Mendel v. City of Gib.

• Decision Date: 25 September 2013
• Docket Number: No. 12–1231.,12–1231.
• Citation: 727 F.3d 565
• Parties: Paul MENDEL, Plaintiff–Appellant, v. CITY OF GIBRALTAR, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

727 F.3d 565

Paul MENDEL, Plaintiff–Appellant,

v.CITY OF GIBRALTAR, Defendant–Appellee.

No. 12–1231.

United States Court of Appeals, Sixth Circuit.

Argued: May 21, 2013.

Decided and Filed: Aug. 15, 2013.

Rehearing and Rehearing En Banc Denied Sept. 25, 2013.^*

ARGUED:L. Rodger Webb, L. Rodger Webb, P.C., Southfield, MI, for Appellant. Cassandra L. Booms, Logan, Huchla & Wycoff, P.C., Riverview, MI, for Appellee. Rachel Goldberg, United States Department of Labor, Washington, D.C., for Amicus Curiae. ON BRIEF:L. Rodger Webb, L. Rodger Webb, P.C., Southfield, Michigan, for Appellant. Cassandra L. Booms, Logan, Huchla & Wycoff, P.C., Riverview, MI, for Appellee. Rachel Goldberg, United States Department of Labor, Washington, D.C., for Amicus Curiae.

Before: BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circuit Judges.

BATCHELDER, C.J., delivered the opinion of the court, in which MERRITT, J., joined. KETHLEDGE, J. (pp. 572–74), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Chief Judge.

This case presents the question of whether purportedly volunteer firefighters who receive a substantial hourly wage for responding to calls whenever they choose to do so are “employees” or “volunteers” for purposes of the Fair Labor Standards Act (“FLSA”) and Family Medical Leave Act (“FMLA”). Plaintiff–Appellant Paul Mendel was employed by Defendant–Appellee City of Gibraltar (“the City”) as a dispatcher in the City's police department. After Mendel's employment was terminated, he sued the City for allegedly violating his rights under the FMLA. The City moved for summary judgment, arguing that it did not employ the requisite number of employees for application of the FMLA because its volunteer firefighters were not employees for purposes of the FMLA. The district court agreed with the City and granted its motion for summary judgment. Because we conclude that the Gibraltar firefighters are in fact “employees” within the meaning of the FLSA and FMLA, we REVERSE the judgment of the district court and remand for further proceedings.

I.

The facts relevant to this appeal do not concern Mendel or the story surrounding his termination. Rather, the facts pertinent to the issue before us concern the City's “volunteer” firefighters and the nature of their responsibilities and of their relationship to the City.¹

At the time Mendel was terminated from his position as a police dispatcher, the City employed forty-one employees excluding its “volunteer” firefighters. According to the City Fire Chief's estimate, the City typically had between twenty-five and thirty volunteer firefighters. The volunteer firefighters of Gibraltar must complete training on their own time without compensation. ² While they are not required to respond to any emergency call, they are paid $15 per hour for the time they do spend responding to a call or maintaining equipment. They do not work set shifts or staff a fire station; they maintain other employment and have no consistent schedule working as volunteer firefighters.

The firefighters generally receive a Form–1099 MISC from the City. They do not receive health insurance, sick or vacation time, social security benefits, or premium pay. The City does have an employment application for the firefighters, and it apparently keeps a personnel file for each firefighter. A volunteer firefighter may be promoted or discharged.

Mendel introduced evidence below of what several other local communities pay their full-time firefighters. According to his wife's affidavit, she and Mendel discovered that certain other communities in the area pay hourly wages ranging from approximately $14 to $17 per hour. Also, the City pays its own part-time Fire Chief $20,000 per year, and the Chief testified in his deposition that he “tr[ies] to work 20 hours per week at the [Gibraltar] fire station.” Based on this information, the Secretary of Labor notes in her amicus brief ³ that if one assumes the Fire Chief works fifty-two weeks per year, he effectively earns $19.23 per hour.

The City moved for summary judgment below, arguing that Mendel was not an “eligible employee” under the FMLA. The City contended that the volunteer firefighters were not employees of the City, and that therefore the City did not employ fifty or more employees, as required under the FMLA's definition of “eligible employee.” See29 U.S.C. § 2611(2)(B)(ii). The district court agreed and granted summary judgment for the City. Mendel now appeals.

II.

“We review a district court's grant of summary judgment de novo.” Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825 (6th Cir.2013). A moving party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether this standard is met, “[w]e view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir.2005) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). There appears to be no significant factual dispute relevant to the issue before us. The question of whether an individual is an “employee” within the meaning of the FLSA is a question of law. See Fegley v. Higgins, 19 F.3d 1126, 1132 (6th Cir.1994).

A plaintiff bringing an interference claim under the FMLA ⁴ has the burden to prove that:

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

Walton, 424 F.3d at 485. The only element at issue in this appeal is the first—whether Mendel was an “eligible employee” within the meaning of the FMLA.⁵

The FMLA defines the term “eligible employee” in 29 U.S.C. § 2611(2). This case centers on one specific exclusion in that section: “The term ‘eligible employee’ does not include ... any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.” § 2611(2)(B). In this case, if the “volunteer” firefighters are “employees” of the City, then the City employs fifty or more employees, and Mendel is an “eligible employee” under the FMLA. However, if the firefighters are not “employees” of the City within the meaning of the FMLA, then the City employs less than fifty employees, and Mendel is not an eligible employee under the FMLA.

To answer the question of whether reputedly “volunteer” firefighters fall within the scope of the FMLA's definition of an “employee,” we must turn to the section of the FLSA that addresses this issue. See29 U.S.C. § 2611(3) (providing that for purposes of the FMLA, the terms “employ” and “employee” have the same meaning as given in 29 U.S.C. § 203(e) and (g), the definitions section of the FLSA). The FLSA generally defines “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). In a slightly more illuminating vein, it defines “employ” as “to suffer or permit to work.” § 203(g). Noting the “striking breadth” of the FLSA's expansive definition of “employ,” the Supreme Court has stated that this definition “stretches the meaning of ‘employee’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (distinguishing the scope of “employee” under ERISA as not being as broad as it is under the FLSA); see also Walling v. Portland Terminal Co., 330 U.S. 148, 150–51, 67 S.Ct. 639, 91 L.Ed. 809 (1947) (“[I]n determining who are ‘employees' under the [FLSA], common law employee categories or employer-employee classifications under other statutes are not of controlling significance. This Act contains its own definitions, comprehensive enough to require its application to many persons and working relationships, which prior to this Act, were not deemed to fall within an employer-employee category.” (citation omitted)). The high Court “has consistently construed the Act liberally to apply to the furthest reaches consistent with congressional direction.” Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985) (internal quotation marks omitted).

The Supreme Court has adopted an “economic reality” test to determine whether an individual is an employee under the FLSA. See, e.g., id. at 301, 105 S.Ct. 1953. Under the Court's long-standing FLSA jurisprudence, “the determination of the relationship does not depend on ... isolated factors but rather upon the circumstances of the whole activity.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). “The issue of the employment relationship does not lend itself to a precise test, but is to be determined on a case-by-case basis upon the circumstances of the whole business activity.” Donovan v. Brandel, 736 F.2d 1114, 1116 (6th Cir.1984).

Here, it appears that the Gibraltar firefighters fall within the FLSA's broad definition of employee. The firefighters are suffered or permitted to work, see29 U.S.C. § 203(g), and they even receive substantial wages for their work.⁶

This is not the end of our analysis, however. In 1986, Congress amended the FLSA to clarify that individuals who volunteer to perform services for a public agency are not employees under the Act. Section 203(e) now includes the following provision:

The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State,...