Justice v. Metropolitan Government of Nashville, Davidson County, Tenn.

Decision Date24 September 1993
Docket NumberNo. 92-6039,92-6039
Citation4 F.3d 1387
Parties126 Lab.Cas. P 33,024, 1 Wage & Hour Cas. 2d 1025 Buford E. JUSTICE; Scott R. Redlinger; Jerry E. Preuett; David H. Sewell; Michael W. McNally; Robert F. Braswell; Mark A. Huckaby; Edwin F. Carter; Tim W. Pharris; William E. Edwards; Mike G. Wakefield; Ollie Meadors; Kenneth A. Jones; Stephen J. Prosch, and all others similarly situated, Plaintiffs-Appellants, v. METROPOLITAN GOVERNMENT OF NASHVILLE, DAVIDSON COUNTY, TENNESSEE, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

John D. Schwalb (argued) and John M. Bryant, Jr. (briefed), Brewer, Krause & Brooks, Nashville, TN, for plaintiffs-appellants.

William M. Safley (argued and briefed), Metro Legal Dept., Nashville, TN, for defendant-appellee.

Before: KEITH and JONES, Circuit Judges; and PECK, Senior Circuit Judge. *

NATHANIEL R. JONES, Circuit Judge.

Plaintiffs-Appellants ("Plaintiffs") appeal summary judgment for Defendant-Appellee Metropolitan Government of Nashville, Davidson County, Tennessee ("Metro") in this action for overtime wages. For the reasons stated herein, we reverse and remand for further consideration by the district court.


On February 11, 1991, the Plaintiffs, employees of the Emergency Ambulance and Rescue Division ("Emergency Services") of the Fire Department for Metro, sued Metro for overtime wages allegedly due them under Section 7(a) of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. Sec. 207(a) (1988). On July 9, 1991, the Plaintiffs filed a motion for partial summary judgment. On August 14, 1991, Metro filed a cross-motion for summary judgment. Metro denied liability on the basis that the Plaintiffs are exempted from the overtime wage provisions of FLSA pursuant to Section 7(k) of FLSA, 29 U.S.C. Sec. 207(k) (1988), and its accompanying Department of Labor (DOL) regulations. The district court agreed with Metro and granted its motion for summary judgment.


Metro's Fire Department is divided into three sections: (1) Fire Suppression, (2) Administration, and (3) Emergency Services. The Fire Suppression division prevents and controls fires. The Administration division is in charge of administrative activities of the department. The Emergency Services division provides emergency medical care and rescue to people in Davidson County.

Emergency Services personnel are dispatched to attend to medical emergencies at the scenes of fires, auto accidents, and crimes. Further, in the event of a riot or natural disaster, these personnel are dispatched. Although Emergency Service personnel are dispatched to fires, Emergency Services is not responsible for fighting fires. Rather, that function is left to the Fire Suppression division.

Emergency Services, while a section of the Fire Department, has its own budget, promotion plan, career development procedure, and pay classifications. Employees of this division must be certified either as an Emergency Medical Technician (EMT) or a paramedic. Emergency Services has approximately 158 employees including sixty-nine EMTs and eighty-nine paramedics.

Emergency Services employees work in two-person teams with the exception of twelve paramedics who are assigned to work in five-person units, each comprised of four firefighters and one paramedic. Metro has also implemented the First Responder Program. Under this program, many fire suppression personnel have received EMT certification. These personnel generally are the first to respond to life-threatening medical emergency calls.

Employees in the Emergency Services Division work a total of 204 hours during a twenty-seven day tour of duty.

Plaintiffs are over 100 EMTs and paramedics who are employees of the Emergency Services Division of Metro's Fire Department. Many, but not all, of the Plaintiffs have received extensive training in performing rescues and extrication.


On appeal, the Plaintiffs argue that because they are not exempt from the provisions of Section 7(k) of FLSA, the district court erred in granting summary judgment to Metro. This court's review of a grant of summary judgment is de novo; we use the same test as was used by the district court. See Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See also Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). " '[I]nferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.' " Brooks, 932 F.2d at 500 (quoting 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 United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962))).

In a motion for summary judgment, the moving party bears the initial burden of showing that no genuine issues of material fact remain in dispute. If the moving party meets this burden, the party opposing the motion must come forward with specific facts to show a genuine issue for trial. To sustain this burden, the non-movant cannot rest on the pleadings. Rather, the non-movant must come forward with specific facts or affidavits to supports its claims and show the existence of a genuine, material issue in dispute.

National Solid Wastes Management Ass'n v. Voinovich, 959 F.2d 590, 592 (6th Cir.1992) (citations omitted). "When confronted with a properly supported Motion for Summary Judgment, the party with the burden of proof at trial is obligated to provide concrete evidence supporting its claims and establishing the existence of a genuine issue of fact." Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989).


Employees of state and local governments are entitled to overtime for all hours worked in excess of forty hours per week. 29 U.S.C. Sec. 207(a) (1988) [hereinafter Section 7(a) ]; See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 555-56, 105 S.Ct. 1005, 1020, 83 L.Ed.2d 1016 (1985). Employees engaged in fire protection or law enforcement activities may be excepted from that entitlement pursuant to Section 7(k), which states:

No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities ... if--

(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; 1 or

(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed.

Under this exception, fire employees may work up to 212 hours within a twenty-eight day cycle before overtime payments are due. In relying on the exception, the employer carries the burden of proving that the Plaintiffs are employees in fire protection activities, see Carlson v. City of Minneapolis, 925 F.2d 264, 265 (8th Cir.1991), and the court must construe this classification strictly against the employer. See id.; Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 208-09, 86 S.Ct. 737, 748-49, 15 L.Ed.2d 694 (1966). Furthermore, whether the city has correctly classified the Plaintiffs depends on the character of their responsibilities and tasks, not on their job titles or places of work. See Carlson, 925 F.2d at 265; Overstreet v. North Shore Corp., 318 U.S. 125, 132, 63 S.Ct. 494, 498-99, 87 L.Ed. 656 (1943).

Employees in the Emergency Services Division work a total of 204 hours during each twenty-seven day tour of duty. Metro applies the Section 7(k) exemption to them. Thus, instead of receiving overtime compensation for hours worked in excess of forty hours per week pursuant to Section 7(a), the employees are paid overtime when they work in excess of 204 hours during a twenty-seven day tour of duty. Plaintiffs object to Metro's use of the Section 7(k) exemption.


Section 7(k) does not define what it means to be an "employee in fire protection activities." As a result, the Plaintiffs contend that the exception does not apply to them. In essence, the Plaintiffs argue that if Congress truly wished to expand the reaches of the Section 7(k) exemption, it could have used more general language or it explicitly could have defined more exceptions.

While this argument has some force, all other courts which have been faced with a similar question involving this statute have not limited themselves to the statutory language. Many of these courts have noted that the phrase "employee in fire protection activities" is ambiguous; that the legislative history of the Section 7(k) reveals an intent by Congress to include ambulance and rescue service personnel within the scope of that exception; and/or that the DOL regulations which attempt to further define "employee in fire protection activities" are consistent with that congressional intent. See, e.g., Nalley v. Mayor of Baltimore, 796 F.Supp. 194, 198 (D.Md.1992) (...

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