Trocheck v. Pellin Emergency Medical Service, Inc.

• Decision Date: 30 June 1999
• Docket Number: No. 4:98-CV-161.,4:98-CV-161.
• Citation: 61 F.Supp.2d 685
• Parties: John D. TROCHECK, et al., Plaintiffs, v. PELLIN EMERGENCY MEDICAL SERVICE, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

61 F.Supp.2d 685

John D. TROCHECK, et al., Plaintiffs, v. PELLIN EMERGENCY MEDICAL SERVICE, INC., et al., Defendants.

No. 4:98-CV-161.

United States District Court, N.D. Ohio, Eastern Division.

June 30, 1999.

COPYRIGHT MATERIAL OMITTED

Ira J. Mirkin, Richard T. Bush, Green, Haines, Sgambati, Murphy & Macala, Youngstown, OH, for John D. Trocheck, Martin Shaffer, plaintiffs.

David Cooper Comstock, Jr., Comstock, Springer & Wilson, Youngstown, OH, James P. Wilkins, Steven C. Sutton, Millisor & Nobil, Cleveland, OH, John C. Grundy, Warren, OH, for Pellin Emergency Medical Service, Inc., Richard Pellin, Sr., Vanessa Pellin, defendants.

MEMORANDUM & ORDER

O'MALLEY, District Judge.

Plaintiff John Trocheck brings this action against his ex-employer, Pellin Emergency Medical Service, Inc., and its owners, Richard and Vanessa Pellin (collectively, "Pellin"). Trocheck claims Pellin failed to pay him about $12,000 in overtime compensation, in violation of both the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and also the Ohio statutory analog of FLSA, Ohio Rev.Code § 4113.03.

Currently pending are Pellin's motion for summary judgment (docket no. 36) and Trocheck's cross-motion for summary judgment on the issue of liability (docket no. 47). For the reasons stated below Pellin's motion is GRANTED, Trocheck's motion is DENIED, and this case is DISMISSED.

I.

Except where noted, the following facts are not in dispute. Pellin operates an ambulance service out of four different stations, located in four different Ohio cities: Ellsworth, North Jackson, Youngstown, and Boardman. Pellin hired Trocheck as a paramedic in July of 1995, and Trocheck worked at the Youngstown station about 80% of the time. Trocheck's duties were to ride in the back of the ambulance, tending to patients. Trocheck did not drive the ambulance except on rare occasions.¹ Ambulance dispatches often required driving on interstate highways, and sometimes involved crossing into Pennsylvania or visiting nearby airports.

Trocheck's shift was 24 hours long, and started either at 7:00, 8:00, or 9:00 in the morning. Pellin, knowing its employees spent an entire day continuously on duty, provided its employees with living and sleeping quarters at the station. In all the stations, for example, the living quarters included kitchen facilities (microwave, refrigerator, sink, stove or hot plate, etc.), couches, cable television, VCR, a bathroom and shower, and heat and air conditioning. The sleeping quarters were made up of separate bedrooms, generally one bed to a room, with dressers, lamps, nightstands, and fresh linens.² The entrances to the bedroom areas did not have doors on them, in order to facilitate quick exits by sleeping employees when an emergency was called in, but the bedrooms were relatively private. For example, it was difficult, at best, to see into a bedroom from the living area, and employees did not enter the bedroom area unless they were going to sleep.

Trocheck, like the other Pellin employees, was generally required to remain at the station during his shift. While not actually engaged in a dispatch, Trocheck was allowed to pass the time as he wished — reading, watching TV or videotapes, making personal telephone calls, playing cards, wrestling with other employees, even having visitors or going out to dinner.³ After 6:00 p.m., Trocheck was allowed to obtain whatever sleep he could; however, he remained "on-call" in case of any need for an ambulance dispatch. Pellin would signal the necessity for a dispatch over a speaker with a loud tone, followed by an announcement by a dispatcher of the location of the emergency. In the Youngstown station, the dispatcher would also announce which of the two ambulance crews on duty had to respond. The ambulance crew was expected to be en route to the emergency within two minutes of receiving the dispatch announcement. In addition to emergency dispatch announcements, Pellin would also use this system to direct ambulance crews to "stand post." To "stand post" meant to leave the station and wait at another, more central location while the ambulance crew from another station was on dispatch.

During Trocheck's initial orientation, which occurred just after Pellin hired him, Pellin showed Trocheck the actual sleeping quarters in each station and explained in general terms its compensation and sleeping policy. Trocheck learned that he was permitted to obtain whatever sleep he could during a "sleeping period" that lasted from 6:00 p.m. to the end of his shift the next morning.⁴ Regarding compensation, Trocheck learned that Pellin paid him on an hourly basis.⁵ Pellin's policy was that, even if there were no ambulance dispatches at all during the sleeping period, so that Trocheck could sleep as much as he wanted during this time, Pellin still paid Trocheck for 20 of the 24 hours of his shift. The only exception to this policy was that, if various ambulance dispatches occurred such that Trocheck was unable to obtain a total of at least 5 hours of sleep during the sleeping period, then Pellin paid Trocheck for all 24 hours of his shift. Trocheck does not dispute that he understood and acquiesced to this policy. Indeed, each one of Trocheck's biweekly paychecks revealed that Pellin was not paying him for all 24 hours of his work shifts. Trocheck regularly checked his paychecks for accuracy and never questioned or complained about Pellin's compensation policy or practices before this lawsuit.⁶

Obviously, there were many spans of time during the sleeping period that Trocheck could not actually sleep. Primarily, Trocheck could not sleep any time during which he was engaged in an ambulance dispatch or when he had to stand post. Pellin documented when these dispatches occurred and how long they lasted.⁷ It is also undisputed that Trocheck was not able to sleep during the following spans of time: (1) while in Youngstown, he had to wake to listen to all announcements from the dispatcher, even if it was the other crew that was dispatched; (2) while in Youngstown, he often woke when the other crew returned to the station; (3) while in Youngstown, he often woke when workers from Chance Brothers Waterproofing — who shared the Youngstown garage — arrived for and returned from work in their trucks; (4) while in any station, after returning from a dispatch, he could not return to sleep until the ambulance was parked and restocked and he had again gotten ready for bed; and (5) while in any station (but especially Youngstown), noise made by his co-employees sometimes kept him awake.⁸ Pellin's logs do not document when or how long any of these time spans occurred.

Toward the end of Trocheck's tenure at Pellin, the Department of Labor ("DOL") audited Pellin's compensation policies and practices in response to a complaint by another employee. During this audit, the DOL interviewed Trocheck for about an hour. Trocheck was more familiar with state and federal labor requirements than the average Pellin employee, because he owned and operated two coffee and bakery shops.⁹ The DOL concluded that Pellin's overtime, sleep-time, and other compensation policies and practices complied with FLSA.¹⁰

Trocheck ceased working for Pellin in October of 1987. During his tenure with Pellin, Pellin paid Trocheck according to its compensation policy: 20 hours' wages for each 24-hour shift, unless ambulance dispatches (or standing post) prevented him from obtaining a total of 5 hours of sleep during the sleeping period, in which case Pellin paid wages for all 24 hours. Although Trocheck never complained about this policy or his compensation at the time, even after meeting with the DOL auditor, he now asserts that Pellin's failure to pay him wages for all 24 hours for every shift he worked was a violation of FLSA and Ohio statute. Pellin seeks unpaid compensation of about $12,000, plus liquidated damages, costs, and attorney fees.

II.

Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ....

Rule 56(e) specifies the materials properly submitted in connection with a motion for summary judgment:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein .... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941,...