PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1755
SHEAN EMMONS; JOHN GIBSON; KEVIN SMITH; BRIAN FANCHER;
CARLTON ACKISS; MICHAEL WINSLOW; CHRISTINE DOSMANN,
Plaintiffs – Appellants,
v.
CITY OF CHESAPEAKE,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Lawrence Richard Leonard, Magistrate Judge. (2:18-cv-00402-LRL)
Argued: October 27, 2020 Decided: December 4, 2020
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Motz
and Judge Agee joined.
ARGUED: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for
Appellants. Randy C. Sparks, Jr., KAUFMAN & CANOLES, P.C., Richmond, Virginia,
for Appellee. ON BRIEF: Sharon Kerk Reyes, KAUFMAN & CANOLES, P.C., Norfolk,
Virginia; Jacob P. Stroman, Melissa A. Hamann, OFFICE OF THE CITY ATTORNEY,
Chesapeake, Virginia, for Appellee.
WILKINSON, Circuit Judge:
The appellants in this case are Battalion Chiefs who have sued their employer, the
City of Chesapeake Fire Department (CFD), for non-compliance with the overtime pay
requirement of the Fair Labor Standards Act (FLSA). This requirement represents a
general guarantee of overtime pay for employees working over forty hours a week. 29
U.S.C. § 207(a)(1). This general guarantee is, however, subject to a number of exemptions
for employees working in managerial, administrative, and professional positions. 29
U.S.C. § 213(a)(1). The Battalion Chiefs (BCs) argue that none of these exemptions apply
to them, both on their own terms and because the BC position falls under a regulatory
exception, 29 C.F.R. § 541.3(b), that categorically withdraws certain first response workers
from the exemptions’ scope.
We disagree. Section 541.3(b) does not categorically except the plaintiff BCs from
the FLSA’s system of exemptions, because the BCs are, first and foremost, managers
within the CFD, not frontline firefighters. Nor do the plain terms of the FLSA’s
exemptions fail to apply. The BCs are executive employees under the FLSA, and it is on
this basis that we affirm the district court’s grant of summary judgment in favor of the
CFD.
I.
The Chesapeake Fire Department consists of 449 employees spread across five
operational divisions. J.A. 664. The CFD maintains an effective organization through the
use of a well-defined, hierarchical command structure. The most basic distinction within
this hierarchy is that between “chief officers” and everyone else. The “chief officer”
2
category comprises, in order of rank, the Fire Chief, the Deputy Fire Chief, the Division
Chiefs, and finally, the BCs. Only sixteen CFD employees hold a chief officer position
and, of these sixteen, ten are BCs in the Fire Operations Division. Among the non-chief
officers, there is a further bifurcation between Company Officers, who have attained the
rank of either captain or lieutenant, and firefighters, who range in their ranks from “master”
to “trainee.”
This command structure allocates between three and four BCs to each of the CFD’s
three fire battalions. Each battalion consists of five fire stations and their personnel. The
upshot of this structure, in terms of command, is that each BC bears responsibility for
between six and seven Company Officers and, indirectly, for the thirty-one to forty-six
firefighters under them. Each BC works seven 24-hour shifts every twenty-one days.
The in-station duties that BCs must perform are extensive. Most of these duties fall
under one of five heads: staffing; supervision; administration; budgeting; or hiring. In the
context of the Fire Operations Division, “staffing” refers to the process of solving, each
and every day, the problem of ensuring an appropriate match between key pieces of
emergency response equipment, like a battalion’s fire engines, and the firefighters qualified
to operate them. Staffing can require shifting both firefighters and equipment among units
and even among stations. It also requires close attention to shifting leave schedules and to
variations in operational needs and operational readiness.
In making these staffing decisions, however, BCs are not constantly reinventing the
wheel. Rather, they execute an official CFD staffing policy. This staffing policy contains
a detailed set of directives that provides for several common contingencies. For example,
3
the staffing policy indicates that Engines 6, 10, 11, and 13 must be staffed by a minimum
of four firefighters, and that, if such staffing is not initially available and no fill-ins can be
scheduled on those Engines, other four-member Engines should be reduced to three, so that
the needed staff can be reassigned. Which members to pull from which other Engines,
though, is left to the BC’s discretion. As this example suggests, the execution of the
staffing policy is anything but robotic. It requires the prudent decision-making of BCs with
a keen understanding of the firefighters under their command and their battalion’s
“operational needs.” J.A. 642–43. It also requires awareness of the impact of staffing
decisions, which can implicate overtime pay, on the CFD budget.
Also within the sphere of BCs’ staffing duty is the duty to review and decide on
requests for leave. As above, an official CFD leave policy sets the broad contours of BCs’
decision-making, without eliminating the important role of BC discretion. BCs, who must
be ever-mindful of their battalion’s staffing necessities, exercise this discretion over
matters such as whether to grant leave requested after the official deadline, whether to
permit sick leave on the basis of “extenuating circumstances,” J.A. 898, and how to
schedule their own leave time.
A BC’s supervisory responsibilities consist in evaluating the performance of the
firefighters under his command, training them, and, when necessary, administering or
recommending discipline. As for evaluations, BCs evaluate Company Officers
individually on their overall performance during a given year. They also meet with the
Company Officers regularly to discuss how said Officers handled particular emergency
responses; the purpose of these station visits is to identify areas of strength and weakness
4
and to provide the “coaching and feedback” necessary for improvement. J.A. 437–41.
Looking further down the chain of command, BCs also review Company Officer
evaluations of lower-ranking firefighters, monitor the progress of new recruits, and assess
the mental preparedness of their entire battalions for emergency response, J.A. 586.
The BCs also manage the training of those under their authority. The training
matrix—a table describing what types of training are required of every CFD employee,
based on his rank and assignment—and the training schedule come to the BCs as a given,
from higher up in the CFD. BCs do, however, possess the discretion to add training drills
to the schedule, based, for example, on their impressions from one of the aforementioned
station visits. BCs attend drills to ensure their satisfactory performance and to evaluate the
performance of individual firefighters. If a drill is not performed with sufficient skill or
effort, a BC may require its repetition.
The BCs also exercise disciplinary authority. This authority extends to addressing
infractions of departmental regulation through verbal counseling or reprimand, or through
the issuance of a form disciplinary letter. To sanction misconduct through suspension,
demotion, or termination, however, a BC must first gain the approval of individuals higher
up in the CFD. Disciplinary recommendations that BCs do submit are often but not always
adopted. See J.A. 361 (BC Ackiss testifying he could not “recall a time when [his
disciplinary] recommendation[s] were not approved”); see also J.A. 1332.
Finally, BCs make hiring and advancement recommendations to their superiors.
BCs sometimes make these recommendations pursuant to their participation in hiring
panels, on which at least one Division Chief or BC customarily sits. They make others
5
outside of the panel setting, such as, for example, when BCs identify officers well-suited
to serve as Acting Battalion Chiefs. The BCs recommendations on advancement to Acting
Battalion Chief, it should be noted, have all been adopted without exception.
In addition to all of their in-station duties, BCs have a role to play in the CFD’s
direct emergency response. Of all the emergencies to which the CFD responds, BCs
themselves are dispatched, on average, only to approximately one out of every ten. The
ten percent of incidents to which BCs are dispatched tend to be complex, and include such
emergencies as: commercial fires, residential structure fires, aircraft accidents, cardiac
arrest events, and flammable liquid spills or leaks. In contrast, captain-rank Company
Officers are dispatched to approximately thirty-three percent of all calls, and lieutenant-
rank Company Officers are dispatched to sixty-nine percent.
A BC’s position authorizes him to exercise discretion over dispatches that, were he
a Company Officer, he would simply need to take as given. A BC may, for example,
remove himself from service, so as not to be available for dispatch at all, for several
consecutive hours without the prior approval of a superior officer. Furthermore, even upon
receiving a dispatch, it is within a BC’s authority to cancel the entire call, if he determines
that response is unnecessary. BCs may also add themselves to a call, again solely at their
own discretion.
BCs travel to the scene of emergencies in command vehicles outfitted with a radio
suite, computers, and command boards, as well as other emergency response equipment,
such as a self-contained breathing apparatus, lights, and sirens. These vehicles do not
contain foam concentrate, attack hoses, or supply hoses. J.A. 1257. While en route, BCs
6
are already analyzing data received from the dispatch to formulate a response plan. Even
before arriving, a BC has the authority to call additional units to the scene or cancel
responding units, as the BC deems fit. BCs arrive at the scene wearing personal protective
equipment.
And once they do arrive at the scene, BCs may assume command over all inferior
officers who may have already arrived. Any Company Officer already functioning as the
Incident Commander is typically relieved of that status, at which point the BC returns to
his command vehicle to manage the incident. The nature of the BC’s activity under these
circumstances is to coordinate the response, so as to maximize the response team’s
achievement of “tactical priorities,” which include: “provid[ing] for life safety by removing
endangered occupants and treat[ing] the injured”; “stabiliz[ing] the incident”;
“conserv[ing] property”; and “provid[ing] for the safety, accountability, and welfare of
personnel.” J.A. 167. Consequently, the BC does not typically engage in any hands-on
firefighting, such as handling hoses, climbing ladders, or entering burning structures.
Like all other chief officers, BCs do not receive overtime pay. The annual salaries
of the ten BCs that the CFD employed in 2017 to 2018 were all in excess of $455 per week,
and averaged $98,774.65 per year, with a low of $78,141.98 and a high of $112,126.02.
J.A. 1314–15. Captains, who do receive overtime pay, had an average gross pay of
$97,980.65 during the same period.
7
In 2018, the plaintiff BCs filed suit against the CFD under the Fair Labor Standards
Act (FLSA) and Virginia Gap Pay Act for unpaid overtime and gap wages. 1 J.A. 14–15.
The district court granted the parties’ joint motion to bifurcate discovery into a liability and
a damages phase. At the conclusion of discovery as to liability, both parties moved for
summary judgment. The district court granted summary judgment in the CFD’s favor,
finding that management, not first response, was the BCs’ primary duty. The BCs were
not, therefore, excluded from the executive exemption to the FLSA’s overtime
requirement.
II.
This court reviews a district court’s grant of summary judgement de novo, Morrison
v. County of Fairfax, 826 F.3d 758, 765 (4th Cir. 2016), drawing all reasonable inferences
in favor of the non-moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50
(1986). Summary judgment is appropriate where there is no dispute of material fact and
judgment is proper as a matter of law. Id. The determination of an employee’s primary
duty, central to the dispute between the parties here, presents a mixed question of fact and
law. The precise duties of the BC position are a matter of fact; whether those facts will
support an inference that the BCs’ primary duty is management or frontline firefighting is
a matter of law. The Supreme Court articulated this division clearly in Icicle Seafoods,
Inc. v. Worthington, 475 U.S. 709, 714 (1986): “The question of how the respondents spent
their working time on board the Arctic Star is a question of fact. The question whether their
1
On appeal, the BCs do not challenge the district court’s determination that their claims
under the Virginia Gap Pay Act stand or fall with their claims under FLSA.
8
particular activities excluded them from the overtime benefits of the FLSA is a question of
law.”
III.
The FLSA requires, in relevant part, that employers pay their employees at a rate
equal to one-and-a-half times their standard hourly rate for every hour they work in excess
of forty during a given week. 29 U.S.C. § 207(a)(1). This provision serves the FLSA’s
stated purpose of remedying “labor conditions detrimental to the maintenance of the
minimum standard of living necessary for health, efficiency, and general well-being of
workers.” 29 U.S.C. § 202. The FLSA, however, also articulates exemptions to the general
rule of § 207, which function to ensure that the limiting principles, no less than the
aspirational ones, in the FLSA’s stated purpose are respected. Among these exemptions
are those contained in § 213(a)(1). This section narrows § 207’s scope, so as to exclude
any worker “employed in a bona fide executive, administrative, or professional capacity.”
Id. § 213(a)(1). Congress, however, chose not to clarify the meaning of § 213(a)(1)’s key
terms within the FLSA itself; rather, it entrusted this task to the Department of Labor,
which has, over time, promulgated a series of regulations to that end.
At the center of this case—about whether Section 213(a)(1)’s executive exemption
covers the CFD BCs—is interpretive regulation 29 C.F.R. § 541.3(b) (the First Responder
Regulation). The First Responder Regulation categorically excludes certain classes of
worker from the FLSA’s exemptions, including inter alia: “police officers, detectives . . .
fire fighters . . . rescue workers, hazardous materials workers and similar employees,
regardless of rank or pay level, who perform work such as preventing, controlling or
9
extinguishing fires of any type; rescuing fire, crime or accident victims . . . or other similar
work.” Id. § 541.3(b)(1). Stated otherwise, if an employee falls into one of these
enumerated classes, then the FLSA’s executive exemption does not apply and that
employee must be paid overtime in accordance with 29 U.S.C. § 207.
But these classes must be approached with caution. An employee is not a “fire
fighter” under the First Responder Regulation merely because, for example, the words “fire
fighter” appear in his job title, 29 C.F.R § 541.2, or because he happens to be employed by
a fire department. To do so would be to privilege form over substance in a manner at odds
with both the internal logic and the purpose of the FLSA. Avoiding this mistake, 29 C.F.R.
§ 541.3(b)(2) identifies the essential criterion accordingly: “[The employees listed in §
541.3(b)(1)] do not qualify as exempt executive employees because their primary duty is
not management of the enterprise in which the employee is employed.” Id. § 541.3(b)(2)
(emphasis added). Section 541.3(b)(1) presupposes, therefore, that the primary duty of
each enumerated group is not to “manage[] the enterprise” but rather to engage in particular
sorts of hands-on activity, such as—in the case of fire fighters—extinguishing fires and
rescuing fire and accident victims. An individual whose work does not meet this criterion,
though he might be called a “fire fighter” in some other, colloquial sense, cannot be deemed
one under § 541.3(b).
Thus, determining what counts as the CFD BCs’ primary duty assumes central
importance. The regulations define “primary duty” as “the principal, main, major or most
important duty that the employee performs.” 29 C.F.R. § 541.700(a). Determination of an
employee’s primary duty is fact-sensitive, id. (it “must be based on all the facts in a
10
particular case”), and must focus on the substance of his work as performed in practice.
Section 541.700 states that determination of an employee’s primary duty ought to include
consideration of the following four factors: “[1] the relative importance of the exempt
duties as compared with other types of duties; [2] the amount of time spent performing
exempt work; [3] the employee's relative freedom from direct supervision; and [4] the
relationship between the employee's salary and the wages paid to other employees for the
kind of nonexempt work performed by the employee.” Id.
A.
Each of these four factors will be taken in turn. However, because factors one and
two both incorporate a distinction between work that is exempt and work that is not, we
preface our four-factor analysis with a discussion of which of the BCs’ duties are
managerial, and therefore exempt. The relevant regulations define “management” as
follows:
Generally, “management” includes, but is not limited to, activities such as
interviewing, selecting, and training of employees; setting and adjusting their
rates of pay and hours of work; directing the work of employees; maintaining
production or sales records for use in supervision or control; appraising
employees' productivity and efficiency for the purpose of recommending
promotions or other changes in status; . . . disciplining employees; planning
the work; determining the techniques to be used; apportioning the work
among the employees; determining the type of materials, supplies,
machinery, equipment or tools to be used . . . ; [and] planning and controlling
the budget . . . .
29 C.F.R. § 541.102. The picture that emerges is of management as an act of authority,
formed in some degree through independent judgment, by which the members of an
enterprise, and their affairs, are ordered toward its end. Accordingly, the principal
11
expression of a manager’s discretion consists in determining, to a greater or lesser degree,
how others within the enterprise will act to advance the purpose for which the enterprise
exists.
Supplemental guidance issued by the Department of Labor helps clarify this picture,
specifically in the context of the First Responder Regulation, by offering further examples
of duties that are managerial, including:
[E]nsuring operational readiness through supervision and inspection of
personnel, equipment and quarters; deciding how and where to allocate
personnel . . . [and] directing operations at . . . fire . . . scenes, including
deciding whether additional personnel or equipment is needed.
69 Fed. Reg. 22,130 (Apr. 23, 2004) (the Preamble). This clarification is especially
edifying in the context of emergency response because, as the district court observed, it
distinguishes clearly between officers whose primary responsibility is to develop an
emergency response plan, and those whose primary responsibility is not to debate it or
revise it, but to effect it by taking direct action. J.A. 1324. As such, it elaborates seamlessly
on the same theme expressed in § 541.102, and recognizes the real difference between the
firefighter at the frontlines, who must rush into a burning building, and the commander
whose job it is to ensure that he is doing so in the right way and at the right time. See
Mullins v. City of New York, 653 F.3d 104, 115 (2d Cir. 2011) (adopting the Department
of Labor’s interpretation of the Preamble as treating the “high-level direction of operations
by fire chiefs and fire captains who generally did not engage in any front-line firefighting”
as managerial).
12
Under these regulations, the staffing and supervisory duties that the plaintiff BCs
perform in-station constitute exempt managerial work. Staffing, which BCs must engage
in on a daily basis, is a typical managerial activity. As described above, the BCs’ staffing
duties require them to use their discretion under the CFD’s staffing policy to ensure that
vital pieces of emergency response equipment, like the CFD’s fire engines, are
appropriately matched to groups of firefighters that have the numbers, skill, and experience
to operate them. BCs’ staffing decisions determine where, when, and how firefighters will
be expected to work, what equipment, if any, can be staffed short, whether certain
firefighters may be able to take leave, and how the next day’s operations are likely to
impact the CFD’s budget. If this kind of activity does not constitute “planning the work,”
“apportioning the work,” and “deciding how and where to allocate personnel,” it is difficult
to imagine what could. 29 C.F.R. § 541.102; 69 Fed. Reg. 22,130.
BCs’ in-station supervisory duties are also managerial. They monitor, evaluate, and
guide the performance of their Company Officers both generally and on the basis of their
response to specific emergencies. They watch over the development of fresh recruits and,
whether dealing with recruits or captains, enforce CFD discipline. If the BC determines
that something sterner than a verbal or written reprimand is required, the BCs initiate the
process by filing a recommendation for consideration higher up the chain of command. As
for training, if the BC, monitoring the operational readiness of his firefighters, finds their
competency in a particular area wanting, he has the independent discretion to order
additional training, and to decide when that training has been completed to his satisfaction.
Again, that these activities constitute “training” employees, “disciplining” them, and
13
“maintaining operational readiness through inspection and supervision of personnel,” is
clear. Id.
The BCs’ attempt to mitigate the significance of these undisputed facts by
observing, for example, that BCs cannot exercise their discretion in contravention of
official CFD policies, like the staffing policy mentioned above, which the plaintiffs
characterize as highly restrictive. But this characterization is mistaken. The staffing policy
consists of a set of high-level directions that hardly negate the need for discretionary
judgement on the part of a well-prepared BC. A BC must be capable of using his
understanding of the operational challenges facing his battalion, of the status and aptitude
of the men under his command, and of the short- and long-term impacts his assignment
strategies are likely to have on the readiness of his battalion in order to make sound
decisions. Rather than barring meaningful discretion, then, the effectiveness of the CFD
staffing policy actually presupposes its competent exercise.
And it is, more generally, no argument against the managerial nature of an
employee’s activities to imply that said employee could always enjoy more liberty or
exercise more control. The appreciable independent judgment BCs must exercise in
coordinating and monitoring their firefighters’ work does not dwindle to nothing simply
because greater authority over certain matters lies higher up in the chain of command. To
find otherwise would be to define “management” more narrowly than the applicable
regulations allow.
As for matters touching directly on emergency response, the uncontested facts in
the record show that CFD BCs are not frontline firefighters; their responsibility and their
14
authority are distinctly managerial under the terms of the Preamble. The principal role of
a BC responding to any emergency is unambiguous: to strategize and to command. A BC’s
response vehicle does not come outfitted with hoses, ladders, or fire retardant, but rather
with computers, control boards, and a radio suite. This is only fitting, given that the BC
on scene assumes command by default, and his vehicle serves as the locus of all his activity
during a typical response. The BC is not expected to shout instructions while scaling
ladders or handling hoses with his men at the frontlines. He is expected, instead, to remain,
for the most part, in his command vehicle, where he can rapidly analyze incoming
information, decide whether he needs to call in additional units, fashion a plan to achieve
core tactical objectives, and direct his men accordingly. It is in this capacity that he utilizes
the experience and knowledge gained from decades spent rising through the ranks, and
refreshed through daily training with his men, whose strengths and limitations inform his
orders on command. If the firefighters at the frontline’s burning edge are the strong arm
of an emergency response, then the BC in his command vehicle is undoubtedly the brain.
The managerial nature of the BC’s role can be seen even more clearly in light of his
emergency-response-related authority. Aside from what has just been mentioned above, a
BC may remove himself from service without the permission of superiors, not for a few
minutes, but for a few hours. Conversely, he may unilaterally decide to add himself to any
call. And finally, it is his prerogative, if arriving at a scene where a Company Officer
already has command, simply to leave, even if the incident remains ongoing. These are
not the kind of powers vested in furtherance of frontline firefighting duties. They are,
instead, exactly the kind of powers one would expect to be vested in an individual who
15
must decide not only how best to direct others, but also where his own leadership abilities
can do the most good; in other words, to an individual whose emergency response duties
are managerial. See Mullins, 653 F.3d at 115.
The plaintiff BCs assert that treating the aforementioned in-station and emergency
response duties as managerial is foreclosed by Morrison’s interpretation of the regulatory
scheme, which supposedly prohibits treating as managerial all duties directly related to
“first response.” This is incorrect. In interpreting § 541.3(b)(2), Morrison states that
training “meant to assur[e] a constant state of preparedness” could not be managerial
because it “relate[s] directly to [a fire captain’s] regular front line firefighting duties.”
Morrison v. County of Fairfax, 826 F.3d 758, 771 (4th Cir. 2016) (quoting Barrows v. City
of Chattanooga, Tenn., 944 F. Supp. 2d 596, 604 (E.D. Tenn. 2013). This emphasis on the
importance of a fire captain’s responsibilities at the frontline of an emergency response is
a strong rejoinder to the plaintiffs’ effort to muddy the distinction between frontline and
non-frontline activity.
B.
With this understanding of the BCs’ managerial duties in mind, the primary duty
test becomes easy to apply, see supra at 11. As to the first factor, which looks to the relative
importance of the BCs’ exempt duties, the BCs’ exempt, managerial duties, discussed
above, greatly outweigh any other, non-exempt duties they might have. Consideration of
the BCs’ in-station responsibilities is most informative here. The deposition testimony of
Division Chief Wooten, the BCs’ direct superior, identified the BCs’ primary role as
“managing resources” for good reason: the staffing decisions that a BC must make on a
16
daily basis are indispensable to the ability of his entire battalion—which comprises five
separate fire stations—to respond to emergency situations with even the most basic level
of competence. If equipment as fundamental to fire response as the battalion’s engines is
staffed by groups without the numbers or the competence to operate them effectively, then
the goal of safe and efficient response to unpredictable, life-threatening incidents is deeply
compromised. The BCs’ supervisory duties, which include evaluating Company Officers
and line firefighters while taking active steps to ensure the entire battalion’s operational
readiness, are important for similar reasons. Discharge of these duties, unlike those
belonging to the fire captains in Morrison, impact much more than the one out of ten
emergencies to which the BCs themselves personally respond; they impact the
effectiveness of every battalion member, in every single one of the incidents to which they
respond, whether the BC is personally present on-scene or not.
The BCs’ unique position in the CFD command structure further underscores the
significance of their in-station managerial duties. Of all 449 of the CFD employees, there
are only six officers who outrank BCs. Unlike BCs, these superior officers do not work
24-hour shifts; they do not train alongside the Company Officers and the line firefighters;
they are further removed from on-the-ground emergency response; and they are burdened
with many other responsibilities. The captains directly beneath BCs, however, typically
lack anything close to the BCs’ experience and expertise. The BCs are, therefore, uniquely
situated in the CFD command structure. They are the only officers capable of discharging
the necessary staffing and supervisory duties both effectively and efficiently, without
which the CFD’s entire operation would suffer.
17
The contrast with the fire captains in Morrison is stark. The Morrison captains had
few in-station duties that were managerial in character, none of which approached the
battalion-wide significance of the BCs’ staffing and supervisory responsibilities. The
“single biggest block” of their in-station time was spent in “daily training for their first
response duties.” Morrison, 826 F.3d at 763. While the CFD BCs organize the activity
of entire battalions on a daily basis and regularly coach Company Officers on their response
to specific incidents, the Morrison fire captains spent—at a maximum—twelve hours each
year preparing annual evaluations for members of their crews. Id. at 763–64.
This same difference from Morrison is manifest in the context of emergency
response: the most important role of a BC on the scene of an emergency is to establish a
command structure, analyze incoming information, and direct the entire effort strategically
from their command vehicles. The Morrison fire captains filled a role that was much more
hands-on, working “side-by-side with their subordinates . . . . operat[ing] hoses and ladders,
ventilat[ing] buildings, . . . and running into burning buildings.” Id. at 763. In terms of the
balance between exempt and non-exempt duties, then, the Morrison fire-captains are, if
comparable to anyone in the CFD, comparable to its Company Officers, not its BCs.
The remaining factors may be quickly assessed. The second factor in the primary
duty test—the amount of time spent performing exempt work—also militates in favor of
treating BCs’ primary duty as managerial. This is so for one very simple reason: a Battalion
Chief plays a managerial role both while performing in-station duties and while engaged
in emergency response.
18
With regard to the third factor, the BCs are also relatively free from direct
supervision. While BCs work 24-hour shifts, their superiors do not. This leaves BCs not
only unsupervised but also, in many respects, effectively without a superior for much of
the time they spend on the job. Although hiring recommendations and the most serious
disciplinary recommendations made by BCs are always subject to oversight and approval
from above, the staffing and other supervisory decisions they make are not typically subject
to direct supervision.
And once again, the contrast with the Morrison fire captains is instructive. The
Morrison captains commonly worked their shifts with their superior officer “physically
present at the station.” Id. at 771. When this was not possible, they were nevertheless in
“daily telephone or email contact.” Id. The extent to which the captains were expected to
use their independent judgement was, relative to the CFD BCs, quite limited. Id. (quoting
testimony that “[a]ny good captain will tell you he doesn’t have an opinion about anything.
He has whatever opinion the fire chief tells him it is.”). Comparing the Morrison captains
and the CFD BCs is, in light of their multiple differences, just not plausible.
The fourth factor, which deals with the pay differential between the Battalion Chiefs
and other employees, is less clear. The Morrison court looked to whether the pay range of
the position at issue in that case overlapped with the pay range of the position immediately
beneath it in the chain of command. Id. at 771–72. Here, the pay ranges overlap, and the
average salary of a BC is only slightly greater than the average salary of a CFD captain,
once one accounts for the latter’s overtime pay.
19
Nevertheless, this fourth and final factor does not suffice to overcome the combined
force of the first three factors, especially given that the primary duty analysis must be a
“holistic one” that “step[s] back” to look at the position in question with a “broad[] lens.”
Id. at 772. For all of the reasons above expressed, the primary duty of the CFD BCs is not
frontline firefighting, but management.
IV.
Because the BCs’ primary duty is not frontline firefighting, the First Responder
Regulation does not preemptively exclude the BC position from the executive exemption.
What remains, then, is to apply the law of the executive exemption to the undisputed facts
on the record, to determine if they show that BCs fall within its scope. To qualify as exempt
executives, BCs must be employees:
(1) Compensated on a salary basis pursuant to § 541.600 at a rate of not less
than [$455 per week] 2 . . . ; (2) [w]hose primary duty is management of the
enterprise in which the employee is employed . . . ; (3) [w]ho customarily
and regularly direct[] the work of two or more other employees; and (4)
[w]ho ha[ve] the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring, firing, advancement,
promotion or any other change of status of other employees are given
particular weight.
29 CFR § 541.100(a). Neither party disputes that the plaintiff BCs satisfy the first and
third prongs. The primary duty analysis above has already shown that they satisfy the
2
At the time the BCs filed their complaint, the text of the regulation read, in relevant part:
“Compensated on a salary basis pursuant to § 541.600 at a rate per week of not less than
the 40th percentile of weekly earnings of full-time nonhourly workers in the lowest-wage
Census Region . . . exclusive of board, lodging or other facilities.” The CFD represented
that this calculation, applied to the present case, worked out to $455 per week. Because
the BCs raised no objection either below or on appeal, that is the figure we rely upon here.
20
second. And ultimately, even construing all reasonable inferences in favor of the plaintiffs,
the record demonstrates that the BCs satisfy the fourth prong as well.
The parties agree that BCs sometimes made recommendations on “hiring, firing,
advancement, or . . . other change of status,” but dispute whether these recommendations
were “given particular weight.” Under the regulatory scheme, whether a court may find
that such recommendations are accorded “particular weight” should depend, inter alia, on
“whether it is part of the employee's job duties to make such suggestions and
recommendations; the frequency with which such suggestions and recommendations are
made or requested; and the frequency with which the employee's suggestions and
recommendations are relied upon.” 29 C.F.R. § 541.105. The regulation further specifies
that an employee’s recommendations may have particular weight “even if a higher level
manager's recommendation has more importance.” Id.
Two duties of the BC role assume particular salience here: first, BCs sit on hiring
panels; second, BCs recommend termination or suspension when they identify an inferior
officer’s infraction as sufficiently severe. To take the former duty first, the hiring panel
process is structured in a way that strongly suggests the particular weight of BCs’
recommendations. Hiring panels may include Company Officers, and even firefighters,
but the typical panel during the relevant period had always, by design, at least one chief
officer—either a Division Chief or a BC. This structural norm indicates a belief, on the
part of those with final hiring authority, that the judgment of chief officers contains a degree
of insight not shared by lower-ranked officers and that their presence on the panel makes
its recommendations more trustworthy. It also indicates that Division Chiefs and BCs are
21
interchangeable for this purpose. Furthermore, the panel’s recommendations, which take
the form of numerical scores submitted by each panel member, are not aggregated into a
composite score prior to their review by those with hiring authority. In short, the CFD’s
hiring process was specifically designed to solicit and preserve the input of BCs,
demonstrating that their recommendations were specially relied upon and accorded
“particular weight.” Importantly, BCs could also spontaneously recommend captains for
an Acting BC position; not one of these recommendations was ever rejected.
As for discipline, although the need to recommend termination or suspension has
not arisen frequently, it is the clear role of the BCs to do so if warranted. J.A. 110, 1332.
And there is no evidence, given the frequency with which the BCs’ other disciplinary
recommendations have been adopted, to suggest that such recommendations would not
receive equally serious consideration. Cf. J.A. 546 (BC Gibson testifying “to the best of
my knowledge, [Chief Wooten has] always supported [my disciplinary]
recommendation[s]”); J.A. 361. The notion that a few rejected recommendations could be
decisive contradicts the plain language of the regulation, which sets the standard at
“particular weight,” not complete or presumptive deference. Plaintiffs’ argument on this
point has not elsewhere met a hospitable reception. See, e.g., Holt, 925 F.3d 905, 912 (6th
Cir. 2019) (“[T]his element of the executive exemption does not require courts to ask
whether an employee’s recommendations as to personnel decisions were accepted every
single time.”); Rooney v. Town of Groton, 577 F. Supp. 2d 513, 531 (D. Mass. 2008).
22
Plaintiff BCs therefore satisfy all four prongs of the executive exemption and, as executive
employees, are not due overtime pay under the FLSA. 3
V.
We recognize that the FLSA can seem an arcane law, one which is difficult for both
local governments and public employees to decipher. But there is an underlying thread of
rationality to the statute and its regulations, which is that hourly workers who are the bulk
of many a workforce are covered, but that those who operate in managerial capacities are
not. Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 654 (2d Cir. 2012) (stating that
the broad purpose of the executive exemption is “to distinguish managerial employees from
non-managerial employees”). On the facts in the record before us, the Battalion Chiefs of
the Chesapeake Fire Department fall plainly in the managerial category. The judgment of
the district court is accordingly affirmed.
AFFIRMED
3
Because we hold that the BCs are excepted from overtime pay under the executive
exemption, we do not reach any arguments relating to the administrative or highly
compensated employee exemptions.
23
Shean Emmons v. City of Chesapeake
Combined Opinion