Thomas v. County of Fairfax, Va., Civ. A. No. 89-1597-A.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation758 F. Supp. 353
Docket NumberCiv. A. No. 89-1597-A.
PartiesCurtis G. THOMAS, et al., Plaintiffs, v. COUNTY OF FAIRFAX, VIRGINIA, Defendant.
Decision Date27 February 1991

758 F. Supp. 353

Curtis G. THOMAS, et al., Plaintiffs,

Civ. A. No. 89-1597-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 27, 1991.

758 F. Supp. 354
758 F. Supp. 355
Gregory K. McGillivary, Thomas A. Woodley, Washington, D.C., for plaintiffs

Susan L. Kruger, Asst. County Atty., Fairfax, Va., for defendant.


ELLIS, District Judge.

This is a suit originally brought by seventy eight (78)1 present and former lieutenants of the Fairfax County Fire and Rescue Department (the "Department") seeking compliance with the overtime provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA" or the "Act"). Plaintiffs claim they are nonexempt employees under the Act and are thus entitled to premium compensation for hours worked in excess of the statutory standards. Fairfax County, in response, claims that the lieutenants are executive employees exempt from the Act's overtime requirements.2 See 29 U.S.C. § 213; 29 C.F.R. §§ 541.0 to 541.119 (1990).

This matter came initially before the Court on the parties' cross-motions for summary judgment. For the reasons stated in a November 1, 1990 Memorandum Opinion, 1990 WL 167578, the Court granted plaintiffs' motion and denied the County's, ruling that plaintiffs were not exempt executive employees under the County's pre-August 24, 1990 payment scheme because they were paid on an hourly, rather than a salary, basis. The Court therefore granted plaintiffs' motion. The County then moved for reconsideration. The Court granted this motion and took the entire matter under advisement, including plaintiffs' new motion for interest on damages.

For the reasons stated below, the Court reaffirms its previous conclusion that under the pre-August 24, 1990 payment scheme plaintiffs were not paid on a salary basis. Accordingly, plaintiffs' motion for

758 F. Supp. 356
summary judgment must be granted as to the pre-August 24, 1990 period,3 and the County's motion for summary judgment must be denied. Because the issues raised in the County's reconsideration motion merit more extensive treatment, the Court vacates the November 1, 1990 Memorandum Opinion and issues this one in its place. Finally, as to damages, plaintiffs are entitled to compensatory backpay and to prejudgment and postjudgment interest

I. Facts

The material facts are undisputed. The Department is a quasi-military organization maintained by Fairfax County for the purposes of protecting property from fire damage and providing emergency medical care. The Fire Chief controls the Department through an operational chain of command that divides the county geographically into several battalions, each headed by a battalion chief. Each battalion chief supervises five to seven stations. Additionally, three Emergency Medical Service (EMS) captains supervise the operation of the County's EMS units, which are dispersed among the various stations.

A. Staffing

Each station is headed by a station captain and is assigned three full shifts of firemen who stand duty on a rotating, twenty four hour shift basis. The equipment assigned to a station determines the shift manning level. A typical station has one engine company and either an Advanced Life Support (ALS) unit or a Basic Life Support (BLS) unit.4 An engine company requires a suppression lieutenant or the station captain, a technician, and two fire fighters. An ALS unit requires an EMS lieutenant, an EMS sergeant, and a technician. A BLS unit requires two fire fighters, and a special equipment truck requires a sergeant and a fire fighter.

The shift leader is either the station captain, if the captain is assigned to that shift, or the senior lieutenant, if more than one lieutenant is assigned. For example, in stations with just an engine company and a BLS unit, only a suppression lieutenant is assigned, and he or she is the shift leader. Stations with both an engine company and an ALS unit have both a suppression lieutenant and an EMS lieutenant assigned. In those instances, the senior lieutenant serves as shift leader. In addition to lieutenants permanently assigned to a station, the Department maintains a number of relief lieutenants who are available to fill in at a station when an assigned lieutenant must miss a shift.

In summary, lieutenants function as crew chiefs on either engines or ALS units, and the senior lieutenant on a shift also functions as the shift leader unless the station captain is assigned to that shift. Shift leader lieutenants do not receive extra compensation for leading the shift beyond the pay that they would receive for performing their duties with either the engine company or EMS units.

B. Pre-August 24, 1990 Pay Scheme

The lieutenants were paid biweekly. Fairfax County determined the amount they received by multiplying their hourly wage5 by the number of hours they were on duty in what Fairfax County termed a "pay status". A lieutenant was in pay status during the time that his or her shift

758 F. Supp. 357
was scheduled to be at the fire station. The Department has three shifts. Each shift rotated into and out of pay status as follows: 24 hours on, 24 hours off, 24 hours on, 24 hours off, 24 hours on, 96 hours off.6 This schedule was fixed; any fire fighter, including the lieutenants, could readily determine precisely what days were scheduled for duty simply by knowing the applicable shift and consulting a calendar

Given this rotation, a lieutenant typically worked, and accordingly was paid for, either 96, 120, or 144 hours during any given biweekly pay period. Over 9 biweekly pay periods, this cycle of 96, 120, or 144 hours repeated itself, so that while a lieutenant's pay varied from paycheck to paycheck, it was, apart from overtime, constant over any given 18 week period.7 If a lieutenant worked beyond the scheduled hours in pay status, the lieutenant received additional compensation at his or her hourly rate.

Prior to March 1989, if a lieutenant was scheduled to be on duty but was absent for part of the 24 hour period, Fairfax County docked the lieutenant's pay unless that individual had some form of leave to cover the absence. The county calculated the deduction by multiplying the lieutenant's hourly rate times the hours absent. Beginning in March 1989, Fairfax County instituted a new policy providing that employees the county considered to be exempt under the Act, such as the lieutenants, would no longer be docked pay if they took absences of less than one day and had no leave to cover it. In such cases, Fairfax County would grant these employees administrative leave with pay to make up the difference. And in June 1989, Fairfax County reimbursed all the lieutenants who had received leave without pay for absences of less than one day, retroactive to April 15, 1986.8

II. Applicable Law

This case and others like it stem from Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), in which the Supreme Court held that the FLSA applies

758 F. Supp. 358
to state and local governments.9 The Act requires that public safety officials receive overtime or compensatory time, unless the officials are exempt, in accordance with a formula set forth at 29 U.S.C. § 207(k). 29 U.S.C. § 213(a)(1) provides an exemption for, among others, "bona fide executives" and permits the Department of Labor to issue regulations defining who are "executives".10

Fairfax County considers the fire chief, his deputies, the battalion chiefs, the station captains, and all lieutenants to be executive employees under the Act and thus exempt from the overtime requirements. Significantly, the Department treats sergeants, though they too are officers, as nonexempt employees. Accordingly, sergeants receive premium overtime. The result of these policies is a seemingly anomalous situation in which sergeants may receive more total pay than lieutenants, although the sergeants' base pay is smaller.

The central question in this case is whether the FLSA executive exemption applies to the plaintiff lieutenants. The quest for an answer properly begins with the recognition of several principles too well-settled to be disputed. First, the terms of coverage of the Act, a remedial statute designed to effectuate Congress' goal of providing employment protection, are to be liberally construed. "Breadth of coverage" is "vital to the Act's mission". Powell v. United States Cartridge Co., 339 U.S. 497, 516, 70 S.Ct. 755, 765, 94 L.Ed. 1017 (1950); Schultz v. W.R. Hartin & Son, Inc., 428 F.2d 186, 189 (4th Cir.1970) (Act establishes a "presumption of coverage"). Accordingly, exemptions to the Act, including the bona fide executive exemption, are to be narrowly construed and limited to those "plainly and unmistakably within their terms and spirit." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Mitchell v. Lublin, McGaughty & Assoc., 358 U.S. 207, 211, 79 S.Ct. 260, 264, 3 L.Ed.2d 243 (1959); Pugh v. Lindsay, 206 F.2d 43, 46 (4th Cir.1953). Next, Fairfax County bears the burden of proving that the lieutenants fall within the exemption. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Walling v. General Indus. Co., 330 U.S. 545, 547-49, 67 S.Ct. 883, 884-885, 91 L.Ed. 1088 (1947); Clark v. J.M. Benson Co., Inc., 789 F.2d 282, 286 (4th Cir.1986); Wirtz v. Charleston Coca Cola Bottling Co., 356 F.2d 428, 430 (4th Cir.1966); Fire Fighters Local 2141 v. City of Alexandria, 720 F.Supp. at 1232. This burden must be satisfied by "clear and affirmative evidence". See Donovan v. United Video, Inc., 725 F.2d 577, 581 (10th Cir.1984); Clark, 789 F.2d at 286 (stating proof requirement for party asserting analogous administrative employee exemption).

The pertinent regulations provide a "long" and a "short" test for determining...

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