Zimmerli v. City of Kan. City

• Decision Date: 06 May 2021
• Docket Number: No. 19-2721,19-2721
• Citation: 996 F.3d 857
• Parties: John ZIMMERLI, on behalf of themselves and all other persons similarly situated; Matthew Dietrick, on behalf of themselves and all other persons similarly situated, Plaintiffs - Appellants v. The CITY OF KANSAS CITY, MISSOURI, Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

996 F.3d 857

John ZIMMERLI, on behalf of themselves and all other persons similarly situated; Matthew Dietrick, on behalf of themselves and all other persons similarly situated, Plaintiffs - Appellants

v.The CITY OF KANSAS CITY, MISSOURI, Defendant - Appellee

No. 19-2721

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2020

Filed: May 6, 2021

Rehearing and Rehearing En Banc Denied June 17, 2021

Michael A. Hodgson, THE HODGESON LAW FIRM, Lee's Summit, MO, Jonathan Theodore Sternberg, JONATHAN STERNBERG, P.C., Kansas City, MO, for Plaintiffs - Appellants.

Timothy Robert Ertz, Saskia Jacobse, Tara Michelle Kelly, CITY ATTORNEY'S OFFICE, Kansas City, MO, for Defendant - Appellee.

Before KELLY, WOLLMAN, and STRAS, Circuit Judges.

KELLY, Circuit Judge.

This case involves the interpretation and application of the Fair Labor Standards Act of 1983 (FLSA), 29 U.S.C. § 201 et seq. , and its accompanying federal regulations. First, we must determine whether a class of emergency medical technicians (EMTs) and paramedics has been improperly denied overtime compensation using the wage calculation formula set forth in its members’ collective bargaining agreement. Second, we must decide whether a separate class of dual-function firefighter/paramedics has been improperly classified as partially exempt from overtime compensation because its members are "employee[s] in fire protection activities" who have the "responsibility to engage in fire suppression." Having jurisdiction under 28 U.S.C. § 1291, we affirm the district court¹ on both issues.

I. Background

Plaintiffs John Zimmerli and Matthew Dietrick, employees of the Kansas City, Missouri Fire Department (Kansas City), brought this class-action lawsuit against the city in May 2017 to recover overtime compensation under the FLSA. Zimmerli, a static, single-job paramedic, sues on behalf of himself and similarly situated EMTs and paramedics, conditionally certified by the district court as a class of "Static, Single Job EMT and/or Paramedics" (Static EMT/Paramedics) under the opt-in, collective action provisions of the FLSA, 29 U.S.C. § 216(b). He alleges that Kansas City is violating the FLSA by underpaying members of the class, who were previously recognized as entitled to overtime compensation. See Hermsen v. City of Kansas City, No. 11-00753-CV-W-BP, 2014 WL 12773937, at *7 (W.D. Mo. June 25, 2014). Dietrick, on the other hand, is a dual-job paramedic, cross-trained in both firefighting and emergency medical services. He sues on behalf of himself and similarly situated individuals, conditionally certified under 29 U.S.C. § 216(b) as a class of "Fire Medics," and alleges that Kansas City has underpaid members of the class by treating them as partially exempt from the FLSA's overtime provision.

On February 28, 2019, after limited discovery, the parties agreed that there were no material facts in dispute and cross-moved for summary judgment. On July 12, 2019, the district court entered summary judgment in favor of Kansas City. The Plaintiffs now appeal, arguing that the district court erred in determining (1) that Static EMT/Paramedics were properly being paid overtime compensation and (2) that Fire Medics are partially exempt from overtime pay because they have the responsibility to engage in fire suppression activities under 29 U.S.C. § 203(y).

A. Static EMT/Paramedics

The first class of plaintiffs is comprised of Static EMT/Paramedics.² Static EMT/Paramedics are based out of fire stations and are scheduled to work 24-hour shifts, alternating workweeks of either 48 or 72 hours in a seven-day period.³

In 2014, the district court held in another case that Kansas City's static, single-job EMT/paramedics were not subject to the FLSA's overtime exemption for "employee[s] in fire protection activities" and were therefore entitled to overtime compensation. Hermsen, 2014 WL 12773937, at *7. After that ruling, Kansas City entered into negotiations with the union representing the Static EMT/Paramedics to renegotiate their wages to comply with the FLSA's overtime requirement. The parties reached an agreement that updated Static EMT/Paramedics’ hourly rates, which they memorialized in a side letter to the collective bargaining agreement that was then in effect. Several months later, Kansas City and the Static EMT/Paramedics’ union agreed to a new method for calculating Static EMT/Paramedics’ hourly rates from monthly wage scales, memorializing the payment scheme in a new collective bargaining agreement and side letter agreement (collectively, the 2015 Collective Bargaining Agreement).

To calculate a Static EMT/Paramedic's base hourly rate under the payment scheme, Kansas City selects the Static EMT/Paramedic's respective target monthly wage according to their seniority. After applying a 5% increase to that rate, the selected wage is converted to an hourly rate. This is done by multiplying the monthly wage by 12 (months in a year) then dividing by a number of hours (adjusted to reflect the proportion of those hours that will be paid at the overtime rate) that the Static EMT/Paramedic is scheduled to work in a year. For example, consider a Static EMT/Paramedic with a target monthly wage of $3,073:

$3,073 per month + 5% = $3,227 per month

$3,227 per month x 12 = $38,724 per year

$38,724 per year ÷ 2,866 scheduled hours⁴ = $13.51 regular hourly rate

Continuing the example, Kansas City would pay that static EMT/Paramedic $13.51 for every regular work hour in a workweek (up to 40) and pay them one and one-half times that amount ($20.26) for every overtime hour worked over 40. See 29 U.S.C. § 207(a). Kansas City has calculated the base hourly rates of Static EMT/Paramedics according to this formula since the 2015 Collective Bargaining Agreement went into effect after the Hermsen decision. Record evidence, including Zimmerli's own pay stubs, demonstrates that Kansas City has paid Static EMT/Paramedics on an hourly basis using base hourly rates calculated from the formula. Record evidence also demonstrates that Kansas City paid Static EMT/Paramedics at a rate greater than one and one-half times their base hourly rates for hours worked in excess of 40.

B. Fire Medics

The second class of plaintiffs is comprised of cross-trained or dual-purpose firefighter/paramedics, colloquially known as "Fire Medics." Based on their job class specification, the Fire Medics’ work "involves training for and participating in duties of protecting life through the performance of rescue firefighting and emergency medical activity." Fire Medics must maintain paramedic licenses and ambulance credentials, and they must be trained in fire suppression and receive firefighter certification. For any given shift, Fire Medics can be assigned to either a fire suppression apparatus (e.g. , fire engine) or an ambulance. When assigned to a fire suppression apparatus, Fire Medics are charged with the same duties performed by firefighters, including donning fire protective gear and self-contained breathing apparatuses (SCBAs) and providing fire suppression at fire scenes, regardless of the need for medical treatment.

This case, however, concerns the Fire Medics’ role when they are assigned to ambulances. While working a shift on an ambulance, Fire Medics "do not carry fire protection gear including fireproof suits, SCBA equipment or even tools necessary to fight fires." Additionally, they are "strictly designated as ‘fire combat support’ roles," are not permitted to go within 50 feet of a burning building (i.e. , the "hot zone"), and principally provide medical services. Nevertheless, Fire Medics assigned to ambulances are responsible for some activities in a fire scene's "warm zone" and "have been ordered in the past and [are] expected to erect and place (‘throw’) ladders; provide incident command if they are the appropriate person to do so; deploy, connect, and straighten fire hose[s]; and participate in building evacuation."

Finally, and central to the Fire Medics’ legal claim, Kansas City has treated Fire Medics as partially exempt from the FLSA's overtime provision because the City considered them to be "employee[s] in fire protection services." See 29 U.S.C. § 207(a), (k).

C. Statutory and Regulatory Framework

The Fair Labor Standards Act of 1983 requires that overtime compensation be paid at one and one-half times the regular rate when an employee works more than 40 hours in a seven-day week. See 29 U.S.C. § 207(a) ;⁵ see also 29 C.F.R. § 778.108 (defining the "regular rate" as "the hourly rate actually paid the employee for the normal, nonovertime workweek for which he is employed" (citing Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945) )). The overtime provision, in the words of the Supreme Court, was intended "to spread employment through imposing the overtime pay requirement on the employer and to compensate the employee for the burden of a workweek in excess of the hours fixed by the Act." Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of Am., 325 U.S. 161, 167, 65 S.Ct. 1063, 89 L.Ed. 1534 (1945).

The FLSA exempts certain employees from the overtime requirement, meaning they are not paid any overtime for work in excess of 40 hours each week. See, e.g., 29 U.S.C. § 213(a)(1) (exempting "any employee employed in a bona fide executive, administrative, or professional capacity" from the FLSA's minimum wage and overtime provisions). Other individuals whose work does not fit the normal pattern of 40-hour workweeks, like "employee[s] in fire protection activities," are partially exempt from the FLSA's overtime requirements. 29 U.S.C. § 207(k) ; see Christian v. City of Gladstone, 108 F.3d 929, 931 (8th Cir. 1997). Under that partial exemption, "employee[s] in fire protection activities" must work a total of 216 hours during a work period of 28 days before being entitled to overtime compensation. See 29 U.S.C. § 207(k). In 1999, Congress defined "employe...