Lawrence v. City of Philadelphia, Pa.

HARD IMAN, Circuit Judge,

dissenting.

The majority holds that Philadelphia’s Fire Service Paramedics (FSPs) are nonexempt employees under Section 203(y) of the Fair Labor Standards Act because they spend a de minimis amount of their time actually engaged in fire suppression activities. In my view, we must ask whether an FSP has the “responsibility” to engage in fire suppression and the answer to this question does not depend upon how much time an FSP actually spends on such activities. In concluding that FSPs must be on the front lines of firefighting to have “responsibility to engage in fire suppression,” the majority is unfaithful to the text, structure, and legislative history of the 1999 amendments to the Fair Labor Standards Act. Consequently, the majority’s approach exposes municipalities to the same unnecessary and potentially staggering damage awards that Congress intended to prevent. I respectfully dissent.

I.

This appeal forces us to choose sides in an emergent circuit split regarding the interpretation of the phrase “responsibility to engage in fire suppression” as used in § 203(y) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. As the majority thoroughly discusses, in Cleveland v. City of Los Angeles, 420 F.3d 981 (9th Cir.2005), the Ninth Circuit found that “for Plaintiffs to have the ‘responsibility’ to engage in fire suppression, they must have some real obligation or duty to do so. If a fire occurs, it must be their job to deal with it.” Id. at 983. Contrary to Cleveland, the Fifth Circuit stated in McGavock v. City of Water Valley, 452 F.3d 423 (5th Cir.2006), that emergency personnel trained as firefighters could be considered exempt “even though they may spend one hundred percent of their time responding to medical emergencies.” Id. at 427. Following oral argument in the present appeal, the Eleventh Circuit sided with the Fifth Circuit, stating that “responsibility” is a “forward-looking, affirmative duty or obligation that an employee may have at some point in the future” or a “duty which one may or may not ever be called upon to perform.” Huff v. DeKalb County, 516 F.3d 1273, 1281 (11th Cir.2008). Accordingly, the Eleventh Circuit stated that the exemption does not require that there be “any level of engagement in fire suppression.” Id. (emphasis in original).

*321In this case, by stating that “responsibility is something that is mandatory and expected to be completed as part of someone’s role or job,” Maj. Op. at 317, the majority has essentially adopted the Ninth Circuit’s dictionary definition-based analysis of the statutory term “responsible.” Under the majority’s view, FSPs cannot be “responsible” for fire suppression unless they are “hired to fight fires,” are “expected to fight fires as part of their job duties,” and have “fire suppression duties” as part of their job description. Id. Providing emergency support at a fire-ground — such as moving hose line — is insufficient because it is not the “role” or “required duty” of an FSP. Id at 317. Although not explicitly stated, the majority effectively requires evidence that employees actually engage in fire suppression on a regular basis. The possibility that an FSP might “theoretically” or “periodically” be ordered by a superior officer to engage in fire suppression is not enough. This approach is contrary to the Eleventh Circuit’s view, under which it suffices if one employed by a fire department “may ... at some point in the future” be called upon to engage in fire suppression, regardless of whether that person has ever done so in the past. Huff, 516 F.3d at 1281.

In my view, the majority’s construction is supported by neither the text and structure of § 203(y) nor the dictionary definition of “responsibility.” Although FLSA exemptions are to be construed narrowly, the majority categorically renders nonexempt many fire department employees— paramedics, emergency medical technicians, rescue workers, ambulance personnel, and hazardous materials workers— despite Congress’s attempt to broaden the exemption. Indeed, the majority’s interpretation of the statute renders superfluous the final provision of § 203(y)(2), which provides that an employee is exempt if he or she is “engaged in ... the response to emergency situations where life, property, or the environment is at risk.”

II.

I have no quarrel with the majority’s use of dictionary definitions as an aid in construing undefined statutory terms. But none of the dictionary definitions suggested by either the Ninth or Eleventh Circuits leads inexorably to the conclusion that employees must actually fight fires to be responsible for fire suppression. In Cleveland, the Ninth Circuit noted that “responsibility” has been defined as “a duty, obligation or burden,” “[a] charge, trust, or duty, for which one is responsible,” “[ljiability,” or “[a] thing or person that one is responsible for.” See Cleveland, 420 F.3d at 989 (internal citations omitted). To this list, the Eleventh Circuit added a “moral, legal, or mental accountability.” Huff, 516 F.3d at 1280 (internal citation omitted). The Ninth Circuit also observed that “responsible” means “expected or obliged to account (for something, to someone), answerable, accountable” and “involving accountability, obligation or duties,” and may apply “to one who has been delegated some duty or responsibility by one in authority and who is subject to penalty in case of default” or something one is “required to do as part of a job, role or legal obligation.” Cleveland, 420 F.3d at 989 (internal citation omitted). “Responsible” can also mean “having an obligation to do something, or having control over or care for someone, as part of one’s job or role.” Id. (internal citation omitted).

Only a few of the foregoing definitions support the majority’s suggestion that fire suppression must be part of the employee’s formal role, and none suggests that fire suppression must be the employee’s *322principal function (i.e., the employee must be “hired to fight fires”). Nor do these definitions imply that an employee is not “responsible” if the performance of the duty or burden is contingent upon a future occurrence that may never come to pass.12 It may be sufficient if the employee is subject to a duty to engage in fire suppression at some point in the future, whether that duty is the employee’s primary role or not.

Even if the dictionary definitions offered a clearer answer to the question before us, we must begin with the text and structure of the statute. “There is a limit ... to how much can be proved by invoking dictionary definitions and usage.” United States v. Loney, 219 F.3d 281, 285 (3d Cir.2000). As the Supreme Court has instructed, we examine “not only the bare meaning of the word but also its placement and purpose in the statutory scheme,” bearing in mind that “[t]he meaning of statutory language, plain or not, depends on context.” Id. at 285 (quoting Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (internal quotations and additional citations omitted)). Moreover, when examining the statutory text and structure, we must be careful to avoid a construction that renders any part of the statute superfluous. Pa. Dep’t of Public Welfare v. U.S. Dep’t of Health & Hum. Servs., 928 F.2d 1378, 1385 (3d Cir.1991).

Reviewing § 203(y) with these principles in mind, I find that the phrase “responsibility to engage in fire suppression” cannot mean, as the majority suggests, that the employee’s primary role and function is to engage in fire suppression. The statute 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 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). Subsection (1) of § 203(y) is phrased conjunctively. Accordingly, all employees falling within the exemption must be (a) trained in fire suppression, (b) have the legal authority and responsibility to engage in fire suppression; and (c) be employed by a public fire department. By contrast, subsection (2) of § 203(y) is phrased disjunctively. Thus, in addition to meeting all of the requirements of § 203(y)(1), an exempt employee must also be (a) engaged in the prevention, control, and extinguishment of fires; or (b) engaged in the response to emergency situations where life, property, or the environment is at risk.

The majority’s construction of subsection (1) would render the second part of subsection (2) entirely superfluous. If employees must satisfy § 203(y)(1) by being *323“hired to fight fibres” and “expected to fight fires as part of their job duties,” it necessarily follows that they are “engaged in the prevention, control, and extinguishment of fires” and the first clause of § 203(y)(2) is redundant. More problematically, the majority’s requirement that exempt employees actually engage in fire suppression renders superfluous the phrase “or response to emergency situations where life, property, or the environment is at risk.” As the Eleventh Circuit observed, the use of the disjunctive in § 203(y)(2) demonstrates that “there is no statutory requirement that there be any level of actual engagement in fire suppression.” Huff, 516 F.3d at 1281. An employee may become exempt either by fighting fires or by responding to emergency situations where lives, property, or the environment are at risk. Controlling and extinguishing fires would, of course, also involve such emergency situations. Yet the use of the disjunctive word “or” shows that an employee who responds to emergency situations other than firefighting may be exempt. See United States v. Hodge, 321 F.3d 429, 436 (3d Cir.2003) (“[Cjanons of construction ordinarily suggest that terms connected by a disjunctive be given separate meaning unless the context dictates otherwise”) (citation omitted). Were it otherwise, Congress could have omitted that provision entirely or used the conjunctive “and.” In sum, the majority’s interpretation effectively ignores the final clause of § 203(y)(2) and makes engaging in fibre suppression the sine qua non of the exemption.

In an attempt to demonstrate that its construction does not render the second part of § 203(y)(2) superfluous, the majority posits a hypothetical employee who is “both a firefighter and a paramedic because of his or her training and experience in both fields,” but whom the municipality chooses to use “in his/her capacity as a paramedic.” Maj. Op. at 318 n. 8. Such an employee would fall within the exemption without engaging in fire suppression because s/he would have the authority to fight fires and would “respon[d] to emergency situations” as required by the second part of § 203(y)(2). Id. In so concluding, the majority overlooks its own definition of “responsibility,” which requires that the employee be “hired to fight fires” and actually engage in firefighting. If the fact that a paramedic had prior training and experience as a firefighter sufficed, then the “authority and responsibility” prong of § 203(y)(1) would become superfluous and being “trained in fire suppression” would become the sine qua non of the exemption.13

To avoid rendering statutory language superfluous, the phrase “responsibility to engage in fire suppression” must mean something different than that ascribed to it by the majority. I find persuasive the broader constructions offered by the Fifth and Eleventh Circuits. Employees are subject to the exemption without ever having actually engaged in fire suppression, so long as they may have a “forward-looking, affirmative duty or obligation” to do so at some point in the future, id. at 1281, even if they presently “spend one hundred percent of their time responding to medical emergencies.” McGavock, 452 F.3d at 427.

*324This construction is consistent not only with the use of the disjunctive in § 203(y)(2), but also with the statutory language indicating that various emergency responders fall within the ambit of the exemption. The introductory sentence of § 203(y) explicitly states: “ ‘Employee in fire protection activities’ means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker.” 29 U.S.C. § 203(y) (emphasis added). Congress’s enumeration of various job titles, in addition to that of firefighter, undermines the majority’s conclusion that the exemption applies only to employees hired exclusively, primarily, or periodically “to fight fires.”14

III.

The majority attempts to bolster its analysis of § 203(y) by relying upon legislative history, which supposedly shows that the exemption is intended to apply only to employees who are traditional firefighters but who may engage in emergency medical and rescue work as well. I do not read the legislative history to support this view.

The record is scant, with only three Congressmen making brief floor statements in support of the bill. But it is clear that the sponsor and the floor manager of the 1999 amendment to the FLSA were motivated primarily by several court cases in which emergency medical service personnel employed by fire departments had been found non-exempt under the Department of Labor’s 80/20 rule, which provided that medical service personnel did not fall within the exemption if 20% or more of their time was spent responding to medical emergencies unrelated to fire protection. The bill’s sponsor stated:

The issue addressed by H.R. 1693, Mr. Speaker, concerns fire department paramedics trained to fight fires who have prevailed in several suits for overtime compensation under the FLSA. The paramedics successfully argued they were not fire protection employees covered by the FLSA exemption since more than 20 percent of their normal shift time was spent engaged in emergency responses rather than firefighting, such as emergency medical calls.

145 Cong. Rec. H11,500 (daily ed. Nov. 4, 1999) (statement of Rep. Ehrlich). Representative Ehrlich noted that a municipality in his district had recently been found liable for $3.5 million under the FLSA, and that the potential consequences of such cases were “serious and far-reaching and could result in a dramatic increase in the local costs of fire protection to taxpayers nationwide.” Id. Another representative made a similar point, observing that the narrowing of the exemption by the courts had “resulted in State and local governments being liable for millions of dollar in back pay, attorneys fees and court costs.” Id. (statement of Rep. Boehner).

Representatives also emphasized that the recent trend of cases was contrary to the historical understanding that all emergency responders employed by a fire department were included within the exemption, regardless of whether they were engaged in direct fire suppression: “[h]is-*325torically, 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.” Id. (statement of Rep. Ehrlich). EMS personnel had fit within the exemption “[i]n the past” but the more recent decisions had “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.” Id. (statement of Rep. Boehner).

Finally, Congress made clear that the bill’s clarification of the exemption was specifically intended to remedy the precarious situation in which the recent court cases had placed municipal fire departments. The bill’s sponsor characterized the amendment as “a remedy ... for an increasingly serious situation.” Id. (statement of Rep. Ehrlich). And Representative Boehner cited the millions of dollars in potential liability for state and local governments in arguing that “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.” Id.

In short, the legislative record suggests that § 203(y)’s supporters sought to reverse the trend of court cases in which the exemption — which historically had included any emergency responder employed by a fire department — had been narrowed, resulting in large damage awards against municipalities.15 And in clarifying the exemption, Congress intended to overturn much of the recent caselaw in favor of the more inclusive approach that had prevailed historically under the FLSA. See H.R.Rep. No. 106-1040, at 102 (2001) (describing the 1999 amendment as a “simple and noncontroversial bill to clarify section 7(k) of the Fair Labor Standards Act and restore the original intent of the overtime provisions for employees engaged in fire protection activities”). This may explain why § 203(y) was drafted to bring more fire department employees within the ambit of the exemption. See Vela v. City of Houston, 276 F.3d 659, 674 (5th Cir.2001) (noting that “under the current FLSA, more employees fall within the § 207(k) exemption, and fewer employees are entitled to compensation pursuant to the FLSA general rule”).

The majority’s approach is contrary to the intent of the 1999 amendments to the FLSA. Rather than broadening and simplifying the exemption, the majority renders an entire class of employees — viz., fire department employees who perform emergency response functions but who do not directly “fight fires” — categorically ineligible for exempt status. Such employees were eligible for exempt status even before the 1999 amendments.16 This is directly at *326odds with the legislative history, wherein the supporters of the 1999 amendment expressed their desire to expand the number of exempt persons rather than narrow the exemption.17 Therefore, the majority’s analysis finds no support in the legislative history of § 203(y).

IV.

Applying the broader definition set forth by the Fifth and Eleventh Circuits to the facts before us, I find that Plaintiffs have the “responsibility to engage in fire suppression.” Like the defendant in Huff, the City of Philadelphia uses the Incident Command System, a management tool recommended by the National Fire Protection Association (NFPA), at all of its fire-grounds. Philadelphia Fire Department Operational Procedure # 19 establishes guidelines for the implementation of the Incident Command System and places overall management of an incident in the hands of the “Incident Commander.” The Incident Commander’s “primary consideration is the accountability of all members which will be attained through appropriate control and the monitoring of personnel while operating on the Fireground.” The FSP job description places them under the authority of fire officers, stating that cooperation with fire authorities is “of major significance to this work” and that “[wjork is pel-formed under the general supervision of an administrative or technical fire officer.” And both current Commissioner Lloyd Ayers and former Commissioner Harold Hairston made clear that the Incident Commander possesses broad discretion to “direct or redirect any fire service person, fire service paramedic, or firefighter, in any manner he or she believes will result in the safest environment for civilians and firefighters and efficient suppression of fire,” and that FSPs were accordingly authorized “to engage in fire suppression on firegrounds if needed and as directed by an Incident Commander.”

Consistent with the statements of Commissioners Ayers and Hairston, Plaintiffs repeatedly acknowledged their obligation to comply with orders of the Incident Commander and other superior officers on a fireground, even if these orders required them to engage in fire suppression activities;

• James MacMillan stated that “[i]t’s my responsibility” to follow the orders of the Incident Commander, lieutenants, and captains on a fireground. If he failed to follow an order from a lieutenant or captain to carry hose line, he would “be reported.”
• Michael Brooks testified “you have to follow orders” and that he would stretch hose line or be on the nozzle of a hose on a fireground if he were ordered to do so by a chief.
*327• Lawrence Amaker testified that, while he has never been ordered to assist a firefighter by an Incident Commander, he would follow such an order “[b]e-cause we have a job to do.”
• Duane Boyes acknowledged that he would serve “on the tip of a nozzle of a hose at a fire ground” if ordered to do so, and that he would be disciplined if he did not follow an order by an Incident Commander.
• Richard Lawrence acknowledged that he is under the command of an Incident Commander and would follow a direct order to move a hose or position a ladder. If he failed to follow such an order, he believed he would be disciplined.
• William Brent, Jr. testified that “[disobeying an order from an incident commander under any capacity is subject to discipline,” and that he would be obligated to assist a firefighter if ordered to do so by an incident commander.
• Lawrence Bloomfield acknowledged that he is “required to adhere to orders of whoever is in charge of the fire ground.” If ordered to do so, he would assist a firefighter in raising a ladder or holding a hose.
• Francis Hanna said he would comply with an Incident Commander’s instructions to assist a firefighter with a hose because “that’s the way we’re taught, to follow the order and then question it later.”
• Jeffrey Della Penna testified that he is always under the authority of the Incident Commander and, if ordered to do so, he would carry hose, hold ladders, and enter a burning building to assist with removing a fire victim.
• Arthur Seeger conceded he would comply with an order to move a hose and could possibly be “reported for defiance of a superior officer” if he did not.
• Raymond Mulderig, apparently the only FSP deposed who is not also a Plaintiff, said he would comply with an order to carry a hose or serve on the tip of a nozzle.

On this record, no reasonable finder of fact could conclude that Plaintiffs do not have a “forward-looking, affirmative duty or obligation” to engage in fire suppression if ordered to do so. Or, to use the language of the majority opinion, FSPs ordered to engage in fire suppression are required to do so or be subject to a penalty. This conclusion is reinforced by record evidence suggesting that FSPs have, on occasion, actually engaged in fire suppression activities at the direction of superior officers. For example, Plaintiff Boyes was once asked by a chief or lieutenant to help stretch a hose line. During another incident, a captain asked Plaintiff Boyes to help hook up k hose line to a hydrant. Finally, Plaintiff MacMillan indicated he had been instructed to feed hose line into a building “a few times.” As I have explained, the fact that such instances are relatively rare is immaterial under a proper interpretation of § 203(y)(1).

I am also unpersuaded by the majority’s emphasis on the rarity with which FSPs are dispatched to fire scenes.18 For one, *328there is no support in either the statutory-text or the legislative history for the notion that exempt employees must be “regularly dispatched to fight fires.” Rather, the legislative history of § 203(y) suggests that Congress intended to reject the Department of Labor’s 80/20 rule and those judicial precedents that had found employees non-exempt because they spent most of their time performing non-firefighting functions. The rule announced by the majority today effectively resurrects the 80/20 rule in another form, but without the virtue of delineating precisely how often employees would have to engage in fire suppression activity in order to qualify for the exemption.19

Indeed, the majority offers little guidance to municipalities attempting to classify properly their emergency responders under the FLSA and avoid the potentially staggering damage award that will be visited upon the City of Philadelphia in this case. But it would appear that, to avail itself of the exemption, an employer could simply dispatch paramedics to every fire incident whether or not emergency medical care is required, and require these paramedics to engage in actual fire suppression periodically. I do not believe Congress intended to require employers to engage in such wasteful measures for the sole purpose of ensuring that emergency responders . were deemed exempt under the FLSA. See Huff, 516 F.3d at 1281 (requiring that exempt employees actually fight fires would result in emergency responders occasionally being assigned to fire suppression duties “for the sole purpose of exempting them from the FLSA forty-hour overtime standard”).

Nor do I find persuasive the majority’s attempt to minimize the significance of the Eleventh Circuit’s holding in Huff. It is true that there was no dispute in Huff that plaintiffs were fully trained and certified in fire suppression and even had training beyond that required by state law, but the majority rests its holding on its construction of “responsibility,” and purports to avoid the issue of whether Plaintiffs here were trained in fire suppression. As I explain infra, it cannot reasonably be disputed that FSPs receive some training in fire suppression, and § 203(y) does not require employees to be fully certified.

The majority also claims that the Huff plaintiffs staffed fire apparatuses and were permitted to do so without additional firefighter support, but overlooks the fact that this was true for only three of the six plaintiffs. Those plaintiffs who met the less rigorous firefighting training standards, which the court described as “the NPQI Plaintiffs,” were assigned only to rescue vehicles which, like the ambulances in which Philadelphia FSPs ride, carry only protective “turn-out” gear and little or no fire suppression equipment. Huff, 516 F.3d at 1275. The NPQI plaintiffs were not assigned to fire engines. Id.

*329Finally, the majority claims that FSPs are called to a fire scene only for the purpose of providing medical care, whereas the Huff plaintiffs could be assigned to duties which could range from fire suppression to providing medical care. But the municipality in Huff made precisely the same claim as the City of Philadelphia here, viz., that the plaintiffs could be ordered by an incident commander to engage in fire suppression and had the authority and responsibility to do so if ordered, even though the NPQI plaintiffs had never actually engaged in or been ordered to engage in fire suppression. Id. Given that half of the Huff plaintiffs had never engaged in fire suppression, I cannot accept the majority’s claim that the “great overarching distinction” between Huff and this case is that the Huff plaintiffs “were without a doubt firefighters who also performed paramedic duties.” Maj. Op. at 316 (emphasis added). The majority makes no attempt to explain why the NPQI plaintiffs in Huff are undoubtedly firefighters simply because they have a theoretical duty to comply with an incident commander’s order to engage in fire suppression, while the Plaintiffs here, who recognize the same theoretical duty, are undoubtedly not firefighters.

V.

Having concluded that Plaintiffs have “authority and responsibility to engage in fire suppression,” I must also address whether Plaintiffs are also “trained in fire suppression” under § 203(y)(1). The statute does not define the term, but the parties agree that the plain dictionary meaning of the term “trained” is “to make proficient with specialized instruction and practice.” See Br. of Appellants at 52; Br. of Appellee at 41. The parties also refer to the Department of Labor’s pre-1999 regulation, which requires that employees must be “trained to the extent required by state law” to qualify for the exemption. 29 C.F.R. § 553.210(a)(2). Because I believe that Plaintiffs are adequately trained in fire suppression under either the plain meaning of the term or the pre-1999 regulation, I need not decide whether the Department of Labor’s definition is superseded by the 1999 amendments.

It is clear to me that, after completing their training at the Fire Academy, Plaintiffs were trained in and proficient at fire suppression. During the relevant period, at least a few weeks of the FSP Fire Academy program were devoted to fire suppression instruction and activities. Furthermore, the fire examination that all FSP cadets must pass, as well as the fire suppression activities actually (though rarely) engaged in by FSPs in the field, belie Plaintiffs’ suggestion that fire suppression training is nothing more than a mere “orientation.” The FSP Final Fire Examination contains detailed questions regarding the maximum number of firefighters allowed on certain ladders, the appropriate working angle of such ladders, how to protect oneself from the dangers of flashover, the type of fire hydrants used by the City, the number of half-turns required to open a fire hydrant and ensure maximum flow, the features of various hose nozzles used by the City, and the use and maintenance of SCBA gear. Once in the field, FSPs were able to perform basic firefighting functions such as hooking up hoses to fire hydrants, unkinking hose line, feeding hoses into burning buildings, holding ladders, and, on a few occasions, serving on the end of a nozzle. That many of these activities were not “condoned” or were engaged in by “freelancing” FSPs does not alter the fact that Plaintiffs were trained to a level sufficient to allow them to perform basic firefighting functions.

Plaintiffs also received fire suppression training “to the extent required by state *330law.” 29 C.F.R. § 553.210(a)(2). It is undisputed that the Commonwealth of Pennsylvania does not require fire departments to comply with the training standards set forth by the NFPA. Instead, state law defers to localities and leaves them free to determine their own standards, as Philadelphia has done here. Although there is some force to Plaintiffs’ argument that state law essentially permits the City to claim the exemption while providing “no training at all,” Reply Br. at 21, this is not a case where the employer provided virtually no training or engaged in a sham “training” program simply to avoid the overtime requirements of the FLSA.

Nor is it relevant that the training provided to FSPs does not qualify them for any NFPA certification or permit them to serve as front-line firefighters. The statute says only “trained in fire suppression,” and not trained “to the level of NFPA 1001” or “to the level that the employer requires of its full-time firefighters.” Moreover, interpreting the statute to require uniform or equivalent training standards could have far-reaching and somewhat absurd implications. Fire departments would face the dilemma of either training all personnel in the same advanced firefighting techniques, thereby wasting substantial resources on training that many personnel will rarely use, or tailoring fire suppression training to the needs of individual roles, thereby saving on training costs but forfeiting the FLSA exemption for all but the most highly-trained firefighters. Finally, requiring identical or equivalent training would likely exclude at least some support personnel, such as paramedics, emergency medical technicians, rescue workers, ambulance personnel, or hazardous materials workers: personnel that Congress explicitly included in § 203(y).

For all the foregoing reasons, I would affirm the order of the District Court granting summary judgment to the City of Philadelphia.

. Numerous jobs make employees "responsible for” doing something that they may never have occasion to do, or may only do when other employees with primary responsibility for a task have failed or are otherwise unavailable. Air marshals are "responsible for” apprehending and disarming terrorists on aircraft, even though they rarely, if ever, have to do so and would be called upon to do so only if other aviation security officials had failed to stop an armed terrorist from boarding an airplane. Likewise, members of a police bomb squad are "responsible for” disarming explosives even if no bomb is ever planted.

. The majority's approach in this regard has consequences in this case. Some forty Plaintiffs are, like the hypothetical employee posited by the majority, firefighters who transferred into the FSP program to work as paramedics. Because these Plaintiffs concede that they have been "trained in fire suppression," Br. of Appellants at 28 n. 6, to be consistent with its analysis, the majority should affirm the District Court's grant of summary judgment as to them.

. Drawing on the legislative history of § 203(y), the majority asserts that this language was included to make clear that the exemption covers only "individuals who were no doubt firefighters but also performed various other functions within a fire department.” Maj. Op. at 318. This construction is at odds with the plain language of the provision. By including "firefighter” as a separate job title and using the disjunctive "or,” tire statute provides that an employee may fall within the scope of the exemption even if not a traditional "firefighter.”

. It bears mentioning that the potential damage awards under the prior regulations were staggering. For example, the City of Houston was required to pay nearly $100 million in backpay to its dual-function personnel. See Br. of Amici at 11-12. Under the majority's interpretation of § 203(y), the threat of such damage awards is renewed. See Br. of Amici at 7-9 (explaining that the Ninth Circuit’s decision in Cleveland, if applied nationally, would cost municipalities $500 million per year in overtime, administrative, and litigation costs).

. See Falken v. Glynn County, 197 F.3d 1341, 1347 (11th Cir.1999) (explaining that there are “two categories of cases,’’ one in which “employees are EMS workers only” and one in which employees "are capable of acting, and in fact do act, as both firefighters and EMS workers”); see also 29 C.F.R. § 553.210 (exemption “would also include rescue and ambulance service personnel if *326such personnel form an integral part of the public agency’s fire protection activities”); Lang v. City of Omaha, 186 F.3d 1035, 1038 (8th Cir.1999) ("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”).

. Indeed, the majority's approach would compel the same result in West v. Anne Arundel County, 137 F.3d 752 (4th Cir.1999), the very case that motivated Representative Ehrlich to sponsor the 1999 amendment. The EMTs in West spent more than eighty percent of their time responding to non-fire emergencies, and were prohibited by standard operating procedures from engaging in fire suppression when they did respond to fire emergencies. Id. at 761. Under the majority's approach, these employees would be non-exempt because they are not "hired to fight fires.”

. The majority somewhat understates the importance of FSPs in the City’s fire suppression strategy. It is true that FSPs will only be dispatched to a garden-variety fire incident if it is deemed necessary. But EMS Procedure #11 states that the City Fire Communications Center (FCC) will dispatch a second medic unit ''[wjhenever an emergency escalates to the second alarm.’’ This suggests that FSPs are required — that is, they have the authority and responsibility — to respond to at least some fire incidents, and § 203(y) contains no *328requirement that exempt employees respond to all or even most incidents.

. The majority notes that FSP dispatches to fire scenes account for only about one-tenth of one percent of FSP ambulance dispatches every year. Maj. Op. at 305. But even if FSPs were dispatched to every fire call received by the department, it is likely that FSPs would still spend an overwhelming majority of their time on medical calls because only about seven percent of calls received by fire departments nationwide are for fire suppression, while approximately 62% are for medical aid. Br. of Amici at 6. The majority takes issue with the use of such national statistics, but ignores the larger point: the frequency with which paramedics are dispatched to fire scenes will be, in nearly all cases, quite low, and thus attaching significance to this factor risks making paramedics categorically ineligible for the exemption.