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Haro v. City of Los Angeles

United States Court of Appeals, Ninth Circuit

March 18, 2014

TINA R. HARO, Plaintiff, and RUBEN ARMENDARIZ; FRANK BROWN; IVAN CARMONA; KENNETH DAWSON; DONALD GILLENWATER; JAMES GOLDSWORTHY; ROBERT GONZALEZ; PAUL GUTIERREZ; KARL KOLLER; MICHAEL LIMON; PATRICK MAREK; MIGUEL MARTINEZ; EDDIE MATAMOROS; RICARDO MOLINA; ALAN NAEOLE; TONY TRAN NGUYEN; MICHAEL PALMA; BRANDI PILATO; JOSEPH ST. GEORGES; ARTHUR SKUBIK; THOMAS STAFFORD; CAREY STEINER; ERVIN STONE; MOISES TORRES; CARLOS VARGAS; WAYNE WEISEHAM, Plaintiffs-Appellees,
v.
CITY OF LOS ANGELES, a Municipal Corporation, Defendant-Appellant. JUAN M. ACHAN, Plaintiff, and GREGORY J. ACEVEDO; ANGEL E. ALVAREZ; RANDALL ARAIZA; STEVE BLOCH; RANDALL W. BRASS; KEVIN A. BURGESS; ALFRED CAMACHO; JOSE R. CAMUNAS; S. CARRASCO; JOSEPH COLEMAN; RICKY D. CRAWFORD; WILLIAM D. DUCAT; ENRIQUE C. DUQUE; DANIEL J. FAULKNER; PABLO FLORES; GUS GAETA; CESAR A. GARCIA; DIONISIO L. GARZA; HENRY M. GASBARRI; JUAN GONZALEZ; GEORGE G. GORDON; ENRIQUE GRACIANO; DAVID GRIJALVA; RUDY GUTIERREZ; DIANA IGAWA; MATT JOHNSON; ELDON A. KARRATTI; SCOTT LAZAR; ALEXANDER LEMUS; SHAWN LENSKE; JULIO MALDONADO; CECIL J. MANRESA; JUAN M. MAREZ; MANUEL MARTINEZ; OSCAR MARTINEZ; EDUARDO L. MENA; RICARDO I. MENA; JOE LOUIS MENDOZA; DAVID R. MIRANDA; GABRIEL OLMEDO; TONY PORRATA; KRISTINA RIVERA; MIGUEL RODRIGUEZ; JOSE R. SANCHEZ; ORIN SAUNDERS; CATHLEEN SCARVERS; SUSAN RAE SPENCER; CRAIG J. THOMPSON; EDWARD TORREZ; ROBERT A. VALLES; ALBERTO VARGAS; CHEROMEE BRIDGET WOLD; LJUBOMIR ZAJORAC, Plaintiffs-Appellees,
v.
CITY OF LOS ANGELES, Defendant-Appellant

Argued and Submitted October 11, 2013, Pasadena, California

As Corrected March 27, 2014.

Page 1250

Appeal from the United States District Court for the Central District of California. D.C. No. 2:02-cv-09587-CBM-SH, D.C. No. 2:04-cv-04334-CBM-SH. Consuelo B. Marshall, Senior District Judge, Presiding.

Brian P. Walter (argued), and David A. Urban, Liebert Cassidy Whitmore, Los Angeles, California, for Defendant--Appellant.

Thomas A. Woodley (argued), Woodley & McGillivary, Washington, D.C.; Alan S. Kaufman, Chamberlain, Kaufman & Jones, Albany, New York, for Plaintiffs--Appellees.

Before: Harry Pregerson and Richard C. Tallman, Circuit Judges, and Michael H. Simon, District Judge.[*] Opinion by Judge Pregerson.

OPINION

Page 1251

PREGERSON, Circuit Judge.

Because of an exemption written into the Fair Labor Standards Act (" FLSA" ), Los Angeles City employees " engaged in fire protection" (i.e. firefighters) do not receive standard overtime pay--time and a half for all hours worked over forty in one

Page 1252

workweek. Instead, firefighters receive overtime only after working 212 hours in a twenty-eight-day period.

Plaintiff fire department dispatchers and fire department aeromedical technicians (paramedics assigned to air ambulance helicopters) were denied standard overtime pay because the City of Los Angeles (the " City" ) classified them as employees " engaged in fire protection." Plaintiff dispatchers and aeromedical technicians argue that they are not " engaged in fire protection," and thus are entitled to standard overtime pay.

Also at issue are: (1) the proper statute of limitations, (2) liquidated damages, and (3) offsets for previously-paid overtime.

We have jurisdiction under 28 U.S.C. § 1291.

For the reasons stated below, we affirm the district court's findings that Plaintiffs are entitled to standard overtime pay; the statute of limitations should be extended from two to three years because of the City's willful violation of the FLSA; liquidated (i.e. double) damages should be awarded because the City cannot show good faith or reasonable grounds for violating the FLSA; and offsets should be calculated on a week-by-week basis.

I. Factual Background

A. Plaintiff Dispatchers and Aeromedical Technicians

Plaintiffs are employed by the City of Los Angeles Fire Department as either dispatchers or aeromedical technicians.

i. Dispatchers

Fire Department dispatchers work out of the Operations Control Division, located four levels below City Hall in Los Angeles. Dispatchers receive emergency calls and send a dispatch message to the fire station and any specific vehicles to be dispatched. Dispatchers are also responsible for supporting field employees. If the incident commander at the scene of the incident determines that additional resources are needed, this request goes to the dispatcher. If the incident is large enough, dispatchers are sent to the scene to act as liaisons between the incident commander and Operations Control Division, tracking the incident and dispatching further resources. No dispatcher, however, has worked at a fire scene for at least ten years.

During their shifts, dispatchers are not required to have any fire protective gear with them, nor are they required to handle firefighting equipment. They do not go into the field to physically engage in fire or rescue operations.

Dispatchers must have worked for the Fire Department as either a firefighter or a paramedic for at least four years before becoming a dispatcher. The majority of dispatchers, including Plaintiffs, were trained as firefighters.

ii. Aeromedical Technicians

The second set of plaintiffs are the Fire Department's aeromedical technicians. Aeromedical technicians work within the Air Operations Unit, providing support services for helicopters designated as air ambulances. These technicians must be certified and have experience as both firefighters and as paramedics.

Aeromedical technicians spend the majority of their flights administering medical care. Medical duties consist of assessing, treating, and possibly transporting a patient from an accident scene or from a rescue ambulance that has already removed the patient from the scene. Other responsibilities include scene security, rescue operations, and helicopter equipment maintenance.

Page 1253

Aeromedical technicians are not outfitted with the same gear used by firefighters. Technicians wear fire-resistant Nomex flight suits for protection in the event of a fire on the helicopter. These suits are not designed to fight fires.

Air Operations Unit helicopters are occasionally used during brush fires to drop water and to map out the fires. The helicopter flies to a " helispot" --a designated area close to a water source. If an air ambulance helicopter is used to drop water, aeromedical technicians will load a hose and fittings onto the helicopter. There are times when aeromedical technicians arrive at the helispot before the firefighters. Although it is not their primary responsibility to do so, they will fill the helicopter with water and fuel so that the equipment is ready for immediate use when the firefighters arrive. Aeromedical technicians do not ride in the helicopter when it drops water on the fire.

B. Overtime Pay

In calculating overtime payments, the City classified Plaintiff dispatchers and aeromedical technicians as employees " engaged in fire protection" under the FLSA, 29 U.S.C. § 207(k) and § 203(y). In doing so, the City denied Plaintiffs the standard overtime pay of one and one-half times the regular rate for any hours worked over forty in a week. 29 U.S.C. § 207(a). Instead, the City used the § 207(k) calculation, which requires employees to work a total of 212 hours during a work period of twenty-eight days before earning overtime compensation.

Using the § 207(k) calculation, the City had the option to lower the number of days in the pay period to twenty-seven, which lowered the overtime threshold to 204 hours. See 29 C.F.R. § 553.230. Thus, Plaintiffs received overtime pay only if they worked more than 204 hours in a twenty-seven-day work period. Plaintiffs regularly worked nine twenty-four-hour shifts every twenty-seven-day work period, totaling 216 hours.

II. Statutory Background

The Fair Labor Standards Act of 1938 requires employers to pay their employees who work more than forty hours in a workweek overtime compensation at one and one-half times the regular rate. 29 U.S.C. § 207(a). Section 207(k), however, exempts (i.e. denies regular overtime pay to) employees " engaged in fire protection... activities." 29 U.S.C. § 207(k). As stated above, under § 207(k), an employer must compensate " fire protection" employees with overtime payments only after the employee works more than 212 hours in a twenty-eight-day period. Id. Section 207(k) creates a ratio of days in the period to number of hours worked, and if the number of days in the work period is decreased to twenty-seven, the number of hours an employee must work before earning overtime is decreased to 204. See 29 C.F.R. § 553.230.

In 1999, Congress enacted 29 U.S.C. § 203(y) to define " [e]mployee in fire protection activities" as:

[A]n employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or ...

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