Kipple v. Monroe Cnty.

• Decision Date: 17 January 2012
• Docket Number: No. 09–CV–6494 CJS.,09–CV–6494 CJS.
• Citation: 847 F.Supp.2d 471
• Parties: William KIPPLE, Paul Miller, and All Others Similarly Situated, Plaintiffs v. MONROE COUNTY, NEW YORK, Defendant.
• Court: U.S. District Court — Western District of New York

847 F.Supp.2d 471

William KIPPLE, Paul Miller, and All Others Similarly Situated, Plaintiffs

v.MONROE COUNTY, NEW YORK, Defendant.

No. 09–CV–6494 CJS.

United States District Court, W.D. New York.

Jan. 17, 2012.

Matthew J. Fusco, Esq., Robert G. McCarthy, Esq., Chamberlain, D'Amanda, Oppenheimer & Greenfield, LLP, Rochester, NY, for Plaintiff.

Daniel J. Moore, Esq., Kyle W. Sturgess, Esq., Harris Beach PLLC, Pittsford, NY, for Defendants.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

This is an action pursuant to the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., to recover overtime pay that Monroe County allegedly failed to pay to firefighters employed at the Greater Rochester International Airport. Defendant maintains that the firefighters are exempt from the FLSA's overtime pay requirements. Now before the Court are Plaintiffs' application for summary judgment [# 28] and Defendant's cross-motion [# 35] for summary judgment. For the reasons that follow, Plaintiffs' motion is denied, Defendant's cross-motion is granted, and this action is dismissed.

BACKGROUND

The primary issue before the Court is whether Plaintiffs are entitled to overtime pay under the FLSA when they work more than forty hours per week, or whether they are partially exempted by a section of the statute pertaining to firefighters. On this point, it is well settled that “[s]ubject to certain exceptions, the FLSA mandates overtime pay for employees who work more than 40 hours per week.” Mullins v. City of New York, 653 F.3d 104, 106 (2d Cir.2011) (citing 29 U.S.C. § 207(a)(1)). However, the FLSA partially exempts certain employees from the overtime requirements, including certain firefighters. Specifically, the statute exempts employees engaged in “fire protection activities.” 29 U.S.C.A. § 207(k) (West 2012) (emphasis added); see also, Foley v. City of Buffalo, No. 06–CV–49S, 2011 WL 3176455 at *2 (W.D.N.Y. Jul. 27, 2011). (“This section allows firefighters to work up to 212 hours in a twenty eight-day “work period” before becoming eligible for overtime pay.”) (citing 29 C.F.R. § 553.201).¹ The FLSA defines an “employee in fire protection activities” as follows:

“Employee in fire protection activities” means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who—

(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and

(2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

29 U.S.C.A. § 203(y) (West 2012) (emphasis added). The regulations interpreting the FLSA reiterate that an employee in fire protection activities must be “employed by a fire department of a municipality, county, fire district, or State.” 29 C.F.R. § 553.210 (West 2012) (emphasis added).

Here, there is no dispute that Plaintiffs perform job duties that would fall within the statutory and regulatory definitions set forth above. Similarly, there is no dispute that Plaintiffs are employed by a county. Instead, the issue is whether Plaintiffs are “employed by a fire department” within the meaning of § 203(y), and if not, whether Defendant willfully failed to pay Plaintiffs the correct amount of overtime pay. On these points, unless otherwise noted the following are the undisputed facts of this case.

Defendant does not maintain a county-wide fire department. Instead, firefighting services within Monroe County are generally provided by the various municipalities, towns, and villages within the County which maintain their own fire departments. Defendant maintains an Aviation Department, which is responsible for day-to-day operations at the Greater Rochester International Airport (“the airport”). The Aviation Department includes a “Crash/Fire Rescue Division,” also referred to as the “Airport Fire Rescue Department,” which is responsible for providing firefighting and rescue duties at the airport. The Airport Fire Rescue Department also provides certain limited training, firefighting, and emergency services outside of the airport, pursuant to Monroe County's mutual aid plan. Plaintiffs are current or former employees of the Airport Fire Rescue Department. Fire trucks used by the Airport Fire Rescue Department identify them as being part of the “Greater Rochester International AirportFire Department.” Similarly, Plaintiffs' badges and identification cards indicate that Plaintiffs are part of the “Airport Fire Department.” Employees of the Airport Fire Rescue Department are members of a labor union, the Monroe County Firefighters Association, I.A.F.F., Local 1636 (“the Union”).

The airport firefighters are paid on an hourly basis, and receive overtime pay when their total working hours for a work period exceed the threshold limit set by the Department of Labor's regulations at 29 C.F.R. § 553.231.² Defendant maintains that the firefighters are otherwise exempted from the FLSA's overtime requirements by 29 U.S.C. § 207(k).

In 2005, the County and the Union reached an impasse during negotiation of a new collective bargaining agreement. The Union filed a request with the New York State Public Employees Relations Board (“PERB”), seeking binding “interest arbitration” under New York Civil Service Law § 209(4). Significantly, such “interest arbitration” was only available to certain entities, including “officers or members of any organized fire department, or any unit of the public employer which previously was part of an organized fire department whose primary mission includes the prevention and control of aircraft fires.” Civil Service Law § 209(4) (emphasis added). In that regard, the Union maintained that the Airport Fire Department was an “organized fire department” within the meaning of Civil Service Law § 209(4). However, the County opposed the Union's request for binding arbitration by arguing that the Airport Fire Department was not an “organized fire department” within the meaning of § 209(4). Specifically, in a document submitted to PERB entitled “Response to Petition for Compulsory Interest Arbitration (Docket No. [# 28] ), the County stated:

There is no specific definition of an ‘organized fire department’ in the Civil Service Law; however, the term ‘organized fire department’ generally refers to various fire departments and fire districts which are organized under the laws of the State of New York to provide fire protection services to specific towns, villages, and other municipalities within the State.

The [Union] employees, although they are employees of the County, are not members of an organized fire department because they do not provide fire protection services to County residents. Rather, they are employed by the County to provide fire protection services at the Greater Rochester International Airport, an airport authority, which is owned by the County but controlled by the Monroe County Airport Authority.

* * *

Because the airport firefighters serve a discrete function in terms of fire protection and do not provide fire protection to County residents in general as members of an organized fire department, the drastic measure of compulsory arbitration which is contrary to the spirit of the Taylor Law is not available to this group of employees.

Id. at pp. 52–53, 55 ³ (emphasis added).

As noted above, Civil Service Law § 209(4) pertains to “any organized fire department, or any other unit of the public employer which previously was a part of an organized fire department whose primary mission includes the prevention and control of aircraft fires.” (emphasis added).⁴ It is undisputed that this italicized language, known as the “Hancock Airport Amendment,” pertains only to certain firefighters employed at the Hancock International Airport in Syracuse, who were formerly part of the Syracuse City Fire Department. See, [# 28] at pp. 73, 79. Section 209(4) therefore excludes airport firefighters from its coverage, except those employed at Hancock Airport in Syracuse. This interpretation is underscored by the fact that New York legislators have unsuccessfully attempted to amend § 209(4) to cover other airport firefighters. See, Exhibit B to Kipple Affidavit, Ex. E, [# 28] at pp. 72–76. For example, in 2004, legislators passed legislation expanding § 209(4) to cover

officers or members of any organized fire department, or any other unit of the public employer which previously was a part of an organized fire department whose primary mission includes the prevention and control of aircraft fires, or any other unit of a public authority which performs firefighting duties.

Id. (proposed amendment underlined). One sponsor of the bill indicated that the purpose of the amendment was to “include fire fighters that are employed at airports or other facilities by a public employer within the class eligible for binding arbitration.” Id., [# 28] at p. 76. However, then-Governor George Pataki vetoed the legislation. Id. at p. 73.

On May 6, 2006, PERB's Director, Richard Curreri (“Curreri”), issued a written decision denying the Union's request for interest arbitration. As part of that decision, Curreri noted that the record before him consisted of “assorted papers, memoranda and exhibits submitted by the parties.” Id. at 78. In his decision, Curreri found that Union members clearly performed firefighting duties, but that “status as a fire fighter” did not in and of itself result in coverage by Civil Service Law § 209(4). Id. at 78. Curreri concluded that Union members were not members “of an organized fire department of the County.” Id. at 79. In that regard, Curreri found that the County did not maintain an organized fire department. Id. (“The record reveals that the fire fighters at issue are...