Cedrick CLEVELAND; Juan M. Achan; Luis F. Aldana; Dennis M. Archie; Anthony Arnado; Dennis Barnes; Jennifer Lynn Boscoe; Jason Braff; Brian T. Brooks; Jaime L. Brown; Michael E. Brown; Joshua L. Burton; Christopher Lee Carpenter; Armando Carranza; Heywood Cheng; Braxton Clark; Paul W. Clark; Ruel A. Cole; Juan R. Colson; Raymond R. Crawford; James D. Crites; Armando C. Cuevas; Douglas Dilks; Jeff M. Dodd; Dan Dragotto; Brian C. Dudley; William A. Dunn; Steve J. Encinias; Anthony Charles Ferro; Guadalupe G. Flores; Mark Wray Flot; Larry R. Ford; Timothy P. Freeman; Raymond A. Gallegos; Danny William Garrett; James David Gibson; Mark Glenchur; James R. Goldsworthy; Jeffrey G. Gonzalez; Christian P. Granucci; Edward J. Gutierrez; Benjamin R. Guzman; Josel Guzman; Sir R. Habersham, IV; Anthony Hardaway; Huston Herman; Alfred B. Hernandez, III; Rene Herrera; Ricky M. Herrera; Larry Hoerner; Kory Wayne Jackson; Larry Jackson; Roderic A. Jackson; Ronnie R. Jimenez; Jayson A. Johnson; Keith M. Johnson; Kevin Malcolm Johnson; Donald R. Jones; Garabed Karaoglanian; Kenneth L. Knighten; Joseph D. Lankau; Dale A. Lecesne; Robert Ledesma; Brian M. Lee; Robert W. MacInnes; David Malafronte; Joe G. Manzo; Dexter G. McDaniel; Michelle Marie McKee; Timothy K. McKee; Laurinda Meade; Joseph Menton; Christopher J. Moffatt; Donta T. Montgomery; Cecil Morris; Roger D. Morris; Carl S. Moskovitz, II; Aaron G. Mungaray; Alan C. Naeole; Donald P. Nash, II; James Nordquist; Dennis A. Ohligshlager; Drew Oliphant; Tyrone O‘Shea; Patrick T. Oyama; Roy Allen Paige; David Pass; Norman M. Pate; Steven Keith Phillips; Brandi Pilato; William Ramsey; Steven G. Ravitz; Louis D. Richard; David T. Riles; John Rodriguez; Mark L. Rousseau; Brent Ruff Shannon K. Saffo; Paul T. Semerjian; Richard Dwight Senneff; George Carr Smith, III; Stanley E. Smith; Paul E. Sorum; Brent Spankroy; Joseph St. George; Thomas W. Stafford; Carey Steiner; Dennis C. Stone; Michael J. Taylor; Michael D. Tobey; Abel J. Torres; Louis Torres; Catherine A. Utterback; John P. Vigil; Victor M. Villa; Donell C. Wible; Kenneth Wigchert; Erik D. Williams; Mark R. Woolf, Plaintiffs-Appellees, v. CITY OF LOS ANGELES, a Municipal corporation, Defendant-Appellant.
No. 03-55505.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 6, 2004. Filed Aug. 22, 2005.
420 F.3d 981
Barry R. Levy (argued), and Karen M. Bray (briefed), Horvitz & Levy, Encino, CA, for the defendant-appellant.
Before: BROWNING, PREGERSON, and BERZON, Circuit Judges.
PREGERSON, Circuit Judge:
This case involves the application of the
We have jurisdiction under
I. Factual Background
Plaintiffs are 119 employees of Defendant City of Los Angeles (the “City“). They are employed as “dual function” or “cross-trained” firefighters/paramedics (“dual function paramedics“). This means that Plaintiffs are fully trained and certified in both fire suppression skills and advanced life support paramedics. The City also employs “single function” paramedics who are not trained in fire suppression.
Paramedic ambulances are not designed to provide fire protection services. They do not carry water, hoses, pumps, ladders, or fire suppression breathing equipment, nor do they carry any specialized extrication equipment, aside from a crow bar and a lock cutter. All personnel at a fire scene are expected to wear fire protection gear, except paramedics on paramedic ambulances, who are dispatched only to perform medical services. Paramedic ambulances are not dispatched to every fire call, but are instead dispatched only when there appears to be a need for advanced life support medical services. Further, when they arrive at fire scenes, paramedics treat injured people, standby for patient care, and take exhausted firefighters to the hospital; they do not assist with any fire suppression.
If there is no injury, and the incident commander does not see the need for the paramedic ambulance to stand by, the incident commander has the discretion to release the paramedic ambulance from the scene to be available for other calls.
Paramedic ambulances are rarely dispatched to fire scenes, so such dispatches make up a very small portion of Plaintiffs’ work. Plaintiffs testified that they are sent to fire scenes an average of one to two times per year, and only to perform medical functions. There is no evidence that any Plaintiff (or any other dual function paramedic) has ever been ordered to perform fire suppression by an incident commander when assigned to a paramedic ambulance. Dual function paramedics may volunteer to assist firefighters at a fire scene, but if they do not volunteer, they are not subject to discipline.
Plaintiffs assigned to paramedic ambulances do not perform environmental rescues;1 such rescues are performed by fire suppression personnel assigned to vehicles with the necessary equipment. Plaintiffs are sometimes dispatched to crime scenes and vehicle accidents for the purpose of providing medical services. Nevertheless, Plaintiffs respond to a considerably greater number of purely medical emergencies than they do to fires, traffic accidents, or crime scenes. Because paramedics are called away from the fire station more frequently than firefighters, dual function paramedics often miss required fire suppression training sessions.
II. Statutory and Regulatory Background
The
A. Regulatory Interpretation of the FLSA
At the time that Plaintiffs filed their complaint, the FLSA did not define an “employee in ... fire protection activity.” Guidance for defining this term came from Department of Labor (“DOL“) regulations, available in the Code of Federal Regulations. See
III. Procedural Background
A. District Court Proceedings
1. The Complaint
In their complaint, Plaintiffs alleged that the City violated the FLSA by compensating them as fire protection employees under
Specifically, Plaintiffs asserted that they do not qualify as fire protection employees under the DOL regulations because: (1) they do not have the “responsibility” to engage in fire suppression,
2. Enactment of 29 U.S.C. § 203(y)
On December 9, 1999, three months after Plaintiffs filed their complaint, Congress enacted
3. District Court Ruling
The parties stipulated to a bifurcated bench trial. The issue of liability was tried first, with the amount of damages to be determined later. Without affording priority to the definitions of “employee in fire protection activities” as set forth in the DOL regulations and in
Following the liability phase of the trial, the parties stipulated to a method for calculating the unpaid overtime. The district court concluded that Plaintiffs were entitled to liquidated damages, because the City did not act reasonably or in good faith. The district court subsequently entered judgment, awarding unpaid overtime and liquidated damages for a total of $5,131,514.02. The district court also awarded Plaintiffs $116,550.00 in attorneys fees and $11,389.12 in costs.
B. The Appeal
The City maintains that all work performed by Plaintiffs, including emergency medical services, is exempt under
IV. Standard of Review
A district court‘s determinations regarding exemptions to the FLSA are questions of law that we review de novo. See Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1124 (9th Cir.2002). However, findings of fact underlying a legal determination are reviewed for clear error. See id.
The district court‘s interpretation of DOL regulations promulgated under the FLSA is reviewed de novo. See Webster v. Pub. Sch. Employees of Wash., Inc., 247 F.3d 910, 914-15 (9th Cir.2001). Nonetheless, deference is owed to the DOL‘s regulations interpreting the Act. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1112 n. 4 (9th Cir.2001).
V. Discussion
The FLSA is construed liberally in favor of employees; exemptions “are to be narrowly construed against the employers seeking to assert them....” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960); see also Klem v. County of Santa Clara, 208 F.3d 1085, 1089 (9th Cir.2000) (holding that the FLSA “is to be liberally construed to apply to the furthest reaches consistent with Congressional direction“) (quotation and citation omitted). Further, an FLSA exemption will not be found “except [in contexts] plainly and unmistakably within [the given exemption‘s] terms and spirit.” Id. (quoting Arnold, 361 U.S. at 392). Therefore, the City has the burden to prove that Plaintiffs meet each element of the
As discussed in greater detail below, the district court properly concluded that the City did not meet its burden of proving that Plaintiffs qualify as “employees engaged in fire protection” as defined by the DOL‘s regulations or
A. The Definitions of “Employee Engaged in Fire Protection Activities,” and Their Applications
1. 29 C.F.R. § 553.210 and 29 U.S.C. § 203(y)
Section 553.210(a) defines an “employee in fire protection activities” as any employee who: (1) is employed by an organized fire department or fire protection district; (2) has been trained in fire protection; (3) has the legal authority and responsibility to engage in the prevention,
To determine the meaning of a term in a federal regulation, we look to the common meaning of the word. See United States v. Willfong, 274 F.3d 1297, 1301 (9th Cir.2001) (citing United States v. Hoff, 22 F.3d 222, 223 (9th Cir.1994)). The starting point for an examination of statutory meaning is the text of the statute itself. See United States v. Sioux, 362 F.3d 1241, 1246 (9th Cir.2004). Where “the statute‘s language is plain, the sole function of the courts is to enforce it according to its terms,” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (citation and internal quotations omitted), because “courts must presume that a legislature says in a statute what it means and means in a statute what it says there,” Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 253-54 (1992). The inquiry must cease if the statutory language is unambiguous and “the statutory scheme is coherent and consistent.” Ron Pair Enters., 489 U.S. at 240. “When a statute does not define a term, a court should construe that term in accordance with its ‘ordinary, contemporary, common meaning.’ ” San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004) (internal citation omitted). “To determine the ‘plain meaning’ of a term undefined by a statute, resort to a dictionary is permissible.” Id. at 1034.
The ordinary, common meaning of the word “responsibility” is “a duty, obligation or burden.” American Heritage Dictionary of the English Language, Fourth Edition (Houghton Mifflin 2000). Other dictionaries are to the same effect:
- “A charge, trust, or duty, for which one is responsible,” Oxford English Dictionary (2nd ed.1989);
- “Liability,” Black‘s Law Dictionary (8th ed.2004);
- “A thing or person that one is responsible for,” Webster‘s New World Dictionary, Third College Edition (1986).
Similarly, “responsible” means “expected or obliged to account (for something, to someone), answerable, accountable” and “involving accountability, obligation or duties.” Webster‘s New World Dictionary, Third College Edition (1986). “Responsible applies to one who has been delegated some duty or responsibility by one in authority and who is subject to penalty in case of default.” Id. “The state
Applying this ordinary, common-sense meaning, for Plaintiffs to have the “responsibility” to engage in fire suppression, they must have some real obligation or duty to do so. If a fire occurs, it must be their job to deal with it. The undisputed evidence shows that, among other things:
- the paramedic ambulances do not carry fire-fighting equipment or breathing apparatuses;
- a dispatcher does not know if he or she is sending single or dual function paramedics to a call;
- paramedic ambulances are not regularly dispatched to fire scenes and are dispatched only when there appears to be a need for advanced life support medical services;
- dual function paramedics are not expected to wear fire protective gear;
- dual function paramedics are dispatched to a variety of incidents (e.g., vehicle accidents and crime scenes) at which they are expected to perform only medical services; and
- there is no evidence that a dual function paramedic has ever been ordered to perform fire suppression.
For these many reasons, the district court properly concluded that the City did not meet its burden of showing that Plaintiffs have the “responsibility” to engage in fire prevention, control, or extinguishment as required by
2. 29 C.F.R. § 553.212
Section 553.212 provides that an employee who spends more than twenty percent of his or her working time engaged in nonexempt activities may not be considered an “employee engaged in fire protection.”
B. The Temporal Scope of 29 U.S.C. § 203(y)
As discussed above, when Plaintiffs filed their complaint, the FLSA did not contain a definition for an “employee in fire protection activities,” and Plaintiffs’ suit was based on the contention that they did not fit within the DOL‘s definition in
VI. Conclusion
Because the City has not met its burden of proving that Plaintiffs qualify as “employees engaged in fire protection” as defined by either
Notes
Employees engaged in interstate commerce; additional applicability to employees pursuant to subsequent amendatory provisions
(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
(2) No employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, and who in such workweek is brought within the purview of this subsection by the amendments made to this chapter by the Fair Labor Standards Amendments of 1966—
No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities ... if—
(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or
(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed.
As used in [§ 207(k)], the term “any employee ... in fire protection activities” refers to any employee (1) who is employed by an organized fire department or fire protection district; (2) who has been trained to the extent required by State statute or local ordinance; (3) who has the legal authority and responsibility to engage in the prevention, control or extinguishment of a fire of any type; and (4) who performs activities which are required for, and directly concerned with, the prevention, control or extinguishment of fires, including such incidental non-firefighting functions as housekeeping, equipment maintenance, lecturing, attending community fire drills and inspecting homes and schools for fire hazards. The term would include all such employees, regardless of their status as “trainee,” “probationary,” or “permanent,” or of their particular specialty or job title.... The term would also include rescue and ambulance service personnel if such personnel form an integral part of the public agency‘s fire protection activities. See § 553.215.
Ambulance and rescue service employees of a public agency other than a fire protection or law enforcement agency may be treated as employees engaged in fire protection or law enforcement activities of the type contemplated by [§ 207(k)] if their services are substantially related to firefighting or law enforcement activities in that (1) the ambulance and rescue service 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. As provided in § 553.213(b), where employees perform both fire protection and law enforcement activities, the applicable standard is the one which applies to the activity in which the employee spends the majority of work time during the work period.
Employees engaged in fire protection activities as described in § 553.210 ... may also engage in some nonexempt work which is not performed as an incident to or in conjunction with their fire protection or law enforcement activities.... The performance of such nonexempt work will not defeat [the § 207(k)] exemption unless it exceeds 20 percent of the total hours worked by that employee during the workweek or applicable work period. A person who spends more than 20 percent of his/her working time in nonexempt activities is not considered to be an employee engaged in fire protection or law enforcement activities for purposes of this part.
“Employee in fire protection activities” means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who—
(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and
(2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.