Revised January 18, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20770
_____________________
JUAN E. VELA; ET AL
Plaintiffs
PHILLIP E. DALEY; TIERA ANGELLE LEGER; RICHARD WAYNE
MEDEIROS; CLINT HENDRIX
Plaintiffs - Appellants -
Cross-Appellees
and
CALVIN THAMES, ET AL
Intervenor Plaintiffs
CALVIN THAMES, ET AL
Intervenor Plaintiffs-
Appellants - Cross-Appellees
v.
THE CITY OF HOUSTON
Defendant - Appellee - Cross-
Appellant
PHILIP E DALEY; TIERA ANGELLE LEGER; RICHARD WAYNE MEDEIROS;
CLINT HENDRIX
Plaintiffs – Appellants –
Cross-Appellees
v.
CITY OF HOUSTON
Defendant – Appellee – Cross-
Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 14, 2001
Before KING, Chief Judge, BARKSDALE, Circuit Judge, and NOWLIN,
District Judge.*
KING, Chief Judge:
In district court, Plaintiffs-Appellants asserted claims
against Defendant-Appellee, the City of Houston, for overtime
compensation pursuant to the Fair Labor Standards Act, and they
now appeal from the district court’s grant of summary judgment in
favor of the City. The City cross-appeals from, among other
things, the district court’s award of attorney’s fees in a
related case that was consolidated with this case. For the
following reasons, we REVERSE the district court’s grant of
summary judgment in favor of the City and REMAND for entry of
judgment in favor of Plaintiffs-Appellants following a
determination of the amount of overtime compensation owed by the
City to Plaintiffs-Appellants. Further, we AFFIRM the district
court’s award of attorney’s fees in the related case.
I. Factual and Procedural History
Plaintiffs–Appellants (the “Daley Plaintiffs”) are
paramedics and emergency medical technicians (“EMTs”)
(collectively the “EMS workers” or “EMS employees”) employed by
the City of Houston Fire Department. The Daley Plaintiffs are a
subset of a group of approximately 2,600 fire department
*
District Judge of the Western District of Texas, sitting
by designation.
2
employees consisting of fire suppression,1 telemetry, dispatch,
and arson investigation personnel (the “Vela Plaintiffs”). The
Vela Plaintiffs filed suit against the City of Houston (the
“City”) in state court on October 25, 1995 claiming they were
entitled to overtime pay under state law and under the Fair Labor
Standards Act (the “FLSA”), 29 U.S.C. § 201 et seq. (1998). On
October 17, 1997, the City removed the suit to the United States
District Court for the Southern District of Texas. The district
court entered partial summary judgment in favor of the Vela
Plaintiffs on September 24, 1998. The district court did not
award any specific amounts for unpaid overtime at that time, but
an Agreed Partial Summary Judgment, entered on May 28, 1999,
awarded $5,489,590.62 to the telemetry, dispatch, and arson
investigation personnel – i.e., all the Vela Plaintiffs except
the fire suppression personnel. The fire suppression personnel
(including the Daley Plaintiffs) were later paid $4,436,819.12 as
a “settlement.”2
On April 5, 1999, the Daley Plaintiffs filed a separate suit
in the district court claiming they were not fire protection
employees for purposes of the FLSA. On August 5, 1999, this suit
was consolidated with the prior suit brought by the Vela
1
The paramedics and EMTs (including the Daley Plaintiffs)
were classified as fire suppression personnel in the Vela suit.
2
The City denies that there was a settlement but concedes
that payment was made.
3
Plaintiffs. The parties completed discovery with respect to the
claims raised by the Daley Plaintiffs on November 30, 1999. The
City and the Daley Plaintiffs then filed cross-summary judgment
motions. In their summary judgment motion, the Daley Plaintiffs
argued that as non-fire protection personnel, they are subject to
the standard forty-hour workweek under § 207(a)(1) of the FLSA,3
and thus entitled to overtime compensation in addition to that
awarded the Vela Plaintiffs under state law.4 The City countered
in its summary judgment motion that, pursuant to § 207(k) of the
FLSA,5 the Daley Plaintiffs are exempt from overtime compensation
3
Section 207(a)(1) of the FLSA states:
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.
29 U.S.C. § 207(a)(1).
4
Under state law, as fire suppression personnel, the
Daley Plaintiffs were eligible for overtime only after working in
excess of 46.7 hours in a workweek. See Tex. Local Gov’t Code
Ann. § 142.0017(b) (Supp. 1999).
5
Section 207(k) states:
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
4
under the FLSA until they exceed an average of fifty-three hours
of work in a week. See 29 C.F.R. § 553.201(a).6 Alternatively,
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
a work period 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.
6
A Department of Labor regulation states:
Section 7(k) of the [FLSA] provides a partial
overtime pay exemption for fire protection
. . . personnel . . . who are employed by
public agencies on a work period basis. This
section of the [FLSA] formerly permitted
public agencies to pay overtime compensation
to such employees in work periods of 28
consecutive days only after 216 hours of
work. . . . [T]he 216-hour standard has been
replaced, pursuant to the study mandated by
the statute, by 212 hours for fire protection
employees . . . . In the case of
such employees who have a work period of at
least 7 but less that 28 consecutive days,
overtime compensation is required when the
ratio of the number of hours worked to the
number of days in the work period exceeds the
ratio of 212 . . . hours to 28 days.
29 C.F.R. § 553.201(a). In conjunction with § 207(k) of the
FLSA, this regulation establishes that fire protection employees
5
the City argued that the Daley Plaintiffs are exempt from the
general rule providing overtime compensation for hours worked in
excess of the standard forty-hour workweek under either the
Learned Professional exemption7 or the Executive/Administrative
exemption.8
What the City has not argued bears mention. Although the
City contests whether there was in fact a settlement with the
Vela Plaintiffs, see infra Part V, conspicuously absent from the
City’s arguments in the district court and on appeal is an
alternative argument that the amount paid by the City to the Vela
Plaintiffs was intended to settle the Daley Plaintiffs’ claim for
overtime compensation under the FLSA. In response to a specific
question at oral argument about the res judicata effect of any
settlement on the Daley Plaintiffs’ FLSA claim, the City
acknowledged that any such argument had been waived.
The district court entered partial summary judgment in favor
of the City on March 22, 2000, finding that the Daley Plaintiffs
are fire protection employees under the FLSA and therefore not
are exempt from overtime compensation under the FLSA until they
exceed an average of fifty-three hours of work in a week.
7
The FLSA provides that any employee “employed in a bona
fide . . . professional capacity” is exempt from the general rule
requiring overtime compensation. 29 U.S.C. § 213(a)(1) (1998)
(the “Learned Professional exemption”).
8
The FLSA provides that any employee “employed in a bona
fide executive [or] administrative . . . capacity” is exempt from
the general rule requiring overtime compensation. 29 U.S.C.
§ 213(a)(1) (the “Executive/Administrative exemption”).
6
eligible for additional overtime under § 207(a)(1). Although the
parties’ motions for summary judgment address the Learned
Professional and Executive/Administrative exemptions, the
district court’s opinion was not required to, and did not, decide
whether the Daley Plaintiffs fall within those exemptions. In
this appeal, the Daley Plaintiffs request that this court vacate
the district court’s order granting summary judgment in favor of
the City and render judgment in favor of the Daley Plaintiffs.
The City cross-appeals from the district court’s award of
attorney’s fees to the Vela Plaintiffs. In addition, the City
cross-appeals three issues from the Vela Plaintiffs’ case:
(1) the district court’s order directing the City to pay damages
for wages between January 1, 1997 and May 28, 1997 to the fire
suppression personnel; (2) the district court’s conclusion that
overtime for the fire suppression personnel should be calculated
on an eighty-hour work cycle; and (3) the district court’s
conclusion that the City improperly worked dispatch and arson
personnel on an eight-day work cycle.
II. Summary Judgment Standard of Review
We review a grant of summary judgment de novo, applying the
same standard as the district court. See Chaney v. New Orleans
Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999).
Summary judgment is proper when “there is no genuine issue as to
7
any material fact and [] the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c). While we
view the evidence in a light most favorable to the non-movant,
see Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th
Cir. 1997), in order to avoid summary judgment, the non-movant
must go beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial, see Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
If the evidence is such that a reasonable jury could return
a verdict for the non-movant, there is a genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). However, if the non-movant fails to present facts
sufficient to support an essential element of his claim, summary
judgment is appropriate. See Celotex, 477 U.S. at 322-23.
III. The Daley Plaintiffs’ Claims for Overtime Compensation
A. The General Rule of the FLSA and its Exemptions
The FLSA establishes the general rule that all employees
must receive overtime compensation for hours worked in excess of
forty hours during a seven-day workweek.9 See 29 U.S.C.
9
State and local government employers do not enjoy
constitutional immunity from the FLSA’s requirements. See Garcia
v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). Garcia
overruled Nat’l League of Cities v. Usery, 426 U.S. 833 (1976), a
case which held that Congress lacked authority to impose the
requirements of the FLSA on state and local governments.
8
§ 207(a)(1).10 Employees are entitled to overtime compensation
according to the general rule unless their employer proves that
one of the many exemptions applies. The City asserts that, as
EMS workers, the Daley Plaintiffs are not entitled to overtime
compensation under the general rule because they fall within
three exemptions. First, employees of a public agency that are
engaged in fire protection activities are exempt from the general
rule (the “§ 207(k) exemption”). 29 U.S.C. § 207(k).11 To
receive overtime compensation under the FLSA, fire protection
employees must work more than 212 hours during a work period of
28 consecutive days, equivalent to an average of 53 hours per
week. See 29 U.S.C. § 207(k); 29 C.F.R. § 553.201(a).12 As part
of its argument that the Daley Plaintiffs fall within the
§ 207(k) exemption, the City asserts that § 203(y), a recently
enacted statute that defines “employee in fire protection
activities,” applies retroactively to bar the Daley Plaintiffs’
claims. See 29 U.S.C. § 203(y) (Supp. 2001). The second and
third exemptions that the City relies on are the Learned
Professional exemption and the Executive/Administrative
exemption. We construe exemptions from the FLSA narrowly, see
Blackmon v. Brookshire Grocery Co., 835 F.2d 1135, 1137 (5th Cir.
10
See supra note 3 for the text of 29 U.S.C. § 207(a)(1).
11
See supra note 5 for the text of 29 U.S.C. § 207(k).
12
See supra note 6 for the text of 29 C.F.R. § 553.201(a).
9
1988), and the employer has the burden to prove that the employee
is exempt from the FLSA general rule, see Heidtman v. County of
El Paso, 171 F.3d 1038, 1042 (5th Cir. 1999).
In this part of the opinion, we look first to the question
whether the Daley Plaintiffs fall within the § 207(k) exemption
as it existed at the time their claims accrued. We then turn to
the question whether § 203(y) is retroactive. Next, we determine
whether the Daley Plaintiffs fall within the Learned Professional
and Executive/Administrative exemptions. Finally, we address the
City’s statute of limitations defense.
B. Do the Daley Plaintiffs Fall Within the § 207(k) Exemption?
The Daley Plaintiffs are employed by the City of Houston
Fire Department and undergo training with firefighters. In fact,
some of the Daley Plaintiffs occasionally work as firefighters.
As EMS workers, however, they spend approximately 83% of their
time responding to what are purely medical calls, unassociated
with any firefighting or law enforcement activity. The City’s
EMS employees are called to respond to less than 1% of the City’s
fires. Nevertheless, the City argues that the Daley Plaintiffs
are exempt from the FLSA general rule providing overtime
compensation for hours worked in excess of the standard forty-
hour workweek because they are “employee[s] in fire protection
activities” under the § 207(k) exemption. The Daley Plaintiffs
counter that they do not fall within the § 207(k) exemption
because they do not satisfy the requirements for that exemption
10
set out in the related Department of Labor (“DOL”) regulations.
The district court granted summary judgment to the City and found
that the Daley Plaintiffs fall within the § 207(k) exemption and
are therefore not entitled to overtime compensation for hours
worked in excess of the standard forty-hour workweek established
by the FLSA.
We must decide whether the § 207(k) exemption covers the
City’s EMS employees. To help in our determination, we turn to
the DOL regulations under the FLSA because they “constitute a
body of experience and informed judgment to which courts . . .
may properly resort for guidance.” Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944). This court must defer to these DOL
regulations if (as all parties implicitly concede) they are
“based on a permissible construction of the statute.” Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43 (1984).
C. The DOL Regulations
In 1987, the DOL issued regulations concerning the
application of the FLSA to public employees, see 29 C.F.R. Part
553, and devoted a subpart to “Fire Protection and Law
Enforcement Employees of Public Agencies” and the nature of the
§ 207(k) exemption, id. at Subpart C. The DOL regulations begin
by defining “employee . . . in fire protection activities” as:
any employee (1) who is employed by an
organized fire department or fire protection
district; (2) who has been trained to the
11
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
(e.g., firefighter, engineer, hose or ladder
operator, fire specialist, fire inspector,
lieutenant, captain, inspector, fire marshal,
battalion chief, deputy chief, or chief), and
regardless of their assignment to support
activities of the type described in paragraph
(c) of this section, whether or not such
assignment is for training or familiarization
purposes, or for reasons of illness, injury
or infirmity. 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.
29 C.F.R. § 553.210(a). The first part of this regulation is
commonly referred to as the § 553.210(a) four-part test.13 The
13
On its face, at least, the four-part test applies to
standard firefighters rather than EMS workers. See Justice v.
Metro. Gov’t of Nashville, 4 F.3d 1387, 1394 (6th Cir. 1993)
(noting that the § 553.210(a) four-part test “describe[s] the
standard firefighter and do[es] not apply to rescue and ambulance
service personnel at all”). A recent DOL letter opinion,
however, suggests that certain EMS workers are subject to the
§ 553.210(a) four-part test as well as the § 553.215 two-part
test:
We have concluded that firefighters who are
cross-trained as EMS employees qualify for
exemption under [§ 207(k)] as fire protection
employees where they are principally engaged
12
last full sentence of this regulation exempts EMS workers who
form an “integral part” of an agency’s fire protection activities
(the “integral part” test). This sentence is followed by an
explicit cross-reference to § 553.215 of the regulations.
According to § 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 . . . 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
. . ., and (2) the ambulance and rescue
service employees are regularly dispatched to
fires, crime scenes, riots, natural disasters
and accidents.
29 C.F.R. § 553.215. This regulation is commonly referred to as
the § 553.215 two-part test.
as firefighters meeting the four tests
outlined in [§ 553.210(a)] and where the EMS
functions they perform meet the tests
described in [§ 553.215] for ambulance and
rescue employees.
Wage & Hour Division, U.S. Department of Labor, Opinion Letter,
Feb. 13, 1995 (emphasis added). We must defer to the DOL’s
interpretation of its FLSA regulations unless the interpretation
is “plainly erroneous or inconsistent with the regulation.” Auer
v. Robbins, 519 U.S. 452, 461 (1997) (citations omitted).
However, because the § 553.215 two-part test determines the
outcome of this case, and because the DOL’s letter ruling
requires exempt dual-function EMS/firefighters to satisfy both
the § 553.210(a) four-part test and the § 553.215 two-part test,
we need not decide whether the four-part test applies and must be
satisfied here. The fact that the Daley Plaintiffs fail one
prong of the § 553.215 two-part test (see discussion infra Part
III(E)) is sufficient to establish that they do not fall within
the § 207(k) exemption.
13
We address first the relationship between the last sentence
of § 553.210(a), i.e., the “integral part” test, and the
§ 553.215 two-part test. For reasons discussed below, we find
that the “integral part” standard of § 553.210 is best understood
by looking to the two-part test of § 553.215. Next, we apply the
two-part test of § 553.215 to the Daley Plaintiffs. Because we
conclude that the Daley Plaintiffs fail the § 553.215 two-part
test, we find that they do not fall within the § 207(k)
exemption.
D. The § 553.210(a) “Integral Part” Test Versus The § 553.215
Two-Part Test
The relationship between the last sentence of § 553.210(a),
i.e., the “integral part” standard, and § 553.215 is a point of
contention among circuit courts. One circuit holds that either
the “integral part” test or the § 553.215 two-part test applies,
depending on the employment status of the EMS employee. Other
circuits insist that the two tests are indistinguishable or that
the § 553.215 test is merely a definition of “integral part.”
The disagreement stems from the language at the beginning of
§ 553.215 stating that the section applies to “[a]mbulance and
rescue service employees of a public agency other than a fire
protection or law enforcement agency.”
At first glance, the “integral part” standard appears to
apply to employees of an “organized fire department or fire
protection district,” while the two-part test applies only to
14
employees of a “public agency other than a fire protection . . .
agency.” See 29 C.F.R. §§ 553.210(a) and 553.215. The Eleventh
Circuit has adopted this reading of the regulations. See Falken
v. Glynn County, 197 F.3d 1341, 1346-47 (11th Cir. 1999) (noting
the existence of two distinct standards, one for employees of the
fire department and the other for employees of an agency separate
from the fire department). The Sixth, Seventh, and Eighth
Circuits, however, view the two-part test of § 553.215 as the
definition of the phrase “integral part” found in § 553.210(a).
See Justice, 4 F.3d at 1395 (holding that “‘integral part’ is
best understood by looking to the two-part test announced in
Section 553.215"); Alex v. City of Chicago, 29 F.3d 1235, 1241
(7th Cir. 1994) (holding that § 553.215 states the “one test for
the [§ 207(k)] exempt status of publicly employed emergency
medical personnel”); Lang v. City of Omaha, 186 F.3d 1035, 1037
n.3 (8th Cir. 1999) (holding that “section 553.215 can be applied
to paramedics employed by fire departments”).
We now adopt the interpretation of the Sixth, Seventh, and
Eighth Circuits. We find that the “integral part” standard of
§ 553.210(a) is best understood by looking to the two-part test
of § 553.215. We do so, in part, because we are guided by this
court’s opinion in Bond v. City of Jackson. 939 F.2d 285 (5th
Cir. 1991). Bond is the only Fifth Circuit case to address
whether EMS workers fall within the § 207(k) exemption. In Bond,
EMS employees of a city fire department sued the city of Jackson
15
for incorrectly classifying them as employees engaged in fire
protection activities within the meaning of the § 207(k)
exemption. Because of the classification, the city of Jackson
refused to compensate the EMS employees for overtime for all
hours worked in excess of forty per week. Although the court’s
opinion in Bond did not explicitly discuss the issue, the court
applied § 553.215 to determine whether EMS workers employed by a
fire department fell within the § 207(k) exemption. 939 F.2d at
287-88. Because the EMS workers in Bond received the requisite
training, spent most of their time responding to accidents, and
co-responded with firefighters to 90% of the EMS calls, we found
that the EMS workers satisfied the § 553.215 two-part test. Id.
The court’s analysis in Bond suggests that the “integral part”
standard of § 553.210(a) is best understood by looking to the
two-part test of § 553.215.
The conclusion that the two-part test of § 553.215 is the
appropriate test for EMS workers from any public agency gives
meaning to the cross-reference to § 553.215 found in § 553.210(a)
and thereby avoids rendering the cross-reference superfluous or
meaningless. For these reasons,14 we find that the regulations
14
Our conclusion finds some support in the scant
legislative history of the § 207(k) exemption, consisting of one
brief exchange on the floor of the House of Representatives,
which suggests that Congress intended no distinction between
personnel connected with a fire department and those connected
with some other department. Representative Quie states that this
exemption “is intended to cover those employees directly employed
by a public agency who are engaged in rescue or ambulance
16
announce only one test (outside of the possible application of
the four-part test of § 553.210(a)) for determining the exempt
status of publicly employed EMS workers: the two-part test of
§ 553.215.15
E. Application of the § 553.215 Two-Part Test
We turn, then, to the application of the § 553.215 two-part
test to the Daley Plaintiffs. Under § 553.215, in order to be
exempt from the overtime compensation provisions of the FLSA, an
EMS employee: (1) must have “received training in the rescue of
fire, crime, and accident victims” and (2) must be “regularly
dispatched to fires, crime scenes, riots, natural disasters and
accidents.” 29 C.F.R. § 553.215. We examine the second prong,
the regularity prong, first and find that the Daley Plaintiffs
are not “regularly dispatched” as required by § 553.215 and thus
do not fall within the § 207(k) exemption.
The DOL states that “[t]here is no specific frequency of
occurrence which establishes ‘regularity’; it must be determined
on the basis of the facts of each case.” Wage & Hour Division,
U.S. Department of Labor, Opinion Letter, Oct. 9, 1987
[hereinafter “DOL Op. Let., Oct. 9, 1987"]. This court has held
activities which are substantially related to fire protection or
law enforcement activities.” 120 CONG. REC. 8598 (1974). This
statement contains the “substantially related” language of
§ 553.215 and suggests that all EMS workers should be treated
similarly under the § 207(k) exemption.
15
We need not consider the application of the § 553.210(a)
four-part test to these facts. See supra note 13.
17
that regularity is easily established when “the EMS ambulances
co-respond with one or more other units from the fire department”
in “over ninety percent of the EMS calls.” Bond, 939 F.2d at
288. In fact, the plaintiffs in Bond testified that they spent
most of their time responding to accidents, a type of § 553.215
emergency. Id. While Bond provides a clear example of
regularity required by the second prong of the § 553.215 test, no
Fifth Circuit case establishes the minimum requirements necessary
to satisfy that prong.
In Roy v. County of Lexington, 141 F.3d 533 (4th Cir. 1998),
the Fourth Circuit construed “regularity” to require only “some
frequency.” Id. at 541. The Roy court recognized that this
flexible standard “provides only limited assistance to trial
courts” but felt constrained by “the flexible approach set forth
in the regulations.” Id. That court suggested that regularity
is best shown with “evidence that numerous EMS calls were
dispatched to § 553.215 emergencies and (or) evidence that many
fire or police dispatches include EMS teams.” Id.
The Eleventh Circuit takes a more rigorous approach and has
established specific guidelines for the regularity analysis.
According to Eleventh Circuit jurisprudence, when determining
whether dispatches to § 553.215 emergencies, i.e. fires, crimes,
riots, natural disasters, and car accidents, are regular, the
court should consider three factors: (1) the percentage of total
calls that are dispatches to § 553.215 emergencies, (2) the
18
percentage of EMS man-hours spent responding to such dispatches,
and (3) the percentage of the total number of all calls involving
§ 553.215 emergencies to which the EMS is dispatched (the “O’Neal
factors”). See O’Neal v. Barrow County Bd. of Comm’rs, 980 F.2d
674, 679 (11th Cir. 1993). We agree with the Eleventh Circuit
that the regularity analysis should be guided by the three O’Neal
factors. While evidence under all three O’Neal factors is
preferable, it is not required in every case.
In this case, the Daley Plaintiffs present evidence
regarding regularity through deposition testimony from Wes
Warnke, Assistant Chief in charge of EMS, and William Barry, a
District Chief in the EMS Division. This evidence shows that for
the years 1996, 1997, and 1998, only 17% of EMS dispatches were
related to § 553.215 emergencies. The other 83% of EMS
dispatches corresponded to solely medical or health-related
incidents. This evidence, called for by the first O’Neal factor,
suggests that the Daley Plaintiffs are not regularly dispatched
to § 553.215 emergencies.
Unfortunately, neither party produces the evidence suggested
by the second and third O’Neal factors: the percentage of EMS
man-hours spent responding to dispatches to § 553.215 emergencies
and the percentage of the total number of all calls involving
§ 553.215 emergencies to which the EMS is dispatched. The Daley
Plaintiffs establish that ambulances were dispatched to less than
19
1% of all fire calls in 1995, 1996, and 1997.16 This evidence is
relevant to our regularity analysis but not as helpful as
evidence establishing the percentage of all § 553.215 emergency
calls responded to by the Daley Plaintiffs.
The City attempts to establish regularity with evidence
showing that from 1996 to 1999 EMS workers responded to 64,435
crime scenes (assaults, gunshot wounds, rapes, stab wounds,
hangings, overdoses, and other incidents) and 101,060 accidents
(motorcycle and motor vehicle incidents). Although this evidence
constitutes one part of the calculation contemplated by the third
O’Neal factor, we find it unhelpful in the absence of evidence of
the total number of crime scenes and accidents. The number of
EMS responses, standing alone, does not indicate regularity. As
indicated by the third O’Neal factor, regularity is best
demonstrated by showing the number of responses relative to the
total number of incidents.
Although we lack the evidence suggested by the second and
third O’Neal factors, we need not remand this case. The parties
finished full discovery on these issues on November 30, 1999, and
neither party argues that this case presents any genuine issue of
material fact. Rather, each party asserts that it is entitled to
16
According to Warnke’s deposition testimony, multiple
alarm fires are the only fire incidents to which EMS workers are
regularly dispatched. Because multiple alarm fires are very rare
relative to other fire incidents, ambulances were dispatched to
less than 1% of all fire calls in 1995, 1996, and 1997.
20
judgment on this record as a matter of law. In circumstances
such as these where the factual record is effectively conceded to
be complete, remand is unnecessary. We find that the evidence
presented under the first O’Neal factor, i.e., that only 17% of
EMS dispatches were related to § 553.215 emergencies, is
sufficient for us to determine on this record that the Daley
Plaintiffs are not regularly dispatched to § 553.215 emergencies
as a matter of law.17
This conclusion is supported by other courts, which have
found a lack of sufficient regularity in circumstances of even
greater regularity than presented by this case. For example, the
Sixth Circuit found that regularity had not been established in a
case brought by EMS workers employed by the city of Nashville.
Justice, 4 F.3d at 1387. In Justice, the EMS workers transported
6,733 victims from accidents and responded to 120 fire calls,
1,650 crime scene calls, and 8,943 general medical illness calls
between March 15, 1990 and December 31, 1990. Id. at 1398.
Thus, 48.7% of all EMS calls were to § 553.215 emergencies. In
view of these facts, the district court concluded that the EMS
17
In situations involving cross-motions for summary
judgment and upon finding no genuine issues of material fact,
this court regularly reverses grants of summary judgment and
enters judgment for the opposite party. See, e.g., Owsley v. San
Antonio Indep. Sch. Dist., 187 F.3d 521 (5th Cir. 1999)
(concluding that athletic trainers are professionals and thus are
exempt from the FLSA’s overtime benefits requirements, reversing
summary judgment in favor of the trainers, and rendering judgment
in favor of their employer).
21
workers were regularly dispatched. Id. Nevertheless, the Sixth
Circuit reversed the district court’s decision and remanded for
further consideration after concluding that “these facts are
insufficient to resolve this [regularity] issue.” Id.
In Roy, EMS workers brought an action against Lexington
County for overtime compensation. 141 F.3d at 533. In that
case, 25% of EMS calls were executed in conjunction with law
enforcement services and 5% were executed in conjunction with
fire protection services. Id. at 541. Thus, roughly 70% of EMS
calls were purely medical and only 30% of all calls were to
§ 553.215 emergencies. Id. Confronted with these facts, the
district court found a lack of regularity, and the Fourth Circuit
affirmed this determination. Id. at 542. In the instant case,
only 17% of all EMS calls were to § 553.215 emergencies during
the relevant time period, a percentage much lower than that
encountered in either Justice or Roy.
Because the § 553.215 two-part test requires that employees
satisfy both prongs of the test in order to be exempt, and
because we find that the Daley Plaintiffs fail to satisfy the
regularity prong on this record as a matter of law, we need not
consider whether the EMS workers “have received training in the
rescue of fire, crime, and accident victims” sufficient to
satisfy the first prong of the test. The failure to satisfy the
regularity prong ensures that the City’s employees are not exempt
22
under § 207(k) from the general overtime provisions of the
FLSA.18
F. The Retroactivity of § 203(y)
As part of its argument that the Daley Plaintiffs fall
within the § 207(k) exemption, the City asserts that § 203(y), a
recently enacted statute that defines “employee in fire
protection activities,” applies retroactively to bar the Daley
Plaintiffs’ claims. We disagree.
On December 9, 1999, Congress amended the FLSA by adding a
definition of “employee in fire protection activities.” Section
203(y) of the FLSA now states:
“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
18
Courts often consider 29 C.F.R. § 553.212 when resolving
disputes concerning the § 207(k) exemption. According to
§ 553.212, even if an EMS worker satisfies the § 553.215 two-part
test, he can still qualify for overtime compensation under the
forty-hour standard if he spends more than 20% of his working
time in nonexempt activities (the “80/20 Rule”). Several courts
have awarded overtime compensation to EMS workers based on the
80/20 Rule. See, e.g., West v. Anne Arundel County, 137 F.3d
752, 761 (4th Cir. 1998) (awarding overtime compensation to EMS
workers who spent more than 20% of their time performing medical
services); O’Neal, 980 F.2d at 681 (granting overtime
compensation because the majority of the employees’ working hours
were spent in nonexempt work such as responding to calls
unrelated to fire protection or law enforcement). Because we
have already determined that the Daley Plaintiffs fail the
§ 553.215 two-part test, we need not decide if they spend more
than 20% of their working time in nonexempt activities.
23
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.
29 U.S.C. § 203(y) (Supp. 2001). The Daley Plaintiffs’ claims
accrued before Congress enacted this definition. Thus, we must
determine if this definition applies retroactively.
Generally, we disfavor the retroactive application of new
laws. See U.S. Fid. & Guar. Co. v. McKeithen, 226 F.3d 412, 418
(5th Cir. 2000). Retroactive legislation can create “severe
problems of unfairness because it can upset legitimate
expectations and settled transactions.” Id. Although in many
situations a court should “apply the law in effect at the time it
renders its decision,” Bradley v. Sch. Bd. of the City of
Richmond, 416 U.S. 696, 711 (1974), those situations “generally
involve procedural changes to existing law, including statutes
which merely alter jurisdiction.” Hartford Cas. Ins. Co. v.
F.D.I.C., 21 F.3d 696, 700 (5th Cir. 1994). This court follows
the two-part analysis governing the retroactivity of new statutes
delineated by the Supreme Court in Landgraf v. USI Film Prods.,
511 U.S. 244, 280 (1994). See, e.g., Graham v. Johnson, 168 F.3d
762, 781-88 (5th Cir. 1999); United States v. Rocha, 109 F.3d
225, 228-29 (5th Cir. 1997).
First, we ask “whether Congress has expressly prescribed the
statute’s proper reach.” Landgraf, 511 U.S. at 280. The stated
24
purpose of § 203(y) is to “clarify the overtime exemption for
employees engaged in fire protection activities.” Pub. L. No.
106-151, 113 Stat. 1731 (codified as amended at 29 U.S.C.
§ 203(y)) (the “Amendment”). The text of the Amendment does not
mention retroactivity. Furthermore, the legislative history of
§ 203(y) does not suggest that it was intended to apply
retroactively. See 145 CONG. REC. H11,499-02 (daily ed. Nov. 4,
1999); H.R. REP. NO. 106-1040, at 102 (2001); S. REP. NO. 107-11,
at 18 (2001). Therefore, we find that Congress has not expressly
made § 203(y) of the FLSA retroactive.
The City argues that a portion of the legislative history,
consisting of a brief exchange on the floor of the House of
Representatives, clearly shows that § 203(y) was enacted to
specifically preclude such claims as the Daley Plaintiffs assert
in this case. During congressional debates, Representative
Boehner observed:
Many State and local governments employ
EMS personnel who receive training and work
schedules and maintain levels of preparedness
which is very similar to that of
firefighters. In the past, these types of
employees fit within the 7(k) overtime
exemption.
In recent years, however, some courts
have narrowly interpreted the 7(k) exemption
and held that emergency medical services
personnel do not come within the exemption
because the bulk of their time is spent
engaged in nonfire protection activities.
These lawsuits have resulted in State and
local governments being liable for millions
of dollars in back pay, attorneys’ fees and
court costs.
25
So there is a real need to modernize
this area of the Fair Labor Standards Act and
to clearly specify who can be considered a
fire protection employee for purposes of the
exemption.
145 CONG. REC. at *H11500 (statement of Rep. Boehner). The
sponsor of the new § 203(y), Representative Ehlich, further
explained:
[F]rom its inception, the Fair Labor
Standards Act has exempted fire protection
employees from the traditional 40-hour
workweek. Historically, any emergency
responder paid by a fire department was
considered to be a fire protection employee.
However, recent court interpretations of
Federal labor statutes have rendered this
definition unclear. [Section 203(y)] seeks to
clarify the definition of a fire protection
employee.
Id. (statement of Rep. Ehlich). Contrary to the City’s
assertions, nothing in those statements makes clear a
congressional intent to impair rights that existed and accrued
prior to the passage of § 203(y). The Supreme Court has
explained that inferences of retroactivity like those made by the
City are unreliable:
It will frequently be true . . . that
retroactive application of a new statute
would vindicate its purpose more fully. That
consideration, however, is not sufficient to
rebut the presumption against retroactivity.
Statutes are seldom crafted to pursue a
single goal, and compromises necessary to
their enactment may require adopting means
other than those that would most effectively
pursue the main goal. A legislator who
supported a prospective statute might
reasonably oppose retroactive application of
the same statute.
26
Landgraf, 511 U.S. at 285-86. Thus, neither the language nor the
legislative history of § 203(y) expressly states that Congress
intended it to apply retroactively.
According to Landgraf, next we ask whether § 203(y) “would
impair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to
transactions already completed.” 511 U.S. at 280. Unlike the
pre-amendment statutory scheme, § 203(y) explicitly covers a
broad class of employees, including paramedics, emergency medical
technicians, rescue workers, and ambulance personnel. Moreover,
§ 203(y) dispenses with the rescue training and regularity
requirements for exemption of EMS workers under the pre-amendment
regulations. Thus, under the current FLSA, more employees fall
within the § 207(k) exemption, and fewer employees are entitled
to overtime compensation pursuant to the FLSA general rule. If
applied retroactively, this broadening of the exemption would
impair the Daley Plaintiffs’ rights to overtime compensation that
accrued before Congress enacted § 203(y).19 Because (1) Congress
did not expressly make § 203(y) retroactive, and (2) retroactive
application of § 203(y) here would impair the rights of the Daley
Plaintiffs, we refuse to give § 203(y) retroactive effect.
19
We need not determine whether the Daley Plaintiffs would
be exempt fire protection employees under § 203(y). It is enough
to note that the retroactive application of § 203(y) would impair
the Daley Plaintiffs’ rights by making it much more difficult for
them to prevail.
27
G. The Learned Professional Exemption
In addition to the § 207(k) exemption, the City argues that
the Daley Plaintiffs fall within the Learned Professional
exemption.20 The FLSA provides that any employee “employed in a
bona fide . . . professional capacity” is exempt from the general
rule requiring overtime compensation. 29 U.S.C. § 213(a)(1).
DOL regulations define “employee employed in a bona fide . . .
professional capacity” as:
any employee:
(a) Whose primary duty consists of the
performance of:
(1) Work requiring knowledge of an
advance type in a field of science or
learning customarily acquired by a
prolonged course of specialized
intellectual instruction and study, as
distinguished from a general academic
education and from an apprenticeship,
and from training in the performance of
routine mental, manual, or physical
processes, . . . and
(b) Whose work requires the consistent
exercise of discretion and judgment in its
performance.
29 C.F.R. § 541.3. This definition consists of two prongs: the
education prong and the discretion prong. If an employer proves
that his employee satisfies both prongs, the employee is not
entitled to overtime compensation because he falls within the
20
Although the district court did not decide whether the
Daley Plaintiffs fall within either the Learned Professional
exemption or the Executive/Administrative exemption, the parties’
summary judgment motions raise the applicability of these
exemptions. Because the parties have finished discovery, and the
record on these issues is complete, we can decide the
applicability of these two exemptions.
28
Learned Professional exemption. The City fails to show that the
Daley Plaintiffs satisfy either prong of this exemption.
First, the Daley Plaintiffs lack the educational background
to satisfy the education prong of the Learned Professional
exemption. DOL regulations note that “[t]he typical symbol of
the [required] professional training and the best prima facie
evidence of its possession is, of course, the appropriate
academic degree.” 29 C.F.R. § 541.301(e)(1). City regulations
do not require a college degree to qualify as a paramedic or EMT.
The Department requires EMTs to complete only 200 hours of
didactic training, clinical experience, and field internship and
requires paramedics to complete only 880 hours of specialized
training in didactic courses, clinical experience, and field
internship. The only court to directly address this issue held
that requirements such as these were insufficient to meet the
education prong. See Quirk v. Balt. County, 895 F. Supp. 773
(D.Md. 1995). In Quirk, the court ruled that, unlike nurses who
must complete three academic years of study in an accredited
college plus a fourth year of professional course work in a
school of medical technology, paramedics, the highest level EMT,
did not have the necessary education to be “learned
professionals” under the regulations because they were only
required to achieve 600 hours of classroom and field training.
Id. at 785.
29
Although no Fifth Circuit case analyzes whether these
EMT/paramedic requirements satisfy the education prong of the
Learned Professional exemption, we applied the exemption in
Owsley v. San Antonio Indep. Sch. Dist., 187 F.3d 521 (5th Cir.
1999). The court held that athletic trainers are “learned
professionals” exempt from the FLSA overtime compensation
provisions. Id. at 527. The court found that the trainers
satisfied the education prong because they were required to
achieve, at a minimum, the following: (1) a bachelor’s degree in
any field; (2) 1800 hours apprenticeship over a three-year
period; (3) completion of five 3-hour credit college courses in
specific areas of study; and (4) a C.P.R. test. Id. at 524-25.
The Owsley panel analogized the trainers’ educational training
and background to those of airline pilots who, while lacking the
requirement of a college degree, were required to “complete a
course of instruction to learn the regulations governing pilots,
basic aerodynamic and flight principles, and numerous airplane
operations.” Id. at 525. The court cited nurses, accountants,
and “actuarial computants,” as other examples of “learned
professionals.” Id. In this case, the EMT/paramedic educational
requirements are much less rigorous than those required for
athletic trainers. Moreover, the educational backgrounds of EMS
workers are not as extensive as those of any of the professionals
cited as examples by the panel in Owsley. For these reasons, we
30
find that the Daley Plaintiffs do not satisfy the education prong
of the Learned Professional exemption.
Second, the Daley Plaintiffs’ jobs lack the consistent
exercise of discretion and judgment required to satisfy the
discretion prong of the Learned Professional exemption. In the
context of discussing the discretion exercised by trainers, the
Owsley panel noted that paramedics/EMTs did not exercise the same
type of discretionary judgment as trainers “because paramedics
work on a daily basis with their supervising physicians under the
expectation of physician intervention immediately following
emergency treatment.” Owsley, 187 F.3d at 527.
In his affidavit, Dr. David Persse, current Director of
Emergency Medical Services for the City of Houston, explains the
scope of the Daley Plaintiffs’ work. Department EMS workers
follow either protocols or standing orders at all times.
Standing orders apply only when communication with a supervising
physician has not been established. According to Persse, these
orders “strictly define the actions, techniques, or drug
administration that may be implemented” by the EMS workers.
Although an EMS employee uses some discretion when selecting
which particular standing order to apply, he is not permitted to
exercise discretion when acting under a particular standing
order. Protocols, on the other hand, are applicable when
communication has been established with a supervising physician
so that the physician is providing on-line medical direction.
31
These protocols allow for more discretion but require physician
supervision to implement. The medical director, not the EMS
workers, is responsible for establishing all protocols and
standing orders. These “highly specific medical protocols” and
the direct physician supervision of the EMS workers formed the
basis for the distinction made by this court in Owsley when we
held that athletic trainers exercised discretion while EMS
workers did not. 187 F.3d at 527.
We find that, although the Daley Plaintiffs use a small
amount of discretion in their jobs, this discretion is not
sufficient to establish “the consistent exercise of discretion
and judgment” required by the discretion prong of the Learned
Professional exemption. Thus, the City failed to satisfy its
burden of proof on either prong of this exemption. We find that
the Daley Plaintiffs do not fall within the Learned Professional
exemption as a matter of law.
H. The Executive/Administrative Exemption
In addition to the § 207(k) exemption and the Learned
Professional exemption, the City argues that the Daley Plaintiffs
fall within the Executive/Administrative exemption. The FLSA
provides that any employee “employed in a bona fide executive
[or] administrative . . . capacity” is exempt from the general
rule requiring overtime compensation. 29 U.S.C. § 213(a)(1). To
qualify as a bona fide executive, the employee must satisfy the
following requirements:
32
(1) The employee is compensated on a salary
basis at a rate of not less than $250 per
week; and
(2) The employee’s primary duty consists of
management of the enterprise in which he is
employed or of a customarily recognized
department or subdivision thereof; and
(3) The employee’s responsibilities include
the customary and regular direction of the
work of at least two or more other employees.
29 C.F.R. § 541.1(f). Whether an employee’s “primary duty
consists of management” is a fact-sensitive inquiry, but “[i]n
the ordinary case it may be taken as a good rule of thumb that
primary duty means the major part, or over 50 percent of the
employee’s time.” 29 C.F.R. § 541.103. Among other factors to
be considered are: (1) the relative importance of the managerial
duties as compared with other types of duties, (2) the frequency
with which the employee exercises discretionary powers, (3) the
employee’s relative freedom from supervision, and (4) the
relationship between the employee’s salary and the wages paid
other employees for the kind of nonexempt work performed by the
supervisor. See Quirk, 895 F. Supp. at 786 (citing Shockley v.
City of Newport News, 997 F.2d 18, 25-26 (4th Cir. 1993)).
To qualify as a bona fide administrative employee, the
employee’s primary duty must be the performance of office or non-
manual work directly related to management policies or general
business operations of his employer, including work requiring the
exercise of discretion and independent judgment. See 29 C.F.R.
§ 541.2. According to DOL regulations, “the exercise of
33
discretion and independent judgment involves the comparison and
the evaluation of possible courses of conduct and acting or
making a decision after the various possibilities have been
considered.” 29 C.F.R. § 541.207(a).
The City argues that paramedics and EMTs who hold the rank
of captain or higher (collectively the “Managers”) are employed
in a bona fide executive or administrative capacity. On this
record, we disagree. The City presented no evidence of the
actual job functions of the Managers. Instead, the City offered
the job descriptions for the captain, senior captain, district
chief, and deputy chief positions. Each description contains a
disclaimer that states: “Any one position may not include all of
the tasks listed, nor do the examples necessarily include all of
the tasks performed.” The City presents no affidavits,
testimony, or other evidence concerning the actual management
duties performed by employees in these three classifications or
the time spent on such management duties. A generic job
description tells us nothing about the specific duties of each
Manager or what percentage of time was spent on management
activities. Furthermore, a job description does not indicate
whether each Manager exercised discretion and if he did, to what
extent.
We have previously held that firefighters holding the rank
of “district chief” and “battalion chief” were exempt
administrative employees. See Smith v. City of Jackson, 954 F.2d
34
296, 299 (5th Cir. 1992). Similarly, the district court in Quirk
held employees holding the rank of “captain” to be exempt
executive employees. Quirk, 895 F. Supp. 773, 787-88. In both
of these cases, however, the evidence showed that those employees
had substantial management duties and exercised great discretion.
Here, we have no such evidence. The title of “‘captain’ provides
no guidance on whether the administrative exemption applies;
rather, a fact-sensitive inquiry . . . is required.” Dep’t of
Labor v. City of Sapulpa, 30 F.3d 1285, 1288 (10th Cir. 1994).
The evidence in this case does not satisfy the City’s burden of
proving the Executive/Administrative exemption. On the contrary,
the utter lack of probative evidence precludes us from holding
that the Managers fall within the Executive/Administrative
exemption as a matter of law.
I. Statute of Limitations
The City’s final defense is that the Daley Plaintiffs’
claims under the FLSA are barred by the statute of limitations.
The City raised this issue for the first and last time in its
Original Answer, filed on May 21, 1999, by stating “[a]fter
discovery, Defendant may be able to show that part or all of
Plaintiffs’ claims may be barred by the applicable statute of
limitations.” This vague statement does not specify the
particular statute under which the City planned to bring a
limitations defense. Furthermore, the statement does not state
with certainty that the City would assert such a defense at all.
35
According to a ruling made at a pre-trial conference held on
September 20, 1999, the parties completed discovery with respect
to the claims raised by the Daley Plaintiffs on November 30,
1999. Soon thereafter, the Daley Plaintiffs filed for summary
judgment, arguing that they were entitled to overtime
compensation under the FLSA. The City responded with its own
summary judgment motion asserting that the Daley Plaintiffs were
not entitled to overtime compensation because of the § 207(k)
exemption, the Learned Professional Exemption, and the
Executive/Administrative exemption. The City never raised a
limitations defense in its motion for summary judgment.
Furthermore, on February, 9, 2000, the City filed a Supplemental
Answer. This answer further developed two affirmative defenses
first asserted in the Original Answer: (1) the failure to state a
claim and (2) the exempt status of Plaintiffs under the FLSA.21
However, the Supplemental Answer did not elaborate on the City’s
assertion that Plaintiffs’ claims may be barred by a statute of
limitations.
Generally, on appeal, we do not address issues that were not
raised in the lower court. See United States v. Martinez, 228
F.3d 587, 589 n.3 (5th Cir. 2000). Thus, we will not consider
the City’s statute of limitations defense here. Moreover,
because we find that the City waived the limitations defense at
21
The Supplemental Answer also adds the affirmative
defense that Plaintiffs are not entitled to liquidated damages.
36
the district court level, we need not remand the issue to the
district court for further proceedings.
We have held that a party “‘in his opposition to a motion
for summary judgment cannot abandon an issue and then . . . by
drawing on the pleadings resurrect the abandoned issue.’”
Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1164 (5th Cir. 1983)
(citing Edward B. Marks Music Corp. v. Continental Record Co.,
222 F.2d 488, 492 (2d Cir. 1955)).22 In Hargrave, the third-
party plaintiff, in its initial third-party complaint, asserted
three alternative grounds for recovery: alter ego liability,
successorship liability, and contribution/indemnity liability.
See 710 F.2d at 1163. When the defendant moved for summary
judgment, the plaintiff never raised the theories of
successorship liability or contribution/indemnity. See id. at
1163-64. In fact, the plaintiff never mentioned before the trial
court “a single fact that would trigger a genuine issue on these
theories.” Id. Ultimately, this court found that the plaintiff
22
See also Stephens v. C.I.T. Group/Equip. Fin., Inc., 955
F.2d 1023, 1026 (5th Cir. 1992) (finding that the defendant
waived its limitations defense at the trial court level because
“aside from urging a general statute of limitations defense in
its answer, [the defendant] never mentioned limitations in the
trial court proceedings”). Cf. Teamsters’ Steel Haulers Local
Union No. 800 v. Lakeshore Motor Freight Co., 484 F. Supp. 925,
929-30 (W.D. Penn. 1979) (holding that “defendants do not waive
the statute of limitations defense where it is presented by the
pleadings even if excluded from a summary judgment motion). In
Teamsters’, the defendants avoided waiver by asserting the
limitations defense before the trial court in a petition for
reconsideration of the grant of summary judgment.
37
“abandoned its alternative theories of recovery by failing to
present them to the trial court,” and we affirmed the trial
court’s grant of summary judgment in favor of the defendant. Id.
at 1164-65.
The facts presented by this case resemble those of Hargrave.
The City weakly asserted a possible limitations defense in its
Original Answer. When confronted with the Daley Plaintiffs’
motion for summary judgment, however, the City never re-asserted
its limitations defense. Moreover, the City’s Supplemental
Answer omitted any mention of a limitations defense. The vague
language in the City’s Original Answer coupled with the complete
absence of the issue in all subsequent documents filed with the
district court convinces us that the City abandoned its
limitations defense. As the First Circuit noted in Violette v.
Smith & Nephew Dyonics, Inc., 62 F.3d 8 (1st Cir. 1995), it is
clear in this case that the City’s limitations defense “flickered
but once, dimly, on the radar screen of this litigation and then
disappeared forever.” 62 F.3d at 11.
I. Conclusion of FLSA Issues
We find that the Daley Plaintiffs are not exempt from the
overtime compensation provisions of the FLSA under the § 207(k)
exemption for fire protection employees, the Learned Professional
exemption, or the Executive/Administrative exemption. We also
find that the City waived its statute of limitations defense.
Thus, the Daley Plaintiffs are entitled to overtime compensation
38
for hours worked in excess of forty during a seven-day workweek.
See 29 U.S.C. § 207(a)(1). Accordingly, we REVERSE the district
court’s judgment and REMAND the case to the district court for a
determination of the amount of overtime compensation owed by the
City to the Daley Plaintiffs.
IV. Attorney’s Fees
On July 11, 2000, the district court awarded $2,800,000 in
attorney’s fees to Troy Blakeney, attorney for the Vela and Daley
Plaintiffs. The City requests that this court reform the
attorney’s fees to $557,500. This court reviews the district
court’s award of attorney’s fees for abuse of discretion and its
findings of fact supporting the award for clear error. Strong v.
BellSouth Telecomms. Inc., 137 F.3d 844, 850 (5th Cir. 1998).
“Under the clearly erroneous standard, [this court] will reverse
only if [it has] a definite and firm conviction that a mistake
has been committed.” Canal Barge Co., Inc. v. Torco Oil Co., 220
F.3d 370, 375 (5th Cir. 2000). Both parties stipulate that the
Texas Supreme Court’s decision in Arthur Andersen & Co. v. Perry
Equip. Corp., 945 S.W.2d 812 (Tex. 1997), governs the award of
attorney’s fees in this case.23 In Arthur Andersen, the Texas
Supreme Court identified the following factors to be considered
23
We look to state law in this analysis of attorney’s fees
because the fees were awarded in the suit instituted by the Vela
Plaintiffs. In that case, the Vela Plaintiffs asserted state law
claims for overtime compensation.
39
when determining the reasonableness of an award of attorney’s
fees:
(1) the time and labor required, the
novelty and difficulty of the questions
involved, and the skill required to
perform the legal service properly;
(2) the likelihood . . . that the
acceptance of the particular employment
will preclude other employment by the
lawyer;
(3) the fee customarily charged in the
locality for similar legal services;
(4) the amount involved and the results
obtained;
(5) the time limitations imposed by the
client or by the circumstances;
(6) the nature and length of the
professional relationship with the
client;
(7) the experience, reputation, and
ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or
contingent on results obtained or
uncertainty of collection before the
legal services have been rendered.
945 S.W.2d at 818.
Each party submitted an expert report to the district court
concerning the proper amount of attorney’s fees. The court held
a hearing on the issue, and the transcript from that hearing
shows that the district court considered the Arthur Andersen
factors.24 Before applying the factors, the district court found
24
The district court described the factors as the Johnson
factors, referring to Johnson v. Ga. Highway Express, Inc., 488
F.2d 714, 717-19 (5th Cir. 1974). We have recently stated that
the Johnson factors are “comparable” to the Arthur Andersen
factors. See Mid-Continent Cas. Co. v. Chevron Pipe Line Co.,
205 F.3d 222, 232 (5th Cir. 2000).
40
that “if a contingent fee were to be applied, it would be applied
to the approximate ten million dollars for the aggregate
recovery,” which includes overtime compensation as well as
corresponding pension contributions made by the City to
Plaintiffs’ individual pension accounts. Regarding this
decision, the district judge stated that “[i]n most cases,
pension contributions are a substantial part of compensation, and
there’s no legal or economic logic in treating direct or indirect
compensation differently.” While we find no binding authority on
point, the federal district court for the Southern District of
New York has included pension plan contributions as part of the
gross recovery subject to a contingency fee. See Puerto v. Local
One, Amalgamated Lithographers, No. 87 CIV. 7681 (RWS), 1991 WL
33341, at *3 (S.D.N.Y. Mar. 4, 1991). That court reasoned that
“there is no apparent justification for excluding this portion of
the settlement, which clearly represented a financial gain for
[the plaintiff], from the gross recovery subject to the
contingency fee.” Id. We find the court’s reasoning in Puerto
persuasive. Therefore, in this case, the district court’s
finding that the total recovery includes the pension
contributions made by the City to Plaintiffs’ individual pension
accounts is not clearly erroneous.
The district court separately considered each Arthur
Andersen factor at the hearing on attorney’s fees. When
considering the first factor, the district court stated that the
41
“time required was substantial” because “the intricacies of each
worker’s situation had to be identified, specified and, on
occasion, clarified.” The court found the novelty and difficulty
of the questions involved to be “moderate” and the skill required
to be “a high level of managerial lawyering.” More specifically,
the district judge found that “[t]he skill in managing the
precise factual evaluation of 2600 cases and the skill that
[Blakeney] brought to the labyrinth of governmental employee
relations law was of the highest order required.” In its brief,
the City argues that the legal issues in this case are not
complicated. However, when requesting more money from the City
Council to fund the litigation, the City Attorney thrice
emphasized the complexity of the litigation “resulting from
claims under federal, state and local law, as well as the volume
of documents, the unforeseen magnitude of the mechanics of
computing the various components of each of the 2600 Plaintiffs’
claims and the number of issues involved.”
Regarding the second Arthur Andersen factor, the trial court
noted that Blakeney was “unable to represent his principal client
by reason of his accepting this case.” In the Plaintiffs’ fee
application, however, Blakeney states that “this factor does not
weigh for or against the fee award in this case.” Because of the
conflicting evidence, we consider this factor to be a neutral
factor. In applying the third factor, the district court found
that Blakeney’s 30% contingency fee “is a reasonable rate.” In
42
fact, the court stated that “a 30 percent contingent fee in labor
litigation against the Government is on the low side,” and “the
customary contingency is likely to have been more like 35 to 40
percent.” Pursuant to factor four, the district court considered
the large recovery awarded to Blakeney’s clients along with “the
significance of the dollars to the individuals separately and
aggregately.”
The district court noted that factors five and six are
neutral in this case. Regarding factor seven, the district court
stated that “Mr. Blakeney is extensively experienced in his
factual field and his legal field and has a reputation
commensurate with his experience and his high ability.” This is
“reflected in what his customary hourly rate, actual or imputed,
would be.” While considering factor eight, the district court
suggested that it is proper for a lawyer on a contingency fee
case to estimate his fee per hour to be higher than a lawyer on a
fixed fee case. Blakeney’s estimate was approximately $100
higher than the fee paid by the City to its attorneys, but this
is justified given the risk of receiving no fee at all.
Furthermore, the district court found that the paralegals’
work on the case “was of a more complex and tedious nature” than
usual. Paralegal work can only be recovered as attorney’s fees
if the work is legal rather than clerical. See Allen v. U.S.
Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982). After
considering the expert reports submitted by the parties and
43
Blakeney’s testimony at the hearing on attorney’s fees, the
district court determined that the numerous hours of paralegal
work were legal in nature and recoverable as attorney’s fees.
Nothing in the record suggests that this finding was clearly
erroneous. The district court entered an award of $2,800,000
(roughly 30% of the total recovery) as attorney’s fees.25
The City contends that Blakeney’s application for attorney’s
fees is vague in that it does not “offer any support for the
reasonableness of the number of hours claimed by Blakeney for
himself, his associates, or for his paralegals and staff.” The
district court, however, based its award of attorney’s fees on
the number of hours claimed in Blakeney’s fee application. We
must accept the factual findings upon which the district court
bases its award of attorney’s fees, including the determination
of the number of hours reasonably expended on the litigation,
unless they are clearly erroneous. See La. Power & Light Co. v.
Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). The district court
adopted many of the facts from the expert report on attorney’s
fees submitted by Plaintiffs. The court’s decision not to adopt
facts from the City’s expert opinion does not make the court’s
findings clearly erroneous. See Brady v. Fort Bend County, 145
F.3d 691, 716 (5th Cir. 1998) (finding no abuse of discretion in
25
This total award included: (1) $2,700,000 for actual
fees, calculated using an imputed hourly rate, and (2) $100,000
as a bonus for risk.
44
setting fee award based, in part, on the district court’s
knowledge of the facts and familiarity with the case and quality
of attorneys’ work over several years). Given the evidence
presented in this case, the district court’s findings of fact are
not clearly erroneous, and the award of attorney’s fees is not an
abuse of discretion. Accordingly, we AFFIRM the district court’s
award of $2,800,000 in attorney’s fees.
V. Remaining Issues Are Moot
On September 24, 1998, the district court entered partial
judgment in favor of the Vela Plaintiffs on several specific
issues relating to overtime compensation. The parties contest
three of those issues: (1) the district court’s order directing
the City to pay damages for wages between January 1, 1997 and May
28, 1997 to the fire suppression personnel (“Issue 1"); (2) the
district court’s conclusion that overtime for the fire
suppression personnel should be calculated on an eighty-hour work
cycle (“Issue 2"); and (3) the district court’s conclusion that
the City improperly worked dispatch and arson personnel on an
eight-day work cycle (“Issue 3"). We find that these three
issues are moot because the parties have already settled the
underlying claim.
Our jurisprudence dictates that our duty as a court is
limited to making decisions on actual controversies. See Oil,
45
Chem. & Atomic Workers Int’l Union v. Missouri, 361 U.S. 363, 367
(1960). We have no power to “give opinions upon moot questions
or abstract propositions, or to declare principles or rules of
law which cannot affect the matter in issue in the case before
[us].” Id. (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).
Generally, settlement of a dispute renders moot any case growing
out of that dispute. See ITT Rayonier Inc. v. United States, 651
F.2d 343, 345 (5th Cir. 1981). In such a situation, we find the
claims moot “even if the parties remain at odds over the
particular issue they are litigating.” Id. We have repeatedly
recognized that settlement between the parties renders an appeal
moot and requires dismissal of the issues that have been settled.
See, e.g., Oxy USA, Inc. v. Babbitt, 122 F.3d 251, 258 n.12 (5th
Cir. 1997); In re Talbott Big Foot, Inc., 924 F.2d 85, 87-88 (5th
Cir. 1991).
In this case, the record contains no final judgment ordering
the City to pay overtime to the fire suppression personnel.
Nonetheless, pursuant to City Council Motion No. 1999 1949, the
City paid fire suppression personnel overdue wages for 1997
(Issue 1) and overtime compensation based upon an eighty-hour
work cycle (Issue 2). This Motion, approved and adopted on
November 9, 1999, states “MOTION by Council Member Boney that the
recommendation of the City Attorney, for settlement of the
overtime claims . . . be adopted, and settlement of these claims
in the total amount of $4,436,819.12 . . . [is] hereby approved
46
by the City Council.”26 With respect to Issue 3, the district
court entered an Agreed Partial Summary Judgment, signed by both
parties and the judge, on May 28, 1999. The judgment states that
upon payment of “an agreed upon sum” to the individual
plaintiffs, their claims would be dismissed with prejudice. This
court has stated that it will not entertain an appeal by a party
from an order to which that party agreed. See Tel-Phonic Servs.,
Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992).
Furthermore, a second City Council motion approved “settlement of
lawsuit . . . in the amount of $5,489,590.62 for overtime damages
. . . .” pursuant to the Agreed Partial Summary Judgment. Thus,
the City paid the Vela Plaintiffs just under ten million dollars
(plus pension contributions and statutory interest attributable
to that amount) for overtime work. Given this fact, we find the
City’s contention that there was no settlement implausible. The
two City Council motions refer to a “settlement.” The Agreed
Partial Summary Judgment strongly suggests a settlement. For
these reasons, we find that Issues 1, 2 and 3 have been settled
26
The City objects to this court’s consideration of the
motion because it is unauthenticated and not in the appellate
record. This court has stated that it is appropriate for us to
take judicial notice of a city ordinance on appeal even if it was
not introduced into the trial records. See In re Weller Creek,
Ltd., 867 F.2d 228, 238 n.14 (5th Cir. 1989) (citing United
States v. City of Miami, 664 F.2d 435, 443 n.16 (5th Cir. 1981))
(“The power of a federal court to take judicial notice of
legislative facts is less constrained than its power to take
notice of adjudicative facts.”); see also ITT Rayonier, 651 F.2d
at 345 n.2 (noting that when a settlement and dismissal is not in
the record, the court may take judicial notice of it).
47
by the parties. Therefore, we have no jurisdiction to decide the
issues. See In re Talbott Big Foot, Inc., 924 F.2d at 87-88.
VI. Conclusion
For all the foregoing reasons, we REVERSE the district
court’s grant of summary judgment in favor of the City and REMAND
for entry of judgment in favor of the Daley Plaintiffs following
a determination of the amount of overtime compensation owed by
the City to the Daley Plaintiffs. We AFFIRM the district court’s
award of attorney’s fees to the Vela Plaintiffs. The costs of
this appeal shall be borne by the City.
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