Nalley v. Mayor and City Council of Baltimore, Md.

• Decision Date: 22 June 1992
• Docket Number: Civ. No. B-90-3072.
• Citation: 796 F. Supp. 194
• Parties: Clarence NALLEY, Jr., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE, MARYLAND.
• Court: U.S. District Court — District of Maryland

796 F. Supp. 194

Clarence NALLEY, Jr., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE, MARYLAND.

Civ. No. B-90-3072.

United States District Court, D. Maryland.

June 22, 1992.

Thomas A. Woodley, Washington, D.C., Joel A. Smith, Lutherville, Md., for plaintiff.

Otho M. Thompson, James S. Ruckle, Jr., and Laurice D. Royal, Baltimore, Md., for defendant.

WALTER E. BLACK, Jr., Chief Judge.

Presently pending before the Court are Plaintiffs' Motion for Partial Summary Judgment (Paper 10) and defendant Mayor and City Council of Baltimore's Motion for Summary Judgment (Paper 25). These motions present the following issue: at what point must the City of Baltimore pay overtime compensation in a workweek to employees of the fire department's division of Emergency Medical Services (hereinafter "EMS personnel") — after 40 hours or 53 hours? This issue is apparently one of first impression for a court in the Fourth Circuit.

I

The litigants in this action are locked into a contest over the proper construction of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). In particular, the parties focus on the Act's overtime compensation provisions. Section 207(a) generally requires all employers to compensate their employees at one and one-half times their regular rate for all hours worked in excess of 40 in any given workweek.¹ This section applies to most state and local government employers.

Recognizing the special needs of government and the unusually long hours of some public safety employees, Congress made certain categories of employee exempt from the 40-hour overtime privilege. With special relevance to this suit, Congress specifically exempted employees in fire protection and law enforcement activities. That exemption, set forth in section 207(k), provides as follows:

(k) Employment by public agency engaged in fire protection or law enforcement activities

No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if —

(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or

(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days,

compensation at a rate not less than one and one-half times the regular rate at which he is employed.

(emphasis added). As construed by the Department of Labor ("DOL"), an employee involved in fire protection must work a minimum of 53 hours in a week to earn overtime pay, and an employee in law enforcement must work a minimum of 43 hours. 29 C.F.R. § 553.230.

Because of the humanitarian intent behind § 207(a), the courts have narrowly construed exemptions like § 207(k). Johnson v. City of Columbia, 949 F.2d 127, 129-30 (4th Cir.1991); Donovan v. Brown Equipment & Service Tools, Inc., 666 F.2d 148, 153 (5th Cir.1982). Indeed, exemptions "ought to be applied only in those circumstances which plainly and unmistakably come within their terms and spirit." Donovan v. Bereuter's, Inc., 704 F.2d 1034, 1036 (8th Cir.1983). Thus, the burden is on defendant to show that it is entitled to exempt a certain classification of employee. Johnson, 949 F.2d at 130. Carlson v. City of Minneapolis, 925 F.2d 264, 265 (8th Cir.1991).

II

The City of Baltimore triggered this action by classifying over 100 EMS personnel as exempt because they are employed by the fire department and their work relates to the department's fire protection activities. The City does not assert here that plaintiffs fall within the law enforcement provisions of the statute. Instead, the City exclusively focuses on "fire protection activities" as defined by regulations promulgated by the DOL.

The City asserts that the Court can resolve this issue on the basis of 29 C.F.R. § 553.210, which states:

Fire protection activities

(a) As used in section 207(k) ... 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 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 nonfirefighting functions as housekeeping, equipment maintenance, lecturing, attending community fire drills and inspecting homes and schools for fire hazards.... 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. See § 553.215.

....

(c) Not included in the term "employee in fire protection activities" are the so-called "civilian" employees of a fire department, fire district, or forestry service who engage in such support activities as those performed by dispatchers, alarm operators, apparatus and equipment repair and maintenance workers, camp cooks, clerks, stenographers, etc.

(emphasis added). In construing this section, the City implicitly rejects the application of the four enumerated factors of subsection (a) to EMS personnel. Instead, the City bases its case on the highlighted sentence, with its "integral part" language.

To clarify this term, the City focuses not on plaintiffs' participation in "fire protection activities" but on their close association with the fire department. The City does not define "integral part" by reference to § 553.215, a section which is cross-referenced, since it relates on its face to ambulance and rescue service employees who are not employed by a fire department.² In the event that the Court adopts § 553.215 as the applicable provision, the City argues in the alternative that its EMS personnel have been trained to rescue and have been regularly dispatched to accident scenes.

The City's interpretation of § 553.210(a) focuses on the plaintiffs' integration into the structure and activities of the fire department. Pursuant to this construction, the City contends that plaintiffs are similar to firefighters because they share the same employer, the fire department. In addition, the City notes that plaintiffs are integrated into the department by a unified command structure, shared facilities, representation by the same union, the common purpose of assisting the community, and by use of the same color uniforms and patches. Finally, the City alludes to the frequent co-responses of firefighters and EMS personnel to medical and fire-related calls.

At the outset, plaintiffs assert that the Court should decide this issue by interpreting only the statutory language. They contend that Congress, in passing 29 U.S.C. § 207(k), explicitly chose to exempt firefighters and law enforcers, not EMS personnel. Nonetheless, plaintiffs do recognize that the Court has the responsibility to interpret administrative regulations that reasonably construe the statute and, accordingly, plaintiffs respond to the regulations cited by the City.

Confronting the language of § 553.210(a), plaintiffs first assert that they do not qualify as "rescue or ambulance service personnel." Plaintiffs also contend that their work is not integral to the activities of fire protection as required by the last two of the four enumerated factors set forth in § 553.210(a), namely, the prevention, control or extinguishment of fires. As an alternative, plaintiffs follow the direction of "See § 553.215," which essentially leads to two conditions for triggering an exemption for ambulance and rescue service employees: 1) they must have been trained to rescue, and 2) they must have been regularly dispatched to fires, crime scenes, riots, natural disasters, and other accidents.³ Although the City does not rely on § 553.215 as previously set forth, plaintiffs assert that the City fails to satisfy either condition.

Even if plaintiffs are found to form an integral part of the fire department's fire protection activities, they claim non-exemption on the basis of 29 C.F.R. § 553.212, which provides in pertinent part:

(a) Employees engaged in fire protection ... activities as described in § 553.210 ... may also engage in some nonexempt work which is not performed as an incident to or in conjunction with their fire protection ... activities. For example, firefighters who work for forest conservation agencies may, during slack times, plant trees and perform other conservation activities unrelated to their firefighting duties. The performance of such nonexempt work will not defeat ... the section ... 207(k) exemptions unless it exceeds 20 percent of the total hours worked by that employee during the workweek or applicable work period. A person who spends more than 20 percent of his/her working time in nonexempt activities is not considered to be an employee engaged in fire protection ... activities for purposes of this part.

Relying on this provision, plaintiffs uniformly represent that more than 99 percent of their work is unrelated to fire protection. On this basis alone, plaintiffs move the Court to grant their motion for partial summary judgment.

III

Pursuant to ...