Lurvey v. Metropolitan Dade County, 92-1501-CIV.

• Decision Date: 07 October 1994
• Docket Number: No. 92-1501-CIV.,92-1501-CIV.
• Citation: 870 F. Supp. 1570
• Parties: John LURVEY, et al., Plaintiffs, v. METROPOLITAN DADE COUNTY, Defendant.
• Court: U.S. District Court — Southern District of Florida

870 F. Supp. 1570

John LURVEY, et al., Plaintiffs, v. METROPOLITAN DADE COUNTY, Defendant.

No. 92-1501-CIV.

United States District Court, S.D. Florida.

October 7, 1994.

COPYRIGHT MATERIAL OMITTED

Sherry C. Dickman, Coral Gables, FL, for plaintiffs.

Carol A. Anderson, Asst. County Atty., Miami, FL, for defendant.

ORDER

MARCUS, District Judge.

THIS CAUSE comes before the Court upon the following motions: (1) Defendant's motion for summary judgment as to Counts I, II, and III, filed May 27, 1993; and, (2) Plaintiffs'¹ motion for summary judgment as to Counts I and III, filed on July 30, 1993. United States Magistrate Judge Stephen T. Brown, upon an order of reference, issued a Report and Recommendation on February 9, 1994, recommending that the Plaintiffs' motion for summary judgment be denied in whole and that the Defendant's motion for summary judgment be granted as to Counts I & III and denied as to Count II. Plaintiffs filed an objection to the Magistrate Judge's Report and Recommendation concerning the recommendation as to both motions on Counts I and III. Neither party filed an objection to the Report and Recommendation as to Count II.

This action arises from a dispute over whether members of the Metro-Dade Police Department's Bomb Disposal Unit are entitled to overtime compensation for "on call" time that the employees spent at home, pursuant to section 7(a)(1) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(1). The overtime compensation determination turns upon whether the employees spend their time predominantly for the employer's benefit or for the employee's benefit. For the reasons that follow, we conclude that the Plaintiffs' on-call time was spent predominantly for the employees' benefits as a matter of law under the FLSA. Accordingly, Magistrate Judge Brown's Report and Recommendation must be and is hereby ADOPTED, the Plaintiffs' motion for summary judgment as to Counts I and III are DENIED, and the Defendant's motion for summary judgment is GRANTED as to Counts I and III and DENIED as to Count II.

I.

Much of the factual and procedural background of this case is agreed upon by the parties. Plaintiffs are bomb squad technicians employed by the Bomb Squad Division of the Metropolitan Dade County Police Department. The Bomb Squad Division is made up of five technicians, each of whom is trained in the handling and disposal of explosives. The range of emergency situations to which the bomb squad must respond is broad and includes investigating the following: (1) live bombs or improvised explosive devices; (2) bombings; (3) suspicious packages; (4) unclassified explosions involving death, bodily injury, or property damage; and (5) various activities involved in the protection of dignitaries. Furthermore, in investigating the above-mentioned possible threats, primary responsibilities for the Bomb Squad members also include: (1) rendering the premises safe from what appears to be a bomb or other explosive device; (2) recovering explosives and incendiary materials; (3) responding to bomb threats considered authentic and and potentially dangerous; and (4) collecting and identifying evidence from past blast situations. Because of the emergency nature attendant to a number of these situations and responsibilities, Bomb Squad members must remain in a continuous state of readiness.

As part of their job duties, Plaintiffs were required at certain times to perform on-call duties while at home. Plaintiffs contend that they are entitled to additional overtime compensation for hours spent in their on-call status from July of 1988 through July of 1991. During the time period in question, Plaintiffs worked regular duty hours of eight hours per day, Monday through Friday. Additionally they were required to be on call for an additional 128 hours per week, every other week.

The compensation terms of the Bomb Squad employees is, at least in part, dictated by the terms of a collective bargaining agreement. The Bomb Squad technicians are members of a collective bargaining unit represented by the Dade County Police Benevolent Association as the exclusive bargaining agent pursuant to Chapter 447 of the Florida Statutes. Under that agreement, if Plaintiffs were actually called to work during an on-call period, they would be paid overtime compensation from the time of the call. Moreover, Plaintiffs were guaranteed four hours of overtime compensation for each call received — even if the call actually required less than four hours of duty — so long as that particular call was separated from scheduled working hours by more than one hour.

The terms of the on-call time required that Plaintiffs remain at home while on call with their equipment and van nearby to insure a quick response if called by a dispatcher.² The only restriction on these activities while remaining on call at home was that Plaintiffs not consume alcoholic beverages. Otherwise, Plaintiffs could do any other activities that they wished to do while at home. Furthermore, Plaintiffs were, of course, able to take vacations during which they were totally excused from work.

The frequency of call-outs while Plaintiffs were on duty averaged less than one call per week. As Magistrate Judge Brown observed:

sworn documentation from the log book of plaintiff Lurvey indicates that between July 1989 and July 1991 he handled a total of 123 call-outs. Of those, 26 required four hours or more of his time.

Report and Recommendation, p. 2. However, more than fifty percent of the calls to which the Bomb Squad members responded were during periods in which the technicians were on call. It was from Lurvey's log books from which Magistrate Judge Brown calculated — and to which calculation neither party objects — that the average number of call-outs per week was less than one.³ For purposes of the motions for summary judgment, the parties agree that as a practical matter it was difficult for technicians to trade on-call hours. Finally, no member of the Bomb Squad was ever disciplined for failure to respond appropriately while in the on-call status.

As it presently stands, Plaintiffs allege the following in a combination of amended complaints:

Count I: Plaintiffs allege that Defendants have violated Fair Labor Standards Act, 29 U.S.C. § 201, et seq. through failure to compensate them for "on-call" time served during off-hours.

Count II: Plaintiff Lurvey alleges that Defendant has been retaliating against him, in violation of 29 U.S.C. § 215(a)(3), for filing this lawsuit.

Count III: Plaintiffs seek permanent injunctive relief against Dade County for alleged violations of 29 U.S.C. §§ 206, 207 — asking the Court to issue permanent injunctive relief prohibiting Dade County from engaging in any future violations of the overtime provisions sued over in this case.

Defendant filed a motion for summary judgment as to each of these three counts. Plaintiffs responded by filing a motion for summary judgment as to Counts I and III. In a Report and Recommendation on the motions, Magistrate Judge Brown recommended that the Plaintiffs' motion for summary judgment be denied in whole and that the Defendant's motion for summary judgment be granted as to Counts I & III and denied as to Count II. Plaintiffs filed a timely objection to the Magistrate Judge's Report and Recommendation concerning the recommendation as to both motions on Counts I and III. Neither party filed an objection to the Report and Recommendation as to Count II. We now turn to the merits of each motion for summary judgment.

II.

A.

The standard to be applied in reviewing summary judgment motions is stated unambiguously in Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith 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.

It may be entered only where there is no genuine issue of material fact. Moreover, the moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

In applying this standard, the Eleventh Circuit has explained:

In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; Environmental Defense Fund v. Marsh, 651 F.2d 983 at 991 (5th Cir.1981). All reasonable doubts about the facts should be resolved in favor of the non-movant. Casey Enterprises v. Am. Hardware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir.1981). If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Marsh, 651 F.2d at 991; Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir.1969). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co., 420 F.2d at 1213. If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment. Impossible Electronics Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026 at 1031 (5th Cir.1982); Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir.1970).

Moreover, the party opposing a motion for summary judgment need not respond to it with any affidavits or other evidence unless and until the movant has properly supported the motion with sufficient evidence. Adickes v. S.H. Kress & Co., 398 U.S. at 160, 90 S.Ct. at 1609-10; Marsh, 651 F.2d at 991. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise

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