Mendel v. City of Gibraltar

• Decision Date: 31 January 2012
• Docket Number: Case No. 11–10496.
• Citation: 842 F.Supp.2d 1035
• Parties: Paul MENDEL, Plaintiff, v. CITY OF GIBRALTAR, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

842 F.Supp.2d 1035

Paul MENDEL, Plaintiff,

v.CITY OF GIBRALTAR, Defendant.

Case No. 11–10496.

United States District Court,

E.D. Michigan,

Southern Division.

Jan. 31, 2012.

Lawrence R. Webb, Webb Engelhardt, Southfield, MI, for Plaintiff.

Charles E. Wycoff, Logan, Huchla, Riverview, MI, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

VICTORIA A. ROBERTS, District Judge.

I. INTRODUCTION

Before the Court is Defendant City of Gibraltar's Motion for Summary Judgment (Doc. # 17). Oral argument was held on January 25, 2012. The Court has a SettlementConference scheduled for February 3, 2012.

The Court GRANTS Defendant's Motion; the settlement conference is cancelled.

II. BACKGROUND

Plaintiff Mendel worked for the City of Gibraltar Police Department as a dispatcher when his employment was terminated on or about February 23, 2009. The City terminated Plaintiff after he failed to report for five scheduled shifts; it says he did not provide sufficient medical documentation explaining his absence. Police Chief Canterbury sent a letter to Plaintiff, informing him the City considered the Plaintiff's employment voluntarily terminated.

Plaintiff filed suit on February 7, 2011, alleging that his termination violated his Family Medical Leave Act (FMLA) rights. Defendant filed this Motion for Summary Judgment alleging that Plaintiff is not an “eligible employee” under the FMLA.

III. ARGUMENTS

Defendant admits that since it is a public agency, it is an FMLA employer; all public employers are an “employer” for purposes of the FMLA. 29 U.S.C. § 2611(4). However, Defendant contends that Plaintiff is not an “eligible employee” entitled to benefits as defined in the FMLA implementing regulations, 29 C.F.R. § 825.108(d). To qualify under this provision, “employees of public agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g., State) employ 50 employees at the worksite or within 75 miles.” Id. § 825.108(d); see also29 U.S.C. § 2611(2)(B)(ii). Defendant says it employs less than fifty people within 75 miles of the Plaintiff's former worksite.

Defendant bases this position on its belief that the people who provide services to the City Fire Department are strictly volunteers; therefore, no firefighter is an employee for purposes of the FMLA and the Fair Labor Standards Act (FLSA), which the Court must look to for the definition of eligible employee. If the firefighters are not employees, then the City employs forty-one workers—an insufficient number of workers for the Plaintiff to be considered an “eligible employee” under the FMLA.

Defendant admits that its firefighters receive $15 per hour responding to calls and maintaining equipment, but disputes that this payment transforms its volunteers into employees. Volunteers cannot receive “compensation” for their work: 29 C.F.R. § 553.101 (“[a]n individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours.”). However, they may receive a nominal fee and still be considered volunteers under the FLSA and FMLA. Id. § 553.106 [“[v]olunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers.”].

Defendant cites Harris v. Mecosta Cty., No. 1:95–CV–61, 1996 WL 343336 (W.D.Mich. Feb. 6, 1996) for the proposition that an hourly payment does not necessarily impair volunteer status. Harris, 1996 WL 343336, at *4. Referencing the Department of Labor Wage & Hour Division (WHD) Opinion Letter FLSA 2008–15 for determining nominal compensation, the “20 percent test,” Defendant says the average Form–1099 MISC payment a volunteer firefighter receives is $1,500.00 annually, “clearly ... well below 20 percent of what it would cost to hire a full time employee to perform the same services.” (Doc. # 17 at 9).

Additionally, firefighters must attend mandatory trainings and take tests on their own time; they do so without compensation. Defendant says the firefighters are not required to respond to fire calls; they receive no health insurance, sick or vacation time, social security benefits, or premium pay; and, the City has no control over their service. Defendant emphasizes that the Gibraltar firefighters “do not work shifts, do not staff a fire station, and [they do] maintain other employment.” Id. at 12.

Finally, Defendant argues that the firefighters do not meet the statutory definition of an employee engaged “in fire protection activities.” Under the FLSA, an employee in fire protection activities has, inter alia, the “legal authority and responsibility to engage in fire suppression.” 29 U.S.C. § 203(y)(1). Defendant argues that since the firefighters have no obligation to respond to fire calls, they do not meet the FLSA statutory requirement to be employees. (Doc. # 25 at 14–15).

In response, Plaintiff argues that “there is no way to characterize Gibraltar's payment of $15 per hour for all hours worked as anything other than an express promise of compensation.” Plaintiff relies on Wage and Hour Division (WHD) Opinion Letter FLSA 2002–6 for the proposition that payment of an hourly wage for performance of firefighter duties negates volunteer status. WHD Opinion Letter FLSA 2002–6 (Aug. 13, 2002), available at http:// www. dol. gov/ whd/ opinion/ FLSA/ 2002/ 2002_ 08_ 13_ 6_ FLSA. pdf. Plaintiff also cites 29 C.F.R. §§ 553.101(a), .104, and .106(a)-(f), in support of his position that the firefighters receive wages due to the amount and manner of their “compensation.”

Plaintiff says these regulations are outcome determinative. They necessarily lead to the conclusion that firefighters are not volunteers; therefore, they are employees.

Plaintiff also relies on Krause v. Cherry Hill Fire Dist. 13, 969 F.Supp. 270 (D.N.J.1997) for support. The Krause court observed that a payment of $5.05 to $9.00 per hour to staff a fire station was more than a nominal fee and was “compensation.” Krause, 969 F.Supp. at 277. Plaintiff alleges that under Krause, the payment of $15 per reporting hour must be viewed as an hourly wage—not as payment for expenses or a nominal fee.

Finally, Plaintiff points to other employment factors under the “economic realities” test discussed infra. Plaintiff alleges that these factors support his argument that the firefighters should be considered employees under the FLSA, and accordingly, the FMLA.

IV. ANALYSISA. Standard of Review

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is “material” and precludes a grant of summary judgment if “proof of that fact would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect application of appropriate principle[s] of law to the rights and obligations of the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). Summary judgment is not appropriate if the evidence indicates that a reasonable trier of fact could rule in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When ruling on a summary judgment motion, the court must view facts in the light most favorable to the non-moving party. Id. Additionally, the court must draw all reasonable inferences in the nonmovingparty's favor. Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir.1995).

The moving party bears the initial burden to show “the absence of a genuine issue of material fact as to at least one essential element of Plaintiff's claim.” Moses v. Providence Hosp. and Med. Ctrs., Inc., 561 F.3d 573, 578 (6th Cir.2009). Once this burden is met, it shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita, 475 U.S. at 585–87, 106 S.Ct. 1348. The nonmoving party must establish more than some “metaphysical doubt” as to the material facts. Id. at 586, 106 S.Ct. 1348. Plaintiff must establish a genuine issue with specific facts and affirmative evidence; it “may not rest upon mere allegations or denials of [its] pleading.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The Court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion.” Golliday v. Chase Home Fin., LLC, 761 F.Supp.2d 629, 634 (W.D.Mich.2011) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 and Smith v. Williams–Ash, 520 F.3d 596, 599 (6th Cir.2008)).

The parties agree there are no issues of fact and the case is postured for decision by the Court as a matter of law.

B. Plaintiff's Prima Facie Case under FMLA

To sustain an FMLA violation, Plaintiff must plead and prove that:

(1) [he is] an eligible employee, (2) the defendant was an employer as defined under the FMLA, (3) [he is] entitled to leave under the FMLA, (4) [he] gave the employer notice of [his] intention to take leave, and (5) the employer denied the employee FMLA benefits to which [he] was entitled.

Edgar v. JAC Products, Inc., 443 F.3d 501, 507 (6th Cir.2006); see generally Purdham v. Fairfax County School Bd., 637 F.3d 421, 427 (4th Cir.2011) (quoting Benshoff v. City of Virginia Beach, 180 F.3d 136, 140 (4th Cir.1999) [holding, inter alia, that plaintiff has the initial burden to show that an employer-employee relationship exists.] ).

Whether there is an employment relationship under the FMLA is a question of law to be determined by the Court. Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 521–22 (6th Cir.2011) (citing Fegley v. Higgins, 19 F.3d 1126, 1132 (6th Cir.1994); see also U.S. Dept. of Labor...