Soles v. Board of Com'rs of Johnson County, Ga.

• Decision Date: 21 August 1990
• Docket Number: Civ. A. No. CV389-007.
• Citation: 746 F. Supp. 106
• Parties: Rusty N. SOLES, Steven E. Chalker, John G. Chalker, and Keith Soles, Plaintiffs, v. BOARD OF COMMISSIONERS OF JOHNSON COUNTY, GEORGIA, Defendant.
• Court: U.S. District Court — Southern District of Georgia

746 F. Supp. 106

Rusty N. SOLES, Steven E. Chalker, John G. Chalker, and Keith Soles, Plaintiffs, v. BOARD OF COMMISSIONERS OF JOHNSON COUNTY, GEORGIA, Defendant.

Civ. A. No. CV389-007.

United States District Court, S.D. Georgia, Dublin Division.

August 21, 1990.

Charles L. Wilkinson, III, Augusta, Ga., and Morris S. Robertson, Dublin, Ga., for plaintiffs.

Joe W. Rowland, Wrightsville, Ga., for defendant.

ORDER

BOWEN, District Judge.

This action is before the Court on defendant's motion for partial summary judgment, plaintiffs' motion for partial summary judgment, and plaintiffs' motion to strike hearsay statements contained in defendant's brief filed in support of defendant's motion for summary judgment. The jurisdiction of the Court is based upon the provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. The case involves the propriety, under the FLSA, of allowing overtime compensation for emergency medical technicians ("EMT's") employed by the Board of Commissioners of Johnson County, Georgia.

During the years of 1986, 1987, and 1988, plaintiffs were emergency medical technicians and ambulance drivers employed by defendant. Plaintiffs' job duties included responding to fire calls or to police calls where there were accidents, fights, riots and similar situations. They responded when requested by fire or law enforcement agencies to provide emergency medical service to an injured person. Plaintiffs assert that they were not cross-trained in either fire protection services or law enforcement activities.

Plaintiffs' work hours consisted of shifts where they were "on duty" for twenty-four hours, "on call" for the following twenty-four hours, and "off duty" for the next twenty-four hours. This rotation resulted in a workweek consisting of 48 hours followed by a workweek consisting of 72 hours. Defendant paid plaintiffs the same amount regardless of the amount of hours worked each week. This practice resulted in an hourly rate of pay of $4.69 for the 48-hour week and $3.13 for the 72-hour week. When "on call", plaintiffs received a certain amount per day ($30.00 as of January, 1988). During this "on call" period, the EMT's had to be within fifteen minutes of the emergency medical station and could not leave Johnson County. If the "on duty" EMT's received a call, the "on call" team would go to the station to be available in case of an emergency while the "on duty" team was unavailable. While at the station, the "on call" team did not receive additional pay unless dispatched to an emergency call, in which case defendant paid an hourly rate of $4.07 (as of January, 1988). In this action, plaintiffs allege that they are entitled to overtime compensation for each hour worked in excess of 40 hours per week for the three-year period prior to the lawsuit. Additionally, plaintiffs seek an amount equal to the overtime pay as liquidated damages based on the allegation that the defendant intentionally ignored the mandate contained in the FLSA for overtime pay. 29 U.S.C. § 216(b). Citing Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), plaintiffs submit that they fall under the protection of the FLSA and are therefore entitled to receive overtime pay at the rate of time and one-half for all hours worked in excess of 40 hours during any one workweek. Plaintiffs calculated the amounts due by taking each workweek, calculating the hours the regular weekly pay represents, and computing overtime hours in excess of 40 hours per week. Plaintiffs reduced this amount by the amount actually paid for each week. These calculations resulted in the following overtime pay allegedly due to each plaintiff during the three-year period in issue:¹

                  Steven Chalker—$12,187.61
                  Rusty Soles    —$ 9,404.62
                  John Chalker  —$ 6,357.76
                  Keith Soles   —$ 3,090.51
                

Defendant does not dispute the allegation by plaintiffs that they fall within the FLSA. Rather, defendant asserts that plaintiffs were substantially engaged in law enforcement activities as defined by 29 U.S.C. §§ 207(k) and 213(b)(20) during the time for which they are claiming overtime pay. These provisions exempt from the mandate of overtime pay those employees engaged "in fire protection activities or any employee in law enforcement activities ..." or

"any employee of a public agency who in workweek is employed in fire protection activities or any employee of a public agency who in any workweek is employed in law enforcement activities ... if the public agency employs during the workweek less than five employees in fire protection or law enforcement activities."

Defendant supports its assertions by offering the statement of Mr. Milton Halibut, an employee of the United States Department of Labor located in Savannah, Georgia. Mr. Halibut apparently informed defendant's attorney that where an emergency medical service ("EMS") is owned by a county and is not housed in a fire and law enforcement agency, it is the policy of his department to treat the EMS as related either to fire protection or law enforcement depending on which category the EMS is engaged the most. This statement by Mr. Halibut serves as the basis for plaintiffs' motion to strike the hearsay allegedly contained therein. Defendant also cites to 29 C.F.R. § 553.215 for the proposition that a county may treat ambulance and rescue service employees of a public agency as employees engaged in fire protection or law enforcement activities if their services are "substantially related" to fire fighting or law enforcement activities. Additionally, defendant contends that the EMT's were at one point housed in the sheriff's office and under the direct supervision of the sheriff. Defendant also submits a statement that during 1986, sixteen percent of the ambulance calls were to render emergency medical service to fire, crime, and accident victims. During 1987 and 1988, twenty percent of the EMS calls were to render the same. Defendant further asserts that plaintiff Steven Chalker was an executive or administrative employee and is therefore exempt from the overtime provisions of the FLSA. See 29 U.S.C. § 213(a)(1).²

Defendant moved for partial summary judgment asserting that the plaintiffs were engaged in "law enforcement" activities, as that term is defined by the FLSA, and are therefore exempt from the overtime pay provisions contained therein. Defendant submits that the plaintiffs were specially trained and certified under state law in the rescue of fire, crime and accident victims. Plaintiffs moved for partial summary judgment asserting that they were not engaged in fire protection or law enforcement activities because they lacked the requisite training in fire prevention and law enforcement techniques and did not routinely go on fire or police calls. Plaintiffs further assert that Steven Chalker was not an administrative employee since he contributed more than twenty percent of his time to non-administrative duties. In an uncontested motion filed on September 13, 1989, plaintiffs seek to strike the hearsay statement of Mr. Milton Halibut contained in defendant's brief in support of their motion for summary judgment.

Summary judgment should be granted only if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the burden of showing that there is no genuine dispute as to any material fact in the case. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Clemons v. Dougherty County, 684 F.2d 1365, 1368 (11th Cir.1982). The party moving for summary judgment may meet this burden by showing that the non-movant has failed to make a showing sufficient to establish the existence of an element essential to the non-movant's case, and on which the non-movant will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If there is any factual issue in the record that is unresolved by the motion for summary judgment, then the Court may not decide that matter. See Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). All reasonable doubts must be resolved in favor of the party opposing summary judgment. Casey Enterprises v. American Hardware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir.1981). When, however, the moving party's motion for summary judgment has pierced the pleadings of the opposing party, the burden then shifts to the opposing party to show that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1985). This burden cannot be carried by reliance on the pleadings, or by repetition of the conclusory allegations contained in the complaint. Morris v. Ross, 663 F.2d 1032, 1033 (11th Cir.1981). Rather, the opposing party must respond by affidavits or as otherwise provided in Fed. R.Civ.P. 56.

The file indicates that the clerk notified the non-movant of the consequences for failure to respond to the motion for summary judgment. Griffith v. Wainwright, 772 F.2d 822 (11th Cir.1985). The non-movant having had a reasonable opportunity to respond to the motion, I will now rule on movant's motion for summary judgment and plaintiffs' motion to strike the hearsay statement contained in defendant's brief.

Before proceeding to the issues presented in the summary judgment motions, I will first address plaintiffs' motion to strike the hearsay statement contained in defendant's brief in support of its motion for summary judgment. Defendant offers a statement by Mr. Milton Halibut of the United States Department of Labor to support its motion. Mr. Halibut apparently indicated to defendant's attorney that it was the department's policy to treat a county owned EMS as related either to fire protection or law enforcement depending on which category...