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WEAVER v. CITY & COUNTY OF SAN FRANCISCO

United States District Court, N.D. California


March 4, 2004.

ROBERT WEAVER, Plaintiff,
v.
CITY & COUNTY OF SAN FRANCISCO, Defendant

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

In accordance with this Court's Order Granting Defendant's Motion for Summary Judgment dated February 27, 2004, judgment is hereby entered.

IT IS SO ORDERED AND ADJUDGED. Page 1

 

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
  On February 27, 2004, this Court heard argument on the motion by defendant, City and County of San Francisco, for summary judgment. Having carefully considered the arguments of counsel and the papers submitted, the Court hereby GRANTS the motion for summary judgment.

  BACKGROUND

  This case concerns a suit by 70 plaintiffs, employed as H-3 firefighter/paramedics by the City and County of San Francisco, to recover overtime pay under 29 U.S.C. § 207. Groothoff Decl. at 2; Ex. A to Sprague Decl. at 1. Plaintiffs are exempt from overtime pay if they qualify as "employees in fire protection activities," as defined in 29 U.S.C. § 203(y). Defendant argues H-3 firefighter/paramedics qualify as employees engaged in fire protection activities.

  The H-3 job description provides:

  Under general supervision, responds to fire alarms and engages in firefighting activities for the saving of life and property; performs fire prevention duties; maintains station quarters and equipment; staffs an ambulance to provide initial emergency medical care in a prehospital setting; evaluates and administers first aid, life support and life maintenance measures in accordance with Emergency Medical Service Agency policies and procedures, including CPR, definitive and therapeutic care at or during Page 2 transport of persons; may perform duties of either fire suppression, ambulance driver, paramedic attendant, dispatcher, or other related duties as required.

 Groothoff Decl., Ex. A. Essential duties of H-3 employees include (1) engaging in firefighting activities for the saving of life and property; (2) performing fire prevention duties; (3) operating a variety of firefighter vehicular equipment at the scene of fires; (4) participating in rescue activities; (5) performing salvage duties; (6) inspecting residences and other structures to insure compliance with fire codes, ordinances, laws, and regulations; and (7) transporting persons in need of medical care to and from medical sites. Id.; Responses to Interrogatory No. 18.

  There is conflicting evidence concerning the frequency with which H-3 employees assigned to ambulances actually engage in fire suppression activities. Defendant offers evidence to suggest H-3 employees are responsible for responding to a majority of "fire in building," "smoke in building," and "working fire" calls. Decl. of Battalion Chief Paul Chin at 1. Defendant also offers evidence demonstrating that H-3 employees assigned to an ambulance are required to perform suppression work when requested to do so. Groothoff Decl. at 3; Weaver Decl. at 2; Weaver Depo. 62:10-64:1, Ex. C to Sprague Decl. In contrast, plaintiffs offer evidence demonstrating that ambulances are not sent to every fire call and are only dispatched when there is a need for medical services. Weaver Decl. at 1-2.

  An H-3 work shift is 24 hours, off for 48 hours, with the fifth 24 hour shift followed by five days off. Weaver Decl. at 1. If H-3 employees are not subject to § 207's overtime exemption, such a schedule would entitle them to overtime pay. Now before the Court is defendant's motion for summary judgment; the parties only dispute whether plaintiffs have the "responsibility" to engage in fire suppression under § 203(y).

  LEGAL STANDARD

  Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323; 106 S.Ct. 2548, 2553 (1986). The moving party, however, has no burden to negate or Page 3 disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case. See id. at 325.

  The burden then shifts to the non-moving party to "designate `specific facts showing that there is a genuine issue for trial.'" See Celotex Corp., 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586; 106 S.Ct. 1348, 1356 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 252; 106 S.Ct. 2505, 2512 (1986). In a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. See id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." id.

  DISCUSSION

 1. Plaintiffs' claims are not barred by the doctrine of collateral estoppel

  Defendant argues plaintiffs' claims are barred by the doctrine of collateral estoppel because the issues presented in this case are identical to those presented to and decided by Judge Vaughn R. Walker in Rooker v. City and County of San Francisco, No. C-99-1095 (N.D.Cal., March 2, 2001) ("Rooker/Weaver" litigation). Def.'s Mot. for Summ. J. at 14-16; Def.'s Reply at 12-13. Under federal law, collateral estoppel applies when the following three requirements are satisfied: "(1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding." Hydranautics v. Film Tec Corp., 204 F.3d 880, 885 (9th Cir. 2000) (citations omitted). A denial of summary judgment is not considered the law of the case because it does not actually decide any factual questions. Dessar v. Bank of America Nat'l Trust and Savings Ass'n, 353 F.2d 468, 470 (9th Cir. 1965): see Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir. 1995) ("a denial of summary Page 4 judgment has no res judicata effect").

  In 1999, a group of H-l firefighters brought an action against the City and County of San Francisco in the Northern District of California, seeking overtime pay under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Rooker/Weaver lit. at 7. H-l employees are only trained in exterior fire suppression, while H-3 employees are trained in both exterior and interior fire suppression. id. at 4. In 2001, both parties brought motions for summary judgement. The issue presented to Judge Walker was whether defendant was liable to H-1 employees for overtime wages. id. at 7. In his order, Judge Walker denied both parties' motions for summary judgment. id. at 2. Thereafter, the case was settled. Sprague Decl. at 3.

  A denial of summary judgment is not considered the law of the case and therefore has no preclusive effect in future matters. Whitford, 63 F.3d at 530; see also Schwarzer, Federal Civil Procedure Before Trial § 14:357 (The Rutter Group 2003). Thus, defendant failed to satisfy the second element under the doctrine of collateral estoppel, that there be a final judgment on the merits. Because all three elements must be satisfied, it is unnecessary for this Court to consider the two remaining elements under the doctrine. Accordingly, the doctrine of collateral estoppel does not bar plaintiffs' claims.

 2. Plaintiffs' claims are not barred by the doctrine of judicial estoppel

  Defendant argues that under the doctrine of judicial estoppel, this Court must preclude plaintiffs from asserting that H-3 employees lack "responsibility" to engage in fire suppression because plaintiffs took a contrary position in the Rooker/Weaver matter. Def.'s Mot. for Sum. J. at 16. The purpose of judicial estoppel is to protect the integrity of the judicial process and prevent parties from changing positions to suit their needs of the moment. New Hampshire v. Maine, 532 U.S. 742, 749-50 121 S.Ct. 1808, 1814-15 (2001). Judicial estoppel is an equitable doctrine and courts are to consider a number of factors when determining its application. id. One factor a court may consider is whether the party "has succeeded in persuading a court to accept that party's earlier position, so that judicialacceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.". id. at 750-51, 1815 (citations omitted).

  Plaintiffs did not convince Judge Walker to accept their proposed definition of "responsibility" in the Page 5 Rooker/Weaver litigation, Rooker/Weaver lit at 17, and are not estopped from asserting the propriety of their definition of "responsibility" in this case. Nor did Judge Walker make any formal findings concerning overtime pay of H-3 employees in his summary judgment denial. Rooker v. City and County of San Francisco, No. C-99-1095 (March 2, 2001) at 23 (holding that completion of the H-3 firefighter academy qualified H-3 employees as "trained in fire suppression"). Thus, even if this Court concluded that H-3 employees are not "responsible" for fire suppression, its holding would not be plainly inconsistent with Judge Walker's decision in the Rooker/Weaver matter. Accordingly, plaintiffs are not precluded under the doctrine of judicialestoppel from taking the position that H-3 employees assigned to ambulances are not "responsible" for fire suppression.

 3. Plaintiffs are responsible for engaging in fire suppression under 29 U.S.C. § 203(y)

  Section 207(a) of the Fair Labor Standards Act (FLSA) requires payment of overtime wages to all covered employees working over a forty-hour work week. 29 U.S.C. § 207(a); Adair v. City of Kiridand, 185 F.3d 1055, 1059 (9th Cir. 1999). FLSA has a limited overtime exemption for employees "engaged in fire protection activities," entitling such employees to overtime pay when they work more than fifty-three hours in one week. 29 U.S.C. § 207(k); 29 C.F.R. § 553.230. FLSA exemptions "are to be narrowly construed against the employers seeking to assert them." Alvarez v. IBP. Inc., 339 F.3d 894, 905 (9th Cir. 2003) citing, Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456 (1960). In 1999, Congress amended FLSA and added § 203(y) in order to clarify the definition of "employee in fire protection activities."29 U.S.C. § 203(y); 145 Cong. Rec. H 11, 499 (1999). Section 203(y) reads:

(y) "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).

  Both parties agree plaintiffs are paramedics who are trained in fire suppression, have the legalauthority to engage in fire suppression, are employed by a fire department of a municipality, and respond to emergency Page 6 situations. Pl.'s Opp'n at 8 n.4, 17. Thus, the only dispute between the parties is whether plaintiffs have the "responsibility" to engage in fire suppression. id.; see 29 U.S.C. § 203(y)(1).

  Plaintiffs argue that in order to have a "responsibility" to engage in fire suppression they must have "some real obligation or duty to do so." Pl.'s Opp'n at 18. They contend that while assigned to ambulances they are only dispatched to provide medical care, not to engage in fire suppression activities. id. at 18-19. Plaintiffs assert there is no evidence to suggest that ambulances are considered as a fire suppression resource and that, on the rare occasion they are dispatched to fire scenes, their duties are limited to medical care. id. at 19. Further, plaintiffs argue the word "responsibility" must include the actual practice of engaging in fire suppression in order to give the word "authority," found in § 203(y)(1), a separate meaning. id. at 20. Plaintiffs contend that "responsible" must mean something more than having the duty to fight fires if asked to do so by a superior. id. at 20-21. Otherwise, plaintiffs argue, authority would be synonymous with "responsibility," and it is a cardinalrule of statutory construction that no word shall be read as superfluous. id. at 20. Finally, plaintiffs ask this Court to consider a recent Central District of California decision in which Judge Consuelo B. Marshall held that dual role firefighter paramedics did not have the "responsibility" to engage in fire suppression. id. at 23-24; Ex. A to Appendix of Unpublished Decisions: Cleveland v. City of Los Angeles, No. CV 99-9175 (C.D. Cal. July 3, 2002) at 12 ("Cleveland litigation").

  Defendant offers an entirety different definition of "responsibility," arguing that "an employee has a responsibility to engage in fire suppression if it is part of his job to do so if requested by his employer." Def.'s Mot. for Summ. J. at 19. Defendant actually takes this definition from a 2001 Northern District summary judgment denial issued by Judge Walker. id.; Rooker/Weaver lit. at 17. Defendant asserts that plaintiffs have the "responsibility" to engage in fire suppression under this definition since they are required to perform fire suppression activities when requested to do and their job description specifically provides that H-3 firefighters have the "dual responsibility for firefighting and paramedic functions." Def.'s Mot. for Summ. J. at 19. Further, defendant offers evidence that plaintiffs do, in fact, perform fire suppression activities regardless of their vehicle assignment. Def.'s Reply at 4-6. Defendant also argues that its definition of "responsibility" is in accordance with both the plain language of the statute and the congressional intent behind the enactment of § 203(y). id. at 7-9. Lastly, defendant asserts plaintiffs's reliance on Cleveland is flawed because the case is distinguishable Page 7 on the facts and not persuasive authority. id. at 10-11.

  The Court hereby adopts defendant's definition of "responsibility" and concludes plaintiffs are responsible for fire suppression because they are required to engage in fire suppression if requested to do so by their employer. Adopting this definition of "responsibility" comports with the plain meaning of the word, is in accordance with § 203(y)'s framework, is supported by legislative history, and is consistent with Judge Walker's opinion in the Rooker/Weaver litigation.

  A. Defining "responsibility" as the duty to perform an action if it is part of one's job to do so comports with the plain meaning of the term.

  When construing a federal statute, "words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. U.S., 444 U.S. 37, 42, 100 S.Ct. 311, 314 (1979). The ordinary meaning of "responsibility" is "the state or fact of being responsible." The Random House College Dictionary Revised Edition, 1125 (1988). Responsible is defined as "answerable or accountable, as for something within one's power or control." id. Plaintiffs cite Webster's Dictionary and define "responsible" as "involving accountability, obligation or duties." Pl.'s Opp'n at 18. Plaintiffs then proceed, however, to qualify the definition by arguing H-3 firefighters have the responsibility to engage in fire suppression if they have some real obligation or duty to do so. id. Thus, plaintiffs assert the term "responsibility," as it is used within § 203(y)(1), requires plaintiffs to actually fight fires when assigned to ambulances. id.

  Plaintiffs' qualification is impermissible under the circumstances. The dictionary definition of "responsibility" does not require the actor to actually perform his duties. Rather, it merely requires the actor to be accountable for something within his power or control. Accordingly, defining "responsibility" as the duty to perform an action if it is part of one's job to do so comports with the plain meaning of the word. Qualifying the term with the word "real" embellishes and changes the meaning of the term. Thus, an H-3 firefighter has the "responsibility to engage in fire suppression" under § 203(y)(1) if it is part of his job to do so if requested by his employer.

  B. Defining "responsibility" as the duty to perform an action if it is part of one's job to do so is in accordance with § 203(y)'s statutory framework Page 8

  This Court's proposed definition complies with § 203(y)'s statutory framework for two reasons. First, accepting plaintiffs' definition of "responsibility" and requiring H-3 firefighters to actually engage in fire suppression while assigned to an ambulance would contradict subsection two of § 203(y) which requires employees to engage in fire suppression or respond to emergency situations. Second, defining "responsibility" as "the duty to perform an action if it is part of one's job to do so" does not render the word "authority," as found in § 203(y)(1), superfluous.

  i. Plaintiffs' definition of "responsibility" contradicts § 203(y)(2).

  Under accepted canons of statutory interpretation, "one provision of a statute should not be interpreted in a manner that renders other sections of the same statute inconsistent, meaningless or superfluous." U.S. v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir. 1999) (internal quotations and citations omitted). Section 203(y)(2) requires an employee to "engag[e] in the prevention, control, and extinguishment of fires or respon[d] to emergency situations where life, property, or the environment is at risk." 29 U.S.C. § 203(y)(2) (emphasis added). If the Court adopts a definition of "responsibility" which requires H-3 firefighters to actually engage in firefighting in order to qualify for the exemption, the "or" provision of subsection two in § 203(y) is rendered meaningless. Simply put, plaintiffs' definition of "responsibility" is inconsistent with the language in subsection two of § 203(y).

  In contrast, interpreting responsibility to mean that an H-3 firefighter has the duty to perform fire suppression activities if requested to do so by his employer is entirely consistent with subsection two of § 203(y). Such an interpretation permits a dual function firefighter paramedic to both have the responsibility to engage in fire suppression activities and respond to emergency situations where life, property, or the environment is at risk. See Rooker v. City and County of San Francisco, No. C-99-1095 (March 2, 2001) at 17. Any other interpretation would either make the "or" provision of § 203(y)(2) inconsistent with § 203(y)(1), or render the "or" language of § 203(y)(2) altogether meaningless.

  ii. This Court's definition of "responsibility" does not render the word "authority" meaningless Page 9

  A statute should be construed so that no word is rendered superfluous or insignificant. TRW. Inc. v. Andrews, 534 U.S. 19, 31, 122 So. Ct. 441, 449 (2001) (citations omitted). Plaintiffs argue that if "responsibility" means the duty to engage in fire suppression if requested to do so by his employer, the word "authority," found in § 203(y)(1), would be meaningless. Pl.'s Opp'n at 21. In short, plaintiffs contend that this definition of "responsibility" would be synonymous with "authority."

  The plain meaning of "authority" is "the power to judge, act or command." The Random House College Dictionary Revised Edition, 91 (1988). In contrast, the dictionary definition of "responsibility" is the state of being answerable or accountable for something within one's control. id. at 1125. Applying these definitions to the facts of plaintiffs' employment demonstrates how this Court's definition of "responsibility" does not render "authority" meaningless. The H-3 Firefighter/Paramedic job description states the employees respond "to fire alarms and engage[] in firefighting activities for the saving of life and property" and H-3 employees are trained in both interior and exterior fire suppression Groothoff Decl. Ex. A. Thus, the City and County of San Francisco officially authorize plaintiffs to engage in fire suppression activities. Outside of the job description, the evidence demonstrates that plaintiffs are required to perform fire suppression when requested to do so, even when assigned to an ambulance. Groothoff Decl. at 3; Weaver Decl. at 62:5-64:1, 66:1-14. Accordingly, in addition to being authorized to engage in fire suppression through their official job description, evidence demonstrates that plaintiffs are responsible for engaging in fire suppression in that they must do so when requested by their employer. See Rooker v. City and County of San Francisco, No. C-99-1095 (March 2, 2001) at 17.

  C. Legislative intent supports this definition of "responsibility"

  FLSA fails to give an exact definition of the term "responsibility" and the parties disagree as to its appropriate meaning. When statutory language gives rise to a number of interpretations, a court must adopt the interpretation which aligns with congressional intent. In re Arizona Appetito's Stores, Inc., 893 F.2d 216, 219 (9th Cir. 1990). The legislative history behind § 203(y) supports this Court's definition of responsibility. Page 10

  Representative Boehner specifically stated that the § 203(y) amendment "would ensure that firefighters who are cross-trained as emergency medical technicians, HAZMAT responders and search and rescue specialists would be covered by the exemption even though they may not spend all of their time performing activities directly related to fire protection." 145 Cong. Rec. H 11, 500 (1999). Further, the sponsor of the legislation, Representative Ehrlich, discussed his dissatisfaction with recent civil suits where "fire department paramedics trained to fight fires" have prevailed because more than twenty percent of their time was spent responding to medical emergency calls rather than fighting fires. id. These statements reveal a congressional intent to include within FLSA's overtime exemption dual function paramedic firefighters who respond to emergency medical calls and have the responsibility to engage in fire suppression.

  D. Cleveland v. Los Angeles is distinguishable on its facts

  In Cleveland v. Los Angeles, dual function firefighter/paramedics brought an action against the City of Los Angeles seeking overtime pay under FLSA § 207. Cleveland lit at 8. After a trial on the merits, the trial court entered findings of fact and conclusions of law, holding that dual function paramedics did not have the "responsibility" to engage in fire suppression when assigned to ambulances. id. at 12. Accordingly, the court found that such employees did not satisfy the definition of "employees engaged in fire suppression" under § 203(y). id.*fn1

  Plaintiffs argue Cleveland is persuasive authority that this Court should consider in reaching its ultimate decision.*fn2 Cleveland, however, is distinguishable on the facts. Cleveland lit 2-7; see also Def's Reply at 10-12. Page 11 For example, the paramedics in Cleveland were not equipped with breathing apparatuses or "turn-out gear" and there was no evidence that such employees were ever ordered to perform fire suppression activities. Cleveland lit at 2 ¶ 15, 3 ¶ 24, 3 ¶ 25; see also Def.'s Reply at 10-11. In contrast, H-3 employees in the present case must wear "turn-out gear," are issued breathing apparatuses, and have been ordered to engage in fire suppression activities by their Incident Commander. Weaver Depo. 59:8-60:23, 82:21-25, Ex. C to Supplemental Sprague Decl. As an unpublished decision, Cleveland is not binding on this Court and can only be persuasive authority at most. Herring v. Teradyne, Inc., 256 F. Supp.2d 1118, 1127-28 n.2 (S.D. Cal. 2002). Because the facts of Cleveland differ significantly from those in the case at hand, this court does not find it persuasive in determining whether these H-3 employees are "responsible" for fire suppression under § 203(y).

  E. Evidence submitted supports the finding that plaintiffs are responsible for fire suppression under § 203(y)

  No evidence submitted by either party refutes the conclusion that H-3 firefighters assigned to an ambulance must engage in fire suppression if requested to do so by their employer. Evidence pertaining to the number of fires to which ambulances respond or the frequency with which H-3 employees assigned to ambulances engage in fire suppression does not control whether plaintiffs are "responsible" for fire suppression. The Court is only concerned with evidence that demonstrates whether an H-3 employee assigned to an ambulance has a duty to engage in fire suppression when requested to do so by his employer.

  The undisputed evidence submitted by both parties demonstrates that plaintiffs are "responsible" for fire suppression. First, plaintiff Weaver admits the Incident Commander has discretion to request that an H-3 employee assigned to an ambulance perform fire suppression functions.*fn3 Weaver Decl. at 2; Weaver Depo. Page 12 62:10-64:1, Ex. C to Sprague Decl Plaintiff Weaver further admits that as an H-3 employee, he has the "responsibility" to engage in fire suppression. Weaver Depo. 83:16-19, Ex. C to Sprague Decl. Second, the H-3 job description states that an H-3 employee "engages in firefighting activities" while under general supervision. Groothoff Decl., Ex. A. Third, H-3's assigned to ambulances are prepared to engage in fire suppression activities when responding to a fire because they are required to wear their "turn-out gear" and carry a breathing apparatus on board. Weaver Depo 59:8-60:23, Ex. C to Supplemental Sprague Decl. Thus, if an Incident Commander designates an H-3 assigned to an ambulance to perform fire suppression activities, that employee has the gear to execute such orders. Finally, virtually every plaintiff who submitted interrogatory responses agreed that engaging in firefighting activities for the saving of life and property was one of their duties as an H-3 employee.*fn4 Responses to Interrogatory No. 18, Ex. B to Sprague Decl.

  The only evidence presented to suggest that an H-3 employee does not have a duty to engage in fire suppression when requested to do so by his employer is found in the responses of six plaintiffs to interrogatory numbers 15 and 16.*fn5 Ex. B to Sprague Decl. Interrogatory number 15 asks whether the witness has ever been disciplined for engaging in interior or exterior fire suppression activities and number 16 asks the witness to explain the circumstances of such discipline. id. Although certain plaintiffs answered these interrogatories in the affirmative, this does not create a factual dispute concerning whether H-3 employees must engage in fire suppression when requested to do so by an Incident Commander. See id., responses of Fine, Heuerman, Zwyer, Simmons, Fitzsimmons, and McHale. The responses do not explain whether they were disciplined after the Incident Commander requested plaintiffs to perform fire suppression activities. id. Perhaps these individual plaintiffs were disciplined for engaging in fire suppression absent a request to do so by the Incident Commander. Weaver Depo. 63:5-8, Ex. C to Sprague Decl.; Groothoff Decl. at 3.

  All the evidence presented supports a conclusion that plaintiffs, as H-3 employees assigned to Page 13 ambulances, plainly and unmistakably have the responsibility to engage in fire suppression when requested to do so by their employer. Accordingly, this Court finds, as a matter of law, that plaintiffs have the "responsibility" to engage in fire protection within the meaning of § 203(y) and are therefore subject to FLSA's overtime exemption.

  CONCLUSION

  For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendant's motion for summary judgment, [docket #95]

  IT IS SO ORDERED.


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