Wouters v. Martin County, Fla.

• Decision Date: 15 May 1992
• Docket Number: No. 91-14047-CIV.,91-14047-CIV.
• Citation: 793 F. Supp. 310
• Parties: Richard WOUTERS, et al., Plaintiffs, v. MARTIN COUNTY, FLORIDA, Defendant.
• Court: U.S. District Court — Southern District of Florida

793 F. Supp. 310

Richard WOUTERS, et al., Plaintiffs, v. MARTIN COUNTY, FLORIDA, Defendant.

No. 91-14047-CIV.

United States District Court, S.D. Florida.

May 15, 1992.

Ben Patterson, Tallahassee, Fla., for plaintiffs.

Joseph Mancini, Richeson & Brown, J. David Richeson, Fort Pierce, Fla., for defendant.

ORDER

GONZALEZ, District Judge.

THIS CAUSE has come before the Court upon the parties' cross motions for summary judgment. The defendant's motion is for summary final judgment; plaintiffs' motion is for judgment as to liability only.

The instant issue is whether Martin County is violating provisions of the Fair Labor Standards Act (FLSA); specifically, whether the County is entitled to the overtime exemption found in 29 U.S.C. § 207(k).

The court notes that two Georgia cases involving similar issues (but decided differently) are currently pending before the Eleventh Circuit. O'Neal v. Barrow County Board of Commissioners, 743 F.Supp. 859 (N.D.Ga.1990); Spires v. Ben Hill County, 745 F.Supp. 690 (M.D.Ga.1990). Several other courts, discussed below, also have addressed similar or substantially similar issues. Bond v. City of Jackson, 939 F.2d 285 (5th Cir.1991); Horan v. King County, 740 F.Supp. 1471 (W.D.Wash. 1990).

FACTS

Plaintiffs are Emergency Medical Technicians (EMTs) and paramedics who comprise the Emergency Medical Service (EMS) in Martin County. These personnel work with the fire department as components of the emergency response system in the County. Firefighters and EMS staff are assigned to facilities throughout the County in order to respond effectively and quickly in emergency situations. These facilities are staffed 24 hours per day, 365 days per year. Plaintiffs receive overtime pay after 53 hours of work weekly (instead of forty hours) because the County applies the 7(k) exemption of the FLSA to ambulance service personnel who are trained in rescue techniques and who are regularly dispatched with firefighters. 29 CFR § 553.215.

The facts reveal that EMTs in Martin County are trained in extrication techniques and have received instruction in basic life saving and life support procedures. (See Plaintiffs' Responses to Defendant's Request for Admissions.) The instant plaintiffs are regularly dispatched to fires, auto accident scenes, hazardous waste spills, and other accidents involving personal injury in order to provide emergency medical service to said victims. EMS personnel are often dispatched jointly with firefighters and they work as a team in numerous situations.

The narrow legal issue is whether Martin County is entitled to the 7(k) exemption as defined in § 553.215. If the Court finds for plaintiffs, a second issue must be addressed; whether defendant is entitled to a statutory "good faith" exception pursuant to 29 U.S.C. § 259.

DISCUSSION

Summary judgment may be granted when there are "... no genuine issues 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); Tippens v. Celotex Corp., 805 F.2d 949, 952-954 (11th Cir. 1986); See also, C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, § 2725 at 75 (1983). The evidence must be viewed in the light most favorable to the non-moving party. Tippens, 805 F.2d at 954; Sweat v. Miller, 708 F.2d 655, 656-657 (11th Cir.1983).

"In order to avoid the grant of summary judgment, a party must demonstrate both the existence of a material fact and a genuine issue as to that material fact. A fact is material if it constitutes a legal defense to an action." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir.1980). In other words, a fact is material if it is an essential element of the cause of action. Murphy v. Light, 257 F.2d 323, 325 (5th Cir.1958). In the instant matter, this burden has not been satisfied. The disputed facts cited by plaintiff are made moot and immaterial by the conclusions of law made below.

THE REGULATIONS

Ambulance and rescue service employees are specifically exempted (as fire protection or law enforcement personnel) by 29 CFR § 553.215 if

their services are substantially related to fire fighting.... in that (1) ambulance and rescue employees have received training in the rescue of fire, crime, and accident victims or firefighters or law enforcement personnel injured in the performance of their respective duties, and (2) the ambulance and rescue service employees are regularly dispatched to fires, crime scenes, riots, natural disasters, and accidents. Id. (emphasis added).

Thus, the "substantially related" test is met if an EMT has "received rescue training" and is "regularly dispatched."

The 20% Rule

The confusion with this issue begins with whether the 20% rule (a/k/a "80/20 rule") found in 29 CFR § 553.212 applies to ambulance service personnel defined in § 553.215. § 553.212 specifically refers to §§ 553.210/.211, the provisions involving firefighters and police officers, but does not refer specifically to § 553.215, the provision covering EMTs. Further confusion arises because §§ 553.210/.211 specifically reference § 553.215 when defining the term "any employee" in those sections. As a primary issue, the court finds that the 80/20 rule found in 29 CFR § 553.212 does apply to EMTs as defined in § 553.215.

The effect of the 20% rule is that the County's exemption is lost if those employees work more than 20% of the time on non-exempt activities. Thus, if a firefighter is sent to work on a road crew more than 20% of the time, the County loses the exemption. The 80/20 rule specifically applies to "firefighters" as defined in § 553.210, and said definition includes "rescue and ambulance service personnel" as defined in § 553.215.¹ Furthermore, nothing in the statutory scheme indicates that EMTs should be treated with less deference than the firefighting personnel whose rubric EMTs fall under.²

In practical terms, a holding that the 20% rule does not apply to § 553.215 would mean that the County is free to dispatch its EMTs and paramedics to do any job (road repair, sanitation disposal, parks and recreation) without fear of losing the 7(k) overtime exemption. Clearly, such a ludicrous result is not contemplated by the regulations at issue.

Having found that § 553.212 is applied to the EMTs as defined in § 553.215, the issue then becomes defining "non-exempt" work. The court agrees with defendant that the Spires and Horan courts "misperceived" the concept of "non-exempt" activity.³

The plaintiffs argue that non-exempt activity includes anything that is not related to firefighting, accident scenes, etc. For example, in plaintiffs' view, if EMTs responded 50% of the time with the fire department and 50% of the time to heart attack victims, the responses to heart attacks would be non-exempt activity. The consequence of this interpretation is that 80% of EMS responses must be with the Fire Department or the County loses its 7(k) exemption.

The defendants urge, as stated above, that exempt activity includes all duties incident to ambulance and rescue service. Thus, nonexempt work for EMTs would be working on the "road crew" or assisting the Parks Department, to name two examples. The interpretation urged by defendant is only reasonable given the fact that § 553.215 explicitly takes into account the nature of work performed by ambulance service personnel. There is no indication that the "other" ambulance duties should be construed as nonexempt activity.

Accordingly, the court finds that ambulance service activity which is unrelated to fire rescue does not count as nonexempt activity.

Although this court's decision that the 20% rule applies to EMTs differs from the decisions in O'Neal and Bond, the logic of those decisions is applicable here in deciding what is nonexempt activity. The underpinning of those decisions is that the 80/20 rule cannot be applied to rewrite the plain meaning of § 553.215. In other words, to apply the 20% rule as plaintiffs suggest would be to change the "regularly dispatched" rule to a "dispatched 80% of the time" rule. Such an interpretation would be "redundant and contradictory." O'Neal, at 862.

The Department of Labor (DOL) has issued Letter Rulings which further illustrate the point. One DOL Letter Ruling (October 9, 1987), states that "no specific frequency of occurrence ... establishes `regularity'; it must be determined on the basis of the facts in each case." See Defendant's Exhibit 6. This ruling, and other similar rulings cited by defendant, clearly demonstrate that at no time was "regularly dispatched" intended to mean 80% of the time. If such a meaning was intended, the regulation easily could have been drafted to read that ambulance service personnel, in order to be exempted, must respond with the fire department 80% of the time. That, however, is not how the regulation was drafted. To read in such a requirement through § 553.212 would be to fundamentally change the plain meaning of the regulation.

§ 553.215 TEST

Having found that the 20% rule does not alter the requirements of § 553.215, the court must now determine if plaintiffs meet the two part test.

As stated above, ambulance and rescue service employees are specifically exempted (as fire protection or law enforcement personnel) by 29 CFR § 553.215 if "their services are substantially related to fire fighting.... in that (1) ambulance and rescue employees have received training in the rescue of fire, crime, and accident victims or firefighters or law enforcement personnel injured in the performance of their respective duties, and (2).... are regularly dispatched to fires, crime scenes, riots, natural disasters, and accidents." Id. (emphasis added). Thus, the "substantially related" test is met if an EMT has "received training" and is "regularly dispatched."

The instant plaintiffs have received the necessary training as contemplated by the regulations. The DOL has defined "rescue" as "actions taken to free a victim from imminent...