Anthony Lang v. City of Omaha

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 98-3445
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Anthony Lang; Mark Lane; *
Jim Love; Shaya Love; Bill Roberts; *
Phil Rosado; Jim Wisinski; *
Anthony Smith, *
*
Appellants, * Appeal from the United States
* District Court for the District of
v. * Nebraska.
*
City of Omaha, Nebraska, *
A Municipal Corporation, *
*
Appellee. *

___________

Submitted: April 23, 1999

Filed: August 13, 1999
___________

Before BEAM and HANSEN, Circuit Judges, and MOODY,1 District Judge.
___________

BEAM, Circuit Judge.

1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
 City paramedics sued their employer under the Fair Labor Standards Act (FLSA)
for allegedly due, yet unpaid, overtime compensation. The district court2 found that the
paramedics fell within the overtime exemption for firefighters and law enforcement
personnel, and entered judgment for the city. We affirm.

I. BACKGROUND

The City of Omaha (City) provides emergency medical service through its fire
department. The plaintiffs in this case are former and current fire department
paramedic employees. All paramedics employed by the City are first hired as
firefighters. All firefighters receive the same basic training. This includes fire
suppression, rescue, and extraction techniques. They also receive basic emergency
medical (EMT) training. After the initial training, they are assigned to a fire engine for
one to two years to work as firefighters before they are allowed to transfer to a rescue
squad, or medical unit. In order to be a paramedic, an individual must have
approximately nine additional months of extensive medical training over and above the
basic EMT training received by all firefighters. Paramedics learn to handle severe
trauma cases, cardiac problems, and to employ more sophisticated and invasive
procedures to assess and stabilize a victim before and during transport to a hospital.
Medical units are based in fire stations. During the period in question, October
1994 to January 1996, medical units were dispatched to accident settings, traffic
problems, crime scenes, in response to requests for emergency medical assistance, and
to fire scenes where a working fire was reported. While at a fire, a paramedic's primary
duty is the medical care of firefighters as well as civilians who may have been injured
by the fire. Once the medical area is established just outside the fire perimeter, the
paramedics essentially stand by, ready to treat an injury or exhaustion. The "Incident
Commander" in charge of a fire scene is authorized to use the paramedics for other

2
The Honorable William G. Cambridge, United States District Judge for the
District of Nebraska

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tasks if required. When responding to accident and medical calls, rescue squads are
often accompanied by a fire engine. While together at an accident or medical scene,
a paramedic's primary task is the treatment of a victim. It is the firefighters who secure
the area, eliminate any actual or potential hazards and perform any actual rescue or
extrication required (for example, insuring that a car will not catch on fire, and
removing the victim from the wreckage). Paramedics are also dispatched with the
police to auto accident and crime scenes.

In addition to the initial training, paramedics, when not out on calls, participate
in firehouse "schools" where firefighting equipment or techniques are introduced or
reviewed. They also receive frequent medical training and evaluation to maintain their
ratings. Paramedics may also fill, or be called in to fill, a vacant position on a fire
engine for a shift. Paramedics, like firefighters, work twenty-four hour shifts. A typical
day begins with an inventory of equipment and inspection of the rescue squad. The
remainder of the shift, aside from calls, is occupied with maintenance of the vehicle and
equipment, training, shared housekeeping duties with firefighters, waiting for calls, and
sleeping.

As a general rule, under the FSLA, employees are entitled to overtime pay in the
form of one-and-one-half times their regular hourly rate for each hour worked over
forty in a work week. See 29 U.S.C. § 207(a). However, Congress created an
exemption for public employees engaged in fire protection or law enforcement
activities. This exemption allows a public employer to schedule fire employees for up
to 216 hours of work in a twenty-eight day period before becoming liable for overtime
compensation (171 hours for law enforcement personnel). See id. § 207(k); 29 C.F.R.
§ 553.201. The plaintiffs brought this action claiming that, during the period in
question, they were not engaged in "fire protection activities" for purposes of section
207(k) and were thus entitled to overtime payments for all hours worked over forty per
week. After a bench trial, the district court, ruling from the bench, found that the

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paramedics were engaged in fire protection activities and therefore exempt from the
forty-hour rule.

II. DISCUSSION

The crux of the plaintiffs' argument is that they cannot be considered "engaged
in fire protection activities" because most of the calls to which they respond are not
fire-related, and when they are at a fire scene, their duties involve only medical care
and not firefighting. We review the factual findings of the district court for clear error,
and conclusions of law de novo. See Reich v. Stewart, 121 F.3d 400, 404 (8th Cir.
1997).

The statutory section creating the partial overtime exemption does not itself
define what is meant by "employee in fire protection activities." However, regulations
promulgated by the Department of Labor provide some guidance. The term includes:

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 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). This regulation provides two ways an employee may be
considered to be engaged in fire protection activities. The first is the explicit four-part

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test. The second is the "integral part" inquiry.3 If the requirements of section

3
The phrase "integral part" is not defined anywhere in the regulations. There is,
however, a reference to section 553.215. This section provides in pertinent part:

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 sections 7(k) and 13(b)(20) 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.

29 C.F.R. § 553.215(a).

The obvious difficulty lies in the fact that section 553.215 applies to paramedics
employed by a "public agency other than a fire protection or law enforcement agency,"
which would appear to leave no definition of "integral part" for paramedics employed
by a fire department. The plaintiffs attempt to create a question as to whether the
section 553.215 test can be applied to them. However, in Christian v. City of
Gladstone, this court agreed with the reasoning in Alex v. City of Chicago, 29 F.3d
1235, 1241-42 (7th Cir. 1994), and held that section 553.215 can be applied to
paramedics employed by fire departments. 108 F.3d 929, 932 n.2 (8th Cir. 1997). To
hold otherwise would subject paramedics to different standards for the exemption
simply because emergency medical services are administered by a different agency,
even though the employees' duties are exactly the same. See Justice v. Metropolitan
Gov't of Nashville, 4 F.3d 1387, 1395 (6th Cir. 1993) ("Congress did not intend for an
organizational structure, rather than job function and duties, to decide the applicability
of federal wage provisions.")

Either the four-part test of section 553.210 or the integral part test of 553.215
can be used to establish that employees fall within the exemption. The district court
found that the plaintiffs satisfied both the four-part test of section 553.210(a) and the

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553.210(a) are satisfied, the second step in evaluating an employee's exempt status is
a quantitative analysis under 29 C.F.R. § 553.212(a) (no more than twenty percent of
employee's time may be spent in non-exempt activities).

Our analysis and application of the section 553.210(a) four-part test is governed
by our recent case, Christian v. City of Gladstone, 108 F.3d 929 (8th Cir. 1997). As
in this case, Christian involved trained firefighters who worked for a fire department
as paramedics. They responded to fires, accident scenes, and crime scenes, though the
majority of their calls were medical emergencies unrelated to fire or police calls. See
id. at 931. We held that the paramedics in Christian satisfied the four-part test and
were thus exempt from the forty-hour work week limitation.

There is no serious contention that the plaintiffs here do not meet the first three
requirements. They are employed by an organized fire department, have received all
training required by law to perform firefighting, and they are sworn and trained
firefighters and thus have the legal authority and responsibility required by the third part
of the test. See id. at 932.

The plaintiffs argue that the fourth element of the test is not satisfied because
they do not perform "activities which are required for, and directly concerned with, the
prevention, control or extinguishment of fires." They attempt to distinguish their
activities at fire scenes from those of the plaintiffs in Christian. In Christian, the
paramedics would engage in fire suppression when they first arrived at a scene, but
would then leave when they could in order to be available for other calls. See id. at

two-part test of 553.215(a), thus falling within the exemption no matter which test is
applied. Because we hold that the plaintiff paramedics satisfy the four-part test, we
need not reach the issue of the two-part integral test. See generally Christian, 108 F.3d
at 932 n.2.

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931. Although there was some dispute at trial as to the established role of Omaha
paramedics at fires, the plaintiffs testified that their only duty was medical support, and
they were in fact ordered not to participate in actual firefighting so as to remain
available for medical care and to keep from becoming contaminated. Plaintiffs rely on
our statement in Christian that paramedics "who are not permitted to fight fires or enter
a burning building and who are only dispatched to fires to treat injured individuals are
not engaged in fire protection activities under the four-part test." Id. at 932. This
proposition however, was taken from Nalley v. Mayor and City Council of Baltimore,
796 F. Supp. 194 (D. Md. 1992), in which the paramedics could not have satisfied the
four-part test because they were not trained in firefighting or rescuing victims from
fires, and were not authorized to fight fires. See id. at 200.

Even if the plaintiffs performed nothing other than medical duties at a fire, they
nonetheless fall within the exemption. We agree with the district court's conclusion that
"[t]he plaintiffs' contention overlooks the fact that standby medical support is an
activity which is required for and directly concerned with the control or extinguishment
of fires . . ." Fighting fires is a dangerous, and at times, complex task. Simply because
the division of labor and the development of specialties at a fire scene relegates the
paramedics to a medical support function does not mean that they are any less directly
concerned with the firefighting effort than the individual who runs into a burning
building with a hose.

Not only are the plaintiffs present at a fire for medical support, they are also
sworn and trained firefighters who can, if the situation requires, be pressed into a
firefighting function outside their medical role. Being available as back-up firefighters
certainly places plaintiffs in a status that directly concerns itself with the extinguishment
of fires. Further, section 553.210(a) states that exempt activities also include the
incidental activities with no direct involvement in firefighting, such as housekeeping
and maintenance. Even if the standby medical role of a paramedic is not that of a
directly involved firefighter, the rendering of medical aid (or being available to do so)

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constitutes a qualified incidental non-firefighting function. Thus, the paramedics are
engaged in "fire protection activity" for purposes of 29 U.S.C. § 207(k).

We now turn to the quantitative analysis. Regulations require that no more than
twenty percent of the employee's time be devoted to non-exempt work, that is to say,
work not related to fire protection activities. See 29 C.F.R. § 553.212(a). The
plaintiffs assert that, even if the four-part test of 553.215(a) is satisfied, the City failed
to establish that the plaintiffs devoted twenty percent or less of their time to "non-
exempt" activities. Like the paramedics in Christian, the plaintiffs here rely on
statistical evidence produced at trial which showed that a large majority of the
paramedic dispatches were medical calls unrelated to fires or law enforcement
activities. Time spent on these calls, they argue, is non-exempt. See O'Neal v. Barrow
County Bd. of Comm'rs, 980 F.2d 674, 681 (11th Cir. 1993).

We rejected this argument in Christian. After investigating the nature of non-
exempt activity in regard to ambulance and rescue personnel, we concluded that
responding to medical and accident calls unrelated to fires or automobile accidents was
exempt activity. See Christian, 108 F.3d at 933-34.

Providing paramedic services on accident and medical emergency calls
not stemming from a fire or car accident does not alter the nature of [the
paramedics'] duties or cause them to perform tasks unrelated to their job.
The district court thus erred by considering time spent on paramedic
activities not stemming from a fire or car accident as nonexempt.

Id. at 934. The paramedics in this case responded to fires and provided medical
services at those fires as well as on calls unrelated to fires. The district court properly
concluded that "[h]ere, as in the Christian case, nearly all of the plaintiffs' time was
spent on such activities, related training, support services, waiting for calls, and they
did not spend any time on activities unrelated to their firefighting or emergency medical

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service activities." All of these are exempt activities related to fire protection. See id.

III. CONCLUSION

The City carried its burden to show that the plaintiffs were engaged in fire
protection activities and did not spend more than twenty percent of their time in non-
exempt activities. The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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