Patterson v. Dallas/Fort Worth Int'l Airport Bd., Civil Action No. 3:18-CV-00307-E

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
Citation490 F.Supp.3d 1034
Parties Douglas PATTERSON, Individually and on Behalf of All Others Similarly Situated Under 29 U.S.C. 216(b), Plaintiffs, v. DALLAS/FORT WORTH INTERNATIONAL AIRPORT BOARD, Defendant.
Docket NumberCivil Action No. 3:18-CV-00307-E
Decision Date28 September 2020

490 F.Supp.3d 1034

Douglas PATTERSON, Individually and on Behalf of All Others Similarly Situated Under 29 U.S.C. 216(b), Plaintiffs,

Civil Action No. 3:18-CV-00307-E

United States District Court, N.D. Texas, Dallas Division.

Signed September 28, 2020

490 F.Supp.3d 1037

Drew N. Herrmann, Pamela Herrmann, Herrmann Law PLLC, Fort Worth, TX, for Plaintiffs.

Greg Patrick McAllister, Rogge Dunn Group PC, Kimberly Rives Miers, Littler Mendelson, Dallas, TX, for Defendant.



Plaintiffs, current or former employees of Defendant Dallas/Fort Worth International

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Airport Board (DFW), bring this action for unpaid overtime wages under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (FLSA). See 29 U.S.C. § 216(b). Before the Court are DFW's Motion for Summary Judgment (Doc. 63) and Plaintiffs’ Motion for Partial Summary Judgment (Doc. 67). Having considered the motions, the parties’ respective responses and replies, and applicable law, the Court finds both motions should be granted in part and denied in part for the following reasons.


DFW operates the Dallas/Fort Worth International Airport (Airport) on behalf of the Airport's owners, the cities of Dallas and Fort Worth (Doc. 65-1).1 The Airport has a Department of Public Safety (DPS) with two divisions: Police Services and Fire Services (Id. ). Fire Services employs Firefighters in four different divisions: Fire Rescue, Emergency Medical Services (EMS), Career Development, and Fire Prevention and Planning (Doc. 65-4). To become and remain a Firefighter, an employee must be certified by the Texas Commission on Fire Protection (TCFP) as Basic Structure Fire Protection Personnel and Basic Aircraft Rescue Fire Fighting Personnel (Doc. 65-13). Individuals with prior experience and the required TCFP certifications are hired as Firefighters (Doc. 65-4). Those without prior experience or certifications are hired as Firefighter Recruits (Id. ). After receiving the required certifications and a twelve-month probationary period, a Firefighter Recruit is promoted to Firefighter (Id. ).

Plaintiffs, except one who served as a Captain, were employed as Firefighters in the EMS division during the three years prior to commencement of this action (Doc. 69, pp. 161, 548, 552-57). They claim DFW failed to properly compensate them for overtime work. The FLSA generally requires an employer to pay employees one-and-a-half times their regular rate of pay when they work more than forty hours per week. 29 U.S.C. § 207(a). An exemption, however, applies to public agency employees in fire protection activities. 29 U.S.C. § 207(k).2 Under section 207(k), employees in fire protection activities are subject to an increased overtime threshold. Id.

Both DFW and plaintiffs have moved for summary judgment on section 207(k) ’s applicability to this case. DFW maintains the section 207(k) exemption applies as a matter of law because plaintiffs were employees in fire protection activities; plaintiffs contend the opposite. Plaintiffs also assert they are entitled to liquidated damages and, regardless of whether the exemption applies, DFW failed to properly calculate their overtime compensation. In the event

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the exemption does not apply, DFW alternatively contends plaintiffs cannot recover liquidated damages and the two-year statute of limitations applies to their claims.


Summary judgment is appropriate when the pleadings and evidence on file show "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court must view all evidence and draw all reasonable inferences in the light most favorable to a party opposing a summary judgment motion. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A court "may not make credibility determinations or weigh the evidence" in ruling on the motion. Id. ; Anderson , 477 U.S. at 254-55, 106 S.Ct. 2505. Cross-motions for summary judgment are to be considered independently with the facts and resulting inferences viewed in favor of the nonmovant. Duval v. N. Assurance Co. of Am. , 722 F.3d 300, 303 (5th Cir. 2013).

The moving party bears the initial burden of showing the court there is no genuine issue for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party with the burden of proof on an issue "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis omitted). When a nonmovant bears the burden of proof, the movant may demonstrate it is entitled to summary judgment either by (1) submitting evidence that negates the existence of an essential element of the nonmovant's claim or affirmative defense, or (2) arguing there is no evidence to support an essential element of the nonmovant's claim or affirmative defense. Celotex , 477 U.S. at 322–25, 106 S.Ct. 2548.

Once the movant has made this showing, the burden shifts to the nonmovant to establish there is a genuine issue of material fact so that a reasonable jury might return a verdict in its favor. Id. at 324, 106 S.Ct. 2548. "[C]onclusory allegations, speculation, and unsubstantiated assertions" will not satisfy the nonmovant's burden. Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc), superseded by statute on other grounds , 28 U.S.C. § 636(b)(1). A court "resolve[s] factual controversies in favor of a nonmoving party ... only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City of Houston , 185 F.3d 521, 525 (5th Cir. 1999).


A. Employees in Fire Protection Activities

Both parties assert the summary judgment evidence establishes whether the FLSA section 207(k) exemption applies as a matter of law. The ultimate decision whether an employee is exempt from the FLSA's overtime compensation provisions is a question of law. Singer v. City of Waco, Tex. , 324 F.3d 813, 820 (5th Cir. 2003). "With respect to the underlying facts, the employer has the burden of establishing that an exemption applied by a preponderance of the evidence." Fraser v. Patrick O'Connor & Assoc., L.P. , 954 F.3d 742, 745 (5th Cir. 2020). Although the Supreme Court previously held that FLSA "exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit," Arnold v. Ben Kanowsky, Inc. , 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960), more recently the Court determined the exemptions

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should instead be given a "fair reading." Encino Motorcars, LLC v. Navarro , ––– U.S. ––––, 138 S. Ct. 1134, 1143, 1148 n.7, 200 L.Ed.2d 433 (2018).

Section 203(y) of the FLSA defines an "employee in fire protection activities" as:

an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who—

(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and

(2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

29 U.S.C. § 203(y). Accordingly, to fall within the definition, an employee must: (1) be trained in fire suppression; (2) have the legal authority to engage in fire suppression; (3) have the responsibility to engage in fire suppression; (4) be employed by a fire department of a municipality, county, fire district, or state; and (5) be engaged either (i) in the prevention, control, and extinguishment of fires, or (ii) in the response to emergency situations where life, property, or the environment is at risk. See Huff v. DeKalb County, Ga., 516 F.3d 1273, 1279 (11th Cir. 2008).

Plaintiffs do not dispute, and indeed have testified, that their employment as Firefighters in the EMS division required them to respond to emergency situations where life was at risk. Plaintiffs also clearly were trained in fire suppression. To obtain and keep their jobs as Firefighters, they were required to hold TCFP certifications in structure protection and aircraft rescue firefighting (Doc. 65-13). Plaintiffs also were required to, and did, undergo additional training beyond the minimum certification standards (Id. ). Having graduated from fire academy and received their certifications, plaintiffs were trained in fire suppression for purposes of section 203(y). See McGavock v. City of Water Valley , 452 F.3d 423, 424 (5th Cir. 2006) (indicating graduates of fire academy were...

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