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Morrison v. County of Fairfax

United States Court of Appeals, Fourth Circuit

June 21, 2016

GERARD MORRISON; CHRISTOPHER THOMPSON; ELTON POLEN, JR.; CALVIN ALEXANDER; MICHAEL ALLEN; ROCCO ALVARO; THOMAS ARNOLD; WILLIAM ATWELL; ROBERT BANASIK; TIMOTHY BARB; TODD BARB; MATHEW ARNHART; MERVIN BARRERA; OSCAR BEASLEY; WILLIAM BEST, JR.; BILL BETZ; DANIEL BORDEN, JR.; EDWARD BOWMAN; FRED BRANDELL; DONALD BRASFIELD; CHRISTOPHER BROWN; JON BRULEY; CLYDE BUCHANAN; CARLTON BURKHAMMER; ROBERT BURLINGAME; MATTHEW BURNS; LEO BURT; LEROY BUTLER, JR.; KEITH CERZULLO; JOHN CHESEK, JR.; MICHAEL CIARROCCHI; STEVEN CLARK; BRADFORD COCHRANE, JR.; THOMAS CONNOLLY; DAVID CONRAD; ARTHUR COX; DUSTIN CRAMER; TRACY CRAWFORD; KEITH CROSS; ERIC CUNNINGHAM; CHARLES CUNNINGHAM; DANNY DANIELS, II; MICHAEL DAVIS; TROY DEAN; YOLANDA DEMARK; SAMUEL DEVERA; KEITH DUBETSKY; BRIAN EDMONSTON; KEVIN EDWARDS; DEREK EDWARDS; FELECIA EDWARDS; SEAN EVANS; MARK FEASTER; MICHAEL FISCHER; COLIN FLANIGAN; THOMAS FLINT; MICHAEL FONTANA; RAMIRO GALVEZ; MICHAEL GARCIA; KENNETH GEFFEN; JARED GOFF; GEORGE GONZALEZ; TODD GORHAM; SAMUEL GRAY; RAYMOND GRIFFIN; WESLEY GRIGG; DAVID GRUENDEL; MARK GUDITUS; DAVID HALL; JAMES HARRISON, III; SHERYL HEMINGWAY; CHARLES HENDERSON; KIT HESSEL; JOHN HIGGINBOTHAM; JAMES HOBGOOD; KIMBERLY HOOD; TRENTON HOUGHTON; GREGORY HUNTER; JAMES IACONE; MICHAEL ISTVAN; JAMES ISTVAN; ANTHONY JACKSON; JAMES JOHNSON; REGINALD JOHNSON; THOMAS JOHNSON; WALTER JOHNSON; JOSEPH KALEDA; GLENN KAPLAN; PATRICK KELLY; REBECCA KELLY; WILLIAM KINGDON; JOSPEH KISER; ROBERT KITCHEN; JOSEPH KNERR; ROBERT KONCZAL; TONY KOSTECKA; RONALD KULEY; DAVID LANGE; JAMES LEE; JOHN LEETE; JEFFREY LEWIS; ROBERT LISON; MATTHEW LOPEZ; WILLIAM LYNCH; BARRY MAHAM; MICHAEL MARKS; CHARLES MARTIN; JAMES MASIELLO; PAUL MASIELLO; GLENN MASON; COREY MATTHEWS; THOMAS MAYHEW; STEVEN MCFARLAND; ROGER MCGEHEE; RICHARD MCKINNEY, JR.; KERWIN MCNAMARA; FRANCIS MENSAH; MARK MENTON; JOSEPH MERRITT, JR.; STEPHEN MILLER; ROBERT MOHLER; JEFFREY MONGOLD; DONALD MONTAGUE; BRIAN MORAVITZ; JOHN MORRIS; RICHARD MOXLEY; JOHN NIEMIEC; BRYAN NIX, JR.; STEVEN NORRIS; STEPHEN O'BRIEN; MILTON PAINTER; JOSPEH PALAU, III; DENNIS PASSMORE; GARY PEMBERTON; JOHN PETERS; DALLAS PHILLIPS; RALPH PISANI; CHARLES PULLEN; E. MARTIN RANCK, III; BARRY RATHBONE; JOHN RICHTER; NATALIE ROBB; RONNIE RODRIGUEZ; MATTHEW RYAN; WILLIAM SCHELLHAMMER, III; MARK SCHROEDER; DAVID SCHWARZMANN; MICHAEL SEASE, II; DAVID SELLERS; DANIEL SHAW; RICHARD SMITH; SCOTT SMITH; MICHAEL SNAPP; JAMES A. SOBOTA; JAMES STICKLEN; REX STRICKLAND; CHERI STROUP; RONALD SYDNOR; KENDALL THOMPSON; LORENZO THROWER; CHRISTOPHER TILLES; DAVID TOBIN; JEFFREY TOLLE; GLENN TSCHANN; WILLIAM VANNOY; DONALD VAUGHT; JACK WALMER, JR.; JOHN WALSER; THOMAS WEALAND; OSCAR WELLS; WAYNE WENTZEL; MICHAEL WHETSELL; PAUL WHITE; KENNETH WILDMAN; JEROME WILLIAMS; MARCUS WILLIAMS; ELTON WRIGHT; RICHARD LANCING, Plaintiffs – Appellants,
v.
COUNTY OF FAIRFAX, VA, Defendant-Appellee. and GARY DIZE, Plaintiff, UNITED STATES DEPARTMENT OF LABOR, Amicus Curiae.

          Argued: January 27, 2016

         Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:14-cv-00005-CMH-JFA)

         ARGUED:

          Molly A. Elkin, WOODLEY & MCGILLIVARY, LLP, Washington, D.C., for Appellants.

          Sona Rewari, HUNTON & WILLIAMS LLP, McLean, Virginia, for Appellee.

          Sarah Kay Marcus, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae.

         ON BRIEF:

          Evangeline C. Paschal, HUNTON & WILLIAMS LLP, Washington, D.C., for Appellee.

          M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae.

          Before TRAXLER, Chief Judge, and THACKER and HARRIS, Circuit Judges.

          PAMELA HARRIS, Circuit Judge.

         Under the Fair Labor Standards Act ("FLSA"), employees who work overtime generally are entitled to overtime pay. There is an exception - like all FLSA exceptions, narrowly construed - for certain "executive" and "administrative" employees whose primary job duties are management-related. The question in this case is whether the fire captains of Fairfax County, Virginia, firefighters who serve as first responders to fires and other emergencies, fall within that exception so that they are not entitled to overtime compensation.

         The district court held that all of the current and former Fairfax County fire captains bringing this suit are exempt executives, and entered summary judgment for Fairfax County. On appeal, the County takes a different approach, arguing that some of the Captains are exempt executives while others are exempt administrators. We conclude that on this record, no reasonable jury could find by the requisite clear and convincing evidence that any of the Captains is exempt from the FLSA's overtime requirement. Accordingly, we reverse the district court's judgment and remand with instructions to enter summary judgment for the Captains.

         I.

         A.

         We begin by setting out the statutory and regulatory scheme that governs this case. The Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201–219, is "remedial and humanitarian in purpose" reflecting an intent by Congress to protect broadly the "rights of those who toil." Tennessee Coal, Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944); Purdham v. Fairfax Cty. Sch. Bd., 637 F.3d 421, 427 (4th Cir. 2011). Consistent with that purpose, courts are to construe the FLSA liberally, "recognizing that broad coverage is essential" to accomplish the statute's goals. Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296 (1985); see Purdham, 637 F.3d at 427 ("[T]he Supreme Court has cautioned that the FLSA 'must not be interpreted or applied in a narrow, grudging manner.'" (quoting Tennessee Coal, 321 U.S. at 597)).

         Among the protections the FLSA provides employees is overtime pay, or the right to be paid at time and a half for work above the statutory limit, generally 40 hours per week. See 29 U.S.C. § 207. There are, however, exemptions from this requirement, including the so-called "white collar" exemption for workers "employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). As we have recognized, FLSA exemptions, including this one, "are to be 'narrowly construed against the employers seeking to assert them, '" and applied only in instances "plainly and unmistakably within the exemptions' terms and spirit." Desmond v. PNGI Charles Town Gaming, L.L.C., 564 F.3d 688, 692 (4th Cir. 2009) (alterations omitted) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)).

         The Department of Labor ("DOL") has promulgated regulations interpreting the FLSA's exemptions for executive and administrative employees, the two categories at issue in this case. Under the DOL regulations, an "employee employed in a bona fide executive capacity" is one who earns at least $455 per week, has authority over hiring and firing, [1] routinely supervises at least two other employees, [2] and - most relevant here - whose "primary duty is management of the enterprise in which the employee is employed." 29 C.F.R. § 541.100. The administrative exemption similarly turns on a management-related primary duty: An "employee employed in a bona fide administrative capacity" is one who, in addition to earning at least $455 per week and exercising discretion on significant matters, [3] has as a "primary duty" the "performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers." Id. § 541.200.

         In 2004, DOL proposed changes to its "Part 541" regulations governing the white collar exemptions, generating concerns that first responders and manual laborers would become exempt employees and lose their right to overtime pay. See U.S. Dep't of Labor, Wage & Hour Div., Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22, 122, 22, 129 (Apr. 23, 2004) (the "Preamble"). In response, DOL promulgated a new regulation, 29 C.F.R. § 541.3, clarifying the scope of the exemptions as applied to blue collar workers and first responders. Preamble at 22, 128–29.

         Subsection (a) of the new regulation provides that the Part 541 exemptions "do not apply to manual laborers or other 'blue collar' workers who perform work involving repetitive operations with their hands, physical skill and energy." 29 C.F.R. § 541.3(a). Subsection (b) is the "first responder regulation, " with potential bearing on this case. Subsection (b) provides in its first part that the Part 541 exemptions "do not apply to . . . fire fighters" and other first responders, "regardless of rank or pay level." Id. § 541.3(b)(1). In its second and third parts, the regulation explains why: "Such employees do not qualify as exempt executive employees because their primary duty is not management of the enterprise . . . as required under § 541.100, " id. § 541.3(b)(2); and "[s]uch employees do not qualify as exempt administrative employees because their primary duty is not the performance of work directly related to the management or general business operations of the employer . . . as required under § 541.200, " id. § 541.3(b)(3).

         B.

         The Fairfax County Fire and Rescue Department is organized in a straightforward hierarchy. At the top is the Fire Chief, in charge of the entire Department. Reporting directly to the Fire Chief are three Assistant Fire Chiefs; beneath them on the organizational chart are nine Deputy Fire Chiefs, followed by Battalion Chiefs. Five ranks down from the top are the Captain positions at issue in this suit, reporting directly to the Battalion Chiefs. The County treats all of these positions as exempt from overtime pay requirements under the FLSA.

         Directly below the Captains on the organizational chart are the Department's Lieutenants, followed by firefighters and technicians. All positions below the Captain position - Lieutenants, firefighters, and technicians - are treated by the County as non-exempt under the FLSA and thus entitled to overtime compensation.

         Although the parties disagree about the fundamental character of the Captains' jobs, the record reveals certain undisputed facts about the Captains' specific responsibilities and work activities. The Department divides its Captains into two groups. The "Captain I" group includes Shift Commanders and Safety Officers, and the "Captain II" group includes Station Commanders and Emergency Medical Service Supervisors ("EMS Supervisors"). For every 24-hour shift, a Station Commander or Shift Commander is responsible for supervising each fire station; an EMS Supervisor is responsible for the emergency medical services for each "battalion, " or geographic region; and a Safety Officer is assigned to one or two stations, providing advice on any safety issues that arise and serving as the Department's primary contact concerning these issues.

         Station and Shift Commanders are what are commonly known as "first responders." They report to every emergency call that comes in during their shifts and is assigned to their engines: A fire engine cannot leave the station without its designated Station or Shift Commander on board, and these Captains may not refuse to respond to a call. At the scene, Station and Shift Commanders work side-by-side with their subordinates, wearing the same protective gear. With their crews, they operate hoses and ladders, ventilate buildings, and force entry, running into burning buildings to rescue victims or search for signs that a fire will spread. Station and Shift Commanders spend the same amount of time responding to emergencies as their lower-ranked colleagues assigned to their engines.

         EMS Supervisors and Safety Officers also are part of the first-response team; like Station and Shift Commanders, they have no discretion as to whether they will respond to calls. EMS Supervisors transport emergency medical equipment to the scene of emergencies and render emergency care, such as controlling bleeding and performing CPR. They also conduct more technical Advanced Life Support ("ALS") at the scene of fires, initiating intravenous drips, checking EKG rhythms, and the like. Safety Officers transport emergency equipment that allows them to monitor the safety of ...


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