hours in a work week.
19. SEMS never paid any of the Plaintiffs other than at their straight time rates for hours worked over 40 during any given pay period.
20. Jeffrey Lecoq, the principal owner of SEMS, also owned two other businesses — "J & D Used Car Sales" which sold automobiles and "Southwestern Fire & Safety" which sold fire trucks, firefighting equipment and ambulances. Each business had its own employees, maintained its own financial accounts and records separately, filed its own tax returns, and otherwise remained separate and distinct businesses owned by the same individual. The evidence that some of the Plaintiffs may have assisted with one of the other businesses on a few occasions by helping to unload a truck or picking up supplies for another company or that SEMS and the other companies kept their supplies at the same place is insufficient to satisfy Plaintiffs' burden to prove that J & D Used Car Sales, Southwestern Fire & Safety and SEMS are "related activities."
21. The Department of Labor's regulations define the term "annual gross volume of sales made or business done" as follows:
gross receipts from all types of sales made and business done during a 12-month period. The gross volume of sales made or business done means the gross dollar volume (not limited to income) derived from all sales and business transactions including, for example, gross receipts from service, credit, or other similar charges. Credits for goods returned or exchanged and rebates and discounts, and the like, are not ordinarily included in the annual gross volume of sales or business.
21. The tax returns filed by SEMS for the relevant years in question are as follows:
Gross Less Returns
Receipts and
Year or Sales Allowances Balance
2002 $621,951 $205,959 $415,992
2003 $650,310 $239,382 $410,928
2004 $823,169 $240,604 $582,565
2005 $683,454 $147,182 $536,272
23. Applying the definition found at 29 C.F.R. 779.259(a) ( of Fact 21) to the evidence in this case, SEMS did not do an "annual gross volume of sales made or business done" in excess of $599,000 in 2002 or 2003. SEMS did do an "annual gross volume of sales made or business done" in excess of $500,000 in 2004 and 2005.1
1. There are two ways in which SEMS could be liable for payment of overtime compensation to the Plaintiffs, either: (1) "individually" if the employee himself/herself is "engaged in commerce or in the production of goods for commerce"; or (2) through the employer if employed in an enterprise "engaged in commerce or in the production of goods" if that enterprise's "annual gross volume of sales made or business done is not less than $500,000." 29 U.S.C. § 207(a); 29 U.S.C. § 203(s)(1).
2. The Supreme Court has made clear that courts should interpret coverage under the FLSA liberally, "to apply to the furthest reaches consistent with congressional direction," while they should construe exemptions from coverage very narrowly. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 296, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985); Powell v. U.S. Cartridge Co., 339 U.S. 497, 516-17, 70 S.Ct. 755, 94 L.Ed. 1017 (1950).
3. Each of the four Plaintiffs, Richard Felker, Thomas Felker, Gina Bogdan and Brock Thuis,...
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