Spires v. Ben Hill County, Civ. No. 88-241-1-MAC(DF)

• Decision Date: 10 August 1990
• Docket Number: 88-350-2-MAC(DF) and 89-161-2-MAC(DF).,Civ. No. 88-241-1-MAC(DF),88-283-1-MAC(DF)
• Citation: 745 F. Supp. 690
• Parties: Fred SPIRES, Jr., Plaintiff, v. BEN HILL COUNTY, et al., Defendants. David Alan SANDERS, Plaintiff, v. BEN HILL COUNTY, et al., Defendants. Ray L. MERCER, Plaintiff, v. BEN HILL COUNTY, et al., Defendants. Suzy Stoner MERCER, Plaintiff, v. BEN HILL COUNTY, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

745 F. Supp. 690

Fred SPIRES, Jr., Plaintiff, v. BEN HILL COUNTY, et al., Defendants.

David Alan SANDERS, Plaintiff, v. BEN HILL COUNTY, et al., Defendants.

Ray L. MERCER, Plaintiff, v. BEN HILL COUNTY, et al., Defendants.

Suzy Stoner MERCER, Plaintiff, v. BEN HILL COUNTY, et al., Defendants.

Civ. Nos. 88-241-1-MAC(DF), 88-283-1-MAC(DF), 88-350-2-MAC(DF) and 89-161-2-MAC(DF).

United States District Court, M.D. Georgia, Macon Division.

August 10, 1990.

COPYRIGHT MATERIAL OMITTED

J. David Tucker, Jay, Sherrell & Smith, Fitzgerald, Ga., for plaintiffs.

Mary Mendel Katz, Thomas F. Richardson, Chambless, Higdon & Carson, Macon, Ga., Robert W. Chasteen, Jr., Mills & Chasteen, P.C., Fitzgerald, Ga., for defendants.

FITZPATRICK, District Judge.

Plaintiffs Fred Spires, Jr., Ray L. Mercer, David Alan Sanders, and Suzy Stoner Mercer bring this action under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201 et seq. (hereinafter "FLSA"), against Ben Hill County and the other named defendants. The plaintiffs seek to recover minimum wage and overtime compensation, liquidated damages, reasonable attorney's fees and the costs of this action. The court granted defendants' motion for consolidation of these actions on September 21, 1989. The consolidated cases were tried before the court sitting without a jury on March 27, March 28, and March 29, 1990. The court has carefully considered the parties' submissions, the statutory law and the relevant case law, and issues its rulings below.

I. Background

Defendant Ben Hill County, through the Ben Hill County Emergency Medical Services (EMS) facility located in Fitzgerald, Ben Hill County, Georgia, provides ambulance and emergency services in Ben Hill County. The individually named defendants are persons who were serving as Ben Hill County Commissioners at the time plaintiffs filed suit. Ben Hill County employs, or has employed, the plaintiffs as emergency medical technicians (EMTs).

As certified EMTs, the plaintiffs have completed a 220 hour program required by Georgia law for EMT training; the plaintiffs have passed both written and practical state exams in becoming qualified. Plaintiffs have received training in the rescue of accident victims, including training in how to use the Hurst tool, also known as the "jaws of life," to extricate persons trapped in vehicles. Plaintiffs have also received training in the treatment of fire and crime victims, firefighters and law enforcement personnel. Two EMTs in one ambulance go out on each call. No particular EMT is designated as a driver and the EMTs can swap out between driver and attendant.

Plaintiffs worked on a rotation basis comprised of one 24-hour shift on-duty, one 24-hour shift on-call, and one 24-hour shift off-duty until mid-1988. After that time, the EMTs' rotation consisted of 24 hours on-duty, 24 hours on-call, and 48 hours off-duty. While on-call, an EMT has to be able to report to the EMS facility clean, sober, and in a uniform or coverall, within ten minutes of being called. EMTs received $10 per day "on-call pay."¹ If on-call half a day, an EMT got paid $5, half the daily rate. If an EMT is called in while on-call, he or she also receives a straight hourly rate for the actual time worked.

Plaintiff Spires' claim runs from July 26, 1986 until the present, unless the court finds defendants' violation, if any, was willful, in which case his claim would commence on April 15, 1986. Plaintiff Spires began his employment with the Ben Hill County EMS as a radio dispatcher. Spires eventually obtained his EMT license and worked part-time as an EMT and the majority of the time as a dispatcher. Plaintiff Sanders' claim runs from September 2, 1986 to the present, unless the court finds defendants' violation, if any, was willful, in which case his claim would commence on April 15, 1986. Sanders is a basic EMT and a shift captain.²

Plaintiff Suzy Mercer's claim runs from May 9, 1987 to April 29, 1988, unless the court finds defendants' violation, if any, was willful, in which case her claim would commence on the date she was first employed by defendants, October 7, 1986. Suzy Mercer was an EMT with the Ben Hill County EMS. Plaintiff Ray Mercer's claim runs from November 14, 1986 to March 24, 1989, unless the court finds defendants' violation, if any, was willful, in which case his claim would commence on April 15, 1986. Ray Mercer was an EMT and a shift captain.

Approximately a year after these suits were filed, in June of 1989, the Ben Hill County Board of Commissioners delivered checks for overtime compensation to the plaintiffs. Plaintiff Spires received $935.98; plaintiff Sanders received $2,887.20; plaintiff Suzy Mercer received $781.80; and plaintiff Ray Mercer received $2,619.23. Attached to each check was a memorandum stating "Ben Hill County has received a ruling from the Labor Department which resolves certain issues concerning the computation of overtime compensation for EMS employees. The attached check represents overtime compensation which the county has computed to be due you." Plaintiff's Exhibits, 31 & 32.

II. Defendants' Motion to Withdraw Stipulation

On March 23, 1990, defendants filed a motion to withdraw paragraph 5 of the stipulation attached as part of the pretrial order. Paragraph 5 of the stipulation states: "Ben Hill County, Georgia, has been since April 15, 1986, and is now subject to the provisions of 29 U.S.C. §§ 201 et seq. with respect to the employment of the plaintiffs...." Defendants now contend that they are exempt from coverage under the Act under section 13 of the Act. 29 U.S.C. § 213(b)(1).

The court reserved ruling on defendants' motion at trial,³ noting that if the stipulation goes to a question of law, the court would be hesitant to hold a party to a misstatement of the law and would be more inclined to grant defendants' motion. Plaintiffs argue that the stipulation is one of fact, not of law. The court disagrees. The applicability of the section 13(b)(1) exemption is a question of law. Jones v. Giles, 741 F.2d 245, 248 (9th Cir.1984); see Benson v. Universal Ambulance Service, Inc., 675 F.2d 783 (6th Cir.1982). The court finds that the stipulation goes to a question of law.

Plaintiffs contend that allowing the waiver to be withdrawn is prejudicial to the plaintiffs in that defendants, by entering into that stipulation, had already agreed that they were required to pay plaintiffs overtime and that the only issue should be coverage under section 7(k) of the Act. 29 U.S.C. § 207(k). In their answer, defendants specifically pled as a second defense, "Plaintiff's claims are barred in whole or in part by exemptions, exclusions and credits provided in sections 7 and 13 of the Fair Labor Standards Act, as amended ("FLSA"), i.e., 29 U.S.C. §§ 207 and 213." Defendants' contention is not a new bolt from the blue, rather they had maintained a defense of the 13(b)(1) exemption from the outset. Both parties ably addressed the 13(b)(1) issue both at the non-jury trial and in post-trial briefs. The court finds that any possible prejudice to the plaintiffs is outweighed by the need to have the issues that turn on questions of law before the court. Accordingly, the court hereby GRANTS defendants' motion to withdraw their stipulation.

III. The Applicability of the Section 13(b)(1) Exemption

Section 13 of the FLSA regarding exemptions provides that:

(b) The provisions of section 207 of this title shall not apply with respect to —

(1) any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49; ....

29 U.S.C. § 213(b)(1).⁴ Defendants argue that the Secretary of Transportation (formerly the Interstate Commerce Commission (ICC)) has the power to establish maximum hours of service and application of this section completely exempts the plaintiffs from coverage under the FLSA because it provides for coverage under the Motor Carriers Act (MCA).

There is no concurrent jurisdiction between the two acts. Morris v. McComb, 332 U.S. 422, 437, 68 S.Ct. 131, 138, 92 L.Ed. 44 (1947). The Department of Labor has the power to regulate with regard to the FLSA and the Department of Transportation has the power to regulate with regard to the MCA. The Secretary of Transportation need not actually exercise "the power to establish qualifications and maximum hours of service," as long as that power to regulate exists. Morris, 332 U.S. at 435, 68 S.Ct. at 139 (5-4 decision); but see dissenting opinions, 332 U.S. at 438, 68 S.Ct. at 137. The question is whether the Secretary of Transportation has the power to regulate ambulance services.

It is well-recognized that ambulance service, and in particular, the Ben Hill County EMS, is part of the transportation industry. Uncontroverted evidence shows that the largest single category of calls the Ben Hill EMS receives is for patient transfers from one treatment facility to another. The EMS transports patients from Fitzgerald to other hospitals in places such as Atlanta, Macon and Tifton. The EMS uses the interstate highways for most out-of-town transfers. In addition, the EMS is occasionally called on to transport patients across state lines. Plaintiffs Spires and Sanders both testified that they had made trips to Florida transporting patients.

Both parties agree that the plaintiffs are involved in interstate commerce, however they disagree as to whether EMTs are covered by the FLSA or the MCA. A review of the case law reveals that only two circuits have examined the applicability of the MCA and the FLSA to ambulance services, and they reached conflicting conclusions. The Sixth Circuit, in Benson v. Universal Ambulance Service, Inc., 675 F.2d 783 (6th Cir.1982), found that ambulance drivers who operate in interstate commerce are exempt from the regulatory power of the Department of Labor under section 13(b)(1) of the FLSA. In 198...