Lockwood v. Prince George's County, Md., CIV. A. AW 98-1385.

Decision Date29 July 1999
Docket NumberNo. CIV. A. AW 98-1385.,CIV. A. AW 98-1385.
Citation58 F.Supp.2d 651
PartiesJohn B. LOCKWOOD, et al., Plaintiffs, v. PRINCE GEORGE'S COUNTY, MARYLAND, Defendant.
CourtU.S. District Court — District of Maryland

Thomas A. Woodley, Washington, DC, for plaintiffs John B. Lockwood, et al.

Sean D. Wallace, Upper Marlboro, MD, for defendant Prince George's County, Maryland.


WILLIAMS, District Judge.


Presently before the Court are Plaintiffs' Motion for Partial Summary Judgment and Defendant's Cross Motion for Summary Judgment. A hearing was held on this motion on July 15, 1999. In ruling on the motion, the Court has considered the briefs of the parties, the arguments of counsel at the hearing in open court, and the entire record. For the reasons that will follow the Court will grant Plaintiffs' motion and deny in part and grant in part Defendants' motion.


Plaintiffs, John B. Lockwood ("Lockwood") and seven others, bring this action against their employer Prince George's County, Maryland ("County"). Plaintiffs are current and former fire investigators, who are or were assigned to the Office of Fire Investigations of the County's Fire Department. They are seeking to recover overtime compensation under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. According to Plaintiffs, their shift schedules of two ten hour shifts followed by two fourteen hour shifts, followed by four days off-duty, exceeded the number of hours provided by the FLSA, and thus overtime compensation was warranted.

Defendant maintains that Plaintiffs received the proper amount of compensation because they were "employees engaged in fire protection activities" within the meaning of Section 207(k) of the FLSA. Pursuant to that section, employees engaged in fire protection activities receive overtime compensation when they work over 106 hours in a two week period. See 29 C.F.R. § 553.230(a). As the fire investigators shifts ranged from 34 to 48 hours per week, or a maximum of 96 hours in a two week period, Defendants state Plaintiffs were not entitled to overtime compensation.

Plaintiffs contend, however, that until June, 1997, they actually were "employees engaged in law enforcement activities" within the meaning of Section 207(k). Under the law enforcement exemption, employees receive overtime compensation when they work over 86 hours in a two week period. See 29 C.F.R. § 553.230(b). After June 1997, however, all of the Plaintiffs, except Plaintiff Tyrone Henson, lost the police powers that made them employees engaged in law enforcement activities. They claim that after that time they were entitled to the maximum overtime compensation based on a customary 40-hour workweek.

All fire investigators must have at least three years experience as a firefighter. Further, fire investigators are represented by the same union as the other firefighters, and the employment relationship between the Fire Department and fire investigators is governed by the same collective bargaining agreement as that of the other firefighters. However, fire investigators are assigned to a command separate from the firefighters.1 Further, the Office of Fire Investigations has a separate budget. Moreover, fire investigators are not assigned to a particular fire station, but operate out of an office building.

Plaintiffs assert that "[a]s fire investigators, [their] primary job duty and goal is to determine the point of origin and cause of fires in the County, and when necessary, to apprehend violators of arson laws." Memorandum in Support for Partial Summary Judgment at 9. Prior to June 1997, Plaintiffs investigated a suspected case of arson from its beginning to its conclusion. Additionally, Plaintiffs had "same general police powers, including arrest powers as regular members of the Prince George's County Police Department." Prince George's County Code § 11-154. They carried weapons and handcuffs, made arrests, prepared and filed arrest/citation records, and applied for and obtained search warrants. After June 1997, Plaintiffs lost the power to arrest, but were still responsible for investigating the causes and origins of fires within the County. Therefore, Plaintiffs maintain that they are not engaged in fire protection activities, and thus are not subject to the exemption.

Plaintiffs filed this suit seeking a declaratory judgment that Defendant violated the FLSA, back pay compensation, liquidated damages, pre-judgment and post-judgment interests, and attorney's fees. Plaintiffs now move for partial summary judgment as to the issues of liability and liquidated damages. Defendant also moves for summary judgment.


Summary judgment is appropriate when there is no genuine dispute of material fact and when the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is to be believed and all justifiable inferences drawn in her favor, but a party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences. Runnebaum v. NationsBank of Md., N.A., 123 F.3d 156, 164 (4th Cir.1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985)). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citations omitted).

The FLSA requires employers to pay their employees overtime for all hours worked in excess of forty during one week. 29 U.S.C. § 207(a). "There are, however, certain exceptions and exclusions.... Exemptions from or exceptions to the Act's requirements are to be narrowly construed against the employer asserting them." Johnson v. City of Columbia, 949 F.2d 127, 129-30 (4th Cir.1991). In this case, the County must prove that it is entitled to the exemption with "clear and affirmative evidence." Johnson, 949 F.2d at 130. To determine whether Plaintiffs fall within the fire protection activities exemption, the Court must look at the "character of the investigators' responsibilities and tasks, not [at] their job title or place of work." Carlson v. City of Minneapolis, 925 F.2d 264, 265 (8th Cir.1991).

Both parties agree that until June, 1997, Plaintiffs were subject to the law enforcement exemption until June of 1997 as established by the criteria of 29 C.F.R. § 553.211(a).2 The fact that after June 1997, all of Plaintiffs, except one, no longer fit within the law enforcement exemption because the County had removed the power to arrest from them is also undisputed. The parties disagree, however, about whether the Plaintiffs fell within the fire protection activities exemption during the entire time period.

The FLSA does not define the term "fire protection activities." The Department of Labor ("DOL"), however, has promulgated a regulation which provides the Court with the necessary definition. See West v. Anne Arundel County. 137 F.3d 752, 760-761 (4th Cir.1998). This regulation is found at 29 C.F.R. § 553.210(a) and provides:

As used in sections 7(k) and 13(b)(20) of the Act, the term "any employee ... in fire protection activities" refers to 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 include all such employees, regardless of their status as "trainee," "probationary," or "permanent," or of their particular specialty or job title (e.g., firefighter, engineer, hose or ladder operator, fire specialist, fire inspector, lieutenant, captain, inspector, fire marshal, battalion chief, deputy chief, or chief), and regardless of their assignment to support activities of the type described in paragraph (c) of this section, whether or not such assignment is for training or familiarization purposes, or for reasons of illness, injury or infirmity. 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.

Although Plaintiffs agree that they fall within the first and second criteria, they contend that Defendant cannot demonstrate, as it is required to do, that the third and fourth criteria are satisfied in this case.

Defendant, however, claims that Plaintiffs fell within the third and fourth criteria because they were and are responsible for "preventing future fires/ explosions by bringing to justice violators of the fire and explosive laws of the State of Maryland and the County." Memorandum in Support of Defendant's Cross Motion at 4. Defendant contends that Plaintiffs were subject to the normal chain of command at a fire scene, could be assigned to a fire station at any time, and were required to respond to emergency situations. The County states that Plaintiffs were required to "assist at a fire scene including operating the apparatus and possibly entering a burning building, if requested." Id. at 11. Further, Defendant maintains that if the fire investigators arrived first at a fire scene, they would be required to fight the fire. The County states, "[t]he fact that fire investigators are not...

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